Appendix — Jean v. Collins
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
wVvwrs wee
\
3
:
7)
SAIC Hip He CLERK
Supreme Court of the Antled States
LESLY JEAN,
Petitioner,
¥.
DELMA COLLINS, Chief of Detectives of the City
of Jacksonville, Individually;
JAMES SHINGLETON, Police Officer
with the City of Jacksonville, North Carolina,
Police Department, Individually,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Appendix to Petition for Writ of Certiorari
Richard B. Glazier
Counsel of Record
BEAVER HOLT STERNLICHT
BURGE GLAZIER CARLIN
& BRITTON, P.A
230 Green Street
P.O. Box 2275
Fayetteville, NC 28302
(910) 323-4600
Counsel for Petitioner
THE LEX GROUP ¢ 1205 East Main Street Suite 2 East * Richmond, VA 23219
(804) 644-4419 # (800) 856-4419 # Fax: (804) 644-3660 ¢ www.thelexgroup.com
nA V
TABLE OF CONTENTS
Appendix to the Petition
Opinion,
United States Court of Appeals
for the Fourth Circuit
entered July 31, 2000............. Palllasai saab
Order,
Allowing Certiorari,
Supreme Court of the United States
Entered June 01, 1999 uw...
Opinion,
United States Court of Appeals
for the Fourth Circuit
entered September 17, 1998 .........0000...
Opinion,
United States Court of Appeals
for the Fourth Circuit
entered March 07, 1997.................c0008
Order,
United States District Court
for the Eastern District of North Carolina
Eastern Division
entered October 13, 1995...
App. i
Page
Judgment in a Civil Case
United States District Court
for the Eastern District of North Carolina
Eastern Division
entered Octoter 19, PRB sscisssticciandstsnndaatones App.
Complaint in the
United States District Court
for the Eastern District of North Carolina
Eastern Division
filed May 20, 190Msi...scusiedicaiieeinlenanane App.
United States Constitution
Fourteenth Amendment ...............:cccseceeeeeees App.
42 U.S.C. § 296 3 icnncssosnsissstaeacanieg eee App.
Affidavits in Support of Plaintiff's Response
to Defendant’s Motion for Summary Judgment
filed July 17, 1995:
Affidavit of Lesly Jean
Gated Fume 16), LORS sacainsiniseeenasons App.
Affidavit of Thomasine E. Moore
Gated Jaaby GB, YFG S ssccsisninsnsscsocnessies App.
Affidavit of Walter Wayne Vatcher
Gated Joly 12, BORD sicisscspertsctivenicns App.
Opinion,
United States Court of Appeals
for the Fourth Circuit
Jean v. Rice,
entered June 21, ON App.
App. ii
120
140
144
146
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LESLY JEAN,
Plaintiff-Appellant,
v. No. 95-7694
DELMA COLLINS, Chief of Detectives of the
City of Jacksonville, Individually;
JAMES SHINGLETON, Police Officer with the
City of Jacksonville, North Carolina,
Police Department, Individually,
Defendants-Appellees.
On Remand from the United States Supreme Court.
(S. Ct. No. 98-980)
Argued: October 25, 1999
Decided: July 31, 2000
Entered: July 31, 2000
Before WILKINSON, Chief Judge, WIDENER,
MURNAGHAN, WILKINS, NIEMEYER, LUTTIG,
WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING,
Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published per curiam opinion. Chief Judge
Wilkinson wrote an opinion concurring in the judgment, in
which Judge Widener, Judge Wilkins, Judge Niemeyer,
Judge Williams, and Judge Traxler joined. Judge
Murnaghan wrote a dissenting opinion, in which Judge
Michael, Judge Motz, Judge King, and Senior Judge
Hamilton joined. Judge Luttig wrote a dissenting opinion.
App. 1
COUNSEL
ARGUED: Richard Brooks Glazier, BEAVER, HOLT,
RICHARDSON, STERNLICHT, BURGE & GLAZIER,
P.A., Fayetteville, North Carolina, for Appellant. Kenneth
Ray Wooten, WARD and SMITH, P.A., New Bern, North
Carolina, for Appellees. ON BRIEF: Rebecca J. Britton,
BEAVER, HOLT, RICHARDSON, STERNLICHT,
BURGE & GLAZIER, P.A., Fayetteville, North Carolina,
for Appellant. John R. Green, Jr., WARD and SMITH,
P.A., New Bern, North Carolina, for Appellees.
OPINION
PER CURIAM:
This case came to be argued before the en banc
court on October 25, 1999. The judgment of the district
court is hereby affirmed by an equally divided en banc
court. Separate opinions follow seriatim.
AFFIRMED.
WILKINSON, Chief Judge, with whom Judges Widener,
Wilkins, Niemeyer, Williams, and Traxler join, concurring
in the judgment:
We concur in the court's judgment dismissing this
case against North Carolina police officers Delma Collins
and James Shingleton. Plaintiff Lesiy Jean contends that
Officers Collins and Shingleton violated his Fourteenth
Amendment due process rights by failing to turn over
exculpatory evidence to the prosecutor. Because plaintiff
alleges at most a negligent miscommunication between
these officers and the prosecutor, we would conclude that
the officers have not deprived Jean of any Fourteenth
Amendment right. As a result, we do not believe there can
App. 2
Te eM See Me
be any § 1983 liability. For the facts of this case we would
rely on our earlier en banc opinion. See Jean v. Collins,
155 F.3d 701, 703-05 (4th Cir. 1998) (en banc). In that
case, we held that as of "1982, a reasonable police officer
would not have known that his failure to turn over such
evidence violated a criminal defendant's clearly established
constitutional rights." Id. at 708. The Supreme Court then
granted certiorari, vacated the judgment, and remanded to
this court for further consideration in light of Wilson v.
Layne, 526 U.S. 603 (1999). See Jean v. Collins, 526 U.S.
1142 (1999). It is in light of Wilson then that we address
the question of when police officers are liable under § 1983
for allegedly withholding exculpatory evidence from the
prosecution and by extension a criminal defendant.
I.
Wilson's directions are straightforward ones. "A
court evaluating a claim of qualified immunity ‘must first
determine whether the plaintiff has alleged the deprivation
of an actual constitutional right at all .. . .'" Wilson, 526
U.S. at 609 (quoting Conn v. Gabbert, 526 U.S. 286, 290
(1999)); accord Siegert v. Gilley, 500 U.S. 226, 232
(1991). We must initially ask, therefore, if Jean has alleged
a Fourteenth Amendment due process violation by Officers
Collins and Shingleton.' Deciding this issue first can save a
defendant from having "to engage in expensive and time
consuming preparation to defend the suit on its merits."
'In his dissenting opinion, our brother Murnaghan chides us for
reinventing our theory of the case. This statement overlooks ‘he fact
that this case is here on remand from the Supreme Court in light of
Wilson v. Layne. Wilson requires that this court address "whether the
plaintiff has alleged the deprivation of an actual constitutional right at
all.” 526 U.S. at 609 (internal quotation marks omitted). It would be
surprising if our court had not reviewed its earlier approach in light of
Wilson's directive. Indeed, it would be irresponsible for us not to do so.
App. 3
Siegert, 500 U.S. at 232. It "also promotes clarity in the
legal standards for official conduct, to the benefit of both
the officers and the general public." Wilson, 526 U.S. at
609 (citing County of Sacramento v. Lewis, 523 U.S. 833,
841-42 n.5 (1998)).
In Jean v. Rice, 945 F.2d 82 (4th Cir. 1991), we
held that Jean's due process rights had been violated.
Specifically, we noted that "the government's failure [to
turn over material impeachment evidence to the defense]
was a violation of the principles announced in Brady and its
progeny.” Id. at 87. As a result of the prosecutor's Brady
violation, Jean's request for a writ of habeas corpus was
granted. See id. The question before us now is whether
there was an additional constitutional violation in this case -
- a due process violation by Officers Collins and Shingleton
for withholding from the prosecutor the hypnosis
recordings and reports.
The Supreme Court decisions establishing the Brady
duty on the part of prosecutors do not address whether a
police officer independently violates the Constitution by
withholding from the prosecutor evidence acquired during
the course of an investigation. See, e.g., Brady _v.
Maryland, 373 U.S. 83 (1963); Giglio v. Uni tates,
405 U.S. 150 (1972); United States v. Agurs, 427 U.S. 97
(1976); United States v. Bagley, 473 U.S. 667 (1985).
Recent cases, including some from this circuit, have
pointed toward such a duty. This court has noted that, "[a]
police officer who withholds exculpatory information from
the prosecutor can be liable under . . . section 1983,”
Goodwin v. Metts, 885 F.2d 157, 162 (4th Cir. 1989), but
only where "the officer's failure to disclose the exculpatory
information deprived the § 1983 plaintiffs of their right to a
fair trial," Taylor v. Waters, 81 F.3d 429, 436 n.5 (4th
Cir. 1996). And in Carter v. Burch, the court noted that a
police officer's actions in failing to turn over materially
exculpatory evidence to a prosecutor "violate[d] [the § 1983
App. 4
plaintiff's] constitutional rights." 34 F.3d 257, 264 (4th
Cir. 1994). Other circuits have also suggested that there
may be a duty here. See Brady v. Dill, 187 F.3d 104, 114
(Ist Cir. 1999); Walker v. City of New York, 974 F.2d
293, 298-99 (2d Cir. 1992); Geter v. Fortenberry, 849
F.2d 1550, 1559 (Sth Cir. 1988); Sanders v. English, 950
F.2d 1152, 1162 (Sth Cir. 1992); Jones v. City of Chicago,
856 F.2d 985, 993-96 (7" Cir. 1988); McMillian v.
Johnson, 88 F.3d 1554, 1566-70 (11th Cir.), amended by
101 F.3d 1363 (11th Cir. 1996).
These cases have left unclear the exact nature of any
duty that the law imposes on police with regard to
exculpatory evidence. Several characteristics of this duty,
however, seem evident. First, alleged failures to disclose do
not implicate constitutional rights where no constitutional
deprivation results therefrom. In this context, the
constitutional deprivation must be defined as a deprivation
of liberty without due process of law. In the absence of a
cognizable injury, such as a wrongful criminal conviction,
police suppression of evidence might still give rise to claims
under state law. But unless the § 1983 plaintiff can point to
a constitutional injury caused by the suppression, no § 1983
remedy will lie. See Albright v. Oliver, 510 U.S. 266, 270-
71 n.4 (1994) (plurality opinion) (substantive due process
cannot transform a state law malicious prosecution claim
into a constitutional claim); id. at 281-86 (Kennedy, J.,
joined by Thomas, J., concurring in judgment) (same);
Taylor, 81 F.3d at 436 & n.5 ("To the extent that Goodwin
bases its holding on a conclusion that the officer's failure to
disclose exculpatory evidence deprived the § 1983 plaintiffs
of a liberty interest in avoiding prosecution on less than
probable cause, that reasoning has been rejected in
Albright.").
Second, to speak of the duty binding police officers
as a Brady duty is simply incorrect. The Supreme Court has
always defined the Brady duty as one that rests with the
App. 5
prosecution. See, e.g., Brady, 373 U.S. at 87 ("suppression
by the prosecution of evidence favorable to an accused upon
request violates due process"); Giglio, 405 U.S. at 154
(satisfying Brady "is the responsibility of the prosecutor”);
Moore Vv. Illinois, 408 U.S. 786, 794 (1972) ("The heart of
the holding in Brady is the prosecution's suppression of
evidence . . . ."); Agurs, 427 U.S. at 108 ("the
prosecutor's constitutional duty to disclose"); Bagley, 473
U.S. at 676 ("the prosecutor failed to disclose evidence");
Kyles _v. Whitley, 514 U.S. 419, 437 (1995) ("the
prosecution, which alone can know what is undisclosed,
must be assigned the consequent responsibility to gauge the
likely net effect of all such evidence and make disclosure
when the point of ‘reasonable probability’ is reached").
The Brady duty is framed by the dictates of the
adversary system and the prosecution's legal role therein.
Legal terms of art define its bounds and limits. The
prosecutor must ask such lawyer's questions as whether an
item of evidence has "exculpatory" or "impeachment" value
and whether such evidence is "material." It would be
inappropriate to charge police with answering these same
questions, for their job of gathering evidence is quite
different from the prosecution's task of evaluating it. This
is especially true because the prosecutor can view the
evidence from the perspective of the case as a whole while
police officers, who are often involved in only one portion
of the case, may lack necessary context. To hold that the
contours of the due process duty applicable to the police
must be identical to those of the prosecutor's Brady duty
would thus improperly mandate a one-size-fits-all regime.
Third, it would be impermissible to hold the police
liable for due process violations under § 1983 where they
have acted in good faith. In Daniels v. Williams, the
Supreme Court stated "that the Due Process Clause is
simply not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or
App. 6
property." 474 U.S. 327, 328 (1986). The Fourteenth
Amendment iaandates, "nor shall any State deprive any
person of life, liberty, or property, without due process of
law." U.S. Const. amend. XIV, § 1. Daniels holds that, as
a matter of plain constitutional text, no "deprivation" occurs
on account of official negligence. 474 U.S. at 330-33.
Indeed, negligent conduct cannot by definition establish the
“affirmative abuse of power" necessary to constitute a due
process deprivation. See_id. at 330-32. Under Daniels,
then, police officer negligence or inadvertence in failing to
turn over evidence cannot be actionable under § 1983.
In an analogous case to the present, the Supreme
Court refused to find that police officers violated the Due
Process Clause in the absence of evidence that they acted in
bad faith. In Arizona v. Youngblood the Court addressed
that area of the law that "might loosely be called...
constitutionally guaranteed access to evidence." 488 U.S.
51, 55 (1988) (internal quotation marks omitted).
Youngblood involved police who failed to refrigerate
clothing which contained semen stains and to perform tests
on other semen samples. Id. at 53-55, 58. The defendant
argued that properly preserved evidence might well have
shown that he was innocent of any sexual assault. The
Youngblood Court held, however, that "unless a criminal
defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not
constitute a denial of due process of
law." Id. at 58.
While Youngblood dealt with the failure to preserve
evidence, its principles are certainly applicable to the
present situation. Here, as in Youngblood, the prosecutor
and ultimately the defense allegedly failed to receive
exculpatory evidence from the police. Here, as in
Youngblood, the police officers' actions were alleged to
constitute a due process violation. The Youngblood Court
stressed its "unwillingness" to read the Due Process Clause
App. 7
to impose "on the police an undifferentiated and absolute
duty" in that context. Id.
We similarly decline to impose a sweeping duty on
police in the instant situation and note the obvious
drawbacks of doing so.’ For instance, such a duty would
widen the legal gulf between prosecutors and police to such
an extent as to make scapegoats of police for every item of
evidence discovered post-trial. Prosecutors plainly enjoy
absolute immunity in the exercise of their prosecutorial
duties, of which the disclosure of Brady material to the
defense is clearly one.
See Kalina _v. Fletcher, 522 U.S. 118, 123-29
(1997); Burns v. Reed, 500 U.S. 478, 486 (1991); Imbler
v. Pachtman, 424 U.S. 409, 413-16, 430-31 (1976). To
confer on prosecutors absolute immunity while denying to
police the right to argue even bona fides would multiply
exponentially litigation against even conscientious officers.
Further, the law has already placed ultimate
responsibility upon the prosecutor for disclosing Brady
material to the defense. When Brady violations occur,
criminal defendants may have their convictions overturned.
Because police knowledge is plainly imputed to the
prosecution for purposes of the prosecutor's Brady duties,
see Kyles v. Whitley, 514 U.S. 419, 437-38 (1995), the
prosecutor bears the responsibility for implementing
procedures designed to ensure that police officers turn over
Our brother Murnaghan's dissent has a fundamental problem:
it conflates the standards of a Brady violation with the standards of a §
1983 claim. The problem with this line of argument is simply that the
Supreme Court does not accept it. Indeed, the dissent's frustration on
remand owes to the fact that it runs headlong into the Supreme Court's
decisions in Daniels and Youngblood. Despiie its strenuous efforts, the
dissent has failed to circumnavigate or otherwise explain away these
two highly pertinent precedents. See, e.g., Post at 23 ("Daniels is a
difficult case because the Court, along with judicial commentators,
often describe the opinion as having ‘overruled’ Parratt.").
App. 8
all evidence to iim, see Giglio, 405 U.S. at 154. To hold
officers responsible under § 1983 for _ internal
miscommunications that Kyles and Giglio charge the
prosecution with preventing is to have § 1983 suits and
Brady doctrine heading in diametrically opposed directions.
Moreover, the § 1983 suit could well set up a continual
exercise in finger-pointing between prosecutors and police
over whose fault it was that the evidence never reached the
defendant. Making internal communications between
prosecutors and police the customary subject of § 1983
litigation would thrust the federal courts deep into the
operations of state prosecutors’ offices, a breach of
federalism principles for which the Due Process Clause of
the Constitution provides no warrant.
