McMillian v. Johnson ( 1996 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-6123
D. C. Docket No. CV-93-A-699-N
WALTER MCMILLIAN,
Plaintiff-Appellee,
versus
W. E. JOHNSON, TOMMY HERRING, TOM ALLEN,
in their individual capacities, et al.,
Defendants,
THOMAS TATE, SIMON BENSON, LARRY IKNER,
in their individual capacities,
Defendants-Appellants,
ASSOCIATION OF COUNTY COMMISSIONS OF ALABAMA
LIABILITY SELF INSURANCE FUND,
Intervenor-Defendant.
Appeals from the United States District Court
for the Middle District of Alabama
(July 9, 1996)
Before COX and BARKETT, Circuit Judges, and PROPST*, District
Judge.
COX, Circuit Judge:
*
Honorable Robert B. Propst, U. S. District Judge for the
Northern District of Alabama, sitting by designation.
Walter McMillian was convicted of the murder of Ronda Morrison
and sentenced to death. He spent nearly six years on Alabama's
death row, including over a year before his trial. The Alabama
Court of Criminal Appeals ultimately overturned McMillian's
conviction because of the state's failure to disclose exculpatory
and impeachment evidence to the defense. After the state dismissed
the charges against McMillian, he brought this § 1983 action
against various officials involved in his arrest, incarceration,
and conviction. In essence, McMillian alleges that state and local
officials prosecuted and punished him for a crime that they knew he
did not commit.
This is an appeal from the district court's order denying
several defendants' motions for summary judgment based on qualified
immunity. Thus, at this stage of the litigation, we do not know to
what extent McMillian's allegations of egregious official
misconduct are true. Our role on this appeal is to decide the
legal question of whether, if McMillian's allegations are true, the
officials responsible are entitled to qualified immunity.
I. FACTS
To put McMillian's claims in context, we describe in some
detail the events leading up to his arrest, pretrial detention on
death row, trial, and conviction. Many of the facts surrounding
these events are hotly disputed at this, the summary judgment stage
of the litigation.
Ronda Morrison was murdered in Jackson Cleaners in
2
Monroeville, Alabama. Thomas Tate, the Sheriff of Monroe County,
Larry Ikner, an investigator for the Monroe County district
attorney, and Simon Benson, an Alabama Bureau of Investigation
agent, were involved in the investigation of the Morrison murder.
Tate, Ikner, and Benson are the appellants on this appeal.
On June 3, 1987, Tate, Ikner, and Benson interviewed Ralph
Myers, who had been arrested for the murder of a Vicky Pittman.
Myers admitted to being involved in the Pittman murder and claimed
that McMillian also was involved. Myers also was questioned about
the Morrison murder but denied any involvement in or knowledge of
the Morrison murder. He claimed that he did not shoot Morrison,
that McMillian did not give him a gun or tell him to shoot
Morrison, and that he did not know who killed Morrison. Also
during this interview, Myers insisted on having McMillian charged
with sodomy, accusing McMillian of raping him several months
earlier in Conecuh County. There is evidence that Tate, Ikner, and
Benson coerced Myers into falsely accusing McMillian of sodomy so
that they could obtain custody of McMillian while constructing
evidence inculpating McMillian in the Morrison murder. A warrant
was issued for McMillian's arrest on sodomy charges.
The next day, Tate, Ikner, and Benson were called to the
Conecuh County Jail at the request of a Bill Hooks. On the night
of the Morrison murder, almost seven months earlier, Hooks had
given a statement in which he claimed to have seen a white male
with a scar on his face and a black male whom he knew as "John
Dozier" leaving Jackson Cleaners in a greenish-blue pickup truck
3
around the time of the murder. No action was taken at the time,
however, because the officers did not know a "John Dozier." When
interviewed by Tate, Ikner, and Benson, Hooks said that he had seen
a photograph of Myers in the newspaper and he identified Myers as
the white male whom he had seen at Jackson Cleaners on the day of
the Morrison murder.
McMillian was arrested several days later on a highway near
his home for sodomy. He was taken to the Monroe County jail to be
held until he was transported to Conecuh County. Later that day,
Benson learned that Karen Kelly, a girlfriend of McMillian, wanted
to speak to him at the Escambia County Jail. Tate and Ikner went
with Benson to interview Kelly. She told them that on the day
after Morrison's murder, McMillian confessed to her that he had
killed the girl at Jackson Cleaners in Monroeville. Three days
later Kelly signed a sworn statement relating what she had told
Tate, Ikner, and Benson.
Based on the statements of Hooks and Kelly, capital murder
warrants were issued against McMillian and Myers for the Morrison
murder. McMillian then was transferred to Escambia County and
charged with the unrelated murder of Pittman. Myers already had
been charged in the Pittman murder.
The next day, Tate, Ikner, and Benson interviewed Myers again.
Myers stated that he met McMillian on the morning of Morrison's
murder, drove McMillian to Jackson Cleaners in McMillian's truck,
and waited outside while McMillian went into the cleaners. He
claimed that, three days later, McMillian told him that he had
4
killed someone when he was at Jackson Cleaners. On several
subsequent occasions, Myers gave statements revealing further
details about what he claimed happened on the day of the Morrison
murder. McMillian alleges that all of these statements by Myers
were false and coerced by Tate, Ikner, and Benson.
McMillian and Myers both were moved to the Conecuh County Jail
for a preliminary hearing on the sodomy charge against McMillian.
The hearing was continued. McMillian was transferred to the Monroe
County Jail, while Myers remained at the Conecuh County Jail.
During the night, two armed men broke into the Conecuh County Jail
and threatened Myers. Ikner, Benson, and an FBI agent investigated
the incident. Ikner gave an oral report to the Monroe County
district attorney the next day. The district attorney filed
motions to place McMillian and Myers in the custody of the Alabama
Department of Corrections to ensure their safety. A Monroe County
Circuit Judge granted the motions.
The Department of Corrections (the "DOC") incarcerated
McMillian and Myers on death row at the Holman Correctional
Facility. McMillian alleges that Tate, Ikner, Benson, and DOC
officials conspired to place him on death row not to ensure his
safety but to punish and intimidate him. McMillian remained on
death row until his trial approximately one year later. Myers was
transferred back to the Monroe County Jail for about four months
but then was returned to Holman's death row. McMillian alleges
that Myers was transferred back and forth from death row depending
on whether he cooperated with Tate, Ikner, and Benson's efforts to
5
frame McMillian for the Morrison murder. While McMillian and Myers
were on death row, one inmate was executed in the electric chair.
Myers was the prosecution's key witness at McMillian's trial.
Neither the prosecution nor the defense called Kelly to testify.
The jury convicted McMillian of capital murder. He was sentenced
to death.
Eventually, Myers and several other witnesses recanted their
trial testimony. In addition, McMillian learned that the state had
withheld exculpatory and impeachment evidence from him. On
McMillian's petition for post-conviction relief under Ala. R. Crim.
P. 32, the Alabama Court of Criminal Appeals reversed McMillian's
conviction because of the state's failure to disclose exculpatory
and impeachment evidence. McMillian v. State, 616 So. 2d 933 (Ala.
Crim. App. 1993). The state then dismissed the murder charge
against McMillian and released him from prison. This lawsuit
followed.
II. PROCEDURAL HISTORY
McMillian brought suit pursuant to 42 U.S.C. § 1983 against
Tate, Ikner, Benson, and various other defendants who are not
parties to this appeal. In a twenty-seven count complaint,
McMillian alleges violations of his federal constitutional rights,
as well as pendent state constitutional and tort claims. On a
motion to dismiss, the district court dismissed Monroe County,
6
1
Alabama, and all official capacity claims, from the suit. The
court also dismissed many of the claims asserted against various
defendants in their individual capacities. The remaining
defendants later moved for summary judgment, asserting qualified
immunity, among other defenses.
