NON-PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
_____________
No. 23-2049 _____________
RYAN POWNALL, Appellant
v.
LAWRENCE S. KRASNER, IN HIS INDIVIDUAL CAPACITY; TRACY TRIPP, IN HER INDIVIDUAL CAPACITY; THE CITY OF PHILADELPHIA _____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania, (Case No. 2:22-cv-04191) District Judge: Hon. Gerald A. McHugh
Submitted Under Third Circuit L.A.R. 34.1(a): April 11, 2024
Before: CHAGARES, Chief Judge, PORTER and SCIRICA, Circuit Judges.
(Opinion filed: September 12, 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. PORTER, Circuit Judge. Ryan Pownall, a former Philadelphia police officer, filed a civil rights action
against the Philadelphia District Attorney and an Assistant District Attorney (the
“DAO”). The DAO invoked prosecutorial immunity, and the District Court granted its
motion to dismiss. We will affirm.
I
On June 8, 2017, Pownall was on patrol and noticed David Jones “illegally
operating and recklessly driving a dirt bike.” App. 4. Pownall exited his police car and
approached Jones, whose bike had stalled. A struggle ensued. Pownall grabbed Jones and
felt the outline of a gun tucked into Jones’s waistband. Jones broke free from Pownall,
who then drew his firearm and ordered Jones to stop resisting. Jones refused to comply.
Pownall attempted to fire his gun at Jones, but the weapon misfired. Pownall moved to
clear the misfired round and momentarily lost sight of Jones and Jones’s gun. Jones
dropped or threw away the gun, and started to flee; Pownall, not realizing that Jones no
longer had a gun, shot Jones. Terrance Freeman, who was riding in the back seat of
Pownall’s police vehicle, witnessed the shooting. Jones was taken to the hospital, where
he was pronounced dead. The police recovered a stolen firearm and multiple live rounds
from the ground near the site of the altercation.
The DAO opened an investigation into the shooting, but due to a conflict of
interest the matter was transferred to the Pennsylvania Attorney General’s office. The
Attorney General investigated but never charged Pownall. But Philadelphia’s new
2 District Attorney, Lawrence Krasner, requested that the Pownall matter be transferred
back to the DAO. Krasner assigned the case to Assistant District Attorney Tracy Tripp.
The DAO retained an expert, Gregory A. Warren, Ed.D., to investigate and
prepare a report on whether Pownall’s use of force was justified. Warren’s analysis relied
in part on witness statements, including Freeman’s account to detectives after the
shooting.1 Warren found that Pownall’s decision to shoot Jones hinged on Pownall
temporarily losing visual contact with Jones while clearing the misfired round. Pownall
believed that Jones still possessed his handgun and remained a threat. Applying 18
Pa.C.S.A. § 508(a), which establishes the circumstances under which deadly force used
during an arrest is not a crime, Warren concluded that Pownall’s use of force was
justified, and that Jones’s own actions had caused the shooting.
1 Pownall’s Complaint alleges that “Expert Warren reviewed Witness 3’s [i.e., Freeman’s] statement to detectives and relied upon it to conclude that Pownall’s shooting was justified.” App. 404. Dr. Warren’s report appears to corroborate this. Under a heading that lists “[a]dditional circumstances and observations involving this incident as derived from the study of all of the included documents involving this case are as follows:” (App. 206), the report states, “Officer Pownall’s passenger, Mr. Freeman, who had witnessed a great deal of the unfolding events from the left rear passenger seat of the marked patrol vehicle . . . with his window partially down states to officers that the gun is on the ground several feet away from where the original struggle had ensued.” App. 208 (emphasis added). Also, the cover page of the report notes that the documents reviewed to compile the report included “multiple witness statements.” App. 94. Even if the report does not explicitly confirm its reliance on Freeman’s statement, at the motion to dismiss stage, we must “accept as true all allegations in the complaint” and draw all reasonable inferences from them “in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).
