NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0952n.06 No. 11-2266 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J OHN STAHL , Plaintiff-Appellee ,

v. SARGENT PHI L CZE RNI K, Def endant- Appellant, CATHERI

NE O’MEA RA Def endant. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP PEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE EAS TERN DI STRI CT OF MI CHI GAN

BEF ORE: ROGERS and KETHL EDGE, Circuit Judges, a nd MARBL EY, District Judge. * ROGERS, Circuit J udg e. I n this §1983 action, plaintiff J ohn Stahl alleg es that he was wrong fully incar cer ated for a crime he did not commit. Stahl was arres t ed i n co nnection with a series of home invasions in Michig an. Three witnesses had observe d the crimes, two of which identified Stahl as the perpe trator. Def endant Cz ernik led the investiga tion but omitted cer tain fac ts when completing an arr est war rant application. The poli ce ar rested Stahl, but rele ased him four months later afte r another individual confe ssed to the crimes. Stahl sued and the district court denied Cz ernik’s reque st for qualified immunit y . Qua l i fi ed immunit y was war rante d, howeve r, beca

use there was proba

ble ca use to arr est Stahl even in lig ht of the omitted information.

The Honora

ble Alg enon L

. Marbley , United States District J udg e for the Southern District * of Ohio, sitting by

desig nation.No. 11-2266

Stahl v. Czernik

At the time o f t h e h o m e invasions, Stahl was living in Romulus, Michig an. As a conseque nce of a leng thy p e r iod of unemploy ment, Stahl had started g oing door-to-door and offe ring
to perf orm odd jobs for his neig hbors. On one occa sion, he mowed the lawn of Carol Daly , whose home was one block south of Stahl’s home. Stahl is white and has tattoos, but no tattoos on his leg s. I n J uly 2008, Ernest Br own—Daly ’s neig hbor—obser ved a man walking from house-to-house , ring ing doorbells, and looking throug h windows. After knocking on Daly ’s door, the man opened a g ate and walked into h er backy ard. Br own contac ted another neig hbor, Diane Swantek, and asked her if she rec og nized the man in Daly ’s y ard. Br own and Swantek called police afte r witnessing the man lea ve Da ly ’s home with a jar of money

. When a Romulus poli ce of fice r ar rived, B rown de scribed the suspect as a white male who

was approximately six fee t ta ll, and who had a tattoo of a drag on on his le g . Swantek believed the

man was betwee n 5’8” and 5’10”, had a muscular- slim build, and had a larg e tattoo on his left calf

. These descr iptions wer e rec orded in a police narr ative repor t. The responding office r also contac ted Daly , who said that Stahl matched the descr iption provided by Br own and Swantek. Daly explained that Stahl had been g oing door -to-door soliciting landsca ping w ork and ha d once c ut her g rass. A few day s later in the s ame neighbor hood, a m an wi t h blond hair knocked on J acque line Culiver’s door. Culiver answe red the door and stood fac e-to-f ace with the suspect. The man seeme d surprised that Culiver was home, stated that he had the wrong house, and ran awa y down the street. There was some e vidence that the man had ta mpere d with a scre en on Culiver’s door or window.

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Culiver called the police and rec ounted the incident to an office r that responde d to the scene . Culiver descr ibed the suspect as a tall white man who had tattoos on his ar m s . Du ri ng this

conver sation, Culiver saw Stahl’s photogr aph on a computer scre en in the office r’s vehicle. Culiver identified Stahl as the man who had knocked on her door. An office r who was sitti ng in the vehicle told Culiver that the man pictured was a suspect in ear lier brea k-ins. The police rec orded Culiver’s descr iption of the suspect in a police narr ative, but did not mention her spontaneous identification. Cz ernik, the detec tive assig ned to the case , rec eived the files reg arding the two incidents and

was told that Stahl was a suspect. I n the course of his investiga tion, Cz ernik showed a photo arr ay to Br own, Swantek, and Culiver. Br own and Culiver identified Stahl, but Swantek did not. Br own testified in his deposition that, at the time of the identification, he had told the office rs that he would have be en ce rtain of the suspe ct’s identity if he kne w whethe r Stahl had a ta ttoo on his l eg . Following these witness identifica tions, Cz ernik wrote an investiga tive repor t, but omitted

