PATRICK E. HIGGINBOTHAM, Circuit Judge:
Seventeen-year-old Ryan Cole was severely injured in an armed encounter with police. Ryan and his parents, Karen and Randy Cole ("the Coles"), brought suit against Officers Michael Hunter and Martin Cassidy, alleging that they violated Ryan's Fourth Amendment right not to be subjected to excessive force. They also sued Officer Carl Carson, alleging Carson violated Ryan's rights under the Fourth and Fourteenth Amendments by lying and concealing evidence in order to protect Hunter and Cassidy; that he caused Ryan to be wrongfully charged with aggravated assault of a public servant. The district court denied Carson's motion to dismiss and Hunter and Cassidy's motion for summary judgment, rejecting the officers' immunity defense at the motion stage of the case.
We dismiss defendants' appeal of the district court's order refusing to grant summary judgment on the excessive force claim, and we affirm the district court's refusal to dismiss the due process claim relating to fabrication of evidence. However, we conclude that the district court erred in allowing all other claims to proceed.
I
Seventeen-year-old Ryan Cole was a junior at Sachse High School.1 Ryan suffered from obsessive-compulsive disorder. The night before the shooting, he quarreled with his parents, and later took guns and ammunition from their gun safe. He visited his friend Eric Reed Jr. late that night carrying weapons. The next morning, October 25, 2010, Ryan visited Eric again carrying two handguns: a revolver and a Springfield 9mm semi-automatic. At around 10:45 in the morning Ryan allowed Eric to take the revolver, and used Eric's cellphone to ask his grandparents to pick him up at a nearby CVS.
During the course of the morning, police were informed that Ryan was carrying at least one gun and acting aggressively, and they began looking for him. After Ryan left Eric's house with his remaining handgun, he was seen by several officers and ordered to stop. He continued to walk away from the officers and placed the gun against his own head. He walked towards a set of train tracks separated by a narrow wooded area and grassy strip from Highway 78, a major road. The CVS where he was to meet his grandparents was located on the other side of the wooded area, across Highway 78.
Three police officers — Hunter, Cassidy, and Carson — were attempting to locate Ryan on the other side of the wooded area, near Highway 78 and the CVS. Ryan crossed the wooded area and backed out of the woods near Officer Hunter, who was some distance from Officers Cassidy and Carson. The officers believed Ryan was unaware of them when he backed out, and remained quiet so as not to alert him. Then Ryan made some turning motion to his left. The officers say that he turned to face Officer Hunter and pointed his gun at him, while the Coles argue that he merely began to turn toward the CVS, still with his gun pointed at his own head. Whether any warning was given is disputed, but Officers Hunter and Cassidy opened fire, hitting Ryan twice. In addition, Ryan's gun discharged, hitting his own head, and leaving stippling — gunpowder residue around the wound due to the gun being fired from less than thirty inches away.
Ryan fell, and the officers ceased firing. He was picked up by an ambulance and taken for treatment of his severe injuries. Over time, Ryan has made a significant recovery, but lives with profound disabilities. He has incurred extensive medical bills and continues to require care. After the shooting, the three officers had an opportunity to confer before making their statements to police investigators — statements which conveyed that Ryan was given a warning and that he pointed his gun at Officer Hunter prior to being shot. The Coles argue that these statements are lies contradicted by recordings and physical evidence.
The officers' statements resulted in Ryan being charged with aggravated assault on a public servant — a felony. As a result of the assault charge, Ryan was placed under house arrest. The assault charge was dismissed by the District Attorney on May 8, 2012, and Ryan received deferred adjudication for an unlawful carrying charge. The Coles incurred substantial legal fees in order to confront the aggravated assault charge, which they allege was concocted by the officers to justify the shooting.
II
The Coles brought suit in the Eastern District of Texas. The appellant officers2 moved to transfer; answered, asserting absolute and qualified immunity defenses; and moved to dismiss or alternatively for the court to order a reply to their immunity defenses under Federal Rule of Civil Procedure 7(a).3 After transfer to the Northern District of Texas, the district court ordered the Coles to notify it whether they would file additional documents in the form of a Rule 7(a) Reply or an amended Complaint.
The Coles filed their First Amended Complaint which, as relevant here, includes § 1983 claims against Officers Cassidy and Hunter for excessive force and against all three officers for manufacturing and concealing evidence in order to get Ryan falsely charged with assault. The defendants moved to dismiss, with the appellant officers asserting absolute and qualified immunity defenses. The court then issued a Memorandum Opinion and Order denying the Motion to Dismiss with respect to the § 1983 claims based on both excessive force and conspiracy to conceal and manufacture evidence to bring a false charge. Officer Carson appealed that order with regard to the latter claim; Officers Cassidy and Hunter did not. The district court stayed the false charge claim as to Cassidy and Hunter pending the result of Carson's appeal. We heard argument on that appeal.
