William R. Virgil v. City of Newport

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0628n.06
Case No. 18-5129
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM R. VIRGIL,
Plaintiff-Appellee,
v.
CITY OF NEWPORT, et al,
Defendants-Appellants.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY
BEFORE: MERRITT, COOK, and LARSEN, Circuit Judges.
COOK, Circuit Judge. Twenty-eight years after a jury convicted William Virgil of rape
and murder, newly discovered DNA evidence won Virgil a new trial. The government re-
presented Virgil’s case to a grand jury that ultimately refused to indict him. Virgil then sued
thirteen individual police officers for violating his constitutional right to a fair trial by, among
other things, deliberately withholding exculpatory evidence during Virgil’s original prosecution.
Asserting qualified immunity, the individual police officers moved to dismiss. The district court
found the officers ineligible for qualified immunity because clearly established law at that time
required them to disclose such evidence. The officers appeal.
Our review of the record, the applicable law, and the parties’ briefs convinces us that the
district court’s opinion comprehensively sets forth the governing law—United States v. Moldowan,

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578 F.3d 351 (6th Cir. 2009)—and the correct analysis. None of the officers’ arguments to the
contrary undercuts our confidence in the district court’s decision. Thus, rather than duplicate the
district court’s careful work with our own opinion, we affirm on the reasoning of Part II(B)(1)(ii)
of its January 9, 2018 order denying the Newport Police Officers’ motion to dismiss Count One
on qualified-immunity grounds.

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LARSEN, Circuit Judge, concurring in the judgment. In Moldowan v. City of Warren, this
court held that it was clearly established in August 1990 that police officers had a duty to disclose
evidence to the prosecutor when its “exculpatory value” was “apparent.”1 578 F.3d 351, 388 (6th
Cir. 2009). The question in this case is whether Moldowan’s rule was also clearly established two
years earlier, in September 1988. In D’Ambrosio v. Marino, this court held that the Moldowan
standard is “the functional equivalent of a requirement that the officer act in bad faith.” 747 F.3d
378, 390 (6th Cir. 2014) (quotations omitted). On that understanding of the Moldowan test, I
concur in the court’s judgment that defendants are not entitled to qualified immunity.
Virgil has alleged that defendants deliberately concealed exculpatory evidence that was
material to his case. He alleges, for example, that the officers tried to frame him; that they coerced
an inmate to testify falsely that Virgil had confessed to the murder; and that they then deliberately
suppressed exculpatory evidence regarding alternative suspects. Such conduct, if proved, would
surely amount to bad faith or its functional equivalent; and there can be little question that it was
well established before September 1988 that police officers could not deliberately conceal
material, exculpatory evidence. See, e.g., Haley v. City of Boston, 657 F.3d 39, 48–51 (1st Cir.
2011) (explaining that “in 1972, it was not clearly established that Brady’s no-fault disclosure
obligation applied to police officers as opposed to prosecutors,” but holding that it was clearly
established then that “[d]eliberate concealment of material evidence by the police, designed to
grease the skids for false testimony and encourage wrongful conviction, unarguably implicates a
defendant's due process rights.”); Porter v. White, 483 F.3d 1294, 1306 (11th Cir. 2007) (“[T]he
law was clearly established as of 1987 and 1988 that a police officer had a duty not to intentionally
1 I note that police officers have no duty to turn over evidence directly to a criminal
defendant. Rather, any law enforcement duty is fulfilled by the surrender of evidence to the
prosecutor. D’Ambrosio v. Marino, 747 F.3d 378, 389 (6th Cir. 2014).

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withhold exculpatory evidence from the prosecution.”); Jones v. City of Chicago, 856 F.2d 985,
995 (7th Cir. 1988) (“[A]ttempts to circumvent the rule of [Brady] by retaining records in
clandestine files deliberately concealed from prosecutors and defense counsel cannot be
tolerated.” (emphasis added)). Therefore, I concur in the judgment.

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