Smith v. Almada

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY W. SMITH; TERESA SMITH,  Nos. 09-55334

Plaintiffs-Appellants,

09-55346

v.

 D.C. No.

ROBERT ALMADA, Santa Monica 2:06-cv-1626-AHM

Police Sergeant,

OPINION

Defendant-Appellee.



On Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

June 9, 2010—Pasadena, California

Filed October 19, 2010

Before: Dorothy W. Nelson and Ronald M. Gould,

Circuit Judges, and James S. Gwin, District Judge.*

Opinion by Judge Gwin;

Dissent by Judge D.W. Nelson

*The Honorable James S. Gwin, United States District Judge for the

Northern District of Ohio, sitting by designation.

17221

17224 SMITH v. ALMADA

COUNSEL

Brett J. Votterro, Springfield, Massachusetts, for the appel-

lant.

Anthony P. Serritella, Deputy City Attorney, Santa Monica,

California, for the appellee.

OPINION

GWIN, District Judge:

Plaintiffs Anthony Smith and his wife Theresa Smith

appeal the district court’s grant of summary judgment to

Defendant Santa Monica Police Sergeant Robert Almada on

SMITH v. ALMADA 17225

Smith’s claims for false arrest, malicious prosecution, and

suppression of exculpatory evidence and on Theresa Smith’s

substantive due process claim for deprivation of familial rela-

tions.1 In support of his action against Almada, Smith claims

that Sergeant Almada failed to disclose materially exculpatory

evidence in Smith’s criminal arson trial—including a demon-

strably false identification by a key witness against Smith.

Although Smith’s first trial resulted a mistrial after the jury

was unable to reach a verdict, he says that access to the excul-

patory evidence would have resulted in an acquittal in the first

trial, rather than a mistrial. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

I

In the early morning hours of February 13, 2003, a fire

started inside Simply Sofas, a furniture store owned by Mari-

lyn Nelson. The fire and smoke largely destroyed the store’s

inventory, causing more than $2.8 million in damage.

After investigating, fire inspectors determined that an

arsonist used three five-gallon water bottles filled with gaso-

line and stuffed with rolled-up periodicals, newspapers, and

other gasoline-soaked mail as “firebombs” to start the fire.

Under the melted remains of one bottle, the investigators also

found an irregularly shaped piece of asphalt that matched a

hole in the alley across the street from the furniture store. The

investigators concluded that the arsonist had broken the store

window, likely with the asphalt, and placed the gasoline-filled

bottles on a table just inside the window.

The gasoline-soaked papers that the investigators found

inside the melted bottles included numerous pieces of mail

addressed to Appellants Smith’s residence over a five-year

1

The parties agree that Teresa Smith’s claim is entirely dependent on

the survival of her husband’s claims. Because we affirm the dismissal of

Smith’s claims, we also affirm the dismissal of his wife’s claims.

17226 SMITH v. ALMADA

period, including: a July 1997 U.S. News magazine addressed

to Anthony Smith, a December 1999 U.S. News magazine

addressed to Anthony Smith, a January 2000 Motorcycle

Rider magazine addressed to Anthony Smith, a 2002 tenant

notice issued by Smith’s apartment complex, a 2002 express

mail envelope signed for by Anthony Smith, a Fall/Winter

2002 JC Penney catalog addressed to “Aundrea Smith,” a

University of Alabama envelope addressed to Anthony Smith,

a March of Dimes envelope addressed to Anthony Smith, a

handwritten greeting card addressed to “the beloved Smith

family,” a Rochester Clothing catalog addressed to Teresa

Smith, a Los Angeles Music Center mailer addressed to

Anthony Smith, and a Mark Taper Forum mailer addressed to

Anthony Smith. The investigators also found the burnt busi-

ness card of a Beverly Hills woman who worked for Smith.

Soon after the fire was under control, Defendant Santa

Monica Police Sergeant Robert Almada took over the investi-

gation. Almada had investigated four previous fires set in

dumpsters behind Nelson’s stores in October and November

2002. One of those fires had been started with contraptions

similar to the firebombs that started the February 2003 fire,

yet witnesses to those earlier fires (including store owner Nel-

son) described different suspects, none resembling Smith.

In his investigation of the February 2003 fire, Sergeant

Almada interviewed Nelson, who said that she, her daughter

and son-in-law (both business partners in the store with Nel-

son), and a clerk had keys to the store. Nelson told Sergeant

Almada that she and her son-in-law had closed the store early

the evening of the fire and that her son-in-law had locked all

of the doors.

