PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-2390

____________

JAMES DENNIS

v.

CITY OF PHILADELPHIA; DETECTIVE FRANK 

JASTRZEMBSKI; DETECTIVE MANUEL SANTIAGO; 

OFFICERS JOHN DOE(S), INDIVIDUALLY AND AS 

POLICE OFFICERS FOR THE CITY OF PHILADELPHIA

FRANK JASTRZEMBSKI; MANUEL SANTIAGO,

 

Appellants

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-18-cv-02689)

District Judge: Honorable Eduardo C. Robreno 

 

 

Argued on January 20, 2021
2

Before: SMITH, Chief Judge, HARDIMAN and ROTH, 

Circuit Judges

(Opinion filed: November 23, 2021)

Shane Haselbarth (ARGUED)

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street

Suite 2300

Philadelphia, PA 19103

Counsel for Appellants

Craig R. Gottlieb

City of Philadelphia

Law Department

17th Floor

1515 Arch Street

Philadelphia, PA 19102

Counsel for Appellee City of 

Philadelphia

Paul M. Messing (ARGUED)

David Rudovsky

Kairys Rudovsky Messing Feinberg & Lin

718 Arch Street

Suite 501 South

Philadelphia, PA 19106

Counsel for Appellee James Dennis
3

O P I N I ON 

ROTH, Circuit Judge:

This is an interlocutory appeal from the Order of the 

District Court for the Eastern District of Pennsylvania, denying 

defendant-appellants’ Motion to Dismiss James Dennis’s

Section 1983 claims. Defendant-appellants are police 

detectives with the Philadelphia Police Department, who 

investigated Dennis for charges relating to the murder of a 

young high-school student in 1991, a crime for which Dennis 

was convicted. In 2013, the District Court granted Dennis’s 

habeas petition and vacated his murder conviction; that 

decision was affirmed by our Court en banc in 2016.1 Shortly 

thereafter, Dennis brought the present action, asserting Section 

1983 claims against the defendants and alleging, inter alia, the 

violation of his constitutional rights under the Fourteenth 

Amendment. Defendants moved to dismiss the complaint,

arguing, among other things, that they are entitled to qualified 

immunity and that the suit is barred by Heck v. Humphrey.

2

 

After the District Court denied their motion, the detectives 

filed this interlocutory appeal.

I.

1 Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 269 (3d 

Cir. 2016) (en banc).

2 512 U.S. 477 (1994).
4

Dennis was charged with the 1991 robbery and firstdegree murder of a young woman, Chedell Williams; he was

convicted and sentenced to death. In 2013, the United States 

District Court for the Eastern District of Pennsylvania granted 

Dennis’s habeas petition, vacated his conviction, and ordered 

a new trial on all charges, finding that Dennis’s prosecutors 

withheld material impeachment evidence.3 In August 2016, 

our Court, sitting en banc, affirmed the District Court’s 

decision and remanded the case to state court.

4

 

On remand, Dennis was offered a deal, in exchange for 

a time-served sentence, to plead nolo contendere to reduced 

charges of third-degree murder, robbery, carrying a firearm 

without a license, possession of an instrument of crime with 

the intent to employ it criminally, and conspiracy to commit 

robbery. Rather than risk a new trial and the possibility of 

further imprisonment, Dennis accepted the deal and was 

sentenced to 121⁄2 to 25 years imprisonment; he was given 

credit of 9,162 days for the time he had already served in prison 

for those crimes, and he was then released. 

Shortly thereafter, Dennis brought this action against 

Detective Frank Jastrzembski, Detective Manuel Santiago 

(collectively, the detectives), Officer John Doe(s), and the City 

of Philadelphia for fabrication of evidence and for deliberate 

deception under the Fourteenth Amendment of the 

Constitution and 42 U.S.C. § 1983 (Count I), civil rights 

conspiracy (Count II), failure to intervene (Count III), 

supervisory liability against Detective Jastrzembski (Count 

3 Dennis v. Wetzel, 966 F. Supp. 2d 489 (E.D. Pa. 2013). 

4 Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d at 269. 
5

IV), and municipal liability against the City of Philadelphia 

(Count V). 

