PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LESLY JEAN,
Plaintiff-Appellant,

v.

DELMA COLLINS, Chief of Detectives
of the City of Jacksonville,
                                                                     No. 95-7694
Individually; JAMES SHINGLETON,
Police Officer with the City of
Jacksonville, North Carolina, Police
Department, Individually,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-94-62-4-H2)

Argued: December 2, 1997

Decided: September 17, 1998

Before WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Judges Widener, Wilkins, Niemeyer, Lut-
tig, and Williams joined. Judge Murnaghan wrote a dissenting opin-
ion. Judge Ervin wrote a dissenting opinion, in which Judges
Murnaghan, Hamilton, Michael, and Motz joined. Judge Hamilton
wrote a dissenting opinion, in which Judge Murnaghan joined.
COUNSEL

ARGUED: Richard Brooks Glazier, BEAVER, HOLT, RICHARD-
SON, STERNLICHT, BURGE & GLAZIER, P.A., Fayetteville,
North Carolina, for Appellant. Kenneth Ray Wooten, WARD &
SMITH, P.A., New Bern, North Carolina, for Appellees. ON BRIEF:
Rebecca J. Britton, BEAVER, HOLT, RICHARDSON, STERN-
LICHT, BURGE & GLAZIER, P.A., Fayetteville, North Carolina, for
Appellant. John R. Green, Jr., WARD & SMITH, P.A., New Bern,
North Carolina, for Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

We granted en banc review in this case to determine whether the
district court properly dismissed Lesly Jean's section 1983 claim
against Jacksonville, North Carolina police officers Delma Collins
and James Shingleton. The complaint alleged their failure to disclose
exculpatory evidence during Jean's criminal trial for rape and first
degree sexual offenses. The district court granted summary judgment
in favor of Collins and Shingleton, holding they were entitled to qual-
ified immunity. To the extent Jean claims the officers failed to dis-
close evidence directly to defense counsel, we hold that the officers
are entitled to absolute immunity. To the extent Jean contends Collins
and Shingleton failed to turn over evidence to the prosecutor, the offi-
cers are protected by qualified immunity. We thus affirm the judg-
ment of the district court.

I.

On July 21, 1982, at approximately 3:00 a.m., a stranger entered
the house and bedroom of Alice Kathleen Wilson and forcibly raped
her. Soon after the incident was reported to the Jacksonville police,
the department announced the suspect's physical description -- black
male wearing a blue shirt, blue shorts, and white tennis shoes -- to
its officers via radio transmission. At approximately 4:40 a.m., Offi-
cer James Shingleton spotted a man walking along a local highway

                    2
who matched the basic description from the radio dispatch. Shingle-
ton activated the blue lights on his patrol car, exited the vehicle, and
stopped the person. Shingleton questioned him, instructed him to
place his hands on the fender of the car, and told him he was a suspect
in a rape. At that point, the suspect fled into the adjacent woods; the
encounter lasted approximately one minute and a half. Later that
morning, Shingleton described the person he confronted as black, five
feet ten inches tall, weighing 170 pounds, with close-cut hair and a
mustache, and wearing blue shorts, a blue shirt with writing, white
knee-high socks, and white tennis high-tops.

Meanwhile, Wilson was transported to the hospital for treatment
and then to the police station to make a statement. She described her
attacker as a black male, muscular, five feet eight inches tall, weigh-
ing about 165 or 170 pounds, with a marine haircut, kinky hair, no
facial hair, and wearing dark shorts that were probably navy blue,
white crew socks, and high-top sneakers. Wilson also met with a
sketch artist to produce a composite of the suspect. A photograph of
her composite was distributed to the Jacksonville Police Department.
Afterwards, the same sketch artist also met with Shingleton but was
unable to develop a reliable composite due to the incomplete nature
of the officer's observations.

The following day, July 22, 1982, Detective Steve Smith, the lead
investigator on the case, asked Captain Delma Collins to hypnotize
Shingleton in order to garner further details about the person he
stopped the morning of the crime. The hypnotic session was recorded
on audio tape and its results were noted in a hypnosis information
worksheet. Shingleton's memory of the possible suspect changed in
at least three respects: he now believed that the tee shirt design was
instead a sweat mark, he remembered that the person in fact did not
have a mustache, and he recalled blue stripes on each of the person's
socks. Detective Smith recorded in his notes: "As a result, his descrip-
tion matches the one given by victim."

On July 26, 1982, Chief of Police Roger Halbert was in a Dunkin
Donuts and noticed appellant Jean, a marine stationed at Camp
Lejeune in Jacksonville. Halbert believed Jean matched the composite
of the suspected rapist. Halbert radioed the police department and
asked that Shingleton be sent to the restaurant. When he arrived,

                    3
Shingleton identified Jean as the man he had seen on the morning of
the rape and accordingly arrested him. Detective Smith then inter-
viewed Jean and, after receiving his consent, searched Jean's locker
and laundry bag at the marine base. Smith seized a pair of white high-
top tennis shoes, dark blue athletic shorts with white stripes, and a
blue tee shirt. Jean was fingerprinted, photographed, and then
released.

The following day, July 27, 1982, Smith asked Wilson to come to
the police station to view a photo lineup that included Jean's photo.
After viewing the lineup, Wilson was unable to make a positive iden-
tification. The next day, Wilson called Smith at the police station
requesting to look at the photos again because one of them had made
her feel sick. After observing the photos a second time, Wilson picked
out Jean's photo as the one that made her sick and stated that another
of the photos looked "haunty." Again, however, she could not make
a positive identification.

On July 30, 1982, upon the recommendation of Detective Smith,
Captain Collins hypnotized Wilson in an effort to determine whether
she could remember anything more about the photo that made her feel
sick. Wilson's prehypnotic memories were recorded on a prehypnosis
information worksheet, the session was recorded on audio tape, and
new information was noted on another worksheet. At least three new
pieces of information emerged during the session: Wilson believed
her attacker had an accent, possibly Puerto Rican, and she recalled
white shoelaces and a Nike emblem in connection with the attacker's
shoes. Collins and Smith deemed the session to be unproductive due
to the paucity of new details.

In the following two months, Wilson was asked to listen to voice
identification recordings and view a live lineup. On August 4, 1982,
after listening to several voice exemplars numerous times, Wilson
stated that Jean's voice sounded like the one from her bedroom.
Although Smith initially assumed she did not make a positive identifi-
cation that day, Wilson later called him and explained that her state-
ment was intended as a positive identification. She then confirmed
again that Jean's voice exemplar was the voice of the man who had
raped her. On September 17, 1982, Wilson was asked to view a live
lineup consisting of three persons, including Jean. Wilson identified

                    4
Jean as the person who had raped her and the police placed him under
arrest.

Jean was indicted in October 1982 for rape and first degree sexual
offenses. Despite timely discovery requests, the prosecutor did not
disclose the fact that witnesses had been hypnotized until Wilson's
testimony at trial. The prosecutor also did not disclose the recordings
of the hypnotic sessions, despite general pretrial discovery requests
and a more specific request for such recordings by defense attorneys
at trial. The jury, however, was made aware of Wilson and Shingle-
ton's hypnoses, as defense counsel cross-examined both witnesses on
that point.

