Owens v. Baltimore City State's Attorneys Office , 767 F.3d 379 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2173
JAMES OWENS,
Plaintiff - Appellant,
v.
BALTIMORE CITY STATE’S ATTORNEYS OFFICE; MARVIN BRAVE,
Individually and in his Official Capacity as an Assistant of
the Baltimore City State’s Attorneys Office; BALTIMORE CITY
POLICE DEPARTMENT; GARY DUNNIGAN, Individually and in his
Official Capacity as an Officer and Detective of the
Baltimore City Police Department; JAY LANDSMAN, Individually
and in his Official Capacity as an Officer and Detective of
the Baltimore City Police Department; THOMAS PELLIGRINI,
Individually and in his Official Capacity as an Officer and
Detective of the Baltimore City Police Department,
Defendants - Appellees,
and
MAYOR AND CITY COUNCIL OF BALTIMORE,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell III, District Judge.
(1:11-cv-03295-GLR)
Argued: January 28, 2014 Decided: September 24, 2014
Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Motz wrote the opinion, in which Chief Judge
Traxler concurs as to Parts III., IV.A., and V. and dissents as
to Parts II. and IV.B., and Judge Wynn concurs, except for Part
III. Chief Judge Traxler and Judge Wynn each wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore,
Maryland; Laura Ginsberg Abelson, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellant. Daniel C. Beck, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland; Michele J. McDonald,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees. ON BRIEF: Joshua R. Treem, BROWN, GOLDSTEIN &
LEVY, LLP, Baltimore, Maryland, for Appellant. Douglas F.
Gansler, Attorney General, H. Scott Curtis, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland; George A. Nilson, BALTIMORE CITY LAW DEPARTMENT,
Baltimore, Maryland, for Appellees.
2
DIANA GRIBBON MOTZ, Circuit Judge:
James Owens brought this action under 42 U.S.C. § 1983against the Baltimore City State’s Attorney’s Office, an
assistant State’s Attorney, the Baltimore City Police
Department, and several Baltimore City police officers. In his
complaint, Owens alleges that the defendants violated his
constitutional rights by intentionally withholding exculpatory
evidence during his 1988 trial for the rape and murder of
Colleen Williar. The district court dismissed the complaint in
its entirety against all defendants on statute-of-limitations
grounds. In the alternative, the court held that the Baltimore
City State’s Attorney’s Office enjoyed sovereign immunity, the
individual police officers enjoyed qualified immunity, and
Owens’s cause of action against the Baltimore City Police
Department failed to state a claim on which relief could be
granted. For the reasons that follow, we affirm in part, vacate
in part, and remand the case for further proceedings consistent
with this opinion.
I.
Owens appeals the dismissal of his complaint for failure to
state a claim. Accordingly, we recount the facts as alleged by
Owens in his complaint, accepting as true all well-pleaded
3
facts. See Minor v. Bostwick Labs., Inc., 669 F.3d 428, 430 n.1
(4th Cir. 2012).
A.
In the early morning hours of August 2, 1987, Colleen
Williar was raped, robbed, and murdered in the second-floor
bedroom of her Baltimore City apartment. The following day, one
of Williar’s neighbors, James Thompson, contacted the city
police department to inquire about a reward it had offered for
information relating to Ms. Williar’s death. Thompson claimed
that he had found a knife outside of Ms. Williar’s apartment the
previous evening, which he had carried home and cleaned before
realizing its connection to the crime. Over the course of
Thompson’s conversation with police, however, it became apparent
that Thompson had not simply “happened” on the knife, as he
originally claimed. Rather, in response to questioning from
Officers Thomas Pelligrini, Gary Dunnigan, and Jay Landsman
(collectively, “the Officers”), Thompson asserted that he had
retrieved the knife at the behest of his friend, James Owens.
The Officers executed a search warrant at Owens’s apartment, but
found no physical evidence linking Owens to the crime. Even
though the search was fruitless, police arrested Owens on the
basis of Thompson’s statement. A grand jury then indicted Owens
for Ms. Williar’s murder, rape, and burglary.
4
On the eve of Owens’s trial, Assistant State’s Attorney
(“ASA”) Marvin Brave, the prosecutor assigned to Owens’s case,
began to question the veracity of Thompson’s version of events.
When ASA Brave raised these concerns with Thompson, the witness
retracted his statement and offered another explanation for the
knife’s acquisition. This time, Thompson stated that the knife
belonged to him, but he claimed that it had gone missing after
Owens visited Thompson at his home. The day after Ms. Williar’s
murder, Owens assertedly returned the knife to Thompson, who
noticed blood on the weapon’s blade and handle. When Thompson
questioned Owens about the origin of the blood, Owens denied
using the weapon and told Thompson to keep quiet about it.
At trial, ASA Brave presented only this third version of
events to the jury. Brave never informed defense counsel about
Thompson’s earlier accounts, and thus, when cross-examining
Thompson, defense counsel was unaware that the witness had
changed his story several times over the course of the
investigation.
Nevertheless, defense counsel apparently cast enough doubt
on Thompson’s testimony to prompt ASA Brave to seek out
additional evidence of Owens’s guilt. To this end, mid-trial,
ASA Brave ordered testing of a pubic hair found on Ms. Williar’s
body. When the results were returned, however, they indicated
that Thompson -- not Owens -- matched the sample. Concerned
5
that Thompson was involved in the crimes, ASA Brave instructed
the Officers to reinterrogate Thompson.
At ASA Brave’s direction, Officers Pelligrini, Dunnigan,
and Landsman brought Thompson into the stationhouse and
questioned him for two hours. The Officers accused Thompson of
lying on the witness stand, warned him that he “was in a lot of
trouble,” and asserted that he could be charged with a crime for
his misrepresentations to the jury. After receiving their
warnings, Thompson stated that he wanted to change his story yet
again. In fact, over the course of the two-hour interview,
Thompson changed his story five additional times.
In his first new attempt, Thompson told the Officers that
he and Owens had broken into Ms. Williar’s apartment on the day
of the murder only to find Ms. Williar already dead in her
bedroom. When the Officers replied that they did not believe
him, Thompson offered another iteration. This time, he
contended that Owens had raped and murdered Ms. Williar upstairs
while Thompson waited downstairs in the living room. The
Officers responded that there was evidence that Thompson had
been on the second floor, and thus, his amended account could
not be true. After this prompt, Thompson admitted that he had
been on the second floor, but insisted that he had hidden in the
bathroom during Owens’s crimes. The Officers again rejected
Thompson’s story, stating that investigators had found physical
6
evidence of Thompson’s presence in Ms. Williar’s bedroom. In
response, Thompson admitted that he had been in the bedroom
while Owens raped and killed Ms. Williar, but he insisted that
he had refused to participate in any assault. At this point,
the Officers informed Thompson that his pubic hair had been
found on Ms. Williar. Faced with the forensic evidence,
Thompson offered a fifth version of events. In this account,
Thompson claimed that he and Owens had broken into Ms. Williar’s
apartment with the intent to steal her jewelry. When the pair
found the victim alone in her bedroom, Owens raped and killed
her, while Thompson masturbated at the foot of her bed.
After the Officers elicited this latest account, Officer
Landsman told ASA Brave about Thompson’s final version of
events. None of the Officers disclosed that Thompson had
offered several other accounts of what happened, all of which
differed dramatically from the version of events related to ASA
Brave as well as from the physical evidence.
Following his conversation with the Officers, ASA Brave
immediately called Thompson back to the witness stand and had
him share with the jury his new account of what happened.
However, because only the Officers knew of the inconsistencies
in Thompson’s statements, neither ASA Brave nor defense counsel
questioned Thompson about the four inconsistent versions of the
story that the witness had offered before he settled on his
7
final account. Moreover, neither ASA Brave nor the Officers
told defense counsel about the discovery of Thompson’s pubic
hair. Indeed, when defense counsel inquired about whether there
had been forensic testing of the hair, ASA Brave represented to
the court that “there [hadn’t] been any match made” between the
sample and a suspect. 1
The jury convicted Owens of burglary and felony murder, and
the trial court sentenced him to life imprisonment without the
possibility of parole. Owens filed an unsuccessful appeal, and,
over the course of the next two decades, several unsuccessful
state-court petitions for post-conviction relief. In 2006,
however, a state court granted Owens’s request for post-
conviction DNA testing. The results were returned some months
later and indicated that Owens’s DNA did not match the blood and
semen evidence found at the scene of the crime.
On June 4, 2007, a state court granted Owens’s “petition to
reopen his Post Conviction Proceeding” and ordered that “by
agreement of Counsel and this Honorable Court, . . . Petitioner
1
Owens also alleges that ASA Brave withheld impeachment
evidence with respect to a different witness: Larry Oliver,
Owens’s cellmate. Specifically, Owens asserts that ASA Brave
intentionally withheld the fact that he had promised leniency to
Oliver, who testified that Owens confessed to him in their jail
cell. Because the issues involved in this asserted
nondisclosure are identical to those involved in ASA Brave’s
nondisclosures regarding Thompson and the DNA evidence, we focus
only on those facts for the sake of simplicity.
8
shall be granted a new trial.” During the next sixteen months,
Owens remained in state prison awaiting retrial. On October 15,
2008, the State’s Attorney entered a nolle prosequi, dropping
the charges against him. On that date, after Owens had spent
more than twenty years in prison, the state court ordered him
released from incarceration.
B.
On October 12, 2011, a few days before the three-year
anniversary of the nolle prosequi, Owens filed this action under
42 U.S.C. § 1983 against the Mayor and City Council of
Baltimore, the Baltimore City State’s Attorney’s Office, ASA
Brave, the Baltimore City Police Department (“BCPD”), and
Officers Pelligrini, Dunnigan, and Landsman. In his complaint,
Owens alleges that the defendants violated his constitutional
rights by intentionally and in bad faith withholding exculpatory
and impeachment evidence at his 1988 trial.
All defendants moved to dismiss the complaint. The
Baltimore City State’s Attorney’s Office asserted that it was
not an entity amenable to suit, and that even if it were, it was
an “arm of the State,” immune from liability. The individual
Officers, the BCPD, and ASA Brave all moved to dismiss on
statute-of-limitations grounds. Alternatively, the individual
Officers asserted that qualified immunity protected them from
9
suit, and the BCPD maintained that Owens failed to state a claim
on which relief could be granted.
After Owens voluntarily dismissed the claims against the
Mayor and City Council of Baltimore, the district court, in an
oral ruling, dismissed the claims against the other defendants.
The court initially determined that Owens’s claims were time
barred because the limitations period for his causes of action
commenced when the state court granted Owens’s request for a new
trial, not (as Owens claimed) on the date that prosecutors
entered the nolle prosequi. Although the limitations issue
disposed of all of Owens’s claims, the court went on to briefly
address the defendants’ alternative grounds for dismissal. In a
series of rulings, the court determined that the Baltimore City
State’s Attorney’s Office was entitled to sovereign immunity,
that the individual Officers and the BCPD were entitled to
qualified immunity, and that Owens’s complaint failed to state a
claim against the BCPD. Owens noted a timely appeal.
We review a district court’s grant of a motion to dismiss
de novo. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). At this stage in the proceedings, we “accept as
true all of the factual allegations contained in the complaint,”
and “draw all reasonable inferences in favor of the plaintiff.”
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 440 (4th Cir. 2011). To prevail, Owens must “state a claim
10
to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (emphasis added and internal quotation
marks omitted). A claim has “facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.II.