Meanwhile, the district court allowed limited discovery focused on Officers Cassidy and Hunter's qualified immunity defense to the excessive force charge. Those two officers then moved for summary judgment on that charge, which the district court denied. Officers Cassidy and Hunter appealed, and we consolidated their appeal with Carson's.
III
Following the chronology of the underlying events, we turn first to the excessive force claim. The district court denied Officers Cassidy and Hunter's motion for summary judgment, finding they were not entitled to qualified immunity because, under the plaintiffs' evidence, their use of force violated clearly established law.
a. Qualified immunity inquiry at summary judgment
The officers are protected "from liability for civil damages" by qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."4 Qualified immunity is an immunity from suit and thus should be resolved as early as possible.5 At summary judgment, it is the plaintiff's burden to rebut a claim of qualified immunity once the defendant has properly raised it in good faith.6
"District court orders denying summary judgment on the basis of qualified immunity are immediately appealable ... when based on a conclusion of law."7 We may not review the district court's determination that a genuine fact dispute exists,8 but we are called to determine whether, resolving all fact disputes in the plaintiffs' favor, the defendants are nonetheless entitled to qualified immunity as a matter of law.9 Within the limited scope of our inquiry, review is de novo.10 We must:
engage in a two-pronged inquiry. The first asks whether the facts, "[t]aken in the light most favorable to the party asserting the injury ... show the officer's conduct violated a [federal] right...." The second prong ... asks whether the right in question was "clearly established" at the time of the violation.11
We may address either prong first.12
b. Fourth Amendment violation
To show a violation of the Fourth Amendment's prohibition against excessive force, the Coles must prove that "the force used was objectively unreasonable."13 In assessing the reasonableness of the force, we examine:
the facts and circumstances of the particular case — the need for force determines how much force is constitutionally permissible. The court should consider "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."14
In deadly force cases, "the severity and immediacy of the threat of harm to officers or others are paramount to the reasonableness analysis."15 Additionally, we bear in mind both that "[t]he intrusiveness of a seizure by means of deadly force is unmatched,"16 and that the use of force "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."17
Accepting the Coles' best version of the evidence, as they must, Officers Cassidy and Hunter argue that shooting Ryan was not objectively unreasonable — that he presented an immediate threat of serious harm when they fired.18 Accordingly, we recount the version of events most favorable to the Coles.
Just before the shooting, Officer Hunter was in an exposed position between Highway 78 and the narrow wooded area separating it from the train tracks. He was looking for Ryan, expecting him to be nearby because of his own observations and a radio report that Ryan was on the railroad tracks near his position. Officer Cassidy was also between Highway 78 and the wooded area with Officer Carson, but was some distance away. Officer Hunter heard rustling in the woods near him, and signaled to the other officers that Ryan was there. Ryan then backed out of the woods with his gun to his own head, and his back to Officer Hunter. Both Officers Cassidy and Hunter believed Ryan was initially unaware of their presence, and stayed quiet so that he would not become aware of them. Ryan turned somewhat to his left, possibly in order to approach the CVS where his grandparents were waiting, and the officers opened fire without warning. Ryan turned further around as the officers continued firing, and his own gun, still pointed at his head and with his finger on the trigger, discharged involuntarily as a result of his being shot.
At the time they fired, the officers were aware that Ryan had been walking around the neighborhood holding a gun to his head, and that he had not surrendered to other officers who came in contact with him. Ryan looked like a teenager, and Officer Cassidy was aware that he had recently broken up with his girlfriend, a student at Sachse High. Officer Hunter believed Ryan might be suicidal or might simply be using the threat to himself to evade officers. Both officers were aware that Ryan had brought guns to Eric Reed Jr.'s house, and Officer Cassidy knew that there had been a disturbance at the Cole house the night before. The officers were aware that Ryan had told Eric not to try to take his remaining gun, and that he did not "wanna use it on" him. This was the only threatening or aggressive action or speech Officer Hunter was aware of Ryan making. The officers knew that they were firing in the vicinity of a busy road, across from shops and other populated buildings. They knew there were schools within walking distance, and that measures were taken to secure them and to protect Ryan's ex-girlfriend.
First, the relevant principles. It is clear that the "use of deadly force, absent a sufficiently substantial and immediate threat, violate[s] the Fourth Amendment."19 The threat must be "immediate";20 we consider the totality of the circumstances,21 including relevant information known to the officers.
