FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO CARRILLO, JR., No. 12-57229
Plaintiff-Appellee,
D.C. No.
v. 2:11-cv-10310-
SVW-AGR
COUNTY OF LOS ANGELES; CRAIG
DITSCH,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
FRANK O’CONNELL; NICHOLAS No. 13-56817
O’CONNELL,
Plaintiffs-Appellees, D.C. No.
2:13-cv-01905-
v. MWF-PJW
J. D. SMITH; ERIC PARRA; COUNTY
OF LOS ANGELES, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
2 CARRILLO V. CTY. OF LOS ANGELES
Argued and Submitted
June 4, 2015—Pasadena, California*
Filed August 26, 2015
Before: Raymond C. Fisher, Jay S. Bybee
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Fisher
SUMMARY**
Civil Rights
The panel affirmed the district court’s denial of qualified
immunity to police officers in two separate actions brought
under 42 U.S.C. § 1983 by plaintiffs, each of whom had been
wrongfully imprisoned for decades before eventually securing
habeas relief.
Plaintiffs alleged that police officers failed to disclose
evidence that would have cast serious doubt on the testimony
of key prosecution witnesses. The panel held that the law in
1984 clearly established that police officers had to disclose
material, exculpatory evidence under Brady v. Maryland, 373
*
We heard these cases together and now consolidate them for
disposition. See Fed. R. App. P. 3(b)(2); Mattos v. Agarano, 661 F.3d
433, 436 n.1 (9th Cir. 2011) (en banc).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CARRILLO V. CTY. OF LOS ANGELES 3
U.S. 83 (1963), and that any reasonable officer would have
understood that Brady required the disclosure of the specific
evidence allegedly withheld in these cases.
COUNSEL
Paul B. Beach, Michael D. Allen (argued), George E. Morris
Jr., Lawrence Beach Allen & Choi, PC, Glendale, California,
for Defendants-Appellants J.D. Smith and Eric Parra.
David D. Lawrence, Jin S. Choi (argued), Lawrence Beach
Allen & Choi, PC, Glendale, California, for Defendant-
Appellant Craig Ditsch.
Barrett S. Litt (argued), Lindsay B. Battles, Kaye, McLane,
Bednarski & Litt, LLP, Pasadena, California, for Plaintiffs-
Appellees Frank and Nicholas O’Connell.
Ronald O. Kaye, Marilyn E. Bednarski, Caitlin S. Weisberg,
Barrett S. Litt (argued), Kaye, McLane, Bednarski & Litt,
LLP, Pasadena, California, for Plaintiff-Appellee Francisco
Carrillo, Jr.
OPINION
FISHER, Circuit Judge:
Frank O’Connell and Francisco Carrillo were wrongfully
imprisoned for decades before eventually securing habeas
relief. After release, they separately brought suit under
42 U.S.C. § 1983 in federal district court against the police
investigators involved in their respective cases, arguing in
4 CARRILLO V. CTY. OF LOS ANGELES
part the officers failed to disclose evidence that would have
cast serious doubt on the testimony of key prosecution
witnesses.1 The defendant officers asserted qualified
immunity, arguing the law at the time of the investigations
did not clearly establish the duty of police officers to disclose
material, exculpatory evidence under Brady v. Maryland,
373 U.S. 83 (1963). The district court denied judgment on
the pleadings in O’Connell’s case and summary judgment in
Carrillo’s case, concluding the officers’ duty to disclose
Brady evidence was clearly established at the time of the
investigations. The officers challenge these determinations
on appeal.2
We conclude, first, that the law at the time of the
investigations clearly established that police officers had to
disclose material, exculpatory evidence under Brady, and
second, that any reasonable officer would have understood
that Brady required the disclosure of the specific evidence
allegedly withheld. We therefore affirm the denials of
qualified immunity and remand these cases to the district
court for further proceedings.
1
O’Connell’s son, Nicholas O’Connell, is also party to the suit; he seeks
compensation for the “wrongful denial of the society and comfort of, and
companionship and familial relationship with, his father” as a result of his
father’s wrongful conviction and incarceration.
2
A district court’s denial of a claim of qualified immunity is
immediately appealable under 28 U.S.C. § 1291 notwithstanding the
absence of a final judgment. See Mitchell v. Forsyth, 472 U.S. 511, 530
(1985).
CARRILLO V. CTY. OF LOS ANGELES 5
BACKGROUND3
I. O’Connell
In January 1984, Jay French was murdered in the parking
lot of his apartment building. Los Angeles County Sheriff’s
Department (LASD) homicide detectives J.D. Smith and
Gilbert Parra were responsible for investigating the murder.
Smith and Parra discovered French was in a heated battle
over the custody of his children with his ex-wife, Jeanne
Lyon, and that Lyon had called French’s home on the
morning of the murder. During their investigation, the
officers discovered Lyon had been romantically involved
with Frank O’Connell the previous summer. The eyewitness
descriptions of the killer matched O’Connell, and he was
ultimately charged with French’s murder. The case
proceeded to a bench trial.
At trial, the prosecution introduced evidence that French
had shouted, as he lay dying, that “that fucker in the yellow
Pinto shot me,” and that “he was going to have to die and it
had something to do with Jeanne [Lyon], it looked like
somebody she hangs around with or somebody she hung
around with.”4 Through the testimony of several witnesses,
including Daniel Druecker, Alec Sanchez, Arturo Villareal
and Maurice Soucy, the prosecution pinned the crime to
O’Connell.
3
At this stage, we assume the version of material facts asserted by the
plaintiffs, who are the non-moving parties. See KRL v. Estate of Moore,
512 F.3d 1184, 1189 (9th Cir. 2008).
4
The complaint does not make clear which witness testified about
French’s dying declaration.
6 CARRILLO V. CTY. OF LOS ANGELES
Druecker, who lived in French’s apartment building, was
the only witness to the shooting itself. At trial, he described
the shooter as a tall Caucasian man in his thirties with brown
shoulder-length hair. He identified O’Connell as the killer at
trial and testified he had selected O’Connell from a photo
lineup shown to him by the officers.
Sanchez, a flagman in the area, reported and later testified
he had witnessed a yellow Pinto station wagon with faded
wooden sides fleeing the scene of the crime. He described
the driver as a woman with blond hair and her companion as
a white male with long curly brown hair. He was unable to
identify O’Connell or anyone else as the passenger in the car.
Villareal, a deliveryman, also saw the shooter leave the
scene of the crime in a Pinto. He testified that, when the
investigators showed him a photo lineup, he selected two
photos and told the officers he “couldn’t be positive” which
was the shooter. He also testified he could not identify
O’Connell as the person he saw the day of the murder.
Detective Smith countered this testimony, testifying Villareal
had chosen only one photo from the lineup. He read from a
police report that represented Villareal as remarking that
O’Connell was “the strongest contender, and I’m sure that’s
him.”
