dissenting:
I respectfully dissent. It is unnecessary for the majority to use this case to define the scope of Brady. The majority concludes that the exculpatory evidence withheld from Smith was not material. The Brady analysis can and should end there. 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. Indeed, the majority cites to several cases in which the Seventh Circuit exercised the appropriate level of re*1090straint. See Mosley v. City of Chicago, 614 F.3d 391, 397-98 (7th Cir.2010) (setting aside the question of whether Brady applies when a trial results in acquittal); Bielanski v. Cnty. of Kane, 550 F.3d 632, 643-44 (7th Cir.2008) (holding that a hypothetical, post-acquittal Brady claim would require plaintiff to establish a “reasonable probability” that the decision to go to trial would have been altered by the desired disclosure); see also Carvajal v. Dominguez, 542 F.3d 561, 569-70 (7th Cir.2008) (same). Instead of exercising similar restraint in the tradition of case-by-case adjudication, however, the majority decides to severely restrict the scope of Brady in the context of a case that it claims could be clearly decided on the question of materiality alone.
In so doing, the majority is forced to rely upon the supposed internal logic of Brady itself and the cursory analysis offered by a few other circuits. The majority, in effect, 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 narrowly as a trial resulting in a conviction. Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir.1999). This approach excludes acquittals, hung juries, and even situations in which a judgment of conviction 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 prosecutors play in “shaping] a trial that bears heavily on the defendant,” whatever the verdict. Brady v. Maryland, 373 U.S. 83, 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
To further justify its reductive reading of Brady, the majority contends that drawing the line at criminal convictions 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 plaintiff allege (1) the withheld evidence was favorable either because it was exculpatory or impeaching, (2) the evidence was suppressed by the government, and (3) the nondisclosure prejudiced the plaintiff. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). By separating its materiality analysis from its discussion of the meaning of Brady, the majority wants to have its cake and eat it too. While acknowledging the high bar on materiality set by the Supreme Court in Kyles v. Whitley, 514 U.S. 419, 432-38, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the majority simultaneously insists that further restrictions are necessary to avoid a slippery slope.
Because I disagree with the majority on both the materiality of the suppressed evidence in this case, see infra Section II, and the larger question of Brady’s application, see infra Section III, I would reverse the district court’s grant of summary judgment regarding Smith’s Brady claim and remand for further proceedings consistent with this dissent.
I
On October 7, 2002, a small fire was set outside the Simply Sofas building at 2408 Lincoln Boulevard in Santa Monica, California. Three similar incidents soon followed — on October 15, November 21, and November 25. Sergeant Almada of the Santa Monica Police Department created a report to track the string of fires. This report indicated that the fire source in at least one of the incidents was a “possible chemical based incendiary device in a plastic container.” None of the descriptions of potential suspects offered by witnesses remotely matched Mr. Smith, and the report described the one suspect as a white male *1091in his 30s. Mr. Smith is African-American.
On February 13, 2003, a fire destroyed Simply Sofas and an adjacent consignment shop called Lona Antiques. Both businesses were operated by Marilyn Nelson and her son-in-law, Matt Schoffman. Fire investigators determined that the fire had been started intentionally with several water bottles stuffed with paper and gasoline. At least one of the water bottles contained mailing materials that had been sent to Mr. Smith or his wife.
On February 17, 2003, Sergeant Almada conducted a detailed interview with Marilyn Nelson. When asked whether anyone would want to burn down her store, Nelson referred to a former employee she had recently terminated and a customer who had made some threatening statements in the past. She did not mention Mr. Smith’s name. More than four months later, on June 27, 2003, Almada informed Nelson that Mr. Smith was a suspect in the investigation surrounding the fire on February 13, and Nelson was able to recount a dispute over a broken consignment item. Several days later, Nelson contacted Almada to report that she had seen Smith on June 28, 2003, “laughing and smiling as he pointed” at the burnt building. In an attempt to corroborate Nelson’s story, police reviewed security tapes from Mr. Smith’s condominium, which proved that Smith was home with his son on June 28. Nelson could not have seen him that day.