3 Pownall argues that Krasner, motivated by a political agenda, then moved to
present the case to a grand jury proceeding and prosecute Pownall despite Dr. Warren’s
report—which the DAO withheld until ordered by a judge to produce it. Pownall argues
that Krasner exercised supervision over the grand jury proceeding, and that he directed
Tripp and other employees regarding which witnesses to subpoena, what testimony to
elicit from each witness, and what legal instructions to provide to the grand jury. Pownall
further alleges that Krasner and Tripp “acted in concert to obtain false and/or
contradictory witness statements before the . . . grand jury,” pursuing charges against him
despite knowing from Dr. Warren’s report that there was no probable cause. App. 150;
see also App. 6. Pownall specifically draws attention to an apparent testimonial
inconsistency. On one hand, Dr. Warren found that Pownall had not seen Jones drop his
gun. However, on the other hand, the presentment states, seemingly based on Freeman’s
grand jury testimony, “Given Pownall indicated to Witness 3 [i.e., Freeman] that he saw
Jones throw the gun . . . there is no indication how Pownall could have reasonably
believed Jones was still armed or dangerous.” App. 366. The presentment then
concluded, “If, as Pownall later stated, he knew that Jones threw the gun away, there was
no reason or necessity for Pownall to shoot Jones[.]” Id.2 The DAO declined to present to
2 We note inconsistencies and a possible typographical error—material to Pownall’s allegations—within the presentment. First, according to the presentment, Freeman told “Witness 1,” a police officer at the scene, that he saw Jones draw a firearm on Pownall. But Freeman later testified to the grand jury that he never saw Jones’s firearm until after the shooting. App. 362. Second, the presentment states that Pownall told Witness 1 that Jones “threw something,” (Id.) but it concludes that Pownall “indicated to Witness 3 that he saw Jones throw the gun.” App. 366 (emphasis added). 4 the grand jury the statutory definitions of the crimes with which they sought to charge
Pownall. The DAO also did not present the peace officer justification defense under 18
Pa.C.S.A. § 508(a). The grand jury recommended homicide charges against Pownall, and
the DAO charged him with the murder of Jones.
After Pownall was charged, the DAO successfully moved to bypass a preliminary
hearing. As noted by the trial court, a preliminary hearing serves in part as a mechanism
to cure prejudice that may have occurred during grand jury proceedings. The trial court
concluded that the DAO achieved this bypass by misstating the law.3 The DAO also
moved to unseal and publicize the grand jury’s presentment of its factual findings and
recommendation of charges, allegedly planning for media coverage to support Krasner’s
political agenda.
Pownall’s trial was scheduled for early January 2020. In late November 2019, the
DAO filed a motion in limine seeking to bar the use of a standard jury instruction for the
peace officer justification defense, arguing that the statute, 18 Pa.C.S.A. § 508(a),
violates the Fourth Amendment of the Constitution. In December 2019, Pownall filed a
motion to quash the presentment. Declining to respond to the motion to quash, the DAO
“demand[ed]” that the trial court rule on the DAO’s in limine motion, “warn[ing]” the
trial court that it would pursue interlocutory appeal of any order denying the motion.
3 The trial court concluded that the DAO had been “disingenuous when asserting that it had good cause to bypass the preliminary hearing, and . . . demonstrated a lack of candor in its hearing on the bypass motion by misstating the law and providing the presiding judge with incorrect case law.” App. 9; 178. 5 App. 7–8. The court denied the DAO’s motion, the DAO appealed, and the Pennsylvania
Supreme Court denied the DAO’s appeal.