cer tain fac ts. The repor

t did not mention that the suspect had a leg tattoo, descr ibe the circ umstances surrounding Br own’s identification of Stahl, or state that Swantek had failed to ide ntify Stahl. The repor t al so failed to note that Culiver had spontaneously identified Stahl and that the police told Culiver that Stahl was a suspect in other br eak- ins. Cz ernik included this repor t in an application for a war rant to arr est Stahl. Ba

rbar a Smit h, a prosec utor, issued the war rant af t er re v i ewing the investiga tion report, the police narr ative re ports, and the photo ar ray s. Stahl, who had been arr ested in L as Veg as on an unrela ted char g e, was transfe rre d to Michig an. On the advice of counsel, Stahl waived his preliminary examination and his rig ht to

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contest probable cause. Stahl was rele ased from Way ne County J ail on Fe bruar y 9, 2009—more than six months after his initial arre st—after another individual confesse d to the crimes. Stahl sued Cz ernik and others under 42 U.S.C. § 1983, asser ting a claim of false arr est and false imprisonment. Cz ernik fil ed a motion seeking qualified immunit y , which the district court denied. Stahl v. Czernik , No. 09-14266, 2011 WL 4502862, at *8 (E.D. Mich. Sept. 28, 2011). The district court divided its analy sis into two steps: (1) whether there was a constitutional violation and (2) whether the rig ht w as clea rly established. The district c ourt held that a constitutional violation

occur red when Cz ernik failed to mention the problems with the ey ewitness iden t i fi ca tions in the

war rant application: Br own’s identification was qualified, Culiver previe wed St ahl’s p h o t o graph, and Swantek did not identify Stahl. Moreover , the cour t held that Cz ernik should have consulted Romulus Police Depa

rtment rec ords, which contained a descr iption of Stahl at odds with the witness descr iptions. The court noted that such a discrepa ncy should have been i ncluded in the war rant application. The district court also held that it was c lear ly established that an a

rre st made without probable cause is unconstituti onal. Czernik filed this interlocutory appea l. The district court should have g rante d Cz ernik’s motion for qualified immunit y beca use probable cause supported Stahl’s arr est and the information Cz ernik omitted from the war rant application was not materia l. An off i ci al i s entitled to qualified im munity when he is perf orming

a discretionar

y duty , provided that his “conduc t does not violate clea rly est abli shed statutory or constitutional rig hts of which a rea sonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). To evalua te whether qualified immunit y applies this court evalua tes whether

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Stahl v. Czernik

the official violated a constitutional rig ht and whe ther the impac ted rig ht is “clea rly established.” See Pearson v. Callahan , 555 U.S. 223, 236 (2009). The order of this inquiry is not mandatory , nor does a c ourt nee d to rea ch both steps. Id. Cz ernik did not commit a constitutional violation becaus e he had probable cause to arr est Stahl. An arr est pursuant to a fac ially valid war rant is normally a complete defe nse to a false arr est claim. See Bake r v. McCollan , 443 U.S. 137, 143–44 (1979). There fore , a plaintiff suc h as Stahl
must show that the office r rec klessly or intentionally “omitted information

. . . provided that the information

. . . is critica l to the finding of probable cause .” Voytick y v. Vill. of Timberlake , 412 F.3d 669, 677 n.4 (6th Cir. 2005). Stahl contends that Cz ernik rec klessly omitted four materia l fac ts from the war rant application: (1) that Br own qualified his identification of S t ah l ; (2 ) t hat Culiver had previe wed Stahl’s photo prior to the photo lineup; (3) that discrepa ncies exis ted betwee n the witness descr iptions and Romulus police rec ords; and (4) that Swantek did no t identify Stahl as the perpe trator. The centr al inquiry is whether there would have been sufficie nt probable cause had the

war rant application included this omitted information. Syke s v. Anderson , 625 F.3d 294, 305 ( 6th Cir. 2010) (citing Hill v. McI ntyre , 884 F.2d 271, 275 ( 6th Cir. 1989)). Probable ca u s e supported Stahl’s arr est even if the war rant application had included the omissions