This danger is plainly illustrated by this action. The
prosecutor in Jean's case, Walter Vatcher, made clear via
two affidavits that Officers Collins and Shingleton had
indeed disclosed substantial amounts of information to him
with regard to the hypnoses. Vatcher stated that the officers
had "informed [him] of the existence of the hypnoses and
identification procedures" used in the Jean investigation.
Vatcher was further informed that "there were some
changes in [Shingleton's] description after hypnosis,"
specifically "that under hypnosis [Shingleton] no longer
recalled any facial hair and his description of the [suspect's]
shirt may have changed somewhat." Vatcher also reported
that the two officers had told him of the hypnosis
information months before trial and that he received
"complete updates on the investigation, including facts
concerning the identification procedures used." Vatcher, in
fact, commended Officers Shingleton and Collins for
turning over "all {of the] evidence that [he] requested from
them."There is even substantial evidence via affidavits from
Smith, Collins, Shingleton, and Wilson that Vatcher had
been told of the existence of the hypnosis recordings and
reports. Vatcher, however, stated in one of his affidavits
App. 9
that he did not "recall being made aware of recordings and
written records."
The difficulty of trying to sort out such everyday
communications between prosecutor and police underscores
the need to insist at a minimum that an actual bad faith
deprivation of due process rights be alleged. The conduct of
Shingleton and Collins lies well below this threshold. While
Jean contends that the officers acted in a "willful, wanton
and reckless manner," conclusory allegations will not
suffice. See, e.g., Suarez Corp. Indus. v. McGraw, 202
F.3d 676, 684-91 (4" Cir. 2000); Hartley v. Parnell, 193
F.3d 1263, 1268 (11th Cir. 1999); Wilkinson v. Russell, -
182 F.3d 89, 105-06 (2d Cir. 1999); Torres _v. United
States, 200 F.3d 179, 186 (3d Cir. 1999). Jean simply is
unable to provide evidence of a bad faith deprivation
carried out by Collins and Shingleton - - a matter on which
the burden plainly rests with the plaintiff. For example,
Jean does not claim that Collins and Shingleton destroyed
or otherwise failed to preserve the evidence that is now at
issue - - a fact which alone tends to negate any inference of
*In many instances the first prong of Wilson v. Layne can be
resolved on the pleadings alone. However, that makes little sense where
a voluminous record is before us. Circuit courts, including this one,
have not hesitated after Wilson to address the record in determining
whether plaintiff has alleged a violation of a constitutional right. See,
e.g., Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 684 91 & n.18
(4th Cir. 2000) ("Thus, SCI's claim . . . is undermined by the evidence
in the record."); Hartley v. Parnell, 193 F.3d 1263, 1269 n.2 (11th Cir.
1999) ("We note that . . . there is no evidence in the record. . . .");
Wilkinson v. Russell, 182 F.3d 89, 105 (2d Cir. 1999) ("The record
reveals another key source of information supporting defendants’
decision . . . ."). Indeed, the concern expressed in Siegert that
defendants not be put through unnecessary discovery would be vitiated
if we failed to take account of the ample record that has already been
assembled in this case. 500 U.S. at 231. It would simply impose an
unnecessary burden on defendants to move beyond Wilson's first prong
when the record before us conclusively points to the absence of any
constitutional deprivation.
App. 10 -~
bad faith. And while Jean again claims in conclusory
fashion that the hypnosis recordings and reports were
"patently exculpatory," he does not point to any evidence
showing that the officers actually knew of the significance
of these items. Moreover, Jean conceded both in his brief
and at oral argument that Vatcher at the very least was
made aware of the existence of the two hypnoses. In sum,
Jean points to nothing that resembles the kind of affirmative
misuse of power that the Supreme Court has indicated
would implicate due process protections.*
Because there was no _ threshold bad faith
deprivation, the precise contours of any duty on the police
in situations such as these is something we need not explore
‘Our brother Luttig contends in dissent that "Jean has never
even had the cause, much less the opportunity, to develop a record with
regard to Collins' and Shingleton's state of mind in withholding the
evidence." Post at 38. This assertion, however, is belied by the record
itself. With respect to cause, the dissent apparently overlooks that Jean
claimed bad faith in his complaint. By doing so, Jean himself indicated
that the officers' state of mind was relevant to the success of his suit.
Indeed, since the very first day that Jean was arrested, it has always
been to his advantage to place the conduct of the police in the worst
possible light. And Jean has enjoyed ample opportunity to uncover the
existence of officer bad faith. Over seventeen years have now transpired
since the time of Jean's arrest and trial. During that time, Jean has been
allowed extensive discovery. During his habeas case, Jean deposed both
Officer Collins and Officer Shingleton. When the officers moved for
summary judgment in the instant proceedings, Collins and Shingleton
submitted affidavits in which they specifically rejected Jean's contention
that they acted in bad faith. Jean responded by submitting more than
650 pages of, inter alia, affidavits, exhibits, deposition transcripts,
hypnosis transcripts, hypnosis worksheets, police reports, and police
notes. Yet, as our brother Luttig correctly points out, the record as to
officer bad faith is entirely undeveloped." Post at 38. The reason for
this is not that Jean has lacked cause and opportunity to uncover such
evidence, for he has had no shortage of either. Rather, it is because his
seventeen-year search and voluminous submissions have uncovered
nothing that raises a triable issue of fact on this point.
App. 11
in detail.’ Several points, however, are clear. A Brady
violation that resulted in the overturning of the § 1983
plaintiff's conviction is a necessary, but not a sufficient,
condition for § 1983 liability on the part of the police. It is
a necessary condition because the Brady violation
establishes the requisite threshold of constitutional injury (a
conviction resulting in loss of liberty) below which no §
1983 action can lie. It is not a sufficient condition,
however, because the Brady duty is a no fault duty and the
concept of constitutional deprivation articulated in both
Daniels and Youngblood requires that the officer have
intentionally withheld the evidence for the purpose of
depriving the plaintiff of the use of that evidence during his
criminal trial. This is what is meant by “bad faith." And
that must be established on the basis of evidence, including
among other things the nature of the withheld material, that
would negate any negligent or innocent explanation for the
actions on the part of the police. Of course the bad faith
manipulation of evidence on the part of the police cannot be
countenanced. Constitutiona' absolution for _ the
concealment, doctoring, or destruction of evidence would
fail to protect the innocent, fail to assist the apprehension of
the guilty, and fail to safeguard the judicial process as one
ultimately committed to the ascertainment of truth. But
what occurred here was at worst a_ negligent
miscommunication among Vatcher, Collins, and Shingleton
- - an incident for which Vatcher under Brady, Giglio, and
Kyles bears ultimate responsibility. Any decision on
Vatcher's part not to request additional hypnosis
information cannot possibly be recast seventeen years later
‘We also do not address what sort of immunities the officers
might claim if a constitutional violation had been properly alleged
against them. Immunities appear by way of defense. And Wilson v.
Layne makes clear that we need not proceed to address the immunity
issue if no constitutional violation has been alleged. 526 U.S. at 609.
er
App. 12
as a bad faith constitutional deprivation perpetrated by these
officer defendants.
II.
As Jean has failed to allege a constitutional violation
on the part of Collins and Shingleton, we would affirm the
judgment.
MURNAGHAN, Circuit Judge, with whom Circuit Judges
MICHAEL, MOTZ, and KING, and Senior Circuit Judge
HAMILTON join, dissenting:
The fate of Lesly Jean's § 1983 action is lamentable,
though scarcely surprising. What is surprising is the
tenuous methodology the concurrence employs to
extinguish his civil rights action. In recent years, the
Supreme Court has undeniably restricted the availability of
§ 1983, particularly as a mode of redressing due process
violations. Nonetheless, the Court still recognizes some
situations, however circumscribed, where § 1983 damages
remain viable.
The concurrence's analysis of Jean's § 1983 claim
reflects a fundamental misunderstanding of the Supreme
Court's jurisprudence in this area. While the opinion is
rhetorically consonant with the Court's skepticism about
civil rights litigation, it is substantively at odds with the
Court's caselaw on § 1983 and with accepted
understandings of the Due Process Clause. Accordingly, I
dissent.
I.
From the outset, I have been of the view that Brady
v. Maryland, 373 U.S. 83 (1963), controls the analysis of
Jean's civil rights claim. It is true that Brady involved
App. 13
suppression of evidence by a prosecutor, whereas Jean's
claim alleges suppression of evidence by police officers.
However, the post-Brady case of Barbee v. Warden,
Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964),
Clarified that the State's disclosure obligation applies to
police officers as well as prosecutors:
[I]t makes no difference if the withholding
[of exculpatory evidence] 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. If
the police allow the State's Attorney to
produce evidence pointing to guilt without
informing him of other evidence in their
possession which contradicts this inference,
[police] officers are practicing deception not
only on the State's Attorney but on the court
and the defendant.
Id. at 846 (emphasis added) (footnote omitted).
As these lines from Barbee suggest, the Brady
disclosure regime is about getting exculpatory evidence into
the hands of the defendant, not about disaggregating the
State's prosecutorial team into discrete sub-groups and
having a defendant's constitutional rights turn on such rigid
formalisms. This is why Brady's compulsory disclosure
requirement applies to all officials working in furtherance
of the State's prosecution.
Of course, the manner in which prosecutors and
police officers comply with Brady is different, reflecting
their different functions in the criminal justice system.
Police officers do not disclose evidence to criminal
defendants directly. Instead, the police accumulate evidence
App. 14
and then ministerially deliver it to the prosecutor. The
prosecutor then makes a discretionary legal judgment about
whether the evidence is material and exculpatory, such that
Brady compels its disclosure to the defendant. This
functional differentiation, however, should not obscure the
fact that Brady creates a singular constitutional duty, which
prosecutors and police officers are capable of breaching in
factually different ways.
II.
The concurrence does not seriously dispute that a
Brady violation occurred. Instead, the dispute is whether
Jean can redress this Brady violation in a § 1983 damages
action against Officers Collins and Shingleton.
Section 1983 is not a repository of substantive rights
but is simply a remedial mechanism for vindicating rights
with independent constitutional foundations. See Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979) (holding that §
1983 "is not itself a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred").
The constitutional right in the imstant case could not
be any clearer. In Jean v. Rice, 945 F.2d 82 (4th Cir.
1991), we held that the State of North Carolina violated
Jean's due process rights, as recognized in Brady, when
Officers Collins and Shingleton withheld hypnosis-related
evidence from the prosecutor - - evidence that could have
assisted Jean in impeaching the credibility of key
government witnesses. See id. at 87. Because we have
already established that a Brady violation occurred, there is
a core constitutional offense that forms the basis for a
§ 1983 action. The availability of § 1983 as a remedial
measure would seem to follow inexorably from the very
fact of the underlying Brady violation.
Not so to the concurrence. In order to block what it
regards as a frivolous lawsuit, the concurrence has labored
App. 15
“assiduously to divorce Jean's § 1983 action from the
underlying Brady violation that engendered it. See ante at 3
("In Jean v. Rice . . . we held that Jean's due process
[Brady] rights had been violated. . . . The question before
us now is whether there was an additional constitutional
violation in this case - - a due process violation by
Officers Collins and Shingleton for withholding from the
prosecutor the hypnosis recordings and reports.") (emphasis
added). The challenge for the concurrence has been coming
up with a way to say two seemingly contradictory things:
that while Jean's Brady rights were clearly violated,
entitling him to reversal of his conviction, Jean can not
vindicate his Brady rights against Collins and Shingleton in
a separate § 1983 damages action.
A.
Since the inception of this case, the concurrence has
had considerable difficulty explaining its way out of this
paradox. In our first en banc opinion dealing with Jean's
case, the majority relied on qualified immunity to shut
down Jean's § 1983 action.’ The majority began by holding
that the obligation of police officers to disclose exculpatory
evidence to prosecutors was now a matter of settled law.
See Jean v. Collins, 155 F.3d 701, 710 n.3 (4th Cir. 1998)
("More recently this circuit has recognized that the failure
of police officers to turn over evidence to a prosecutor may
violate a criminal defendant's constitutional right to receive
such evidence.") (citing Taylor v. Waters, 81 F.3d 429,
‘Because the first en banc_ hearing produced a majority, rather
than an evenly divided panel, I use the term "majority" rather than
“concurrence” when referring to the first en banc opinion. Despite the
difference in nomenclature, both the first en banc “majority” opinion
and the second en banc “concurring” opinion were written by the same
author. That is why I emphasize the discontinuities between the two
opinions.
App. 16
436 n.5 (4th Cir. 1996); Carter v. Burch, 34 F.3d 257, 264
(4th Cir. 1994); and Goodwin v. Metts, 885 F.2d 157, 162-
63 (4th Cir. 1989)); see also id. ("[T]he decisions in
Taylor, Carter, and Goodwin now provide notice to police
officers that they can be subject to monetary damages under
section 1983 for failure to disclose exculpatory evidence to
the prosecutor.").
While well-settled today, the first en banc majority
found that the "police to prosecutor" disclosure obligation
was not clearly established in 1982 when Collins and
Shingleton withheld the hypnosis evidence. The majority
distinguished Brady - - a pre-1982 case that seemed to
establish the applicable disclosure requirements - - by
holding that it only imposed a disclosure obligation on the
State generically. The disclosure duty's specific application
to police officers, according to the majority, was a post-
1982 doctrinal development. See Jean, 155 F.3d at 710 n.3.
Thus, the officers were entitled to a defense of qualified
immunity.
B.
The Supreme Court's remand, which instructed us
to reconsider Jean's case in light of Wilson v. Layne, 526
U.S. 603 (1999), gave the majority a chance to revisit its
first en banc opinion. Wilson held that a court considering a
defense of qualified immunity should first ask whether the
disputed state action would violate present-day
constitutional law, before reaching the backward looking
question of whether the illegality of the state conduct was
"clearly established" at the time it occurred. See id. at 609.
Pursuant to Wilson's directive, the majority
(reconstituted as a "concurrence") now asks whether the
failure of police officers to deliver exculpatory evidence to
prosecutors would violate due process guarantees under
App. 17
year 2000 jurisprudence. See ante at 4-5. In its first en banc
opinion, the majority held that the police-specific disclosure
obligation was clearly established today, just not when
Collins and Shingleton withheld the hypnosis evidence in
1982. Repudiating the position the majority took in the first
en banc opinion, the concurrence now answers this question
differently, holding that police officers have no independent
duty (at least no independent Brady duty) under year 2000
due process principles to disclose exculpatory evidence to
prosecutors. See ante at 4-5.
The concurrence defends this Janus-faced maneuver
by seeking refuge in the Supreme Court's directive to
revisit Jean's case in light of Wilson. See ante at 3 n.1 ("It
would be surprising if the court had not reviewed its earlier
approach in light of Wilson's directive. Indeed, it would be
irresponsible for us not to do so."). This appeal to Wilson,
however, is unavailing. All Wilson said was: "Answer the
year 2000 question first," not "Answer the year 2000
question differently."
The real explanation for the concurrence's
vacillation has to do with post hoc misgivings about the
impact of its first en banc opinion. Dismissing Jean's case
on a qualified immunity rationale got rid of one irksome
civil rights plaintiff; but by recognizing a police-specific
disclosure obligation under year 2000 law, the concurrence
unwittingly opened the flood gates, inviting future criminal
defendants to extort money damages from “cops on the
beat" every time a problem with exculpatory evidence
arises. In order to seal the rupture its first en banc opinion
created, the concurrence now holds that police officers who
withhold exculpatory evidence from prosecutors are not
independently liable for Brady violations, even under year
2000 jurisprudence. Thus, under the concurrence'’s new
formulation, Brady can never furnish the doctrinal basis for
a § 1983 action against police officers who fail to disclose
exculpatory evidence. This was true in 1982, when Collins
App. 18
and Shingleton withheld evidence from Lesly Jean (see en
banc #1) and it remains true today (see en banc #2).
II.
The concurrence has several theories about why
criminal defendants who are the victims of police non-
disclosure may not rely on Brady to generate § 1983 actions
against the offending police officers. The theories fall
roughly into two categories. The first group relies on
restrictive interpretations of Brady and the substantive
constitutional rights it creates. The second group relies on a
restrictive interpretation of § 1983 by grafting heightened
culpability requirements onto the § 1983 apparatus. These
culpability requirements exceed what is required to prove a
violation of the underlying constitutional right; but
according to the concurrence, they must be established in
order to trigger the heavy remedial machinery of a § 1983
damages action.
A.
The first way the concurrence deflects Jean's § 1983
claim is by-manipulating the substantive basis of his claim:
the right to exculpatory evidence established in Brady. The
concurrence frames Jean's Brady claim in police-specific
terms, as premised on the failure of police officers to
disclose exculpatory evidence to prosecutors. See ante at 4.
The concurrence then describes the Brady duty in such a
restrictive way that police officers (and thus Jean's claim)
fall outside its ambit. See ante at 5.
