                    United States Court of Appeals,

                            Eleventh Circuit.

                              No. 95-6123.

                 Walter McMILLIAN, Plaintiff-Appellee,

                                    v.

   W.E. JOHNSON, Tommy Herring, Tom Allen, in their individual
capacities, et al., Defendants,

   Thomas Tate, Simon Benson, Larry Ikner, in their individual
capacities, Defendants-Appellants,

   Association of County Commissions of Alabama Liability Self
Insurance Fund, Intervenor-Defendant.

                              July 9, 1996.

Appeals from the United States District Court for the Middle
District of Alabama. (No. CV-93-A-699-N), W. Harold Albritton, III,
Judge.

Before COX and BARKETT, Circuit Judges, and PROPST*, District
Judge.

     COX, Circuit Judge:

     Walter McMillian was convicted of the murder of Ronda Morrison

and sentenced to death.      He spent nearly six years on Alabama's

death row, including over a year before his trial.           The Alabama

Court    of   Criminal   Appeals   ultimately   overturned   McMillian's

conviction because of the state's failure to disclose exculpatory

and impeachment evidence to the defense. After the state dismissed

the charges against McMillian, he brought this § 1983 action

against various officials involved in his arrest, incarceration,

and conviction. In essence, McMillian alleges that state and local

officials prosecuted and punished him for a crime that they knew he


     *
      Honorable Robert B. Propst, U.S. District Judge for the
Northern District of Alabama, sitting by designation.
did not commit.

       This is an appeal from the district court's order denying

several defendants' motions for summary judgment based on qualified

immunity.      Thus, at this stage of the litigation, we do not know to

what    extent     McMillian's    allegations        of   egregious    official

misconduct are true.        Our role on this appeal is to decide the

legal question of whether, if McMillian's allegations are true, the

officials responsible are entitled to qualified immunity.

                                  I. FACTS

       To put McMillian's claims in context, we describe in some

detail the events leading up to his arrest, pretrial detention on

death row, trial, and conviction.            Many of the facts surrounding

these events are hotly disputed at this, the summary judgment stage

of the litigation.

       Ronda     Morrison   was   murdered      in    Jackson    Cleaners   in

Monroeville, Alabama.       Thomas Tate, the Sheriff of Monroe County,

Larry   Ikner,     an   investigator   for    the    Monroe   County   district

attorney, and Simon Benson, an Alabama Bureau of Investigation

agent, were involved in the investigation of the Morrison murder.

Tate, Ikner, and Benson are the appellants on this appeal.

       On June 3, 1987, Tate, Ikner, and Benson interviewed Ralph

Myers, who had been arrested for the murder of a Vicky Pittman.

Myers admitted to being involved in the Pittman murder and claimed

that McMillian also was involved.        Myers also was questioned about

the Morrison murder but denied any involvement in or knowledge of

the Morrison murder.        He claimed that he did not shoot Morrison,

that McMillian did not give him a gun or tell him to shoot
Morrison, and that he did not know who killed Morrison.       Also

during this interview, Myers insisted on having McMillian charged

with sodomy, accusing McMillian of raping him several months

earlier in Conecuh County. There is evidence that Tate, Ikner, and

Benson coerced Myers into falsely accusing McMillian of sodomy so

that they could obtain custody of McMillian while constructing

evidence inculpating McMillian in the Morrison murder.   A warrant

was issued for McMillian's arrest on sodomy charges.

     The next day, Tate, Ikner, and Benson were called to the

Conecuh County Jail at the request of a Bill Hooks.    On the night

of the Morrison murder, almost seven months earlier, Hooks had

given a statement in which he claimed to have seen a white male

with a scar on his face and a black male whom he knew as "John

Dozier" leaving Jackson Cleaners in a greenish-blue pickup truck

around the time of the murder.    No action was taken at the time,

however, because the officers did not know a "John Dozier."   When

interviewed by Tate, Ikner, and Benson, Hooks said that he had seen

a photograph of Myers in the newspaper and he identified Myers as

the white male whom he had seen at Jackson Cleaners on the day of

the Morrison murder.

     McMillian was arrested several days later on a highway near

his home for sodomy.   He was taken to the Monroe County jail to be

held until he was transported to Conecuh County.   Later that day,

Benson learned that Karen Kelly, a girlfriend of McMillian, wanted

to speak to him at the Escambia County Jail.   Tate and Ikner went

with Benson to interview Kelly.     She told them that on the day

after Morrison's murder, McMillian confessed to her that he had
killed the girl at Jackson Cleaners in Monroeville.          Three days

later Kelly signed a sworn statement relating what she had told

Tate, Ikner, and Benson.

     Based on the statements of Hooks and Kelly, capital murder

warrants were issued against McMillian and Myers for the Morrison

murder.   McMillian then was transferred to Escambia County and

charged with the unrelated murder of Pittman.         Myers already had

been charged in the Pittman murder.

     The next day, Tate, Ikner, and Benson interviewed Myers again.

Myers stated that he met McMillian on the morning of Morrison's

murder, drove McMillian to Jackson Cleaners in McMillian's truck,

and waited outside while McMillian went into the cleaners.            He

claimed that, three days later, McMillian told him that he had

killed someone when he was at Jackson Cleaners.              On several

subsequent   occasions,   Myers   gave   statements   revealing   further

details about what he claimed happened on the day of the Morrison

murder.   McMillian alleges that all of these statements by Myers

were false and coerced by Tate, Ikner, and Benson.

     McMillian and Myers both were moved to the Conecuh County Jail

for a preliminary hearing on the sodomy charge against McMillian.

The hearing was continued. McMillian was transferred to the Monroe

County Jail, while Myers remained at the Conecuh County Jail.

During the night, two armed men broke into the Conecuh County Jail

and threatened Myers. Ikner, Benson, and an FBI agent investigated

the incident.    Ikner gave an oral report to the Monroe County

district attorney the next day.          The district attorney filed

motions to place McMillian and Myers in the custody of the Alabama
Department of Corrections to ensure their safety.              A Monroe County

Circuit Judge granted the motions.

     The    Department    of    Corrections    (the      "DOC")   incarcerated

McMillian   and   Myers   on    death   row   at   the   Holman   Correctional

Facility.    McMillian alleges that Tate, Ikner, Benson, and DOC

officials conspired to place him on death row not to ensure his

safety but to punish and intimidate him.              McMillian remained on

death row until his trial approximately one year later.              Myers was

transferred back to the Monroe County Jail for about four months

but then was returned to Holman's death row.               McMillian alleges

that Myers was transferred back and forth from death row depending

on whether he cooperated with Tate, Ikner, and Benson's efforts to

frame McMillian for the Morrison murder. While McMillian and Myers

were on death row, one inmate was executed in the electric chair.

     Myers was the prosecution's key witness at McMillian's trial.

Neither the prosecution nor the defense called Kelly to testify.

The jury convicted McMillian of capital murder.               He was sentenced

to death.

     Eventually, Myers and several other witnesses recanted their

trial testimony. In addition, McMillian learned that the state had

withheld    exculpatory   and    impeachment       evidence   from   him.   On

McMillian's petition for post-conviction relief under Ala.R.Crim.P.

32, the Alabama Court of Criminal Appeals reversed McMillian's

conviction because of the state's failure to disclose exculpatory

and impeachment evidence.          McMillian v. State,         616 So.2d 933

(Ala.Crim.App.1993).      The state then dismissed the murder charge

against McMillian and released him from prison.                   This lawsuit
followed.

                                II. PROCEDURAL HISTORY

        McMillian brought suit pursuant to 42 U.S.C. § 1983 against

Tate, Ikner, Benson, and various other defendants who are not

parties      to   this    appeal.      In    a   twenty-seven     count     complaint,

McMillian alleges violations of his federal constitutional rights,

as well as pendent state constitutional and tort claims.                             On a

motion to dismiss, the district court dismissed Monroe County,
                                                                                 1
Alabama, and all official capacity claims, from the suit.                             The

court also dismissed many of the claims asserted against various

defendants        in    their     individual     capacities.          The      remaining

defendants later moved for summary judgment, asserting qualified

immunity, among other defenses.

