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-

Police Sergeant, AHM

Defendant-Appellee. ORDER AND

 OPINION

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 March 21, 2011

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

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

Opinion by Judge Gwin;

Concurrence by Judge Gould;

Concurrence 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.

3783

SMITH v. ALMADA 3787

COUNSEL

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

lants.

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

California, for the appellee.

ORDER

The opinion and dissent in the above-captioned matter filed

on October 19, 2010, and published at 623 F.3d 1078, is

WITHDRAWN. The superseding opinion, dissent, and con-

currences shall be filed concurrently with this order.

The parties shall have fourteen (14) days from entry of the

superseding opinion to file petitions for rehearing or petitions

for rehearing en banc in the above-captioned matter.

IT IS SO ORDERED.

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’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

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.

3788 SMITH v. ALMADA

that Sergeant Almada failed to disclose materially exculpatory

evidence in Smith’s criminal arson trial—including a false

identification by a key witness that Smith was gloating at the

arson scene in the months following the fire. Although

Smith’s first trial resulted in a mistrial after the jury was

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

tory evidence would have caused the judge not to issue an

arrest warrant or would have resulted in an acquittal. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm after find-

ing that the arguably non-disclosed evidence would not have

resulted in a different outcome.

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 broke the store win-

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

bottles on a table just inside the window. They believed the

arsonist then ignited the fires.

The gasoline-soaked papers that the investigators found

inside the melted bottles included numerous pieces of mail

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

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

SMITH v. ALMADA 3789

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

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

2002 JCPenney catalog addressed to “Aundrea Smith,” a Uni-

versity 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 bottle did not include mail from any

other individuals. 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 2408 Lincoln Boulevard in October and

November 2002. Simply Sofas stood at 2314 Lincoln Avenue.

With regards to one of the dumpster fires, Almada reported

that the “fire source” might be a “possible chemical based

incendiary device in a plastic container.” Witnesses to those

earlier fires (including store owner Nelson) described differ-

ent 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 closed the store early the

evening of the fire and that her son-in-law 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 had never made a business- or fire-related insurance

claim. Nelson did, however, receive insurance proceeds for

the February 2003 fire.

3790 SMITH v. ALMADA

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.

Nevertheless, Sergeant Almada began to focus his investi-

gation on Smith because Smith’s mail—pieces received over

a long period of time and from a variety of sources—had been

used as a wick to start the fire at Simply Sofas. Almada ques-

tioned 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 sold to Nelson. Nel-

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

ment for his consignment items, she told Smith that one of his

consignment items had been broken before Smith delivered it

to Nelson’s store, and that she would not pay him the full

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

employees broke the item and demanded that Nelson pay for

it. Nelson said that Smith’s demeanor during their argument

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. Smith’s assistant later

called Nelson and said that Smith had lost the first check, so

Nelson wrote Smith a second check for the value of the origi-

nal consignment check plus the value of the broken item.

After learning that Smith had not lost the first check, but

instead had cashed it, Nelson stopped payment on the second

check. Nelson said she felt that Smith was trying to intimidate

her into paying more than she owed him.

SMITH v. ALMADA 3791

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.

Sergeant Almada confronted Smith with the evidence

against him, especially the evidence that letters and mailings

to Smith had been used as a wick for the firebombs. Accord-

ing 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 fire-

fighters were fatally injured in the fire and that he cried and

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

involved. Smith gave no explanation for how his mail from

over a five-year period ended up in the firebombs, but contin-

ued 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. Daly does not

recall discussing the prior dumpster fires behind Nelson’s

store, Sergeant Almada claims that he mentioned the previous

fires to prosecutor Daly but and 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, prosecutor 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,

who authorized the warrant. Sergeant Almada then arrested

3792 SMITH v. ALMADA

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 knew about and attempted to introduce evidence of

the October 2002 dumpster fire—which predated Smith’s

altercation with Nelson—but the trial court granted the prose-

cution’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, prosecutor 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 substan-

tially 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 in state court for false arrest and malicious

prosecution. The case was then removed to federal district

court. Although the Smiths did not make any distinct Brady

claim in their complaint, the district court overruled Defen-

SMITH v. ALMADA 3793

dant Almada’s objection that the Brady claim was made only

after discovery had been completed and should therefore not

be considered.

