Galloway v. County of Nassau

24-1785-cv
Galloway v. County of Nassau
United States Court of Appeals 1
for the Second Circuit 2
3
A UGUST TERM 2024 4
No. 24-1785-cv 5
6
7
JOSIAH G ALLOWAY , 8
Plaintiff-Cross-Defendant-Appellee, 9
10
v. 11
12
C OUNTY OF NASSAU, D ETECTIVE MATTHEW R OSS , (SHIELD #834), 13
D ETECTIVE C HARLES D E C ARO , (S HIELD #1047) , D ETECTIVE R ONALD 14
L IPSON, (S HIELD #1296) , D ETECTIVE THOMAS D'L UGINSKI , (S HIELD 15
#7900), D ETECTIVE G EORGE D ARIENZO , (SHIELD #1038), 16
Defendants-Cross-Defendants-Appellants, 17
18
D ETECTIVE THOMAS B ISCHOFF, (S HIELD #1001), K ATHLEEN R ICE , 19
A SSISTANT D ISTRICT A TTORNEY JOSEPH L AROCCA, A SSISTANT D ISTRICT 20
A TTORNEY R OBERT SCHALK, D ETECTIVE C HARLES OLIE , S HIELD NO . 21
1047, 22
Defendants, 23
24
NASSAU COUNTY POLICE D EPARTMENT, J OHN D OES #1-20, being and 25
intended to be other parties from the County of Nassau, Nassau 26
County Police Department, Incorporated Village of Hempstead and 27
Incorporated Village of Hempstead Police Department whose names 28
are presently unknown, all jointly and severally, JANE D OES #1-20, 29
being and intended to be other parties from the County of Nassau, 30
Nassau County Police Department, Incorporated Village of 31
Hempstead and Incorporated Village of Hempstead Police 32
Department whose names are presently unknown, all jointly and 33
severally, DETECTIVE S ERGEANT R ICHARD D ORSI, DETECTIVE R ENE 34

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2
Y AO , DETECTIVE C ARL M. S TRANGE , S HIELD NO . 1225, 1
Defendants-Cross-Defendants, 2
3
INCORPORATED V ILLAGE OF H EMPSTEAD, P.O. S TEVEN H OROWITZ , 4
(S HIELD #144), D ETECTIVE K EVIN C UNNINGHAM , (SHIELD 5
#112), D ETECTIVE JOSEPH SORTINO , 6
Defendants-Cross-Claimants. 7
8
9
S UBMITTED: A PRIL 11, 2025 10
D ECIDED: JUNE 26, 2025 11
12
13
Before: JACOBS, CHIN, and MENASHI, Circuit Judges. 14
15
Plaintiff-Appellee Josiah Galloway sued five current and 16
former Nassau County detectives, alleging (among other things) that 17
they denied him his constitutional right to a fair trial by: 18
(a) improperly inducing witnesses to identify him as the perpetrator 19
of a 2008 crime, (b) coercing a witness to sign a statement implicating 20
him, and (c) withholding evidence of those deficiencies in the state’s 21
case in violation of Brady v. Maryland, 373 U.S. 83 (1963). Galloway 22
also sued Defendant-Appellant Nassau County for state-law 23
malicious prosecution. 24
Given the limitations of our interlocutory appellate jurisdiction, 25
as well as of the appellants’ briefing, we decide only whether-- 26
accepting Galloway’s version of events--the detectives were entitled 27
to qualified immunity on the constitutional fair trial claim. Because 28
it was clearly established law by 2008 that detectives could not rig 29
witness identifications, coerce a witness to sign a false inculpatory 30
statement, or ensure that the state withheld evidence of the same from 31
the defense, the district court did not commit legal error in rejecting 32
the detectives’ qualified immunity defenses. 33

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3
DISMISSED IN PART and otherwise AFFIRMED. 1
Judge Menashi dissents in part in a separate opinion. 2
3
G ABRIEL P. H ARVIS , B AREE N. 4
F ETT, Elefterakis, Elefterakis & 5
Panek, New York, NY; 6
JIM D AVY , All Rise Trial & 7
Appellate, Philadelphia, PA; 8
E LIANA MACHEFSKY , National 9
Police Accountability 10
Project, Berkeley, CA, for 11
Plaintiff-Appellee. 12
13
14
JUDY C. S ELMECI , JOHN A. 15
V ITAGLIANO , Wilson Elser 16
Moskowitz Edelman & Dicker 17
LLP, New York, NY, for 18
Defendants-Cross-Defendants- 19
Appellants. 20

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4
D ENNIS JACOBS , Circuit Judge: 1
After serving nearly a decade in prison for a 2008 attempted 2
murder, Plaintiff-Appellee Josiah Galloway was exonerated. As 3
relevant to this appeal, Galloway then sued five current and former 4
Nassau County detectives alleging that they (1) maliciously 5
prosecuted him; and (2) denied him his constitutional right to a fair 6
trial by (a) improperly inducing witnesses to identify him as the 7
perpetrator, (b) coercing a witness to sign a statement implicating 8
him, and (c) withholding evidence of those deficiencies in the state’s 9
case in violation of Brady v. Maryland, 373 U.S. 83 (1963). Galloway 10
also sued Defendant-Appellant Nassau County for malicious 11
prosecution under state law. 12
The detectives--Matthew Ross, Charles DeCaro, Ronald 13
Lipson, Thomas Dluginski, and George Darienzo--together with the 14
county moved for summary judgment, in part claiming qualified 15
immunity. The United States District Court for the Eastern District 16
of New York (Donnelly, J.) denied the motion in relevant part, and 17
adhered to that decision on reconsideration. 18
The detectives and county now pursue these interlocutory 19
appeals, ostensibly seeking that we reverse the denial of their motion 20
for summary judgment, which raised multiple issues. However, 21
because of the limitations of our interlocutory appellate jurisdiction, 22
as well as of the appellants’ briefing, we consider only a sliver of the 23
claims as to which the defendants sought summary judgment. We 24
have jurisdiction over only the defense of qualified immunity, and 25
only as a matter of law. 26
Because New York does not grant municipalities a qualified 27
immunity defense to state-law malicious prosecution claims, we lack 28
jurisdiction over Nassau County’s appeal. Of the issues within our 29
jurisdiction, the appellants press only qualified immunity as to the 30
fair trial claim. The only reference to malicious prosecution in 31
Defendants-Appellants’ opening brief is a list of the claims asserted 32

