Francisco Carrillo, Jr. v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO CARRILLO, JR., No. 12-57229

Plaintiff-Appellee,

D.C. No.

v. 2:11-cv-10310-

SVW-AGR

COUNTY OF LOS ANGELES; CRAIG

DITSCH,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

FRANK O’CONNELL; NICHOLAS No. 13-56817

O’CONNELL,

Plaintiffs-Appellees, D.C. No.

2:13-cv-01905-

v. MWF-PJW

J. D. SMITH; ERIC PARRA; COUNTY

OF LOS ANGELES, OPINION

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

2 CARRILLO V. CNTY. OF LOS ANGELES

Argued and Submitted

June 4, 2015—Pasadena, California*

Filed August 26, 2015

Before: Raymond C. Fisher, Jay S. Bybee

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Fisher

SUMMARY**

Civil Rights

The panel affirmed the district court’s denial of qualified

immunity to police officers in two separate actions brought

under 42 U.S.C. § 1983 by plaintiffs, each of whom had been

wrongfully imprisoned for decades before eventually securing

habeas relief.

Plaintiffs alleged that police officers failed to disclose

evidence that would have cast serious doubt on the testimony

of key prosecution witnesses. The panel held that the law in

1984 clearly established that police officers had to disclose

material, exculpatory evidence under Brady v. Maryland, 373

*

We heard these cases together and now consolidate them for

disposition. See Fed. R. App. P. 3(b)(2); Mattos v. Agarano, 661 F.3d

433, 436 n.1 (9th Cir. 2011) (en banc).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CARRILLO V. CNTY. OF LOS ANGELES 3

U.S. 83 (1963), and that any reasonable officer would have

understood that Brady required the disclosure of the specific

evidence allegedly withheld in these cases.

COUNSEL

Paul B. Beach, Michael D. Allen (argued), George E. Morris

Jr., Lawrence Beach Allen & Choi, PC, Glendale, California,

for Defendants-Appellants J.D. Smith and Eric Parra.

David D. Lawrence, Jin S. Choi (argued), Lawrence Beach

Allen & Choi, PC, Glendale, California, for Defendant-

Appellant Craig Ditsch.

Barrett S. Litt (argued), Lindsay B. Battles, Kaye, McLane,

Bednarski & Litt, LLP, Pasadena, California, for Plaintiffs-

Appellees Frank and Nicholas O’Connell.

Ronald O. Kaye, Marilyn E. Bednarski, Caitlin S. Weisberg,

Barrett S. Litt (argued), Kaye, McLane, Bednarski & Litt,

LLP, Pasadena, California, for Plaintiff-Appellee Francisco

Carrillo, Jr.

OPINION

FISHER, Circuit Judge:

Frank O’Connell and Francisco Carrillo were wrongfully

imprisoned for decades before eventually securing habeas

relief. After release, they separately brought suit under

42 U.S.C. § 1983 in federal district court against the police

investigators involved in their respective cases, arguing in

4 CARRILLO V. CNTY. OF LOS ANGELES

part the officers failed to disclose evidence that would have

cast serious doubt on the testimony of key prosecution

witnesses.1 The defendant officers asserted qualified

immunity, arguing the law at the time of the investigations

did not clearly establish the duty of police officers to disclose

material, exculpatory evidence under Brady v. Maryland,

373 U.S. 83 (1963). The district court denied judgment on

the pleadings in O’Connell’s case and summary judgment in

Carrillo’s case, concluding the officers’ duty to disclose

Brady evidence was clearly established at the time of the

investigations. The officers challenge these determinations

on appeal.2

We conclude, first, that the law at the time of the

investigations clearly established that police officers had to

disclose material, exculpatory evidence under Brady, and

second, that any reasonable officer would have understood

that Brady required the disclosure of the specific evidence

allegedly withheld. We therefore affirm the denials of

qualified immunity and remand these cases to the district

court for further proceedings.

1

O’Connell’s son, Nicholas O’Connell, is also party to the suit; he seeks

compensation for the “wrongful denial of the society and comfort of, and

companionship and familial relationship with, his father” as a result of his

father’s wrongful conviction and incarceration.

2

A district court’s denial of a claim of qualified immunity is

immediately appealable under 28 U.S.C. § 1291 notwithstanding the

absence of a final judgment. See Mitchell v. Forsyth, 472 U.S. 511, 530

(1985).

CARRILLO V. CNTY. OF LOS ANGELES 5

BACKGROUND3

I. O’Connell

In January 1984, Jay French was murdered in the parking

lot of his apartment building. Los Angeles County Sheriff’s

Department (LASD) homicide detectives J.D. Smith and

Gilbert Parra were responsible for investigating the murder.

Smith and Parra discovered French was in a heated battle

over the custody of his children with his ex-wife, Jeanne

Lyon, and that Lyon had called French’s home on the

morning of the murder. During their investigation, the

officers discovered Lyon had been romantically involved

with Frank O’Connell the previous summer. The eyewitness

descriptions of the killer matched O’Connell, and he was

ultimately charged with French’s murder. The case

proceeded to a bench trial.

At trial, the prosecution introduced evidence that French

had shouted, as he lay dying, that “that fucker in the yellow

Pinto shot me,” and that “he was going to have to die and it

had something to do with Jeanne [Lyon], it looked like

somebody she hangs around with or somebody she hung

around with.”4 Through the testimony of several witnesses,

including Daniel Druecker, Alec Sanchez, Arturo Villareal

and Maurice Soucy, the prosecution pinned the crime to

O’Connell.

3

At this stage, we assume the version of material facts asserted by the

plaintiffs, who are the non-moving parties. See KRL v. Estate of Moore,

512 F.3d 1184, 1189 (9th Cir. 2008).

4

The complaint does not make clear which witness testified about

French’s dying declaration.

6 CARRILLO V. CNTY. OF LOS ANGELES

Druecker, who lived in French’s apartment building, was

the only witness to the shooting itself. At trial, he described

the shooter as a tall Caucasian man in his thirties with brown

shoulder-length hair. He identified O’Connell as the killer at

trial and testified he had selected O’Connell from a photo

lineup shown to him by the officers.

Sanchez, a flagman in the area, reported and later testified

he had witnessed a yellow Pinto station wagon with faded

wooden sides fleeing the scene of the crime. He described

the driver as a woman with blond hair and her companion as

a white male with long curly brown hair. He was unable to

identify O’Connell or anyone else as the passenger in the car.

Villareal, a deliveryman, also saw the shooter leave the

scene of the crime in a Pinto. He testified that, when the

investigators showed him a photo lineup, he selected two

photos and told the officers he “couldn’t be positive” which

was the shooter. He also testified he could not identify

O’Connell as the person he saw the day of the murder.

Detective Smith countered this testimony, testifying Villareal

had chosen only one photo from the lineup. He read from a

police report that represented Villareal as remarking that

O’Connell was “the strongest contender, and I’m sure that’s

him.”

