Corey R. Kendig v. NICHOLAS STOLAR On Appeal from the United States District Court for the Western…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 24-2260
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COREY R. KENDIG,
Appellant
v.
NICHOLAS STOLAR
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D. C. No. 1:21-cv-00326)
District Judge: Honorable Cathy Bissoon
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Argued on June 24, 2025
Before: MONTGOMERY-REEVES, ROTH and
AMBRO, Circuit Judges
(Opinion filed: April 28, 2026)

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Joel S. Sansone (Argued)
Law Offices of Joel Sansone
603 Stanwix Street
Two Gateway Center, Suite 1290
Pittsburgh, PA 15222
Counsel for Appellant
Michael J. Scarinci (Argued)
Office of Attorney General of Pennsylvania
Strawberry Square 15th Floor
Harrisburg, PA 17120
Counsel for Appellees
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OPINION
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ROTH, Circuit Judge.
Corey Kendig was tried and acquitted by a jury for the
shooting death of Jeremy Jones. Kendig sued Pennsylvania
State Trooper Nicholas Stolar for arrest and imprisonment
without probable cause, in violation of his Fourth Amendment
rights, under 42 U.S.C. § 1983. The District Court granted
summary judgment to Stolar, finding that he was entitled to
qualified immunity. For the reasons stated below, we will
affirm the District Court’s order.

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I.
On October 13, 2020, at around 1:30 a.m., Jeremy Jones
and his friends spotted Corey Kendig leaving Partner’s Tavern,
a strip club. One of Jones’ friends confronted Kendig about an
alleged scam involving the sale of a used truck to his father,
another punched Kendig in the face, and a physical altercation
ensued. At some point in the altercation, when Kendig was on
the ground in a chokehold, Kendig discharged his firearm,
shooting Jones in the stomach. Jones died shortly thereafter.
Kendig was taken into custody at the scene. After he
was transported by ambulance to a medical center, he received
treatment for “a closed head injury, and a severe injury to his
right ear,” and then returned to the police barracks.1
Trooper Nicholas Stolar was appointed as lead
investigator on the case. Later in the morning of Jones’
shooting, Stolar and other troopers interviewed several
witnesses at the scene, conducted follow-up interviews at their
residences or at the police barracks, viewed video footage of
the incident, and filed several search warrant applications. At
around 1:30 p.m. on October 13, Stolar filed charges against
Kendig for criminal homicide,2 aggravated assault,3 and
recklessly endangering another person.4 Kendig was tried in
August 2021, and the jury found him not guilty on all counts.
1 Appx. 37 ¶¶ 15–19, 237 ¶ 18.
2 18 Pa. C.S. § 2501(a).
3 18 Pa. C.S. § 2702(a)(4).
4 18 Pa. C.S. § 2705.

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II.
On November 23, 2021, Kendig commenced this action
under 42 U.S.C. § 1983 against Stolar and the Pennsylvania
State Police in the United States District Court for the Western
District of Pennsylvania. As relevant here, Kendig asserted
claims for Fourth Amendment false arrest, false imprisonment,
and malicious prosecution. Because facts supporting self-
defense are not relevant to the probable cause determination,
the District Court granted Stolar’s motion for summary
judgment, finding that Kendig had failed to show that he was
arrested, detained, and charged without probable cause, and
that Stolar was entitled to qualified immunity.
III.
The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction under 28 U.S.C. § 1291.5 We
review de novo and may affirm the District Court’s grant of
summary judgment only if, viewing the facts in the light most
favorable to the non-moving party, “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.”6
As Stolar raised the qualified immunity defense at
summary judgment, he is “‘shielded from liability for civil
damages insofar as [his] conduct does not violate clearly
established statutory or constitutional rights of which a
5 Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020).
6 Fed. R. Civ. P. 56(a); see also Merkle v. Upper Dublin Sch.
Dist., 211 F.3d 782, 788 (3d Cir. 2000).