We first consider whether the applicable statute of
limitations bars all of Owens’s claims.
Section 1983 does not contain a statute of limitations.
Thus, to determine the timely filing of a § 1983 claim, courts
borrow the statute of limitations from the most analogous state-
law cause of action. See 42 U.S.C. § 1988(a). For § 1983
suits, that cause of action is a personal-injury suit. See
Owens v. Okure, 488 U.S. 235, 249–50 (1989). Maryland law
affords plaintiffs three years to file a personal-injury action.
See Md. Code Ann., Cts. & Jud. Proc. § 5-101. Hence, a three-
year limitations period applies to Owens’s claims.
The parties agree that Owens had three years to file his
§ 1983 action. They disagree, however, as to the date on which
this three-year limitations period began to run. Appellees
contend that the three-year clock on Owens’s claims began to run
on June 4, 2007, the date on which the state court vacated his
11
conviction and granted him a new trial. Appellees’ Br. 24.
Because Owens filed suit more than three years after this date
(on October 12, 2011), the Appellees maintain that all of
Owens’s claims are time barred. Id. Owens, by contrast,
maintains that the statute of limitations for his claims did not
begin to run until October 15, 2008 -- the date on which
prosecutors filed a nolle prosequi, finally resolving the
proceedings against him. Appellant’s Br. 22. Because he filed
suit within three years of this date, Owens contends that he met
the operative deadline.
Although state law determines the applicable statute of
limitations for § 1983 claims, federal law governs the date on
which that limitations period begins to run. Wallace v. Kato,
549 U.S. 384, 388 (2007). Federal law, in turn, “conform[s] . .
to common-law tort principles” for purposes of determining this
date. Id. “Under those principles, it is the standard rule
that accrual occurs when the plaintiff has a complete and
present cause of action” against a defendant –- that is, when
the plaintiff knows or has reason to know of his injury. Id.(internal quotation marks and brackets omitted).
In Wallace, however, the Supreme Court recognized that
limitations on common-law torts do not always begin on the date
that a plaintiff knows or has reason to know of his injury.
Wallace, 549 U.S. at 388. Accordingly, it found that the
12
“standard rule” does not always control the start of the
limitations period for a § 1983 claim. Id.; see also Devbrow v.
Kalu, 705 F.3d 765, 767 (7th Cir. 2013) (relying on Wallace to
hold that there is no “single accrual rule for all § 1983
claims”).
Instead, the Wallace Court held that to determine the date
of accrual for a particular § 1983 claim, a court must look to
the common-law tort that is most analogous to the plaintiff’s
§ 1983 claim and determine the date on which the limitations
period for this most analogous tort claim would begin to run.
Id.; see also Varnell v. Dora Consol. Sch. Dist., -- F.3d --,
2014 WL 2937039 (10th Cir. 2014) (noting that “[f]ollowing
Wallace, we determine the accrual date of Plaintiff’s claim by
looking to the accrual date for the common-law tort most
analogous to her § 1983 claim”); Devbrow, 705 F.3d at 767
(holding that a court “use[s] the [accrual] rule that applies to
the common-law cause of action most similar to the kind of claim
the plaintiff asserts”). For most common-law torts, a
plaintiff’s cause of action accrues, and the limitations period
commences, when the plaintiff knows or has reason to know of his
injury (hence, the “standard rule”). But if the common law
provides a “distinctive rule” for determining when the
limitations period for a particular tort begins to run, a court
must “consider[]” this “refinement” in determining when the
13
limitations period for the plaintiff’s analogous claim under
§ 1983 should commence. Wallace, 549 U.S. at 388.
In Wallace, the Supreme Court addressed a § 1983 claim
alleging an unconstitutional detention by police officers. 549
U.S. at 388. The Court recognized the “standard rule” for
accrual, but because it found the tort of false imprisonment to
be the tort most analogous to the plaintiff’s § 1983 claim, it
considered the “common law’s distinctive treatment” of that tort
in determining the start of the limitations period for the
plaintiff’s § 1983 claim. Id.
The Court noted that Wallace could have brought his claim
under § 1983 “immediately upon his false arrest.” Id. at 390
n.3. This was so because Wallace’s injury commenced at that
date, and “a person falsely imprisoned has the right to sue on
the first day of his detention.” Id. (citation omitted). The
Supreme Court went on to explain, however, that under the common
law, the statute of limitations for false imprisonment does not
begin to run at the outset of a plaintiff’s false imprisonment;
rather, limitations begin to run only at the end of a
plaintiff’s false imprisonment. Id. at 389. Deferring to the
common law’s “distinctive rule,” the Court selected the date on
which Wallace’s false imprisonment ended –- not the date on
which it began -– as the start of the operative limitations
period. Id. at 391-92. With this start date established, the
14
Court held that Wallace’s § 1983 claim accrued on the date that
he was arraigned by a magistrate, i.e., the date on which his
false imprisonment ended. Id.
Here, the parties acknowledge that, unlike in Wallace,
false imprisonment is not the tort “most analogous” to Owens’s
§ 1983 claims. Instead, they properly agree that the tort of
malicious prosecution, which the Wallace Court recognized as an
“entirely distinct” tort, provides the closest analogy to
Owens’s Brady-like claim. See Brady v. Maryland, 373 U.S. 83(1963). Malicious prosecution redresses injuries a plaintiff
sustains as a result of a defendant’s improper initiation or
maintenance of formal proceedings against him. See Lambert v.
Williams, 223 F.3d 257, 260 (4th Cir. 2000). Because Owens
contends that the Appellees violated due process by maintaining
proceedings against him without disclosing exculpatory evidence,
malicious prosecution provides the closest analogy to his § 1983
claims. Thus, following Wallace, we must determine the start
date of Owens’s § 1983 claims by looking to the start date of
the common-law tort most analogous to his claims –- here,
malicious prosecution.
Under the common law, the limitations period for a
plaintiff’s malicious prosecution claim commences when the
proceedings brought against him are resolved in his favor. W.
Page Keeton, et al., Prosser & Keeton on Torts § 119 (5th ed.
15
1984); see also 3 Dan B. Dobbs, et al., The Law of Torts § 590
(2d ed. 2011); 8 Stuart M. Speiser, et al., The American Law of
Torts § 28.5 (2011); 1 Fowler V. Harper, et al., Harper, James,
and Gray on Torts § 4.4 (3d ed. rev. 2006). To satisfy this
favorable-termination requirement, a plaintiff must show that
the proceedings against him were favorably terminated “in such
manner that [they] cannot be revived.” Keeton, et al. at § 119.
“This is true, for example, of an acquittal in court, a
discharge . . . upon preliminary hearing, [or] the entry of a
nolle prosequi.” Id.; see also Speiser, et al. at § 28.5;
Harper, et al. at § 4.4. It is not true of “[a]ny disposition
of the criminal action which does not terminate it but permits
it to be renewed.” Keeton, et al. at § 119 (emphasis added).
Under the common law, such terminations “cannot serve as the
foundation for [a malicious prosecution] action,” and thus, the
limitations period for malicious prosecution claims does not
begin to run until a truly final disposition is achieved. Id.
The grant of a new trial does not terminate the proceedings
against a defendant “in such a manner that [they] cannot be
revived.” Keeton, et al. at § 119. Rather, it provides a
procedural victory, which simply postpones the proceedings’
ultimate outcome. See Harper, et al. at § 4.4 (“The termination
in the plaintiff’s favor must be a final one, and if the
proceedings are immediately renewed for the same offense, they
16
are sufficient to bar plaintiff’s action for malicious
prosecution until they are finally determined.”).
Because the grant of a new trial does not trigger the
limitations period for a malicious prosecution claim, the
statute of limitations on Owens’s § 1983 claims did not begin to
run on the date he was granted a new trial. Instead, the
operative limitations period began to run on the date a
malicious prosecution claim became ripe at common law, i.e., the
date on which the nolle prosequi was entered. It was only on
this date that proceedings against Owens were favorably
terminated in such manner that they could not be revived.
Because Owens filed suit within three years of this date, the
statute of limitations does not bar his present cause of action. 2
Contrary to the Appellees’ suggestion, Heck v. Humphrey,
512 U.S. 477 (1994), does not require a different result. Heck
held that a prisoner may not file suit under § 1983 as long as a
§ 1983 judgment in his favor would imply the invalidity of his
2
This is not to say that Owens could not have filed suit
immediately upon his discovery of the Appellees’ asserted
suppression of material exculpatory evidence. See Wallace, 549
U.S. at 390 n.3; but see Heck v. Humphrey, 512 U.S. 477, 486-87
(1994) (holding that the date of accrual for a § 1983 claim is
delayed if a § 1983 judgment in a plaintiff’s favor would imply
the invalidity of the plaintiff’s criminal conviction).
Although the statute of limitations did not begin to run until
the proceedings against Owens were favorably and finally
terminated, because he knew of his alleged injury before then,
he was entitled to seek relief earlier. Wallace, 549 U.S. at
390 n.3.
17
criminal conviction. See id. at 487. In this case, as the
Appellees point out, the Heck bar to suit was removed as soon as
the state court invalidated Owens’s conviction and granted him a
new trial. But contrary to the Appellees’ contention, removal
of the Heck bar did not compel Owens immediately to proceed
under § 1983. This is so because the statute of limitations for
the most analogous common-law tort, malicious prosecution, did
not begin to run until the proceedings against Owens were
finally terminated in his favor and could not “be revived,”
Keeton, et al. at § 119, i.e., when the prosecutor filed the
nolle prosequi. Up until this point, Owens remained imprisoned,
and the prosecutor could –- and for sixteen months did –-
proceed against him without the need to seek reindictment.
The partial dissent recognizes that Heck does not resolve
the statute-of-limitations issue before us. It nonetheless
maintains that Owens’s claims are time barred because, in the
dissent’s view, the statute of limitations on Owens’s § 1983
claims began to run when he was granted a new trial, or when he
possessed sufficient facts to know about the Appellees’ illegal
suppression of evidence, i.e., whenever Owens could have brought
his Brady-like claim.
The dissent both acknowledges that, in determining the
start date of Owens’s § 1983 claims, a court must look to
malicious prosecution as the closest “common law analogue,” and
18
recognizes that the date of favorable termination is the date
triggering the onset of limitations for a malicious prosecution
claim. But the dissent maintains that we adhere too closely to
the malicious prosecution analogue. In the dissent’s view, a
court should consider the “underlying purpose of the elements of
the common law analogue” and borrow this onset date for a § 1983
claim only if doing so would serve that underlying purpose.
Because the dissent concludes that borrowing the onset date for
malicious prosecution would not serve this underlying purpose,
it believes we should not borrow its onset date here.
We recognize the important distinctions between malicious
prosecution torts and Owens’s Brady-like claims. But we cannot
agree with the dissent that those distinctions somehow permit us
to jettison the common law date on which limitations begin to
run in determining the date on which limitations begin to run
for an analogous § 1983 claim. Neither precedent nor logic
permits this result.
