Crystal Harris; Kadeyja Dixon-Fowler v. District Attorney Larry Krasner

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.

-- 1 of 14 --

2
(Filed: June 6, 2024)
Sharon Gilbert Timm
5410 Simpson Circle
Doylestown, PA 18902
Counsel for Appellants
Jennifer MacNaughton
Senior Attorney, Appeals
City of Philadelphia Law Department
1515 Arch Street, 17 th Floor
Philadelphia, PA 19103
Counsel for Appellee City of Philadelphia
Ira Neil Richards
Dilworth Paxon LLP
1500 Market Street, Suite 3500E
1515 Arch Street, 17 th Floor
Philadelphia, PA 19101
Counsel for Appellees District Attorney Defendants
________________________
OPINION OF THE COURT
________________________
HARDIMAN, Circuit Judge.
Crystal Harris and her daughter, Kadeyja Dixon-
Fowler, sued the City of Philadelphia and its District
Attorney’s Office, District Attorney Larry Krasner, and
Assistant District Attorney Brian Kean, seeking damages and
injunctive relief. Plaintiffs claim Defendants violated their

-- 2 of 14 --

3
rights under the United States and Pennsylvania Constitutions
by disclosing Internal Affairs Division (IAD) complaints filed
against Harris. Harris also claimed that Defendants violated her
state and federal rights by barring her from testifying as a trial
witnesses. The District Court dismissed the suit and Plaintiffs
appeal. For the reasons that follow, 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 IAD complaints against her to
defendants when she had testified as a prosecution witness.1
These disclosures included a 2014 complaint in which Harris’s
former domestic partner accused her of abusing her authority.
Harris’s partner made this complaint after Harris reported him
for sexually abusing Dixon-Fowler. Harris claims IAD
investigated the complaint, “determined it was unfounded,”
and “agreed” in 2017 “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 emailed 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. According to the complaint, “Do Not Call”
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. See Blanyar
v. Genova Prods. Inc., 861 F.3d 426, 431 (3d Cir. 2017).

-- 3 of 14 --

4
refers to the District Attorney’s “Do Not Call List”—a roster
of police officers whom the District Attorney will not call to
testify in court because of IAD complaints 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 under 42 U.S.C. § 1983, the
Pennsylvania Constitution, and state common law.
Harris claimed 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
IAD 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. See Harris v. Krasner, 2023 WL 3431233,
at *7–12 (E.D. Pa. May 12, 2023). Harris and Dixon-Fowler

-- 4 of 14 --

5
timely appealed.2
II
A
Harris claims the District Court erred when it held that
the Prosecutors were entitled to absolute immunity on her §
1983 claims. “[P]rosecutors are absolutely immune from
liability in § 1983 lawsuits” for “their official actions,”
including “actions that are intimately associated with the
judicial phase of the criminal process.” Van de Kamp v.
Goldstein, 555 U.S. 335, 341 (2009) (cleaned up). Absolute
prosecutorial immunity derives from the “public policy”
“‘concern that . . . unfounded litigation’ could both
‘ . . . deflect[] . . . the prosecutor’s energies from his public
duties’ and also lead . . . [him] to ‘shade his decisions instead
of exercising the independence of judgment required by his
public trust.’” Id. at 341 (quoting Imbler v. Pachtman, 424 U.S.
409, 423 (1976)). We agree with the District Court that
Defendants’ disclosure of Harris’s IAD complaint in discovery
material and their refusal to call Harris as a witness are
“prosecutorial function[s]” protected by absolute immunity.
Harris, 2023 WL 3431233, at *9.
The Prosecutors disclosed Harris’s IAD file, including
the complaint alleging abuse of authority in Dixon-Fowler’s
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).

-- 5 of 14 --

6
case, to comply with their obligations under Brady v.
Maryland, 373 U.S. 83 (1963). Brady requires the prosecution
to disclose evidence “favorable to the accused, either because
it is exculpatory, or impeaching,” including evidence “which
may well alter the jury’s judgment of the credibility of a crucial
prosecution witness.” Dennis v. Sec’y, Pennsylvania Dep’t of
Corr., 834 F.3d 263, 284, 287 (3d Cir. 2016) (cleaned up).
The Supreme Court’s decisions in Imbler v. Pachtman
and Van de Kamp v. Goldstein explain 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 Kamp, 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,” id. at 345 (quoting Imbler, 424 U.S. at 430),
and “[p]reparation . . . for a trial,” Imbler, 424 U.S. at 431 n.33.
Harris responds that her IAD file contains “not [Brady]
material,” but “false . . . claims brought by [a] convicted
rapist” in retaliation “against Harris for reporting the rapes.”
Harris Br. 11–12. She notes further that the IAD determined
that the allegations were “unfounded” and agreed to
“expunge[] [the complaint] from her personnel file.” Harris Br.
7. Because the file does not contain Brady material, Harris
argues, the District Court erroneously held that Defendants’
disclosure of the file was protected by absolute immunity. We
disagree.
Harris’s IAD file contained a complaint alleging that
Harris had abused her authority. It is possible that a
prosecutor’s Brady obligations may, in some cases, include a
duty to disclose “[a]n internal investigation report” accusing a

-- 6 of 14 --

7
testifying officer of “lying during the course of h[er] official
duties” or “abus[ing] h[er] authority to get what [s]he wants.”
Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013). But even
assuming, as Harris argues, that her IAD file does not contain
Brady material, or that “unsubstantiated allegations against a
government witness” need not be disclosed under Brady, see
United States v. Souffront, 338 F.3d 809, 823 (7th Cir. 2003),
the Prosecutors would still be entitled to absolute immunity.
If absolute immunity is to serve its purpose, the
line between official conduct, as to which there
is immunity, and extra-official conduct, as to
which there is not, must . . . leave[] officials
room for good faith mistakes about the extent of
their authority. Thus, if the circumstances in a
particular case were such that a reasonable
prosecutor in the defendant’s position could have
had a good faith belief that he was authorized by
his office to act as he did, immunity will be
recognized. In such a case, an allegation that the
official acted in bad faith, knowing his conduct
to be unauthorized, will not strip the official of
absolute immunity. Similarly, absolute
immunity will be available, in such a case, even
if the authority in fact was lacking under the law.
Stated conversely, immunity will be denied only
for those acts which a reasonable prosecutor
would recognize as being clearly outside his
jurisdiction to represent the state before the
court.