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reasonable person would have known.’”7 This divides our
qualified immunity inquiry in two. First, we consider whether
Stolar violated an alleged statutory or constitutional right.
Second, we determine whether that right was “clearly
established at the time of the challenged conduct.”8
IV.
Kendig’s claims for false arrest, false imprisonment,
and malicious prosecution share a common core: the Fourth
Amendment right to be free from arrest, detention, and charges
without probable cause.9 Implicit in that right is an expectation
that exculpatory facts negating probable cause are raised
before the magistrate judge tasked with considering whether to
7 Orsatti v. N. J. State Police, 71 F.3d 480, 483 (3d Cir. 1995)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
8 Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011) (cleaned up).
9 Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.
1988) (False arrest requires the court to determine whether “the
arresting officers had probable cause to believe the person
arrested had committed the offense.”); Lozano v. New Jersey,
9 F.4th 239, 246 (3d Cir. 2021) (“To succeed in a false
imprisonment claim, a plaintiff must show that ‘the police
lack[ed] probable cause to make an arrest’ and that the plaintiff
was ‘det[ained] pursuant to that arrest.’”) (quoting Harvard,
973 F.3d at 202) (alterations in original); Chiaverini v. City of
Napoleon, 602 U.S. 556, 558 (2024) (“To succeed on [a Fourth
Amendment malicious prosecution claim], a plaintiff must
show that a government official charged him without probable
cause, leading to an unreasonable seizure of his person.”).

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authorize a warrant.10 Kendig argues that facts indicating he
shot Jones in self-defense are exculpatory to his charged
crimes; thus, their omission from Stolar’s affidavit tainted the
neutral magistrate’s probable cause determination. Stolar
counters that his omission of these facts did not violate, much
less implicate, Kendig’s Fourth Amendment right because
facts supporting an affirmative defense are categorically
irrelevant to the probable cause inquiry.
The District Court agreed with Stolar, determining that
even if the omitted facts supported self-defense, Stolar did not
violate any constitutional right—let alone one that is clearly
established—because self-defense cannot negate probable
cause.11 We agree with the court’s conclusion that Stolar is
entitled to qualified immunity, but part ways with its reasoning.
A.
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons . . . against unreasonable .
. . seizures.”12 Seizures—whether through arrest or post-arrest
detention—are reasonable “only if based on probable cause to
10 See Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000)
(holding a police officer cannot simply ignore or omit
exculpatory evidence in an affidavit of probable cause
supporting arrest).
11 The District Court adopted the reasoning in Rittacco v.
Zelechowski, No. 22-544, 2024 WL 2319505, at *12 (W.D. Pa.
May 22, 2024), in coming to this conclusion, but provided little
to no explanation specific to Kendig’s own claims.
12 Manuel v. City of Joliet, 580 U.S. 357, 364 (2017)
(alterations in original).

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believe that the individual has committed a crime.”13 The
Fourth Amendment also requires either the issuance of a
warrant before arrest or that “persons arrested without a
warrant . . . promptly be brought before a neutral magistrate for
a judicial determination of probable cause.”14
To obtain an arrest warrant in either circumstance, an
officer charging a suspect with a crime will submit an affidavit
of probable cause to a neutral magistrate “containing a
summary of the events that she believes give rise to probable
cause.”15 The magistrate then “conducts his own independent
review of the evidence to determine whether it does, in fact,
establish probable cause.”16 This two-step process reflects “a
‘practical compromise’ between the rights of individuals and
the realities of law enforcement.”17 It “allows officers to
pursue leads zealously while also ensuring that an arrest
warrant will issue only if ‘a neutral and detached magistrate’
13 Bailey v. United States, 568 U.S. 186, 192 (2013) (internal
quotation marks omitted).
14 Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991).
This is for good reason, as “[t]he point of the Fourth
Amendment, which often is not grasped by zealous officers, is
not that it denies law enforcement the support of the usual
inferences which reasonable men draw from evidence. Its
protection consists in requiring that those inferences be drawn
by a neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive enterprise of
ferreting out crime.” Johnson v. United States, 333 U.S. 10,
13–14 (1948).
15 Dempsey, 834 F.3d at 469.
16 Id.
17 McLaughlin, 500 U.S. at 53.

