turn,

misconduct is considered a factual cause of harm in two mutually

exclusive situations.   The first is where the harm would not have

occurred but for the misconduct.       See 
id. § 26.    This 
rule is

sometimes called the "but for" causation principle.     See 
id. § 26

cmt. 
b.   The second scenario is where the harm was brought about

concurrently by the misconduct and an unrelated force, each of


                               -40-
which would have been sufficient by itself to trigger the harm.

See 
id. § 27.   In 
that circumstance, the actor's misconduct was not

a necessary condition for the harm, since the harm would have

occurred in its absence due to the concurrent force.              See 
id. § 27

cmt. 
a.   Nevertheless, the misconduct is regarded as a factual

cause of the harm for policy reasons, since the actor should not

escape liability merely because of the fortuitous operation of

another force that also would have produced the harm on its own.

See Dan B. Dobbs et al., The Law of Torts § 189 (2d ed. 2011) ("It

would be a windfall [if the actor] were to escape liability for the

harm merely because another [force] was also sufficient to cause

the same harm."); W. Page Keeton et al., Prosser and Keeton on

Torts § 41 (5th ed. 1984).   We refer to this rule as the concurrent

causation principle.

           The materiality standard articulated in Brady and its

progeny   incorporates   a   version        of    the   "but   for"   causation

principle.   Evidence that was withheld during a criminal trial is

material only    if   there is   a    reasonable        probability   that its

disclosure would have altered the trial's outcome.              See 
Strickler,

527 U.S. at 280
; 
Kyles, 514 U.S. at 434
; 
Bagley, 473 U.S. at 682
.

Put another way, there must be a reasonable probability that the

defendant would not have been convicted but for the wrongful

withholding of exculpatory evidence.             Hence, one cannot establish

a Brady violation without showing to the requisite standard that


                                     -41-
the withholding of evidence was a necessary condition for the

conviction.   In the criminal context, this showing may result in a

new trial or a judgment of acquittal.

            To recover damages in a civil trial based on such a

violation, however, a § 1983 plaintiff must demonstrate a stronger

causal link than is inherent in Brady's materiality standard.

Having already shown a reasonable probability that he would not

have been convicted but for the withholding of evidence, the

plaintiff must then make the same showing by a preponderance of the

evidence.     In     other   words,   the   factual   causation   inquiry

essentially replicates the materiality inquiry with a heightened

burden of proof.13

            Understood in this light, there is no place in the

factual causation inquiry for the concurrent causation principle.

That principle is incompatible with Brady's materiality standard.

Whereas under the concurrent causation principle misconduct can be

a factual cause of harm even if the harm would have happened

anyway, see Restatement (Third) of Torts § 27 (2010), withheld


     13
       There is some logical appeal to bypassing the materiality
inquiry and simply requiring the plaintiff to prove from the outset
by a preponderance of the evidence that he would not have been
convicted but for the withholding of evidence.        Nevertheless,
materiality and causation are in fact discrete inquiries and should
be considered separately. The threshold question in a § 1983 suit
is whether there has been a violation of a federally secured right.
See Baker v. McCollan, 
443 U.S. 137
, 140 (1979).        Materiality
properly is a component of that question. The causation inquiry
begins only after a violation has been established. See 
Sanchez,
590 F.3d at 41
.

                                  -42-
evidence is never material within the meaning of Brady if its

disclosure would have made no difference, see United States v.

Wall, 
349 F.3d 18
, 23 (1st Cir. 2003).

             The second element of the traditional tort causation

inquiry limits the scope of an actor's liability to harm that

results from the risks that made his conduct wrongful.                         See

Restatement       (Third)   of   Torts    §    29    (2010).      When    material

exculpatory evidence is withheld, the obvious risk is a tainted

conviction.        That risk is the reason for the Brady doctrine.

Hence, once a Brady violation is established, there is no need to

ask again whether the harm (i.e., the conviction) was foreseeable.

Once a Brady violation has been shown, the causation inquiry in a

§ 1983 damages suit is only a "but for" inquiry pursuant to the

preponderance of the evidence standard.

             2.   The Jury Instructions

             We now turn to the jury instructions given in the 2009

retrial.     The judge first gave a materiality instruction that has

not   been    challenged.14       She    then       gave   a   lengthy   causation


      14
           The materiality instruction was as follows:

           Exculpatory evidence is material when it is of a
      type that could undermine confidence in the outcome of a
      trial. It would include evidence that has the potential
      to alter a jury's assessment of the credibility of a
      significant government witness.

           In determining what is material, the question is not
      whether a defendant would more likely than not receive a
      different verdict if the evidence had been disclosed.

                                        -43-
instruction, informing the retrial jury that, if it found that

Callahan withheld material exculpatory evidence, it had to decide

whether his misconduct caused Drumgold's conviction:

                 Now, I'll address the question of
          cause, legal cause standard. If you determine
          that    Officer     Callahan    committed    a
          constitutional violation either by obtaining
          false statements or suppressing exculpatory
          evidence, and, again, material exculpatory
          evidence, you then need to address the
          relationship    between   the   constitutional
          violations that you found and Shawn Drumgold's
          conviction. That relationship is defined by
          the legal concept known as causation.



     The question is whether without the evidence he would
     receive a fair trial, understood as a trial resulting in
     a verdict worthy of confidence.

          And in considering whether a verdict worthy of
     confidence would result, you have to consider the
     setting. . . . In [the 1989 criminal trial], the burden
     of proof was beyond a reasonable doubt.               The
     [prosecution] was required to convince a unanimous jury
     beyond a reasonable doubt to sustain a conviction against
     Mr. Drumgold. Thus, one way of understanding materiality
     is to consider whether the undisclosed evidence would
     have created a reasonable doubt of the defendant's guilt.

     This instruction omitted the statement that Drumgold had to
show a reasonable probability that he would not have been convicted
but for Callahan's withholding of evidence. The instruction noted
that "evidence is material when it is of a type that could
undermine confidence in the outcome of a trial" and that "the
question is not whether a defendant would more likely than not
receive a different verdict if the evidence had been disclosed."
Those are important glosses on Brady's materiality standard, but
the centerpiece of the standard is a reasonable probability of a
different result. See 
Kyles, 514 U.S. at 434
. The absence of that
formulation from the instruction detracted from the causal showing
at the heart of the materiality inquiry. Nevertheless, there is no
challenge to the materiality instruction on appeal, and this
omission is not a factor in our decision.

                               -44-
                 Causation has two elements: Factual
          cause and proximate cause.       An act is a
          factual cause of an injury if it appears from
          the evidence that it was a substantial factor
          in bringing about the injury.[15] There may be


     15
       As explained above, an actor is liable in tort for harm to
another person if the actor's misconduct was a factual cause of the
harm, see Restatement (Third) of Torts § 26 (2010), and the harm
resulted from the risks that made the conduct wrongful in the first
place, meaning that it was a reasonably foreseeable consequence of
the misconduct, see 
id. § 29. These 
elements traditionally have
been referred to as "factual causation" and "proximate causation,"
but the terms for these two concepts sometimes have been confused,
as have the concepts themselves. See 
Rodríguez-Cirilo, 115 F.3d at
54 
(Campbell, J., concurring) (noting confusion); Fedorczyk v.
Caribbean Cruise Lines, Ltd., 
82 F.3d 69
, 73 (3d Cir. 1996) (same);
Dan B. Dobbs et al., The Law of Torts § 185 (2d ed. 2011) ("Courts
often lump these two distinct issues together under the rubric of
'proximate cause.'"). One particular source of confusion has been
the "substantial factor" test used in many jurisdictions, under
which an actor may be held liable for harm if his misconduct was a
substantial factor in bringing about the harm and no rule of law
relieves the actor from liability because of the manner in which
the harm occurred. See Restatement (Second) of Torts § 431 (1965).
Although this test was intended as the "routine standard" for
factual causation, Restatement (Third) of Torts § 26 cmt. j (2010),
it commonly has been misunderstood to address proximate causation,
as well, see, e.g., Clement v. United States, 
980 F.2d 48
, 53 n.13
(1st Cir. 1992); Richard W. Wright, Causation in Tort Law, 
73 Cal.
L
. Rev. 1735, 1782 (1985).
     The modern trend, endorsed by the American Law Institute
("ALI"), is to retain the term "factual causation" but abandon the
"substantial factor" test, see Restatement (Third) of Torts § 26
cmt. j (2010), and to replace the problematic term "proximate
causation" with "scope of liability," see 
id. Ch. 6, Special 
Note
on Proximate Cause (2010), and thereby refocus the second component
of the causation inquiry on whether the harm in question was among
"those harms that result from the risks that made the actor's
conduct tortious," 

addition, although the ALI for
many years employed the umbrella term "legal cause" to encompass
both elements of the causation inquiry, see Restatement (Second) of
Torts § 430 (1965), it recently retired that term in an effort to
emphasize that the two elements are distinct, see Restatement
(Third) of Torts Ch. 6, Special Note on Proximate Cause (2010).
     This trend has been embraced by a number of courts, see, e.g.,
June v. Union Carbide Corp., 
577 F.3d 1234
, 1240 (10th Cir. 2009);

                               -45-
          a number of factual causes of any particular
          injury; not everyone whose acts are factual
          causes of an injury is legally responsible.
          The law determines whether it is fair to hold
          someone responsible for an injury using the
          concept of proximate cause.    An act is the
          proximate cause of an injury if the injury is
          a reasonably foreseeable consequence of the
          act.

