FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY W. SMITH; TERESA SMITH, Nos. 09-55334
Plaintiffs-Appellants, 09-55346
v. D.C. No.
ROBERT ALMADA, Santa Monica 2:06-cv-1626-
Police Sergeant, AHM
Defendant-Appellee. ORDER AND
OPINION
On Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
June 9, 2010—Pasadena, California
Filed March 21, 2011
Before: Dorothy W. Nelson and Ronald M. Gould,
Circuit Judges, and James S. Gwin, District Judge.*
Opinion by Judge Gwin;
Concurrence by Judge Gould;
Concurrence by Judge Gwin;
Dissent by Judge D. W. Nelson
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
3783
SMITH v. ALMADA 3787
COUNSEL
Brett J. Vottero, Springfield, Massachusetts, for the appel-
lants.
Anthony P. Serritella, Deputy City Attorney, Santa Monica,
California, for the appellee.
ORDER
The opinion and dissent in the above-captioned matter filed
on October 19, 2010, and published at 623 F.3d 1078, is
WITHDRAWN. The superseding opinion, dissent, and con-
currences shall be filed concurrently with this order.
The parties shall have fourteen (14) days from entry of the
superseding opinion to file petitions for rehearing or petitions
for rehearing en banc in the above-captioned matter.
IT IS SO ORDERED.
OPINION
GWIN, District Judge:
Plaintiffs Anthony Smith and his wife Theresa Smith
appeal the district court’s grant of summary judgment to
Defendant Santa Monica Police Sergeant Robert Almada on
Smith’s claims for false arrest, malicious prosecution, and
suppression of exculpatory evidence and on Theresa Smith’s
substantive due process claim for deprivation of familial rela-
tions.1 In support of his action against Almada, Smith claims
1
The parties agree that Teresa Smith’s claim is entirely dependent on
the survival of her husband’s claims. Because we affirm the dismissal of
Smith’s claims, we also affirm the dismissal of his wife’s claims.
3788 SMITH v. ALMADA
that Sergeant Almada failed to disclose materially exculpatory
evidence in Smith’s criminal arson trial—including a false
identification by a key witness that Smith was gloating at the
arson scene in the months following the fire. Although
Smith’s first trial resulted in a mistrial after the jury was
unable to reach a verdict, he says that access to the exculpa-
tory evidence would have caused the judge not to issue an
arrest warrant or would have resulted in an acquittal. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm after find-
ing that the arguably non-disclosed evidence would not have
resulted in a different outcome.
I
In the early morning hours of February 13, 2003, a fire
started inside Simply Sofas, a furniture store owned by Mari-
lyn Nelson. The fire and smoke largely destroyed the store’s
inventory, causing more than $2.8 million in damage.
After investigating, fire inspectors determined that an
arsonist used three five-gallon water bottles filled with gaso-
line and stuffed with rolled-up periodicals, newspapers, and
other gasoline-soaked mail as “firebombs” to start the fire.
Under the melted remains of one bottle, the investigators also
found an irregularly shaped piece of asphalt that matched a
hole in the alley across the street from the furniture store. The
investigators concluded that the arsonist broke the store win-
dow, likely with the asphalt, and placed the gasoline-filled
bottles on a table just inside the window. They believed the
arsonist then ignited the fires.
The gasoline-soaked papers that the investigators found
inside the melted bottles included numerous pieces of mail
addressed to Appellant Smith’s residence over a five-year
period, including: a July 1997 U.S. News magazine addressed
to Anthony Smith, a December 1999 U.S. News magazine
addressed to Anthony Smith, a January 2000 Motorcycle
Rider magazine addressed to Anthony Smith, a 2002 tenant
SMITH v. ALMADA 3789
notice issued by Smith’s apartment complex, a 2002 express
mail envelope signed for by Anthony Smith, a Fall/Winter
2002 JCPenney catalog addressed to “Aundrea Smith,” a Uni-
versity of Alabama envelope addressed to Anthony Smith, a
March of Dimes envelope addressed to Anthony Smith, a
handwritten greeting card addressed to “the beloved Smith
family,” a Rochester Clothing catalog addressed to Teresa
Smith, a Los Angeles Music Center mailer addressed to
Anthony Smith, and a Mark Taper Forum mailer addressed to
Anthony Smith. The bottle did not include mail from any
other individuals. The investigators also found the burnt busi-
ness card of a Beverly Hills woman who worked for Smith.
Soon after the fire was under control, Defendant Santa
Monica Police Sergeant Robert Almada took over the investi-
gation. Almada had investigated four previous fires set in
dumpsters behind 2408 Lincoln Boulevard in October and
November 2002. Simply Sofas stood at 2314 Lincoln Avenue.
With regards to one of the dumpster fires, Almada reported
that the “fire source” might be a “possible chemical based
incendiary device in a plastic container.” Witnesses to those
earlier fires (including store owner Nelson) described differ-
ent suspects, none resembling Smith.
In his investigation of the February 2003 fire, Sergeant
Almada interviewed Nelson, who said that she, her daughter
and son-in-law (both business partners in the store with Nel-
son), and a clerk had keys to the store. Nelson told Sergeant
Almada that she and her son-in-law closed the store early the
evening of the fire and that her son-in-law locked all of the
doors.
According to Nelson, her business was in healthy financial
condition: Annual sales were approximately $3 million, with
profits around $400,000. The store had almost no debt. Nel-
son had never made a business- or fire-related insurance
claim. Nelson did, however, receive insurance proceeds for
the February 2003 fire.
3790 SMITH v. ALMADA
At the time of the initial interview, Sergeant Almada asked
Nelson if she could think of anyone with a motive for the
arson. Nelson mentioned a former employee whom she had
recently fired and a few other names, but not Smith.
Nevertheless, Sergeant Almada began to focus his investi-
gation on Smith because Smith’s mail—pieces received over
a long period of time and from a variety of sources—had been
used as a wick to start the fire at Simply Sofas. Almada ques-
tioned Smith, who described selling items on consignment
through Nelson’s store and stated that he and Nelson had a
“minor issue” in January 2003 arising out of a broken item
and a stop-payment order that Nelson had placed on a check
paid to Smith.