According to Nelson, her business was in healthy financial

condition: Annual sales were approximately $3 million, with

profits around $400,000. The store had almost no debt. Nel-

son said she had never made a business- or fire-related insur-

SMITH v. ALMADA 17227

ance claim. Nelson did, however, receive insurance proceeds

for the February 2003 fire.

At the time of the initial interview, Sergeant Almada asked

Nelson if she could think of anyone with a motive for the

arson. Nelson mentioned a former employee whom she had

recently fired and a few other names, but not Smith.

Given that a large amount of Smith’s mail received over a

long period of time had been used as a wick to start the fire,

Sergeant Almada began to focus his investigation on Smith.

Almada questioned Smith, who described selling items on

consignment through Nelson’s store and stated that he and

Nelson had a “minor issue” in January 2003 arising out of a

broken item and a stop-payment order that Nelson had placed

on a check paid to Smith.

Sergeant Almada then circled back to speak with Nelson.

After Almada told Nelson that Smith was a suspect, Nelson

described an “uncomfortable and tense” January 2003 dispute

with Smith. The dispute centered over whether a consigned

item was damaged before or after being given to Nelson. Nel-

son said that when Smith dropped by her store to pick up a

consignment check, she told Smith that one of his consign-

ment items had been broken before Smith delivered it to Nel-

son’s store, and that she would not pay him the full amount

for the item. But Smith claimed that one of Nelson’s employ-

ees had broken the item and demanded that Nelson pay for it.

Nelson said that Smith’s demeanor was threatening and

frightening and that he stuck his finger in her face. To end the

dispute, Nelson promised to give Smith an additional check

for the broken item. Later, Smith’s assistant called Nelson and

said that Smith had lost the first check, so Nelson wrote Smith

a second check for the value of the original consignment

check plus the value of the broken item. Nelson then

explained that after learning that Smith had cashed the first

check, she stopped payment on the second check. Nelson said

17228 SMITH v. ALMADA

she felt that Smith was trying to intimidate her into paying

more than she owed him.

In addition—and central to Smith’s claims against Sergeant

Almada—Nelson claimed to have seen Smith in front of her

boarded-up store on the afternoon of June 28, 2003, “laughing

and smiling” as he pointed to the area of the fire’s origin.

However, Sergeant Almada’s investigation ultimately showed

that Nelson’s statement was false: Sergeant Almada viewed a

security tape from Smith’s apartment building showing that

Smith was at home on June 28, 2003, the day Nelson claimed

to have seen him.

Nevertheless, armed with Nelson’s statement, Sergeant

Almada confronted Smith with the evidence against him.

According to Sergeant Almada, upon learning of the scale of

the fire and the evidence against him, Smith slumped over,

began to cry, and apologized repeatedly. Smith recalls the

conversation differently, claiming that Sergeant Almada told

him that firefighters had been fatally injured in the fire and

that he cried and said he was sorry for their death but never

said that he had been involved. Smith could not explain how

his mail from a five-year period ended up in the firebombs but

continued to deny involvement in the fire. Sergeant Almada

did not arrest Smith at that time.

Instead, Sergeant Almada met with deputy district attorney

Jean Daly to discuss the case against Smith. Although Daly

does not recall discussing the prior dumpster fires behind Nel-

son’s store, Sergeant Almada claims that he mentioned them

to prosecutor Daly but said he doubted that they were related

to the February 2003 fire. Sergeant Almada did not tell Daly

about Nelson’s false report of Smith’s gloating. After hearing

Sergeant Almada’s account of the evidence against Smith,

Daly recommended that Sergeant Almada obtain a warrant for

Smith’s arrest.

Consequently, Sergeant Almada sought an arrest warrant

from Los Angeles Superior Court Judge Richard Neidorf,

SMITH v. ALMADA 17229

who signed the warrant. Sergeant Almada then arrested

Smith, and prosecutor Daly filed a criminal complaint charg-

ing Smith with arson. Smith did not make bail after his arrest

and remained in jail through his first trial in June 2004.

At Smith’s first trial, Nelson testified that her January 2003

dispute with Smith “shocked” and “intimidated” her. She said

that Smith looked at her in a “very threatening” manner and

“pushed his finger and almost to my face,” and that as a result

she was “frightened” and “very intimidated.” Smith’s defense

attorney attempted to introduce evidence of the October 2002

dumpster fire—which predated Smith’s altercation with

Nelson—but the trial court granted the prosecution’s motion

in limine to exclude the evidence.

At the conclusion of the first trial, the jury could not reach

a verdict, with five jurors voting “guilty” and seven jurors

voting “not guilty.”