The district court granted summary judgment to various
defendants on many of McMillian's claims. The court denied summary
judgment, however, on a number of the claims against Tate, Ikner,
and Benson. Because these claims form the basis of this appeal, we
describe the district court's resolution of them on summary
judgment in some detail.
A. Count One: Pretrial Detention on Death Row
In Count One, McMillian alleges that his incarceration on
death row while a pretrial detainee violated his clearly
established due process rights under the Fourteenth Amendment.
McMillian alleges that Tate, Ikner, and Benson conspired with DOC
officials to place and keep McMillian on death row prior to his
trial. This pretrial detention on death row, McMillian avers, was
for the purpose of punishing and intimidating him. The district
court concluded that a genuine issue of fact exists as to whether
Tate, Ikner, and Benson conspired to detain McMillian on death row
for the purpose of punishing him rather than out of concern for his
safety. Such a conspiracy, the court held, would violate
1
In No. 95-6369, also decided today, we address McMillian's
permissive interlocutory appeal from the district court's order
dismissing Monroe County from the suit.
7
McMillian's clearly established due process rights.
The district court found that, while it is undisputed that two
armed men broke into the Conecuh County Jail and threatened Myers,
a genuine issue of material fact exists as to whether the armed men
made threats against McMillian. Tate, Ikner, and Benson claim that
McMillian was threatened; Myers states in an affidavit that he
never told them that McMillian was threatened. The district court
determined that, if Myers is telling the truth, it would be
reasonable to infer that Tate, Ikner, and Benson were not genuinely
concerned with McMillian's safety and falsely told the district
attorney that McMillian had been threatened and should be
transferred from the county jails for his own safety.
The district court found that the evidence shows a genuine
issue of fact as to the existence of a conspiracy between Tate,
Ikner, and Benson, and DOC officials. There is evidence that Tate
made threatening and hateful remarks to McMillian suggesting that
Tate was more interested in punishing McMillian than in keeping him
safe and secure. The DOC accepted custody of McMillian and Myers
even though (1) the state court had no authority under Alabama law
to order their transfers, (2) housing pretrial detainees violated
DOC policy, and (3) housing pretrial detainees on death row was
unprecedented. In addition, Tate, Ikner, and Benson exercised some
control over transfers to and from death row. While McMillian
remained on death row, Myers was transferred back to the Monroe
County jail and then returned to death row about four months later.
The district court found that, drawing all inferences in favor of
8
McMillian, the evidence with respect to the transfers supported two
crucial points:
First, the transferring of Myers to Monroe
County Jail and back to Holman's Death Row,
apparently without any written court orders,
shows that there must have been some
communication and understanding between Monroe
County law enforcement officials and the
D.O.C. Defendants about why such transfers
were taking place and ultimately why McMillian
and Myers were really being held on Death Row.
Second, Myers' statement indicates that
Defendants were using Death Row as a means to
punish, intimidate, and coerce Myers to
testify against McMillian. If Defendants were
using Death Row to punish Myers, it is
reasonable to infer that Death Row was also
being used to punish McMillian.
(R. 7-127 at 32.)
B. Count Two: Suppression of Exculpatory and Impeachment Evidence
In Count Two, McMillian alleges that Tate, Ikner, and Benson
suppressed and withheld exculpatory and impeachment evidence in
violation of his due process rights under the Fourteenth Amendment.
The district court found that McMillian had presented sufficient
evidence to raise genuine issues of material fact as to whether
Tate, Ikner, and Benson intentionally withheld three pieces of
evidence from the prosecutor: the June 3, 1987, statement by Myers;
a statement by an Isaac Daily; and a statement by a Miles Jackson.
The district court rejected Tate, Ikner, and Benson's claims of
qualified immunity, holding that intentionally withholding
exculpatory and impeachment evidence from the prosecutor with no
reason to believe that the prosecutor had or knew of the evidence
violated clearly established law.
9
1. The June 3, 1987, Statement By Myers
The district court found that the June 3, 1987, statement by
Myers to Tate, Ikner, and Benson was exculpatory2 for McMillian and
that a genuine issue exists as to whether Tate, Ikner, and Benson
intentionally withheld the statement from the prosecutor. In the
statement, Myers denied being involved in the Morrison murder or
knowing who committed the murder. He rejected repeated suggestions
that McMillian had put him up to killing Morrison. He offered to
take a polygraph test. The district court determined that the
statement was clearly exculpatory because it contradicted the trial
testimony of Myers, who was the prosecution's key witness against
McMillian. The court found that the Morrison murder prosecutor
never received the tape of the statement because it was placed in
the Pittman murder file. The court concluded that a reasonable
jury could infer from the circumstances that Tate, Ikner, and
Benson intended to keep the statement from the Morrison prosecutor.
2. The Isaac Daily Statement
The district court found that a statement by Isaac Daily to
Benson and the Escambia County district attorney was exculpatory
for McMillian and that a genuine issue exists as to whether Benson
intentionally withheld the statement from the prosecutor. Daily
states that, while at the Monroe County Jail, he overheard Myers
2
The district court's opinion uses the term "exculpatory" to
refer to both exculpatory evidence and impeachment evidence that is
required to be disclosed under Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194 (1963), and its progeny. We use the district court's
terminology in describing its findings.
10
say that Myers and Kelly had killed Vicky Pittman and that Myers
and Kelly were plotting to blame the Pittman murder on McMillian.
The court determined that Daily's statement was clearly exculpatory
because it showed that Myers was willing to falsely accuse
McMillian of murder. The court found that the evidence is
undisputed that the Morrison murder prosecutor never received the
tape of the statement because it was placed in the Pittman murder
file. The court concluded that a reasonable jury could infer from
the circumstances that Benson intended to keep the Daily statement
from the Morrison prosecutor. The court found no evidence that
Tate and Ikner were involved in the suppression of the Daily
statement.
3. The Miles Jackson Statement
The district court found that a statement by Miles Jackson to
Alabama Bureau of Investigation agent Barnett was exculpatory for
McMillian and that a genuine issue exists as to whether Tate,
Ikner, and Benson intentionally withheld the statement from the
Morrison prosecutor. Jackson stated that he was in Jackson
Cleaners at 10:30 on the morning of the murder and that Ronda
Morrison was alive and well. The court determined that the Jackson
statement was clearly exculpatory because it undermined the
prosecution's theory of the timing of Morrison's murder. The
prosecution's theory was that the murder occurred between 10:15,
when another witness saw Morrison alive, and 10:45 or 10:50, when
Morrison was found dead. The district court reasoned that Myers's
11
testimony as to the events of the morning sounded credible with a
half-hour window but much less credible if the events must have
occurred in fifteen minutes.
C. Count Three: Coercion of False Testimony
In Count Three, McMillian alleges that Tate, Ikner, and Benson
pressured various witnesses to give false testimony against
McMillian and threatened various witnesses to keep them from giving
exculpatory testimony for McMillian. The district court found that
McMillian had presented sufficient evidence to raise a genuine
issue of fact as to whether Tate, Ikner, and Benson pressured Myers
to testify falsely against McMillian. Holding that clearly
established law prohibited state officials from using perjured
testimony to convict a defendant, the district court rejected Tate,
Ikner, and Benson's motion for summary judgment based on qualified
immunity.
The court also found a genuine issue as to whether Tate
threatened Karen Kelly in an effort to influence her potential
testimony. The district court found that Kelly had initially
implicated Myers, not McMillian, in the Morrison murder, and thus
was a potential defense witness.3 The district court held that any
interference with Kelly would be a per se violation of McMillian's
clearly established right for his witnesses to be free from
government interference. That Kelly was not called to testify at
3
As we explain in section IV.E., the district court
apparently misread the account of Kelly's statement. Kelly was
referring to the Pittman murder, not the Morrison murder.