On December 5, 1982, Jean was convicted on all counts and sen-
tenced to two consecutive life terms. After his direct appeals and
applications for state postconviction relief proved unsuccessful, Jean
filed a petition for a writ of habeas corpus in the United States District
Court for the Eastern District of North Carolina. In Jean v. Rice, 945
F.2d 82 (4th Cir. 1991) (per curiam), we reversed that court's denial
of his petition, holding that the government's failure to disclose the
audio recordings and the accompanying reports of the hypnotic ses-
sions was a violation of the principles announced in Brady v.
Maryland, 373 U.S. 83 (1963). Accordingly, we vacated Jean's con-
viction. The state declined to retry Jean, and he was released from
prison.

On May 20, 1994, Jean filed the present complaint against Collins
and Shingleton in the United States District Court for the Eastern Dis-
trict of North Carolina, alleging Fourth Amendment and Fourteenth
Amendment Due Process Clause violations under 42 U.S.C. § 1983
and supplementary state-law claims. The district court dismissed
Jean's state causes of action, holding that one failed to state a claim
and that the others were barred by the applicable statute of limitations.
In a later order, the district court granted summary judgment in favor
of Collins and Shingleton on Jean's section 1983 claims, holding the
police officers were protected by qualified immunity. Jean appealed
the district court's summary judgment order only with respect to his
due process claim. A panel of this court reversed the decision of the
district court. Jean v. Collins, 107 F.3d 1111 (4th Cir. 1997). Thereaf-

                     5
ter, a majority of the judges in active service voted to rehear this
appeal en banc.

II.

Initially we note that Jean's due process claim, alleging suppres-
sion of exculpatory evidence, does not clearly state the precise theory
upon which it is premised. See Burns v. Reed, 500 U.S. 478, 487
(1991) (in cases implicating official immunity "it is important to
determine the precise claim that petitioner has made"). At times, Jean
contends his constitutional rights were violated as a result of Collins
and Shingleton's failure to turn over evidence to the District Attor-
ney's Office. At other times, however, Jean asserts that the officers
generally suppressed the relevant evidence. See Compl. ¶ 41. (refer-
ring to "the actions of defendants in withholding exculpatory evi-
dence"). Both Collins and Shingleton clearly understood Jean's
complaint to allege their failure to disclose evidence directly to Jean's
defense counsel. See Collins Aff. ¶ 20 ("At no time did I intentionally
withhold this evidence from Mr. Jean's defense counsel."); Shingle-
ton Aff. ¶ 21 ("At no time in my career as a police officer have I been
trained that I am responsible for deciding what evidence will be pres-
ented at trial or disclosed to a criminal defense counsel in response
to legal discovery requests."). To the extent Jean asserts a duty on the
part of Collins and Shingleton to turn over exculpatory evidence to
the defense, that claim must fail. Police officers are absolutely
immune from suits challenging a failure to disclose evidence directly
to the defense.1

The doctrine of absolute immunity under section 1983 rests on the
_________________________________________________________________
1 In his dissenting opinion, Judge Ervin claims we are precluded from
considering the absolute immunity of Collins and Shingleton because it
was not pled or addressed in prior proceedings. The officers did plead the
defense of qualified immunity, however, and we may properly consider
the closely related question of the scope of the immunity to which they
are entitled. See Allen v. Zurich Ins. Co., 667 F.2d 1162, 1168 n.5 (4th
Cir. 1982). Failure to do so here would create the possibility that quali-
fied immunity would incorrectly be accepted as the limit of protection
for police officers "performing functions that require the exercise of pro-
secutorial discretion." Kalina v. Fletcher , 118 S. Ct. 502, 507 (1997).

                     6
assumption that Congress did not intend to abolish certain well-
established immunities recognized by courts at the time of section
1983's enactment. Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993).
To evaluate government officials' specific claims for absolute immu-
nity, the Supreme Court has adopted a functional approach -- inquir-
ing whether the particular official performs functions similar to those
protected by common-law immunities when Congress enacted section
1983. Id. at 268-69; Burns, 500 U.S. at 484, 486; Imbler v. Pachtman,
424 U.S. 409, 430 (1976). The Court recently reaffirmed this func-
tional approach in Kalina v. Fletcher, 118 S. Ct. 502, 510 (1997),
holding that a prosecutor personally attesting to the truth of facts nec-
essary for a probable cause determination was not absolutely immune
from suit because she functioned not in a prosecutorial role, but as a
witness. The Court reiterated that "in determining immunity, we
examine `the nature of the function performed, not the identity of the
actor who performed it.'" Id. at 508 (quoting Forrester v. White, 484
U.S. 219, 229 (1988)); see Buckley, 509 U.S. at 269; Malley v. Briggs,
475 U.S. 335, 342 (1986); Carter v. Burch, 34 F.3d 257, 261-62 (4th
Cir. 1994); see also Ireland v. Tunis, 113 F.3d 1435, 1443 (6th Cir.),
cert. denied, 118 S. Ct. 560 (1997); Hill v. City of New York, 45 F.3d
653, 660 (2d Cir. 1995).

In Fletcher the Court explained that, to protect the independent
judgment of prosecutors, an official is absolutely immune from suit
when "performing functions that require the exercise of prosecutorial
discretion." 118 S. Ct. at 507. The decision whether to disclose excul-
patory evidence to an adversary is a central part of the prosecutor's
trial preparation, is undertaken in the role of advocate for the State,
and plainly requires the exercise of prosecutorial discretion. Imbler
itself involved the prosecution's alleged suppression of material evi-
dence at trial. 424 U.S. at 413-16. And subsequent decisions have left
no doubt that prosecutors enjoy absolute immunity from claims alleg-
ing a failure to disclose exculpatory evidence. For example, the Court
in Fletcher described Imbler as providing an absolute immunity
defense to the prosecutor from Imbler's "charge that exculpatory evi-
dence had been suppressed." Fletcher, 118 S. Ct. at 506. And in
Burns, the Court explained that its Imbler decision, pursuant to the
functional approach, held the prosecutor absolutely immune from suit
for the "deliberate suppression of exculpatory evidence." Burns, 500
U.S. at 486. The Court has also stated that actions for which a prose-

                    7
cutor is accorded absolute immunity "must include the professional
evaluation of the evidence assembled by the police and appropriate
preparation for its presentation at trial or before a grand jury after a
decision to seek an indictment has been made." Buckley, 509 U.S. at
273; see Ireland, 113 F.3d at 1445.

We have likewise read Imbler to require absolute immunity from
section 1983 claims alleging suppression of exculpatory evidence. In
Carter, we held that "the decision as to whether the evidence was
exculpatory and should have been given to defense counsel . . . was
clearly intended by Imbler to be the type of prosecutorial function for
which absolute immunity should be granted." 34 F.3d at 262; see also
Lyles v. Sparks, 79 F.3d 372, 377 (4th Cir. 1996) ("The Supreme
Court also held in Imbler that absolute immunity protected the prose-
cutor from allegations that he had knowingly used perjured testimony
and suppressed material evidence at the plaintiff's trial."). We
explained in Carter that the decision whether to disclose evidence to
the defense "is clearly part of the presentation of the State's case" and
represented conduct undertaken as an advocate for the State. 34 F.3d
at 262-63. Other circuits have reached the same conclusion. See
Moore v. Valder, 65 F.3d 189, 194 (D.C. Cir. 1995), cert. denied, 117
S. Ct. 75 (1996); Reid v. New Hampshire, 56 F.3d 332, 336 (1st Cir.
1995) ("under Imbler it is now [a] well-settled rule that a prosecutor
cannot be held personally liable for the knowing suppression of excul-
patory information" (internal quotation marks and citation omitted));
Hill, 45 F.3d at 661-62; Myers v. Morris, 810 F.2d 1437, 1446 (8th
Cir. 1987).

