                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                    No. 18-1688
                   ____________

                        E. D.

                         v.

DANIEL SHARKEY; BERKS COUNTY RESIDENTIAL
CENTER IMMIGRATION FAMILY CENTER, (BCRC-
IFC); COUNTY OF BERKS, PENNSYLVANIA; DIANE
EDWARDS, DIRECTOR OF BCRC-IFC; JOHN BEHM;
JAMIE HIMMELBERGER; BRITTNEY ROTHERMEL;
   ERIKA TAYLOR; MATTHEW MALINOWSKI;
      JEREMIAH/JOSH PETRY, ICE EMPLOYEE


  COUNTY OF BERKS, PENNSYLVANIA; DIANE
   EDWARDS, DIRECTOR OF BCRC-IFC; JAMIE
HIMMELBERGER; BRITTNEY ROTHERMEL; ERIKA
     TAYLOR; MATTHEW MALINOWSKI,
                  Appellants

                   ____________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
              (D.C. No. 5-16-cv-02750)
    District Judge: Honorable Edward G. Smith
                   ____________

               Argued March 6, 2019

Before: SMITH, Chief Judge, AMBRO and RESTREPO,
                  Circuit Judges.
               (Opinion Filed: July 1, 2019)

Matthew J. Connell [ARGUED]
Tricia M. Ambrose
MacMain Law Group
433 West Market Group
Suite 200
West Chester, PA 19382

      Counsel of Appellant

Su Ming Yeh [ARGUED]
Angus R. Love
Pennsylvania Institutional Law Project
718 Arch Street
Suite 304 South
Philadelphia, PA 19106

Matthew J. Archambeault
Law Office of Matthew J. Archambeault
1420 Walnut Street
Suite 1188
Philadelphia, PA 19102

      Counsel of Appellee

Sandra S. Park
American Civil Liberties Union
Women's Rights Project
125 Broad Street
18th Floor
New York, NY 10004

Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19106

      Counsel for Amicus Appellees

                             2
                        ___________

                 OPINION OF THE COURT
                      ____________

RESTREPO, Circuit Judge

       E.D., a female immigration detainee at the Berks
County Residential Center -Immigration Family Center
(BCRC), brought a § 1983 action against employee Daniel
Sharkey, alleging that he violated her Fourteenth Amendment
right to bodily integrity after the two had sexual relations.
Included in the suit were Sharkey’s co-workers and supervisor
at BCRC (collectively, the “Defendants”), who E.D. alleged
were deliberately indifferent to the violation, as well as Berks
County, which allegedly failed to implement policies to
prevent the violating conduct. The Defendants and Berks
County moved for summary judgment, arguing that the
individual staff members were entitled to qualified immunity
and that E.D. could not prove a municipal liability claim
against the County. The District Court denied their motion,
and they have filed this interlocutory appeal.1

        In determining whether to affirm the denial of qualified
immunity, we necessarily address whether immigration
detainees are entitled to the same constitutional protections
afforded by the Due Process Clause of the Fourteenth
Amendment as pre-trial detainees. We hold that immigration
detainees are entitled to such protections and, for the reasons
that follow, will dismiss the appeal pertaining to Berks County
for lack of appellate jurisdiction and will affirm the denial of
the Defendants’ request for qualified immunity.

I.     Factual and Procedural Background



1
  In the same order, the District Court granted summary
judgment in favor of Defendants John Behm and the BCRC,
and granted judgment in favor of Berks County with regard to
claims for punitive damages against the County. No appeal
arose from these rulings.
                               3
       E.D. entered the United States with her three-year-old
son in or around May 2014, seeking refuge from domestic
violence and sexual assault in Honduras. She and her son were
transferred from an immigration facility in Texas to the BCRC,
which detains approximately ninety women and children
pursuant to a contract with United States Immigration and
Customs Enforcement (ICE).