                 This does not mean that the law
          recognizes only one legal cause of an injury
          or damage consisting of only one factor or
          thing or the conduct of one person, of only
          one person. On the contrary, many factors or
          things may operate at the same time either
          independently or together, to cause an injury.
          In that case, each may be a legal cause.

                  Let me give you an example of legal
          causation.     Two fires are raging in the
          forest.    One started when someone dropped a
          match on the ground.      The two fires join
          together and burn down a barn. Dropping the
          match was a substantial factor in the harm of
          burning down the barn. The barn burning down
          was a reasonably probable result of dropping
          the match. In other words, the match legally
          caused the damage to the barn even if
          lightning itself would have burned it down.

                 Put in the context of this case, you
          should decide whether Officer Callahan's
          wrongful conduct was a substantial factor in
          bringing about Shawn Drumgold's conviction and
          whether it was reasonably foreseeable that a
          conviction would result from his conduct.


Thompson v. Kaczinski, 
774 N.W.2d 829
, 837 (Iowa 2009), and,
properly understood, merely represents a shift in terminology, see
Restatement (Third) of Torts § 29 cmt. j (2010). The contours of
the causation inquiry are unchanged.
     We use the new terminology proposed by the ALI throughout this
opinion to help us explain the error in the district judge's
causation instruction.      It is premature to adopt the new
terminology generally.    The district judge used the traditional
terminology.

                               -46-
          Defendant Callahan's, Officer Callahan's,
          conduct need not be the only cause nor the
          latest or the nearest cause, it is sufficient
          if it concurs with some other cause acting at
          the same time which in combination with it
          contributed to Shawn Drumgold's conviction.

                 Again, concerning legal cause, I remind
          you that the plaintiff has the burden of
          proving that any constitutional violations you
          identify were the cause of the damages
          Plaintiff Drumgold has sustained.      In other
          words,   Mr.   Drumgold    must  prove    by  a
          preponderance of the evidence that Officer
          Callahan's actions in . . . failing to
          disclose material exculpatory information were
          a substantial factor in causing Mr. Drumgold's
          conviction and that the conviction was a
          reasonably foreseeable result of Officer
          Callahan's actions.     The evidence on which
          you're to evaluate cause is the trial
          transcript which is now before you of the 1989
          criminal trial.

          3.   The Standard of Review

          Callahan objects to this instruction because it included

the concurrent causation principle. Our standard of review depends

on whether Callahan preserved this objection.   See Colón-Millín v.

Sears Roebuck de P.R., Inc., 
455 F.3d 30
, 40 (1st Cir. 2006).

          Federal Rule of Civil Procedure 51 provides a method for

preserving objections to jury instructions.      See Surprenant v.

Rivas, 
424 F.3d 5
, 15 (1st Cir. 2005).   The judge must apprise the

parties   of   the   proposed   instructions,   consider    requested

instructions, and note objections before charging the jury.      See

Fed. R. Civ. P. 51(b); Booker v. Mass. Dep't of Pub. Health, 
612

F.3d 34
, 40-41 (1st Cir. 2010); 
Surprenant, 424 F.3d at 15
.       "An


                                -47-
objection lodged at that time preserves the underlying issue for

appeal."   
Surprenant, 424 F.3d at 15
; see also Fed. R. Civ. P.

51(c)(2)(A).    If, however, the judge fails to inform a party of "an

instruction or action on a request" before the jury is charged, the

party may object "promptly after learning that the instruction or

request will be, or has been, given or refused."            Fed. R. Civ. P.

51(c)(2)(B); see also 
Booker, 612 F.3d at 41
.           A party who objects

to an instruction must "stat[e] distinctly the matter objected to

and the grounds for the objection."         Fed. R. Civ. P. 51(c)(1).

           Drumgold argues that Callahan not only failed to preserve

his objection to the concurrent causation principle but invited any

instructional error by advocating the indiscriminate application of

traditional tort causation principles. See P.R. Hosp. Supply, Inc.

v. Boston Scientific Corp., 
426 F.3d 503
, 505 (1st Cir. 2005) ("In

general,   a   party   may   not   appeal   from   an   error   to   which   he

contributed, either by failing to object or by affirmatively

presenting to the court the wrong law." (internal quotation marks

omitted)); 9C Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2558 (3d ed. 2008) ("The so-called invited

error rule . . . prescribes that a party may not complain on appeal

of errors that he himself invited . . . .                Thus, a party who

requests a jury instruction cannot complain if the instruction, or

one substantially like it, is given by the trial judge." (footnote

omitted) (internal quotation marks omitted)).


                                    -48-
             We disagree.    Before the retrial jury was charged,

Callahan objected to the inclusion in the judge's instructions of

the example of two fires combining to burn down a barn.            This

example is a classic illustration of the concurrent causation

principle, see Restatement (Second) of Torts § 432 cmt. d, illus.

4 (1965), and Callahan's objection adequately alerted the judge to

his concern that this principle was inapposite. Moreover, Callahan

expressly requested a causation instruction in line with the "but

for" causation principle:

             The jury should be instructed that they are to
             consider the Evans issues within the context
             of the entire [1989 criminal trial], and that
             they may only find for Drumgold if they find
             that the conviction would not have occurred
             but for the alleged suppression of the Evans
             evidence.

Viewed together with the objection to the illustration of the

concurrent causation principle, this requested instruction signaled

an attempt to confine the causation inquiry in the 2009 retrial to

the   "but    for"   causation   principle.    Accordingly,   we   treat

Callahan's objection as preserved.        "We review de novo preserved

claims of legal error in jury instructions, but we review for abuse

of discretion claimed errors in instructions' form or wording."

Uphoff Figueroa v. Alejandro, 
597 F.3d 423
, 434 (1st Cir. 2010);

see also Portugues-Santana v. Rekomdiv Int'l, 
657 F.3d 56
, 60 (1st

Cir. 2011).     In doing so, we "look to the challenged instructions

in relation to the charge as a whole, asking whether the charge in


                                   -49-
its entirety -— and in the context of the evidence —- presented the

relevant issues to the jury fairly and adequately." Sony BMG Music

Entm't v. Tenenbaum, 
660 F.3d 487
, 503 (1st Cir. 2011) (internal

quotation marks omitted).       Even if we detect an error, a new trial

is required only if the error was prejudicial.                See 
id.

            4.   Analysis

            The 
instructions given to the retrial jury appropriately

presented    materiality      and   causation    as    separate,      sequential

inquiries.16     However, the judge made a fundamental error in

describing the substance of the causation inquiry.                She explained

the concept of factual causation by reference to the "substantial

factor"   test   and   then   fleshed   out     that   test    with     a   graphic

illustration of the concurrent causation principle.               Specifically,

she used the example of two fires combining to destroy a barn to

underscore the point that the fire ignited by the match could be

considered "a substantial factor in the harm of burning down the

barn . . . even if lightning itself would have burned it down."

Insofar as that example implied that Callahan's misconduct could be

a factual cause of Drumgold's conviction even if Drumgold would




     16
        The special verdict form used in the retrial likewise
presented materiality and causation as separate questions,
directing the jury to decide first whether "the evidence withheld
by Defendant Callahan was material" and then, if so, whether
Callahan's withholding of that evidence "was a legal cause of Mr.
Drumgold's conviction."