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5
in the complaint. The detectives have accordingly abandoned any 1
interlocutory challenge to the district court’s denial of qualified 2
immunity as to malicious prosecution. See In re Platinum & Palladium 3
Antitrust Litig., 61 F.4th 242, 276 (2d Cir. 2023) (“[A]rguments not 4
made in an appellant’s opening brief are waived even if the appellant 5
pursued those arguments in the district court . . . .”) (citation omitted). 6
We therefore consider only whether, construing the facts in 7
Galloway’s favor, the detectives were entitled to qualified immunity 8
on Galloway’s fair trial claim. Because it was clearly established by 9
2008 that detectives could not rig witness identifications, coerce a 10
witness to sign a false inculpatory statement, or ensure that the state 11
withheld Brady evidence from the defense, the district court did not 12
commit legal error in rejecting the detectives’ qualified immunity 13
defenses. 14
I. 15
We recite the facts in the light most favorable to Galloway. 16
In 2008, taxi driver Jorge Anyosa was shot in the face during an 17
altercation with another driver. Anyosa survived and assisted the 18
police in creating a sketch of the shooter, with accompanying 19
description: a 25- to 30-year-old man, 5’10” tall, with short black hair, 20
a medium complexion, and a discernible accent. Galloway was 21
arrested on an unrelated matter three weeks after the shooting. 22
Galloway was 21 years old, 5’5” tall, wore his hair in braids, and had 23
no accent. 24
The police then undertook the following measures. 25
Defendants-Appellants DeCaro and Darienzo interviewed 26
Galloway’s friend, Robert Ogletree. They kept Ogletree at the 27
precinct for hours, threatened him with criminal charges, and thus 28
coerced him into signing a statement they had fabricated: that 29
Galloway had confessed to shooting a cab driver, near where Anyosa 30
was shot. 31

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6
At DeCaro’s request, Defendant-Appellant Lipson put together 1
two photo arrays, each with the same photo of Galloway plus five 2
fillers. The arrays were first displayed to cab driver Wilmer 3
Hernandez, who witnessed the argument between Anyosa and the 4
shooter. Lipson (and a non-defendant officer) told Hernandez that 5
they “had the person who was the cause of the [Anyosa] incident” in 6
custody, but that “they wanted to show [Hernandez] pictures” as part 7
of an identification process. Galloway v. Cnty. of Nassau, No. 19-CV- 8
5026 (AMD) (JMW), 2024 WL 1345634, at *2 (E.D.N.Y. Mar. 29, 2024) 9
(quoting Hernandez’s deposition testimony). Hernandez identified 10
Galloway. 11
Lipson then presented Anyosa with two or three photo arrays 12
containing Galloway’s photo. Lipson told Anyosa that Hernandez 13
had already picked the “right person[’s]” photo. Id. at *3 (quoting 14
Anyosa’s deposition testimony). Anyosa initially failed to identify 15
Galloway, but ultimately selected Galloway’s photo in one of the 16
arrays. Lipson affirmed that Anyosa had selected the right person. 17
Galloway was charged in connection with the Anyosa shooting 18
and ordered by the court to participate in a lineup. Defendants- 19
Appellants Ross and Dluginski, who conducted the lineup, seated 20
Galloway with five fillers. They sat Galloway on two phone books, 21
which made him appear taller, and covered Galloway and the fillers 22
with white sheets to mask the adjustment. Besides Galloway, 23
nobody else in the lineup had braids; yet Ross and Dluginski had 24
Galloway and the fillers wear hats. When Anyosa identified 25
Galloway at the lineup, detectives told Anyosa that he had done “a 26
good job” and “got the right person.” Id. at *5 (quoting Anyosa’s 27
deposition testimony). Hernandez, having recognized Galloway 28
from the photo array, then selected Galloway from the lineup. 29
Ross’s then-fiancée, Lori Magliaro, submitted an affidavit 30
attesting that Ross had since admitted that he had “contrived a lineup 31
where [Galloway] wore a baseball cap to conceal the difference in 32
hair” and “made adjustments” “to make [him] look taller” because 33

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7
“his height was not the same as the assailant[’]s.” Id. (quoting 1
Magliaro’s affidavit). Magliaro later disavowed some of her 2
affidavit. 3
Lipson never disclosed the particulars of his photo 4
identification procedures to the prosecutors, who in turn failed to 5
disclose them as Brady material. DeCaro and Darienzo likewise 6
never informed prosecutors that they had coerced and fabricated 7
Ogletree’s signed statement, and the prosecutors in turn failed to 8
disclose these facts as Brady material. 9
At trial, Anyosa and Hernandez again identified Galloway as 10
Anyosa’s shooter. Ogletree testified that he had been coerced into 11
making a fabricated statement implicating Galloway in the shooting. 12
After receiving an Allen charge, the jury convicted Galloway on all 13
counts. Galloway was sentenced to a determinate prison term of 25 14
years, and five years of post-release supervision. 15
More than nine years into the prison term, Galloway was 16
exonerated when new evidence implicated a different suspect in 17
Anyosa’s shooting. Anyosa told officers in the reopened 18
investigation that he would not have identified Galloway as his 19
shooter if he had been informed that Galloway was several inches 20
shorter than 5’10”-11”. 21
II. 22
In an interlocutory appeal of the denial of qualified immunity, 23
we review de novo, construing the facts in the light most favorable to 24
the non-moving party (here, Galloway). See Demoret v. Zegarelli, 451 25
F.3d 140, 148 (2d Cir. 2006). Summary judgment is appropriate “if 26
the movant shows that there is no genuine dispute as to any material 27
fact and the movant is entitled to judgment as a matter of law.” Fed. 28
R. Civ. P. 56(a). 29