The concurrence produces this perverse result by
articulating the State's Brady duty in prosecution-specific
terms. This narrow construction of Brady derives from the
concurrence’s adherence to an elaborate legal fiction called
the "imputed to" theory. See ante at 7-8. Under this
App. 19
theory, police officers are indirectly subject to Brady, in the
sense that they are expected to furnish prosecutors with
evidence they accumulate. Police officers, however, are not
directly subject to Brady because the disclosure duty it
creates is ultimately the prosecutor's responsibility. Thus,
when police officers fail to disclose exculpatory evidence,
Brady "“imputes" these non-disclosures to the prosecution
for purposes of assessing the State's overall compliance
with Brady. :
Because the prosecution is charged’ with
"constructive" knowledge of all evidence in the possession
of its sub-agents, failure of the police to hand over
exculpatory evidence can imperil the integrity of the State's
prosecution, often leading to reversal of criminal
convictions (as happened in the instant case). Non-
disclosures, however, cannot subject the police to civil
liability because the police have no independent duty to
criminal defendants under Brady, requiring them to supply
the prosecutor with exculpatory evidence. Instead, the
State's Brady obligation to criminal defendants is
discharged through the instrumentality of the prosecutor.
At its simplest level, the concurrence's "imputed to"
theory is an attempt to shift blame for the Brady violation in
this case onto the prosecutor (Mr. Vatcher), who
conveniently enjoys absolute immunity from damages
actions. See Imbler_v. Pachtman, 424 U.S. 409, 424-27,
431 n.33 (1976).
The concurrence also attempts to buttress the
"imputed to” theory by resting it on more principled
foundations - - some precedential, some policy-based.
Neither precedent nor policy, however, support this attempt
to circumscribe the State's Brady duty.
App. 20
First, the concurrence claims to derive the "imputed
to" theory from the language of Brady itself, along with the
language of several post-Brady opinions, which describe the
State's disclosure duty in prosecution-specific terms. See
Brady, 373 U.S. at 87 ("[Sjuppression by the prosecution
of evidence favorable to an accused upon request violates
due process... ."); Moore v. Illinois, 408 U.S. 786, 794
(1972) ("The heart of the holding in Brady is the
prosecution's suppression of evidence ... ."); United
States v. Agurs, 427 U.S. 97, 108 (1976) (referring to “the
prosecutor's constitutional duty to disclose").
Conspicuously absent from the concurrence's
discussion, however, is the important post-Brady case of
Barbee, which dispelled the notion that the police are
exempt from the Brady disclosure duty. In Barbee, police
officers failed to disclose exculpatory ballistics and
fingerprint tests that tended to show a revolver other than
the defendant's was responsible for the crime in question.
See Barbee, 331 F.2d at 844. We found that the ballistics
and fingerprints tests were indeed exculpatory because they
undermined the testimony of several witnesses who had
identified the defendant's revolver as the weapon used in
the shooting. Thus, we held that the police should have
disclosed the exculpatory evidence and issued a writ of
habeas corpus. See id. at 847.
In defending the non-disclosure, the State of
Maryland argued that there was no constitutional infirmity
because the duty of disclosure fell on the prosecution, not
the police. See id . at 844. Because the prosecution had no
knowledge that the police were in possession of the
exculpatory evidence, the State argued that no Brady
violation had occurred. See id. We rejected this formalistic
distinction, holding that when "the police allow the State's
Attorney to produce evidence pointing to guilt without
App. 21
informing him of other evidence in their possession which
contradicts this inference, [police] officers are practicing
deception not only on the State's Attorney but on the court
and the defendant." Id. at 846 (emphasis added) (footnote
omitted).
It is difficult to reconcile the concurrence's
"imputed to" theory with Barbee's plain statement that the
police misconduct practiced a deception "not only" on the
prosecutor, but on the court "and the defendant." Of
course, the police officer's duty is to disclose to the
prosecution rather than to the defendant directly; but
according to Barbee, the constitutional injury arising from
_an officer's non-disclosure runs directly from the police to
the defendant, unmediated by the prosecutor. See_id.
("Failure of the police to reveal . . . material evidence in
their possession [to the prosecution] is equally harmful to a
defendant whether the information is purposefully, or
negligently, withheld.") The factual interposition of the
prosecutor between the police and the defendant does not
transform the prosecutor into a supervening legal cause of
the constitutional injury.
The Supreme Court confronted a similar issue years
later in Kyles-v. Whitley, 514 U.S. 419 (1995). There, the
State of Louisiana made the same argument the State of
Maryland made in Barbee: namely, that the State should not
be held accountable under Brady for evidence known only
to police investigators and not to the prosecutor. See id. at
438. In language echoing Barbee, the Court criticized the
State's attempt to draw a formalistic dichotomy between
police and prosecutors and rejected the State's "argument
for excusing a prosecutor from disclosing what he does not
happen to know." Id. The State's disclosure obligation
under Brady applies even when the prosecutor is completely
in the dark, the Court held, because the ultimate injury to
the defendant is the same, regardless of whether the police
or the prosecutor is to blame. Thus, like Barbee, the Kyles
App. 22
opinion made clear that the goal of Brady was getting
exculpatory evidence to the defendant, not creating an
analytical patchwork of legally distinct disclosure duties for
every sub-group working in furtherance of the State's
criminal prosecution.
Some of the language in Kyles did suggest that, as a
practical matter, the prosecutor's office is the fulcrum of
the Brady disclosure obligation. See id. at 437 ("[T]he
individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government's
behalf in the case, including the police."). The insight here,
however, was pragmatic rather than doctrinal. Because
Kyles involved a habeas petition rather than a § 1983
damages action, the Court was obviously more concerned
with the pragmatic question of how to keep the State from
evading its Brady obligation than it was with the legal
question of how to carve up the State's investigative-
prosecutorial team, either as an abstract doctrinal exercise
or for purposes of allocating distinct spheres of civil
liability. Thus, the fact that Kyles made the prosecutor
vicariously responsible when police officers fail to disclose
exculpatory evidence does not mean that Kyles also placed
police officers beyond constitutional reproach for their
personal role in subverting the State's Brady duty.
y
The concurrence also advances a policy argument in
support of its "imputed to" theory. See ante at 7-8. The
concurrence argues that only prosecutors are trained to
make the nuanced and quintessentially legal judgment of
whether a piece of evidence is truly exculpatory, such that
disclosure to the defendant is constitutionally compelled.
Because police officers are unfamiliar with the "[llegal
terms of art," ante at 5, necessary to make this complex
determination, it would be unfair to hold them monetarily
App. 23
liable when they blunder. On this view, the "imputed to"
theory, which places ultimate constitutional responsibility
for exculpatory evidence problems in the hands of the
prosecutor, is merely a recognition of the prosecutor's
special institutional competence - - and of the unfairness
invoived in asking a police officer to pay money damages
for mistakes he was not trained to avoid.
This observation is a strawman that confuses the
crucial issue. It presupposes that when a police officer
discloses evidence to a prosecutor, the act is functionally
identical to the discretionary legal judgment prosecutors
make when disclosing evidence directly to criminal
defendants. In reality, the two acts are incommensurable.
Requiring police officers to disclose evidence to prosecutors
does not require technical legal expertise because the act is
essentially ministerial, not discretionary. The police
officer's duty is not to determine whether the evidence is
material and exculpatory. His duty is simply to collect the
evidence and to disclose all of it to the prosecutor, who
then makes the discretionary legal judgment about its
material, exculpatory attributes. Thus, there is no reason to
"impute" the misconduct of police officers to prosecutors
when police officers are perfectly capable of understanding
their ministerial function and still choose to disregard it - -
not out of ignorance but out of dereliction.
B.
By cabining Brady so that the-duty it creates applies
only to prosecutors, the "imputed to" theory helps the
concurrence extinguish Jean's § 1983 claim. It does so by
eroding the constitutional theory on which his § 1983 claim
is based: the theory that police officers independently
violate Brady when they withhold evidence from
prosecutors. :
App. 24 - :
The concurrence also attacks Jean's § 1983 action
from another angle. The strategy behind the "imputed to"
theory was to cripple Jean's § 1983 claim by eroding its
underlying constitutional foundation. The concurrence's
second strategy is to target the § 1983 remedial apparatus
itself: specifically, by creating heightened culpability
requirements that plaintiffs must meet in order to convert
constitutional injuries they have suffered into the basis for
money damages.
The concurrence resorts to this second strategy.
rather than resting on the "imputed to” theory, in order to
resolve a doctrinal problem created by the "bad faith”
requirement the concurrence inartfully derives from Daniels
v. Williams, 474 U.S. 327 (1986), and Arizona _ v.
Youngblood, 488 U.S. 51 (1988). According to the
concurrence, citizens who allege violations of the Due
Process Clause must make a threshold showing that the due
process violation occurred in a culpable, "bad faith"
manner. Because Jean failed to prove that Collins and
Shingleton withheld the hypnosis evidence with the
requisite degree of culpability, the concurrence holds that
Jean's claim fails on that ground alone. See ante at 6-8.
The problem with the concurrence's "bad faith"
thesis, however, is that Brady makes the non-disclosure of
exculpatory evidence a violation of the Due Process Clause
"irrespective of the good faith or bad faith" of the non-
disclosing official. Brady, 373 U.S. at 87; see also Barbee,
331 F.2d at 846 ("If the police silence as to the existence of
the [exculpatory] reports resulted from negligence rather
than guile, the deception is no less damaging."). The
concurrence is therefore placed in the untenable position of
having to reconcile this language with the central
proposition of its opinion: that only "bad faith" failures to
withhold exculpatory evidence violate due process.
Much of the concurrence's opinion is a misguided
search for the theory that explains why "bad faith" is not
‘App. 25
required to prove due process violations under Brady, but is
required for every other due process violation - - including
the due process claim Jean has brought against Collins and
Shingleton (which apparently rests on some other strand of
due process jurisprudence, independent of Brady, that the
majority never fully specifies).
l.
Rather than working with the limits of the caselaw,
the concurrence invents a theory out of whole cloth.
According to the concurrence, the "bad faith" requirement
does not apply to all due process cases. Nor does it apply to
every § 1983 action. It only applies to that subset of cases
that involve both § 1983 and the Due Process Clause - - that
is, where criminal defendants are dissatisfied with the
conventional due process remedy of a new trial and turn to
§ 1983 as a supplemental remedial mechanism. When
criminal defendants seek nothing more than a new trial to
redress a-due process infirmity, Brady's "no fault"
principles apply, and the defendant gets a new trial
regardless of the good faith or bad faith manner in which
the due process violation occurred. When criminal
defendants seek money damages under § 1983, however,
the "fault-based" doctrines articulated in Daniels and
Youngblood apply. Unless the due process violation
occurred in a culpable, "bad faith" manner, no damages
remedy will lie. See ante at 9.
Thus, what the concurrence contemplates is a two-
tiered regime, with one set of "no fault" standards for
proving garden-variety violations of the Due Process Clause
and a heightened, more stringent set of "fault-based"
standards for redressing those same due process violations
in § 1983 damages actions. In so holding, the concurrence
invents a new theory of civil rights litigation that departs
z App. 26
from established understandings of § 1983 and the Due
Process Clause.
2.
The Supreme Court has rejected the concurrence’s
two-tiered formulation in Parratt v. Taylor, 451 U.S. 527
(1981). There, the Court held unequivocally that § 1983
does not_ create a heightened culpability requirement above
and beyond the culpability required to establish a violation
of the underlying constitutional right. See id. at 534
("Nothing in the language of § 1983 or its legislative
history limits the statute solely to intentional deprivations of
constitutional rights."); see also id. ("Section 1983, unlike
its criminal counterpart, 18 U.S.C. § 242, has never been
found by this Court to contain a_ state-of-mind
requirement.").
The concurrence presumably thinks that Parratt is
inapposite because the concurrence believes (falsely) that it
has derived the heightened culpability requirement from the
Due Process Clause, as interpreted in Daniels and
Youngblood, rather than from § 1983 itself. On this theory,
all Parratt forecloses is the grafting of a scienter
requirement onto the whole § 1983 apparatus; but if the
scienter requirement comes from the underlying
constitutional right (here, the Due Process Clause), there is
no Parratt problem.
There are two responses to this specious argument.
One is that the concurrence's two-tiered formulation, while
ostensibly derived from the Due Process Clause, still
violates Parratt because its effect is to endow § 1983 with a
heightened scienter requirement. Reading a culpability
requirement into the Due Process Clause and then applying
it only to due process claims brought under § 1983 is an
end run around Parratt. Such differential treatment of
"ordinary" constitutional claims, on one hand, and "§
App. 27
1983" constitutional claims, on the other hand, is the very
thing that Parratt prohibits.
The second, and more important, response is that
the two-tiered formulation the concurrence purports to
derive from the Due Process Clause has no credible
foundation in due process jurisprudence. The concurrence
has simply misunderstood the two due process cases on
which it relies: Daniels and Youngblood.
a
Daniels is a difficult case because the Court, along
with judicial commentators, often describe the opinion as
having "overruled" Parratt. This is only true in part,
_ however. Parratt is a case with two separate, but easily
confused, holdings. One holding was reaffirmed by
Daniels; the other holding Daniels overruled.
Parratt dealt with a § 1983 action where the
underlying constitutional claim involved a violation of the
Due Process Clause. Parratt first addressed the question of
whether § 1983 itself imposed a threshold scienter
requirement on every constitutional claim brought under its
auspices. The Court framed the inquiry as "whether mere
negligence will support a claim for relief under § 1983."
See Parratt, 451 U.S. at 532.
The Court began by quoting the language of § 1983,
which speaks of creating a damages remedy for
"deprivations" of constitutional rights effected under color
of state law. See 42 U.S.C. § 1983. The question in Parratt
was whether "deprivation" in this context connoted a
heightened state-of-mind requirement, based on the theory
that § 1983 damages remedies should be reserved for only
the most egregious, willful constitutional violations. The
Court said "No." See Parratt, 451 U.S. at 534 ("Nothing in
the language of § 1983 . . . limits the statute solely to
intentional deprivations of constitutional rights"); see also
App. 28
id. at 535 ("[Section] 1983 affords a civil remedy for
deprivations of federally protected rights . . . without any
express requirement of a particular _state_of mind.")
(emphasis added). .
Having decided that § 1983 contains no scienter
requirement, the Parratt court went to the underlying
constitutional claim the plaintiff had asserted (a violation of
the Due Process Clause) and asked if that constitutional
provision contained its own internal scienter requirement,
similar to other constitutional provisions like the Equal
Protection Clause (which requires proof of "purposeful!
discrimination). See id. at 547-48 (Powell, J., concurring:
("[This case] requires the Court to determine whether intem
is an essential element of a due process claim, just as we
have done in cases applying the Equal Protection
Clause...").
If the Due Process Clause were to contain a scienter
requirement, the Court thought it would be found in the
term "deprivation" as it appears in the text of the Due
Process Clause.” See id. at 548 (Powell, J., concurring)
("In the due process area, the[scienter] question is whether
intent is required before there can be a ‘deprivation’ of life,
liberty, or property."). The Parratt Court held that the term
"deprivation" in the Due Process Clause contained no
scienter requirement - - just as the term "deprivation" in the
text of § 1983 was devoid of a state-of-mind requirement.
See id. at 536-37.
Justice Powell's concurrence, however, raised
serious concerns about the majority's failure to recognize a
scienter requirement as part of the Due Process Clause.
According to Justice Powell, "'deprivation’ connotes an
intentional act denying something to someone, or, at the
2The Due Process Clause states:"[NJor shall any State deprive
any person of life, iiberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1 (emphasis added).
: App. 29
very least, a deliberate decision not to act to prevent a
loss." See_id. at 548. Thus, in Justice Powell's view,
merely negligent invasions of life, liberty or property by the
State, “causing unintended loss of or injury to [protected
liberty or property interests]," do not work "a deprivation
in the constitutional sense." Id . Consequently, according to
Powell, "[t]he most reasonable interpretation of the
Fourteenth Amendment would limit due process claims to
such active deprivations." Id. Under this formulation, states
should only be required to provide citizens with "due
process of law" when they invade a life, liberty, or
property interest in a culpable manner.
Several years later, the Court revisited Parratt in
Daniels v. Williams. The Daniels court reaffirmed the first
holding of Parratt. See Daniels, 474 U.S. at 329-30 ("In
Parratt_v. Taylor, we granted certiorari . . . to decide
- whether mere negligence will support a claim for relief
under § 1983. . . . [W]e concluded that § 1983, unlike its
criminal counterpart, 18 U.S.C. § 242, contains no state-of-
mind requirement independent of that necessary to state a
violation of the underlying constitutional right. We adhere
to_ that conclusion.") (emphasis added) (internal quotations
and citations omitted).
Daniels, however, did modify Parratt in another
sense. Having determined that § 1983 contains no
independent state-of-mind requirement, the Daniels Court
addressed the legally distinct question of whether the Due
Process Clause of the Fourteenth Amendment contains a
state-of-mind requirement. See id. at 330 ("[I]n any given §
1983 suit, the plaintiff must still prove a violation of the
underlying constitutional right; and depending on the right,
merely negligent conduct may not be enough to state a
claim.")
