Reid v. Simmons, et al.

2001 DNH 065

• Court: District Court, D. New Hampshire
• Decided: March 30, 2001
• Docket: CV-89-152-M
• Status: Published

Opinion

Reid v . Simmons, et a l . CV-89-152-M 03/30/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gordon C . Reid

v. Civil N o . 89-152-M Opinion N o . 2001 DNH 065

Officers Gary Simmons, Ronald Paul James Ahern, and Richard Gilman,

O R D E R

In July of 2000, this case was tried before a jury on Gordon

Reid’s claim that Defendant, Officer Simmons, violated his

constitutionally protected right to due process and a fair

criminal trial by failing to disclose exculpatory impeachment

evidence to the attorneys who prosecuted Reid in state court.

See 42 U.S.C. § 1983. See generally Brady v . Maryland, 373 U.S.

83 (1963). The jury returned a verdict in favor of Reid,

concluding that Simmons’ conduct violated Reid’s federally

protected rights. Simmons now moves for judgment as a matter of

law. See Fed. R. Civ. P. 5 0 . In the alternative, he moves for a

new trial. See Fed. R. Civ. P. 59(a). For the reasons set forth

below, Simmons is entitled to judgment as a matter of law o r , in

the alternative, a new trial. Standard of Review

Under Rule 50 of the Federal Rules of Civil Procedure, a

motion for judgment as a matter of law will be granted:

only in those instances where, after having examined the evidence as well as all permissible inferences drawn therefrom in the light most favorable to non- movant, the court finds that a reasonable jury could not render a verdict in that party’s favor. In carrying out this analysis the court may not take into account the credibility of witnesses, resolve evidentiary conflicts, nor ponder the weight of the evidence introduced at trial.

Irvine v . Murad Skin Research Labs., Inc., 194 F.3d 313, 316-17

(1st Cir.) (internal citations omitted), cert. dismissed 528 U.S.

1041 (1999). See also Negron v . Caleb Brett U.S.A., Inc., 212

F.3d 666, 668 (1st Cir. 2000).

Rule 59(a) of the Federal Rules of Civil Procedure provides,

in pertinent part, that “[a] new trial may be granted to all or

any of the parties and on all or part of the issues (1) in an

action in which there has been a trial by jury, for any of the

reasons for which new trials have heretofore been granted in

actions at law in the courts of the United States . . . .”

Grounds for a new trial include a verdict that is against the

great weight of the evidence, or a damage award that is

2 excessive, or a verdict that is so mistaken as to constitute a

miscarriage of justice, or a trial that was not fair to the

moving party due to substantial errors in the admission or

rejection of evidence. See Gasperini v . Center for Humanities,

Inc., 518 U.S. 415, 433 (1996); Montgomery Ward & C o . v . Duncan,

311 U.S. 243, 251 (1940); Transamerica Premier Ins. C o . v . Ober,

107 F.3d 925, 929 (1st Cir. 1997).

Background

The facts underlying this case have been discussed at length

in several opinions issued by this court, see, e.g., Reid v .

Simmons N o . 89-152-M (D.N.H. March 6, 1998), and in two opinions

by the court of appeals. See Reid v . State of New Hampshire, 56

F.3d 332 (1st Cir. 1995) (“Reid I ” ) ; and Reid v . Simmons, N o . 98-

1366, 1999 WL 525926 (1st Cir. April 1 5 , 1999) (“Reid I I ” ) .

Consequently, the court recounts only those facts critical to the

resolution of the pending motions.

In June of 1986, Reid was arrested and charged with three

counts of felonious sexual assault upon a six-year old girl

(“Misty”). Defendant, Officer Simmons, testified at Reid’s

probable cause hearing, after which Reid was bound over for

3 trial. See Reid I , 56 F.3d at 334. At the subsequent criminal

trial, Reid represented himself, with the assistance of stand-by

counsel. The jury acquitted Reid on one count and convicted him

of the charges in the remaining two counts. Reid moved to set

aside those convictions.

In September of 1988, in response to post-trial discovery

motions filed by Reid, the State produced documents that arguably

tended to undermine the credibility of both Reid’s alleged

victim, Misty, and her mother. Those documents included

Manchester Police Department reports dated December, 1985, and

April, 1986, that had been prepared by Simmons, but related to

prior investigations into whether Misty had been sexually abused

(alleged incidents in which Reid was not a suspect). As the

court of appeals acknowledged, however, “On their face, the

reports do not indicate that Misty falsely accused anyone. The

1985 report indicates that Misty had been sexually abused by a

person or persons unknown. The 1986 report states that Misty

denied allegations made by a neighbor, who complained that Misty

had been sexually abused by a man referred to simply as

‘George.’” Reid I , 56 F.3d at 334 n.2 (emphasis in original).

Thus, the exculpatory nature of those reports was, at a minimum,

4 not self-evident. Nevertheless, a state court judge concluded

that information in those reports “would have been favorable to

[Reid] under the Brady test. It was exculpatory in nature and it

would have assisted the defendant in an effective cross-

examination of several important State witnesses, including the

victim.” State v . Reid, Nos. S-86-1819 through 1821, slip. op.

at 3 (Hillsborough Superior C t . Oct. 1 3 , 1988) (emphasis in

original). Consequently, the state court vacated Reid’s

convictions.

Later, the State declined to reprosecute and dropped all

charges against Reid. Reid then filed this civil suit, in which

he brought claims against numerous defendants. Eventually, after

extensive litigation, his multiple claims were reduced to one - a

§ 1983 claim against Simmons, a police officer, for having

allegedly violated Reid’s federally protected rights by failing

to turn over to prosecutors the two investigative reports from

the other case files pertaining to Misty. See generally Brady,

supra. According to Reid, those reports could have been

effectively used at his criminal trial to impeach the testimony

of Misty by, among other things, showing that she could have

acquired her knowledge of adult sexual behavior from prior

5 incidents of sexual abuse, rather than from the alleged assault

with which Reid was charged.