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8
Pursuant to the collateral order doctrine, we have 1
circumscribed appellate jurisdiction over the interlocutory appeal of 2
an order denying qualified immunity. See Plumhoff v. Rickard, 572 3
U.S. 765, 771-72 (2014) (explaining that qualified immunity is 4
immunity from suit, not liability, and therefore is collateral to the 5
merits). Specifically, we have jurisdiction “to the extent that 6
[qualified immunity] turns on an issue of law.” Jok v. City of 7
Burlington, 96 F.4th 291, 294 (2d Cir. 2024) (citation omitted). We 8
may consider only “stipulated facts, facts accepted for purposes of the 9
appeal, or the plaintiff’s version of the facts that the district judge 10
deemed available for jury resolution.” Salim v. Proulx, 93 F.3d 86, 90 11
(2d Cir. 1996). 12
Our jurisdiction does not extend to Nassau County’s appeal 13
from the denial of summary judgment on the state law malicious 14
prosecution claim. True, we have discretion to exercise “[p]endent 15
appellate jurisdiction” over an “otherwise unappealable claim [if] the 16
issue is inextricably intertwined with an issue” over which we have 17
jurisdiction, or if “review of the otherwise unappealable issue is 18
necessary to ensure meaningful review of the appealable one.” Britt 19
v. Garcia, 457 F.3d 264, 273 (2d Cir. 2006). But the malicious 20
prosecution claim against Nassau County does not turn on such an 21
issue. While New York recognizes a state law qualified immunity 22
defense to malicious prosecution, see Jones v. Parmley, 465 F.3d 46, 54- 23
55, 63 (2d Cir. 2006) (Sotomayor, J.), a municipal defendant cannot 24
invoke it, even when (as here) municipal liability depends on 25
respondeat superior. See Triolo v. Nassau Cnty., 24 F.4th 98, 113 (2d Cir. 26
2022). Consequently, the county’s liability is too far removed from 27
a qualified immunity question to allow for pendent appellate 28
jurisdiction. 29
We are thus limited to considering the individual defendants’ 30
entitlement to qualified immunity. On appeal, they press qualified 31
immunity only as to the fair trial claim; so we consider only that claim. 32

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9
Qualified immunity “shields officials from civil liability so long 1
as their conduct does not violate clearly established statutory or 2
constitutional rights.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (cleaned 3
up). “To be clearly established, a right must be sufficiently clear that 4
every reasonable official would have understood that what he is 5
doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) 6
(cleaned up). “In making this determination, we consider Supreme 7
Court and Second Circuit precedent as it existed at the time of the 8
challenged conduct.” Tripathy v. McKoy, 103 F.4th 106, 116 (2d Cir. 9
2024) (citation omitted). “We do not require a case directly on point, 10
but existing precedent must have placed the statutory or 11
constitutional question beyond debate.” Id. at 116 (quoting Ashcroft 12
v. al-Kidd, 563 U.S. 731, 741 (2011)). 13
The Due Process Clause “guarantees a criminal defendant’s 14
right to a fair trial,” and it may be vindicated “in an action for 15
damages under 42 U.S.C. § 1983.” Frost v. New York City Police Dep’t, 16
980 F.3d 231, 244 (2d Cir. 2020). By 2008, it was clearly established 17
that police officers violate the due process right to a fair trial if they 18
rig witness identifications, coerce a witness to sign a fabricated 19
inculpatory statement, or ensure that the state withholds evidence of 20
the same from the defense. In Bermudez v. City of New York, 790 F.3d 21
368 (2d Cir. 2015), we evaluated police conduct from the early 1990s; 22
we denied qualified immunity where a jury could find that police 23
pursued an improper “photo array, lineup, and interrogation of [a 24
witness],” and the “officers misled [the prosecutor]” about those 25
procedures. Id. at 376 nn.3-4. 26
Galloway alleges that each of the individual defendants 27
violated his right to a fair trial through one or more of the following: 28
suggestive photo arrays; a suggestive lineup; coercing Ogletree’s 29
fabricated statement; and Brady violations. For the following 30
reasons, we find no error of law in the district court’s determination 31
that a rational jury could find all five individual defendants liable for 32
violating Galloway’s clearly established right to a fair trial. 33

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10
Specifically: (1) Lipson conducted dubious photo identifications and 1
then withheld Brady evidence of that fact from prosecutors (infra Part 2
III); (2) Ross and Dluginski conducted an unconstitutionally 3
suggestive lineup (albeit with Galloway present, avoiding any 4
compounding Brady issue) (infra Part IV); and (3) DeCaro and 5
Darienzo coerced Ogletree into signing a false statement and then 6
withheld Brady evidence of that fact from prosecutors (infra Part V). 7
III. 8
“A defendant’s right to due process includes the right not to 9
be the object of suggestive police identification procedures that create 10
‘a very substantial likelihood of irreparable misidentification.’” 11
United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992) (quoting 12
Simmons v. United States, 390 U.S. 377, 384 (1968)). Due process also 13
“precludes the generation of . . . increased certainty through a 14
suggestive [identification procedure].” Raheem v. Kelly, 257 F.3d 122, 15
135 (2d Cir. 2001). Photo arrays and lineups alike will violate due 16
process if unduly suggestive. See Concepcion, 983 F.2d at 377; 17
Raheem, 257 F.3d at 134. The suggestiveness of an identification 18
procedure is assessed holistically: even if “none of the[] aspects of the 19
[procedure] alone necessarily would have invalidated the 20
identification, the combination of them all” may “comprise[] a highly 21
suggestive identification procedure.” Dickerson v. Fogg, 692 F.2d 238, 22
245 (2d Cir. 1982). 23
Photo arrays that included Galloway were presented by Lipson 24
to both Hernandez and Anyosa. When the array was presented to 25
Hernandez, Lipson told Hernandez that the suspect was already in 26
custody. In the context of lineups, we have disapproved a similar 27
practice. See Jenkins v. City of New York, 478 F.3d 76, 93 (2d Cir. 2007) 28
(“[T]he police generally should refrain from informing a witness that 29
the suspect is in the lineup, [though] a lineup is not unduly suggestive 30
merely because they do so.”). Telling the witness a suspect is in 31
custody is even more dangerous before a photo identification. 32
While “any witness . . . must realize that he would not be asked to 33

