NOT RECOMMENDED FOR PUBLICATION File Name: 23a0364n.06
No. 21-5968
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 09, 2023 ) DEBORAH S. HUNT, Clerk JEREL COLEMON, as personal ) representative of William R. Virgil, ) deceased, ) ON APPEAL FROM THE UNITED Plaintiff-Appellant, ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF v. ) KENTUCKY ) CITY OF CINCINNATI and STEVE ) OPINION DANIELS, Norwood Police Officer, ) Defendants-Appellees. ) )
Before: GRIFFIN, STRANCH, and DAVIS, Circuit Judges.
JANE B. STRANCH, Circuit Judge. In 2016, a Kentucky court vacated William Virgil’s
1988 murder conviction based on new DNA evidence. A grand jury declined to reindict him, and
Virgil was released after 28 years in prison. Virgil brought state and federal claims against the
police officers who investigated his case and the three cities that employed them: Newport,
Kentucky; Norwood, Ohio; and Cincinnati, Ohio. After discovery, the officers and cities moved
for summary judgment. The district court partially denied the City of Newport’s and the Newport
officers’ motions for summary judgment, but granted summary judgment to Norwood, Cincinnati,
and those cities’ officers as to all claims against them. Virgil now appeals the grant of summary
judgment as to his Brady claim against Norwood police officer Steve Daniels and as to his Monell
claim against the City of Cincinnati.1
1 Virgil died during this appeal and Jerel Colemon, Virgil’s relative and the representative of his estate, was substituted as his personal representative in the action. This opinion continues to refer to the Appellant as “Virgil.” No. 21-5968, Colemon v. City of Cincinnati, et al.
I. FACTUAL BACKGROUND
On April 13, 1987, the body of 54-year-old Retha Welch, a psychiatric nurse in Cincinnati,
Ohio, was found at her apartment in Newport, Kentucky. A post-mortem investigation showed
that she had been raped, stabbed twenty-eight times, and she suffered blunt force trauma to the
head. Defendant Newport police officers Marc Brandt, Norman Wagner, and Rick Sears led the
initial investigation into Welch’s murder, which identified 66 pieces of physical evidence from the
crime scene that included fingerprints and a partial bloody palm print. Investigators also noted
that jewelry had been taken from the apartment and that Welch’s pink Cadillac was missing.
Welch’s car was discovered the next day in Covington, Kentucky.
Welch knew several former prisoners, including Virgil, through a jail ministry program
with which she volunteered. After Virgil’s January 1987 release from prison, Welch helped him
secure housing and stayed in touch, assisting him with tasks like laundry. Welch’s ex-boyfriend
tentatively identified Virgil as a man that he had seen at Welch’s apartment days before her death
was discovered, and two of Virgil’s past girlfriends implicated him in the crime. One of his past
girlfriends, Sue Daniels, told detectives that Virgil had asked her to help him murder Welch in a
plot that included stealing her car and other personal property. Daniels’s probation officer
confirmed to detectives that Daniels had previously approached him about a boyfriend who
planned to commit a murder. Another past girlfriend, Betty Kelow, told detectives that Virgil had
asked her to help murder Welch because Welch had threatened to tell his parole officer that he had
stolen her credit card. Finally, a Newport officer secured a statement from Virgil’s onetime
cellmate, Joe Womack, that Virgil had confessed to Womack that he murdered Welch.
-2- No. 21-5968, Colemon v. City of Cincinnati, et al.
The Newport police identified additional suspects, including a man named Isaac Grubbs,
who used a witness’s phone to call Welch twice on April 11, 1987, and later that day was shot and
killed in a police standoff. Two witnesses also reported that on April 11, they saw a man who
matched Grubbs’s description, but not Virgil’s, driving, parking, and wiping down the surfaces of
a pink Cadillac.
Simultaneously, Newport police investigated whether Welch’s murder might be connected
to two other homicides committed between February and April 1987: the murder of Valerie Wilton
in Saint Bernard, Ohio, and the murder of Verlene Leon in Norwood, Ohio. Due to St. Bernard’s
limited resources, Cincinnati police were brought on to assist St. Bernard police with the Wilton
murder investigation. Norwood Police Officer Steve Daniels led the Leon investigation.