The common law does act as a mere “starting point” in
“defining the elements of damages and the prerequisites for
their recovery” under § 1983. Carey v. Piphus, 435 U.S. 247,
257-58 (1978) (emphasis added). But the dissent cites no case
in which the Supreme Court has used the common law as merely the
“starting point” in resolving a statute-of-limitations question
in a § 1983 action. This is so because the Court has never
19
sanctioned such an approach. Rather, in resolving the precise
question at issue here -- when the statute of limitations for a
§ 1983 claim begins to run -- the Wallace Court applied the
distinctive common law rule for the most analogous tort. 549
U.S. at 388-89 (“[T]o determine the beginning of the limitations
period in this [§ 1983] case, we must determine when
petitioner’s false imprisonment came to an end.”). Moreover, in
Heck, the majority expressly relied on malicious prosecution’s
favorable termination requirement to delay the accrual of the
plaintiff’s Brady-based § 1983 claim. Heck, 512 U.S. at 484.3
That the Supreme Court would require courts to analogize to the
tort of malicious prosecution for purposes of delaying the onset
of a Brady claim, yet eschew the very same analogy for purposes
of calculating the onset of limitations for a Brady claim,
strikes us as exceedingly unlikely. Accordingly, we cannot
endorse the partial dissent’s analysis.
Furthermore, even if, as the dissent argues, a court should
consider the policy and “underlying purpose of the elements of
the common law analogue” to determine when the statute of
limitations begins to run, we would reach the same result. For
3
In doing so, the Supreme Court majority expressly rejected
the suggestion in Justice Souter’s concurring opinion that the
Court had adhered too closely to the common law analogue. Heck,
512 U.S. at 484 n.4. Yet it is precisely this argument from
Justice Souter, rather than the majority’s reasoning, on which
the dissent relies in criticizing us.
20
the “strong judicial policy against the creation of conflicting
resolutions arising out of the same or identical transaction”
furthered by malicious prosecution’s favorable termination
requirement, Heck, 512 U.S. at 484, is also implicated in the
Brady context. By setting different dates for the beginning of
the limitations period for a claimant’s § 1983 Brady claim on
the one hand, and his malicious prosecution claim on the other,
the dissent would permit a claimant to bring a state claim
(based on the same conduct) long after the time for bringing the
§ 1983 claim had expired. The limitations period on the § 1983
claim might even have run before the state claim ever ripened,
forcing a claimant to bring separate actions that could produce
different and potentially conflicting results. Thus the
dissent’s approach would hardly accord with the “strong judicial
policy against the creation of conflicting resolutions.” Id.
In sum, we take the Supreme Court at its word. We
determine when the statute of limitations on a plaintiff’s
§ 1983 claim begins to run by looking to the common-law tort
most analogous to the plaintiff’s claim. In general, the
limitations period for common law torts commences when the
plaintiff knows or has reason to know of his injury. But if the
common law provides a “distinctive rule” for determining the
start date of the limitations period for the analogous tort, a
court should consider this rule in determining when the
21
limitations period for the plaintiff’s claim begins to run.
Wallace, 549 U.S. at 388-89. Application of this rule to
Owens’s claims sets the start of the limitations period at the
date of the nolle prosequi. Because Owens filed suit within
three years of this date, his claims were timely filed.
III.
Even if Owens’s suit is timely, the Baltimore City State’s
Attorney’s Office contends that the suit must be dismissed as to
it because it is not an entity capable of being sued. 4
The Federal Rules of Civil Procedure provide that the law
of the state in which the district court sits determines an
entity’s capacity to be sued. Fed. R. Civ. P. 17(b). Maryland
courts have had no occasion to address whether the Baltimore
City State’s Attorney’s Office may be sued. But Maryland
courts’ treatment of analogous agencies confirms that the
4
Relatedly, in his appellate brief, Assistant State’s
Attorney Brave contends that absolute prosecutorial immunity
requires dismissal of the claims against him. Brave waived this
defense, however, by failing to raise it in the district court.
See Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010); Collyer
v. Darling, 98 F.3d 211, 222 (6th Cir. 1996). Moreover, because
absolute immunity attaches to functions, not offices, see Harlow
v. Fitzgerald, 457 U.S. 800, 808-09 (1982), the district court
must determine whether Brave was performing prosecutorial
functions at the time he allegedly committed the asserted
constitutional violations, cf. Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993) (holding that absolute immunity does not attach
to prosecutors performing “investigatory functions”).
22
“Baltimore City State’s Attorney’s Office” is not a suable
entity.
In Boyer v. State, Maryland’s highest court made clear
that, absent a statutory or constitutional provision creating a
government agency, an “office” or “department” bears no unique
legal identity, and thus, it cannot be sued under Maryland law.
See 594 A.2d 121, 128 n.9 (Md. 1991). In Boyer, the court
considered whether the “Charles County Sheriff’s Department” was
an entity amenable to suit. Id. It concluded:
We are unaware of any statute, public general or
public local, establishing an entity known as the
Charles County “Sheriff’s Department.” The sheriff
for each county is a constitutional officer under Art.
IV, § 44, of the Constitution of Maryland. [But]
[n]either the Constitution nor any other provision of
law creates a governmental agency known as the
“Sheriff’s Department.” Consequently, the motion for
summary judgment on behalf of the Charles County
‘Sheriff’s Department’ correctly asserted that the
‘Sheriff’s Department’ is not an entity capable of
being sued.
Id. (emphasis added).
Like the “Sheriff’s Department” at issue in Boyer, no
constitutional or statutory provision establishes a “Baltimore
City State’s Attorney’s Office.” The “State’s Attorney” for
each county and Baltimore City is a constitutional officer, but
Maryland law creates no “State’s Attorney’s Office.” Cf. Md.
Const. art. V, § 7 (“There shall be an Attorney for the State in
each county and the City of Baltimore, to be styled ‘the State’s
23
Attorney.’”); Md. Ann. Code, Crim. Proc. § 15-102 (“[A] State’s
Attorney shall, in the county served by the State’s Attorney,
prosecute and defend on the part of the State all cases in which
the State may be interested.”).
Indeed, Maryland law delegates many of the functions a
hypothetical “State’s Attorney’s Office” would perform to a
separate “Office of the State’s Attorney’s Coordinator.” See
id. § 15-302 (describing the functions of the Office of the
State’s Attorney’s Coordinator, including training each State’s
Attorney’s professional staff and performing legal research).
Unlike the “Baltimore City State’s Attorney’s Office,” the
“Office of the State’s Attorney’s Coordinator” is expressly
created by statute. See id. § 15-301(a)(1) (“There is an office
of State’s Attorney’s Coordinator.”). That the Maryland General
Assembly knew how to create such an office, yet failed to do so
with respect to the “entity” here, confirms that the “Baltimore
City State’s Attorney’s Office” bears no unique legal identity.
Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)
(“[W]hen the legislature uses certain language in one part of
the statute and different language in another, the court assumes
different meanings were intended.” (internal quotation marks
omitted)).
Owens notes that Title 15 of the Maryland Code of Criminal
Procedure, which establishes the duties of a State’s Attorney,
24
is entitled “Office of the State’s Attorney.” Based on this
title, Owens contends that the Maryland General Assembly has
established a “State’s Attorney’s Office,” which may be sued
under Maryland law. Reply Br. at 2. This argument fails,
however, for two reasons. First, as the Supreme Court has long
held, a statute’s title provides little assistance to courts
interpreting statutory provisions. See, e.g., Bhd. of R.R.
Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947)
(“[T]he title of the statute and the heading of a section cannot
limit the plain meaning of the text. For interpretive purposes,
they are of use only when they shed light on some ambiguous word
or phrase.”). Second, even if we were to consider the title
heading, it is clear that the title refers to the position of
the State’s Attorney, not a separate, suable office.
Undoubtedly, a plaintiff may sue the State’s Attorney, i.e., the
person who holds the position. See S.C. State Ports Auth. v.
Fed. Mar. Comm’n, 243 F.3d 165, 170 (4th Cir. 2001) (“[S]tate
officers may be sued for money damages in their individual
capacities, so long as relief is sought from the officer
personally.”), aff’d, 535 U.S. 743 (2002). But the heading
fails to establish the legal identity -– and thus the suability
-- of a “State’s Attorney’s Office,” separate and apart from the
person who occupies the position or office.
25
Our friend’s partial dissent suggests that the Maryland
Constitution creates a “Baltimore City State’s Attorney’s
Office” amenable to suit under Maryland law. But, in fact,
nearly every provision of law cited for this proposition
regulates the State’s Attorney, not a State’s Attorney’s Office.
See, e.g., Md. Const. art. V, § 9 (“The State’s Attorney shall
perform such duties and receive such salary as shall be
prescribed by the General Assembly.” (emphasis added)); id.
(“[T]he State’s Attorney for Baltimore City shall have the power
to appoint a Deputy and such other Assistants as the Supreme
Judicial Bench of Baltimore City may authorize or approve
. . . . ” (emphasis added)); see also Md. Code Ann., Crim. Proc.
§ 15-102 (“[A] State’s Attorney shall, in the county served by
the State’s Attorney, prosecute and defend on the part of the
State all cases in which the State may be interested.” (emphasis
added)). Far from establishing a State’s Attorney’s Office,
these provisions create and administer the position of State’s
Attorney –- a position Owens could have reached, but did not, by
suing the Baltimore City State’s Attorney in his individual or
official capacity.
To be sure, close inspection of Maryland’s Constitution
does reveal a passing reference to “the office of the State’s
Attorney.” Md. Const. art. V, § 9 (“[E]xpenses for conducting
the office of the State’s Attorney . . . shall be paid by the
26
Mayor and City Council of Baltimore to the extent that the total
of them exceeds the fees of his office.”). But this passing
reference to an “office” seems to us nothing more than shorthand
for the position of State’s Attorney. Moreover, the reference
fails to distinguish the case at hand from Boyer. For there,
although the Maryland Code made a passing reference to the
Charles County “Sheriff’s department,” Maryland’s highest court
held that Maryland law failed to “establish[] an entity known as
the Charles County ‘Sheriff’s Department.’” 594 A.2d at 128
n.9; see Md. Code Ann., Local Gov’t § 12-203(b)(1) (formerly Md.
Code, art. 25, § 3) (“The County Commissioners of Charles County
shall establish a separate pension plan for sworn employees of
the Charles County Sheriff’s department . . . .” (emphasis
added)). To remain faithful to the court’s analysis in Boyer,
we must similarly hold that the “Baltimore City State’s
Attorney’s Office” is not a suable entity.
In conclusion, we hold that the “Baltimore City State’s
Attorney’s Office” is a term of convenience only. It refers to
the collection of government employees who work under the
supervision of the Baltimore City State’s Attorney. It is not
an entity amenable to suit. 5
5
Because we hold that the Baltimore City State’s Attorney’s
Office is not a suable entity, we do not address its alternative
argument, i.e., that the State’s Attorney’s Office is an arm of
(Continued)
27
IV.
We next consider the qualified-immunity defense asserted by
Officers Pelligrini, Dunnigan, and Landsman.
Qualified immunity protects government officials from
liability for “civil damages insofar as their conduct does not
violate clearly established . . . rights of which a reasonable
person would have known.” Harlow, 457 U.S. at 818. The
doctrine is designed to square two important interests: “the
need to hold public officials accountable when they exercise
[their] power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009).
the State entitled to sovereign immunity. We note, however,
that the partial dissent focuses its arm-of-the-State analysis
on a single factor –- whether a judgment against the Baltimore
City State’s Attorney’s Office would be paid by the City of
Baltimore –- to conclude that the State’s Attorney’s Office
lacks immunity from suit. Although the Supreme Court had
previously regarded this factor as the most important, it has
subsequently abandoned this view. See Fed. Maritime Comm’n v.
S.C. Port Auth., 535 U.S. 743, 765 (2002); U.S. ex rel. Oberg v.