Finally, Soucy, a neighbor of Lyon’s, testified. Soucy
recalled seeing a tall white man who drove a yellow Pinto in
his apartment complex on several occasions. Soucy further
testified he had seen the man who drove the Pinto kissing
Lyon, and that he had seen the car parked near Lyon’s
apartment on several occasions. He identified O’Connell in
court as the man he had seen driving the Pinto.
CARRILLO V. CTY. OF LOS ANGELES 7
O’Connell was convicted of murder following his bench
trial. Over 20 years later, he filed a state habeas petition,
alleging in part that the investigating officers failed to
disclose material, exculpatory evidence that would have
undermined the witnesses’ trial testimony and cast suspicion
on an alternative suspect.
At an evidentiary hearing on O’Connell’s habeas petition,
Druecker testified, offering information that would have
significantly undercut his identification of O’Connell at trial.
He recalled he had been working on his car on the day French
was shot and was not wearing contacts or glasses, which he
generally needed because he was nearsighted. He was
leaning into the driver’s side of his car when he heard a loud
“pop,” which he thought was a firecracker. He got out of the
car to see French running and screaming that he had been
shot. A man immediately behind French stopped, raised a
gun and pointed it, when Druecker heard another bang.
Druecker ducked behind a car. As a result, he saw the
shooter only in left profile and described him as tall, with
long, dark hair and carrying a long-barreled gun. Because
Druecker had never seen a gun, he was focused on the
weapon.
An officer on the scene asked whether Druecker had seen
anything. Druecker said he thought he could identify the
shooter but was not certain. Two officers (later identified as
Smith and Parra) came to Druecker’s apartment to ask for a
description of the shooter. Druecker told them he could not
remember what the shooter looked like and asked if the
officers could put him under hypnosis, which they refused to
do. He testified the officers “kept calling him,” and
eventually came back on their own one morning with photos
of six men. Druecker took this as an indication that they must
8 CARRILLO V. CTY. OF LOS ANGELES
have found the shooter. He told the officers he had seen only
the shooter’s profile and asked if they had profile photos. He
also remarked to them that every photo depicted a man with
a mustache but that he did not remember the shooter having
a mustache.
Even though Druecker told the officers he did not
recognize any of the men depicted in the photos, they told
him to “really look” at the photos. Feeling he had to select
one of the photos, and believing the officers already knew
who the shooter was, he pointed to photo three (which
depicted O’Connell) and asked, “Is this the guy?” The
officers asked if this was the person he was identifying as the
shooter. Thinking the officers already knew who the shooter
was, Druecker responded, “I think that’s the guy.” The
officers told him he had to be certain. He said he was sure,
but at the evidentiary hearing on O’Connell’s habeas petition,
he testified that he only did so out of intimidation. In truth,
he did not recognize the photo but was simply guessing.
Druecker explained he did not disclose this uncertainty either
during the preliminary hearing or at trial because he was
afraid and believed, based on his interactions with the
officers, that he had identified the correct person.
During the habeas proceeding, O’Connell discovered a
copy of the officers’ handwritten notes detailing their
interview with Maurice Soucy. In the official police report,
which was disclosed, the officers had written that when
shown the photo lineup, Soucy “immediately pointed out
photograph number three. He stated that was the person who
asked him to jump start the yellow Pinto, and was also the
same person he had seen hugging and kissing Jeanne Lyon.”
But in the handwritten notes, which were never provided to
the prosecutors or the defense, the officers had written that
CARRILLO V. CTY. OF LOS ANGELES 9
Soucy identified “#3 & poss. #1” and “picked out #3 as poss.
suspect because of face but hair was curlier.”5 Immediately
following that statement, they noted the name “Maurice.”6
These notes were never turned over to the prosecution or
defense.
O’Connell also discovered another set of handwritten
notes revealing a possible alternative suspect to the crime.
The prosecution contended French’s dying declaration, in
which he shouted the killer was someone Jeanne “hung
around with,” pointed solely to O’Connell, who had been
romantically linked to Lyon. But other notes taken by the
officers during an interview with a former attorney of
French’s revealed Lyon, along with another man, had
previously made an attempt on French’s life. In one note, the
officers wrote that French’s “x wife attempted to run over v
[victim] while trying to serve her papers for child custody.
Jeannie [Lyon] was pres. in her Capri car (green). Another
guy was driving. . . . Randy Smith driver of car.” In another
note, the officers wrote that “Jeanne and a man named
‘Randy’ were waiting at the road where v would be riding.
Randy was driving a green Capri registered to Jeanne Marie
Hernandez. Randy attempted to run v down. . . . Randy
Smith is tall with sandy or blond hair.” Neither of these notes
was turned over to the prosecutors or to the defense.
5
O’Connell alleges these are the same two photos that Villareal chose.
6
The official report said Ina Soucy, not Maurice, had remarked that the
hair of the man who drove the yellow Pinto was curlier. O’Connell
alleges the notes make clear Maurice Soucy, not his wife, had made this
statement.
10 CARRILLO V. CTY. OF LOS ANGELES
Based on Druecker’s testimony and these undisclosed
notes, a California superior court granted O’Connell’s habeas
petition in 2009. The court concluded O’Connell’s
conviction was based “in large part on the eyewitness
testimony identifying [him],” and that the officers’ notes
regarding Druecker’s and Soucy’s testimony could have
impeached their credibility. The court determined the
conviction was further undermined by the previously
undisclosed evidence that French’s dying declaration could
have referred to Randy Smith rather than O’Connell. The
district attorney’s office declined to re-prosecute O’Connell,
and in June 2012, all charges against him were dismissed.
After his habeas petition was granted, O’Connell filed suit
under 42 U.S.C. § 1983, alleging in part that the officers
violated his right to due process by withholding material,
exculpatory evidence and that as a result, he was wrongfully
convicted. Specifically, he alleged the officers failed to
disclose evidence regarding Druecker’s uncertainty in
identifying O’Connell and the officers’ insistence he select a
photo from the lineup; notes revealing that Soucy initially
chose multiple photos from the lineup and was uncertain of
his identification; and information about a potential
alternative suspect. He also alleged the police officers
withheld evidence that Villareal had selected two photos from
the lineup, and that the representation in the official police
report that he had selected just one photo was false.
The officers filed a motion for judgment on the pleadings
based on qualified immunity, arguing it was not clearly
established in 1984 that they were bound by Brady’s
disclosure requirements. The district court denied their
motion, and this appeal followed.
CARRILLO V. CTY. OF LOS ANGELES 11
II. Carrillo
On a January night in 1991, Donald Sarpy was killed in
a drive-by shooting in Lynwood, California. Sarpy had been
walking towards a group of six young black teenagers, one of
whom was his son. The area was home to two rival gangs,
including a Hispanic gang, “Young Crowd,” and an African-
American gang, “N-Hood.” When interviewed by LASD
deputies shortly after the shooting, two of the teenagers
recalled hearing someone in the suspect vehicle shout “fuck
N-Hood,” and another reported hearing someone shout
“Young Crowd Locos.” Aside from recalling the people in
the car were male, Hispanic teenagers, the witnesses were
unable to provide any additional identification information.