                                     -50-
have been found guilty anyway, it was irreconcilable with Brady's

materiality standard and had no place in the causation inquiry.

               The judge should have limited her discussion of factual

causation to the "but for" causation principle.                             That is, she

should have directed the jury to determine whether Drumgold had

proven by a preponderance of the evidence that he would not have

been        convicted      but    for    Callahan's      wrongful        withholding     of

exculpatory evidence.              Instead, the judge improperly invited the

jury    to     analyze      factual      causation     through      the     lens   of    the

concurrent causation principle.17

               We have no confidence that the retrial jury's verdict was

unaffected         by   the      instructional       error.        Having      linked    the

"substantial factor" test with the concurrent causation principle,

the judge told the jury to "decide whether Officer Callahan's

wrongful conduct was a substantial factor in bringing about Shawn

Drumgold's         conviction,"         and   reiterated      at   the    close    of    the

causation          instruction      that      Drumgold       had   to     "prove    by     a

preponderance of the evidence that Officer Callahan's actions in

. . . failing to disclose material exculpatory information were a

substantial factor in causing [his] conviction."                         This charge was

nearly       the    last    thing       the   jury   heard    before      it    began    its



       17
       In fairness to the district judge, we note that the issue
of causation in civil trials seeking damages for Brady violations
has not been well-developed. In that legal environment, it would
be easy to make a mistake.

                                              -51-
deliberations, and it diluted the standard of liability by making

it possible for the jury to find that Callahan's withholding of

evidence was a factual cause of Drumgold's constitutional injury

(i.e., his wrongful conviction) even if that evidence was not the

"but   for"    cause      of   Drumgold's          conviction   --     the   materiality

standard required by Brady.            That illogical possibility could only

have prejudiced Callahan.

              It is our duty "to remain vigilant in policing the

boundaries separating tort law from constitutional law," Nix v.

Franklin Cnty. Sch. Dist., 
311 F.3d 1373
, 1379 (11th Cir. 2002),

and to apply in the § 1983 context only those tort causation

principles that are compatible with the underlying constitutional

right, see Calero–Colón v. Betancourt–Lebron, 
68 F.3d 1
, 4 (1st

Cir. 1995) ("[T]he essential elements of actionable section 1983

claims derive first and foremost from the Constitution itself, not

necessarily from the analogous common law tort.").                       The causation

instruction given in this case clashed with Brady's materiality

standard.          A wrongful conviction based on the withholding of

exculpatory evidence is not redressable under § 1983 without a

showing,      by    a   preponderance         of    the   evidence,     of    "but   for"

causation.         The erroneous instruction here permitted the jury to

impose   liability        even   in    the     absence     of   that     causal   nexus.

Therefore, another retrial is necessary.                   See Allen v. Chance Mfg.

Co.,   
873    F.2d      465
,   469    (1st    Cir.     1989)    ("An    erroneous    jury


                                             -52-
instruction necessitates a new trial . . . if the error could have

affected the result of the jury's deliberations.").

                               III.

          We vacate the judgment in Drumgold's favor and remand

this case to the district court for a new trial consistent with

this opinion.   Each party is to bear its own costs.

          So ordered.

                  – Dissenting Opinion Follows --




                               -53-
            LYNCH, Chief Judge, concurring in part, dissenting in

part, and dissenting in the judgment.    I join two of the majority's

holdings: (1) that evidence of Callahan's provision of $20 to

Evans, as found by the 2009 jury, was not material exculpatory

evidence, and (2) that the district court erred in its causation

instruction and that this error prejudiced Callahan.          I dissent

from the qualified immunity and scope of retrial holdings. On both

of those issues, Callahan was and is entitled to judgment as a

matter of law, and the case should not be remanded.

                                   I.

            As to both issues on which I dissent, some background is

provided.

            On October 13, 1989, Shawn Drumgold was convicted in

Massachusetts state court of the first degree murder of twelve-

year-old Darlene Tiffany Moore. The Massachusetts Supreme Judicial

Court (SJC) affirmed the conviction on direct appeal in 1996.          See

Commonwealth v. Drumgold, 
668 N.E.2d 300 
(Mass. 1996).       In 2003, a

Massachusetts state judge held an evidentiary hearing on Drumgold's

motion for a new trial, based on Drumgold's allegations of a series

of newly discovered defects in the original trial. See Drumgold v.

Commonwealth, 
937 N.E.2d 450
, 454 (Mass. 2010).           Following the

hearing, the Commonwealth of Massachusetts filed a motion to vacate

the   conviction.    
Id.    The   Commonwealth   denied 
  that   any    of

Drumgold's allegations, taken alone, would justify a new trial, but


                                  -54-
it admitted that, taken together, all of the allegations indicated

that "justice may not have been done."          
Id. at 454 n.11. 
   With the

defendant and the prosecutor in agreement that a new trial was

warranted, the state judge granted a new trial.             
Id. at 456-57.

She 
emphasized that her ruling did not mean that Drumgold was

factually innocent and did not mean that police or prosecutorial

misconduct had been established.        See 
id. at 457.

             The 
evidence before the state judge in 2003 included: (1)

that a key eyewitness, Mary Alexander, had been suffering from

terminal brain cancer at the time of her testimony, a condition

which caused memory loss, 
id. at 454-55; (2) 
that another key

eyewitness, Tracie Peaks, had recanted her 1989 testimony and now

claimed that it had been coerced, 
id. at 455 n.12; 
(3) that a third

identification witness had also recanted his 1989 testimony, 
id. at

456 n.15; 
and (4) that Ricky Evans had recanted his 1989 testimony

and   that   there   had   been   undisclosed    promises   made   to   Evans

regarding pending criminal charges against him and regarding the

provision of housing and meals to him, 
id. at 455-56.

             Having 
considered all of these grounds cumulatively, the

judge vacated Drumgold's conviction, finding that he had been

denied his right to a fair trial.               
Id. at 457.        The 
judge

emphasized that "nothing in [her] ruling in any way should be

construed as a specific finding or determination . . . as to any

grounds advanced by [Drumgold] in his motion for a new trial."            
Id.


                                    -55-
After the 
state court's decision, the Commonwealth filed a nolle

prosequi, ending all criminal proceedings against Drumgold arising

out of the 1989 murder.     
Id. at 452.

           Drumgold 
then filed a lawsuit against the Commonwealth in

state court under the Massachusetts Erroneous Convictions Law,

Mass. Gen. Laws ch. 258D, which provides for compensation up to

$500,000   for   victims   of   wrongful   convictions,   
id.   §   5.   On
application for direct appellate review of the denial of the

Commonwealth's motion for summary judgment in that case, the SJC

ruled that Drumgold was an eligible claimant under the statute.

Drumgold, 937 N.E.2d at 452
; see Mass. Gen. Laws ch. 258D, § 1.          As

the SJC's decision made clear, the combination of the various

grounds offered in the new trial motion, and particularly the

allegations regarding Alexander, were very serious.        See 
Drumgold,

937 N.E.2d at 457-58
.      The present appeal involves only a portion

of the fourth ground described above. The state case settled after

remand; there is no public record of the amount the Commonwealth

paid in settlement.

           Meanwhile, in 2004, Drumgold also filed a federal lawsuit

that led to this appeal.18 In the district court, Drumgold asserted

claims under 42 U.S.C. § 1983 and Massachusetts General Laws ch.

12, § 11I, against the City of Boston and three police officers,


     18
       Drumgold filed his suit under the Erroneous Convictions Law
separately because that statute provides for exclusive jurisdiction
in Massachusetts Superior Court. Mass. Gen. Laws ch. 258D, § 3.

                                   -56-
including Callahan.       At the first trial of Drumgold's claims, in

2008, the jury concluded that Callahan had not in fact withheld or

manufactured evidence relating to Mary Alexander or Tracie Peaks.

As to Ricky Evans, the 2008 jury found that Callahan had not

solicited false statements from him regarding the night of the

murder and had only withheld evidence relating to certain cash

payments to Evans, the amount of which the jury did not determine.