Ky. Higher Educ. Student Loan Corp., 681 F.3d 575, 580 n.3 (4th
Cir. 2012). Accordingly, when engaging in an arm-of-the-State
analysis, a court must also consider at least three other
factors -- the degree of autonomy exercised by an entity,
whether an entity is involved with state concerns, and how an
entity is treated under state law –- without giving preeminence
to any single factor. See Oberg, 681 F.3d at 580.
28
Qualified immunity protects public officials from suit when
the state of the law is such that they would not have known that
their conduct violates statutory or constitutional rights.
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). See, e.g.,
Pinder v. Johnson, 54 F.3d 1169, 1177–78 (4th Cir. 1995) (en
banc). The defense does not shield officials, however, when
they have acted “incompetent[ly]” or have “knowingly violate[d]
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). See,
e.g., Occupy Columbia v. Haley, 738 F.3d 107, 125 (4th Cir.
2013); Brockington v. Boykins, 637 F.3d 503, 507–08 (4th Cir.
2011); Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292,
321 (4th Cir. 2006).
To establish a qualified-immunity defense, a public
official must demonstrate that (1) a plaintiff has not alleged
or shown facts that “make out a violation of a constitutional
right,” or that (2) “the right at issue was [not] ‘clearly
established’ at the time of” its alleged violation. Pearson,
555 U.S. at 232.
A qualified immunity defense can be presented in a Rule
12(b)(6) motion, but, as the Second Circuit has noted, when
asserted at this early stage in the proceedings, “the defense
faces a formidable hurdle” and “is usually not successful.”
Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191–92 (2d
Cir. 2006). This is so because dismissal under Rule 12(b)(6) is
29
appropriate only if a plaintiff fails to state a claim that is
plausible on its face. Iqbal, 556 U.S. at 678. A claim has
“facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. To satisfy the
standard, a plaintiff must do more than allege facts that show
the “sheer possibility” of wrongdoing. Id. The plaintiff’s
complaint will not be dismissed as long as he provides
sufficient detail about his claim to show that he has a more-
than-conceivable chance of success on the merits. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2006).
On the one hand, Owens alleges that Officers Pelligrini,
Dunnigan, and Landsman violated his clearly established
constitutional rights by acting in bad faith to suppress
material evidence supporting his innocence. On the other hand,
the Officers maintain, and the district court held, that Owens
has not pled a plausible claim, Appellees’ Br. at 41–42, and
that even if he has, the rights he asserts were not clearly
established in 1988 -- the date of their alleged violation, id.at 29–40. We address each argument in turn.
A.
In 1963, the Supreme Court held in Brady v. Maryland, 373
U.S. 83, 87 (1963), that prosecutors’ suppression of evidence
“favorable to an accused” violates the Due Process Clause when
30
the evidence proves “material either to guilt or to punishment.”
A year after Brady, we concluded that police officers’
suppression of evidence also violates the Constitution. See
Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846–47 (4th
Cir. 1964). Specifically, in Barbee, we found that a police
officer’s failure to disclose exculpatory evidence to a
prosecutor violates a defendant’s due process rights. Id. at
847. “It makes no [constitutional] difference,” we explained,
“if the withholding [of 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.” Id. at 846; see
also Strickler v. Greene, 527 U.S. 263, 280–81 (1999) (“[Brady]
encompasses evidence known only to police investigators and not
to the prosecutor.” (internal quotation marks omitted)). In
Goodwin v. Metts, 885 F.2d 157, 163–64 (4th Cir. 1989), we
reaffirmed our Barbee decision, holding that a police officer
violates a criminal defendant’s constitutional rights by
withholding exculpatory evidence from prosecutors.
To make out a claim that the Officers violated his
constitutional rights by suppressing exculpatory evidence, Owens
must allege, and ultimately prove, that (1) the evidence at
issue was favorable to him; (2) the Officers suppressed the
31
evidence in bad faith; 6 and (3) prejudice ensued. See Monroe v.
Angelone, 323 F.3d 286, 299–300 (4th Cir. 2003). Prejudice
ensues if “there is a reasonable probability” that the jury
would have reached a different result had the evidence been
properly disclosed. United States v. Bagley, 527 U.S. 667, 682
(1985). The adjective “reasonable” is important in this
context. See Kyles v. Whitley, 514 U.S. 419, 434 (1995). As
the Supreme Court has explained, “[t]he question is not whether
the defendant would more likely than not have received a
different verdict” had the evidence been disclosed. Id.Rather, the question is whether, in the absence of disclosure,
the defendant “received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Id.Owens alleges that Officers Pelligrini, Dunnigan, and
Landsman, at the direction of ASA Brave, subjected Thompson, the
State’s star witness, to a lengthy mid-trial interrogation, in
6
As recognized in Jean v. Collins, 221 F.3d 656, 660 (4th
Cir. 2000) (“Jean II”) (Wilkinson, C.J., concurring), police
officers and prosecutors have different obligations with respect
to the disclosure of exculpatory evidence. Under Brady, a
prosecutor violates the Constitution whenever he fails to
disclose material, exculpatory evidence, even if the
nondisclosure was purely accidental. See 373 U.S. at 87. The
Sixth Circuit has applied this same absolute standard to police
officers. See Moldowan v. City of Warren, 578 F.3d 351, 388-89
(6th Cir. 2009). But other courts have followed the lead of
Jean II to conclude that police officers commit constitutional
violations only when they suppress exculpatory evidence in bad
faith. See Porter v. White, 483 F.3d 1294, 1308 (11th Cir.
2007); Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004).
32
which they threatened and cajoled him to change his testimony
repeatedly so as to strengthen the State’s then-“failing
prosecution.” Owens asserts that the Officers elicited from
Thompson a succession of vastly different accounts of his and
Owens’s involvement in Ms. Williar’s rape and murder. These
accounts ranged from Thompson’s insistence that he had nothing
to do with the crimes, to his admission that he had broken into
Ms. Williar’s apartment (but stayed downstairs), to his
contention that he had remained in the upstairs bathroom and
only heard the assault on Ms. Williar, to his final story, in
which he asserted that he had masturbated at the foot of the bed
while Owens raped and killed Ms. Williar.
Moreover, Owens alleges that Thompson repeatedly changed
his story only because the Officers provided additional details
about the crime, which they pressured Thompson to incorporate so
as to incriminate Owens more directly. When the interview
ended, the Officers told ASA Brave only about the witness’s last
version of events. That is, Owens alleges that ASA Brave did
not know (and so could not and did not tell defense counsel)
that Thompson had offered several other accounts of the crimes,
all of which conflicted with the iteration Thompson ultimately
told the jury.
We have little difficulty concluding that Owens’s
allegations state a plausible § 1983 claim. First, the
33
information Officers Pelligrini, Dunnigan, and Landsman
assertedly withheld from ASA Brave was favorable to Owens. Had
the Officers properly disclosed Thompson’s statements, his
inconsistencies would have lent support to the contention
advanced by Owens’s defense that Thompson, not Owens, had raped
and murdered Ms. Williar. At a minimum, the inconsistencies
would have aided Owens in his attempt to discredit Thompson’s
testimony and sow reasonable doubt in the minds of the jurors.
See Bagley, 473 U.S. at 676 (holding that Brady’s duty to
disclose evidence encompasses impeachment evidence).
Second, Owens has offered specific allegations as to the
Officers’ bad faith. He asserts that these experienced police
officers willfully, consciously, and in bad faith “chose not to
disclose” the multiple revisions to Thompson’s statement that
they elicited from him during their hours-long interrogation.
Further, he alleges that the Officers told ASA Brave about the
final version of the story almost as soon as the witness had
said it. The temporal proximity between Thompson’s succession
of narratives and the Officers’ report to the prosecutor lends
support to the contention that Thompson’s inconsistent
narratives were fresh in the Officers’ minds, and thus, the
Officers’ omissions were not accidental, but intentional and
malicious.
34
Finally, Owens’s allegations satisfy Brady’s materiality
requirement. Owens asserts that Thompson was the State’s “star
witness,” and that in post-trial proceedings, ASA Brave admitted
that without Thompson, “the case could not have gone forward.”
Certainly, it is plausible that impeachment of such a key
witness could have altered the outcome at trial. We emphasize
that Brady does not require that disclosure probably would have
modified a trial’s result. Strickler, 527 U.S. at 289–90. On
the contrary, it is enough that the suppression of evidence cast
serious doubt on the proceedings’ integrity. Id. If Owens can
prove his allegations, they would certainly satisfy this
requirement. 7
7
The Officers unpersuasively contend that Owens’s Brady
claim fails because he obtained his release from prison on the
basis of newly discovered DNA evidence rather than the
undisclosed Brady material. But contrary to the Officers’
assertion, courts routinely consider the Brady claims of § 1983
plaintiffs exonerated on the basis of newly discovered DNA
evidence. See, e.g., Holland v. City of Chicago, 643 F.3d 248,
250, 255-56 (7th Cir. 2011). Moreover, adopting the Officers’
rule would have the perverse effect of discriminating against
innocent plaintiffs. For although a § 1983 plaintiff need not
establish that he is actually innocent of the crime for which he
was convicted, see Strickler, 527 U.S. at 289-90; Poventud v.
City of New York, 750 F.3d 121, 133 (2d Cir. 2014) (en banc), if
he can prove his innocence –- for example, because DNA evidence
completely exonerates him –- the Officers’ rule would prevent
that plaintiff from recovering for the Brady violation that put
him in prison. We see no reason to insulate from liability
police officers who withhold exculpatory evidence in bad faith
merely because unrelated DNA evidence later came to light
proving the plaintiff’s innocence.
35
B.
We next turn to the question of whether Owens’s
constitutional rights were “clearly established” in February and
March 1988, when the Officers acted.
i.
For a right to be clearly established, its contours “must
be sufficiently clear [such] that a reasonable official would
[have] underst[ood] that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “This is not
to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held [to be] unlawful.” Hope v. Pelzer, 536 U.S. 730, 739
(2002). Rather, liability obtains if the state of the law is
such that it would have been “apparent” to an officer that his
conduct violated constitutional law. Anderson, 483 U.S. at 640.
In evaluating whether qualified immunity exists, we must
keep in mind that it is the plaintiff’s constitutional right
that must be clearly established, not a plaintiff’s access to a
monetary remedy. Thus, a right does not become clearly
established only if a plaintiff has successfully enforced it
through a § 1983 action. Hope, 536 U.S. at 741. On the
contrary, a right may be clearly established by any number of
sources, including a criminal case, a statute, or the
Constitution itself. See, e.g., id. (relying on the Eighth
36
Amendment to conclude that a right was clearly established);
Collier v. Dickinson, 477 F.3d 1306, 1312 (11th Cir. 2007)
(relying on a statute to determine that a right was clearly
established); Cinelli v. Cutillo, 896 F.2d 650, 655 (1st Cir.
1990) (relying on habeas and criminal cases to determine that a
right was clearly established).
Furthermore, to be clearly established, a right need not be
one with respect to which all judges on all courts agree.
Rather, “[i]f the unlawfulness is apparent, the fact that some
court may have reached an incorrect result will not shield a
defendant’s violation of a clearly established right.” See
Wilson v. Layne, 141 F.3d 111, 122 (4th Cir.), aff’d, 526 U.S.