     The      district      court     granted    summary    judgment        to   various

defendants on many of McMillian's claims. The court denied summary

judgment, however, on a number of the claims against Tate, Ikner,

and Benson.       Because these claims form the basis of this appeal, we

describe      the      district    court's   resolution      of   them      on   summary

judgment in some detail.

A. Count One:          Pretrial Detention on Death Row

     In Count One, McMillian alleges that his incarceration on

death       row   while    a      pretrial   detainee      violated      his     clearly

established due process rights under the Fourteenth Amendment.

McMillian alleges that Tate, Ikner, and Benson conspired with DOC

officials to place and keep McMillian on death row prior to his

        1
      In No. 95-6369, --- F.3d ----, also decided today, we
address McMillian's permissive interlocutory appeal from the
district court's order dismissing Monroe County from the suit.
trial.    This pretrial detention on death row, McMillian avers, was

for the purpose of punishing and intimidating him.              The district

court concluded that a genuine issue of fact exists as to whether

Tate, Ikner, and Benson conspired to detain McMillian on death row

for the purpose of punishing him rather than out of concern for his

safety.      Such   a    conspiracy,   the    court   held,    would   violate

McMillian's clearly established due process rights.

     The district court found that, while it is undisputed that two

armed men broke into the Conecuh County Jail and threatened Myers,

a genuine issue of material fact exists as to whether the armed men

made threats against McMillian. Tate, Ikner, and Benson claim that

McMillian was threatened;        Myers states in an affidavit that he

never told them that McMillian was threatened.          The district court

determined that, if Myers is telling the truth, it would be

reasonable to infer that Tate, Ikner, and Benson were not genuinely

concerned with McMillian's safety and falsely told the district

attorney    that    McMillian    had   been   threatened      and   should   be

transferred from the county jails for his own safety.

     The district court found that the evidence shows a genuine

issue of fact as to the existence of a conspiracy between Tate,

Ikner, and Benson, and DOC officials.          There is evidence that Tate

made threatening and hateful remarks to McMillian suggesting that

Tate was more interested in punishing McMillian than in keeping him

safe and secure.        The DOC accepted custody of McMillian and Myers

even though (1) the state court had no authority under Alabama law

to order their transfers, (2) housing pretrial detainees violated

DOC policy, and (3) housing pretrial detainees on death row was
unprecedented. In addition, Tate, Ikner, and Benson exercised some

control over transfers to and from death row.              While McMillian

remained on death row, Myers was transferred back to the Monroe

County jail and then returned to death row about four months later.

The district court found that, drawing all inferences in favor of

McMillian, the evidence with respect to the transfers supported two

crucial points:

     First, the transferring of Myers to Monroe County Jail and
     back to Holman's Death Row, apparently without any written
     court orders, shows that there must have been some
     communication and understanding between Monroe County law
     enforcement officials and the D.O.C. Defendants about why such
     transfers were taking place and ultimately why McMillian and
     Myers were really being held on Death Row. Second, Myers'
     statement indicates that Defendants were using Death Row as a
     means to punish, intimidate, and coerce Myers to testify
     against McMillian.   If Defendants were using Death Row to
     punish Myers, it is reasonable to infer that Death Row was
     also being used to punish McMillian.

(R. 7-127 at 32.)

B. Count Two:    Suppression of Exculpatory and Impeachment Evidence

     In Count Two, McMillian alleges that Tate, Ikner, and Benson

suppressed and withheld exculpatory and impeachment evidence in

violation of his due process rights under the Fourteenth Amendment.

The district court found that McMillian had presented sufficient

evidence to raise genuine issues of material fact as to whether

Tate, Ikner, and Benson intentionally withheld three pieces of

evidence from the prosecutor:          the June 3, 1987, statement by

Myers;   a statement by an Isaac Daily;      and a statement by a Miles

Jackson.    The district court rejected Tate, Ikner, and Benson's

claims     of   qualified     immunity,   holding   that     intentionally

withholding     exculpatory     and   impeachment   evidence    from   the

prosecutor with no reason to believe that the prosecutor had or
knew of the evidence violated clearly established law.

1. The June 3, 1987, Statement By Myers

     The district court found that the June 3, 1987, statement by

Myers to Tate, Ikner, and Benson was exculpatory2 for McMillian and

that a genuine issue exists as to whether Tate, Ikner, and Benson

intentionally withheld the statement from the prosecutor.   In the

statement, Myers denied being involved in the Morrison murder or

knowing who committed the murder. He rejected repeated suggestions

that McMillian had put him up to killing Morrison.   He offered to

take a polygraph test.     The district court determined that the

statement was clearly exculpatory because it contradicted the trial

testimony of Myers, who was the prosecution's key witness against

McMillian.   The court found that the Morrison murder prosecutor

never received the tape of the statement because it was placed in

the Pittman murder file.    The court concluded that a reasonable

jury could infer from the circumstances that Tate, Ikner, and

Benson intended to keep the statement from the Morrison prosecutor.

2. The Isaac Daily Statement

     The district court found that a statement by Isaac Daily to

Benson and the Escambia County district attorney was exculpatory

for McMillian and that a genuine issue exists as to whether Benson

intentionally withheld the statement from the prosecutor.    Daily

states that, while at the Monroe County Jail, he overheard Myers

say that Myers and Kelly had killed Vicky Pittman and that Myers

     2
      The district court's opinion uses the term "exculpatory" to
refer to both exculpatory evidence and impeachment evidence that
is required to be disclosed under Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. We use
the district court's terminology in describing its findings.
and Kelly were plotting to blame the Pittman murder on McMillian.

The court determined that Daily's statement was clearly exculpatory

because    it    showed    that    Myers   was    willing   to    falsely     accuse

McMillian    of       murder.     The   court    found   that    the    evidence    is

undisputed that the Morrison murder prosecutor never received the

tape of the statement because it was placed in the Pittman murder

file.   The court concluded that a reasonable jury could infer from

the circumstances that Benson intended to keep the Daily statement

from the Morrison prosecutor.              The court found no evidence that

Tate and Ikner were involved in the suppression of the Daily

statement.

3. The Miles Jackson Statement

     The district court found that a statement by Miles Jackson to

Alabama Bureau of Investigation agent Barnett was exculpatory for

McMillian and that a genuine issue exists as to whether Tate,

Ikner, and Benson intentionally withheld the statement from the

Morrison    prosecutor.          Jackson   stated    that   he    was    in   Jackson

Cleaners at 10:30 on the morning of the murder and that Ronda

Morrison was alive and well. The court determined that the Jackson

statement       was    clearly    exculpatory     because   it    undermined       the

prosecution's theory of the timing of Morrison's murder.                           The

prosecution's theory was that the murder occurred between 10:15,

when another witness saw Morrison alive, and 10:45 or 10:50, when

Morrison was found dead.          The district court reasoned that Myers's

testimony as to the events of the morning sounded credible with a

half-hour window but much less credible if the events must have

occurred in fifteen minutes.
C. Count Three:      Coercion of False Testimony

      In Count Three, McMillian alleges that Tate, Ikner, and Benson

pressured      various    witnesses   to    give   false     testimony    against

McMillian and threatened various witnesses to keep them from giving

exculpatory testimony for McMillian. The district court found that

McMillian had presented sufficient evidence to raise a genuine

issue of fact as to whether Tate, Ikner, and Benson pressured Myers

to   testify    falsely    against    McMillian.       Holding     that   clearly

established law prohibited state officials from using perjured

testimony to convict a defendant, the district court rejected Tate,

Ikner, and Benson's motion for summary judgment based on qualified

immunity.

      The court also found a genuine issue as to whether Tate

threatened Karen Kelly in an effort to influence her potential

testimony.       The district court found that Kelly had initially

implicated Myers, not McMillian, in the Morrison murder, and thus

was a potential defense witness.3           The district court held that any

interference with Kelly would be a per se violation of McMillian's

clearly     established    right    for    his   witnesses   to   be    free   from

government interference.          That Kelly was not called to testify at

trial is irrelevant, according to the district court.