Discussion

Although it implicates a number of complex legal issues, the

fundamental question presented by the pending motions can be

stated simply: whether this police officer defendant can be held

liable under § 1983 for having failed to provide prosecutors with

investigative reports he prepared in unrelated prior criminal

investigations (i.e., not involving the alleged incident for

which plaintiff was prosecuted) that, at least to one trained in

criminal trial practice, were of potential impeachment value to

the defense.

Of course, a police officer’s Brady obligation to reveal

exculpatory evidence to the prosecution only applies to evidence

that is “material.” See United States v . Bagley, 473 U.S. 667,

682 (1985); Kyles v . Whitley, 514 U.S. 419, 434 (1995). And,

determining whether Brady was violated - that i s , whether

undisclosed evidence was both exculpatory and material - is an

analysis that is necessarily undertaken after the criminal trial,

with the acute clarity of hindsight. See McMillian v . Johnson,

6 88 F.3d 1554, 1569-70 (11th C i r . ) , amended by 101 F.3d 1363 (11th

Cir. 1996). Consequently, one of the difficult issues presented

in this case is whether Simmons recognized (or should have

recognized), prior to Reid’s trial, that the investigative

reports at issue were, or were likely to b e , both exculpatory and

material to Reid’s defense.

The complex issues raised in cases such as this require

courts to define the circumstances under which police officers

may be held civilly liable for Brady violations - a matter of

considerable uncertainty. The judges of the Fourth Circuit Court

of Appeals are, for example, decidedly split on where the lines

should be drawn in cases involving alleged constitutional

violations by police officers who fail to inform prosecutors of

potentially exculpatory material in police investigative files.

See Jean v . Collins, 221 F.3d 656 (4th Cir. 2000) (en banc),

cert. denied, 121 S.Ct. 771 (2001).

In this case, several factors persuade the court that the

evidence produced at trial is insufficient to support the jury’s

verdict in favor of Reid and, instead, that Simmons is entitled

7 to judgment as a matter of law. At a minimum, the record

evidence is such that Simmons is entitled to a new trial.

I. No Evidence of Simmons’ Failure to Disclose the Reports.

In the ordinary case, a police officer fulfills his or her

obligations under Brady by turning over to prosecutors all

evidence and reports generated in the course of investigating the

criminal defendant. Under those circumstances, the officer need

not engage in any evaluation of the exculpatory nature of the

evidence at all, nor need he or she determine whether such

evidence might be “material” and so fall within the reach of

Brady. See, e.g., Walker v . City of New York, 974 F.2d 293, 299

(2d Cir. 1992). The officer simply turns the case file over to

the prosecutor, who is then charged with the obligation to

evaluate that material and determine whether it should be

produced under Brady or its progeny. See Kyles v . Whitley, 514

U.S. 419, 437 (1995). This case, however, presents an unusual

circumstance. Simmons is not alleged to have withheld any

information in the investigative file relating to allegations

that Reid sexually assaulted Misty. Instead, Reid seeks to

impose § 1983 liability on Simmons for having failed to disclose

8 to prosecutors arguably exculpatory and material evidence located

in other police investigative files.

To prevail against Simmons on his § 1983 claim, Reid was

obligated to prove, by a preponderance of the evidence, three

essential elements: first, that his Brady rights were, in fact,

violated during the course of his underlying state criminal

prosecution; second, that Simmons’ conduct caused that violation;

and, finally, that Simmons acted with the requisite culpable

state of mind.

A. Evidence of the Underlying Brady Violation.

To carry his burden of proof on the first element, Reid

relied, at least in part, on the state court’s order vacating his

criminal convictions, which he introduced (without objection) as

a full exhibit. He also relied on the testimony of state

prosecutors who testified that, prior to Reid’s criminal trial,

they did not turn over the investigative reports at issue. And,

after the close of evidence, the court instructed the jury that,

as a matter of law, for purposes of this case it was established

that the two investigative reports that prosecutors failed to

provide to Reid were both material and exculpatory. See Jury

9 Instructions at 1 2 . Thus, there was evidence from which a

rational trier of fact might plausibly conclude that Reid’s Brady

rights were violated: the reports at issue were generated prior

to Reid’s criminal trial; they were both material and

exculpatory; and prosecutors failed to turn them over to Reid or

his counsel.

Although it is not central to the court’s resolution of the

pending motions, it is worth noting parenthetically that both the

state court and the jury in this civil case might well have erred

in concluding that Reid’s Brady rights were violated.

Specifically, at the hearing on Reid’s motion to vacate his

convictions, the state court accepted the prosecutor’s offer of

proof and concluded, based on that offer, that “Officer Simmons,

who filed the earlier police reports, testified and made

reference to these prior incidents [involving Misty] at the

defendant’s probable cause hearing. From that time, the State

was on notice that earlier reports existed.” State v . Reid,

supra, at 5 (emphasis supplied). In other words, the state court

concluded that, because Simmons testified about the other

investigative reports involving Misty at Reid’s August, 1986,

probable cause hearing, the prosecutors were not only on notice

10 that those reports existed, but they knew of those reports prior

to Reid’s criminal trial and, therefore, should have turned them

over to defense counsel.1

The state court then concluded that, “The State, not the

defendant, had the obligation to provide the defendant with that

evidence contained in those police reports.” State v . Reid,

supra, at 5 . That is not, however, an entirely correct view of

the prosecution’s obligations under Brady. Accepting the fact

1 As the court of appeals pointed out in Reid I I , however, a prosecutor is duty bound under Brady to disclose material exculpatory evidence known to police acting in concert with the prosecutor, without regard to whether the prosecutor actually knows such evidence exists. A Brady violation does not depend on a prosecutor's pretrial knowledge that material exculpatory evidence exists. Consequently, the state court’s “finding that Simmons disclosed the exculpatory reports to the prosecutors was not a necessary prerequisite to the judgment vacating Reid’s conviction.” Reid I I , at * 1 . That is to say, for Brady purposes, the critical fact was the existence of those reports, and not the prosecutor’s knowledge of their existence. For that reason, Reid was not estopped from arguing, in this forum, that Simmons did not testify about those reports at the probable cause hearing. Importantly, however, because the state court’s order was, by agreement, entered as a full exhibit at trial, the court’s findings of fact are, at a minimum, some evidence that Simmons did in fact testify about those reports. And, as discussed more fully below, the state court’s order and the somewhat vague testimony of Simmons and the state prosecutors was the only evidence on one of the central issues in this case: whether Simmons disclosed to prosecutors the existence of those other investigative reports, thereby satisfying his obligations under Brady.