To the extent, therefore, that Jean contends that Collins and
Shingleton failed to disclose exculpatory evidence directly to the
defense, the police officers are entitled to the same absolute immunity
that would be available to prosecutors for execution of the identical
function. Jean's claim casts the officers in a role much different from
their traditional investigatory one. Police officers normally assemble
available evidence for the prosecution rather than evaluate it for trial
purposes. Buckley, 509 U.S. at 273. Prosecutors assess the material
and exculpatory nature of that evidence in determining whether dis-
closure to the defense is required. By asserting that the police have
a duty to make such sensitive legal determinations, Jean raises a claim
against the officers not in their investigatory role, but instead in an

                     8
advocate's role "intimately associated with the judicial phase of the
criminal process." Imbler, 424 U.S. at 430. Under the Court's
approach, the officers must be accorded absolute immunity.

The fact that the defendants in the present suit are police officers,
rather than prosecutors, is irrelevant to the immunity analysis.
Because the immunity is tied to the nature of the function performed
and not to the identity of the defendant performing that function, e.g.,
Fletcher, 118 S. Ct. at 508, we look to the conduct challenged by
Jean's suit rather than the defendants' titular position. The Court has
specifically recognized that "[w]hen the functions of prosecutors and
detectives are the same, as they were here, the immunity that protects
them is also the same." Buckley, 509 U.S. at 276; see also Hill, 45
F.3d at 660 (extending absolute immunity to non-attorney employees
of district attorney's office under functional approach); Davis v.
Grusemeyer, 996 F.2d 617, 631 (3d Cir. 1993) (extending absolute
immunity to employee working for attorney "when the employee's
function is closely allied to the judicial process"). It would be incon-
gruous to hold prosecutors absolutely immune from suits concerning
disclosure decisions made in the course of their traditional advocate's
role while granting police officers only qualified immunity with
respect to the same decisions, which fall outside their normal investi-
gatory role.

We note finally that the same considerations underlying absolute
immunity for prosecutors also support granting police officers abso-
lute immunity from suits alleging failure to disclose exculpatory evi-
dence to the defense. The Court in Imbler first relied upon the
common-law concern that "harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public duties."
424 U.S. at 423. The Court noted that "[s]uch suits could be expected
with some frequency, for a defendant often will transform his resent-
ment at being prosecuted into the ascription of improper and mali-
cious actions to the State's advocate." Id. at 425. The same
consideration countenances absolute immunity for the police officers
in the present action. Because police uncover most evidence in crimi-
nal investigations, suits alleging suppression of exculpatory evidence
could be leveled against them in almost every case. Imbler's observa-
tion that "a prosecutor inevitably makes many decisions that could
engender colorable claims of constitutional deprivation," id., would

                    9
be no less true of police officers forced to make the difficult determi-
nations surrounding the State's disclosure obligations. Without abso-
lute immunity from section 1983 claims like Jean's, the police would
be forced to defend against vexatious litigation and their "energy and
attention would be diverted from the pressing duty of enforcing the
criminal law." Id.

The Court in Imbler also relied upon the common-law concern that
the fear of civil liability would create "the possibility that [a prosecu-
tor] would shade his decisions instead of exercising the independence
of judgment required by his public trust." Id. at 423. It is unlikely that
police officers, who lack prosecutors' legal training, would be more
able to confidently reach independent legal conclusions regarding the
State's disclosure obligations without fear of civil liability. In fact,
officers fearing personal liability would likely turn over much more
evidence than necessary, thereby transforming the combination of
section 1983 and Brady obligations into more absolute rights to dis-
covery for criminal defendants. This would fundamentally change our
adversarial system and harm the judicial process."The Brady rule is
based on the requirement of due process. Its purpose is not to displace
the adversary system as the primary means by which truth is uncov-
ered, but to ensure that a miscarriage of justice does not occur."
United States v. Bagley, 473 U.S. 667, 675 (1985). Granting police
officers absolute immunity from suits alleging a failure to disclose
accords with the considerations traditionally cited in favor of absolute
prosecutorial immunity -- preservation of government officials' inde-
pendent judgment, Imbler, 424 U.S. at 423, and the more general pro-
tection of the judicial process. Burns, 500 U.S. at 485.

Finally, we note that an adequate remedy for police officers' failure
to disclose exculpatory evidence already exists in the criminal law.
Whenever the State withholds material exculpatory evidence from the
defense, the Constitution requires that any conviction gained thereby
be vacated. Bagley, 473 U.S. at 678; Giglio v. United States, 405 U.S.
150, 155 (1972); Brady, 373 U.S. 83. The adequacy of judicial reme-
dies for prosecutorial misjudgments "`tend[s] to reduce the need for
private damages actions as a means of controlling unconstitutional
conduct.'" Burns, 500 U.S. at 492 (quoting Butz v. Economou, 438
U.S. 478, 512 (1978)); Imbler, 424 U.S. at 427; Springmen v.
Williams, 122 F.3d 211, 214 (4th Cir. 1997).

                     10
In sum, we find that absolute immunity for police officers perform-
ing prosecutorial functions is mandated by well-settled doctrine of the
Supreme Court. We decline to make police officers into mini-
prosecutors and to impose upon them obligations that would cut
actual prosecutors out of the loop. From any claim that Collins and
Shingleton failed to disclose exculpatory evidence directly to the
defense, the officers are absolutely immune from suit.

III.

Jean next asserts that the officers had a constitutional duty under
Brady to turn over evidence to the prosecution relating to Wilson's
and Shingleton's hypnoses. Regardless of whether Jean's claim pres-
ently states a constitutional violation, we conclude that Shingleton
and Collins are entitled to qualified immunity. In 1982, a reasonable
police officer would not have known that his failure to turn over such
evidence violated a criminal defendant's clearly established constitu-
tional rights.

A.

The basic purposes of qualified immunity are well known. The
immunity is designed to shield government officials performing their
duties from the burdens of trial and the threat of monetary liability.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Without such an
immunity, the operations of government would be immobilized."
Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991). Govern-
ment officials would not perform their discretionary duties vigorously
but would act timidly to avoid the risk of being haled into federal
court. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Harlow, 457
U.S. at 814. Society also would bear substantial costs including "the
expenses of litigation, the diversion of official energy from pressing
public issues, and the deterrence of able citizens from acceptance of
public office." Harlow, 457 U.S. at 814; see also Anderson, 483 U.S.
at 638; Tarantino v. Baker, 825 F.2d 772, 774 (4th Cir. 1987). To
limit these costs, qualified immunity protects "all but the plainly
incompetent or those who knowingly violate the law." Malley, 475
U.S. at 341. Thus, government officials forfeit this defense only
where a reasonable official would have known that an action violated

                    11
clearly established constitutional rights. Harlow, 457 U.S. at 818;
Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc).

The requirement that a right be clearly established ensures that offi-
cials have ample notice of the legal standards that govern their con-
duct. See Davis v. Scherer, 468 U.S. 183, 195 (1984). Consistent with
this need for notice, a court must identify the right infringed at a high
level of particularity. Anderson, 483 U.S. at 639; Winfield, 106 F.3d
at 531. To define the right too abstractly would convert the defense
of qualified immunity "into a rule of virtually unqualified liability."
Anderson, 483 U.S. at 639; see also DiMeglio v. Haines, 45 F.3d 790,
803-04 (4th Cir. 1995). Of course Anderson does not require that a
prior case have held identical conduct to be unlawful. Id. at 640. But
officers cannot be ambushed by newly invented theories of liability
or by unforeseen applications of old ones. Thus,"the `contours of the
right' must have been so conclusively drawn as to leave no doubt that
the challenged action was unconstitutional." Swanson v. Powers, 937
F.2d 965, 969 (4th Cir. 1991) (quoting Anderson , 483 U.S. at 640);
see also Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150 (11th
Cir. 1994) (en banc) ("For qualified immunity to be surrendered, pre-
existing law must dictate, that is, truly compel (not just suggest or
allow or raise a question about), the conclusion for every like-
situated, reasonable government agent that what[the] defendant is
doing violates federal law in the circumstances .").