After the court declared a mistrial, Daly reviewed the case

with the head deputy district attorney, who approved Daly’s

recommendation to retry the case. Smith remained in custody.

At Smith’s second trial in December 2004, on substantially

the same evidence, the jury again could not reach a verdict,

this time with one juror voting to convict and eleven jurors

voting to acquit. The trial court then dismissed the case

against Smith under California Penal Code § 1385, finding

that although “there are certainly strong inferences to suggest

that Mr. Smith did this,” the prosecution would never be able

to obtain a unanimous verdict. Only after this dismissal was

Smith released from custody.

Thereafter, the Smiths sued Sergeant Almada under 42

U.S.C. § 1983 for false arrest, malicious prosecution, and fail-

ure to disclose exculpatory evidence. After discovery, the dis-

trict court granted Sergeant Almada’s summary judgment

motion. On the false arrest claim, the district court held that

17230 SMITH v. ALMADA

Sergeant Almada was entitled to qualified immunity because

a competent officer could reasonably have determined that

probable cause existed to arrest Smith for arson. On the mali-

cious prosecution claim, the district court concluded that Ser-

geant Almada did not knowingly submit material false

information to the prosecution. Finally, on the failure to dis-

close exculpatory evidence claim, the district court held that

the allegedly withheld evidence—the fact that Nelson’s testi-

mony about Smith’s gloating at the crime scene was false—

would not have materially affected Smith’s trial.

This timely appeal followed.

II

We review de novo a district court’s grant of summary

judgment. See, e.g., Olsen v. Idaho State Bd. of Med., 363

F.3d 916, 922 (9th Cir. 2004). Accordingly, we must deter-

mine, viewing the evidence in the light most favorable to

Smith, whether any genuine issues of material fact exist and

whether the district court correctly applied the substantive

law. Id. at 922.

A

Smith’s first claim—which the district court dismissed on

qualified immunity grounds—is that Sergeant Almada vio-

lated his Fourth Amendment rights by arresting him without

probable cause.

Although a private party may bring a § 1983 claim for an

arrest pursuant to an improperly issued arrest warrant, see

Malley v. Briggs, 475 U.S. 335, 342 (1986), qualified immu-

nity shields the arresting officer from suit when he or she

“makes a decision that, even if constitutionally deficient, rea-

sonably misapprehends the law governing the circumstances.”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The doctrine

immunizes reasonable mistakes, thus freeing officers to

SMITH v. ALMADA 17231

“make difficult decisions in challenging situations” without

allowing fear of liability to “disrupt[ ] the effective perfor-

mance of their public duties.” Mueller v. Auker, 576 F.3d 979,

993 (9th Cir. 2009).

In a garden-variety false arrest claim challenging the proba-

ble cause for an arrest, if the arrest warrant is facially valid,

the arresting officer enjoys qualified immunity unless “the

warrant application is so lacking in indicia of probable cause

as to render official belief in its existing unreasonable . . . .”

Malley, 475 U.S. at 344-45; see also KRL v. Estate of Moore,

512 F.3d 1184, 1190 (9th Cir. 2008) (“[A]n officer who pre-

pares or executes a warrant lacking probable cause is entitled

to qualified immunity unless no officer of reasonable compe-

tence would have requested the warrant.”). Here, however,

Smith does not contend that Sergeant Almada’s warrant appli-

cation lacked probable cause on its face. Instead, Smith

argues that Sergeant Almada misled the magistrate judge

when applying for the warrant, and that had the magistrate

considered all of the facts, the magistrate would not have

found probable cause.

[1] To maintain a false arrest claim for judicial deception,

a plaintiff must show that the officer who applied for the

arrest warrant “deliberately or recklessly made false state-

ments or omissions that were material to the finding of proba-

ble cause.” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir.

2004). The materiality element—a question for the court, see

id.—requires the plaintiff to demonstrate that “the magistrate

would not have issued the warrant with false information

redacted, or omitted information restored.” Lombardi v. City

of El Cajon, 117 F.3d 1117, 1126 (9th Cir. 1997). For exam-

ple, in Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir.

2009), we concluded that a warrant application’s two false

statements about the plaintiff were not material because an

independent, reliable source’s detailed description of the inci-

dent and identification of the plaintiff at the scene were suffi-

cient to establish probable cause. Id. at 1224-25. And in

17232 SMITH v. ALMADA

Lombardi, although a drug search warrant application failed

to mention that the two confidential informants—whose state-

ments were the only evidence that the plaintiff had drugs in

his home—had axes to grind with the plaintiff, we neverthe-

less held that the omitted information was immaterial because

the informants’ statements were given independently, were

detailed, were based on personal observation, were corrobo-

rated by one another, and were against one informant’s penal

interests. 117 F.3d at 1126-27.