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11
view the lineup if there were not some person there whom the 1
authorities suspected,” id., the same is not true of photo arrays. See, 2
e.g., Humbert v. Mayor & City Council of Balt. City, 866 F.3d 546, 551 (4th 3
Cir. 2017), as amended (Aug. 22, 2017) (describing presentation of a 4
photo array to a witness two days before a photo was taken of the 5
suspect ultimately arrested). 6
Armed with Hernandez’s tainted identification, Lipson then 7
showed arrays to Anyosa and obtained an even less reliable 8
identification. Whereas Lipson told Hernandez that the police had 9
a suspect in custody, Lipson went further with Anyosa, confiding that 10
Hernandez had already identified the shooter correctly. Then, once 11
Anyosa identified Galloway’s photo after viewing multiple arrays, 12
Lipson confirmed that Anyosa had selected the suspect. We have 13
disapproved of “endorsing the correctness of the selection.” United 14
States v. Thai, 29 F.3d 785, 810 (2d Cir. 1994); see United States v. 15
Moskowitz, 581 F.2d 14, 20 (2d Cir. 1978) (“[A] witness’s belief” in her 16
identification “may be improperly reinforced by the confirmatory 17
remarks of [law enforcement].”). 18
Most importantly, Lipson compounded the prejudice to 19
Galloway by withholding information about the photo array 20
procedures from the prosecutors. It was clearly established by 2008 21
that police officers violate Brady when they withhold exculpatory 22
evidence from prosecutors. Cf. Walker v. City of New York, 974 F.2d 23
293, 299 (2d Cir. 1992) (“[P]olice satisfy their obligations under Brady 24
when they turn exculpatory evidence over to the prosecutors.”). 25
That specifically includes “misl[eading]” prosecutors “as to the 26
nature of . . . photo identification procedures.” Bermudez, 790 F.3d at 27
376 n.4. While we have disapproved tactics used in the photo 28
identifications here, we need not decide whether they violated clearly 29
established law; Lipson’s qualified immunity defense fails in any 30
event because he misled prosecutors. 31

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12
IV. 1
Next, a jury could find that Ross and Dluginski conducted an 2
unduly suggestive lineup. Anyosa had described his shooter as over 3
5’10”, with short hair. Yet Ross and Dluginski conducted a seated 4
lineup that masked Galloway’s 5’5” height and hid his (braided) hair.1 5
It is clear, as confirmed in the first affidavit of Ross’s fiancée, that 6
these machinations invited an identification that would not otherwise 7
have been made. 8
Ross and Dluginski defend their lineup on the ground that 9
neither the concealment of hair or of height is per se unduly 10
suggestive; and that their subjective intent could not turn acceptable 11
identification techniques into an unduly suggestive procedure. 12
These arguments are sound, but miss the point. 13
“A lineup may be suggestive to one viewer even though it is 14
not to another.” Raheem, 257 F.3d at 134. In Raheem, we observed 15
that a lineup that includes only one short participant--the suspect-- 16
will be unduly suggestive only to a viewer who has already insisted 17
that the perpetrator is short. See id. at 134-35. This case presents the 18
converse: a lineup that hides that the suspect is short is unduly 19
suggestive to a viewer known to believe that the perpetrator is tall. 20
Qualified immunity does not shield Ross and Dluginski. It 21
was clearly established that police could not use identification 22
procedures that are unduly suggestive as to a particular investigation, 23
even if those same procedures would be textbook in another. “[I]t is 24
the likelihood of misidentification,” by the particular viewer “which 25
violates a defendant’s right to due process,” not the method. See 26
1 It also appears that Galloway and the fillers did not speak as part
of the lineup, despite that Anyosa had described his assailant as
having an accent, while Galloway had none. See Appellant’s Br. 12
(“Anyosa and Hernandez each viewed the lineup” (emphasis
added)).

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13
Raheem, 257 F.3d at 133-34 (emphasis added) (quoting Neil v. Biggers, 1
409 U.S. 188, 198 (1972)); see also Neil, 409 U.S. at 198 (explaining that 2
evidence of a “showup” does not categorically violate due process; 3
“the likelihood of misidentification” at a given showup is 4
dispositive). 5
Moreover, the jury could find, based on the first affidavit of 6
Ross’s fiancée, that Ross and Dluginski knew that the lineup would 7
be unduly suggestive. True, as the partial dissent usefully explains, 8
“we do not consider the subjective intent, motives, or beliefs of the 9
officials” when “determining whether official conduct was 10
objectively reasonable.” Connecticut ex rel. Blumenthal v. Crotty, 346 11
F.3d 84, 106 (2d Cir. 2003); Dissent at 7-8. But cf. Galloway, 2024 WL 12
1345634, at *12 (stating, perhaps imprecisely, that the lineup would be 13
unduly suggestive if Ross and Dluginski “inten[ded] to conceal the 14
plaintiff’s height and deprive him of a fair trial”). Nevertheless, “the 15
information that [Ross and Dluginski] possessed when they made 16
the[ir] decisions . . . is a part of the mix.” Id. The question is 17
whether a reasonable officer “acting under the circumstances then 18
confronting [him], would have understood that the applicable law was 19
being violated.” Id. (quoting Vega v. Miller, 273 F.3d 460, 466 (2d Cir. 20
2001)). Ross and Dluginski, knowing that the witnesses believed the 21
shooter to be tall with short hair, would have so understood--Anyosa 22
has since confirmed that he never would have identified Galloway as 23
his shooter if he had known Galloway’s height. 24
V. 25
Galloway alleges that Defendants-Appellants DeCaro and 26
Darienzo coerced Ogletree into signing a fabricated statement: that 27
Galloway had confessed to shooting a cab driver. Under law clearly 28
established by 2008, a police officer violates a plaintiff’s right to a fair 29
trial when he “creates false information likely to influence a jury’s 30
decision and forwards that information to prosecutors.” Ricciuti v. 31
N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). In Frost, we 32
found this standard satisfied where (1) a witness was purportedly 33

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14
coerced to identify the plaintiff as a perpetrator, and (2) a reasonable 1
jury could have found that this coerced identification “critically 2
influenced” the prosecutor’s decision to pursue charges. 980 F.3d at 3
248 (citing Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (2d 4
Cir. 2016)). Ogletree’s statement was provided to prosecutors before 5
they charged Galloway with the shooting. A reasonable jury could 6
conclude that, as in Frost, this coerced statement “critically 7
influenced” the decision to prosecute Galloway. Moreover, a 8
reasonable jury could also find that DeCaro and Darienzo “misled 9
[the prosecutor]” about “the fact that [Ogletree’s] testimony was 10
coerced,” Bermudez, 790 F.3d at 376 n.4--a Brady violation. 11
VI. 12
Finally, each individual defendant argues that he is entitled to 13
summary judgment on qualified immunity grounds for events in 14
which he did not participate. Ross, for example, argues that he 15
“could not have intervened . . . in events he was not involved in,” and 16
that “it was clearly established at the time of these events that a police 17
officer does not violate a suspect’s constitutional rights by merely not 18
intervening where the officer is not present.” Appellant’s Br. 23. 19
The defendants are pressing on an open door. The district 20
court’s rulings on qualified immunity did not hold expressly or 21
implicitly that the detectives could be liable for constitutional 22
violations in which they played no role, whether under a “failure to 23
intervene” theory or otherwise. The district court rejected that 24
suggestion when confronted with a motion for reconsideration on this 25
very ground. 26
The district court observed that “[o]ne of the themes the County 27
presses . . . is that the defendants cannot be held liable if they were 28
not physically present for certain conduct.” Galloway v. Cnty. of 29
Nassau, No. 19-CV-5026 (AMD) (JMW), 2024 WL 2960532, at *2 30
(E.D.N.Y. June 11, 2024). The court specifically acknowledged each 31
such argument: “Darienzo, [Dluginski], and DeCaro cannot be held 32