Parratt had held that the Due Process Clause, unlike
the Equal Protection Clause, contains no _ culpability
requirement. Daniels overruled Parratt on this one point
App. 30
alone, adopting the position of Justice Powell, who had
criticized the reasoning of Parratt_ on the ground that the
word “deprive” in the Due Process Clause connotes more
than a merely negligent act. Thus, Daniels "overrule(d]
Parratt to the extent that it state[d] that mere lack of due
care by a state official may ‘deprive’ an individual of life,
liberty, or property" under the Due Process Clause. See
Daniels, 474 U.S. at 330-31.
Thus, after Daniels, a violation of the Due Process
Clause requires proof of two elements: (1) that the state
official "deprived" (i.e., culpably denied) a citizen of life,
liberty, or property and (2) that the "deprivation" occurred
"without due process of law." If these two requirements are
met, a due process violation is established. There are no
additional culpability requirements or conditions precedent
that must be satisfied in order to redress the due process
violation in a § 1983 damages action.
4.
The concurrence has considerable difficulty with the
concept of "deprivation" articulated in Daniels. The
concurrence seems to think that it has two separate
applications in the instant case, when in reality it has only
one. According to the concurrence, § 1983 plaintiffs
seeking money damages for the non-disclosure of
exculpatory evidence must first prove that the non-
disclosure "deprived" them of their liberty interest in not
going to jail. See ante at 4 ("[A]lleged failures to disclose
do not implicate constitutional rights where no
constitutional deprivation results there from. In this context,
the constitutional deprivation must be defined as a
deprivation of liberty without due process of law. . . .
[There must be] a cognizable injury, such as a wrongful
criminal conviction. . . ."). Here, "deprivation" seems to
mean "infringement," devoid of any "bad faith"
App. 31
a
connotation; and the "liberty" interest that is the object of
the "deprivation" seems to mean _ freedom from
incarceration.
The concurrence, however, then abruptly shifts to a
new definitional framework. According to the concurrence,
proof that the non-disciosure of exculpatory evidence
resulted in your incarceration is just a baseline requirement.
This sort of "deprivation" of "liberty" is good enough to get
your conviction reversed. If a criminal defendant turns
around and seeks money damages under § 1983, however,
he must prove a different type of "deprivation" of a
different type of "liberty." Specifically, says the
concurrence, the criminal defendant must prove that the
State actors who withheld the exculpatory evidence culpably
"deprived" him of his “liberty” interest in unfettered access
to exculpatory evidence. See ante at 10.
Two things immediately stand out. First, the
concurrence has surreptitiously changed its definition of the
underlying "liberty" interest. Second, the concurrence has
surreptitiously changed the definition of "deprivation."
Whereas "deprivation" in the earlier context just meant
"infringement," without any scienter component,
"deprivation" in this latter context requires the showing of
“ "bad faith" discussed in Daniels a perplexing and
incongruous result the concurrence produces through
judicial sleight-of-hand. Cf. ante at 4 ("In this context
{where only a new trial is at stake], the constitutional
deprivation must be defined as a deprivation of liberty [i.e.,
incarceration] without due process of law"), with ante at 10
("{Proof of incarceration] is not a sufficient condition [for §
1983 damages], however, because the Brady duty is a no
fault duty . . . [whereas] the concept of constitutional
deprivation articulated in both Daniels and Youngblood
requires that the officer have intentionally withheld the
evidence for the purpose of depriving the plaintiff of the use
App. 32
of that evidence during his criminal trial. That is what is
meant by ‘bad faith.'").
5.
In reality, the “bad faith" requirement discussed in
Daniels attaches to the "deprivation" component of the Due
Process Clause in every due process case, not just § 1983
cases. This is because Daniels is a restrictive interpretation
of the Due Process Clause itself, not a restriction on the
operation of § 1983.’
Potential confusion is created by the fact that Daniels’
“deprivation” doctrine was created to deal with a special problem not
present in the instant case: the prolific conversion of mundane state torts
into federal due process violations. Parratt, for example, involved an
allegation that the State had “deprived” a prisoner of his "property" by
accidentally losing his $23.00 hobby kit. Likewise, Daniels involved an
allegation that the State “deprived” a prisoner of his “liberty” interest in
avoiding bodily harm when a prison official accidentally left a pillow on
a staircase, causing the prisoner to trip and injure himself.
The Supreme Court was concerned that federalizing such
minor claims would turn the Due Process Clause into "a font of tort law
to be superimposed upon whatever systems may already be
administered by the States." See Daniels, 474 U.S. at 332 (quoting Paul
v. Davis, 424 U.S. 693, 701 (1976)).
Thus, in order to shut down federal due process claims based
on the accidental loss of hobby kits and misplaced pillows on staircases,
Daniels sought to limit due process violations to those situations where
the State's infringement of a citizen's liberty or property interest is
more than merely negligent. The way Daniels did this was by reading a
scienter requirement into the term “deprivation” in the Due Process
Clause, requiring proof that the State culpably infringed those liberty or
property interests as the predicate triggering the State's obligation to
provide “due process of law."
Because the “deprivation” requirement came into being to limit
the promiscuous federalization of state torts, the “deprivation”
requirement looks like it might only apply to those cases where
plaintiffs take a state tort, attempt to recharacterize it as a due process
violation, and then use it as the basis for a § 1983 money damages
remedy. But this is not the case, as I explain in the ensuing pages.
App. 33
The crucial point the concurrence overlooks is that,
in a non-§ 1983 context, where a defendant seeks only a |
reversal of his conviction on due process grounds, the
requirement that the defendant prove a "bad faith"
deprivation of some protected liberty interest is satisfied by
the simple act of the State's prosecution - - a deliberate,
intentional effort by the government to send a citizen to jail.
It may seem strange to refer to every prosecution as being
in "bad faith," unless the prosecution was executed in an
unprincipled manner. But the “bad faith" requirement in |
Daniels, rooted in the word "deprivation," simply means a “
state action that is more than merely negligent - -an act that
involves the willful, intentional use of government power to
invade some protected life, liberty, or property interest
possessed by its citizens. See Parratt, 451 U.S. at 548
(Powell, J., concurring) ("A ‘deprivation’ connotes an
intentional act denying something to someone... . ."); see |
also_id. at 548 n.4 ("[T]o ‘deprive’ is to dispossess;
bereave; divest; to hinder from possessing . . . ."). It is |
these types of intentional, willful exertions of government
authority that raise the "abuse of power" concerns at the
heart of the Due Process Clause - -concerns the Due |
Process Clause mitigates by making the government
observe certain procedural safeguards prior to effecting the
deprivation of those protected interests. See Daniels, 474
~ U.S. at 331 (holding that the Due Process Clause was |
"intended to secure the individual from the arbitrary |
exercise of the powers of government") (quoting Hurtado v. |
California, 110 U.S. 516, 527 (1884)). |
Because Daniels creates only one "deprivation" |
analysis, rather than two, the concurrence's two-tiered |
formulation of Jean's case is analytically indefensible. The
|
|
|
only thing that could save the concurrence's approach is if
there were two underlying liberty interests: first, a liberty
interest in avoiding incarceration (which the state
"deprives" when it intentionally brings a prosecution that
App. 34
OO eee
results in a conviction); and second, a liberty interest in
unfettered access to exculpatory evidence (which state
officers "deprive" when they withhold evidence in a
culpable, intentional manner).
To my knowledge, no court has ever recognized this
type of freestanding liberty interest in exculpatory evidence;
and I would be surprised if the Supreme Court, which has
severely cut back on the expansion of fundamental liberty
interests under substantive due process jurisprudence,
would countenance the concurrence's curious effort to do
so.* See Paul v. Davis, 424 U.S. 693, 710-14 (1976).
The concurrence's approach is foreclosed by
Graham v. Connor, 490 U.S. 386 (1989). In Graham, the
Supreme Court held that, where a particular constitutional
provision "provides an _ explicit textual source of
constitutional protection" against a particular sort of
government behavior, that specific constitutional provision
and "not the more generalized notion of ‘substantive due
process' must be the guide for analyzing these claims." Id.
at 395. In other words, courts may not recharacterize state
misconduct as a violation of "fundamental" liberty interests
under substantive due process jurisprudence when there is a
preexisting constitutional provision that already proscribes
the same conduct.
In the instant case, the right to exculpatory evidence
is already protected under the procedural component of the
*At times, even the concurrence seems unsure about what it is
doing. It creates what looks like a freestanding liberty interest in
exculpatory evidence, holding that Jean must prove a “bad faith"
deprivation of that interest in order to state a § 1983 damages action.
See_ante at 9. But the concurrence also requires, as an antecedent
criterion, that the "deprivation" of the liberty interest in exculpatory
evidence result in Jean's incarceration. See ante at 4-5, 9. If the right to
exculpatory evidence is its own separate liberty interest, however, "bad
faith" deprivations of that freestanding, legally distinct interest should
create actionable due process violations regardless of whether there is
an underlying incarceration associated with it.
App. 35 ui
Nea nS ae ee NC ee RE eee CN SONNET ONT OONNe HTN N:
Due Process Clause. Under this constitutional doctrine,
States may not "deprive" citizens of their liberty interest in
avoiding incarceration unless they first provide "due
process of law" - - a term that encompasses the panoply of
procedural safeguards we associate with the concept of a
"fair trial." Brady is a case in this long doctrinal
development elaborating the elements of a "fair trial." It
held that part of the "process" the State must provide, prior
to effecting the deprivation of a criminal defendant's
liberty, is an unconditional right of access to exculpatory
evidence. See Brady, 373 U.S. at 87.
Thus, because the right to exculpatory evidence is
already protected under procedural due process, Graham
prohibits the concurrence from recharacterizing the police
officers' withholding of evidence as governed by
substantive due process (based on the unsupportable notion
that there is a "fundamental" liberty interest in exculpatory
evidence).° ‘
The concurrence conflates Youngblood's "bad faith"
principle with Daniels' requirement that "deprivations" of
liberty or property interests involve a minimum level of
culpability. See ante at 5-6. The notion of “bad faith" as
used in Youngblood, however, is distinguishable from the
culpability requirement Daniels attaches to the term
"deprivation" in the Due Process Clause. "Bad faith" in
Youngblood limits what states must provide, in terms of
"due process of law," prior to effecting a deprivation of a
criminal defendant's liberty interest in avoiding
incarceration. The culpability requirement discussed in
Daniels, by contrast, limits the range of state action that
‘The concurrence's reliance en Arizona v. Youngblood, 488
U.S. 51 (1988), is similarly misplacea. Youngblood held that when
police officers lose or misplace potentially exculpatory evidence, this
does not violate a criminal defendant's procedural due process right to a
"fair trial" unless the mismanagement of evidence was in “bad faith.”
See id. at 58.
App. 36
‘i re
will count as an actionable "deprivation" of liberty or
property in the first instance - - the predicate that triggers
the state's obligation to provide "due process of law."
The way to think about the distinction between
Daniels and Youngblood in the instant case is as follows.
The “fair trial" guarantee under the Due Process Clause,
among other things, endows criminal defendants with
certain procedural safeguards relating to the State's
management and disclosure of evidence. To state a due
process claim based on the State's failure to observe these
evidentiary safeguards, a criminal defendant must first
prove a culpable "deprivation" of his liberty. See Daniels.
In the context of a criminal trial, the "deprivation" of
liberty flows from the criminal prosecution itself - - an
intentional effort to dispossess a citizen of his freedom by
putting him in jail.
The criminal defendant must then prove that the
culpable "deprivation" of his liberty (i.e., his incarceration)
occurred "without due process of law." If the State has -
failed to disclose patently exculpatory evidence, the
incarceration occurred "without due process of law"
regardless of the good faith or bad faith of the non-
disclosing official. See Brady. But if the State merely loses
Or mismanages evidence that could have been exculpatory,
the incarceration comports with "due process of law" unless
the mismanagement of evidence was in “bad faith." See
Youngblood.
IV.
The errors in the concurrence's analysis all seem to
derive from its belief that Jean's habeas petition and his §
1983 action rest on different legal foundations. For
purposes of getting his conviction reversed, the concurrence
says that Jean properly relied on Brady and traditional
procedural due process principles, which delineate the
App. 37
elements of a "fair trial." See Jean v. Rice. To get money
damages for the non-disclosure of exculpatory evidence,
however, the concurrence thinks that Jean needs a different
legal theory, which treats the right to exculpatory evidence
as a "fundamental" liberty interest rather than a "fair trial"
guarantee. As part of this legal theory, Jean must also
prove that the “deprivation” of his liberty interest in
exculpatory evidence occurred in "bad faith" - - a
culpability requirement the concurrence lifts from Daniels
and then selectively applies only in that subset of cases
where due process claims are brought under § 1983.
The assumption that informs the concurrence's two-
tiered approach seems to be that there are two different
types of due process violations, each of which is correlated
with a different type of due process remedy. When the due
process violation involves the state's failure to provide a
procedural safeguard that comprises one element of a "fair
trial" (such as the right to exculpatory evidence), the
concurrence thinks the sole remedy is a new trial. A § 1983
damages remedy, however, is only available under the
concurrence's analysis when the due process violation
involves tortious conduct by a state official specifically, that
subset of tortious conduct discussed in Daniels, involving
culpable "deprivations" of state-created liberty or property
interests. \
This is presumably why the concurrence refuses to
analyze Jean's § 1983 action as a simple attempt to
vindicate the Due Process Clause's "fair trial" guarantee.
Instead, when money damages are at stake, the concurrence
implies that the non-disclosure of exculpatory evidence
must be treated as a tortious interference with a criminal
defendant's liberty interest in exculpatory evidence, rather
than a procedural defect in the criminal defendant's "fair
trial." Believing that the non-disclosure of exculpatory
evidence is actionable under § 1983 only on a "tort" theory,
rather than a “fair trial" theory, the concurrence analyzes
App. 38
Jean's section 1983 action as a tort-like claim, rather than a
Brady claim.
A. e
Though the concurrence never fully specifies the tort
that encompasses the right to exculpatory evidence, it
appears to be the tort of malicious prosecution. This tort,
recognized in most states, protects criminal defendants from
the malicious institution or continuation of criminal
proceedings that are unsupported by probable cause. See
Goodwin v. Metts, 885 F.2d 157, 160 n.1 (4th Cir. 1989).
Liability for malicious prosecution attaches not only to
prosecutors who pursue criminal convictions without
probable cause; it also attaches to police officers who cause
an unfounded prosecution to continue by failing to tell the
prosecutor about new exculpatory evidence uncovered since
the defendant's arrest and indictment. See id . at 161-62.
As the Supreme Court noted in Albright v. Oliver,
510 U.S. 266 (1994), "the extent to which a claim of
malicious prosecution is [also] actionable under § 1983 is
one on which there is an embarrassing diversity of judicial
opinion." Id. at 270 n.4 (internal quotations omitted). In
Goodwin, decided three years before Albright, we
considered a claim of malicious prosecution brought against
a police officer who failed to disclose exculpatory
information to a prosecutor- - evidence that would have
caused the prosecutor to drop the charges had he been
informed of its existence. The plaintiff brought state
common law claims for malicious prosecution and a § 1983
federal claim, based on the theory that the Due Process
Clause constitutionalizes the state tort of malicious
prosecution. We agreed, holding that "[a] police officer
who [maliciously] withholds exculpatory information from
the prosecutor can be liable [for malicious prosecution]
App. 39
under both section 1983 and the state common law." Id. at
162.
B.
Recasting Jean's § 1983 claim on the malicious
prosecution foundation recognized in Goodwin has two
implications. First, the use of a “tort-based" theory rather
than a "fair trial" theory enables the concurrence to apply
Daniels' "deprivation" requirement in the selective manner
it desires. Specifically, the malicious prosecution
framework forces Jean to prove that the "tort" Collins and
Shingleton committed when they withheld the hypnosis
evidence culpably infringed Jean's liberty interest in
exculpatory evidence. Second, the requirement that
malicious prosecution claims be supported by evidence of
"malice" also ratchets up the culpability bar, even if only
rhetorically, and makes it that much harder for Jean to state
a successful claim for money damages.
In Albright, however, the Supreme Court called the
theory behind the concurrence's tort-based approach into
question when it held that the Due Process Clause does not
recognize a fundamental "liberty" interest in being free
from malicious prosecution. See Albright, 510 U.S. at 269-
71. Subsequently, in Taylor v. Waters, 81 F.3d 429 (4"
Cir. 1996), we saved our malicious prosecution
jurisprudence from invalidation by issuing a_ saving
construction of Goodwin. Specifically, we held that "[t]o
the extent that Goodwin based its holding on a conclusion
that the officer's failure to disclose exculpatory evidence
deprived the § 1983 plaintiffs of a liberty interest in
avoiding prosecution on less than probable cause, that
reasoning has been rejected in Albright. . . . But, to the
extent that Goodwin ruled that the officer's failure to
disclose the exculpatory information deprived the § 1983
a
~,
App. 40
plaintiffs of their right to a fair trial, its holding is not
affected by Albright." Id. at 436 n.5.
