FILED
NOT FOR PUBLICATION
JUN 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP SCOTT CANNON; MATHIAS No. 15-35047
CANNON; PHILIP SCOTT CANNON, on
behalf of his minor child, QC, D.C. No. 3:10-cv-00224- HA
Plaintiffs-Appellants,
MEMORANDUM*
v.
POLK COUNTY; POLK COUNTY
SHERIFF; CITY OF DALLAS; DALLAS
POLICE DEPARTMENT; BURNETTE
KRAUGER; KERRY TAYLOR;
MICHAEL OJA; JOHN WALLACE;
MICHAEL HOLSAPPLE; PAUL BOX;
RAY STEELE; BOB WOLFE; CHAD
WOODS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted June 7, 2017
Portland, Oregon
Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appellant Philip Scott Cannon was convicted in 2000 of a triple homicide.
Among the evidence admitted at the trial was evidence about the bullets from the
crime scene. That purported scientific evidence, known as Comparative Bullet
Lead Analysis (“CBLA”), has since been debunked as junk science. In 2009,
Cannon and the Oregon Department of Justice entered into a stipulation vacating
his conviction and remanding to the Polk County Circuit Court for a retrial. While
preparing for a new trial, the Polk County District Attorney was unable to find the
original trial exhibits. As a result, the district attorney dismissed the charges.
Cannon and his sons then commenced this action. The district court granted
summary judgment to Appellees on Appellants’ claims under 42 U.S.C. § 1983
and for various torts under Oregon state law. We have jurisdiction under 28 U.S.C.
§ 1291 and we affirm.
I. Cannon’s Claims Under 42 U.S.C. § 1983
Cannon’s § 1983 claims are based on a litany of alleged misconduct by the
various law enforcement officers and agencies involved in his arrest. Broadly,
these alleged violations fall into three categories: Brady1 violations; destruction of
1
Brady v. Maryland, 373 U.S. 83 (1963).
2
evidence under Trombetta/Youngblood;2 and alleged violations of Cannon’s
substantive due process rights. None of these claims has merit.
A. Alleged Brady Violations
Much of the evidence that Cannon claims was withheld was turned over by
Appellees to the district attorney for turnover to Cannon. This includes the
Gannaway report,3 the February 2000 crime lab report, and the crime scene video.4
The Appellees satisfied their Brady obligations with regard to that evidence.
Broam v. Bogan, 320 F.3d 1023, 1033 (9th Cir. 2003). Other evidence, including
the McMahon photo lineup5 and the crime scene video, was known to Cannon
during discovery and could have been requested at any time. Amado v. Gonzalez,
758 F.3d 1119, 1137 (9th Cir. 2014). Finally, any Brady material contained on the
2
California v. Trombetta, 467 U.S. 479 (1984); Arizona v. Youngblood,
488 U.S. 51 (1988).
3
Cannon also claims that Appellee Krauger violated Brady by
disclosing the Gannaway report late. However, the report was disclosed “at a time
when disclosure would be of value to the accused.” United States v. Gamez-
Orduno, 235 F.3d 453, 461 (9th Cir. 2000). Brady was therefore satisfied.
4
Cannon has not identified the exculpatory value of either the February
2000 report or the crime scene video. Therefore, neither constitutes Brady
material.
5
Cannon has not identified a defendant in this case who was
responsible for the alleged suppression of the photo lineup. His claim therefore
fails on that basis as well.
3
reverse side of the Property in Custody sheets was disclosed in the memorandum
from Polk County Sheriff’s Office Property and Evidence Technician Ailsa Gray.
See United States v. Winslow, 962 F.2d 845, 848–49 (9th Cir. 1992) (holding that
disclosure of a summary of a “rap sheet” was sufficient to satisfy Brady); United
States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984) (holding that disclosure of
summaries of an “informant file” was sufficient to satisfy Brady).
B. Alleged Trombetta/Youngblood Violations
If evidence is only “potentially useful” to the defense, there must be bad
faith on the part of the police to make out a Trombetta/Youngblood violation.
Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989) (citing Youngblood, 488
U.S. 51). Cannon has failed to demonstrate bad faith on the part of any Appellee.
His claims regarding the red lighter and the crime scene video therefore fail.
Cannon also contends that police failed adequately to investigate “Bimla”
Boyd. The record belies this contention; police thoroughly interviewed “Bimla” on
a number of occasions.
C. Substantive Due Process Claims
Substantive due process “forbids the government from depriving a person of
life, liberty, or property in such a way that ‘shocks the conscience’ or ‘interferes
with rights implicit in the concept of ordered liberty.’” Nunez v. City of L.A., 147
4
F.3d 867, 871 (9th Cir. 1998) (quoting United States v. Salerno, 481 U.S. 739, 746
(1987)). None of the minor evidentiary and chain-of-custody errors alleged by
Cannon rises to the level of a due process violation.
II. Absolute Immunity
Cannon alleges that Defendant Taylor violated his constitutional rights by
sending bullets off for CBLA analysis, which is now recognized as unreliable.
When Taylor sent the bullets for CBLA analysis, however, he was working at the
direction of the district attorney to help prepare for trial. He is therefore entitled to
absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (stating that
prosecutorial functions include “the professional evaluation of the evidence
assembled by the police and appropriate preparation for its presentation at trial”).
III. Associational Rights
Cannon and his two sons assert violations of their Fourteenth Amendment
familial associational rights. Interference with the parent-child relationship is a
constitutional violation if a parent or child is “wrongfully detained.” Crowe v. Cty.
of San Diego, 608 F.3d 406, 441 (9th Cir. 2004). To amount to a violation, the
conduct of the accused must “shock the conscience” or “offend the community’s
sense of fair play and decency.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079
(9th Cir. 2011) (alteration and internal quotation marks omitted). Cannon not only
5
was not wrongfully detained at any time, his detention was not so shocking or
offensive as to rise to the level of a constitutional violation.
IV. State Law Torts
Cannon asserts claims for malicious prosecution and abuse of process under
Oregon Law.
With regards to malicious prosecution, Cannon has failed to show that the
criminal proceeding against him terminated in his favor. The criminal prosecution
against Cannon was dismissed because, preparatory to the retrial, the district
attorney could not locate the original trial exhibits. The action was therefore
terminated “without regard to its merits or propriety.” Portland Trailer & Equip.,
Inc. v. A-1 Freeman Moving & Storage, Inc., 49 P.3d 803, 808 (Or. Ct. App. 2002)
(quoting Gumm v. Heider, 348 P.2d 455, 464 (Or. 1960)). Further, there was
probable cause to prosecute Cannon. Finally, Cannon cannot show malice, which
is the touchstone of this tort.
Cannon’s claim for abuse of process fails because he cannot show that he
was prosecuted for any “ulterior purpose.” Larsen v. Credit Bureau, Inc. of Ga.,
568 P.2d 657, 658 (Or. 1977).
V. Conclusion
6
For the reasons set forth above, the judgment of the district court is
AFFIRMED.
7
FILED
Cannon v. Polk County, Case No. 15-35047
JUN 28 2017
Rawlinson, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.