       Approximately a month after E.D.’s arrival, BCRC
employee Daniel Sharkey began giving food and treats to E.D.
and her son. His overtures escalated to allowing E.D. to use
his cell phone and promising to help with her immigration
status. Within weeks Sharkey began to touch and kiss E.D.,
who refused to reciprocate. He turned angry, insulted E.D.,
and told her she would be deported if she told anyone about his
advances.

        In July 2014, Sharkey began forcing E.D. to engage in
sexual intercourse. On one occasion they had intercourse in a
bathroom and a seven-year-old girl witnessed the encounter.
In August 2014, E.D. and Sharkey were having intercourse in
another resident’s room when the resident returned. Within the
month, Sharkey either left or was terminated from his
employment at BCRC. He was later arrested and convicted of
institutional sexual assault under Pennsylvania statute 18
Pa.C.S.A. § 3124.2, which was enacted in February 2012.

        E.D. alleges that, by August 2014, staff members at the
BCRC were aware of Sharkey’s conduct but failed to take steps
to protect her. Eventually detainees complained and BCRC
Director Diane Edwards was notified of the relationship. An
investigation was launched. When questioned by staff
members, E.D. denied Sharkey had sexually assaulted her
because she feared deportation. E.D. eventually told her
immigration attorney about Sharkey’s conduct, and her
attorney relayed the incidents to ICE officials. E.D. alleges
that, after the relationship was reported, the defendant BCRC
staff members retaliated by denying her and her son privileges
and instituting a restrictive clothing policy that led to other
detainees isolating her.

        According to E.D., ICE policies and standards prohibit
staff from sexually abusing immigration detainees and define

                              4
any sexual contact, regardless of whether it is consensual, as
sexual abuse. Moreover, ICE standards require that the Field
Office Director be notified any time an employee, contractor,
or volunteer is alleged to be a perpetrator of sexual abuse
against a detainee. The ICE/DRO (Detention and Removal
Operations) Residential Standards require residential facilities
holding immigration detainees to affirmatively act to prevent
sexual abuse and sexual assault of the residents, which includes
providing staff training and prompt, effective intervention.

       In June 2017, E.D. filed her third amended complaint in
District Court against Daniel Sharkey, Berks County, the
BCRC, the center’s director Diane Edwards, and staff
members John Behm, Janie Himmelberger, Brittany
Rothermel, Erika Taylor, and Matthew Malinowski.2 E.D.
claimed, inter alia, that her Fourteenth Amendment due
process rights were violated by the employees and supervisor
who were deliberately indifferent to Sharkey’s conduct and by
Berks County for failing to implement policies and procedures
to prevent sexual abuse at the residential center. She further
alleged that the Defendants retaliated against her after she
reported the sexual abuse, thereby violating her due process
and First Amendment rights. After the completion of
discovery, all the defendants except for Daniel Sharkey moved
for summary judgment.

       The District Court granted the defendants’ joint motion
with regard to claims against the BCRC, ruling that it was not
a proper defendant under 42 U.S.C. § 1983 because it did not
have an existence separate from Berks County. The Court also
granted summary judgment in favor of BCRC employee John
Behm and rejected E.D.’s claims for punitive damages against
Berks County, but otherwise denied the motion. The
remaining defendants filed an interlocutory appeal challenging
the District Court’s conclusion that E.D. pled the violation of a
known constitutional right, that the BCRC employees and
supervisor were not entitled to qualified immunity, and that a


2
 E.D.’s third complaint included Immigration and Customs
Enforcement (ICE) agent Josh Petry as a defendant, but the
District Court granted Petry’s motion to dismiss on August 11,
2017.
                               5
factfinder could reasonably find Berks County liable for
Sharkey’s conduct.