Dennis’s complaint alleges that the detectives’ 

investigation of Williams’ 1991 murder involved conduct that 

violated his due process rights. First, Dennis alleges that the 

detectives concealed information about other individuals, who

had confessed their involvement with the murder or who knew 

who was involved, and that the detectives coerced/concealed

certain other witnesses. Specifically, Dennis alleges that the 

detectives never followed up on inconsistencies in statements 

made by Zahra Howard, who was with Williams on the day of 

her murder. Ms. Howard originally told the detectives that she 

never saw the assailants but later told her aunt and uncle that 

she recognized the assailants from Olney High School, a 

school that Dennis had never attended. Howard’s aunt and 

uncle informed the detectives about her statement; it was also 

corroborated by the victim’s aunt. This information, which 

was recorded in the detectives’ activity logs, was concealed 

from Dennis for ten years. 

In addition, Dennis alleges that several days after the 

murder, Montgomery County law enforcement advised the 

Philadelphia Police Department that an inmate in their County 

Prison spoke with a man who confessed his involvement in 

Williams’s murder. A signed statement from the inmate 

included details about all three men involved in the murder and 

identified the source of the information. However, defense 

trial counsel never received any materials relating to the 

investigation of these three individuals; the information was 
6

only revealed 10 years later during Post Conviction Relief Act 

(PCRA)5 discovery. 

Second, Dennis alleges that the detectives fabricated 

evidence to secure his conviction. Specifically, Dennis alleges

that the detectives falsely claimed to have found certain 

clothing items that matched those of the shooter, as described 

by eyewitnesses to the murder. He further alleges that 

Detective Jastrzembski falsely testified that the clothing was 

found at Dennis’s residence but later “disappeared” from 

police headquarters prior to trial. He also alleges that the 

detectives coerced and threatened Charles Thompson to testify 

falsely at trial that he saw Dennis with a gun the night of the 

murder.

Third, Dennis alleges that the detectives concealed

evidence that would have supported his alibi. Specifically, 

Dennis’s alibi that he was elsewhere at the time of the murder

would have been corroborated by a witness’s time-stamped 

welfare receipt. When questioned by the detectives, the 

witness based her time estimates on the receipt’s military-style 

timestamp of 13:03 (1:03 PM), which she mistook to mean 

3:03 PM. The detectives did not correct the witness when she 

misread the receipt’s military-style timestamp while they were 

interviewing her; instead, they took the only copy of the receipt 

and never shared it with Dennis or the prosecutors. Dennis’s 

trial counsel never obtained a copy; the witness testified based 

on her earlier misreading of the receipt; and it was not until 

direct appeal that a copy of the receipt revealed the witness’s 

mistake.

5 42 Pa. Cons. Stat. §§ 9541 et seq.
7

Dennis also alleges that only four of the nine 

eyewitnesses identified by Philadelphia Police had selected 

him from the lineup; three of those four testified for the 

Commonwealth at Dennis’s trial. After learning this 

information, Dennis’s counsel requested a new lineup with all 

nine eyewitnesses. The new lineup never occurred.

Defendants moved to dismiss Dennis’s claims under 

Rule 12(b)(6) of the Federal Rules of Civil Procedure. They 

argued, among other things, that the action is barred by Heck 

v. Humphrey6and that they are entitled to qualified immunity 

because Dennis has failed to allege a constitutional violation of 

clearly established law. On May 15, 2019, the District Court

partially granted the motion as to the City and denied the 

motion as to the detectives. The detectives appealed. 

II. SCOPE OF REVIEW

“We exercise de novo review of a district court’s denial 

of a motion to dismiss on qualified immunity grounds as it 

involves a pure question of law.”7In reviewing a denial of 

qualified immunity at the Rule 12(b)(6) stage of litigation, we 

must accept Dennis’s allegations as true and draw all 

inferences in his favor.8

6 512 U.S. 477 (1994); Appx. 1–35 (Memorandum Opinion of 

the District Court). 

