                            PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             _____________

                 No. 10-2367
                _____________

            NICOLE SCHNEYDER,


                       v.

                 GINA SMITH,
                        Appellant

                       v.

            LAURA DAVIS;
DEFENDER ASSOCIATION OF PHILADELPHIA
            _____________

 On Appeal from the United States District Court
    for the Eastern District of Pennsylvania

        District Court No. 2-06-cv-04986

  District Judge: The Honorable Jan E. Dubois
                 _____________
                  Argued January 26, 2011

  Before: McKEE, Chief Judge, SMITH, Circuit Judge,
            and STEARNS, District Judge*

                   (Filed: July 29, 2011)

Peter Carr (Argued)
Alison J. Guest
Todd M. Mosser
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107
      Counsel for Appellant

Daniel Silverman (Argued)
Silverman & Associates, P.C.
1429 Walnut Street, Suite 1001
Philadelphia, PA 19102
      Counsel for Appellee

                     ________________

                         OPINION
                     ________________

SMITH, Circuit Judge.

       The Fourth Amendment guarantees the right of the
       *
         The Honorable Richard G. Stearns, United States District
Judge for the District of Massachusetts, sitting by designation.




                               2
people to be secure against unreasonable searches and
seizures. This case is about a seizure and presents questions
of whether and how the Constitution‘s guarantee applies in
the case of a material witness who was jailed for weeks on
end, even though the date of the trial in which she was to
testify had been pushed back several months. We hold that
the Fourth Amendment applies to such a detention, and that it
requires a prosecutor responsible for such a detention to
inform the judge who ordered the witness‘s incarceration of
any substantial change in the underlying circumstances. We
also conclude that the prosecutor in this case had ―fair
warning‖ of the constitutional right she is accused of
violating, and that she is therefore not shielded from liability
by the doctrine of qualified immunity. Finally, we reaffirm
our earlier holding that absolute prosecutorial immunity does
not apply. We will therefore affirm the District Court‘s order
denying summary judgment to the defendant.

                               I

       Nicole Schneyder was an essential witness in
Pennsylvania‘s effort to bring Michael Overby to justice for
rape, robbery, and murder. After apparently being threatened
by Overby‘s family, Schneyder refused to testify, going so far
as to pull a knife on a police detective as he attempted to
arrest her for the purpose of compelling her appearance in
court. Schneyder successfully avoided capture for the
duration of Overby‘s first two trials, so the prosecution
offered her prior recorded statements in lieu of her live
testimony. This procedure presented obvious Confrontation
Clause problems, and Overby‘s conviction in the second trial




                               3
(the first ended in a hung jury) was overturned on appeal.
Commonwealth v. Overby, 809 A.2d 295 (Pa. 2002).1

       Overby‘s third trial—at which Schneyder‘s live
testimony would be absolutely necessary—was set to begin
on February 2, 2005. Schneyder went into hiding as the trial
date approached, leaving the police unable to serve her with a
subpoena despite several attempts. Schneyder‘s mother
informed police on one of these occasions that her daughter
had no intention of coming into court.

       On January 26, 2005, Philadelphia assistant district
attorney Gina Smith applied to Judge Rayford Means of the
Philadelphia Court of Common Pleas for a warrant
authorizing Schneyder‘s arrest as a material witness pursuant
to what is now Pa. R. Crim. P. 522.2 Rule 522(A) allows a
court to ―issue process‖ and ―set bail for any material
witness‖ for whom there is ―adequate cause for the court to
conclude that the witness will fail to appear when required if
not held in custody or released on bail.‖ Once process has
issued and the witness has been brought into court, Rule
522(B) directs that ―the court shall commit the witness to jail‖
if she is unable to fulfill the bail conditions—provided that
the court must release the witness if at any time thereafter she

       1
          On the fourth try, the Commonwealth succeeded in
convicting Overby of murder, robbery, and criminal conspiracy.
Schneyder apparently testified at that proceeding.
       2
         Rule 522 was formerly codified as Rule 4017. The text of
the Rule has not changed, although a new Comment was added in
2006 (after the events giving rise to this appeal) directing that
―[w]hen a material witness is to be detained, the court should
impose the least restrictive means of assuring that witness‘s
presence.‖




                               4
satisfies the court‘s demands. Smith‘s warrant application
averred that Schneyder‘s testimony was ―critical,‖ that she
―ha[d] been threatened by someone in the defendant‘s
family,‖ and that ―[g]iven her previous several failure[s] to
appear . . . it is highly unlikely that she will appear for trial.‖
Judge Means issued the warrant, and a police officer
apprehended Schneyder that night.

       Judge Means scheduled a bail hearing for the next day
and appointed public defender Laura Davis3 to represent
Schneyder. Before the hearing, Judge Means met with Smith
and Davis in camera. At this off-the-record meeting, Judge
Means advised Smith that he intended to authorize
Schneyder‘s detention until trial, but instructed Smith to
inform him in the event that the trial was pushed back from
the scheduled date.4 On the record, Judge Means expressed
distaste for ―setting bail on people who are not accused of a
crime,‖ but nevertheless ordered Schneyder imprisoned when
she could not put up a $300,000 surety. The court also
advised the parties (the language in the transcript leaves
unclear precisely whom he was addressing): ―If the case
breaks down, let me know early and I‘ll let you out.‖ Judge
Means then went on:

       I only intend to keep you on this bail until you
       testify or the trial is concluded if you did have it
       on February 2nd and the Commonwealth says,
       we don‘t need you anymore, we‘re done with
       you, okay, then I will want them to come back

       3
          Davis is named as a third-party defendant in this suit, but
she is not a party to this appeal.
        4
           Smith concedes this fact for purposes of the instant
motion but would contest it at trial.




                                 5
       to me and say, look, we don‘t have any need for
       her. If they make a decision at some point on
       January 31st, we changed our mind, we don‘t
       even need this lady, come back to me so I can
       bring her down and remove this.

The court ordered an informal status conference for February
14, 2005 to facilitate reassessment of the situation in the event
that the trial remained ongoing. According to Judge Means‘
affidavit, he ―explicitly placed the onus on Ms. Smith to
notify me if for any reason the case was continued or broke
down, as it was my clear intention that, in that event, I would
immediately release Ms. Schneyder from custody.‖ Further,
he averred that, ―[h]ad I been notified that the Overby case
had been continued, I would have immediately ordered Ms.
Schneyder‘s release.‖

         When February 2 arrived, the Overby trial (over which
Judge Means was not presiding) was continued until May 25,
2005. Smith did not inform Judge Means of this fact,5 and
Schneyder remained in jail. Smith did not appear for the
scheduled February 14 status conference, which led Judge
Means to assume that the issue of Schneyder‘s detention had
been mooted by her release. Over the course of the next
several weeks, members of Schneyder‘s family contacted
Smith ―approximately 25 times‖ to inquire as to why she was
still in jail and to ask when she would be let go. Schneyder‘s
father died on February 28, and on March 1 Schneyder‘s

       5
          Smith concedes this point only for purposes of the motion
that has given rise to this appeal; she testified in her deposition that
she had appeared in Judge Means‘s courtroom more than once
between February 2 and February 14, and that she had informed
the judge and his staff of the continuance.




                                   6
sister contacted Paul Conway, chief of the Philadelphia
Defender Association‘s Homicide Unit,6 in the hopes that he
could obtain Schneyder‘s release for the funeral. Conway
was able to secure only an order allowing the plaintiff to visit
the funeral home in handcuffs for a few minutes; Schneyder
was denied permission to attend the funeral itself.

       In the process of obtaining the funeral home release,
Conway learned that the trial for which Schneyder was being
held was not set to start until late May. In Conway‘s view, ―it
wasn‘t right to keep her there‖ for such a long time, so he
began an effort to free Schneyder from jail. He started by
contacting Smith, but she initially refused to agree to
Schneyder‘s release. His next step was to ask that Schneyder
be allowed out on house arrest. In the course of preparing
that request, Conway made contact with Davis, the public
defender who had been assigned to Schneyder at the January
27 bail hearing. Davis provided him with her notes of that
hearing, and upon reading them Conway became convinced
that Judge Means had meant for Schneyder to be released in
the event that the Overby trial did not start on February 2.
Put in that context, the fact that Schneyder was still locked up
made Conway ―really angry.‖ He hustled to Judge Means‘
courtroom and (according to Conway‘s account) ―astonished‖
the judge by telling him that Schneyder was still in custody.
Judge Means ordered Schneyder discharged shortly
thereafter. By this time it was March 21, and Schneyder had


       6
         Prior opinions in this case have indicated that Conway
was a hired attorney when he was in fact a public defender
approached for assistance by Schneyder‘s family. See Odd v.
Malone, 538 F.3d 202, 206 (3d Cir. 2008); Schneyder v. Smith, 709
F. Supp. 2d 368, 373 (E.D. Pa. 2010).




                               7
been locked up for 54 days—48 of them after the February 2
continuance.