The trial court then issued a Statement of Findings of Fact and Conclusions of
Law granting Pownall’s motion to quash the grand jury’s presentment and concluding
that his due process rights had been violated. The court held that the DAO (1) “failed to
provide the Grand Jury with the statutes for First-Degree murder, Third-Degree murder,
Voluntary Manslaughter, and Involuntary Manslaughter”; (2) “failed to fulfill
prosecutorial duties by deciding not to advise the Grand Jury about the justification
defense under Section 508”; and (3) had been “disingenuous when asserting that it had
good cause to bypass the preliminary hearing, and . . . demonstrated a lack of candor in
its hearing on the bypass motion by misstating the law and providing the presiding judge
with incorrect case law.” App. 9.
Pownall filed suit in the United States District Court for the Eastern District of
Pennsylvania against the City of Philadelphia and the DAO, seeking damages under 42
U.S.C. § 1983 (Counts I and II) on due process and equal protection grounds, and under
Pennsylvania state law (Count III). In Count I, Pownall alleged that the City and
members of the DAO (in their individual capacities) willfully and deliberately violated
his Fourth and Fourteenth Amendment rights by arresting and prosecuting him without
probable cause. In Count II, Pownall alleged that the City and DAO members willfully
and deliberately maintained practices encouraging wrongful prosecutorial conduct in
violation of the First, Fourth, Eighth and Fourteenth Amendments. Finally, in Count III,
6 Pownall asserted a state law claim for “malicious and outrageous conduct.” Answering
Br. 7.
The District Court granted the DAO’s motion to dismiss Pownall’s § 1983 and
state law claims with prejudice, holding that the defendants are shielded by absolute
prosecutorial immunity. The District Court also held that Pownall failed to plead any
plausible basis for municipal liability under Monell v. Department of Social Services, 436
U.S. 658 (1978).
Pownall appealed, raising only the issue of the DAO’s entitlement to absolute
immunity.
II
We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s grant of absolute immunity. Kulwicki v. Dawson, 969
F.2d 1454, 1461–62 (3d Cir. 1992). At the motion to dismiss stage, “the conduct
triggering absolute immunity [must] ‘clearly appear on the face of the complaint’” and
the official seeking immunity bears the burden of showing that the conduct qualifies for
immunity. Weimer v. Cnty. of Fayette, Pennsylvania, 972 F.3d 177, 187 (3d Cir. 2020).
The court must “accept as true all allegations in the complaint” and draw all reasonable
inferences from them “in the light most favorable to the non-moving party.” Rocks, 868
F.2d at 645. However, a court is “not compelled to accept unsupported conclusions and
unwarranted inferences, or a legal conclusion couched as a factual allegation.” Buraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (internal citations and quotation marks
7 omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (plaintiff must
plead facts sufficient to plausibly suggest an entitlement to relief).
III
Prosecutors are absolutely immune from liability under 42 U.S.C. § 1983 for
actions performed as the state’s advocate. Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
This immunity shields all acts “intimately associated with the judicial phase of the
criminal process” but does not extend to “[a] prosecutor’s administrative duties and those
investigatory functions that do not relate to an advocate’s preparation for the initiation of
prosecution or for judicial proceedings.” Buckley v. Fitzsimmons, 509 U.S. 259, 270–73
(1993).
To determine whether absolute immunity forecloses a claim against a prosecutor,
courts undertake a two-step functional analysis: the court determines “what conduct
forms the basis for the plaintiff’s cause of action and . . . then determine[s] what function
(prosecutorial, administrative, investigative, or something else entirely) that act served.”
Schneyer v. Smith, 653 F.3d 313, 332 (3d Cir. 2011); see also Odd v. Malone, 538 F.3d
202, 208 (3d Cir. 2008). This functional test “separates advocacy from everything
else”—legal advocacy is an immune, prosecutorial function. Fogle v. Sokol, 957 F.3d
148, 159–160 (3d Cir. 2020). Such protected advocacy functions include “initiating a
prosecution and [] presenting the State’s case.” Imbler, 424 U.S. at 431.
