               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MARY TATUM,                              No. 10-55692
                 Plaintiff-Appellee,
                                            D.C. No.
STEVEN MOODY, LAPD Detective;            2:08-cv-04707-
ROBERT PULIDO, LAPD Detective,                PJW
           Defendants-Appellants.



MARY TATUM,                              No. 10-55970
                 Plaintiff-Appellee,
                                            D.C. No.
                v.                       2:08-cv-04707-
                                              PJW
STEVEN MOODY, LAPD Detective;
ROBERT PULIDO, LAPD Detective,
           Defendants-Appellants.          OPINION


     Appeal from the United States District Court
          for the Central District of California
     Patrick J. Walsh, Magistrate Judge, Presiding

              Argued and Submitted
        March 9, 2012—Pasadena, California

              Filed September 17, 2014
2                        TATUM V. MOODY

        Before: Kim McLane Wardlaw and Marsha S. Berzon,
        Circuit Judges, and Ronald M. Whyte, Senior District
                              Judge.*

                     Opinion by Judge Berzon


                           SUMMARY**


                            Civil Rights

    The panel affirmed the district court’s judgment, entered
following a jury verdict in favor of plaintiff, in an action
brought pursuant to 42 U.S.C. § 1983 alleging that Los
Angeles Police Department detectives failed to disclose
compelling exculpatory evidence to the prosecutor while
plaintiff was incarcerated pretrial, and did so with deliberate
indifference to, or reckless regard for, the truth or plaintiff’s
rights.

    Plaintiff was incarcerated for 27 months pending trial on
charges arising from a series of demand-note robberies. The
charges were dismissed after plaintiff’s defense counsel
obtained exculpatory material which defendants failed to
disclose. The panel held that plaintiff’s claim was covered by
the Fourteenth Amendment’s guarantee of due process, and


    *
   The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by
designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       TATUM V. MOODY                            3

not by the Fourth Amendment. The panel held that the
Constitution protects a plaintiff from prolonged detention
when the police, with deliberate indifference to or in the face
of a perceived risk that their actions will violate the plaintiff’s
right to be free of unjustified pretrial detention, withhold
from the prosecutors information strongly indicative of his
innocence. The panel held that the jury’s determination that
defendants acted with deliberate indifference or reckless
disregard for plaintiff’s rights satisfied the standard
applicable to violations of due process and that the jury
instructions described a cognizable constitutional claim.
Because the panel affirmed the district court’s judgment, it
likewise affirmed the award of fees to plaintiff, as the
prevailing party.


                          COUNSEL

Amy Jo Field (argued), Deputy City Attorney; Carmen A.
Trutanich, City Attorney, Los Angeles, California, for
Defendants-Appellants.

John Burton (argued), Law Offices of John Burton, Pasadena,
California; Maria Cavalluzzi, Cavalluzzi & Cavalluzzi, West
Hollywood, California, for Plaintiff-Appellee.
4                     TATUM V. MOODY

                          OPINION

BERZON, Circuit Judge:

    A jury found Los Angeles Police Department (“LAPD”)
detectives Steven Moody and Robert Pulido liable under
42 U.S.C. § 1983 for violating Michael Walker’s
constitutional rights by (1) acting with deliberate indifference
to, or reckless disregard for, Walker’s rights or for the truth,
in (2) withholding or concealing evidence that (3) strongly
indicated Walker’s innocence of the crimes for which he was
held, and was reasonably likely to have resulted in dismissal
of the charges against him if revealed. Indeed, dismissal of
the charges is exactly what happened when Walker’s defense
counsel finally obtained the exculpatory material, after
Walker had endured pretrial incarceration for over two years.

    Walker, now deceased, was incarcerated pending trial on
charges arising from a series of demand-note robberies of
small retail businesses in Los Angeles. Detectives Moody
and Pulido were responsible for investigating the crimes.
They knew, before Walker was bound over for trial, that
additional demand-note robberies, perpetrated with the same
distinctive modus operandi as those for which Walker was
being held, had occurred in the same part of Los Angeles
after Walker was in police custody. Pulido also knew that
another man, Stanley Smith, had confessed to some of those
later crimes after Walker’s arrest. The spate of demand-note
robberies in fact ended only upon Smith’s apprehension.

    Moody and Pulido never disclosed any of this
information—not the continuing crime spree, not the
similarities of those continuing crimes to the crime for which
Walker was being detained, not Smith’s arrest, and not
                      TATUM V. MOODY                          5

Smith’s confession—to the prosecutor pursuing the case
against Walker. Instead, the two officers falsely asserted in
police reports written by Moody and approved by Pulido that
the “crime spree caused by the ‘Demand Note Robber’”
ceased with Walker’s arrest. When, twenty-seven months of
pretrial detention and repeated discovery requests later,
Walker’s defense attorneys finally learned of Smith’s arrest
and conviction, Smith’s fingerprints were matched to those
found at the scene of one of the robberies attributed to
Walker. As soon as the prosecutor was made aware of this
evidence, he dropped the charges against Walker. A
California court thereafter declared him factually innocent,
but only after he had been deprived of his liberty for over two
years.

    In this 42 U.S.C. § 1983 action, the jury found that
Moody and Pulido failed to disclose this compelling
exculpatory evidence to the prosecutor, and did so with
deliberate indifference to, or reckless regard for, the truth or
for Walker’s rights. We affirm.

                               I.

A. The Southwest Division investigation

    Between June 27 and August 15, 2005, the Southwest
Division of the Los Angeles Police Department (“LAPD”)
received reports of thirteen “demand-note” robberies. In each
robbery, the perpetrator entered a small business and
presented a handwritten note demanding money from the
cashier.

   During this period, Pulido supervised the “robbery table”
at the Southwest Division.        Pulido, Moody’s direct
6                    TATUM V. MOODY

supervisor, assigned him to investigate the thirteen demand-
note robberies that had been reported at that time.