Sergeant Almada then circled back to speak with Nelson.
After Almada told Nelson that Smith was a suspect, Nelson
described an “uncomfortable and tense” January 2003 dispute
with Smith. The dispute centered over whether a consigned
item was damaged before or after being sold to Nelson. Nel-
son said that when Smith dropped by her store to pick up pay-
ment for his consignment items, she told Smith that one of his
consignment items had been broken before Smith delivered it
to Nelson’s store, and that she would not pay him the full
amount for the item. But Smith claimed that one of Nelson’s
employees broke the item and demanded that Nelson pay for
it. Nelson said that Smith’s demeanor during their argument
was threatening and frightening and that he stuck his finger in
her face. To end the dispute, Nelson promised to give Smith
an additional check for the broken item. Smith’s assistant later
called Nelson and said that Smith had lost the first check, so
Nelson wrote Smith a second check for the value of the origi-
nal consignment check plus the value of the broken item.
After learning that Smith had not lost the first check, but
instead had cashed it, Nelson stopped payment on the second
check. Nelson said she felt that Smith was trying to intimidate
her into paying more than she owed him.
SMITH v. ALMADA 3791
In addition—and central to Smith’s claims against Sergeant
Almada—Nelson claimed to have seen Smith in front of her
boarded-up store on the afternoon of June 28, 2003, “laughing
and smiling” as he pointed to the area of the fire’s origin.
However, Sergeant Almada’s investigation ultimately showed
that Nelson’s statement was false: Sergeant Almada viewed a
security tape from Smith’s apartment building showing that
Smith was at home on June 28, 2003, the day Nelson claimed
to have seen him.
Sergeant Almada confronted Smith with the evidence
against him, especially the evidence that letters and mailings
to Smith had been used as a wick for the firebombs. Accord-
ing to Sergeant Almada, upon learning of the scale of the fire
and the evidence against him, Smith slumped over, began to
cry, and apologized repeatedly. Smith recalls the conversation
differently, claiming that Sergeant Almada told him that fire-
fighters were fatally injured in the fire and that he cried and
said he was sorry for their death but never said that he was
involved. Smith gave no explanation for how his mail from
over a five-year period ended up in the firebombs, but contin-
ued to deny involvement in the fire. Sergeant Almada did not
arrest Smith at that time.
Instead, Sergeant Almada met with deputy district attorney
Jean Daly to discuss the case against Smith. Daly does not
recall discussing the prior dumpster fires behind Nelson’s
store, Sergeant Almada claims that he mentioned the previous
fires to prosecutor Daly but and said he doubted that they
were related to the February 2003 fire. Sergeant Almada did
not tell Daly about Nelson’s false report of Smith’s gloating.
After hearing Sergeant Almada’s account of the evidence
against Smith, prosecutor Daly recommended that Sergeant
Almada obtain a warrant for Smith’s arrest.
Consequently, Sergeant Almada sought an arrest warrant
from Los Angeles Superior Court Judge Richard Neidorf,
who authorized the warrant. Sergeant Almada then arrested
3792 SMITH v. ALMADA
Smith, and prosecutor Daly filed a criminal complaint charg-
ing Smith with arson. Smith did not make bail after his arrest
and remained in jail through his first trial in June 2004.
At Smith’s first trial, Nelson testified that her January 2003
dispute with Smith “shocked” and “intimidated” her. She said
that Smith looked at her in a “very threatening” manner and
“pushed his finger and almost to my face,” and that as a result
she was “frightened” and “very intimidated.” Smith’s defense
attorney knew about and attempted to introduce evidence of
the October 2002 dumpster fire—which predated Smith’s
altercation with Nelson—but the trial court granted the prose-
cution’s motion in limine to exclude the evidence.
At the conclusion of the first trial, the jury could not reach
a verdict, with five jurors voting “guilty” and seven jurors
voting “not guilty.”
After the court declared a mistrial, prosecutor Daly
reviewed the case with the head deputy district attorney, who
approved Daly’s recommendation to retry the case. Smith
remained in custody.
At Smith’s second trial in December 2004—on substan-
tially the same evidence—the jury again could not reach a
verdict, this time with one juror voting to convict and eleven
jurors voting to acquit. The trial court then dismissed the case
against Smith under California Penal Code § 1385, finding
that although “there are certainly strong inferences to suggest
that Mr. Smith did this,” the prosecution would never be able
to obtain a unanimous verdict. Only after this dismissal was
Smith released from custody.
Thereafter, the Smiths sued Sergeant Almada under 42
U.S.C. § 1983 in state court for false arrest and malicious
prosecution. The case was then removed to federal district
court. Although the Smiths did not make any distinct Brady
claim in their complaint, the district court overruled Defen-
SMITH v. ALMADA 3793
dant Almada’s objection that the Brady claim was made only
after discovery had been completed and should therefore not
be considered.
After discovery, the district court granted Sergeant Alma-
da’s summary judgment motion. On the false arrest claim, the
district court held that Sergeant Almada was entitled to quali-
fied immunity because a competent officer could reasonably
have determined that probable cause existed to arrest Smith
for arson. On the malicious prosecution claim, the district
court concluded that Sergeant Almada did not knowingly sub-
mit material false information to the prosecution. Finally, on
the failure to disclose exculpatory evidence claim, the district
court held that the allegedly withheld evidence—the fact that
Nelson’s testimony about Smith’s gloating at the crime scene
was false—would not have materially affected Smith’s trial.
This appeal followed.
II
We review de novo a district court’s grant of summary
judgment. See, e.g., Olsen v. Idaho State Bd. of Med., 363
F.3d 916, 922 (9th Cir. 2004). Accordingly, we must deter-
mine, viewing the evidence in the light most favorable to
Smith, whether any genuine issues of material fact exist and
whether the district court correctly applied the substantive
law. Id. at 922.
A
With his amended complaint, Smith made claims of false
arrest and malicious prosecution. Smith’s first claim—which
the district court dismissed on qualified immunity grounds—
is that Sergeant Almada violated his Fourth Amendment
rights by arresting him without probable cause.