The deputies’ report of their initial conversations with the
witnesses noted there were no “unique suspect identifiers”
and only a “general suspect description.”
A few hours later, at 1:00 a.m., the deputies brought five
of the witnesses to the sheriff’s station in Lynwood for
questioning. The witnesses were interviewed separately. The
final witness to be interviewed was a 16-year-old boy named
Scott Turner. Unlike the other witnesses, Turner was
interviewed by defendant Craig Ditsch, a LASD deputy and
member of Operation Safe Streets, the sheriff’s gang
enforcement unit. Ditsch knew Turner from previous gang-
related cases. Also unlike the other witnesses, Turner was
shown photographs of several suspects. First, he was shown
a “gang book,” containing 140 photographs of Latino
teenagers believed to be members of the Young Crowd gang.
Turner randomly selected several photos from the gang book,
but each time, Ditsch told him his selection “could not be the
suspect.” Finally, Turner selected Carrillo’s photo, and
Ditsch responded that Turner had made the “right choice.”
12 CARRILLO V. CTY. OF LOS ANGELES
During Carrillo’s habeas proceeding, Turner testified as
follows:
They opened the book, and they had books of
pictures of people, and they was like, “Well,
what about this guy?” You know, I’m like –
you know, well, the first person that I picked,
I was like, “Him.” And they was like, “No, it
couldn’t be him. He’s locked up.” And I’m
like, “Okay, you know. Well, what about
him?” “Well, no. It couldn’t be him.” A
couple more pages. I got to the similar
description, you know, similar to Frank
[Carrillo], and I was like, “Well, him.” He
looks close, you know. “Well, yeah, you
know, it could be him. He’s a new member,
you know. He’s trying to earn his bones, you
know. He’s fresh on, so he’s got to get his
respects, so it could be him. He’s a young
guy, you know, he’s coming up.” “Yeah.
Yeah. You know, yeah, could be him. Matter
of fact, it is him.”
Ditsch next showed Turner a photo lineup with Carrillo’s
photo in position number 1. Turner selected Carrillo’s
photo.7 In a police report, Ditsch wrote that Turner had
selected Carrillo’s photo but did not mention Turner had
selected several photos of other individuals first, or that
Ditsch confirmed Turner’s choice when Turner ultimately
selected Carrillo’s photo. Turner then told the other
7
The transcript of Turner’s testimony is unclear whether he immediately
chose Carrillo’s photograph from the six-pack or whether he selected
someone else first.
CARRILLO V. CTY. OF LOS ANGELES 13
eyewitnesses he had chosen the first photo in the lineup. The
other eyewitnesses, who were only shown the photo lineup
six months after Carrillo’s arrest, chose Carrillo as the
perpetrator based on Turner’s identification.
All six eyewitnesses testified for the prosecution at
Carrillo’s first trial, which ended in deadlock. Before the
second trial, Turner, who was now in county jail, recanted,
saying his identification had been a mistake and that he could
no longer testify against Carrillo.8 Ditsch met with
8
Turner testified at Carrillo’s second trial that his recantation was based
on an interaction with the real shooter:
Q: Now, what happened that caused you to change
your mind?
A: Well, I came into Lynwood over my
grandfather[’s] house because we had a little get
together. . . . Then I was walking from my house[,]
walked down the street, went to Jack-in-the-Box, and I
was in Jack-in-the-Box and I walked in. I seen this ese,
this cholo.
Q: You saw a cholo? That is like a Mexican gang
member?
A: Yes.
Q: Young Crowd gang member?
A: Yes. And I – and I was looking. I was like glaring
at him, and he was looking at me. And kept looking at
each other, but you know it wasn’t like staring. Then I
stared at him and I was like don’t I know you. And he
was like what? And I was like, don’t I know you, and
he was like, oh, just jump; like what.
14 CARRILLO V. CTY. OF LOS ANGELES
Turner in jail and threatened that Turner would face negative
consequences once he was back out on the streets if he
recanted.
Turner nevertheless testified for the defense at Carrillo’s
second trial that his identification of Carrillo was mistaken.
He did not, however, disclose that Ditsch had suggested to
him that Carrillo was the shooter. Ditsch testified for the
Q: He became angry?
A: Yeah and I – and I seen his attire and I knew he
was from Young Crowds [sic]. . . . So he was like, fool,
that’s why I shot your homeboy father. . . .
Q: Before you ran up out of there, did you get a good
look at the guy you had the fight with?
A: Yes, I did.
Q: When you got to take a look at him, what did that
make you think?
A: That’s the fool. That’s the person who done this.
Q: So did you, at that time, recognize him as being the
person that was the passenger that night?
A: Yes.
Q: Did he look something like Frankie Carrillo?
A: Looked like that guy.
Q: When you saw him and you got into this argument
with him, were you positive it was him?
A: Positive. Surely positive.
CARRILLO V. CTY. OF LOS ANGELES 15
prosecution that Turner had selected Carrillo from the gang
books by “put[ting] his finger on the picture [of Carrillo] and
sa[ying], ‘That’s the guy.’” He also denied that Turner
selected anybody else before settling on Carrillo. In his
capacity as a gang expert, Ditsch testified that witnesses who
are incarcerated often recant because of their fear of being
perceived as “snitches,” and that Turner had “do[ne] a
complete turnaround in this case” after being sent to jail.
Although Turner recanted, the other witnesses maintained
their identifications. The jury convicted Carrillo.
Nearly 20 years later, Carrillo filed a habeas petition in
California superior court, alleging the eyewitness testimony
implicating him was false and that someone else had
committed the shooting. During a hearing on the petition,
five of the six eyewitnesses who had testified at his second
trial recanted their original identification, admitting they
could not see who shot Sarpy. The court granted the petition,
concluding Carrillo “ha[d] established that the eyewitness
evidence against him was either false, tainted, or both.” The
district attorney’s office did not appeal the ruling or retry
Carrillo.
Following the grant of his habeas petition in state court,
Carrillo filed suit under 42 U.S.C. § 1983, alleging in part
that Ditsch violated his right to have material and exculpatory
evidence disclosed under Brady, and that, as a result, he was
wrongfully convicted. Specifically, he alleges Ditsch failed
to disclose his “role in providing information to Scott Turner
that steered him towards his identification of . . . Carrillo.”
Ditsch moved for summary judgment, arguing he was
entitled to qualified immunity on Carrillo’s Brady claim
because it was not clearly established in 1991 that Brady
16 CARRILLO V. CTY. OF LOS ANGELES
applied to police officers as well as prosecutors. The district
court denied his motion, and Ditsch appealed.9
STANDARD OF REVIEW
A district court’s denial of summary judgment on the
basis of qualified immunity is reviewed de novo. See Wilkins
v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003).