11 that Simmons testified about those reports at the probable cause

hearing, as the state court did, that testimony not only placed

the prosecution on notice of the existence of the other

investigative reports, it necessarily also informed Reid and his

counsel (both of whom were present at the probable cause hearing)

that those reports existed, as well as their substantive content

regarding prior alleged sexual abuse incidents involving Misty.

Consequently, Reid (or his counsel) likely should have, in the

exercise of reasonable diligence, recognized the exculpatory

value of those reports and could have obtained copies of them

simply by asking the prosecutor or the Manchester Police

Department. As the court of appeals for this circuit has

observed, “Brady does not require the government to turn over

information which, with any reasonable diligence, the defendant

can obtain himself.” United States v . Pandozzi, 878 F.2d 1526,

1529 (1st Cir. 1989)(citations and internal quotation marks

omitted). See also United States v . Grintjes, 237 F.3d 876, 880

(7th Cir. 2001) (“this court has repeatedly held that Brady does

not apply to evidence that a defendant would have been able to

discover himself through reasonable diligence.”); Spivey v . Head,

207 F.3d 1263, 1283 (11th Cir.) (holding that to establish a

Brady violation, a party must prove, among other things, that

12 “the defendant did not possess the evidence and could not obtain

it with any reasonable diligence”), cert. denied, 121 S.Ct. 660

(2000); Johns v . Bowersox, 203 F.3d 538, 545 (8th Cir.) (holding

that Brady is not violated “if the defendant could have learned

of the information through ‘reasonable diligence’”), cert.

denied, 121 S.Ct. 629 (2000).

B. Simmons’ Conduct.

Even assuming that the jury properly concluded that Reid’s

Brady rights had been violated in his underlying state criminal

prosecution when prosecutors failed to turn over the other

investigative reports relating to prior alleged sexual assaults

involving Misty (but in which Reid was never a suspect), Simmons

never denied that prosecutors failed to disclose those reports to

Reid. Instead, part of Simmons’ defense focused on his claim to

have adequately notified both prosecutors and Reid (and his

counsel) of the existence of those reports, thereby satisfying

his own, distinct obligations under Brady, regardless of the

prosecutors’ failings.

As noted above, demonstrating a Brady violation in his

underlying criminal trial was only part of Reid’s burden of proof

13 in this civil case. As the concurring2 members of the second en

banc panel of the Fourth Circuit observed in Collins:

A Brady violation that resulted in overturning of the § 1983 plaintiff’s conviction is a necessary, but not a sufficient, condition for § 1983 liability on the part of the police. It is a necessary condition because the Brady violation establishes the requisite threshold of constitutional injury (a conviction resulting in loss of liberty) below which no § 1983 action can lie. It is not a sufficient condition, however, because the Brady duty is a no fault duty and the concept of constitutional deprivation articulated in both Daniels [474 U.S. 327 (1986)] and Youngblood [488 U.S. 51 (1988)] requires that the officer have intentionally withheld the evidence for the purpose of depriving the plaintiff of the use of that evidence during his criminal trial. This is what is meant by “bad faith.”

2 Following the lead of dissenting Judge Murnaghan, the court has referred to the second en banc opinion in Collins as the “concurrence,” because, eventually, the judgment of the district court was affirmed by an evenly divided court of appeals. The procedural history of that case is lengthy: the district court granted the police officers’ motion for summary judgment, based on qualified immunity. A court of appeals panel initially reversed and remanded, Collins, 107 F.3d 1111 (4th Cir. 1997), but on rehearing, the court, sitting en banc, affirmed the district court. Collins, 155 F.3d 701 (4th Cir. 1998). The Supreme Court then granted certiorari, vacated the en banc court’s decision, and remanded the case for further consideration. Collins, 526 U.S. 1142 (1999). On remand, an equally divided en banc court held that plaintiff failed to establish that his constitutionally protected rights had been violated. Collins, 221 F.3d 656 (4th Cir. 2000). The Supreme Court denied further review. Collins, 121 S.Ct. 771 (2001). The history of Collins reveals the scope of the legal debate relating to police officer liability for Brady violations. It also tends to undermine any assertion that the precise contours of a criminal defendant’s constitutionally protected rights in this area are, even today, “clearly established.”

14 Jean v . Collins, 221 F.3d at 663. See also Ahlers v . Schebil,

994 F. Supp. 856, 871 (E.D. Mich. 1998) (concluding that proving

an underlying Brady violation is only one element of a § 1983

claim against police officers), aff’d., 188 F.3d 365 (6th Cir.

1999).

S o , after demonstrating that his Brady rights were violated,

Reid was then obligated to prove some degree of culpability on

Simmons’ part. It i s , perhaps, important to reiterate that

Reid’s Brady rights were violated, if at all, when prosecutors

(who ultimately bear responsibility under Brady for turning over

exculpatory material to the defendant) failed to disclose the

investigative reports in question. That violation of Reid’s

rights could have occurred notwithstanding Simmons’ disclosure of

those reports to the prosecutors (as it appears the state court

concluded it d i d ) . In other words, mere evidence of the

prosecutors’ failure to meet their discrete no-fault Brady

obligation to turn over exculpatory evidence does not necessarily

expose police investigators involved in the case to § 1983

liability, absent some culpable and causative action or inaction

by them.

15 At trial in this civil case, Reid did not testify and,

therefore, did not present to the jury his own account of how

Simmons allegedly failed to reveal the evidence in question to

prosecutors.3 The prosecutors who handled Reid’s criminal trial

testified that they could no longer remember how they came to

learn that Simmons testified about those reports at the probable

cause hearing (at which it appears the State’s interests were

represented by different counsel). Simmons also testified that

because Reid’s probable cause hearing took place so long ago, he

could not specifically recall his testimony about the other

investigative reports relating to Misty, but that it was his

understanding, memory, and best recollection that he did testify

about them at Reid’s probable cause hearing. See Trial

transcript, vol. I I , at 2 9 , 5 8 . Unfortunately, however, neither

party was able to produce a transcript of that hearing.