II.    Jurisdiction and Standard of Review

       Generally, our appellate jurisdiction under 28 U.S.C. §
1291 is limited to appeals of District Courts’ final orders. The
denial of a motion for summary judgment, which allows an
issue to proceed to trial, is generally not considered a final
order. Hamilton v. Leavy, 322 F.3d 776, 781-82 (3d Cir. 2003).
However, section 1291 does allow interlocutory review of
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 is adjudicated.”
Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.
2002) (quoting Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949)).

        Orders denying qualified immunity are eligible for
review under the “collateral-order doctrine” because qualified
immunity entitles the defendant to “immunity from suit rather
than a mere defense to liability and [the entitlement] is
effectively lost if a case is erroneously permitted to go to trial.”
Id. (quoting Mitchell v. Forsyth, 572 U.S. 511, 526-27 (1985))
(emphasis in original and alterations omitted). However, the
denial of qualified immunity can be reviewed only to the extent
that the analysis denying the defense turns on an issue of law.
Id.; Bistrian v. Levi, 696 F.3d 352, 364 (3d Cir. 2012). In these
instances, where the issue appealed concerns not whether the
parties might be able to prove given facts but rather whether
the facts show a violation of clearly established law, we have
jurisdiction “but we must adopt the facts assumed by the
District Court.” Walker v. Horn, 286 F.3d 705, 710 (3d Cir.
2002) (citing Johnson v. Jones, 515 U.S. 304, 319 (1995)). In
deciding the summary judgment motion, the District Court
must accept as true the nonmovant’s evidence and draw all
reasonable inferences from the record in the nonmovant’s
favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255
(1986); see also Tolan v. Cotton, 572 U.S. 650, 656-57 (2014).

       a. Jurisdiction to review denial of Defendants’
          qualified immunity.

                                 6
       In deciding that Sharkey’s co-workers and supervisor
were not entitled to qualified immunity, the District Court
concluded that E.D. sufficiently alleged a violation of a
constitutional right and that the right was clearly established.
See L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 240-41 (3d Cir.
2016). On appeal, the Defendants challenge the conclusion
that E.D.’s evidence of Sharkey’s conduct raised such a
violation. In so doing, they raise an appealable issue of law.
We exercise plenary review over questions of law raised by the
denial of qualified immunity. Schieber v. City of Philadelphia,
320 F.3d 409, 415 (3d Cir. 2003) (citing Eddy v. Virgin Islands
Water & Power Auth., 256 F.3d 204, 208 (3d Cir. 2001)).

       b. No jurisdiction to review denial of summary
          judgment for Berks County.

       We do not have jurisdiction to review the District
Court’s order denying summary judgment in favor of Berks
County. Unlike the individual Defendants, Berks County
cannot assert a qualified immunity defense, and the denial of
summary judgment to Berks County therefore does not trigger
collateral order doctrine review. See Owner v. City of
Independence, Mo., 445 U.S. 622, 650 (1980) (under § 1983, a
municipality is not entitled to qualified immunity from liability
for violations of constitutional rights). The District Court
denied summary judgment because it determined that the
County’s liability depended on the resolution of issues of
material fact, which must be determined by a fact-finder. To
the extent the County asserts the District Court erred in
identifying facts to support its order denying summary
judgment, this argument must be made in an appeal following
the conclusion of the case. Forbes v. Twp. of Lower Merion,
313 F.3d at 147-48 (citing Ziccardi v. City of Phila., 288 F.3d
57, 61 (3d Cir. 2002)).

III. The Denial of Qualified Immunity for the Individual
Defendants

       Having ascertained that we have jurisdiction to review
the denial of qualified immunity insofar as it raises a question
of law, we now assess whether the District Court properly
concluded that E.D. sufficiently pled the violation of a known
constitutional right of which a reasonable person would be

                               7
aware. Saucier v. Katz, 533 U.S. 194, 201-02 (2001) (citations
omitted). While the plaintiff must sufficiently plead a
violation, the burden is on the defendants to establish they are
entitled to qualified immunity. Beers-Capitol v. Whetzel, 256
F.3d 120, 142 n. 15 (3d Cir. 2001). Officials demonstrate they
are entitled to qualified immunity only if they can show that a
reasonable person in their position at the relevant time could
have believed, in light of clearly established law, that their
conduct comported with recognized legal standards. Id.

