221 F.3d 656 (4th Cir. 2000), 95-7694, Jean v Collins

Docket Nº:95-7694
Citation:221 F.3d 656
Case Date:July 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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221 F.3d 656 (4th Cir. 2000)




No. 95-7694

United States Court of Appeals, Fourth Circuit

July 31, 2000

Argued: October 25, 1999

As Amended August 11, 2000.

On Remand from the United States Supreme Court. (S. Ct. No. 98-980)

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[Copyrighted Material Omitted]

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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.

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.


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.


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 Lesly 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 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.


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, 143 L.Ed.2d 399

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(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.1 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." 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. United States, 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 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 (1st 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 (5th Cir. 1988); Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992); Jones v. City of Chicago, 856 F.2d 985, 993-96 (7th 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

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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 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 v. 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-sizefits-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...

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