-- 7 of 14 --

8
Ernst v. Child & Youth Servs. of Chester Cnty., 108 F.3d 486,
502 (3d Cir. 1997) (second emphasis added) (cleaned up). In
short, whether the Prosecutors are entitled to absolute
immunity turns not on whether the allegedly expunged
complaint was properly disclosed as Brady material, but
whether the Prosecutors could have had any good faith basis to
believe that they could disclose the complaint when Harris
testified as a witness. We conclude that they did.
As we have emphasized, prosecutors have an obligation
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), and
the Ninth Circuit has held that Brady may, in some cases,
compel disclosure of allegations that a testifying officer has
abused her authority, see Milke, 711 F.3d at 1012. And
although Harris alleges that the complaint was expunged, we
know of no authority holding that expunged or dismissed
complaints against an arresting officer can never be disclosed
under Brady and its progeny. Rather, “the prudent prosecutor
will resolve doubtful questions in favor of disclosure.” United
States v. Agurs, 427 U.S. 97, 108 (1976). Thus, we hold that
the Prosecutors had a good-faith basis to believe they were
authorized—if not compelled—to disclose Harris’s IAD
complaint. Accordingly, the Prosecutors’ disclosure of
Harris’s IAD file is a “quasi-judicial” function protected by

-- 8 of 14 --

9
“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 strategic
decision not to call a police officer as a witness, see Savage v.
Maryland, 896 F.3d 260, 270 (4th Cir. 2018), or their decision
not to prosecute a case, see 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.
Indeed, “the prosecution has no duty to call any witness . . . if
it believes after examination or investigation that [her]
testimony is either unreliable, surplusage, or irrelevant.”
3 In reaching this conclusion, we assume that the complaint in
Harris’s IAD file was deemed unfounded and was later
expunged. See Blanyar, 861 F.3d at 431. So we need not
consider Harris’s broader IAD file or Defendants’ assertion
that the IAD sustained misconduct allegations filed against
Harris.

-- 9 of 14 --

10
United States ex rel. Drew v. Myers, 327 F.2d 174, 179 n.16
(3d Cir. 1964) (emphasis added). Because Harris has failed to
allege any freedom of speech violation, her First Amendment
§ 1983 claim fails.
B
Harris also argues that the District Court erroneously
dismissed her Fourteenth Amendment § 1983 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.
As for Harris’s reputational argument, the District Court
concluded that the Prosecutors had absolute immunity, so it did
not consider whether Harris’s placement on the Do Not Call
List harmed her reputational interests under the First or
Fourteenth Amendment. 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); see also Clark v. Twp.
of Falls, 890 F.2d 611, 619–20 (3d Cir. 1989).
In sum, the Prosecutors’ disclosure of Harris’s IAD file
and their decision to place her on the Do Not Call List did not
deprive her of any interest protected by the United States
Constitution, and Harris cannot sustain her § 1983 claim on

-- 10 of 14 --

11
reputational harm alone. So the District Court properly
dismissed this claim as to all Defendants.4
C
Harris and Dixon-Fowler argue that the Prosecutors’
disclosure of Harris’s IAD 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 the District
Attorney’s Office from disclosing information relating to
Harris’s IAD 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
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).

-- 11 of 14 --

12
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 plaintiffs had
stated a claim that the City “deprived them of their fundamental
rights to reputation without due process” under the
Pennsylvania Constitution by failing to give exonerated
officers an “opportunity to argue why they should not be on the
Do Not Call List before it is disclosed to the public.” 267 A.3d
at 538, 545.
To be sure, the FOP Lodge court held “the trial court
erred by . . . concluding . . . that the appellant police officers
[were] not entitled to prior notice that they [were] being
considered for placement on the . . . Do Not Call List or
afforded a[n] . . . opportunity to be heard concerning whether
they should be removed from the . . . List.” Id. at 553. But
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. See Harris, 2023 WL 3431233, at *10. So the District

-- 12 of 14 --

13
Court properly dismissed Plaintiffs’ claim for injunctive relief
under the Pennsylvania Constitution.5
D
Lastly, Harris and Dixon-Fowler argue that the District
Court erred in dismissing their common-law 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), appeal denied, 121 A.3d 497 (Pa. 2015),
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 IAD 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).
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,”
5 Nothing in our opinion prevents Harris from asserting that her
placement on the Do Not Call List without notice and a hearing
violates her reputational interests and due process rights under
the Pennsylvania Constitution.

-- 13 of 14 --

14
Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa.
Commw. Ct. 2014), “not . . . willful misconduct,” 42 Pa.C.S. §
8542(a)(2).6 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 Plaintiffs’ claims against the
Prosecutors and the City.
6 Both the City of Philadelphia and the District Attorney’s
Office are “local agenc[ies]” under the PSTCA. See Maloney
v. City of Philadelphia, 535 A.2d 209, 211 (Pa. Commw. Ct.
1987); Pettit v. Namie, 931 A.2d 790, 798 (Pa. Commw. Ct.
2007).

-- 14 of 14 --