       The District Court determined that E.D. sufficiently
alleged a plausible violation of her Fourteenth Amendment due
process right to bodily integrity, which it defined as “the right
to have a custodial government officer protect an immigration
detainee from sexual assault of which the officer is aware.” It
further determined this right to be clearly established at the
time of Sharkey’s challenged conduct. The Court denied the
individual Defendants qualified immunity because they failed
to demonstrate their conduct comported with established legal
standards, which would have required proving that they were
either unaware of Sharkey’s conduct or they were aware but
acted reasonably to protect E.D. from the assault. We agree
with the District Court that the Defendants did not meet this
burden, and therefore affirm the denial of summary judgment.

       a. Alleged violation of constitutional right.

       This Circuit has longed viewed the legal rights of an
immigration detainee to be analogous to those of a pretrial
detainee. 3 We now join a number of our sister Circuits in
expressly holding that immigration detainees are entitled to the
same due process protections. Charles v. Orange County, ---
F.3d ---, 2019 WL 2236391 (2d Cir. May 24, 2019); Chavero-

3
  Panels of this Circuit have repeatedly held in unpublished
decisions that an immigration detainee is the equivalent of a
pretrial detainee, and that a pretrial detainee’s constitutional
claims are considered under the Due Process Clause: Adekoya
v. Chertoff, 431 Fed. Appx. 85, 88 (3d Cir. 2011); Contant v.
Sabol, 431 Fed. App’x. 177, 178 (3d Cir. 2011); Foreman v.
Lowe, 261 Fed. App’x. 401, 403 (3d Cir. 2008); Harvey v.
Chertoff, 263 Fed. App’x. 188, 191 (3d Cir. 2008); Dhalan v.
Dep’t of Homeland Sec., 215 F. App’x. 97, 100 (3d Cir. 2007).
                               8
Linares v. Smith, 782 F.3d 1038, 1041 (8th Cir. 2015);
Belbachir v. County of McHenry, 726 F.3d 975, 979 (7th Cir.
2013); Porro v. Barnes, 624 F.3d 1322, 1326 (10th Cir. 2010);
Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).

        “[W]hen pretrial detainees challenge their conditions of
confinement, we must consider whether there has been a
violation of the Due Process Clause of the Fourteenth
Amendment.” Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir.
2008). “In evaluating the constitutionality of conditions or
restrictions of pretrial detention that implicated only the
protection against deprivation of liberty without due process of
law, we think the proper inquiry is whether those conditions
amount to punishment of the detainee.” Bell v. Wolfish, 441
U.S. 520, 535 (1979). Under the Due Process clause, “a
detainee may not be punished prior to an adjudication of guilt.”
Id.     To determine whether challenged conditions of
confinement amount to punishment, this Court determines
whether a condition of confinement is reasonably related to a
legitimate governmental objective; if it is not, we may infer
“that the purpose of the governmental action is punishment that
may not be constitutionally inflicted upon detainees qua
detainees.” Hubbard, 538 F.3d at 232 (quoting Bell, 441 U.S.
at 539) (emphasis in original).

        The right to “not be sexually assaulted by a state
employee while in confinement” was clearly established at the
time of Sharkey’s conduct. Beers-Capitol, 256 F.3d at 143
n.15 (citing Farmer v. Brennan, 511 U.S. 825, 833-34 (1994),
and Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726
(3d Cir. 1989)). E.D.’s allegations of Sharkey’s sexual assault,
which could not have served a legitimate governmental
objective and thereby constituted impermissible punishment,
set forth a plausible violation of her right to personal bodily
integrity protected by the Due Process Clause of the Fourteenth
Amendment. Stevenson v. Carroll, 495 F.3d 62, 67 (3d Cir.
2007) (citing Bell, 441 U.S. at 535); Kane v. Barger, 902 F.3d
185, 192 (3d Cir. 2018).

