                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0628n.06

                                        Case No. 18-5129

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Dec 19, 2018
WILLIAM R. VIRGIL,                                   )                 DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )      ON APPEAL FROM THE UNITED
                                                     )      STATES DISTRICT COURT FOR
v.                                                   )      THE EASTERN DISTRICT OF
                                                     )      KENTUCKY
CITY OF NEWPORT, et al,                              )
                                                     )
       Defendants-Appellants.                        )




       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,
Case No. 18-5129, Virgil v. City of Newport


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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Case No. 18-5129, Virgil v. City of Newport


       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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Case No. 18-5129, Virgil v. City of Newport


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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