        Schneyder sued Smith and the Philadelphia District
Attorney‘s office, filing a complaint which included claims
under 42 U.S.C. § 1983 and state law. Only the § 1983 claim
against Smith remains in the case; it alleges that Smith
violated Schneyder‘s Fourth Amendment rights ―by failing to
notify Judge Means or take any steps to have plaintiff
released from custody knowing that she would not be needed
as a witness in the underlying criminal case for several more
months.‖ The District Court initially granted Smith‘s Rule 12
motion to dismiss the § 1983 claim on the basis that she was
entitled to absolute prosecutorial immunity, but a panel of this
court reversed. Odd v. Malone, 538 F.3d 202 (3d Cir. 2008).7
After remand and discovery, Smith invoked both absolute and
qualified immunity and moved for summary judgment. The
District Court rejected Smith‘s arguments and denied the
motion. Schneyder v. Smith, 709 F. Supp. 2d 368 (E.D. Pa.
2010). This appeal ensued.

                               II

        We have appellate jurisdiction under the collateral
order doctrine: ―28 U.S.C. § 1291 confers appellate
jurisdiction over the District Court‘s denial, at the summary-
judgment stage, of [a] defendant[‘s] claim that [she is]
entitled to absolute or qualified immunity, to the extent that
denial turns on questions of law.‖ Bayer v. Monroe Cnty.
Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009)
(citations omitted). There are no material factual disputes,

       7
        Schneyder‘s appeal was consolidated with the case of one
Korvell Odd; the caption on our prior opinion bears his name.




                               8
Smith having conceded various of the plaintiff‘s factual
averments for purposes of this motion.

       We review the District Court‘s denial of summary
judgment de novo, applying the same test that the District
Court should have applied and viewing the facts in the light
most favorable to the nonmoving party. Id.

                              III

       ―The doctrine of qualified immunity protects
government officials ‗from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.‘‖ Pearson v. Callahan, 555 U.S. ---, 129 S. Ct.
808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). There are two related but distinct inquiries in a
qualified immunity case. One is whether the defendant‘s
conduct violated the plaintiff‘s civil rights; the other is
whether the right in question was clearly established at the
time of the violation. We conclude that both of these
questions should be answered affirmatively, and that Smith is
therefore not shielded by qualified immunity.

                              A

       The Civil Rights Act of 1871, 42 U.S.C. § 1983,
provides that ―[e]very person who, under color of [state law],
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured‖ in an appropriate action.         Setting aside the
availability of immunity, the basic cause of action requires




                              9
that a § 1983 plaintiff prove two essential elements: (1) that
the conduct complained of was committed by a person acting
under color of state law; and (2) that the conduct deprived the
plaintiff of rights, privileges, or immunities secured by the
Constitution or laws of the United States.             Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993) (citing Parratt v.
Taylor, 451 U.S. 527, 535 (1981)). There is no question that
Smith, who acted in her capacity as an assistant district
attorney, did so under color of state law. The question under
§ 1983 is therefore whether Smith‘s failure to advise Judge
Means of the continuance in Overby deprived Schneyder of a
constitutionally protected right.       This inquiry can be
subdivided into the questions (1) whether Schneyder‘s
imprisonment violated one or more of her constitutional
rights, and, if so, (2) whether Smith‘s conduct caused the
illegal imprisonment.

                              1

       To determine whether Schneyder has made out a
violation of her constitutional rights, we first must determine
what right she is asserting and whence in the Constitution that
right springs. The parties and the District Court have all
discussed the right at issue primarily in terms of the Fourth
Amendment‘s proscription of unreasonable seizures.
Superficially, at least, Schneyder‘s imprisonment meets the
Supreme Court‘s definition of a ―seizure‖: ―a Fourth
Amendment seizure [occurs] . . . when there is a
governmental termination of freedom of movement through
means intentionally applied.‖ Scott v. Harris, 550 U.S. 372,
381 (2007) (quoting Brower v. Cnty. of Inyo, 489 U.S. 593,
596–97 (1989)). Schneyder‘s freedom of movement was
obviously terminated, and there is ample evidence that Smith
intended that result. See Ashcroft v. al-Kidd (al-Kidd II), 563




                              10
U.S. ---, 131 S. Ct. 2074, 2080 (2010) (―An arrest, of course,
qualifies as a ‗seizure‘ of a ‗person‘ . . . , and so must be
reasonable under the circumstances.‖) (citation omitted).
There was, however, some suggestion at oral argument, and
in the briefs, that the Fourteenth Amendment‘s Due Process
Clause applies instead.8

       The question of which Amendment applies is
answered, at least in this Circuit, by citation to Gallo v. City
of Philadelphia, 161 F.3d 217, 222–24 (3d Cir. 1998),
wherein we adopted Justice Ginsburg‘s ―continuing seizure‖
interpretation of the Fourth Amendment. See Albright v.
Oliver, 510 U.S. 266, 277–80 (1994) (Ginsburg, J.,
concurring). In her Albright concurrence, Justice Ginsburg
wrote:

       At common law, an arrested person‘s seizure
       was deemed to continue even after release from
       official custody. See, e.g., 2 M. Hale, Pleas of
       the Crown *124 (―he that is bailed, is in
       supposition of law still in custody, and the
       parties that take him to bail are in law his
       keepers‖); 4 W. Blackstone, Commentaries

       8
          In order to argue that the Fourth Amendment is not
applicable—or at least that its applicability was not clearly
established—Smith‘s briefs distinguish ―seizures‖ from
―detentions,‖ arguing that at some point after the arrest
Schneyder‘s incarceration became a ―detention‖ not subject to the
Fourth Amendment. The unspoken corollary must be that
―detentions‖ are governed directly by the Due Process Clause;
otherwise Smith‘s proposed distinction would leave a ―detained‖
material witness without any constitutionally protected liberty
interest whatsoever.




                               11
       *297 (bail in both civil and criminal cases is ―a
       delivery or bailment, of a person to his sureties,
       . . . he being supposed to continue in their
       friendly custody, instead of going to gaol‖).

Id. at 277–78. The purpose of the arrest, regardless of the
nature of the case, ―was ‗only to compel an appearance in
court,‘ and ‗that purpose is equally answered, whether the
sheriff detains [the suspect‘s] person, or takes sufficient
security for his appearance, called bail.‘‖ Id. at 278 (citing 3
Blackstone, supra, at *290 (discussing civil cases); 4 id., at
*297 (explaining that the nature of bail is the same in criminal
and civil cases)). Pre-trial restrictions of liberty aimed at
securing a suspect‘s court attendance are all ―seizures‖ on this
view; the difference between detention in jail, release on
bond, and release subject to compliance with other conditions
is in the degree of restriction on the individual‘s liberty, not
in the kind of restriction. Id. Justice Ginsburg went on to
argue that ―[t]his view of the definition and duration of a
seizure comports with common sense and common
understanding.‖ Id. A person who is ―required to appear in
court at the state‘s command,‖ who may be (for instance)
―subject . . . to the condition that he seek formal permission
from the court . . . before exercising what would otherwise be
his unquestioned right to travel outside the jurisdiction,‖ and
who may suffer diminished employment prospects,
reputational harm, and ―the financial and emotional strain of
preparing a defense‖ continues to labor under a restriction of
his liberty interests even though he is not in custody. Id.
Thus even a defendant who is released pending trial ―is
scarcely at liberty; he remains apprehended, arrested in his
movements, indeed ‗seized‘ for trial, so long as he is bound to
appear in court and answer the state‘s charges. He is equally




                              12
bound to appear, and is hence ‗seized‘ for trial, when the state
employs the less strong-arm means of a summons in lieu of
arrest to secure his presence in court.‖ Id. at 279. On Justice
Ginsburg‘s theory, the plaintiff in Albright (also suing under
§ 1983 for a Fourth Amendment violation), ―remained
effectively ‗seized‘ for trial for so long as the prosecution
against him remained pending.‖ Id. The rationale is that a
government-imposed restriction on a person‘s liberty is a
seizure governed by the Fourth Amendment if its purpose is
to ensure that he appears in court. In contrast, if a pre-trial
detainee suffers a deprivation amounting to punishment, his
claim is governed by the Due Process Clause: ―[A] detainee
may not be punished prior to an adjudication of guilt in
accordance with due process of law.‖ Bell v. Wolfish, 441
U.S. 520, 535 (1979). And once a person has been convicted
and sentenced, his liberty may be restricted provided that he
received the process he was due and that the conditions and
duration of his punishment are not ―cruel‖ or ―unusual‖ under
the Eighth Amendment.9 But when the government restricts
the liberty of a person who has not been convicted of a crime
for the purpose of securing her court appearance, that
restriction is a Fourth Amendment seizure.


       9
          Similar reasoning explains why the detention of a person
who has been involuntarily committed, as well as the conditions of
his confinement, are governed by the Due Process Clause. See
Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982). While the
initial arrest of such a person to compel his appearance at the
commitment proceeding might be governed by the Fourth
Amendment, once commitment has been ordered he is no longer
being detained for the purpose of ensuring that he will appear in
court. Thus he is no longer ―seized‖ for Fourth Amendment
purposes, and the requirements of due process take over.