The fact that a person has a gun and is behaving in a dangerous manner does not necessarily constitute an immediate and serious threat justifying use of deadly force. In unpublished but persuasive decisions, we have denied qualified immunity where a person, though undisputedly holding a gun to his own head, was complying with officers' orders,22 and where a person, reportedly armed and a suspect in a double-homicide, had ceased running and had his arms at his sides.23 When we have found officers justified for shooting suicidal people who were armed with guns, we have depended on the victim's additional threatening "Manis"24 acts and disobedience of police commands, which elevated the immediacy and severity of the danger.25
Our caselaw persuasively has held that the fact that a suicidal person who has a gun to his head, hence poses some deadly risk to officers and others, does not always justify shooting him.26 Just as there is no "open season on suspects fleeing in motor vehicles,"27 despite the inherent risks of such flight,28 there is no open season on suspects with guns.29 Instead, "the real inquiry is whether the fleeing suspect posed such a threat that the use of deadly force was justifiable."30 "[T]he threat must be sufficiently imminent at the moment of the shooting to justify deadly force."31
We conclude that the facts that Ryan was holding a gun to his head, that the officers believed he had made some threat to use it against a peer, and that the officers knew Ryan was attempting to evade officers, could not in the circumstances here justify the use of deadly force.32 Though Ryan was approaching a busier area from which several witnesses observed the shooting, he was shot in a relatively open area with only the officers immediately present.33 He was on foot and walking, not running, and he did not know Officers Hunter, Cassidy, and Carson were there.
Indeed, the officers do not argue that they were justified in shooting Ryan by the above circumstances alone. Instead, they focus on the fact that Ryan, whose back was initially towards Officer Hunter, turned to his left immediately before they shot. They argue that if they had waited, Ryan could have continued turning until he was facing Officer Hunter, and shot him before they could react. According to the officers, if Ryan had been allowed to turn around and face Officer Hunter without being fired on, he would have "posed an immediate deadly threat."
The officers invoke cases in which we have found that a use of deadly force was justified expressly because the person, ignoring police warnings, made some threatening motion towards officers, or moved in a way reasonably interpretable as drawing an immediately dangerous weapon.34 The act justifying deadly force is sometimes called a Manis act.35 We have found qualified immunity was inappropriate due to the absence of a Manis act, even when the victim had or was believed to have a gun.36
Turning to one's left is not a threatening Manis act in these circumstances, particularly when the person does not even know the officers are there.37 It is distinctly unlike raising a gun at officers or moving a gun up to waist-level and gripping as if preparing to fire.38 The officers make much of our statement in Rice that "the material fact" was that the victim was "armed and moving toward the officers."39 But moving purposefully towards an officer who is ordering the person to stop, with a drawn and recently fired gun,40 is much more threatening than having a gun to one's own head, and turning without knowledge of the officer's presence.
In sum, if the Coles' version of the evidence is believed, it was not objectively reasonable to use deadly force against Ryan Cole when the teenager emerged on foot from the wooded area with a gun to his own head and turned to his left.
c. Clearly established law
Under the second prong of the qualified immunity analysis, we ask whether it was clearly established in October 2010 that using deadly force against a person in circumstances like those here was objectively unreasonable:41
A right is clearly established only if "the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." A case directly on point is not required; rather, "[t]he central concept is that of `fair warning': The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights."42
In 2009, we held that "[i]t has long been clearly established that, absent any other justification for the use of force, it is unreasonable for a police officer to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others."43 In Luna v. Mullenix we extended that holding, finding that by March 2010, it was clearly established that shooting at a fleeing car whose driver had threatened to shoot pursuing police officers was objectively unreasonable.44 We also held that it was clearly established by March 2010 that the threat in question had to be "sufficiently substantial and immediate."45
If anything, the foot pursuit of Ryan Cole presented a less severe and immediate threat than the chase in Luna. First, walking away on foot is less inherently dangerous than fleeing in a car. Second, though in Ryan's case officers could see that he was pointing a gun at his own head, he never threatened officers with it; in Luna, the victim not only claimed to have a gun in the fleeing car, but explicitly threatened to shoot police officers.46 In Luna, we emphasized that the shooting officer decided to shoot the car before it came into view — that he was not forced to make a "split-second judgment."47 In this case, though the officers may not have decided to shoot ahead of time, they were expecting to encounter exactly what they found: Ryan walking with a gun to his head.
By October 2010, we had also repeatedly analyzed the sufficiency of Manis acts to justify deadly force when the underlying circumstances might not otherwise justify it.48 In short, by October 2010, reasonable officers were on notice that they could not lawfully use deadly force to stop a fleeing person who did not pose a severe and immediate risk to the officers or others, and they had many examples of the sorts of threatening actions which could justify deadly force.49 Turning left while unaware of an officer's presence is not among them.
Under the Coles' version of the facts, it was objectively unreasonable under clearly established law to shoot Ryan. As a result, the fact disputes identified by the district court — including the central issue of whether Ryan pointed his gun at Officer Hunter — are material, and we dismiss the appeal for lack of jurisdiction.