Finally, Soucy, a neighbor of Lyon’s, testified. Soucy

recalled seeing a tall white man who drove a yellow Pinto in

his apartment complex on several occasions. Soucy further

testified he had seen the man who drove the Pinto kissing

Lyon, and that he had seen the car parked near Lyon’s

apartment on several occasions. He identified O’Connell in

court as the man he had seen driving the Pinto.

CARRILLO V. CNTY. OF LOS ANGELES 7

O’Connell was convicted of murder following his bench

trial. Over 20 years later, he filed a state habeas petition,

alleging in part that the investigating officers failed to

disclose material, exculpatory evidence that would have

undermined the witnesses’ trial testimony and cast suspicion

on an alternative suspect.

At an evidentiary hearing on O’Connell’s habeas petition,

Druecker testified, offering information that would have

significantly undercut his identification of O’Connell at trial.

He recalled he had been working on his car on the day French

was shot and was not wearing contacts or glasses, which he

generally needed because he was nearsighted. He was

leaning into the driver’s side of his car when he heard a loud

“pop,” which he thought was a firecracker. He got out of the

car to see French running and screaming that he had been

shot. A man immediately behind French stopped, raised a

gun and pointed it, when Druecker heard another bang.

Druecker ducked behind a car. As a result, he saw the

shooter only in left profile and described him as tall, with

long, dark hair and carrying a long-barreled gun. Because

Druecker had never seen a gun, he was focused on the

weapon.

An officer on the scene asked whether Druecker had seen

anything. Druecker said he thought he could identify the

shooter but was not certain. Two officers (later identified as

Smith and Parra) came to Druecker’s apartment to ask for a

description of the shooter. Druecker told them he could not

remember what the shooter looked like and asked if the

officers could put him under hypnosis, which they refused to

do. He testified the officers “kept calling him,” and

eventually came back on their own one morning with photos

of six men. Druecker took this as an indication that they must

8 CARRILLO V. CNTY. OF LOS ANGELES

have found the shooter. He told the officers he had seen only

the shooter’s profile and asked if they had profile photos. He

also remarked to them that every photo depicted a man with

a mustache but that he did not remember the shooter having

a mustache.

Even though Druecker told the officers he did not

recognize any of the men depicted in the photos, they told

him to “really look” at the photos. Feeling he had to select

one of the photos, and believing the officers already knew

who the shooter was, he pointed to photo three (which

depicted O’Connell) and asked, “Is this the guy?” The

officers asked if this was the person he was identifying as the

shooter. Thinking the officers already knew who the shooter

was, Druecker responded, “I think that’s the guy.” The

officers told him he had to be certain. He said he was sure,

but at the evidentiary hearing on O’Connell’s habeas petition,

he testified that he only did so out of intimidation. In truth,

he did not recognize the photo but was simply guessing.

Druecker explained he did not disclose this uncertainty either

during the preliminary hearing or at trial because he was

afraid and believed, based on his interactions with the

officers, that he had identified the correct person.

During the habeas proceeding, O’Connell discovered a

copy of the officers’ handwritten notes detailing their

interview with Maurice Soucy. In the official police report,

which was disclosed, the officers had written that when

shown the photo lineup, Soucy “immediately pointed out

photograph number three. He stated that was the person who

asked him to jump start the yellow Pinto, and was also the

same person he had seen hugging and kissing Jeanne Lyon.”

But in the handwritten notes, which were never provided to

the prosecutors or the defense, the officers had written that

CARRILLO V. CNTY. OF LOS ANGELES 9

Soucy identified “#3 & poss. #1” and “picked out #3 as poss.

suspect because of face but hair was curlier.”5 Immediately

following that statement, they noted the name “Maurice.”6

These notes were never turned over to the prosecution or

defense.

O’Connell also discovered another set of handwritten

notes revealing a possible alternative suspect to the crime.

The prosecution contended French’s dying declaration, in

which he shouted the killer was someone Jeanne “hung

around with,” pointed solely to O’Connell, who had been

romantically linked to Lyon. But other notes taken by the

officers during an interview with a former attorney of

French’s revealed Lyon, along with another man, had

previously made an attempt on French’s life. In one note, the

officers wrote that French’s “x wife attempted to run over v

[victim] while trying to serve her papers for child custody.

Jeannie [Lyon] was pres. in her Capri car (green). Another

guy was driving. . . . Randy Smith driver of car.” In another

note, the officers wrote that “Jeanne and a man named

‘Randy’ were waiting at the road where v would be riding.

Randy was driving a green Capri registered to Jeanne Marie

Hernandez. Randy attempted to run v down. . . . Randy

Smith is tall with sandy or blond hair.” Neither of these notes

was turned over to the prosecutors or to the defense.

5

O’Connell alleges these are the same two photos that Villareal chose.

6

The official report said Ina Soucy, not Maurice, had remarked that the

hair of the man who drove the yellow Pinto was curlier. O’Connell

alleges the notes make clear Maurice Soucy, not his wife, had made this

statement.

10 CARRILLO V. CNTY. OF LOS ANGELES

Based on Druecker’s testimony and these undisclosed

notes, a California superior court granted O’Connell’s habeas

petition in 2009. The court concluded O’Connell’s

conviction was based “in large part on the eyewitness

testimony identifying [him],” and that the officers’ notes

regarding Druecker’s and Soucy’s testimony could have

impeached their credibility. The court determined the

conviction was further undermined by the previously

undisclosed evidence that French’s dying declaration could

have referred to Randy Smith rather than O’Connell. The

district attorney’s office declined to re-prosecute O’Connell,

and in June 2012, all charges against him were dismissed.

After his habeas petition was granted, O’Connell filed suit

under 42 U.S.C. § 1983, alleging in part that the officers

violated his right to due process by withholding material,

exculpatory evidence and that as a result, he was wrongfully

convicted. Specifically, he alleged the officers failed to

disclose evidence regarding Druecker’s uncertainty in

identifying O’Connell and the officers’ insistence he select a

photo from the lineup; notes revealing that Soucy initially

chose multiple photos from the lineup and was uncertain of

his identification; and information about a potential

alternative suspect. He also alleged the police officers

withheld evidence that Villareal had selected two photos from

the lineup, and that the representation in the official police

report that he had selected just one photo was false.

The officers filed a motion for judgment on the pleadings

based on qualified immunity, arguing it was not clearly

established in 1984 that they were bound by Brady’s

disclosure requirements. The district court denied their

motion, and this appeal followed.

CARRILLO V. CNTY. OF LOS ANGELES 11

II. Carrillo

On a January night in 1991, Donald Sarpy was killed in

a drive-by shooting in Lynwood, California. Sarpy had been

walking towards a group of six young black teenagers, one of

whom was his son. The area was home to two rival gangs,

including a Hispanic gang, “Young Crowd,” and an African-

American gang, “N-Hood.” When interviewed by LASD

deputies shortly after the shooting, two of the teenagers

recalled hearing someone in the suspect vehicle shout “fuck

N-Hood,” and another reported hearing someone shout

“Young Crowd Locos.” Aside from recalling the people in

the car were male, Hispanic teenagers, the witnesses were

unable to provide any additional identification information.