Thus, as a result of Albright, we were forced to
recast the constitutional basis of malicious prosecution,
employing a "fair trial" due process rationale, rather than a
"tort-based” due process rationale. When police officers
maliciously withhold exculpatory evidence from
prosecutors, this violates the Due Process Clause because it
denies criminal defendants a "fair trial" - - not because it
creates a tortuous interference with a liberty interest in
exculpatory evidence. Thus, contrary to the concurrence's
suggestion, malicious prosecution can not furnish the tort
on which to hang Jean's § 1983 action.°
tas
More fundamentally, the concurrence's belief that §
1983 claims must proceed on a tort theory, or not at all, is
*Because Taylor precludes a tort-based approach to the right to
exculpatory evidence, Jean's assertion of this right against Collins and
Shingleton must be treated under the "fair trial” strand of due process
jurisprudence (i.e., under procedural due process). There are two
possible sources of relief for Jean within this procedural due process
framework:
(1) Brady, which held that criminal defendants are denied a
"fair trial" when the State fails to disclose exculpatory evidence,
regardless of the good faith or bad faith of the non-disclosing official;
and (2) Taylor, which held that criminal defendants are denied a "fair
trial" when police officers perpetuate a groundless criminal prosecution
by maliciously refusing to turn over exculpatory evidence that would
have caused the prosecutor to drop the case.
Because Jean rested his § 1983 claim on Brady, rather than
Taylor, Brady should presumptively guide our analysis. Recourse to
Taylor would only be required if reliance on Brady was foreclosed by
the “imputed to” theory (that is, if Brady did not impose disclosure
duties directly on police officers). Because the "imputed to” theory is a
red herring, it does nothing to disturb Brady's applicability to police
officers like Collins and Shingleton. Accordingly, 1 would analyze
Jean's case under Brady rather than Taylor.
- App. 41
entirely misplaced. This would only be the case if: (1)
section 1983 damages were expressly reserved for due
process violations involving tortious conduct; and (2)
failures to comport with the Due Process Clause's "fair
trial" guarantee (as expiessed in cases like Brady) entitled
criminal defendants only to a new trial. Neither proposition
is supportable.
The Due Process Clause's "fair trial" guarantee,
usually discussed under the heading of procedural due
process, prohibits the State from depriving its citizens of
liberty in a criminal trial unless it first observes certain
procedural safeguards. While the focus in procec ural due
process cases is on the State's non-compliance with certain
delineated "procedures," the constitutional injury in such
Cases goes beyond the denial of the "process" that is due. A
better description of the constitutional injury would be "the
deprivation of liberty without due’process of law."
Reconceptualizing the constitutional injury in
procedural due process cases to encompass the underlying
liberty deprivation puts considerable strain on _ the
concurrence's suggestion that a "new trial" is the sole
remedy when the State fails to observe a procedural
requirement, such as the obligation to disclose exculpatory
evidence. While Jean finally persuaded this court to vacate
his conviction because of the due process infirmities
surrounding the officers' nondisclosure of the hypnosis
evidence, this belated remedy was hardly commensurate
with the extent of his constitutional injuries. The harm Jean
endured was the deprivation of his liberty without due
process of law, not merely the denial of some freestanding
procedural interest in exculpatory evidence. Consequently,
the nine years he spent in jail are part of the corpus of
compensable injuries he sustained. |
App. 42
Without a § 1983 damages action, Jean will not
receive compensation for the full extent of his injuries. The
concurrence, however, obstinately adheres to the view that
the Due Process Clause's "fair trial" guarantee is vindicated
solely through new trials - - with § 1983 damages reserved
for due process violations involving tortious acts by state
officials. This two-tiered interpretation of the rights and
remedies created by the Due Process Clause is indefensible
analytically.
And in human terms, the concurrence's flawed
analytical construct works a more profound injustice by
denying a deserving civil rights plaintiff the relief to which
-he is entitled.
I respectfully dissent.
LUTTIG, Circuit Judge, dissenting:
The Supreme Court remanded this case to us for
reconsideration in light of Wilson v. Layne, 526 U.S. 603
(1999). In Wilson, the Court held that "[a] court evaluating
a claim of qualified immunity ‘must first determine whether
the plaintiff has alleged the deprivation of an actual
constitutional right at all . . . .'" id. at 608 (quoting Conn
v. Gabbert, 526 U.S. 286, 290 (1999)), before proceeding
to determine whether a right that existed was clearly
established at the time that the unconstitutional conduct
allegedly occurred. The plaintiff in this case, Lesly Jean,
alleges that his constitutional rights under Brady v.
Maryland, 373 U.S. 83 (1963), were violated, and, at least
according to the concurrence, separately that his due
process rights were violated, by the conduct of defendant
police officers Collins and Shingleton. ‘
As to Jean's Brady allegation, the concurrence
categorically holds today that Brady is not violated when a
police officer fails, for whatever reason, to produce
exculpatory and material evidence to the prosecutor, and
App. 43
therefore that a police officer can never be liable under
Brady for the non-production of information to the
prosecution. In reaching this holding, the concurrence
reasons that Brady is violated only when the prosecution
fails to provide exculpatory and material information to the
defendant. The concurrence thus concludes that Jean has
not alleged a violation of his constitutional rights under
Brady by alleging that officers Collins and Shingleton failed
to produce exculpatory evidence to the prosecution. I need
not, and do not, express a view on this question.
As to the allegation of a separate due process
violation, the concurrence also holds that, although Brady is
not violated by such, the due process clause itself might
independently be violated if an officer fails to provide
exculpatory information to the _ prosecution. The
concurrence holds that an independent due process violation
(independent of Brady, that is) can be established, if at all,
only upon proof that the officer "intentionally withheld [ ]
evidence for the purpose of depriving the plaintiff of the use
of that evidence during his criminal trial." Ante at 10.
Having so held with respect to the possibility of an
independent due process violation, the court proceeds to
conclude not that Jean has or has not alleged a due process
violation, but, rather, that he has not proven that the
officers in this case deprived him of due process by
intentionally withholding the evidence at issue for that
purpose. See, e.g., ante at 8 ("The conduct of Shingleton
and Collins lies well below this threshold [of bad faith
withholding of exculpatory information]."); id. ("Jean
simply is unable to provide evidence of a bad faith
deprivation carried out by Collins and Shingleton- - a
matter on which the burden plainly rests with the
plaintiff."); id. at 8 ("[Jean] does not point to any evidence
showing that the officers actually knew. of the significance
of [the evidence at issue]."); id. ("Jean points to nothing
that resembles the kind of affirmative misuse of power that
App. 44
{
the Supreme Court has indicated would implicate due
process protections."); id. at 10 ("Because there was no
threshold bad faith deprivation . . . ."); id. ("[Bad faith]
must be edts>lished on the basis of evidence ... .").
Indeed, the concurrence tellingly concludes its opinion as
follows: "What occurred here was at worst a negligent
miscommunication among Vatcher, Collins, and
Shingleton. . . ." Id. at 10-11.
I am not in a position, on the record before us, to
draw such a conclusion, nor, in my opinion, is the court.
And I do not even believe that it is appropriate under the
qualified immunity scheme to dispose of Jean's claim on
this ground. The only task properly before this court is to
determine whether the plaintiffs have alleged the violation
of a constitutional right, and, if so, whether that right was
clearly established at the time that the alleged violation
occurred - - and no more.
If the concurrence is not to undertake the proper
qualified immunity analysis, then the proper course is to
remand the case to the district court for further
proceedings, assuming, that is, that we are going to impute
to Jean first, the allegation of an independent due process
violation, and second, even the specific allegation of an
intentional withholding for the purpose of depriving Jean of
his rights, as the concurrence does. Such a remand would
permit Jean to develop, if possible, evidence to support the
allegation imputed to him by the concurrence, that the
information was intentionally withheld for the purpose of
preventing him from using it at trial.
While the concurrence deemphasizes the fact, Jean's
central (and I believe only) theory from the outset of this
case has been that the failure of officers Collins and
Shingleton to produce to the prosecution certain exculpatory
evidence constituted a Brady violation. Given that there is
no mens rea requirement under Brady, Jean has had the
Opportunity to develop all the facts relevant to this claim.
App. 45
But it is a different matter altogether with respect to the
alleged independent due process violation that the
concurrence ascribes to Jean (albeit in my view
questionably). With respect to this claim, Jean had no
notice even that such a claim might exist, much less that, in
order to prove such a claim, he would be required to
establish that the evidence was intentionally withheld from
him for the specific purpose of preventing him from using
that evidence at trial. In other words, until today, Jean not
only had no reason to believe that a violation of due process
other than that recognized under Brady existed; neither did
he have any reason to believe that he would be required to
prove specific intent - - and the specific intent newly held to
be required by the concurrence today - - in order to
establish a due process violation by the non-production of
exculpatory evidence. Therefore, Jean has never even had
the cause, much less the opportunity, to develop a record
with regard to Collins' and Shingleton's state of mind in
withholding the evidence. Indeed, the only record that
exists is as to what information was and was not produced
to the prosecution by the defendants.
Given that Jean heretofore did not have reason to
believe that he should develop a record as to the defendants’
state of mind, I believe that the court is obliged at a
minimum to permit Jean the opportunity to establish on
remand that Collins and Shingleton intentionally withheld
the evidence in question for the purpose of preventing him
from using it at trial. I simply do not believe it is right to
dismiss out of hand Jean's central allegation that his rights
under Brady v. Maryland were violated; ascribe to him a
different due process violation than he one he clearly
contemplated; create for the first time the substantive
standard that will govern the disposition of such a claim;
and then conclude from a record entirely undeveloped as to
substantive elements of that new cause of action not
even that he has failed to allege a violation, but that he has
App. 46
failed to prove that violation - - and failed to do so as a
matter of law. I therefore dissent from the judgment of the
court.
‘
App. 47
Supreme Court of the United States
No. 98-980
LESLY JEAN,
Petitioner,
v.
DELMA COLLINS,
CHIEF OF DETECTIVES,
CITY OF JACKSONVILLE, ET AL.
ORDER ALLOWING CERTIORARI. Filed June
1, 1999. ee
The petition herein for writ of certiorari to the
United States Court of Appeals for the Fourth Circuit is
granted.
App. 48 ¢
Supreme Court of the United States
No. 98-980
‘ LESLY JEAN,
Petitioner,
V.
DELMA COLLINS,
CHIEF OF DETECTIVES,
CITY OF JACKSONVILLE, ET AL.
ON WRIT OF CERTIORARI to the United States
Court of Appeals for the Fourth Circuit.
THIS CAUSE having been submitted on the petition
for a writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered
and adjudged by this Court that the judgment of the above
court is vacated with costs, and the case is remanded to the
United States Court of Appeals for the Fourth Circuit for
further consideration in light of Wilson v. Layne, 526 U.S.
(1999).
IT IS FURTHER ORDERED that the Petitioner
Lesly Jean recover from Delma Collins, Chief of
Detectives, City of Jacksonville, et al., Three Hundred
Dollars ($300.00) for costs herein expended.
June 1, 1999
Clerk’s costs: $300.00
App. 49
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LESLY JEAN,
Plaintiff-Appellant,
Vv. No. 95-7694
DELMA COLLINS, Chief of Detectives of the
City of Jacksonville, Individually;
JAMES SHINGLETON, Police Officer with the
City of Jacksonville, North Carolina,
Police Department, Individually,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-94-62-4-H2)
Argued: December 2, 1997
Decided: September 17, 1998
Entered: September 17, 1998
Before WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, ERVIN, -WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and
MOTZ, Circuit Judges.
App. 50
Affirmed by published opinion. Chief Judge Wilkinson
wrote the majority opinion, in which Judges Widener,
Wilkins, Niemeyer, Luttig, and Williams joined. Judge
Murnaghan wrote a dissenting opinion. Judge Ervin wrote a
dissenting opinion, in which Judges Murnaghan, Hamilton,
Michael, and Motz joined. Judge Hamilton wrote a
dissenting opinion, in which Judge Murnaghan joined.
COUNSEL
ARGUED: Richard Brooks Glazier, BEAVER, HOLT,
RICHARDSON, STERNLICHT, BURGE & GLAZIER,
P.A., Fayetteville, North Carolina, for Appellant. Kenneth
Ray Wooten, WARD & SMITH, P.A., New Bern, North
Carolina, for Appellees. ON BRIEF: Rebecca J. Britton,
BEAVER, HOLT, RICHARDSON, STERNLICHT,
BURGE & GLAZIER, P.A., Fayetteville, North Carolina,
for Appellant. John R. Green, Jr., WARD & SMITH,
P.A., New Bern, North Carolina, for Appellees.
OPINION
WILKINSON, Chief Judge:
We granted en banc review in this case to determine
whether the district court properly dismissed Lesly Jean's
section 1983 claim against Jacksonville, North Carolina
police officers Delma Collins and James Shingleton. The
complaint alleged their failure to disclose exculpatory
evidence during Jean's criminal trial for rape and first
degree sexual offenses. The district court granted summary
judgment in favor of Collins and Shingleton, holding they
were entitled to qualified immunity. To the extent Jean
Claims the officers failed to disclose evidence directly to
defense counsel, we hold that the officers are entitled to
absolute immunity. To the extent Jean contends Collins and
App. 51
i
Shingleton failed to turn over evidence to the prosecutor,
the officers are protected by qualified immunity. We thus
affirm the judgment of the district court.
I.
On July 21, 1982, at approximately 3:00 a.m., a
stranger entered the house and bedroom of Alice Kathleen
Wilson and forcibly raped her. Soon after the incident was
reported to the Jacksonville police, the department
announced the suspect's physical description - - black male
wearing a blue shirt, blue shorts, and white tennis shoes - -
to its officers via radio transmission. At approximately 4:40
a.m., Officer James Shingleton spotted a man walking
along a local highway who matched the basic description
from the radio dispatch. Shingleton activated the blue lights
on his patrol car, exited the vehicle, and stopped the
person. Shingleton questioned him, instructed him to place
his hands on the fender of the car, and told him he was a
suspect in a rape. At that point, the suspect fled into the
adjacent woods; the encounter lasted approximately one
minute and a half. Later that morning, Shingleton described
the person he confronted as black, five feet ten inches tall,
weighing 170 pounds, with close-cut hair and a mustache,
and wearing blue shorts, a blue shirt with writing, white
knee-high socks, and white tennis high-tops.
Meanwhile, Wilson was transported to the hospital
for treatment and then to the police station to make a
statement. She described her attacker as a black male,
muscular, five feet eight inches tall, weighing about 165 or
170 pounds, with a marine haircut, kinky hair, no facial
hair, and wearing dark shorts that were probably navy blue,
white crew socks, and high-top sneakers. Wilson also met
with a sketch artist to produce a composite of the suspect.
A photograph of her composite was distributed to the
App. 52
Jacksonville Police Department. Afterwards, the same
sketch artist also met with Shingleton but was unable to
develop a reliable composite due to the incomplete nature of
the officer's observations.
The following day, July 22, 1982, Detective Steve
Smith, the lead investigator on the case, asked Captain
Delma Collins to hypnotize Shingleton in order to garner
further details about the person he stopped the morning of
the crime. The hypnotic session was recorded on audio tape
and its results were noted in a hypnosis information
worksheet. Shingleton's memory of the possible suspect
changed in at least three respects: he now believed that the
tee shirt design was instead a sweat mark, he remembered
that the person in fact did not have a mustache, and he
recalled blue stripes on each of the person's socks.
Detective Smith recorded in his notes: "As a result, his
description matches the one given by victim."
On July 26, 1982, Chief of Police Roger Halbert was in a
Dunkin Donuts and noticed appellant Jean, a marine
stationed at Camp Lejeune in Jacksonville. Halbert believed
Jean matched the composite of the suspected rapist. Halbert
radioed the police department and asked that Shingleton be
sent to the restaurant. When he arrived, Shingleton
identified Jean as the man he had seen on the morning of
the rape and accordingly arrested him. Detective Smith then
interviewed Jean and, after receiving his consent, searched
Jean's locker and laundry bag at the marine base. Smith
seized a pair of white high-top tennis shoes, dark blue
athletic shorts with white stripes, and a blue tee shirt. Jean
was fingerprinted, photographed, and then released.
The following day, July 27, 1982, Smith asked
Wilson to come to the police station to view a photo lineup
that included Jean's photo. After viewing the lineup,
Wilson was unable to make a positive identification. The
next day, Wilson called Smith at the police station
App. 53
requesting to look at the photos again because one of them
had made her feel sick. After observing the photos a second
time, Wilson picked out Jean's photo as the one that made
her sick and stated that another of the photos looked
"haunty." Again, however, she could not make a positive
identification.