“[P]rosecutorial immunity analysis focuses on the unique facts of each case and
requires careful dissection of the prosecutor’s actions.” Odd, 538 F.3d at 210; see also
Yarris v. Cnty of Delaware, 465 F.3d 129, 136 (3d Cir. 2006); Kulwicki, 969 F.2d at
8 1463. Accordingly, “our case law has cautioned that determining whether a prosecutor is
entitled to absolute immunity requires a fact-intensive inquiry that generally cannot be
reduced to bright line rules.” Roberts v. Lau, 90 F.4th 618, 627 (3d Cir. 2024); see also
Odd, 538 F.3d at 210 (“We have rejected bright-line rules that would treat the timing of
the prosecutor’s action (e.g., pre-or post[-] indictment) or its location (i.e. in-or out-of-
court), as dispositive.”). “Parsing precedent in the fact-specific context of absolute
immunity is notoriously tricky and turns not on black-letter rules, but on a ‘meticulous
analysis’ of the Prosecutors’ actions.” Fogle, 957 F.3d at 156 (quoting Light v. Haws, 472
F.3d 74, 79 (3d Cir. 2007)).
A prosecutor’s grand jury preparations and decisions to prosecute constitute
advocacy are covered by absolute immunity. See Burns v. Reed, 500 U.S. 478, 490 n.6
(1991) (“There is widespread agreement among the Courts of Appeals that prosecutors
are absolutely immune from liability under § 1983 for their conduct before grand
juries.”); Imbler, 424 U.S. at 431 n.33; Rose v. Bartle, 871 F.2d 331, 344 (3d Cir. 1989)
(“The plaintiffs’ allegations involve direct solicitations of testimony for use in the grand
jury proceedings. Such solicitations are encompassed within ‘the preparation necessary to
present a case’ and therefore are immunized as involving the prosecutors’ advocacy
functions.”).
Prosecutorial immunity for grand jury-related conduct even covers allegations of
“soliciting false testimony from witnesses in grand jury proceedings and probable cause
hearings.” Kulwicki, 969 F.2d at 1465. It also covers allegedly “instituting grand jury
proceedings without investigation and without a good faith belief that any wrongdoing
9 had occurred,” “influencing and directing the grand jury to present false findings,” and
“intentionally failing to call witnesses with knowledge of the events [that the prosecutors]
believed would exculpate” the defendant. Rose, 871 F.2d at 347 n.12. (3d Cir. 1989).
However, there are also instances in which a prosecutor’s actions during grand
jury proceedings constitute an “investigative” function and may fall outside of
“advocacy.” See Fogle, 957 F.3d at 163 (quoting B.S. v. Somerset Cnty., 704 F.3d 250,
270 (3d Cir. 2013).
In Kulwicki, we observed that “[c]ertain pre-filing interactions with the police are
‘investigative,’ such as directing evidence gathering, or giving probable cause advice.”
969 F.2d at 1564. This may also include “situations in which the allegations establish that
the solicitation or coercion of false statements from a witness occurred while the
prosecutor was acting in an investigative capacity.” Id. at 1465 (quoting Rose, 871 F.2d at
344).
To overcome immunity for a prosecutor’s conduct coinciding with grand jury
proceedings, a plaintiff must allege, in detail, that a prosecutor acted in an investigative
capacity. Two recent cases, Fogle v. Sokol and Roberts v. Lau, illustrate the level of detail
required. “In both cases, a hole developed in the prosecution’s case post-charge after a
witness refused to testify or lost credibility.” Roberts, 90 F.4th at 628; accord Fogle, 957
F.3d at 154. In Fogle, the plaintiff alleged in detail that prosecutors had been advising the
police on their investigation and had been interviewing witnesses to search for clues in
the case rather than preparing for trial. Fogle, 957 F.3d at 161–64. Based on the
plaintiff’s “careful dissection of the prosecutor[s’] actions,” we held that the prosecutors
10 were functioning not as advocates, but rather as “investigators seeking to generate
evidence in support of a prosecution.” Id. at 161, 164 (quoting Odd, 538 F.3d at 202,
210). Similarly, the plaintiff in Roberts “provided detailed allegations describing the
actions that [the prosecutor] took to find a new jailhouse informant and coerce him to
provide false testimony.” Roberts, 90 F.4th at 628. We also suggested that a “vague[]”
allegation of investigative conduct that “did not describe in detail when or how the
prosecutor obtained a false statement from a jailhouse informant” would be insufficient to
overcome immunity. Id. (quoting Yarris at 465 F.3d at 139) (cleaned up).