    By the time the sixth demand-note robbery was reported,
Moody and Pulido began to suspect that the robberies were
being committed by a single individual. Until the recent
spree, demand-note robberies had been rare in the area. Each
of these recent robberies, however, followed the same script:
the robber, who appeared to be working alone, would enter a
business posing as a customer; present a note to the cashier
demanding money, sometimes threatening violence or
displaying what looked like a firearm; take cash; and then flee
on foot. Although the precise language of the demand notes
varied from one robbery to the next, the messages were
similar. The suspect in each of the robberies also shared a
general physical description: “male black, black hair, brown
eyes, 5’6” to 5’7”, 160 to 180 pounds, age varying from 25 to
45.”

    On August 13, the twelfth demand-note robbery in the
Southwest Division occurred at an EB Games store. The
thirteenth occurred two days later at a nearby Blockbuster.
On August 16, Walker went to EB Games and was arrested
after employees identified him as the perpetrator of the
robbery three days before. Police took Walker to the
Southwest station, where they determined that he did not have
a demand note on him. After agreeing to speak to Moody and
waiving his Miranda rights, Walker maintained that he did
not have any involvement in the EB Games robbery and
consented to a search of the apartment where he stored his
personal property. Moody conducted the search but found no
evidence of the crime or any other robbery.
                         TATUM V. MOODY                                 7

    Nonetheless, Moody and Pulido concluded almost
immediately that Walker had committed all thirteen demand-
note robberies that had then been reported to the Southwest
Division. Just two days later, however, events transpired that
should have led them to reconsider that theory: someone
attempted to rob the Golden Bird, a restaurant in the
Southwest Division, with a demand note. The description of
the perpetrator of this crime matched that of the suspect who
had committed the previous thirteen robberies, and the modus
operandi was the same.

    When Pulido learned of the attempted robbery at the
Golden Bird, he assigned the case to Moody for investigation.
Moody was “surprised” to hear about this incident; the first
thing that came to his mind when he read the report of the
incident was that the Golden Bird robber might be the same
suspect that had committed the previous robberies. Moody
discussed this theory with Pulido, who also expressed
surprise that another, similar robbery had occurred in the
same area, even though they had a suspect in custody.

    That same day, yet another demand-note robbery occurred
at a different location in the Southwest Division, a Burger
King restaurant. Pulido assigned investigative responsibility
for that robbery to an officer other than Moody; that officer
issued a crime alert. As Pulido later testified, Moody “should
have” seen the crime alert in the normal course of business.1

  1
    While under oath during a discovery hearing on October 22, 2007,
Moody stated that he had learned of the Burger King robbery on the same
day that he learned about the attempted robbery at the Golden Bird. He
also stated that he was responsible for investigating the Burger King
robbery. At trial, however, Moody testified that he did not know about the
Burger King robbery in its immediate aftermath. When confronted with
the discrepancy between that statement and his testimony at the discovery
8                       TATUM V. MOODY

Pulido also testified at trial that, within days of Walker’s
arrest, he was aware of “the Burger King robber and the
Golden Bird robber, who had the same general descriptions
and the same MO [as the person] . . . committing demand-
note robberies.”

B. The Robbery Homicide Division investigation

    During this same period, detectives Freddy Arroyo and
Brett Richards were investigating a series of demand-note
robberies, beginning with one that occurred on June 30, 2005.
Arroyo and Richards were assigned to the Robbery Homicide
Division (“RHD”) of the LAPD, a specialized unit whose
investigative responsibility covered the entire city. The RHD
demand-note robberies shared a similar suspect description
with those being investigated by the Southwest Division. The
suspect was generally described as a “[m]ale black, 35 to 40
years old, . . . thin to medium build.” The modus operandi for
these robberies was also similar to those in the Southwest
Division: the suspect would present a demand note to the
cashier and sometimes simulate a handgun and threaten to
shoot the victim.

    Arroyo was assigned to the South Bureau of the RHD,
which includes the Southwest Division. While investigating
the demand-note robberies in the South Bureau, Arroyo
generally spoke to Pulido at least once a week. Pulido knew
about the RHD’s investigation of demand-note robberies by
the end of August. And during the end of August and
beginning of September, Arroyo and Pulido spoke “almost on


hearing, Moody acknowledged that he had formerly testified under oath
to knowledge of the Burger King robbery, but that he had “testified in
error.”
                     TATUM V. MOODY                          9

a daily basis.” Nevertheless, Arroyo testified at trial, he had
no recollection of Pulido telling him that the Southwest
Division had investigated a similar series of demand-note
robberies that culminated in an arrest. Nor did Pulido notify
the RHD about the attempted robbery of the Golden Bird
when it occurred. He did, however, inform Arroyo about the
Burger King robbery, which was then transferred to Arroyo
for investigation.

    On September 15, Stanley Smith was arrested while
fleeing from a Blockbuster he had just robbed using a demand
note. At trial, Arroyo did not recall whether Smith had
specifically admitted involvement in any of the demand-note
robberies in the Southwest Division that occurred before
Walker’s arrest. Nor does the record reveal whether Smith
was ever asked about his potential involvement in those
thirteen robberies. But Smith did confess to committing
roughly two robberies per week, and specifically identified
five of these robberies, including the Burger King robbery in
the Southwest Division that occurred just days after Walker’s
arrest.

    The spree of demand-note robberies in the Southwest
Division ended with Smith’s arrest. Based on Smith’s modus
operandi, Arroyo suspected that Smith was responsible for all
the recent demand-note robberies. Smith was ultimately
convicted of several of the robberies attributed to him.

