                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-1268
                                     ______________

                              JOHN CHARLES MAZUKA,

                                             v.

   RICE TOWNSHIP POLICE DEPARTMENT; OFFICER ANTHONY MARTINE

                                 Officer Anthony Martine,
                                                  Appellant
                                     ______________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                             (D.C. No. 3-13-cv-02003)
                      District Judge: Hon. Robert D. Mariani
                                 ______________

                                  Argued: May 31, 2016
                                   ________________

           Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.

                                   (Filed: July 8, 2016)
                                    ______________

                                        OPINION*
                                     ______________



Christopher P. Gerber [ARGUED]
Siana Bellwoar & McAndrew

       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
941 Pottstown Pike
Suite 200
Chester Springs, PA 19425

       Counsel for Appellant

Daniel Stepanicich [ARGUED]
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104

Joseph J. Gribbin
Joseph S. McFarlane
Will W. Sachse
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104

       Counsel for Appellee


SHWARTZ, Circuit Judge.

       John Mazuka sued Officer Anthony Martine, pursuant to 42 U.S.C. § 1983, for

false arrest and false imprisonment in violation of the Fourth Amendment. Martine

arrested Mazuka for fleeing and eluding by failing to stop his vehicle when directed to do

so. Martine moved for summary judgment, asserting that he was entitled to qualified

immunity. The District Court denied Martine’s motion, finding that factual disputes

existed concerning whether Martine’s conduct in arresting Mazuka was reasonable.

Because the basis for the District Court’s ruling was its correct determination that a

factual dispute existed, we lack appellate jurisdiction under the collateral-order doctrine

and will dismiss this appeal.


                                             2
                                                 I1

       Early in the morning of August 6, 2011, Mazuka was driving home from work and

noticed a set of headlights off to his right at an intersection. He soon noticed the same set

of headlights behind him and realized that they belonged to a police car. Martine, who

was driving the police car, activated his emergency lights,2 but Mazuka continued on.

After Mazuka drove half a mile without pulling over, Martine turned on his siren.

Mazuka asserted that he “did not immediately pull over because he did not see a safe

place to do so” and did not believe he could pull over onto someone else’s property.

App. 12a-3a. Instead, Mazuka slowed down, turned on his hazard lights and the car’s

interior dome light, and drove for another mile before pulling into a parking lot. Two

minutes passed between the time Martine turned on the police car’s emergency lights and

Mazuka pulled over. Martine arrested Mazuka for fleeing and eluding under 75 Pa.

Cons. Stat. Ann. § 3733(a), and also charged him with several traffic violations. All

charges were dropped at a preliminary hearing.

       Mazuka filed a § 1983 complaint against Martine, alleging, among other things,

false arrest and false imprisonment in violation of the Fourth Amendment.3 After

discovery, Martine moved for summary judgment. The Magistrate Judge recommended,


       1
         The following facts are drawn from the District Court’s statement of facts, which
we must accept “as given” in this interlocutory appeal. Walker v. Horn, 286 F.3d 705,
707 (3d Cir. 2002).
       2
         According to Martine’s affidavit of probable cause, Mazuka was speeding and
had crossed into the path of oncoming traffic, which both violate Pennsylvania’s traffic
laws.
       3
         Mazuka also filed claims against Martine and the Rice Township Police
Department that are not relevant to this appeal.
                                             3
among other things, that summary judgment be denied on Mazuka’s false arrest and false

imprisonment claims because: (1) it was unclear from the evidence whether “Mazuka

maneuvered his car in such a manner so as to reflect an intention of avoiding Martine’s

direction”; and (2) a possible affirmative defense under the statute, namely Mazuka’s

claim that it would have been unsafe for him to pull over immediately, was relevant to

whether Martine had probable cause. App. 20a-22a. The Magistrate Judge reasoned that

the factual determination of “whether Mazuka could have safely pulled over once

Martine activated his police lights and siren . . . could cause a reasonable juror to

ultimately find that probable cause existed, or, alternatively, it could cause this Court to

ultimately conclude that qualified immunity is applicable.” App. 28a.

       The District Court adopted this portion of the Magistrate Judge’s Report and

denied the motion. Martine appeals.