In order for notice to officials to be effective, the source of that
notice must be identified. It is clear that a court cannot confine its
assessment of an immunity defense to Supreme Court decisions alone.
See United States v. Lanier, 117 S. Ct. 1219, 1226 (1997). It is
equally clear that a court cannot restrict its inquiry to cases identified
by the parties. Elder v. Holloway, 510 U.S. 510, 515 (1994). But gov-
ernment officials must have some guideposts about the sources of law
that can clearly establish a particular right. Our nation's courts pro-
duce a vast number of decisions that could conceivably influence offi-
cials' discharge of their duties. See Swanson , 937 F.2d at 968.
Officials cannot be expected to master the entire corpus of this
caselaw in addition to fulfilling their public responsibilities. See
Davis, 468 U.S. at 196 & n.13. The very immensity of American
jurisprudence creates the distinct likelihood that jurisdictions will
offer conflicting opinions over how government officials should carry

                     12
out their tasks. See Swanson, 937 F.2d at 968. To hold officials
responsible for sorting out these conflicts, without any guidance about
what jurisprudence to follow, could generate widespread confusion
over the scope of official obligations. An unbounded legal universe
would give rise to guessing games over whether this or that decision
in this or that jurisdiction created a clearly established right. Such a
limitless universe would also give judges broad latitude to second-
guess the actions of officers on the spot.

Ordinarily, therefore, courts in this circuit need not look beyond the
decisions of the Supreme Court, this court of appeals, and the highest
court of the state in which the case arose to determine whether a right
was clearly established at a particular time. Wilson v. Layne, 141 F.3d
111, 114 (4th Cir. 1998) (en banc); Wallace v. King, 626 F.2d 1157,
1161 (4th Cir. 1980). This presumption, like the Eleventh Circuit's
longstanding practice, provides necessary guidance to government
officials about whether a contemplated course of conduct may subject
them to personal liability. See Jenkins by Hall v. Talladega Bd. of
Educ., 115 F.3d 821, 826 n.4 (11th Cir.) (en banc), cert. denied, 118
S. Ct. 412 (1997); Hamilton by and through Hamilton v. Cannon, 80
F.3d 1525, 1531 n.7 (11th Cir. 1996); Courson v. McMillian, 939
F.2d 1479, 1497-98 (11th Cir. 1991). Thus, if a right is recognized in
some other circuit, but not in this one, an official will ordinarily retain
the immunity defense. Of course, the converse also holds true. If a
right is clearly established in this circuit but not in another circuit, that
conflict will not shield the official from liability. The approach we
adopt will place parameters upon the immunity inquiry -- if immu-
nity is to stem litigation, as the Supreme Court intended, the issue of
whether a right is clearly established should not send public officials
on an Odyssean quest.

B.

In this case, we must analyze the state of the law in 1982 to deter-
mine whether Collins and Shingleton violated a clearly established
constitutional right. Anderson requires that the right be defined at a
high level of particularity. But even at the highest level of generality,
the right which Jean asserts was not clearly established in 1982. Jean
has failed to demonstrate that, at that time, police had a duty grounded
in federal law to turn over the evidence at issue to a prosecutor.

                      13
Several of the cases on which Jean relies do not even discuss
whether police officers had any constitutional duty to provide evi-
dence to a prosecutor. As of 1982, the Supreme Court had not held
that police had such a constitutional duty; Brady and its progeny
instead involved prosecutors' failures to disclose evidence to the
defense. E.g., United States v. Agurs , 427 U.S. 97, 107 (1976); Giglio,
405 U.S. at 154; Brady, 373 U.S. at 87-88. With respect to this cir-
cuit's decisions, many of those advanced by Jean involved nondisclo-
sure by prosecutors or are otherwise totally inapposite. E.g., Norris v.
Slayton, 540 F.2d 1241, 1244 (4th Cir. 1976) (prosecutor's failure to
disclose police officer's report held Brady violation); Clarke v. Mont-
gomery Ward & Co., 298 F.2d 346, 348 (4th Cir. 1962) (private com-
mon law action for malicious prosecution brought under diversity
jurisdiction). These cases simply lack the requisite factual similarity
to the instant case. Police officers in 1982 could not have been
expected to survey decisions involving prosecutors' failures to dis-
close evidence to the defense and conclude that, by analogy, they bore
an independent constitutional duty to provide evidence to prosecutors.
Thus, this line of authorities cannot demonstrate that Shingleton and
Collins violated Jean's clearly established constitutional rights.

Jean asserts that this circuit's opinion in Barbee v. Warden, Md.
Penitentiary, 331 F.2d 842 (4th Cir. 1964), imposed a constitutional
duty on police officers to give evidence to a prosecutor. In Barbee,
the prosecutor failed to disclose certain police reports to the defense.
Id. at 844. These reports contained the results of ballistics and finger-
print tests that cast doubt on Barbee's involvement in a shooting. Id.
Although the prosecutor was unaware of the reports, this court held
that his ignorance did not excuse his failure to disclose them to the
defense and reversed a district court order denying Barbee postcon-
viction relief. Id. at 846.

We believe that Jean misapprehends the essential holding of
Barbee. Barbee did not require police, as a constitutional matter, to
furnish evidence to a prosecutor. Instead, as this circuit later
explained, Barbee held simply that the police's knowledge of such
evidence would be imputed to the prosecutor in deciding whether the
prosecutor had fulfilled his Brady duties. United States v. Sutton, 542
F.2d 1239, 1241 n.2 (4th Cir. 1976); see also Boone v. Paderick, 541
F.2d 447, 450-51 (4th Cir. 1976). By imputing the police's knowledge

                     14
of exculpatory evidence to the prosecutor, Sutton and Barbee simply
encouraged prosecutors' offices to establish "procedures and regula-
tions . . . to insure communication of all relevant information on each
case." Giglio, 405 U.S. at 154. Thus, while prosecutors are not
relieved of their Brady duties for failing to disclose material evidence
known only to the police, police officers who in 1982 failed to give
such evidence to prosecutors did not themselves violate a clearly
established constitutional right.2

In sum, police officers in 1982 could reasonably have expected to
be internally accountable to prosecutors for not turning over evidence
in their possession. A failure to turn over exculpatory evidence might
jeopardize a conviction under Brady. A failure to turn over inculpa-
tory evidence might undermine the State's case. But the officers had
no earthly idea that they would be subject to a federal cause of action
for money damages when no relevant decision had held that the
police's responsibility to furnish evidence to the prosecution was gov-
erned by federal constitutional law.3
_________________________________________________________________

2 In their dissenting opinions, Judge Ervin and Judge Hamilton dispute
our reading of Barbee. Our reading, however, is supported both by the
Supreme Court's decision in Giglio, 405 U.S. at 154, and this circuit's
decisions in Sutton, 542 F.2d at 1241 n.2, and Boone, 541 F.2d at 450-
51. Each of these decisions predates the relevant conduct of Collins and
Shingleton. In contrast, the dissents' view of Barbee rests on implica-
tions from caselaw that postdates the relevant conduct in this case.
3 More recently this circuit has recognized that the failure of police
officers to turn over evidence to a prosecutor may violate a criminal
defendant's constitutional right to receive such evidence. See Taylor v.
Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996); Carter, 34 F.3d at 264;
Goodwin v. Metts, 885 F.2d 157, 162-63 (4th Cir. 1989), overruled in
part by Albright v. Oliver, 510 U.S. 266 (1994). Contrary to Judge Ham-
ilton's claim that the majority fails to explain what it means by proper
notice, the decisions in Taylor, Carter , and Goodwin now provide notice
to police officers that they can be subject to monetary damages under
section 1983 for failure to disclose exculpatory evidence to the prosecu-
tor. These decisions, however, all postdate the events in this case and
thus we do not adopt the dissent's theory that proper notice to defendants
can be notice after the fact.