603 (1999). Thus, although judicial disagreement about the
existence of a right is certainly a factor we consider in
determining whether a right has been clearly established, see
Pearson, 555 U.S. at 245, disagreement alone does not defeat a
plaintiff’s claim in every instance. The Supreme Court has
never sanctioned such a rule, see, e.g., Hope, 536 U.S. at 745-
46 (holding a right was clearly established and rejecting a
qualified-immunity defense notwithstanding the contrary views of
three dissenting justices and the court of appeals), and neither
have we, see, e.g., Henry v. Purnell, 652 F.3d 524, 536–37 (4th
Cir. 2011) (en banc) (rejecting a qualified-immunity defense
over a three-judge dissent).
37
With these principles in mind, we consider whether the
constitutional rights Owens asserts were clearly established as
of February and March 1988, the time of the alleged violations.
ii.
As outlined above, the Supreme Court held in 1963 that a
prosecutor may not suppress material exculpatory evidence during
a defendant’s criminal trial. Brady, 373 U.S. at 87. In
Barbee, decided a year after Brady, we held that “[t]he police
are also part of the prosecution,” and thus, they too violate
the Constitution if and when they suppress exculpatory evidence.
331 F.2d at 846.
In 1976, we applied Barbee’s holding expressly to
impeachment evidence. In both United States v. Sutton, 542 F.2d
1239 (4th Cir. 1976), and Boone v. Paderick, 541 F.2d 447 (4th
Cir. 1976), we overturned a defendant’s criminal conviction on
the ground that police had suppressed exculpatory information
bearing on the veracity of a witness’s testimony. See Sutton,
542 F.2d at 1241 n.2, 1243; Boone, 541 F.2d at 453. As in
Barbee, we reiterated that where “material evidence which tends
to exculpate the defendant is not disclosed,” the failure to
disclose it “is not neutralized because it was in the hands of
the police rather than the prosecutor.” Boone, 541 F.2d at 450–
51.
38
Finally, in Goodwin, 885 F.2d at 163-64, we applied
Barbee’s logic to § 1983 cases. See also Carter v. Burch, 39
F.3d 257, 263-64 (4th Cir. 1994). In Goodwin, we upheld a jury
award of thousands of dollars against a South Carolina police
officer who, in 1983, failed to disclose exculpatory evidence.
In doing so, we rejected the officer’s qualified-immunity
defense because we determined that a “reasonable officer [acting
in 1983] would have known that a prosecution carried out without
. . . disclosure of exculpatory information would violate the
constitutional rights of the criminal defendants.” 885 F.2d at
164. 8 Goodwin thus capped an unbroken chain of circuit precedent
affirming –- then reaffirming –- that criminal defendants’
rights are violated by police officers’ malicious suppression of
evidence.
The partial dissent offers a different view. It maintains
that the law was not clearly established in 1988 because the
cases decided before that date -- Barbee, Sutton, and Boone –-
imposed no independent obligation on police officers to disclose
8
We were not alone. Other circuits have similarly held
that by 1988, police officers violated the Constitution by
suppressing exculpatory evidence in bad faith. See, e.g.,
McMillian v. Johnson, 88 F.3d 1554, 1569 (11th Cir. 1996)
(discussing 1987 police action); Walker v. City of New York, 974
F.2d 293, 299 (2d Cir. 1992) (discussing 1971 police action);
Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir. 1988)
(discussing 1981-82 police action); Geter v. Fortenberry, 849
F.2d 1550, 1559 (5th Cir. 1988) (discussing 1982 police action).
39
exculpatory evidence. The dissent insists that Barbee, Sutton,
and Boone stand only for the proposition that “a police
officer’s knowledge of exculpatory evidence will be imputed to
the prosecutor for Brady purposes.” This holding, the dissent
contends, fails to notify police officers of their
susceptibility to suit, and thus, the Officers in the case at
hand enjoy qualified immunity.
We cannot agree. Qualified immunity exists to ensure that
“public officials performing discretionary functions [are] free
to act without fear of retributive suits . . . except when they
should have understood that particular conduct was unlawful.”
Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004). Ever since
it first articulated the contours of modern qualified-immunity
doctrine, the Supreme Court has emphasized that qualified
immunity assesses the apparent unlawfulness of conduct. See
Harlow, 457 U.S. at 819 (“[W]here an official could be expected
to know that certain conduct would violate statutory or
constitutional rights . . . , a person who suffers injury caused
by such conduct may have a cause of action.” (emphasis added));
see also id. (explaining that qualified immunity provides “no
license to lawless conduct” (emphasis added)); Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (explaining that qualified
immunity concerns “whether the conduct of which the plaintiff
complains violated clearly established law” (emphasis added)).
40
Barbee, Sutton, and Boone each held that certain conduct by
police officers -– the suppression of material exculpatory
evidence –- results in the violation of criminal defendants’
rights. Whether or not an officer’s knowledge is “imputed” to
the prosecutor does not affect the lawfulness of the officer’s
own conduct. See Limone, 372 F.3d at 47 (rejecting police
officers’ argument that law was not clearly established because
cases announcing plaintiff’s constitutional right referenced
“the State’s” obligations, not those of police officers).
Barbee, Sutton, and Boone taught police officers how to conform
their conduct to the law. These cases each held that if a
police officer suppresses material exculpatory evidence, courts
will invalidate a defendant’s criminal sentence as
unconstitutional. A police officer acting after the issuance of
these decisions, like each of the Officers here, could not have
thought that the suppression of material exculpatory evidence
would pass constitutional muster. See, e.g., Cinello, 896 F.2d
at 655 (holding that police officers were on notice of
constitutional right’s existence because prior cases had
invalidated criminal sentences based on similar misconduct).
Goodwin recognized this reality, and held in light of
Barbee, Sutton, and Boone that a police officer’s obligation to
disclose material exculpatory evidence was clearly established
by 1983, five years prior to the Brady violations alleged in
41
this case. Yet the dissent suggests that our reliance on
Goodwin retroactively subjects the Officers to liability. Not
so. For although Goodwin issued after the Officers in this case
acted, Goodwin announced no new rule of constitutional law.
Rather, it merely held, in light of the constitutional rule
already established by Barbee, Sutton, and Boone, that a police
officer’s duty to disclose material exculpatory evidence was
clearly established in 1983. If a right was clearly established
in 1983 (as Goodwin held), it must have been clearly established
in 1988 (when the Officers acted). To hold to the contrary
would directly conflict with Goodwin. 9
9
In hopes of convincing us to the contrary, the Officers
rely on Jean v. Collins, 155 F.3d 701 (4th Cir. 1998) (“Jean
I”), vacated, 526 U.S. 1142 (1999), which they contend renders
the state of our precedent uncertain. That opinion, however,
does not assist them. Jean I addressed conduct that took place
in 1982 –- predating the conduct we held unconstitutional in
Goodwin, and six years before the conduct at issue in this case.
Moreover, soon after the issuance of Jean I, the Supreme Court
vacated the decision for further consideration in light of
Wilson v. Layne, 526 U.S. 603 (1999). See Jean v. Collins, 526
U.S. 1142 (1999). On remand, because the en banc court was
equally divided, the district court’s denial of relief was
affirmed. Those judges voting to affirm concluded that summary
judgment was appropriate because the plaintiff had failed to
offer sufficient evidence of the Officers’ unconstitutional
conduct. Jean II, 221 F.3d at 663 (Wilkinson, C.J.,
concurring). These judges nonetheless left intact Barbee,
Sutton, Boone, and Goodwin, and expressly affirmed that “a
police officer’s actions in failing to turn over materially
exculpatory evidence to a prosecutor” violates a criminal
defendant’s constitutional rights. Id. at 659 (quotation marks
and alterations omitted).
42
Indeed, if the dissent is correct and Barbee, Sutton, and
Boone announced no rule of constitutional law applicable to
police officers, then Goodwin was wrongly decided. For
according to the dissent’s view, Goodwin acted in the absence of
any prior circuit precedent to hold that a constitutional right
was clearly established and so a police officer did not enjoy
qualified immunity. We cannot endorse such an extraordinary
view of our precedent.
In sum, our precedent unmistakably provides that, by 1988,
a police officer violates clearly established constitutional law
when he suppresses material exculpatory evidence in bad faith.
Accordingly, we hold that the Officers were clearly on notice of
the impermissibility of their conduct in 1988, the time of the
alleged violations. 10
10
The Officers unpersuasively rely on three unpublished
post-1988 opinions to bolster their contention that the rights
Owens asserts were not clearly established in 1988. But, as we
have repeatedly explained, unpublished opinions are not
precedent in this circuit. See, e.g., Hogan v. Carter, 85 F.3d
1113, 1118 (4th Cir. 1996) (en banc). Thus, these unpublished
opinions cannot alter the clear rule set forth in the published
opinions discussed above. Nor do they reflect the kind of
judicial disagreement that makes qualified immunity appropriate.
Just as a dissent does not articulate the law of the case,
unpublished opinions do not articulate the law of the circuit.
Both may reflect judicial disagreement about whether a right is
in fact clearly established, but neither can displace the
circuit’s binding authority. Cf. Brockington, 637 F.3d at 507
(holding that unpublished decisions suggesting that no
constitutional right was violated did not entitle a defendant to
qualified immunity).
43
V.
Finally, we address whether Owens has stated a plausible
claim against the BCPD.
A.
Section 1983 provides that “[e]very person,” who, under
color of state law causes the violation of another’s federal
rights shall be liable to the party injured by his conduct. See
42 U.S.C. § 1983. In Monell v. New York City Department of
Social Services, 436 U.S. 658, 690 (1978), the Supreme Court
held that municipalities qualify as “persons” under the statute,
rendering them amenable to suit.
Unlike public officials, municipalities do not enjoy
qualified immunity. See Owen v. City of Independence, 445 U.S.
622, 638 (1980). Accordingly, claims against municipalities are
measured against current law, without regard to whether
municipalities’ obligations were clearly established at the time
of the alleged violations. Id. at 634; see also Barber v. City
of Salem, 953 F.2d 232, 237-38 (6th Cir. 1992).
For these reasons, the district court erred in dismissing
Owens’s claims against the BCPD on the basis of qualified
immunity. Apparently recognizing this, the BCPD does not now
contend that it has immunity. Rather, it argues that dismissal
of the claim against it was nonetheless proper because Owens has
assertedly “failed to plead sufficient facts” to set forth a
44
plausible Monell claim. Appellees’ Br. 43. We turn to that
argument.
B.
Although municipalities, unlike public officials, cannot
claim immunity from suit, the Supreme Court has expressly
cabined their liability: under Monell, a municipality is liable
only for its own illegal acts. See 436 U.S. at 691 (stating
that a municipality “cannot be held liable solely because it
employs a tortfeasor” (emphasis in original)); see also Connick
v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“[Municipalities] are
not vicariously liable under § 1983 for their employees’
actions.”). Pursuant to this standard, a municipality is liable
under § 1983 if it follows a custom, policy, or practice by
which local officials violate a plaintiff’s constitutional
rights. Monell, 436 U.S. at 694. Only if a municipality
subscribes to a custom, policy, or practice can it be said to
have committed an independent act, the sine qua non of Monell
liability.
