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Ninth Circuit Nos. 09-55334, 09-55345, 09-55346 (consolidated)

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTHONY W. SMITH and TERESA SMITH,

Plaintiffs - Appellants,
v.
ROBERT ALMADA,

Defendant - Appellee.

Brief of Amici Curiae National Police Accountability Project
and Human Rights Defense Center To File Brief In Support of Plaintiff-Appellant’s
Petition for Rehearing En Banc
Michael Avery
SUFFOLK LAW SCHOOL
120 Tremont Street
Boston, Massachusetts 02108
(617) 573-8551
John Burton
THE LAW OFFICES OF JOHN BURTON
65 North Raymond Avenue, Suite 300
Pasadena, California 91103
(626) 449-8300

Counsel for Amici Curiae National Police Accountability Project
and Human Rights Defense Center In Support of Plaintiffs-Appellees

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CORPORATE DISCLOSURE STATEMENT
Amici curiae are National Police Accountability Project (NPAP) and Human
Rights Defense Center (HRDC). Amici curiae are either not corporate parties or are
corporate parties that do not have any parent corporations, and no public company
owns 10% or more of their stock.

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TABLE OF CONTENTS
Contents

Page

Corporate Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Interests of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.

The Failure to Provide Exculpatory Evidence
to a Person Charged with a Crime Violates
That Individual’s Rights to Procedural Due Process of Law. . . . . . . . . . . . . . . . 3

II.

Whether a Failure to Provide Exculpatory Evidence to a
Criminal Defendant in a Given Situation Violates
Procedural Due Process must Be Determined by the Balancing Test
of Mathews v. Eldridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

III.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Certificate of Compliance with FRAP 32(a)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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TABLE OF AUTHORITIES
Authority

Page(s)

Ake v. Oklahoma,

470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Albright v. Oliver,

510 U.S. 266 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,6

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

District Attorney’s Office for Third Judicial District v. Osborne,

129 S. Ct. 2308 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Flores v. Satz,

137 F.3d 1275 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gerstein v. Pugh,

420 U.S. 103 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Haupt v. Dillard,

17 F.3d 285 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jones v. City of Chicago,

856 F.2d 985 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,14

Lee v. City of Los Angeles,

250 F.3d 668 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Little v. Streater,

452 U.S. 1 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mathews v. Eldridge,

424 U.S. 319 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

McCann v. Mangialardi,

337 F.3d 782 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,9

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Authority

ID: 7544620 DktEntry: 36-2

Page(s)

McCune v. City of Grand Rapids,

842 F.2d 903 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Moldowan v. City of Warren,

578 F.3d 351 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Monell v. Department of Social Services,

436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Morgan v. Gertz,

166 F.3d 1307 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Reid v. State of New Hampshire,

56 F.3d 332 (1st Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Russo v. City of Bridgeport,

479 F.3d 196 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Sanders v. English,

950 F.2d 1152 (5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,14

Tennison v. City and County of San Francisco,

570 F.3d 1078 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Gamez-Orduno,

235 F.3d 453 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,15

United States v. Marion,

404 U.S. 307 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Ruiz,

536 U.S. 622 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,8,9

White v. McKinley,

519 F.3d 806 (8th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Other Authorities

Page(s)

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Michael Avery, Paying for Silence: the Liability of Police Officers