After discovery, the district court granted Sergeant Alma-

da’s summary judgment motion. On the false arrest claim, the

district court held that Sergeant Almada was entitled to quali-

fied immunity because a competent officer could reasonably

have determined that probable cause existed to arrest Smith

for arson. On the malicious prosecution claim, the district

court concluded that Sergeant Almada did not knowingly sub-

mit material false information to the prosecution. Finally, on

the failure to disclose exculpatory evidence claim, the district

court held that the allegedly withheld evidence—the fact that

Nelson’s testimony about Smith’s gloating at the crime scene

was false—would not have materially affected Smith’s trial.

This 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

With his amended complaint, Smith made claims of false

arrest and malicious prosecution. Smith’s first claim—which

the district court dismissed on qualified immunity grounds—

is that Sergeant Almada violated 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

3794 SMITH v. ALMADA

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

“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 had the magistrate consid-

ered all of the facts that 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-

SMITH v. ALMADA 3795

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

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 facts sufficient

to establish probable cause to arrest Smith for arson. First,

even without Nelson’s testimony about the payment dispute

with Smith over his consigned items that occurred less than

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

ble in light of Nelson’s false report about Smith’s gloating—

Sergeant Almada’s corrected report still would have con-

tained Smith’s own admission of the dispute. And, more

importantly, Sergeant Almada’s corrected report would still

3796 SMITH v. ALMADA

have recounted that the firebombs contained numerous pieces

of mail from over a five-year period 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 evi-

dence linking Smith to the fire was sufficient to overcome any

negative inferences the magistrate might have drawn from the

earlier dumpster fires.

[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-

SMITH v. ALMADA 3797

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.

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).

[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 a claim under

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

was favorable either because it was exculpatory or could be

used to impeach, (2) the evidence was suppressed by the gov-

ernment, 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

nondisclosure was so serious that there is a reasonable proba-

bility that the suppressed evidence would have produced a

different verdict.” Id. at 281.

Here, Smith contends that Sergeant Almada should have

disclosed the four previous dumpster fires that occurred on

October 7, 2002, October 15, 2002, November 21, 2002, and

November 25, 2002. In investigating these fires, Almada

received three suspect descriptions that neither matched each

other nor matched Smith. Smith also says that Almada should

have disclosed Nelson’s 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

3798 SMITH v. ALMADA

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.

In considering Smith’s Brady claim, District Court Judge

Howard Matz found that “Almada is not liable under Brady

because the evidence he omitted or misstated would not have

materially affected the outcome of the criminal prosecution.”

We agree.

[7] Smith’s Brady-based § 1983 claim fails because he has

not shown that the withheld evidence was material. First, the

evidence of the suspects’ descriptions in the previous dump-

ster 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

himself admitted that he had a dispute with Nelson less than

three weeks before the fire.

Second, several differences between the February 2003 fire

and the earlier fires undermine the inference that there was

one dumpster arsonist or that one of the dumpster arsonists

started the February 2003 fire. Although Sergeant Almada

reported that one of the dumpster fires may have been started

with an incendiary device in a plastic container, the similari-

ties 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 dam-

aged the building’s interior; the February 2003 fire ravaged

Simply Sofas. Witnesses to the dumpster fires described vari-

ous suspects with very different appearances, suggesting there

was no repeat offender who might have later started the Feb-

ruary 2003 fire. And Nelson did not identify any of the dump-

ster fire suspects as having a grudge against her—and thus a

motive to target Nelson’s store itself.

SMITH v. ALMADA 3799

[8] More importantly, Smith does not show that any failure

to disclose the earlier fires had any effect. Even without a

prosecution disclosure of the earlier fires, Smith’s attorney

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

introduce evidence of that fire at trial. 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 link-

ing the third person to the actual perpetration of the crime.”

See People v. Hall, 718 P.2d 99, 104 (Cal. 1986). The state

trial court agreed and excluded the evidence. Thus, Smith’s

attorney knew of at least one earlier fire, and evidence of

those earlier fires was likely inadmissible under California

evidence law in any case. In sum, we cannot say that had Ser-

geant Almada disclosed evidence of the earlier dumpster fires,

the outcome of Smith’s first trial would have been different.

