Crystal Harris v. Larry Krasner

• Court: Court of Appeals for the Third Circuit
• Decided: June 6, 2024
• Docket: 23-2068
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-2068 ___________

CRYSTAL HARRIS; KADEYJA DIXON-FOWLER, Appellants

v.

DISTRICT ATTORNEY LARRY KRASNER; BRIAN KEAN, ASSISTANT DISTRICT ATTORNEY; CITY OF PHILADELPHIA; PHILADELPHIA DISTRICT ATTORNEY’S OFFICE

____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-22-cv-00839) District Judge: Honorable Joel H. Slomsky ____________

Submitted Under Third Circuit L.A.R. 34.1(a) June 3, 2024

Before: HARDIMAN, PORTER, and AMBRO, Circuit Judges.

(Filed: June 6, 2024) ____________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Crystal Harris and Kadeyja Dixon-Fowler appeal an order of the District Court

dismissing their civil action. We will affirm.

I

Harris, a 23-year veteran of the Philadelphia Police Department, learned in 2020

that the Philadelphia District Attorney’s Office had disclosed Internal Affairs Division

complaints against her to defendants in cases where she had testified as a witness. 1 The

disclosures included a 2014 complaint in which a male relative accused Harris of abusing

her authority. The relative made this complaint after Harris reported him for sexually

abusing Dixon-Fowler, a minor relative of Harris. The Internal Affairs Division

“determined [the complaint] was unfounded” and “agreed that any evidence of . . .

alleged lying during an official investigation would be expunged” from Harris’s

disciplinary file. App. 40.

In 2021, after Harris and another officer arrested a motorist for driving under the

influence, Assistant District Attorney Brian Kean wrote an email to Harris’s supervisor

“stating he was declining prosecution . . . because it was not clear which officer did what

during the arrest” and because “Harris was Do Not Call.” App. 37. “Do Not Call” refers

to the District Attorney’s “Do Not Call List,” a roster of police officers whom the District

Attorney would not call to testify in court because of Internal Affairs Division complaints

1 At this stage in the proceedings, we take all well-pleaded facts in the operative complaint as true and make all reasonable inferences in Harris’s and Dixon-Fowler’s favor. Blanyar v. Genova Prods. Inc., 861 F.3d 426, 431 (3d Cir. 2017). 2 filed against them.

Harris and Dixon-Fowler sued District Attorney Larry Krasner and Assistant

District Attorney Brian Kean (together, the Prosecutors) as well as the City of

Philadelphia and its District Attorney’s Office (together, the City). They sought damages

and equitable relief for common law, statutory, and constitutional violations of state and

federal law.

Harris claimed that Defendants violated her First Amendment right to testify and

deprived her of overtime pay for court appearances without due process in violation of

the Fourteenth Amendment. Harris and Dixon-Fowler also sought to enjoin the

Prosecutors from disclosing “any . . . information . . . relating to either [Harris’s]

expunged [Internal Affairs Division] complaint . . . or [Dixon-Fowler’s] sexual assault

. . . in . . . any future criminal prosecution,” claiming these disclosures harmed

reputational interests protected by the Pennsylvania Constitution. App. 43. Finally,

Plaintiffs argued that Defendants were liable for intentional infliction of emotional

distress under Pennsylvania law because the disclosure of Dixon-Fowler’s sexual assault

and the designation of Harris as “Do Not Call” had caused “serious psychological and

emotional harm.” App. 45.

The District Court granted Defendants’ motion to dismiss. It concluded that

Plaintiffs had failed to allege a violation of a constitutional right and that the Prosecutors

were immune from suit for all claims. See Harris v. Krasner, 2023 WL 3431233, at *7–

3 12 (E.D. Pa. May 12, 2023). Harris and Dixon-Fowler timely appealed. 2

II

A

Harris claims the District Court erred when it held that the Prosecutors were

entitled to absolute immunity on her First Amendment claim. The Prosecutors disclosed

Harris’s Internal Affairs Division file, including the complaint alleging abuse of authority

in Dixon-Fowler’s case, to comply with their obligations under Brady v. Maryland, 373

U.S. 83 (1963). Brady requires prosecutors to “inspect” an arresting officer’s personnel

file and “disclose impeachment material that is exculpatory to the defendant.” United

States v. Dent, 149 F.3d 180, 191 (3d Cir. 1998). The Supreme Court’s decisions in

Imbler v. Pachtman, 424 U.S. 409, 424–29 (1976), and Van de Kamp v. Goldstein, 555

U.S. 335, 345 (2009), suggest that prosecutors are afforded absolute immunity in

fulfilling their Brady obligations. “[D]etermining what information” from Harris’s

Internal Affairs file to disclose “require[s] legal knowledge and the exercise of related

discretion.” Van de Camp, 555 U.S. at 344. It is thus “intimately associated with the

judicial phase of the criminal process because it concern[s] the evidence presented at

trial” and “‘preparation for trial.’” Id. (quoting Imbler, 424 U.S. at 430–31 & 431 n.33)

(cleaned up). So the Prosecutors’ disclosure of Harris’s Internal Affairs Division file is a

2 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s order granting a motion to dismiss. See Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

4 “quasi-judicial” function protected by “absolute immunity from [§] 1983 suits.” Imbler,

424 U.S. at 420. 3

The same is true of the Prosecutors’ decision not to call Harris as a witness.