Under Section 1983 For Suppressing Exculpatory Evidence,

13 Temple Pol. & Civ. Rts. Law Rev. 1 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 4

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INTERESTS OF AMICI CURIAE
The National Police Accountability Project (NPAP) was founded in 1999 by
members of the National Lawyers Guild to address allegations of misconduct by law
enforcement and corrections officers by coordinating and assisting civil rights lawyers.
The project presently has more than four hundred attorney members throughout the
United States. NPAP provides training and support for attorneys and other legal
workers, public education and information on issues related to misconduct and
accountability, and resources for non-profit organizations and community groups
involved with victims of law enforcement misconduct. NPAP also supports legislative
efforts aimed at increasing accountability, and appears as amicus curiae in cases, such as
this one, which present issues of particular importance for the clients of its lawyers, who
are sometimes incarcerated and prosecuted as a result of the suppression of exculpatory
evidence by police officers or detectives.
The Human Rights Defense Center (HRDC) is a Washington State non-profit,
charitable corporation based in Vermont that publishes a nationally distributed
monthly journal called Prison Legal News (PLN). Since 1990, PLN has reported on
news, recent court decisions, and other developments relating to the civil and human
rights of prisoners in the United States and abroad. PLN has the most comprehensive
coverage of detention facility litigation of any publication. In addition to reporting on
the human and civil rights of prisoners, PLN also reports on the rights of crime victims,
prison and jail employees, and prison and jail visitors. PLN has approximately 6,800
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subscribers in all fifty states and abroad and eight times as many readers.
Approximately sixty-five percent of PLN subscribers are state and federal
prisoners. The remainder are attorneys, judges, advocates, journalists, academics and
concerned citizens. PLN’s website, www.prisonlegalnews.org, receives approximately
100,000 visitors per month.
In addition to publishing PLN and non-fiction reference books, HRDC has
regularly filed litigation under the First Amendment in federal courts nationwide,
challenging prison officials who censor PLN, seeking public records from government
agencies and also providing representation in select prisoner cases. HRDC is concerned
with the incarceration and prosecution of pretrial detainees based on police officers and
detectives suppressing or failing to disclose exculpatory information to the prosecuting
authorities.

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I.

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THE FAILURE TO PROVIDE EXCULPATORY EVIDENCE TO A PERSON
CHARGED WITH A CRIME VIOLATES THAT INDIVIDUAL’S RIGHTS
TO PROCEDURAL DUE PROCESS OF LAW.
The 2-1 panel opinion and vigorous dissent in this case raise the important

question of whether a criminal defendant deprived of his liberty because a police officer
deliberately suppressed or failed to provide the prosecutor with exculpatory evidence is
entitled to bring a claim as a plaintiff for a violation of his constitutional rights under
42 U.S.C. § 1983, where he was never convicted of the criminal charges against him.
To answer this question, it is imperative to begin with a clear identification of what
constitutional right is violated by the officer’s failure to disclose exculpatory evidence to
the prosecutor. As the Supreme Court explained in Albright v. Oliver, 510 U.S. 266,
271 (1994), “Section 1983 ‘is not itself a source of substantive rights,’ but merely
provides ‘a method for vindicating federal rights elsewhere conferred.’ The first step in
any such claim is to identify the specific constitutional right allegedly infringed.”
(Citations omitted).
Despite these clear instructions from the Supreme Court that the analysis of
Section 1983 claims must begin with identification of the specific constitutional right
allegedly infringed, the lower federal courts have frequently not identified with any
precision what constitutional right is violated when police officers and detectives fail to
furnish prosecutors with exculpatory evidence in criminal cases. The fact that the panel
did not do so in this case fatally compromised its analysis and led to the doctrinally
incorrect conclusion that there is no such Section 1983 claim for a person who was held
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in jail as a result of the failure to disclose exculpatory evidence, but then was ultimately
acquitted. Amici therefore request this Court to order rehearing en banc in order to
reconsider this significant constitutional issue.
Although the Supreme Court has never considered the substantive scope of a
Section 1983 claim for the failure to disclose exculpatory evidence, it is clear from its
decisions following Brady v. Maryland, 373 U.S. 83 (1963), that such a failure violates
the procedural due process rights of a criminal defendant, who in these cases is the civil
rights plaintiff.1 Although Brady identified the suppression of exculpatory evidence
simply as a “due process” violation, id. at 87, without specifying whether substantive or
procedural due process was at stake, subsequent cases have clarified the issue. The right
of a criminal defendant to receive exculpatory evidence derives from concerns about the
fairness of the procedures by which a defendant may be prosecuted and convicted, not
from concerns about whether there is sufficient governmental interest in punishing
convicted criminals.
Procedural due process was identified as the relevant constitutional right at stake
in District Attorney’s Office for Third Judicial District v. Osborne, 129 S. Ct. 2308
(2009), where the Court began its analysis of pre- and post-conviction entitlements to

