The Estate of Paul Browning v. Las Vegas Metropolitan Police Department

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 8 2026

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ESTATE OF PAUL BROWNING ex No. 24-2034

rel. BETTY BROWNING, D.C. No.

2:20-cv-01381-KJD-MDC

Plaintiff - Appellant,

v.

MEMORANDUM*

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT; MICHAEL BUNKER;

ROBERT LEONARD; GREGORY

BRANON; DAVID RADCLIFFE; DAVID

R. HORN,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted April 9, 2025

San Francisco, California

Before: SCHROEDER, S.R. THOMAS, and MILLER, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Miller.

In 1986, Paul Browning was convicted of murder in Nevada state court and

sentenced to death. Years later, after successfully pursuing federal habeas corpus

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

relief, he was released from custody. See Browning v. Baker, 875 F.3d 444 (9th

Cir. 2017). He brought this action under 42 U.S.C. § 1983 against the Las Vegas

Metropolitan Police Department (LVMPD) and the individual officers involved in

his criminal case. The district court granted summary judgment to the defendants.

Browning’s estate (the Estate), which has been substituted as the plaintiff, now

appeals.

We have jurisdiction under 28 U.S.C. § 1291. We reverse the grant of

summary judgment with respect to: (1) the Estate’s claims of suppression of

evidence against Officer Gregory Branon based on the hairstyle evidence and

against Branon and Officer David Radcliffe based on the shoeprint evidence;

(2) the Estate’s claim of municipal liability against the LVMPD; and (3) the

Estate’s state-law claim for intentional infliction of emotional distress against

Branon, Radcliffe, and the LVMPD. In all other respects, we affirm.

1. The Estate has created a genuine issue of material fact with respect to two

of its three claims under Brady v. Maryland, 373 U.S. 83 (1963), and the analogous

state-law doctrine. As an initial matter, we reject the Estate’s argument that our

decision in Browning’s habeas case has an issue-preclusive effect in resolving the

Brady claims. Because the defendants in this case were not parties to Browning’s

federal habeas proceedings, issue preclusion does not apply. See Clark v. Bear

Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992).

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To establish the civil liability of individual officers who suppressed

evidence, a plaintiff must show both that the officers violated his constitutional

rights under Brady and that the violation was clearly established at the time. See

Carrillo v. County of Los Angeles, 798 F.3d 1210, 1218 (9th Cir. 2015). A section

1983 claim based on an officer’s Brady violation requires a plaintiff to show that

“(1) the officer suppressed evidence that was favorable to the accused from the

prosecutor and the defense, (2) the suppression harmed the accused, and (3) the

officer ‘acted with deliberate indifference to or reckless disregard for an accused’s

rights or for the truth in withholding evidence from prosecutors.’” Mellen v. Winn,

900 F.3d 1085, 1096 (9th Cir. 2018) (quoting Tennison v. City & Cnty. of San

Francisco, 570 F.3d 1078, 1087, 1089 (9th Cir. 2009)).

The Estate has made a sufficient showing on all three elements to proceed to

trial. First, the record creates a genuine issue of material fact as to whether some of

the individual defendants suppressed hairstyle and shoeprint evidence that was

favorable to Browning. As one of the first officers to arrive at the crime scene,

Branon was able to communicate with the still-lucid victim, Hugo Elsen, who

described the perpetrator’s hair as “shoulder length” and “moist or wet,” with

“loose” curls. But this specific description was never provided to the defense;

instead, based on his own understanding of black hairstyles, Branon summarized

the perpetrator’s hairstyle in his police report as a shoulder-length Jheri curl. At

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trial, Browning, who had an Afro, pointed out that he did not match Elsen’s

description, and the prosecutor responded by arguing, “couldn’t someone, some

white person, not really knowing the true definition of J[h]eri curl, seen this, not

knowing that it is a round Afro or anything, they see it sticking out of the bottom

of a cap, tell the officer that it looks to them like a J[h]eri curl?” That made “the

exact words [Elsen] used to describe his assailant evidence favorable to the defense

under Brady.” Browning, 875 F.3d at 463. Had those words been disclosed, they

would have bolstered Browning’s argument that he could not have been the man

Elsen described.