Similarly, the denial of a motion for judgment on the
pleadings based on qualified immunity is reviewed de novo.
See Somers v. Thurman, 109 F.3d 614, 616 (9th Cir. 1997).
“Where disputed issues of material fact exist, we assume the
version of the material facts asserted by the non-moving
party.” Mattos, 661 F.3d at 439. “We draw all reasonable
inferences in favor of the non-moving party.” Id.
DISCUSSION
In this appeal, we consider whether the police officers in
these two cases were entitled to qualified immunity for their
alleged failure to disclose material and exculpatory evidence
as required by Brady v. Maryland, 373 U.S. 83 (1963).
9
During the pendency of Ditsch’s appeal, the district court granted
Carrillo’s motion to certify this appeal as frivolous under Chuman v.
Wright, 960 F.2d 104, 105 (9th Cir. 1992), which would have allowed the
case to proceed to trial while the instant appeal was pending. See id.
Ditsch filed an urgent motion to stay the district court’s order, which was
granted. Carrillo then filed a motion for summary affirmance based on
Tennison v. City & County of San Francisco, 570 F.3d 1078 (9th Cir.
2008), which he argued “definitively answered” the question presented in
this appeal. The motion for summary affirmance is dismissed as moot in
light of this opinion.
CARRILLO V. CTY. OF LOS ANGELES 17
Qualified immunity shields police officers from liability
under 42 U.S.C. § 1983 unless they have violated a statutory
or constitutional right clearly established at the time of the
challenged conduct. See City & Cnty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1774 (2015). To determine
whether an officer is entitled to qualified immunity, we
conduct a two-part test. See Pearson v. Callahan, 555 U.S.
223, 232 (2009). First, do the facts the plaintiff alleges show
a violation of a constitutional right? See id. Second, was the
right “clearly established” at the time of the alleged
misconduct? See id. “An officer cannot be said to have
violated a clearly established right unless the right’s contours
were sufficiently definite that any reasonable official in his
shoes would have understood that he was violating it,
meaning that existing precedent placed the statutory or
constitutional question beyond debate.” Sheehan, 135 S. Ct.
at 1774 (internal citations, alterations and quotation marks
omitted).
The defendants do not dispute that the evidence allegedly
withheld falls within Brady’s scope, and we therefore do not
address the first prong of the qualified immunity analysis.
See Tatum v. Moody, 768 F.3d 806, 821 n.10 (9th Cir. 2014)
(declining to address an element of qualified immunity
defendants failed to argue).10 Instead, we consider only the
second prong: whether the officers would have understood
they were violating the Supreme Court’s 1963 decision in
Brady by failing to disclose this evidence. We first address
whether it was clearly established in 1984 that police officers
10
Nor could they. The allegations unquestionably make out a violation
of plaintiffs’ right to material, exculpatory evidence. See infra Section II.
18 CARRILLO V. CTY. OF LOS ANGELES
as well as prosecutors were bound by Brady at all,11 and next
whether the evidence allegedly withheld in these cases was
clearly established to be Brady evidence.
I. The law in 1984 clearly established that police officers
were bound to disclose material, exculpatory evidence.
The officers argue the law did not clearly establish that
they were bound by Brady at all in 1984 and 1991. This
contention lacks merit because it was clearly established well
before the events in these cases that police officers were
bound to disclose material and exculpatory evidence.
Brady held “the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. This holding was an
“extension” of Mooney v. Holohan, 294 U.S. 103 (1935),
which held the government’s presentation of testimony it
knew to be false, as well as its suppression of evidence that
would have impeached that testimony, could require reversal
of a conviction. See Brady, 373 U.S. at 86. The Supreme
Court reasoned:
The principle of Mooney v. Holohan is not
punishment of society for misdeeds of a
prosecutor but avoidance of an unfair trial to
11
In Carrillo, the question presented is whether, in 1991, the law clearly
established that police officers were bound by Brady. Because we
conclude the law in this circuit clearly established that police officers were
bound by Brady at least as far back as 1978, it follows this obligation was
clearly established in 1991.
CARRILLO V. CTY. OF LOS ANGELES 19
the accused. Society wins not only when the
guilty are convicted but when criminal trials
are fair; our system of the administration of
justice suffers when any accused is treated
unfairly.
Id. at 87 (emphasis added). Brady framed the right to
material, exculpatory evidence in terms of the defendant
rather than the state actor responsible for the nondisclosure.
As the Court later explained, the “purpose” of Brady’s
disclosure requirement is “to ensure that a miscarriage of
justice does not occur.” United States v. Bagley, 473 U.S.
667, 675 (1985).
Just one year after Brady, the Fourth Circuit held police
officers as well as prosecutors were bound to disclose
material, exculpatory evidence, explaining:
it makes no difference if the withholding is by
officials other than the prosecutor. The police
are also part of the prosecution, and the taint
on the trial is no less if they, rather than the
State’s Attorney, were guilty of the
nondisclosure . . . . The duty to disclose is that
of the state, which ordinarily acts through the
prosecuting attorney; but if he too is the
victim of police suppression of the material
information, the state’s failure is not on that
account excused. We cannot condone the
attempt to connect the defendant with the
crime by questionable inferences which might
20 CARRILLO V. CTY. OF LOS ANGELES
be refuted by undisclosed and unproduced
documents then in the hands of the police.
Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964).
Requiring police officers as well as prosecutors to
disclose material and exculpatory evidence follows logically
from Brady’s rationale. “As far as the Constitution is
concerned, a criminal defendant is equally deprived of his or
her due process rights when the police rather than the
prosecutor suppresses exculpatory evidence because, in either
case, the impact on the fundamental fairness of the
defendant’s trial is the same.” Moldowan v. City of Warren,
578 F.3d 351, 379 (6th Cir. 2009). Because police officers
play an essential role in forming the prosecution’s case,
limiting disclosure obligations to the prosecutor would
“undermine Brady by allowing the investigating agency to
prevent production by keeping a report out of the prosecutor’s
hands.” United States v. Blanco, 392 F.3d 382, 388 (9th Cir.
2004) (quoting United States v. Zuno-Arce, 44 F.3d 1420,
1427 (9th Cir. 1995)).
This circuit adopted Barbee’s logic well before the
investigations here. In United States v. Butler, 567 F.2d 885,
891 (9th Cir. 1978), we rejected the government’s argument
that no Brady violation occurred because investigative agents,
and not the prosecutor, were responsible for the nondisclosure
of promises made to certain prosecution witnesses,
explaining:
[t]he prosecutor is responsible for the
nondisclosure of assurances made to his
principal witnesses even if such promises by
other government agents were unknown to the
CARRILLO V. CTY. OF LOS ANGELES 21
prosecutor. Since the investigative officers
are part of the prosecution, the taint on the
trial is no less if they, rather than the
prosecutor, were guilty of nondisclosure.