3 As noted by the court of appeals in Reid I I , prior to trial Reid submitted several affidavits in which he “hotly disputed” whether Simmons testified about the other investigative reports concerning Misty at the August 2 2 , 1986, probable cause hearing. See Reid I I , at * 1 . At trial, however, Reid did not testify to the claims he made in those affidavits, and evidence tending to show that Simmons did testify about those reports at the probable cause hearing was unrebutted.

16 To be sure, Reid did produce evidence from which the jury

could have reasonably concluded that Simmons did not

affirmatively turn over to prosecutors the investigative reports

related to prior alleged incidents of sexual abuse involving

Misty: prosecutors never produced those reports in response to

pre-trial discovery requests from Reid; they testified that those

reports were not included in the materials initially sent to them

by the Manchester Police Department; and they testified that they

never had those reports prior to Reid’s criminal trial. From

that evidence, a rational trier-of-fact might reasonably

concluded that Simmons never provided those earlier investigative

reports to prosecutors.

But, as noted above, Simmons never contended that he had

affirmatively handed those reports over to prosecutors and did

not seek to rebut Reid’s evidence on that point. Instead, part

of Simmons’ defense centered on his claim to have adequately

revealed the existence of those reports (to prosecutors, Reid,

and his counsel) to put them on notice of their existence and to

impose upon them the obligation to review those reports and make

the legal determination as to whether they were both material and

exculpatory and, therefore, within the scope of Brady.

17 The evidence on that point was unrebutted and consisted of:

(1) Simmons’ reference (albeit somewhat vague) to his prior

contacts with Misty in his investigative report concerning Reid’s

alleged assault on Misty; (2) Simmons’ testimony concerning his

general belief that he had testified at the probable cause

hearing about the other investigative reports concerning Misty;

(3) Simmons’ testimony that he had, in or about 1992, submitted

an affidavit in which he testified that he had discussed those

other investigative reports at the probable cause hearing; (4)

evidence concerning the offer of proof made by state prosecutors

at the hearing on Reid’s motion to vacate his convictions (an

offer of proof to which neither Reid nor his counsel objected);

and (5) the state court’s October 1 3 , 1988, order, which Reid

entered as a full exhibit. In that order, the state court

accepted the prosecutor’s offer of proof regarding Simmons’

testimony at the earlier probable cause hearing and concluded

that Simmons, “who filed the earlier police reports, testified

and made reference to these prior incidents at [Reid’s] probable

cause hearing.” State v . Reid, supra, at 5 . S o , to the extent

any of that evidence is probative on this issue, it substantially

undermines Reid’s case — showing that, in fact, Simmons disclosed

the existence and substantive content of those investigative

18 reports (and, consequently, was not engaged in any deliberate

attempt to conceal that evidence).

Regardless of the evidentiary value of the state court’s

order, or the lack of clarity with which Simmons described his

recollection of having testified about those investigative

reports at Reid’s probable cause hearing, or the somewhat vague

references to Simmons’ 1992 affidavit in which he described that

testimony, however, the important point is this: Reid introduced

no evidence at trial that tended to undermine that evidence.

Thus, record evidence is unrebutted concerning Simmons’ testimony

about those investigative reports at the probable cause hearing.

It is also undisputed that Simmons specifically alluded to his

prior contacts with Misty in the investigative report relating to

Reid’s alleged misconduct, which report was turned over to Reid.

Consequently, even reviewing the record evidence in the

light most consistent with the jury’s verdict, the court is

compelled to conclude that a “a reasonable jury could not render

a verdict in [Reid’s] favor.” Irvine, 194 F.3d at 316.

Specifically, two of the jury’s factual findings are unsupported

by the evidence produced at trial: first, the jury’s conclusion

19 that Simmons did not “have reason to believe that the prosecutors

in [Reid’s] state criminal trial possessed or knew of the

December 2 0 , 1985, and April 4 , 1986, police reports concerning

Misty prior to [Reid’s] state criminal trial,” see Jury Verdict

Form, Question 3 ; and second, the jury’s conclusion that Simmons

“deliberately acted to suppress or conceal such reports from the

prosecutors in [Reid’s] state criminal trial, or failed to

disclose those reports to prosecutors with reckless or callous

indifference to plaintiff’s constitutional rights.” See Jury

Verdict Form, Question 4 ( b ) . As a result, the jury’s verdict

cannot stand, and Simmons is entitled to judgment as a matter of

law.

II. Evidence of Simmons’ Intent or State of Mind.

Even if Reid had introduced evidence tending to show that

Simmons failed to disclose to prosecutors information about the

other investigative reports, he did not meet his burden of

proving that Simmons acted with the requisite culpability

necessary to establish liability under § 1983. While Brady

established a no-fault obligation on the part of prosecutors to

turn over exculpatory evidence, civil liability on the part of a

police officer under § 1983 does not attach absent some evidence

20 that the officer acted, at a minimum, with less than good faith.

For example, in Arizona v . Youngblood, 488 U.S. 51 (1988), the

Supreme Court held that, “unless a criminal defendant can show

bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due

process.” Id. at 5 8 . The Court based its decision, at least in

part, on:

our unwillingness to read the “fundamental fairness requirement of the Due Process Clause as imposing ono the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution. We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require i t , i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.

Id. (emphasis supplied). See also Daniels v . Williams, 474 U.S.

327, 328 (1986) (holding, in the context of a prisoner § 1983

suit against prison officials, that “the Due Process Clause is

simply not implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property.”).

21 The concurring judges of the en banc panel in Collins

understood Youngblood and Daniels to impose on civil plaintiffs,

who claim that their constitutional right to due process was

violated by police officers’ failure to turn over potentially

exculpatory material, the burden of proving that the officers in

question acted in bad faith.