The police arrested Mr. Smith on July 15, 2003. Sergeant Almada never disclosed Marilyn Nelson’s false allegation to the prosecutor or the defense. Sergeant Almada also failed to turn over police reports and fliers concerning the incidents of serial arson that had preceded the fire on February 13. Nothing about Marilyn Nelson’s disgruntled former employee or her threatening customer were turned over to the prosecutor or the defense before or during two subsequent trials.
The first jury trial took place during the month of June 2004. Afterwards, the jury announced that it was deadlocked 7 to 5 in favor of acquittal. The trial judge denied Mr. Smith’s motion to dismiss and granted the prosecution’s motion for a new trial. A second jury trial took place during the month of December 2004. Again, the jury reached an impasse, with 11 jurors voting “not guilty” and 1 juror voting “guilty.” On December 14, 2004, the trial judge dismissed the case, after Mr. Smith had spent approximately seventeen months in custody.
II
According to the Supreme Court, “favorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Kyles, 514 U.S. at 433, 115 S.Ct. 1555 (emphasis added) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The touchstone for the Court’s analysis of materiality is the “reasonable probability” of a different result, which is shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.” Id. (internal quotations omitted). Bagley materiality, which is gauged in terms of the “cumulative effect of suppression,” leaves the government with a degree of discretion, but it also imposes a “corresponding burden.” Id. at 437, 115 S.Ct. 1555. The police’s and the prosecution’s “responsibility for failing to disclose known, favorable evidence rising to a ma*1092terial level of importance is inescapable.”1 Id. at 438,115 S.Ct. 1555.
The majority presents a misleading picture of how this materiality standard would apply in the case at hand. Rather than analyzing the cumulative effect of the suppression, the majority simply dismisses much of the misconduct “item by item” before applying an incorrect materiality standard to just one piece of suppressed evidence — the false account of Smith’s alleged gloating at the crime scene. Kyles, 514 U.S. at 436, 115 S.Ct. 1555. In the majority’s view, it therefore “cannot say” that “no reasonable juror could have voted to convict Smith.” The Supreme Court has made it clear, however, that 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 resulting in a verdict worthy of confidence.” Id. at 434, 115 S.Ct. 1555. In Smith’s case, the relevant question is whether the cumulative effect of the suppressed evidence raises a “reasonable probability” of a different result. In other words, this Court should have considered the prosecutor’s decision to go to trial in the first place and whether the resulting trials produced outcomes worthy of confidence.2
Judged by this standard, I believe that the exculpatory evidence withheld from Smith and the prosecutor was clearly material. The police withheld information about the four fires set prior to the arson at issue here. At least one of those fires was started with a device similar to those used on February 13. The descriptions of the suspects in the other fires did not match Smith. The majority believes that this evidence does not undermine Smith’s motive. Motive becomes irrelevant, however, if there is a reasonable probability that the jury would have concluded that someone else set the fire. Had the police disclosed this information to the prosecutor, I believe there is also a reasonable probability that the ease would not have gone to trial in the first place.
The police also failed to disclose Nelson’s false identification of Mr. Smith. Nelson was either mistaken or she lied. Either way, this suppressed information could have served as impeachment evidence of the type that must be disclosed pursuant to the Brady requirements, see Stridden 527 U.S. at 280, 119 S.Ct. 1936, and I cannot conclude as a matter of law that this information was not of sufficient significance to result in the denial of the defendant’s right to a fair trial.
Even without a conviction, it is undeniable that there was prejudice in this case. 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, 2004.3 The cumulative effect of the evidentiary suppression gives rise to a reasonable probability that its disclosure would have *1093led to a different result. The prosecutor might have decided not to bring the case at all, or the jury might have acquitted Mr. Smith. Instead, he had to bear the extraordinary weight of the state’s unsuccessful effort to convict him, and then he had to do so all over again.