                               13
        We followed this analysis in Gallo, stating that it was
both ―compelling and supported by Supreme Court case law.‖
161 F.3d at 223. Applying Justice Ginsburg‘s reasoning, we
held that the plaintiff had been seized where he ―had to post a
$10,000 bond, . . . had to attend all court hearings including
his trial and arraignment, . . . was required to contact Pre-trial
Services on a weekly basis, and . . . was prohibited from
traveling outside New Jersey and Pennsylvania.‖                Id.
Similarly, in Johnson v. Knorr, 477 F.3d 75, 85 n.14 (3d Cir.
2007), we held that the plaintiff‘s detention in a cell for two
days, the requirement that he post bail, and the fact that he
was required to appear in court for a hearing constituted a
Fourth Amendment seizure. See also DiBella v. Borough of
Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (―Pre-trial
custody and some onerous types of pre-trial, non-custodial
restrictions constitute a Fourth Amendment seizure.‖). The
theory undergirding these decisions and Justice Ginsburg‘s
Albright concurrence is that substantial pre-trial restrictions
on liberty—most prominently, custodial detentions—are
―seizures‖ when they are imposed in order to compel a court
appearance.

        We acknowledge that this theory may be in tension
with our statement in Torres v. McLaughlin, 163 F.3d 169,
174 (3d Cir. 1998), that ―the limits of Fourth Amendment
protection relate to the boundary between arrest and pre-trial
detention‖—the implication being that once the state‘s
conduct ceases to be an arrest and begins to constitute pre-
trial detention (wherever that line may be drawn), the seizure
ends and the Fourth Amendment no longer applies.10 The
       10
         We also acknowledge that other circuits have declined to
adopt Justice Ginsburg‘s theory. See, e.g., Harrington v. City of
Nashua, 610 F.3d 24, 33 n.4 (1st Cir. 2010); Reed v. City of




                               14
Torres court‘s statement is not, however, binding on us here.
For one thing, Torres was decided after Gallo, leaving its
precedential value on this point in serious doubt.11 See
Holland v. N.J. Dep’t of Corr., 246 F.3d 267, 278 n.8 (3d Cir.
2001) (―[T]o the extent that [a case within this Circuit] is read
to be inconsistent with earlier case law, the earlier case law . .
. controls.‖) (citation omitted).       Moreover, the above
quotation from Torres is dicta: the case involved the question
whether Torres‘ post-conviction incarceration was a Fourth
Amendment seizure. The answer to that question is ―no,‖
even under the Ginsburg-Gallo theory. The Torres panel
therefore had no need to opine on the limits of the Fourth
Amendment‘s pre-conviction application. Finally, Torres left
open the possibility that ―there may be some circumstances
during pre-trial custodial detention that implicate Fourth
Amendment rights,‖ 169 F.3d at 174, and if that is the case
then surely the very fact of a pre-trial detention would
implicate the right against unreasonable seizures.

       We agree with Gallo‘s assessment of Justice
Ginsburg‘s theory, and therefore reaffirm what Gallo at least
strongly implied: When the state places constitutionally
significant12 restrictions on a person‘s freedom of movement


Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996). As we have
explained, Gallo would require us to adhere to the continuing
seizure theory even if we were otherwise disposed to reject it.
        11
           The majority opinion in Torres does not cite Gallo—
though the dissent does. See 163 F.3d at 179 (Debevoise, Dist. J.,
dissenting).
        12
           We hold open the possibility that some conditions on
pre-trial release may be so insignificant as not to implicate
constitutionally protected liberty interests. See, e.g., Kingsland v.
City of Miami, 382 F.3d 1220, 1236 (11th Cir. 2004) (concluding




                                 15
for the purpose of obtaining his presence at a judicial
proceeding, that person has been seized within the meaning of
the Fourth Amendment.

        This theory concerning the ―definition and duration of
a seizure,‖ Albright, 510 U.S. at 278 (Ginsburg, J.,
concurring), implies that when a material witness is subjected
to constitutionally significant restrictions of her liberty for the
purpose of securing her appearance at trial, those restrictions
are governed by the Fourth Amendment. That Amendment is
not limited to criminal suspects, but protects ―[t]he right of
the people to be secure . . . against unreasonable searches and
seizures.‖     U.S. Const. amend. IV (emphasis added).
Accordingly, the Supreme Court defines ―seizure‖ in general
terms: ―a person has been ‗seized‘ within the meaning of the
Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.‖ California v. Hodari
D., 499 U.S. 621, 627–28 (1991) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)) (emphasis added).
The Fourth Amendment‘s protection against unreasonable
seizures extends to all of ―the people,‖ and the guarantees of
the Bill of Rights extend to a person detained as a material
witness just as they would extend to anyone else. See al-Kidd
II, 131 S. Ct. at 2080–83 (applying Fourth Amendment
analysis to the arrest and detention of a material witness); al-
Kidd v. Ashcroft (al-Kidd I), 580 F.3d 949, 965 (9th Cir.
2009) (―[M]aterial witness arrests are ‗seizures‘ within the
meaning of the Fourth Amendment and are therefore subject
to its reasonableness requirement.‖) (citing Bacon v. United
States, 449 F.2d 933, 942 (9th Cir. 1971)), rev’d on other

that conditions of release not amounting to a ―significant
deprivation of liberty‖ did not implicate the Fourth Amendment).




                                16
grounds, 563 U.S. ---, 131 S. Ct. 2074. A person who is
subjected to conditions that would constitute a seizure if she
had been arrested for a crime is still seized even though she is
not a criminal suspect but a material witness. She has been
arrested and deprived of liberty for precisely the same
purpose as a pre-trial detainee in a criminal case: to ensure
that she shows up in court as required by the state. See
Albright, 510 U.S. at 278–79 (Ginsburg, J., concurring). The
Fourth Amendment therefore governs our inquiry into the
constitutionality of Schneyder‘s detention.

                               2

        As we noted above, Schneyder‘s incarceration plainly
meets the Supreme Court‘s definition of a Fourth Amendment
―seizure.‖ But that is not the end of the story, for ―what the
Constitution forbids is not all searches and seizures, but
unreasonable searches and seizures.‖ Elkins v. United States,
364 U.S. 206, 222 (1960) (emphasis added); United States v.
Ritter, 416 F.3d 256, 261 (3d Cir. 2005). In the ordinary
criminal case, arrest and detention of a suspect is reasonable
if it is supported by probable cause, as determined by the
judge who either issues an arrest warrant or conducts a
preliminary hearing. See, e.g., Gerstein v. Pugh, 420 U.S.
103, 111–14 (1975). Gerstein explained that the probable
cause standard ―represents a necessary accommodation
between the individual‘s right to liberty and the State‘s duty
to control crime‖—that is, it is a particular instance of the
Fourth Amendment‘s more general inquiry into overall
reasonableness. Id. at 112. This point is further reflected in
the fact that while a pre-arrest probable cause determination is
to be made by a ―neutral and detached magistrate whenever
possible,‖ the Fourth Amendment admits of ―practical
compromise‖ allowing police to make an on-the-scene




                              17
probable cause assessment so long as any prolonged restraint
of liberty is supported by a prompt post-arrest judicial
determination that probable cause does in fact exist. Id. at
112–14.

       We are not, however, presented with an ordinary
criminal case, and despite the parties‘ arguments and the
District Court‘s opinion (all of which are couched in terms of
probable cause), probable cause is an inapposite concept for
assessing whether the detention of a material witness was
constitutionally reasonable. The phrase ―probable cause‖
appears, on its face, to prescribe only a burden of proof, and
the Fourth Amendment does not provide an obvious answer
to the substantive question, ―probable cause as to what?‖
This is explained by the fact that ―probable cause, since
before the founding, has always been a term of art of criminal
procedure.‖ al-Kidd I, 580 F.3d at 966. The phrase has
meaning, derived from its common-law origins, that is more
than its two words would reveal if read in isolation. That is,
the term itself supplies an answer to the ―as to what?‖
question. Probable cause demands that the police have
reasonably trustworthy knowledge of facts ―sufficient to
warrant a prudent man in believing that the [arrestee] had
committed or was committing an offense.‖ Beck v. Ohio, 379
U.S. 89, 91 (1964) (emphasis added) (quoted in Gerstein, 420
U.S. at 111; al-Kidd I, 580 F.3d at 966). Stated differently,
―[t]he substance of all the definitions of probable cause is a
reasonable ground for belief of guilt.‖ Brinegar v. United
States, 338 U.S. 160, 175 (1949) (emphasis added) (citations
and internal quotation marks omitted) (quoted in Maryland v.
Pringle, 540 U.S. 366, 371 (2003)).13 See also al-Kidd I, 580
       13
          Smith‘s opening brief, at 39, quotes the Brinegar
formulation (citing Pringle) but conspicuously elides the phrase