“[T]he duties of the prosecutor . . . involve actions preliminary to the initiation of

a prosecution and actions apart from the courtroom,” including “which witnesses to call.”

Mancini v. Lester, 630 F.2d 990, 994 n.6 (3d Cir. 1980) (quoting Imbler, 424 U.S. at 431

n.33) (emphasis added). Like our sister courts, we conclude that prosecutors have

absolute immunity from suits challenging their refusal to call a police officer as a witness

or their decisions to prosecute certain cases. See Savage v. Maryland, 896 F.3d 260, 270

(4th Cir. 2018); Roe v. City and County of San Francisco, 109 F.3d 578, 583 (9th Cir.

1997).

Harris’s First Amendment § 1983 claim against the City fares no better. “[F]or

Monell liability to attach, there must still be a violation of the plaintiff’s constitutional

rights.” Johnson v. City of Philadelphia, 975 F.3d 394, 403 n.13 (3d Cir. 2020) (cleaned

up). Harris has no unqualified right to testify in any trial she pleases, nor to compel the

District Attorney’s Office “to prosecute . . . [her] cases.” Savage, 896 F.3d at 271.

3 Harris argues that her Internal Affairs Division file contains “false . . . claims brought by [a] convicted rapist” in retaliation “against Harris for reporting the rapes,” “not [Brady] material.” Harris Br. 11–12. We disagree with her characterization of the file. Harris’s file contained a complaint alleging abuse of authority, and it was reasonable for the Prosecutors to conclude that Brady compelled the disclosure of this information. See, e.g., Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013) (finding state prosecutors violated Brady by failing to disclose “[a]n internal investigation report” accusing an officer of “lying during the course of his official duties” and “abus[ing] his authority to get what he wants”). 5 Indeed, “the prosecution has no duty to call any witness . . . if it believes . . . that [her]

testimony is either unreliable, surplusage, or irrelevant.” United States ex rel. Drew v.

Myers, 327 F.2d 174, 179 n.16 (3d Cir. 1964) (emphases added). Because Harris has

failed to allege any free speech violation, her First Amendment § 1983 claim fails.

B

Harris also argues the District Court erroneously dismissed her § 1983 Fourteenth

Amendment claim. She contends that her placement on the Do Not Call list and inability

to testify about her arrests resulted in the deprivation of her public employment without

notice or a hearing. The District Court held that the Prosecutors had absolute immunity

from this claim because “[t]he decision to include police officers on the Do Not Call List

is ‘directly connected with the conduct of a trial’” and “‘require[s] legal knowledge and

the exercise of related discretion.’” Harris, 2023 WL 3431233, at *9 (quoting Van de

Kamp, 555 U.S. at 344). We agree. And even if absolute immunity did not apply, Harris

has not shown that Defendants deprived her of a property or liberty interest protected by

the Fourteenth Amendment. She asserts that the disclosure of her Internal Affairs

Division file and her placement on the Do Not Call List resulted in a de facto

“suspension” because she no longer performs all aspects of her job or receives overtime

pay for testifying in court. Harris Br. 11. But a loss of overtime opportunities or preferred

work assignments does not support a due process claim. See, e.g., O’Donnell v. City of

Cleveland, 838 F.3d 718, 730 (6th Cir. 2016); Altman v. Hurst, 734 F.2d 1240, 1243 (7th

Cir. 1984).

6 The District Court concluded that the Prosecutors had absolute immunity, so it did

not analyze Harris’s argument that her placement on the Do Not Call List harmed her

reputational interests. But “reputation alone, apart from some more tangible interests such

as employment,” does not implicate a “liberty or property interest by itself sufficient to

invoke the procedural protection of the Due Process Clause.” Paul v. Davis, 424 U.S.

693, 701 (1976) (cleaned up); see also Clark v. Twp. of Falls, 890 F.2d 611, 619–20 (3d

Cir. 1989).