Ill
The majority also holds that there has been no Brady violation when a trial results in a hung jury, even though the government withheld evidence favorable to the accused that undoubtedly undermined confidence in the outcome of his criminal proceedings, and even though the accused was subject to a second trial based on the same evidence.
The question of whether there is a Brady violation when a trial does not result in a conviction has not been resolved definitively in the Ninth Circuit. Because the majority has decided to reach this issue, we are forced to grapple with the meaning of Brady in its current context. This is a tall order, and we are guided only by inconclusive dicta. Compare Bagley, 473 U.S. at 678, 105 S.Ct. 3375 (identifying evidence as material under Brady when “its suppression undermines confidence in the outcome of the trial”), with Morris v. Ylst, 447 F.3d 735, 742 (9th Cir.2006) (“The animating purpose of Brady is to preserve the fairness of criminal trials.”).
On balance, however, 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, 115 S.Ct. 1555 (“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 resulting in a verdict worthy of confidence.”); Brady, 373 U.S. at 87, 83 S.Ct. 1194 (stating that purpose of the rule against suppression of evidence is “avoidance of an unfair trial to the accused”); United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (part of the concern is preventing “corruption of the truth-seeking function of the trial process”); Morris, 447 F.3d at 742 (“The animating purpose of Brady is to preserve the fairness of criminal trials.”) (citations omitted); Haupt v. Dillard, 17 F.3d 285, 287 (9th Cir.1994) (“The fact that Haupt ultimately was acquitted speaks only to the amount of damages he suffered; it is irrelevant to whether he has a cause of action.”).4
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 prosecutors. It is hard to imagine protecting this right without also discouraging misconduct. The majority would, nevertheless, 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 conviction. This ap*1094proach not only distorts Brady and its progeny;5 it also creates perverse incentives 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, knowing that the suppression would probably not be uncovered and the suspect would at least be subject to a lengthy criminal trial.
The fact that a defendant is fortunate enough to escape conviction 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 Amendment, does not hinge on the outcome of criminal proceedings.
In the case at hand, the prejudice suffered by the defendant is obvious, and I cannot conclude that Smith’s right to a fair trial was not violated, simply because the trial resulted in a hung jury, rather than a conviction. Absent police misconduct, Smith might not have been charged in the first place. As a result of the evidentiary suppression, Smith’s right to a fair trial was compromised. The jury knew about Smith’s dispute with Nelson, but it did not know about the other suspects in previous fires or Nelson’s false identification of Smith. Withholding this evidence is precisely the type of conduct that “undermines confidence in the outcome of [a] trial.” Bagley, 473 U.S. at 678, 105 S.Ct. 3375.
Because I would hold that Smith is entitled to seek recovery on the grounds that the government violated its Brady obligations, I dissent.
. According to the majority, the responsibility to disclose exculpatory evidence is entirely escapable, assuming that the trial results in anything other than a conviction.
. This materiality standard is just as "workable” in the case of a hung jury as it is in the case of a conviction. It is the majority’s misstatement of the standard that leads it to see Bagley materiality as somehow untenable in the former case.
.Compared to cases where a defendant is convicted and subsequently exonerated and those where "all criminal charges were dismissed prior to trial,” this case is much more like the former, in which a defendant is normally permitted to "pursue § 1983 claims based on the denial of a fair trial.” Morgan, 166 F.3d at 1310.
. The majority opinion distinguishes Haupt in part because it was based on a Supreme Court decision that has been overruled by Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (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, 123 S.Ct. 1994 (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.
. 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, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), evidence possessed by the government even if not by the prosecutor, Kyles, 514 U.S. at 438, 115 S.Ct. 1555, and evidence not specifically requested by the defense, Agurs, 427 U.S. at 107, 96 S.Ct. 2392.