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

disclose Nelson’s false account of Smith’s gloating at the

crime scene. Importantly, Nelson did not testify about the

gloating incident at Smith’s first trial. Thus, evidence 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, Smith him-

self admitted the dispute to Sergeant Almada and Almada tes-

tified about his interviews with Smith. Moreover, even if the

jury discredited all of Nelson’s testimony, it still possessed

the important and unexplained evidence linking Smith to the

fire: the numerous pieces of mail from over a five-year period

addressed to Smith and his wife at their residence.

[10] Even if Sergeant Almada had disclosed Nelson’s false

account of Smith’s gloating at the crime scene before Smith’s

first trial, we do not find “a reasonable probability of a differ-

ent result.” Banks v. Drake, 540 U.S. 668, 699 (2004). Alma-

da’s failure to disclose the evidence does not sufficiently

3800 SMITH v. ALMADA

undermine our confidence in the outcome of Smith’s trial. Str-

ickler 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 different if the suppressed documents

had been disclosed to the defense”). Hence, because the evi-

dence that Sergeant Almada failed to disclose was not mate-

rial, 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.

GOULD, Circuit Judge, concurring:

I concur in Judge Gwin’s opinion. I add this separate con-

currence to point out that I think the substantive idea in Judge

Gwin’s separate concurrence is a good one, and that I would

personally be inclined to follow the united view of all circuits

to have reached that issue. See Morgan v. Gertz, 166 F.3d

1307, 1310 (10th Cir. 1999); Flores v. Satz, 137 F.3d 1275,

1278 (11th Cir. 1998); McCune v. City of Grand Rapids, 842

F.2d 903, 907 (6th Cir. 1988). But cf. Mosley v. City of Chi-

cago, 614 F.3d 391, 397 (7th Cir. 2010) (declining to decide

the issue). Nonetheless, on reconsideration I decline to reach

the issue at this time. Several colleagues on our court have

urged that the issue be left open, and I haven’t seen a state-

ment from any colleague urging that we decide the issue now.

In light of these objections from some colleagues and because

the substantive idea that a conviction is a prerequisite to a

Brady claim is not needed to decide this appeal, I have with-

drawn my precedential support for that idea so that it can be

addressed on a fresh slate in some other case.

SMITH v. ALMADA 3801

GWIN, District Judge, specially concurring:

With the motion for rehearing, Judge Gould has withdrawn

his concurrence in the holding that a Brady claim cannot be

made where there has not been a conviction. Some wisdom

supports avoiding constitutional questions where cases can be

decided on other grounds. See Ashwander v. TVA, 297 U.S.

288, 347 (1936) (Brandeis, J., concurring) (“The Court will

not pass upon a constitutional question although properly

presented by the record, if there is also present some other

ground upon which the case may be disposed of”); see also

Citizens United v. Federal Election Com’n, ___ U.S. ___, 130

S.Ct. 876, 937 (2010) (Stevens, J., concurring in part and dis-

senting in part.)

Until recently, however, we would have been required to

address the constitutional issue before addressing any Section

1983 immunity issue. See Saucier v. Katz, 533 U.S. 194, 201

(2001), overruled by Pearson v. Callahan, 555 U.S. 223

(2009). And, deciding the materiality issue somewhat begs the

question: material to what constitutional right? See, e.g., Stop

the Beach Renourishment, Inc. v. Florida Dept. of Environ-

mental Protection, ___ U.S. ___, 130 S.Ct. 2592, 2604 (2010)

(“In sum, Justice BREYER cannot decide that petitioner’s

claim fails without first deciding what a valid claim would

consist of.”) Because Plaintiff Smith must show both a viola-

tion of a constitutional right and that the failure to disclose

was material, I believe we should have addressed whether a

constitutional right was impaired before moving to whether

any violation was material.

In addition to finding that the non-disclosed evidence was

insufficiently important to undermine confidence in the out-

come of Smith’s trial, I would also find that Smith cannot

make a Brady claim where there has been no conviction.

Smith makes a novel argument. In most Brady-based

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

3802 SMITH v. ALMADA

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.