On April 16, 1987, officers from Norwood, Newport, and St. Bernard met to discuss the
three homicides; Cincinnati also acknowledges that its officers attended a meeting with Norwood,
Newport, and St. Bernard on April 15, 1987. Notes from the April 16 meeting show that
investigators compared details of the murder scenes and listed similarities including vaginal and
anal penetration in all three homicides, bars of soap left in the bathroom sinks at the scene in the
Welch and Leon murders, beer bottles at the scene in the Welch and Wilton murders, and cuts to
the throat in the Wilton and Welch homicides. Newport officer Brandt testified that officers
discussed whether there might be a common perpetrator of the homicides, a theory that he said he
rejected.
After the initial meetings, the investigations proceeded, with Cincinnati police assisting
Newport police with operations in Cincinnati. Cincinnati police helped Newport officers obtain
and execute a search warrant on Virgil’s father’s home in Cincinnati. A Cincinnati police officer,
Robert Cardone, obtained a search warrant in Cincinnati for Virgil’s hair and blood. Cincinnati
-3- No. 21-5968, Colemon v. City of Cincinnati, et al.
officers also helped Newport officers locate a potential witness, Virgil’s friend Karen Oglesby, in
Cincinnati, and Cincinnati officer Cardone interviewed Oglesby with Newport police on April 22,
1987. A St. Bernard police officer, Kevin Condon, also interviewed Oglesby, and Oglesby gave
Condon items of women’s clothing that Virgil had given her. File notes show that Newport officer
Wagner requested to take the clothes to be identified by Welch’s daughter or ex-boyfriend, but at
the time of his deposition, Wagner could not remember whether he took the clothes to be identified.
Officer Daniels of the Norwood police also acknowledges attending a meeting with other
investigators to compare notes about the three murders. Afterward, Daniels communicated with
St. Bernard officer Condon multiple times about the open homicide investigations in St. Bernard
and Norwood. This included an April 20 call from Daniels to Condon, in which Daniels “advised
that he would not go to the prosecutor’s office,” because “he couldn’t contribute additional
probable cause”; and a call from Daniels to Condon on April 23, in which Daniels asked to come
to the St. Bernard police department to exchange more information. These calls appear to have
been related to St. Bernard’s investigation of the Wilton murder.
The St. Bernard police closed the Wilton investigation after a person named Hiram Hyden
committed suicide on April 27, leaving a note that confessed to Wilton’s murder. Potentially
relevant to the Welch investigation, Hyden had received psychiatric treatment in April 1987,
before Welch’s death, at the hospital where she worked. Although no one has ever been charged
in the Leon homicide, the Leon investigative file identified a person named “Danny Staudt” as a
primary suspect based on a lie detector test.
-4- No. 21-5968, Colemon v. City of Cincinnati, et al.
The Kentucky prosecutor eventually secured an indictment against Virgil. At trial, the
Commonwealth relied on circumstantial evidence including testimony from Womack that Virgil
had confessed to him.2 The jury found Virgil guilty and sentenced him to 70 years in prison.
In 2015, Virgil was released and granted a new trial after DNA testing indicated his
innocence: DNA testing from the victim’s vaginal swab excluded Virgil as a contributor, DNA
testing showed with reasonable certainty that blood found on Virgil’s clothing did not belong to
Welch, and that hairs recovered at the crime scene were not Virgil’s. In 2016, Womack recanted
his testimony and revealed that it had been fabricated and coerced by Newport police. A grand
jury declined to reindict Virgil in 2017.
In 2016, Virgil sued thirteen officers and the cities of Newport, Norwood, and Cincinnati,
alleging multiple constitutional violations and state law tort claims. After discovery, all defendants
moved for summary judgment. The district court granted the motions for summary judgment of
the individual Cincinnati and Norwood officers, finding that they had no duty under Brady v.