On the twenty-fifth day of trial, the jury hung on the question of

whether those       payments   had   been   a   legal cause    of Drumgold's

injury.19

            Nonetheless, the district court granted a retrial on all

of Drumgold's claims relating to Ricky Evans.           As a result of the

second trial, in 2009, Drumgold obtained a $14 million verdict --

approximately a million dollars per year for each year he spent in

prison, a    rate    we   have described as       "extremely   generous"   in

wrongful conviction cases.       Limone v. United States, 
579 F.3d 79
,

106 (1st Cir. 2009).      Unlike the panoply of reasons the state court

gave as the basis for vacating Drumgold's conviction, the basis for

the 2009 damages award was solely that Callahan had withheld

evidence of housing benefits and money benefits he had provided to



     19
       The jury rejected all theories of liability for the other
police officer who remained as a defendant in the 2008 trial. The
district court bifurcated Drumgold's claims against the City of
Boston from his claims against the individual police officers. The
portion of the case involving the City is stayed pending the
outcome of this appeal.

                                     -57-
Ricky Evans.   See Drumgold v. Callahan, 
806 F. Supp. 2d 405
, 408

(D. Mass. 2011).   That verdict was infected with error due to its

jury instructions, as the majority holds. In addition, part of the

2009 jury's verdict directly contradicted part of the jury's

decision in the first trial: the 2008 jury determined that Callahan

had not withheld evidence about housing Evans in a hotel; the 2009

jury found that he had.

                                II.

A.   Qualified Immunity

           In my view, the law requires that Callahan be granted

qualified immunity.20

           In a qualified immunity inquiry, the court must ask (1)

whether the plaintiff has made out a violation of a constitutional

right, and (2) whether that right was "clearly established" at the


     20
       Callahan has not waived his qualified immunity argument.
He raised it at both the 2008 and 2009 trials, including a lengthy
colloquy at the jury charge conference in 2008 regarding the
applicable law. See Lynch v. City of Boston, 
180 F.3d 1
, 13 n.9
(1st Cir. 1999) ("[Federal Rule of Civil Procedure] 50(a)(2) is
designed to prevent unfair surprise and to provide the responding
party with an opportunity to correct any deficiencies in her
proof.   Our review of the record demonstrates that [plaintiff]
could hardly have been surprised by [defendant]'s assertion of
qualified immunity." (citation omitted)). Moreover, when Callahan
again argued for qualified immunity in his renewed motion for
judgment as a matter of law following the 2009 jury's verdict,
Drumgold did not contend in his opposition to that motion that
Callahan had waived the argument. Because Drumgold never argued
waiver in the district court, the trial judge did not address the
issue in her ruling on Callahan's post-trial motions.          See
Drumgold, 806 F. Supp. 2d at 417-19
. If anything, then, it is
Drumgold who has waived the argument that Callahan waived the
qualified immunity defense.

                               -58-
time of the violation -- although the court need not necessarily

address the questions in that order.          See Maldonado v. Fontanes,

568 F.3d 263
, 269-70 (1st Cir. 2009) (citing Pearson v. Callahan,

555 U.S. 223
, 232, 236 (2009)).       The "clearly established" prong,

in turn, encompasses two questions: whether the right was, in

general, "sufficiently clear that a reasonable official would

understand that what he [was] doing violate[d] that right," 
id. at

269 (quoting 
Anderson v. Creighton, 
483 U.S. 635
, 640 (1987))

(internal     quotation    mark   omitted);   and   whether,   under   the

particular facts of the case, a reasonable defendant would have

understood that he was violating the right, 
id.

             As the majority 
recognizes, the $20 that Callahan gave to

Evans, as found by the 2009 jury, was not material exculpatory

evidence.      Drumgold thus failed to make out a constitutional

violation as to the money, and Callahan is entitled to qualified

immunity on that issue under the first prong of the qualified

immunity analysis.        The only remaining issue, then, is whether

Callahan was entitled to qualified immunity on the claim that he

did not disclose to the prosecution in Drumgold's murder case that

Ricky Evans was being housed in a hotel.

             Callahan was clearly entitled to immunity, on several

grounds.21     The law was not clearly established in 1989 that


     21
       As I explain below in section II.B, Callahan was entitled
to the benefit of the first jury's verdict on the hotel housing
issue. The 2008 jury found that he did not withhold exculpatory

                                    -59-
Callahan was under any duty to disclose such information, and a

reasonable police officer in Callahan's position would not have

understood that his alleged actions regarding Evans's housing

violated a constitutional right.

          This court has explained very recently that, at least

until 1995, it was not clearly established that the affirmative

disclosure obligation imposed on prosecutors by Brady v. Maryland,

373 U.S. 83 
(1963), applied to police officers.    See Haley v. City

of Boston, 
657 F.3d 39
, 48-49 (1st Cir. 2011).       "By its terms,

Brady applied only to prosecutors."   
Id. at 48.   Even 
after 1995,

when the Supreme Court decided Kyles v. Whitley, 
514 U.S. 419
(1995), the role of police officers in the Brady calculus remained

"indirect," as that case held "that the disclosure obligation

imposed by Brady extends to evidence known only to police officers,

but that the responsibility for obtaining and disclosing such

evidence remains the duty of the prosecutor."     
Haley, 657 F.3d at

49 
(citing 
Kyles, 514 U.S. at 437-38
).

          It certainly was not clearly established in 1989 that a

police officer in Callahan's position had an affirmative obligation

under Brady to disclose potential impeachment evidence of the sort


evidence relating to Evans staying in a hotel and being provided
with meals. Based on the 2008 jury's verdict, Callahan should have
been granted qualified immunity on the hotel issue under the first
prong of the qualified immunity inquiry. However, even if the 2009
jury's verdict on this point were permissible, Callahan should have
been granted qualified immunity on that verdict under the second
prong of the analysis, as I explain in this section.

                               -60-
at issue here.      Indeed, it is not clearly established today.           See,

e.g., Reid v. Simmons, 
163 F. Supp. 2d 81
, 84 (D.N.H. 2001)

(describing "the circumstances under which police officers may be

held    civilly    liable   for   Brady   violations"    as    "a   matter    of

considerable uncertainty"), aff'd, 47 Fed. App'x 5 (1st Cir. 2002)

(per curiam).      Compare Jean v. Collins, 
221 F.3d 656
, 660 (4th Cir.

2000) (en banc) (Wilkinson, J., concurring in the judgment) ("[T]o

speak of the duty binding police officers as a Brady duty is simply

incorrect.      The Supreme Court has always defined the Brady duty as

one that rests with the prosecution."), with Newsome v. McCabe, 
256

F.3d    747
,    752-53   (7th   Cir.   2001)   ("The   Brady   principle     was

announced in 1963, and we [have] applied it . . . to affirm a hefty

award of damages against [police] officers who withheld exculpatory

information in 1981.").

               Both of the parties and the trial judge conceived of the

housing and money issues as Brady issues throughout the district

court proceedings.22 For example, at the pretrial conference before


       22
        This treatment was distinct from the parties' and the
court's view of Drumgold's allegations that Callahan had
manufactured evidence and convinced Evans to give false testimony.
Although the framing of these latter allegations was inconsistent
throughout the parties' various filings, they were frequently
understood as involving due process rights other than those defined
by Brady. The hotel and money issues, by contrast, were
consistently treated as Brady issues. Callahan's arguments about
the jury instructions on state of mind, cited by the majority, were
premised on the assumption that Brady applied to police officers
under Callahan's circumstances, an assumption later negated by
Haley (a case decided in 2011, after both of Drumgold's trials were
over).

                                       -61-
the 2008 trial, the district court described one of the "principal

constitutional rights" at issue in the case as "Brady violations."

In both 2008 and 2009, Drumgold relied on Brady (and on Kyles -- a

case that post-dated Callahan's alleged actions) in requesting jury

instructions on a police officer's duty to disclose evidence to the

prosecution.    Before the 2008 trial, the district court issued a

document titled "Proposed Brady Instruction."       In the charge

conference preceding the 2008 jury instructions, Callahan's counsel

engaged in a lengthy discussion with the court regarding the lack

of clarity about how to apply Brady to the situation in Drumgold's

case. In Callahan's renewed motion for judgment as a matter of law

following the 2009 trial, and in Drumgold's opposition to that

motion, the parties argued for or against entering judgment for

Callahan on the basis of whether a Brady violation had occurred.