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). No known cases have

allowed a Brady-based § 1983 claim where there has not been

a conviction.1

Moreover, although the Seventh Circuit has not completely

foreclosed Brady-based § 1983 claims without a conviction,

1

With her dissent, Judge Nelson relies only upon cases—most of them

habeas cases—where there had been a conviction. See, e.g. Kyles v. Whit-

ley, 514 U.S. 419 (1995) (Habeas action where petitioner had been con-

victed of murder and sentenced to death.); Brady v. Maryland, 373 U.S.

83 (1963) (Same); United States v. Agurs, 427 U.S. 97 (1976) (Same);

Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006) (Same); Giglio v. United

States, 405 U.S. 150 (1972) (Direct appeal after conviction for passing

forged money orders).

SMITH v. ALMADA 3803

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, 614 F.3d 391, 397 (7th Cir.

2010) (same).

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.

In dissent, Judge Nelson seems to argue that Brady requires

punishment of police or prosecutors when they fail to turn

over arguably exculpatory evidence, even where no convic-

tion results. Judge Nelson says that if Brady is not interpreted

to allow civil actions where there has been no conviction, it

will give “perverse incentives for police and prosecutors who

believe they will not successfully convict a particular criminal

3804 SMITH v. ALMADA

defendant [ ] to suppress evidence, knowing that the suppres-

sion would not result in a successful Brady claim and the sus-

pect would at least be subject to a lengthy criminal trial.”2

But, of course, this presupposes that police or prosecutors

would, or could, accurately calculate whether a conviction

would occur—and they would make this calculation knowing

that if they were wrong in predicting acquittal and a convic-

tion resulted instead, they would face civil liability for their

Brady violation. It seems extraordinarily unlikely that police

or prosecutors make this calculation.

And, as described below, we allow false arrest and mali-

cious prosecution claims where police or prosecutors lack

probable cause to arrest or prosecute defendants. Such claims

better focus consideration to the appropriate issue: did the

undisclosed Brady material undermine probable cause to

arrest or prosecute Smith.

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. I believe 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 to say that giving an acquittal recommendation would

be ridiculous. Id. The judge declined to give the recommenda-

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

2

Although I have presided over at least 400 state and federal felony

trials—including a large number that resulted in acquittals—I admit that

I am less capable of predicting an acquittal than the police officers

described by Judge Nelson.

SMITH v. ALMADA 3805

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.

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.3

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. I do not believe this Court should extend

Haupt to Smith’s Brady claim.

3

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

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

a judge are completely improper, the judge ultimately had the responsibil-

ity to properly instruct the jury.

3806 SMITH v. ALMADA

In addition, extending Brady to cases without a conviction

makes the materiality standard far less workable. In Smith’s

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

first trial would have been different, Smith would need to

show that none of the jurors in his first trial would have voted

to convict if presented with Nelson’s false claim that she saw

Smith gloating 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 dif-

ferent 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

SMITH v. ALMADA 3807

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

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

son against recognizing the claim Smith makes here.

Recognizing Brady as a post-conviction right does not fore-

close all constitutional remedies where a defendant has been

tried but not convicted. Where a criminal defendant believes

that withheld exculpatory evidence has caused charges to be

brought and maintained against him, but no conviction has

resulted, his remedy would flow from a false arrest or mali-

cious prosecution claim, and not from Brady.

Indeed, on appeal and as discussed above, Appellant Smith

principally argues that the district court erred in granting sum-

mary judgment on Smith’s false arrest and malicious prosecu-

tion claims. And in some circumstances, a law enforcement

official’s non-disclosure could support a false arrest claim,

although Smith would need to show 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).

And, even without a right under Brady to make a claim for

non-disclosure without a conviction, Smith could also make

a claim for malicious prosecution. Indeed, maintaining a suc-

cessful malicious prosecution claim requires that the defen-

dant be acquitted, or at least that the criminal proceedings did

not result in his conviction. See Restatement (Second) of

Torts, 653 (1977). But, like false arrest claims, “probable

cause is an absolute defense to malicious prosecution.” Las-

siter v. City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir.

2009).