    Arroyo notified Pulido of Smith’s arrest almost
immediately. Although the RHD circulated a bulletin to all
LAPD divisions regarding Smith’s arrest, Moody testified
that he did not see it.
10                   TATUM V. MOODY

C. The criminal case against Walker

    Neither Moody nor Pulido ever informed the prosecutors
responsible for Walker’s case about the August 19, 2005
Golden Bird and Burger King robberies. Instead, between
August 18 and September 8, Moody conducted a number of
photographic line-ups, in which four eyewitnesses identified
Walker as the perpetrator of several of the demand-note
robberies. Two of these identifications were less than certain:
one witness identified Walker “because of the complexion”
and qualified her answer by indicating, “[It] looks the most
like him, but I’m not saying it’s him, but looks like him.”
Another witness tagged Walker as the robber but noted a
discrepancy between his photograph and her memory of the
suspect: “The one that I think looks more [like the
perpetrator] is [Walker]. The guy is the same . . . but he is
shaven.”

    In late September—at which time Pulido both knew that
demand-note robberies had continued in the area after
Walker’s arrest and also that RHD had arrested Smith for
these later crimes—Moody drafted a report concerning his
investigation of the EB Games robbery. Prosecutors
routinely relied on such reports to make their charging
decisions. That report, which Pulido approved, that Walker
was under investigation for thirteen demand-note robberies in
the Southwest Division. Moreover, the report stated the
following in bold font: “Since the arrest of Walker the
crime spree caused by the ‘Demand Note Robber’ has
ceased.”

   On October 25, at the prosecutor’s request, Moody
conducted a live line-up. Two of the four witnesses who had
                      TATUM V. MOODY                          11

identified Walker in the photographic line-up tagged him as
the demand-note robber. The other two did not.

    Moody prepared another follow-up report on November
11. That report repeated—verbatim, and again in bold
type—the assertion that the demand-note robberies had
ceased since Walker’s arrest. Pulido approved this report as
well.

     Walker had his first preliminary hearing, for charges
relating to the EB Games robbery, on October 7, well after
Smith’s arrest. Moody testified at this hearing, along with
one eyewitness to the EB Games robbery. By the time of the
first hearing, Moody and Pulido knew that demand-note
robberies had continued in the days following Walker’s
arrest, and at least Pulido knew that Smith had been arrested.
Nevertheless, neither officer informed the prosecutor of this
exculpatory information. Bail was initially set at $50,000, but
was raised to $1,100,000 when additional robbery charges
were added to the felony complaint. Walker had a second
preliminary hearing in September 2006, at which he was held
to answer for charges relating to several of the other demand-
note robberies.

    California Penal Code § 1054.1(e) requires pretrial
disclosure of exculpatory evidence. The Code also provides
that “[b]efore a party may seek court enforcement of any of
the disclosures required . . . , the party shall make an informal
request of opposing counsel for the desired materials and
information.” Id. § 1054.5(b). If opposing counsel fails to
provide the requested information within fifteen days, then
the party may seek a court order. Id. Upon a showing that
opposing counsel has not complied with § 1054.1(e), the
12                   TATUM V. MOODY

court may make any order necessary to enforce the disclosure
requirement. Id.

    Relying upon the assertions in Moody’s reports that the
demand-note robberies had ceased upon Walker’s arrest,
Walker’s defense attorneys, Alla Eksler and Meredith
Rudhman, initially did not make informal discovery requests
regarding whether the demand-note robberies had in fact
continued after that time. Sometime after the first hearing,
however, Walker’s defense attorney learned that Walker’s
fingerprints did not match the fingerprints obtained from the
scene of the EB Games robbery. As their investigation
increasingly suggested Walker’s innocence, his lawyers made
the required informal discovery requests, asking the
prosecutor to double-check the accuracy of Moody’s
statements. Walker’s attorneys did not receive anything
through informal discovery. Instead, the government
responded, eventually, by objecting to the request as too
burdensome, although the record does not reflect exactly
when it did so.

    Rudhman then filed a formal discovery request on
February 8, 2007. Again, the prosecution opposed this
request as too burdensome, but the court eventually granted
the request and ordered the production of reports of similar
robberies in the area after Walker’s arrest. Sometime in late
May or early June, Walker’s attorneys finally received reports
of the Golden Bird and Burger King robberies. Eksler
obtained a second formal discovery order on September 5.
On October 4, she received “a number of reports of note
robberies, a few before Mr. Walker’s arrest and many after
his arrest that were the same type of modus operandi or the
same type of robberies.” Strikingly, the demand note from
one of the robberies with which Walker was charged shared
                     TATUM V. MOODY                        13

the same misspelling as the demand note from one of these
robberies: The notes both urged the recipient to hurry and
hand over money, so that the robber would not “strat [sic]
shooting.”

    After requesting additional police records, Eksler learned
of Smith’s arrest. She then arranged for a comparison of
Smith’s fingerprints with those recovered from the scene of
the EB Games robbery. The fingerprints matched. Eksler
notified the prosecutor of this match on November 26, and
Walker’s case was dismissed the same day. At that point,
Walker had been in jail for 27 months. Afterward, Eksler
filed a motion for a finding of factual innocence, which the
court granted.

D. Walker’s § 1983 suit

  Walker subsequently brought this § 1983 suit against
Moody and Pulido, raising two claims.

    Walker first argued that Moody and Pulido had deprived
him of liberty without due process of law by failing to
disclose material exculpatory evidence. At trial, the district
court gave the jury the following instructions:

             JURY INSTRUCTION NO. 21

           The Fourteenth Amendment to the United
       States Constitution provides that no public
       official shall deprive any person of liberty
       without due process of law.

          When someone has been arrested and
       charged with a crime, the due process clause
14                    TATUM V. MOODY

        of the Fourteenth Amendment requires public
        officials, such as police officers and
        detectives, to disclose all the information and
        evidence in their possession which may tend
        to show that the accused person did not
        commit the crime. In other words, the
        Constitution compels police officers and
        detectives to disclose exculpatory information
        along with any evidence which tends to show
        the accused’s guilt.          Withholding or
        concealing exculpatory information violates
        the accused’s right not to be deprived of
        liberty without due process of law.

            In order for evidence to be “exculpatory,”
        it must be:

            (a) favorable to the accused; and

            (b) material to his guilt or innocence.