D. The State Law Claims

      The    district     court    held    that    McMillian      had   presented

sufficient evidence to raise a genuine issue of material fact for

trial on McMillian's state law claims of malicious prosecution

      3
      As we explain in section IV.E., the district court
apparently misread the account of Kelly's statement. Kelly was
referring to the Pittman murder, not the Morrison murder.
(Count Twenty), abuse of process (Count Twenty-One), and outrage

(Count Twenty-Six) against Tate, Ikner, and Benson.                  In addition,

the court held that there is a genuine issue of fact on another

outrage claim against Tate (Count Twenty-Five).                      The district

rejected    Tate,      Ikner,   and    Benson's     arguments   that    they    are

protected by state law immunity.

                            III. ISSUES ON APPEAL

     We address five issues on this appeal:                  (1) whether Tate,

Ikner, and Benson are entitled to qualified immunity on McMillian's

claim that their actions in causing his pretrial detention on death

row violated his due process rights under the Fourteenth Amendment;

(2) whether Tate, Ikner, and Benson are entitled to qualified

immunity on McMillian's claim that they withheld exculpatory and

impeachment evidence from him in violation of due process;                      (3)

whether Tate, Ikner, and Benson are entitled to qualified immunity

on McMillian's claim that they knowingly used Myers's perjured

testimony to convict him in violation of due process;                 (4) whether

Tate is entitled to qualified immunity on McMillian's claim that he

intimidated Kelly into not giving exculpatory testimony;                  and (5)

whether    Tate   is    entitled      to   state   law   sovereign   immunity    on

McMillian's state law claims.4

     4
      In addition, Tate, Ikner, and Benson argue that: (1) they
are entitled to quasi-judicial immunity on McMillian's claim that
their actions in causing his pretrial detention on death row
violated his due process rights under the Fourteenth Amendment;
and (2) they are entitled to quasi-prosecutorial immunity on
McMillian's claim that they withheld exculpatory evidence from
the prosecutor in violation of due process. These arguments are
meritless and do not warrant further discussion. See 11th Cir.R.
36-1.

            Ikner and Benson also argue that the district court
                                     IV. DISCUSSION

A. General Principles of Qualified Immunity

           In all but exceptional cases, qualified immunity protects

government officials performing discretionary functions5 from the

burdens of civil trials and from liability.               Lassiter v. Alabama A

& M University, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc).                  Only

when an official's conduct violates "clearly established statutory

or constitutional rights of which a reasonable person would have

known" is the official not protected by qualified immunity.                     Id.

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396 (1982)). To be "clearly established," the law

that the government official allegedly violated "must have earlier

been developed in such a concrete and factually defined context to

make       it   obvious   to   all   reasonable    government   actors,   in    the

defendant's place, that "what he is doing' violates federal law."

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.

3034, 3039, 97 L.Ed.2d 523 (1987)).               "For qualified immunity to be

surrendered, pre-existing law must dictate, that is, truly compel

... the conclusion for every like-situated, reasonable government

agent that what defendant is doing violates federal law in the

circumstances."           Id. at 1150.     The plaintiff bears the burden of

demonstrating that the defendant violated clearly established law.


       erred in denying summary judgment on the state law tort
       claims in Count Twenty (malicious prosecution), Count
       Twenty-One (abuse of process), and County Twenty-Six
       (outrage). They raise various nebulous arguments about
       state law immunity. Their arguments are meritless and do
       not warrant further discussion. See 11th Cir.R. 36-1.
       5
      It is undisputed that Tate, Ikner, and Benson were engaged
in discretionary functions at all relevant times.
Jordan v. Doe, 38 F.3d 1559, 1565 (11th Cir.1994) (quotation marks

and citation omitted).

B. Scope of Appellate Jurisdiction Over Interlocutory Appeals of
     Denials of Qualified Immunity Defense

       A district court's order denying a defense of qualified

immunity is an appealable final decision within the meaning of 28

U.S.C. § 1291 to the extent that it turns on a question of law.

Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86

L.Ed.2d 411 (1985). The Supreme Court recently construed this rule

allowing immediate appeals of denials of qualified immunity to

permit immediate appeals only of the purely legal issues of what

law was "clearly established" and whether the facts alleged violate

that law.   Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151,

2156, 132 L.Ed.2d 238 (1995) (citing Mitchell, 472 U.S. at 528 & n.

9, 105 S.Ct. at 2817 & n. 9).     The Supreme Court held that when a

district court denies summary judgment in a qualified immunity case

based on its resolution of a fact-related dispute—such as whether

the evidence is sufficient to show a genuine issue of fact for

trial—the order is not an immediately appealable final decision.

Id.

      McMillian contends that many of the arguments that Tate,

Ikner, and Benson raise on appeal are, in substance, challenges to

the district court's resolution of factual disputes.          As such,

McMillian contends, these issues are not cognizable on this appeal

under Johnson v. Jones.     Though McMillian's argument finds some

support in Johnson, this circuit has not construed Johnson to bar

immediate   appellate    review   of   fact-based   rulings   in   all

circumstances, and the Supreme Court's subsequent decision in
Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773

(1996), confirms that Johnson did not work such a constriction of

interlocutory       appellate   jurisdiction       over     orders     denying   a

qualified immunity defense.

        In Johnson v. Clifton, 74 F.3d 1087 (11th Cir.1996), petition

for cert. filed, (U.S. Apr. 25, 1996) (No. 95-1743), we held that

an appellate court may address a district court's resolution of

factual issues when the core qualified immunity issue is also

raised on appeal from a denial of summary judgment.                  Id. at 1091.

We reasoned that an appellate court may address the factual issue

of what conduct the defendant engaged in because the issue is a

necessary part of the core qualified immunity analysis of whether

the defendant's conduct violated clearly established law. Id. See

also Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.1996);                 Dolihite

v. Maughon, 74 F.3d 1027, 1034 n. 3 (11th Cir.1996).                    If, as in

Johnson v. Jones, only the factual issue of evidentiary sufficiency

is raised on appeal, a final, collateral order is not being

appealed, and the appellate court has no jurisdiction to hear the

case.    Johnson v. Clifton, 74 F.3d at 1091.               But so long as the

core    qualified    immunity   issue    is   raised   on    appeal,    a   final,

collateral order is being appealed, and the appellate court has

jurisdiction to hear the case, including challenges to the district

court's determination that genuine issues of fact exist as to what

conduct the defendant engaged in.         Id.;     Cottrell, 85 F.3d at 1485-

86.

        Even when the core qualified immunity issue is raised,

however,    we      may   decline   to    review     the     district       court's
determination of the facts for purposes of summary judgment.        See

Johnson v. Clifton, 74 F.3d at 1039.         "[W]e are not required to

make our own determination of the facts for summary judgment

purposes;     we have discretion to accept the district court's

findings, if they are adequate."        Cottrell, 85 F.3d at 1486,

(citing Johnson v. Jones, --- U.S. at ----, 115 S.Ct. at 2159).     We

follow that approach here,6 for the district court's determination

of the genuine issues for trial is exhaustive and detailed. Rather

than undertaking our own review of the record in the light most

favorable to McMillian to determine the facts for purposes of

summary judgment, we accept the district court's determination of

the relevant facts for purposes of summary judgment and, using

those facts, analyze whether Tate, Ikner, and Benson's conduct

violated clearly established law.     See Cottrell, 85 F.3d at 1486-

87, (following same approach).

     We     emphasize   that   we   accept     the   district   court's

determinations of the facts only for purposes of this interlocutory

appeal.   At trial, it may turn out that these "facts" are not the

real "facts."    As we explained in Cottrell,

     a defendant who does not win summary judgment on qualified
     immunity grounds may yet prevail on those grounds at or after
     trial on a motion for a judgment as a matter of law.... What
     we decide in this interlocutory appeal is only whether the
     district court should have granted      summary judgment on
     qualified immunity grounds.

85 F.3d at 1487 (citations omitted) (quoting Kelly v. Curtis, 21

     6
      We make one exception to this approach. The district
court's finding as to the content of a statement by Karen Kelly
appears to have been based entirely on a misreading of the
record. The misreading is obvious, and McMillian does not
dispute that the finding is based on a misreading. Thus, in
section IV.E., we simply correct this mistake.
F.3d 1544, 1546-47 (11th Cir.1994)).               Johnson v. Jones does not

affect the scope of appellate review after final judgment.