Thus, a damaged defendant can obtain a remedy for the

non-disclosure of evidence, irrespective of his conviction or

acquittal. Where non-disclosure of exculpatory evidence leads

to a defendant’s conviction, he may certainly bring a claim

under Brady. When the non-disclosure leads to a mistrial or

3808 SMITH v. ALMADA

acquittal, the defendant’s opportunity for constitutional rem-

edy lies in claiming malicious prosecution or wrongful arrest,

but the non-disclosure in such cases should not support a

Brady claim.

In sum, allowing Brady-based § 1983 claims without a con-

viction is not compelled by our circuit’s case law, conflicts

with other circuits’ case law and the central purpose of Brady,

would render Brady’s materiality standard significantly less

workable, and lacks a limiting principle. I would therefore not

allow § 1983 claims for alleged Brady violations by a defen-

dant who is ultimately acquitted.

D.W. NELSON, Circuit Judge, dissenting:

I respectfully dissent. I disagree with the majority’s assess-

ment of the materiality of the suppressed evidence in this

case. I also strongly disagree with Judge Gwin’s concurrence

regarding the scope of Brady. These issues will be addressed

in turn.

From the start, however, it is important to note that this is

a case in which the defendant spent over seventeen months in

jail, from the date he was charged in July 2003, through two

trials resulting in hung juries, until the trial judge finally dis-

missed the case on December 14, 2004. Even absent the with-

held evidence, seven jurors voted to acquit Smith in the first

trial. In the second trial, eleven out of twelve jurors voted to

acquit him. The majority holds that the suppressed evidence

was immaterial, despite the fact that this evidence could have

been used to impeach the credibility of Marilyn Nelson, the

witness whose testimony was used to establish Smith’s

motive for committing the crime in the first place. Absent

police misconduct, I believe there is a reasonable probability

that Smith would have been acquitted. Therefore, I dissent.

SMITH v. ALMADA 3809

I

Smith argues 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). Such evi-

dence is material under Brady if (1) it is favorable to the

accused either because it is exculpatory or impeaching, (2) it

was suppressed by the government, and (3) prejudice ensued

as a result. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

In this case, there is no debate as to whether the suppressed

evidence was favorable to Smith or suppressed by the State.

The only issue is whether the suppression of the evidence was

prejudicial.

The Supreme Court has made it clear that prejudice is

established “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the pro-

ceeding would have been different.” Id. at 280 (internal quo-

tations marks and citations omitted); see also Banks v. Dretke,

540 U.S. 668, 698-99 (2004). In addressing this reasonable

probability standard, the Court has emphasized that the “ad-

jective is important.” Kyles v. Whitley, 514 U.S. 419, 434

(1995). In other words, “[t]he question is not whether the

defendant would more likely than not have received a differ-

ent 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. (emphasis added). The relevant

question is whether the government’s evidentiary suppression

“undermines confidence in the outcome of the trial.” Id.

(internal quotations marks and citations omitted). In this case,

Sergeant Almada’s evidentiary suppression did just that.

Even if we ignore the evidence of the earlier fires, as the

majority would have us do, the failure to disclose Nelson’s

false account of Smith’s gloating at the crime scene was prej-

udicial. In dismissing this evidence as immaterial, the major-

ity contradicts itself by simultaneously insisting that Nelson’s

testimony was not crucial at Smith’s trial and that her testi-

3810 SMITH v. ALMADA

mony helped establish a motive for Smith to commit the

arson. Had Almada properly disclosed this evidence, Smith

could have used it at trial to impeach Nelson’s credibility as

a witness. If she was mistaken about Smith’s presence at the

crime scene after the fire, perhaps she was also mistaken

about Smith’s comportment during the dispute over the bro-

ken consignment item. In other words, the suppressed evi-

dence would have gone a long way towards undermining the

other evidence of Smith’s alleged motive. Without that, the

only connection between Smith and the crime is the peculiar

physical evidence found in the incendiary device. Under these

circumstances, there is a reasonable probability that the jury

in either of Smith’s criminal trials would have acquitted him.