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agrees with the officer that probable cause exists.”18 Where an
officer “does not provide the neutral magistrate with an
accurate affidavit of probable cause, the protection afforded by
the magistrate’s review is lost; the magistrate will be unable to
assess the circumstances for probable cause because he will not
know what those circumstances actually are.”19 A Fourth
Amendment violation therefore arises when a neutral
magistrate’s probable cause determination is predicated on an
insufficient or untrue affidavit.20
Challenges to probable cause determinations by a
neutral magistrate are different than those challenging an
officer’s warrantless arrest. The officer’s sole job in drafting
the affidavit of probable cause is to provide the neutral
decisionmaker with sufficient information for an independent
18 Dempsey v. Bucknell Univ., 834 F.3d 457, 469 (3d Cir. 2016)
(quoting Wilson, 212 F.3d at 787).
19 Id.
20 See Franks v. Delaware, 438 U.S. 154, 171 (1978) (a search
or seizure pursuant to a warrant is unreasonable if the affidavit
supporting the warrants contains deliberate “falsity or reckless
disregard” for the truth).

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probable cause determination. His job is not to make his own
determinations.21
Probable cause eschews bright-line rules, so we have
avoided setting forth specific categories of information that
must be included in affidavits of probable cause, or those that
are entirely irrelevant. Still, an officer must “include in the
affidavit all information,” within his or her knowledge, that
“‘any reasonable person would know that a judge would want
to know’ in making a probable cause determination.”22
Officers need not “tell all”: they are not required to include
“every potentially evocative detail that would interest a
novelist or gossip,”23 nor must they include every single piece
21 Illinois v. Gates, 462 U.S. 213, 239 (1983) (“Sufficient
information must be presented to the magistrate to allow that
official to determine probable cause; his action cannot be a
mere ratification of the bare conclusions of others.”). In
comparison, for warrantless arrests, an officer’s own “on-the-
scene assessment of probable cause provides legal justification
for arresting a person suspected of crime,” Gerstein v. Pugh,
420 U.S. 103, 113–14 (1975), and the officer therefore
considers the “totality of the circumstances” and in doing so,
weighs evidence, credibility, and resolves conflicting
information to make a probable cause determination. Wright
v. City of Philadelphia, 409 F.3d 595, 603 (3d Cir. 2005),
abrogated on other grounds by Chiaverini v. City of Napoleon,
602 U.S. 556 (2024).
22 Dempsey, 834 F.3d at 469 (quoting Reedy v. Evanson, 615
F.3d 197, 213 (3d Cir. 2010)).
23 Wilson, 212 F.3d at 787 (providing, as examples, “the
witness blushed when I mentioned the gun, and blinked six

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of evidence for every single point.24 However, they are “‘not
free to disregard plainly exculpatory evidence, even if
substantial inculpatory evidence (standing by itself) suggests
that probable cause exists.’”25
B.
Considering the above principles, our Court has left as
an open question whether an affirmative defense is relevant to
an affidavit of probable cause, and we have never imposed on
officers a duty to make such a determination. But as Judge
Smith predicted in his concurrence to our non-precedential
decision in Mazuka v. Rice Township Police Department,26
there “[would] be a time when we take on this issue.” Ten
years later, the time has come.
Before we can resolve this open question, we must first
answer another: whether evidence establishing an affirmative
defense is meaningfully distinct from the plainly exculpatory
evidence that, under our precedent, officers must include in
probable cause affidavits.27 Stolar urges that we draw a rigid
line between these two types of evidence, arguing that facts
establishing an affirmative defense—in this case, self-
times while studying the photographic array. I noticed his hand
crept up to his lips (which were chapped) . . .”).
24 Dempsey, 834 F.3d at 474.
25Andrews v. Scuilli, 853 F.3d 690, 699 (3d Cir. 2017) (quoting
Dempsey, 834 F.3d at 469).
26 655 F. App’x 892, 895 (3d Cir. 2016).
27 See Andrews, 853 F.3d at 699 (noting that probable cause
affidavits cannot omit plainly exculpatory evidence);
Dempsey, 834 F.3d at 469 (same).