Although a private party may bring a § 1983 claim for an
arrest pursuant to an improperly issued arrest warrant, see
3794 SMITH v. ALMADA
Malley v. Briggs, 475 U.S. 335, 342 (1986), qualified immu-
nity shields the arresting officer from suit when he or she
“makes a decision that, even if constitutionally deficient, rea-
sonably misapprehends the law governing the circumstances.”
Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The doctrine
immunizes reasonable mistakes, thus freeing officers to
“make difficult decisions in challenging situations” without
allowing fear of liability to “disrupt[ ] the effective perfor-
mance of their public duties.” Mueller v. Auker, 576 F.3d 979,
993 (9th Cir. 2009).
In a garden-variety false arrest claim challenging the proba-
ble cause for an arrest, if the arrest warrant is facially valid,
the arresting officer enjoys qualified immunity unless “the
warrant application is so lacking in indicia of probable cause
as to render official belief in its existing unreasonable . . . .”
Malley, 475 U.S. at 344-45; see also KRL v. Estate of Moore,
512 F.3d 1184, 1190 (9th Cir. 2008) (“[A]n officer who pre-
pares or executes a warrant lacking probable cause is entitled
to qualified immunity unless no officer of reasonable compe-
tence would have requested the warrant.”). Here, however,
Smith does not contend that Sergeant Almada’s warrant appli-
cation lacked probable cause on its face. Instead, Smith
argues that Sergeant Almada misled the magistrate judge
when applying for the warrant, and had the magistrate consid-
ered all of the facts that the magistrate would not have found
probable cause.
[1] To maintain a false arrest claim for judicial deception,
a plaintiff must show that the officer who applied for the
arrest warrant “deliberately or recklessly made false state-
ments or omissions that were material to the finding of proba-
ble cause.” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir.
2004). The materiality element—a question for the court, see
id.—requires the plaintiff to demonstrate that “the magistrate
would not have issued the warrant with false information
redacted, or omitted information restored.” Lombardi v. City
of El Cajon, 117 F.3d 1117, 1126 (9th Cir. 1997). For exam-
SMITH v. ALMADA 3795
ple, in Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir.
2009), we concluded that a warrant application’s two false
statements about the plaintiff were not material because an
independent, reliable source’s detailed description of the inci-
dent and identification of the plaintiff at the scene were suffi-
cient to establish probable cause. Id. at 1224-25. And in
Lombardi, although a drug search warrant application failed
to mention that the two confidential informants—whose state-
ments were the only evidence that the plaintiff had drugs in
his home—had axes to grind with the plaintiff, we neverthe-
less held that the omitted information was immaterial because
the informants’ statements were given independently, were
detailed, were based on personal observation, were corrobo-
rated by one another, and were against one informant’s penal
interests. 117 F.3d at 1126-27.
Here, Smith contends that the magistrate would not have
issued the arrest warrant if Sergeant Almada’s warrant appli-
cation had not included false representations—that Nelson
had independently recalled her dispute with Smith and that
Smith’s tearful apologies were a tacit admission to the crime
—but instead had included (1) the details of the four dumpster
fires predating Smith’s altercation with Nelson, (2) the other
suspects in the February 2003 fire, and (3) the fact that Nelson
falsely claimed to have seen Smith gloating at the crime scene
several months after the fire.
[2] Yet even if Sergeant Almada falsified and omitted this
information (as Smith contends), the corrected report and
warrant application would still have contained facts sufficient
to establish probable cause to arrest Smith for arson. First,
even without Nelson’s testimony about the payment dispute
with Smith over his consigned items that occurred less than
one month before the fire—which would have been less credi-
ble in light of Nelson’s false report about Smith’s gloating—
Sergeant Almada’s corrected report still would have con-
tained Smith’s own admission of the dispute. And, more
importantly, Sergeant Almada’s corrected report would still
3796 SMITH v. ALMADA
have recounted that the firebombs contained numerous pieces
of mail from over a five-year period addressed over a five-
year period to Smith and his wife at their residence—a fact
that Smith could not explain to Almada or at trial. This evi-
dence linking Smith to the fire was sufficient to overcome any
negative inferences the magistrate might have drawn from the
earlier dumpster fires.
[3] These facts, together with the evidence of a motive,
gave probable cause to believe that Smith was guilty of arson.
Thus, because the changes suggested by Smith to Sergeant
Almada’s warrant application do not compel the conclusion
that “a neutral magistrate would not have issued the warrant,”
Lombardi, 117 F.3d at 1126, we conclude that the district
court properly granted summary judgment against Smith on
his false arrest claim.
B
Smith’s second claim is that Sergeant Almada’s false state-
ments and failure to disclose material information to the pros-
ecutor caused Smith’s malicious prosecution.
[4] A criminal defendant may maintain a malicious prose-
cution claim not only against prosecutors but also against
others—including police officers and investigators—who
wrongfully caused his prosecution. See Galbraith v. County of
Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). To main-
tain a § 1983 action for malicious prosecution, a plaintiff must
show that “the defendants prosecuted her with malice and
without probable cause, and that they did so for the purpose
of denying her [a] specific constitutional right.” Freeman v.
City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995); see
also Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-55
(9th Cir. 2009) (“[P]robable cause is an absolute defense to
malicious prosecution.”).
[5] As explained above, even after correcting for the alleg-
edly false and omitted information in Sergeant Almada’s war-
SMITH v. ALMADA 3797
rant application, probable cause supported Smith’s arrest for
arson. For the same reason, probable cause supported Smith’s
prosecution. Thus, the district court correctly granted sum-
mary judgment for Sergeant Almada on Smith’s malicious
prosecution claim.
C
Smith’s final claim is that Sergeant Almada violated his
due process rights by failing to disclose material exculpatory
evidence—in violation of Brady v. Maryland, 373 U.S. 83
(1963).
[6] Brady requires both prosecutors and police investiga-
tors to disclose exculpatory evidence to criminal defendants.