                              18
F.3d at 966–67 (citing, e.g., Whren v. United States, 517 U.S.
806, 811 (1996); Michigan v. DeFillippo, 443 U.S. 31, 37
(1979); Locke v. United States, 11 U.S. (7 Cranch) 339, 348
(1813) (Marshall, C.J.)). ―Probable cause as used in the
Fourth Amendment is a substantive concept of law. . . . Its
meaning embraces not merely a certain quantum of evidence,
but a certain quantum of evidence related to one and only one
specific thing—the commission of a crime. This has always
been so.‖ Ricardo J. Bascuas, The Unconstitutionality of
―Hold Until Cleared‖: Reexamining Material Witness
Detentions in the Wake of the September 11 Dragnet, 58
Vand. L. Rev. 677, 716–19 (2005). For probable cause to
exist, the evidence available must provide police or the
warrant-issuing magistrate with reasonable grounds to believe
that the person to be arrested is guilty of a crime. This
definition of the term renders it irrelevant to an assessment of
the legality of the seizure of a material witness: ―An arrest of
a material witness is not justified by probable cause because
[the facts that justify such an arrest] do not constitute the
elements of a crime.‖ al-Kidd I, 580 F.3d at 967; see also al-
Kidd II, 131 S. Ct. at 2082, 2083 (discussing the justification
for detaining a person as a material witness in terms of
―individualized reasons to believe that he was a material
witness and that he would soon disappear‖ and
―individualized suspicion,‖ rather than probable cause).14

―of guilt‖—apparently to avoid grappling with the fact that
Schneyder was not arrested or detained because anyone thought
her guilty of a crime.
        14
           The cases cited for the proposition that probable cause is
the appropriate lens through which to view this case do not engage
in any analysis of the issue, and we can set them aside. See Stone
v. Holzberger, 1994 WL 175420, 1994 U.S. App. LEXIS 231 (6th
Cir.) (unpublished) (requiring that a detained material witness be




                                 19
                                 3


afforded a probable cause hearing without discussing what should
be assessed at such a hearing); White v. Gerbitz, 892 F.2d 457,
460–61 (6th Cir. 1989) (concluding that a material witness‘s arrest
―was supported by probable cause‖ without considering the term‘s
applicability); Bacon v. United States, 449 F.2d 933, 942 (9th Cir.
1979) (stating uncritically that a material witness‘s ―arrest and
detention must be based on probable cause‖). See also Donald Q.
Cochran, Material Witness Detention in a Post-9/11 World:
Mission Creep or Fresh Start?, 18 Geo. Mason L. Rev. 1, 18 &
n.105 (2010) (noting that ―[c]ourts have generally relied on the
Bacon ‗probable cause‘ standard without any discussion of its
reasoning‖).
        Bacon actually read the federal material witness statute to
require ―probable cause to believe (1) that the testimony of a
person is material and (2) that it may become impracticable to
secure his presence by subpoena.‖ 449 F.2d at 943 (citation and
internal quotation marks omitted). The Ninth Circuit‘s opinion
thus arguably redefined a preexisting constitutional term of art, and
to the extent it does so its persuasiveness (along with the
persuasiveness of those cases relying on it) is badly undercut. See
Bascuas, supra, 58 Vand. L. Rev. at 715–19 (criticizing Bacon and
―the idea that ‗probable cause‘ can be redefined from case to
case‖). But see Cochran, supra, 18 Geo. Mason L. Rev. at 20–21
(noting that ―probable cause is a two-prong concept, possessing
both a burden-of-proof component and a substantive component,‖
and arguing that in material witness cases the substantive
component is not guilt of a crime but ―the risk that a miscarriage of
justice will occur‖ absent the witness‘s testimony). The Ninth
Circuit panel that decided al-Kidd I interpreted Bacon as having
only imported the burden-of-proof element of probable cause,
which it then applied to the federal material witness statute‘s
substantive requirements. 580 F.3d at 967–68.




                                 20
       So while the Fourth Amendment applies here, the
probable cause requirement cannot.        The Amendment
provides only one standard that could govern this situation: a
seizure of an uncharged material witness is constitutionally
prohibited if it is ―unreasonable.‖15 Schneyder‘s Fourth

       15
           It can be argued that because (i) the Fourth Amendment
requires that warrants be supported by probable cause, and (ii)
―probable cause,‖ as defined above, cannot exist for a person
seized only as a material witness, the entire practice of issuing
warrants for and arresting material witnesses is unconstitutional.
See al-Kidd II, 131 S. Ct. at 2084–85 (suggesting the possibility of
such an argument but noting that plaintiff in that case had not taken
that position); id. at 2085–86 (Kennedy, J., concurring) (observing
that ―[t]he scope of the [material witness] statute‘s lawful
authorization is uncertain‖ because of a possible conflict with the
Warrants Clause, but indicating that ―material witness arrests
might still be governed by the Fourth Amendment‘s separate
reasonableness requirement for seizures of the person‖); Bascuas,
supra, 58 Vand. L. Rev. at 702–19 (Under ―the one and only
definition of ‗probable cause,‘ the practice of detaining witnesses
[can] not . . . survive[] constitutional analysis. Of course, the
seizure of one innocent of any wrongdoing can never be supported
by ‗probable cause‘ because ‗probable cause‘ for an arrest exists
only where there is reason to believe that the prospective arrestee
committed a crime.‖). Like the plaintiff in al-Kidd, Schneyder
does not argue that all material witness arrests are necessarily
unconstitutional; we therefore do not address that question. We
assume, with the plaintiff, that her initial arrest was legal and that
her detention became unlawful, if at all, once the Overby trial had
been continued. For reasons explained above, the only way to
analyze such a claim under the Fourth Amendment is to inquire
into the reasonableness of the detention. We therefore assume for
present purposes that the reasonableness framework applies, while
leaving for another case the possibility that all arrests made




                                 21
Amendment rights were therefore violated only to the extent
that her detention as a material witness was ―unreasonable‖
within the Fourth Amendment‘s meaning, and Smith is liable
under § 1983 only insofar as she caused Schneyder to endure
such an ―unreasonable‖ detention. See al-Kidd I, 580 F.3d at
968 (interpreting Bacon as having held that a material witness
seizure is ―reasonable‖ where the statutory requirements are
established by a ―probable cause‖ burden of proof).

        The ―key principle of the Fourth Amendment‖ is the
balancing of various competing interests. Michigan v.
Summers, 452 U.S. 692, 700 n.12 (1981) (citation omitted).
―To determine the constitutionality of a seizure ‗[we] must
balance the nature and quality of the intrusion on the
individual‘s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion.‘‖ Tennessee v. Garner, 471 U.S. 1, 8 (1985)
(quoting United States v. Place, 462 U.S. 696, 703 (1983)).
The question is ―whether the totality of the circumstances
justifie[s] a particular sort of search or seizure.‖ Id. at 8–9.
See also United States v. Awadallah, 349 F.3d 42, 58–64 (2d
Cir. 2003) (applying a balancing analysis to determine
whether the length of a material-witness detention comported
with the Fourth Amendment); Donald Q. Cochran, Material
Witness Detention in a Post-9/11 World: Mission Creep or
Fresh Start?, 18 Geo. Mason L. Rev. 1, 22–24 (2010)
(proposing a rule combining ―probable cause‖ to believe that
the elements of the federal material witness statute are met
with a separate reasonable-duration limitation on the length of
a detention); cf. Zadvydas v. Davis, 533 U.S. 678, 689 (2001)
(reading an implicit ―reasonable time‖ limitation into a

without probable cause as to guilt of a crime, including material
witness arrests, are ipso facto unconstitutional.




                               22
federal alien detention statute in order to avoid the ―serious
constitutional problem[s]‖ that would face an indefinite
detention provision).

        In Villanova v. Abrams, 972 F.2d 792 (7th Cir. 1992),
Judge Posner offered a method of analysis for considering the
reasonableness of a civil commitment: ―In mathematical
terms, the test of a reasonable commitment can be expressed
by the inequality C<PH, where C is the cost of confinement
to the person confined, H is the harm he might do if released,
and P is the probability of his doing that harm if released.‖
Id. at 796. The premise of this formula is that detention is
reasonable where the expected cost to the public of releasing
the detainee exceeds the expected cost to the individual of
being imprisoned. So as the cost to the plaintiff of being
confined increases (e.g., as the incarceration grows longer),
so too must the magnitude of the harm to be prevented, or the
likelihood of that harm (or both), if PH is to keep pace with C
and thus continue to justify confinement. This analysis
resembles Learned Hand‘s famous negligence test, see United
States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.
1947), for good reason: ―The test of negligence at common
law and of an unlawful search or seizure challenged under the
Fourth Amendment is the same: unreasonableness in the
circumstances.‖ Villanova, 972 F.2d at 796; see also
Awadallah, 349 F.3d at 59 (balancing a material witness‘s
liberty interests against the government‘s interest in a
successful terrorism prosecution). However helpful Judge
Posner‘s approach may be, of course, courts must in the end
bear in mind that ―the application of standards that can be
expressed in algebraic terms still requires the exercise of
judgment, implying elements of inescapable subjectivity and
intuition in the decisional calculus.‖ Villanova, 972 F.2d at




                              23
796 (citing Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6
(7th Cir. 1992)).