While Youngblood dealt with the failure to preserve evidence, its principles are certainly applicable to the present situation. Here, as in Youngblood, the prosecutor and ultimately the defense allegedly failed to receive exculpatory evidence from the police. Here, as in Youngblood, the police officers’ actions were alleged to constitute a due process violation. The Youngblood Court stressed its “unwillingness” to read the Due Process Clause to impose “on the police an undifferentiated and absolute duty” in that context.

We similarly decline to impose a sweeping duty on the police in the instant situation and note the obvious drawbacks of doing so. . . . To confer on prosecutors absolute immunity while denying to police the right to argue even bona fides would multiply exponentially litigation against even conscientious officers.

Jean v . Collins, 221 F.3d at 661. Consequently, the concurring

judges determined that “police officer negligence or inadvertence

in failing to turn over evidence cannot be actionable under §

1983.” Id. at 660. This court agrees. A § 1983 plaintiff

cannot prevail on his claim that a police officer deprived him of

his constitutionally protected right to due process merely by

22 demonstrating that a Brady violation occurred during the course

of the plaintiff’s underlying criminal trial. Instead, the

plaintiff must also show that the officer acted in bad faith, or

with the intent to violate the plaintiff’s constitutional rights,

or with deliberate indifference to those rights.

In this case, Reid failed to introduce sufficient evidence

to permit a jury to find, by a preponderance, that Simmons acted

in bad faith. Even if one were to ignore the evidence that

Simmons openly discussed the existence and substantive content of

the investigative reports in the presence of Reid, his counsel,

prosecutors, and the judge at Reid’s probable cause hearing, and

evidence that he referenced his prior contacts with Misty in the

report prepared in connection with his investigation into Reid’s

alleged assault on Misty (all of which plainly suggests Simmons

did not attempt to conceal the existence of those files), there

is no evidence suggesting that Simmons acted with the requisite

culpable state of mind.

To the contrary, the record evidence establishes that

Simmons prepared the reports in connection with earlier

investigations into different alleged incidents of abuse

23 involving Misty in the ordinary course, routinely placed those

reports into the appropriate files, labeled those files

accurately, and routinely placed them into the indexed repository

for the police department’s investigative files, where they were

readily retrievable (cross-indexed by the pertinent juvenile’s

name), and available to interested parties like Reid and the

state prosecutors. None of the record evidence even remotely

suggests that Simmons actively concealed the existence of those

files, removed relevant material from them, or mis-filed them in

an effort to make them unavailable to the defense or prosecution.

Cf. McMillian, 88 F.3d at 1560-61 (police officers were accused

of deliberately placing exculpatory evidence relevant in one case

into another investigative file for the purpose of concealing it

from prosecutors).

That Simmons might have relied on the prosecutors to

routinely (1) review the police department’s investigative files

concerning past alleged incidents of sexual abuse involving Misty

and (2) determine what material from those investigative files

might have exculpatory value in the context of Reid’s ongoing

prosecution for an entirely different alleged incident, would

seem quite reasonable in light of the systems that were in place

24 in the Manchester Police Department at the time. This is

particularly true in light of the testimony provided by Paul

McDonough (one of Reid’s prosecutors), who said that “once the

case is accepted by the county attorney’s office, it’s the county

attorney’s office who traditionally meets the discovery requests

and requirements, including the Brady requirement.” Trial

Transcript, vol. 3 , at 1 4 . At the very most, Simmons’ reliance

upon prosecutors to review the relevant records and extract any

material evidence would constitute a negligent oversight.

A showing of mere negligence i s , however, insufficient. It

falls far short of bad faith, or the type of culpable state of

mind required to impose upon Simmons personal liability under

§ 1983. And, because the exculpatory character of the evidence

in question is so subtle, particularly from the perspective of a

non-lawyer, see Reid I , 56 F.3d at 334 n.2, one cannot reasonably

infer bad faith on Simmons’ part merely because he did not

affirmatively retrieve it and deliver it to the prosecutors. See

Youngblood, 488 U.S. at 58 (limiting police liability to

situations in which they act in bad faith o r , by their conduct,

reveal that they actually appreciated the potentially exculpatory

25 nature of the destroyed (or, by extension, withheld) evidence in

question).

Here, there is no evidence that, prior to Reid’s criminal

trial, Simmons actually appreciated the exculpatory and material

nature of the prior investigative reports concerning Misty. Nor

is there any evidence that he actively sought to conceal those

reports or otherwise prevent prosecutors from learning of their

existence. In fact, the evidence suggests just the opposite.

Consequently, the only way the jury could have concluded that

Simmons acted in bad faith in failing to affirmatively turn over

evidence he knew fell within the bounds of Brady was based upon

an inference arising out of the nature of that evidence itself.

To be sure, there may be cases in which a police officer is

aware of evidence located in a separate investigative file that

is so patently exculpatory (e.g., DNA, fingerprint, ballistic, or

alibi evidence tending to exonerate the defendant) that it may

fairly be inferred that the officer fully appreciated its legal

significance in the case at hand. Cf. Youngblood, 488 U.S. at 58

(noting that police officers’ conduct itself may sometimes

suggest that they appreciate the exculpatory nature of certain

26 evidence). Consequently, in those cases a trier-of-fact might

reasonably infer that the officer acted in bad faith when he or

she failed to disclose such plainly exculpatory evidence to the

prosecution. See, e.g., McMillian, 88 F.3d at 1560-61.

This, however, is not such a case. There is no direct

evidence of deliberate concealment by Simmons, and the reports in

question are not so plainly exculpatory as to be capable of

supporting an inference that Simmons acted in bad faith based

simply upon his failure to disclose their existence to the

prosecution (again, ignoring for the moment that the only

relevant evidence on that point — the Superior Court’s order, the

prosecutor’s belief and understanding, and Simmons’ belief and

understanding - tends to establish that Simmons did reveal the

reports’ existence and content to the prosecution and to defense

counsel and Reid himself at Reid’s probable cause hearing). To

the contrary, the exculpatory nature of the investigative reports

at issue is so subtle, and an appreciation of their potential

value as impeachment evidence requires such a sophisticated

understanding of criminal trial practice, that no reasonable

trier of fact could conclude that Simmons’ failure to turn over

those reports to prosecutors was necessarily the product of bad

27 faith. The evidence does not, as a matter of law, support that

inference.