                                              II

                                              A

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

“to determine [our] own jurisdiction,” United States v. Ruiz, 536 U.S. 622, 628 (2002),

and “exercise de novo review over an argument alleging a lack of appellate jurisdiction,”

Montanez v. Thompson, 603 F.3d 243, 248 (3d Cir. 2010). While our appellate

jurisdiction under 28 U.S.C. § 1291 is generally limited to appeals from district courts’

final orders, § 1291 also permits us to review “certain collateral orders . . . because they

finally determine claims of right too important to be denied review and too independent

of the cause itself to require that appellate consideration be deferred until the whole case

                                              4
is adjudicated.” Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir. 2002)

(internal quotation marks and alteration omitted).

       Orders immediately appealable under this “collateral-order doctrine” include the

denial of a defendant’s motion for summary judgment on qualified immunity grounds,

“because the entitlement [to qualified immunity] is an immunity from suit rather than a

mere defense to liability and is effectively lost if a case is erroneously permitted to go to

trial.” Id. (emphasis in original) (internal quotation marks and alterations omitted). Such

appeals may be taken, however, only to the extent that the defendant’s purported

entitlement to qualified immunity turns on an issue of law. Id. We may not consider on

interlocutory appeal “whether the district court correctly identified the set of facts that the

summary judgment record is sufficient to prove” or entertain an argument “that a trial

judge erred in denying a qualified-immunity summary judgment motion because the

judge was mistaken as to the facts that are subject to genuine dispute.” Id. (internal

quotation marks omitted).

                                              B

       Qualified immunity is an affirmative defense that shields government officials

“from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and

citation omitted). To overcome qualified immunity, a plaintiff must point to evidence

“showing (1) that the official violated a statutory or constitutional right, and (2) that the



                                               5
right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011) (internal quotation marks and citation omitted).

       A clearly established right is one that is “sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks and citation omitted). The

right implicated in this case is the right to be free from arrest without probable cause,

which, despite its breadth, is a bedrock constitutional principle and a clearly established

right. See U.S. Const. amend. IV; Kelly v. Borough of Carlisle, 622 F.3d 248, 256 (3d

Cir. 2010) (“[I]t [is] clearly established that an arrest [can] be made only on the basis of

probable cause.”); Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995) (“[T]here

is no question that the right at issue, namely, the right to be free from arrest except on

probable cause, was clearly established at the time of Orsatti’s arrest.”). Having

identified the clearly established right at issue here, we next address whether there are

disputed issues of fact that need to be resolved to determine if Mazuka’s right to be free

of arrest without probable cause has been violated.

       Martine arrested Mazuka for violating Pennsylvania’s fleeing and eluding law, 75

Pa. Cons. Stat. Ann. § 3733(a). A violation of § 3733(a) occurs when a driver “willfully

fails or refuses to bring his vehicle to a stop, or . . . otherwise flees or attempts to elude a

pursuing police officer,” after being “given a visual and audible signal to bring the

vehicle to a stop.” Id.

       As the District Court noted, the undisputed facts show that after Martine activated

his lights, Mazuka did not immediately pull over, but did reduce his speed, activate his

                                                6
hazard lights, and ultimately turn on his interior dome light. Mazuka also testified that

there was no safe place to immediately pull over, and submitted photographs of the

roadway that he contends support his claim. Putting aside whether this gives rise to an

affirmative defense under the statute,4 when viewed by a reasonable juror in the light

most favorable to Mazuka, his ability to safely pull over after Martine first activated his

lights is a disputed question of fact which strikes at the heart of whether a reasonable

officer could have had probable cause to believe Mazuka was fleeing or attempting to

elude Martine, as opposed to simply looking for a place to safely pull over. Cf. Reiff v.

Marks, No. 08-CV-5963, 2011 WL 666139, at *8 (E.D. Pa. Feb. 23, 2011) (finding

probable cause existed where driver made several turns and engaged in evasive driving

after police lights were activated). Because this factual dispute was a proper basis for