The deputies’ report of their initial conversations with the

witnesses noted there were no “unique suspect identifiers”

and only a “general suspect description.”

A few hours later, at 1:00 a.m., the deputies brought five

of the witnesses to the sheriff’s station in Lynwood for

questioning. The witnesses were interviewed separately. The

final witness to be interviewed was a 16-year-old boy named

Scott Turner. Unlike the other witnesses, Turner was

interviewed by defendant Craig Ditsch, a LASD deputy and

member of Operation Safe Streets, the sheriff’s gang

enforcement unit. Ditsch knew Turner from previous gang-

related cases. Also unlike the other witnesses, Turner was

shown photographs of several suspects. First, he was shown

a “gang book,” containing 140 photographs of Latino

teenagers believed to be members of the Young Crowd gang.

Turner randomly selected several photos from the gang book,

but each time, Ditsch told him his selection “could not be the

suspect.” Finally, Turner selected Carrillo’s photo, and

Ditsch responded that Turner had made the “right choice.”

12 CARRILLO V. CNTY. OF LOS ANGELES

During Carrillo’s habeas proceeding, Turner testified as

follows:

They opened the book, and they had books of

pictures of people, and they was like, “Well,

what about this guy?” You know, I’m like –

you know, well, the first person that I picked,

I was like, “Him.” And they was like, “No, it

couldn’t be him. He’s locked up.” And I’m

like, “Okay, you know. Well, what about

him?” “Well, no. It couldn’t be him.” A

couple more pages. I got to the similar

description, you know, similar to Frank

[Carrillo], and I was like, “Well, him.” He

looks close, you know. “Well, yeah, you

know, it could be him. He’s a new member,

you know. He’s trying to earn his bones, you

know. He’s fresh on, so he’s got to get his

respects, so it could be him. He’s a young

guy, you know, he’s coming up.” “Yeah.

Yeah. You know, yeah, could be him. Matter

of fact, it is him.”

Ditsch next showed Turner a photo lineup with Carrillo’s

photo in position number 1. Turner selected Carrillo’s

photo.7 In a police report, Ditsch wrote that Turner had

selected Carrillo’s photo but did not mention Turner had

selected several photos of other individuals first, or that

Ditsch confirmed Turner’s choice when Turner ultimately

selected Carrillo’s photo. Turner then told the other

7

The transcript of Turner’s testimony is unclear whether he immediately

chose Carrillo’s photograph from the six-pack or whether he selected

someone else first.

CARRILLO V. CNTY. OF LOS ANGELES 13

eyewitnesses he had chosen the first photo in the lineup. The

other eyewitnesses, who were only shown the photo lineup

six months after Carrillo’s arrest, chose Carrillo as the

perpetrator based on Turner’s identification.

All six eyewitnesses testified for the prosecution at

Carrillo’s first trial, which ended in deadlock. Before the

second trial, Turner, who was now in county jail, recanted,

saying his identification had been a mistake and that he could

no longer testify against Carrillo.8 Ditsch met with

8

Turner testified at Carrillo’s second trial that his recantation was based

on an interaction with the real shooter:

Q: Now, what happened that caused you to change

your mind?

A: Well, I came into Lynwood over my

grandfather[’s] house because we had a little get

together. . . . Then I was walking from my house[,]

walked down the street, went to Jack-in-the-Box, and I

was in Jack-in-the-Box and I walked in. I seen this ese,

this cholo.

Q: You saw a cholo? That is like a Mexican gang

member?

A: Yes.

Q: Young Crowd gang member?

A: Yes. And I – and I was looking. I was like glaring

at him, and he was looking at me. And kept looking at

each other, but you know it wasn’t like staring. Then I

stared at him and I was like don’t I know you. And he

was like what? And I was like, don’t I know you, and

he was like, oh, just jump; like what.

14 CARRILLO V. CNTY. OF LOS ANGELES

Turner in jail and threatened that Turner would face negative

consequences once he was back out on the streets if he

recanted.

Turner nevertheless testified for the defense at Carrillo’s

second trial that his identification of Carrillo was mistaken.

He did not, however, disclose that Ditsch had suggested to

him that Carrillo was the shooter. Ditsch testified for the

Q: He became angry?

A: Yeah and I – and I seen his attire and I knew he

was from Young Crowds [sic]. . . . So he was like, fool,

that’s why I shot your homeboy father. . . .

Q: Before you ran up out of there, did you get a good

look at the guy you had the fight with?

A: Yes, I did.

Q: When you got to take a look at him, what did that

make you think?

A: That’s the fool. That’s the person who done this.

Q: So did you, at that time, recognize him as being the

person that was the passenger that night?

A: Yes.

Q: Did he look something like Frankie Carrillo?

A: Looked like that guy.

Q: When you saw him and you got into this argument

with him, were you positive it was him?

A: Positive. Surely positive.

CARRILLO V. CNTY. OF LOS ANGELES 15

prosecution that Turner had selected Carrillo from the gang

books by “put[ting] his finger on the picture [of Carrillo] and

sa[ying], ‘That’s the guy.’” He also denied that Turner

selected anybody else before settling on Carrillo. In his

capacity as a gang expert, Ditsch testified that witnesses who

are incarcerated often recant because of their fear of being

perceived as “snitches,” and that Turner had “do[ne] a

complete turnaround in this case” after being sent to jail.

Although Turner recanted, the other witnesses maintained

their identifications. The jury convicted Carrillo.

Nearly 20 years later, Carrillo filed a habeas petition in

California superior court, alleging the eyewitness testimony

implicating him was false and that someone else had

committed the shooting. During a hearing on the petition,

five of the six eyewitnesses who had testified at his second

trial recanted their original identification, admitting they

could not see who shot Sarpy. The court granted the petition,

concluding Carrillo “ha[d] established that the eyewitness

evidence against him was either false, tainted, or both.” The

district attorney’s office did not appeal the ruling or retry

Carrillo.

Following the grant of his habeas petition in state court,

Carrillo filed suit under 42 U.S.C. § 1983, alleging in part

that Ditsch violated his right to have material and exculpatory

evidence disclosed under Brady, and that, as a result, he was

wrongfully convicted. Specifically, he alleges Ditsch failed

to disclose his “role in providing information to Scott Turner

that steered him towards his identification of . . . Carrillo.”

Ditsch moved for summary judgment, arguing he was

entitled to qualified immunity on Carrillo’s Brady claim

because it was not clearly established in 1991 that Brady

16 CARRILLO V. CNTY. OF LOS ANGELES

applied to police officers as well as prosecutors. The district

court denied his motion, and Ditsch appealed.9

STANDARD OF REVIEW

A district court’s denial of summary judgment on the

basis of qualified immunity is reviewed de novo. See Wilkins

v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003).