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15
liable for . . . the photo array”; “Lipson, DeCaro, and Darienzo cannot 1
be held liable for . . . the line-up”; “Ross cannot be held liable for 2
any . . . violations that occurred before the line-up”; and “[Dluginski] 3
cannot be held liable” for “Ogletree’s statement.” Id. at *3. The 4
district court confirmed that it agreed, and had already “accounted 5
for these unremarkable propositions in its order,” id. at *3, and 6
underscored them in so many words: “[o]bviously, the defendants 7
cannot be liable for conduct in which they had no involvement,” id. at 8
*3 n.4 (discussing malicious prosecution claims that survived “[f]or 9
the same reasons” as the fair trial claims). Moreover, the district 10
court has ample tools to ensure that each defendant is liable only for 11
his own conduct. For example, Fed. R. Civ. P. 49(b)(1) allows the 12
court to require “a jury to return only a special verdict in the form of 13
a special written finding on each issue of fact.” See, e.g., Aczel v. 14
Labonia, 584 F.3d 52, 54-55 (2d Cir. 2009) (describing juror form that 15
asked jurors to identify the damages that each defendant’s 16
constitutional violation had proximately caused). The district court 17
did not make the error the defendants urge us to correct. 18
* * * 19
All members of the panel agree that summary judgment was 20
appropriately denied on Galloway’s Due Process claim against 21
Lipson, DeCaro, and Darienzo. See Dissent at 13. Insofar as there 22
is a parting of ways, we disagree respectfully, as follows: 23
1. Our partially dissenting colleague would hold that Ross and 24
Dluginski are entitled to qualified immunity. See Dissent at 6-7. 25
The dissent reasons that “existing precedent” in 2008 had not “placed 26
. . . beyond debate” the “statutory or constitutional question” of 27
whether police may use phone books, hats, and sheets to obscure a 28
suspect’s short height and braided hair from a witness who they 29
know believes the perpetrator is tall and short-haired. See Dissent at 30
8 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). 31

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16
We disagree. It is (and was) clearly established that 1
identification methods bearing a “likelihood of misidentification” of 2
the accused violate due process, no matter their form--just as 3
procedures without such a likelihood do not. See Raheem, 257 F.3d 4
at 133-34; Neil, 409 U.S. at 199. It is immaterial whether appearance 5
is disguised by phone books, or by cigar boxes, or by pillows, or by 6
hats, sheets, eyelashes, moustaches or pimples. With enough artifice 7
and disguise, almost anybody may end up fingered. 8
In employing such artifices, Ross and Dluginski could claim 9
qualified immunity only if a “reasonable official” would not “have 10
understood” that he was “violat[ing]” due process. Horn v. 11
Stephenson, 11 F.4th 163, 169 (2d Cir. 2021) (cleaned up). 12
“[P]recedent involving ‘fundamentally similar’ facts” is not required; 13
“[t]he salient question is whether the state of the law gave the 14
defendant fair warning that his alleged treatment of the plaintiff was 15
unconstitutional.” Id. at 171 (quoting Hope v. Pelzer, 536 U.S. 730, 741 16
(2002)). Ross and Dluginski had such warning: every reasonable 17
officer would have understood that their lineup was unduly likely to 18
result in a misidentification--as the state, having now released 19
Galloway, apparently believes that it did. 20
2. The dissent argues that Lipson is entitled to summary 21
judgment on Galloway’s “separate due process claim that Lipson 22
subjected Galloway to impermissibly suggestive identification 23
procedures,” as distinguished from Galloway’s claim premised on 24
Brady violations. Dissent at 5. But the district court has already 25
clarified that there is no such freestanding claim against Lipson; 26
Galloway has a single, unitary fair trial claim against Lipson under 27
the Due Process Clause. See Galloway, 2024 WL 1345634, at *22; 2024 28
WL 2960532, at *3. As the district court held on reconsideration, “at 29
least one theory of liability applies to each fair trial claim against each 30
County defendant,” so that those claims “survive summary 31
judgment.” 2024 WL 2960532, at *3. 32

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17
3. The dissent argues that the district court erred in denying 1
qualified immunity as to the malicious prosecution claims. See 2
Dissent at 11. As we have explained, see supra at 4-5, this challenge 3
has been waived for want of briefing. Accordingly, we express no 4
opinion on its merits. 5
For the foregoing reasons, Nassau County’s appeal is 6
dismissed. We affirm in all other respects. 7

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24-1785-cv
Galloway v. County of Nassau
MENASHI , Circuit Judge, dissenting in part and concurring in part:
Qualified immunity shields a government official from liability
for civil damages when his actions did not violate clearly established
law. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). Even if an official
acted unlawfully, liability attaches only if the existing precedent had
“placed the statutory or constitutional question beyond debate.”
Kisela v. Hughes, 584 U.S. 100, 104 (2018) (quoting White v. Pauly, 580
U.S. 73, 79 (2017)). Government officials thus remain free to “perform
their duties reasonably,” subject to constraints of which a reasonable
person would be aware. Pearson, 555 U.S. at 231. In this way, the
“immunity protects all but the plainly incompetent or those who
knowingly violate the law.” White, 580 U.S. at 79 (internal quotation
marks omitted). If the applicable law is unclear—or if our precedents
have permitted the conduct—we must dismiss the case.
We may entertain an appeal from the denial of qualified
immunity only “to the extent that it turns on an issue of law.” Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985). So in this case, we appropriately
rely on “the facts favorable to the plaintiff that the trial judge
concluded the jury might find.” Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.
1996). According to the district court, a reasonable jury could find that
Detective Lipson told the witnesses—Wilmer Hernandez and Jorge
Anyosa—that they selected the “right person” from the photo arrays.
And a reasonable jury could find that Detectives Ross and Dluginski
used generally permissible lineup procedures to obscure certain
differences between Josiah Galloway and Anyosa’s description of the
shooter.
We have previously held that such conduct did not violate a
defendant’s constitutional rights. Furthermore, because under our