Similarly, when Branon arrived at the scene—before the paramedics—he

observed bloody shoeprints on the floor. He did not include that observation in his

report, and neither did Radcliffe, who arrived around the same time as Branon and

would have “been able to see that the footprints were there prior to anyone else

arriving.” Instead, Criminal Specialist David R. Horn, who began collecting

evidence after paramedics transported Elsen to the hospital, simply noted that

“[u]pon entering the store a series of footsteps bearing a tennis shoe pattern were

observed on the floor.” At Browning’s trial, Horn testified that the tennis-shoe

pattern did not match Browning’s footwear, but he implied that they could have

been left by the paramedics, who often wore tennis shoes. Although Browning was

cleared of being the source of the bloody shoeprints, the evidence was rendered

4 24-2034

largely meaningless by Branon’s and Radcliffe’s failure to disclose when the

shoeprints were first observed. Had the timing been disclosed, “Browning could

have used that evidence to bolster his contention that the shoeprints were left by

the real killer.” Browning, 875 F.3d at 461.

Second, the Estate has presented enough evidence that the withheld evidence

was material to Browning’s criminal case to create a genuine dispute of material

fact about whether the suppression harmed him. See Mellen, 900 F.3d at 1096

(applying a materiality standard to evaluate the second element of a section 1983

claim based on a Brady violation). Withheld evidence is material if, when the

evidence is considered collectively, there is a reasonable probability that the result

of the criminal proceeding would have been different had the evidence been

disclosed. United States v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 514

U.S. 419, 436 (1995). Here, because the suppressed hairstyle and shoeprint

evidence tends to exculpate Browning and bolster the theory that he was not the

perpetrator, that evidence creates a “probability sufficient to undermine

confidence in” the jury’s guilty verdict. Bagley, 473 U.S. at 682; see Browning,

875 F.3d at 464–65 (explaining the materiality of the suppressed evidence).

Third, the Estate has shown a genuine dispute of material fact as to the

individual defendants’ state of mind. Whether a defendant acted with the required

mental state is ultimately “a question of fact subject to demonstration in the usual

5 24-2034

ways, including inference from circumstantial evidence.” Mellen, 900 F.3d at 1101

(quoting Lemire v. California Dep’t of Corrs. & Rehab., 726 F.3d 1062, 1078 (9th

Cir. 2013)).

Viewing the facts in the light most favorable to the Estate, the evidence

supports reasonable inferences that the officers acted with deliberate indifference

to, or reckless disregard for, Browning’s constitutional rights in failing to disclose

both the hairstyle and the shoeprint evidence. Although Elsen was the eyewitness

who described Browning’s hairstyle, Branon was the one who described the

perpetrator’s hairstyle as a Jheri curl. Critically, Branon admitted that he was

“surprised” when he learned that Browning was arrested for the crimes because

Browning’s hairstyle did not match the physical description of “shoulder length

loose curled hair.” Branon’s surprise suggests that he recognized the importance of

the hairstyle evidence—or so a jury could infer. Nevertheless, Branon did not

disclose Elsen’s first-hand description of Browning’s hair.

The same is true with respect to the bloody shoeprints. Branon, who saw the

bloody shoeprints when he first arrived at the crime scene, understood that they

were important because they led from the victim to the door. Indeed, Branon

deemed the evidence sufficiently important that he sought to prevent Elsen’s wife

from stepping in the blood. And Branon admitted that he thought there was a

“distinct possibility” that the shoeprints belonged to the killer. Because Branon

6 24-2034

understood that the shoeprint evidence was probative, a jury could conclude that

his failure to disclose that he saw the footprints before anyone else arrived showed

a reckless disregard for Browning’s Brady rights. A reasonable jury could find that

Radcliffe, as one of the first officers to arrive at the crime scene, also knew that the

bloody shoeprints were present before the paramedics arrived. Because Radcliffe

had personal knowledge of the crucial fact that made the shoeprint evidence

exculpatory, a reasonable jury could find that he suppressed exculpatory evidence

with deliberate indifference or reckless disregard for Browning’s rights.

By contrast, we are not persuaded by the Estate’s argument that the officers

suppressed evidence of the unreliability of two prosecution witnesses, Randy and

Vanessa Wolfe. Although some of that evidence was omitted from the police

report, the Wolfes’ drug addiction and criminal history were ultimately explored at

Browning’s criminal trial. For example, Randy admitted that both he and his wife

habitually used illegal drugs, and that he had been arrested for stealing and

convicted of felonies.