. Probable cause exis ts if the “fa cts and circ umstances within the office r’s knowledg e []

are sufficie nt to war

rant a p ru d ent person, or one of rea sonable caution, in believing , in the circ umstances shown, that the suspect has committed, is committing or is about to commit an off en s e. ” Crockett v. Cumberland Coll. , 316 F.3d 571, 580 (6th Cir. 2003). I n the qualified

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immunit y context, the court evalua tes whether “a rea sonable office r could have believed [t he arr est]
to be lawf ul.” Hunter v. Bryant , 502 U.S. 224, 227 (1991) (inter nal quot ation marks omi tted). I n g ener al, an ey ewitness identification p r o v id e s s u f f ic ie n t p r o b a

b le c a u se to arr est a defe ndant, “unless,
at the time of the arr est, there is an appar ent rea son for the office r to believe that the ey ewitness was ly ing, did not acc urate ly descr ibe what he had seen, or was in some fashion m i staken.” Ahlers v. Schebil , 188 F.3d 365, 370 (6th Cir. 1999) (interna l quotation marks omitted). “This comports with the g ener al notion that, since ey ewitnesses’ statements are based on firsthand observa tions, they are g ener ally entitled to a pre sumption of reliability and ver acity .” Id. I n Stahl’s case , two ey ewitnesses—B rown and Culiver—identified Stahl as the perpe trator of the burg laries. These identifications provided sufficie nt evidenc e to establish probable cause to support the arr est war

rant. A rea sonable office r would have found the identifications to be reliable beca use t here is no alleg ation that the wit nesses li ed, mi sremembe red, or made a rea dily appar ent mistake evident a t the time of the identifica tion. We are not persua ded that the omitted information eliminated the probable cause established by the two witnesses. Stahl contends that the arr est war rant application should have mentioned that Br own would have been more cer tain of the identification if he could see the suspect’s tattoos. Even had this information been included, howeve r, probable cause still would have exis ted. Admittedly , the qualifica tion diminis hes the evidentiar y weig ht of Br own’s identification, but it does not vitiate the identification completely

. Br own still positively identified Stahl as the perpe trator of the crime, while indicating that he would be more cer tain of his answe r if he saw the tattoo. Fur ther, Br own’s

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identification of Stahl did not oc cur in a vacuum. Whil e Br own hedg ed his ide ntification, Culiver did not. Acc ording to her t es timony , she had come fac e-to-f ace with the perpe trator, and aff irmatively identified Stahl. Viewi n g Br own’s and Culiver’s identifications in tandem, a

rea sonable off

icer could have believed tha t Stahl commit ted the off enses in question. We find simil arly unpersua sive Stahl’s contention that probable cause did not exis t beca use Culiver saw Stahl’s p i ct u re befor e participa ting in the photo lineup. At the scene of the second burg lary , Culiver saw Stahl’s picture in the police cruiser without any direc tion or sug g estion from the police, and spontaneously identified Stahl as the perpe trator. I n Mock v. Rose , 472 F.2d 619, 621 (6th Cir. 1972), this court held that an “ac cidental and unplanned” confr ontation betwee n a witness and suspect that led to a “spontane ous” identification did not taint a future identification at trial. I n Stahl’s case , there is no question t h at C u liver acc identally saw the photogr aph, and that Culiver spontaneously identified S tahl as t he perpetra tor of t he crime. Although the photogr aph was on a

scre en in a police cruiser , the office rs g ave no indication that Stahl was a suspect prior to Culiver’s identification. Al t h o u g h the office rs indicated that Stahl was suspected of other burg laries, these
comments would not have tainted the photo lineup. Culiver had alre ady i d en t i fi ed Stahl, and a

rea sonably prudent person could believe that her subsequent ident ification was unconnec ted with the police c omments. Moreove r, Stahl arg uably be n e f it te d f r o m th e o mi s s io n o f Culiver ’s initial identification fr om the war rant a pplication. A witness may view a suspe ct alone at a time near to the crime: T h er e is no prohibition ag ainst a viewing of a suspect alone in what is ca l l ed a “one- man showup” when this oc curs near the time of the alleg ed criminal act; such - 7 -No. 11-2266