C. Pretrial Detention on Death Row

     In Count One, McMillian alleges that his incarceration on

death     row    while    a   pretrial   detainee       violated         his   clearly

established due process rights.               McMillian alleges that Tate,

Ikner, and Benson conspired with DOC officials to place and keep

McMillian on death row prior to his trial for the purpose of

punishing and intimidating him.

1. McMillian States a Fourteenth Amendment Claim

        Tate contends that Count One does not state a Fourteenth

Amendment claim.         "A necessary concomitant to the determination of

whether    the    constitutional      right     asserted    by   a   plaintiff     is

"clearly established' at the time the defendant acted is the

determination of whether the plaintiff has asserted a violation of

a constitutional right at all."           Jordan, 38 F.3d at 1564 (quoting

Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114

L.Ed.2d 277 (1991)).          Thus, before we address whether Tate, Ikner,

and Benson violated clearly established law in allegedly causing

McMillian's      confinement     on   death     row,   we   examine       McMillian's

allegations       to     determine    whether     he   asserts       a     cognizable

constitutional claim.          Id.

     Tate argues that McMillian cannot state a Fourteenth Amendment

claim simply by showing that he, Ikner, and Benson subjectively

intended to punish McMillian by causing his pretrial detention on

death row.        According to Tate, McMillian states a Fourteenth

Amendment claim only if the pretrial detention was not rationally
related to a legitimate non-punitive governmental objective. Tate,

Ikner, and Benson argue that McMillian's transfer to death row was

rationally      related     to   the    legitimate        objective     of   ensuring

McMillian's safety.

         Due process prohibits a state from punishing a pretrial

detainee at all until he is lawfully convicted of a crime.                     Bell v.

Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447

(1979);        Hamm   v.   DeKalb     County,     774    F.2d   1567,    1572   (11th

Cir.1985), cert. denied, 475 U.S. 1096, 106 S.Ct. 1492, 89 L.Ed.2d

894 (1986). To determine whether a condition of pretrial detention

amounts to punishment, we must decide whether the condition is

imposed for the purpose of punishment or whether it is incident to

some legitimate governmental purpose.                  Bell, 441 U.S. at 538, 99

S.Ct. at 1873.        Contrary to Tate's contention, a showing of an

intent    to    punish     suffices     to     show    unconstitutional      pretrial

punishment.      Bell, 441 U.S. at 538 & n. 20, 99 S.Ct. at 1873-74 &

n. 20;    Hamilton v. Lyons, 74 F.3d 99, 104 (5th Cir.1996) (stating

that expressed intent by officers to punish pretrial detainee shows

unconstitutional pretrial punishment);                  Hause v. Vaught, 993 F.2d

1079, 1085 (4th Cir.1993) (same), cert. denied, --- U.S. ----, 114

S.Ct. 712, 126 L.Ed.2d 668 (1994).                    An intent to punish may be

inferred when a condition of pretrial detention is not reasonably

related to a legitimate governmental goal;                 for example, an intent

to punish may be inferred when the condition is excessive in

relation to the legitimate purpose assigned to it.                    Bell, 441 U.S.

at 538, 99 S.Ct. at 1874;           Hamilton, 74 F.3d at 104.

         The   district     court      found    that    McMillian     had    presented
sufficient evidence to raise a genuine issue of fact as to whether

Tate, Ikner, and Benson conspired to detain McMillian on death row

for the purpose of punishing him.         To the extent that Tate, Ikner,

and Benson argue that McMillian was transferred for the purpose of

ensuring his safety, they simply take issue with the district

court's conclusion that McMillian has raised a genuine issue of

fact as to whether the purpose of the transfer was punishment.                 As

we have explained, we do not address on this appeal challenges to

the district court's factual determinations.                 See section IV.B.7

To the extent that Tate, Ikner, and Benson argue that a pretrial

detainee may be subjected to adverse8 conditions of confinement for

the   purpose    of   punishment   so    long   as   there    is   a    legitimate

alternative reason for the confinement, regardless of whether the

legitimate reason in fact motivated the defendants' actions, they

are   simply    wrong.    An   express    purpose    to   punish       establishes

unconstitutional pretrial punishment.           Bell, 441 U.S. at 538-39 &

n. 20, 99 S.Ct. at 1873-74 & n. 20;             Hamilton, 74 F.3d at 104;

Hause, 993 F.2d at 1085.9      Here, the district court concluded that

      7
      For the same reason, we reject Ikner and Benson's
contention that they played no role in McMillian's placement on
death row. The district court found that a genuine issue exists
as to whether Ikner and Benson lied about the results of their
investigation of the break-in at the Conecuh County jail and
conspired with Tate and DOC officials to put McMillian on death
row.
      8
      Tate suggests that being confined on death row is no worse
than being confined at the local jail. Such a suggestion borders
on the frivolous.
      9
      Whether a condition of confinement is related to a
legitimate governmental purpose is relevant as circumstantial
evidence of whether the condition was imposed for the purpose of
punishment. At trial, Tate, Ikner, and Benson may present
evidence and argue that they transferred McMillian to death row
McMillian had presented sufficient evidence of a purpose to punish

to satisfy his burden on summary judgment. Therefore, we hold that

McMillian states a claim for unconstitutional pretrial punishment.

2. Clearly Established Law Prohibited Placing a Pretrial Detainee
     on Death Row for the Purpose of Punishment

         Qualified immunity shields Tate, Ikner, and Benson from the

burdens of trial and from liability unless transferring McMillian

to   death   row   for     the    purpose   of    punishment   violated     clearly

established law.         Lassiter, 28 F.3d at 1149.            Tate, Ikner, and

Benson    argue    that     the    law   governing     whether       conditions   of

confinement       amount    to     pretrial      punishment    was    not   clearly

established at the time of McMillian's transfer.

      When McMillian was transferred to Holman's death row, clearly

established law in this circuit prohibited imposing on a pretrial

detainee conditions of detention that amount to punishment.                       See

Bell, 441 U.S. at 535, 99 S.Ct. at 1872;               Hamm, 774 F.2d at 1572.

The issue for qualified immunity purposes, however, is not whether

the due process right not to be punished before conviction was

clearly established.         The proper inquiry is whether it was clearly

established that transferring a pretrial detainee to death row for

the purpose of punishment violates due process.

      To be "clearly established," the law that the government

official allegedly violated "must have earlier been developed in

such a concrete and factually defined context to make it obvious to


not to punish him but rather for the legitimate purpose of
ensuring his safety. Defendants cannot, however, obtain summary
judgment simply by arguing that a legitimate purpose for the
transfer exists when there is a genuine issue as to whether
McMillian was transferred for that legitimate purpose or for the
unconstitutional purpose of punishment.
all reasonable government actors, in the defendant's place, that

"what he is doing' violates federal law."               Lassiter, 28 F.3d at

1149 (quotation marks and citation omitted). We have found no case

with facts similar to McMillian's allegations.                 The pre-existing

case law prohibiting conditions of pretrial detention that amount

to punishment involved conditions such as double-bunking, mail

restrictions, search policies, Bell, 441 U.S. 520, 99 S.Ct. 1861,

overcrowding, unsanitary food, and lack of adequate medical care,

Hamm, 774 F.2d 1567.

      Nevertheless, for the law to be clearly established, a court

need not have found the very action in question unlawful;                  what is

essential is that the action's unlawfulness be apparent in light of

pre-existing law.        Jordan, 38 F.3d at 1566.           We do not view the

absence    of   a   case    factually    similar      to     the     extraordinary

allegations in this case as an indication that the law was not

clearly established that confining a pretrial detainee on death row

to punish him is unconstitutional.            Bell 's prohibition on any

pretrial punishment, defined to include conditions imposed with an

intent to punish, should have made it obvious to all reasonable

officials in Tate, Ikner, and Benson's place that holding McMillian

on death row to punish him before he was tried violated McMillian's

due process rights.        If McMillian's allegations are true, Tate,

Ikner,    and   Benson     violated     McMillian's        clearly    established

constitutional rights. Therefore, they are not entitled to summary

judgment based on qualified immunity.