            Evidence is “material” if there is a
        reasonabl[e] probability that it would have
        caused a different result in the case.

     The court also read the jury a related instruction:

               JURY INSTRUCTION NO. 22

            In order to prevail on his claim that
        defendants Steven Moody and Robert Pulido,
        or either of them, concealed or failed to turn
        over exculpatory evidence, the plaintiff must
        prove that:
                     TATUM V. MOODY                        15

           (1) defendants Steven Moody and Robert
           Pulido, or either of them, concealed or
           failed to turn over exculpatory evidence;
           and

           (2) defendants Steven Moody and Robert
           Pulido, or either of them, acted with
           deliberate indifference to or reckless
           disregard for the plaintiff’s rights or for
           the truth in withholding evidence from
           prosecutors.

           To act with “deliberate indifference”
       means to make a conscious choice to
       disregard the consequences of one’s acts or
       omissions.

           Conduct is in reckless disregard of the
       plaintiff’s rights if, under the circumstances,
       it reflects complete indifference to the
       plaintiff’s rights, or the defendant acts in the
       face of a perceived risk that his actions will
       violate the plaintiff’s rights under federal law.

The jury returned a verdict for Walker on this claim,
answering affirmatively when asked whether Moody and
Pulido “violated plaintiff Michael Walker’s constitutional
rights by withholding or concealing evidence that tended to
show that plaintiff was innocent of the criminal charges
against him.” The jury awarded compensatory damages of
$106,000.00.
16                          TATUM V. MOODY

    Walker also claimed that Moody and Pulido had
maliciously prosecuted him without probable cause and for
the purpose of violating his constitutional rights.2 The jury




 2
     As to this claim, the district court instructed the jury as follows:

                      JURY INSTRUCTION NO. 23

               In order to prevail on his malicious prosecution
           claim under § 1983, the plaintiff must prove that:

               (1) the defendants Steven Moody or Robert Pulido,
               or either of them, caused Plaintiff to be prosecuted;

               (2) they did so with malice and without probable
               cause;

               (3) they did so for the purpose of violating the
               plaintiff’s constitutional rights; and

               (4) the criminal proceeding terminated in the
               plaintiff’s favor.

                “Probable cause” exists when, under all of the
           circumstances known to the officers at the time, an
           objectively reasonable police officer would conclude
           there is a fair probability that the plaintiff has
           committed or was committing a crime.

                If the plaintiff was held to answer following a
           preliminary hearing in the underlying criminal action,
           you are to presume that there was probable cause to
           arrest the plaintiff, unless plaintiff proves by a
           preponderance of the evidence that the prosecution of
           the plaintiff was induced by fraud, corruption, perjury,
           fabricated evidence, or other wrongful conduct taken in
           bad faith.
                       TATUM V. MOODY                              17

returned a verdict against Walker on the malicious
prosecution claim, which Walker did not appeal.

    Moody and Pulido then moved for judgment as a matter
of law, under Federal Rule of Civil Procedure 50(b). The
court denied the motion, and awarded Walker costs and
attorney’s fees. Moody and Pulido now appeal both the
denial of judgment as a matter of law and the award of
attorney’s fees.

    We review de novo the denial of a renewed motion for
judgment as a matter of law, “view[ing] the evidence in the
light most favorable to the nonmoving party . . . and
draw[ing] all reasonable inferences in his favor.” Barnard v.
Theobald, 721 F.3d 1069, 1075 (9th Cir. 2013).

                                 II.

    “Section 1983 creates a private right of action against
individuals who, acting under color of state law, violate
federal constitutional or statutory rights. Section 1983 is not
itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere conferred.”
Hall v. City of L.A., 697 F.3d 1059, 1068 (9th Cir. 2012)
(internal quotation marks and citations omitted). Moody and
Pulido challenge the judgment against them on the ground
that the Constitution does not confer on Walker the right that
the jury found them to have violated. We hold that the
Constitution does protect Walker from prolonged detention
when the police, with deliberate indifference to, or in the face
of a perceived risk that, their actions will violate the


       “Malice” means to act with ill will, or spite, or for the
       purpose of causing a constitutional injury to another.
18                       TATUM V. MOODY

plaintiff’s right to be free of unjustified pretrial detention,
withhold from the prosecutors information strongly indicative
of his innocence, and so affirm.

  1. Moody and Pulido first assert that “the Fourth
Amendment, not the Due Process Clause of the Fourteenth
Amendment[,] governs a pretrial loss of liberty.” Not so.

    Rivera v. County of Los Angeles squarely rejected that
proposition earlier this year. 745 F.3d 384 (9th Cir. 2014).
As Rivera explained, “[p]recedent demonstrates . . . that post-
arrest incarceration is analyzed under the Fourteenth
Amendment alone.” Id. 389–90 (citing Baker v. McCollan,
443 U.S. 137, 145 (1979); Lee v. City of L.A., 250 F.3d 668,
683–85 (9th Cir. 2001)).3 On that ground, Rivera rejected a
claim, brought under § 1983, that the plaintiff’s post-arrest
incarceration on the basis of a warrant naming another man,
after jailors should have known of the error, violated the
Fourth Amendment. Id. Rivera forecloses Moody and
Pulido’s Fourth Amendment-based argument here.



 3
   A plurality of Supreme Court justices suggested otherwise in Albright
v. Oliver, 510 U.S. 266 (1994). The plurality reasoned that “[t]he Framers
considered the matter of pretrial deprivations of liberty and drafted the
Fourth Amendment to address it,” rather than the Fourteenth. Id. at 274
(emphasis added); see also Gerstein v. Pugh, 420 U.S. 103, 125 n.27
(1975). Rivera issued long after Albright and Gerstein and is binding on
us. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en
banc).

     Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) is
not inconsistent with Rivera. Galbraith concerned only the initial decision
to arrest and prosecute, while Rivera and this case concern post-arrest
incarceration. See Galbraith, 307 F.3d at 1122–23. It is Rivera’s analysis
that controls here.
                         TATUM V. MOODY                               19

    Walker’s claim can be characterized as one, like Rivera,
of mistaken identity: Moody and Pulido took him for the
robber, who was actually Stanley Smith. On a similar basis,
the Second Circuit characterized a lawsuit, like this one,
seeking compensation for an extended pre-trial detention
“stemming directly from . . . law enforcement officials’
refusal to investigate available exculpatory evidence” or to
disclose it to the prosecutors, as “a case of mistaken identity.”
Russo v. City of Bridgeport, 479 F.3d 196, 208, 199 (2d Cir.
2007).

    Even if one rejects the precise analogy, Rivera made clear
that “there is no principled distinction between claims of
mistaken identity and other claims of innocence.” 745 F.3d
at 391 n.4 (citing Baker, 443 U.S. at 145–46). “When . . . a
person asserts that he is a victim of mistaken identities, he in
effect is pressing a claim of innocence in fact—a claim not
analytically distinct from any other factual defense (say, an
alibi defense or a defense premised on a lack of specific
intent) tendered by a person whom the police arrest in
pursuance of a warrant issued by a judge or magistrate.”
Brady v. Dill, 187 F.3d 104, 112 (1st Cir. 1999).

    As there is no “principled distinction between” Walker’s
case and the case of mistaken identity considered in Rivera,
745 F.3d at 391 n.4, we conclude that his claim is covered by
the Fourteenth Amendment’s guarantee of due process, and
not by the Fourth Amendment.4



 4
   Contrary to our conclusion in Rivera, the Second Circuit has held that
certain constitutional protections against post-arrest detention are
grounded in the Fourth Amendment, not the Fourteenth. See Russo,
479 F.3d at 209. Russo considered the seven-month detention of a suspect
20                       TATUM V. MOODY

    2. The jury found that Moody and Pulido withheld or
concealed exculpatory evidence from the prosecutors with
deliberate indifference to or reckless disregard for Walker’s
rights or for the truth. Moody and Pulido argue that the
Fourteenth Amendment offers no protection from such
misconduct unless the plaintiff’s right to a fair trial is
compromised. Describing Walker’s claim as one based on
the right to disclosure of certain exculpatory evidence first
recognized in Brady v. Maryland, 373 U.S. 83 (1963), they
assert that the right is not implicated where, as here, a
defendant never goes to trial, let alone suffers a wrongful
conviction.5



in the face of strongly exculpatory evidence that investigating officers
failed to pursue or to disclose to prosecutors. See id. at 206.

     Although Russo traced the constitutional right against such
misconduct to the Fourth Amendment, its analysis was little different from
the approach we take to asserted deprivations of due process. That case
evaluated whether the defendants’ conduct “‘shock[ed] the conscience,’”
id. at 210 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998))—a standard originally developed to measure “the cognizable level
of executive abuse of power” necessary to sustain an action vindicating
the right to due process, Lewis, 523 U.S. at 846, and which we typically
employ in that context, see, e.g., Gantt v. City of L.A., 717 F.3d 702, 707
(9th Cir. 2013). And Russo’s analysis of the prolonged detention claim
abjured any reference to probable cause, which Moody and Pulido
characterize as the “touchstone” of the Fourth Amendment. In any event,
several other circuits analyze claims of the sort considered in Russo as
violations of due process, not the Fourth Amendment. See infra Part II.2.
  5
   Smith v. Almada, 640 F.3d 931 (9th Cir. 2011), reserved the related
question of whether a defendant acquitted at trial can claim under
42 U.S.C. § 1983 a violation of his Brady rights. See id. at 941 (Gwin, J.,
specially concurring); id. at 940 (Gould, J., concurring). We do not
answer that question today.
                      TATUM V. MOODY                         21

    The premise of Moody and Pulido’s argument is
incorrect. To resolve this appeal, we need not decide the
scope of the protections established by Brady and its progeny,
because Walker’s claim sounds in the right first alluded to in
Baker, 443 U.S. 137, not Brady. Where, as here,
investigating officers, acting with deliberate indifference or
reckless disregard for a suspect’s right to freedom from
unjustified loss of liberty, fail to disclose potentially
dispositive exculpatory evidence to the prosecutors, leading
to the lengthy detention of an innocent man, they violate the
due process guarantees of the Fourteenth Amendment.

   Baker assumed, without deciding, that,

       depending on what procedures the State
       affords defendants following arrest and prior
       to actual trial, mere detention pursuant to a
       valid warrant but in the face of repeated
       protests of innocence will after the lapse of a
       certain amount of time deprive the accused of
       “liberty . . . without due process of law.”

443 U.S. at 145 (quoting U.S. Const. amend. XIV, § 2)
(omission in original). In Lee v. City of Los Angeles, we
answered the question Baker had reserved, explaining that
“‘continued detention after it was or should have been known
that the detainee was entitled to release’” can violate the
Fourteenth Amendment. 250 F.3d 668, 683 (9th Cir. 2001)
(quoting Cannon v. Macon Cnty., 1 F.3d 1558, 1563 (11th
Cir. 1993)). Usually, claims of such a violation fall into “at
least one of two categories: (1) the circumstances indicated to
the defendants that further investigation was warranted, or
(2) the defendants denied the plaintiff access to the courts for
an extended period of time.” Rivera, 745 F.3d at 390–91.
22                    TATUM V. MOODY

    Walker asserts a variant of the first of those two
categories. Moody and Pulido’s silence in the face of
compelling exculpatory evidence breached their duty of
disclosure to authorities competent to act on the information.
Although Moody and Pulido’s failure to disclose is one step
removed from a failure to investigate, that difference is not
pertinent where, as here, the suppressed exculpatory evidence
was potentially dispositive—and, indeed, proved dispositive.