The District Court in this case divided Pownall’s allegations into two categories:
pre- and post-presentment prosecutorial conduct. In the latter instance, the allegations
involved prosecutorial litigation decisions, such as the DAO’s initially successful bypass
of a preliminary hearing. Such conduct falls within the scope of absolute immunity
because these were actions “intimately associated with the judicial phase of the criminal
process,” and “require[d] legal knowledge and the exercise of related discretion.” Imbler,
424 U.S. at 430.
The former category of Pownall’s allegations—concerning the DAO defendants’
conduct earlier in the case—is a closer question, but Pownall comes up short. As noted
above, prosecutorial grand jury advocacy is broadly immune, but such immunity does not
overcome detailed allegations of investigative actions overlapping grand jury
proceedings, e.g., seeking out another witness to plug a hole in a case. See Roberts, 90
F.4th at 628; see also Fogle, 957 F.3d at 154.
Pownall alleged in his complaint that “Defendants Krasner and Tripp acted in
11 concert to obtain false and/or contradictory witness statements before the investigating
grand jury.” App. 150 (emphasis added). He further alleged that “Defendant Krasner
knew about, directed, and/or encouraged this outrageous conduct to build a case that
otherwise lacked probable cause.” App. 150. On appeal, Pownall argues that the District
Court blurred the line between the DAO (a) advancing a different legal theory and (b)
taking coercive actions to alter witness accounts of the shooting. Pownall urges that the
latter constitutes investigation rather than advocacy.
Pownall emphasizes his allegation that the prosecution “obtain[ed]” false or
contradictory witness statements. See Opening Br. 35, 41. Dr. Warren apparently
reviewed Freeman’s statement to detectives and concluded that the shooting was justified
because Pownall had thought that Jones was still armed. But barring a typographical
error, the presentment suggests that Freeman testified4 that Pownall had seen Jones throw
away his gun. Pownall alleges that the DAO “pressured Freeman to change his account.”
Opening Br. 15. He argues that Freeman’s grand jury testimony provided the factual
basis of the presentment’s conclusion that “there is no indication of how Pownall could
have reasonably believed Jones was still armed or dangerous.” See Opening Br. 37 n.11;
App. 366.
While Pownall observes an apparent misalignment between Dr. Warren’s report
(and its reliance on Freeman’s eyewitness account to detectives), and Freeman’s grand
jury testimony (again, barring a typographical error in the presentment), Pownall’s
4 See note 4, supra. The presentment may have erroneously attributed this statement to “Witness 3” (Freeman), rather than to “Witness 1.” See App. 362, 366. 12 complaint does not allege in any detail that the DAO pressured Freeman to change his
story. Only a detailed allegation of investigative prosecutorial conduct can overcome
immunity. Roberts, 90 F.4th at 628; see also Yarris at 465 F.3d at 139; Rose, 871 F.2d at
344. Also, allegations of “soliciting false testimony from witnesses in grand jury
proceedings” or “influencing and directing the grand jury to present false findings” fall
generally under “advocacy.” Kulwicki, 969 F.2d at 1465; Rose, 871 F.2d at 347 n.12.
Pownall did not allege investigative prosecutorial conduct, and even if he had done so
generally, his allegations are insufficiently detailed to overcome immunity.
* * *
For the reasons explained above, we will affirm the District Court’s dismissal of
Pownall’s complaint.