Here, Smith contends that the magistrate would not have

issued the arrest warrant if Sergeant Almada’s warrant appli-

cation had not included false representations—that Nelson

had independently recalled her dispute with Smith and that

Smith’s tearful apologies were a tacit admission to the crime

—but instead had included (1) the details of the four dumpster

fires predating Smith’s altercation with Nelson, (2) the other

suspects in the February 2003 fire, and (3) the fact that Nelson

falsely claimed to have seen Smith gloating at the crime scene

several months after the fire.

[2] Yet even if Sergeant Almada falsified and omitted this

information (as Smith contends), the corrected report and

warrant application would still have contained a core set of

facts sufficient to establish probable cause to arrest Smith for

arson. First, even without Nelson’s testimony about the pay-

ment dispute with Smith over his consigned items less than

one month before the fire—which would have been less credi-

ble in light of her demonstrably false report about Smith’s

gloating—Sergeant Almada’s corrected report still would

have contained Smith’s own admission of the dispute. And

Sergeant Almada’s corrected report would still have

recounted that the firebombs contained numerous pieces of

mail addressed over a five-year period to Smith and his wife

at their residence—a fact that Smith could not explain to

Almada or at trial. This evidence linking Smith to the fire was

sufficient to overcome any negative inferences the magistrate

might have drawn from the earlier dumpster fires.

SMITH v. ALMADA 17233

[3] These facts, together with the evidence of a motive,

gave probable cause to believe that Smith was guilty of arson.

Thus, because the changes suggested by Smith to Sergeant

Almada’s warrant application do not compel the conclusion

that “a neutral magistrate would not have issued the warrant,”

Lombardi, 117 F.3d at 1126, we conclude that the district

court properly granted summary judgment against Smith on

his false arrest claim.

B

Smith’s second claim is that Sergeant Almada’s false state-

ments and failure to disclose material information to the pros-

ecutor caused Smith’s malicious prosecution.

[4] A criminal defendant may maintain a malicious prose-

cution claim not only against prosecutors but also against

others—including police officers and investigators—who

wrongfully caused his prosecution. See Galbraith v. County of

Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). To main-

tain a § 1983 action for malicious prosecution, a plaintiff must

show that “the defendants prosecuted her with malice and

without probable cause, and that they did so for the purpose

of denying her [a] specific constitutional right.” Freeman v.

City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995); see

also Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-55

(9th Cir. 2009) (“[P]robable cause is an absolute defense to

malicious prosecution.”).

[5] As explained above, even after correcting for the alleg-

edly false and omitted information in Sergeant Almada’s war-

rant application, probable cause supported Smith’s arrest for

arson. For the same reason, probable cause supported Smith’s

prosecution. Thus, the district court correctly granted sum-

mary judgment for Sergeant Almada on Smith’s malicious

prosecution claim.

17234 SMITH v. ALMADA

C

Smith’s final claim is that Sergeant Almada violated his

due process rights by failing to disclose material exculpatory

evidence—in violation of Brady v. Maryland, 373 U.S. 83

(1963).

1

[6] Brady requires both prosecutors and police investiga-

tors to disclose exculpatory evidence to criminal defendants.

See Tennison v. City & County of San Francisco, 570 F.3d

1078, 1087 (9th Cir. 2009) (allowing § 1983 claim against

police inspector for Brady violation). To state claim under

Brady, the plaintiff must allege that (1) the withheld evidence

was favorable either because it was exculpatory or impeach-

ing, (2) the evidence was suppressed by the government, and

(3) the nondisclosure prejudiced the plaintiff. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). As to the prejudice

prong, the Supreme Court has stated that “strictly speaking,

there is never a real ‘Brady violation’ unless the nondisclo-

sure was so serious that there is a reasonable probability that

the suppressed evidence would have produced a different ver-

dict.” Id. at 281.

Here, Smith contends that Sergeant Almada should have

disclosed the description of suspects given in the four previ-

ous dumpster fires—none of which matched Smith—and Nel-

son’s demonstrably false statement that she saw Smith

gloating at the crime scene. Smith argues that had Sergeant

Almada disclosed this information, the jury in Smith’s first

trial would have acquitted him (or, at the very least, the judge

in Smith’s first trial would have dismissed the case immedi-

ately after the mistrial), and thus Smith would not have

remained in jail for five months until his second trial.