        Here, the alleged problem with Schneyder‘s detention
is that it went on for an unreasonable length of time—i.e.,
longer than the facts of the case warranted. On the ―cost to
the plaintiff‖ side of the ledger we have Schneyder‘s obvious
and quite substantial interest, as a citizen not accused of any
crime, in being free from incarceration. On the other side, we
have the significant harm that might have been done to the
Commonwealth‘s case against Overby, and thus to the overall
justice system, by the failure of a critical witness to testify.
At the time Schneyder was arrested, the likelihood of that
harm was high, as she clearly did not intend to appear in
court. Given the relatively brief period of time that she would
have had to spend in jail (a maximum of some 19 days, had
Schneyder been released on the date of Judge Means‘
scheduled informal status hearing) in order to remain
available for a February 2 trial, we may suppose that her
initial arrest and detention were reasonable: the potential cost
to Schneyder was not terribly high in comparison with the
risk that the prosecution would fall apart in her absence.16

        This balance, Schneyder argues (or should have
argued, had she framed her complaint in terms of
reasonableness rather than probable cause), was upset when
the trial was pushed back more than three months. While the
potential harm to the prosecution‘s case remained the same,

       16
          Schneyder‘s counsel conceded at oral argument that
―there was probable cause to detain [Schneyder] initially‖; we
assume that he would likewise concede that the arrest and
detention until February 2 were ―reasonable‖ under the framework
that we have set out.




                              24
the weight of Schneyder‘s liberty interest grew considerably:
instead of the twelve days that were left before the scheduled
status hearing on the date of the continuance, she was
suddenly looking at some 131 days in jail before the trial
would even start.17 Even if the risk to the public interest
remained high, a jury could find that the cost to Schneyder of
being imprisoned outweighed the state‘s interest in holding
her for that extra time. Moreover, a jury could conclude that
the risk of harm (that is, P) was not as great as the
government would have it. Schneyder seems not to have
been especially difficult to apprehend (an officer picked her
up on the same night that the warrant issued), and there is
evidence that being arrested had impressed on her the gravity
of the situation and had thus made it more likely that she
would show up for court. A reasonable jury could find that
Schneyder‘s prolonged detention became unreasonable once
the case had been continued.18
       17
           In point of fact, Schneyder‘s wait could well have been
much longer: Overby‘s third trial ended in a hung jury on
November 1, 2006, and he was not finally convicted until February
20, 2007—more than two years after Schneyder‘s initial arrest.
       18
           It is a mistake to argue that Smith‘s failure to comply
with Judge Means‘ order was the essence of the alleged Fourth
Amendment violation. A state judge‘s order cannot have created a
federal constitutional right where none otherwise existed. The
Fourth Amendment‘s reasonableness standard is an objective one,
see Scott, 550 U.S. at 381 (citing Graham v. Connor, 490 U.S. 386,
388 (1989)), that relies on a balancing of competing interests, as
discussed above. Judge Means‘ words cannot have had any
bearing on the relative weights of those interests, although it may
have altered Schneyder‘s subjective (and therefore irrelevant)
expectations. See al-Kidd II, 131 S. Ct. at 2080 (―Fourth
Amendment reasonableness is predominantly an objective inquiry.
. . . This approach recognizes that the Fourth Amendment




                                25
                                4

       Schneyder has thus made out a prima facie case that
she suffered a Fourth Amendment violation. Section 1983
also requires her to show that Smith was a legal cause of her
unreasonable detention. See Martinez v. California, 444 U.S.
277, 284–85 (1980); Rivas v. City of Passaic, 365 F.3d 181,

regulates conduct rather than thoughts; and it promotes
evenhanded, uniform enforcement of the law.‖) (citations and
internal quotation marks omitted); Whren, 517 U.S. at 814 (―[T]he
Fourth Amendment‘s concern with ‗reasonableness‘ allows certain
actions to be taken in certain circumstances, whatever the
subjective intent.‖).
         Nor can Judge Means‘ statements constitute a ruling that
further detention in the event of a delay in trial would be
unreasonable. Such an ex ante assessment cannot take into
account all of the circumstances surrounding a given incident:
Judge Means cannot have known at the time of Schneyder‘s bail
hearing how long the delay would be; nor could he have taken into
account the possibility that the likelihood that Schneyder would
appear if freed might change. At most, Judge Means‘ assessment
might have provided some rule-of-thumb guidance. It was not a
binding determination of Fourth Amendment reasonableness.
         Finally, we note that while Judge Means‘ order may have
placed an obligation upon Smith, that obligation was one that she
owed to the court rather than to Schneyder. The proper remedy for
the violation of such an order is a disciplinary proceeding or a
contempt charge, not a § 1983 suit by a third party. That is, Smith
owed two overlapping duties: One to the court, which obligated
her to obey the judge‘s order and which the court may enforce in
the same manner as any other order; and another to Schneyder,
which obligated Smith not to violate any constitutional rights and
which Schneyder may seek to enforce through civil-rights
litigation.




                                26
193 (3d Cir. 2004); Bodine v. Warwick, 72 F.3d 393, 400 (3d
Cir. 1995) (citing Restatement (Second) of Torts §§ 431,
440–53, and finding no proximate causation in a § 1983
excessive-force case). In tort law a person‘s action is a legal
cause of another‘s injury if ―his conduct is a substantial factor
in bringing about the harm.‖ Restatement (Second) of Torts §
431. ―Lurk[ing]‖ in this understanding of causation is ―the
idea of responsibility‖; the real question is whether an
ordinary person would regard the act in question as having
caused the harm, ―in the popular sense.‖ Id. cmt. a.

       On the facts before us, we conclude that Schneyder has
made her case. The District Court summarized much of the
relevant evidence in the course of making a slightly different
point:

       [There was] deposition testimony: (1) that the
       duty to notify Judge Means of a trial
       continuance did not rest [on] the Sheriff‘s
       Office, the Philadelphia prison system, or the
       court administration; (2) from Public Defender
       Paul Conway that defendant ―was the only one
       that ha[d] the information that [Judge Means]
       needed for him to make the decision‖ on
       plaintiff's continued detention; (3) from court
       personnel working in the chambers of Judges
       Poserina19 and Means that defendant‘s failure to
       notify Judge Means would not comport with
       their understanding of usual court practice and
       procedure; and (4) that following the release of
       Korvel Odd on January 13, 2005—who was
       kept in custody for 37 days after the criminal

       19
            Judge John J. Poserina presided in Overby.




                                  27
      case for which he was detained as a material
      witness was dismissed—assistant district
      attorneys were briefed on safeguards to ensure
      that no material witnesses were detained
      improperly.        These safeguards included
      centralizing procedures that required assistant
      district attorneys to seek a supervisor‘s approval
      of a material witness petition before presenting
      it to the judge; to present the petition to the
      judge assigned to the underlying criminal case;
      and to monitor the status of witnesses through
      the computer system to ensure that they were
      released promptly. Both Homicide Unit Chief
      Edward McCann and his assistant, Ann
      Ponterio, agreed that they ―indicated to the unit‖
      in January 2005 ―that when a witness is in
      custody and a case is either over, or is
      continued, or is guilty, or anything that we must
      make sure that the witness is released from
      custody.‖

709 F. Supp. 2d. at 381–82 (citations omitted). In addition to
this evidence, Judge Means‘ various statements, in chambers
and on the record, are relevant in that they indicate that he
was reliant on Smith to keep him apprised of Overby‘s status
so that he could monitor the continued reasonableness of
Schneyder‘s detention. Perhaps most importantly, Smith was
the only official who was in a position to do anything about
Schneyder‘s incarceration. She was responsible for the
issuance of the warrant and Schneyder‘s subsequent arrest,
and there does not appear to be anyone else she can point to
as being obligated to take steps to aid the court in monitoring
the continued reasonableness of the detention—including by




                              28
informing the court that the trial date had changed. As Smith
should have been well aware, it is the court‘s role—not a
prosecutor‘s—to assess the legality of an incarceration, and to
do so on a continuing basis and in light of changes in the
underlying facts. Smith also should have known that the
court would be unable to fulfill this function without a good-
faith effort on her part to keep Judge Means abreast of
developments in the Overby case. Schneyder has presented
sufficient evidence from which a jury could conclude that
Smith‘s failure to advise the court of the continuance was a
substantial factor in causing her Fourth Amendment injury.20

       Smith‘s duty as a state official not to cause the
violation of anyone‘s constitutional rights demanded that she
advise the court of any substantial change in the
circumstances justifying Schneyder‘s seizure as a material
witness. Smith was not required to advocate for Schneyder‘s
release; she was obligated to provide the court with the
information it needed to properly perform its adjudicative
function. A jury could find that she breached this duty, and

       20
          We recognize the potential here for a superseding cause
argument: Judge Means‘ independent will stood in between
Smith‘s disclosure of the continuance and Schneyder‘s liberation,
so Smith‘s omission cannot have been a proximate cause of
Schneyder‘s injuries. See, e.g., Troup v. Sarasota Cnty., 419 F.3d
1160, 1166 (11th Cir. 2005) (finding no causation in a § 1983 case
where ―the continuum between Defendant‘s action and the ultimate
harm is occupied by the conduct of deliberative and autonomous
decision-makers‖) (citation and internal quotation marks omitted).
Proximate cause is, however, generally a question for the jury, see
Rivas, 365 F.3d at 193, and there is ample evidence that Judge
Means would have released Schneyder without hesitation had
Smith lived up to her obligations.