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2
precedents these identifications were independently reliable, a
reasonable officer would have had arguable probable cause to initiate
criminal charges against Galloway. For these reasons, the officers are
entitled to qualified immunity on the malicious prosecution claim and
on the claim that the officers subjected Galloway to unconstitutionally
suggestive identification procedures. Because the majority holds
otherwise, I dissent in part. I concur that, at this stage, the officers are
not entitled to qualified immunity on the remaining claims.
I
Accepting the facts in the light most favorable to Galloway,
Detective Lipson made potentially suggestive remarks to Hernandez
and Anyosa. Before Hernandez viewed the photo array, Lipson told
him that the police had the shooter in custody. See Galloway v. County
of Nassau, No. 19-CV-5026, 2024 WL 1345634, at *13 (E.D.N.Y. Mar. 29,
2024). After Hernandez identified Galloway from the array, Lipson or
another officer confirmed that Galloway was the right choice. See id.
Before showing Anyosa the array, Lipson told him that Hernandez
had already selected the “right person,” and after Anyosa also
identified Galloway as the shooter, Lipson told Anyosa that he made
the correct identification. Id. at *12-13. The question in this appeal is
whether Lipson violated clearly established law by making those
comments. He did not.
To violate a defendant’s right to due process, an identification
procedure must be “unduly suggestive of the suspect’s guilt.” Styers
v. Smith, 659 F.2d 293, 297 (2d Cir. 1981). Unduly suggestive
procedures “elicit a specific identification” of the defendant by
singling him out as the perpetrator. United States v. Al-Farekh, 956 F.3d
99, 111 (2d Cir. 2020). In the context of a photo-array identification,
we have “rejected” the “contention that agents’ post-selection

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3
confirmatory comments are forbidden” and that such comments
render the identification “impermissibly suggestive.” United States v.
Marrero, 705 F.2d 652, 655 n.5 (2d Cir. 1983). “Indeed,” we have said,
“such a rule would be incompatible with other necessary police
procedures which indirectly signal a witness that he has selected the
person under investigation.” United States v. Leonardi, 623 F.2d 746,
755 (2d Cir. 1980). We have also held that a lineup is not unduly
suggestive when the police tell the witness that there is a suspect in
the lineup. “[A]lthough the police generally should refrain from
informing a witness that the suspect is in the lineup, a lineup is not
unduly suggestive merely because they do so.” Jenkins v. City of New
York, 478 F.3d 76, 93 (2d Cir. 2007) (citing Sales v. Harris, 675 F.2d 532,
538 (2d Cir. 1982)).
Given this precedent, it is incorrect to conclude that Lipson
violated clearly established law. He made remarks during a photo
array that we have specifically held do not render the identification
unduly suggestive. That prior precedent “squarely demonstrates that
no clearly established law precluded [the officer’s] conduct at the time
in question.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).
The majority implicitly acknowledges the mismatch between
our precedent and the denial of qualified immunity in this case; it
quotes our earlier decision that “a lineup is not unduly suggestive
merely because” police officers tell a witness that a suspect is in
custody. Ante at 10 (quoting Jenkins, 478 F.3d at 93). The majority
nevertheless suggests that Lipson violated clearly established law
because in two cases we have “disapproved” of such confirmatory
remarks. Id. at 11. But in both of those cases, we held that the
identifications were “not so impermissibly suggestive” as to violate a
defendant’s rights. United States v. Moskowitz, 581 F.2d 14, 20 (2d Cir.
1978) (emphasis added) (internal quotation marks omitted); see also

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4
United States v. Thai, 29 F.3d 785, 810 (2d Cir. 1994) (“[S]uch misguided
postidentification remarks or actions will not render [the
identification] invalid or preclude a subsequent in-court
identification.”). These prior holdings—that the identification
procedure was legal but inadvisable—do not suffice to defeat
Lipson’s defense of qualified immunity. That is especially true
because whether an identification was unconstitutionally suggestive
depends on several factors. See Thai, 29 F.3d at 808. In “an area in
which the result depends very much on the facts of each case,” the
equivocal opinions on which the majority relies “by no means clearly
established that the officer’s conduct violated” the Constitution.
Plumhoff, 572 U.S. at 779 (internal quotation marks and alterations
omitted).
The majority also sidesteps the rule that a suggestive procedure
alone does not violate a defendant’s constitutional rights. “It is the
likelihood of misidentification which violates a defendant’s right to
due process.” Neil v. Biggers, 409 U.S. 188, 198 (1972). For that reason,
“a suggestive procedure does not in itself intrude upon a
constitutionally protected interest if it did not contribute significantly
to the identification of the defendant.” Raheem v. Kelly, 257 F.3d 122,
135 (2d Cir. 2001). As we have explained, “even an unnecessarily
suggestive identification does not violate due process so long as the
identification possesses sufficient aspects of reliability.” Richardson v.
Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 204 (2d Cir.
2010) (internal quotation marks omitted). It is not enough to establish
a constitutional violation, therefore, for Lipson’s comments to have
been unduly suggestive; the witness identifications must also have
been unreliable.
The majority does not even address whether Hernandez’s and
Anyosa’s identifications were independently reliable. Yet the

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5
reliability of the identifications again shows that neither the photo
array nor the lineup violated clearly established law. These witnesses
had close confrontations with the shooter. Anyosa remembered the
shooter’s face well enough that he could assist in creating a composite
sketch, and both Anyosa and Hernandez identified the shooter within
weeks of the incident. See Neil, 409 U.S. at 199-200. In fact, Galloway
was ultimately exonerated because the alternative suspect closely
resembled the composite sketch and was identified by Anyosa as the
shooter nine years after the shooting. If the exonerating identification
was reliable, then a reasonable officer could have believed the initial
identification was reliable too.
Perhaps sensing these problems, the majority declines even to
“decide whether [Lipson] violated clearly established law” in
conducting the photo array. Ante at 11. The court instead concludes
that “Lipson’s qualified immunity defense fails in any event because
he misled prosecutors.” Id. at 12. That is a non sequitur. We must
decide whether Lipson has qualified immunity for “each cause of
action.” Drimal v. Tai, 786 F.3d 219, 226 (2d Cir. 2015) (quoting Gill v.
Monroe Cnty. Dep’t of Soc. Servs., 547 F.2d 31, 32 (2d Cir. 1976)). I agree
with the majority that Lipson is not entitled to qualified immunity on
the claim that he failed to disclose favorable evidence to prosecutors.
See Brady v. Maryland, 373 U.S. 83 (1963); Walker v. City of New York,
974 F.2d 293, 299 (2d Cir. 1992). But Galloway alleged a separate due
process claim that Lipson subjected Galloway to impermissibly
suggestive identification procedures; the district court said that the
suggestive-identification claim plausibly established a constitutional
violation such that it is “for a jury to resolve” at trial. Galloway, 2024
WL 1345634, at *13; see also id. at *22.
The majority insists that Galloway has “a single, unitary fair
trial claim against Lipson under the Due Process Clause,” no matter