denying summary judgment, we lack jurisdiction to consider this appeal.5

                                             III


       4
         The statute provides that “[i]t is a defense to prosecution under this section if the
defendant can show by a preponderance of the evidence that the failure to stop
immediately for a police officer’s vehicle was based upon a good faith concern for
personal safety[,]” 75 Pa. Cons. Stat. Ann. § 3733(c) (2) & (iv) (2006), and sets forth
several factors a court may consider to determine if the defendant met this burden,
including “[w]hether the defendant stopped at the first available reasonably lighted or
populated area.” Id.
       5
         Because we have concluded that there is an issue of fact concerning the existence
of probable cause, we need not address Mazuka’s argument that there is a clearly
established right to have an officer, as part of his probable cause determination, consider
whether an affirmative defense negates the existence of probable cause. We do note,
however, that Martine’s affidavit of probable cause makes clear that he was aware of the
affirmative defense and memorialized facts concerning it, thereby suggesting that he
considered the facts available to him that could support the statutory affirmative defense.
App. 88a (stating that Mazuka “had numerous safe places to pull his vehicle to the side of
the road but refused to do so”).
                                              7
For the foregoing reasons, we will dismiss the appeal.




                                     8
Mazuka v. Rice Township Police Department, No. 15-1268

Smith, Circuit Judge, concurring

      I join Judge Shwartz’s excellent opinion in all respects. I agree that

there is a disputed issue of fact as to whether Mazuka was fleeing Martine or

simply looking for a place to safely pull over. I write separately to address

the propriety of a court requiring an officer to consider an affirmative

defense when that officer is making a probable cause determination for

purposes of a warrantless arrest, an issue raised by the District Court and

fully briefed by the parties. Despite a string of three precedential opinions

touching on the subject, we have yet to provide district courts with a clear

rule on the subject. Nor is this the case in which to do so. There will be a

time when we take on this issue, though, so I take the occasion to state my

view that an affirmative defense should be considered relevant to a probable

cause determination only when a reasonable police officer effectuating a

warrantless arrest would “conclusively know” that the affirmative defense

either negates the requisite mental state or excuses the offending conduct.

                                      I.

      A police officer considering whether there is probable cause to arrest

without a warrant must conduct an inherently fact-based analysis at the

scene of the crime. United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir.
1984). No officer at the scene of an alleged offense has a chance to place all

of the evidence onto a bulletin board, pursue various factual and legal

theories, or interview all possible witnesses. Instead, the officer typically

must make his decision to arrest a suspect at the scene of the crime – a site

where he is concerned for his own safety as well as the safety of those

around him. Gilles v. Davis, 427 F.3d 197, 207 (3d Cir. 2005) (“Under

qualified immunity, police officers are entitled to a certain amount of

deference for decisions they make in the field. They must make ‘split-

second judgments—in circumstances that are tense, uncertain, and rapidly

evolving.’”   (quoting Saucier v. Katz, 533 U.S. 194, 204-05 (2001),

overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009));

Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) (“[T]he law recognizes

that probable cause determinations have to be made ‘on the spot’ under

pressure and do ‘not require the fine resolution of conflicting evidence that a

reasonable doubt or even a preponderance standard demands.’” (quoting

Gerstein v. Pugh, 420 U.S. 103, 121 (1975))).

      For that reason, “[p]robable cause does not require the same type of

specific evidence of each element of the offense as would be needed to

support a conviction.” Adams v. Williams, 407 U.S. 143, 149 (1972); Wright

v. City of Phila., 409 F.3d 595, 602 (3d Cir. 2005) (“[T]he evidentiary


                                      2
standard for probable cause is significantly lower than the standard which is

required for conviction.”). Instead, “probable cause exists when the totality

of the circumstances within an officer’s knowledge is sufficient to warrant a

person of reasonable caution to conclude that the person being arrested has

committed or is committing an offense.” United States v. Laville, 480 F.3d

187, 189 (3d Cir. 2007). As its name implies, probable cause “require[s] a

belief of guilt that is reasonable, as opposed to certain.” Wright, 409 F.3d at

601-02. Thus, qualified immunity is appropriate “unless it would have been

clear to a reasonable officer there was no probable cause to arrest.” Giles,

427 F.3d at 205.

      On the other hand, an affirmative defense is just that – a legal

argument that must be raised by a defendant in court. Ashcroft v. Free

Speech Coal., 535 U.S. 235, 255 (2002) (“An affirmative defense applies

only after the prosecution has begun.”). Even if a case advances to trial,

“proof of the nonexistence of all affirmative defenses has never been

constitutionally required.”   Smith v. United States, 133 S. Ct. 714, 719

(2013) (quoting Patterson v. New York, 432 U.S. 197, 210 (1977)). Indeed,

except in those cases “when an affirmative defense does negate an element

of the crime,” defendants can be made to bear the burden of proving




                                      3
affirmative defenses.      Id. (quoting Martin v. Ohio, 480 U.S. 228, 237

(1987)).