Maryland, 373 U.S. 83 (1963), to disclose favorable evidence to Virgil, and likewise granted
summary judgment to the City of Cincinnati on Virgil’s claim under Monell v. Department of
Social Services of New York, 436 U.S. 658 (1978), reasoning that there was no underlying Brady
violation by the City’s officers.3 Virgil voluntarily dismissed his claims against the individual
Cincinnati officers at summary judgment. The district court also concluded that Virgil abandoned
2 Among others, the Commonwealth identified Cincinnati Officer Mike Phillips as a fact witness at trial. The court records supporting Phillips’s designation as a witness were not before the district court or initially submitted on appeal. Virgil has asked us to take judicial notice under Federal Rule of Evidence 201 of the fact that the Commonwealth identified Phillips as a fact witness. Because this information is not necessary to our analysis, we deny the motion as moot. 3 The district court also denied summary judgment to two Newport officers and the City of Newport. After briefing was completed in the Newport officers’ parallel appeal of the district court’s denial of qualified immunity, Virgil and the Newport defendants reached a settlement and voluntarily dismissed the appeal.
-5- No. 21-5968, Colemon v. City of Cincinnati, et al.
his Monell claim against the City of Norwood because his summary judgment brief did not discuss
it; Virgil does not contest this holding on appeal.
II. ANALYSIS
A district court’s grant of summary judgment is reviewed de novo. Wesley v.
Campbell, 779 F.3d 421, 434-35 (6th Cir. 2015). Summary judgment is appropriate here if,
construing the evidence and reasonable inferences in Virgil’s favor, Cincinnati and Officer Daniels
are entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(a).
Two questions remain in this appeal: (1) whether Officer Daniels violated Virgil’s clearly
established due process rights under Brady; and (2) whether the City of Cincinnati had a “policy
or custom” under Monell that caused Cincinnati police officers to violate Virgil’s due process
rights under Brady. Both issues require the Court to address whether officers—the Cincinnati
police and/or Officer Daniels—violated Brady by withholding evidence developed during their
investigation into whether Welch’s homicide was connected to the Wilton and Leon murders.
Because Cincinnati officers and officer Daniels had different levels of involvement in the
interjurisdictional investigation, and because Daniels asserts a qualified immunity defense, we
separately evaluate Virgil’s claims against the City of Cincinnati and Officer Daniels.
A. The City of Cincinnati
Although § 1983 may be exercised against a municipality, “liability attaches only under a
narrow set of circumstances[,]” and a municipality may not be held liable solely for employing a
tortfeasor. Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019). “Instead, a plaintiff
must show that ‘through its deliberate conduct, the municipality was the moving force behind the
injury alleged.’” Id. (quoting Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013)). For municipal
liability under Monell, Virgil must establish that Cincinnati had a “‘policy or custom’ that caused
-6- No. 21-5968, Colemon v. City of Cincinnati, et al.
the violation of his rights.” Id. (quoting Monell, 436 U.S. at 694). A plaintiff may demonstrate
that a city had such a policy or custom in four ways: “the plaintiff may prove ‘(1) the existence of
an illegal official policy or legislative enactment; (2) that an official with final decision making
authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision;
or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.’” Id.
(quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)). Virgil proceeds with the theory
that Cincinnati had a policy of inadequate training on Brady obligations.
Although Virgil continues to allege that Cincinnati is liable for violations of his rights by
its officers, he has voluntarily dismissed his Brady claim against the individual officers themselves.
Supreme Court and Sixth Circuit precedent holds that a constitutional injury is required to pursue
a Monell claim. See City of L. A. v. Heller, 475 U.S. 796, 799 (1986) (per curiam); D’Ambrosio v.
Marino, 747 F.3d 378, 391 (6th Cir. 2014). But “[i]t is undecided whether a municipality’s liability
under § 1983 is predicated on first finding that an individual officer or employee is also liable.”
Rayfield v. City of Grand Rapids, 768 F. App’x 495, 511 n.12 (6th Cir. 2019). As we held in
Winkler v. Madison County, municipalities “may be held liable under § 1983 in certain cases where
no individual liability is shown,” including when the municipality itself directly caused the
violation, or the violation was caused by a combination of government-sponsored conduct not
easily traceable to one individual official, “where municipal liability is based on the actions of
individual government actors other than those who are named as parties”—a situation that would
be functionally similar to Virgil’s voluntary dismissal of the individual government actors here.