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6
how many separate “theor[ies] of liability” support that claim, so it
does not need to evaluate each theory. Ante at 16. That makes no
sense. The district court has decided to hold a trial not only about the
Brady violations but also about the suggestive identification
procedures. Because Lipson is entitled to qualified immunity for any
claim based on the allegations of unduly suggestive identification
procedures, it is incumbent on this court to say that the district court
erred by allowing such a claim to proceed to trial.
Given the refusal of the majority to decide the issue one way or
the other, it is unclear what will happen when the case proceeds to
trial. Should the jury be instructed that the suggestiveness of the
procedures could violate § 1983? Or should Galloway be limited to
evidence that the prosecutors were misled? The majority does not say.
I would provide an answer. I would reverse the judgment of the
district court insofar as it denied Lipson qualified immunity on the
claim—or, if the majority prefers, the “theory of liability”—that he
subjected Galloway to unconstitutionally suggestive identification
procedures. I would affirm the judgment insofar as it allowed the
Brady theory to proceed.
II
When conducting the lineup, Detectives Ross and Dluginski
asked Galloway and the fillers to wear hats, sit on chairs, and cover
themselves with sheets “so that only their faces were visible.”
Galloway, 2024 WL 1345634, at *11. Galloway sat on two phone books
so that the men in the lineup appeared to be the same height. See id.
at *4. Allegedly, Ross and Dluginski used these procedures to obscure
the fact that Galloway’s height and hair did not match Anyosa’s
description of the shooter. See id. at *12. The majority claims that these

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7
actions violated clearly established law, but again the precedents have
held otherwise.
A
Even the district court recognized that the lineup procedures,
standing alone, “were not unduly suggestive.” Id. at *11 (emphasis
added). It did so in reliance on a body of case law holding that a
“line-up conducted with men seated, covered in sheets, [and] wearing
hats was not unduly suggestive.” Id. (citing Ashby v. Senkowski, 269
F. Supp. 2d 109, 117 (E.D.N.Y. 2003); Neree v. Capra, No. 17-CV-5434,
2020 WL 2098097, at *7-8 (E.D.N.Y. May 1, 2020); Roldan v. Artuz, 78
F. Supp. 2d 260, 272-73 & n.9 (S.D.N.Y. 2000); Solis v. Artus, No. 09-
CV-386, 2012 WL 1252722, at *3 (E.D.N.Y. Apr. 12, 2012); United States
v. Ríos-Orama, No. 22-CR-174, 2023 WL 7403602, at *4-5 (D.P.R. Nov.
3, 2023)). The district court reasoned that the otherwise-permissible
procedures became unduly suggestive because the officers “employed
these procedures in bad faith.” Id. at *11-12.
That is wrong. Whether the procedures were unduly
suggestive does not depend on the subjective intent of the officers. It
depends on objective features of the identification procedures and
whether, in light of those features, the “identification procedure was
so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Neil, 409 U.S. at 197
(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). It
contradicts our precedents to hold that a procedure that the police
may generally employ to produce a reliable identification becomes
unconstitutionally suggestive based on the officer’s state of mind.
Our court and the Supreme Court have specifically held that
the subjective intent of the officer may not be the basis for denying
qualified immunity. “[D]etermining whether official conduct was

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8
objectively reasonable ‘requires examination of the information
possessed’ by the officials at that time (without consideration of
subjective intent).” Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84,
106 (2d Cir. 2003) (alteration omitted) (quoting Anderson v. Creighton,
483 U.S. 635, 641 (1987)). “On the other hand, we do not consider the
subjective intent, motives, or beliefs of the officials.” Id. (emphasis added).
The majority’s analysis does not resolve the contradiction. The
majority opinion holds that “[i]t was clearly established that police
could not use identification procedures that are unduly suggestive as
to a particular investigation, even if those same procedures would be
textbook in another.” Ante at 12. That general assertion merely
restates the platitude that the suggestiveness of a procedure depends
on the “totality of the surrounding circumstances.” Thai, 29 F.3d at
808. But this truism “is far too general a proposition to control this
case.” City & County of San Francisco v. Sheehan, 575 U.S. 600, 613
(2015). The Supreme Court has “repeatedly told courts … not to
define clearly established law at a high level of generality.” Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011) (citation omitted). The majority fails
to explain how “existing precedent … placed the statutory or
constitutional question beyond debate” when the only comparable
cases have held that these identification procedures are permissible
without regard to an officer’s subjective intent. Id. at 741.
B
The typical scenario in which a court has held a lineup to be
unduly suggestive is when the defendant matches the description of
the perpetrator but others in the lineup do not. See, e.g., Frazier v. New
York, 156 F. App’x 423, 425 (2d Cir. 2005); Piper v. Portuondo, 82
F. App’x 51, 52-53 (2d Cir. 2003); Raheem, 257 F.3d at 134-36; United
States v. Wong, 40 F.3d 1347, 1359-60 (2d Cir. 1994) (citing cases); Foster