From a litigator’s perspective, prior to trial, the

investigative reports would be seen as potentially useful to

impeach Misty’s credibility, or to challenge her ability to

perceive and accurately relate historical facts, or to undermine

the inference that she necessarily obtained adult-like knowledge

of sexual conduct as a result her alleged contact with Reid.

Those reports would, however, only be useful at Reid’s criminal

trial if the prosecution called Misty as a witness (of course,

police investigators would not necessarily be aware of a

prosecutors’ trial plan) and then, only if she testified in a way

that made statements or evidence referenced in those other

reports relevant. Here, Simmons no doubt would have anticipated

that Misty would testify against Reid, but neither Simmons nor a

reasonable officer in his position would have anticipated that

she might deny matters related in those reports, or that in

defense counsel’s hands those reports would constitute

impeachment evidence of a material nature. Those are lawyer-like

recognitions or appreciations, quite different from a police

officer’s recognizing evidence that tends to exonerate the

28 defendant, or flatly contradicts testimony of a government

witness that goes to guilt or innocence.

To charge the ordinarily prudent police officer with an

obligation to engage in a prospective and lawyer-like analysis of

evidence that is only conditionally relevant, and to impose upon

him or her the duty to determine the potential exculpatory value

of such evidence (a prerequisite to recognizing an obligation to

disclose) is unrealistic and, indeed, inappropriate.

How (or even whether) the reports might have been useful to

the defense at Reid’s criminal trial is a matter police

investigators were simply not trained to recognize, and involves

an analytical function not imposed on them by the criminal

justice system. Consequently, this much can be said with

confidence: it would be unreasonable to charge an ordinarily

prudent police officer, prior to trial and without benefit of

knowing whom the prosecutors intended to call as witnesses, how

those witnesses would likely testify, or how the prosecutors

intended to prove their case, with an appreciation of the

potential impeachment value of investigative reports in unrelated

29 case files which, in the right attorney’s hands, might prove

useful.

Simply stated, police officers cannot be held liable for civil damages in § 1983 suits for having failed to engage in a sophisticated evidentiary analysis to determine whether investigative notes in police records (particularly those relating to prior incidents, distinct from those giving rise to the prosecution at hand) might be considered both material and exculpatory and, therefore, fall within the scope of a police officer’s duty to disclose to prosecutors under Brady. Again, the concurring opinion in Collins is instructive.

The Brady duty is framed by the dictates of the adversary system and the prosecution’s legal role therein. Legal terms of art define its bounds and limits. The prosecutor must ask such lawyer’s questions as whether an item of evidence has “exculpatory” or “impeachment” value and whether such evidence is “material.” It would be inappropriate to charge police with answering these same questions, for their job of gathering evidence is quite different from the prosecution’s task of evaluating i t . This is especially true because the prosecutor can view the evidence from the perspective of the case as a whole while police officers, who are often involved in only one portion of the case, may lack necessary context. To hold that the contours of the due process duty applicable to the police must be identical to those of the prosecutor’s Brady duty would thus improperly mandate a one-size-fits-all regime.

Id. at 660.

30 This suit makes plain that with regard to § 1983 claims

against police officers arising from a Brady violation, a “no-

fault” or “strict liability” standard is neither appropriate nor

advisable. Absent evidence tending to show that a police officer

was consciously aware o f , and appreciated or should have

appreciated the exculpatory and material nature of evidence in

other case files, there can be no civil liability under § 1983

for having failed to turn over such evidence to the prosecutor.

To conclude otherwise would require every police officer to

possess a comprehensive understanding of rules of evidence and

procedure, as well as the myriad and subtle ways in which

seemingly irrelevant evidence (from a lay perspective) might be

effectively used by skilled criminal defense counsel at a

subsequent trial. In this case, it would impose on Simmons the

legal obligation, in 1987, to have revisited (at least mentally

and perhaps by means of a physical review) every contact he might

have had, in every investigation he might have conducted, with

Misty and any other person who might reasonably have been called

as a witness by the prosecution in Reid’s criminal trial. If

such an obligation even exists under Brady, it was not an

obligation known to police in 1987.

31 Police officers are called upon to investigate crimes in a

fair and balanced way, collect relevant evidence and information,

document the results of their investigations, and make those

results available to appropriate parties in law enforcement

wishing to review that material. Under Brady, they are also duty

bound to turn over to prosecutors all evidence they recognize a s ,

or should recognize a s , material and exculpatory, that is

developed in the criminal case under investigation. With regard

to any other evidence (e.g., evidence developed in other distinct

investigations or different cases) police officers must, of

course, disclose to prosecutors that which they actually know or

should know has exculpatory value and material significance in a

case being prosecuted. With regard to material located in other

investigative files of subtle or even arguable exculpatory value

in the prosecution at hand, however, prosecutors (looking

prospectively) and judges (looking retrospectively) are and must

remain the parties charged with the obligation to determine legal

significance under Brady and its progeny.

III. Qualified Immunity.

Even if Reid had introduced evidence sufficient to support a

finding that Simmons knowingly or intentionally withheld the

32 investigative reports at issue in this case, Simmons would still

be entitled to qualified immunity.

Having concluded that the evidence introduced at trial

cannot support a finding that Simmons violated any of Reid’s

federally protected rights, it ordinarily would not be necessary

to reach the issue of qualified immunity. Nevertheless, because

this case has such a long history (to date, spanning roughly 12

years and involving two appeals to the circuit court of appeals),

and because it will, no doubt, continue on from here, it is

appropriate to resolve Simmons’ alternative claim to qualified

immunity as well.