                                29
thereby proximately caused a violation of Schneyder‘s Fourth
Amendment rights.

                              5

       To summarize what we have said so far: The liberty
interests of a detained material witness are protected by the
Fourth Amendment, because this court adheres to Justice
Ginsburg‘s ―continuing seizure‖ theory.            Schneyder‘s
detention was a seizure, but because she was not arrested as a
criminal suspect ―probable cause‖ is the wrong lens through
which to examine the case. Instead, to determine whether her
rights were violated we must assess whether the seizure was
―reasonable‖ within the Fourth Amendment‘s meaning. This
requires balancing Schneyder‘s interests against the
government‘s, and a jury could conclude that Schneyder‘s
interest in going free outweighed the government‘s interest in
keeping her locked up until the new trial date. If Schneyder‘s
rights were violated, Smith was the only official in a position
to prevent it—by keeping Judge Means informed of
significant changes in the facts underlying the detention
order. Smith‘s duty not to cause a violation of Schneyder‘s
constitutional rights required her to promptly report the
continuance in the Overby case to Judge Means—though she
would have been free to argue that continued detention was
warranted even in light of the new facts. Because Smith did
not fulfill this obligation, Schneyder has made out a prima
facie case for recovery of damages under § 1983.

                              B

       Because the foregoing discussion takes place in the
context of qualified immunity, our inquiry is not complete.
We still must decide whether the duty we have just identified




                              30
was clearly established at the time the violation occurred.
Ordinarily a constitutional duty is not clearly established
simply because of the existence of a broad imperative like the
one against ―unreasonable . . . seizures.‖ ―[I]f the test of
‗clearly established law‘ were to be applied at this level of
generality, it would bear no relationship to the ‗objective
legal reasonableness‘ that is the touchstone of Harlow.‖
Anderson v. Creighton, 483 U.S. 635, 639 (1987). Thus the
usual rule is that ―the right the official is alleged to have
violated must have been ‗clearly established‘ in a more
particularized, and hence more relevant, sense: The contours
of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.‖ Id. at 640.

       Although Anderson appears to require a relatively high
degree of specificity before a rule can be called ―clearly
established,‖ the Court was at pains to emphasize that ―[t]his
is not to say that an official action is protected by qualified
immunity unless the very action in question has previously
been held unlawful, but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.‖ Id. (citation
omitted). The Court further expounded this principle in a line
of cases beginning with United States v. Lanier, 520 U.S. 259
(1997). The ultimate question, the Court explained, is
whether the defendant had ―‗fair warning‘ that his conduct
deprived his victim of a constitutional right.‖ Hope v. Pelzer,
536 U.S. 730, 740 (2002) (quoting Lanier, 520 U.S. at 270–
71). The Court went on:

      [G]eneral statements of the law are not
      inherently incapable of giving fair and clear
      warning, and . . . a general constitutional rule
      already identified in the decisional law may




                              31
       apply with obvious clarity to the specific
       conduct in question, even though ―the very
       action in question has [not] previously been
       held unlawful.‖

Lanier, 520 U.S. at 271 (quoting Anderson, 533 U.S. at 640).
Most recently, the Court has reiterated:

       To be established clearly . . . there is no need
       that ―the very action in question [have]
       previously been held unlawful.‖ . . .
       [O]utrageous conduct obviously will be
       unconstitutional, this being the reason, as Judge
       Posner has said, that ―[t]he easiest cases don‘t
       even arise.‖ But even as to action less than an
       outrage, ―officials can still be on notice that
       their conduct violates established law . . . in
       novel factual circumstances.‖

Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. ---, 129 S.
Ct. 2633, 2643 (2009) (quoting Wilson v. Layne, 526 U.S.
603, 615 (1999); K.H. ex rel. Murphy v. Morgan, 914 F.2d
846, 851 (7th Cir. 1990); Hope, 536 U.S. at 741).

        ―To determine whether a new scenario is sufficiently
analogous to previously established law to warn an official
that his/her conduct is unconstitutional, we ‗inquir[e] into the
general legal principles governing analogous factual
situations . . . and . . . determin[e] whether the official should
have related this established law to the instant situation.‘‖
Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 177 (3d Cir. 2011)
(quoting Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 1985))
(alterations in original). In extraordinary cases, a broad
principle of law can clearly establish the rules governing a




                               32
new set of circumstances if the wrongfulness of an official‘s
action is so obvious that ―every objectively reasonable
government official facing the circumstances would know
that the official‘s conduct did violate federal law when the
official acted.‖ Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th
Cir. 2002). A plaintiff ―can demonstrate that the right was
clearly established by presenting a closely analogous case that
establishes that the Defendants‘ conduct was unconstitutional
or by presenting evidence that the Defendant‘s conduct was
so patently violative of the constitutional right that reasonable
officials would know without guidance from a court.‖ Estate
of Escobedo v. Bender, 600 F.3d 770, 779–80 (7th Cir. 2010)
(citing Hope, 536 U.S. at 739–40). ―There has never been a
section 1983 case accusing welfare officials of selling foster
children into slavery; it does not follow that if such a case
arose, the officials would be immune from damages liability
because no previous case had found liability in those
circumstances.‖ K.H., 914 F.2d at 851.

        Although we are aware of no decision predating
Smith‘s actions that involved the sort of claim that Schneyder
has raised here, we are nevertheless convinced that this is one
of those exceedingly rare cases in which the existence of the
plaintiff‘s constitutional right is so manifest that it is clearly
established by broad rules and general principles. That is,
this ought to have been a member of that class of ―easiest
cases‖ that, according to Judge Posner, ―don‘t even arise.‖
Id.; Redding, 129 S. Ct. at 2643. One of the ―point[s] of the
Fourth Amendment‖ is to require that decisions involving
citizens‘ security from searches and seizures be made
wherever practicable by a ―neutral and detached magistrate‖
rather than by a police officer or prosecutor possessed of a
natural bias towards uncovering crime and obtaining




                               33
convictions. Johnson v. United States, 333 U.S. 10, 13–14
(1948). Thus the Court has established that a criminal suspect
is entitled to a prompt judicial determination that his arrest
and detention is justified by probable cause. Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); Gerstein,
420 U.S. at 124–25. And numerous courts have reached the
almost tautological conclusion that an individual in custody
has a constitutional right to be released from confinement
―after it was or should have been known that the detainee was
entitled to release.‖ Cannon v. Macon Cnty., 1 F.3d 1558,
1563 (11th Cir. 1993); see also Fairley v. Luman, 281 F.3d
913, 917–18 (9th Cir. 2002); Armstrong v. Squadrito, 152
F.3d 564, 573–76 (7th Cir. 1998); Gray v. Cuyahoga Cnty.
Sheriff’s Dep’t, 150 F.3d 579, 582–83 (6th Cir. 1998);
Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992); cf.
Baker v. McCollan, 443 U.S. 137, 144–45 (1979) (assuming
that ―mere detention pursuant to a valid warrant but in the
face of repeated protests of innocence will after the lapse of a
certain amount of time deprive the accused of ‗liberty . . .
without due process of law‘‖). It should have required little
thought about these cases, in light of background knowledge
of the operation of the Bill of Rights within the justice
system, to have given a reasonable prosecutor ―fair warning‖
that she had a duty to ensure that the incarceration of an
innocent person was at all times approved by a judicial
officer.

       Smith took it upon herself to decide that Schneyder
ought to be incarcerated well past the point at which explicit
judicial authorization had expired.       Whether to keep
Schneyder in jail should have been the court‘s decision, and
Smith knew it. Judge Means had announced his intention to
let Schneyder go if the trial date were moved, but Smith took




                              34
the position that ―she should be held until she testified.‖
Actually, to say that she ―took the position‖ is too generous,
because Smith never presented the court with any such
argument. She ―advocated‖ her position by failing to reveal
an obviously pertinent fact, thereby preventing the judge from
doing his job. Moreover, the stance Smith purports to have
taken is so patently erroneous as a matter of constitutional
law as to be frivolous. No reasonable prosecutor would think
that she could indefinitely detain an innocent witness pending
trial without obtaining reauthorization. And there can be no
doubt that is what Smith intended. The trial at which
Schneyder was to testify did not take place until more than a
year and a half after her arrest, and there is no indication that
Smith would ever have taken steps of her own volition to free
her key witness or even to have her status reviewed. If the
initial continuance was not something Smith felt a need to
report, there is no reason to think that she would have advised
Judge Means of any of the subsequent developments. Were it
not for the persistence of Schneyder‘s family and the
generous efforts of a public defender with cases of his own
and no prior connection to the plaintiff, there can be no telling
how long she would have remained locked up.21

       ―When properly applied, [qualified immunity] protects
‗all but the plainly incompetent or those who knowingly
violate the law.‘‖ al-Kidd II, 131 S. Ct. at 2085 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). The self-
evident wrongfulness of Smith‘s conduct is sufficient to place

       21
            The judges comprising this panel—all three former
prosecutors—feel secure in declaring that any reasonable attorney
in Smith‘s position would have known that her course of action
was so outrageous as to be unconstitutional, even in the absence of
a case telling her so.