1

This analysis is set forth in greater detail in Michael Avery, Paying for Silence:

the Liability of Police Officers Under Section 1983 For Suppressing Exculpatory
Evidence, 13 Temple Pol. & Civ. Rts. Law Rev. 1, 24-29 (2003). The article

comprehensively explores the issues raised by section 1983 claims for the failure by
police officers to disclose exculpatory evidence to prosecutors.
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exculpatory evidence by noting that the Due Process Clause of the Fourteenth
Amendment “imposes procedural limitations on a State’s power to take away protected
entitlements.” Id. at 2319. The Osborne Court’s discussion of a potential right to
post-conviction access to DNA evidence is framed in terms of what procedures are
required by the Constitution. Chief Justice Roberts specifically distinguished the
Court’s conclusion that the Due Process Clause does not require post-conviction access
to DNA evidence from “the principles of Brady v. Maryland,” where the Court “held
that due process requires a prosecutor to disclose material exculpatory evidence to the
defendant before trial.” Id.
That the right to be furnished exculpatory evidence is a procedural due process
right was most clearly established by United States v. Ruiz, 536 U.S. 622 (2002). The
Court employed the traditional procedural due process analysis of Mathews v. Eldridge,
424 U.S. 319 (1976), holding that a prosecutor has no constitutional duty to furnish
material that might impeach government witnesses before entering into a plea
agreement, or before the defendant pleas guilty.2 The Court identified the following
factors as determining the due process issue: “(1) the nature of the private interest at
stake . . . , (2) the value of the additional safeguard, and (3) the adverse impact of the
requirement upon the Government’s interests.” Mathews, 536 U.S. at 631.

2

As authority for the appropriate test, the Court cited Ake v. Oklahoma, 470
U.S. 68 (1985) (procedural due process requires state to provide psychiatrist to criminal
defendant who makes a showing that his sanity at time of offense is likely to be a
significant factor at trial). Ake in turn relied on Mathews. 470 U.S. at 77.
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For other Supreme Court decisions indicating that Brady involves a procedural
due process right, see Albright v. Oliver (Chief Justice Rehnquist, joined by Justices
O’Connor, Scalia and Ginsburg, suggesting that the Brady line of cases protected
procedural due process rights), 510 U.S. at 273, n. 6, and Little v. Streater, 452 U.S. 1
(1981) (violation of procedural due process for state to refuse to bear cost of blood
grouping tests for indigent defendant in civil paternity action brought by state welfare
department). See also, e.g.,White v. McKinley, 519 F.3d 806, 813-14 (8th Cir. 2008)
(failure to disclose exculpatory evidence analyzed as procedural due process claim);

Moldowan v. City of Warren, 578 F.3d 351, 377, n. 6 (6th Cir. 2009) (failure to
furnish exculpatory evidence is a procedural due process violation); McCann v.

Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003) (failure to disclose exculpatory
evidence is a procedural due process violation); Reid v. State of New Hampshire, 56
F.3d 332, 341 (1st Cir. 1995) (because New Hampshire law provided no remedy for
procedural due process violation of failing to disclose exculpatory evidence, plaintiff had
federal claim under Section 1983).

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II.

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WHETHER A FAILURE TO PROVIDE EXCULPATORY EVIDENCE TO A
CRIMINAL DEFENDANT IN A GIVEN SITUATION VIOLATES
PROCEDURAL DUE PROCESS MUST BE DETERMINED BY THE
BALANCING TEST OF MATHEWS V. ELDRIDGE.
The identification of the failure to provide exculpatory evidence as a procedural

due process violation dictates the analysis that must be conduct to determine whether
such a violation has occurred under any given set of circumstances. That analysis was
set forth by the Supreme Court in Mathews v. Eldridge, as follows:
[O]ur prior decisions indicate that identification of the specific dictates of
due process generally requires consideration of three distinct factors: First,
the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
424 U.S. at 334-35.
In Brady, the Supreme Court determined that it always violates this procedural
due process right when the government withholds material exculpatory evidence and a
criminal defendant is convicted. In effect there is a standing rule that the liberty
interest that is dispossessed by a conviction outweighs the government’s interest in
suppressing exculpatory evidence, and the materiality requirement guarantees that the
procedural safeguard of furnishing such evidence is justified by the value it has in
avoiding erroneous deprivations.
The Supreme Court has had only one opportunity to determine whether
procedural due process is violated where non-disclosure of exculpatory evidence leads to
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something other than a conviction following a trial, namely, United States v. Ruiz,
discussed in Section I. The question was whether it was necessary to disclose
information in the government’s possession that could have been used to impeach a
witness before the witness entered a plea of guilty. The Court first determined that the
defendant’s ignorance of the impeaching information did not prohibit him from making
a voluntary waiver of his right to stand trial or to waive the constitutional rights he
would have had at trial. It then turned to the procedural due process question and
conducted a Mathews v. Eldridge analysis. Balancing those factors, the Court reasoned
that impeachment information would not provide great value as a safeguard against
innocent people pleading guilty to crimes, but requiring the government to furnish it
prior to a guilty pleads could seriously interfere with a number of government
interests.3 Significantly, although it would have resolved the case, the Court did not
rule that the “fair trial” protection afforded by the Brady rule has no general application
in the pre-trial context, nor did it rule that a conviction after trial is required for a
violation of the right of access to exculpatory information.4