12
trial is irrelevant, according to the district court.
D. The State Law Claims
The district court held that McMillian had presented
sufficient evidence to raise a genuine issue of material fact for
trial on McMillian's state law claims of malicious prosecution
(Count Twenty), abuse of process (Count Twenty-One), and outrage
(Count Twenty-Six) against Tate, Ikner, and Benson. In addition,
the court held that there is a genuine issue of fact on another
outrage claim against Tate (Count Twenty-Five). The district
rejected Tate, Ikner, and Benson's arguments that they are
protected by state law immunity.
III. ISSUES ON APPEAL
We address five issues on this appeal: (1) whether Tate,
Ikner, and Benson are entitled to qualified immunity on McMillian's
claim that their actions in causing his pretrial detention on death
row violated his due process rights under the Fourteenth Amendment;
(2) whether Tate, Ikner, and Benson are entitled to qualified
immunity on McMillian's claim that they withheld exculpatory and
impeachment evidence from him in violation of due process; (3)
whether Tate, Ikner, and Benson are entitled to qualified immunity
on McMillian's claim that they knowingly used Myers's perjured
testimony to convict him in violation of due process; (4) whether
Tate is entitled to qualified immunity on McMillian's claim that he
intimidated Kelly into not giving exculpatory testimony; and (5)
13
whether Tate is entitled to state law sovereign immunity on
McMillian's state law claims.4
IV. DISCUSSION
A. General Principles of Qualified Immunity
In all but exceptional cases, qualified immunity protects
government officials performing discretionary functions5 from the
burdens of civil trials and from liability. Lassiter v. Alabama
A & M University, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc).
Only when an official's conduct violates "clearly established
statutory or constitutional rights of which a reasonable person
would have known" is the official not protected by qualified
immunity. Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 2738 (1982)). To be "clearly established," the
law that the government official allegedly violated "must have
4
In addition, Tate, Ikner, and Benson argue that: (1) they
are entitled to quasi-judicial immunity on McMillian's claim that
their actions in causing his pretrial detention on death row
violated his due process rights under the Fourteenth Amendment; and
(2) they are entitled to quasi-prosecutorial immunity on
McMillian's claim that they withheld exculpatory evidence from the
prosecutor in violation of due process. These arguments are
meritless and do not warrant further discussion. See 11th Cir. R.
36-1.
Ikner and Benson also argue that the district court erred in
denying summary judgment on the state law tort claims in Count
Twenty (malicious prosecution), Count Twenty-One (abuse of
process), and County Twenty-Six (outrage). They raise various
nebulous arguments about state law immunity. Their arguments are
meritless and do not warrant further discussion. See 11th Cir. R.
36-1.
5
It is undisputed that Tate, Ikner, and Benson were engaged
in discretionary functions at all relevant times.
14
earlier been developed in such a concrete and factually defined
context to make it obvious to all reasonable government actors, in
the defendant's place, that 'what he is doing' violates federal
law." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107
S. Ct. 3034, 3039 (1987)). "For qualified immunity to be
surrendered, pre-existing law must dictate, that is, truly compel
. . . the conclusion for every like-situated, reasonable government
agent that what defendant is doing violates federal law in the
circumstances." Id. at 1150. The plaintiff bears the burden of
demonstrating that the defendant violated clearly established law.
Jordan v. Doe, 38 F.3d 1559, 1565 (11th Cir. 1994) (quotation marks
and citation omitted).
B. Scope of Appellate Jurisdiction Over Interlocutory Appeals of
Denials of Qualified Immunity Defense
A district court's order denying a defense of qualified
immunity is an appealable final decision within the meaning of 28
U.S.C. § 1291 to the extent that it turns on a question of law.
Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817
(1985). The Supreme Court recently construed this rule allowing
immediate appeals of denials of qualified immunity to permit
immediate appeals only of the purely legal issues of what law was
"clearly established" and whether the facts alleged violate that
law. Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995) (citing
Mitchell, 472 U.S. at 528 & n.9, 105 S. Ct. at 2817 & n.9). The
Supreme Court held that when a district court denies summary
judgment in a qualified immunity case based on its resolution of a
15
fact-related dispute--such as whether the evidence is sufficient to
show a genuine issue of fact for trial--the order is not an
immediately appealable final decision. Id.
McMillian contends that many of the arguments that Tate,
Ikner, and Benson raise on appeal are, in substance, challenges to
the district court's resolution of factual disputes. As such,
McMillian contends, these issues are not cognizable on this appeal
under Johnson v. Jones . Though McMillian's argument finds some
support in Johnson, this circuit has not construed Johnson to bar
immediate appellate review of fact-based rulings in all
circumstances, and the Supreme Court's subsequent decision in
Behrens v. Pelletier, 116 S. Ct. 834 (1996), confirms that Johnson
did not work such a constriction of interlocutory appellate
jurisdiction over orders denying a qualified immunity defense.
In Johnson v. Clifton, 74 F.3d 1087 (11th Cir. 1996), petition
for cert. filed, 64 U.S.L.W. 3742 (U.S. Apr. 25, 1996) (No. 95-
1743), we held that an appellate court may address a district
court's resolution of factual issues when the core qualified
immunity issue is also raised on appeal from a denial of summary
judgment. Id. at 1091. We reasoned that an appellate court may
address the factual issue of what conduct the defendant engaged in
because the issue is a necessary part of the core qualified
immunity analysis of whether the defendant's conduct violated
clearly established law. Id. See also Cottrell v. Caldwell , 85
F.3d 1480, (11th Cir. 1996); Dolihite v. Maughon, 74 F.3d 1027,
1034 n.3 (11th Cir. 1996). If, as in Johnson v. Jones, only the
16
factual issue of evidentiary sufficiency is raised on appeal, a
final, collateral order is not being appealed, and the appellate
court has no jurisdiction to hear the case. Johnson v. Clifton, 74
F.3d at 1091. But so long as the core qualified immunity issue is
raised on appeal, a final, collateral order is being appealed, and
the appellate court has jurisdiction to hear the case, including
challenges to the district court's determination that genuine
issues of fact exist as to what conduct the defendant engaged in.
Id.; Cottrell, -- F.3d --.
Even when the core qualified immunity issue is raised,
however, we may decline to review the district court's
determination of the facts for purposes of summary judgment. See
Johnson v. Clifton, 74 F.3d at 1039. "[W]e are not required to
make our own determination of the facts for summary judgment
purposes; we have discretion to accept the district court's
findings, if they are adequate." Cottrell, -- F.3d at --, (citing
Johnson v. Jones, 115 S. Ct. at 2159). We follow that approach
here,6 for the district court's determination of the genuine issues
for trial is exhaustive and detailed. Rather than undertaking our
own review of the record in the light most favorable to McMillian
to determine the facts for purposes of summary judgment, we accept
the district court's determination of the relevant facts for
6
We make one exception to this approach. The district
court's finding as to the content of a statement by Karen Kelly
appears to have been based entirely on a misreading of the record.
The misreading is obvious, and McMillian does not dispute that the
finding is based on a misreading. Thus, in section IV.E., we
simply correct this mistake.
17
purposes of summary judgment and, using those facts, analyze
whether Tate, Ikner, and Benson's conduct violated clearly
established law. See Cottrell, -- F.3d at --, (following same
approach).
We emphasize that we accept the district court's
determinations of the facts only for purposes of this interlocutory
appeal. At trial, it may turn out that these "facts" are not the
real "facts." As we explained in Cottrell,
a defendant who does not win summary judgment
on qualified immunity grounds may yet prevail
on those grounds at or after trial on a motion
for a judgment as a matter of law. . . . What
we decide in this interlocutory appeal is only
whether the district court should have granted
summary judgment on qualified immunity
grounds.