    Under § 1983, “a [person is] responsible for the natural
consequences of his actions.” Monroe v. Pape, 365 U.S. 167,
187 (1961), overruled in part on other grounds by Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978). Thus, a § 1983
defendant is liable for “setting in motion a series of acts by
others which the actor knows or reasonably should know
would cause others to inflict the constitutional injury.”
Crowe v. Cnty. of San Diego, 608 F.3d 406, 430 (9th Cir.
2010) (internal quotation marks omitted). Here, “the natural
consequence[]” of Moody and Pulido’s conduct was that
Walker remained in detention until the exculpatory
information was disclosed to the prosecutors and then to
Walker’s lawyers. Moody and Pulido enhanced the
likelihood of that outcome because they not only failed
accurately to disclose the continuation of the crime spree after
Walker’s arrest, they affirmatively misrepresented the truth
as to that fact in reports on which the prosecutors and defense
counsel relied, writing that the robberies ended with Walker’s
removal from the streets; they also failed to report Smith’s
arrest for the later robberies.

   In this sense, Moody and Pulido “concealed from the
prosecutors, and misrepresented to them, facts highly material
to—that is, facts likely to influence—the decision whether to
prosecute [Walker] and whether (that decision having been
                         TATUM V. MOODY                                23

made) to continue prosecuting him.” Jones v. City of
Chicago, 856 F.2d 985, 993 (7th Cir. 1988). Indeed, once the
prosecutors were alerted that the spree of demand-note
robberies had in fact continued after Walker’s detention and
the connection to the parallel investigation of Stanley Smith
was made, minimal additional investigation of physical
evidence already in the government’s possession was enough
to secure Walker’s release. Where a simple fingerprint
comparison can secure the release of an innocent person, we
have held, failure to conduct such a comparison constitutes a
violation of due process, see Lee, 250 F.3d at 684,
particularly where the putative “investigation” requires only
review of “an easily available piece of physical evidence”
already in the government’s possession. Russo, 479 F.3d at
209.

    Rivera held that a jailor has no duty to investigate the
repeated claims of innocence of a suspect held pursuant to a
court order. 745 F.3d at 392.6 In doing so, it reaffirmed the
longstanding rule that the Constitution usually does not
require a jailor to release a suspect committed by court order

 6
    Rivera considered a lawsuit brought against Los Angeles County, the
Los Angeles County Sheriff’s Department, San Bernardino County, and
the San Bernardino County Sheriff’s Department on the claim that, inter
alia, Rivera was wrongly detained on a warrant naming another man.
745 F.3d at 386–87. His claim of ongoing wrongful detention was
directed at the Los Angeles defendants, into whose custody the San
Bernardino defendants transferred him after his arrest. Id. at 387, 391–92.
As the Los Angeles defendants were just his custodians, Rivera’s analysis
of his claim prior to the preliminary hearing focused on that relationship.
Thus, Rivera explained that “a jailor need not independently investigate
all uncorroborated claims of innocence if the suspect will soon have the
opportunity to assert his claims in front of a judge,” an opportunity made
available to Rivera the day after his transfer to the custody of the Los
Angeles defendants. Id. at 391–92 (emphasis added).
24                      TATUM V. MOODY

to his custody. See, e.g., Hoffman v. Halden, 268 F.2d 280,
300 (9th Cir. 1959), overruled on other grounds by Cohen v.
Norris, 300 F.2d 24 (9th Cir. 1962); Francis v. Lyman,
216 F.2d 583, 585 (1st Cir. 1954). Hernandez v. Sheahan, on
which Rivera relied, reasoned that the contrary rule “would
create a substantial possibility that by presenting his
contention [of misidentification] over and over even a guilty
suspect would eventually find a deputy who did not
understand the weight of the evidence and let him go.”
455 F.3d 772, 777 (7th Cir. 2006). Such a result would
“frustrate the public interest in carrying out the criminal law.”
Id. And, as Lumbermens Mutual Casualty Co. v. Rhodes—on
which Rivera also relied—indicated, the erroneous release of
a suspect would “normally subject [the jailor] to criminal
penalty if he voluntarily allows . . . a prisoner to escape.” 403
F.2d 2, 7 (10th Cir. 1968).

    Those concerns have no application where, as here, the
defendants are investigating police officers accused of failing
to disclose potentially dispositive exculpatory information to
the prosecutors to whom they report.7 Unlike a jailor, “[o]ne
standard police function is to provide information to the
prosecutor and the courts. Thus, a police officer sometimes
may be liable if he fails to apprise the prosecutor or a judicial
officer of known exculpatory information.” Brady, 187 F.3d
at 114. Prosecutors, unlike jailors, wield the authority to
secure a suspect’s release by dismissing pending charges.
And prosecutors, unlike jailors, have a global perspective on
the case and a rigorous understanding of the applicable law,



  7
    The jury’s instructions in this case did not suggest that Moody and
Pulido had some sort of independent duty to secure Walker’s release or
even to investigate his claims.
                     TATUM V. MOODY                        25

attributes that minimize the danger they will weigh the
evidence incorrectly.

    Moreover, the preliminary hearings held in Walker’s case
did not afford him protection from Moody and Pulido’s
misconduct. In California, a criminal defendant arrested and
arraigned on a felony complaint, as Walker was, is entitled to
a preliminary hearing at which a judge “determine[s] whether
there is probable cause to conclude that the defendant has
committed the offense charged.” Galindo v. Super. Ct.,
50 Cal. 4th 1, 8 (2010). The protection that such hearings
provide against erroneous deprivations of liberty is only as
good as the information on which the decisions of the
prosecutor and judge are based. Absent a requirement that
police officers disclose to the prosecution compelling
exculpatory evidence in their possession without
unreasonable delay, the post-arrest hearings to which an
accused is entitled do not mitigate the risk that he may be
erroneously held to answer criminal charges that a prosecutor
would otherwise not pursue.