Similarly, the denial of a motion for judgment on the

pleadings based on qualified immunity is reviewed de novo.

See Somers v. Thurman, 109 F.3d 614, 616 (9th Cir. 1997).

“Where disputed issues of material fact exist, we assume the

version of the material facts asserted by the non-moving

party.” Mattos, 661 F.3d at 439. “We draw all reasonable

inferences in favor of the non-moving party.” Id.

DISCUSSION

In this appeal, we consider whether the police officers in

these two cases were entitled to qualified immunity for their

alleged failure to disclose material and exculpatory evidence

as required by Brady v. Maryland, 373 U.S. 83 (1963).

9

During the pendency of Ditsch’s appeal, the district court granted

Carrillo’s motion to certify this appeal as frivolous under Chuman v.

Wright, 960 F.2d 104, 105 (9th Cir. 1992), which would have allowed the

case to proceed to trial while the instant appeal was pending. See id.

Ditsch filed an urgent motion to stay the district court’s order, which was

granted. Carrillo then filed a motion for summary affirmance based on

Tennison v. City & County of San Francisco, 570 F.3d 1078 (9th Cir.

2008), which he argued “definitively answered” the question presented in

this appeal. The motion for summary affirmance is dismissed as moot in

light of this opinion.

CARRILLO V. CNTY. OF LOS ANGELES 17

Qualified immunity shields police officers from liability

under 42 U.S.C. § 1983 unless they have violated a statutory

or constitutional right clearly established at the time of the

challenged conduct. See City & Cnty. of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1774 (2015). To determine

whether an officer is entitled to qualified immunity, we

conduct a two-part test. See Pearson v. Callahan, 555 U.S.

223, 232 (2009). First, do the facts the plaintiff alleges show

a violation of a constitutional right? See id. Second, was the

right “clearly established” at the time of the alleged

misconduct? See id. “An officer cannot be said to have

violated a clearly established right unless the right’s contours

were sufficiently definite that any reasonable official in his

shoes would have understood that he was violating it,

meaning that existing precedent placed the statutory or

constitutional question beyond debate.” Sheehan, 135 S. Ct.

at 1774 (internal citations, alterations and quotation marks

omitted).

The defendants do not dispute that the evidence allegedly

withheld falls within Brady’s scope, and we therefore do not

address the first prong of the qualified immunity analysis.

See Tatum v. Moody, 768 F.3d 806, 821 n.10 (9th Cir. 2014)

(declining to address an element of qualified immunity

defendants failed to argue).10 Instead, we consider only the

second prong: whether the officers would have understood

they were violating the Supreme Court’s 1963 decision in

Brady by failing to disclose this evidence. We first address

whether it was clearly established in 1984 that police officers

10

Nor could they. The allegations unquestionably make out a violation

of plaintiffs’ right to material, exculpatory evidence. See infra Section II.

18 CARRILLO V. CNTY. OF LOS ANGELES

as well as prosecutors were bound by Brady at all,11 and next

whether the evidence allegedly withheld in these cases was

clearly established to be Brady evidence.

I. The law in 1984 clearly established that police officers

were bound to disclose material, exculpatory evidence.

The officers argue the law did not clearly establish that

they were bound by Brady at all in 1984 and 1991. This

contention lacks merit because it was clearly established well

before the events in these cases that police officers were

bound to disclose material and exculpatory evidence.

Brady held “the suppression by the prosecution of

evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. This holding was an

“extension” of Mooney v. Holohan, 294 U.S. 103 (1935),

which held the government’s presentation of testimony it

knew to be false, as well as its suppression of evidence that

would have impeached that testimony, could require reversal

of a conviction. See Brady, 373 U.S. at 86. The Supreme

Court reasoned:

The principle of Mooney v. Holohan is not

punishment of society for misdeeds of a

prosecutor but avoidance of an unfair trial to

11

In Carrillo, the question presented is whether, in 1991, the law clearly

established that police officers were bound by Brady. Because we

conclude the law in this circuit clearly established that police officers were

bound by Brady at least as far back as 1978, it follows this obligation was

clearly established in 1991.

CARRILLO V. CNTY. OF LOS ANGELES 19

the accused. Society wins not only when the

guilty are convicted but when criminal trials

are fair; our system of the administration of

justice suffers when any accused is treated

unfairly.

Id. at 87 (emphasis added). Brady framed the right to

material, exculpatory evidence in terms of the defendant

rather than the state actor responsible for the nondisclosure.

As the Court later explained, the “purpose” of Brady’s

disclosure requirement is “to ensure that a miscarriage of

justice does not occur.” United States v. Bagley, 473 U.S.

667, 675 (1985).

Just one year after Brady, the Fourth Circuit held police

officers as well as prosecutors were bound to disclose

material, exculpatory evidence, explaining:

it makes no difference if the withholding is by

officials other than the prosecutor. The police

are also part of the prosecution, and the taint

on the trial is no less if they, rather than the

State’s Attorney, were guilty of the

nondisclosure . . . . The duty to disclose is that

of the state, which ordinarily acts through the

prosecuting attorney; but if he too is the

victim of police suppression of the material

information, the state’s failure is not on that

account excused. We cannot condone the

attempt to connect the defendant with the

crime by questionable inferences which might

20 CARRILLO V. CNTY. OF LOS ANGELES

be refuted by undisclosed and unproduced

documents then in the hands of the police.

Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964).

Requiring police officers as well as prosecutors to

disclose material and exculpatory evidence follows logically

from Brady’s rationale. “As far as the Constitution is

concerned, a criminal defendant is equally deprived of his or

her due process rights when the police rather than the

prosecutor suppresses exculpatory evidence because, in either

case, the impact on the fundamental fairness of the

defendant’s trial is the same.” Moldowan v. City of Warren,

578 F.3d 351, 379 (6th Cir. 2009). Because police officers

play an essential role in forming the prosecution’s case,

limiting disclosure obligations to the prosecutor would

“undermine Brady by allowing the investigating agency to

prevent production by keeping a report out of the prosecutor’s

hands.” United States v. Blanco, 392 F.3d 382, 388 (9th Cir.

2004) (quoting United States v. Zuno-Arce, 44 F.3d 1420,

1427 (9th Cir. 1995)).

This circuit adopted Barbee’s logic well before the

investigations here. In United States v. Butler, 567 F.2d 885,

891 (9th Cir. 1978), we rejected the government’s argument

that no Brady violation occurred because investigative agents,

and not the prosecutor, were responsible for the nondisclosure

of promises made to certain prosecution witnesses,

explaining:

[t]he prosecutor is responsible for the

nondisclosure of assurances made to his

principal witnesses even if such promises by

other government agents were unknown to the

CARRILLO V. CNTY. OF LOS ANGELES 21

prosecutor. Since the investigative officers

are part of the prosecution, the taint on the

trial is no less if they, rather than the

prosecutor, were guilty of nondisclosure.