                    15
In this case, it is undisputed that the prosecutor, Assistant District
Attorney Walter Vatcher, knew that the witnesses had been hypno-
tized and knew the details of the various identification procedures
employed by the police during their investigation. Furthermore, Col-
lins and Shingleton maintain that they also discussed with Vatcher the
existence of the reports and recordings of the hypnoses, a claim Vat-
cher denies. Fifteen years after trial, the parties are still disputing the
value of the hypnosis-related evidence, whether Vatcher was derelict
in failing to ask for further details of it, and whether Shingleton and
Collins were derelict in not providing it. In fact, however, the
Supreme Court in Giglio had charged the prosecution with the duty
to request and evaluate relevant evidence in the State's possession.
Giglio, 405 U.S. at 154. Vatcher never contends in his affidavits that
he asked for any materials related to the hypnoses, as might be
expected of a prosecutor's office after Giglio . Furthermore, Vatcher
admitted that "[o]fficers Shingleton and Collins turned over all evi-
dence that I requested from them." His apparent decision not to
request additional details of the hypnoses cannot now be recast as a
constitutional failure by the police officers to disclose such evidence.

Even if there were some general constitutional obligation in 1982
to hand over evidence to a prosecutor, the precise nature of that duty
was anything but clear. Nothing in the applicable caselaw suggested
that the failure to turn over evidence relating to witnesses' hypnoses
violated clearly established constitutional rights. As of 1982, no deci-
sion of either the Supreme Court or this circuit had held that police
committed a constitutional violation by not handing over evidence of
this sort. Of course, we do not require a case with facts identical to
the instant one. Anderson, 483 U.S. at 640. But here no relevant case
remotely resembled the situation confronted by Shingleton and Col-
lins. Under these circumstances, we cannot hold them liable for a con-
stitutional infraction.

Jean finally relies on several cases from other circuits, but such
cases ordinarily do not demonstrate that a constitutional right was
clearly established in this circuit. Most of these decisions do not even
pertain to a police officer's failure to hand over evidence of wit-
nesses' hypnoses to a prosecutor. Two cases did involve the disclo-
sure of hypnosis-related evidence. One comes from the Second
Circuit. United States v. Miller, 411 F.2d 825 (2d Cir. 1969). That

                     16
decision does not even speak to the constitutional strictures on police
conduct. Miller involved only a prosecutor's failure to disclose evi-
dence of a hypnosis to the defense. Id. at 832. Thus, it cannot demon-
strate that Shingleton and Collins violated Jean's clearly established
constitutional rights.

The other case comes from the Northern District of Georgia.
Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975). Like Miller,
Emmett is not binding authority in this circuit. Further, district court
decisions such as Emmett cannot clearly establish a constitutional
right because "while they bind the parties by virtue of the doctrine of
res judicata, they are not authoritative as precedent and therefore do
not establish the duties of nonparties." Anderson v. Romero, 72 F.3d
518, 525 (7th Cir. 1995); see also D'Aguanno v. Gallagher, 50 F.3d
877, 880 n.5 (11th Cir. 1995). In addition to lacking precedential
force, district court opinions from other jurisdictions function as espe-
cially poor sources of law to demonstrate that a right was clearly
established. Police officers in Jacksonville, North Carolina can hardly
be expected to keep abreast of legal developments in the Northern
District of Georgia to determine the scope of their constitutional obli-
gations.

C.

A word about the dissenting opinions. The three dissenting opin-
ions together illustrate why the qualified immunity defense had to be
adopted in the first place. The dissents would impose novel theories
of civil liability on officers in the absence of notice -- precisely the
danger against which the defense of qualified immunity was designed
to guard. See Davis, 468 U.S. at 195. The dissents somehow seize on
vague proscriptions of "unfair" police conduct as determinative guide-
posts by which Collins and Shingleton should have measured their
conduct. See post at 19 (Murnaghan, J., dissenting) (explaining that
police's duty is "to protect every one of us from injustice" and that
the officers' actions "were manifestly unfair"). The dissents also
introduce post-1982 caselaw as support for a rule of law that officers
should have anticipated in 1982. See post at 24 (Ervin, J., dissenting)
(citing 1989 case); post at 29 (Hamilton, J., dissenting) (citing 1989,
1992, and 1996 cases). Furthermore, the dissents point to decisions
outside this circuit as beacons of light that should have been recog-

                     17
nized from afar by the North Carolina police officers in this case. See
post at 20 (Murnaghan, J., dissenting) (citing decisions from the D.C.
Circuit and the Northern District of Georgia).

In sum, the dissents would fail to provide even the rudiments of
notice to those whose conduct they now rush to condemn. One even
goes so far as to say that "[i]t is irrelevant whether the officers would
have been on notice in 1982 that a panel of this court had held other
officers liable for a Brady violation under§ 1983" because "the
underlying constitutional or statutory right upon which the § 1983
action is premised" can provide the needed guidance. See post at 25
(Ervin, J., dissenting). Yet it is precisely the bare-boned vagueness of
constitutional phraseology that cannot guide the qualified immunity
analysis. Anderson in fact emphasized as much in rejecting "the right
to due process of law" as a helpful guide. See 483 U.S. at 639 ("[I]f
the test of `clearly established law' were to be applied at this level of
generality, it would bear no relationship to the`objective legal reason-
ableness' that is the touchstone of Harlow."). The hope for profes-
sional police work lies in the guidance provided by clearly
communicated rules, not in the unbounded approaches adopted by the
various dissenting opinions.

This case involves an attempted end run around the absolute immu-
nity protecting the prosecutor -- a prosecutor who knew not only of
the hypnosis of witnesses but also of the various identification proce-
dures the officers employed. Blocked from pursuing a civil damages
remedy against a prosecutor who admitted receiving all the evidence
he requested from the investigating police officers, Jean now tries to
shift the blame to the officers themselves. Although this circuit now
recognizes that police too may be subject to Brady duties, it had not
yet recognized such duties in 1982. And it would be wrong to allow
the thwarting fact of prosecutorial immunity to force this case into an
altogether different mold -- one where the police officers are subject
to constitutional duties that in fact materialized only after Jean's pros-
ecution.

In conclusion, the relevant sources of law do not clearly establish
that in 1982 police themselves labored under federal constitutional
duties with respect to the disclosure of evidence to the prosecution or
that such duties, if any, included a responsibility to disclose evidence

                     18
relating to witnesses' hypnoses. In holding that these officers are enti-
tled to qualified immunity, we do not diminish the seriousness of
Jean's incarceration. But this court already has granted his petition for
a writ of habeas corpus. Jean v. Rice, 945 F.2d 82. To go further,
however, and impose money damages against Shingleton and Collins
would blindside these defendants and make them into scapegoats with
the aid of many years of hindsight. It would also violate the cardinal
principle of qualified immunity -- that officials may not later be sub-
ject to monetary liability when their behavior at the time did not vio-
late any clearly established constitutional right.