Id. at 631-32. The Court referred to the government’s interests in not disclosing their

3

witnesses prematurely: protecting ongoing investigations and avoiding exposing
witnesses to the risk of harm; protecting the identity of confidential sources; conserving
its resources rather than devoting substantial resources to preparation for pleas; and
relying heavily on plea bargaining to dispose of more than ninety percent of criminal
cases.
4

Only Justice Thomas would have held that the “fair trial” rights protected by Brady do
not apply at the plea stage. 536 U.S. at 634 (Thomas, J., concurring).
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Ruiz involved only impeachment information, which may tend to exculpate a
defendant but is generally not exonerating, and the Court had no occasion to rule with
respect to any failure to disclose exculpatory evidence which might establish actual
innocence. On the contrary, the Court noted that Ruiz’s plea agreement required the
government to disclose any evidence it might have of actual innocence. 536 U.S. at
631. In McCann v. Mangialardi, the Seventh Circuit concluded that Ruiz “strongly
suggests that a Brady-type disclosure might be required” prior to a plea where the
government has “exculpatory evidence of actual innocence.” 337 F.3d at 787.
The lower federal courts that have ruled that a Brady-based §1983 claim
requires a conviction after trial have not followed the Supreme Court’s methodology in

Ruiz. They have drawn hasty and mechanical conclusions from the “fair trial” language
in Brady and related cases, without conducting a careful analysis of the constitutional
violation as a procedural due process violation.5

5

This is true of the cases cited by the panel, which were brief opinions that
engaged in no serious analysis of the nature of the exculpatory evidence claim. Morgan
v. Gertz, 166 F.3d 1307 (10th Cir. 1999), mistakenly characterized the claim as one for
substantive due process, noted the Supreme Court’s unwillingness to expand the
doctrine of substantive due process and limited Brady to protecting only a fair trial.
Flores v. Satz, 137 F.3d 1275 (11th Cir. 1998), characterized Brady as providing only
protection from conviction at an unfair trial – a position rejected in this Circuit by
United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) – without
discussing what constitutional right was involved. McCune v. City of Grand Rapids,
842 F.2d 903 (6th Cir. 1988), merely asserted that because there was no conviction
plaintiff had suffered no injury, ignoring his lengthy pre-trial incarceration.
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Failures to disclose exculpatory evidence in situations where a criminal defendant
suffers a deprivation of a liberty interest other than as a result of conviction after trial
should be analyzed in the same way the Supreme Court analyzed the guilty plea in

Ruiz. That is, they should be analyzed as potential procedural due process violations
under the Mathews v. Eldridge factors.
This conclusion is required by the fact that the Constitution does not explicitly or
merely provide a right to a “fair trial.” The Fourteenth Amendment provides that the
state may not deprive a person of his liberty without due process of law. Our rich
procedural due-process jurisprudence establishes that no protected liberty interest may
be invaded without due process. In each case, of course, it is necessary to decide what
process is due, which is what the Mathews v. Eldridge factors determine. When a
criminal proceeding terminates without a conviction, whether police officers or
detectives are liable for deprivations of liberty caused by their failure to furnish
exculpatory evidence requires a particularized analysis, not the broad brush strokes of
the panel majority in this case. The failure of the lower federal courts to explicitly
employ a Mathews v. Eldridge analysis to determine when exculpatory evidence must
be furnished prior to trial has largely resulted from their failure to identify the right to
exculpatory evidence as a procedural due process right.
The liberty interests that are safeguarded by the disclosure of exculpatory
evidence to the prosecutor by the police go beyond assisting the defense in preparing for
a criminal trial. Significant liberty deprivations occur in advance of trial. See, e.g.,
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Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (After arrest, “the suspect’s need for a
neutral determination of probable cause increases significantly. The consequences of
prolonged detention may be more serious than the interference occasioned by arrest.
Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and
impair his family relationships . . . . Even pretrial release may be accompanied by
burdensome conditions that effect a significant restraint of liberty.”) (citations omitted);