Id. (citing Barbee, 331 F.2d at 846) (emphasis added). Butler

thus made unmistakably clear that police officers and

prosecutors alike share an obligation to disclose “pertinent

material evidence favorable to the defense.” Id. at 888

(quoting United States v. Gerard, 491 F.2d 1300, 1302 (9th

Cir. 1974)).

The officers argue here that Butler did not clearly

establish that officers are subject to Brady because it

described the disclosure obligation in terms of the prosecutor

rather than the police officer. But Butler undisputably put

police officers on notice that their failure to disclose Brady

information would constitute a violation the defendant’s

constitutional rights. It “taught police officers how to

conform their conduct to the law,” and “[a] police officer

acting after the issuance of th[is] decision[] . . . could not

have thought that the suppression of material exculpatory

evidence would pass constitutional muster.” Owens v.

Baltimore City State’s Attorneys Office, 767 F.3d 379, 400

(4th Cir. 2014) (explaining that, even though circuit cases

including Barbee described the duty to disclose in terms of

the prosecutor, they put officers on notice that withholding of

Brady material would violate clearly established law).12

12

Although the determination of what constitutes material, exculpatory

evidence may require “the exercise of legal judgment that the prosecuting

attorney is better trained, not to mention better positioned, to make,”

police must still be expected to “recognize and determine what evidence

should be preserved and turned over to the prosecutor.” Moldowan,

22 CARRILLO V. CNTY. OF LOS ANGELES

Because “clearly established law” includes “controlling

authority in [the defendants’] jurisdiction,” Butler clearly

established in 1978 that police officers have a duty to disclose

Brady material. See Wilson v. Layne, 526 U.S. 603, 617

(1999); Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir.

2004) (explaining that sources of “clearly established law”

include decisions of the Supreme Court or this circuit); see

also Hope v. Pelzer, 536 U.S. 730, 741–45 (2002) (holding

defendants’ conduct violated clearly established law in light

of binding circuit precedent).13

The officers’ attempts to circumvent Butler are

unpersuasive. First, they incorrectly characterize Butler’s

explanation of police officers’ obligation under Brady as

“dictum.” It is not. The passage in that case discussing

police officers’ obligations under Brady was essential to the

conclusion that a new trial was warranted when agents failed

to disclose promises made to a key government witness, even

578 F.3d at 380–81. The Supreme Court has held government agents

“could offend the Due Process Clause of the Fifth Amendment . . . by

deporting potential witnesses,” thereby “diminishing a defendant’s

opportunity to put on an effective defense,” as well as by failing to

preserve evidence “that might be expected to play a significant role in the

suspect’s defense.” California v. Trombetta, 467 U.S. 479, 486, 488

(1984). As the Sixth Circuit has explained, “[i]f the police can be

expected to recognize what evidence must be preserved, certainly it is not

too burdensome to demand that they simply turn that same information

over to the prosecutor’s office.” Moldowan, 578 F.3d at 381.

13

In recent cases, the Supreme Court has assumed for the sake of

argument without explicitly holding that “controlling Court of Appeals’

authority could be a dispositive source of clearly established law.”

Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012); see also Carroll v.

Carman, 135 S. Ct. 348, 350 (2014). None of these cases has overruled

Hope or called its exclusive reliance on circuit precedent into question.

CARRILLO V. CNTY. OF LOS ANGELES 23

though the prosecutors were unaware of the promises. See

Butler, 567 F.2d at 891. Furthermore, we have relied on

Butler to conclude in subsequent cases that Brady was

violated when a police officer failed to disclose exculpatory

evidence. See, e.g., Jackson v. Brown, 513 F.3d 1057, 1074

(9th Cir. 2008) (relying in part on Butler to conclude that, in

1981, “the United States Constitution, as interpreted by Brady

and Giglio, compelled prosecutors to disclose evidence

favorable to the accused, even when that evidence was known

only to the police and not to the prosecutor”); United States

v. Steel, 759 F.2d 706, 714 (9th Cir. 1985) (“Because the

government was required to furnish all exculpatory evidence

under the doctrine of Brady, and because investigative

officers are part of the prosecution, Butler, 567 F.2d at 891,

there was indeed a negligent nondisclosure.” (first internal

citation omitted)).

Second, the officers argue the law did not clearly establish

they were bound by Brady until the Supreme Court itself

“extended” Brady to police officers in Kyles v. Whitley,

514 U.S. 419, 438 (1995). Kyles addressed a Brady violation

in which police officers, unbeknownst to the prosecutor’s

office, failed to disclose material, exculpatory evidence. See

id. at 421. It concluded prosecutors were bound by a duty to

learn of “any favorable evidence known to the others acting

on the government’s behalf in the case, including the police,”

id. at 437, and that “any argument for excusing a prosecutor

from disclosing what he does not happen to know about boils

down to a plea to substitute the police for the prosecutor, and

even for the courts themselves, as the final arbiters of the

government’s obligation to ensure fair trials,” id. at 438.

Because Kyles was decided in 1995, the defendants argue, it

could not have been clearly established in 1984 or in 1991

that they were bound to disclose Brady evidence.

24 CARRILLO V. CNTY. OF LOS ANGELES

But Kyles did not announce a new principle of law. In

fact, Kyles itself rejected the state’s argument that “it should

not be held accountable under Bagley and Brady for evidence

known only to police investigators and not to the prosecutor,”

explaining that “[t]o accommodate the State in this matter

would . . . amount to a serious change of course from the

Brady line of cases.” Id. (emphasis added).

In the habeas context, we rejected an argument that Kyles’

extension of Brady to police officers announced a “new rule”

of criminal procedure, concluding “the principle underlying

[Kyles’] unexceptional holding dates back, at the latest, to the

Supreme Court’s decision in Giglio v. United States, 405 U.S.

150 (1972).” Jackson, 513 F.3d at 1073 (emphasis added).

In Giglio, the Supreme Court held Brady error occurred when

one prosecutor had promised a key witness immunity, even

though other prosecutors were unaware of the agreement,

because “[t]he prosecutor’s office is an entity and as such it

is the spokesman for the Government,” and therefore, “[a]

promise made by one attorney must be attributed . . . to the

Government.” Giglio, 405 U.S. at 154. Because “the

responsibility of the prosecutor to investigate all promises

made on behalf of the government extends to promises made

by the police, who also make any such promises as

spokespersons of the government, and for whom the

prosecutor bears responsibility,” we reasoned Kyles simply

applied Giglio. Jackson, 513 F.3d at 1073.