7

James v. City of Wilkes–Barre, 700 F.3d 675, 679 (3d Cir.

2012) (citation omitted).

8 George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013).
8

III. APPELLATE JURISDICTION

The District Court has subject matter jurisdiction over 

Dennis’s federal claims under 28 U.S.C. § 1331.9“Ordinarily 

we do not have jurisdiction to review district court orders 

denying motions to dismiss . . . because there is no final order 

within the meaning of 28 U.S.C. § 1291.”10 However,

in Ashcroft v. Iqbal,

11

“the Supreme Court held that a district 

court order denying a motion to dismiss based on qualified 

immunity [can be] appealable under the collateral order 

doctrine.”

12

 To review a collateral order, the order must 

conclusively determine the disputed question.13 A refusal to 

9 HIRA Educ. Servs. N. Am. v. Augustine, 991 F.3d 180, 187 

(3d Cir. 2021).

10 Acierno v. Cloutier, 40 F.3d 597, 605 (3d Cir. 1994) (citation 

omitted).

11 556 U.S. 662, 672–75 (2009).

12 Rehiel, 738 F.3d at 570–71.

13 Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 208 (3d 

Cir. 2001) (explaining that collateral orders become 

reviewable when they “(1) conclusively determine the disputed 

question, (2) resolve an important issue completely separate 

from the merits of the action, and (3) be effectively 

unreviewable on appeal”); L.R. v. Sch. Dist. of Philadelphia, 

836 F.3d 235, 240–41 (3d Cir. 2016) (“[A] district court’s 

denial of a claim of qualified immunity, to the extent that it 

turns on an issue of law, is an appealable ‘final decision’ within 

the meaning of 28 U.S.C. § 1291 notwithstanding the absence 

of a final judgment.”).
9

dismiss is a ruling “conclusive as to this right,” for which 

immediate appeal is available.14

Before the District Court, the defendants argued that 

qualified immunity attaches to any Brady v. Maryland15 claim 

because (1) in 1992, when the alleged violations occurred, no 

reasonable detective could have known that she could be sued 

for a Brady violation by a plaintiff that pled guilty or nolo 

contendere, and (2) the police’s Brady obligations were not 

clearly established in 1992. The District Court denied the 

motion. 

In analyzing qualified immunity, the District Court 

found that the defendants’ arguments improperly characterized 

Dennis’s claims. It found that Dennis had not asserted any

claims involving Brady violations against the detectives, only 

claims for fabrication of evidence and deliberate deception. 

That said, the District Court left open the opportunity for the 

defendants to reassert their qualified immunity defense at a 

later date. 

Despite leaving open the opportunity for the defendants

to re-raise their qualified immunity defense at a later date, the 

District Court’s express denial of qualified immunity is a 

conclusive determination of an important issue that is 

completely separable from the merits and is unreviewable on 

appeal from final judgment.

16 This is sufficient to give rise to 

14 Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017) (quoting 

Behrens v. Pelletier, 516 U.S. 299, 308 (1996)).

15 373 U.S. 83 (1963).

16 Mitchell v. Forsyth, 472 U.S. 511, 512 (1985).
10

appellate jurisdiction over the qualified immunity ruling to the 

extent it turns on an issue of law. 

Our jurisdiction over this interlocutory appeal does not, 

however, extend to the question of whether Dennis’s claims are 

barred by Heck. We have discretion to exercise jurisdiction 

over a decision that is not independently appealable where (1) 

it is “‘inextricably intertwined’” with an appealable decision or 

(2) review of the ordinarily non-appealable decision is 

“necessary to ensure a meaningful review” of an appealable 

decision.17 However, jurisdiction does not exist over a nonappealable decision simply because it arises out of “‘the same 