The district court echoed this understanding at the hearing on

Callahan's motion, and a Brady theory was the basis of the court's

denial of qualified immunity.    See 
Drumgold, 806 F. Supp. 2d at

409
, 417-19.

            The district court's reason for denying immunity was

error, as the majority admits. Because Callahan was not subject to

a clearly established Brady duty in 1989, any alleged violation of

Brady's dictates cannot be the basis for denying Callahan qualified

immunity.      The district court's reasoning cannot survive our

decision in Haley.    On this point, the majority and I agree.


                                -62-
             However,     the    majority      then    attempts    to     rescue    the

district court's qualified immunity ruling by instead relying on a

line of pre-Brady cases that neither the parties nor the trial

judge     ever    used   to   support   their     arguments       about    the    hotel

evidence. In fact, these cases -- primarily Mooney v. Holohan, 
294

U.S. 103
, 112-13 (1935) (per curiam), and Pyle v. Kansas, 
317 U.S.

213
, 216 (1942) -- are not even cited in Drumgold's brief before

this court.23

             There are a number of problems with the majority's

argument.        First, the Mooney line of cases is an afterthought, not

briefed by the parties nor explicated in the record.                    It is unfair

to Callahan to deny immunity based on an argument that was not

preserved and as to which he had no notice.                 See DeMayo v. Nugent,

517 F.3d 11
, 15 (1st Cir. 2008) (stating that defendants who had

used one Fourth Amendment theory to justify their actions before

the district court could not "switch their theories on appeal" to

a different Fourth Amendment reasoning); United States v. Slade,

980 F.2d 27
, 31 (1st Cir. 1992) (rejecting argument that "only new

facts and not new arguments about those facts are prohibited from

debuting    in     the   court   of   appeals"        and   concluding     that    "the



     23
       In 2008, Drumgold did request two jury instructions based
on these cases, but they both addressed the allegation that
Callahan had manufactured Evans's testimony, not the allegation
that he had withheld evidence of benefits. Mooney and Pyle are
otherwise absent from Drumgold's pleadings both in the district
court and in this appeal.

                                        -63-
raise-or-waive rule applies with full force when an appellant tries

to present a new theory about why facts previously placed on record

are determinative").       This court may not create an argument for a

party and may not deny immunity based on a different theory than

that presented at trial.      Such restraint is particularly important

in the context of qualified immunity, which, after all, encompasses

immunity from having to go to trial at all.

           The majority's rejoinder that a mere citation to Brady

without a citation to Mooney and Pyle suffices is off point.24

Callahan lacked fair notice of the argument that the hotel evidence

-- without more -- implicated a Mooney-based due process right. As

explained above, all involved in the trial believed that the hotel

evidence issue was governed by Brady.            It is only the majority

which has recharacterized the hotel claim as a non-Brady claim.

           The majority appears to take the position that this

distinction among various due process arguments means Brady does

not govern.      Not so.   As we stated in Haley, it is necessary to

distinguish   Brady-based     claims    from   Mooney-based     claims   when

conducting a qualified immunity analysis. 
See 657 F.3d at 46
.            The

two categories do not always cover the same types of claims,

because   they    implicate    two   different    facets   of   a   criminal


     24
       This is not about whether Callahan lacked fair notice that
Drumgold had alleged a due process violation based on the
intentional use of (non-hotel and cash) false evidence, a claim
that, if proved, could have fallen within the scope of Mooney and
Pyle.

                                     -64-
defendant's due process rights: under Mooney, the right to be free

from a deliberately contrived conviction, and under Brady, the

right   to   receive    material    exculpatory      evidence   known    to   the

prosecution regardless of the prosecutor's good or bad faith.

             The majority recognizes that this court has been "careful

to distinguish" between the principles of Mooney and Brady.                   Yet

the majority then goes on to elide this very distinction by

treating "Drumgold's invocation of Brady as shorthand for his full

complement of due process rights."            This conflation of the two

types of due process rights does not comport with our precedent.

The only possible way to connect Drumgold's explicitly Brady-based

claims regarding the hotel to his apparently Mooney-based claims

regarding intentional framing would be to treat the hotel evidence

as   proof   that    Callahan   had    induced    Evans    to   give    perjured

testimony.    But, as I detail below, both juries found precisely to

the contrary: they rejected the allegation that Callahan had

elicited     false     statements     from   Ricky    Evans     about    Evans's

observations on the night of the murder. Without even this tenuous

connection to Mooney, all that is left is a Brady claim, which is

exactly how the parties argued the hotel question and how the

district court decided Callahan's motion for judgment as a matter

of law following the final 2009 verdict.                  That is why it is

inappropriate for this court to now insert a Mooney argument where

none existed before -- and even more, to do so to defeat immunity.


                                      -65-
          On this basis alone, Mooney and Pyle cannot provide a

justification for denying Callahan immunity.    But even if one were

to accept arguendo that Mooney and Pyle may be brought late to the

case, and the theory of liability altered on appeal, the juries'

findings preclude the conclusion that these cases defeat Callahan's

argument for qualified immunity.    Under the facts as found by both

the 2008 and 2009 juries, a reasonable police officer in Callahan's

position in 1989 would not have known that his actions ran afoul of

Mooney and Pyle, and, in fact, would have had every reason to think

they did not.

          The majority states that Mooney and Pyle identified a due

process violation where the state procures a conviction by the

knowing use of perjured testimony and the deliberate suppression of

exculpatory evidence.25    See 
Mooney, 294 U.S. at 112-13
; 
Pyle, 317

U.S. at 216
.    Since the rule of these cases was clearly established


     25
       The majority characterizes this principle as "the deliberate
suppression aspect of Brady." But Mooney and Pyle, having preceded
Brady, cannot fairly be called an "aspect" of the latter case.
While the Brady Court did describe its holding as an "extension" of
Mooney and Pyle, 
see 373 U.S. at 86
, the earlier cases stand for
their own previously established proposition, which is independent
of the later development of Brady and its progeny.       As I have
explained above, there are important differences between the due
process rights identified in each line of cases.
     In Mooney, the Court held that, after exhaustion of state
remedies, the federal writ of habeas corpus is available to state
prisoners who assert, with some colorable support, that state
prosecutors knowingly used perjured testimony against them and then
knowingly suppressed evidence which could have been used to counter
the perjured testimony.    
See 294 U.S. at 109-10
. Pyle, a very
short opinion, merely states that such allegations are sufficient
to state a claim for habeas corpus. 
See 317 U.S. at 215-16
.

                                 -66-
in   1989,   the   majority   reasons,    Callahan   is   not   entitled    to

qualified immunity, because he deliberately suppressed evidence.

That is not what the juries' findings establish.                While, in my

view, Callahan was entitled to qualified immunity as a legal matter

when the district court erroneously denied it on Brady grounds, the

juries' verdicts certainly meant he was entitled to immunity.

             Drumgold's original complaint alleged that Callahan had

fed Evans details of the crime and had "suggested" that Evans

select Drumgold as the shooter from an array of photographs.               The

complaint separately alleged that Callahan had promised Evans

assistance with his pending criminal charges and had failed to

disclose the hotel or cash assistance.26       But unlike in other cases

where, because of their procedural postures, we have had to accept

such allegations in the light most favorable to the plaintiffs,

see, e.g., 
Haley, 657 F.3d at 46
; Limone v. Condon, 
372 F.3d 39
, 43

(1st Cir. 2004), here we have the benefit of a jury's findings upon

a fully developed record.      As material to the purported Mooney and

Pyle theory and the immunity question, those findings rejected all

of Drumgold's relevant allegations.

             The 2008 jury found that Callahan had not manufactured

evidence, withheld evidence, or procured false statements regarding

Evans's observations on the night of the murder, Evans's stay in


      26
        The complaint did not allege that disclosure of the
information about benefits would have revealed the allegedly
manufactured testimony.

                                   -67-
the hotel, or the disposition of Evans's criminal cases. That jury

also rejected allegations that Callahan had manufactured evidence

or procured false statements with regard to Mary Alexander and

Tracie Peaks.      These   findings   alone   required   immunity   to   be

granted, as I explain.

           The 2009 jury did not reconsider the allegations relating

to witnesses other than Evans, and it found again that Callahan had

not obtained any false statements from Evans regarding the night of

the murder and had not withheld evidence relating to Evans's

criminal charges.     The 2009 jury did find that Callahan had

withheld evidence regarding the housing and money provided to

Evans.   But as the majority has explained, withholding information

about $20 was no constitutional violation at all.