         Tate   contends   that   his    purpose   in      causing    McMillian's

detention on death row may not be considered in determining whether
he is entitled to qualified immunity.            According to Tate, Harlow 's

objective reasonableness standard precludes any inquiry into a

defendant's subjective intent, even when intent is an element of

the underlying constitutional claim.              Thus, Tate argues that we

must    ignore     the    existence   of   a   genuine    issue    as    to   whether

defendants transferred McMillian to death row for the purpose of

punishment.       The only question for purposes of qualified immunity,

Tate contends, is whether a "reasonable officer, knowing what Tate

knew about the Conecuh County break-in, could have thought it

lawful to request McMillian's transfer."                (Appellant Tate's Br. at

38.)        In other words, Tate contends that he is entitled to

qualified immunity if some reasonable official, acting with no

intent      to   punish   McMillian,   could     have    thought    it    lawful   to

transfer McMillian to death row in light of the break-in.

       Our precedent compels us to reject Tate's contention.                    Like

every other circuit that has considered the issue, we have held

that intent or motivation may not be ignored when intent or

motivation is an essential element of the underlying constitutional

violation.        Edwards v. Wallace Community College, 49 F.3d 1517,

1524 (11th Cir.1995).10 A purpose to punish is an essential element

       10
      Accord, Tompkins v. Vickers, 26 F.3d 603, 607 (5th
Cir.1994); Branch v. Tunnell, 937 F.2d 1382, 1385-86 (9th
Cir.1991); Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir.1990)
(en banc), cert. denied, 501 U.S. 1204, 111 S.Ct. 2796, 115
L.Ed.2d 970 (1991); Siegert v. Gilley, 895 F.2d 797, 801-812
(D.C.Cir.1990), aff'd on other grounds, 500 U.S. 226, 111 S.Ct.
1789, 114 L.Ed.2d 277 (1991); Poe v. Haydon, 853 F.2d 418, 431
(6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102
L.Ed.2d 780 (1989); Turner v. Dammon, 848 F.2d 440, 445 n. 3
(4th Cir.1988); Pueblo Neighborhood Health Centers, Inc. v.
Losavio, 847 F.2d 642, 648 (10th Cir.1988); Musso v. Hourigan,
836 F.2d 736, 743 (2nd Cir.1988).
of a pretrial punishment claim under the Fourteenth Amendment.

Hence, Tate, Ikner, and Benson's purpose must be considered in this

case, just as discriminatory intent must be considered when an

equal protection violation is asserted, see Ratliff v. DeKalb

County, Ga., 62 F.3d 338, 341 (11th Cir.1995);   Edwards, 49 F.3d at

1524, and intent or motivation must be considered when certain

First Amendment claims are asserted, see, e.g., Tompkins, 26 F.3d

at 607 (alleged retaliatory transfer of government employee);

Losavio, 847 F.2d at 648 (alleged interference with speech);

Musso, 836 F.2d at 743 (alleged content-based censorship at school

board meeting).   When Tate, Ikner, and Benson's purpose to punish

is considered, there is no question that their alleged conduct

violated clearly established law.11

D. Suppression of Exculpatory and Impeachment Evidence

     In Count Two, McMillian alleges that Tate, Ikner, and Benson

withheld exculpatory and impeachment evidence in violation of his

due process rights under the Fourteenth Amendment.     The district

court found that McMillian had presented sufficient evidence to


          Tate acknowledges our precedent and this overwhelming
     persuasive authority but contends that the Edwards court and
     all of the other courts that have considered the issue are
     wrong. We are bound by Edwards and, in any event, are
     unpersuaded by Tate's argument.
     11
      We note that neither Tate, Ikner, nor Benson contends that
the district court applied the wrong standard on summary judgment
in evaluating McMillian's evidence of their purpose. Therefore,
we need not address the quantum or quality of evidence of intent
necessary to overcome a defendant's motion for summary judgment
when the motion is based on qualified immunity grounds. See,
e.g., Tompkins, 26 F.3d at 608-609; Hull v. Cuyahoga Valley Bd.
of Educ., 926 F.2d 505, 512 (6th Cir.), cert. denied, 501 U.S.
1261, 111 S.Ct. 2917, 115 L.Ed.2d 1080 (1991); Losavio, 847 F.2d
at 649.
raise genuine issues of material fact as to whether Tate, Ikner,

and Benson intentionally withheld several pieces of exculpatory and

impeachment evidence from the Morrison prosecutor.      The district

court rejected defendants' claims of qualified immunity, holding

that intentionally withholding exculpatory or impeachment evidence

from the prosecutor with no reason to believe that the prosecutor

had or knew of the evidence violated clearly established law under

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963).
1. McMillian States a Claim for a Brady Violation12

          Brady protects an accused's due process right to a fair

trial.     Id. at 87, 83 S.Ct. at 1197.   In Brady, the Supreme Court

held that "the suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence


     12
      We note that neither Tate, Ikner, nor Benson question
whether a claim for a Brady violation may be asserted under §
1983. Though we have never explicitly addressed whether claims
for Brady violations are cognizable under § 1983, several other
circuits have permitted § 1983 suits for money damages to be
asserted for Brady violations. See, e.g., Carter v. Burch, 34
F.3d 257, 263-64 (4th Cir.1994) (affirming jury verdict against
police officer for withholding exculpatory evidence that should
have been disclosed under Brady ), cert. denied, --- U.S. ----,
115 S.Ct. 1101, 130 L.Ed.2d 1068 (1995); McDonald v. State of
Illinois, 557 F.2d 596, 603 (7th Cir.) (holding that Brady
violation states claim under § 1983), cert. denied, 434 U.S. 966,
98 S.Ct. 508, 54 L.Ed.2d 453 (1977); Hilliard v. Williams, 516
F.2d 1344, 1349-50 (6th Cir.1975) (holding that allegation that
state investigator withheld exculpatory evidence in violation of
Brady states § 1983 claim), vacated on other grounds, 424 U.S.
961, 96 S.Ct. 1453, 47 L.Ed.2d 729 (1976), on remand, 540 F.2d
220, 222 (1976) (affirming judgment against investigator);
Carter v. Harrison, 612 F.Supp. 749, 758 (E.D.N.Y.1985) (holding
that claim against police officer for failing to turn exculpatory
evidence over to prosecutor is cognizable under § 1983). We
agree that § 1983 provides a cause of action for a violation of
the due process right to a fair trial that is protected by Brady.
is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution."    Id., 373 U.S. at 87-

91, 83 S.Ct. at 1197-98.      Brady requires disclosure of both

exculpatory and impeachment evidence that is material.    See Giglio

v. United States,   405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31

L.Ed.2d 104 (1972).     Evidence is material if its suppression

undermines confidence in the outcome of the trial.         Kyles v.

Whitley, --- U.S. ----, ----, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490

(1995).

      The Supreme Court has not explicitly addressed the disclosure

duties of the police and other investigators under Brady.       This

court has noted, however, that investigators have no duty to

disclose exculpatory and impeachment evidence to the defense.

Kelly v. Curtis, 21 F.3d at 1552. 13   The Constitution imposes the

duty to disclose exculpatory and impeachment evidence to the

defense on the prosecutor.   Id.   See also Walker v. City of New

York, 974 F.2d 293, 299 (2nd Cir.1992), cert. denied, 507 U.S. 961,

113 S.Ct. 1387, 122 L.Ed.2d 762 (1993).14      Investigators satisfy

     13
      Though Kelly was a § 1983 action for illegal detention,
not for a Brady violation, we drew on Brady principles to define
a police officer's duties to disclose evidence.
     14
      The Second Circuit has advanced sound reasons for placing
the obligation to disclose evidence to the defense on the
prosecutor:

          It is appropriate that the prosecutors, who possess the
          requisite legal acumen, be charged with the task of
          determining which evidence constitutes Brady material
          that must be disclosed to the defense. A rule
          requiring the police to make separate, often difficult,
          and perhaps conflicting, disclosure decisions would
          create unnecessary confusion. It also would ignore the
          fact that the defendant's appropriate point of contact
          with the government during litigation is the prosecutor
their obligations under Brady when they turn exculpatory and

impeachment evidence over to the prosecutor.                  Walker, 974 F.2d at

299;    Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir.1988).