On July 30, 1982, upon the recommendation of
Detective Smith, Captain Collins hypnotized Wilson in an
effort to determine whether she could remember anything
more about the photo that made her feel sick. Wilson's
prehypnotic memories were recorded on a prehypnosis
information worksheet, the session was recorded on audio
tape, and new information was noted on another worksheet.
At least three new pieces of information emerged during the
session: Wilson believed her attacker had an accent,
possibly Puerto Rican, and she recalled white shoelaces and
a Nike emblem in connection with the attacker's shoes.
Collins and Smith deemed the session to be unproductive
due to the paucity of new details.
In the following two months, Wilson was asked to
listen to voice identification recordings and view a live
lineup. On August 4, 1982, after listening to several voice
exemplars numerous times, Wilson stated that Jean's voice
sounded like the one from her bedroom. Although Smith
initially assumed she did not make a positive identification
that day, Wilson later called him and explained that her
statement was intended as a positive identification. She then
confirmed again that Jean's voice exemplar was the voice of
the man who had raped her. On September 17, 1982,
Wilson was asked to view a live lineup consisting of three
persons, including Jean. Wilson identified Jean as the
person who had raped her and the police placed him under
arrest.
Jean was indicted in October 1982 for rape and first
degree sexual offenses. Despite timely discovery requests,
the prosecutor did not disclose the fact that witnesses had
been hypnotized until Wilson's testimony at trial. The
prosecutor also did not disclose the recordings of the
hypnotic sessions, despite general pretrial discovery
requests and a more specific request for such recordings by
defense attorneys at trial. The jury, however, was made
aware of Wilson and Shingleton's hypnoses, as defense
counsel cross-examined both witnesses on that point.
On December 5, 1982, Jean was convicted on all
counts and sentenced to two consecutive life terms. After
his direct appeals and applications for state postconviction
relief proved unsuccessful, Jean filed a petition for a writ of
habeas corpus in the United States District Court for the
Eastern District of North Carolina. In Jean v. Rice, 945
F.2d 82 (4th Cir. 1991) (per curiam), we reversed that
court's denial of his petition, holding that the government's
failure to disclose the audio recordings and the
accompanying reports of the hypnotic sessions was a
violation of the principles announced in Brady v. Maryland,
373 U.S. 83 (1963). Accordingly, we vacated Jean's
conviction. The state declined to retry Jean, and he was
released from prison.
On May 20, 1994, Jean filed the present complaint
against Collins and Shingleton in the United States District
Court for the Eastern District of North Carolina, alleging
Fourth Amendment and Fourteenth Amendment Due
Process Clause violations under 42 U.S.C. § 1983 and
supplementary state-law claims. The district court dismissed
Jean's state causes of action, holding that one failed to state
a claim and that the others were barred by the applicable
Statute of limitations. In a later order, the district court
granted summary judgment in favor of Collins and
Shingleton on Jean's section 1983 claims, holding the police
officers were protected by qualified immunity. Jean
App. 55
appealed the district court's summary judgment order only
with respect to his due process claim. A panel of this court
reversed the decision of the district court. Jean v. Collins,
107 F.3d 1111 (4th Cir. 1997). Thereafter, a majority of
the judges in active service voted to rehear this appeal en
banc.
Il.
Initially we note that Jean's due process claim,
alleging suppression of exculpatory evidence, does not
clearly state the precise theory upon which it is premised.
See Burns v. Reed, 500 U.S. 478, 487 (1991) (in cases
implicating official immunity "it is important to determine
the precise claim that petitioner has made"). At times, Jean
contends his constitutional rights were violated as a result
of Collins and Shingleton's failure to turn over evidence to
the District Attorney's Office. At other times, however,
Jean asserts that the officers generally suppressed the
relevant evidence. See_ Compl. § 41. (referring to "the
actions of defendants in withholding exculpatory
evidence"). Both Collins and Shingleton clearly understood
Jean's complaint to allege their failure to disclose evidence
directly to Jean's defense counsel. See Collins Aff. ¢ 20
("At no time did I intentionally withhold this evidence from
Mr. Jean's defense counsel."); Shingleton Aff. § 21 ("At no
time in my career as a police officer have I been trained that
I am responsible for deciding what evidence will be
presented at trial or disclosed to a criminal defense counsel
in response to legal discovery requests."). To the extent
Jean asserts a duty on the part of Collins and Shingleton to
turn over exculpatory evidence to the defense, that claim
must fail. Police officers are absolutely immune from suits
App. 56
challenging a failure to disclose evidence directly to the
defense. '
The doctrine of absolute immunity under section
1983 rests on the assumption that Congress did not intend
to abolish certain well established immunities recognized by
courts at the time of section 1983's enactment. Buckley v.
Fitzsimmons, 509 U.S. 259, 268 (1993). To evaluate
government officials’ specific claims for absolute immunity,
the Supreme Court has adopted a functional approach --
inquiring whether the particular official performs functions
similar to those protected by common-law immunities when
Congress enacted section 1983. Id. at 268-69: Burns, 500
U.S. at 484, 486; Imbler v. Pachtman, 424 U.S. 409, 430
(1976). The Court recently reaffirmed this functional
approach in Kalina v. Fletcher, 118 S. Ct. 502, 510 (1997),
holding that a prosecutor personally attesting to the truth of
facts necessary for a probable cause determination was not
absolutely immune from suit because she functioned not in
a prosecutorial role, but as a witness. The Court reiterated
that "in determining immunity, we examine ‘the nature of
the function performed, not the identity of the actor who
performed it.'" Id. at 508 (quoting Forrester v. White, 484
U.S. 219, 229 (1988)); see Buckley, 509 U.S. at 269:
Malley v. Briggs, 475 U.S. 335, 342 (1986); Carter v.
Burch, 34 F.3d 257, 261-62 (4" Cir. 1994): see also Ireland
v. Tunis, 113 F.3d 1435, 1443 (6th Cir.), cert. denied, 118
‘In his dissenting opinion, Judge Ervin claims we are precluded
from considering the absolute immunity of Collins and Shingleton
because it was not pled or addressed in prior proceedings. The officers
did plead the defense of qualified immunity, however, and we may
properly consider the ciosely related question of the scope of the
immunity to which they are entitled. See Allen v. Zurich Ins. Co., 667
F.2d 1162, 1168 n.5 (4" Cir. 1982). Failure to do so here would create
the possibility that qualified immunity would incorrectly be accepted as
the limit of protection for police officers “performing functions that
require the exercise of prosecutorial discretion." Kalina v. Fletcher ,
118 S. Ct. 502, 507 (1997).
App. 57
S. Ct. 560 (1997); Hill v. City of New York, 45 F.3d 653,
660 (2d Cir. 1995).
In Fletcher the Court explained that, to protect the
independent judgment of prosecutors, an official is
absolutely immune from suit when "performing functions
that require the exercise of prosecutorial discretion.” 118 S.
Ct. at 507. The decision whether to disclose exculpatory
evidence to an adversary is a central part of the
prosecutor's trial preparation, is undertaken in the role of
advocate for the State, and plainly requires the exercise of
prosecutorial discretion. Imbler itself involved the
prosecution's alleged suppression of material evidence at
trial. 424 U.S. at 413-16. And subsequent decisions have
left no doubt that prosecutors enjoy absolute immunity from
claims alleging a failure to disclose exculpatory evidence.
For example, the Court in Fletcher described Imbler as
providing an absolute immunity defense to the prosecutor
from Imbier's "charge that exculpatory evidence had been
suppressed.” Fletcher, 118 S. Ct. at 506. And in Burns, the
Court explained that its Imbler_ decision, pursuant to the
functional approach, held the prosecutor absolutely immune
from suit for the "deliberate suppression of exculpatory
evidence." Burns, 500 U.S. at 486. The Court has also
stated that actions for which a prosecutor is accorded
absolute immunity "must include the professional evaluation
of the evidence assembled by the police and appropriate
preparation for its presentation at trial or before a grand
jury after a decision to seek an indictment has been made."
Buckley, 509 U.S. at 273; see Ireland, 113 F.3d at 1445.
We have likewise read Imbler to require absolute
immunity from section 1983 claims alleging suppression of
exculpatory evidence. In Carter, we held that "the decision
as to whether the evidence was exculpatory and should have
been given to defense counsel . . . was clearly intended by
Imbler to be the type of prosecutorial function for which
App. 58
absolute immunity should be granted." 34 F.3d at 262; see
also Lyles v. Sparks, 79 F.3d 372, 377 (4th Cir. 1996)
("The Supreme Court also held in Imbler that absolute
immunity protected the prosecutor from allegations that he
had knowingly used perjured testimony and suppressed
material evidence at the plaintiff's trial."). We explained in
Carter that the decision whether to disclose evidence to the
defense "is clearly part of the presentation of the State's
case" and represented conduct undertaken as an advocate
for the State. 34 F.3d at 262-63. Other circuits have
reached the same conclusion. See Moore v. Valder, 65
F.3d 189, 194 (D.C. Cir. 1995), cert. denied, 117 S. Ct.
75 (1996); Reid v. New Hampshire, 56 F.3d 332, 336 (1st
Cir. 1995) ("under Imbler it is now [a] well-settled rule that
a prosecutor cannot be held personally liable for the
knowing suppression of exculpatory information" {internal
quotation marks and citation omitted)); Hill, 45 F.3d at
661-62; Myers v. Morris, 810 F.2d 1437, 1446 (8" Cir.
1987).
To the extent, therefore, that Jean contends that
Collins and Shingleton failed to disclose exculpatory
evidence directly to the defense, the police officers are
entitled to the same absolute immunity that would be
available to prosecutors for execution of the identical
function. Jean's claim casts the officers in a role much
different from their traditional investigatory one. Police
officers normally assemble available evidence for the
prosecution rather than evaluate it for trial purposes.
Buckley, 509 U.S. at 273. Prosecutors assess the material
and exculpatory nature of that evidence in determining
whether disclosure to the defense is required. By asserting
that the police have a duty to make such sensitive legal
determinations, Jean raises a claim against the officers not
in their investigatory role, but instead in an advocate's role
App. 59
“intimately associated with the judicial phase of the
criminal process." Imbler, 424 U.S. at 430. Under the
Court's approach, the officers must be accorded absolute
immunity.
The fact that the defendants in the present suit are
police officers, rather than prosecutors, is irrelevant to the
immunity analysis. Because the immunity is tied to the
nature of the function performed and not to the identity of
the defendant performing that function, e.g., Fletcher, 118
S. Ct. at 508, we look to the conduct challenged by Jean's
suit rather than the defendants’ titular position. The Court
has specifically recognized that "[wJhen the functions of
prosecutors and detectives are the same, as they were here,
the immunity that protects them is also the same.” Buckley,
509 U.S. at 276; see also Hill, 45 F.3d at 660 (extending
absolute immunity to non-attorney employees of district
attorney's office under functional approach); Davis _v.
Grusemeyer, 996 F.2d 617, 631 (3d Cir. 1993) (extending
absolute immunity to employee working for attorney “when
the employee's function is closely allied to the judicial
process"). It would be incongruous to hold prosecutors
absolutely immune from suits concerning disclosure
decisions made in the course of their traditional advocate's
role while granting police officers only qualified immunity
with respect to the same decisions, which fall outside their
normal investigatory role.
We note finally that the same considerations
underlying absolute immunity for prosecutors also support
granting police officers absolute immunity from suits
alleging failure to disclose exculpatory evidence to the
defense. The Court in Imbler first relied upon the common-
law concern that “harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his
public duties." 424 U.S. at 423. The Court noted that
"[sJuch suits could be expected with some frequency, for a
defendant often will transform his resentment at being
App. 60
prosecuted into the ascription of improper and malicious
actions to the State's advocate." Id. at 425. The same
consideration countenances absolute immunity for the police
officers in the present action. Because police uncover most
evidence in criminal investigations, suits alleging
suppression of exculpatory evidence could be leveled
against them in almost every case. Imbler's observation that
"a prosecutor inevitably makes many decisions that could
engender colorable claims of constitutional deprivation,"
id., would be no less true of police officers forced to make
the difficult determinations surrounding the State's
disclosure obligations. Without absolute immunity from
section 1983 claims like Jean's, the police would be forced
to defend against vexatious litigation and their “energy and
attention would be diverted from the pressing duty of
enforcing the criminal law." Id.
The Court in Imbler also relied upon the common-
law concern that the fear of civil liability would create "the
possibility that [a prosecutor] would shade his decisions
instead of exercising the independence of judgment required
by his public trust." Id. at 423. It is unlikely that police
officers, who lack prosecutors’ legal training, would be
more able to confidently reach independent legal
conclusions regarding the State's disclosure obligations
without fear of civil liability. In fact, officers fearing
personal liability would likely turn over much more
evidence than necessary, thereby transforming the
combination of section 1983 and Brady obligations into
more absolute rights to discovery for criminal defendants.
This would fundamentally change our adversarial system
and harm the judicial process."The Brady rule is based on
the requirement of due process. Its purpose is not to
displace the adversary system as the primary means by
which truth is uncovered, but to ensure that a miscarriage
of justice does not occur." United States v. Bagley, 473
U.S. 667, 675 (1985). Granting police officers absolute
App. 61
immunity from suits alleging a failure to disclose accords
with the considerations traditionally cited in favor of
absolute prosecutorial immunity -- preservation of
government officials’ independent judgment, Imbler, 424
U.S. at 423, and the more general protection of the judicial
process. Burns, 500 U.S. at 485.
Finally, we note that an adequate remedy for police
officers' failure to disclose exculpatory evidence already
exists in the criminal law. Whenever the State withholds
material exculpatory evidence from the defense, the
Constitution requires that any conviction gained thereby be
vacated. Bagley, 473 U.S. at 678; Giglio v. United States,
405 U.S. 150, 155 (1972); Brady, 373 U.S. 83. The
adequacy of judicial remedies for prosecutorial
misjudgments "‘tend[s] to reduce the need for private
damages actions as a means of controlling unconstitutional
conduct.'" Burns, 500 U.S. at 492 (quoting Butz v.
Economou, 438 U.S. 478, 512 (1978)); Imbler, 424 U.S. at
427; Springmen v. Williams, 122 F.3d 211, 214 (4th Cir.
1997).
In sum, we find that absolute immunity for police
officers performing prosecutorial functions is mandated by
well-settled doctrine of the Supreme Court. We decline to
make police officers into mini-prosecutors and to impose
upon them obligations that would cut actual prosecutors out
of the loop. From any claim that Collins and Shingleton
failed to disclose exculpatory evidence directly to the
defense, the officers are absolutely immune from suit.
Il.
Jean next asserts that the officers had a
constitutional duty under Brady to turn over evidence to the
prosecution relating to Wilson's and Shingleton's hypnoses.
Regardless of whether Jean's claim presently states a
constitutional violation, we conclude that Shingleton and
App. 62
Collins are entitled to qualified immunity. In 1982, a
reasonable police officer would not have known that his
failure to turn over such evidence violated a criminal
defendant's clearly established constitutional rights.
A.
The basic purposes of qualified immunity are well
known. The immunity is designed to shield government
officials performing their duties from the burdens of trial
and the threat of monetary liability. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). "Without such an immunity, the
operations of government would be immobilized."
Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991).
Government officials would not perform their discretionary
duties vigorously but would act timidly to avoid the risk of
being haled into federal court. Anderson v. Creighton, 483
U.S. 635, 638 (1987); Harlow, 457 U.S. at 814. Society
also would bear substantial costs including "the expenses of
litigation, the diversion of official energy from pressing
public issues, and the deterrence of able citizens from
acceptance of public office." Harlow, 457 U.S. at 814; see
also Anderson, 483 U.S. at 638; Tarantino v. Baker, 825
F.2d 772, 774 (4th Cir. 1987). To limit these costs,
qualified immunity protects "all but the plainly incompetent
or those who knowingly violate the law." Malley, 475 U.S.
at 341. Thus, government officials forfeit this defense only
where a reasonable official would have known that an
action violated clearly established constitutional rights.
Harlow, 457 U.S. at 818; Winfield v. Bass, 106 F.3d 525,
530 (4th Cir. 1997) (en banc).
The requirement that a right be clearly established
ensures that officials have ample notice of the legal
standards that govern their conduct. See Davis v. Scherer,
468 U.S. 183, 195 (1984). Consistent with this need for
notice, a court must identify the right infringed at a high
App. 63
level of particularity. Anderson, 483 U.S. at 639; Winfield,
106 F.3d at 531. To define the right too abstractly would
convert the defense of qualified immunity "into a rule of
virtually unqualified liability." Anderson, 483 U.S. at 639;
see also DiMeglio v. Haines, 45 F.3d 790, 803-04 (4th Cir.
1995). Of course Anderson does not require that a prior
case have held identical conduct to be unlawful. Id. at 640.