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a course does not tend to bring about misidentification but rathe r tends under some circ umstances to insure a ccur acy . Mock , 472 F.2d at 621 (quoting Bates v. United States , 405 F.2d 1104, 1106 (D.C. Cir. 1968)). Culiver saw the photogr aph of Stahl i n isolation, but immediately afte r the crime occur red. Her identification, there fore , would have been valid under the rule articula ted in Mock , and would have made it more probable that Stahl had committed the crime. Acc ording ly , Stahl was not prejudice d by , but perha

ps even be nefitted fr om, the omission. We likewise reje ct Stahl’s contention that probable cause would n o t h av e ex isted if the

war rant application had mentioned Swantek’s failure to ide ntify Stahl. Had this fa ilure to ide ntify

occur red absent any other evidenc e, Stahl might have a valid arg u m en t

. However, two other witnesses identified Stahl as the perpe trator; therefo re , Swantek’s failure to identify Stahl car ried littl e evide ntiary

weig ht. There are many rea sons Swantek may not have been able t o identify the perpe trator—ba d ey esig ht, bad ang le, or the fac t that Stahl did not commit the crime. When viewed in lig ht of the two other positive ide ntifications, howeve r, a prudent person would have conclude d that Swantek’s inability

to identify

Stahl was ca

used by a fa ctor other

than Stahl’s innocenc e. Stahl arg ues t h at had Cz ernik investiga ted Romulus police rec ords, he would have found discrepa ncies betwee n the descr iption in the rec ords and those of the ey ewitnesses. Romulus Police

rec ords, g ener ated in connec tion with an ear lier arr est for DUI , indicated that Stahl was four inches

s h o rt er than the perpe trator descr ibed by witnesses. R. 35-8, Cz ernik Dep. at 56-58. Fur ther, th e

rec ords indicate that Stahl did not have a leg tattoo. Id. Had Cz ernik included these discrepa ncies in his arre st warr ant applica tion, St ahl contends, the war rant would not have issued. - 8 -No. 11-2266

Stahl v. Czernik

Stahl’s arg ument rests on shaky g round beca use Cz ernik had no continu i n g d u ty to investiga te. As this court said in Ahlers , “[o] nce pr obable c ause is esta blished, an off

icer is under

no duty to investiga te further or to look for additional evidenc e which may exculpate the acc used.” 188 F.3d at 371. The Ahlers panel addre ssed an arg ument simil ar to Stahl’s arg ument, and explained that “off icer s, in the process of determining whether probable cause exists , ca n not simply turn a blind ey e toward potentially exculpatory evidenc e known to them in an eff ort to pin a crime on

s o m eo n e. ” Id. at 372 (empha sis in orig inal). The Ahlers panel distinguished the case befor e i t beca use, like the circ umstances in St a h l’ s c a s e , the office rs had completed the proce ss of deter mining whether probable cause exis ted and the potential exculpatory evidenc e was not known to them. We explained: I n the instant matter, the office rs undeniably had sufficie nt probable cause to sustain [pl aintiff]’s arr est with [victim] ’s alleg ations, and Plaintiffs now wish to hold them l i able for evidenc e which they failed to collect and, there fore , of which they we re unawa re. I n this respe ct, then, the instant c ase is more analog ous to that in Crisp v. City of Kenton , No. 97-3192, 1998 WL 180561 (6 t h C i r. 1998) (unpublished t able decision), wher e a panel conclude d that a challeng ed arr est wa s s u p ported by probable cause . Crisp, the plaintiff in that case , arg ued that the office rs did not have probable cause to arr est him beca use there was information which, if the office rs had consider ed i t , wo uld have established that there was no probable cause to suspect Crisp of criminal activity

. Id. at *4. The panel, howeve r, reje cted Crisp’s arg ument, rea soning that “on the basis of the information the office rs actua lly had, as opposed to information t hey could have had if they had looked at C risp’s i d entifica tion and believed his story , the officer s certainly had sufficie nt information” with which to establish probable cause . Id

. L ikewise, this panel conclude s that on the basis of the information known to them, i.e., [vi ctim] ’s statement and the window of opportunity , these Def endants established sufficie nt probable cause to sustain [pl aintiff]’s arr est. A lt h o u g h [d e f

e n d a nt] ’s investiga tion cer

tainly was no model of thoroug hness and le f t many rea sonable source s of evidenc e unexplored, on the basis of the fac ts befor e us, we f ind that the district court prope rly conclude d that there wer e no g enuine issues