As to the second prong of the qualified-immunity inquiry, the officers do not

dispute that the relevant Brady principles were clearly established at the time. See

Carrillo, 798 F.3d at 1219. Because the Estate meets both prongs of the qualified-

immunity analysis, we reverse the district court’s summary judgment in favor of

the defendants and remand to allow the evidence-suppression claim to proceed to

7 24-2034

trial against Branon with respect to the hairstyle evidence and against Branon and

Radcliffe with respect to the shoeprint evidence. We affirm the grant of summary

judgment on the Brady claim based on the evidence provided by the Wolfes.

2. We reject the Estate’s effort to hold Horn, Sergeant Michael Bunker, and

Detective Robert Leonard liable for the Brady violations on failure-to-intervene or

civil conspiracy theories.

“[A]n official whose ‘individual actions’ do ‘not themselves rise to the level

of a constitutional violation’ may be held liable under section 1983 only if the

official is an ‘integral participant’ in the unlawful act.” Peck v. Montoya, 51 F.4th

877, 889 (9th Cir. 2022) (quoting Reynaga Hernandez v. Skinner, 969 F.3d 930,

941 (9th Cir. 2020)). There is no evidence of a common plan among the officers to

work together to suppress the evidence, nor is there evidence that the officers

(other than those we have identified above as potentially facing direct liability for

the Brady violation) set in motion acts that they knew or should have known would

cause a Brady violation. Id. at 892.

The claim of civil conspiracy under section 1983 fails because the law at the

time did not clearly establish that officers from the same police department could

be held liable for a civil conspiracy. See Ziglar v. Abbasi, 582 U.S. 120, 154 (2017)

(explaining disagreement among circuits as to whether agents of the same legal

entity are distinct enough to conspire with one another under 42 U.S.C. § 1985(3)).

8 24-2034

And the conspiracy claim under state law fails because Nevada recognizes the

intracorporate-conspiracy doctrine, which precludes liability when employees of

the same department act in their official capacities. See Collins v. Union Fed. Sav.

& Loan Ass’n, 662 P.2d 610, 622 (Nev. 1983).

3. We assume without deciding that the officers’ use of a show-up

identification on the day of the murder violated Browning’s due-process rights

because the procedure was so suggestive and unreliable that misidentification

likely occurred. Nevertheless, the officers are entitled to qualified immunity

because the law at the time did not clearly establish that the identification

procedure was unconstitutional. The district court therefore correctly granted

summary judgment on that claim.

The Supreme Court has repeatedly admonished us “not to define clearly

established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011). We therefore consider whether the law at the time put the officers on

notice that their specific procedure—a one-person show-up during which the

suspect was placed in a police car—was unconstitutional.

The Estate relies principally on Simmons v. United States, but that case is

inapposite. 390 U.S. 377 (1968). In Simmons, the police obtained photographs of a

suspected bank robber and showed them alongside photographs of a possible

accomplice to five bank employees who had witnessed the robbery the day before.

9 24-2034

Id. at 380. Here, by contrast, the police presented Browning to eyewitnesses in

person and less than an hour after the police call. Other cases cited by the Estate

similarly did not evaluate identification procedures comparable to the one used

here and could not have put the officers on notice that their specific show-up

procedure was impermissible. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 101

(1977) (photographic identification of a single suspect by an undercover police

officer); Neil v. Biggers, 409 U.S. 188, 193, 195 (1972) (show-up identification of

a youth suspect by the victim herself); United States v. Wade, 388 U.S. 218, 220

(1967) (line-up identification involving at least six individuals); see also Foster v.

California, 394 U.S. 440, 441 (1969) (suggestive line-up procedure in which only

the defendant was wearing clothing similar to that of the perpetrator).