United States v. Marion, 404 U.S. 307, 320 (1971) (“Arrest is a public act that may
seriously interfere with the defendant’s liberty, whether he is free on bail or not, and
that may disrupt his employment, drain his financial resources, curtail his associations,
subject him to public obloquy, and create anxiety in him, his family and his friends.”).
Whether the Constitution requires disclosure of exculpatory information prior to
trial depends upon the constitutional guarantees that are implicated at different stages
of a criminal proceeding. The analysis of what disclosure is constitutionally required
must relate to the purpose for which the evidence is material. One might have to
analyze, for example, whether the failure to disclose exculpatory information to the
prosecutor resulted in an erroneously high bail; or whether disclosure of exculpatory
information to a prosecutor might have caused a dismissal of a prosecution. In the
instant case, the question is in fact much closer to the ordinary Brady determination of
materiality – would disclosure of the exculpatory information have created a reasonable
probability that the result of the first trial might have been an acquittal rather than a
hung jury, as noted by Judge Nelson in her dissent from the panel’s decision.
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The appropriateness of a Mathews v. Eldridge procedural due process analysis
has been implicitly recognized in failure to disclose exculpatory evidence cases where
liability was found despite the absence of a criminal conviction. Thus in Sanders v.

English, 950 F.2d 1152, 1162 (5th Cir. 1992), the court emphasized that a jury could
find that if exculpatory evidence had been disclosed to the prosecutor, the plaintiff
would have been released from custody and the charges dropped earlier. In other
words, there was a risk of erroneous deprivation of liberty in the absence of the
procedural protection of furnishing exculpatory evidence, and providing the protection
would have had value as a safeguard. Similarly the analysis employed by Judge Posner
in Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988), was consistent with a
constitutional claim on a procedural due process theory. In discussing causation, the
court rejected the defense argument that the decision by the state’s attorney to
prosecute was the sole legal cause of plaintiff’s injuries. It concluded that the jury
could well have found that the defendants “systematically concealed from the
prosecutors, and misrepresented to them, facts highly material to—that is, facts likely
to influence—the decision whether to prosecute Jones and whether (that decision
having been made) to continue prosecuting him right up to and into the trial.” Id. at
993. The court concluded that had the prosecutors known of the exculpatory evidence
“they would almost certainly have dropped the charges against [plaintiff] before trial,”
and “he might never have been charged in the first place if the prosecutors had known
the facts militating against [plaintiff’s] guilt . . . .” Id. In procedural due process terms,
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this is equivalent to a conclusion that there was a significant “risk of an erroneous
deprivation” through the procedures that were used, and that there would be significant
“probable value . . . of additional or substitute procedural safeguards.” Mathews v.

Eldridge, 424 U.S. at 334-335. See also, e.g., Russo v. City of Bridgeport, 479 F.3d
196 (2d Cir. 2007) (officers may be held liable for failure to disclose exculpatory
evidence resulting in lengthy pretrial detention; court analyzes case under Fourth
Amendment).6

6

The Seventh Circuit in Jones not only affirmed liability against the individual
officers even though there was no criminal conviction, it determined that the City was
subject to liability under Monell v. Department of Social Services, 436 U.S. 658 (1978).
The custom in question is the maintenance of the “street files,”
police files withheld from the state’s attorney and therefore unavailable as
a source of exculpatory information that might induce him not to
prosecute or, failing that, would at least be available to defense counsel
under Brady v. Maryland . . . . [A]ttempts to circumvent the rule of that
case by retaining records in clandestine files deliberately concealed from
prosecutors and defense counsel cannot be tolerated. The City sensibly
does not attempt to defend such behavior in this court.
There is little doubt that the clandestine character of the street files
played a role in [plaintiff]’s misfortunes. . . . If the state’s attorney had had
access to them, he would have discovered memos . . . that would have
given any prosecutor pause. Alternatively, defense counsel would have
obtained them prior to trial and the trial would have ended even sooner
than it did.