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defense—are not plainly exculpatory, thereby destroying
probable cause. But accepting that view would require us to
hold that these facts are never relevant or material to a probable
cause finding. We cannot do so because Pennsylvania law
treats evidence of self-defense as exculpatory for all three
offenses charged here—making Kendig’s case an immediate
exception to such a rule.28
Stolar charged Kendig with criminal homicide,
aggravated assault, and recklessly endangering another person.
In Pennsylvania, “[a] person is guilty of criminal homicide if
he intentionally, knowingly, recklessly or negligently causes
the death of another human being.”29 Criminal homicide
includes murder, voluntary manslaughter, and involuntary
manslaughter.30 A person is guilty of aggravated assault if he,
as charged here, “intentionally or knowingly causes bodily
injury to another with a deadly weapon.”31 Lastly, a person is
guilty of reckless endangerment if he “recklessly engages in
conduct which places or may place another person in danger of
death or serious bodily injury.”32
Self-defense is specifically enumerated in the
preliminary provisions of Pennsylvania’s criminal code, and
applies to all offenses defined later in the title—including the
28 We have previously declined to conclude that affirmative
defenses are categorically irrelevant to a probable cause
analysis. See Holman v. City of York, 564 F.3d 225, 231 (3d
Cir. 2009).
29 18 Pa. C.S. § 2501(a).
30 18 Pa. C.S. § 2501(b).
31 18 Pa. C.S. § 2702(a)(4).
32 18 Pa. C.S. § 2705.

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three crimes at issue here.33 More critically, the Pennsylvania
Supreme Court has held that self-defense negates the mens rea
elements for all three charged crimes,34 and that if there is any
evidence of self-defense in the record, the prosecution bears
33 18 Pa. C.S. § 505.
34 See In Int. of Smith, 579 A.2d 889, 897 (Pa. Super. Ct. 1990)
(“The self-defense finding negates all elements of a homicide
because the use of deadly force is justified under the conditions
which warrant a finding of self-defense.”); Commonwealth v.
Fowlin, 710 A.2d 1130, 1133 (Pa. 1998) (finding that “a claim
of self-defense, if believed, negates any element of
recklessness,” and applying this finding to aggravated assault
and reckless endangerment); Commonwealth v. Flemings, 652
A.2d 1282, 1285 (Pa. 1995) (self-defense negates mens rea for
aggravated assault); Commonwealth v. Hooks, 2017 WL
6044282, at *3 (Pa. Super. Ct. Dec. 6, 2017) (“A fact-finder
cannot find that a defendant justifiably acted in self-defense
and simultaneously hold the defendant criminally liable for
crimes involving recklessness.”); Commonwealth v. Hilbert,
382 A.2d 724, 731 (Pa. 1978) (“We are of the opinion that
‘self-defense’ negates two elements of the common-law
definition of murder: unlawfulness and malice.”);
Commonwealth v. Madison, 413 A.2d 718, 720 (Pa. Super. Ct.
1979) (“In order to sustain a verdict of First Degree Murder,
the evidence must establish that the defendant, with specific
intent to kill, and absent legal excuse or justification, caused
the death of another person.”).

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the burden to disprove self-defense at trial in the first
instance.35
In Harvard v. Cesnalis, we considered the relevance of
self-defense evidence to a defendant’s mens rea for aggravated
assault and reckless endangerment.36 There, we explained that
“a juror could find that [the defendant’s] decision to drive with
[the victim] on the hood of his vehicle was a justifiable risk to
protect himself and [his passenger] from [the victim’s]
abhorrent behavior.”37 Ultimately, we held that information
related to the victim’s violent and aggressive behavior was
material to probable cause and therefore belonged in the
officer’s affidavit of probable cause, as “such crucial
information . . . creates serious doubts as to whether [the
defendant] had the requisite mental state for the crimes
35 In Int. of Smith, 579 A.2d at 896 (“When evidence at trial
indicates the defense of self-defense, the burden is on the
Commonwealth to prove beyond a reasonable doubt the killing
was not in self-defense”). In the case of criminal homicide,
even a partial showing of self-defense can differentiate a
conviction for murder and a conviction for manslaughter. See
Commonwealth v. Light, 326 A.2d 288, 294 (Pa. 1974).
36 973 F.3d 190, 200 (3d Cir. 2020).
37 Id.