Here, Owens alleges that the BCPD violated his federal
constitutional rights pursuant to a municipal custom, policy, or
practice. Specifically, he alleges that “[a]t all times
relevant to this case,” the BCPD “maintained a custom, policy,
and/or practice” of condoning its officers’ conduct in
“knowingly, consciously, and repeatedly with[holding] and
45
suppress[ing]” exculpatory evidence. Owens’s complaint thus
alleges a theory of custom “by condonation.” Spell v. McDaniel,
824 F.2d 1380, 1390 (4th Cir. 1987). Under this theory of
liability, a city violates § 1983 if municipal policymakers fail
“to put a stop to or correct a widespread pattern of
unconstitutional conduct.” Id. at 1389. Owens alleges that by
failing to correct its officers’ pervasive suppression of
evidence, the BCPD injured him, committing an independent act
that renders it liable under § 1983.
Prevailing under such a theory is no easy task. A
plaintiff must point to a “persistent and widespread practice[]
of municipal officials,” the “duration and frequency” of which
indicate that policymakers (1) had actual or constructive
knowledge of the conduct, and (2) failed to correct it due to
their “deliberate indifference.” Id. at 1386–91 (alterations
omitted). Both knowledge and indifference can be inferred from
the “extent” of employees’ misconduct. Id. at 1391. Sporadic
or isolated violations of rights will not give rise to Monell
liability; only “widespread or flagrant” violations will. Id.
at 1387.
Although prevailing on the merits of a Monell claim is
difficult, simply alleging such a claim is, by definition,
easier. For to survive a motion to dismiss under Rule 12(b)(6),
a complaint need only allege facts which, if true, “‘state a
46
claim to relief that is plausible on its face.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570) (emphasis added).
The recitation of facts need not be particularly detailed, and
the chance of success need not be particularly high. See Iqbal,
556 U.S. at 678; Twombly, 550 U.S. at 570. A plaintiff fails to
state a claim only when he offers “labels and conclusions” or
formulaically recites the elements of his § 1983 cause of
action. Iqbal, 556 U.S. at 678.
In support of his claim, Owens alleges that “[r]eported and
unreported cases from the period of time before and during the
events complained of” establish that the BCPD had a custom,
policy, or practice of knowingly and repeatedly suppressing
exculpatory evidence in criminal prosecutions. He further
alleges that “a number of motions were filed and granted during
this time period that demonstrate that [the BCPD] maintained a
custom, policy, or practice to allow this type of behavior
either directly or . . . by condoning it, and/or knowingly
turning a blind eye to it.” The assertions as to “reported and
unreported cases” and numerous “successful motions” are factual
allegations, the veracity of which could plausibly support a
Monell claim. That BCPD officers withheld information on
multiple occasions could establish a “persistent and widespread”
pattern of practice, the hallmark of an impermissible custom.
Spell, 824 F.2d at 1386. If (but only if) the duration and
47
frequency of this conduct was widespread and recurrent, the
BCPD’s failure to address it could qualify as “deliberate
indifference.” Id. at 1391.
Urging a different result, the BCPD contends that Owens
alleges nothing more than “unadorned, the-defendant-unlawfully-
harmed-me accusation[s].” See Appellees’ Br. 47 (quoting Iqbal,
556 U.S. at 678). We recognize, of course, that courts have
dismissed Monell claims when the plaintiff has alleged nothing
more than a municipality’s adherence to an impermissible custom.
But Owens has done more than that: Owens has alleged facts –-
the existence of “reported and unreported cases” and numerous
“successful motions” –- which, if true, would buttress his legal
conclusion.
Owens’s brief, but non-conclusory, allegations closely
resemble those in Haley v. City of Boston, 657 F.3d 39 (1st Cir.
2011). There, a defendant was convicted of murder when two
Boston police officers suppressed a witness’s statement casting
doubt on his guilt. Id. at 45. The defendant discovered this
Brady material, and after thirty-four years in prison, obtained
his release; he then sued the Boston Police Department under
§ 1983. The First Circuit reversed the district court’s
dismissal of the claim, holding that the defendant had stated a
plausible Monell claim against the Boston Police Department in
view of the “wholly unexplained” nature of its officers’
48
suppression of evidence and the alleged (but not identified in
the opinion or record) “volume of cases” involving similar
violations in the Boston Police Department. Id. at 53; see also
Complaint, Haley v. City of Boston, 677 F. Supp. 2d 379 (D.
Mass. 2009) (No. 1:09-cv-10197). The Haley court concluded that
this “volume” of other cases documenting officers’ suppression
of evidence lent credence to the claim that policymakers
“encouraged, or at least tolerated” an impermissible practice.
Haley, 657 F.3d at 53. Accordingly, “[a]lthough [the complaint
was] couched in general terms,” the court concluded that the
complaint nonetheless “contain[ed] sufficient factual content to
survive a motion to dismiss.” Id.The same reasoning applies here. Of course, to prevail on
the merits, Owens will have to do more than allege a pervasive
practice of BCPD misconduct; he must prove it. But at this
early stage in the proceedings, we must conclude that Owens has
pled sufficient factual content to survive Rule 12(b)(6)
dismissal.
VI.
For the reasons set forth above, we affirm the judgment of
district court to the extent it dismisses Owens’s claims against
the Baltimore City State’s Attorney’s Office. We vacate the
judgment in all other respects. We remand the case to the
49
district court for further proceedings consistent with this
opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
50
TRAXLER, Chief Judge, concurring in part and dissenting in part:
I concur in parts III, IV.A, and V of the majority opinion.
However, I respectfully dissent from parts II and IV.B. First,
I believe that Owens’ Brady claims were untimely because they
accrued when he discovered the exculpatory and impeaching
evidence that had not been disclosed, not when the proceeding
was subsequently terminated via entry of the nolle prosequi.
Second, I would conclude that the district court correctly
determined that the individual defendants were entitled to
qualified immunity because it was not clearly established in the
spring of 1988 that a police officer’s failure to disclose
exculpatory evidence made the officer potentially liable for a
violation of a criminal defendant’s constitutional rights.
I.
I turn first to the question of whether Owens’ claims are
completely time-barred. Because “[t]here is no federal statute
of limitations for § 1983 claims, . . . the state limitations
period which governs personal injury actions is applied.” Lewis
v. Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir. 1991)
(per curiam); see Wallace v. Kato, 549 U.S. 384, 387 (2007). In
this case, we apply Maryland’s three-year limitations period for
personal injury actions. See Md. Code Ann., Cts. & Jud. Proc. §
5-101. This much is beyond debate. When Owens’ § 1983 claim
accrued, however, is a more difficult question.
51
“[T]he accrual date of a § 1983 cause of action is a
question of federal law that is not resolved by reference to
state law.” Wallace, 549 U.S. at 388. In addressing this very
issue, the Supreme Court stated that the “standard rule” for
determining the date a cause of action accrues is to determine
“when the plaintiff has a complete and present cause of action,
that is, when the plaintiff can file suit and obtain relief.”
Id. (internal quotation marks and citations omitted). Generally
speaking, a federal claim “accrues when the plaintiff knows or
has reason to know that the act providing the basis of his or
her injury has occurred,” and therefore “we typically determine
the accrual of a § 1983 action by looking to the event that
should have alerted the typical lay person to protect his or her
rights.” D’Ambrosio v. Marino, 747 F.3d 378, 384 (6th Cir.
2014) (internal alterations and quotation marks omitted); see
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir.
1995) (en banc) (explaining that under federal law, a cause of
action accrues “when the plaintiff possesses sufficient facts
about the harm done to him that reasonable inquiry will reveal
his cause of action.”); cf. Wallace, 549 U.S. at 388 (observing
that, under the standard rule, there can be no dispute that
petitioner could have filed suit as soon as the allegedly
wrongful arrest occurred . . . so that statute of limitations
would normally commence to run from that date”).
52
Owens’ claim is based on the defendant police officers’
failure to disclose exculpatory evidence—a due process claim
that clearly arises pursuant to Brady v. Maryland. Thus,
“application of the general rule would indicate that
[plaintiff’s § 1983] cause of action [based on Brady] accrued—
and the limitations period began—when [plaintiff] discovered
that the exculpatory evidence in question had not been disclosed
to him.” D’Ambrosio, 747 F.3d at 384 (emphasis added); see
Julian v. Hanna, 732 F.3d 842, 849 (7th Cir. 2013). Owens
clearly knew about at least some of the exculpatory evidence—
specifically the fact that James Thompson gave police several
different versions of his testimony before and during trial—as
early as October 1989, when the Maryland Court of Special
Appeals recounted the shifting testimony in an opinion affirming
Owens’ conviction. At the very latest, Owens was aware of the
exculpatory and impeachment evidence at issue in this appeal in
June 11, 2008, when his counsel filed a motion to exclude that
evidence at his retrial and detailed the evidence discovered
after the original trial.
But this does not end the analysis. In determining the
accrual date of a § 1983 claim, we should consider the most
analogous common-law cause of action as a guidepost. Assuming
the most analogous common law tort is malicious prosecution, its
“favorable termination” requirement constitutes a “distinctive
53
rule” of accrual that displaces the general rule that a claim
accrues when the plaintiff knows or has reason to know of his
injury. See Wallace, 549 U.S. at 388. Because the favorable-
termination element “constitutes a prerequisite for recovery” on
a malicious prosecution claim, it naturally “establishes the
time from which the claim accrues”). See Lambert v. Williams,
223 F.3d 257, 262 n.3 (4th Cir. 2000).
I part ways with my friends in the majority on the
application of the “favorable termination” requirement in this
context. The majority notes that in order to satisfy the
favorable termination element of a malicious prosecution claim,
the plaintiff must demonstrate that the criminal proceedings
against him have been terminated in such a way that they cannot
be revived. See Poventud v. City of New York, 750 F.3d 121,
130-31 (2nd Cir. 2014) (en banc) (“Under the common law any
final termination of a criminal proceeding in favor of the
accused, such that the proceeding cannot be brought again,
qualifies as a favorable termination for purposes of a malicious
prosecution action.”). Following this approach, they conclude
that the proceedings were not formally terminated until the
nolle prosequi was entered.
In my view, the majority adheres a bit too rigidly to the
common-law analogue rather than using it as a “starting point”
that “provides a useful guidepost in making sense of alleged
54
constitutional injuries” for determining the contours of claims
of constitutional violations under § 1983.” Becker v. Kroll,
494 F.3d 904, 913-14 (10th Cir. 2007); see Heck, 512 U.S. at 493(recognizing that the common law is a “‘starting point’ for the
analysis under § 1983” but that our analysis should never be
“slavishly derived” from the common law) (internal quotation
marks omitted) (Souter, J., concurring); Carey v. Piphus, 435
U.S. 247, 258 (1978) (recognizing common-law tort rules as the
“starting point for the inquiry under § 1983”).
Indeed, it is appropriate to consider the underlying
purpose of the elements of the common law analogue to determine
whether they can be imported for accrual purposes under § 1983.
See Heck, 512 U.S. at 484 (taking into account the purpose of
the favorable termination requirement). The favorable
termination requirement is intended to guard against “the
possibility of the claimant . . . succeeding in the tort action
after having been convicted in the underlying criminal
prosecution, in contravention of a strong judicial policy
against the creation of two conflicting resolutions arising out
of the same or identical transaction.” Kossler v. Crisanti, 564
F.3d 181, 187 (3d Cir. 2009) (en banc) (internal quotation marks
omitted). Thus, this element is satisfied where a prior
criminal case against the plaintiff has been disposed of in a
way that indicates the plaintiff’s innocence. See Murphy v.
55
Lynn, 118 F.3d 938, 948 (2d Cir. 1997); see Restatement (Second)
of Torts § 660 cmt. a; see also Taylor v. Gregg, 36 F.3d 453,
456 (5th Cir. 1994) (per curiam); Uboh v. Reno, 141 F.3d 1000,
1004 (11th Cir. 1998).
