United States District Court, E.D. Pennsylvania
EUGENE GILYARD, et al.
DENNIS DUSAK, et al
Gilyard and Lance Felder allege Philadelphia and three of its
detectives maliciously prosecuted them for a 1995 murder
resulting in a 1998 guilty verdict followed by a life
sentence for a murder they did not commit. In 2014, Messrs.
Gilyard and Felder obtained their freedom upon the actual
murderer confessing and the Commonwealth dismissing the
charges against them. Messrs. Gilyard and Felder timely sued
the City and its officers for violating their constitutional
rights. After we found Messrs. Gilyard and Felder may proceed
to trial on a Fourth Amendment claim for malicious
prosecution, they now reach for damages under the Fifth and
Fourteenth Amendments based on three paragraphs in their
second amended complaint alleging two detectives concealed a
prosecution eyewitness' past criminal falsehood history
from the defense counsel and state court. Even if we found
they adequately plead these constitutional claims by
inferring failure to disclose evidence to prosecutors as is
currently the law, we must grant the detectives' motion
for judgment as the detectives did not have the benefit of
clearly established law requiring them to turn over criminal
histories of eyewitnesses in 1997 and 1998. We do not measure
the detectives' obligations to turn over the
eyewitness's criminal history to prosecutors based on
2018 law and must afford the two detectives qualified
immunity for 1997 and 1998 actions they could not have known
violated constitutional rights at the time.
August 31, 1995, someone fatally shot Thomas Keal in
Philadelphia. Philadelphia Police officers investigated
the murder by speaking with a dozen people in the area at the
time.Mr. Keal's daughter Tonya Keal
witnessed the murder. The 1995 investigation into Mr.
Keal's murder ended without a suspect or an
1997, Detectives Dennis Dusak and John Benham re-opened the
cold case and began re-investigating Mr. Keal's
murder. After re-interviewing select witnesses
including Ms. Keal, Detective Dusak swore an affidavit of
probable cause allegedly containing fabricated evidence and
evidence obtained by witness intimidation against Messrs.
Gilyard and Felder.Among other evidence, the Detectives relied
upon Tonya Keal's 1997 identification of Messrs. Felder
and Gilyard after she could not do so in 1995.
District Attorney tried Messrs. Felder and Gilyard in the
Philadelphia Court of Common Pleas. On December 10, 1998, the
jury found Messrs. Felder and Gilyard guilty of first degree
murder of Mr. Keal. Four days later, the jury returned a
sentence of life for both men. In 2011, while serving a life
sentence for another murder conviction, Ricky Welborne
a.ka. "Rolex" confessed to shooting Mr.
Keal on August 31, 1998. Messrs. Gilyard and Felder
petitioned for relief under Pennsylvania's
Post-Conviction Relief Act and the state court held numerous
hearings on their petition. On October 8, 2013, Judge
DeFino-Nastasi of the Philadelphia Court of Common Pleas
vacated their sentences and ordered a new trial based the
after-discovered evidence of Mr. Welborne's
confession. On June 18, 2014, the District Attorney
nolle prossed the charges against Messrs. Gilyard
14, 2016, Messrs. Gilyard and Felder sued Detectives Dusak,
Benham, and Wynn,  the City of Philadelphia, and Richard
Neal. On May 26, 2017, Detectives Dusak,
Benham, and Wynn and the City of Philadelphia moved for
summary judgment based on the allegations in Messrs. Gilyard
and Felder's complaint. On the same day, Messrs. Gilyard
and Felder moved to amend their complaint to conform to the
relevant amended allegations are Detectives Dusak and Benham
violated their constitutional rights by intimidating
witnesses and falsifying testimony to identify Messrs.
Gilyard and Felder, refusing to record interviews with and
follow up on leads from witnesses who identified suspects
other than them, and failing to include exculpatory evidence
in the affidavit of probable cause.