                                35
her in either category.    She is not entitled to qualified
immunity.

                             IV

        The final issue we must address is whether Smith, as a
prosecutor, is entitled to absolute immunity from liability.
The court has already answered this question in the negative,
Odd, 538 F.3d at 214, so the ―law of the case‖ doctrine would
ordinarily preclude this panel from reconsidering it. Pub.
Interest Research Grp. v. Magnesium Elektron, 123 F.3d 111,
116 (3d Cir. 1997). But because this is a rule of discretion
rather than a limit on authority, it does not apply in
―extraordinary circumstances.‖ Id. These ―include situations
in which: (1) new evidence is available; (2) a supervening
new law has been announced; or (3) the earlier decision was
clearly erroneous and would create manifest injustice.‖ Id.
(citations omitted). Smith of course thinks that our earlier
adverse ruling was wrongly decided; she bolsters this position
by asserting that both newly developed facts and the Supreme
Court‘s intervening decision in Van de Kamp v. Goldstein,
555 U.S. ---, 129 S. Ct. 855 (2009), have sufficiently altered
the landscape that our earlier decision should be disregarded.
Notwithstanding these changes in context, we remain of the
view that granting prosecutorial immunity would be
inappropriate in this case.

                              A

       Before considering Smith‘s arguments, we briefly
rehearse the rationale for denying absolute immunity that we
set forth in Odd. The basic premise behind the immunity
doctrine is that prosecutors should not be encumbered by the
threat of civil liability while performing judicial or quasi-




                             36
judicial functions. See Odd, 538 F.3d at 208. But a person is
not immune from suit for every wrong he commits just
because he happens to be employed as a prosecutor: the
―inquiry focuses on ‗the nature of the function performed, not
the identity of the actor who performed it.‘‖ Id. (quoting
Light v. Harris, 472 F.3d 74, 78 (3d Cir. 2007)). Analysis of
prosecutorial immunity questions thus has two basic steps,
though they tend to overlap. The court must ascertain just
what conduct forms the basis for the plaintiff‘s cause of
action, and it must then determine what function
(prosecutorial, administrative, investigative, or something
else entirely) that act served. See id.

       The first stage ―focuses on the unique facts of each
case and requires careful dissection of the prosecutor‘s
actions.‖ Id. at 210 (citations omitted). Thus in Odd we
―carefully defin[ed] the act (or rather omission) that gave rise
to Schneyder‘s suit‖ as a ―failure to notify Judge Means (per
his order and per local custom) that the Overby case had been
continued.‖ Id. at 212. Elsewhere we described it as an
omission to ―inform[] the court about the status of a detained
witness.‖ Id. at 213. From these definitions, ―it follow[ed]
that Smith is not entitled to absolute prosecutorial immunity,‖
because her obligation ―was primarily administrative,
especially in light of Judge Means‘s explicit order that he be
advised of any delay in the Overby proceedings. Smith‘s duty
to advise Judge Means of these facts required no advocacy on
her part.‖ Id.

       We then raised three additional points to bolster our
conclusion. First, because of the continuance in Overby,
―Smith‘s failure to act occurred during [a] period of judicial
inactivity‖—a fact that ―cast[] serious doubt on Smith‘s
claims that her actions [were] ‗intimately associated with the




                              37
judicial phase‘ of the litigation.‖ Id. at 213–14 (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Second, in
light of Judge Means‘ alleged orders that Smith inform him of
changes in Overby‘s status, the court stated: ―We can
imagine few circumstances under which we would consider
the act of disobeying a court order or directive to be
advocative, and we are loath to grant a prosecutor absolute
immunity for such disobedience.‖ Id. at 214. Finally, we
pointed out that the custom and practice of the Philadelphia
courts was to assign sole responsibility for monitoring
material witnesses to the District Attorney‘s Office and to
individual prosecutors, and that the gist of this obligation
(consistent with Fed. R. Crim. P. 46(h)) is ―plainly
administrative.‖ Id. All this together convinced us that the
duty Smith failed to fulfill was an administrative one, lacking
any significant discretionary or advocative component.
Accordingly, we ruled that absolute immunity was
inapplicable. Id.

                              B

       We now turn to Smith‘s arguments for setting our prior
decision aside. First, she proffers ―new evidence‖ in the form
of the transcript of Schneyder‘s bail hearing. On Smith‘s
reading, the colloquy between Judge Means, Smith, and
Schneyder contains no explicit directive that Smith advise the
court in the event of a continuance. Smith claims that in the
absence of a clear order, her decision regarding what to tell
the court was discretionary and thus not administrative.

      Even were we to accept Smith‘s interpretation of the
evidence (contrary to the rules governing adjudication of her
own motion for summary judgment), her argument is
mistaken in its dependence on the Odd panel‘s references to




                              38
the alleged order as the source of an administrative duty.
While the order was a relevant and supporting consideration,
it was not determinative of the court‘s conclusion. As
explained above, see supra note 18, the duty being enforced
in this lawsuit arises from the Constitution, not from the
authority of a state judge‘s order. Thus we must ask whether
Smith‘s violation of that constitutional obligation constituted
an administrative act or an advocative one. Whether or not
the judge issued an order therefore does not control the case,
and Smith‘s new evidence is unavailing.

                              C

       The next question is whether the Supreme Court‘s
decision in Van de Kamp v. Goldstein abrogates the legal
conclusion we reached in Odd. Goldstein had been convicted
and imprisoned after the prosecution failed to provide defense
counsel with important information which could have been
used to impeach an informant-witness. After the evidence
came to light, Goldstein sued under § 1983, arguing that the
failure to disclose violated his constitutional rights. Because
the two defendants in Van de Kamp occupied managerial and
oversight roles and were not individually responsible for
withholding the information, Goldstein advanced theories of
failure to adequately train and supervise the prosecutors who
worked under them, and of failure to maintain an information
system about informants. See 129 S. Ct. at 859.

       The Supreme Court concluded that the defendants
were entitled to absolute immunity. After setting out the
basic functional approach outlined above, the Court reasoned
that while the supervisory, training, and management
functions in question were properly characterized as
administrative, the obligations they created were ―directly




                              39
connected with the conduct of a trial.‖ Id. at 862. Writing for
a unanimous Court, Justice Breyer first observed that a low-
level prosecutor would be immune from suit for the
underlying failure to disclose.         Id.   It followed that
supervisory prosecutors would also be immune from a direct
attack on their actions relating to a particular trial (i.e., their
own failure to find and turn over the evidence in question),
because such actions would also be closely associated with
the judicial process. Id. From there the Court argued that
there is no way to draw a clean line between supervision and
training related to a particular case and an office‘s more
general policies and practices. Id. at 862–63. Although the
development and implementation of such general policies are
administrative in nature, the practices in question
―concern[ed] how and when to make impeachment
information available at a trial. They are thereby directly
connected with the prosecutor‘s basic trial advocacy duties.‖
Id. at 863. Allowing the suit to go forward would open up
prosecutors‘ offices to suit in virtually every case in which a
line prosecutor makes a mistake for which he is personally
immune. This would have been both anomalous and contrary
to the purposes of the absolute immunity doctrine. See id.22

       Smith argues, and we agree, that Van de Kamp
establishes subcategories within the ―administrative‖ class of

       22
           As regards the failure to maintain an adequate
information system, the Court reasoned that allowing the claim to
go forward would force courts to inquire not only into whether to
maintain such a system, but also into the system‘s operation and
contents. This, in the Court‘s view, would require review of
prosecutors‘ exercise of legal judgment—exactly the kind of thing
prosecutorial immunity is meant to prevent. See Van de Kamp,
129 S. Ct. at 864.




                                40
official functions. That is, some administrative functions
relate directly to the conduct of a criminal trial and are thus
protected, while others (―concerning, for example, workplace
hiring, payroll administration, the maintenance of physical
facilities, and the like,‖ id. at 862) are connected to trial only
distantly (if at all) and are therefore not subject to immunity.
The question is whether Van de Kamp alters the result in Odd.

        One thing that Van de Kamp does not change is our
characterization of the conduct in question as the
nonperformance of a constitutional duty to advise the court of
a significant change in the circumstances surrounding the
detention of a material witness. We also continue to think
that this duty is, broadly speaking, administrative rather than
advocative. After Van de Kamp, we must ask the further
question whether this is the sort of administrative duty the
performance or nonperformance of which is protected by
prosecutorial immunity. We hold that it is not.

       As we stated in Odd, there was no advocative or
discretionary dimension to Smith‘s dereliction of her duty.
She was the only person with knowledge of the relevant facts,
and she was obligated to ensure that the court had information
sufficient to monitor Schneyder‘s status. Smith was not
obligated to argue for Schneyder‘s release; she was required
only to do what was necessary to allow the court to perform
its oversight function. It is true that this was not a
paradigmatic, ―workplace hiring‖ type of administrative duty,
but neither was it directly connected to the conduct of a trial.
After the continuance, the Overby case was a long way off,
and it simply is not the prosecutor‘s prerogative to decide
how long to keep a material witness detained. Declining to
reveal the change in Overby‘s status was an abdication of
Smith‘s responsibility to provide the court with information




                               41
sufficient for it to decide an issue within its sole competence.
As the sole government official in possession of the relevant
information, Smith had a duty of disclosure that was neither
discretionary nor advocative, but was instead a purely
administrative act not entitled to the shield of immunity, even
after Van de Kamp.