    Before the first preliminary hearing in Walker’s case,
both Moody and Pulido knew that the spree of demand-note
robberies had continued after Walker’s detention. At least
Pulido knew that Smith had been arrested on suspicion of
having committed those robberies. And the police already
had physical possession of the evidence necessary to establish
Smith’s presence at the scene of the EB Games
robbery—namely, his fingerprints. But as far as the record
shows, Moody and Pulido did not disclose any of that
knowledge to the prosecutors pursuing Walker’s case, either
before or after the initial preliminary hearing. To the
contrary, they affirmatively misrepresented—twice—highly
material facts: Moody’s report on the EB Games robbery,
26                    TATUM V. MOODY

completed prior to the first preliminary hearing, stated that
Walker’s detention brought the spate of demand-note
robberies to an end. And his second report, completed after
the first preliminary hearing, but before the second, reiterated
that misrepresentation. Pulido approved both documents.
Prosecutors, relying on those reports, could not dismiss
charges on the basis of facts of which they were unaware.
Correcting the error could be accomplished only by accurate
disclosure of information held by Moody and Pulido alone
and unknown to the prosecutors.

    Nor did Moody and Pulido correct the misinformation
provided to the prosecutors, or provide accurate information
concerning Smith’s arrest and the consequent end of the
crime spree, during the two-year period Walker remained in
pretrial detention. A police officer’s continuing obligation to
disclose highly exculpatory evidence to the prosecutors to
whom they report is widely recognized in the circuits. Jones
v. City of Chicago, for example, sustained a judgment against
police officers who failed to tell prosecutors about strongly
exculpatory evidence against a suspect whose trial had begun;
prosecutors later learned the truth of the matter and dropped
all charges against him. 856 F.2d at 988–91. “If police
officers have been instrumental in the plaintiff’s continued
confinement or prosecution,” Jones explained, “they cannot
escape liability by pointing to the decisions of prosecutors or
grand jurors or magistrates to confine or prosecute him. They
cannot hide behind the officials whom they have defrauded.”
Id. at 994. Sanders v. English similarly held that an
investigating officer’s “deliberate failure to disclose . . .
undeniably credible and patently exculpatory evidence to the
prosecuting attorney’s office plainly exposes him to liability
under § 1983,” where that failure led to the prolonged
detention of a man who otherwise would have been released.
                           TATUM V. MOODY                                  27

950 F.2d 1152, 1162 (5th Cir. 1992). Russo reversed the
grant of summary judgment to investigating police officers
whose willful failure to disclose to the prosecutor strong
exculpatory evidence might have violated the Constitution—
albeit the Fourth Amendment, rather than the Fourteenth—
where their conduct enabled the prolonged detention of a man
who had been arraigned but might have been released had
prosecutors known the truth. 479 F.3d at 201, 209–10. And
Brady recognized, without deciding, the possibility that
investigating police officers might be liable for a prolonged
detention resulting “from the officers’ failure to deliver
material information to competent authorities.” 187 F.3d at
114.8

    We emphasize the narrowness of the constitutional rule
we enforce today, which is restricted to detentions of
(1) unusual length, (2) caused by the investigating officers’
failure to disclose highly significant exculpatory evidence to
prosecutors, and (3) due to conduct that is culpable in that the


 8
   In a related context, Sutkiewicz v. Monroe County Sheriff held that the
district court improperly excluded from evidence audio tapes containing
exculpatory information that investigating officers allegedly failed to
disclose to the prosecutor. 110 F.3d 352, 357–58, 361 (6th Cir. 1997).
Sutkiewciz concluded that the tapes were relevant to the plaintiff’s claims
under § 1983 of malicious prosecution and false imprisonment. “[E]ven
though an officer is not obligated to actively search for exculpatory
evidence,” the Sixth Circuit reasoned in part, “he has a duty to disclose
those facts and circumstances to the prosecutor.” Id. at 358.

    In addition, several circuits recognize that “someone who is wrongly
imprisoned as a result of mistaken identity [may] state a constitutional
claim against his jailers based on their failure to ascertain that they had the
wrong man.” Gray v. Cuyahoga Cnty. Sheriff’s Dep’t, 150 F.3d 579, 582
(6th Cir. 1998), as amended, 160 F.3d 276 (6th Cir. 1998); see also
Cannon, 1 F.3d at 1563.
28                        TATUM V. MOODY

officers understood the risks to the plaintiff’s rights from
withholding the information or were completely indifferent
to those risks. We explain each limitation in turn.

    A. As to the length and process afforded by the state,
Baker held that mistaken detention for three days on the basis
of a seemingly valid warrant did not violate due process. See
443 U.S. at 145. As we explained in Lee, however, Baker
also “stated that the mistaken incarceration of an individual
in other circumstances may violate his or her right to due
process ‘after the lapse of a certain amount of time,’
‘depending on what procedures the State affords defendant[]
following arrest and prior to trial.’” Lee, 250 F.3d at 684
(quoting Baker, 443 U.S. at 144–45) (omission in original).
In that case, we held actionable the one-day detention of a
mentally incapacitated man in the absence of probable cause,
reversing the district court’s dismissal of the claim under
Federal Rule of Civil Procedure 12(b)(6). See id. at 684–85.

    Here, Walker was detained for 27 months after
preliminary hearings that, as noted, offered him no protection
from Moody and Pulido’s misconduct, because the
exculpatory information was withheld both before and after
the hearings. That period of time, under any measure, is
sufficiently lengthy to trigger the narrow due process right at
issue here. Russo, for example, held that a 217-day and even
a 68-day detention were lengthy enough to “carr[y]
constitutional implications.” 479 F.3d at 209.9


  9
    Although the district court did not instruct the jury as to this element
of the cause of action, Moody and Pulido failed to object to that omission,
as required by Federal Rule of Civil Procedure 51. “If a party does not
properly object to jury instructions before the district court, we may only
consider ‘a plain error in the instructions that . . . affects substantial
                           TATUM V. MOODY                                  29

    B. As to the significance of the evidence Moody and
Pulido withheld from the prosecutors, the district court
instructed the jury that “exculpatory” evidence was evidence
both “favorable to the accused” and “material to his guilt or
innocence.” Evidence is “material,” the district court
continued, “if there is a reasonabl[e] probability that it would
have caused a different result in the case.”