IV
We now turn to the claim that Officer Carson lied and concealed evidence in order to protect Officers Hunter and Cassidy after the shooting. The district court refused to dismiss the Coles' claim that Officer Carson agreed and acted with others "to deprive Ryan Cole of various constitutional rights including, but not limited to, his right to remain free from malicious prosecution, wrongful conviction, and unlawful confinement." The court located the source of the rights in the "Fourth and Fourteenth Amendment[s]." Officer Carson appeals, asserting qualified and absolute immunity defenses as he did below.
The denial of a motion to dismiss based on qualified immunity or a substantial claim of absolute immunity is immediately appealable to the extent it turns on legal questions.50 We review de novo,51 accepting "all well-pleaded facts as true and draw[ing] all reasonable inferences in favor of the nonmoving party."52 To avoid dismissal based on qualified immunity, the Coles had to allege (1) "a violation of a constitutional right" which (2) was "`clearly established' at the time of [Carson's] alleged misconduct."53 The Coles had the burden of pleading "specific conduct and actions giving rise to a constitutional violation" to meet the defense.54
a. Allegations that Officer Carson fabricated evidence
The Coles pled the following relevant facts in their First Amended Complaint (FAC) and the expert affidavits they attached to it.55 First, Ryan was seen by several officers walking in public openly carrying a handgun, and at least one witness called police to report that he had a gun. The FAC alleges that when Ryan emerged from the wooded area, he was facing away from Officer Hunter, with the gun held to his own head. Without warning Ryan or identifying themselves, Officers Hunter and Cassidy opened fire. After the shooting, Officers Carson, Cassidy, and Hunter were "permitted to leave the scene for a considerable period of time without any supervision," giving them opportunity to confer. The Coles allege that the officers "formed and carried out an agreement ... to hide and cover up ... the true events" in order to justify the use of force and avoid consequences for killing Ryan, who they believed was likely to die. Their alleged aim was to "prosecute and arrest Ryan Cole for ... an offense that each of them knew he did not commit."
The Coles allege that Officer Carson made false statements to investigators that Ryan aimed his gun at Officer Hunter and that Hunter warned him before shooting. The Coles allege that physical evidence, recordings, and expert opinions show these statements cannot be true. They allege that the false statements led "Garland police officers [to] file[] a case with the District Attorney's office in Dallas County charging Ryan Cole with the felony offense of aggravated assault on a public servant." Ryan was subsequently indicted by a grand jury for that offense, based again on the officers' statements. "As a result of the fictitious charges ... Ryan Cole was confined indefinitely under house arrest." We are also told that "[o]n or about May 8, 2012, the Dallas County District Attorney's office dismissed" the assault charge. "At or near the same time," Ryan "pleaded no contest" and "received deferred adjudication for the charge of unlawfully carrying a weapon." The Coles incurred substantial legal fees in order to confront the aggravated assault charge.
We address the alleged constitutional violations in turn.
b. Fourth Amendment violation
Pretrial use of fabricated evidence to secure a person's arrest can violate the Fourth Amendment.56 However, we have said that in order to make out a Fourth Amendment claim under either a "false arrest" or "illegal detention" theory, the relevant actors must not be aware of facts constituting probable cause to arrest or detain the person for any crime.57 The Supreme Court has made it clear that this is the law as far as warrantless arrests are concerned.58
There is some suggestion that the standard may be different when a magistrate is deceived in order to obtain a warrant.59 In such a case, the focus may not be on what facts officers were aware of, but on whether, once the false information is excised, the information presented to the magistrate could justify the arrest.60 We need not decide the precise contours of these issues now, however, because the Coles' First Amended Complaint fails to set out "specific conduct and actions" concerning Ryan's seizure which can survive qualified immunity.
In Texas, unlawful carrying consists of "intentionally, knowingly, or recklessly carr[ying] on or about [one's] person a handgun" or other weapon when one is not on his own property or inside of or directly en route to his motor vehicle.61 Based on the Coles' pleadings, it appears that, during the entire period Ryan was under house arrest, there was known probable cause to arrest him for unlawful carrying of a weapon. Both the unlawful carry and aggravated assault charges were disposed of "at or near the same time," after which Ryan was apparently no longer subject to house arrest.
To the extent that the Coles seek to argue that the existence of known probable cause to arrest Ryan for unlawful carrying is not fatal to their Fourth Amendment claim, they have failed to allege specific conduct to meet Officer Carson's qualified immunity defense. We are told only that Ryan was placed under house arrest "[a]s a result of [the] fictitious charges."