       Regarding Sharkey’s co-workers’ liability, this Court
has recognized a detainee’s right to be protected by state actors
who knew of ongoing violating conduct under the theory that
a reasonable state official “could not believe that [their] actions

                                9
comported with clearly established law while also believing
that there is an excessive risk to the plaintiffs and failing to
adequately respond to that risk.” Beers-Capitol, 256 F.3d at
143 n.15; see also Ricks v. Shover, 891 F.3d 468, 479 (3d Cir.
2018) (holding that a prison guard who knows of, but fails to
stop, ongoing constitutional violations against a prisoner
violates the prisoner’s Eighth Amendment rights). Supervisor
Diane Edwards’ claim for immunity was properly denied
because this Court has recognized the right to have state
supervisory officials that neither condone nor authorize,
through either their actions or inactions, sexual assault
committed by another state actor. See Stoneking, 882 F.2d at
730-731 (reversing the grant of qualified immunity where
plaintiff proffered a “tenable theory” that supervisors’
practices amounted to condoning teacher’s sexual abuse of
student). We therefore agree with the District Court that E.D.’s
claims against the individual Defendants alleged the violation
of a known constitutional right.

       b. Alleged constitutional right clearly established.

       We further agree that a detainee’s right to be protected
by state officials aware of ongoing sexual assault was clearly
established at the time of Sharkey’s conduct. “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.” Kane, 902 F.3d at 194 (citing
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “[I]t need not
be the case that the exact conduct has previously been held
unlawful so long as the ‘contours of the right’ are sufficiently
clear.” Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

        Initially, the District Court fittingly recognized that
Sharkey’s conduct was illegal in the state in which it occurred.
He committed institutional sexual assault in violation of
Pennsylvania Statute 18 Pa.C.S. § 3124.2, which forbids an
employee of a “residential facility serving children and youth”
from having sexual intercourse with a “detainee,” regardless of
whether the detainee gave consent. See 18 Pa.C.S. § 3124.2 (a).
That Sharkey’s conduct was illegal renders E.D.’s right to be
free from sexual assault “so ‘obvious’ that it could be deemed
clearly established even without materially similar cases.”

                              10
Kane, 902 F.3d at 195 (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)).

        In any event, there is a materially similar case, decided
twelve years before E.D. had entered the country. In 2001 this
Court held that juvenile detention facility employees could be
liable for their co-worker’s sexual conduct with an inmate if
they knew of but ignored the risk their co-worker posed.
Beers-Capitol, 256 F.3d at 135. This same opinion held that
facility supervisors could be liable for implementing deficient
policies that created an unreasonable risk of a violation if they
were aware of but indifferent to the risk, and the injury resulted
from their own deficient policies. Id. Thus, the BCRC
Defendants had notice that Sharkey’s conduct was violative,
and their purported failure to intervene and protect E.D. could
be found to have violated her right to be free of sexual assault,
of which a reasonable person would have been aware.

       On appeal, the individual Defendants argue E.D. failed
to allege a constitutional right violation because the sexual
intercourse between Sharkey and E.D. was consensual. They
further claim that the BCRC was “drastically different” from a
prison, and that Sharkey was “not akin to a prison guard.” We
agree with the District Court that the evidence regarding
whether the sexual intercourse was consensual “presents a
sufficient disagreement to require submission to a jury,” and
therefore constitutes a genuine dispute of material fact. Liberty
Lobby, 477 U.S. at 251-52.