Smith makes a novel argument. In most Brady-based

§ 1983 claims, the plaintiff has suffered a criminal conviction,

SMITH v. ALMADA 17235

arguably because the government failed to disclose exculpat-

ing evidence. But no jury ever convicted Smith. Instead,

Smith says he was injured by the five months he spent in jail

after the first trial and until the judge in his second trial dis-

missed the charges against him.

[7] Three of our sister circuits have found that a defendant

who is ultimately acquitted cannot maintain a Brady claim.

See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)

(“Regardless of any misconduct by government agents before

or during trial, a defendant who is acquitted cannot be said to

have been deprived of the right to a fair trial.”); Flores v. Satz,

137 F.3d 1275, 1278 (11th Cir. 1998) (“Plaintiff . . . was

never convicted and, therefore, did not suffer the effects of an

unfair trial. As such, the facts of this case do not implicate the

protections of Brady.”); McCune v. City of Grand Rapids, 842

F.2d 903, 907 (6th Cir. 1988) (holding that “[b]ecause the

underlying criminal proceeding terminated in appellant’s

favor, he has not been injured by the act of wrongful suppres-

sion of exculpatory evidence” and thus cannot maintain

Brady-based § 1983 claim); cf. also Taylor v. Waters, 81 F.3d

429, 435-36 (4th Cir. 1996) (finding that no settled Fourth

Amendment authority prohibited officer from withholding

exculpatory evidence from § 1983 plaintiff who was never

tried on underlying criminal charges).

Moreover, although the Seventh Circuit has not completely

foreclosed Brady-based § 1983 claims without a conviction,

it requires the plaintiff to show that no trial would have

occurred if police had disclosed the exculpatory or impeach-

ment evidence. See Bielanski v. County of Kane, 550 F.3d

632, 644 (7th Cir. 2008) (expressing doubt that “ ‘an acquitted

defendant can ever establish the requisite prejudice for a

Brady violation,’ ” but concluding that plaintiff’s claim fails

where “the decision to go to trial would not have been

affected by the allegedly withheld evidence”) (citation omit-

ted); Mosley v. City of Chicago, No. 09-3598, ___ F.3d ___,

2010 WL 2943907, at *4 (7th Cir. July 29, 2010) (same).

17236 SMITH v. ALMADA

[8] These courts logically find that an acquitted defendant

fails to establish a Brady violation because he cannot show

“that the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine confi-

dence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435

(1995) (emphasis added). See also Banks v. Drake, 540 U.S.

668, 699 (2004) (“[Defendant] must show a reasonable proba-

bility of a different result.”); Strickler v. Greene, 527 U.S.

263, 289 (1999) (plaintiff must show “there is a reasonable

probability that the result of the trial would have been differ-

ent if the suppressed documents had been disclosed to the

defense”).

These decisions accord with the purpose of Brady. At its

core, Brady seeks to ensure a fair trial, a trial whose verdict

is reliable. As the Brady Court explained: “The principle . . .

is not punishment of society for misdeeds of a prosecutor but

avoidance of an unfair trial to the accused.” Brady, 373 U.S.

at 87-88.

Against this backdrop, Smith says our decision in Haupt v.

Dillard, 17 F.3d 285 (9th Cir. 1994), allows his Brady claim

even though he never suffered a conviction. We find Haupt

distinguishable, find it was based upon a Supreme Court hold-

ing that has since been overruled, and find little reason to

apply it to this case.

In Haupt, during a conference on jury instructions for

Haupt’s murder trial, the judge indicated to counsel that he

intended to give the jury an instruction recommending acquit-

tal. 17 F.3d at 287. The prosecutor objected, and the investi-

gating police officer later telephoned the judge and told the

judge that giving an acquittal recommendation would be ridic-

ulous. Id. The judge declined to give the recommendation,

noting that he felt intimidated by the officer’s statement. Id.

Nevertheless, the jury acquitted the defendant, who then

brought a § 1983 claim against the officer for depriving him

of the right to a fair trial. Id.