IV.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

MURNAGHAN, Circuit Judge, dissenting:

The substance of the point which I dissent to emphasize has been
made more politely by Judge Ervin in his dissent. He has refrained,
because he is more of a gentleman than I, from using some clear and
simple words that judges should abide by. Judges should unflinch-
ingly see that fairness prevails, particularly in the conduct of police.
The overwhelming duty of officers sworn to enforce the law is to pro-
tect every one of us from injustice. The proper responsibility of the
police is to identify, indict, convict and imprison actual criminals; the
actions of Officers Shingleton and Collins, which led to the wrongful
conviction and lengthy imprisonment of Lesly Jean, were manifestly
unfair.

The majority opinion marks an unmistakable movement in this cir-
cuit to a rule of actually unqualified, though technically called quali-
fied, immunity for police officers. The means by which this has been
accomplished while paying lip service to qualified immunity princi-
ples are three-fold: emphasis upon the special exigencies of police
work with its unique demands for spontaneous, unreflective action; a
perceptible lowering of the objective reasonableness standard for

                     19
assessing police awareness and conduct in particular cases; and,
closely related to the latter, a dramatic narrowing of that law which,
for police officers, will be considered well-settled at the critical time.
The last of these is the principal vehicle by which the majority finds
qualified immunity here. Judge Ervin's dissent persuasively demon-
strates the error in that analysis.

The majority holds today that "[o]rdinarily, . . . courts in this circuit
need not look beyond the decisions of the Supreme Court, this court
of appeals, and the highest court of the state in which the case arose
to determine whether a right was clearly established at a particular
time." Maj. op. at 13. I disagree that such an approach should inevita-
bly be applied, and would consider pertinent authority from other
jurisdictions in determining whether a constitutional right was clearly
established at the time of the alleged violation. See, e.g., United States
v. Bryant, 439 F.2d 642, 650 (D.C. Cir. 1971) (holding that "[t]he
duty of disclosure affects not only the prosecutor, but the Government
as a whole, including its investigative agencies"); Emmett v. Ricketts,
397 F. Supp. 1025, 1040-42 (N.D. Ga. 1975) (noting that Barbee v.
Warden, 331 F.2d 842 (4th Cir. 1964), was "particularly apropos" in
holding that a hypnotist hired by the prosecutor had a duty to disclose
records of hypnosis). I emphasize, moreover, that a right may be
clearly established even though no prior case exists involving the
"very action" challenged as unlawful, see Anderson v. Creighton, 483
U.S. 635, 640 (1987), a rule we often repeat but only rarely apply.

Diligent and honest pursuit of lawbreakers by police officers is the
rule, and we should require no less. That duty undoubtedly includes
the obligation to furnish the prosecutor with exculpatory evidence,
and that responsibility was clearly established in 1982. I dissent.

ERVIN, Circuit Judge, dissenting:

The majority holds that Lesly Jean had no clearly established con-
stitutional right to the delivery of material, exculpatory evidence from
Officers Collins and Shingleton ("the officers") to the prosecutor dur-
ing his 1982 trial. For the reasons below, I find the majority's abso-
lute immunity analysis unnecessary and its discussion of the qualified
immunity question unpersuasive. Therefore, I respectfully dissent.

                     20
I.

The majority begins its analysis with an extended discussion of the
officers' absolute immunity from § 1983 liability on a theory, pur-
portedly advanced by Jean, that the officers were under a duty to
deliver material, exculpatory evidence directly to Jean's defense
counsel. The majority strains to point to evidence of this theory in the
record because the argument is nowhere to be found in Jean's brief
on appeal. In fact, Jean clearly argues that the constitutional violation
at issue is the officers' failure to disclose evidence to the prosecutor,
and not directly to defense counsel. In Jean's brief, the "Statement of
Issue Presented for Review" identifies the constitutional right at issue
as "a law enforcement officer's obligation to disclose exculpatory evi-
dence to prosecutors." Appellant's Br. at 1 (emphasis added). In his
"Summary of the Argument," Jean mentions four times, in one and
one-half pages, that the officers were under an obligation to disclose
evidence to the prosecutor. See Appellant's Br. at 23-24. So far as I
can determine from the record, Jean has never actively pursued a the-
ory of liability for the officers' failure to disclose evidence directly to
defense counsel. For that reason, there has been no discussion of
absolute immunity in any of the previous proceedings in this case.

This is significant because immunity is an affirmative defense that
must be pled lest it be waived. See Gomez v. Toledo, 446 U.S. 635,
640 (1980); Wilkes v. Young, 28 F.3d 1362, 1377 n.12 (4th Cir. 1994)
(Phillips, J., dissenting); Buenrostro v. Collazo, 973 F.2d 39, 44 (1st
Cir. 1992). While the officers' answer to the complaint raises the
defense of "qualified good faith immunity," see J.A. at 39, it says
nothing of absolute immunity. On this very question, the Sixth Circuit
has held that a defendant waives his right to absolute immunity if he
raises only qualified immunity in his answer, motion to dismiss, or
summary judgment motion. See Collyer v. Darling , 98 F.3d 211, 222
(6th Cir. 1996) ("Although [the defendant] did raise the affirmative
defense of qualified immunity, an absolute immunity determination
involves an entirely different analysis. Given that the defense of abso-
lute immunity was not affirmatively pleaded or argued . . . and in light
of the significant distinctions between qualified and absolute immu-
nity claims, this defense was affirmatively waived .. . ."), cert.
denied, 117 S. Ct. 2439 (1997).

                     21
If, as the majority believes, "Collins and Shingleton clearly under-
stood Jean's complaint to allege their failure to disclose evidence
directly to Jean's defense counsel," maj. op. at 6, then the officers
were obliged to raise absolute immunity as an affirmative defense in
their answer to that complaint or, at the very least, in their memoran-
dum in support of their motion for summary judgment. While I do not
believe that Jean has proceeded on a theory that police officers must
disclose evidence directly to defense counsel, if the majority is correct
that he has, then the officers have waived any claim of absolute
immunity that may have been available.

I also would note that the majority's discourse on absolute immu-
nity does nothing to call into question our cases in which police offi-
cers have been held liable for money damages for failure to turn over
material, exculpatory evidence to the prosecutor. See Taylor v.
Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996); Carter v. Burch, 34
F.3d 257, 263-64 (4th Cir. 1994). The majority's discussion of abso-
lute immunity merely clarifies that, as a matter of theory, a police
officer may be liable for a Brady violation under § 1983, not because
he is under a duty to disclose evidence directly to defense counsel, but
rather, because his duty is to deliver such information to the prosecu-
tor.

II.

Having toppled its straw man, the majority proceeds to answer the
real question raised by this case -- whether the officers are entitled
to qualified immunity on Jean's theory that they were under a duty
to deliver material, exculpatory evidence to the prosecutor. In section
III of its opinion, the majority holds that the officers are entitled to
qualified immunity because it was not clearly established in 1982 that
the officers violated the law in failing to hand over material, exculpa-
tory evidence to the prosecutor. For the reasons I expressed in my
opinion for the panel in this case, see Jean v. Collins, 107 F.3d 1111
(4th Cir. 1997), vacated, (Sep. 19, 1997), and for those articulated by
Judge Hamilton in his concurring opinion, see Jean, 107 F.3d 1118-
20, I disagree with the judgment of the majority of the court. Aside
from those general arguments, however, I wish to point out my spe-
cific disagreements with the reasoning in the majority opinion.