                               V

        On the record before us, we conclude that Smith is not
entitled to either qualified or absolute immunity. Her motion
for summary judgment therefore fails, and we will affirm the
District Court‘s order.




                              42
Schneyder v. Smith, No. 10-2367

McKee, Chief Judge, concurring.


        I agree wholeheartedly with the majority’s opinion and
therefore join my colleague’s analysis in its entirety. I write
separately merely to suggest that the issue before us is not as
complex as the majority's very methodical analysis may
imply. Although the rather complex subtlety and nuance of
the majority opinion is extraordinarily useful in resolving this
issue, it should not give rise to an argument that a reasonable
prosecutor could not have anticipated today’s result.

       The central inquiry before us is simple: would a
reasonable prosecutor have known that detaining a material
witness for 48 days after a trial has been continued may have
been contrary to the wishes of the authorizing court, and that
this additional detention violated the witness’ constitutional
rights? See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))
It takes neither a panel of federal judges nor a prescient
prosecutor to know that the answer to both questions is a
resounding “yes.”
                                   I.

       There are very important reasons to afford prosecutors
immunity from law suits. As the Supreme Court has
explained, immunity allows a prosecutor to focus his/her
energy and attention on the trial at hand as opposed to having
to worry about being forced to “answer in court each time [] a
person charged him[/her] with wrongdoing.” Imbler v.
Pachtman, 424 U.S. 409, 425 (1976). It is just as clear that
there are also very important policies that counsel against
allowing prosecutors to act with impunity by taking it upon
themselves to determine when, and if, someone who has been
properly incarcerated should be released. This is especially
true when additional detention may well be contrary to the
instructions of the judge who authorized the initial seizure
and detention, and when the circumstances suggest that the
judge would no longer allow the person to be incarcerated.

       The Supreme Court has cautioned that, “[t]he public
trust of the prosecutor's office would suffer if he were
                               1
constrained in making every decision by the consequences in
terms of his own potential liability in a suit for damages." Id.
at 425-26. However, it is no less certain that public trust of
that office as well as of the Constitution that the office is
sworn to uphold would suffer if prosecutors were allowed to
take it upon themselves to decide when and if someone
should be released from incarceration.

       Here, Smith clearly took it upon herself to decide
when and if Schneyder would be released.1                 After
Schneyder’s family repeatedly called Smith asking when
Schneyder could leave state custody, Smith informed them,
“I’m not going to let her go until this matter is resolved.”
(App. 257) (emphasis added). The umbrella of immunity
surely was not intended to shelter such conduct. The power to
release Schneyder did not reside in Smith nor in any other
prosecutor. It resided in the court, and it continued to reside
there after the Overby trial was postponed. Smith may well
have been troubled by the prospect of releasing Schneyder
and risking an acquittal of Overby, but that was not her
decision to make. It is certainly not a novel precept of Anglo
American jurisprudence to suggest that once the Overby trial
was continued, Smith should have made any concerns about
Schneyder's availability known to Judge Means so that the
court could then decide whether it was still reasonable to
detain Schneyder under the Fourth Amendment.2

1
  Since we are reviewing a motion to dismiss, we must accept
the evidence in the light most favorable to the plaintiff, and
draw all reasonable inferences in her favor. See Giuffre v.
Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994).
2
  Nor am I concerned that Smith could not have foreseen a
Fourth Amendment violation because additional detention
appeared to be a due process issue. See Bell v Wolfish, 441
U.S. 520, 535 (1979), and Maj. Op. at 13. Regardless of the
label, the foundation of the required analysis is surely the
same under § 1983. Any reasonable prosecutor should have
known the limits of the prosecutorial function and the
difference between the role of the prosecutor and the role of
the judge. And any reasonable prosecutor should have known
that the Constitution is always implicated when a person is
deprived of his/her liberty by a state sponsored seizure and
subsequent detention.
                               2
                                    II.

       Smith should have realized that holding Schneyder
even after the Oberby trial was postponed was contrary to the
authority Judge Means had afforded her. At the bail hearing,
Judge Means clearly stated on the record that he was uneasy
with incarcerating a person who was not accused of any crime
in order to obtain her testimony at a subsequent trial. He
stated, “I don’t like setting bail on people who are not
accused of a crime.” (App. 55 - 56). He also stated, “if the
case breaks down, let me know early and I’ll let you out, Ms.
Schneyder.”3 (App. 55-56).

        Judge Means had every reason to believe that
Schneyder would only be held in custody for a few weeks
because Smith told the court that the trial would begin “six
days from today” and that it would be a “ten-day trial at
most.” (App. 55-56). Indeed, it is difficult to read this
transcript and conclude anything other than that the judge
believed that he was only authorizing Schneyder's detention
for a couple of weeks - the time it would take to start and
finish the Overby trial.

        Smith’s actions were also an unreasonable usurpation
of the judicial authority to detain a material witness in light of
the prevailing custom in the prosecutor's office. Judge Means
testified that the “practice and custom in the Court of

3
  In her brief, Smith contends that this statement suggests that
the judge placed the onus on Schneyder to notify him about
delays in the case. The argument is disingenuous. Judge
Means stated in his subsequent affidavit that he “explicitly
placed the onus on Ms. Smith to notify [him] if for any reason
the Overby case was continued or broke down.” (App. 215).
Moreover, to the extent that the Commonwealth argues that
the judge intended for Schneyder to contact him, this is an
issue of fact that must be resolved against the Commonwealth
at this stage of the proceedings. See Deary v. Three Un-
Named Officers, 746 F.2d 185 (3rd Cir. 1984).

                                3
Common Pleas in these situations [involving material witness
detentions] is for the prosecutor to bring the matter back to
court to address any outstanding issues.” (App. 215). That
custom is also evidenced by testimony from Edward McCann,
then-Chief of the District Attorney’s Homicide Unit and
Smith’s own supervisor. He stated that “it’s a well-known
office policy and Homicide Unit policy” that Smith would
have a responsibility to notify him if a case had been
continued and a material witness was held in custody. (App.
84). The policy existed since McCann “came into the DA’s
office [in 1989].” (App. 84, 90). Thus, a reasonable
prosecutor should have realized that she could not take it
upon herself to decide when a detained witness would be
released from custody.4

       I do not, of course, suggest that the policy of a
prosecutor's office can give rise to a right of constitutional
import under § 1983.          However, there was nothing
unreasonable or novel about Judge Means’ request to be told
of any continuance in the Overby trial because Means was
only authorizing Schneyder's detention for the brief period he
had been told was necessary to obtain Schneyder’s testimony
there.
                                III.

4
  As the majority notes, we previously rejected Smith's claim
of absolute immunity. In Odd v. Malone¸538 F.3d 202, 206
(2008), we considered Smith's appeal along with a similar
appeal involving an A.D.A. who refused to inform the
authorizing court that the proceeding in which a material
witness was to testify had been continued. We noted that the
judge in the companion case was "[f]urious," upon learning
she had not been informed, and the judge released the witness
and "demanded that [the A.D.A.] appear before her to explain
why the plaintiff had been forced to remain in jail."

   Judge Means' reaction here was similar. Judge Means and
his staff were "shocked" and "astonished" when they learned
that Schneyder was still incarcerated, and the judge
repeatedly apologized to Schneyder. He told her: "again I
apologize from the bottom of my heart for what happened to
you." (App. 7).

                              4
        Nothing we say here suggests that a judge in this
situation would not have the authority to authorize continued
incarceration of a material witness if the trial s/he is to testify
at is postponed. Had Judge Means been properly informed of
the continuance, he could have again considered the
circumstances and competing interests (including Schneyder's
liberty interest) and could have concluded - based upon all the
circumstances - that Schneyder's continued incarceration was
both justified and appropriate.

       However, that is not the point. The fact that
Schneyder may have remained in custody even if Smith had
told the court of the continuance does not mean that Smith is
somehow entitled to immunity. Rather, the point of our
holding today is quite simply that any reasonable prosecutor
should know that the authority to incarcerate belongs to the
court, not the prosecutor,5 and that one who disregards that
basic tenet violates a clearly established constitutional right.
I think it is helpful to look beneath the intricacies and
algebraic equations that assist my colleagues’ analysis,
because our holding results in nothing more surprising than
that extraordinarily unremarkable conclusion. Neither our
holding today, nor the reactions of the judges whom I
reference in footnote4 should come as a surprise to anyone
with even a rudimentary familiarity with the restrictions
imposed on the power of the state by the Fourth Amendment,
or the distinction between the prosecutorial function and
judicial authority.




       5
        See Odd, 258 F.3d at 214 ("In short, it is a judicial
function - the function of the courts - not a prosecutorial
function, to determine whom to incarcerate and for what
length of time.").

                                5
