In Carillo v. County , published August 26, 2015, the 9th Circuit Court of Appeals affirmed denial of summary judgment based on qualified immunity to police officers in two separate lawsuits brought by plaintiffs who were imprisoned on murder charges for decades before being released on habeas corpus petitions. In one case, police allegedly did not disclose evidence that a person other than the plaintiff had made a prior attempt on the victim's life, or that one of the eyewitnesses was uncertain of the description of the shooter. In another case, police allegedly did not disclose that a witness had picked multiple photos of the shooter, only to be dissuaded by the investigating officer, who then approved the picking of the plaintiff's photo; and that when the witness was planning to recant his testimony, an officer allegedly threatened him with negative consequences.
The 9th Circuit held that as of the time these events happened--1984 and 1991, respectively--the U.S. Supreme Court had held in Brady v. Maryland, 373 U.S. 83 (1963) that prosecutors had a duty to disclose exculpatory evidence to defendants; and the 9th Circuit had held in In United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978) that investigating officers had the same duty. That another circuit held otherwise (before the U.S. Supreme Court settled the matter) did not change the analysis; if the law is established in the circuit that governed the officers, the law was established for purposes of qualified immunity. Further, it was well established that the type of evidence allegedly undisclosed was the type that should be disclosed under Brady and Butler.
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