-- F.3d at --, (citations omitted) (quoting Kelly v. Curtis, 21
F.3d 1544, 1546-47 (11th Cir. 1994)). Johnson v. Jones does not
affect the scope of appellate review after final judgment.
C. Pretrial Detention on Death Row
In Count One, McMillian alleges that his incarceration on
death row while a pretrial detainee violated his clearly
established due process rights. McMillian alleges that Tate,
Ikner, and Benson conspired with DOC officials to place and keep
McMillian on death row prior to his trial for the purpose of
punishing and intimidating him.
1. McMillian States a Fourteenth Amendment Claim
Tate contends that Count One does not state a Fourteenth
18
Amendment claim. "A necessary concomitant to the determination of
whether the constitutional right asserted by a plaintiff is
'clearly established' at the time the defendant acted is the
determination of whether the plaintiff has asserted a violation of
a constitutional right at all." Jordan, 38 F.3d at 1564 (quoting
Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct 1789, 1793 (1991)).
Thus, before we address whether Tate, Ikner, and Benson violated
clearly established law in allegedly causing McMillian's
confinement on death row, we examine McMillian's allegations to
determine whether he asserts a cognizable constitutional claim.
Id.
Tate argues that McMillian cannot state a Fourteenth Amendment
claim simply by showing that he, Ikner, and Benson subjectively
intended to punish McMillian by causing his pretrial detention on
death row. According to Tate, McMillian states a Fourteenth
Amendment claim only if the pretrial detention was not rationally
related to a legitimate non-punitive governmental objective. Tate,
Ikner, and Benson argue that McMillian's transfer to death row was
rationally related to the legitimate objective of ensuring
McMillian's safety.
Due process prohibits a state from punishing a pretrial
detainee at all until he is lawfully convicted of a crime. Bell v.
Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872 (1979); Hamm v.
Dekalb County, 774 F.2d 1567, 1572 (11th Cir. 1985), cert. denied,
475 U.S. 109, 106 S. Ct. 1492 (1986). To determine whether a
condition of pretrial detention amounts to punishment, we must
19
decide whether the condition is imposed for the purpose of
punishment or whether it is incident to some legitimate
governmental purpose. Bell, 441 U.S. at 538, 99 S. Ct. at 1873.
Contrary to Tate's contention, a showing of an intent to punish
suffices to show unconstitutional pretrial punishment. Bell, 441
U.S. at 538 & n.20, 99 S. Ct. at 1873-74 & n.20; Hamilton v. Lyons,
74 F.3d 99, 104 (5th Cir. 1996) (stating that expressed intent by
officers to punish pretrial detainee shows unconstitutional
pretrial punishment); Hause v. Vaught , 993 F.2d 1079, 1085 (4th
Cir. 1993) (same), cert. denied, 114 S. Ct. 712 (1994). An intent
to punish may be inferred when a condition of pretrial detention is
not reasonably related to a legitimate governmental goal; for
example, an intent to punish may be inferred when the condition is
excessive in relation to the legitimate purpose assigned to it.
Bell, 441 U.S. at 538, 99 S. Ct. at 1874; Hamilton, 74 F.3d at 104.
The district court found that McMillian had presented
sufficient evidence to raise a genuine issue of fact as to whether
Tate, Ikner, and Benson conspired to detain McMillian on death row
for the purpose of punishing him. To the extent that Tate, Ikner,
and Benson argue that McMillian was transferred for the purpose of
ensuring his safety, they simply take issue with the district
court's conclusion that McMillian has raised a genuine issue of
fact as to whether the purpose of the transfer was punishment. As
we have explained, we do not address on this appeal challenges to
20
the district court's factual determinations. See section IV.B.7
To the extent that Tate, Ikner, and Benson argue that a pretrial
detainee may be subjected to adverse8 conditions of confinement for
the purpose of punishment so long as there is a legitimate
alternative reason for the confinement, regardless of whether the
legitimate reason in fact motivated the defendants' actions, they
are simply wrong. An express purpose to punish establishes
unconstitutional pretrial punishment. Bell, 441 U.S. at 538-39 &
n.20, 99 S. Ct. at 1873-74 & n.20; Hamilton, 74 F.3d at 104; Hause,
993 F.2d at 1085.9 Here, the district court concluded that
McMillian had presented sufficient evidence of a purpose to punish
to satisfy his burden on summary judgment. Therefore, we hold that
McMillian states a claim for unconstitutional pretrial punishment.
7
For the same reason, we reject Ikner and Benson's contention
that they played no role in McMillian's placement on death row.
The district court found that a genuine issue exists as to whether
Ikner and Benson lied about the results of their investigation of
the break-in at the Conecuh County jail and conspired with Tate and
DOC officials to put McMillian on death row.
8
Tate suggests that being confined on death row is no worse
than being confined at the local jail. Such a suggestion borders
on the frivolous.
9
Whether a condition of confinement is related to a
legitimate governmental purpose is relevant as circumstantial
evidence of whether the condition was imposed for the purpose of
punishment. At trial, Tate, Ikner, and Benson may present evidence
and argue that they transferred McMillian to death row not to
punish him but rather for the legitimate purpose of ensuring his
safety. Defendants cannot, however, obtain summary judgment simply
by arguing that a legitimate purpose for the transfer exists when
there is a genuine issue as to whether McMillian was transferred
for that legitimate purpose or for the unconstitutional purpose of
punishment.
21
2. Clearly Established Law Prohibited Placing a Pretrial
Detainee on Death Row for the Purpose of Punishment
Qualified immunity shields Tate, Ikner, and Benson from the
burdens of trial and from liability unless transferring McMillian
to death row for the purpose of punishment violated clearly
established law. Lassiter, 28 F.3d at 1149. Tate, Ikner, and
Benson argue that the law governing whether conditions of
confinement amount to pretrial punishment was not clearly
established at the time of McMillian's transfer.
When McMillian was transferred to Holman's death row, clearly
established law in this circuit prohibited imposing on a pretrial
detainee conditions of detention that amount to punishment. See
Bell, 441 U.S. at 535, 99 S. Ct. at 1872; Hamm, 774 F.2d at 1572.
The issue for qualified immunity purposes, however, is not whether
the due process right not to be punished before conviction was
clearly established. The proper inquiry is whether it was clearly
established that transferring a pretrial detainee to death row for
the purpose of punishment violates due process.
To be "clearly established," the law that the government
official allegedly violated "must have earlier been developed in
such a concrete and factually defined context to make it obvious to
all reasonable government actors, in the defendant's place, that
'what he is doing' violates federal law." Lassiter, 28 F.3d at
1149 (quotation marks and citation omitted). We have found no case
with facts similar to McMillian's allegations. The pre-existing
case law prohibiting conditions of pretrial detention that amount
to punishment involved conditions such as double-bunking, mail
22
restrictions, search policies, Bell, 441 U.S. 520, 99 S. Ct. 1861,
overcrowding, unsanitary food, and lack of adequate medical care,
Hamm, 774 F.2d 1567.
Nevertheless, for the law to be clearly established, a court
need not have found the very action in question unlawful; what is
essential is that the action's unlawfulness be apparent in light of
pre-existing law. Jordan, 38 F.3d at 1566. We do not view the
absence of a case factually similar to the extraordinary
allegations in this case as an indication that the law was not
clearly established that confining a pretrial detainee on death row
to punish him is unconstitutional. Bell's prohibition on any
pretrial punishment, defined to include conditions imposed with an
intent to punish, should have made it obvious to all reasonable
officials in Tate, Ikner, and Benson's place that holding McMillian
on death row to punish him before he was tried violated McMillian's
due process rights. If McMillian's allegations are true, Tate,
Ikner, and Benson violated McMillian's clearly established
constitutional rights. Therefore, they are not entitled to summary
judgment based on qualified immunity.