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9
v. California, 394 U.S. 440, 442-43 (1969). In evaluating such a scenario,
we have explained that “[t]he critical question is whether a
defendant’s appearance made him so stand out from the others in the
lineup as to suggest unfairly that he was more likely to be the culprit.”
Piper, 82 F. App’x at 52 (internal quotation marks and alteration
omitted); see Wong, 40 F.3d at 1359-60. A lineup is unduly suggestive
if it includes “only one person [who] possessed the most salient
characteristic described by the victim.” Frazier, 156 F. App’x at 425.
Those cases do not apply here. The lineup procedure in this
case did not make Galloway stand out as the likely shooter. There was
no distinct facial feature of the shooter that Galloway exhibited but
the fillers did not. The procedure prevented Anyosa and Hernandez
from seeing Galloway’s height, but it also focused the witnesses’
attention on the faces of those in the lineup.
The case law does not prohibit the police from employing a
procedure that focuses on facial characteristics. In this case, the
shooter’s height “was hardly the single distinctive characteristic in
either the witnesses’ descriptions or their lineup identifications.”
Piper, 82 F. App’x at 52-53. Instead, the most detailed description the
police had received of the shooter was of his face; that description was
detailed enough for Anyosa to help create a composite sketch of his
assailant. Once that feature was isolated, two witnesses
independently identified Galloway as the shooter.
We have previously recognized that an eyewitness may not
focus on every characteristic of a perpetrator even if he or she can still
make a reliable identification. See Wong, 40 F.3d at 1360 (concluding
that a witness’s identification was reliable even though the defendant
“was taller than she remembered”). We have not—until today—held
that police officers are prohibited from using a lineup procedure that

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10
focuses on a distinctive feature while obscuring others. The police
officers here may have been acting in bad faith. But that subjective
intent—absent some future development in the case law—does not
affect the qualified immunity analysis. The procedures here did not
violate clearly established law for being unduly suggestive.
The majority opinion robotically repeats the general principle
that “identification methods bearing a ‘likelihood of
misidentification’ of the accused violate due process.” Ante at 16. But
that incantation cannot alter the specific case law according to which
the identification method here was neither likely to result in
misidentification nor contrary to due process. Today’s opinion is the
first time our court has held that identification procedures focused on
facial characteristics are unconstitutionally suggestive. Far from
applying clearly established law, the majority opinion announces a
new rule and abrogates those decisions that have approved such
identification procedures. See Ashby, 269 F. Supp. 2d at 117; Neree,
2020 WL 2098097, at *7-8; Roldan, 78 F. Supp. 2d at 272-73 & n.9; Solis,
2012 WL 1252722, at *3.
C
Even if the lineup were unduly suggestive under clearly
established law, the majority again fails to consider whether the
lineup identifications were independently reliable. But that inquiry is
crucial. “It is not enough that the procedure may have in some
respects fallen short of the ideal.” Sexton v. Beaudreaux, 585 U.S. 961,
966 (2018) (internal quotation marks omitted). A suggestive
identification “does not violate due process so long as the
identification possesses sufficient aspects of reliability.” Richardson,
621 F.3d at 204 (quoting Manson v. Brathwaite, 432 U.S. 98, 106 (1977)).

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11
As explained above, Hernandez’s and Anyosa’s identifications had
strong indicators of reliability.
In denying qualified immunity, the district court held that no
reasonable officer could have believed that the identifications of the
shooter by Anyosa and Hernandez were reliable. As the district court
explained it, “Anyosa and Hernandez had an opportunity to view the
criminal at the time of the crime or at least shortly before the shooting
when, during the first encounter, the shooter drove up behind Anyosa
and Hernandez, started honking, argued with them for a few
minutes, and drove away.” Galloway v. County of Nassau, No. 19-CV-
5026, 2024 WL 2960532, at *6 (E.D.N.Y. June 11, 2024) (internal
quotation marks and alteration omitted). Then “Anyosa also saw the
shooter at 2:00 a.m., when he shot Anyosa in the face.” Id. at *7. The
district court concluded that no reasonable officer could have
believed that Anyosa and Hernandez could provide reliable
identifications because the “argument lasted only a few minutes,
between midnight and 2:00 a.m.,” and the later “encounter lasted for
a few minutes at most, and the circumstances—getting shot in the face
at night—were not conducive to a reliable identification.” Id. at *6-7.
It is outlandish to think that no reasonable officer would have
sought—and relied on—identifications of the shooter from the victim
and the eyewitness who had close confrontations with the shooter.
Even if the case law clearly prohibited the lineup procedure used
here—which it does not—the officers still would be entitled to
qualified immunity because the identifications were independently
reliable.
III
Given the identifications, the officers are also entitled to
qualified immunity on the malicious prosecution claim. “[A]

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12
malicious prosecution claim will be defeated by a showing of
probable cause (that is, by a showing of an independently reasonable
basis for the deprivation of liberty).” Barnes v. City of New York, 68
F.4th 123, 132 (2d Cir. 2023). A “victim’s identification is typically
sufficient to provide probable cause.” Stansbury v. Wertman, 721 F.3d
84, 90 (2d Cir. 2013). Yet “even when probable cause is lacking,” an
“officer’s decision to initiate a prosecution is objectively reasonable if
officers of reasonable competence could disagree on whether the
probable cause test was met.” Cornelio v. Connecticut, 32 F.4th 160, 179
(2d Cir. 2022) (internal quotation marks and alteration omitted). In
other words, the officers are entitled to qualified immunity if the
identifications provided arguable probable cause.
No clearly established law required the officers to discount the
identifications of Galloway by the victim and the eyewitness in this
case. It was not clearly established that the identification procedures
were unduly suggestive, and it was not clearly established that an
identification by a victim of a nighttime shooting was necessarily
unreliable. Accordingly, the officers had at least “arguable probable
cause to initiate the prosecution,” and that means the officers are
entitled to qualified immunity for the malicious prosecution claim. Id.
There may be evidence of improper motivations, but “an officer
cannot be liable for a vexatious motivation as long as she acts with
arguable probable cause.” Id. at 180.
The majority opinion complains about a “want of briefing” on
this issue—as if the majority were otherwise attentive to the briefing.
Ante at 17. But qualified immunity on the malicious prosecution claim
follows directly from the conclusion that the identifications provided
arguable probable cause, and that is the central question in this
appeal.

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13
* * *
While conducting the photo arrays and the lineup, Lipson,
Ross, and Dluginski did not violate clearly established law. Our cases
have specifically held that the procedures at issue in this case were
not so impermissibly suggestive as to violate Galloway’s
constitutional rights. That means the district court erred in denying
qualified immunity to the officers with respect to the claims of
suggestive procedures and malicious prosecution.
At the same time, I agree with the majority that the other claims
should proceed. It was clearly established at the time of the officers’
actions that they could not coerce a witness into signing a false
statement, and they could not withhold favorable evidence about
identification procedures from the prosecutors. Because there remain
disputed issues of fact about whether the officers did so, they are not
entitled to qualified immunity on the Brady, fabrication-of-evidence,
and failure-to-intervene claims. For these reasons, I dissent in part
and concur in part.

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