Id. (citing Barbee, 331 F.2d at 846) (emphasis added). Butler
thus made unmistakably clear that police officers and
prosecutors alike share an obligation to disclose “pertinent
material evidence favorable to the defense.” Id. at 888
(quoting United States v. Gerard, 491 F.2d 1300, 1302 (9th
Cir. 1974)).
The officers argue here that Butler did not clearly
establish that officers are subject to Brady because it
described the disclosure obligation in terms of the prosecutor
rather than the police officer. But Butler undisputably put
police officers on notice that their failure to disclose Brady
information would constitute a violation the defendant’s
constitutional rights. It “taught police officers how to
conform their conduct to the law,” and “[a] police officer
acting after the issuance of th[is] decision[] . . . could not
have thought that the suppression of material exculpatory
evidence would pass constitutional muster.” Owens v.
Baltimore City State’s Attorneys Office, 767 F.3d 379, 400
(4th Cir. 2014) (explaining that, even though circuit cases
including Barbee described the duty to disclose in terms of
the prosecutor, they put officers on notice that withholding of
Brady material would violate clearly established law).12
12
Although the determination of what constitutes material, exculpatory
evidence may require “the exercise of legal judgment that the prosecuting
attorney is better trained, not to mention better positioned, to make,”
police must still be expected to “recognize and determine what evidence
should be preserved and turned over to the prosecutor.” Moldowan,
22 CARRILLO V. CTY. OF LOS ANGELES
Because “clearly established law” includes “controlling
authority in [the defendants’] jurisdiction,” Butler clearly
established in 1978 that police officers have a duty to disclose
Brady material. See Wilson v. Layne, 526 U.S. 603, 617
(1999); Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir.
2004) (explaining that sources of “clearly established law”
include decisions of the Supreme Court or this circuit); see
also Hope v. Pelzer, 536 U.S. 730, 741–45 (2002) (holding
defendants’ conduct violated clearly established law in light
of binding circuit precedent).13
The officers’ attempts to circumvent Butler are
unpersuasive. First, they incorrectly characterize Butler’s
explanation of police officers’ obligation under Brady as
“dictum.” It is not. The passage in that case discussing
police officers’ obligations under Brady was essential to the
conclusion that a new trial was warranted when agents failed
to disclose promises made to a key government witness, even
578 F.3d at 380–81. The Supreme Court has held government agents
“could offend the Due Process Clause of the Fifth Amendment . . . by
deporting potential witnesses,” thereby “diminishing a defendant’s
opportunity to put on an effective defense,” as well as by failing to
preserve evidence “that might be expected to play a significant role in the
suspect’s defense.” California v. Trombetta, 467 U.S. 479, 486, 488
(1984). As the Sixth Circuit has explained, “[i]f the police can be
expected to recognize what evidence must be preserved, certainly it is not
too burdensome to demand that they simply turn that same information
over to the prosecutor’s office.” Moldowan, 578 F.3d at 381.
13
In recent cases, the Supreme Court has assumed for the sake of
argument without explicitly holding that “controlling Court of Appeals’
authority could be a dispositive source of clearly established law.”
Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012); see also Carroll v.
Carman, 135 S. Ct. 348, 350 (2014). None of these cases has overruled
Hope or called its exclusive reliance on circuit precedent into question.
CARRILLO V. CTY. OF LOS ANGELES 23
though the prosecutors were unaware of the promises. See
Butler, 567 F.2d at 891. Furthermore, we have relied on
Butler to conclude in subsequent cases that Brady was
violated when a police officer failed to disclose exculpatory
evidence. See, e.g., Jackson v. Brown, 513 F.3d 1057, 1074
(9th Cir. 2008) (relying in part on Butler to conclude that, in
1981, “the United States Constitution, as interpreted by Brady
and Giglio, compelled prosecutors to disclose evidence
favorable to the accused, even when that evidence was known
only to the police and not to the prosecutor”); United States
v. Steel, 759 F.2d 706, 714 (9th Cir. 1985) (“Because the
government was required to furnish all exculpatory evidence
under the doctrine of Brady, and because investigative
officers are part of the prosecution, Butler, 567 F.2d at 891,
there was indeed a negligent nondisclosure.” (first internal
citation omitted)).
Second, the officers argue the law did not clearly establish
they were bound by Brady until the Supreme Court itself
“extended” Brady to police officers in Kyles v. Whitley,
514 U.S. 419, 438 (1995). Kyles addressed a Brady violation
in which police officers, unbeknownst to the prosecutor’s
office, failed to disclose material, exculpatory evidence. See
id. at 421. It concluded prosecutors were bound by a duty to
learn of “any favorable evidence known to the others acting
on the government’s behalf in the case, including the police,”
id. at 437, and that “any argument for excusing a prosecutor
from disclosing what he does not happen to know about boils
down to a plea to substitute the police for the prosecutor, and
even for the courts themselves, as the final arbiters of the
government’s obligation to ensure fair trials,” id. at 438.
Because Kyles was decided in 1995, the defendants argue, it
could not have been clearly established in 1984 or in 1991
that they were bound to disclose Brady evidence.
24 CARRILLO V. CTY. OF LOS ANGELES
But Kyles did not announce a new principle of law. In
fact, Kyles itself rejected the state’s argument that “it should
not be held accountable under Bagley and Brady for evidence
known only to police investigators and not to the prosecutor,”
explaining that “[t]o accommodate the State in this matter
would . . . amount to a serious change of course from the
Brady line of cases.” Id. (emphasis added).
In the habeas context, we rejected an argument that Kyles’
extension of Brady to police officers announced a “new rule”
of criminal procedure, concluding “the principle underlying
[Kyles’] unexceptional holding dates back, at the latest, to the
Supreme Court’s decision in Giglio v. United States, 405 U.S.
150 (1972).” Jackson, 513 F.3d at 1073 (emphasis added).
In Giglio, the Supreme Court held Brady error occurred when
one prosecutor had promised a key witness immunity, even
though other prosecutors were unaware of the agreement,
because “[t]he prosecutor’s office is an entity and as such it
is the spokesman for the Government,” and therefore, “[a]
promise made by one attorney must be attributed . . . to the
Government.” Giglio, 405 U.S. at 154. Because “the
responsibility of the prosecutor to investigate all promises
made on behalf of the government extends to promises made
by the police, who also make any such promises as
spokespersons of the government, and for whom the
prosecutor bears responsibility,” we reasoned Kyles simply
applied Giglio. Jackson, 513 F.3d at 1073.