In sum, the Prosecutors’ disclosure of Harris’s Internal Affairs file and their

decision to place her on the Do Not Call List did not deprive her of any interest protected

by the federal Constitution, and Harris cannot sustain her § 1983 claim on reputational

harm alone. So the District Court properly dismissed this claim as against all

Defendants. 4

C

Harris and Dixon-Fowler argue that the Prosecutors’ disclosure of Harris’s

Internal Affairs Division file violated their “right to protect [their] reputation[s]” under

the Pennsylvania Constitution. App. 43 (citing Pa. Const. art. I, §§ 1, 11). Citing

Fraternal Order of Police Lodge No. 5 by McNesby v. City of Philadelphia, 267 A.3d

531, 535 (Pa. Commw. Ct. 2021), the District Court denied Plaintiffs’ request to enjoin

4 We decline to consider Harris’s and Dixon-Fowler’s argument that Defendants violated their Fourteenth Amendment due process rights by revealing “personal[,] private information about Harris and Dixon-Fowler to the public in court.” Harris Br. 12. Plaintiffs did not make this argument in the District Court, so it is forfeited. See Simko v. U.S. Steel Corp., 992 F.3d 198, 205 (3d Cir. 2021). 7 the District Attorney’s Office from disclosing information relating to Harris’s expunged

complaint or Dixon-Fowler’s sexual assault in any future criminal prosecutions. See

Harris, 2023 WL 3431233, at *10. As the District Court emphasized, the Commonwealth

Court denied the police union’s request “to enjoin [District Attorney] Krasner from

creating and maintaining an internal Do Not Call List, or from disclosing potentially

exculpatory or impeachment information to criminal defense counsel.” FOP Lodge, 267

A.3d at 544 (emphasis added).

Because Harris sought “the same relief” denied in FOP Lodge, the District Court

rejected her request to “enjoin the District Attorney from fulfilling its obligations

under Brady and Giglio.” Harris, 2023 WL 3431233, at *10. The District Court did not

err in this conclusion. “[N]otion[s] of comity” and “a proper respect for state functions”

militate against enjoining the Prosecutors from complying with their Brady obligations.

ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 132 (3d Cir. 2014) (cleaned up).

In response, Plaintiffs argue that the District Court misreads FOP Lodge. It is true

that the Commonwealth Court afforded the FOP Lodge plaintiffs some relief, but it was

not the same relief that Harris and Dixon-Fowler now seek. The Commonwealth Court

denied the FOP Lodge plaintiffs’ request to enjoin the District Attorney’s disclosure of

potentially exculpatory material. But it held that the City’s failure to provide a

mechanism for officers “to demonstrate why . . . they should not be on the [Do Not Call]

List” “deprived them of their fundamental rights to reputation” “without due process”

under the Pennsylvania Constitution. 267 A.3d at 538, 545.

8 And while the FOP Lodge court enjoined the City from keeping officers on the Do

Not Call List without notice, a hearing, and a removal mechanism, Harris and Dixon-

Fowler seek a broad injunction barring the Prosecutors from sharing Harris’s complaint

file in any future Brady disclosures—the very relief the FOP Lodge court denied. Harris,

2023 WL 3431233, at *10. So the District Court properly dismissed Plaintiffs’ claim for

injunctive relief under the Pennsylvania Constitution. 5

D

Lastly, Harris and Dixon-Fowler argue the District Court erred in dismissing their

common law tort claim for intentional infliction of emotional distress. We agree with the

District Court that this claim is barred by high public official immunity and

Pennsylvania’s Political Subdivision Tort Claims Act (PSTCA).

As for the claim against the Prosecutors, “[t]here is no question that the doctrine of

high official immunity applies . . . to claims for intentional infliction of emotional

distress,” Feldman v. Hoffman, 107 A.3d 821, 835 (Pa. Commw. Ct. 2014), or that it

applies to district attorneys and assistant district attorneys, see Durham v. McElynn, 772

A.2d 68, 70 (Pa. 2001). And the Prosecutors’ disclosure of Harris’s Internal Affairs file

and their decision not to call Harris as a witness are “actions taken in the course of the

official[s’] duties or powers and within the scope of [their] authority.” Id. at 69 (cleaned

up).

5 Nothing in our opinion prevents Harris from asserting in Pennsylvania courts that her placement on the Do No Call List without notice and a hearing violates her reputational interests and due process rights under the Pennsylvania Constitution. 9 As for the City, “it is well-settled that where a plaintiff has averred willful

misconduct on the part of local agency employees, [the PSTCA] bars recovery from the

local agency because liability may be imposed . . . only for negligent acts,” not “willful

misconduct.” Olick v. City of Easton, 2019 WL 1500930, at *2 (Pa. Commw. Ct. Apr. 4,

2019) (cleaned up). And “the term ‘willful misconduct’ is synonymous with the term

‘intentional tort.’” Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (cleaned up).

So the District Court did not err in dismissing the claims against the Prosecutors

and the City for intentional infliction of emotional distress.

* * *

For the reasons stated, we will affirm the District Court’s order dismissing Harris

and Dixon-Fowler’s claims against the Prosecutors and the City.