                     22
In order to do this, it is helpful to recognize exactly what requests
for evidence were made by defense counsel in this case. Defense
counsel in fact made two requests for evidence. The first was a gener-
alized motion for discovery that included the following requests: 1)
"[t]o disclose the facts and circumstances surrounding any . . . pre-
trial identification;" and 2) "[t]o permit the defendant to inspect and
copy . . . mechanical or electronic recordings, tangible objects, or cop-
ies or portions thereof." Jean v. Rice, 945 F.2d 82, 85 (4th Cir. 1991).

The second request for evidence came after trial had already begun,
when defense counsel learned for the first time, during the State's
direct examination of the victim, that both she and Officer Shingleton
had been hypnotized by Collins. At that point, defense counsel
renewed their motion for discovery and asked the prosecution for any
tapes or notes that were made during the hypnoses. The panel that
granted Jean's habeas petition recognized this second request, see
Jean, 945 F.2d at 85 ("After learning of the hypnosis, counsel
requested any recordings that might exist -- inexplicably the state
still did not provide its records or tapes."), as does the majority in this
case, see maj. op. at 5 ("The prosecutor also did not disclose the
recordings of the hypnotic sessions, despite general pretrial discovery
requests and a more specific request for such recordings by defense
attorneys at trial."). Defense counsel not only made a "more" specific
request for evidence, they could not have been any more specific:
defense counsel requested an audiotape or notes from the hypnoses,
if any such tape or notes existed. We know now that the officers cre-
ated an audiotape and took notes during the hypnoses, that this evi-
dence was in the officers' possession, and yet it was not given to the
prosecutor.

I point this out to indicate how the majority's discussion in page
16 of its opinion is not dispositive of the question on appeal. As to
the first, generalized request for discovery, the majority argues that
because of the nature of the evidence in question (hypnosis evidence),
the officers may or may not have known that such evidence would fall
under the rubric of material, exculpatory evidence. But as to defense
counsel's second request, specifically asking for any existing tapes or
notes of the hypnoses, the nature of the evidence drops out of consid-
eration.

                     23
Surely the majority would agree that, as a general matter, Jean had
a clearly established right in 1982 to material, exculpatory evidence
that had been specifically identified and requested by his defense
counsel. In light of defense counsel's specific request for tapes or
notes from the hypnoses, the nature of the evidence is irrelevant to the
Brady question. Defense counsel requested any audiotape or notes
that might exist regarding hypnosis; those tapes and notes existed, the
officers knew they existed and were within their control, and yet the
officers did not turn them over to the prosecutor.

Stripped of its surplusage, then, the majority's holding in this case
rests on its argument that in 1982 a reasonable police officer would
not have known that in concealing evidence from the prosecutor he
violated the constitutional rights of a criminal defendant. The majority
concedes that recent precedent in this circuit recognizes that such
police misconduct can be a violation of a defendant's constitutional
rights. See maj. op. at 15 n.3 (citing Goodwin v. Metts, 885 F.2d 157,
162-63 (4th Cir. 1989), overruled in part by Albright v. Oliver, 510
U.S. 266 (1994)). The majority's argument is simply that while this
right is now clearly established, it was not in 1982. Although the
majority cites and recognizes this court's decision in Goodwin v.
Metts, the majority fails to appreciate its significance.

In Goodwin, the court confronted the identical question posed in
this case: whether a police officer should receive qualified immunity
in a § 1983 action for failing to disclose exculpatory information in
his possession to the prosecutor. The importance of Goodwin is that
the conduct at issue in that case occurred in 1983, the year after the
events at issue in this case. Goodwin held that a police officer was not
entitled to qualified immunity for failure to turn over exculpatory evi-
dence to a prosecutor because such conduct violated a constitutional
right that was clearly established in 1983: "A reasonable officer
would have known that a prosecution carried out without . . . disclo-
sure of exculpatory information would violate the constitutional rights
of the criminal defendants." Goodwin, 885 F.2d at 164. Since the
majority does not call Goodwin into question, I assume the majority
would agree that had the events at issue in this case taken place in
1983, the illegality of the officers' conduct would have been clearly
established.

                    24
The majority's analysis of this issue reveals a misunderstanding
about my use of Goodwin, see maj. op. at 17, as well as the nature
of qualified immunity. A right does not become clearly established
when a plaintiff successfully brings an action to enforce it under
§ 1983, as the majority apparently believes. See maj. op. at 15 ("[T]he
officers had no earthly idea that they would be subject to a federal
cause of action for money damages . . . ."); maj. op. at 15 n.3
("Goodwin now provide[s] notice to police officers that they can be
subject to monetary damages under section 1983 . . .."). It is irrele-
vant whether the officers would have been on notice in 1982 that a
panel of this court had held other officers liable for a Brady violation
under § 1983. The question is whether the underlying constitutional
or statutory right upon which the § 1983 action is premised was
clearly established at the time the officers acted. Goodwin is clear in
its holding that the constitutional right at issue in this case was clearly
established in 1983, one year after the officers' conduct here.

In order to go along with the majority's position, then, one must
assume that a case was decided between 1982 and 1983 which clearly
established that police officers violate the constitutional rights of a
criminal defendant when they conceal material, exculpatory evidence
from the prosecutor. This is the only way to reconcile the majority's
opinion, holding that "police officers who in 1982 failed to give
[exculpatory] evidence to prosecutors did not themselves violate a
clearly established constitutional right," see maj. op. at 15, and
Goodwin, holding that police officers who failed to perform the same
duty in 1983 did violate a clearly established right. Of course, no such
case exists. A criminal defendant's constitutional right to have the
police turn over material, exculpatory evidence to the prosecutor has
been clearly established in this circuit since at least 1964.

          [I]t makes no difference if the withholding[of exculpatory
          evidence] is by officials other than the prosecutor. The
          police are also part of the prosecution, and the taint on the
          trial is no less if they, rather than the State's Attorney, were
          guilty of the nondisclosure. If the police allow the State's
          Attorney to produce evidence pointing to guilt without
          informing him of other evidence in their possession which
          contradicts this inference, state officers are practicing decep-

                     25
          tion not only on the State's Attorney but on the court and
          the defendant.

Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846 (4th Cir.
1964) (emphasis added) (footnote omitted).

The majority believes that, in 1982, the law of this circuit held that
if a police officer withheld exculpatory evidence from a criminal
defendant, this misconduct was not a direct constitutional violation,
but rather, was "imputed to" the prosecutor. The majority's "imputed
to" theory is an elaborate legal fiction that emanates from a footnote
in our decision in United States v. Sutton, 542 F.2d 1239, 1241 n.2
(4th Cir. 1976). The majority creates this "imputed to" legal fiction
based on a single footnote in Sutton, ignoring this court's clear hold-
ings in Barbee and its progeny. The majority ignores Barbee's plain
statement that the police misconduct at issue in this case practices a
deception "not only" on the prosecutor, but on the court "and the
defendant." See Barbee, 331 F.2d at 846. The most logical and consis-
tent interpretation of this court's precedent suggests that Jean's right
to material, exculpatory evidence has been clearly established since
our decision in Barbee.