Gilyard and Felder also allege Detective Dusak and Benham did
a background check on Ms. Keal and learned she had been
"convicted of a crime of falsehood" also called
"crimen falsi."They further allege
Detectives Dusak and Benham "did not disclose" Ms.
Keal's conviction for crimen falsi to Messrs.
Gilyard's and Felder's defense counsel or "any
court." Messrs. Gilyard and Felder do not allege
the Detectives concealed this information from the
13, 2017, we held oral argument to address pending motions,
including the motion for summary judgment and Messrs. Gilyard
and Felder's motion to amend their complaint, motion for
sanctions and spoliation, and motion for a preliminary
injunction. On June 14, 2017, we granted Messrs. Gilyard and
Felder's unopposed motion to amend "solely to
conform to the adduced evidence relating to a claim for
declaratory relief relating to alleged unconstitutional
probable cause directives and policies..."
granted in part and denied in part Messrs. Gilyard and
Felder's motion for summary judgment addressing their
§ 1983 Fourth Amendment malicious prosecution claims
against Detectives Dusak, Benham, and Wynn and
Monell claim against the City.
City and the Detectives then moved in limine to preclude
evidence of Messrs. Gilyard's and Felder's
incarcerations because the Fourth Amendment does not apply to
postconviction seizure and the jury cannot award them damages
for post-conviction injuries under the Fourth
Amendment. In effect, Messrs. Gilyard and Felder
may recover for damages caused by the conviction but the jury
could not award damages for the years spent in jail. Messrs.
Gilyard and Felder argue the Detectives and City also
violated their Fifth and Fourteenth Amendment rights,
including a Bradyclaim violation, and can be
awarded damages until their exoneration.
24, 2017, eleven days before our initial long-scheduled trial
date, the City and Detectives moved for judgment on the
pleadings arguing Messrs. Gilyard and Felder failed to
specify their Fifth and Fourteenth Amendments claims and
"vaguely asserted" a Brady
claim. We denied the motion because the City
and Detectives did not move "early enough not to delay
trial." We expressed no opinion on the merits
given the imminent trial date.
City and the Detectives appealed our denial of qualified
immunity at summary judgment and our denial on the judgment
of the pleadings. Before our court of appeals heard or
decided the appeal, the parties stipulated the City and
Detectives would withdraw their interlocutory
appeal. The parties requested we vacate our
denial on the City and Detectives' judgment on the
pleadings on procedural grounds and instead allow the parties
to fully brief the judgment on the pleadings on the Fifth and
Fourteenth Amendment claims and rule
substantively. We agreed to these reasonable steps as
we now prepare for July 2018 trial.
Dusak, Benham, and the City move for judgment on pleadings
arguing Messrs. Gilyard and Felder fail to properly allege a
Brady violation and a due process violation under
the Fifth and Fourteenth Amendments. They further argue, even
if they alleged those claims, accepting Messrs. Gilyard and
Felder allegations as true, the City and the Detectives are
entitled to judgment as a matter of law. The City also moves
to dismiss a possible Monell claim based on
Brady violations against Messrs. Gilyard and Felder.
oral argument. As an initial matter, we told the parties our
June 29, 2017 opinion allows Messrs. Gilyard and Felder to
proceed on a Monell claim solely under the Fourth
Amendment against the City for alleged policies, training,
and supervising of officers which fail to require exculpatory
evidence in an affidavit of probable cause. Messrs.
Gilyard and Felder did not allege, and cannot pursue at
trial, a Monell claim based on a Fifth and
Fourteenth Amendment theory.
waiving their arguments in briefs regarding failure to plead
a Brady violation, the Detectives focused their oral
argument on qualified immunity for the Brady Fifth
Amendment claim based on a lack of established law in
1995-1998 on a detective's obligations to turn over
witness' criminal history to prosecutors. At this stage,
we assume solely for the purposes of this motion Messrs.