If they have reason to believe that the prosecutor already has the

exculpatory and impeachment evidence, though, investigators have no

duty to disclose the evidence.             Kelly, 21 F.3d at 1552.

        On appeal, neither Tate, Ikner, nor Benson disputes that an

investigator     has    a   duty   under    Brady   to   turn    exculpatory    and

impeachment evidence over to the prosecutor.               Nor do they dispute

that    the   evidence      that   they    allegedly     suppressed     was   Brady

material.     Instead, Tate argues that he had reason to believe that

the prosecutor knew about the exculpatory and impeachment evidence

because Ikner, the prosecutor's investigator, knew of the evidence.

Ikner and Benson argue that Brady did not require them to turn the

evidence at issue over to the prosecutor in the circumstances of

this case.15     Ikner and Benson also argue that they could not have

known, when they acquired the evidence, that the evidence would

turn out to be exculpatory.

       In arguing that he had reason to believe that the prosecutor

was aware of the exculpatory and impeachment evidence, Tate relies

on our decision in Kelly v. Curtis, 21 F.3d 1544.                     Plaintiff in

Kelly sued      three    police    detectives    under    §    1983   for   illegal

              and not those who will be witnesses against him.

       Walker, 974 F.2d at 299.
       15
      Ikner and Benson also dispute the district court's
determination that a genuine issue exists as to whether they
intentionally withheld evidence. As we have explained, we do not
address on this appeal challenges to the district court's
fact-based rulings. See section IV.B.
detention, among other claims.   Plaintiff had spent a year in jail

on drug charges that eventually were dropped.   He alleged that the

detectives concealed from the prosecutor a lab report revealing

that the substance on his possession was not cocaine. The district

court denied the detectives' motion for summary judgment, holding

that the detectives had a legal obligation to ensure that the judge

or prosecutor was aware of all exculpatory evidence.   Id. at 1549.

We reversed, holding that the police have no duty to disclose

exculpatory evidence when they have reason to believe that the

prosecutor already is aware of the evidence.     Id. at 1552.     In

Kelly, the detectives had reason to believe that the prosecutor was

aware of the lab report because the report listed the district

attorney's office as a recipient and the state lab had a practice

of sending a copy directly to the prosecutor.   Id.

     Tate argues that he had even more reason to believe that the

prosecutor was aware of the exculpatory and impeachment evidence

than the detective in Kelly because Ikner, who was part of the

prosecutor's office, knew of the evidence.       We agree that a

prosecutor's investigator's awareness of exculpatory or impeachment

evidence usually will give other investigators reason to believe

that the prosecutor is aware of the evidence.      But Tate cannot

avail himself of that argument, for he allegedly conspired with

Ikner to withhold the evidence from the prosecutor. Thus, far from

having reason to believe that the prosecutor was aware of the

evidence, Tate allegedly knew that the prosecutor was not aware of

the evidence.   Kelly, therefore, is inapplicable to this case.

      Ikner and Benson argue that they did not violate Brady
because the exculpatory and impeachment evidence was acquired

during the Pittman murder investigation rather than during the

Morrison investigation.        Thus, they argue, the evidence properly

was left in the Pittman file rather than in the Morrison file.

This argument is meritless.         Ikner and Benson were investigating

the Pittman murder contemporaneously with the Morrison murder.

McMillian and Myers were charged in both murders.           Regardless of

which murder was being investigated at the precise moment the

evidence was acquired, Ikner and Benson had an obligation under

Brady to give evidence that was favorable to McMillian in the

Morrison murder to the Morrison prosecutor.16

2.   Clearly Established Law Prohibited Police             Suppression    of
      Exculpatory and Impeachment Evidence

       Tate, Ikner, and Benson are protected by qualified immunity

unless     their     actions    violated   clearly    established      law.

Pre-existing law as of 1987 and 1988, when they acted, must have

made it obvious to every like-situated, reasonable government agent

that withholding the exculpatory and impeachment evidence from the

Morrison    murder     prosecutor     violated   federal    law   in     the

circumstances.       Lassiter, 28 F.3d at 1150.        Citing the Fifth

Circuit's decision in Geter v. Fortenberry,          849 F.2d 1550, 1559

(5th Cir.1988), the district court held that in 1987 and 1988 a


      16
      Ikner and Benson also argue that they reasonably could
have believed that McMillian's attorneys, who were representing
him in both the Morrison murder and the Pittman murder, would
pursue discovery in the Pittman murder and thus find in the
Pittman file the material favorable to McMillian in the Morrison
murder. This argument should be addressed to the factfinder at
trial; the district court determined that there is evidence that
Ikner and Benson placed the evidence in the Pittman file for the
purpose of concealing it from McMillian.
police officer had a clearly established duty under Brady to not

intentionally withhold exculpatory or impeachment evidence from the

prosecutor.

     We agree with the Fifth Circuit that clearly established law

in 1987 and 1988 prohibited the police from concealing exculpatory

or impeachment evidence.      See Geter, 849 F.2d at 1559.17    Brady and

its progeny made clear that an accused's due process rights are

violated when the prosecution fails to disclose exculpatory or

impeachment evidence to the defense, regardless of whether the

prosecutor himself acted in bad faith or even knew of the evidence.

See Giglio v. United States, 405 U.S. at 153-54, 92 S.Ct. at 766.

Our case law clearly established that an accused's due process

rights    are   violated   when   the   police   conceal   exculpatory   or

impeachment evidence. Freeman v. State of Georgia, 599 F.2d 65, 69

(5th Cir.1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62

L.Ed.2d 641 (1980).18      We had explained:

     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 ... The duty to
     disclosure [sic] is that of the state, which ordinarily acts
     through the prosecuting attorney; but if he too is the victim
     of police suppression of the material information, the state's
     failure is not on that account excused.

Id. at 69-70 (citations omitted).         See also Ross v. Hopper,       716

F.2d 1528, 1534 (11th Cir.1983) (holding that any information


     17
      Geter itself cannot clearly establish that Tate, Ikner,
and Benson had a duty to turn the exculpatory and impeachment
evidence over to the prosecutor because Geter was decided by
another circuit.
     18
      Decisions of the former Fifth Circuit rendered prior to
October 1, 1981, are binding on this court. Bonner v. City of
Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
obtained by law enforcement officers in course of investigation

must be attributed to prosecutor for purposes of Brady violation);

United States v. Antone,      603 F.2d 566, 569-70 (5th Cir.1979)

(imputing knowledge of state investigators to federal prosecutors

in   determining   whether   there   was   Brady   violation).     Thus,

pre-existing   law   in   this   circuit   clearly   established   that

withholding Brady material from the prosecutor, and thus preventing

its disclosure to the defense, violates an accused's due process

rights.19
       Our conclusion that Tate, Ikner, and Benson's duties under

Brady were clearly established does not end the inquiry.             It

remains to be determined whether a reasonable officer in Tate,

Ikner, and Benson's position would know, when they acted, that the

evidence withheld from the prosecutor was material, that is, that

withholding the evidence would undermine confidence in the outcome

of McMillian's trial.     For if a reasonable officer would not know

that the exculpatory and impeachment evidence was material, he

      19
      Though we had made it clear that the police cause a Brady
violation by withholding material exculpatory or impeachment
evidence, we had never squarely held that it is the police who
violate Brady, as opposed to "the state," when the police fail to
turn exculpatory evidence over to the prosecutor. Several other
courts had held that the police violate Brady by failing to give
exculpatory or impeachment evidence to the prosecutor. See
Hilliard v. Williams, 516 F.2d at 1349-50; Carter v. Harrison,
612 F.Supp. 749, 757-58 (E.D.N.Y.1985). See also Campbell v.
State of Maine, 632 F.Supp. 111, 121-22 (D.Me.1985) (noting that
police officer in possession of exculpatory evidence has duty to
turn it over to prosecutor), aff'd, 787 F.2d 776 (1st Cir.1986);
Hauptmann v. Wilentz, 570 F.Supp. 351, 389 (D.N.J.1983) (noting
that police have duty to disclose exculpatory evidence to the
prosecutor), aff'd, 770 F.2d 1070 (3rd Cir.1985), cert. denied,
474 U.S. 1103, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986). Neither
Tate, Ikner, nor Benson contend that the absence of such a
holding in this circuit rendered their duties under Brady any
less clearly established.
would not know that "what he is doing" violates federal law in the

circumstances.      See Lassiter, 28 F.3d at 1149.

