2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-2011

Nicole Schneyder v. Gina Smith

Precedential or Non-Precedential: Precedential

Docket No. 10-2367

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Recommended Citation

"Nicole Schneyder v. Gina Smith" (2011). 2011 Decisions. Paper 736.

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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

_____________
2

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.
3

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 
4

(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.‖
5

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 Davis3to 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.
6

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,5and 

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. 
7

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). 
8

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 summaryjudgment 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. 
9

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 
10

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 
11

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.
12

*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
13

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.
14

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 pretrial 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 
15

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 
16

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); alKidd 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). 
17

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 
18

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 
19

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 alKidd 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 
20

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.
21

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 
22

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. 
23

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 
24

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.
25

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 
26

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.
27

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.
28

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 
29

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 goodfaith 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.
30

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 
31

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 preexisting 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 
32

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 
33

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 
34

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 
35

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 selfevident 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. 
36

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-
37

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 
38

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 
39

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 
40

connected with the conduct of a trial.‖ Id. at 862. Writing for 

a unanimous Court, Justice Breyer first observed that a lowlevel 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.
41

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 
42

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.
1

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 
2

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.
3

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 UnNamed Officers, 746 F.2d 185 (3rd Cir. 1984). 
4

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).
5

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.").