This reasoning makes little sense when considering the
accrual date for Brady claims under § 1983. For a Brady claim,
the plaintiff need only demonstrate “that prejudice resulted
from the suppression.” Vinson, 436 F.3d at 420. “[A]
defendant’s right to pre-trial disclosure under Brady is not
conditioned on his ability to demonstrate that he would or even
probably would prevail at trial if the evidence were disclosed,
much less that he is in fact innocent.” Poventud, 750 F.3d at
133 (internal quotation marks omitted). Brady is meant to
ensure a fair trial; “[t]he remedy for a Brady claim is
therefore a new trial, as proof of the constitutional violation
need not be at odds with [defendant’s] guilt.” Id.; see id.
(“[T]he remedy for a Brady violation is vacatur of the judgment
of conviction and a new trial in which the defendant now has the
Brady material available to [him].”); accord Julian, 732 F.3d at
849 (“Unlike [a] malicious prosecution claim, [a] Brady claim
may have accrued when [the criminal defendant/§ 1983 plaintiff]
was granted a new trial . . . before the charges against him
were dropped; and ordinarily a Brady claim does not accrue until
that happens. But although [plaintiff’s] ordeal was not over
56
(because he was subject to being retried), his Brady claim was
ripe. The exculpatory evidence had been revealed; the harm the
alleged Brady violation had done could not be affected by a
retrial.” (internal citations omitted)). 1
Accordingly, I would conclude that the proceedings were
“favorably terminated” when Owens’ conviction was vacated and he
was granted a new trial on June 7, 2007. The Brady violation
was complete; “the harm the alleged Brady violation had done
could not be affected by a retrial.” Julian, 732 F.3d at 849
His claim was therefore ripe and, assuming he knew about the
undisclosed exculpatory evidence in question at that point, the
limitations period began running at that time. Alternatively,
as previously noted, Owens at the latest was aware of the
exculpatory evidence by June 11, 2008, when his attorney filed
a motion to exclude that evidence at his retrial. Either way,
Owens’ claims are untimely.
1
In finding my position unfaithful to the judicial policy
against the creation of conflicting resolutions, my colleagues
incorrectly assume that if a Brady claim and a malicious
prosecution claim produce different results, they will have
produced conflicting results. But that is not so for reasons I
have already suggested. A Brady claim under § 1983 seeks
relief, regardless of the plaintiff’s guilt or innocence, for
the deprivation of a fair trial as a result of the prosecution’s
failure to disclose exculpatory evidence. A malicious
prosecution claim seeks to remedy the seizure of the plaintiff
pursuant to legal process that was unsupported by probable
cause. It would be perfectly consistent to succeed on a Brady
claim but fail on a malicious prosecution claim.
57
II.
As discussed above, I believe Owens’ claims are time-
barred. But even if the claims were timely filed, I believe his
claims against the individual officers fail on qualified
immunity grounds. To satisfy the “clearly established” prong of
the qualified immunity analysis, “a right must be sufficiently
clear that every reasonable official would have understood that
what he is doing violates that right.” Reichle v. Howards, 132
S. Ct. 2088, 2093 (2012) (alterations and internal quotation
marks omitted). That is, “existing precedent must have placed
the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). “This
clearly established standard protects the balance between
vindication of constitutional rights and government officials’
effective performance of their duties by ensuring that officials
can reasonably anticipate when their conduct may give rise to
liability for damages.” Reichle, 132 S. Ct. at 2093 (emphasis
added) (alteration and internal quotation marks omitted). In
applying the “clearly established” standard, we “ordinarily 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. If a right is recognized in some other circuit, but not
in this one, an official will ordinarily retain the immunity
defense.” Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th
58
Cir. 1999) (internal quotation marks, alterations, and citation
omitted). In deciding “whether the right at issue was clearly
established at the time of the officer’s conduct,” Meyers v.
Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013)
(emphasis added) (internal quotation marks omitted), we are
interested in relevant decisions that were decided before the
conduct currently at issue occurred, not decisions announced
afterward—even if those post-dated decisions involved underlying
violations that occurred prior to the alleged violations in this
case, see Fields v. Prater, 566 F.3d 381, 390 (4th Cir. 2009)
(qualified immunity protects defendants from being
“retroactively subject to significant penalties at law for which
they did not have proper notice”).
Owens was convicted by a jury in March 1988 and sentenced
in April 1988. Accordingly, for qualified immunity to be
overcome, it must have been clearly established at least by
early 1988 that a police officer violated a criminal defendant’s
due process rights by failing to furnish exculpatory evidence to
a prosecutor. Cf. United States v. Smith Grading & Paving,
Inc., 760 F.2d 527, 532 (4th Cir. 1985) (“No due process
violation occurs as long as Brady material is disclosed to a
defendant in time for its effective use at trial.”). Owens
relies on a variety of decisions that both pre-date and post-
date defendants’ conduct in the spring of 1988. In my view,
59
none of these decisions had placed the “constitutional question
beyond debate,” al-Kidd, 131 S. Ct. at 2083, by the late spring
of 1988. Accordingly, I would affirm the district court’s
conclusion that the individual officers were entitled to
qualified immunity.
A. Decisions Pre-Dating April 1988
Owens contends that law enforcement officers have been on
notice since this court’s 1964 decision in Barbee v. Warden, Md.
Penitentiary, 331 F.2d 842 (4th Cir. 1964), that an officer’s
failure to disclose exculpatory evidence to the prosecutor made
the officer potentially liable for a violation of a criminal
defendant’s constitutional rights. In Barbee, we granted a
defendant’s habeas petition to set aside his conviction “because
the prosecutor failed, either through lack of his personal
knowledge or for some other reason, to disclose at the trial
potentially exculpatory evidence in the possession of the
police.” Id. at 843. In doing so, the court rejected the idea
that the state’s failure to disclose exculpatory evidence was
excused when the police failed to turn such information over to
the state’s attorney. Barbee therefore stands for the
proposition that a police officer’s knowledge of exculpatory
evidence will be imputed to the prosecutor for Brady purposes.
See United States v. Sutton, 542 F.2d 1239, 1241 n.2 (4th Cir.
1976) (reversing conviction for failure to disclose exculpatory
60
evidence despite prosecutor’s lack of knowledge because “legally
what [the officer] knew must be imputed to the prosecutor”
(citing Barbee, 331 F.2d at 846)). Barbee simply did not
establish that a law enforcement officer violates a defendant’s
due process rights by failing to turn over potentially
exculpatory evidence to the prosecutor; see Jean v. Collins, 155
F.3d 701, 710 (4th Cir. 1998) (en banc) (“Jean I”) (explaining
that Barbee did not “impose[] a constitutional duty on police
officers to give evidence to a prosecutor” but “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”), vacated on other grounds, 526 U.S. 1142 (1999).
To the same effect is United States v. Sutton, which
reversed a bank robbery conviction on direct appeal on the
ground that the government failed to disclose exculpatory
evidence. See 542 F.2d at 1240. The court reached this
conclusion even though the prosecuting attorney apparently had
no knowledge of such evidence, concluding that “legally what
[the officer] knew must be imputed to the prosecutor.” Id. at
1241 n.2. And Boone v. Paderick, also cited by the majority,
granted habeas relief based on the prosecution’s failure to
disclose a law enforcement agent’s promise of favorable
treatment to a key government witness. See 541 F.2d 447, 448
(4th Cir. 1976). Boone even less clearly supports this
61
proposition as the prosecutor testified in the habeas
proceedings that he did not deny that the officer told him of
the promises and stated that he simply could not remember.
B. Decisions Post-Dating April 1988
Owens also relies on Goodwin v. Metts, a 1989 decision in
which the court let stand a jury award against a police officer
on a common law malicious prosecution cause of action. See 885
F.2d 157, 166-67 (4th Cir. 1989). Goodwin did not address any
due process claims based on Brady. Owens’ reliance on Goodwin
is based on the court’s statement that “[a] reasonable officer
would have known [in 1983, when the salient events occurred,]
that a prosecution carried out without probable cause or
disclosure of exculpatory information would violate the
constitutional rights of the criminal defendants.” Id. at 164.
Assuming Owens is correct that Goodwin puts officers on notice
that they “could be liable for their failure to disclose
exculpatory evidence,” Brief of Appellant at 40, such notice was
not provided until September 1989, when Goodwin was decided.
Owens’ trial took place between February and April 1988; thus,
Goodwin would have been of no value to the defendant police
officers in this case, whose failure to disclose evidence
occurred before Goodwin was decided.
Owens makes much of the fact that the conduct at issue in
Goodwin – for which the individual officers there were held
62
liable – happened in 1983. But for purposes of determining
“clearly established law” in the context of qualified immunity,
the relevant precedents “can only be applied prospectively” and
“cannot be imputed retroactively to an officer in this circuit
whose allegedly tortious conduct predated” the decision in
question. Hill v. Crum, 727 F.3d 312, 322 (4th Cir. 2013).
Thus, it only matters when the case was decided, not when the
underlying conduct occurred. 2 As the next section demonstrates,
our court later was sharply divided over the value of these
cases to a plaintiff suing individual officers.
C. Jean v. Collins I & II
Both Owens and the individual defendants claim support from
the two Jean v. Collins decisions. These decisions reveal only
that, even in 1998, this court was very much split over whether
Barbee, Goodwin and Carter established that a police officer
could be liable for his failure to disclose exculpatory
information. In Jean I, we affirmed the district court’s
conclusion that the defendant police officers were entitled to
qualified immunity because “the relevant sources of law do not
clearly establish that in 1982 police themselves labored under
2
Like Goodwin, Carter v. Burch, 34 F.3d 257 (4th Cir.
1994), was decided too late to be of any value to the officers
in this case. Carter upheld an award of nominal damages against
a police officer who failed to disclose exculpatory evidence in
connection with a trial occurring in March 1988; the court,
however, did not decide Carter until 1994.
63
federal constitutional duties with respect to the disclosure of
evidence to the prosecution.” 155 F.3d at 712. Of particular
relevance were the majority’s observations regarding Barbee:
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.
Id. at 710. Regarding Goodwin and Carter, the en banc court
recognized that these decisions “now [in 1989] 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,” but that because “[t]hese decisions . . .
postdate the events in this case . . . we do not adopt the
dissent’s theory that proper notice to defendants can be notice
after the fact.” Id. at 710 n.3. 3
On remand, the en banc court did not revisit the clearly
established prong, again affirming, this time by an equally
3
Thus, Jean I did not acknowledge that Goodwin and Carter
provided such notice with respect to conduct occurring after
1982. Since Goodwin and Carter were decided in 1989 and 1994,
respectively, it would not be possible for those decisions to
afford notice with respect to conduct occurring prior to 1989.
Even though Jean I was vacated and remanded, see 526 U.S.
1142 (1999), for reconsideration in light of Wilson v. Layne,
526 U.S. 603, 609 (1999), the Supreme Court did not address Jean
I’s conclusion that, as of 1982, police had no constitutional
duty to provide evidence to a prosecutor.
64
divided court, the district court’s grant of summary judgment.
See Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (“Jean II”)
The concurring opinion for affirmance, having concluded that
there was no constitutional violation because the officer’s
failure to disclose was in good faith, took the position that
that the Brady disclosure duty is one that rests with the
prosecution rather than with the police . See id. at 660–62.