SMITH v. ALMADA 17237

We held that the plaintiff stated a claim for violation of his

due process right to a fair trial—i.e., the right to “get the unbi-

ased judge to which he was entitled,” id.—and that his acquit-

tal “sp[o]k[e] only to the amount of damages he suffered” and

was “irrelevant to whether he has a cause of action,” id.2

In reaching this conclusion, we relied upon Cooper v. Dup-

nik, 963 F.2d 1220 (9th Cir. 1992) (en banc), a case that

allowed a § 1983 action for a Miranda violation even though

the suspect was never charged and the statement was never

used. But in 2003—after Haupt—the Supreme Court over-

ruled Cooper. See Chavez v. Martinez, 538 U.S. 760, 766

(2003) (Thomas, J.) (“We fail to see how, based on the text

of the Fifth Amendment, Martinez can allege a violation of

this right, since Martinez was never prosecuted for a crime, let

alone compelled to be a witness against himself in a criminal

case.”); id. at 778-79 (Souter, J., concurring in judgment) (“I

do not . . . believe that Martinez can make the ‘powerful

showing,’ subject to a realistic assessment of costs and risks,

necessary to expand protection of the privilege against com-

pelled self-incrimination to the point of the civil liability he

asks us to recognize here.”).

Thus, Haupt is distinguishable because it involved a claim

for violation of the general due process right to a fair trial—

not, as here, a Brady claim. Moreover, Haupt relied upon

authority that has since been overruled. Finally, Haupt is

inconsistent with Brady’s rationale of ensuring a verdict wor-

thy of confidence. We see no reason to extend Haupt to

Smith’s Brady claim.

In addition, extending Brady to cases without a conviction

would render the materiality standard unworkable. In Smith’s

2

On its own terms, Haupt seems questionable, even when Cooper was

good law. While ex parte contacts from investigating police officer to a

judge are completely improper, the judge ultimately had responsibility to

properly instruct the jury.

17238 SMITH v. ALMADA

case, to show a reasonable probability that the result of the

first trial would have been different, Smith would need to

show that no reasonable juror would have voted to convict if

presented with Nelson’s false claim that she saw Smith gloat-

ing at the fire scene. Such a calculation (whether there is a

reasonable probability that the undisclosed evidence would

have caused all the jurors to acquit) is significantly different

from the calculation in a post-conviction Brady claim

(whether there is a reasonable probability that the undisclosed

evidence would have caused a single juror to vote to acquit).

Allowing Brady-based § 1983 claims without a conviction

would open the door to a potentially unlimited number of

such claims for decisions at every stage of the criminal pro-

cess. If a police officer failed to disclose victim statements

until the start of trial (resulting in a mistrial), and the defen-

dant was jailed for 530 days before retrial but ultimately

acquitted, would the defendant have a § 1983 claim? See Wil-

liams v. Krystopa, No. 98-CV-1119, 1998 WL 961375, at *4

(E.D. Pa. Dec. 16, 1998) (“Plaintiff ultimately did receive a

fair trial because [the victim] statement was uncovered in time

for its effective use at trial. Moreover, the trial court was able

to reach a just conclusion: it declared a mistrial when testi-

mony showed Plaintiff had not received the witness state-

ments, and held a full trial at which Plaintiff, then in

possession of the statements, was acquitted. . . . [J]ustice

finally did prevail and Plaintiff received a fair trial and a ver-

dict worthy of confidence. . . . [Thus,] no Brady violation

occurred.”), aff’d 211 F.3d 1263 (3d Cir. 2000) (unpublished).

Would a police officer’s failure to provide a defendant with

exculpatory evidence support a § 1983 claim where the defen-

dant incurred defense costs but the criminal charges were dis-

missed before trial? See Morgan, 166 F.3d at 1310 (in cases

where all criminal charges were dismissed prior to trial,

“courts have held universally that the right to a fair trial is not

implicated and, therefore, no cause of action exists under

§ 1983”) (citing cases). Our inability to find a principled way

SMITH v. ALMADA 17239

to limit these types of Brady claims is therefore a further rea-

son against recognizing the claim Smith makes here.

[9] In sum, allowing Brady-based § 1983 claims absent a

conviction is not compelled by our circuit’s case law, con-

flicts with other circuits’ case law and the central purpose of

Brady, would render Brady’s materiality standard unwork-

able, and lacks a limiting principle. We thus decline to allow

§ 1983 claims for alleged Brady violations by a defendant

who is ultimately acquitted.

2

Even if an unconvicted defendant could maintain a Brady-

based § 1983 claim, Smith’s claim fails because he has not

shown that the withheld evidence was material. First, the evi-

dence of the description of suspects in the previous dumpster

fires is not material because it does nothing to undermine the

strong physical evidence—i.e., the numerous pieces of mail—

linking Smith to the February 2003 fire. Nor does it call into

question evidence suggesting Smith’s motive: Smith admitted

that he had a dispute with Nelson less than three weeks before

the fire.