See Tennison v. City & County of San Francisco, 570 F.3d
1078, 1087 (9th Cir. 2009) (allowing § 1983 claim against
police inspector for Brady violation). To state a claim under
Brady, the plaintiff must allege that (1) the withheld evidence
was favorable either because it was exculpatory or could be
used to impeach, (2) the evidence was suppressed by the gov-
ernment, and (3) the nondisclosure prejudiced the plaintiff.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). As to the
prejudice prong, the Supreme Court has stated that “strictly
speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable proba-
bility that the suppressed evidence would have produced a
different verdict.” Id. at 281.
Here, Smith contends that Sergeant Almada should have
disclosed the four previous dumpster fires that occurred on
October 7, 2002, October 15, 2002, November 21, 2002, and
November 25, 2002. In investigating these fires, Almada
received three suspect descriptions that neither matched each
other nor matched Smith. Smith also says that Almada should
have disclosed Nelson’s false statement that she saw Smith
gloating at the crime scene. Smith argues that had Sergeant
Almada disclosed this information, the jury in Smith’s first
3798 SMITH v. ALMADA
trial would have acquitted him (or, at the very least, the judge
in Smith’s first trial would have dismissed the case immedi-
ately after the mistrial), and thus Smith would not have
remained in jail for five months until his second trial.
In considering Smith’s Brady claim, District Court Judge
Howard Matz found that “Almada is not liable under Brady
because the evidence he omitted or misstated would not have
materially affected the outcome of the criminal prosecution.”
We agree.
[7] Smith’s Brady-based § 1983 claim fails because he has
not shown that the withheld evidence was material. First, the
evidence of the suspects’ descriptions in the previous dump-
ster fires is not material because it does nothing to undermine
the strong physical evidence—i.e., the numerous pieces of
mail—linking Smith to the February 2003 fire. Nor does it
call into question evidence suggesting Smith’s motive: Smith
himself admitted that he had a dispute with Nelson less than
three weeks before the fire.
Second, several differences between the February 2003 fire
and the earlier fires undermine the inference that there was
one dumpster arsonist or that one of the dumpster arsonists
started the February 2003 fire. Although Sergeant Almada
reported that one of the dumpster fires may have been started
with an incendiary device in a plastic container, the similari-
ties between the fires end there. The dumpster fires occurred
in quick succession over a few weeks; the February 2003 fire
occurred three months later. The dumpster fires barely dam-
aged the building’s interior; the February 2003 fire ravaged
Simply Sofas. Witnesses to the dumpster fires described vari-
ous suspects with very different appearances, suggesting there
was no repeat offender who might have later started the Feb-
ruary 2003 fire. And Nelson did not identify any of the dump-
ster fire suspects as having a grudge against her—and thus a
motive to target Nelson’s store itself.
SMITH v. ALMADA 3799
[8] More importantly, Smith does not show that any failure
to disclose the earlier fires had any effect. Even without a
prosecution disclosure of the earlier fires, Smith’s attorney
otherwise knew about the October 15, 2002 fire and sought to
introduce evidence of that fire at trial. In response to Smith’s
offer of evidence regarding the October 15 fire, the prosecutor
moved the state trial court to exclude evidence of that fire
because there was no “direct or circumstantial evidence link-
ing the third person to the actual perpetration of the crime.”
See People v. Hall, 718 P.2d 99, 104 (Cal. 1986). The state
trial court agreed and excluded the evidence. Thus, Smith’s
attorney knew of at least one earlier fire, and evidence of
those earlier fires was likely inadmissible under California
evidence law in any case. In sum, we cannot say that had Ser-
geant Almada disclosed evidence of the earlier dumpster fires,
the outcome of Smith’s first trial would have been different.
[9] We are more troubled by Sergeant Almada’s failure to
disclose Nelson’s false account of Smith’s gloating at the
crime scene. Importantly, Nelson did not testify about the
gloating incident at Smith’s first trial. Thus, evidence of her
false account could have been used only to impeach Nelson’s
character for truthfulness. See Fed. R. Evid. 608(b)(1). But
Nelson’s testimony was not crucial at Smith’s trial. Although
Nelson’s account of her business dispute with Smith helped
establish a motive for Smith to commit the arson, Smith him-
self admitted the dispute to Sergeant Almada and Almada tes-
tified about his interviews with Smith. Moreover, even if the
jury discredited all of Nelson’s testimony, it still possessed
the important and unexplained evidence linking Smith to the
fire: the numerous pieces of mail from over a five-year period
addressed to Smith and his wife at their residence.
[10] Even if Sergeant Almada had disclosed Nelson’s false
account of Smith’s gloating at the crime scene before Smith’s
first trial, we do not find “a reasonable probability of a differ-
ent result.” Banks v. Drake, 540 U.S. 668, 699 (2004). Alma-
da’s failure to disclose the evidence does not sufficiently
3800 SMITH v. ALMADA
undermine our confidence in the outcome of Smith’s trial. Str-
ickler v. Greene, 527 U.S. 263, 289 (1999) (plaintiff must
show “there is a reasonable probability that the result of the
trial would have been different if the suppressed documents
had been disclosed to the defense”). Hence, because the evi-
dence that Sergeant Almada failed to disclose was not mate-
rial, we hold that the district court correctly granted summary
judgment for Sergeant Almada on Smith’s Brady claim.
III
For the reasons above, we affirm the district court’s grant
of summary judgment to Appellee Sergeant Almada.
AFFIRMED.
GOULD, Circuit Judge, concurring:
I concur in Judge Gwin’s opinion. I add this separate con-
currence to point out that I think the substantive idea in Judge
Gwin’s separate concurrence is a good one, and that I would
personally be inclined to follow the united view of all circuits
to have reached that issue. See Morgan v. Gertz, 166 F.3d
1307, 1310 (10th Cir. 1999); Flores v. Satz, 137 F.3d 1275,
1278 (11th Cir. 1998); McCune v. City of Grand Rapids, 842
F.2d 903, 907 (6th Cir. 1988). But cf. Mosley v. City of Chi-
cago, 614 F.3d 391, 397 (7th Cir. 2010) (declining to decide
the issue). Nonetheless, on reconsideration I decline to reach
the issue at this time. Several colleagues on our court have
urged that the issue be left open, and I haven’t seen a state-
ment from any colleague urging that we decide the issue now.