factual matrix’” of an appealable decision, even if considering 

the decisions together would serve judicial efficiency.18

The District Court’s Heck ruling is not inextricably 

intertwined with its qualified-immunity ruling, nor is 

reviewing the Heck ruling necessary to ensure a meaningful 

review of the qualified-immunity ruling. A Heck inquiry turns 

on “whether a judgment in favor of the plaintiff would 

necessarily imply the invalidity of his conviction or 

sentence.”19 By contrast, a qualified immunity inquiry turns 

on “(1) whether the plaintiff sufficiently alleged the violation 

of a constitutional right, and (2) whether the right was ‘clearly 

established’ at the time of the official’s conduct.”20 These 

17 Reinig v. RBS Citizens, N.A., 912 F.3d 115, 130 (3d Cir. 

2018) (quoting CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc., 

381 F.3d 131, 136 (3d Cir. 2004)).

18 Id. (quoting Hoxworth v. Blinder, Robinson & Co., 903 F.2d 

186, 209 (3d Cir. 1990)). 

19 512 U.S. at 487. 

20 L.R., 836 F.3d at 241.
11

inquiries are distinct and separable. In addition, the Heck issue 

“is effectively reviewable on appeal. . . . [U]nlike immunity 

rights where the right is lost if the case goes to trial, an 

appellate court can reverse the district court after entry of a 

final judgment without departing from the holding or purpose

of Heck.”21 Accordingly, a number of our sister Courts of 

Appeals have held that they lack jurisdiction to consider Heck 

on an interlocutory appeal from denial of qualified immunity.22

The detectives try to bring Heck within our jurisdiction 

by shoehorning Heck into the qualified immunity analysis. 

They cite Ashcroft v. Iqbal, where the Supreme Court held that 

“whether a particular complaint sufficiently alleges a clearly 

established violation of law cannot be decided in isolation from 

the facts pleaded. In that sense, the sufficiency of [a] pleading 

is both ‘inextricably intertwined with,’ and ‘directly implicated 

by,’ the qualified-immunity defense.”23 The detectives 

essentially argue that, if Heck bars Dennis’s claims, he has 

failed to state a claim upon which relief can be granted, and 

21 Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000).

22 See id. at 1285; Sayed v. Virginia, 744 F. App’x 542, 547–

49 (10th Cir. 2018) (collecting cases); Harrigan v. Metro Dade 

Police Dep't Station No. 4, 636 F. App’x 470, 476 (11th Cir. 

2015); Norton v. Stille, 526 F. App’x 509, 515 (6th Cir. 2013); 

Scott v. City of Pasadena, 373 F. App’x 759 (9th Cir. 2010). 

To be sure, circuit courts have not been unanimous on this 

issue. However, courts that have considered Heck on an 

interlocutory appeal have generally done so without explaining 

in detail the basis for their jurisdiction. See, e.g., Poole v. City 

of Shreveport, 13 F.4d 420, 426–27 (5th Cir. 2021); Lucier v. 

City of Ecorse, 601 F. App’x 372, 376 (6th Cir. 2015).

23 556 U.S. at 673.
12

thus failed to allege sufficiently the violation of a constitutional 

right.

The detectives’ argument fails because it papers over 

the difference between Heck and the typical analysis under 

Rule 12(b)(6) that was contemplated by Iqbal. The typical

analysis requires a court to measure the alleged facts against

the elements of a claim. This analysis clearly and substantially

overlaps with the process of determining whether a plaintiff

has sufficiently alleged the violation of a constitutional right.

By contrast, the Heck analysis requires a court to compare the

asserted claims and requested relief with a preexisting

conviction or sentence; the plaintiff must demonstrate that the

prior conviction or sentence has been “reversed on direct

appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such a determination, or

called into question by a federal court’s issuance of a writ of

habeas corpus.”24 This analysis involves different facts, and a

different legal framework, than the process of determining

whether a plaintiff has sufficiently alleged the violation of a

constitutional right. For that reason, the typical analysis under

Rule 12(b)(6) is inextricably intertwined with a denial of 

qualified immunity, but under Heck it is not. 

Accordingly, although we have jurisdiction in this 

interlocutory appeal to consider the District Court’s denial of 

the detectives’ qualified immunity defense, we do not have 

jurisdiction at this time to consider their arguments under 

Heck. 