           The juries' findings clearly demonstrate that this is not

a case about the deliberate creation of false evidence, the knowing

submission of perjured testimony, or the attempt to frame an

unwitting suspect -- that is, the types of misconduct contemplated

by Mooney and Pyle.    See, e.g., 
Limone, 372 F.3d at 44 
(applying

Mooney and Pyle to deny dismissal on qualified immunity grounds

where plaintiff credibly alleged that police officers had developed

a key witness's perjured testimony in order to cover for the real

murderers).     Rather, it is a case about affirmative disclosure

obligations.




                                 -68-
            Mooney       and    Pyle    did    not   clearly      establish    a    rule

governing   what     a    police       officer    must    affirmatively     disclose;

indeed, Brady itself recognized that the earlier cases did not

establish affirmative disclosure obligations, as it described its

own holding as "an extension" of 
Mooney.                  373 U.S. at 86
.     Nothing

in Mooney or Pyle would have put Callahan on notice that the

Constitution required him to disclose that Evans had been housed at

a hotel.    In fact, that is a common accommodation to secure the

attendance at trial of a prosecution witness, and hardly surprising

information to the criminal bar.

             In Limone, we held that, as of 1967, it was clearly

established under Mooney that police officers were prohibited from

"deliberately fabricating evidence and framing individuals for

crimes they did not 
commit."             372 F.3d at 45
, 47-48.           A reasonable

officer in Callahan's position in 1989 would not have viewed the

alleged nondisclosure of the hotel accommodations as falling within

that proscription. Such an officer would have viewed those actions

as, if anything, falling under Brady, and no contemporaneous case

law held to the contrary.

            The Supreme Court has recently reiterated that to deny

qualified   immunity,          "existing      precedent    must    have    placed    the

statutory or constitutional question beyond debate."                      Ashcroft v.

al-Kidd, 
131 S. Ct. 2074
, 2083 (2011).               The majority's conclusions

cannot be squared with this command.


                                           -69-
            Although   Mooney   and   Pyle   may   support     a   denial    of

qualified immunity where, at the motion to dismiss stage, the

plaintiff   has   credibly   alleged     that   the   police   committed      a

particularly egregious act of deliberately concealing material

exculpatory evidence from prosecutors, see 
Haley, 657 F.3d at 49
-

51, this is not such a case.     Nor is it even close to being such a

case.     The juries' findings do not permit any inference that

Callahan's actions were part of an attempt to frame Drumgold

through perjured testimony.     Because the juries rejected the claim

that Callahan had procured false statements from Evans about the

night of the murder, the framing theory must fall away.                     If

Callahan did not induce Evans to lie, the hotel lodging could not

have been evidence of an inducement to lie.

            Further, in the instances where the juries did find that

Callahan withheld evidence, they made no express finding that

Callahan acted with the purpose of suppressing such evidence.               The

holdings of Mooney, Pyle, and their progeny prohibit behavior that

is characterized by specific intent: they hold that state actors,

knowing that certain evidence or testimony is false, must not

deliberately use that evidence for the purpose of obtaining a

tainted conviction.27    Because 42 U.S.C. § 1983 does not provide a


     27
       See 
Mooney, 294 U.S. at 112 
("[D]ue process . . . cannot be
deemed to be satisfied . . . if a state has contrived a conviction
through the pretense of a trial which in truth is but used as a
means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known

                                  -70-
source of substantive rights, but rather provides "a method for

vindicating federal rights elsewhere conferred," Baker v. McCollan,

443 U.S. 137
, 144 n.3 (1979), a § 1983 plaintiff who alleges a

violation of the constitutional principle recognized in Mooney and

Pyle must prove that the defendant had the state of mind those

cases require.   See Graham v. Connor, 
490 U.S. 386
, 394 (1989)

("The validity of the [§ 1983] claim must . . . be judged by

reference to the specific constitutional standard which governs

that right.").    Given all of the ambiguity as to disclosure

obligations outlined above, as well as the juries' findings, this

record requires that immunity be granted.

          It is clear that there was no finding of specific intent.

Not only were the district court's jury instructions on state of




to be perjured."); 
Pyle, 317 U.S. at 215-16 
("Petitioner's papers
are inexpertly drawn, but they do set forth allegations that his
imprisonment resulted from perjured testimony, knowingly used by
the State authorities to obtain his conviction, and from the
deliberate suppression by those same authorities of evidence
favorable to him."); Napue v. Illinois, 
360 U.S. 264
, 269 (1959)
(recognizing "[t]he principle that a State may not knowingly use
false evidence, including false testimony, to obtain a tainted
conviction"); 
Limone, 372 F.3d at 45 
("[T]hose charged with
upholding the law are prohibited from deliberately fabricating
evidence and framing individuals for crimes they did not commit.");
Haley, 657 F.3d at 49 
("Deliberate concealment of material evidence
by the police, designed to grease the skids for false testimony and
encourage wrongful conviction, unarguably implicates a defendant's
due process rights."). Compare 
Brady, 373 U.S. at 87 
(specifying
that the due process right recognized in that case applies
"irrespective of the good faith or bad faith of the prosecution").

                               -71-
mind confusing or even contradictory in both trials,28 but because

the court stated that it was supposed to be giving a Brady

instruction, the particular state of mind requirements of Mooney

and Pyle never entered the picture.         The 2008 verdict slip, which

essentially exonerated Callahan, made no reference to his state of

mind    at   all.   The   2009   verdict   slip   asked   whether   Callahan

"intentionally or recklessly" withheld evidence, so the jury could

have found liability without finding specific intent.29


       28
       In 2008, the trial judge told the jury that in order to find
a § 1983 violation, "it's not necessary to find that the defendants
had any specific intent to deprive the plaintiff of his
constitutional rights[.] . . . [T]he plaintiff is entitled to
relief if the defendant intended the actions which resulted in a
violation of his constitutional right."       Yet the judge later
instructed that "[i]n order to prevail on a claim that defendants
suppressed exculpatory evidence, the plaintiff must prove that one
or both of the defendants knew of certain material exculpatory
evidence and     intentionally   and  deliberately   withheld   the
information from the prosecutor." Callahan's counsel pointed out
this contradiction in a colloquy just before closing arguments and
objected to the instructions after they were given. In the 2009
trial, the judge first instructed the jury that the § 1983 charge
required Drumgold to show "that the defendant either intentionally
or recklessly committed the action which then resulted in a
violation of the plaintiff's constitutional rights," then that
Callahan would be liable if he "knowingly and deliberately withheld
any material exculpatory evidence from the prosecutor."
       29
        I do not agree with the majority's suggestion that
recklessness is sufficient to satisfy Mooney's (and related cases')
state of mind requirement. The case that the majority cites for
this proposition, Tennison v. City and County of San Francisco, 
570
F.3d 1078 
(9th Cir. 2009), addressed the state of mind required to
show a Brady-based § 1983 violation in a situation where Brady was
held to apply to police inspectors.       See 
id. at 1087-88. As
detailed above, the Mooney and Pyle standard is distinct from the
Brady standard. The fact that Callahan invoked "recklessness" in
his memorandum of law regarding jury instructions is of no moment
when the standard he invoked was inapplicable.

                                    -72-
           Beyond that, the evidence at trial showed that, in 1989,

Callahan   had   informed   at   least   one   member   of   the   district

attorney's office about Evans's staying in the hotel, although he

apparently did not tell the specific prosecutor in the Drumgold

murder trial.      See 
Drumgold, 806 F. Supp. 2d at 410-11 
& nn.5-6.