Furthermore, the vast majority of circuits to have
considered the question have adopted the view that police
officers were bound by Brady well before the Court decided
CARRILLO V. CTY. OF LOS ANGELES 25
Kyles.14 The Third Circuit alone has disagreed, concluding
such an obligation was not clearly established until “the
Supreme Court . . . settle[d] this matter” in Kyles,
notwithstanding precedent in that circuit that a police
officer’s failure to disclose Brady evidence could be imputed
to the prosecutor. See Gibson v. Super., N.J. Dept. of Law &
Pub. Safety, 411 F.3d 427, 443–44 (3d Cir. 2005), overruled
on other grounds by Dique v. N.J. State Police, 603 F.3d 181,
188 (2d Cir. 2010).15 The defendants argue that the Third
Circuit’s decision created a circuit split on the issue and that,
“if judges thus disagree on a constitutional question, it is
14
See Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992)
(“The constitutional duty to disclose exculpatory evidence has its roots in
Brady . . . . [T]he police satisfy their obligations under Brady when they
turn exculpatory evidence over to the prosecutors.”); Owens v. Baltimore
City State’s Attorneys Office, 767 F.3d 379, 401 (4th Cir. 2014)
(concluding that circuit precedent “unmistakably provides that, by 1988,
a police officer violates clearly established constitutional law when he
suppresses material exculpatory evidence in bad faith”); Geter v.
Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988) (holding that a police
officer who deliberately concealed exculpatory evidence could not claim
qualified immunity in 1982); Moldowan v. City of Warren, 578 F.3d 351,
382 (6th Cir. 2009) (holding law clearly established police officers were
bound by Brady in 1990); Newsome v. McCabe, 256 F.3d 747, 752–53
(7th Cir. 2001) (holding it was clearly established police officers were
bound by Brady in 1979); McMillian v. Johnson, 88 F.3d 1554, 1569 (11th
Cir. 1996) (“[C]learly established law in 1987 and 1988 prohibited the
police from concealing exculpatory or impeachment evidence.”).
15
The First Circuit has also held police officers were not bound to
affirmatively disclose Brady evidence until Kyles. See Drumgold v.
Callahan, 707 F.3d 28, 43 (1st Cir. 2013). But it distinguished the
affirmative duty to disclose evidence from the duty not to deliberately
suppress exculpatory evidence. Where the defendant police officer was
alleged to have deliberately suppressed evidence, in violation of either
Brady or Mooney v. Holohan, 294 U.S. 103 (1934), the court concluded
such conduct was clearly established as unlawful in 1989. See id.
26 CARRILLO V. CTY. OF LOS ANGELES
unfair to subject police to money damages for picking the
losing side of the controversy.” Pearson v. Callahan,
555 U.S. 223, 245 (2009) (alteration and internal quotation
marks omitted).
Although disagreement among circuit courts may imply
a legal principle is not “beyond debate,” and thus not clearly
established, qualified immunity is not the “guaranteed
product of disuniform views of the law in the other federal, or
state, courts, and the fact that a single judge, or even a group
of judges, disagrees about the contours of a right does not
automatically render the law unclear.” Safford Unified Sch.
Dist. No. 1 v. Redding, 557 U.S. 364, 378 (2009). More
importantly, however, “[i]f the right is clearly established by
decisional authority of the Supreme Court or of this Circuit,
our inquiry should come to an end.” Hopkins v. Bonvicino,
573 F.3d 752, 772 (9th Cir. 2009) (alteration in original)
(internal quotation marks omitted). Only in the absence of
binding precedent do we consider other sources of decisional
law such as out-of-circuit cases. See Boyd v. Benton Cnty.,
374 F.3d 773, 781 (9th Cir. 2004).
Because Butler unambiguously held due process is
violated where a police officer fails to disclose material,
exculpatory evidence, our inquiry is over. We hold that, at
the time of the relevant events in these cases, circuit
precedent clearly established that police officers were bound
by Brady’s disclosure requirements.
II. The specific evidence allegedly withheld in these cases
was clearly established to be Brady material.
Even though it was clearly established at the time of the
investigations that police officers were bound to disclose
CARRILLO V. CTY. OF LOS ANGELES 27
Brady evidence, we must next consider whether every
reasonable police officer would have understood the specific
evidence allegedly withheld was clearly subject to Brady’s
disclosure requirements.
We note the officers argued in the district court only that
the law did not clearly establish their duty to disclose Brady
evidence at all. Similarly, the officers’ opening briefs on
appeal framed the question presented as whether, in 1984 and
1991, there was “an absence of clearly established law as to
whether police officers were bound by the disclosure
obligations of Brady.” Elsewhere in their briefs, the officers
did obliquely suggest that, even if the law established
officers’ duty to disclose evidence under Brady generally,
their duty to disclose the specific evidence allegedly withheld
in these two cases was not clear.16
“Absent exceptional circumstances, we generally will not
consider arguments raised for the first time on appeal,
although we have discretion to do so.” AlohaCare v. Hawaii,
Dept. of Human Servs., 572 F.3d 740, 744 (9th Cir. 2009)
(citation omitted). Moreover, “[n]ormally we decline to
address an issue that is simply mentioned but not argued.”
Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004).
Nevertheless, because the issue is purely one of law, and
16
Smith and Parra note in their opening brief the passage in Butler “was,
at most, a broad general proposition insufficient to clearly establish the
law on this issue,” and that the evidence withheld in that case was
“significantly different than . . . nondisclosure of exculpatory information
regarding [the] identification [of O’Connell] as the murderer or the
possibility of another suspect.” Similarly, Ditsch notes the information
about Turner’s selection of other photos before identifying Carrillo was
different from the confession we held was clearly established Brady
evidence in Tennison.
28 CARRILLO V. CTY. OF LOS ANGELES
because our addressing it at this juncture will not prejudice
the plaintiffs, we will do so here. See Kimes v. Stone, 84 F.3d
1121, 1126 (9th Cir. 1996).
In recent cases, the Supreme Court has cautioned us “not
to define clearly established law at a high level of generality.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011). At the
same time, “[f]or a legal principle to be clearly established, it
is not necessary that ‘the very action in question has
previously been held unlawful,’” but rather that “‘in the light
of pre-existing law the unlawfulness [is] apparent.’” Fogel v.
Collins, 531 F.3d 824, 833 (9th Cir. 2008) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in
original). In other words, “the ‘contours of [the] right [must
be] sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’”
Al-Kidd, 131 S. Ct. 2083 (quoting Anderson, 483 U.S. at 640)
(first alteration in original).
In the Fourth Amendment context, for example, the Court
has explained the “general proposition . . . that an
unreasonable search or seizure violates the Fourth
Amendment is of little help in determining whether the
violative nature of particular conduct is clearly established.”
Id. This is because “[q]ualified immunity is no immunity at
all if ‘clearly established’ law can simply be defined as the
right to be free from unreasonable searches and seizures.”
Sheehan, 135 S. Ct. at 1776.