Id. at 995-96. This passage makes no sense if, as the panel majority holds, a section
1983 claim based on a Brady violation requires proof that the detectives’ deliberate

suppression and concealment of exonerating evidence caused a wrongful conviction.
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The Ninth Circuit has cited both Sanders v. English and Jones v. City of Chicago
with approval on related grounds. Tennison v. City and County of San Francisco, 570
F.3d 1078, 1088 (9th Cir. 2009) (citing Jones on the state-of-mind requirement for a
civil Brady claim), Haupt v. Dillard, 17 F.3d 285, 290, n. 5 (9th Cir. 1994) (citing

Jones for the proposition that “[p]robable cause to continue a prosecution may
disappear with the discovery of new exculpatory evidence after the preliminary
hearing”), and Lee v. City of Los Angeles, 250 F.3d 668, 684 (9th Cir. 2001) (citing

Sanders as “holding that the failure to release a pretrial detainee after police officer
knew or should have known that plaintiff had been misidentified gives rise to cause of
action under § 1983”).
These cases demonstrate that the Mathews v. Eldridge framework is workable in
§1983 cases where the failure to disclose exculpatory evidence resulted in a deprivation
of liberty other than conviction after trial. Amici respectfully suggest that the panel’s
conclusion that Brady’s materiality standard is unworkable in the absence of a
conviction is a result of its failure to properly analyze the Brady right as a procedural
due process right. When properly analyzed, it becomes clear that cases involving the
question of whether exculpatory evidence was material to a conviction are merely one
example of erroneous decisions that might be made during a criminal prosecution as a
result of the suppression of exculpatory evidence. Other decisions, such as the setting of
bail, or a prosecutor’s decision to continue a prosecution, have to be analyzed on their
own terms.
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This analysis is consistent with the fact that in United States v. Gamez-Orduno,
235 F.3d 453 (9th Cir. 2000), this Court held that Brady obligations do not attach only
to the trial itself. “The suppression of material evidence helpful to the accused, whether
at trial or on a motion to suppress, violates due process if there is a reasonable
probability that, had the evidence been disclosed, the result of the proceeding would
have been different.” Id. at 461 (emphases added).
The panel’s concern that there might be a “potentially unlimited number” of
claims at other states of the criminal process is not realistic. There are in fact a relatively
small number of decision points in the criminal process that might be affected by the
failure to disclose exculpatory evidence and they are all capable of analysis under a

Mathews v. Eldridge framework. The legitimate claims that do exist, however, result
from the deprivation of protected liberty interests without procedural due process.
Whether such claims should be recognized has already been determined by the drafters
of the Fourteenth Amendment.
It should be emphasized that a cause of action for deprivations of liberty in
addition to convictions caused by the failure to disclose exculpatory evidence imposes
only a slight burden on police officers and detectives. All officers are required to do is
inform the public prosecutor of any exculpatory evidence they acquire in a timely
fashion so that the prosecutor may consider all the evidence when making decisions that
affect the liberty of the accused. Once officers and detectives do so, they have no
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exposure to liability based on the existence of exculpatory evidence. Determinations of
materiality, and the decision whether to advise the court or defense counsel of such
evidence remains in the hands of the prosecutor, who is protected by absolute immunity
for any errors in judgment.
III.

CONCLUSION
For the foregoing reasons, Amici request this Court to grant en banc rehearing of

this case and vacate the panel’s opinion. Allowing the panel decision to stand would
create a conflict in this Circuit and among the Circuits and would sow confusion in the
trial courts. Amici respectfully urge that the Court hold that the Fourteenth
Amendment’s guarantee of procedural due process requires recognition of Brady-based
§ 1983 claims against police officers and defendants who have withheld or concealed
exculpatory information from prosecutors and caused the wrongful imprisonment or
prosecution of a civil-rights plaintiff.
Respectfully submitted,
Dated: November 12, 2010
By:

/S/
Michael Avery
John Burton
Attorneys for Amici Curiae

National Police Accountability Project
and Human Rights Defense Center

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B)
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 3,682 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by the word
processing program Wordperfect. (The brief contains 4014 words including the
“Interests of Amici Curiae” section.) The length limit is 4,200 words, pursuant to Ninth
Cir. R. 29-2(c)(2).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been
prepared in a proportionally spaced typeface using Wordperfect with 14 point font in
American Garimond type style.

Dated: November 12, 2010

By:

/S/
John Burton
Attorneys for Amici Curiae

National Police Accountability Project
and Human Rights Defense Center

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CERTIFICATION OF ELECTRONIC SERVICE
SMITH V. ALMADA
Ninth Circuit Nos. 09-55334, 09-55345, 09-55346 (consolidated)
I, Sandy Leonardis, certify that on November 12, 2010, I electronically filed the
foregoing Brief of Amici Curiae National Police Accountability Project and Human
Rights Defense Center In Support of Plaintiffs-Appellants with the Clerk of the Court
for the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system. All participants in the case are registered CM/ECF users and will be
served by the appellate CM/ECF system.

Dated: November 12, 2010
/s/
Sandy Leonardis

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