893 F.3d 877, 899–901 (6th Cir. 2018) (quoting Epps v. Lauderdale Cnty., 45 F. App’x 332, 334-
35 (6th Cir. 2002) (Cole, J., concurring)). Our Circuit has previously determined a defendant
municipality’s Monell liability by evaluating only a non-party’s actions, suggesting that a party’s
-7- No. 21-5968, Colemon v. City of Cincinnati, et al.
liability is not required, as long as the court finds a constitutional violation occurred. Andrews v.
Wayne Cnty., 957 F.3d 714, 725 (6th Cir. 2020); see also Garner v. Memphis Police Dep’t, 8 F.3d
358, 365 (6th Cir. 1993) (rejecting City’s argument that because the only defendant officer in the
case had been dismissed by the district court, the City should also be dismissed).
But we need not decide whether a municipality’s Monell liability is always contingent on
finding an individual defendant liable for a constitutional violation. As explained below, even
assuming that Virgil may proceed with his § 1983 claim against the City of Cincinnati without
also suing the individual Cincinnati officers, he has not presented facts from which a jury could
find that the officers violated his due process rights under Brady. See D’Ambrosio, 747 F.3d at
391.
In Brady, the Supreme Court held that the prosecution violates due process when it
suppresses material evidence that is favorable to the accused. 373 U.S. at 87. Brady violations
are assessed using a three-part test: “The evidence at issue must be favorable to the accused, either
because it is exculpatory or because it is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently”; and, in what is sometimes called the materiality prong,
“prejudice must have ensued.” United States v. Castano, 906 F.3d 458, 466 (6th Cir. 2018)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Virgil argues that the Cincinnati
officers violated Brady by failing to disclose the Wilton and Leon investigative files, which he
argues included exculpatory evidence. In particular, he points to evidence of other suspects,
including Hiram Hyden, and the fact that Virgil was “cleared” as a suspect in the Wilton and Leon
murders.
Neither Cincinnati nor Daniels contest the district court’s holding that the evidence related
to the officers’ joint investigation was exculpatory. Information about other “legitimate
-8- No. 21-5968, Colemon v. City of Cincinnati, et al.
suspect[s]” typically favors a defendant and must be disclosed under Brady. D’Ambrosio v.
Bagley, 527 F.3d 489, 499 (6th Cir. 2008). Because the Cincinnati and Norwood officers
investigated whether the murders in their jurisdictions were linked with Welch’s murder, the
district court correctly reasoned that any suspects developed during that period would also be
considered suspects in Welch’s murder, and the fact that Virgil was cleared as a suspect in the
Wilton and Leon murders would tend to exculpate him from the Welch murder.
With respect to Brady’s second prong, however, the parties dispute whether the Cincinnati
officers had a duty to disclose exculpatory information to the Kentucky prosecutor. Police
investigating a case generally do have Brady-derived duties to disclose exculpatory information.
Although Brady imposes an absolute disclosure obligation only on prosecutors, “the police bear
. . . an equally important ‘Brady-derived’ responsibility to turn over potentially exculpatory
evidence to the prosecutor’s office.” Moldowan v. City of Warren, 578 F.3d 351, 381 (6th Cir.
2009) (quoting White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008) and reasoning that “there is
no doubt that the police are just as capable of depriving criminal defendants of a fundamentally
fair trial by suppressing exculpatory evidence.”). When the exculpatory value of evidence is
“apparent” to police, the police have a “constitutional duty to preserve and ultimately disclose that
evidence.” Id. at 388. Unlike the prosecutor, who must disclose exculpatory evidence directly to
the defendant, police officers typically discharge their Brady duty by disclosing exculpatory
evidence to the prosecutor in their jurisdiction. Id. at 379-80.