           The standard of materiality at the time Tate, Ikner, and

Benson acted is the same standard applicable today.              See Kyles v.

Whitley, --- U.S. at ---- - ----, 115 S.Ct. at 1565-66.             Evidence

is   material    and   therefore   must   be    disclosed   if   there   is   a

reasonable probability that, if the evidence is suppressed, the

result of the proceeding will be different.         Id. at ----, 115 S.Ct.

at 1565 (quoting United States v. Bagley, 473 U.S. 667, 682, 105

S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). A reasonable probability

of a different result is shown when the suppression of evidence

would undermine confidence in the outcome of the trial.            Id. at ---

-, 115 S.Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at

3381).       In evaluating materiality, suppressed evidence must be

evaluated collectively, not item-by-item.           Id. at ----, 115 S.Ct.

at 1567.

      The district court held that several pieces of withheld

evidence were clearly exculpatory.20           However, the district court

did not ask whether every reasonable official in the position of

Tate, Ikner, and Benson would understand that withholding those

particular pieces of evidence would undermine confidence in the

outcome of McMillian's trial.       The court viewed the evidence with

the benefit of hindsight, knowing what evidence actually was

presented at trial, and agreed with the Alabama Court of Criminal

Appeals that the evidence withheld was material.            But Tate, Ikner,

      20
      The district court's opinion uses "clearly exculpatory" to
refer to both exculpatory and impeachment evidence required to be
disclosed under Brady.
and Benson did not have the benefit of knowing exactly how the

totality of the evidence would play out at trial.            It is from their

perspective that the district court should have analyzed whether

the evidence was material, and we remand for the district court to

do so.21

E. Coercion of False Testimony

          The   district   court   found    that   McMillian   had   presented

sufficient evidence to raise a genuine issue of material fact as to

whether Tate, Ikner, and Benson coerced Myers into testifying

falsely against McMillian. The court reasoned that if Tate, Ikner,

and Myers indeed coerced Myers into perjuring himself, they knew

that Myers's testimony was false, and thus may be liable for

causing the state to use perjured testimony to convict McMillian.

The court rejected Tate, Ikner, and Benson's qualified immunity

defense     because   it    concluded      that    clearly   established   law

prohibited state officials from knowingly using perjured testimony

to convict a defendant.

     On appeal, Tate contends that his actions did not cause a

violation of clearly established law.                We disagree.      Clearly

established law prohibited a state from knowingly using perjured

testimony.       See Napue v. Illinois,       360 U.S. 264, 269, 79 S.Ct.


     21
      We are unable to determine from the complaint and record
exactly when it is that McMillian alleges that Tate, Ikner, and
Benson should have realized that the withheld evidence was
material. It is not clear whether McMillian's claim is that
Tate, Ikner, and Benson should have realized the evidence's
materiality when they acquired it, sometime later but before
trial, at trial as the evidence unfolded, or after trial. On
remand, the district court will have to determine McMillian's
precise claim before deciding whether a reasonable official would
have known that the suppressed evidence was material.
1173, 1177, 3 L.Ed.2d 1217 (1959);    Pyle v. Kansas, 317 U.S. 213,

216, 63 S.Ct. 177, 178-79, 87 L.Ed. 214 (1942);   Mooney v. Holohan,

294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935).     Tate

contends that the facts of these cases are not materially similar

to the facts here.     Again, we disagree.   The material fact, in

those cases and here, is that there is evidence that the state

knowingly used perjured testimony.22 If McMillian's allegations are

true, every reasonable official should have known that coercing

Myers to testify falsely would violate McMillian's constitutional

rights.

     Tate, Ikner, and Benson contend that Myers's testimony was not

false and, even if it was, they could not have known that it was

false.     However, the district court found that genuine issues of

fact exist as to whether Tate, Ikner, and Benson pressured Myers

into testifying falsely and as to whether he testified falsely. As

we have explained, we do not address challenges to such factual

rulings by the district court on this appeal.     See section IV.B.

         The district court also found that McMillian had presented


     22
      Tate contends that these cases established the standard
for "knowing use of perjured testimony" in criminal cases. He
argues that the standard for § 1983 liability for using perjured
testimony is different and, in any event, was not clearly
established. We disagree.

          Napue, Pyles, and Mooney clearly established the law.
     To the extent that Tate argues that we must look solely to §
     1983 cases to discover clearly established law, his argument
     is frivolous. Tate is correct to the extent that he argues
     that an official will not always be subject to § 1983
     liability for violating constitutional rights. But that is
     because he is protected by qualified immunity, not because
     constitutional standards vary depending on whether a
     constitutional violation is alleged in a criminal proceeding
     or a § 1983 action.
sufficient evidence to raise a genuine issue of fact as to whether

Tate threatened Karen Kelly. The district court described Kelly as

a potential defense witness because she initially implicated Myers,

but not McMillian, in the Morrison murder.              The court found it

irrelevant that the defense never called nor intended to call Kelly

to testify. The court held that clearly established law prohibited

the state from interfering with defense witnesses.

       Tate contends that McMillian has failed to state a claim for

a constitutional violation because McMillian has not alleged that

Kelly could have given any testimony favorable to McMillian.               He

argues that there is no evidence in the record that Kelly initially

implicated only Myers in the Morrison murder.            Tate contends that

the district court mistakenly read a statement by Kelly about the

Pittman murder to refer to the Morrison murder. McMillian does not

deny   that   the   district   court    misread   the   account   of   Kelly's

statement.     Instead, McMillian argues that the district court's

ruling is a fact-based ruling that we may not address on this

appeal under Johnson v. Jones.

       In this instance only, we depart from our approach of not

reviewing the district court's determination of the facts for

purposes of summary judgment.          The district court's determination

appears to be based entirely on a misreading of an account of a

statement by Kelly.     In it, Kelly initially implicates only Myers

in the Pittman murder, but the district court read the account to

refer to the Morrison murder.      McMillian does not contend that the

district court did not misread the account, and he points to no

other evidence that Kelly was a potential defense witness. Indeed,
McMillian's complaint does not even mention Kelly.              Thus, because

Kelly was not a potential defense witness, Tate did not violate

McMillian's clearly established rights in allegedly threatening

Kelly.     We hold that the district court erred in denying summary

judgment on the claim that Tate interfered with Kelly's potential

testimony.

F. Tate's Sovereign Immunity From State Law Claims

     The    district   court   found    that   McMillian        had   presented

sufficient evidence to create a genuine issue of material fact on

three state law claims against Tate, Ikner, and Benson:               malicious

prosecution (Count Twenty);     abuse of process (Count Twenty-One);

and outrage (Count Twenty-Six).        In addition, the court found that

a genuine issue exists as to a state law outrage claim against Tate

and the DOC defendants (Count Twenty-Five).            The court rejected

Tate's state law sovereign immunity and state law discretionary

immunity defenses, holding that neither form of state law immunity

shields officials sued for intentional or malicious wrongdoing in

their individual capacities.

      On appeal,23 Tate contends that Alabama sheriffs are protected

by sovereign immunity under § 14 of the Alabama Constitution, even

when they are sued in their individual capacities for malicious or

intentional    wrongdoing.24    According      to   Tate,   a    suit   may   be

     23
      We have jurisdiction over this appeal from the district
court's denial of state law immunity because the state law
immunity asserted is an immunity against suit. See Griesel v.
Hamlin, 963 F.2d 338, 340-41 (11th Cir.1992).
     24
      We note that Tate does not contend that the district court
erred in denying him discretionary immunity under Alabama law.
In addition, we reject as meritless Tate's contention that the
Eleventh Amendment bars suit against him in his individual
maintained against a sheriff only if it falls within one of five

limited categories.25         It is undisputed that McMillian's claims do

not fall within any of the five categories.

     We do not read the cases that Tate cites to establish that he

is immune from suit for the acts alleged in this case.                   The Alabama

Supreme Court cases establishing categories of suits that may be

maintained against state officials warn that the categories do not

exhaust   the   types    of    suits    against       state   officials       that    are

permissible under § 14 of the Alabama Constitution.                            Gill v.