Second, numerous differences between the February 2003

fire and the earlier fires undermine the inference that the dum-

pster arsonist started the February 2003 fire. Although Ser-

geant Almada stated that one of the dumpster fires appeared

to have been started with an incendiary device in a plastic

container, the similarities between the fires end there. The

dumpster fires occurred in quick succession over a few

weeks; the February 2003 fire occurred three months later.

The dumpster fires barely damaged the building’s interior; the

February 2003 fire ravaged it. Witnesses to the dumpster fires

described various suspects with very different appearances,

suggesting there was no single repeat offender who might

have started the February 2003 fire. And Nelson did not iden-

17240 SMITH v. ALMADA

tify any of the dumpster fire suspects as having a grudge

against her—and thus a motive to target Nelson’s store itself.

More importantly, Smith does not show that any failure to

disclose the earlier fires had any effect. Even without a prose-

cution disclosure of the earlier fires, Smith’s attorney other-

wise knew about the October 15, 2002 fire and sought to

introduce evidence of that fire. In response to Smith’s offer of

evidence regarding the October 15, fire, the prosecutor moved

the state trial court to exclude evidence of that fire because

there was no “direct or circumstantial evidence linking the

third person to the actual perpetration of the crime.” See Peo-

ple v. Hall, 718 P.2d 99, 104 (Cal. 1986). The state trial court

agreed and excluded the evidence. Smith’s attorney knew of

at least one earlier fire, and evidence regarding those earlier

fires was likely inadmissible in any case. In sum, we cannot

say that had Sergeant Almada disclosed the identification evi-

dence of the earlier dumpster fires, the outcome of Smith’s

first trial would have been different.

[10] We are more troubled by Sergeant Almada’s failure to

disclose Nelson’s demonstrably false account of Smith’s

gloating at the crime scene. Importantly, Nelson did not tes-

tify about the gloating incident at Smith’s first trial. Thus, evi-

dence of her false account could have been used only to

impeach Nelson’s character for truthfulness. See Fed. R. Evid.

608(b)(1). But Nelson’s testimony was not crucial at Smith’s

trial. Although Nelson’s account of her business dispute with

Smith helped establish a motive for Smith to commit the

arson—namely, revenge—Smith’s own admission of the dis-

pute came in through Sergeant Almada’s testimony about his

interviews with Smith. More importantly, even if the jury dis-

credited all of Nelson’s testimony, it still had the important

and unexplained evidence linking Smith to the fire: the

numerous pieces of mail addressed over a five-year period to

Smith and his wife at their residence.

[11] We therefore cannot say that, had Sergeant Almada

disclosed Nelson’s demonstrably false account of Smith’s

SMITH v. ALMADA 17241

gloating at the crime scene before Smith’s first trial, no rea-

sonable juror could have voted to convict Smith. Almada’s

failure to disclose the evidence does not sufficiently under-

mine our confidence in the outcome of Smith’s trial. Hence,

because the evidence that Sergeant Almada failed to disclose

was not sufficiently material, we hold that the district court

correctly granted summary judgment for Sergeant Almada on

Smith’s Brady claim.

III

For the reasons above, we affirm the district court’s grant

of summary judgment to Appellee Sergeant Almada.

AFFIRMED.

D.W. NELSON, Circuit Judge, dissenting:

I respectfully dissent. It is unnecessary for the majority to

use this case to define the scope of Brady. The majority con-

cludes 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 restraint. See Mosley v. City of Chicago,

614 F.3d 391, 397-98 (7th Cir. 2010) (setting aside the ques-

tion of whether Brady applies when a trial results in acquit-

tal); Bielanski v. County 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 proba-

bility” 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 exer-

17242 SMITH v. ALMADA

cising similar restraint in the tradition of case-by-case adjudi-

cation, 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 sup-

posed 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 con-

viction was simply never entered, id., thereby replacing

Brady’s broad due process pronouncements with a results-

oriented test that loses sight of the roles that police and prose-

cutors play in “shap[ing] a trial that bears heavily on the

defendant,” whatever the verdict. Brady v. Maryland, 373

U.S. 83, 88 (1963).

To further justify its reductive reading of Brady, the major-

ity contends that drawing the line at criminal convictions is

the only way to keep the floodgates shut on Brady-based Sec-

tion 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 sup-

pressed by the government, and (3) the nondisclosure preju-

diced the plaintiff. Strickler v. Greene, 527 U.S. 263, 281-82

(1999). By separating its materiality analysis from its discus-

sion 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 (1995), the majority simultaneously insists

that further restrictions are necessary to avoid a slippery

slope.