Given that the face of the FAC reveals the known existence of probable cause to arrest for unlawful carrying, and given the Coles' failure to plead facts supporting a theory of Fourth Amendment violation despite that probable cause, the Coles have not pled a violation of clearly established law, and Officer Carson is entitled to qualified immunity. Put another way, the Coles have alleged that Ryan was placed under house arrest with probable cause. That is not a clearly established Fourth Amendment violation without something more, and the Coles have not alleged what that something more might be.
c. Brady violation
The Coles argue that Officer Carson also violated Ryan's Fourteenth Amendment due process rights, due both to a Brady62 violation, and more generally to his role in the filing of false charges. The Coles allege that Officer Carson committed a Brady violation in two ways: by lying to conceal his own knowledge that Ryan Cole never assaulted an officer, and by conspiring with other officers to conceal physical evidence also tending to exculpate Ryan. But prior to 2010, we had held that Brady is not implicated when there is no trial.63 Ryan Cole was not tried for aggravated assault, nor did he plead guilty; the charge was dismissed. There is no suggestion that the aggravated assault charge was used as leverage to secure a plea on the unlawful carrying charge. It follows that Officer Carson was not on notice that withholding evidence in these circumstances could violate Brady, and he is entitled to qualified immunity for the alleged Brady violations.
d. Due process violation — fabrication of evidence
We turn now to the Coles' claim that Officer Carson violated Ryan's clearly established due process rights when he allegedly lied to investigators to secure a false charge of aggravated assault.
We begin by recognizing that there is no "substantive right under the Due Process Clause of the Fourteenth Amendment to be free from criminal prosecution except upon probable cause."64 That much is clear from the Supreme Court's fractured decision in Albright v. Oliver. In Albright, a plaintiff was wrongfully charged with selling a cocaine look-alike substance, a charge later dismissed.65 The Court rejected his claim that the prosecution violated due process. We have held that Albright's reach is limited; the case "did not speak to the Fourteenth Amendment beyond eschewing reliance upon substantive due process to create a requirement of probable cause to initiate a prosecution ...."66 Moreover, "that portion of Albright that suggests that the Fourth Amendment applies to pretrial deprivations of liberty did not receive the support of a majority of the Justices."67
Albright also differs in two important ways from the case at hand. First, although the defendant detective in Albright accepted the story of an unreliable informant and may have given "misleading" testimony,68 there was no suggestion that he deliberately fabricated evidence. In contrast, the Coles allege that Officer Carson deliberately lied in order to get Ryan charged to cover an unlawful use of force. Several of our sister circuits have found this distinction pivotal in determining whether a due process violation is committed by the fabrication of evidence.69
Second, a majority of the Justices in Albright depended upon the potential availability of a Fourth Amendment recourse the plaintiff had rejected,70 observing that Albright should have brought his claim under the Fourth Amendment.71 In contrast, the Coles tried to make out a Fourth Amendment claim, but we have explained that it is unavailing due largely to the existence of probable cause on another count. Yet setting aside his time seized under house arrest, Ryan still was framed and charged with a felony, and subjected to attendant monetary and reputational injuries flowing from such a serious charge. Unlike Albright, who chose to invoke substantive due process rather than the Fourth Amendment, Ryan Cole has no other option.
1.
We built upon the uncertain foundation of Albright in our en banc decision in Castellano v. Fragozo.72 Castellano held that the elements of a state malicious prosecution claim were neither sufficient nor independently necessary to state a claim under § 1983 where a state actor allegedly fabricated evidence to procure an arrest and conviction.73 Rather, the particular constitutional violation alleged had to be identified with clarity:74
[C]ausing charges to be filed without probable cause will not without more violate the Constitution.... It is equally apparent that additional government acts that may attend the initiation of a criminal charge could give rise to claims of constitutional deprivation.
The initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection — the Fourth Amendment if the accused is seized and arrested, for example, or other constitutionally secured rights if a case is further pursued.75
We ultimately found that a Fourth Amendment violation had been alleged with regard to Castellano's pretrial seizure, and a Fourteenth Amendment due process violation was pled with regard to the knowing use of fabricated evidence and perjury at trial.76
While the due process violation in Castellano was tied to the "right to a fair trial,"77 we rejected the idea that "the specific constitutional rights guiding a criminal trial spend their force in assuring a fair trial."78 Moreover, we later held in Boyd v. Driver that officials' perjured testimony and tampering with video evidence constituted a due process violation even where the plaintiff was acquitted.79 Thus even when a trial functions properly to vindicate a person's innocence, the "manufacturing of evidence and knowing use of that evidence along with perjured testimony to obtain a wrongful conviction deprives a defendant of his long recognized right to a fair trial secured by the Due Process Clause."80
We returned once more to Albright and Castellano in Cuadra v. Houston Independent School District.81 There we considered a claim against a school district for manipulating evidence which led to charges against the plaintiff, and stated that the "claims are based on alleged pretrial deprivations of [plaintiff's] constitutional rights and, under the holding in Albright, such claims should be brought under the Fourth Amendment."82 Citing Cuadra, we recently held in Bosarge that a person indicted and held for six months based on a mistaken identification had not stated a due process claim.83 But neither Cuadra nor Bosarge involved deliberate fabrication of evidence to support false charges. Cuadra focused on a failure of certain school officials to turn over a key document;84 and in Bosarge, we did not credit conclusory allegations that the misidentification was intentional.85 Neither case answers the question of whether deliberate fabrication by law enforcement officers to justify a police shooting violates due process.