A government official is entitled to qualified immunity from

personal liability if the challenged “‘conduct [did] not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Aversa v . United States,

99 F.3d 1200, 1214 (1st Cir. 1996) (quoting Harlow v . Fitzgerald,

457 U.S. 8 0 0 , 818 (1982)). The challenged conduct is measured by

a standard of objective reasonableness, that i s : “Could an

objectively reasonable official, situated similarly to the

defendant, have believed that his conduct did not violate the

33 plaintiff[’s] constitutional rights, in light of clearly

established law and the information possessed by the defendant at

the time of the allegedly wrongful conduct?” Wood v . Clemons, 89

F.3d 922, 927 (1st Cir. 1996). And, as the Court of Appeals for

the First Circuit recently observed,

To determine a defendant’s eligibility for qualified immunity, courts must define the right asserted by the plaintiff at an appropriate level of generality and ask whether, so characterized, that right was clearly established when the harm-inducing conduct allegedly took place. This does not mean that a right is clearly established only if there is precedent of considerable factual similarity. It does mean, however, that the law must have defined the right in a quite specific manner, and that the announcement of the rule establishing the right must have been unambiguous and widespread, such that the unlawfulness of particular conduct will be apparent ex ante to reasonable public officials. After all, qualified immunity for public officials serves important societal purposes, and it is therefore meant to protect all but the plainly incompetent or those who knowingly violate the law.

Brady v . Dill, 187 F.3d 104, 116 (1st Cir. 1999) (citations and

internal quotation marks omitted) (emphasis supplied).

Importantly, as suggested in Dill, a defendant does not lose

the protection of qualified immunity if he acts mistakenly, as

long as his mistake was objectively reasonable, as qualified

immunity is intended to protect “‘all but the plainly incompetent

34 or those who knowingly violate the law.’” Veilleux v . Perschau,

101 F.3d 1 , 3 (1st Cir. 1996) (quoting Malley v . Briggs, 475 U.S.

335, 341 (1986)).

A preliminary question, therefore, is whether Reid’s

asserted constitutional right to have Simmons disclose the

investigative reports in question was “clearly established” in

1987 (at the time of Reid’s criminal trial). Of course, how one

phrases the question likely dictates the answer. For example,

one might say, without much fear of contradiction, that in 1987

it was clearly established that prosecutors are obligated to turn

over to defense counsel any and all material exculpatory evidence

in the government’s possession, even if that evidence is known

only to police officers. See Kyles v . Whitley, 514 U.S. at 437.

See generally Brady, supra. One might even say that, by the late

1980's, it was clearly established (at least in other circuits)

that police officers had a constitutional obligation not to

affirmatively conceal or destroy evidence they know to be

exculpatory. See Jones v . City of Chicago, 856 F.2d 985, 993-97

(7th Cir. 1988)(defendant police officers “systematically

concealed from the prosecutors” patently exculpatory evidence);

Geter v . Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988) (“a

35 police officer cannot avail himself of a qualified immunity

defense if he . . . deliberately conceals exculpatory evidence,

for such activity violates clearly established constitutional

principles.”) (emphasis supplied).

I f , however, one poses the question at a level of generality

more appropriate to this case, the answer is not so self-evident.

For example, if the relevant inquiry is defined as whether, in

1987, it was clearly established that police officers had a

constitutionally mandated obligation to turn over reports or

other evidence that is not, on its face, patently “exculpatory,”

but which, in the right defense counsel’s hands, might

nevertheless prove effective for impeachment purposes, one would

be hard-pressed to answer in the affirmative. That is

particularly true since only recently have courts begun to

conclude that police officers might bear some liability under §

1983 for withholding material evidence that leads to a Brady

violation. See, e.g., Brady v . Dill, 187 F.3d 104, 114 (1st Cir.

1999) (“a police officer sometimes may be liable if he fails to

apprise the prosecutor or a judicial officer of known exculpatory

information.”)(citing cases from other circuits)(emphasis

supplied). See also Jean v . Collins, 221 F.3d at 659 (“The

36 Supreme Court decisions establishing the Brady duty on the part

of prosecutors do not address whether a police officer

independently violates the Constitution by withholding from the

prosecutor evidence acquired during the course of an

investigation. Recent cases, including some from this circuit,

have pointed toward such a duty. . . . These cases have left

unclear the exact nature of any duty that the law imposes on

police with regard to exculpatory evidence.”) (citations

omitted). In other words, the notion that police officers can be

personally civilly liable for conduct giving rise to Brady

violations is a relatively recent development in the law and,

even today, its character and contours remain somewhat ill-

defined, particularly in this circuit.

To the extent Simmons had a constitutional obligation to

turn over to prosecutors the investigative reports at issue in

this case (a debatable proposition), that obligation certainly

was not “clearly established” in 1987. That is to say, even if

one might reasonably argue that, by 1987, some courts had

established the rule that police officers must, at the risk of

violating a criminal defendant’s constitutional rights, turn over

to prosecutors all “exculpatory” evidence (even when the

37 exculpatory nature of such evidence is not self-evident and may

even be quite subtle), the “announcement of [that] rule

establishing the right” was not so “unambiguous and widespread”

that the unlawfulness of Simmons’ alleged failure would have been

apparent to any reasonable police officer. Brady v . Dill, 187

F.3d at 116. Nor is there anything in this record to suggest

that Simmons was either “plainly incompetent” or that he

“knowingly violate[d] the law” in failing (if he did) to disclose

the existence and content of the disputed reports to prosecutors.

See Veilleux, 101 F.3d at 3 . See also Ahlers, 994 F. Supp. at

871-72 (concluding that even though the plaintiff demonstrated

that his Brady rights had been violated, the defendant police

officers were entitled to qualified immunity because the

plaintiff failed to show that the officers acted recklessly,

maliciously, deliberately, or in bad faith to violate his

constitutional rights).

Moreover, regardless of how one phrases the constitutional

question at issue here (i.e., even if the constitutional rule had

been “clearly established”), one thing is manifestly clear. An

objectively reasonable police officer standing in Simmons’ shoes

in 1987, prior to Reid’s criminal trial, would not have

38 appreciated either the potentially exculpatory or material nature

of the reports located in the other investigative files

pertaining to unrelated possible incidents of sexual abuse of

Misty. Consequently, such an officer would not have understood

that the failure to disclose them to prosecutors would violate

the criminal defendant’s constitutional right to a fair trial.

Simmons i s , therefore, entitled to qualified immunity — even if

the evidence supported a finding that Simmons failed to disclose

the existence and content of those reports to prosecutors before

trial.