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charged.”38 As Harvard and the present case both illustrate,
evidence establishing an affirmative defense may, depending
on the offense at issue, overlap with exculpatory evidence for
probable cause purposes. Thus, the line between exculpatory
facts and affirmative defense evidence is not always as rigid as
Stolar suggests.
C.
We need not stray far from the fundamentals of
probable cause to envision an affirmative defense’s relevance
to a neutral magistrate’s inquiry into charged crimes, but we
stop short of finding that, in every case, evidence of an
affirmative defense is exculpatory and thus vitiates probable
cause. Instead, with the understanding that facts establishing
self-defense are exculpatory for the specific offenses at issue
in this case, we now adopt as precedent the rule Judge Smith
proposed in his Mazuka concurrence:
[A]n affirmative defense [is] considered relevant
to a probable cause determination only when a
reasonable police officer . . . would
“conclusively know” that the affirmative defense
either negates the requisite mental state or
excuses the offending conduct. . . . This may
38 Id. at 204. Our Harvard opinion did not expressly categorize
the defendant’s actions in taking a “justifiable risk” as an
affirmative defense; however, the difference in semantics does
not override the practical considerations we take from
Harvard. Like the offenses at issue here, the lack of a
justification for the two crimes in Harvard—aggravated
assault and reckless endangerment—was an enumerated aspect
of the requisite mens rea. Id. at 200.

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happen when an element of the crime is clearly
negated by the affirmative defense . . . or it may
happen when all of the elements of the crime are
present, but the affirmative defense is so clearly
present that a reasonable arresting officer in that
situation would know that it excused the
offending conduct.39
To be sure, our holding reaches only the affirmative
defense at issue in this case: self-defense. And our holding
does not require officers who “conclusively know” that an
affirmative defense exists to test the odds of that defense’s
success. Nor do we require that officers take the extra step of
investigating or discovering facts that could establish a
defense, “even if the defense is asserted [by the suspect] at the
time of arrest.”40 Rather, we expect baseline awareness of the
requisite elements for the offenses an officer seeks to charge,
as well as an understanding that facts establishing an
affirmative defense can negate a suspect’s culpability
depending on the crime, and like other exculpatory facts,
39 Mazuka, 655 F. App’x at 895, 900.
40 Id. at 900 (analogizing that “if a police officer arrives at the
scene of a battery, and the arrestee claims self-defense, the
officer does not need to investigate this claim before making
the arrest”); see also Painter v. Robertson, 185 F.3d 557, 569
(6th Cir.1999) (holding that “a police officer is not required to
inquire into facts and circumstances in an effort to discover if
the suspect has an affirmative defense,” but “[t]he officer may
not ignore information which becomes available in the course
of routine investigations[.]”).

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should be included in the affidavit of probable cause.41 Such a
requirement is neither burdensome nor inconsistent with our
decisions holding that officers have no responsibility to make
complex legal determinations or resolve conflicting
41 Other circuits also agree that known information relating to
exculpatory defenses are relevant to the probable cause
determination, even in the warrantless arrest context. In Jocks
v. Tavernier, the Second Circuit held that an officer may not
“deliberately disregard facts known to him which establish
justification” in the probable cause determination, but that the
arresting officer is not required “to investigate exculpatory
defenses offered by the person being arrested or to assess the
credibility of unverified claims of justification before making
an arrest.” 316 F.3d 128, 136 (2d Cir. 2003). The Sixth,
Seventh, and Eleventh Circuits concur. See Est. of Dietrich v.
Burrows, 167 F.3d 1007, 1011–12 (6th Cir. 1999) (holding that
officers lacked probable cause to arrest a suspect when they
knew of “facts and circumstances that conclusively
established, at the time of [the arrest], that the individual had
an affirmative defense to the crime”); Hodgkins ex rel.
Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004) (“A
statute’s affirmative defenses do not compel the officer to look
beyond what he already knows in order to decide whether one
of the affirmative defenses applies,” but an officer “may not
ignore conclusively established evidence of the existence of an
affirmative defense”); Davis v. City of Apopka, 78 F.4th 1326,
1336, 1343 (11th Cir. 2023), though the Sixth Circuit finds that
arresting officers need not consider statute of limitation
defenses. United States v. Baker, 976 F.3d 636, 650 (6th Cir.
2020). The Fifth Circuit has considered but not opined on the
issue. Loftin v. City of Prentiss, 33 F.4th 774, 780–81 (5th Cir.
2022).