In sum, we have held that a victim of intentional fabrication of evidence by officials is denied due process when he is either convicted or acquitted. We have never decided whether false charges must survive to the trial stage in order to implicate due process rights.
2.
Our sister circuits have taken varying approaches to fabrication of evidence and "malicious prosecution" claims in the wake of Albright.86 That said, they largely either have held that charges based on fabricated evidence support a due process claim, or have not yet answered the question. Two circuits have found that there is no due process claim in the absence of a conviction — a requirement we have not insisted upon.
The Ninth Circuit held in Devereaux v. Abbey that "there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government,"87 a formulation we quoted approvingly in Good v. Curtis.88 In Devereaux, the plaintiff alleged that investigators charged him with rape and molestation on the basis of statements they should have known were false.89 Though the charges were dropped in exchange for a guilty plea to two misdemeanors,90 the Ninth Circuit reasoned that:
Under Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942), the knowing use by the prosecution of perjured testimony in order to secure a criminal conviction violates the Constitution. While Pyle does not deal specifically with the bringing of criminal charges, as opposed to the securing of a conviction, we find that the wrongfulness of charging someone on the basis of deliberately fabricated evidence is sufficiently obvious, and Pyle is sufficiently analogous, that the right to be free from such charges is a constitutional right.91
In Ricciuti v. N.Y.C. Transit Authority, the police arrested a plaintiff with probable cause, but then allegedly fabricated a confession resulting in additional charges.92 The Second Circuit denied qualified immunity for the fabrication despite the fact that the charges were dismissed without trial.93 The court held that "[w]hen a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983."94 The Second Circuit has since recognized that the fabrication in Ricciuti deprived the plaintiffs of liberty in part because it "caused [them] to be charged with a more serious crime."95
In Pierce v. Gilchrist, a plaintiff was arrested and convicted on the basis of falsified evidence created by an investigator.96 Though not always distinguishing clearly between the plaintiff's Fourth and Fourteenth Amendment claims,97 the Tenth Circuit upheld the district court's refusal to dismiss on qualified immunity grounds based on the use of false evidence to "induce prosecutors to initiate an unwarranted prosecution."98 The court explained that it saw no "reason to distinguish between falsifying evidence to facilitate a wrongful arrest and engaging in the same conduct several days later to induce prosecutors to initiate an unwarranted prosecution."99 Thus the fact that there was probable cause for the arrest was immaterial. In another "malicious prosecution" case ending in dismissal of criminal charges, the court explicitly rejected substantive and procedural due process claims100 footed on a failure to hand over certain exculpatory evidence.101
More recently, the Tenth Circuit has clarified its stance. In Klen v. City of Loveland, the court reversed a grant of summary judgment against a claim that various defendants fabricated evidence "thus facilitating" prosecution of a plaintiff who eventually pleaded no-contest.102 There the court noted that "[u]se of an indictment based on perjured testimony to bring charges, for example, itself represents a denial of due process" despite the lack of a trial;103 the "use of a perjured affidavit to defeat a defendant's attempt to dismiss an indictment on grounds of selective prosecution" could also support a due process claim.104
The Eighth Circuit likewise found that a due process claim is stated where a police officer claimed that, though he was innocent of using excessive force against a victim, he was "set up," prosecuted (and acquitted), and administratively charged "for patently arbitrary reasons."105 In Moran v. Clarke, the en banc court held that the substantive due process claim should not have been denied in a judgment as a matter of law because the officer presented evidence that he was intentionally set up, and there was damage to his professional reputation and evidence of improper consideration of his race.106 Such actions could violate fundamental rights and "shock the conscience."107 The Eighth Circuit has since found that a substantive due process violation survived summary judgment in the absence of a trial where false evidence was used to cause plaintiffs to plead guilty,108 and in a case where the charges were dropped without a plea.109
The Second, Eighth, Ninth, and Tenth Circuits have thus all found denials of due process when charges rest on fabricated evidence. The Seventh Circuit's decisions appear to point the other way. The court has held that "a police officer does not violate an acquitted defendant's due process rights when he fabricates evidence."110 Acquittal forecloses the claim.111 In the Seventh Circuit's view, the only liberty interest damaged in such cases "stems from [plaintiff's] initial arrest"112 and should be addressed under the Fourth Amendment;113 being forced to defend oneself at trial is no deprivation of liberty.114 The Seventh Circuit's no-due process violation decisions have occurred in cases that either did not address the availability of a Fourth Amendment claim115 or found that the claim had been purposefully abandoned,116 and it has suggested a willingness to consider deprivations short of conviction and imprisonment if properly raised.117
The remaining circuits do not appear to have answered the question before us. The First Circuit has held that police officers violate due process when they fabricate evidence in order to get someone falsely convicted118 or immediately punished with segregation within a jail.119 The circuit has emphasized the importance of the specific intent to fabricate or use false evidence,120 and explained in oft-quoted broad terms that:
[S]ome truths are self-evident. This is one such: if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit. Actions taken in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction).121
Clear enough, but the circuit does not appear to have explicitly addressed whether false charges in the absence of a conviction or immediate punishment state a denial of due process.