This evidence of disclosure demonstrates that Callahan was not

deliberately hiding the information from the district attorney's

office in order to procure Drumgold's conviction.30

           Under    these   circumstances,     it   unduly   strains   the

principle recognized in Mooney and Pyle to hold that a reasonable

officer in Callahan's position would have known that failing to

disclose the hotel evidence would be a violation of Drumgold's due

process rights.     Where, as here, the jury's findings do not permit



     30
       In denying Callahan's 2009 post-trial motion for qualified
immunity, the district court relied on the theory that Callahan had
failed to fulfill his Brady obligation because he had reported the
hotel information to the wrong prosecutor. Drumgold, 
806 F. Supp.
2d 
at 418-19. This was incorrect under Brady and is even more so
under Mooney and Pyle.
     The answer to the question of to whom (and how) a police
officer ought to disclose potentially exculpatory evidence was not
clearly established in 1989, and it is still not clearly
established today. Neither party, nor the district court, provided
controlling authority or even anything approaching a consensus of
persuasive authority on this issue. See Wilson v. Layne, 
526 U.S.
603
, 617 (1999).     There was no support for denying qualified
immunity on this basis, even under the district court's Brady-based
reasoning.    And under the majority's non-Brady theory, if a
reasonable officer in Callahan's position truthfully disclosed
evidence to the district attorney's office -- even if the
disclosure were later adjudged to be legally insufficient -- he
would reasonably believe that he was not violating Mooney and
Pyle's prohibition of intentional framing.

                                  -73-
a theory of intentional framing, nor include a finding of the

requisite knowledge or intent, the pre-Brady cases are not on

point.    To hold otherwise is to blur the line between Brady's no-

fault nondisclosure obligation and Mooney and Pyle's proscription

against the knowing and deliberate use of false evidence.

              This is exactly the kind of situation for which qualified

immunity was designed, even against the background of Haley and

Limone.   Callahan's circumstances are a far cry from those alleged

in those two cases, where plaintiffs claimed that the police were

"intentionally framing an accused person" by a "deliberate attempt

to   secure    a   conviction,   without   regard   to   actual   guilt   or

innocence," 
Haley, 657 F.3d at 46 
-- not that the police disclosed

evidence in a less-than-thorough manner. The doctrine of qualified

immunity "protects all state actors except 'the plainly incompetent

[and] those who knowingly violate the law.'" 
Haley, 657 F.3d at 47
(quoting Malley v. Briggs, 
475 U.S. 335
, 341 (1986)).         The juries'

findings reveal that Callahan does not fall into either category.

Remanding the case for yet a third trial, when Callahan was clearly

entitled to qualified immunity no later than the first trial,

denies him the benefit of those juries' findings, in violation of

his Seventh Amendment rights and his immunity rights.         Callahan is

entitled to qualified immunity, and judgment should enter for him

on that basis.




                                   -74-
B.   The Scope of the 2009 Retrial

            The district court erred in ordering a retrial of the

hotel issue before the second jury, abusing its discretion. It did

so in derogation of Callahan's Seventh Amendment rights.          The

retrial jury should not have been permitted to reexamine the

question of whether Callahan withheld the hotel evidence, since

that question was resolved in his favor during the 2008 trial.

That question was not so inextricably intertwined with the money

issue as to require a full retrial.     The district court should have

ordered a retrial on the money issue only: that is, the court

should have asked the second jury to determine whether Callahan had

deliberately suppressed evidence that he gave Evans money, the

amount of such money (if any), whether the sum was material, and

whether the withholding of that information caused Drumgold's

injury.

            In the 2008 trial, the district court divided the jury

deliberations into two phases. In the first phase (the "violation"

phase), the jury was to decide, inter alia, whether Callahan

violated Drumgold's right to a fair trial by withholding evidence

that Callahan arranged free housing for Evans and/or that Callahan

gave Evans "substantial amounts of money."31     If the jury answered


     31
          The relevant special verdict questions read as follows:

     Has the Plaintiff, Shawn Drumgold, proven by a
     preponderance of the evidence that Defendant Timothy
     Callahan violated his right to a fair trial by

                                 -75-
"yes" to either or both of these questions, the second phase (the

"causation" phase) would ask the jury to decide whether such

withholding was the cause of Drumgold's injury. The 2008 jury thus

potentially faced four questions: (1) whether Callahan withheld

housing evidence; (2) whether Callahan withheld money evidence; (3)

whether withholding the housing evidence caused Drumgold's injury;

and (4) whether withholding the money evidence cause Drumgold's

injury.

          In       the   first   phase,   the   2008    jury   determined   that

Callahan had not withheld evidence regarding the housing but had

withheld evidence regarding the money; that is, it answered "no" to

question 1 and "yes" to question 2.             Following the verdict in the

first phase, the parties declined the district court's suggestion

that the jury be instructed to clarify what amount of money

constituted    a    "substantial    amount."       In   the    second   phase of

deliberations, the jury never reached question 3 because it had

answered "no" to question 1.         It then hung on question 4: whether



     withholding exculpatory evidence from prosecutors,
     manufacturing evidence, and/or obtaining false statements
     regarding Ricky Evans being housed at a hotel and
     provided with meals?

     Has the Plaintiff, Shawn Drumgold, proven by a
     preponderance of the evidence that Defendant Timothy
     Callahan violated his right to a fair trial by
     withholding exculpatory evidence from prosecutors,
     manufacturing evidence, and/or obtaining false statements
     regarding Ricky Evans being given substantial amounts of
     money?

                                      -76-
Callahan's provision of money to Evans had caused Drumgold's

injury.

          After the district court declared a mistrial, Callahan

moved for entry of final judgment as to, inter alia, the housing

issue, and he sought to restrict the scope of the retrial to the

causation question with regard to the money.   Because the housing

issue was separate from the money issue and had been decided by a

jury, it should not have been retried.

          The district judge, however, denied Callahan's motion,

stating that a limited retrial which did not reopen the housing

questions was not feasible because

          [a] second jury would obviously have to be
          instructed   that   Callahan     had   violated
          Drumgold's   civil   rights   by   giving   him
          "substantial amounts of money" and not
          disclosing it.   The jury would be left with
          the ambiguity of what "substantial money"
          meant -- an issue wholly unresolved in the
          first trial, notwithstanding the Court's
          efforts to seek further clarification.      And
          the only way to resolve that ambiguity would
          be to relate each side's evidence concerning
          the treatment of Ricky Evans . . . .         In
          short, all aspects of Ricky Evans's portion of
          this case would be involved.

On this basis, the district judge allowed the retrial jury to

revisit both "violation" questions -- that is, whether Callahan had

failed to disclose that he had given housing benefits to Evans and

whether he had failed to disclose that he had given money to Evans.

This rationale does not in fact explain why the housing issue

should have been subject to retrial.

                               -77-
           A   partial   retrial   is   permissible   under   the    Seventh

Amendment when some, but not all, issues in a case have been

properly and conclusively resolved by a jury verdict.               Gasoline

Prods. Co. v. Champlin Refining Co., 
283 U.S. 494
, 500 (1931).            In

order for a partial retrial to be appropriate, it must "clearly

appear[]" that the remaining issues are "so distinct and separable

from the others that a trial of [them] alone may be had without

injustice."    
Id.

           The decision whether 
to grant a full or a partial retrial

is generally committed to the discretion of the trial judge, see

Sprague v. Boston & Me. Corp., 
769 F.2d 26
, 28 (1st Cir. 1985), and

thus our review is for abuse of discretion, see Winn v. Lafayette

Town House, 
839 F.2d 835
, 837 (1st Cir. 1988); 
Sprague, 769 F.2d at

28
.   An error of law, here an error as to the dictates of Gasoline

Products, constitutes an abuse of discretion. A district court may

also abuse its discretion when it misapprehends the nature of the

relationship between the issues sought to be retried, 
Winn, 839

F.2d at 836-37
, or when it does not give an adequate basis in the

record for its determination that a full retrial is necessary,

Crane v. Consol. Rail Corp., 
731 F.2d 1042
, 1049-51 (2d Cir. 1984)

(Friendly, J.). All three of these types of problems appear in the

district court's retrial order.

           First, neither of the primary rationales for ordering a

full rather than a partial retrial are present here.          Generally, a


                                   -78-
full retrial is necessary when (1) the original verdict represented

a compromise among jurors who could not otherwise agree on multiple

issues, or (2) the error infecting one issue in the verdict likely

spread to the others.        See 11 Wright & Miller, Federal Practice &

Procedure § 2814 (2012); see also Phav v. Trueblood, Inc., 
915 F.2d

754
, 767-68 (1st Cir. 1990) (explaining compromise verdicts and

citing cases).      Indeed, in Vizzini v. Ford Motor Co., 
569 F.2d 754
(3d Cir. 1977), the court observed that partial retrials should be

granted "only in those cases where it is plain that the error which

has crept into one element of the verdict did not in any way affect

the determination of any other issue."                    
Id. at 760 (quoting 
Romer

v.   Baldwin,   
317   F.2d    919
,    922-23         (3d    Cir.     1963))    (internal

quotation marks omitted).