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o f m at er i al fac t as to whether Def endants had sufficie nt probable cause to sustai n [pl aintiff]’s arr est. Id. I n Stahl’s case , as discussed above, Cz ernik had prob ab l e ca u s e t o suspect Stahl was the perpe trator of the robber ies. Once this probable cause was established, Cz ernik had no duty to sift
t h ro u g h rec ords of the Romulus Police Depa rtment for potentially exculpatory evidenc e before apply ing f

or a w arr ant. Such a require ment, if g ener ally imposed, would waste valuable ti me and

resour ces, and impede the police’s abili t y to make a timely arr est. Although some office rs might have conducte d a more thoroug h investiga tion, this failure to find information not known to Cz ernik cannot be the basis of a

false a rre st claim. Even if the cour

t were to consider the two disc repa ncies—the he ight and tattoo—probable

cause would have still exis ted beca use two witnesses identified Stahl as the culprit. I n a simil ar case , the Second Circuit found probable cause ex i s t ed to arr est a suspect who was shorter, and of a differ ent skin tone, than the pe rson desc ribed in the arre st war rant. Martinez v. C ity of New Y ork , 340 F. App’x 700, 701 (2d Cir. 2009). The Martinez court deter mined that beca

use the suspect and the targ et of the war

rant had the same name and b i rt h date, the differ ence s wer e “too minor to prec lude a finding of probable cause .” Id. (interna l quotation marks omitted). Her e, two witnesses identified Stahl as the perpe trator, making the differ ence betwee n the heig ht in the police repor t and the witness descr iption too minor to p re cl u d e a finding of probable cause . Moreove r, unlike in Martinez , the heig ht discrepa ncies wer e in a police repor t a nd not on the fac e of the war rant itself. Turning to the tattoos, the fac t that the police rec ords indicate that Stahl did not have tattoos as the time of his DUI arr est did not entirely prec lude his being the culprit. Stahl could have been rele ased - 10 -No. 11-2266

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from custody following his prior arr est, and that very day driven to the tattoo parlor. Had the reve rse been true—the repor

t indicating a tattoo and the witnesses indicat i n g n o tattoo—the result might have be en diffe rent. Stahl contends that the omissions are nonetheless materia l beca us e th e p r o s e c u to r w

h o signe d the ar rest wa rra nt testified to the ir materia lity

. This a rg ument asks us to a

pply the wrong standard of revie w. “Smith stated that some of the rea sons for deny ing a reque st for a war rant would be ‘[i] f

someone is not sure of an identifi ca tion’ or ‘there are inconsistent stories that are being g iven.’” Stahl , 2 011 WL 4502862, at *6. Smit h also testified t hat i t is materia l if someone had previe wed

a photogr aph befor e a photogr aph lineup, that if an identification mentioned tattoos it would be materia l if the suspect had no tattoos, and that a non-identifica tion of a suspect is rele vant. Id. at *6- 8. Whil e the district court rea soned that “a rea sonable jury could find that Smit h would n ot have issued an arrest wa

rra nt if this information had not been omitt ed by Cz ernik,” id. at *8, this is not the standard. “Where qualified immunit y is asser ted, the issue of probable cause is one for the court since the entitlement is immunit y from suit rathe r than a mere defe nse to liability .” Vakilian v. Shaw , 335 F.3d 509, 517 (6th Cir. 2003) (interna l quotation marks omitted). I n making this deter mination, the court employ s an objective test that is not g overne d by the subjective beliefs of one prosec utor. This flows from t h e gener al rule articula ted by the Supreme Court that “De fenda nts will not be immune if, on an objective basis, it is obvious that no rea so n ab l y co m p et ent office r would have conclude d that a warra

nt should issue; but if office rs of rea sonable competence could disag ree on this iss ue, immunity

should be rec og nized.” Malley v . Briggs , 475 U.S. 335, 341 (1986).

