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 JASTRZEMBS K I; 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, 20212 Before: S MITH, Chief Judge , HARDIMAN and ROTH

,

Circuit Judges

(Opi n i o n f

i l e d : 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 Dennis3 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, denyin g d efendant

- appellants ’ M otion to D ismiss James Dennis’s

Section 1983 claims. Defendant

- a ppellants 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 cri me f or 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 th e present action

, asserting Section 1983 claims against the d efendants 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 qu alified immunity and that the suit is barred by Heck v. Humphrey

. 2

After the District Court denied their motion , the detectives

f iled 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 first

degree murder of a young woman
, Chedell Williams ; he was

convicted and sentenced to death

. I n 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 De nnis’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 plea d 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 d etectives) , 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 Jastrzembsk i (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 li ability against the City of Philadelphia (Count V)

.

Dennis ’s complaint allege s that the d etectives’ investigation of Williams’ 199 1 murder involved conduct that

violated his due process rights. First, Dennis allege s that the

d etectives 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 allege s that the

d etectives never fol lowed up on inconsistencies in statements made by Zahra Howard, who was with Williams on the day of

her murder . Ms. Howard originally told the d etectives that she

never saw the assailants but later told her aunt and uncle that she recognized the assailant s from Olney High School, a

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

uncle informed the d etectives about her statement ; it was also corroborated by the victim’s aunt. This information, which

was recorded in the d etectives’ activity logs, was concealed from Dennis for ten years.

In addition , Dennis allege s 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 was6 only revealed 10 years later during P ost C onviction R elief A ct (PCRA) 5 discovery.

Second , Dennis allege s that the d etectives fabricated

evidence to secure his conviction. Specifically, Dennis allege s that the d etectives falsely claimed to have found certain clothing items that matched those of the shooter, as described by eyewitnesses to the murder. He further allege s 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

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

murder.

Third , Dennis allege s that the d etectives concea led 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 d etectives , t he

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

. T he d etect ives 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 obt ained 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. C ons. S tat. §§ 9 5 41 et seq

.7 Dennis also allege s 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 wit h 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. Humphrey 6 and that th ey are entitled to qualified immunity

because Dennis has failed to allege a constitutional violation of clearly established law. On May 15, 2019, t he District Court partially granted the motion as to the City and denied the

motion as to the detectives

. T he d etectives appeal ed

.

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.” 7 In 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 ha s 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 T o 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 decis ion’ 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 d efendants argued that qualified immunity attaches to any Brady v. Maryland 15 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 gui lty 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 d efendants’ arguments improperly characterized

Dennis’s claims. It found that Dennis ha d 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

d efendants to reassert their qualified immunity defense at a

later date.

Despite leaving open the opportunity for the d efendants

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 i ssue that is completely separable from the merit s 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, j urisdiction does not exist over a non

appealable 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 i f 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 implica ted by,’ the qualified

- immunity defense.” 23 The detectives essentially argue that

, if Heck bars Dennis’s claim s , 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 Shrev eport

, 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 clai m. This analysis clearly and substantially overlaps with the process of determining whether a plaintiff

has sufficiently alleged the violation of a constitutional right. By contr ast, 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 th e District Court’s denial of

the d etectives’ 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

.

Q ualified immunity shields officials from civil liability

“insofar as their conduct does no t violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” 25 As noted, w hen analyzing a qualified immunity claim

, we consider “(1) whether the plaintiff sufficiently alleged the violation of a constitu tional right, and (2) whether the right was ‘clearly established’ at the time of the

official ’ s conduct.” 26 The d etectives challenge both these holdings

. We address each in turn.

A. Violation of a Constitutional Right

1. Fourth Amendment

T he d etectives 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 d etectives 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, a ppellate 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 grea ter 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 T hat is not

what the d etectives did in this case

.

Only now, before this Court, the d etectives 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 d etectives 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 d etectives did not present this argument to the District Court, we decline to reach its merits

. 31

B. Clearly Established Law

The d etectives 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 gro uping 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.

Accor dingly, 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 wo uld 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. P f eiffer , 750 F .3d 273, 294 (3d Cir. 2014).

32 James v. N.J. State Police , 9 57 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 A s the Supreme Court has emphasized, the right must be defined with a “high ‘degree of specificity’” t o be clearly established. 34

T hat 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, c ontext matters w hen qualified immunity is at

issue and t he “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 d etectives

contend that a fabrication of evid ence 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. H

augen , 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 agai nst 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 d etectives 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 place d 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 h ad

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 “brin g about” his prosecution or to help secure his conviction

. 42

Second, turning to Dennis’s deliberate deception claim,

the d etectives 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 prose cutors 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 convi ction of a defendant through perjured testimony and the deliberate suppression of evidence favorable

to the accused.

Moreover, “ g eneral 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 (199 5).

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 an d 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, ev en 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 constitutio nal rights applies with such obvious clarity that it is un reasonable for us

to conclude anything other than that the d etectives were on

sufficient notice that the ir fabrication of evidence violate d 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 d etectives’ 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

evid ence 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 th e Supreme Court in Mooney 48 or by the

detectives ’ own perjured testimony at trial recognized by our

Court in Curran v. Delaware

. 49

The d etectives 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 bring s us back to the detectives’ argument that thei r Brady obligation was not clearly established in 1992. S uch an argument

mischaracterizes Dennis’s claim as one for Brady violatio n s

— not

, as it was pled, a claim for violation of Dennis’s due process rights to a fair trial caused by the detectives’ delibe rate deception

. We decline to mischaracterize Dennis’s deliberate deception claim in such a manner.

Dennis did not limit h is 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. A s the District Co urt noted, Dennis does not seek

relief from the detectives for Brady violations. T o recharacterize Dennis’s claims simply as Brady claims would

run afoul of the longstanding principle that the plaintiff

, a s the master of the complaint

, is free to choose b etween legal

48 294 U.S. at 103.

49 259 F.2d 707, 7 13 (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 det ective’s failure to disclose certain exculpatory and impeachment evidence, which appears problematic in the face of a qualified immunity defense. Specifically, the d etectives a rgue that a plaintiff can only bring

a Brady claim against police officers by a lleging 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

d etectives 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 d isclose 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

sufficie ntly 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 D etectives 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

th e 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 d etectives 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 r ight.’”) (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

B ecause 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 Cur ran 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) t he 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 d etectives’ motion to

dismiss on qualified immunity grounds

. Because we do not have jurisdiction o n th is 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 military

style time

- stamp in making statements to the detectives when they in terviewed 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.