The Estate suggests in passing that its unreliable-identification argument

may separately support a claim under state law. Because the argument is not

developed—and was not mentioned in the Estate’s summary-judgment briefing—

we consider it forfeited. See Pritchard ex rel. C.P. v. Blue Cross Blue Shield of Ill.,

159 F.4th 646, 660 (9th Cir. 2025).

4. Criminal defendants have a due-process right “not to be subjected to

criminal charges on the basis of false evidence that was deliberately fabricated by

the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) (en

banc). In the absence of direct evidence of falsification, a violation of this right can

10 24-2034

be established by circumstantial evidence that either (1) the officers “continued

their investigation . . . despite the fact that they knew or should have known that

[the suspect] was innocent” or (2) the officers “used investigative techniques that

were so coercive and abusive that they knew or should have known that those

techniques would yield false information.” Gantt v. City of Los Angeles, 717 F.3d

702, 707 (9th Cir. 2013) (quoting Devereaux, 263 F.3d at 1076); see Spencer v.

Peters, 857 F.3d 789, 793 (9th Cir. 2017). We agree with the district court that the

record does not support reasonable inferences of deliberate fabrication, either

through direct or circumstantial evidence.

First, the Estate has provided no direct evidence of falsification. That is, the

Estate cannot point to any officer who “deliberately mischaracterize[d]”

information, such as by deliberately inventing, misrepresenting, or intentionally

misquoting witness statements. Costanich v. Department of Soc. & Health Servs.,

627 F.3d 1101, 1111 (9th Cir. 2010); cf. Devereaux, 263 F.3d at 1079 (noting that

“a Brady violation cannot in itself support a deliberate-fabrication-of-evidence

claim”).

Second, the Estate cannot point to any circumstantial evidence of

fabrication. Devereaux outlined two ways of inferring deliberate fabrication from

circumstantial evidence, 263 F.3d at 1076, but both methods require knowledge on

the part of the officers, see Spencer, 857 F.3d at 799. Here, the officers did not

11 24-2034

have actual or constructive knowledge of Browning’s innocence at the time of their

investigation. There was at least some undisputed evidence—for example,

Browning’s fingerprints on the glass fragments in Elsen’s store—that tied him to

the crimes. Nor did the officers “knowingly use[] coercive and abusive techniques”

when they interviewed the eyewitnesses. Id.

5. Under Monell v. New York City Department of Social Services, plaintiffs

may bring section 1983 actions against municipalities for constitutional

deprivations pursuant to a governmental custom or policy. 436 U.S. 658, 690–91

(1978). The Estate’s Monell claim rests on the theory that the LVMPD failed to

adopt policies and train its officers on preserving and disclosing material evidence

under Brady. A municipality’s Monell liability may extend to constitutional

violations that occurred due to the inadequacy of police training “where the failure

to train amounts to deliberate indifference to the rights of persons with whom the

police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989);

accord Benavidez v. County of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021).

Here, there are triable issues as to whether the LVMPD failed to adequately

train its officers. Bunker and Lieutenant Jolley could not remember receiving any

such training. Jolley testified that he assumed that the LVMPD had policies and

trainings on disclosing evidence and documenting information from witnesses, but

he could not recall anything further. The LVMPD’s policy manual included just a

12 24-2034

single sentence concerning an officer’s duty not to fabricate, withhold, or destroy

evidence, and an expert testified that the department’s policies were generalized

and gave inadequate direction to officers. And indeed, as discussed above, the

record reflects that several defendants failed to record and disclose hairstyle and

shoeprint evidence that was favorable to Browning, and that they used suggestive

and unreliable identification procedures.

Construing this evidence in the Estate’s favor, a reasonable jury could infer

that the LVMPD failed to adopt policies and adequately train the officer

defendants, demonstrating deliberate indifference to Browning’s constitutional

rights. See Benavidez, 993 F.3d at 1153–54 (9th Cir. 2021). Accordingly, we

reverse the district court’s grant of summary judgment as to the Estate’s Monell

claim.

6. The Estate also asserts Fourth Amendment and state-law claims for

malicious prosecution and related torts. “[T]he gravamen of the Fourth

Amendment claim for malicious prosecution . . . is the wrongful initiation of

charges without probable cause.” Thompson v. Clark, 596 U.S. 36, 43 (2022).

Therefore, “probable cause is an absolute defense to malicious prosecution.”

Lassiter v. City of Bremerton, 556 F.3d 1049, 1054–55 (9th Cir. 2009); see also

Jordan v. Bailey, 944 P.2d 828, 834 (Nev. 1997) (same under Nevada law).