More importantly, if a police officer's misconduct was "imputed
to" the prosecutor in 1982, the majority fails to explain at what point
since 1982 we rejected the "imputed to" analysis. The majority recog-
nizes that our circuit has recently upheld § 1983 judgments against
police officers who withheld material, exculpatory evidence from a
criminal defendant. See maj. op. at 15 n.3. This means that a police
officer's withholding of exculpatory evidence is no longer "imputed
to" the prosecution for purposes of holding an officer liable under
§ 1983. The majority points to no authority to explain how this kind
of police misconduct was "imputed to" the prosecutor in 1982, but is
now its own direct violation of a criminal defendant's constitutional
rights.

The simple answer here is that no authority exists to explain this
change because the change never occurred in the first place. At least
since Barbee in 1964, a reasonable police officer in North Carolina
would have known that a criminal defendant has a clearly established
right to have officers deliver material, exculpatory evidence to prose-

                    26
cutors. For that reason, the officers in this case are not entitled to
qualified immunity for their misconduct.

III.

According to the majority, holding Collins and Shingleton liable
for the violation of Jean's constitutional rights would make them
scapegoats. Nothing could be further from the truth-- the real scape-
goat in this matter is Lesly Jean. Jean spent nine years in prison for
a crime he did not commit because police officers used "hypnosis" to
alter the description of the perpetrator of this crime so that it matched
Jean's appearance and his clothes.

The officers in this case are not scapegoats. To the contrary, they
are without doubt responsible for the mockery of justice that resulted
in Jean's nine-year confinement. As I have argued, the question
before us is whether a reasonable police officer would have known in
1982 that concealing evidence from the prosecutor violated the con-
stitutional rights of a criminal defendant. While qualified immunity
should be invoked in every case in which an officer's conduct was
arguably within the bounds of the law, in this case no such argument
can be made. The officers' conduct in the prosecution of Jean was
reprehensible and a total betrayal of the trust that society places in
those whom it empowers to enforce the law. That Jean will not be
allowed the opportunity to present his claim to a jury only perpetuates
the injustices that have befallen him in the legal process, and I
respectfully dissent. Judges Murnaghan, Hamilton, Michael, and
Motz join in this dissent.

HAMILTON, Circuit Judge, dissenting:

The major theme of the majority's opinion is "No Case on Point!"
That is, the majority leaves no doubt that, to avoid the qualified
immunity gauntlet, a § 1983 plaintiff must demonstrate that in a prior
case decided by the Supreme Court, this court, or the highest court of
the state in which the case arose, the conduct engaged in by the gov-
ernment official was held to be constitutionally unlawful. The "No
Case on Point" doctrine makes a mockery of the Supreme Court's
decision in Anderson v. Creighton, 483 U.S. 635 (1987). In Anderson,
the Supreme Court explicitly held that a § 1983 plaintiff need not

                     27
show that in a prior case the government official's actions were held
to be constitutionally unlawful. Id. at 640. Because the majority fails
to follow Anderson, I dissent.

Qualified immunity turns on whether, at the time of the govern-
ment official's conduct, the actions of the government official vio-
lated "clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). The "contours of the right must be sufficiently
clear that a reasonable official would understand what he is doing vio-
lates that right." Anderson, 483 U.S. at 640. In other words, the gov-
ernment official's action in question need not have previously been
found to be unlawful, see id.; rather, "in light of pre-existing law the
unlawfulness must be apparent," id.

At the time of Shingleton and Collins' actions in 1982, our case
law clearly established that a defendant's due process rights were vio-
lated when the police concealed material exculpatory evidence. See
Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964); see also Boone
v. Paderick, 541 F.2d 447, 450-51 (4th Cir. 1976) (holding that duty
to disclose not "neutralized because [evidence] was in the hands of
the police rather than the prosecutor"). As we noted in Barbee:

          Failure of the police to reveal such material evidence in their
          possession is equally harmful to a defendant whether the
          information is purposefully, or negligently, withheld. And it
          makes no difference if the withholding is by officials other
          than the prosecutor. The police are also part of the prosecu-
          tion, and the taint on the trial is no less if they, rather than
          the State's Attorney, were guilty of the nondisclosure. If the
          police allow the State's Attorney to produce evidence point-
          ing to guilt without ever informing him of other evidence in
          their possession which contradicts this inference, state offi-
          cers are practicing deception not only on the State's Attor-
          ney but on the court and the defendant. . . .

331 F.2d at 846 (footnote omitted).

In holding that Shingleton and Collins are entitled to qualified
immunity, the majority first posits that a reasonable officer in 1982

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would not have known that withholding material exculpatory evi-
dence violated Jean's constitutional rights. This proposition is tom-
foolery. Barbee established the proposition that a criminal defendant
has the constitutional right to have the police disclose material excul-
patory evidence. Id. In cases post-Barbee, we have consistently held
that a police officer can be liable under § 1983 for the failure to dis-
close material exculpatory evidence. See Taylor v. Waters, 81 F.3d
429, 436 n.5 (4th Cir. 1996); Carter v. Bunch , 34 F.3d 257, 264 (4th
Cir. 1992); Goodwin v. Metts, 885 F.2d 157, 162-63 (4th Cir. 1989),
overruled in part by Albright v. Oliver, 510 U.S. 266 (1994). Because
there have been no cases since Barbee altering the longstanding prin-
cipal that a police officer has the duty to disclose material exculpatory
evidence, Shingleton and Collins are not entitled to qualified immu-
nity.

The majority does explain in a footnote what it would take to make
the unlawfulness of Shingleton and Collins' actions"apparent." The
majority posits that our decisions in "Taylor , Carter, and Goodwin
now provide notice to police officers that they can be subject to mon-
etary damages under section 1983 for failure to disclose exculpatory
evidence to the prosecutor." Ante at 15 n.3. Thus, according to the
majority, a case on point is required to provide the necessary notice
to police officers before they can be liable under§ 1983. This is pre-
cisely what Anderson says is forbidden. See 483 U.S. at 640.

Perhaps an even more fundamental problem with the majority's
analysis is its failure to explain why the unlawfulness of the conduct
of the officers was apparent to the officers in Goodwin (where the
officers' actions occurred in 1983), but was not apparent to Shingle-
ton and Collins in 1982. Judge Ervin correctly points out that there
was no intervening decision between 1982 and 1983 that would have
made the officers in Goodwin more aware of their unlawfulness than
Shingleton and Collins. See ante at 23-25. Thus, in the absence of an
intervening decision, there is no rational way to square the reasoning
of Goodwin--that a police officer is not entitled to qualified immu-
nity for his failure to disclose material exculpatory evidence, if his
actions occurred in 1983--with the reasoning of the majority--that a
police officer is not entitled to qualified immunity for his failure to
disclose material exculpatory evidence, if his actions occurred in
1982. This point is important because it illustrates the dramatic shift

                     29
in our qualified immunity jurisprudence. Whereas a case on point was
not required when Goodwin was decided, now one is. And such "case
on point" decisionmaking is patently at odds with Anderson.

In a last ditch effort to find qualified immunity, the majority also
posits that a reasonable officer would not have known that withhold-
ing exculpatory evidence in the form of statements given under hyp-
nosis violated Jean's constitutional rights. This rationale is even more
absurd than the first one served up by the majority. Suffice it to say
that exculpatory evidence is exculpatory evidence. The nature of the
exculpatory evidence is simply irrelevant. To hold otherwise would
turn Brady v. Maryland, 373 U.S. 83 (1963), on its head.

It follows that I would reverse.

Judge Murnaghan joins in this dissent.

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