Here, the right being violated is, by its terms, significantly
more specific than the “extremely abstract” right of freedom
from unreasonable searches and seizures. See Anderson,
483 U.S. at 639. Brady defines the type of material the
government is obligated to disclose concretely and
CARRILLO V. CTY. OF LOS ANGELES 29
specifically as “favorable to the accused, either because it is
exculpatory, or because it is impeaching.” Strickler v.
Greene, 527 U.S. 263, 281–82 (1999). Unlike the broad
touchstone of “unreasonableness,” the contours of a
defendant’s right to Brady material are focused and clear.
Furthermore, although the right at issue cannot be defined
at too high a level of generality, it cannot be defined “too
narrowly,” either. Tennison v. City & Cnty. of San Francisco,
570 F.3d 1078, 1093 (9th Cir. 2008). In Tennison, we
addressed police officers’ claims of qualified immunity
relating to alleged Brady violations. See id. at 1078. The
plaintiff alleged the investigating officers failed to disclose
the confession of an alternative suspect. See id. at 1093. The
officers argued their duty to disclose “a confession that was
made after a guilty verdict was rendered, that was ‘inherently
unbelievable,’ and that was given by someone who earlier
had denied involvement in the murder” was not clearly
established. See id. We rejected this argument, explaining
that
[f]or a legal principle to be clearly
established, it is not necessary that the very
action in question has previously been held
unlawful. Rather, the dispositive inquiry is
whether it would be clear to a reasonable
official that his conduct was unlawful in the
situation he confronted.
The Inspectors received a Mirandized
confession by someone who had been named
by a reliable witness, known to the officers,
who recounted events surrounding the murder
in detail, and whose account contradicted that
30 CARRILLO V. CTY. OF LOS ANGELES
of the prosecution’s witnesses. The evidence
certainly undermines confidence in the
outcome of the trial. Thus, it would have
been clear to a reasonable officer that such
material should have been disclosed to the
defense. See Barker v. Fleming, 423 F.3d
1085, 1095 (9th Cir. 2005) (“It is well settled
that evidence impeaching the testimony of a
government witness falls within the Brady
rule. . . .”)
Id. at 1093–94 (some internal citations, quotation marks and
alterations omitted) (emphasis added).
As in Tennison, law predating the investigations in both
of these cases clearly established that the type of evidence
allegedly withheld – including impeachment and alternative
suspect evidence – fell within Brady’s scope. The officers’
assertions of qualified immunity, therefore, fail. We address
each item of evidence in turn below.
A. O’Connell Evidence
We first address the evidence O’Connell has alleged the
defendant police officers withheld, including evidence
impeaching the statements of the three eyewitnesses to testify
and information regarding a previous attempt on the victim’s
life.
1. Druecker, Villareal and Soucy Statements
O’Connell argues the officers should have turned over
evidence relating to the eyewitness identifications made by
Druecker, Villareal and Soucy.
CARRILLO V. CTY. OF LOS ANGELES 31
Druecker, who was the only eyewitness to the shooting,
testified at trial that he was able to identify O’Connell as the
killer. But the officers never disclosed that Druecker said he
saw the shooter only in profile, asked to be hypnotized
because he could not remember what the shooter looked like,
and recalled the shooter did not have a mustache unlike every
man depicted in the photo lineup.
Villareal, who saw the shooter flee in a yellow Pinto,
testified at trial he was unsure whether O’Connell was the
shooter. Detective Smith cast doubt on this statement by
testifying Villareal had readily chosen O’Connell from a
photo lineup. But the officers failed to disclose that Villareal,
when shown the photo lineup, selected two photographs and
said that O’Connell “looked like the person who was there,
but I’m not positive.”
Soucy, a neighbor of French’s ex-wife, testified at trial
that he recognized O’Connell from the lineup and that he was
confident O’Connell was the same person he had seen kissing
Lyon. He further testified this man drove a yellow Pinto. But
again, the officers failed to disclose their handwritten notes,
which said Soucy identified “#3 & poss[ibly] #1” and “picked
out #3 as poss[ible] suspect because of face but hair was
curlier.”
Had this evidence been disclosed, the defense could have
used it to impeach the eyewitnesses’ identifications of
O’Connell as the killer. The law in 1984 made clear that
impeachment evidence must be disclosed under Brady. For
decades prior, the Supreme Court had explained the
presentation of false testimony violated due process. In its
1972 opinion in Giglio, the Court reasoned Brady
32 CARRILLO V. CTY. OF LOS ANGELES
encompassed evidence implicating the credibility of a
government witness:
As long ago as Mooney v. Holohan, 294 U.S.
103, 112 (1935), this Court made clear that
deliberate deception of a court and jurors by
the presentation of known false evidence is
incompatible with “rudimentary demands of
justice.” . . . . In Napue v. Illinois, 360 U.S.
264 (1959), we said, “[t]he same result
obtains when the State, although not soliciting
false evidence, allows it to go uncorrected
when it appears.” Id., at 269. Thereafter
Brady v. Maryland, 373 U.S. at 87, held that
suppression of material evidence justifies a
new trial “irrespective of the good faith or bad
faith of the prosecution.” When the
“reliability of a given witness may well be
determinative of guilt or innocence,”
nondisclosure of evidence affecting credibility
falls within this general rule.
405 U.S. at 153–54 (emphasis added) (some citations
omitted). In United States v. Bagley, 473 U.S. 667, 676–77
(1985), the Court reaffirmed this principle, citing Giglio for
the proposition that “[i]mpeachment evidence . . . as well as
exculpatory evidence, falls within the Brady rule.” Id. at 676.
Here, the disclosure of Druecker’s request for hypnosis,
observation that the shooter – unlike every person depicted in
the lineup – did not have a mustache, and uncertainty
regarding his identification would have cast serious doubt on
his identification of O’Connell at trial. Similarly, the
disclosure of Soucy’s choice of two men from the photo
CARRILLO V. CTY. OF LOS ANGELES 33
lineup would have undermined his identification of
O’Connell. The disclosure of Villareal’s hesitancy and
uncertainty when shown the photo lineup would have
undercut Smith’s testimony that Villareal readily chose
O’Connell’s photo from the lineup and was prevaricating on
the stand. Because it was clearly established by 1984 that
police officers were bound by Brady, and that evidence
undermining the credibility of government witnesses fell
within Brady’s ambit, it would have been clear to any
reasonable officer that the nondisclosure of this evidence was
unlawful.
2. Evidence of a separate attempt on victim’s life
O’Connell also alleges the police officers failed to
disclose evidence of a previous attempt on the victim’s life.
The officers’ notes reveal that Lyon, French’s ex-wife, had
previously attempted to run him over in her car with the
assistance of Randy Smith, who was described as tall, with
sandy or blond hair. This information was never disclosed to
the prosecution or defense, and as a result, the defense was
never able to investigate it.