            Significantly,       when            a        jury     answers       special

interrogatories rather than giving a general verdict, courts have

more readily preserved the jury's findings and ordered partial

rather than full retrials.       See, e.g., LaPlante v. Am. Honda Motor

Co., 
27 F.3d 731
, 738 (1st Cir. 1994) (remanding for new trial only

on liability and not on damages, where damages award was distinct

and separable, "particularly" because the first jury answered

"detailed   interrogatories"         on    how       it    arrived    at   the   damages

number). In Crane v. Consolidated Rail Corp., 
731 F.2d 1042
, Judge

Friendly    noted     that     when        a     trial       court      uses     special

interrogatories, the "trial or reviewing court may be reasonably


                                          -79-
certain that an erroneous verdict was reached independent of

another verdict," and unless there are "obvious inconsistencies,"

the court should presume that each of the jury's answers is a "good

faith response[]    to   the   question[]   presented."     
Id.   at   1050

(quoting 
Akermanis v. Sea-Land Serv., Inc., 
688 F.2d 898
, 906 (2d

Cir. 1982)) (internal quotation mark omitted).

            There were no inconsistencies here, much less obvious

ones.   Neither party has argued that the 2008 jury was confused

when it gave its special verdict answers, or that the jury's

indecision on causation as to the money "infected" its decision

about the lack of violation as to housing.           Nor was that the

rationale of the trial judge in the order on the scope of the

retrial.

            This is also not a situation where, considering the

totality of the circumstances, the issues were too "interwoven" to

retry one issue separately.      See 11 Wright & Miller § 2814.        This

case does not involve the much more common retrial issue of the

"interwovenness" of liability and damages, see 
id., nor even the
(somewhat    more   analogous)    interwovenness    of    violation    and

causation, see, e.g., Bohack Corp. v. Iowa Beef Processors, Inc.,

715 F.2d 703
, 709 (2d Cir. 1983) (affirming district court's order

of full retrial on Robinson-Patman Act claims after first jury

found that defendant violated the Act but hung on whether violation

caused plaintiff's injury).      Rather, the problem is the purported


                                  -80-
interwovenness of two distinct substantive issues -- i.e., the

hotel and the cash.

            In ordering a retrial on both of those issues, the

district court departed from Gasoline Products Co. v. Champlin

Refining Co., 
283 U.S. 494
, the very case that established the

constitutional    propriety     of    partial     retrials.         That   case

demonstrates that separate claims involving a shared set of facts

can fairly be, and should be, separated on retrial.                 In Gasoline

Products,   the   plaintiff's   claim       alleged   breach   of    a   license

contract, and the defendant's counterclaim alleged that the license

contract was executed in consideration for separate oral and

written contracts that the plaintiff had breached.             
Id. at 495-96.

While 
the Supreme Court held that liability and damages on the

counterclaim were too "interwoven" to retry separately, 
id. at 500,

it 
did not so hold with regard to the relationship between the

claim and counterclaim, even though a retrial on the counterclaim

would likely have included factual allegations relating to the

license contract.

            Similarly, in Drumgold's case, the first jury's answers

to the special verdict questions show that the first jury was able

to separate the two "violation" issues even though they involved a

shared set of facts.     In other words, while it may have risked

confusion to ask the second jury to evaluate causation on the money

question without also evaluating violation on the money question,


                                     -81-
there is no indication that a retrial jury would have been confused

if it were asked to evaluate the entire money question without

being allowed to reopen the hotel disclosure issue.   The presence

of an overlapping factual background to distinct issues is not

enough to overcome the Seventh Amendment and retry an issue already

determined by a jury.

          If necessary in order to fairly present Drumgold's case,

evidence as to the circumstances under which Callahan gave cash to

Evans, including some evidence of the housing, could have been

admitted at the second trial without having to reopen the hotel

violation issue. The jury could have been instructed that Callahan

had not withheld evidence about the housing and had not violated

any rights in that regard, and that that issue was not open; any

hotel evidence was limited to providing background.     Juries are

often asked to accept evidence for one purpose but not another, see

Fed. R. Evid. 105; United States v. Tse, 
375 F.3d 148
, 157-58 (1st

Cir. 2004), and we presume that juries will follow the instructions

that the district court gives them, United States v. Griffin, 
524

F.3d 71
, 78 (1st Cir. 2008).      Here, the district court even

recognized this possibility, initially stating that the second

trial could "cover the entire story [of Evans and Callahan], but

the only question that that jury would be asked is about the

money." Indeed, the judge followed an almost identical course with




                               -82-
regard to the use in the second trial of evidence about Tracie

Peaks and Mary Alexander.

           The trial judge also could have avoided jury confusion by

limiting the introduction in the second trial of certain evidence

specifically pertaining to the hotel, on the ground that, given a

retrial of limited scope, such evidence's probative value was

substantially outweighed by the risk of confusing or misleading the

jury into considering questions not before it.         See Fed. R. Evid.

403.

           The district court's order on the scope of the retrial

does not seriously consider these possibilities, nor explain the

relevant    distinctions    between    the   violation   and     causation

questions, nor point to evidence in the record supporting the

proposition that retrying both the hotel and money issues in their

entirety was necessary to prevent jury confusion.               The order

explains why a causation-only retrial would be unworkable, but it

fails to explain why that means that the hotel-violation question

should be reopened.     The court merely states that "all aspects of

Ricky Evans's portion of this case would be involved" in a retrial

because    of   the   ambiguity   of   the   first   jury's    finding   of

"substantial amounts" of money.        The order does not explain why

this situation would make the hotel issue inextricable from the

money issue.    See 
Crane, 731 F.2d at 1050 
("The memorandum opinion

of the district judge . . . casts little light on why a retrial of


                                   -83-
the damages issue was thought to be necessary.").                    This was not

merely, as    the    majority   suggests,       the    lack   of    an "extensive

elaboration"; it was a failure to justify the basic choice at the

heart of the district court's decision, a choice which I think

cannot be justified.

            This outcome constitutes an abuse of discretion. In Winn

v. Lafayette Town House, 
839 F.2d 835
, the appellate court reversed

the district court's grant of a full retrial on both liability and

damages    because   the   district     court    confused     the    relationship

between    comparative     fault   (a   liability       issue)     and     equitable

reduction (a damages issue) in a case under a state comparative

negligence statute.        
Id. at 836-37.         In 
Crane, Judge Friendly

reversed    the   district   court's     grant    of    a   new    trial    on   both

liability and damages because the court had not shown an adequate

basis in the record for its determination that the jury's verdict

on damages was tainted by an error she correctly discerned in the

liability 
verdict.       731 F.2d at 1049-51
.          Likewise, in this case,

the district court abused its discretion by failing to provide a

reasoned basis for the legal distinctions underlying its ruling on

the scope of the retrial.

            As Judge Friendly cogently noted,

            [S]omething more is required to upset a
            verdict than the conclusory language . . .
            used by the district judge.   While we must
            guard against usurping the trial court's
            prerogative   with  respect   to   seriously
            erroneous jury verdicts, we must be equally

                                      -84-
          diligent in protecting the jury's function.
          Direction of a new trial on an issue
          determined by a jury without the articulation
          of a sufficient basis for such action effects
          . . . "a denigration of the jury system[,] and
          to the extent that new trials are granted the
          judge takes over, if [s]he does not usurp, the
          prime function of the jury as the trier of the
          facts."


Id. at 1051 (quoting 
Lind v. Schenley Indus., Inc., 
278 F.2d 79
, 90

(3d Cir. 1960)).   In light of the fact that the first jury was able

to separate the hotel and money violation questions, the district

court's explanation for why the second jury would be unable to do

so was inadequate to support the decision to set aside a legitimate

jury verdict.

          The second trial should have been limited to the money

issue only.     Since Callahan's provision of $20 to Evans was not

material, the second jury's verdict on the money issue cannot

support a finding of liability for Callahan.     He was entitled to

judgment as a matter of law.

                                III.

          I dissent from the majority's decision to remand this

case for a third trial.      I would reverse the district court's

denial of Callahan's renewed motion for judgment as a matter of law

and its denial of qualified immunity, and order entry of judgment

for Callahan.




                                -85-