The Third Circuit considered a § 1983 claim that police fabricated evidence leading to charges and a wrongful conviction.122 Though the court expressly did not answer "whether pre-trial detentions can implicate constitutional rights beyond the Fourth Amendment,"123 it did state that "[w]hen falsified evidence is used as a basis to initiate the prosecution of a defendant, or is used to convict him, the defendant has been injured."124 The Sixth Circuit "recognize[s] a ... claim of malicious prosecution under the Fourth Amendment, which encompasses wrongful investigation, prosecution, conviction, and incarceration,"125 but it remains unclear whether a substantive due process claim might lie in some circumstances. In Gregory v. City of Louisville, the court held that "the subset of malicious prosecution claims which allege continued detention without probable cause must be ... analyzed under the Fourth Amendment,"126 but expressly reserved the question of whether "malicious prosecution" claims based on liberty deprivations distinct from pretrial detention might state due process violations.127
The D.C. Circuit does not appear to have addressed the issue of whether a due process claim could lie when police fabricate evidence, though it has noted its view that Albright "held that malicious prosecution does not violate `substantive' due process rights."128 The Eleventh Circuit has done likewise,129 though noting the possibility that a procedural due process claim might lie.130 The circuit recently recognized a due process claim where a plaintiff alleged that police officers shot, tasered, and beat him, and then fabricated a cover-up which resulted in two years of jail and an eventual acquittal on charges of aggravated assault on a law enforcement officer.131
3.
All the circuits that have squarely considered the question have either found that a due process violation may lie where state officers fabricate evidence to support false charges against a plaintiff, or have found no due process violation in the absence of a conviction, an approach we have expressly rejected.132 We agree with those that have found a due process right not to have police deliberately fabricate evidence and use it to frame and bring false charges against a person.
Executive action must shock the conscience in order to violate substantive due process.133 We have said that:
Conduct sufficient to shock the conscience for substantive due process purposes has been described in several different ways. It has been described as conduct that `violates the decencies of civilized conduct'; conduct that is `so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency'; conduct that `interferes with rights implicit in the concept of ordered liberty'; and conduct that `is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'134
Deliberate framing of a person by the state offends the most strongly held values of our nation. We echo again the apt words of the First Circuit that, "if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals."135 As the Third Circuit has stated, "no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence."136 Here, the framing was allegedly done in order to conceal and justify excessive force against one of the people our laws and systems are supposed to protect. The rule of law, which we have cherished since our founding, cannot abide such conduct.
We agree with the Second Circuit that official framing of a person in these circumstances undermines the right to a fair trial.137 Being framed and falsely charged brings inevitable damage to the person's reputation, especially where, as here, the crime is a felony involving the threat of violence.138 Alongside the reputational damage,139 it requires the person framed to mount a defense,140 and places him in the power of a court of law, where he may be required to appear.141 Though these wrongs may be addressed through a Fourth Amendment challenge in many cases,142 they do not disappear where there is no violation of that amendment. Instead, where there is no more specific constitutional protection available, the Fourteenth Amendment may offer protection.143 It does so here, where the conduct is undoubtedly shocking to the conscience and no conceivable state interest justifies the deprivations imposed.144
The Fourteenth Amendment forbids what allegedly happened to Ryan Cole. Where police intentionally fabricate evidence and successfully get someone falsely charged with a felony as cover for their colleagues' actions, and the Fourth Amendment is unavailing, there may be a due process violation.145
4.
Having found that the Coles have alleged a due process violation, we must also decide whether the violation was clearly established in October 2010. As the Supreme Court has explained, "the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right."146 That is not the test, as it would "convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability."147 On the other hand, officials may be on notice that their conduct is unlawful even in "novel factual circumstances,"148 though the courts have not had occasion to rule on "`materially similar' conduct."149 Indeed, "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question."150
By 2010, no "reasonable law enforcement officer would have thought it permissible to frame somebody for a crime he or she did not commit."151 Though the First Circuit was addressing official framing that led to conviction, and the state of the law in 1967, the principle applies with obvious clarity here. "To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false [evidence] at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice."152 "[T]he wrongfulness of charging someone on the basis of deliberately fabricated evidence is sufficiently obvious,"153 that in light of our due process violation holdings in Castellano and Boyd and the decisions of our sister circuits,154 a reasonable officer in Officer Carson's shoes would have known his conduct violated the Constitution. "[N]o reasonably competent police officer could believe otherwise."155
5.