Tate contends that his purpose in causing McMillian's
detention on death row may not be considered in determining whether
he is entitled to qualified immunity. According to Tate, Harlow's
objective reasonableness standard precludes any inquiry into a
defendant's subjective intent, even when intent is an element of
the underlying constitutional claim. Thus, Tate argues that we
must ignore the existence of a genuine issue as to whether
23
defendants transferred McMillian to death row for the purpose of
punishment. The only question for purposes of qualified immunity,
Tate contends, is whether a "reasonable officer, knowing what Tate
knew about the Conecuh County break-in, could have thought it
lawful to request McMillian's transfer." (Appellant Tate's Br. at
38.) In other words, Tate contends that he is entitled to
qualified immunity if some reasonable official, acting with no
intent to punish McMillian, could have thought it lawful to
transfer McMillian to death row in light of the break-in.
Our precedent compels us to reject Tate's contention. Like
every other circuit that has considered the issue, we have held
that intent or motivation may not be ignored when intent or
motivation is an essential element of the underlying constitutional
violation. Edwards v. Wallace Community College , 49 F.3d 1517,
1524 (11th Cir. 1995).10 A purpose to punish is an essential
element of a pretrial punishment claim under the Fourteenth
Amendment. Hence, Tate, Ikner, and Benson's purpose must be
10
Accord, Thompson v. Vickers, 26 F.3d 603, 607 (5th Cir.
1994); Branch v. Tunnell, 937 F.2d 1382, 1385-86 (9th Cir. 1991);
Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990) (en banc),
cert. denied, 501 U.S. 1204, 111 S. Ct. 2796 (1991); Siegert v.
Gilley, 895 F.2d 797, 801-812 (D.C. Cir. 1990), aff'd on other
grounds, 500 U.S. 226, 111 S. Ct. 1789 (1991); Poe v. Haydon, 853
F.2d 418, 431 (6th Cir. 1988), cert. denied, 488 U.S. 1007, 109
S. Ct. 788 (1989); Turner v. Dammon, 848 F.2d 440, 445 n.3 (4th Cir.
1988); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847
F.2d 642, 648 (10th Cir. 1988); Musso v. Hourigan , 836 F.2d 736,
743 (2nd Cir. 1988).
Tate acknowledges our precedent and this overwhelming
persuasive authority but contends that the Edwards court and all of
the other courts that have considered the issue are wrong. We are
bound by Edwards and, in any event, are unpersuaded by Tate's
argument.
24
considered in this case, just as discriminatory intent must be
considered when an equal protection violation is asserted, see
Ratliff v. DeKalb County, Ga., 62 F.3d 338, 341 (11th Cir. 1995);
Edwards, 49 F.3d at 1524, and intent or motivation must be
considered when certain First Amendment claims are asserted, see,
e.g., Tompkins, 26 F.3d at 607 (alleged retaliatory transfer of
government employee); Losavio, 847 F.2d at 648 (alleged
interference with speech); Musso, 836 F.2d at 743 (alleged content-
based censorship at school board meeting). When Tate, Ikner, and
Benson's purpose to punish is considered, there is no question that
their alleged conduct violated clearly established law.11
D. Suppression of Exculpatory and Impeachment Evidence
In Count Two, McMillian alleges that Tate, Ikner, and Benson
withheld exculpatory and impeachment evidence in violation of his
due process rights under the Fourteenth Amendment. The district
court found that McMillian had presented sufficient evidence to
raise genuine issues of material fact as to whether Tate, Ikner,
and Benson intentionally withheld several pieces of exculpatory and
impeachment evidence from the Morrison prosecutor. The district
court rejected defendants' claims of qualified immunity, holding
11
We note that neither Tate, Ikner, nor Benson contends that
the district court applied the wrong standard on summary judgment
in evaluating McMillian's evidence of their purpose. Therefore, we
need not address the quantum or quality of evidence of intent
necessary to overcome a defendant's motion for summary judgment
when the motion is based on qualified immunity grounds. See, e.g.,
Tompkins, 26 F.3d at 608-609; Hull v. Cuyahoga Valley Bd. of Educ.,
926 F.2d 505, 512 (6th Cir.), cert. denied, 501 U.S. 1261, 111
S. Ct. 2917 (1991); Losavio, 847 F.2d at 649.
25
that intentionally withholding exculpatory or impeachment evidence
from the prosecutor with no reason to believe that the prosecutor
had or knew of the evidence violated clearly established law under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
1. McMillian States a Claim for a Brady Violation12
Brady protects an accused's due process right to a fair trial.
Id. at 87, 83 S. Ct. at 1197. In Brady, the Supreme Court held
that "the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." Id., 83 S. Ct. at 1197-98.
Brady requires disclosure of both exculpatory and impeachment
evidence that is material. See Giglio v. United States, 405 U.S.
12
We note that neither Tate, Ikner, nor Benson question
whether a claim for a Brady violation may be asserted under § 1983.
Though we have never explicitly addressed whether claims for Brady
violations are cognizable under § 1983, several other circuits have
permitted § 1983 suits for money damages to be asserted for Brady
violations. See, e.g., Carter v. Burch, 34 F.3d 257, 263-64 (4th
Cir. 1994) (affirming jury verdict against police officer for
withholding exculpatory evidence that should have been disclosed
under Brady), cert. denied, 115 S. Ct. 1101 (1995); McDonald v.
State of Illinois, 557 F.2d 596, 603 (7th Cir.) (holding that Brady
violation states claim under § 1983), cert. denied, 434 U.S. 966,
98 S. Ct. 508 (1977); Hilliard v. Williams, 516 F.2d 1344, 1349-50
(6th Cir. 1975) (holding that allegation that state investigator
withheld exculpatory evidence in violation of Brady states § 1983
claim), vacated on other grounds, 424 U.S. 961, 96 S. Ct. 1453
(1976), on remand, 540 F.2d 220, 222 (1976) (affirming judgment
against investigator); Carter v. Harrison, 612 F. Supp. 749, 758
(E.D.N.Y. 1985) (holding that claim against police officer for
failing to turn exculpatory evidence over to prosecutor is
cognizable under § 1983). We agree that § 1983 provides a cause of
action for a violation of the due process right to a fair trial
that is protected by Brady.
26
150, 153-54, 92 S. Ct. 763, 766 (1972). Evidence is material if
its suppression undermines confidence in the outcome of the trial.
Kyles v. Whitley, 115 S. Ct. 1555, 1566 (1995).
The Supreme Court has not explicitly addressed the disclosure
duties of the police and other investigators under Brady. This
court has noted, however, that investigators have no duty to
disclose exculpatory and impeachment evidence to the defense.
Kelly v. Curtis, 21 F.3d at 1552. 13 The Constitution imposes the
duty to disclose exculpatory and impeachment evidence to the
defense on the prosecutor. Id. See also Walker v. City of New
York, 974 F.2d 293, 299 (2nd Cir. 1992), cert. denied, 507 U.S.
14
961, 113 S. Ct. 1387 (1993). Investigators satisfy their
obligations under Brady when they turn exculpatory and impeachment
evidence over to the prosecutor. Walker, 974 F.2d at 299; Jones v.
13
Though Kelly was a § 1983 action for illegal detention, not
for a Brady violation, we drew on Brady principles to define a
police officer's duties to disclose evidence.