Furthermore, the vast majority of circuits to have

considered the question have adopted the view that police

officers were bound by Brady well before the Court decided

CARRILLO V. CNTY. OF LOS ANGELES 25

Kyles.14 The Third Circuit alone has disagreed, concluding

such an obligation was not clearly established until “the

Supreme Court . . . settle[d] this matter” in Kyles,

notwithstanding precedent in that circuit that a police

officer’s failure to disclose Brady evidence could be imputed

to the prosecutor. See Gibson v. Super., N.J. Dept. of Law &

Pub. Safety, 411 F.3d 427, 443–44 (3d Cir. 2005), overruled

on other grounds by Dique v. N.J. State Police, 603 F.3d 181,

188 (2d Cir. 2010).15 The defendants argue that the Third

Circuit’s decision created a circuit split on the issue and that,

“if judges thus disagree on a constitutional question, it is

14

See Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992)

(“The constitutional duty to disclose exculpatory evidence has its roots in

Brady . . . . [T]he police satisfy their obligations under Brady when they

turn exculpatory evidence over to the prosecutors.”); Owens v. Baltimore

City State’s Attorneys Office, 767 F.3d 379, 401 (4th Cir. 2014)

(concluding that circuit precedent “unmistakably provides that, by 1988,

a police officer violates clearly established constitutional law when he

suppresses material exculpatory evidence in bad faith”); Geter v.

Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988) (holding that a police

officer who deliberately concealed exculpatory evidence could not claim

qualified immunity in 1982); Moldowan v. City of Warren, 578 F.3d 351,

382 (6th Cir. 2009) (holding law clearly established police officers were

bound by Brady in 1990); Newsome v. McCabe, 256 F.3d 747, 752–53

(7th Cir. 2001) (holding it was clearly established police officers were

bound by Brady in 1979); McMillian v. Johnson, 88 F.3d 1554, 1569 (11th

Cir. 1996) (“[C]learly established law in 1987 and 1988 prohibited the

police from concealing exculpatory or impeachment evidence.”).

15

The First Circuit has also held police officers were not bound to

affirmatively disclose Brady evidence until Kyles. See Drumgold v.

Callahan, 707 F.3d 28, 43 (1st Cir. 2013). But it distinguished the

affirmative duty to disclose evidence from the duty not to deliberately

suppress exculpatory evidence. Where the defendant police officer was

alleged to have deliberately suppressed evidence, in violation of either

Brady or Mooney v. Holohan, 294 U.S. 103 (1934), the court concluded

such conduct was clearly established as unlawful in 1989. See id.

26 CARRILLO V. CNTY. OF LOS ANGELES

unfair to subject police to money damages for picking the

losing side of the controversy.” Pearson v. Callahan,

555 U.S. 223, 245 (2009) (alteration and internal quotation

marks omitted).

Although disagreement among circuit courts may imply

a legal principle is not “beyond debate,” and thus not clearly

established, qualified immunity is not the “guaranteed

product of disuniform views of the law in the other federal, or

state, courts, and the fact that a single judge, or even a group

of judges, disagrees about the contours of a right does not

automatically render the law unclear.” Safford Unified Sch.

Dist. No. 1 v. Redding, 557 U.S. 364, 378 (2009). More

importantly, however, “[i]f the right is clearly established by

decisional authority of the Supreme Court or of this Circuit,

our inquiry should come to an end.” Hopkins v. Bonvicino,

573 F.3d 752, 772 (9th Cir. 2009) (alteration in original)

(internal quotation marks omitted). Only in the absence of

binding precedent do we consider other sources of decisional

law such as out-of-circuit cases. See Boyd v. Benton Cnty.,

374 F.3d 773, 781 (9th Cir. 2004).

Because Butler unambiguously held due process is

violated where a police officer fails to disclose material,

exculpatory evidence, our inquiry is over. We hold that, at

the time of the relevant events in these cases, circuit

precedent clearly established that police officers were bound

by Brady’s disclosure requirements.

II. The specific evidence allegedly withheld in these cases

was clearly established to be Brady material.

Even though it was clearly established at the time of the

investigations that police officers were bound to disclose

CARRILLO V. CNTY. OF LOS ANGELES 27

Brady evidence, we must next consider whether every

reasonable police officer would have understood the specific

evidence allegedly withheld was clearly subject to Brady’s

disclosure requirements.

We note the officers argued in the district court only that

the law did not clearly establish their duty to disclose Brady

evidence at all. Similarly, the officers’ opening briefs on

appeal framed the question presented as whether, in 1984 and

1991, there was “an absence of clearly established law as to

whether police officers were bound by the disclosure

obligations of Brady.” Elsewhere in their briefs, the officers

did obliquely suggest that, even if the law established

officers’ duty to disclose evidence under Brady generally,

their duty to disclose the specific evidence allegedly withheld

in these two cases was not clear.16

“Absent exceptional circumstances, we generally will not

consider arguments raised for the first time on appeal,

although we have discretion to do so.” AlohaCare v. Hawaii,

Dept. of Human Servs., 572 F.3d 740, 744 (9th Cir. 2009)

(citation omitted). Moreover, “[n]ormally we decline to

address an issue that is simply mentioned but not argued.”

Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004).

Nevertheless, because the issue is purely one of law, and

16

Smith and Parra note in their opening brief the passage in Butler “was,

at most, a broad general proposition insufficient to clearly establish the

law on this issue,” and that the evidence withheld in that case was

“significantly different than . . . nondisclosure of exculpatory information

regarding [the] identification [of O’Connell] as the murderer or the

possibility of another suspect.” Similarly, Ditsch notes the information

about Turner’s selection of other photos before identifying Carrillo was

different from the confession we held was clearly established Brady

evidence in Tennison.

28 CARRILLO V. CNTY. OF LOS ANGELES

because our addressing it at this juncture will not prejudice

the plaintiffs, we will do so here. See Kimes v. Stone, 84 F.3d

1121, 1126 (9th Cir. 1996).

In recent cases, the Supreme Court has cautioned us “not

to define clearly established law at a high level of generality.”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011). At the

same time, “[f]or a legal principle to be clearly established, it

is not necessary that ‘the very action in question has

previously been held unlawful,’” but rather that “‘in the light

of pre-existing law the unlawfulness [is] apparent.’” Fogel v.

Collins, 531 F.3d 824, 833 (9th Cir. 2008) (quoting Anderson

v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in

original). In other words, “the ‘contours of [the] right [must

be] sufficiently clear’ that every ‘reasonable official would

have understood that what he is doing violates that right.’”

Al-Kidd, 131 S. Ct. 2083 (quoting Anderson, 483 U.S. at 640)

(first alteration in original).

In the Fourth Amendment context, for example, the Court

has explained the “general proposition . . . that an

unreasonable search or seizure violates the Fourth

Amendment is of little help in determining whether the

violative nature of particular conduct is clearly established.”

Id. This is because “[q]ualified immunity is no immunity at

all if ‘clearly established’ law can simply be defined as the

right to be free from unreasonable searches and seizures.”

Sheehan, 135 S. Ct. at 1776.