24 Heck, 512 U.S. at 486–87.
13

IV. DISCUSSION

Turning to the merits of the qualified immunity defense,

the detectives present two arguments aside from the one they 

advance under Heck. First, the detectives contend that Dennis 

failed to allege a constitutional violation because he does not 

assert a Fourth Amendment claim. Second, they argue that 

qualified immunity attaches because the constitutional claims 

asserted do not involve rights that were clearly established in 

1992, when the alleged violations took place. 

Qualified immunity shields officials from civil liability 

“insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person 

would have known.”25 As noted, when analyzing a qualified 

immunity claim, we consider “(1) whether the plaintiff 

sufficiently alleged the violation of a constitutional right, and 

(2) whether the right was ‘clearly established’ at the time of the 

official’s conduct.”26 The detectives challenge both these 

holdings. We address each in turn. 

A. Violation of a Constitutional Right

1. Fourth Amendment

The detectives first assert that Dennis failed to 

sufficiently allege a constitutional violation because he did not 

plead a Fourth Amendment claim. In response, Dennis 

contends that the detectives waived this argument by failing to 

25 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

26 L.R., 836 F.3d at 241.
14

raise it before the District Court and by raising it for the first 

time in this appeal. We agree with Dennis.

Generally, appellate courts refuse to consider issues not 

raised by the parties below.27 To preserve an argument, a party 

must “unequivocally put its position before the trial court at a 

point and in a manner that permits the court to consider its 

merits.”28 Although the parties are precluded from raising 

new arguments, they may “place greater emphasis” on an 

argument or “more fully explain an argument on 

appeal.”29 The parties may even “reframe” 

their argument “within the bounds of reason.”30 That is not 

what the detectives did in this case. 

Only now, before this Court, the detectives argue for the 

first time in this litigation that Dennis cannot sufficiently allege 

a constitutional violation because his claims are cognizable 

only under the Fourth Amendment. Specifically, the detectives

contend that a claim for deprivation of liberty, when premised 

on “the fabrication of evidence by a government officer,” has 

only been recognized under the Fourteenth Amendment where 

the government officer involved was a prosecuting attorney

and not a police officer. Accordingly, they argue that Dennis’s

Section 1983 claims for fabricated evidence and deliberate 

deception by police officers can only be brought under the 

Fourth Amendment, and not the Fourteenth Amendment. 

27 Gen. Refractories Co. v. First State Ins. Co., 855 F.3d 152, 

162 (3d Cir. 2017).

28 Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d 

Cir. 1999).

29 United States v. Joseph, 730 F.3d 336, 341 (3d Cir. 2013).

30 Id.
15

Because the detectives did not present this argument to the 

District Court, we decline to reach its merits.

31

B. Clearly Established Law

The detectives argue that none of Dennis’s claims assert 

the violation of a right that was clearly established in 1992. 

They group Dennis’s claims into three categories: (1) a 

catchall improper investigation claim, (2) a deliberate 

deception claim, and (3) an evidence fabrication claim. 

However, the improper investigation grouping does not 

accurately reflect Dennis’s complaint; the complaint does not 

contain a catchall claim for improper investigation. Indeed, 

Count I, at issue here, contains claims for the detective’s 

deliberate deception and for evidence fabrication. 

Accordingly, the issue we must consider is the following: 

whether the violation of due process by evidence fabrication 

and by deliberate deception as alleged in Counts I(A) and I(B) 

was clearly established in 1992. 

A clearly established right is one that is so apparent that 

“every reasonable official would understand that what he is 

doing is unlawful.”32 Absent existing precedent that places 

“the statutory or constitutional question beyond debate,” such 

31 If we had reached the merits, we would have permitted the 

types of claims presented here to be pursued under the 

Fourteenth Amendment. See, e.g., Black v. Montgomery Cty, 

835 F.3d 358, 370 (3d Cir. 2016); Halsey v. Pfeiffer, 750 F.3d 

273, 294 (3d Cir. 2014).