As a preliminary matter, the officers argue the
information about Randy Smith was a “dead lead.”17 But as
we explained in an earlier qualified immunity challenge based
on nondisclosure of Brady material,
17
The officers also argue O’Connell’s defense counsel was aware of
Randy Smith. They offer no citation for this assertion, and at this stage
we must in any event take as true the version of facts O’Connell has
alleged. See Chavez v. United States, 683 F.3d 1102, 1008 (9th Cir.
2012).
34 CARRILLO V. CTY. OF LOS ANGELES
we reject the Inspectors’ attempt to dismiss
their Brady duty by downplaying the
importance of the evidence. “[I]f there were
questions about the reliability of the
exculpatory information, it was the
prerogative of the defendant and his counsel –
and not of the prosecution – to exercise
judgment in determining whether the
defendant should make use of it,” because
“[t]o allow otherwise would be to appoint the
fox as henhouse guard.”
Tennison, 570 F.3d at 1094 (quoting DiSimone v. Phillips,
461 F.3d 181, 195 (2d Cir. 2006)).
Any reasonable police officer in 1984 would have
understood that evidence potentially inculpating another
person fell within Brady’s scope. In Brady itself, the Court
considered the failure to disclose an accomplice’s confession
that he had committed the homicide for which he and the
defendant were standing trial. The Court held suppression of
this evidence violated due process. See 373 U.S. at 86.
Here, the officers failed to disclose evidence that another
man who resembled the eyewitness description of the killer
had previously tried to kill the victim. This evidence would
have cast doubt on O’Connell’s culpability and would have
instilled French’s dying declaration – in which French said
the killer was someone his ex-wife used to “hang[]around
with” – with an alternative meaning. The defendants’ alleged
failure to disclose this information violated O’Connell’s
clearly established right to evidence that “would tend to
exculpate” him. Brady, 373 U.S. at 88.
CARRILLO V. CTY. OF LOS ANGELES 35
B. Carrillo Evidence
Carrillo argues Ditsch failed to disclose the circumstances
surrounding Turner’s identification of Carrillo. 18
Specifically, he alleges Ditsch failed to disclose that Turner
initially chose several other photos from a “gang book”– each
of which Ditsch then told Turner “could not be the suspect
shooter” – before ultimately selecting Carrillo’s photo, which
Ditsch affirmed as the “right choice.” He also alleges Ditsch
failed to disclose that he threatened Turner upon learning
Turner planned to recant his identification of Carrillo before
Carrillo’s second trial. Ditsch counters that the “potentially
exculpatory nature of such evidence” would not have been
clear to a reasonable police officer in 1991.
During the first trial, Turner testified for the state that he
was able to positively identify Carrillo. Had the evidence of
Turner’s choice of several other photos and Ditsch’s
suggestive comments been disclosed, the defense could have
used that information to impeach Turner’s identification at
the first trial and bolster his recantation at the second trial.
Furthermore, this evidence would also have undercut
Ditsch’s testimony at the second trial that Turner was
“absolutely certain” of his identification of Carrillo. Ditsch’s
effort to paint Turner’s selection as unequivocal implicitly
recognizes that evidence of hesitancy and earlier
misidentification would have been very helpful to the defense
18
Carrillo also alleges Ditsch failed to disclose his membership in the
Lynwood Vikings, a “white supremacist internal gang dedicated to wiping
out the Young Crowd gang, including the use of fabricated evidence to
obtain false convictions.” Carrillo does not appeal the district court’s
ruling that this allegation was without merit.
36 CARRILLO V. CTY. OF LOS ANGELES
in impeaching Turner’s original identification, not to mention
supporting the veracity of Turner’s recantation. Likewise,
information that Ditsch had coached Turner’s identification
would have contradicted Ditsch’s testimony that Turner
independently selected Carrillo from the gang book and photo
lineup and cast serious doubt on Ditsch’s testimony that
Turner’s recantation was not genuine. Finally, evidence that
Ditsch threatened Turner with negative consequences if he
recanted would have further undermined Ditsch’s rebuttal of
Turner’s recantation.
As previously discussed, the law in 1991 clearly
established that evidence impeaching the credibility of a
government witness was required to be disclosed under
Brady. See Bagley, 473 U.S. at 676; Giglio, 405 U.S. at 153.
Any reasonable officer would have understood the withheld
evidence here would have impugned the testimony of two key
government witnesses, and therefore should have been
disclosed.
Other circuits have recognized that police officers’ failure
to disclose the use of suggestive tactics violates Brady.19 For
19
Furthermore, the Supreme Court explicitly recognized the risk of
police improperly influencing photo identifications, explaining:
[i]t must be recognized that improper employment of
photographs by police may sometimes cause witnesses
to err in identifying criminals . . . . This danger will be
increased if the police . . . show [the witness] the
pictures of several persons among which the
photograph of a single such individual recurs or is in
some way emphasized.
CARRILLO V. CTY. OF LOS ANGELES 37
instance, the Seventh Circuit concluded police officers could
be held liable under § 1983 for “withh[olding] from the
prosecutors information about their coaching of the witnesses
and the fact that these witnesses earlier selected pictures from
a book of mug shots that did not contain [plaintiff’s] photo,”
because under Brady it was “clearly established in 1979 and
1980 that police could not withhold from prosecutors
exculpatory information about . . . the conduct of a lineup.”
Newsome v. McCabe, 256 F.3d 747, 749, 752 (7th Cir. 2001).
Similarly, nearly three decades ago, the Fifth Circuit
considered a § 1983 claim that law enforcement authorities
engaged in suggestive identification techniques when
showing witnesses a lineup. See Geter v. Fortenberry,
849 F.2d 1550, 1559–60 (5th Cir. 1988). The plaintiff
alleged the officers failed to disclose this evidence and that it
would have been “favorable, and exculpatory, as it would
permit [plaintiff] to demonstrate to the jury . . . [t]hat
[plaintiff’s] identification in the instant cause is in all
likelihood a mistaken identification due to his facial
similarity to other persons and/or overzealous police
investigatory techniques.” Id. Citing Brady, the court held
“a police officer cannot avail himself of a qualified immunity
defense if he procures false identification by unlawful means
or deliberately conceals exculpatory evidence, for such
activity violates clearly established constitutional principles.”
Id. at 1559.
Any reasonable officer would have understood Turner’s
choice of multiple other photos from a gang book and
Simmons v. United States, 390 U.S. 377, 383 (1968). Carrillo has
separately alleged a Simmons violation, but that claim is beyond the scope
of this appeal.
38 CARRILLO V. CTY. OF LOS ANGELES
coached selection of Carrillo was potential impeachment
evidence required to be disclosed under Brady. The same is
true of Ditsch’s efforts to dissuade Turner from recanting his
identification. The district court therefore properly denied
Ditsch qualified immunity.
CONCLUSION
The law clearly established, well before the events in
these cases, that police officers were bound by Brady and that
the evidence allegedly withheld in these cases fell within
Brady’s scope. We therefore affirm the denial of qualified
immunity in both cases and remand to the district court for
further proceedings.
AFFIRMED.