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Fur ther, Stahl misapprehe nds Smit h’s testimony

. When asked a series o f h y p o thetical questions, Smit h answe red that the information in the hy pothetical may have b ee n relevant. Howeve r, Smit h was not prese nted with the entire context of those fac ts. Fur ther, she never said that probable cause would not have exis ted had those fac ts been i n cl u d ed in the war rant application. Wit h reg ard to the qua lification Br own made a bout his identification, Smi th testified: Q: Fr o m rea ding that repor t, does that—would that have convince d y o u t h at Ernest Br own had positively I D’d J ohn Stahl as the perpe trator of the crime? A: I wouldn’t have char g ed if I didn’t think that. Q: Okay

. At any

wher e in that incident repor t, are y ou awa

re if Detec tive Cz ernik disclosed the comment by Ernest Br own, stating that J ohn Stahl may be the g uy but he would have to look at his leg s to see the tattoos to see if it was the g uy . Was there a

ny disclosure of tha t fac t?

* * * Q: Ag ain, does that doc ument [refer ring to Cz ernik’s r eport to S mith] indicate that Mr. Brown limit ed his identification to say ing, “I t may be him but I would need to se e his—the tattoos on his leg s.” A: No, I

didn’t see that in ther e. * * * Q: All righ t

. Di d Detective Cz ernik ever inform y our office that they do not have a ny rec ords with J ohn Stahl having ta ttoos on his l eg s? A: Our off

ice. Do y ou mean me pe rsonally ? Q: You per sonally , y es. A: I don’t have any

rec ollection of that. Q: Okay

. Would that be something that would be important; to fig ure out if this is the rig ht individual?

. . . I f, in making y our dete rmination of for pr obable cause , would y ou want to know whether the person matches the identification or the de scription?

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A: Well, y es. * * * Q: I f an office r wrote down that a person positively identified someone without also disclosing a “may

be” or a qualifier that, “I need to see additional information to make a decision,” is that something y ou would expect to be in the police r eport? A: Yes, I

would hope it would be. Q: I s that also something that could aff ect y o u r d ec i s i o n as t o wh ether to rec ommend a wa

rra nt? * * * A: Yes. Stahl , 2011 WL 4502862, at *6–7. Although Smi th might li ke to know i f a witness had qualified

an identification of a suspect, she never said it wo u l d have been materia l. She said that a qualifica tion c ould hy

pothetically be important, but ne ver said it would have af fec ted her decision in this instan ce . Assessing the totality of the circ umstances, as discussed above, Br own’s qualifica tion would not have eliminated proba ble ca use. St a h l s im il a r ly s tr e tc h e s Smit h’s testimony about the alleg ed taint on Cul iv e r ’ s id e n ti f ic a ti o n . Smit h testified: Q: Ok ay . W i t h re s p ec t t o J ac q u el i n e C u l v er—Culiver, do any of th es e documents [refer

ring to those prese nted to Smit h by Cz ernik] indicate that

. . . J acque line Culiver was shown a picture o f J o h n Stahl prior to the photogr aphic line- up? A: No. Q: Ar e y o u aw ar e t h at t h at occur red—or at least that’s what she testified occur red? * * * A: No, other tha

n y ou telling me tha t—

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* * * Q: I want y ou to assume for the purposes of the question that J acque line Culiver saw a picture of J ohn Stahl on a computer scre en inside a police car . Okay ? And t hen the n ex t day , Detec tive Cz ernik came out and did a photogra phic line-up with her wher e she positively I D’d J ohn Stahl as the perpe trator of the crime. Would have that aff ecte d the leg itimacy of the photogr aphic line-up, in y our opinion? * * * Of he r identifica tion in the line-up? * * * A: I t would be a fac tor that y ou would want to know in considering that a line-up was he ld subsequently ; that’s one of the fac tors y ou consider. Q: Were y ou ever informed that—of that event, of her seeing a photo—photo of J ohn Stahl? A: No. * * * Q: What ab o u t where [a witness is] shown a photogr aph of the person or they see a photogr aph of the person; would that be something that should be in an incident re port? * * * A: I n an idea l world, y es, I would think it s hould have be in there. Q: Well, how about just in the world we have; is that someth i n g y o u wo u l d expect to be in there ? A: Yes. Id. at *8. This en t i re l i n e of questions implied that somehow the lineup was tainted by Culiver’s spontaneous identification of Stahl as the perpe trator. As discussed above, this is not true, and there fore does not cut ag ainst our ana ly sis. Bec ause Czernik did not violate a constitutional rig ht,

we ne ed not dec ide whethe r a r ight wa s clea rly established. Cf. Pearson , 555 U.S. at 236. The district cour

t’s judgme nt is rever sed.

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