         Thus, considering the nature of affirmative defenses and the context in

which they are raised, it is problematic for a court to require officers to

always consider affirmative defenses in their probable cause analyses when

they are making warrantless arrests. For starters, affirmative defenses must

be raised by the defendant and pursued in the courtroom, whereas the

probable cause determination that is made by a police officer is made at the

scene.     Second, different affirmative defenses are subject to different

burdens of proof, whereas the probable cause analysis always requires “a

person of reasonable caution to conclude that the person being arrested has

committed or is committing an offense” based on the totality of the

circumstances. Laville, 480 F.3d at 189. An officer does not even know

when making an arrest if an affirmative defense will be raised at trial. And

even if facts relevant to an affirmative defense are asserted at the time of

arrest, “the [probable cause] standard does not require that officers correctly

resolve conflicting evidence or that their determinations of credibility, were,

in retrospect, accurate.” Wright, 409 F.3d at 603. We should, therefore, be

exceedingly wary of subjecting police officers to § 1983 liability for failing

to consider affirmative defenses at the time of arrest.


                                        4
      In three opinions of this court, we have discussed whether an

affirmative defense should be considered part of the probable cause analysis.

Each case dealt with a different affirmative defense in a unique factual

scenario, and all three rejected the applicability of the affirmative defense to

the probable cause analysis in that case. The proverbial door has therefore

been left open for future cases. The fact-specific contours of these opinions

have provided little guidance for courts in our circuit. I set forth here what I

believe to be the proper test: an affirmative defense is only applicable to the

probable cause analysis when a reasonable officer making an arrest without

a warrant would conclusively know that the affirmative defense excuses the

offending conduct.

                                      II.

      In our first case to address the subject, Radich v. Goode, the plaintiffs

conceded that “their actions constitute[d] the offense of defiant trespass,” but

they argued that the district court erred in not considering the affirmative

defense that the premises were open to the public. 886 F.2d 1391, 1396 (3d

Cir. 1989). We “assume[d] arguendo that [plaintiffs were] correct that to

establish probable cause for arrest under Pennsylvania’s defiant trespass

statute the arresting officer must consider the statute’s affirmative defense.”

Id. Under such an assumption, we stated that the plaintiffs “must not only


                                       5
show facts which support the defense, but also that a reasonable police

officer would know of these facts and conclude that a defiant trespass had

not been committed.” Id. Because the facts supporting the affirmative

defense were not present, we had no need to actually decide the role of an

affirmative defense in the probable cause analysis. Id. at 1396-98.

      Next, we considered Sands v. McCormick, 502 F.3d 263 (3d Cir.

2007). As in Radich, the plaintiff in Sands did not contest that the arresting

officer had “sufficient evidence to believe that she committed the offenses”

for which she was arrested. Id. at 269. Instead, she argued that the arresting

officer lacked probable cause because “he knew that the statute of

limitations had expired.” Id. We held that “[t]he statute of limitations is an

affirmative defense that is to be ruled upon by a court of competent

jurisdiction,” and is not “a relevant consideration at the time a police officer

files charges.” Id. To hold otherwise, we reasoned, “would place far more

responsibility on police officers than is required by their calling,” as the

statute of limitations “is not a clear cut matter in criminal prosecutions” due

to the extension and tolling of the period in certain circumstances.           Id.

Instead, this “is a legal question that is appropriately evaluated by the district

attorney or by a court after a prosecution is begun.” Id. (quoting Pickens v.

Hollowell, 59 F.3d 1203, 1207-08 (11th Cir. 1995)). Unlike the district


                                        6
attorney, the presiding judge, or the magistrate judge (who signed the arrest

warrant in the case), “[a] police officer has limited training in the law and

requiring him to explore the ramifications of the statute of limitations

affirmative defense is too heavy a burden.” Id.