14
The Second Circuit has advanced sound reasons for placing
the obligation to disclose evidence to the defense on the
prosecutor:
It is appropriate that the prosecutors, who
possess the requisite legal acumen, be charged
with the task of determining which evidence
constitutes Brady material that must be
disclosed to the defense. A rule requiring
the police to make separate, often difficult,
and perhaps conflicting, disclosure decisions
would create unnecessary confusion. It also
would ignore the fact that the defendant's
appropriate point of contact with the
government during litigation is the prosecutor
and not those who will be witnesses against
him.
Walker, 974 F.2d at 299.
27
City of Chicago, 856 F.2d 985, 995 (7th Cir. 1988). If they have
reason to believe that the prosecutor already has the exculpatory
and impeachment evidence, though, investigators have no duty to
disclose the evidence. Kelly, 21 F.3d at 1552.
On appeal, neither Tate, Ikner, nor Benson disputes that an
investigator has a duty under Brady to turn exculpatory and
impeachment evidence over to the prosecutor. Nor do they dispute
that the evidence that they allegedly suppressed was Brady
material. Instead, Tate argues that he had reason to believe that
the prosecutor knew about the exculpatory and impeachment evidence
because Ikner, the prosecutor's investigator, knew of the evidence.
Ikner and Benson argue that Brady did not require them to turn the
evidence at issue over to the prosecutor in the circumstances of
this case.15 Ikner and Benson also argue that they could not have
known, when they acquired the evidence, that the evidence would
turn out to be exculpatory.
In arguing that he had reason to believe that the prosecutor
was aware of the exculpatory and impeachment evidence, Tate relies
on our decision in Kelly v. Curtis, 21 F.3d 1544. Plaintiff in
Kelly sued three police detectives under § 1983 for illegal
detention, among other claims. Plaintiff had spent a year in jail
on drug charges that eventually were dropped. He alleged that the
detectives concealed from the prosecutor a lab report revealing
15
Ikner and Benson also dispute the district court's
determination that a genuine issue exists as to whether they
intentionally withheld evidence. As we have explained, we do not
address on this appeal challenges to the district court's fact-
based rulings. See section IV.B.
28
that the substance on his possession was not cocaine. The district
court denied the detectives' motion for summary judgment, holding
that the detectives had a legal obligation to ensure that the judge
or prosecutor was aware of all exculpatory evidence. Id. at 1549.
We reversed, holding that the police have no duty to disclose
exculpatory evidence when they have reason to believe that the
prosecutor already is aware of the evidence. Id. at 1552. In
Kelly, the detectives had reason to believe that the prosecutor was
aware of the lab report because the report listed the district
attorney's office as a recipient and the state lab had a practice
of sending a copy directly to the prosecutor. Id.
Tate argues that he had even more reason to believe that the
prosecutor was aware of the exculpatory and impeachment evidence
than the detective in Kelly because Ikner, who was part of the
prosecutor's office, knew of the evidence. We agree that a
prosecutor's investigator's awareness of exculpatory or impeachment
evidence usually will give other investigators reason to believe
that the prosecutor is aware of the evidence. But Tate cannot
avail himself of that argument, for he allegedly conspired with
Ikner to withhold the evidence from the prosecutor. Thus, far from
having reason to believe that the prosecutor was aware of the
evidence, Tate allegedly knew that the prosecutor was not aware of
the evidence. Kelly, therefore, is inapplicable to this case.
Ikner and Benson argue that they did not violate Brady because
the exculpatory and impeachment evidence was acquired during the
Pittman murder investigation rather than during the Morrison
29
investigation. Thus, they argue, the evidence properly was left in
the Pittman file rather than in the Morrison file. This argument
is meritless. Ikner and Benson were investigating the Pittman
murder contemporaneously with the Morrison murder. McMillian and
Myers were charged in both murders. Regardless of which murder was
being investigated at the precise moment the evidence was acquired,
Ikner and Benson had an obligation under Brady to give evidence
that was favorable to McMillian in the Morrison murder to the
Morrison prosecutor.16
2. Clearly Established Law Prohibited Police Suppression of
Exculpatory and Impeachment Evidence
Tate, Ikner, and Benson are protected by qualified immunity
unless their actions violated clearly established law. Pre-
existing law as of 1987 and 1988, when they acted, must have made
it obvious to every like-situated, reasonable government agent that
withholding the exculpatory and impeachment evidence from the
Morrison murder prosecutor violated federal law in the
circumstances. Lassiter, 28 F.3d at 1150. Citing the Fifth
Circuit's decision in Geter v. Fortenberry, 849 F.2d 1550, 1559
(5th Cir. 1988), the district court held that in 1987 and 1988 a
16
Ikner and Benson also argue that they reasonably could have
believed that McMillian's attorneys, who were representing him in
both the Morrison murder and the Pittman murder, would pursue
discovery in the Pittman murder and thus find in the Pittman file
the material favorable to McMillian in the Morrison murder. This
argument should be addressed to the factfinder at trial; the
district court determined that there is evidence that Ikner and
Benson placed the evidence in the Pittman file for the purpose of
concealing it from McMillian.
30
police officer had a clearly established duty under Brady to not
intentionally withhold exculpatory or impeachment evidence from the
prosecutor.
We agree with the Fifth Circuit that clearly established law
in 1987 and 1988 prohibited the police from concealing exculpatory
or impeachment evidence. See Geter, 849 F.2d at 1559.17 Brady and
its progeny made clear that an accused's due process rights are
violated when the prosecution fails to disclose exculpatory or
impeachment evidence to the defense, regardless of whether the
prosecutor himself acted in bad faith or even knew of the evidence.
See Giglio v. United States, 405 U.S. at 153-54, 92 S. Ct. at 766.
Our case law clearly established that an accused's due process
rights are violated when the police conceal exculpatory or
impeachment evidence. Freeman v. State of Georgia, 599 F.2d 65, 69
(5th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661
(1980).18 We had explained:
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 . . . The duty to
disclosure [sic] is that of the state, which
ordinarily acts through the prosecuting
attorney; but if he too is the victim of
police suppression of the material
information, the state's failure is not on
that account excused.
17
Geter itself cannot clearly establish that Tate, Ikner, and
Benson had a duty to turn the exculpatory and impeachment evidence
over to the prosecutor because Geter was decided by another
circuit.
18
Decisions of the former Fifth Circuit rendered prior to
October 1, 1981, are binding on this court. Bonner v. City of
Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
31
Id. at 69-70 (citations omitted). See also Ross v. Hopper , 716
F.2d 1528, 1534 (11th Cir. 1983) (holding that any information
obtained by law enforcement officers in course of investigation
must be attributed to prosecutor for purposes of Brady violation);
United States v. Antone, 603 F.2d 566, 569-70 (5th Cir. 1979)
(imputing knowledge of state investigators to federal prosecutors
in determining whether there was Brady violation). Thus, pre-
existing law in this circuit clearly established that withholding
Brady material from the prosecutor, and thus preventing its
disclosure to the defense, violates an accused's due process
rights.19
Our conclusion that Tate, Ikner, and Benson's duties under
Brady were clearly established does not end the inquiry. It
remains to be determined whether a reasonable officer in Tate,
Ikner, and Benson's position would know, when they acted, that the
evidence withheld from the prosecutor was material, that is, that
19
Though we had made it clear that the police cause a Brady
violation by withholding material exculpatory or impeachment
evidence, we had never squarely held that it is the police who
violate Brady, as opposed to "the state," when the police fail to
turn exculpatory evidence over to the prosecutor. Several other
courts had held that the police violate Brady by failing to give
exculpatory or impeachment evidence to the prosecutor. See
Hilliard v. Williams, 516 F.2d at 1349-50; Carter v. Harrison, 612
F. Supp. 749, 757-58 (E.D.N.Y. 1985). See also Campbell v. State of
Maine, 632 F. Supp. 111, 121-22 (D. Me. 1985) (noting that police
officer in possession of exculpatory evidence has duty to turn it
over to prosecutor), aff'd, 787 F.2d 776 (1st Cir. 1986); Hauptmann
v. Wilentz, 570 F. Supp. 351, 389 (D.N.J. 1983) (noting that police
have duty to disclose exculpatory evidence to the prosecutor),
aff'd, 770 F.2d 1070 (3rd Cir. 1985), cert. denied, 474 U.S. 1103,
106 S. Ct. 887 (1986). Neither Tate, Ikner, nor Benson contend that
the absence of such a holding in this circuit rendered their duties
under Brady any less clearly established.