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evidence.42 This is because officers are tasked with conveying
facts that are relevant to probable cause—not selecting those
that establish it. And while we once required nothing more, we
now permit nothing less than full disclosure of the exculpatory
facts an officer knows.
D.
Here, we find that the omission of known facts
establishing Kendig’s self-defense—which were exculpatory
to elements of his specific charges—implicated Kendig’s right
to be free from charges and arrests devoid of probable cause.
But we must not conflate our recognition of a protected right
with a conclusion that the right is “clearly established” for
qualified immunity purposes.
Nor could we in this case. The qualified immunity
inquiry limits us to an assessment of Stolar’s conduct and
whether a clearly established law placed him on notice that his
actions violated Kendig’s Fourth Amendment right. Indeed, a
right is only “clearly established” when, at the time of the
alleged violation, its “contours . . . [are] sufficiently clear that
a reasonable official would have understood” that his
particular conduct “violates that right.”43 This is a difficult
standard to meet because to find that Stolar had sufficient
42 See, e.g., Reedy v. Evanson, 615 F.3d 197, 213 (3d Cir. 2010)
(noting that the affidavit stage “ensures that a police officer
does not ‘make unilateral decisions about the materiality of
information, or, after satisfying him or herself that probable
cause exists, merely inform the magistrate or judge of
inculpatory evidence.’” (quoting Wilson, 212 F.3d at 787)).
43 Ashcroft, 563 U.S. at 735 (cleaned up).

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notice, Kendig must be able to point to “existing precedent
[that has] placed the . . . constitutional question beyond
debate.”44 Specifically, he must be able to identify either
“controlling authority”45 within our Circuit or a “robust
consensus of cases of persuasive authority” among the United
States Courts of Appeals46 that Stolar’s conduct—omitting
from a probable cause affidavit facts that support an
affirmative defense—was unconstitutional.
Here, we have neither. Kendig offers examples from
our three sister circuits who have found that affirmative
defenses are relevant to probable cause; however, those courts
limited their holdings—as we now do—to circumstances
where the officer conclusively knew that an affirmative
defense would exonerate or otherwise protect the suspect.47
And without the benefit of clear guidance from our Court, the
44 Reichle v. Howards, 566 U.S. 658, 664 (2012).
45 Sauers v. Borough of Nesquehoning, 905 F.3d 711, 719 (3d
Cir. 2018).
46 Dist. of Columbia v. Wesby, 583 U.S. 48, 63 (2018).
47 See Hodgkins, 355 F.3d at 1061 (“A police officer may not
ignore conclusively established evidence of the existence of an
affirmative defense, but the officer has no duty to investigate
the validity of any defense.”) (cleaned up); Fridley v. Horrighs,
291 F.3d 867, 873 (6th Cir. 2002) (“Even if the circumstances
suggest that a suspect may have an affirmative defense, if a
reasonable officer would not ‘conclusively know’ that the
suspect is protected by the defense, then he is free to arrest the
suspect provided there is probable cause to do so.”); Jocks v.
Tavernier, 316 F.3d 128, 135–36 (2d Cir. 2003) (stating that
an officer may not “deliberately disregard facts known to him
which establish justification”).