      Most recently, we decided Holman v. City of York, PA, 564 F.3d 225

(3d Cir. 2009), where the plaintiff had been arrested for trespass. As in

Radich and Sands, the plaintiff conceded that all the elements for a prima

facie case had been met. Id. at 230. The plaintiff argued instead that the

affirmative defense of necessity negated probable cause. Id. at 229. We

distinguished this case from Radich, where the affirmative defense was

included in the statute defining the charged offense, because the necessity

defense appeared in a separate section of the criminal code in Holman. Id.

Like Sands, which “require[d] an analysis of legal considerations that should

not concern an arresting officer,” the necessity defense raised by the plaintiff

would “require an officer to resolve equally daunting issues” and “to

examine countless factual permutations.”          Id. at 231.    We therefore

concluded that the affirmative defense of necessity had no bearing on the

probable cause determination. Id. Because there was no need to address

when consideration of an affirmative defense might be part of the probable




                                       7
cause calculus, we declined to endorse the District Court’s statement that

affirmative defenses are never a relevant consideration. Id.

                                       III.

      As our cases demonstrate, we have never held that an affirmative

defense is a relevant consideration in the probable cause analysis. 1 In

leaving the question open, we have provided little-to-no guidance for district

courts on when it is appropriate to consider an affirmative defense. For

example, in the present case, the magistrate judge drew on our three

opinions to discern a rule that an affirmative defense should be considered in

the probable cause analysis if “(1) the affirmative defense can be found in

the same criminal statute as the underlying crime,” as it was in Radich but

not Holman; and “(2) the affirmative defense does not require an officer to

engage in an analysis of ‘daunting’ legal considerations,” as in Sands. App.

22a. This interpretation of our three cases was not unreasonable. However,

I fail to see why the location of an affirmative defense in the criminal code is

an important distinction, much less one that we would expect an arresting

1
 While I express no view on this issue at present, I question whether, even if an
affirmative defense is a proper consideration for an officer making the probable
cause determination, this is “clearly established” for purposes of overcoming
qualified immunity. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (stating that for
such purposes the Supreme Court “do[es] not require a case directly on point, but
existing precedent must have placed the statutory or constitutional question
beyond debate”).

                                        8
officer at the scene of a crime to make.2 Indeed, this is not a factor that any

other court of appeals considers. Instead, other courts look only to the facts

known by the police officer at the time of arrest without requiring further

investigation or complex legal analysis.

      Other courts to have considered the use of affirmative defenses in the

probable cause analysis to arrest have held that an affirmative defense is

appropriately considered only in very rare circumstances. See Wesby v.

District of Columbia, 765 F.3d 13, 21 (D.C. Cir. 2014) (requiring the

consideration of the affirmative defense of a bona fide belief of the right to

enter when making a probable cause determination for unlawful entry into

the house, as the defense negated the mental state to commit the crime and

the officers were aware that the defense was clearly applicable); Jocks v.

Tavernier, 316 F.3d 128, 135-36 (2d Cir. 2003) (requiring an off-duty police

officer to consider the affirmative defense of self-defense when the plaintiff

alleged that the off duty officer attacked him first); Painter v. Robertson,
2
  The District Court relied upon our decision in Holman in concluding that this
was a relevant consideration. It is true that our Holman panel distinguished its
case from Radich on these grounds. Holman v. City of York, PA, 564 F.3d 225,
230 (3d Cir. 2009). However, this language was dicta, as it was not necessary to
the holding that the necessity defense involved the consideration of “countless
factual permutations,” which we do not require of police officers making a
probable cause determination. Id. at 231. Moreover, there was no need to
distinguish Radich, as that was a case where we merely assumed arguendo that an
affirmative defense was an appropriate consideration before rejecting that
particular defense based on those particular facts. Radich v. Goode, 886 F.2d
1391, 1396 (3d Cir. 1989).
                                       9
185 F.3d 557, 570-72 & n.21 (6th Cir. 1999) (denying qualified immunity to

one officer who was aware that the plaintiff lawfully possessed a firearm,

but granting it to another officer who was simply following the other’s

instructions); Estate of Dietrich v. Burrows, 167 F.3d 1007, 1011-14 (6th

Cir. 1999) (arresting officers were aware that money couriers had an

affirmative defense to possession of a concealed firearm if it was for their

lawful occupation and that money couriers were often contractually

obligated to carry firearms).