Gilyard and Felder alleged a Brady violation and a
Fourteenth Amendment claim.
may move for judgment on the pleadings "[a]fter the
pleadings are closed-but early enough not to delay
trial..." In so doing, "the moving party must
show that no issues of material fact exist and that judgment
should be entered in its favor as a matter of
law." The standard applied to motions under
Rule 12(c) is the same standard as applied to motions to
dismiss under Rule 12(b)(6). Rule 12(c) motion "should
not be granted unless the moving party has established that
there is no material issue of fact to resolve, and that it is
entitled to judgment in its favor as a matter of
Dusak and Benham argue qualified immunity bars Messrs.
Gilyard and Felder's Brady and Fourthteenth
Amendment claims because their rights in question were not
"clearly established at the time of the
violation." To allege a § 1983 civil rights
violation against Detectives Dusak and Benham, Messrs.
Gilyard and Felder must allege they "(1) violated
[their] civil rights; and, (2) "the right in question
was clearly established at the time of the
Qualified immunity bars Messrs. Gilyard and Felder's
Brady violation claim against Detectives Dusak and
Gilyard and Felder argue they plead a Brady
violation in three factual background allegations in their
Second Amended Complaint. They allege Detectives Dusak and
Benham possessed Ms. Keal's criminal background check and
learned she had a conviction for a crimen
falsi.They further allege Detectives Dusak and
Benham "did not disclose" Ms. Keal's conviction
for crimen falsi to Messrs. Gilyard and Felder's
defense counsel or "any court."
remind the parties of the present state of law requiring
police officers to turn over Brady evidence.
"Brady suppression occurs when the government
fails to turn over evidence that is 'known only to police
investigators and not to the prosecutors'" and
police may be liable under Brady for
"affirmatively conceal[ing] material evidence from the
prosecutor." But the issue is not what police
officers know today. Instead, we must examine the clearly
established law at the time of Messrs. Gilyard and
Felder's arrest and trial in the end of 1997 and into
Detectives' obligations to turn over evidence to
prosecutors were not clearly established in 1997 and 1998. In
2000, two years after Detectives Dusak and Benham's
alleged Brady violation, our court of appeals noted
duties under Brady are "affirmative[ly]"
placed on the prosecutor and it "assume[d] for the
purposes this appeal that investigating police officers also
have an affirmative duty to disclose exculpatory
evidence..." This 2000 assumption in a footnote is
the closest we get to the Detectives' 1997 and 1998
court of appeals addressed an officer's duty under
Brady in 2005 in Gibson v.
SuperintendentThe court first noted three circuits, the
Fifth Circuit in 1988, Second Circuit in 1992, and the
Eleventh Circuit in 1996, recognized "police officers
and other state actors may be liable under § 1983 for
failing to disclose exculpatory evidence to the
prosecutor" under Brady.Our court of
appeals agreed holding "[a]lthough Brady places
the ultimate duty of disclosure on the prosecutor, it would
anomalous to say that police officers are not liable when
they affirmatively conceal material evidence from the
court of appeals then examined whether the police
officer's duty under Brady was clearly
established in 1994, the relevant time in
Gibson.Our court of appeals noted the Supreme
Court did not establish a prosecutor's duty to learn
unfavorable evidence from the police officers until
1995. The court then continued "[m]ore
importantly, the related duty of the police to disclose
information to the prosecutor was not widely addressed until
later. Even in 2000, this Court was only able to
assume that police officers 'have an affirmative
duty to disclose exculpatory evidence to an accused if only
by informing the prosecutor that the evidence
on our court of appeals holding the right is not clearly
established in 2000, Messrs. Gilyard and Felder's right
was not clearly established in 1998. Detectives Dusak and
Benham are entitled to qualified immunity for allegedly
affirmatively concealing exculpatory evidence from the
prosecutor under Brady.
Qualified immunity bars Messrs. Gilyard and Felder's
Fourteenth Amendment claim ...