32
withholding the evidence would undermine confidence in the outcome
of McMillian'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. See Lassiter, 28 F.3d at 1149.
The standard of materiality at the time Tate, Ikner, and
Benson acted is the same standard applicable today. See Kyles v.
Whitley, 115 S. Ct. at 1565-66. Evidence is material and therefore
must be disclosed if there is a reasonable probability that, if the
evidence is suppressed, the result of the proceeding will be
different. Id. at 1565 (quoting United States v. Bagley, 473 U.S.
667, 682, 105 S. Ct. 3375, 3383 (1985)). A reasonable probability
of a different result is shown when the suppression of evidence
would undermine confidence in the outcome of the trial. Id. at
1566 (quoting Bagley, 473 U.S. at 678, 105 S. Ct. at 3381). In
evaluating materiality, suppressed evidence must be evaluated
collectively, not item-by-item. Id. at 1567.
The district court held that several pieces of withheld
evidence were clearly exculpatory.20 However, the district court
did not ask whether every reasonable official in the position of
Tate, Ikner, and Benson would understand that withholding those
particular pieces of evidence would undermine confidence in the
outcome of McMillian's trial. The court viewed the evidence with
the benefit of hindsight, knowing what evidence actually was
20
The district court's opinion uses "clearly exculpatory" to
refer to both exculpatory and impeachment evidence required to be
disclosed under Brady.
33
presented at trial, and agreed with the Alabama Court of Criminal
Appeals that the evidence withheld was material. But Tate, Ikner,
and Benson 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 so.21
E. Coercion of False Testimony
The district court found that McMillian had presented
sufficient evidence to raise a genuine issue of material fact as to
whether Tate, Ikner, and Benson coerced Myers into testifying
falsely against McMillian. The court reasoned that if Tate, Ikner,
and Myers indeed coerced Myers into perjuring himself, they knew
that Myers's testimony was false, and thus may be liable for
causing the state to use perjured testimony to convict McMillian.
The court rejected Tate, Ikner, and Benson's qualified immunity
defense because it concluded that clearly established law
prohibited state officials from knowingly using perjured testimony
to convict a defendant.
21
We are unable to determine from the complaint and record
exactly when it is that McMillian alleges that Tate, Ikner, and
Benson should have realized that the withheld evidence was
material. It is not clear whether McMillian's claim is that Tate,
Ikner, and Benson should have realized the evidence's materiality
when they acquired it, sometime later but before trial, at trial as
the evidence unfolded, or after trial. On remand, the district
court will have to determine McMillian's precise claim before
deciding whether a reasonable official would have known that the
suppressed evidence was material.
34
On appeal, Tate contends that his actions did not cause a
violation of clearly established law. We disagree. Clearly
established law prohibited a state from knowingly using perjured
testimony. See Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct.
1173, 1177 (1959); Pyle v. Kansas, 317 U.S. 213, 216, 63 S. Ct.
177, 178-79 (1942); Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct.
340, 342 (1935). Tate contends that the facts of these cases are
not materially similar to the facts here. Again, we disagree. The
material fact, in those cases and here, is that there is evidence
that the state knowingly used perjured testimony.22 If McMillian's
allegations are true, every reasonable official should have known
that coercing Myers to testify falsely would violate McMillian's
constitutional rights.
Tate, Ikner, and Benson contend that Myers's testimony was not
false and, even if it was, they could not have known that it was
false. However, the district court found that genuine issues of
fact exist as to whether Tate, Ikner, and Benson pressured Myers
into testifying falsely and as to whether he testified falsely. As
22
Tate contends that these cases established the standard for
"knowing use of perjured testimony" in criminal cases. He argues
that the standard for § 1983 liability for using perjured testimony
is different and, in any event, was not clearly established. We
disagree.
Napue, Pyles, and Mooney clearly established the law. To the
extent that Tate argues that we must look solely to § 1983 cases to
discover clearly established law, his argument is frivolous. Tate
is correct to the extent that he argues that an official will not
always be subject to § 1983 liability for violating constitutional
rights. But that is because he is protected by qualified immunity,
not because constitutional standards vary depending on whether a
constitutional violation is alleged in a criminal proceeding or a
§ 1983 action.
35
we have explained, we do not address challenges to such factual
rulings by the district court on this appeal. See section IV.B.
The district court also found that McMillian had presented
sufficient evidence to raise a genuine issue of fact as to whether
Tate threatened Karen Kelly. The district court described Kelly as
a potential defense witness because she initially implicated Myers,
but not McMillian, in the Morrison murder. The court found it
irrelevant that the defense never called nor intended to call Kelly
to testify. The court held that clearly established law prohibited
the state from interfering with defense witnesses.
Tate contends that McMillian has failed to state a claim for
a constitutional violation because McMillian has not alleged that
Kelly could have given any testimony favorable to McMillian. He
argues that there is no evidence in the record that Kelly initially
implicated only Myers in the Morrison murder. Tate contends that
the district court mistakenly read a statement by Kelly about the
Pittman murder to refer to the Morrison murder. McMillian does not
deny that the district court misread the account of Kelly's
statement. Instead, McMillian argues that the district court's
ruling is a fact-based ruling that we may not address on this
appeal under Johnson v. Jones.
In this instance only, we depart from our approach of not
reviewing the district court's determination of the facts for
purposes of summary judgment. The district court's determination
appears to be based entirely on a misreading of an account of a
statement by Kelly. In it, Kelly initially implicates only Myers
36
in the Pittman murder, but the district court read the account to
refer to the Morrison murder. McMillian does not contend that the
district court did not misread the account, and he points to no
other evidence that Kelly was a potential defense witness. Indeed,
McMillian's complaint does not even mention Kelly. Thus, because
Kelly was not a potential defense witness, Tate did not violate
McMillian's clearly established rights in allegedly threatening
Kelly. We hold that the district court erred in denying summary
judgment on the claim that Tate interfered with Kelly's potential
testimony.
F. Tate's Sovereign Immunity From State Law Claims
The district court found that McMillian had presented
sufficient evidence to create a genuine issue of material fact on
three state law claims against Tate, Ikner, and Benson: malicious
prosecution (Count Twenty); abuse of process (Count Twenty-One);
and outrage (Count Twenty-Six). In addition, the court found that
a genuine issue exists as to a state law outrage claim against Tate
and the DOC defendants (Count Twenty-Five). The court rejected
Tate's state law sovereign immunity and state law discretionary
immunity defenses, holding that neither form of state law immunity
shields officials sued for intentional or malicious wrongdoing in
their individual capacities.
On appeal,23 Tate contends that Alabama sheriffs are protected
23
We have jurisdiction over this appeal from the district
court's denial of state law immunity because the state law immunity
(continued...)
37
by sovereign immunity under § 14 of the Alabama Constitution, even
when they are sued in their individual capacities for malicious or
intentional wrongdoing.24 According to Tate, a suit may be
maintained against a sheriff only if it falls within one of five
limited categories.25 It is undisputed that McMillian's claims do
not fall within any of the five categories.