In light of these objections from some colleagues and because
the substantive idea that a conviction is a prerequisite to a
Brady claim is not needed to decide this appeal, I have with-
drawn my precedential support for that idea so that it can be
addressed on a fresh slate in some other case.
SMITH v. ALMADA 3801
GWIN, District Judge, specially concurring:
With the motion for rehearing, Judge Gould has withdrawn
his concurrence in the holding that a Brady claim cannot be
made where there has not been a conviction. Some wisdom
supports avoiding constitutional questions where cases can be
decided on other grounds. See Ashwander v. TVA, 297 U.S.
288, 347 (1936) (Brandeis, J., concurring) (“The Court will
not pass upon a constitutional question although properly
presented by the record, if there is also present some other
ground upon which the case may be disposed of”); see also
Citizens United v. Federal Election Com’n, ___ U.S. ___, 130
S.Ct. 876, 937 (2010) (Stevens, J., concurring in part and dis-
senting in part.)
Until recently, however, we would have been required to
address the constitutional issue before addressing any Section
1983 immunity issue. See Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled by Pearson v. Callahan, 555 U.S. 223
(2009). And, deciding the materiality issue somewhat begs the
question: material to what constitutional right? See, e.g., Stop
the Beach Renourishment, Inc. v. Florida Dept. of Environ-
mental Protection, ___ U.S. ___, 130 S.Ct. 2592, 2604 (2010)
(“In sum, Justice BREYER cannot decide that petitioner’s
claim fails without first deciding what a valid claim would
consist of.”) Because Plaintiff Smith must show both a viola-
tion of a constitutional right and that the failure to disclose
was material, I believe we should have addressed whether a
constitutional right was impaired before moving to whether
any violation was material.
In addition to finding that the non-disclosed evidence was
insufficiently important to undermine confidence in the out-
come of Smith’s trial, I would also find that Smith cannot
make a Brady claim where there has been no conviction.
Smith makes a novel argument. In most Brady-based
§ 1983 claims, the plaintiff has suffered a criminal conviction,
3802 SMITH v. ALMADA
arguably because the government failed to disclose exculpat-
ing evidence. But no jury ever convicted Smith. Instead,
Smith says he was injured by the five months he spent in jail
after the first trial and until the judge in his second trial dis-
missed the charges against him.
Three of our sister circuits have found that a defendant who
is ultimately acquitted cannot maintain a Brady claim. See
Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)
(“Regardless of any misconduct by government agents before
or during trial, a defendant who is acquitted cannot be said to
have been deprived of the right to a fair trial.”); Flores v. Satz,
137 F.3d 1275, 1278 (11th Cir. 1998) (“Plaintiff . . . was
never convicted and, therefore, did not suffer the effects of an
unfair trial. As such, the facts of this case do not implicate the
protections of Brady.”); McCune v. City of Grand Rapids, 842
F.2d 903, 907 (6th Cir. 1988) (holding that “[b]ecause the
underlying criminal proceeding terminated in appellant’s
favor, he has not been injured by the act of wrongful suppres-
sion of exculpatory evidence” and thus cannot maintain
Brady-based § 1983 claim); cf. also Taylor v. Waters, 81 F.3d
429, 435-36 (4th Cir. 1996) (finding that no settled Fourth
Amendment authority prohibited officer from withholding
exculpatory evidence from § 1983 plaintiff who was never
tried on underlying criminal charges). No known cases have
allowed a Brady-based § 1983 claim where there has not been
a conviction.1
Moreover, although the Seventh Circuit has not completely
foreclosed Brady-based § 1983 claims without a conviction,
1
With her dissent, Judge Nelson relies only upon cases—most of them
habeas cases—where there had been a conviction. See, e.g. Kyles v. Whit-
ley, 514 U.S. 419 (1995) (Habeas action where petitioner had been con-
victed of murder and sentenced to death.); Brady v. Maryland, 373 U.S.
83 (1963) (Same); United States v. Agurs, 427 U.S. 97 (1976) (Same);
Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006) (Same); Giglio v. United
States, 405 U.S. 150 (1972) (Direct appeal after conviction for passing
forged money orders).
SMITH v. ALMADA 3803
it requires the plaintiff to show that no trial would have
occurred if police had disclosed the exculpatory or impeach-
ment evidence. See Bielanski v. County of Kane, 550 F.3d
632, 644 (7th Cir. 2008) (expressing doubt that “ ‘an acquitted
defendant can ever establish the requisite prejudice for a
Brady violation,’ ” but concluding that plaintiff’s claim fails
where “the decision to go to trial would not have been
affected by the allegedly withheld evidence”) (citation omit-
ted); Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir.
2010) (same).
These courts logically find that an acquitted defendant fails
to establish a Brady violation because he cannot show “that
the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confi-
dence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435
(1995) (emphasis added). See also Banks v. Drake, 540 U.S.
668, 699 (2004) (“[Defendant] must show a reasonable proba-
bility of a different result.”); Strickler v. Greene, 527 U.S.
263, 289 (1999) (plaintiff must show “there is a reasonable
probability that the result of the trial would have been differ-
ent if the suppressed documents had been disclosed to the
defense”).
These decisions accord with the purpose of Brady. At its
core, Brady seeks to ensure a fair trial, a trial whose verdict
is reliable. As the Brady Court explained: “The principle . . .
is not punishment of society for misdeeds of a prosecutor but
avoidance of an unfair trial to the accused.” Brady, 373 U.S.
at 87-88.
In dissent, Judge Nelson seems to argue that Brady requires
punishment of police or prosecutors when they fail to turn
over arguably exculpatory evidence, even where no convic-
tion results. Judge Nelson says that if Brady is not interpreted
to allow civil actions where there has been no conviction, it
will give “perverse incentives for police and prosecutors who
believe they will not successfully convict a particular criminal
3804 SMITH v. ALMADA
defendant [ ] to suppress evidence, knowing that the suppres-
sion would not result in a successful Brady claim and the sus-
pect would at least be subject to a lengthy criminal trial.”2
But, of course, this presupposes that police or prosecutors
would, or could, accurately calculate whether a conviction
would occur—and they would make this calculation knowing
that if they were wrong in predicting acquittal and a convic-
tion resulted instead, they would face civil liability for their
Brady violation. It seems extraordinarily unlikely that police
or prosecutors make this calculation.
