UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 23-1095 _______________

KOBE PINKNEY

v.

MEADVILLE, PENNSYLVANIA; PATROLMAN JARED FRUM; ALLEGHENY COLLEGE; DUNCAN FREELAND; JOE HALL

JARED FRUM, Appellant _______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 1:19-cv-00167) Chief Magistrate Judge: Honorable Richard A. Lanzillo _______________

Argued: November 8, 2023 Before: RESTREPO, BIBAS, and SCIRICA, Circuit Judges

(Filed: March 12, 2024) Carol A. VanderWoude [ARGUED] MARSHALL DENNEHEY 2000 Market Street, Suite 2300 Philadelphia, PA 19103 Patrick M. Carey MARSHALL DENNEHEY 717 State Street, Suite 701 Erie, PA 16501 Counsel for Appellant Earl D. Raynor, Jr. [ARGUED] 1800 John F. Kennedy Boulevard 3rd Floor, Box 103 Philadelphia, PA 19103 Counsel for Appellee _______________

OPINION OF THE COURT _______________ BIBAS, Circuit Judge. Police may not fake facts to find probable cause. Officer Jared Frum applied for an arrest warrant. In his application, he allegedly turned a shaky witness statement into a confident identification and left out evidence that undermined the identi- fication’s reliability. A judge then relied on this altered story to issue a warrant to arrest Kobe Pinkney. But because there was no probable cause to arrest him, Officer Frum violated his clearly established rights.

2 I. THE WRONGFUL ARREST On this motion to dismiss, we take the factual allegations as true: Late one Saturday night, Officer Frum was near a crowded college bar when he saw two men carrying Rhett Hap- pel. Happel’s face had been smashed so badly that his eye was swollen shut. But he could not remember exactly what had happened. So Officer Frum started investigating. He learned that Hap- pel had allegedly drugged a woman the night before. And a witness accused that woman of punching Happel (though the witness later recanted). Happel also told him that two men, Joe Hayes and Jared Shaw (the woman’s boyfriend), had threat- ened him just hours before the attack. A few days later, Duncan Freeland told Officer Frum that he had seen the attack. Freeland described Happel’s attacker as “an African American boy about 6’ … tall” with “some kind of braids.” App. 646. Though Freeland had not recognized the attacker at first, a friend later tried to jog his memory by send- ing him three Facebook photos. In all three, Pinkney was the only black man. Freeland thought that Pinkney “look[ed] an awful lot like” the attacker. App. 648. Officer Frum never probed how well Freeland could observe the assault. Nor did he ask how Pinkney resembled the attacker. Rather, he asked several leading questions assuming that Pinkney did it: Officer Frum: And all three [photos of Pinkney] look like the gentleman that was at the bar Satur- day night?

3 Freeland: Minus the hair in the last two, but yeah. Officer Frum: Okay. Those same facial fea- tures, same— Freeland: Yeah. … Officer Frum: Okay. And—but you said you just seen him tap Rhett on the shoulder, Rhett looked around. You had seen Kobe throw the punch. Freeland: Yeah. App. 648–49. Though Freeland answered these leading ques- tions “yeah,” he never identified Pinkney as the attacker in his own words. Based on the interview, Officer Frum sought a warrant to arrest Pinkney. The probable-cause affidavit that he wrote up and submitted to the judge said: [Freeland] stated t