32 James v. N.J. State Police, 957 F.3d 165, 169 (3d Cir. 2020) 

(quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 

(2018)).
16

an understanding will not be attributed to an official.33 As the 

Supreme Court has emphasized, the right must be defined with 

a “high ‘degree of specificity’” to be clearly established.34

That said, we do not require that the prior precedent have

indistinguishable facts.

35

 

Only controlling precedent in the relevant jurisdiction 

can place a constitutional question beyond debate.

36

 

Nevertheless, context matters when qualified immunity is at 

issue and the “inquiry ‘must be undertaken in light of the 

specific context of the case, not as a broad general 

proposition.’”37 

First, citing McDonough v. Smith,

38 the detectives

contend that a fabrication of evidence claim has been 

recognized under the Fourteenth Amendment only where the 

government officer involved in fabricating evidence was a 

prosecuting attorney. Not so. In Halsey v. Pfeiffer, we 

concluded that it was axiomatic that “those charged with 

upholding the law are prohibited from deliberately fabricating 

evidence and framing individuals for crimes they did not 

33 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

34 Wesby, 138 S. Ct. at 590 (quoting Mullenix v. Luna, 577 U.S. 

7, 13 (2015) (per curiam)).

35 al-Kidd, 563 U.S. at 741. (“We do not require a case directly 

on point, but existing precedent must have placed the statutory 

or constitutional question beyond debate.”).

36 Wilson v. Layne, 526 U.S. 603, 617 (1999).

37 Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) 

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

38 139 S. Ct. 2146, 2155 (2019).
17

commit.”39 Halsey involved an evidence fabrication claim 

under the Fourteenth Amendment brought against police 

officers. We emphasized that the Supreme Court decades ago 

had established that the Constitution forbids those tasked with 

upholding the law from knowingly using falsified evidence to 

secure a criminal conviction.40

The detectives argue that Halsey cannot govern here 

because it is not particularized to the facts of this case. They 

claim that Halsey dealt with police officers coercing a false 

statement via a forceful and relentless interrogation of the 

suspect for more than eight hours, during which the 

investigators inserted non-public information into the 

confession. But a case that is directly on point is not required 

so long as the precedent placed the constitutional question 

beyond debate. Halsey did so, recognizing prior precedent that 

held the fabrication of evidence by law enforcement officers 

violates the Fourteenth Amendment and that such a right had

been established since at least 1985.41 No more need be said

as to the stand-alone fabrication of evidence claim than:

39 750 F.3d 273, 296 (3d Cir. 2014) (quoting Limone v. 

Condon, 372 F.3d 39, 45 (1st Cir. 2004)). 

40 Id. 

41 Halsey, 750 F.3d at 296 (citing Pyle v. Kansas, 317 U.S. 213, 

216 (1942), which held that the defendant alleged a violation 

of his due process rights where his conviction was secured by 

the use of perjured testimony and the refusal of defense 

witnesses to testify obtained through threats made by local 

policing authorities); see also Miller v. Pate, 386 U.S. 1, 7

(1967) (“More than 30 years ago this Court held that the 

Fourteenth Amendment cannot tolerate a state criminal 

conviction obtained by the knowing use of false evidence.”).
18

Halsey established that sufficiently particularized precedent 

placed these detectives on notice that fabricating evidence to 

convict a criminal defendant is unconstitutional, regardless of 

whether that evidence is inserted into a confession to “bring 

about” his prosecution or to help secure his conviction.

42

 

Second, turning to Dennis’s deliberate deception claim, 

the detectives contend that this claim is based on the right not 

to be framed by law enforcement agents, which is too broadly 

worded and was not established until 1995, when the Supreme 

Court decided Kyles v. Whitley.

43

 

The right not to be convicted on perjured testimony used 

by prosecutors at trial has been clearly established by the 

Supreme Court since at least 1935 in Mooney v. Holohan.

44

 

Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942),

the Court extended this right by recognizing as a due process 

violation the conviction of a defendant through perjured 

testimony and the deliberate suppression of evidence favorable 

to the accused.