And, as described below, we allow false arrest and mali-
cious prosecution claims where police or prosecutors lack
probable cause to arrest or prosecute defendants. Such claims
better focus consideration to the appropriate issue: did the
undisclosed Brady material undermine probable cause to
arrest or prosecute Smith.
Against this backdrop, Smith says our decision in Haupt v.
Dillard, 17 F.3d 285 (9th Cir.1994), allows his Brady claim
even though he never suffered a conviction. I believe Haupt
distinguishable, find it was based upon a Supreme Court hold-
ing that has since been overruled, and find little reason to
apply it to this case.
In Haupt, during a conference on jury instructions for
Haupt’s murder trial, the judge indicated to counsel that he
intended to give the jury an instruction recommending acquit-
tal. 17 F.3d at 287. The prosecutor objected, and the investi-
gating police officer later telephoned the judge and told the
judge to say that giving an acquittal recommendation would
be ridiculous. Id. The judge declined to give the recommenda-
tion, noting that he felt intimidated by the officer’s statement.
2
Although I have presided over at least 400 state and federal felony
trials—including a large number that resulted in acquittals—I admit that
I am less capable of predicting an acquittal than the police officers
described by Judge Nelson.
SMITH v. ALMADA 3805
Id. Nevertheless, the jury acquitted the defendant, who then
brought a § 1983 claim against the officer for depriving him
of the right to a fair trial. Id.
We held that the plaintiff stated a claim for violation of his
due process right to a fair trial—i.e., the right to “get the unbi-
ased judge to which he was entitled,” id.—and that his acquit-
tal “sp[o]k[e] only to the amount of damages he suffered” and
was “irrelevant to whether he has a cause of action,” id.3
In reaching this conclusion, we relied upon Cooper v. Dup-
nik, 963 F.2d 1220 (9th Cir. 1992) (en banc), a case that
allowed a § 1983 action for a Miranda violation even though
the suspect was never charged and the statement was never
used. But in 2003—after Haupt—the Supreme Court over-
ruled Cooper. See Chavez v. Martinez, 538 U.S. 760, 766
(2003) (Thomas, J.) (“We fail to see how, based on the text
of the Fifth Amendment, Martinez can allege a violation of
this right, since Martinez was never prosecuted for a crime, let
alone compelled to be a witness against himself in a criminal
case.”); id. at 778-79 (Souter, J., concurring in judgment) (“I
do not . . . believe that Martinez can make the ‘powerful
showing,’ subject to a realistic assessment of costs and risks,
necessary to expand protection of the privilege against com-
pelled self-incrimination to the point of the civil liability he
asks us to recognize here.”).
Thus, Haupt is distinguishable because it involved a claim
for violation of the general due process right to a fair trial—
not, as here, a Brady claim. Moreover, Haupt relied upon
authority that has since been overruled. Finally, Haupt is
inconsistent with Brady’s rationale of ensuring a verdict wor-
thy of confidence. I do not believe this Court should extend
Haupt to Smith’s Brady claim.
3
On its own terms, Haupt seems questionable, even when Cooper was
good law. While ex parte contacts from an investigating police officer to
a judge are completely improper, the judge ultimately had the responsibil-
ity to properly instruct the jury.
3806 SMITH v. ALMADA
In addition, extending Brady to cases without a conviction
makes the materiality standard far less workable. In Smith’s
case, to show a reasonable probability that the result of the
first trial would have been different, Smith would need to
show that none of the jurors in his first trial would have voted
to convict if presented with Nelson’s false claim that she saw
Smith gloating at the fire scene. Such a calculation (whether
there is a reasonable probability that the undisclosed evidence
would have caused all the jurors to acquit) is significantly dif-
ferent from the calculation in a post-conviction Brady claim
(whether there is a reasonable probability that the undisclosed
evidence would have caused a single juror to vote to acquit).
Allowing Brady-based § 1983 claims without a conviction
would open the door to a potentially unlimited number of
such claims for decisions at every stage of the criminal pro-
cess. If a police officer failed to disclose victim statements
until the start of trial (resulting in a mistrial), and the defen-
dant was jailed for 530 days before retrial but ultimately
acquitted, would the defendant have a § 1983 claim? See Wil-
liams v. Krystopa, No. 98-CV-1119, 1998 WL 961375, at *4
(E.D. Pa. Dec. 16, 1998) (“Plaintiff ultimately did receive a
fair trial because [the victim] statement was uncovered in time
for its effective use at trial. Moreover, the trial court was able
to reach a just conclusion: it declared a mistrial when testi-
mony showed Plaintiff had not received the witness state-
ments, and held a full trial at which Plaintiff, then in
possession of the statements, was acquitted. . . . [J]ustice
finally did prevail and Plaintiff received a fair trial and a ver-
dict worthy of confidence. . . . [Thus,] no Brady violation
occurred.”), aff’d 211 F.3d 1263 (3d Cir. 2000) (unpublished).
Would a police officer’s failure to provide a defendant with
exculpatory evidence support a § 1983 claim where the defen-
dant incurred defense costs but the criminal charges were dis-
missed before trial? See Morgan, 166 F.3d at 1310 (in cases
where all criminal charges were dismissed prior to trial,
“courts have held universally that the right to a fair trial is not
implicated and, therefore, no cause of action exists under
SMITH v. ALMADA 3807
§ 1983”) (citing cases). Our inability to find a principled way
to limit these types of Brady claims is therefore a further rea-
son against recognizing the claim Smith makes here.
Recognizing Brady as a post-conviction right does not fore-
close all constitutional remedies where a defendant has been
tried but not convicted. Where a criminal defendant believes
that withheld exculpatory evidence has caused charges to be
brought and maintained against him, but no conviction has
resulted, his remedy would flow from a false arrest or mali-
cious prosecution claim, and not from Brady.
Indeed, on appeal and as discussed above, Appellant Smith
principally argues that the district court erred in granting sum-
mary judgment on Smith’s false arrest and malicious prosecu-
tion claims. And in some circumstances, a law enforcement
official’s non-disclosure could support a false arrest claim,
although Smith would need to show that “the magistrate
would not have issued the warrant with false information
redacted, or omitted information restored.” Lombardi v. City
of El Cajon, 117 F.3d 1117, 1126 (9th Cir. 1997).