Finally, the Coles have pled "specific conduct and actions giving rise to a constitutional violation."156 We will not rehearse the pleadings in detail yet again. The Coles clearly allege that Officer Carson conspired with others and intentionally lied in order to cover for his colleagues, among other things telling investigators that Ryan turned and pointed his gun at the police. The Coles further allege that Officer Carson and other officers' lies led directly to the decision to charge Ryan with aggravated assault. As we have explained, that is enough for us to determine that they have pled a clearly established constitutional violation.
V
Officer Carson claims absolute immunity for all of his alleged conduct under Rehberg v. Paulk,157 where the Supreme Court found that all grand jury witnesses have:
absolute immunity from any § 1983 claim based on the witness' testimony. In addition ... this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness' testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution ... In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated.158
The Court recognized that absolute immunity does not "extend[] to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits and fabricate evidence concerning an unsolved crime."159
Under Rehberg, Officer Carson is immune for grand jury testimony, preparation for that testimony, and any conspiracy to falsely testify. He argues that all of his alleged conduct falls into those categories, but the First Amended Complaint goes further. The Coles allege that Officer Carson made false statements in the course of the initial investigation into the shooting, before a decision had been made by prosecutors to charge Ryan with aggravated assault. The FAC indicates that Carson intended these statements to influence the decision to bring charges against Ryan in the first place.
An officer who lies to investigating officers in order to try to get someone charged with a crime — before the decision to charge has been made — is not entitled to absolute testimonial immunity. The Supreme Court has held that a prosecutor is not entitled to absolute immunity when she falsifies an affidavit supporting an arrest warrant.160 Neither is a police officer who submits an affidavit for a warrant, leading to an arrest without probable cause.161 Nor are prosecutors absolutely immune when they act alongside police officers to "solve" an unsolved crime by shopping for an unscrupulous expert.162 Rehberg confirmed that these holdings are still good law.163 We have likewise held that "non-testimonial pretrial actions, such as the fabrication of evidence, are not within the scope of absolute immunity because they are not part of the trial."164
The conduct here — lying to investigators — comes closer to possibly preparing for grand jury testimony than some of the conduct in earlier cases, but the timing and purpose of the statements matter. The Supreme Court and this court have emphasized that absolute immunity for prosecutors, witnesses, and others is based on a need to protect central judicial proceedings.165 Thus conduct that occurs during investigation to discover probable cause and before the decision to charge has been made is not generally entitled to absolute immunity.166 Some of the false statements in this case are alleged to have been this investigation-stage type of conduct.
In these circumstances, lying to investigating officers is similar to falsifying a police report, which the Second Circuit recently held is not protected by testimonial immunity. The Second Circuit addressed how to apply Rehberg "when a § 1983 plaintiff alleges that the officer withheld and falsified evidence in addition to committing perjury before the grand jury."167 It concluded that testimonial immunity does not bar § 1983 claims that can be made out without reference to the grand jury testimony or preparation for it.168 As the court explained, "[t]he fact that [defendant's] grand jury testimony paralleled information he gave in other contexts [such as police reports] does not mean that [the claim] was `based on' [the] grand jury testimony. Rather it was based on [defendant's] conduct that laid the groundwork for [the] indictment."169 So here; the fact that some of Officer Carson's statements may have been presented to the grand jury can be excised from the complaint and the Coles still make out a case that Carson lied in order to ensure charges would be brought in the first place.
A final wrinkle must be addressed. While we have said that plaintiffs must plead with specificity when absolute immunity is asserted, just as with qualified immunity,170 the Supreme Court has held that "the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question."171 Officials bear the "burden of establishing that they were functioning" in an absolutely immune role.172 The Court's statements emphasize its reluctance to take absolute immunity too far, and contemplate the need for defendants to take an active role in claiming it.173 Following these cases and our own precedent, we have held at the summary judgment stage that the burden stays with the defendant to establish his entitlement to absolute immunity.174
We need not decide whether a heightened pleading requirement applies at the motion to dismiss stage. We have already explained that the Coles pled "specific conduct and actions giving rise to a constitutional violation" insofar as they allege that Officer Carson fabricated evidence to get Ryan falsely charged. The Coles alleged that Officer Carson lied to investigating officers, telling them that Ryan turned around and pointed his gun at Officer Hunter prior to his being shot, and that Officer Hunter gave a warning before firing. They make it clear that some of these statements were made prior to the decision to charge, were intended to influence, and did influence that decision. Their pleadings are specific enough to meet any heightened pleading requirement.
We DISMISS the appeal by Officers Hunter and Cassidy for lack of jurisdiction. We AFFIRM the denial of Officer Carson's motion to dismiss insofar as it relates to the Coles' due process claim based on fabricated evidence and REVERSE the denial as to the Fourth Amendment and Brady claims. We REMAND for further proceedings.