13 24-2034

The Estate’s claim fails because the Estate cannot establish a lack of

probable cause. Even setting aside the evidence that the Estate now challenges as

unreliable or fabricated, there remain undisputed facts in the record that reflect a

sufficient probability of Browning’s involvement in the crimes to justify his arrest

and detention. The officers apprehended Browning in a motel room and found a

blue cap, knife, and jewelry nearby; a witness positively and unequivocally

identified Browning as the assailant; and, as noted, Browning’s fingerprints were

found on glass fragments from the jewelry store. The district court therefore

correctly granted summary judgment to defendants. See McKenzie v. Lamb, 738

F.2d 1005, 1008 (9th Cir. 1984) (explaining that while probable cause is

“generally” a question for the jury, summary judgment is appropriate “if no

reasonable jury could find that the officers did or did not have probable cause to

arrest”).

7. We reverse the grant of summary judgment on the Estate’s intentional

infliction of emotional distress claim as to Branon, Radcliffe, and the LVMPD.

Under Nevada law, such a claim has three elements: “(1) extreme and outrageous

conduct with either the intention of, or reckless disregard for, causing emotional

distress, (2) the plaintiff’s having suffered severe or extreme emotional distress and

(3) actual or proximate causation.” Star v. Rabello, 625 P.2d 90, 92 (Nev. 1981).

The parties dispute only the first element. Viewing the evidence in the light most

14 24-2034

favorable to the Estate, we conclude that there is a genuine dispute of material fact

as to whether Branon, Radcliffe, and the LVMPD acted with reckless disregard for

Browning’s innocence when they withheld exculpatory evidence and therefore

engaged in extreme and outrageous conduct. Cf. Rivera v. Corrections Corp. of

Am., 999 F.3d 647, 655 (9th Cir. 2021) (finding a triable issue of fact as to whether

detaining an inmate for a year without arraignment was sufficiently extreme and

outrageous to support a claim for intentional infliction of emotional distress under

Nevada law). Branon and Radcliffe face potential liability because they were

involved in at least one of the possible Brady violations, and the LVMPD is

potentially liable on a respondeat superior theory. A jury should make the factual

determination about whether these defendants’ Brady violations were intended to

cause emotional distress or done with reckless disregard as to such a probability

such that they amount to extreme and outrageous conduct. See Posadas v. City of

Reno, 851 P.2d 438, 456 (Nev. 1993).

8. We affirm the grant of summary judgment on the abuse-of-process claim.

Under Nevada law, the tort of abuse of process requires establishing “(1) an

ulterior purpose by the defendants other than resolving a legal dispute, and (2) a

willful act in the use of the legal process not proper in the regular conduct of the

proceeding.” Kovacs v. Acosta, 787 P.2d 368, 369 (Nev. 1990). The first element

typically requires a motive unrelated to the legal process itself. See, e.g., Posadas,

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851 P.2d at 445. Here, the Estate has not presented evidence of any motive beyond

the officers’ usual purpose in investigating criminal suspects.

9. Lastly, we address the Estate’s procedural and evidentiary challenges.

First, the Estate argues that the district court erred in its near-verbatim adoption of

the defendants’ proposed summary-judgment order. In general, we disapprove of

the “[w]holesale adoption of one side’s proposed findings of fact and conclusions

of law.” Northern Stevedoring & Handling Corp. v. International Longshoremen’s

& Warehousemen’s Union, Loc. No. 60, 685 F.2d 344, 350 (9th Cir. 1982); see

also Photo Elecs. Corp. v. England, 581 F.2d 772, 776–77 (9th Cir. 1978). Here,

however, the district court responded to some of the Estate’s objections in a

separate order, demonstrating that it independently evaluated and considered the

Estate’s position.

Second, the Estate contends that the district court displayed bias, but the

contention is baseless. Nothing in the record suggests that the district court will

have difficulty “taking a fresh approach to the case on remand.” Smith v.

Mulvaney, 827 F.2d 558, 563 (9th Cir. 1987). The Estate has not come close to

showing that reassignment is warranted.