Here, the right being violated is, by its terms, significantly

more specific than the “extremely abstract” right of freedom

from unreasonable searches and seizures. See Anderson,

483 U.S. at 639. Brady defines the type of material the

government is obligated to disclose concretely and

CARRILLO V. CNTY. OF LOS ANGELES 29

specifically as “favorable to the accused, either because it is

exculpatory, or because it is impeaching.” Strickler v.

Greene, 527 U.S. 263, 281–82 (1999). Unlike the broad

touchstone of “unreasonableness,” the contours of a

defendant’s right to Brady material are focused and clear.

Furthermore, although the right at issue cannot be defined

at too high a level of generality, it cannot be defined “too

narrowly,” either. Tennison v. City & Cnty. of San Francisco,

570 F.3d 1078, 1093 (9th Cir. 2008). In Tennison, we

addressed police officers’ claims of qualified immunity

relating to alleged Brady violations. See id. at 1078. The

plaintiff alleged the investigating officers failed to disclose

the confession of an alternative suspect. See id. at 1093. The

officers argued their duty to disclose “a confession that was

made after a guilty verdict was rendered, that was ‘inherently

unbelievable,’ and that was given by someone who earlier

had denied involvement in the murder” was not clearly

established. See id. We rejected this argument, explaining

that

[f]or a legal principle to be clearly

established, it is not necessary that the very

action in question has previously been held

unlawful. Rather, the dispositive inquiry is

whether it would be clear to a reasonable

official that his conduct was unlawful in the

situation he confronted.

The Inspectors received a Mirandized

confession by someone who had been named

by a reliable witness, known to the officers,

who recounted events surrounding the murder

in detail, and whose account contradicted that

30 CARRILLO V. CNTY. OF LOS ANGELES

of the prosecution’s witnesses. The evidence

certainly undermines confidence in the

outcome of the trial. Thus, it would have

been clear to a reasonable officer that such

material should have been disclosed to the

defense. See Barker v. Fleming, 423 F.3d

1085, 1095 (9th Cir. 2005) (“It is well settled

that evidence impeaching the testimony of a

government witness falls within the Brady

rule. . . .”)

Id. at 1093–94 (some internal citations, quotation marks and

alterations omitted) (emphasis added).

As in Tennison, law predating the investigations in both

of these cases clearly established that the type of evidence

allegedly withheld – including impeachment and alternative

suspect evidence – fell within Brady’s scope. The officers’

assertions of qualified immunity, therefore, fail. We address

each item of evidence in turn below.

A. O’Connell Evidence

We first address the evidence O’Connell has alleged the

defendant police officers withheld, including evidence

impeaching the statements of the three eyewitnesses to testify

and information regarding a previous attempt on the victim’s

life.

1. Druecker, Villareal and Soucy Statements

O’Connell argues the officers should have turned over

evidence relating to the eyewitness identifications made by

Druecker, Villareal and Soucy.

CARRILLO V. CNTY. OF LOS ANGELES 31

Druecker, who was the only eyewitness to the shooting,

testified at trial that he was able to identify O’Connell as the

killer. But the officers never disclosed that Druecker said he

saw the shooter only in profile, asked to be hypnotized

because he could not remember what the shooter looked like,

and recalled the shooter did not have a mustache unlike every

man depicted in the photo lineup.

Villareal, who saw the shooter flee in a yellow Pinto,

testified at trial he was unsure whether O’Connell was the

shooter. Detective Smith cast doubt on this statement by

testifying Villareal had readily chosen O’Connell from a

photo lineup. But the officers failed to disclose that Villareal,

when shown the photo lineup, selected two photographs and

said that O’Connell “looked like the person who was there,

but I’m not positive.”

Soucy, a neighbor of French’s ex-wife, testified at trial

that he recognized O’Connell from the lineup and that he was

confident O’Connell was the same person he had seen kissing

Lyon. He further testified this man drove a yellow Pinto. But

again, the officers failed to disclose their handwritten notes,

which said Soucy identified “#3 & poss[ibly] #1” and “picked

out #3 as poss[ible] suspect because of face but hair was

curlier.”

Had this evidence been disclosed, the defense could have

used it to impeach the eyewitnesses’ identifications of

O’Connell as the killer. The law in 1984 made clear that

impeachment evidence must be disclosed under Brady. For

decades prior, the Supreme Court had explained the

presentation of false testimony violated due process. In its

1972 opinion in Giglio, the Court reasoned Brady

32 CARRILLO V. CNTY. OF LOS ANGELES

encompassed evidence implicating the credibility of a

government witness:

As long ago as Mooney v. Holohan, 294 U.S.

103, 112 (1935), this Court made clear that

deliberate deception of a court and jurors by

the presentation of known false evidence is

incompatible with “rudimentary demands of

justice.” . . . . In Napue v. Illinois, 360 U.S.

264 (1959), we said, “[t]he same result

obtains when the State, although not soliciting

false evidence, allows it to go uncorrected

when it appears.” Id., at 269. Thereafter

Brady v. Maryland, 373 U.S. at 87, held that

suppression of material evidence justifies a

new trial “irrespective of the good faith or bad

faith of the prosecution.” When the

“reliability of a given witness may well be

determinative of guilt or innocence,”

nondisclosure of evidence affecting credibility

falls within this general rule.

405 U.S. at 153–54 (emphasis added) (some citations

omitted). In United States v. Bagley, 473 U.S. 667, 676–77

(1985), the Court reaffirmed this principle, citing Giglio for

the proposition that “[i]mpeachment evidence . . . as well as

exculpatory evidence, falls within the Brady rule.” Id. at 676.

Here, the disclosure of Druecker’s request for hypnosis,

observation that the shooter – unlike every person depicted in

the lineup – did not have a mustache, and uncertainty

regarding his identification would have cast serious doubt on

his identification of O’Connell at trial. Similarly, the

disclosure of Soucy’s choice of two men from the photo

CARRILLO V. CNTY. OF LOS ANGELES 33

lineup would have undermined his identification of

O’Connell. The disclosure of Villareal’s hesitancy and

uncertainty when shown the photo lineup would have

undercut Smith’s testimony that Villareal readily chose

O’Connell’s photo from the lineup and was prevaricating on

the stand. Because it was clearly established by 1984 that

police officers were bound by Brady, and that evidence

undermining the credibility of government witnesses fell

within Brady’s ambit, it would have been clear to any

reasonable officer that the nondisclosure of this evidence was

unlawful.

2. Evidence of a separate attempt on victim’s life

O’Connell also alleges the police officers failed to

disclose evidence of a previous attempt on the victim’s life.

The officers’ notes reveal that Lyon, French’s ex-wife, had

previously attempted to run him over in her car with the

assistance of Randy Smith, who was described as tall, with

sandy or blond hair. This information was never disclosed to

the prosecution or defense, and as a result, the defense was

never able to investigate it.