But officers cannot be ambushed by newly invented theories
of liability or by unforeseen applications of old ones. Thus,
"the ‘contours of the right’ must have been so conclusively
drawn as to leave no doubt that the challenged action was
unconstitutional." Swanson v. Powers, 937 F.2d 965, 969
(4th Cir. 1991) (quoting Anderson , 483 U.S. at 640); see
also Lassiter v. Alabama A & M Univ., 28 F.3d 1146,
1150 (11" Cir. 1994) (en banc) ("For qualified immunity to
be surrendered, pre-existing law must dictate, that is, truly
compel (not just suggest or allow or raise a question about),
the conclusion for every _ like-situated, reasonable
government agent that what(the] defendant is doing violates
federal law in the circumstances .").
In order for notice to officials to be effective, the
source of that notice must be identified. It is clear that a
court cannot confine its assessment of an immunity defense
to Supreme Court decisions alone. See United States v.
Lanier, 117 S. Ct. 1219, 1226 (1997). It is equally clear
that a court cannot restrict its inquiry to cases identified by
the parties. Elder v. Holloway, 510 U.S. 510, 515 (1994).
But government officials must have some guideposts about
the sources of law that can clearly establish a particular
right. Our nation's courts produce a vast number of
decisions that could conceivably influence officials’
discharge of their duties. See Swanson , 937 F.2d at 968.
Officials cannot be expected to master the entire corpus of
this caselaw in addition to fulfilling their public
responsibilities. See Davis, 468 U.S. at 196 & n.13. The
very immensity of American jurisprudence creates the
App. 64
distinct likelihood that jurisdictions will offer conflicting
opinions over how government officials should carry out
their tasks. See Swanson, 937 F.2d at 968. To hold officials
responsible for sorting out these conflicts, without any
guidance about what jurisprudence to follow, could
generate widespread confusion over the scope of official
obligations. An unbounded legal universe would give rise to
guessing games over whether this or that decision in this or
that jurisdiction created a clearly established right. Such a
limitless universe would also give judges broad latitude to
second-guess the actions of officers on the spot.
Ordinarily, therefore, courts in this circuit need not
look beyond the decisions of the Supreme Court, this couri
of appeals, and the highest court of the state in which the
case arose to determine whether a right was clearly
established at a particular time. Wilson v. Layne, 141 F.3d
111, 114 (4th Cir. 1998) (en banc); Wallace v. King, 626
F.2d 1157, 1161 (4th Cir. 1980). This presumption, like
the Eleventh Circuit's longstanding practice, provides
necessary guidance to government officials about whether a
contemplated course of conduct may subject them to
personal liability. See Jenkins by Hall v. Talladega Bd. Of
Educ., 115 F.3d 821, 826 n.4 (11th Cir.) (en banc), cert.
denied, 118 S. Ct. 412 (1997); Hamilton by and through
Hamilton v. Cannon, 80 F.3d 1525, 1531 n.7 (11th Cir.
1996); Courson v. McMillian, 939 F.2d 1479, 1497-98
(11th Cir. 1991). Thus, if a right is recognized in some
other circuit, but not in this one, an official will ordinarily
retain the immunity defense. Of course, the converse also
holds true. If a right is clearly established in this circuit but
not in another circuit, that conflict will not shield the
official from liability. The approach we adopt will place
parameters upon the immunity inquiry -- if immunity is to
stem litigation, as the Supreme Court intended, the issue of
whether a right is clearly established should not send public
officials on an Odyssean quest.
App. 65
Po ee ee
In this case, we must analyze the state of the law in
1982 to determine whether Collins and Shingleton violated
a clearly established constitutional right. Anderson requires
that the right be defined at a high level of particularity. But
even at the highest level of generality, the right which Jean
asserts was not clearly established in 1982. Jean has failed
to demonstrate that, at that time, police had a duty
grounded in federal law to turn over the evidence at issue to
a prosecutor. Several of the cases on which Jean relies do
not even discuss whether police officers had any
constitutional duty to provide evidence to a prosecutor. As
of 1982, the Supreme Court had not held that police had
such a constitutional duty; Brady and its progeny instead
involved prosecutors' failures to disclose evidence to the
defense. E.g., United States v. Agurs , 427 U.S. 97, 107 |
(1976); Giglio, 405 U.S. at 154; Brady, 373 U.S. at 87-88. :
With respect to this circuit's decisions, many of those
advanced by Jean involved nondisclosure by prosecutors or
are otherwise totally inapposite. E.g., Norris v. Slayton,
540 F.2d 1241, 1244 (4th Cir. 1976) (prosecutor's failure
to disclose police officer's report held Brady violation);
Clarke v. Montgomery Ward & Co., 298 F.2d 346, 348
(4th Cir. 1962) (private common law action for malicious
prosecution brought under diversity jurisdiction). These
cases simply lack the requisite factual similarity to the
instant case. Police officers in 1982 could not have been
expected to survey decisions involving prosecutors’ failures
to disclose evidence to the defense and conclude that, by
analogy, they bore an independent constitutional duty to
EDT, Pe eT
PO OATS oP he we ONT RS Ue, gee Ree eee
pyrars
adishnksos mas
App. 66
provide evidence to prosecutors. Thus, this line of
authorities cannot demonstrate that Shingleton and Collins
violated Jean's clearly established constitutional rights.
Jean asserts that this circuit's opinion in Barbee v.
Warden, Md. Penitentiary, 331 F.2d 842 (4th Cir. 1964),
imposed a constitutional duty on police officers to give
evidence to a prosecutor. In Barbee, the prosecutor failed to
disclose certain police reports to the defense. Id. at 844.
These reports contained the results of ballistics and
fingerprint tests that cast doubt on Barbee's involvement in
a shooting. Id. Although the prosecutor was unaware of the
reports, this court held that his ignorance did not excuse his
failure to disclose them to the defense and reversed a
district court order denying Barbee postconviction relief.
Id. at 846.
We believe that Jean misapprehends the essential
holding of Barbee. Barbee did not require police, as a
constitutional matter, to furnish evidence to a prosecutor.
Instead, as this circuit later explained, Barbee held simply
that the police's knowledge of such evidence would be
imputed to the prosecutor in deciding whether the
prosecutor had fulfilled his Brady duties. United States v.
Sutton, 542 F.2d 1239, 1241 n.2 (4th Cir. 1976): see also
Boone v. Paderick, 541 F.2d 447, 450-51 (4th Cir. 1976).
By imputing the police's knowledge of exculpatory
evidence to the prosecutor, Sutton and Barbee simply
encouraged prosecutors' offices to establish "procedures
and regulations . . . to insure communication of all relevant
information on each case." Giglio, 405 U.S. at 154. Thus,
while prosecutors are not relieved of their Brady duties for
failing to disclose material evidence known only to the
police, police officers who in 1982 failed to give such
App. 67
evidence to prosecutors did not themselves violate a clearly
established constitutional right.”
In sum, police officers in 1982 could reasonably
have expected to be internally accountable to prosecutors
for not turning over evidence in their possession. A failure
to turn over exculpatory evidence might jeopardize a
conviction under Brady. A failure to turn over inculpatory
evidence might undermine the State's case. But the officers
had no earthly idea that they would be subject to a federal
cause of action for money damages when no relevant
decision had held that the police's responsibility to furnish
evidence to the prosecution was governed by federal
constitutional law.’
In this case, it is undisputed that the prosecutor,
Assistant District Attorney Walter Vatcher, knew that the
witnesses had been hypnotized and knew the details of the
"In their dissenting opinions, Judge Ervin and Judge Hamilton
dispute our reading of Barbee. Our reading, however, is supported both
by the Supreme Court's decision in Giglio, 405 U.S. at 154, and this
circuit's decisions in Sutton, 542 F.2d at 1241 n.2, and Boone, 541
F.2d at 450-51. Each of these decisions predates the relevant conduct of
Collins and Shingleton. In contrast, the dissents' view of Barbee rests
on implications from caselaw that postdates the relevant conduct in this
case.
*More recently this circuit has recognized that the failure of
police officers to turn over evidence to a prosecutor may violate a
criminal defendant's constitutional right to receive such evidence. See
Taylor v. Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996); Carter, 34
F.3d at 264; Goodwin v. Metts, 885 F.2d 157, 162-63 (4th Cir. 1989),
overruled in part by Albright v. Oliver, 510 U.S. 266 (1994). Contrary
to Judge Hamilton's claim that the majority fails to explain what it
means by proper notice, the decisions in Taylor, Carter , and Goodwin
now provide notice to police officers that they can be subject to
monetary damages under section 1983 for failure to disclose
exculpatory evidence to the prosecutor. These decisions, however, all
postdate the events in this case and thus we do not adopt the dissent's
theory that proper notice to defendants can be notice after the fact.
App. 68
eo
various identification procedures employed by the police
during their investigation. Furthermore, Collins and
Shingleton maintain that they also discussed with Vatcher
the existence of the reports and recordings of the hypnoses,
a claim Vatcher denies. Fifteen years after trial, the parties
are still disputing the value of the hypnosis-related
evidence, whether Vatcher was derelict in failing to ask for
further details of it, and whether Shingleton and Collins
were derelict in not providing it. In fact, however, the
Supreme Court in Giglio had charged the prosecution with
the duty to request and evaluate relevant evidence in the
State's possession. Giglio, 405 U.S. at 154. Vatcher never
contends in his affidavits that he asked for any materials
related to the hypnoses, as might be expected of a
prosecutor's office after Giglio _. Furthermore, Vatcher
admitted that "[o]fficers Shingleton and Collins turned over
all evidence that I requested from them." His apparent
decision net to request additional details of the hypnoses
cannot now be recast as a constitutional failure by the police
officers to disclose such evidence.
Even if there were some general constitutional
obligation in 1982 to hand over evidence to a prosecutor,
the precise nature of that duty was anything but clear.
Nothing in the applicable caselaw suggested that the failure
to turn over evidence relating to witnesses' hypnoses
violated clearly established constitutional rights. As of
1982, no decision of either the Supreme Court or this
circuit had held that police committed a constitutional
violation by not handing over evidence of this sort. Of
course, we do not require a case with facts identical to the
instant one. Anderson, 483 U.S. at 640. But here no
relevant case remotely resembled the situation confronted
by Shingleton and Collins. Under these circumstances, we
cannot hold them liable for a constitutional infraction.
Jean finally relies on several cases from other
Circuits, but such cases ordinarily do not demonstrate that a
App. 69
constitutional right was clearly established in this circuit.
Most of these decisions do not even pertain to a police
Officer's failure to hand over evidence of witnesses’
hypnoses to a prosecutor. Two cases did involve the
disclosure of hypnosis-related evidence. One comes from
the Second Circuit. United States v. Miller, 411 F.2d 825
(2d Cir. 1969). That decision does not even speak to the
constitutional strictures on police conduct. Miller involved
only a prosecutor's failure to disclose evidence of a
hypnosis to the defense. Id. at 832. Thus, it cannot
demonstrate that Shingleton and Collins violated Jean's
Clearly established constitutional rights.
The other case comes from the Northern District of
Georgia. Emmett v. Ricketts, 397 F. Supp. 1025 (N.D.
Ga. 1975). Like Miller, Emmett is not binding authority in
this circuit. Further, district court decisions such as Emmett
cannot clearly establish a constitutional right because "while
they bind the parties by virtue of the doctrine of res
judicata, they are not authoritative as precedent and
therefore do not establish the duties of nonparties."
Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995);
see_also D'Aguanno v. Gallagher, 50 F.3d 877, 880 n.5
(11th Cir. 1995). In addition to lacking precedential force,
district court opinions from other jurisdictions function as
especially poor sources of law to demonstrate that a right
was Clearly established. Police officers in Jacksonville,
North Carolina can hardly be expected to keep abreast of
legal developments in the Northern District of Georgia to
determine the scope of their constitutional obligations.
i
A word about the dissenting opinions. The three
dissenting opinions together illustrate why the qualified
immunity defense had to be adopted in the first place. The
dissents would impose novel theories of civil liability on
App 70
a
officers in the absence of notice -- precisely the danger
against which the defense of qualified immunity was
designed to guard. See Davis, 468 U.S. at 195. The
dissents somehow seize on vague proscriptions of "unfair"
police conduct as determinative guideposts by which
Collins and Shingleton should have measured their conduct.
See post at 19 (Murnaghan, J., dissenting) (explaining that
police's duty is "to protect every one of us from injustice"
and that the officers’ actions "were manifestly unfair"). The
dissents also introduce post-1982 caselaw as support for a
rule of law that officers should have anticipated in 1982.
See post at 24 (Ervin, J., dissenting) (citing 1989 case);
post at 29 (Hamilton, J., dissenting) (citing 1989, 1992, and
1996 cases). Furthermore, the dissents point to decisions
outside this circuit as beacons of light that should have been
recognized from afar by the North Carolina police officers
in this case. See post at 20 (Murnaghan, J., dissenting)
(citing decisions from the D.C. Circuit and the Northern
District of Georgia).
In sum, the dissents would fail to provide even the
rudiments of notice to those whose conduct they now rush
to condemn. One even goes so far as to say that "[iJt is
irrelevant whether the officers would have been on notice in
1982 that a panel of this court had held other officers liable
for a Brady violation under§ 1983" because "the underlying
constitutional or statutory right upon which the § 1983
action is premised" can provide the needed guidance. See
post at 25 (Ervin, J., dissenting). Yet it is precisely the
bare-boned vagueness of constitutional phraseology that
cannot guide the qualified immunity analysis. Anderson in
fact emphasized as much in rejecting “the right to due
process of law" as a helpful guide. See 483 U.S. at 639
("[I}f the test of ‘clearly established law' were to be applied
at this level of generality, it would bear no relationship to
the objective legal reasonableness’ that is the touchstone of
Harlow."). The hope for professional police work lies in
App. 71
the guidance provided by clearly communicated rules, not
in the unbounded approaches adopted by the various
dissenting opinions.
This case involves an attempted end run around the
absolute immunity protecting the prosecutor -- a prosecutor
who knew not only of the hypnosis of witnesses but also of
the various identification procedures the officers employed.
Blocked from pursuing a civil damages remedy against a
prosecutor who admitted receiving all the evidence he
requested from the investigating police officers, Jean now
tries to shift the blame to the officers themselves. Although
this circuit now recognizes that police too may be subject to
Brady duties, it had not yet recognized such duties in 1982.
And it would be wrong to allow the thwarting fact of
prosecutorial immunity to force this case into an altogether
different mold -- one where the police officers are subject to-
constitutional duties that in fact materialized only after
Jean's prosecution.
In conclusion, the relevant sources of law do not
clearly establish that in 1982 police themselves labored
under federal constitutional duties with respect to the
disclosure of evidence to the prosecution or that such
duties, if any, included a responsibility to disclose evidence
relating to witnesses’ hypnoses. In holding that these
officers are entitled to qualified immunity, we do not
diminish the seriousness of Jean's incarceration. But this
court already has granted his petition for a writ of habeas
corpus. Jean v. Rice, 945 F.2d 82. To go further, however,
and impose money damages against Shingleton and Collins
would blindside these defendants and make them into
scapegoats with the aid of many years of hindsight. It
would also violate the cardinal principle of qualified
immunity -- that officials may not later be subject to
monetary liability when their behavior at the time did not
violate any clearly established constitutional right.
App. 72
feria a esti heat aaah any ROE
IV.
For the foregoing reasons, we affirm the judgment
of the district court.
AFFIRMED
MURNAGHAN, Circuit Judge, dissenting:
The substance of the point which I dissent to
emphasize has been made more politely by Judge Ervin in
his dissent. He has refrained, because he is more of-a
gentleman than I, from using some clear and simple words
that judges should abide by. Judges should unflinchingly
see that fairness prevails, particularly in the conduct of
police. The overwhelming duty of officers sworn to
enforce the law is to protect every one of us from injustice.
The proper responsibility of the police is to identify, indict,
convict and imprison actual criminals; the actions of
Officers Shingleton and Collins, which led to the wrongful
conviction and lengthy imprisonment of Lesly Jean, were
manifestly unfair.
The majority opinion marks an_ unmistakable
movement in this circuit to a rule of actually unqualified,
though technically called qualified, immunity for police
officers. The means by which this has been accomplished
while paying lip service to qualified immunity principles
are three-fold: emphasis upon the special exigencies of
police work with its unique demands for spontaneous,
unreflective action; a perceptible lowering of the objective
reasonableness standard for assessing police awareness and
conduct in particular cases; and, closely related to the
latter, a dramatic narrowing of that law which, for police
officers, will be considered well-settled at the critical time.
The last of these is the principal vehicle by which the
App. 73
majority finds qualified immunity here. Judge Ervin's
dissent persuasively demonstrates the error in that analysis.
The majority holds today that “[o]rdinarily, . . .
courts in this circuit need not look beyond the decisions of
the Supreme Court, this court of appeals, and the highest
court of the state in which the case arose to determine
whether a right was clearly established at a particular time."