Third, the Estate contends that the district court erred in rejecting, as

inadmissible hearsay, Browning’s 1989 affidavit prepared for the criminal trial and

his 1999 testimony at the state habeas evidentiary hearing. Because Browning died

16 24-2034

before he could be deposed in this case, his affidavit and testimony are out-of-court

statements by an unavailable declarant being offered to “prove the truth of the

matter asserted.” Federal Rule of Evidence 801(c); see also Federal Rule of

Evidence 804(a)(4).

The district court did not abuse its discretion in refusing to admit

Browning’s affidavit under the residual hearsay exception in Federal Rule of

Evidence 807. Rule 807 “exists to provide judges a ‘fair degree of latitude’ and

‘flexibility’ to admit statements that would otherwise be hearsay,” and we have

given “wide discretion” to district courts in applying it. United States v. Bonds, 608

F.3d 495, 501 (9th Cir. 2010) (quoting United States v. Valdez–Soto, 31 F.3d 1467,

1471 (9th Cir. 1994)). The affidavit does not involve the kind of “exceptional

circumstances” contemplated by Rule 807. See id. at 501–02. The district court’s

rejection of the affidavit was within the bounds of its discretion.

But the district court abused its discretion by refusing to admit Browning’s

prior testimony under Federal Rule of Evidence 804(b)(1). The defendants dispute

only whether the State of Nevada had a “similar motive” to develop the testimony

at the evidentiary hearing. We have held that similarity of motive should be

assessed “at a high level of generality.” United States v. McFall, 558 F.3d 951,

962–63 (9th Cir. 2009); see United States v. Salerno, 505 U.S. 317, 326 (1992)

(Blackmun, J., concurring). We are satisfied that the motives are sufficiently

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similar. Both the state habeas petition and this section 1983 action are based on the

same set of facts. Although Browning’s arguments in the state habeas proceeding

focused on ineffective assistance of counsel, the proceeding concerned the same

underlying issues that the Estate now raises, including the suppression of the

hairstyle and shoeprint evidence and the reliability of the eyewitness identification

procedure. See Browning, 875 F.3d at 455–58. At the evidentiary hearing, the State

also had an opportunity to cross-examine Browning, who discussed the alleged

Cuban perpetrator, the hairstyle differences, and his prior felony convictions. Thus,

the State and the defendants here share “very similar—if not the same—motive[s]

in both proceedings.” United States v. Geiger, 263 F.3d 1034, 1038 (9th Cir.

2001). We reverse the district court’s exclusion of Browning’s former testimony,

which should be considered on remand to the extent it is relevant to whether the

suppressed evidence was material to Browning’s criminal case.

The parties shall bear their own costs on appeal.

AFFIRMED in part and REVERSED in part; REMANDED.

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FILED

The Estate of Paul Browning ex rel. Betty Browning v. Las Vegas Metropolitan

JUL 8 2026

Police Department, et al., No. 24-2034

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MILLER, Circuit Judge, concurring in part and dissenting in part:

I join the court’s disposition except as to part 5, which reverses the grant of

summary judgment on the Estate’s Monell claim.

A municipality’s Monell liability may extend to constitutional violations that

occurred because of its failure to train its police officers, but “only where the

failure to train amounts to deliberate indifference to the rights of persons with

whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388

(1989). The Supreme Court has cautioned that the deliberate-indifference standard

must be applied strictly, lest failure-to-train claims result in “de facto respondeat

superior liability.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting Canton,

489 U.S. at 392); see id. at 61 (noting that “[a] municipality’s culpability for a

deprivation of rights is at its most tenuous where a claim turns on a failure to

train”). And “[w]ithout notice that a course of training is deficient in a particular

respect, decisionmakers can hardly be said to have deliberately chosen a training

program that will cause violations of constitutional rights.” Id. at 62.

The Estate has not demonstrated that the LVMPD was aware of any

inadequacy in its training program, nor has the Estate pointed to a pattern of

similar Brady violations by LVMPD officers. At most, the Estate can show that one

of the individual defendants could not recall the specific Brady-related training he

1

received decades earlier. But “evidence of the failure to train a single officer is

insufficient to establish a municipality’s deliberate policy.” Blankenhorn v. City of

Orange, 485 F.3d 463, 484 (9th Cir. 2007). Because insufficient evidence supports

the inference that the LVMPD had notice of the need to provide additional training,

I would affirm the district court’s grant of summary judgment on the Estate’s

Monell claim.

2