       However, given the findings of the District Court,
which we adopt when reviewing the denial of summary
judgment, we question whether the issue of consent will be
deemed relevant at trial. Schieber v. City of Phila., 320 F.3d at
415. The Court found that E.D. was “detained” and that, under
ICE policies and standards, as well as Pennsylvania law, any
sexual contact between a staff member and a detainee
constitutes sexual abuse regardless of consent. We find,
therefore, the Court’s factual findings support its ruling that
E.D. sufficiently pled a due process rights violation by alleging
she and Sharkey had sexual contact, notwithstanding its
finding that whether she consented to the contact is in dispute.



                               11
IV.    Deliberate Indifference Sufficiently Alleged

        Having established that E.D. sufficiently alleged the
violation of a known constitutional right, we now assess the
District Court’s finding that she sufficiently established the
Defendants “knowingly and unreasonably disregarded an
objectively intolerable risk of harm” embodied by their co-
worker, Daniel Sharkey. Beers-Capitol, 256 F.3d at 132
(quoting Farmer, 511 U.S. at 837 (1994)). In determining
whether E.D. met her burden in pleading that the Defendants
possessed a culpable state of mind and failed to act reasonably,
she is entitled as the non-movant to the benefit of all reasonable
inferences drawn from the evidence. Hamilton v. Leavy, 117
F.3d 742, 748 (3d. Cir. 1997).

        Defendants argue on appeal that the evidence
established they knew nothing of the ongoing sexual
relationship, whereas E.D. argues the record proves the BCRC
staff knew of Sharkey’s violative conduct and they were
therefore required by law to protect her. The District Court
found that the Defendants’ awareness of the alleged violation,
and whether they acted reasonably in response, presents a
genuine dispute of a material fact. Although the Court failed
to make specific factual findings in its order, facts identified in
is previous filings support its ruling that a factfinder could
plausibly conclude the Defendants “must have known” of the
risk to E.D.’s rights. Hamilton, 117 F.3d at 748.

        In a memorandum opinion deciding a motion to dismiss,
the District Court cited E.D.’s allegations that the BCRC is a
small facility and the staff has “frequent contact and
interaction” with the detainees, which permitted the
Defendants to observe Sharkey with E.D. and become aware
of their intimate relationship. Moreover, the Court cited E.D.’s
claims that the relationship became “obvious” to the other
detainees, motivating them to complain to the BCRC staff
about Sharkey’s conduct.4 Regarding Supervisor Edwards, the




4
  The District Court filed a memorandum opinion in response
to a motion to dismiss filed by defendant Jeremiah Petry, an
ICE deportation officer who worked at the BCRC. The Court
                                12
Court found that E.D. raised a triable issue of fact as to whether
the policies at the BCRC created an unreasonable risk of sexual
assault, whether Edwards was aware of that risk, and whether
E.D.’s injury was the result of the purported deficient policies.
To support this finding, the Court cited E.D.’s response to the
summary judgment motion, in which she alleged Edwards “has
oversight over everything in the program for the BCRC,
including training,” and that the training consisted of Sharkey
“going through documents and signing them.” She further
alleged that the sexual assault training, the curriculum of which
Edwards approved, consisted of a printed-out slides that
employees read independently before taking a quiz.

        Based on these adaptations by the District Court, we
agree there is enough evidence to support an inference that the
Defendants knew of the risk facing E.D., and that their failure
to take additional steps to protect her – acting in their capacity
as either a co-worker or supervisor – “could be viewed by a
factfinder as the sort of deliberate indifference” to a detainee’s
safety that the Constitution forbids. Hamilton, 117 F.3d at 749.
We agree there is a genuine need for trial to determine whether
the Defendants are liable, and that summary judgment was
therefore properly denied. See Big Apple BMW, Inc. v. BMW
of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)) (“In
practical terms, if the opponent has exceeded the ‘mere
scintilla’ threshold and has offered a genuine issue of material
fact, then the court cannot credit the movant’s version of events
against the opponent, even if the quantity of the movant’s
evidence far outweighs that of its opponent”). 5



granted Petry’s motion with prejudice, finding that E.D. failed
to state a claim upon which relief could be granted.
5
  In the order deciding the summary judgment motion, the
District Court found that whether Sharkey’s co-workers
retaliated against E.D. after she reported the offensive conduct
and thereby violated her First Amendment rights was a genuine
issue of material fact. This ruling was not raised by the
Defendants on appeal, rendering any objection to the Court’s
findings waived. The Federal Rules of Appellate Procedure
provide that an appellant’s brief must contain “appellant’s
contentions and the reasons for them.” Fed. R. App. P.
                               13
V.     Conclusion