This point was made clear by the Eleventh Circuit Court of

Appeals in McMillian, supra. In that case, the plaintiff sought

to recover damages from several police officers whom he said

purposefully concealed exculpatory evidence in his underlying

criminal trial. In considering whether the officers might avail

themselves of qualified immunity, the court made the following

observations:

Our conclusion that [the defendant police officers’] duties under Brady were clearly established does not end the inquiry. It remains to be determined whether a reasonable officer in [the defendants’] position would know, when they acted, that the evidence withheld from the prosecutor was material, that i s , that withholding the evidence would undermine confidence in the outcome

39 of [plaintiff’s] trial. For if a reasonable officer would not know that the exculpatory and impeachment evidence was material, he would not know that “what he is doing” violates federal law in the circumstances.

* * *

The district court held that several pieces of withheld evidence were clearly exculpatory. However, the district court did not ask whether every reasonable official in the position of [the defendant officers] would understand that withholding those particular pieces of evidence would undermine confidence in the outcome of [plaintiff’s] trial. The court viewed the evidence with the benefit of hindsight, knowing what evidence actually was presented at trial, and agreed with [the state court] that the evidence withheld was material. But [the police officers] did not have the benefit of knowing exactly how the totality of the evidence would play out at trial. It is from their perspective that the district court should have analyzed whether the evidence was material, and we remand for the district court to do s o .

McMillian, 88 F.3d at 1569-70 (emphasis supplied). Viewing the

evidence at issue in this case from the perspective of a

reasonable police officer, prior to Reid’s criminal trial, one

cannot plausibly conclude that the officer should have understood

that, by failing to affirmatively call the prosecutors’ attention

to the reports in question, he was violating Reid’s clearly

established constitutional rights.

In summary, because it was not clearly established in 1987

that a police officer’s failure to disclose potentially, though

40 not obviously, exculpatory impeachment material (particularly

that which was generated in unrelated investigations) would

constitute a discrete and actionable violation of the defendant’s

constitutional right to due process (independent of the Brady

violation which i s , of course, caused by the prosecutor’s failure

to turn over such information), Simmons is entitled to qualified

immunity. He is also entitled to the protections afforded by

qualified immunity because an objectively reasonable police

officer in his situation in 1987, looking forward before Reid’s

criminal trial, would not have appreciate the potentially

material and exculpatory nature of the investigative reports in

question. S o , even if Simmons did fail to disclose the reports,

he cannot be charged with having understood that such a failure

would violate federal law by depriving Reid of his right to due

process and a fair trial. See McMillian, 88 F.3d at 7 0 .

IV. New Trial.

Alternatively, if Simmons is not entitled to judgment as a

matter of law based on a failure of proof, or to qualified

immunity, he is still entitled, on this record, to a new trial

under Fed. R. Civ. P. 59(a). For the reasons previously

discussed, the jury’s verdict in favor of Reid was, in the

41 court’s judgment, “sitting as a 13th juror,” against the great

weight of the evidence. As noted above, even assuming Reid’s

Brady rights were violated in his underlying criminal trial, Reid

failed to introduce evidence from which a jury could find: (1)

that Simmons acted with the requisite culpable state of mind; or

(2) that a reasonable officer in Simmons’ situation would have

appreciated (or even should have appreciated) the exculpatory

nature of the investigative reports at issue in this case.

Since, on this record, Reid introduced insufficient evidence to

establish those essential elements of his claim, Simmons is

entitled to a new trial.

Consequently, if Simmons’ motion for judgment as a matter of

law is incorrectly granted, his motion for a new trial i s ,

alternatively, granted. See Fed. R. Civ. P. 50(c) (“If the

renewed motion for judgment as a matter of law is granted, the

court shall also rule on the motion for new trial.”).

Conclusion

This case presents an unusual set of facts that gives rise

to complex, difficult, and still developing issues of law.

Despite his lack of formal legal training, M r . Reid has

42 unquestionably done a fine job of pursuing his claims. As

evidenced by its verdict, the jury certainly found that he

presented a persuasive and sympathetic case, and it would do Mr.

Reid a disservice if the court did not also acknowledge that his

trial conduct was exemplary, his points well presented, and his

examinations and argument well done indeed. Nevertheless, in

light of the evidence actually presented at trial and the

established law governing Reid’s § 1983 claim, the court is

persuaded that Simmons is entitled to judgment as a matter of

The failure here was the prosecutors’; although fully

cognizant of their obligation to provide exculpatory impeachment

evidence, and indeed to comply with an apparent pre-trial

discovery order specifically directing them to produce such

evidence, they did not make even a modest effort to search the

indexed and retrievable files of the Manchester Police

Department. The evidence at trial made clear that the

investigative reports at issue in this case were readily

available, through no effort more burdensome than a simple

request. The unfortunate consequence of the prosecutors’ conduct

was that Reid might well have been wrongly convicted of a crime

43 he did not commit. That error was, however, corrected when the

state court vacated Reid’s convictions.

Under the circumstances presented, Simmons satisfied the

constitutional obligations he owed to Reid by taking the

investigative notes in question, properly filing them in the

indexed files, and by neither acting nor failing to act for the

purpose of concealing or otherwise preventing the prosecutors

(and thereby the defense) from obtaining those reports. Of

course, if the court of appeals is of the view that this court

has erred, it will certainly not hesitate to correct those errors

and reinstate the jury’s substantial verdict in favor of Reid or

remand the matter for retrial, as it deems appropriate.

In light of the forgoing, defendant’s motion for judgment as

a matter of law (document n o . 309) is granted. His motion for a

new trial (document no. 310) i s , alternatively, granted as well.

The remaining pending motions (documents no. 3 1 1 , 315, 3 1 8 , 319,

320, 325, 326, 331, 332, and 333) are all denied as moot. The

clerk of Court shall enter judgment in favor of defendant Gary

Simmons and close the case.

44 SO ORDERED.

Steven J. McAuliffe United States District Judge

March 3 0 , 2001

cc: Robert G. Whaland, Esq. Gordon C . Reid