This is particularly true when one considers the way the

jurors voted in Smith’s criminal trials even in the absence of

the withheld evidence. A proper application of the reasonable

probability standard to this case would have taken into

account the fact that the majority of jurors voted to acquit

Smith in both of his trials. Even if the majority does not find

a reasonable probability of a different outcome in Smith’s

first trial, where seven jurors voted to acquit him, it is difficult

to see how he has not established a reasonable probability

regarding his second trial, where eleven out of twelve jurors

voted for acquittal.

What is more, the case relied upon by the majority for a

finding of immateriality is easily distinguishable from the

facts of this case. In Strickler, there was far more forensic and

physical evidence linking the defendant to the crime, and the

witness whose impeachment was at issue offered testimony

that was cumulative. 527 U.S. at 292-94. In the case at hand,

where the withheld evidence impeaches the credibility of the

witness whose testimony was used to establish motive, and

eleven jurors out of twelve voted for acquittal even absent the

withheld evidence, there is a reasonable probability of a dif-

ferent outcome. In my view, the panel should have held that

the evidence Almada failed to disclose was material.

SMITH v. ALMADA 3811

II

Because I believe the suppressed evidence was material, I

would also reach the question of whether Brady applies in sit-

uations where there has not been a criminal conviction.1 This

is a question of first impression in the Ninth Circuit.

As Judge Gwin’s concurrence indicates, he would hold that

a Section 1983 suit can never be based on an alleged Brady

violation if the plaintiff was not ultimately convicted. In order

to substantiate this view, the concurrence is forced to rely

upon the supposed internal logic of Brady itself and the cur-

sory analysis offered by a few other circuits. In effect, the

concurrence 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 nar-

rowly as a trial resulting in a conviction. Morgan v. Gertz,

166 F.3d 1307, 1310 (10th Cir. 1999). This approach is based,

however, on the logical fallacy that the lack of a conviction

necessitates the conclusion that the trial was “fair” for the pur-

poses of Brady. Such a narrow rule would exclude 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 this reductive reading of Brady, the con-

currence contends that drawing the line at criminal convic-

1

Because the majority concludes that the exculpatory evidence withheld

from Smith was not material, it is unnecessary to use this case to define

the scope of Brady. 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.

3812 SMITH v. ALMADA

tions 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

evidence was (1) favorable either because it was exculpatory

or impeaching, (2) suppressed by the government, and (3) the

nondisclosure prejudiced the plaintiff. Strickler v. Greene,

527 U.S. 263, 281-82 (1999). As evidenced by the majority’s

view of the facts in this case, materiality itself serves suffi-

ciently to restrict the scope of the right afforded by Brady.

The presence or absence of a conviction merely speaks to the

likelihood of showing a violation.

On balance, 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 result-

ing in a verdict worthy of confidence.”); Brady, 373 U.S. at

87 (stating that purpose of the rule against suppression of evi-

dence 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 v. Ylst, 447 F.3d 735, 742 (9th Cir.

2006) (“The animating purpose of Brady is to preserve the

fairness of criminal trials.”) (citations omitted); Haupt v. Dil-

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

ultimately was acquitted speaks only to the amount of dam-

ages he suffered; it is irrelevant to whether he has a cause of

action.”).2

2

The concurrence tries to distinguish 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.

SMITH v. ALMADA 3813

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 concurrence would, neverthe-

less, 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 a conviction. This approach not only dis-

torts Brady and its progeny;3 it also creates perverse incen-

tives 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, know-

ing that the suppression would not result in a successful Brady

claim and the suspect would at least be subject to a lengthy

criminal trial.

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 harm suffered by Smith is obvious,

and I cannot conclude that his right to a fair trial was not vio-

lated, simply because his trials did not result in a conviction.

Again, 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. Absent police misconduct,

Smith might have been acquitted. The two juries knew about

3

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.

3814 SMITH v. ALMADA

his dispute with Nelson, but they did not know about Nelson’s

false identification of Smith. Withholding this evidence is

precisely the type of conduct that “undermines confidence in

the outcome of [a] trial.” United States v. Bagley, 473 U.S.

667, 678 (1985).

Because the majority holds that the suppressed evidence

was immaterial, it was right to avoid the broader question

regarding the scope of Brady. Because I would find that the

suppressed evidence was material, and that Smith is entitled

to seek recovery on the grounds that the government violated

its Brady obligations, however, I dissent.