653 F.3d 313 (3rd Cir. 2011), 10-2367, Schneyder v. Smith

Docket Nº:10-2367.
Citation:653 F.3d 313
Opinion Judge:SMITH, Circuit Judge.
Party Name:Nicole SCHNEYDER, v. Gina SMITH, Appellant v. Laura Davis; Defender Association of Philadelphia.
Attorney:Peter Carr (Argued), Alison J. Guest, Todd M. Mosser, Office of the District Attorney, Philadelphia, PA, for Appellant. Daniel Silverman (Argued), Silverman & Associates, P.C., Philadelphia, PA, for Appellee.
Judge Panel:Before: McKEE, Chief Judge, SMITH, Circuit Judge, and STEARNS, District Judge.[*] McKEE, Chief Judge, concurring.
Case Date:July 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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653 F.3d 313 (3rd Cir. 2011)



Gina SMITH, Appellant


Laura Davis; Defender Association of Philadelphia.

No. 10-2367.

United States Court of Appeals, Third Circuit.

July 29, 2011

Argued Jan. 26, 2011.

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[Copyrighted Material Omitted]

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Peter Carr (Argued), Alison J. Guest, Todd M. Mosser, Office of the District Attorney, Philadelphia, PA, for Appellant.

Daniel Silverman (Argued), Silverman & Associates, P.C., Philadelphia, PA, for Appellee.

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


SMITH, Circuit Judge.

The Fourth Amendment guarantees the right of the 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.


Nicole Schneyder was an essential witness in Pennsylvania's effort to bring Michael

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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 (the first ended in a hung jury) was overturned on appeal. Commonwealth v. Overby, 570 Pa. 328, 809 A.2d 295 (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. 522.2Rule 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 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 Davis 3 to represent Schneyder. Before the hearing, Judge Means met with Smith and Davis in camera. At this off-the-record meeting, Judge Means advised Smith that he intended to authorize Schneyder's detention until trial, but instructed Smith to inform him in the event that the trial was pushed back from the scheduled date.4 On the record, Judge Means expressed distaste for " setting bail on people who are not accused of a crime," but nevertheless ordered Schneyder imprisoned when she could not put up a $300,000 surety. The court also advised the parties (the language in the transcript leaves unclear precisely whom he was addressing): " If the case breaks down, let

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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 to me and say, look, we don't have any need for her. If they make a decision at some point on January 31st, we changed our mind, we don't even need this lady, come back to me so I can bring her down and remove this.

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

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

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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 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.


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

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