The interjurisdictional nature of this dispute raises a question of first impression: whether
a Brady disclosure obligation extends to investigating officers in a non-prosecuting jurisdiction
when they work together with police in the prosecuting jurisdiction. Brady obligations are
generally understood to extend to information possessed by “the law enforcement agency
-9- No. 21-5968, Colemon v. City of Cincinnati, et al.
investigating the offense,” Jamison v. Collins, 291 F.3d 380, 385 (6th Cir. 2002), but they also
require a prosecutor “to learn of any favorable evidence known to the others acting on the
government’s behalf in the case,” Kyles v. Whitley, 514 U.S. 419, 437 (1995), indicating that joint
investigators may sometimes incur a Brady duty.
When that duty applies is less clear. Sixth Circuit precedent suggests that Brady’s
application to an officer from a non-prosecuting jurisdiction depends on the level of the
jurisdiction’s involvement in the joint investigation. For instance, we concluded in Sutton v.
Carpenter that Brady claims cannot be sustained based on evidence possessed by “uninvolved
government agencies,” indicating that agencies that are sufficiently involved in an investigation
do have a Brady duty. 617 F. App’x 434, 441 (6th Cir. 2015) (emphasis added). Sutton also noted
that prosecutors have “sleuthing duties” as to “material information possessed by members of the
prosecution team,” id, which at its core includes prosecutors and police who perform investigative
duties and make strategic decisions about the case’s prosecution, see, e.g., Kyles, 514 U.S at 437-
38. The Supreme Court’s clarification in Kyles that the prosecution team may include “others
acting on the government’s behalf” supports the proposition that a Brady duty can also apply to
another jurisdiction’s officers who participate in investigative duties and strategic decision
making. Id. at 437.
Indeed, as courts increasingly confront cross-jurisdictional investigations, many have
analogously held that the relevant inquiry for imputing knowledge of Brady material from extra-
jurisdictional actors to a prosecutor is the level of involvement between the prosecuting and non-
prosecuting jurisdictions. Although our Circuit has not addressed this question directly, some
courts have examined the “extent to which there was a joint investigation with another agency,”
considering factors including whether one agency acts on another’s behalf or under its control and
-10- No. 21-5968, Colemon v. City of Cincinnati, et al.
the extent to which the agencies work as a team and share resources. United States v. Ellison, 527
F. Supp. 3d 161, 166 (D.P.R. 2021) (quoting United States v. Ramos-Cartagena, 9 F. Supp. 2d 88,
91 (D.P.R. 1998)); see also United States v. Risha, 445 F.3d 298, 304-05 (3d Cir. 2006) (collecting
cases). Other courts have taken a comprehensive, fact-based approach, examining factors
including whether there was jurisdictional overlap regarding the control or direction of an
investigation, whether the case was ever considered a joint investigation with another agency,
whether the officer in question was under the prosecutor’s authority or control, and whether the
officer participated in developing a case for trial. See Stano v. Butterworth, 51 F.3d 942, 946 (11th
Cir. 1995); see also United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979).
The district court concluded that our decision in Rimmer v. Holder, 700 F.3d 246 (6th Cir.
2012), precluded the application of a Brady duty to a non-prosecuting jurisdiction. In Rimmer, the
FBI and state law enforcement investigated a defendant’s case but only the state prosecuted him.
Id. at 250. The defendant later filed a Freedom of Information Act (FOIA) request for FBI
documents, and we determined that the federal government had no Brady duty because it had not
prosecuted Rimmer, and because he had failed to provide evidence “showing that the FBI
somehow used its status as a joint investigator to shield exculpatory information from Rimmer.”
Id. at 259. Rimmer emphasized that, rather than segregate the exculpatory evidence in its own
files, the FBI had “ensur[ed] that [the evidence] would be subject to Brady in the event of a state
prosecution” by turning it over to state police. Id.