We do not read the cases that Tate cites to establish that he
is immune from suit for the acts alleged in this case. The Alabama
Supreme Court cases establishing categories of suits that may be
maintained against state officials warn that the categories do not
exhaust the types of suits against state officials that are
permissible under § 14 of the Alabama Constitution. Gill v.
23
(...continued)
asserted is an immunity against suit. See Griesel v. Hamlin, 963
F.2d 338, 340-41 (11th Cir. 1992).
24
We note that Tate does not contend that the district court
erred in denying him discretionary immunity under Alabama law. In
addition, we reject as meritless Tate's contention that the
Eleventh Amendment bars suit against him in his individual
capacity.
25
Quoting Parker v. Amerson , 519 So. 2d 442, 442-43 (Ala.
1987), Tate argues that a sheriff
is immune from suit under Article I, § 14,
Alabama Constitution of 1901, in the execution
of the duties of his office, except for
actions brought (1) to compel him to perform
his duties, (2) to compel him to perform
ministerial acts, (3) to enjoin him from
enforcing unconstitutional laws, (4) to enjoin
him from acting in bad faith, fraudulently,
beyond his authority, or under mistaken
interpretation of the law, or (5) to seek
construction of a statute under the
Declaratory Judgment Act if he is a necessary
party for the construction of the statute.
38
Sewell, 356 So. 2d 1196, 1198 (Ala. 1978) ("This list was never
intended to be a comprehensive final list of those actions not
barred by Section 14."); Aland v. Graham, 250 So. 2d 677, 679 (Ala.
1971) ("Without professing to cover every situation that has
arisen, there are four general categories of actions that we have
held do not come within the prohibition of Sec. 14."). More
importantly, the cases on which Tate relies recognize that
sovereign immunity applies only when a suit against a state
official "is, in effect, one against the State." Karrick v.
Johnson, 659 So. 2d 77, 79 (Ala. 1995); Alexander v. Hatfield, 652
So. 2d 1142, 1143 (Ala. 1994).
McMillian's claims are against Tate in his individual
capacity. While § 14 "cannot be circumvented by suing the official
or agent individually," Milton v. Espey, 356 So. 2d 1201, 1202 (Ala.
1978), § 14 does not necessarily immunize state officers from
individual civil liability. Id. at 1203; Gill, 356 So. 2d at 1198.
"[A] state official may not escape individual liability for his
tort by arguing that his mere status as a state official cloaks him
with the state's constitutional immunity." Barnes v. Dale, 530
So. 2d 770, 781 (Ala. 1988) (quotation marks and citation omitted).
To determine whether McMillian's suit is, in effect, against the
state and thus barred, we must consider the nature of the suit and
the relief demanded. Phillips, 555 So. 2d at 81; Gill, 356 So. 2d at
1198; Aland, 250 So. 2d at 679.26
26
Tate suggests that a suit against a sheriff always is a suit
against the state. One of the cases on which Tate relies has
(continued...)
39
As the district court emphasized, McMillian's suit alleges
intentional, malicious wrongdoing. The Alabama Supreme Court has
held on several occasions that the defense of sovereign immunity
does not bar suits against state officers for torts committed
willfully, maliciously, and outside the scope of their authority.
Lumpkin v. Cofield, 536 So. 2d 62, 65 (Ala. 1988) (citing Barnes v.
Dale, 530 So. 2d 770 (Ala. 1988); DeStafney v. University of
Alabama, 413 So. 2d 391 (Ala. 1981); Milton, 356 So. 2d 1201 (Ala.
1978); Unzicker v. State, 346 So. 2d 931 (Ala. 1977)). According to
the Alabama Supreme Court, "Clearly, a state officer or employee is
not protected by § 14 when he acts willfully, maliciously,
illegally, fraudulently, in bad faith, beyond his authority, or
under a mistaken interpretation of the law." Phillips, 555 So. 2d
at 83 (citations omitted). We think that the same rule applies to
a suit against a sheriff so long as it is not, in effect, a suit
26
(...continued)
language supporting that proposition. See Amerson, 519 So. 2d at
446 ("This Court has specifically held that a suit against a
sheriff is 'essentially a suit against the state' and thus 'not
maintainable.'") (citing Montiel v. Holcombe, 199 So. 245 (1940)).
We do not read Amerson to establish such an absolute proposition
because Amerson's citation to Montiel suggests a much more limited
reading. Montiel simply held that a suit against a sheriff to
enjoin a criminal prosecution was essentially a suit against the
state. Montiel, 199 So. at 245.
Tate also relies on our decision in Carr v. City of Florence,
Ala., 916 F.2d 1521, 1523 (11th Cir. 1990). Carr, however,
addressed an Alabama sheriff's immunity from suit in his official
capacity under the Eleventh Amendment. It is true that we drew on
state law regarding a sheriff's immunity from suit under the
Alabama Constitution. But our analysis in Carr, and the analysis
in the cases that we cited, focused on suits against sheriffs in
their official capacities. Here, in contrast, the suit is against
Tate in his individual capacity.
40
against the state, notwithstanding that none of these cases
involved sheriffs.
Tate cites a number of cases affording sheriffs sovereign
immunity, but only two even arguably may be read to afford immunity
to a sheriff for willful or malicious wrongdoing. Karrick, 659
So. 2d 77, involved a malicious prosecution claim,27 and Alexander,
652 So. 2d 1142, involved a negligent and/or bad faith service of
process claim. Karrick relied on Alexander for the proposition
that a sheriff enjoys sovereign immunity when sued in his official
capacity or when the suit is in effect against the state. In
Alexander, the court noted that a sheriff is immune when sued in
his individual capacity if the suit is in effect against the state.
But the court did not analyze whether the negligent and/or bad
faith service of process claim was in effect a claim against the
state. 652 So. 2d at 1143.
We do not read Karrick or Alexander as holding that claims
against sheriffs for willful and malicious conduct always are
claims against the state barred by sovereign immunity. The issue
was not even addressed in either case. Though claims of malicious
prosecution and bad faith service of process would suggest willful
and malicious conduct, an examination of the allegations in Karrick
and Alexander reveals no such conduct.28 And in neither case did
27
Karrick also involved a false imprisonment claim, but that
claim was dismissed because the arrest was made pursuant to a
lawfully issued warrant. 659 So. 2d at 79.
28
The deputy sheriff in Karrick arrested the plaintiffs for
altering a prescription. The deputy acted pursuant to a lawful
(continued...)
41
the plaintiff argue that sovereign immunity was inapplicable
because the defendant engaged in willful or malicious wrongdoing.
We do not think that the Alabama Supreme Court would sub silentio
excuse sheriffs from its oft-repeated rule that sovereign immunity
does not protect an official from liability for willful or
malicious wrongdoing. We hold, therefore, that state law sovereign
immunity does not bar McMillian's claims against Tate.
V. CONCLUSION
We vacate the district court's order denying summary judgment
on the claim that Tate, Ikner, and Benson violated clearly
established law in withholding exculpatory and impeachment evidence
from the prosecutor and remand for the district court to determine
whether a reasonable official in Tate, Ikner, and Benson's position
would have known that the withheld evidence was material. We
reverse the district court's order denying summary judgment on the
claim that Tate violated McMillian's clearly established rights in
threatening Kelly. In all other respects, we affirm the district
court.
AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART AND
REMANDED.
28
(...continued)
arrest warrant and after a drug store had notified him that the
prescription was altered. 659 So. 2d at 78-79. The deputy sheriff
in Alexander attempted to serve process on the plaintiff by leaving
papers with the personnel manager at plaintiff's workplace, as was
the deputy's fourteen-year-old practice when serving process at
that particular plant. The plaintiff denied receiving the papers.
652 So. 2d at 1143.
42