And, even without a right under Brady to make a claim for
non-disclosure without a conviction, Smith could also make
a claim for malicious prosecution. Indeed, maintaining a suc-
cessful malicious prosecution claim requires that the defen-
dant be acquitted, or at least that the criminal proceedings did
not result in his conviction. See Restatement (Second) of
Torts, 653 (1977). But, like false arrest claims, “probable
cause is an absolute defense to malicious prosecution.” Las-
siter v. City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir.
2009).
Thus, a damaged defendant can obtain a remedy for the
non-disclosure of evidence, irrespective of his conviction or
acquittal. Where non-disclosure of exculpatory evidence leads
to a defendant’s conviction, he may certainly bring a claim
under Brady. When the non-disclosure leads to a mistrial or
3808 SMITH v. ALMADA
acquittal, the defendant’s opportunity for constitutional rem-
edy lies in claiming malicious prosecution or wrongful arrest,
but the non-disclosure in such cases should not support a
Brady claim.
In sum, allowing Brady-based § 1983 claims without a con-
viction is not compelled by our circuit’s case law, conflicts
with other circuits’ case law and the central purpose of Brady,
would render Brady’s materiality standard significantly less
workable, and lacks a limiting principle. I would therefore not
allow § 1983 claims for alleged Brady violations by a defen-
dant who is ultimately acquitted.
D.W. NELSON, Circuit Judge, dissenting:
I respectfully dissent. I disagree with the majority’s assess-
ment of the materiality of the suppressed evidence in this
case. I also strongly disagree with Judge Gwin’s concurrence
regarding the scope of Brady. These issues will be addressed
in turn.
From the start, however, it is important to note that this is
a case in which the defendant spent over seventeen months in
jail, from the date he was charged in July 2003, through two
trials resulting in hung juries, until the trial judge finally dis-
missed the case on December 14, 2004. Even absent the with-
held evidence, seven jurors voted to acquit Smith in the first
trial. In the second trial, eleven out of twelve jurors voted to
acquit him. The majority holds that the suppressed evidence
was immaterial, despite the fact that this evidence could have
been used to impeach the credibility of Marilyn Nelson, the
witness whose testimony was used to establish Smith’s
motive for committing the crime in the first place. Absent
police misconduct, I believe there is a reasonable probability
that Smith would have been acquitted. Therefore, I dissent.
SMITH v. ALMADA 3809
I
Smith argues that Sergeant Almada violated his due process
rights by failing to disclose material exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). Such evi-
dence is material under Brady if (1) it is favorable to the
accused either because it is exculpatory or impeaching, (2) it
was suppressed by the government, and (3) prejudice ensued
as a result. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
In this case, there is no debate as to whether the suppressed
evidence was favorable to Smith or suppressed by the State.
The only issue is whether the suppression of the evidence was
prejudicial.
The Supreme Court has made it clear that prejudice is
established “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the pro-
ceeding would have been different.” Id. at 280 (internal quo-
tations marks and citations omitted); see also Banks v. Dretke,
540 U.S. 668, 698-99 (2004). In addressing this reasonable
probability standard, the Court has emphasized that the “ad-
jective is important.” Kyles v. Whitley, 514 U.S. 419, 434
(1995). In other words, “[t]he question is not whether the
defendant would more likely than not have received a differ-
ent verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict
worthy of confidence.” Id. (emphasis added). The relevant
question is whether the government’s evidentiary suppression
“undermines confidence in the outcome of the trial.” Id.
(internal quotations marks and citations omitted). In this case,
Sergeant Almada’s evidentiary suppression did just that.
Even if we ignore the evidence of the earlier fires, as the
majority would have us do, the failure to disclose Nelson’s
false account of Smith’s gloating at the crime scene was prej-
udicial. In dismissing this evidence as immaterial, the major-
ity contradicts itself by simultaneously insisting that Nelson’s
testimony was not crucial at Smith’s trial and that her testi-
3810 SMITH v. ALMADA
mony helped establish a motive for Smith to commit the
arson. Had Almada properly disclosed this evidence, Smith
could have used it at trial to impeach Nelson’s credibility as
a witness. If she was mistaken about Smith’s presence at the
crime scene after the fire, perhaps she was also mistaken
about Smith’s comportment during the dispute over the bro-
ken consignment item. In other words, the suppressed evi-
dence would have gone a long way towards undermining the
other evidence of Smith’s alleged motive. Without that, the
only connection between Smith and the crime is the peculiar
physical evidence found in the incendiary device. Under these
circumstances, there is a reasonable probability that the jury
in either of Smith’s criminal trials would have acquitted him.
This is particularly true when one considers the way the
jurors voted in Smith’s criminal trials even in the absence of
the withheld evidence. A proper application of the reasonable
probability standard to this case would have taken into
account the fact that the majority of jurors voted to acquit
Smith in both of his trials. Even if the majority does not find
a reasonable probability of a different outcome in Smith’s
first trial, where seven jurors voted to acquit him, it is difficult
to see how he has not established a reasonable probability
regarding his second trial, where eleven out of twelve jurors
voted for acquittal.
What is more, the case relied upon by the majority for a
finding of immateriality is easily distinguishable from the
facts of this case. In Strickler, there was far more forensic and
physical evidence linking the defendant to the crime, and the
witness whose impeachment was at issue offered testimony
that was cumulative. 527 U.S. at 292-94. In the case at hand,
where the withheld evidence impeaches the credibility of the
witness whose testimony was used to establish motive, and
eleven jurors out of twelve voted for acquittal even absent the
withheld evidence, there is a reasonable probability of a dif-
ferent outcome. In my view, the panel should have held that
the evidence Almada failed to disclose was material.
SMITH v. ALMADA 3811
II
Because I believe the suppressed evidence was material, I
would also reach the question of whether Brady applies in sit-
uations where there has not been a criminal conviction.1 This
is a question of first impression in the Ninth Circuit.