Moreover, “general statements of the law are not 

inherently incapable of giving fair and clear warning, and in 

other instances a general constitutional rule already identified 

42 Halsey, 750 F.3d at 296 (recognizing stand-alone claim).

43 514 U.S. 419 (1995).

44 294 U.S. 103, 112 (1935) (holding due process not satisfied 

where “a state has contrived a conviction through the pretense 

of a trial which in truth is but used as a means of depriving a 

defendant of liberty through a deliberate deception of court and 

jury by the presentation of testimony known to be perjured”);

Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).
19

in the decisional law may apply with obvious clarity to the 

specific conduct in question, even though the very action in 

question has not previously been held unlawful.”45 We 

conclude that the constitutional rule that framing criminal 

defendants through use of fabricated evidence, including false 

or perjured testimony, violates their constitutional rights 

applies with such obvious clarity that it is unreasonable for us 

to conclude anything other than that the detectives were on 

sufficient notice that their fabrication of evidence violated

clearly established law. Thus, the District Court did not err in 

denying the motion to dismiss on qualified immunity grounds 

as to the due process claim in Count I(A) for the detective’s

fabricated evidence—here their false statements and testimony 

as to Dennis’s clothing, Thompson’s false testimony procured 

by threats and coercion, and their concealment of evidence that 

they knew revealed a witness’s trial testimony as false.

As to the detectives’ citation to Gibson v. 

Superintendent,

46 that case provides some guidance on the 

claim in Count I(B) for deliberate deception, but it does not 

support reversing the District Court’s denial of the motion to 

dismiss this claim on qualified immunity grounds. Gibson

stated that the Supreme Court did not settle the principle that 

evidence in the hands of police could be imputed to the 

prosecutor until 1995, when it decided Kyles v. Whitley.

47

 This 

principle, however, is separate from the right not to be framed 

45 United States v. Lanier, 520 U.S. 259, 271 (1997) (internal 

quotations and brackets omitted).

46 411 F.3d 427 (3d Cir. 2005) , overruled on other grounds as 

recognized by Dique v. N.J. State Police, 603 F.3d 181, 182 

(3d Cir. 2010).

47 514 U.S. 419 (1995). 
20

by the use of perjured witness testimony at trial that was 

recognized by the Supreme Court in Mooney48 or by the 

detectives’ own perjured testimony at trial recognized by our

Court in Curran v. Delaware.

49

The detectives contend that they are entitled to qualified 

immunity from the deliberate deception claim because they 

could not reasonably anticipate what the prosecutors might fail 

to turn over at trial. This argument brings us back to the 

detectives’ argument that their Brady obligation was not 

clearly established in 1992. Such an argument 

mischaracterizes Dennis’s claim as one for Brady violations—

not, as it was pled, a claim for violation of Dennis’s due process 

rights to a fair trial caused by the detectives’ deliberate 

deception. We decline to mischaracterize Dennis’s deliberate 

deception claim in such a manner. 

 Dennis did not limit his deliberate deception claim to 

a mere failure to disclose exculpatory and impeachment 

evidence; rather, he claims the detectives violated his due 

process rights to a fair trial by “concealing and/or suppressing 

relevant and material evidence”50 as part of a larger scheme to 

deliberately deceive the court and frame him for Williams’s 

murder. As the District Court noted, Dennis does not seek 

relief from the detectives for Brady violations. To 

recharacterize Dennis’s claims simply as Brady claims would 

run afoul of the longstanding principle that the plaintiff, as the 

master of the complaint, is free to choose between legal 

48 294 U.S. at 103. 

49 259 F.2d 707, 713 (3d Cir. 1958).

50 App’x 72 (Complaint ¶¶ 94, 96).
21

theories,

51 and a defendant cannot create a cause of action from 

the fact pattern on behalf of the plaintiff. “It is the party suing, 

not the party sued, who enjoys the right to frame the claims 

asserted in a complaint.”52 

Here, Dennis’s separate claim under Count I(B) for 

deliberate deception as a violation of his due process rights 

relies in part on the detective’s failure to disclose certain 

exculpatory and impeachment evidence, which appears 

problematic in the face of a qualified immunity defense. 