By contrast, the dissenting opinion, arguing for reversal,
assumed the contrary view that officers owe an independent duty
under Brady to disclose exculpatory information. See id. at
664.
Although judicial unanimity is not required for a
constitutional right to be clearly established, that the judges
of this court so fervently disagreed in 1998 and 2000 about the
existence, contours and scope of an officer’s constitutional
duty to disclose exculpatory evidence strongly suggests that the
right was not clearly established at the time of Owens’ trial in
1988. See Swanson v. Powers, 937 F.2d 965, 968 (4th Cir. 1991)
(“Since qualified immunity is appropriate if reasonable officers
could disagree on the relevant issue, it surely must be
appropriate when reasonable jurists can do so.” (citation
omitted)); see also Wilson v. Layne, 526 U.S. 603, 618 (1999)
(“If judges thus disagree on a constitutional question, it is
65
unfair to subject police to money damages for picking the losing
side of the controversy.”).
In sum, I would conclude that the defendant police officers
are entitled to qualified immunity as it was not clearly
established at the time they failed to disclose exculpatory
evidence that police officers had a constitutional duty to
disclose exculpatory evidence to criminal defendants.
Accordingly, I respectfully dissent and vote to affirm the grant
of qualified immunity to the individual officers. 4
4
My friends in the majority characterize as “extraordinary”
my view that none of the decisions they cite—most notably
Barbee, Sutton, Boone and Goodwin—placed the “constitutional
question beyond debate,” al-Kidd, 131 S. Ct. at 2083, for
officers’ conduct occurring prior to the issuance of Goodwin,
the most recent of these. Given that more than half of the
members of the en banc court in 1998 espoused this view,
including two judges currently still sitting on the court, it is
hardly a stunning or unsupportable one. See Jean v. Collins,
155 F.3d 701 (4th Cir. 1998) (en banc) (authored by Wilkinson,
C.J., and joined by Niemeyer, J.), vacated on other grounds, 526
U.S. 1142 (1999).
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WYNN, Circuit Judge, dissenting in part:
I agree with nearly all aspects of the thoughtful and well-
reasoned majority opinion. The only issue on which I part ways
with the majority is whether the Baltimore City State’s
Attorney’s Office is an entity amenable to suit. I conclude
that it is, and I would remand for the district court to fully
consider whether the Baltimore City State’s Attorney’s Office is
entitled to sovereign immunity. Accordingly, on this issue
alone, I respectfully dissent.
I.
Rule 17(b) of the Federal Rules of Civil Procedure requires
us to look to the “law of the state where the court is located”
to determine whether an entity that is not an individual or a
corporation has the capacity to be sued. Fed. R. Civ. P.
17(b)(3). I agree with the majority that Maryland’s courts do
not yet appear to have determined whether the Baltimore City
State’s Attorney’s Office has the capacity to be sued. But a
close look at the Maryland Constitution and the Maryland
Criminal Procedure Code convince me that it is.
The Maryland Constitution establishes a State’s Attorney
for each county and for the City of Baltimore—and it goes
further with specific provisions that apply only to “the State’s
Attorney for Baltimore City.” Md. Const. art. V, § 9. For
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example, the Constitution provides “that the State’s Attorney
for Baltimore City shall have the power to appoint a Deputy and
such other Assistants as the Supreme Bench of Baltimore City may
authorize or approve[.]” Id. Maryland’s Constitution also
specifies salaries for Baltimore’s State’s Attorney, Baltimore’s
Deputy State’s Attorney, and Baltimore’s Assistant State’s
Attorneys. Id. Finally, it states that the “expenses for
conducting the office of the State’s Attorney . . . shall be
paid by the Mayor and City Council of Baltimore[.]” Id.
Not surprisingly, then, Maryland’s Criminal Procedure Code
acknowledges the existence of the “Office of the State’s
Attorney” that the Maryland Constitution created. Md. Code Ann.
Crim. Proc. § 15. Not only is Criminal Procedure Code Title 15
named “Office of the State’s Attorney,” * id., but it defines
“State’s Attorney” as “the individual holding that office under
Article V, § 7 of the Maryland Constitution[,]” id. § 15-101.
*
The majority opinion states that the title of the code
section “provides little assistance to courts interpreting
statutory provisions.” Ante at 25. Although this is certainly
a valid canon of construction, it has no relevance here for two
reasons. First, we are not interpreting the Maryland Criminal
Procedure Code itself; we are determining whether a particular
thing—the Baltimore City State’s Attorney’s Office—has a
distinct legal identity. Second, that particular canon of
construction applies when the statute subject to interpretation
contains “some ambiguous word or phrase.” Bhd. of R.R. Trainmen
v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528–29 (1947). The
majority points to nothing ambiguous in the statute that might
trigger the application of that canon.
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It sets forth all of the duties and powers possessed by that
Office, id. §§ 15-102–109, and it distinguishes the Office of
the State’s Attorney from the Office of the State Prosecutor,
which was established to be “an independent unit in the Office
of the Attorney General.” Id. § 14-102(a)(2).
Were this a case about a sheriff’s department, I, too,
would perceive the need to “remain faithful to the [Maryland
Court of Appeals’s] analysis in Boyer.” Ante at 27. But this
is a case about the Baltimore City State’s Attorney’s Office,
not a sheriff’s department. All the Boyer court concluded was
that there is no such thing as the “Charles County ‘Sheriff’s
Department,’” which was how the plaintiff in that case named the
defendant in his complaint. Also, with one exception, the Boyer
court consistently referred to the entity in that case as the
Charles County “Sheriff’s Department”—with quotation marks
around “Sheriff’s Department.” It should come as no surprise,
then, that the Boyer court determined that the Charles County
“Sheriff’s Department” is not a legal entity; after all, the
Boyer court explained that they could find nothing “establishing
an entity known as the Charles County “‘Sheriff’s Department.’”
Boyer v. State, 594 A.2d 121, 128 n.9 (Md. 1991). In short,
nothing in Boyer persuades me that the Maryland Court of Appeals
used that case to set forth an analytical framework for
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determining whether entities other than the Charles County
Sheriff’s Department are amenable to suit.
Unlike the majority, I do not read footnote 9 in Boyer to
stand for the broad assertion of Maryland state law that “absent
a statutory or constitutional provision creating a governmental
agency, an ‘office’ or ‘department’ bears no unique legal
identity, and thus, it cannot be sued under Maryland law.” Ante
at 23. Instead, that footnote explains why the Maryland Court
of Appeals determined that the Charles County Sheriff’s
Department was not a governmental agency or a stand-alone legal
entity capable of being sued. In other words, the absence of
any mention of the Charles County Sheriff’s Department either in
the Maryland Constitution or in any other state statute confirms
only the legal nonexistence of that particular department.
But even assuming for the sake of argument that footnote 9
in Boyer stands for the broad proposition that the majority
opinion ascribes to it, I would still conclude that the
Baltimore City State’s Attorney’s Office is a governmental
agency amenable to suit for the reasons stated above. To
reiterate, the Maryland Constitution clearly establishes the
Baltimore City State’s Attorney’s Office, and the Maryland
Criminal Procedure Code provides additional evidence of that
Office’s existence. Because I think that the Maryland
70
Constitution is clear, I find it outside of our purview to add
our gloss to it.
The majority opinion suggests that the establishment of the
Office of the State’s Attorney’s Coordinator provides evidence
“[t]hat the Maryland General Assembly knew how to create such an
office, yet failed to do so with respect to the” Baltimore City
State’s Attorney’s Office. Ante at 24. The majority is
persuaded that the absence of a similar statute creating the
Baltimore City State’s Attorney’s Office “confirms” that the
Office “bears no unique legal identity.” Id. But “[a]s one
court has aptly put it, ‘[n]ot every silence is pregnant.’”
Burns v. United States, 501 U.S. 129, 136 (1991) (quoting Ill.
Dep’t of Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir.
1983)), abrogated on other grounds by United States v. Booker,
543 U.S. 220 (2005). I conclude that a more reasonable
interpretation of the fact that the Maryland General Assembly
has not enacted a statute establishing the Baltimore City
State’s Attorney’s Office is that the Maryland Constitution had
already done so.
Finally, even if I thought that Maryland law was unclear on
this point, I am not persuaded that the majority opinion
captures the way that the Maryland Court of Appeals would rule
on the issue. “The highest state court is the final authority
on state law, but it is still the duty of the federal courts,
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where the state law supplies the rule of decision, to ascertain
and apply that law even though it has not been expounded by the
highest court of the State.” Fidelity Union Trust Co. v. Field,
311 U.S. 169, 177 (1940) (citations and footnote omitted). When
the state law is unclear, we “must apply the law . . . as it
appears the highest court of that state would rule.” Brendle v.
General Tire & Rubber Co., 505 F.2d 243, 245 (4th Cir. 1974)
(emphasis added).
II.
Because I would hold that the Baltimore City State’s
Attorney’s Office is a legal entity capable of being sued, I
would also reach the question of whether the district court
erred in determining that the Baltimore City State’s Attorney’s
Office is entitled to sovereign immunity. Although the Eleventh
Amendment prevents plaintiffs from suing states and “arms of the
state” in federal court, “Eleventh Amendment immunity does not
extend to counties and similar municipal corporations[,] . . .
even if [they] exercise a slice of State power.” Cash v.
Granville Cnty. Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001)
(quotations marks and citations omitted); Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978).
When an entity has both state and local characteristics,
“the entity’s potential legal liability” is relevant to the
72
Eleventh Amendment inquiry. Regents of the Univ. of Cal. v.
Doe, 519 U.S. 425, 431 (1997). “Because the State treasury
factor is ‘the most salient factor in Eleventh Amendment
determinations,’ a finding that the State treasury will not be
affected by a judgment against the governmental entity weighs
against finding that entity immune.” Cash, 242 F.3d at 224(quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48
(1994)). If the state would not be liable for judgment, courts
consider several additional factors, including the amount of
control that the state exercises over the entity, the scope of
the entity’s concerns, and the way in which state law treats the
entity to determine whether sovereign immunity bars the lawsuit.
Id.In his opposition to Defendants’ motion to dismiss, Owens
argued that the Baltimore City State’s Attorney’s Office is not
entitled to sovereign immunity because it is a “hybrid”
governmental unit “created by State law but funded and overseen
by a city or county government.” J.A. 75. Furthermore, Owens
attached exhibits to his opposition that show the State’s
Attorney on the City of Baltimore’s organization chart and as a
line item on the City’s general fund budget. [J.A. 88–90.]
Owens also specifically requested the opportunity to conduct
discovery on the matter. J.A. 82.
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But when it orally granted Defendants’ motion to dismiss,
the district court failed to analyze the case law discussed
above or to explain why it was rejecting Owens’s arguments in
favor of Defendants’ arguments. Further, the district court
failed to give the parties a “reasonable opportunity to present
all the material that is pertinent to the motion.” Fed. R. Civ.
P. 12(d). Instead, it simply declared that “based upon the
arguments as well as the case law cited in the briefs in this
case, . . . the State’s Attorneys [sic] Office is a State agency
and it certainly is entitled to [] sovereign immunity.” J.A.
355.
In the end, I would reverse and remand the case to the
district court with instructions to treat Defendants’ motion to
dismiss as a motion for summary judgment and to allow Owens to
pursue reasonable discovery as to the sovereign immunity issue.
See Plante v. Shivar, 540 F.2d 1233, 1235 (4th Cir. 1976).
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