Maj. op. at 13. I disagree that such an approach should
inevitably be applied, and would consider pertinent
authority from other jurisdictions in determining whether a
constitutional right was clearly established at the time of the
alleged violation. See, e.g., United States v. Bryant, 439
F.2d 642, 650 (D.C. Cir. 1971) (holding that "[t]he duty of
disclosure affects not only the prosecutor, but the
Government as a whole, including its investigative
agencies"); Emmett v. Ricketts, 397 F. Supp. 1025, 1040-
42 (N.D. Ga. 1975) (noting that Barbee v. Warden, 331
F.2d 842 (4th Cir. 1964), was “particularly apropos” in
holding that a hypnotist hired by the prosecutor had a duty
to disclose records of hypnosis). I emphasize, moreover,
that a right may be clearly established even though no prior
case exists involving the “very action" challenged as
unlawful, see Anderson v. Creighton, 483 U.S. 635, 640
(1987), a rule we often repeat but only rarely apply.
Diligent and honest pursuit of lawbreakers by police
officers is the rule, and we should require no less. That
duty undoubtedly includes the obligation to furnish the
prosecutor with exculpatory evidence, and __ that
responsibility was clearly established in 1982. I dissent.
App. 74
ERVIN, Circuit Judge, dissenting:
The majority holds that Lesly Jean had no clearly
established constitutional right to the delivery of material,
exculpatory evidence from Officers Collins and Shingleton
("the officers") to the prosecutor during his 1982 trial. For
the reasons below, I find the majority's absolute immunity
analysis unnecessary and its discussion of the qualified
immunity question unpersuasive. Therefore, I respectfully
dissent.
I.
The majority begins its analysis with an extended
discussion of the officers’ absolute immunity from § 1983
liability on a theory, purportedly advanced by Jean, that the
officers were under a duty to deliver material, exculpatory
evidence directly to Jean's defense counsel. The majority
strains to point to evidence of this theory in the record
because the argument is nowhere to be found in Jean's brief
on appeal. In fact, Jean clearly argues that the constitutional
violation at issue is the officers’ failure to disclose evidence
to the prosecutor, and not directly to defense counsel. In
Jean's brief, the "Statement of Issue Presented for Review"
identifies the constitutional right at issue as "a law
enforcement officer's obligation to disclose exculpatory
evidence to prosecutors." Appellant's Br. at 1 (emphasis
added). In his "Summary of the Argument," Jean mentions
four times, in one and one-half pages, that the officers were
under an obligation to disclose evidence to the prosecutor.
See Appellant's Br. at 23-24. So far as I can determine
from the record, Jean has never actively pursued a theory
of liability for the officers' failure to disclose evidence
directly to defense counsel. For that reason, there has been
no discussion of absolute immunity in any of the previous
proceedings in this case.
App. 75
This is significant because immunity is an
affirmative defense that must be pled lest it be waived. See
Gomez v. Toledo, 446 U.S. 635, 640 (1980); Wilkes v.
Young, 28 F.3d 1362, 1377 n.12 (4th Cir. 1994) (Phillips,
J., dissenting); Buenrostro v. Collazo, 973 F.2d 39, 44 (1*
Cir. 1992). While the officers’ answer to the complaint
raises the defense of "qualified good faith immunity," see
J.A. at 39, it says nothing of absolute immunity. On this
very question, the Sixth Circuit has held that a defendant
waives his right to absolute immunity if he raises only
qualified immunity in his answer, motion to dismiss, or
summary judgment motion. See Collyer v. Darling , 98
F.3d°211, 222 (6th Cir. 1996) ("Although [the defendant]
did raise the affirmative defense of qualified immunity, an
absolute immunity determination involves an_ entirely
different analysis. Given that the defense of absolute
immunity was not affirmatively pleaded or argued . . . and
in light of the significant distinctions between qualified and
absolute immunity claims, this defense was affirmatively
waived .. . ."), cert. denied, 117 S. Ct. 2439 (1997).
If, as the majority believes, "Collins and Shingleton
clearly understood Jean's complaint to allege their failure to
disclose evidence directly to Jean's defense counsel," maj.
op. at 6, then the officers were obliged to raise absolute
immunity as an affirmative defense in their answer to that
complaint or, at the very least, in their memorandum in
support of their motion for summary judgment. While I do
not believe that Jean has proceeded on a theory that police
officers must disclose evidence directly to defense counsel,
if the majority is correct that he has, then the officers have
waived any claim of absolute immunity that may have been
available.
I also would note that the majority's discourse on
absoiute immunity does nothing to call into question our
cases in which police officers have been held liable for
money damages for failure to turn over material,
App. 76
exculpatory evidence to the prosecutor. See Taylor v.
Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996); Carter v.
Burch, 34 F.3d 257, 263-64 (4th Cir. 1994). The majority's
discussion of absolute immunity merely clarifies that, as a
matter of theory, a police officer may be liable for a Brady
violation under § 1983, not because he is under a duty to
disclose evidence directly to defense counsel, but rather,
because his duty is to deliver such information to the
prosecutor.
I.
Having toppled its straw man, the majority proceeds
to answer the real question raised by this case -- whether
the officers are entitled to qualified immunity on Jean's
theory that they were under a duty to deliver material,
exculpatory evidence to the prosecutor. In section III of its
opinion, the majority holds that the officers are entitled to
qualified immunity because it was not clearly established in
1982 that the officers violated the law in failing to hand
over material, exculpatory evidence to the prosecutor. For
the reasons I expressed in my opinion for the panel in this
case, see Jean v. Collins, 107 F.3d 1111 (4th Cir. 1997),
vacated, (Sep. 19, 1997), and for those articulated byJudge
Hamilton in his concurring opinion, see Jean, 107 F.3d
1118-20, I disagree with the judgment of the majority of the
court. Aside from those general arguments, however, I
wish to point out my specific disagreements with the
reasoning in the majority opinion.
In order to do this, it is helpful to recognize exactly
what requests for evidence were made by defense counsel in
this case. Defense counsel in fact made two requests for
evidence. The first was a generalized motion for discovery
that included the following requests: 1) "[t]o disclose the
facts and circumstances surrounding any . . . pretrial
identification;" and 2) "[t]o permit the defendant to inspect
App. 77
and copy . . . mechanical or electronic recordings, tangible
objects, or copies or portions thereof." Jean v. Rice, 945
F.2d 82, 85 (4th Cir. 1991).
The second request for evidence came after trial had
already begun, when defense counsel learned for the first
time, during the State's direct examination of the victim,
that both she and Officer Shingleton had been hypnotized
by Collins. At that point, defense counsel renewed their
motion for discovery and asked the prosecution for any
tapes or notes that were made during the hypnoses. The
panel that granted Jean's habeas petition recognized this
second request, see Jean, 945 F.2d at 85 ("After learning of
the hypnosis, counsel requested any recordings that might
exist -- inexplicably the state still did not provide its records
or tapes."), as does the majority in this case, see maj. op. at
5 ("The prosecutor also did not disclose the recordings of
the hypnotic sessions, despite general pretrial discovery
requests and a more specific request for such recordings by
defense attorneys at trial."). Defense counsel not only made
a "more" specific request for evidence, they could not have
been any more specific: defense counsel requested an
audiotape or notes from the hypnoses, if any such tape or
notes existed. We know now that the officers created an
audiotape and took notes during the hypnoses, that this
evidence was in the officers' possession, and yet it was not
given to the prosecutor.
I point this out to indicate how the majority's
discussion in page 16 of its opinion is not dispositive of the
question on appeal. As to the first, generalized request for
discovery, the majority argues that because of the nature of
the evidence in question (hypnosis evidence), the officers
may Or may not have known that such evidence would fall
under the rubric of material, exculpatory evidence. But as
to defense counsel's second request, specifically asking for
any existing tapes or notes of the hypnoses, the nature of
the evidence drops out of consideration.
App. 78
Surely the majority would agree that, as a general
matter, Jean had a clearly established right in 1982 to
material, exculpatory evidence that had been specifically
identified and requested by his defense counsel. In light of
defense counsel's specific request for tapes or notes from
the hypnoses, the nature of the evidence is irrelevant to the
Brady question. Defense counsel requested any audiotape or
notes that might exist regarding hypnosis; those tapes and
notes existed, the officers knew they existed and were
within their control, and yet the officers did not turn them
Over to the prosecutor.
Stripped of its surplusage, then, the majority's
holding in this case rests on its argument that in 1982 a
reasonable police officer would not have known that in
concealing evidence from the prosecutor he violated the
constitutional rights of a criminal defendant. The majority
concedes that recent precedent in this circuit recognizes that
such police misconduct can be a violation of a defendant's
constitutional rights. See maj. op. at 15 n3 (citing
Goodwin v. Metts, 885 F.2d 157, 162-63 (4th Cir. 1989),
overruled in part by Albright v. Oliver, 510 U.S. 266
(1994)). The majority's argument is simply that while this
right is now clearly established, it was not in 1982.
Although the majority cites and recognizes this court's
decision in Goodwin v. Metts, the majority fails to
appreciate its significance.
In Goodwin, the court confronted the identical
question posed in this case: whether a police officer should
receive qualified immunity in a § 1983 action for failing to
disclose exculpatory information in his possession to the
prosecutor. The importance of Goodwin is that the conduct
at issue in that case occurred in 1983, the year after the ;
events at issue in this case. Goodwin held that a police
officer was not entitled to qualified immunity for failure to
turn over exculpatory evidence to a prosecutor because such
conduct violated a constitutional right that was Clearly
App. 79 -
established in 1983: "A reasonable officer would have
known that a prosecution carried out without . . . disclosure
of exculpatory information would violate the constitutional
rights of the criminal defendants." Goodwin, 885 F.2d at
164. Since the majority does not call Goodwin into
question, I assume the majority would agree that had the
events at issue in this case taken place in 1983, the illegality
of the officers' conduct would have been clearly
established.
The majority's analysis of this issue reveals a
misunderstanding about my use of Goodwin, see maj. op.
at 17, as well as the nature of qualified immunity. A right
does not become clearly established when a plaintiff
successfully brings an action to enforce it under § 1983, as
the majority apparently believes. See maj. op. at 15 ("[T]he
officers had no earthly idea that they would be subject to a
federal cause of action for money damages .. . ."); maj.
op. at 15 n.3 ("Goodwin now provide[s] notice to police
officers that they can be subject to monetary damages
under section 1983 .. .."). It is irrelevant whether the
officers would have been on notice in 1982 that a panel of
this court had held other officers liable for a Brady
violation under § 1983. The question is whether the
underlying constitutional or statutory right upon which the
§ 1983 action is premised was clearly established at the
time the officers acted. Goodwin is clear in its holding that
the constitutional right at issue in this case was clearly
established in 1983, one year after the officers' conduct
here.
In order to go along with the majority's position,
then, one must assume that a case was decided between
1982 and 1983 which clearly established that police officers
violate the constitutional rights of a criminal defendant
when they conceal material, exculpatory evidence from the
prosecutor. This is the only way to reconcile the majority's
opinion, holding that "police officers who in 1982 failed to
App. 80
give [exculpatory] evidence to prosecutors did not
themselves violate a clearly established constitutional
right," see maj. op. at 15, and Goodwin, holding that police
officers who failed to perform the same duty in 1983 did
violate a clearly established right. Of course, no such case
exists. A criminal defendant's constitutional right to have
the police turn over material, exculpatory evidence to the
prosecutor has been clearly established in this circuit since
at least 1964.
[I]t makes no difference if the
withholding[of exculpatory evidence] 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. If the police allow the State's
Attorney to produce evidence pointing to
guilt without informing him of other
evidence in their possession which
contradicts this inference, state officers are
practicing deception not only on the State's
Attorney but on the court and the defendant.
Barbee _v. Warden, Md. Penitentiary, 331 F.2d 842, 846
(4th Cir. 1964) (emphasis added) (footnote omitted).
The majority believes that, in 1982, the law of this
circuit held that if a police officer withheld exculpatory
evidence from a criminal defendant, this misconduct was
not a direct constitutional violation, but rather, was
"imputed to" the prosecutor. The majority's "imputed to"
theory is an elaborate legal fiction that emanates from a
footnote in our decision in United States v. Sutton, 542
F.2d 1239, 1241 n.2 (4th Cir. 1976). The majority creates
this "imputed to" legal fiction based on a single footnote in
Sutton, ignoring this court's clear holdings in Barbee and
App. 81
its progeny. The majority ignores Barbee's plain statement
that the police misconduct at issue in this case practices a
deception "not only" on the prosecutor, but on the court
"and the defendant." See Barbee, 331 F.2d at 846. The
most logical and consistent interpretation of this court's
precedent suggests that Jean's right to material, exculpatory
evidence has been clearly established since our decision in
Barbee.
More importantly, if a police officer's misconduct
was "imputed to" the prosecutor in 1982, the majority fails
to explain at what point since 1982 we rejected the
"imputed to" analysis. The majority recognizes that our
circuit has recently upheld § 1983 judgments against police
officers who withheld material, exculpatory evidence from
a criminal defendant. See maj. op. at 15 n.3. This means
that a police officer's withholding of exculpatory evidence
is no longer "imputed to" the prosecution for purposes of
holding an officer liable under § 1983. The majority points
to no authority to explain how this kind of police
misconduct was "imputed to" the prosecutor in 1982, but is
now its own direct violation of a criminal defendant's
constitutional rights.
The simple answer here is that no authority exists io
explain this change because the change never occurred in
the first place. At least since Barbee in 1964, a reasonable
police officer in North Carolina would have known that a
criminal defendant has a clearly established right to have
officers deliver material, exculpatory evidence to
prosecutors. For that reason, the officers in this case are
not entitled to qualified immunity for their misconduct.
App. 82
I.
According to the majority, holding Collins and
Shingleton liable for the violation of Jean's constitutional
rights would make them scapegoats. Nothing could be
further from the truth-- the real scapegoat in this matter is
Lesly Jean. Jean spent nine years in prison for a crime he
did not commit because police officers used "hypnosis" to
alter the description of the perpetrator of this crime so that
it matched Jean's appearance and his clothes.
The officers in this case are not scapegoats. To the
contrary, they are without doubt responsible for the
mockery of justice that resulted in Jean's nine-year
confinement. As I have argued, the question before us is
whether a reasonable police officer would have known in
1982 that concealing evidence from the prosecutor violated
the constitutional rights of a criminal defendant. While
qualified immunity should be invoked in every case in
which an officer's conduct was arguably within the bounds
of the law, in this case no such argument can be made. The
officers' conduct in the prosecution of Jean was
reprehensible and a total betrayal of the trust that society
places in those whom it empowers to enforce the law. That
Jean will not be allowed the opportunity to present his
claim to a jury only perpetuates the injustices that have
befallen him in the legal process, and
I respectfully dissent. Judges Murnaghan, Hamilton,
Michael, and Motz join in this dissent.
HAMILTON, Circuit Judge, dissenting:
The major theme of the majority's opinion is "No
Case on Point!" That is, the majority leaves no doubt that,
to avoid the qualified immunity gauntlet, a § 1983 plaintiff
must demonstrate that in a prior case decided by the
App. 83
Supreme Court, this court, or the highest court of the state
in which the case arose, the conduct engaged in by the
government official was held to be constitutionally
unlawful. The "No Case on Point" doctrine makes a
-mockery of the Supreme Court's decision in Anderson v.
Creighton, 483 U.S. 635 (1987). In Anderson, the Supreme
Court explicitly held that a § 1983 plaintiff need not show
that in a prior case the government official's actions were
held to be constitutionally unlawful. Id. at 640. Because the
majority fails to follow Anderson, I dissent.
Qualified immunity turns on whether, at the time of
the government official's conduct, the actions of the
government official violated "clearly established statutory
or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The "contours of the right must be sufficiently clear
that a reasonable official would understand what he is doing
violates that right." Anderson, 483 U.S. at 640. In other
words, the government official's action in question need not
have previously been found to be unlawful, see id.; rather,
"in light of pre-existing law the unlawfulness must be
apparent," id.
At the time of Shingleton and Collins’ actions in
1982, our case law clearly established that a defendant's
due process rights were violated when the police concealed
material exculpatory evidence. See Barbee v. Warden, 331
F.2d 842, 846 (4th Cir. 1964); see also Boone v. Paderick,
541 F.2d 447, 450-51 (4th Cir. 1976) (holding that duty to
disclose not "neutralized because [evidence] was in the
hands of the police rather than the prosecutor"). As we
noted in Barbee:
App. 84
Failure of the police to reveal such material
evidence in their possession is equally
harmful to a defendant whether the
information is purposefully, or negligently,
withheld. And 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. If the
police allow the State's Attorney to produce
evidence pointing to guilt without ever
informing him of other evidence in their
possession which contradicts this inference,
State officers are practicing deception not
only on the State's Attorney but on the court
and the defendant... .
331 F.2d at 846 (footnote omitted).
In holding that Shingleton and Collins are entitled to
qualified immunity, the majority first posits that a
re
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.