Rimmer arose out of a FOIA dispute and did not address a freestanding Brady claim;
instead, it asked whether a public interest in the revelation of wrongdoing by the government might
justify the documents’ disclosure. The case therefore does not control on the question of Brady’s
application to a non-prosecuting jurisdiction. Rimmer is persuasive, however, as to its reasoning
-11- No. 21-5968, Colemon v. City of Cincinnati, et al.
that for Brady to apply to a government actor from a non-prosecuting jurisdiction, a plaintiff must
show that the non-prosecuting jurisdiction’s status as a joint investigator was somehow used to
shield exculpatory information from the prosecuting jurisdiction. This makes sense. Where a
prosecuting jurisdiction is in full possession of the exculpatory information possessed by police in
the non-prosecuting jurisdiction, that information is subject to the Brady disclosure obligation of
the police and the Brady investigation obligation of the prosecutor in the prosecuting jurisdiction.
But where a non-prosecuting jurisdiction shields exculpatory information from the prosecuting
jurisdiction, the Brady duty extends to require, at the least, that the exculpatory information be
disclosed to police in the prosecuting jurisdiction.
Based on Rimmer’s indication that Brady may require a joint investigator to disclose
exculpatory information to the prosecuting jurisdiction, two questions remain: (1) whether
Cincinnati police were sufficiently involved in the Welch investigation to make them investigating
members of the “prosecution team” to which a Brady duty applied; and (2) whether they
discharged that Brady duty by disclosing the exculpatory information to the Newport police or
prosecutor. We need not address the first question because the Cincinnati officers disclosed to the
Newport police all the information to which Virgil points as exculpatory. The record shows that
Newport officers Brandt and Wagner had meetings, phone calls, and other communications about
the serial killer investigation and Virgil, and it establishes that they knew Wilton’s name, Hyden’s
confession, and the fact that the investigation was closed (“clearing” Virgil as a suspect)—the only
evidence from the Wilton investigation to which Virgil specifically points as exculpatory. Even
assuming that a Brady obligation applied to the Cincinnati officers as joint investigators, they
discharged any Brady obligation that applied.
-12- No. 21-5968, Colemon v. City of Cincinnati, et al.
An underlying constitutional violation is required to sustain a Monell claim. Because a
reasonable jury could not find that the Cincinnati officers violated Virgil’s due process rights under
Brady, his Monell claim against the City also fails.
B. Norwood Officer Daniels
Officer Daniels raises a qualified immunity defense, which means that Virgil must show a
genuine issue of material fact as to whether Daniels violated clearly established federal law.
Pearson v. Callahan, 555 U.S. 223, 231 (2009). There are two steps to a qualified immunity
analysis: the court must determine both that “the facts alleged show the officer’s conduct violated
a constitutional right” and that the right was “clearly established.” Saucier v. Katz, 533 U.S. 194,
201–02 (2001). We may address either question first. See Pearson, 555 U.S. at 236. “Once the
qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials
are not entitled to qualified immunity.” Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir. 2014)
(quoting Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010)).
Again, a Brady violation would require that Daniels was both sufficiently involved to be
considered a part of the prosecution team and failed to disclose material exculpatory information
gathered in that investigation to the prosecuting jurisdiction. See Rimmer, 700 F.3d at 259.
Compared with the Cincinnati officers’ contributions to Newport’s investigation of Virgil, Officer
Daniels’ involvement in the joint investigation was relatively minimal. Although Daniels attended
at least one interjurisdictional meeting in April 1987, and had several subsequent phone calls with
St. Bernard police, Virgil fails to point to record evidence that Daniels had contact with the
Newport police or prosecutor in any manner after that meeting.
The definition of “involvement” in an investigation is less than clear. Although some
courts addressing the question have provided parameters for interjurisdictional Brady obligations,
-13- No. 21-5968, Colemon v. City of Cincinnati, et al.
those parameters are highly fact-specific and evaluated in the context of imputing knowledge from
other non-prosecuting actors to the prosecutor. Virgil has failed to point to precedent that could
have given Daniels notice that his level of involvement in the investigation was sufficient for Brady
to apply. Therefore, even if Daniels had an obligation to disclose information collected in the
Leon investigation, that obligation was not clearly established at the time of the alleged violation.
III. CONCLUSION
For these reasons, we AFFIRM the district court’s grant of summary judgment to
Cincinnati and Officer Daniels.
-14-