Sewell, 356 So.2d 1196, 1198 (Ala.1978) ("This list was never

intended to be a comprehensive final list of those actions not

barred by Section 14.");         Aland v. Graham, 287 Ala. 226, 250 So.2d

677, 679 (1971) ("Without professing to cover every situation that

has arisen, there are four general categories of actions that we

have held do not come within the prohibition of Sec. 14.").                          More

importantly,    the     cases    on    which    Tate       relies    recognize       that

sovereign   immunity     applies       only    when    a   suit     against    a   state

official "is, in effect, one against the State."                         Karrick v.



capacity.
     25
      Quoting Parker v. Amerson, 519 So.2d 442, 442-43
(Ala.1987), Tate argues that a sheriff

            is immune from suit under Article I, § 14, Alabama
            Constitution of 1901, in the execution of the duties of
            his office, except for actions brought (1) to compel
            him to perform his duties, (2) to compel him to perform
            ministerial acts, (3) to enjoin him from enforcing
            unconstitutional laws, (4) to enjoin him from acting in
            bad faith, fraudulently, beyond his authority, or under
            mistaken interpretation of the law, or (5) to seek
            construction of a statute under the Declaratory
            Judgment Act if he is a necessary party for the
            construction of the statute.
Johnson, 659 So.2d 77, 79 (Ala.1995);             Alexander v. Hatfield, 652

So.2d 1142, 1143 (Ala.1994).

           McMillian's   claims   are   against    Tate    in    his   individual

capacity. While § 14 "cannot be circumvented by suing the official

or agent individually,"       Milton v. Espey, 356 So.2d 1201, 1202

(Ala.1978), § 14 does not necessarily immunize state officers from

individual civil liability.        Id. at 1203;     Gill, 356 So.2d at 1198.

"[A] state official may not escape individual liability for his

tort by arguing that his mere status as a state official cloaks him
with the state's constitutional immunity."                Barnes v. Dale,       530

So.2d 770, 781 (Ala.1988) (quotation marks and citation omitted).

To determine whether McMillian's suit is, in effect, against the

state and thus barred, we must consider the nature of the suit and

the   relief    demanded.     Phillips    v.   Thomas,     555    So.2d   81,   83

(Ala.1989);      Gill, 356 So.2d at 1198;         Aland, 250 So.2d at 679.26


      26
      Tate suggests that a suit against a sheriff always is a
suit against the state. One of the cases on which Tate relies
has language supporting that proposition. See Amerson, 519 So.2d
at 446 ("This Court has specifically held that a suit against a
sheriff is "essentially a suit against the state' and thus "not
maintainable.' ") (citing Montiel v. Holcombe, 240 Ala. 352, 199
So. 245 (1940)). We do not read Amerson to establish such an
absolute proposition because Amerson 's citation to Montiel
suggests a much more limited reading. Montiel simply held that a
suit against a sheriff to enjoin a criminal prosecution was
essentially a suit against the state. Montiel, 199 So. at 245.

           Tate also relies on our decision in Carr v. City of
      Florence, Ala., 916 F.2d 1521, 1523 (11th Cir.1990). Carr,
      however, addressed an Alabama sheriff's immunity from suit
      in his official capacity under the Eleventh Amendment. It
      is true that we drew on state law regarding a sheriff's
      immunity from suit under the Alabama Constitution. But our
      analysis in Carr, and the analysis in the cases that we
      cited, focused on suits against sheriffs in their official
      capacities. Here, in contrast, the suit is against Tate in
      his individual capacity.
      As the district court emphasized, McMillian's suit alleges

intentional, malicious wrongdoing.              The Alabama Supreme Court has

held on several occasions that the defense of sovereign immunity

does not bar suits against state officers for torts committed

willfully, maliciously, and outside the scope of their authority.

Lumpkin v. Cofield, 536 So.2d 62, 65 (Ala.1988) (citing Barnes v.

Dale, 530     So.2d    770    (Ala.1988);        DeStafney     v.      University      of

Alabama,    413    So.2d     391 (Ala.1981);           Milton,    356       So.2d    1201

(Ala.1978);        Unzicker       v.   State,    346   So.2d     931    (Ala.1977)).

According to the Alabama Supreme Court, "Clearly, a state officer

or employee is not protected by § 14 when he acts willfully,

maliciously, illegally, fraudulently, in bad faith, beyond his

authority,    or    under     a   mistaken      interpretation         of   the     law."

Phillips, 555 So.2d at 83 (citations omitted).                   We think that the

same rule applies to a suit against a sheriff so long as it is not,

in effect, a suit against the state, notwithstanding that none of

these cases involved sheriffs.

     Tate cites a number of cases affording sheriffs sovereign

immunity, but only two even arguably may be read to afford immunity

to a sheriff for willful or malicious wrongdoing.                       Karrick, 659

So.2d 77, involved a malicious prosecution claim,27 and Alexander,
652 So.2d 1142, involved a negligent and/or bad faith service of

process claim.        Karrick relied on Alexander for the proposition

that a sheriff enjoys sovereign immunity when sued in his official

capacity or when the suit is in effect against the state.                             In

     27
      Karrick also involved a false imprisonment claim, but that
claim was dismissed because the arrest was made pursuant to a
lawfully issued warrant. 659 So.2d at 79.
Alexander, the court noted that a sheriff is immune when sued in

his individual capacity if the suit is in effect against the state.

But the court did not analyze whether the negligent and/or bad

faith service of process claim was in effect a claim against the

state.      652 So.2d at 1143.

       We do not read Karrick or Alexander as holding that claims

against sheriffs for willful and malicious conduct always are

claims against the state barred by sovereign immunity.                     The issue

was not even addressed in either case.                Though claims of malicious

prosecution and bad faith service of process would suggest willful

and malicious conduct, an examination of the allegations in Karrick

and Alexander reveals no such conduct.28                 And in neither case did

the    plaintiff    argue       that   sovereign   immunity       was    inapplicable

because the defendant engaged in willful or malicious wrongdoing.

We do not think that the Alabama Supreme Court would sub silentio

excuse sheriffs from its oft-repeated rule that sovereign immunity

does    not   protect      an   official    from      liability    for    willful   or

malicious wrongdoing. We hold, therefore, that state law sovereign

immunity does not bar McMillian's claims against Tate.

                                   V. CONCLUSION

       We vacate the district court's order denying summary judgment

on    the   claim   that    Tate,      Ikner,   and    Benson     violated   clearly

       28
      The deputy sheriff in Karrick arrested the plaintiffs for
altering a prescription. The deputy acted pursuant to a lawful
arrest warrant and after a drug store had notified him that the
prescription was altered. 659 So.2d at 78-79. The deputy
sheriff in Alexander attempted to serve process on the plaintiff
by leaving papers with the personnel manager at plaintiff's
workplace, as was the deputy's fourteen-year-old practice when
serving process at that particular plant. The plaintiff denied
receiving the papers. 652 So.2d at 1143.
established law in withholding exculpatory and impeachment evidence

from the prosecutor and remand for the district court to determine

whether a reasonable official in Tate, Ikner, and Benson's position

would have known that the withheld evidence was material.       We

reverse the district court's order denying summary judgment on the

claim that Tate violated McMillian's clearly established rights in

threatening Kelly.   In all other respects, we affirm the district

court.

     AFFIRMED IN PART;    REVERSED IN PART;   VACATED IN PART AND

REMANDED.

     PROPST, District Judge, concurring in part and dissenting in
part:

     I concur in the court's opinion, except as to the holding in

the last paragraph of section IV.D.2.   There, the court holds that

the district court erred in assessing the evidence's materiality

from a post-trial perspective rather than from the perspective of

a reasonable official in the position of Tate, Ikner, and Benson.

I think that the district court implicitly, if not explicitly,

considered "whether every reasonable official in the position of

Tate, Ikner, and Benson would understand that withholding those

particular pieces of evidence would undermine confidence in the

outcome of McMillian's trial."   It is hard to see how a holding

that evidence is "clearly exculpatory" could suggest anything else.