As a preliminary matter, the officers argue the

information about Randy Smith was a “dead lead.”17 But as

we explained in an earlier qualified immunity challenge based

on nondisclosure of Brady material,

17

The officers also argue O’Connell’s defense counsel was aware of

Randy Smith. They offer no citation for this assertion, and at this stage

we must in any event take as true the version of facts O’Connell has

alleged. See Chavez v. United States, 683 F.3d 1102, 1008 (9th Cir.

2012).

34 CARRILLO V. CNTY. OF LOS ANGELES

we reject the Inspectors’ attempt to dismiss

their Brady duty by downplaying the

importance of the evidence. “[I]f there were

questions about the reliability of the

exculpatory information, it was the

prerogative of the defendant and his counsel –

and not of the prosecution – to exercise

judgment in determining whether the

defendant should make use of it,” because

“[t]o allow otherwise would be to appoint the

fox as henhouse guard.”

Tennison, 570 F.3d at 1094 (quoting DiSimone v. Phillips,

461 F.3d 181, 195 (2d Cir. 2006)).

Any reasonable police officer in 1984 would have

understood that evidence potentially inculpating another

person fell within Brady’s scope. In Brady itself, the Court

considered the failure to disclose an accomplice’s confession

that he had committed the homicide for which he and the

defendant were standing trial. The Court held suppression of

this evidence violated due process. See 373 U.S. at 86.

Here, the officers failed to disclose evidence that another

man who resembled the eyewitness description of the killer

had previously tried to kill the victim. This evidence would

have cast doubt on O’Connell’s culpability and would have

instilled French’s dying declaration – in which French said

the killer was someone his ex-wife used to “hang[]around

with” – with an alternative meaning. The defendants’ alleged

failure to disclose this information violated O’Connell’s

clearly established right to evidence that “would tend to

exculpate” him. Brady, 373 U.S. at 88.

CARRILLO V. CNTY. OF LOS ANGELES 35

B. Carrillo Evidence

Carrillo argues Ditsch failed to disclose the circumstances

surrounding Turner’s identification of Carrillo. 18

Specifically, he alleges Ditsch failed to disclose that Turner

initially chose several other photos from a “gang book”– each

of which Ditsch then told Turner “could not be the suspect

shooter” – before ultimately selecting Carrillo’s photo, which

Ditsch affirmed as the “right choice.” He also alleges Ditsch

failed to disclose that he threatened Turner upon learning

Turner planned to recant his identification of Carrillo before

Carrillo’s second trial. Ditsch counters that the “potentially

exculpatory nature of such evidence” would not have been

clear to a reasonable police officer in 1991.

During the first trial, Turner testified for the state that he

was able to positively identify Carrillo. Had the evidence of

Turner’s choice of several other photos and Ditsch’s

suggestive comments been disclosed, the defense could have

used that information to impeach Turner’s identification at

the first trial and bolster his recantation at the second trial.

Furthermore, this evidence would also have undercut

Ditsch’s testimony at the second trial that Turner was

“absolutely certain” of his identification of Carrillo. Ditsch’s

effort to paint Turner’s selection as unequivocal implicitly

recognizes that evidence of hesitancy and earlier

misidentification would have been very helpful to the defense

18

Carrillo also alleges Ditsch failed to disclose his membership in the

Lynwood Vikings, a “white supremacist internal gang dedicated to wiping

out the Young Crowd gang, including the use of fabricated evidence to

obtain false convictions.” Carrillo does not appeal the district court’s

ruling that this allegation was without merit.

36 CARRILLO V. CNTY. OF LOS ANGELES

in impeaching Turner’s original identification, not to mention

supporting the veracity of Turner’s recantation. Likewise,

information that Ditsch had coached Turner’s identification

would have contradicted Ditsch’s testimony that Turner

independently selected Carrillo from the gang book and photo

lineup and cast serious doubt on Ditsch’s testimony that

Turner’s recantation was not genuine. Finally, evidence that

Ditsch threatened Turner with negative consequences if he

recanted would have further undermined Ditsch’s rebuttal of

Turner’s recantation.

As previously discussed, the law in 1991 clearly

established that evidence impeaching the credibility of a

government witness was required to be disclosed under

Brady. See Bagley, 473 U.S. at 676; Giglio, 405 U.S. at 153.

Any reasonable officer would have understood the withheld

evidence here would have impugned the testimony of two key

government witnesses, and therefore should have been

disclosed.

Other circuits have recognized that police officers’ failure

to disclose the use of suggestive tactics violates Brady.19 For

19

Furthermore, the Supreme Court explicitly recognized the risk of

police improperly influencing photo identifications, explaining:

[i]t must be recognized that improper employment of

photographs by police may sometimes cause witnesses

to err in identifying criminals . . . . This danger will be

increased if the police . . . show [the witness] the

pictures of several persons among which the

photograph of a single such individual recurs or is in

some way emphasized.

CARRILLO V. CNTY. OF LOS ANGELES 37

instance, the Seventh Circuit concluded police officers could

be held liable under § 1983 for “withh[olding] from the

prosecutors information about their coaching of the witnesses

and the fact that these witnesses earlier selected pictures from

a book of mug shots that did not contain [plaintiff’s] photo,”

because under Brady it was “clearly established in 1979 and

1980 that police could not withhold from prosecutors

exculpatory information about . . . the conduct of a lineup.”

Newsome v. McCabe, 256 F.3d 747, 749, 752 (7th Cir. 2001).

Similarly, nearly three decades ago, the Fifth Circuit

considered a § 1983 claim that law enforcement authorities

engaged in suggestive identification techniques when

showing witnesses a lineup. See Geter v. Fortenberry,

849 F.2d 1550, 1559–60 (5th Cir. 1988). The plaintiff

alleged the officers failed to disclose this evidence and that it

would have been “favorable, and exculpatory, as it would

permit [plaintiff] to demonstrate to the jury . . . [t]hat

[plaintiff’s] identification in the instant cause is in all

likelihood a mistaken identification due to his facial

similarity to other persons and/or overzealous police

investigatory techniques.” Id. Citing Brady, the court held

“a police officer cannot avail himself of a qualified immunity

defense if he procures false identification by unlawful means

or deliberately conceals exculpatory evidence, for such

activity violates clearly established constitutional principles.”

Id. at 1559.

Any reasonable officer would have understood Turner’s

choice of multiple other photos from a gang book and

Simmons v. United States, 390 U.S. 377, 383 (1968). Carrillo has

separately alleged a Simmons violation, but that claim is beyond the scope

of this appeal.

38 CARRILLO V. CNTY. OF LOS ANGELES

coached selection of Carrillo was potential impeachment

evidence required to be disclosed under Brady. The same is

true of Ditsch’s efforts to dissuade Turner from recanting his

identification. The district court therefore properly denied

Ditsch qualified immunity.

CONCLUSION

The law clearly established, well before the events in

these cases, that police officers were bound by Brady and that

the evidence allegedly withheld in these cases fell within

Brady’s scope. We therefore affirm the denial of qualified

immunity in both cases and remand to the district court for

further proceedings.

AFFIRMED.