Specifically, the detectives argue that a plaintiff can only bring 

a Brady claim against police officers by alleging that they 

affirmatively concealed evidence, i.e., by alleging that police 

officers deliberately suppressed the evidence. Thus, to allege 

a deliberate deception claim against police officers, the

detectives conclude that a plaintiff must allege a Brady claim. 

We disagree and will not restrict Dennis to a simple Brady

claim.53 But the label Dennis chooses also does not answer 

whether the detectives are entitled to qualified immunity on the 

claim Dennis brought. 

A Brady claim, in essence, is a claim by a defendant that 

this due process rights were violated by the failure to disclose 

exculpatory or impeachment evidence to the defense, while a 

claim for deliberate deception in violation of due process must 

go beyond the failure to disclose evidence and arises when 

imprisonment results from the knowing use of false testimony 

or other fabricated evidence or from concealing evidence to 

51 Caterpillar, Inc. v. Williams, 482 U.S. 386, 398–99 (1987).

52 Haley v. City of Bos., 657 F.3d 39, 49 (1st Cir. 2011).

53 Haley, 657 F.3d at 49 (quoting Condon, 372 F.3d at 47). 
22

create false testimony to secure a conviction.54 To be clear, a 

deliberate deception claim against police officers and a Brady 

claim are not necessarily coterminous. In other words, a

plaintiff alleging a claim against police officers for violation of

due process rights by deliberate deception to the court need not 

bring a Brady claim. Yet, to survive the qualified immunity 

defense, the claim brought must involve a right with 

sufficiently clear contours that every reasonable officer would 

have understood that what he is doing violates that right—and 

a generalized notion that deliberate deception violates due 

process will not do.

55

The case at bar is a paradigm example: Dennis’s 

deliberate deception claim not only alleges that the Detectives 

withheld exculpatory and impeachment evidence that would 

have supported his alibi and defense, but that they also failed 

to correct testimony they knew was false and concealed from 

the defense the evidence that revealed that trial testimony as 

false. These allegations go beyond asserting a mere Brady 

violation and allege that, in an effort to secure Dennis’s 

conviction, the detectives knowingly deceived the court and 

54 See Mooney, 294 at 112. 

55 See al-Kidd, 563 U.S. at 741 (“A Government official’s 

conduct violated clearly established law when, at the time of 

the challenged conduct, ‘the contours of a right are sufficiently 

clear’ that every ‘reasonable official would have understood 

that what he is doing violates that right.’”) (quoting Anderson 

v. Creighton, 483 U.S. 635, 640 (1987)).
23

the jury through false testimony in violation of Dennis’s due 

process rights.

56

 

Because Dennis’s claim for violation of his due process 

rights by deliberate deception under Count 1(B) encompasses 

allegations that the detectives concealed or suppressed the 

time-stamped receipt to produce false trial testimony, Gibson

does not control. Instead, Mooney, Halsey, Pyle, and Curran

do. For those reasons, we will affirm the District Court’s 

denial of the motion to dismiss Dennis’s deliberate deception 

claim on qualified immunity grounds.

V.

Based on the foregoing, we hold that Dennis has alleged 

under Count I(A) and Count I(B) the violation of his due 

process rights clearly established at the time of the detective’s 

conduct on which the claims are based. Accordingly, we will 

affirm the District Court’s denial of the detectives’ motion to 

dismiss on qualified immunity grounds. Because we do not 

have jurisdiction on this interlocutory appeal of the District 

Court’s ruling that the Heck bar does not apply, we will dismiss 

without prejudice the appeal of that issue. We remand this 

action to the District Court. 

56 We recognize that the witness falsely testified through no 

fault of her own—she misread a welfare receipt’s militarystyle time-stamp in making statements to the detectives when 

they interviewed her and she repeated that mistake at trial—

but note that the detectives knew of the error and not only did 

nothing to correct it, they concealed the evidence that would 

have corrected it. This resulted in false testimony at trial.