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district courts in this Circuit have consistently declined to
require officers to include facts supporting affirmative
defenses in affidavits of probable cause.48 Though their
reasoning does not resolve the issue before us, it underscores
that no court in this jurisdiction has established such an
obligation. In addition, the very fact that our sister circuits
remain divided on whether and when to require officers to
consider affirmative defenses at the probable cause stage
reinforces the conclusion that the issue is not “beyond
debate.”49
We therefore cannot conclude that Stolar stepped
outside any “clearly established” Fourth Amendment bounds
when he drafted and submitted his affidavit of probable cause
to the magistrate judge without including facts supporting
Kendig’s self-defense.
48 See Rittacco, 2024 WL 2319505, at *9; Gorman v. Bail, 947
F. Supp. 2d 509, 523 (E.D. Pa. 2013) (finding that “claims of
self-defense to an assault necessarily admit involvement in a
violent altercation” and it “is inherently an issue that must be
decided at trial, not by a police officer or a judge at a hearing
to issue an arrest warrant.”); Berrios v. City of Philadelphia, 96
F. Supp. 3d 523, 533 (E.D. Pa. 2015) (holding that an
“affirmative defense would need to be a part of the statutory
language in the elements of the crime at issue in order to be
considered”); Lue v. Borough of Collingdale, No. 14-4497,
2015 WL 70931, at *5 (E.D. Pa. 2015) (holding that officers
are “not required to resolve this inherently fact-bound defense
[of self-defense] on the scene”).
49 Reichle, 566 U.S. at 664.

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E.
Our holding here is straightforward: An officer is not
required to evaluate the merits of every potential affirmative
defense before filing charges or making an arrest. But when
the officer gathers information bearing on the validity of the
affirmative defense of self-defense, which he conclusively
knows negates the requisite mental state of the charged offense
or excuses the offending conduct, he must provide that
information to the magistrate so that the probable cause
determination remains with the magistrate judge, not the
officer. In short, the Fourth Amendment does not allow an
officer to open the window to this exculpatory defense only to
draw the blinds before the magistrate can look through.
Accordingly, because a reasonable officer would have
known that self-defense negates the requisite mens rea for
homicide, aggravated assault, and recklessly endangering
another person, Stolar’s affidavit should have included all

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known facts that supported Kendig’s self-defense.50 This
would have realistically involved considering to some degree
Kendig’s criminal intent in shooting Jones, but even so, Stolar
only needed to comprehensively present—not draw legal
conclusions from—those facts, allowing the magistrate judge
50 Whether an officer knew of a potentially applicable
affirmative defense at the time of filing charges or making an
arrest is dependent on a review of facts and circumstances in
the record. See Dietrich, 167 F.3d at 1012. Though we find
that qualified immunity shields Stolar from liability, we note
that viewing the record in the light most favorable to Kendig
as the non-moving party, a reasonable jury could conclude that
Stolar knew self-defense was an affirmative defense that would
negate Kendig’s charged offenses. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (setting forth summary
judgment standard). For example, Stolar admitted during a
deposition that he believed Kendig’s defense team would have
a “very good case of self-defense” and that he did not withdraw
the charges because, as he stated, “there was still a case to be
made . . . it had to come out for the jury to decide that.” Appx.
267–68.

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to consider them in making a well-informed decision to grant
or deny the warrant application.51
Still, the law as it stood at the time of the incident
provided Stolar no “clearly established” reason to believe that
excluding this information from his affidavit of probable cause
would violate Kendig’s legal rights. He is therefore entitled to
qualified immunity.
V.
For the foregoing reasons, we will affirm the District
Court’s order.
51 Such facts would have included that: two eyewitness
statements reported Kendig was not the initial aggressor and
was outnumbered during the altercation; the tavern manager
had previously removed Jones for drunkenly starting fights
with other patrons; the manager characterized Kendig as a
“mellow dude” who had been “minding his own business;”
Kendig retreated into the tavern after the shooting; and the
manager told law enforcement he locked the tavern doors
because Jones’ friends were “pounding on [the] windows” and
“trying to kill [Kendig].” Appx. 462–63.

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