As Judge Gwin’s concurrence indicates, he would hold that
a Section 1983 suit can never be based on an alleged Brady
violation if the plaintiff was not ultimately convicted. In order
to substantiate this view, the concurrence is forced to rely
upon the supposed internal logic of Brady itself and the cur-
sory analysis offered by a few other circuits. In effect, the
concurrence reduces Brady to a post hoc remedy for criminal
defendants who have been subject to an “unfair trial,” Flores
v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998), defined nar-
rowly as a trial resulting in a conviction. Morgan v. Gertz,
166 F.3d 1307, 1310 (10th Cir. 1999). This approach is based,
however, on the logical fallacy that the lack of a conviction
necessitates the conclusion that the trial was “fair” for the pur-
poses of Brady. Such a narrow rule would exclude acquittals,
hung juries, and even situations in which a judgment of con-
viction was simply never entered, id., thereby replacing
Brady’s broad due process pronouncements with a results-
oriented test that loses sight of the roles that police and prose-
cutors play in “shap[ing] a trial that bears heavily on the
defendant,” whatever the verdict. Brady v. Maryland, 373
U.S. 83, 88 (1963).
To further justify this reductive reading of Brady, the con-
currence contends that drawing the line at criminal convic-
1
Because the majority concludes that the exculpatory evidence withheld
from Smith was not material, it is unnecessary to use this case to define
the scope of Brady. Until we are faced with a case that would otherwise
meet the Brady requirements, as construed by the majority, we need not
decide whether Brady applies when an unfair trial results in anything other
than a conviction.
3812 SMITH v. ALMADA
tions is the only way to keep the floodgates shut on Brady-
based Section 1983 claims. This argument ignores, of course,
the limits set by the Brady requirements themselves: that the
evidence was (1) favorable either because it was exculpatory
or impeaching, (2) suppressed by the government, and (3) the
nondisclosure prejudiced the plaintiff. Strickler v. Greene,
527 U.S. 263, 281-82 (1999). As evidenced by the majority’s
view of the facts in this case, materiality itself serves suffi-
ciently to restrict the scope of the right afforded by Brady.
The presence or absence of a conviction merely speaks to the
likelihood of showing a violation.
On balance, the precedent in the Supreme Court and in our
Circuit cuts against the idea that the right to the disclosure of
exculpatory evidence is vitiated simply because a conviction
does not result. See Kyles, 514 U.S. at 434 (“The question is
not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial result-
ing in a verdict worthy of confidence.”); Brady, 373 U.S. at
87 (stating that purpose of the rule against suppression of evi-
dence is “avoidance of an unfair trial to the accused”); United
States v. Agurs, 427 U.S. 97, 104 (1976) (part of the concern
is preventing “corruption of the truth-seeking function of the
trial process”); Morris v. Ylst, 447 F.3d 735, 742 (9th Cir.
2006) (“The animating purpose of Brady is to preserve the
fairness of criminal trials.”) (citations omitted); Haupt v. Dil-
lard, 17 F.3d 285, 287 (9th Cir. 1994) (“The fact that Haupt
ultimately was acquitted speaks only to the amount of dam-
ages he suffered; it is irrelevant to whether he has a cause of
action.”).2
2
The concurrence tries to distinguish Haupt in part because it was based
on a Supreme Court decision that has been overruled by Chavez v. Marti-
nez, 538 U.S. 760 (2003). However, Martinez was based on a reading of
the Fifth Amendment’s requirement that “[n]o person . . . be compelled
in any criminal case to be a witness against himself.” Id. at 766 (emphasis
in original) (internal quotations omitted). The Supreme Court found a
criminal case to commence with the initiation of legal proceedings, not
with police questioning. The case does not control the question whether
a criminal defendant can assert a constitutional violation where the trial
results in acquittal.
SMITH v. ALMADA 3813
Brady pursues two interdependent goals: it is a judicially
enforced mechanism for both protecting the right to a fair trial
and discouraging misconduct on the part of police and prose-
cutors. It is hard to imagine protecting this right without also
discouraging misconduct. The concurrence would, neverthe-
less, have us believe that Brady’s broad statements about due
process can be reduced to a backward-looking check on only
the most egregious instances of evidentiary suppression—
those that result in a conviction. This approach not only dis-
torts Brady and its progeny;3 it also creates perverse incen-
tives for police and prosecutors who believe they will not
successfully convict a particular criminal defendant—in
which case it would make sense to suppress evidence, know-
ing that the suppression would not result in a successful Brady
claim and the suspect would at least be subject to a lengthy
criminal trial.
The fact that a defendant is fortunate enough to escape con-
viction does not absolve the state of responsibility for the
breach of its Brady obligations. The individual’s right to a fair
trial, mandated by the due process clause of the Fifth Amend-
ment, does not hinge on the outcome of criminal proceedings.
In the case at hand, the harm suffered by Smith is obvious,
and I cannot conclude that his right to a fair trial was not vio-
lated, simply because his trials did not result in a conviction.
Again, Smith spent over seventeen months in custody, from
the date he was charged in July 2003, through two trials
resulting in hung juries, until the trial judge finally dismissed
the case on December 14, 2004. Absent police misconduct,
Smith might have been acquitted. The two juries knew about
3
Since Brady was decided in 1963, the Supreme Court has repeatedly
expanded upon its initial insight, holding that the Constitution also
requires the disclosure of impeachment evidence, Giglio v. United States,
405 U.S. 150, 154 (1972), evidence possessed by the government even if
not by the prosecutor, Kyles, 514 U.S. at 438, and evidence not specifi-
cally requested by the defense, Agurs, 427 U.S. at 107.
3814 SMITH v. ALMADA
his dispute with Nelson, but they did not know about Nelson’s
false identification of Smith. Withholding this evidence is
precisely the type of conduct that “undermines confidence in
the outcome of [a] trial.” United States v. Bagley, 473 U.S.
667, 678 (1985).
Because the majority holds that the suppressed evidence
was immaterial, it was right to avoid the broader question
regarding the scope of Brady. Because I would find that the
suppressed evidence was material, and that Smith is entitled
to seek recovery on the grounds that the government violated
its Brady obligations, however, I dissent.