       Given that no final order has been issued with regard to
Berks County, we do not have jurisdiction to review the
decision to deny summary judgment in its favor. We will
affirm the District Court’s decision to deny qualified immunity
for the individual Defendants, and therefore affirm the denial
of their motion for summary judgment. We will remand this
case for trial so that the liability of the parties may be decided
by a factfinder.




28(a)(9)(A). We have held that the absence of any argument
renders the issue waived. United States v. Hoffecker, 530 F.3d
137, 162 (3d. Cir. 2008). See also United States v. DeMichael,
461 F.3d 414, 417 (3d Cir. 2006) (“An issue is waived unless
a party raises it in its opening brief, and for those purposes a
passing reference to an issue will not suffice to bring that issue
before this court.” (citation omitted)); United States v. Irizarry,
341 F.3d 273, 305 (3d Cir. 2003) (“An appellant who falls to
comply with this requirement fails to preserve the arguments
that could otherwise have been raised.”).
                                14
SMITH, Chief Judge, concurring.

       I join my colleagues’ sound reasoning in upholding
the District Court’s denial of qualified immunity and
dismissing the remainder of the appeal. I write separately
to highlight a concern with the structure of the order under
review.

       When summary judgment has been denied on
qualified immunity grounds, we have jurisdiction to
“determine whether the facts identified by the District
Court constitute a violation of a clearly established
constitutional right.” Atkinson v. Taylor, 316 F.3d 257,
261 (3d Cir. 2003). Here, the District Court addressed the
summary judgment motion by issuing an order,
unaccompanied by a supporting opinion. Instead, the
order included a lengthy footnote setting forth the District
Court’s reasoning. This “footnote order” practice is
frequently employed by our colleagues in the Eastern
District of Pennsylvania, and it is not my desire to interfere
with a longstanding custom and practice of that district.
Indeed, in my view, there is nothing inherently
problematic with so-called “footnote opinions.” In this
case, however, the footnote neglects to identify a single
undisputed fact, and provides only cursory discussion—
without reference to the evidence of record—to support
the conclusion that disputes of material fact exist.

      Because Appellants have raised on appeal relatively
narrow legal claims that are capable of resolution without
the need to closely examine the nuances of the District
Court’s fact-finding, I see no need to remand this matter
for a more comprehensive opinion. Nonetheless, while the
District Court provided just enough detail for us to render
a decision in this case, it cannot be overlooked that
perfunctory treatment of the factual record does not
comport with the spirit of the supervisory rule that we
announced in Forbes v. Township of Lower Merion, 313
F.3d 144 (3d Cir. 2002). In Forbes, we observed that
providing only “spare comments” in a qualified immunity
denial “greatly hampered” our ability to conduct
meaningful appellate review. Id. at 148. We therefore
expressly set forth a rule applicable to all qualified
immunity decisions: “we . . . require the District Courts to
specify those material facts that are and are not subject to
genuine dispute and explain their materiality.” Id. at 146.

       Forbes has been the rule of our Court for well over
a decade and a half, and remains so for good reason. A
comprehensive and detailed summary judgment opinion,
specifying those facts that are undisputed as well as those
that are material and subject to genuine dispute, is vital—
and often essential—to our meaningful review on appeal.
I write to underscore the continued importance that our
judges attach to compliance with the Forbes rule, and to
discourage cursory footnote treatment of the factual record
in qualified immunity decisions.




                             2