      In Painter, the court emphasized that affirmative defenses should play

a role in the probable cause determination only “where a reasonable police

officer would conclusively know that an [arrestee’s] behavior is protected by

a legally cognizable affirmative defense. . . . In all other cases, the merits of

an alleged affirmative defense should be assessed by prosecutors and judges,

not policemen.” 185 F.3d at 571 n.21 (emphasis added).

      The “conclusively know” standard spelled out in Painter and

subsequently reaffirmed by the Court of Appeals for the Sixth Circuit has

much to commend it. Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir. 2002)

(“Even if the circumstances suggest that a suspect may have an affirmative

defense, if a reasonable officer would not ‘conclusively know’ that the

suspect is protected by the defense, then he is free to arrest the suspect


                                       10
provided there is probable cause to do so.”). This is also consistent with the

decisions of other courts of appeals to have addressed the issue, even if they

do not use the words “conclusively know.” See Wesby, 765 F.3d at 21 (“A

reasonably prudent officer aware that the Plaintiffs gathered pursuant to an

invitation from someone with apparent (if illusory) authority could not

conclude that they had entered unlawfully.”); Hodgkins ex rel. Hodgkins v.

Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004) (“A police officer may not

ignore conclusively established evidence of the existence of an affirmative

defense, but the officer has no duty to investigate the validity of any

defense.” (internal citation omitted)); Jocks, 316 F.3d at 136 (holding that an

arresting officer may not “deliberately disregard” the existence of facts

establishing an affirmative defense).       I emphasize that “conclusively

know[ing] that an [arrestee’s] behavior is protected by a legally cognizable

affirmative defense,” Painter, 185 F.3d at 571 n.21, is different from

whether an officer “might have some idea that such a defense could exist.”

Garcia v. Does, 779 F.3d 84, 96 (2d Cir. 2014).

      When considering whether an officer would “conclusively know” that

an affirmative defense is applicable, we do not require a police officer to

undertake a “daunting legal analysis,” such as determining the applicability

of the statute of limitations defense. See Sands, 502 F.3d at 269. While an


                                      11
officer may not “deliberately disregard facts known to him which establish

[an affirmative defense],” Jocks, 316 F.3d at 136, we also do not require him

to investigate facts that would help to establish a defense, even if the defense

is asserted at the time of arrest. Holman, 564 F.3d at 231. For example, if a

police officer arrives at the scene of a battery, and the arrestee claims self-

defense, the officer does not need to investigate this claim before making the

arrest.     See Davis v. Malitzki, 451 F. App’x 228, 233 (3d Cir. 2011)

(applying this rule to self-defense). Instead, he can make the arrest and

investigate later; if the claim of self-defense is clearly demonstrated after

further investigation, the charges can be dropped in the exercise of

prosecutorial discretion. This would not negate the fact that probable cause

existed at the time of arrest. Wright, 409 F.3d at 602 (“In other words, the

constitutional validity of the arrest does not depend on whether the suspect

actually committed any crime.”); Davis, 451 F. App’x at 234 (“Davis’s

exculpatory defense, no matter how compelling, could not defeat this

already-present probable cause.”).

          In my view, an affirmative defense is only an appropriate

consideration where a reasonable officer making a warrantless arrest would

“conclusively know” the facts and the law, without any further investigation,

that would make clear that no crime had been committed. Painter, 185 F.3d


                                      12
at 571 n.21; Garcia, 779 F.3d at 96 (granting qualified immunity to police

officers when “the officers were confronted with ambiguities of fact and

law” concerning the applicability of an affirmative defense). This may

happen when an element of the crime is clearly negated by the affirmative

defense, as in Wesby, 765 F.3d at 21, or it may happen when all of the

elements of the crime are present, but the affirmative defense is so clearly

present that a reasonable arresting officer in that situation would know that it

excused the offending conduct. Hodgkins, 355 F.3d at 1061.

                                      IV.

      In the case under review, regardless of the presence of an affirmative

defense, there is a factual dispute as to whether probable cause to arrest was

lacking. Thus, there was no need for this panel to consider the propriety of

an arresting officer’s taking into account, during his probable cause to arrest

analysis, the availability of an affirmative defense. I write separately solely

for the purpose of bringing to my colleagues’ attention an important issue

which we should one day resolve.




                                      13