SMITH v. ALMADA 17243

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 Sec-

tion III, I would reverse the district court’s grant of summary

judgment regarding Smith’s Brady claim and remand for fur-

ther 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 Octo-

ber 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 descrip-

tions of potential suspects offered by witnesses remotely

matched Mr. Smith, and the report described the one suspect

as a white male in 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 bot-

tles 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 cus-

tomer 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

17244 SMITH v. ALMADA

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. Noth-

ing 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 cus-

tody.

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 (emphasis added) (quoting United States v. Bagley, 473

U.S. 667, 682 (1985)). The touchstone for the Court’s analy-

SMITH v. ALMADA 17245

sis 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 suppres-

sion,” leaves the government with a degree of discretion, but

it also imposes a “corresponding burden.” Id. at 437. The

police’s and the prosecution’s “responsibility for failing to

disclose known, favorable evidence rising to a material level

of importance is inescapable.”1 Id. at 438.

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. 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 result-

ing in a verdict worthy of confidence.” Id. at 434. 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 con-

sidered the prosecutor’s decision to go to trial in the first

place and whether the resulting trials produced outcomes wor-

thy of confidence.2

1

According to the majority, the responsibility to disclose exculpatory

evidence is entirely escapable, assuming that the trial results in anything

other than a conviction.

2

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 untena-

ble in the former case.

17246 SMITH v. ALMADA

Judged by this standard, I believe that the exculpatory evi-

dence 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 case would not

have gone to trial in the first place.

The police also failed to disclose Nelson’s false identifica-

tion 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 pur-

suant to the Brady requirements, see Strickler, 527 U.S. at

280, and I cannot conclude as a matter of law that this infor-

mation 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 led to a different

result. The prosecutor might have decided not to bring the

case at all, or the jury might have acquitted Mr. Smith.

3

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 nor-

mally permitted to “pursue § 1983 claims based on the denial of a fair

trial.” Morgan, 166 F.3d at 1310.

SMITH v. ALMADA 17247

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.

III

The majority also holds that there has been no Brady viola-

tion when a trial results in a hung jury, even though the gov-

ernment withheld evidence favorable to the accused that

undoubtedly undermined confidence in the outcome of his

criminal proceedings, and even though the accused was sub-

ject 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 Bag-

ley, 473 U.S. at 678 (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 pre-

serve 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 (“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 (stating that purpose of the rule against sup-

pression of evidence is “avoidance of an unfair trial to the

accused”); United States v. Agurs, 427 U.S. 97, 104 (1976)

(part of the concern is preventing “corruption of the truth-

seeking function of the trial process”); Morris, 447 F.3d at

17248 SMITH v. ALMADA

742 (“The animating purpose of Brady is to preserve the fair-

ness of criminal trials.”) (citations omitted); Haupt v. Dillard,

17 F.3d 285, 287 (9th Cir. 1994) (“The fact that Haupt ulti-

mately 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 prose-

cutors. 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 pro-

cess can be reduced to a backward-looking check on only the

most egregious instances of evidentiary suppression—those

that result in conviction. This approach 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.

4

The majority opinion distinguishes Haupt in part because it was based

on a Supreme Court decision that has been overruled by Chavez v. Marti-

nez, 538 U.S. 760 (2003). However, Martinez was based on a reading of

the Fifth Amendment’s requirement that “[n]o person . . . be compelled

in any criminal case to be a witness against himself.” Id. at 766 (emphasis

in original) (internal quotations omitted). The Supreme Court found a

criminal case to commence with the initiation of legal proceedings, not

with police questioning. The case does not control the question whether

a criminal defendant can assert a constitutional violation where the trial

results in acquittal.

5

Since Brady was decided in 1963, the Supreme Court has repeatedly

expanded upon its initial insight, holding that the Constitution also

requires the disclosure of impeachment evidence, Giglio v. United States,

405 U.S. 150, 154 (1972), evidence possessed by the government even if

not by the prosecutor, Kyles, 514 U.S. at 438, and evidence not specifi-

cally requested by the defense, Agurs, 427 U.S. at 107.

SMITH v. ALMADA 17249

The fact that a defendant is fortunate enough to escape con-

viction does not absolve the state of responsibility for the

breach of its Brady obligations. The individual’s right to a fair

trial, mandated by the due process clause of the Fifth Amend-

ment, does not hinge on the outcome of criminal proceedings.

In the case at hand, the 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. With-

holding this evidence is precisely the type of conduct that

“undermines confidence in the outcome of [a] trial.” Bagley,

473 U.S. at 678.

Because I would hold that Smith is entitled to seek recov-

ery on the grounds that the government violated its Brady

obligations, I dissent.