    We can assume here that this sort of due process claim is
actually triggered by the failure to disclose evidence that is
not merely material but strongly indicative of the plaintiff’s
innocence. Although the jury was not specifically so
instructed, the evidence proved in fact nearly dispositive, not
merely material, to the prosecutor’s decision to continue
prosecuting Walker. Once disclosed to the prosecutor, the
withheld information did alter that decision. With minimal
further investigation, the evidence prompted the prosecutor to
drop all charges against Walker and led the judge to declare
Walker factually innocent. Thus, any instructional error—to
which Moody and Pulido in any case did not object—is
harmless. See Fed. R. Civ. P. 61.

    C. In the context of a § 1983 suit against police officers
for a due process violation, official conduct violates due
process “only when [it] ‘shocks the conscience,’” a standard
satisfied in circumstances such as these by conduct that either
consciously or through complete indifference disregards the


rights.’” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1230 (9th Cir.
2011) (quoting Fed. R. Civ. P. 51(d)(2)) (alteration in original). We hold
that the failure to instruct the jury as to this element of the cause of action
did not affect Moody and Pulido’s substantial rights. Indeed, it was
entirely harmless. See Fed. R. Civ. P. 61. The length of Walker’s
detention went uncontested at trial and, on appeal, Moody and Pulido
concede that Walker “spent 27 months in jail.”
30                    TATUM V. MOODY

risk of an unjustified deprivation of liberty. Gantt, 717 F.3d
at 707.

        Where actual deliberation is practical, then an
        officer’s ‘deliberate indifference’ may suffice
        to shock the conscience. On the other hand,
        where a law enforcement officer makes a snap
        judgment because of an escalating situation,
        his conduct may only be found to shock the
        conscience if he acts with a purpose to harm
        unrelated to legitimate law enforcement
        objectives.

Id. (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.
2010)).

    Deliberation is impractical “where a suspect’s evasive
actions force the officers to act quickly,” Wilkinson, 610 F.3d
at 554, or when dealing with other “fast paced circumstances
presenting competing public safety obligations,” Porter v.
Osborn, 546 F.3d 1131, 1139 (9th Cir. 2008). Examples of
such circumstances include chasing a fleeing suspect or
responding to gunfire in crowded public spaces. See Porter,
546 F.3d at 1139.

    In contrast, “the decision whether to disclose or withhold
exculpatory evidence is a situation in which ‘actual
deliberation is practical,’” such that deliberate indifference to
individual rights—rather than intent to injure—is enough.
Tennison v. City & Cnty. of S.F., 570 F.3d 1078, 1089 (9th
Cir. 2008) (quoting Osborn, 546 F.3d at 1137). In Gantt, we
expressed approval of the following definition of deliberate
indifference:
                      TATUM V. MOODY                         31

       Deliberate indifference is the conscious or
       reckless disregard of the consequence of one’s
       acts or omissions. It entails something more
       than negligence but is satisfied by something
       less than acts or omissions for the very
       purpose of causing harm or with knowledge
       that harm will result.

Gantt, 717 F.3d at 708.

    The jury here received an instruction fully consistent with
the holding in Gantt. The district court explained that Walker
needed to demonstrate that Moody and Pulido “acted with
deliberate indifference to or reckless disregard for the
plaintiff’s rights or for the truth in withholding evidence from
prosecutors.” The instructions went on to define “deliberate
indifference” as “a conscious choice to disregard the
consequences of one’s acts or omissions,” and “reckless
disregard” as “complete indifference to the plaintiff’s rights”
or action “in the face of a perceived risk” that the plaintiff’s
rights will be violated. This mens rea standard is a subjective
one and describes a culpable state of mind. The jury’s
determination that Moody and Pulido acted with deliberate
indifference or reckless disregard for Walker’s rights thus
satisfies the standard applicable to violations of due process.

                          *    *   *
32                        TATUM V. MOODY

   In sum, we hold that the jury instructions described a
cognizable constitutional claim.       The district court’s
enforcement of the jury verdict thus stands.10




  10
     Moody and Pulido do not independently appeal the denial of qualified
immunity on the ground that even if the jury was properly instructed, “the
right at issue was [not] ‘clearly established’ at the time of [their] alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). They have
thus forfeited any such objection for failure to assert it “specifically and
distinctly” in their opening brief. See, e.g., U.S. Fidelity & Guar. Co. v.
Lee Invs. LLC, 641 F.3d 1126, 1136 n.9 (9th Cir. 2011).

     Nor could Moody and Pulido have asserted that the right they violated
was not clearly established. They concede “that withholding exculpatory
evidence may cause constitutional injury not only at the criminal trial, but
during the pretrial stages of the criminal proceedings as well,” but they
argue that this rule applies only if their conduct violates the standards set
by the Fourth Amendment. Immunity, however, turns “on an officer’s
duties, not on other aspects of the constitutional violation.” Stoot v. City
of Everett, 582 F.3d 910, 927 (9th Cir. 2009). Uncertainty regarding the
procedural niceties of privately enforcing the relevant constitutional
prohibition—including knowledge of the particular constitutional
provision implicated by the violation—does not immunize state officials
from liability. See Southerland v. City of N.Y., 680 F.3d 127, 160 (2d Cir.
2011); Alexander v. Perrill, 916 F.2d 1392, 1398 n.11 (9th Cir. 1990).
Where, as here, officers recognize that their conduct “could ripen into” an
actionable violation on the basis of subsequent contingencies beyond their
control, they are not immune from suit. Stoot, 582 F.3d at 927.
Commonsense confirms Moody and Pulido’s concession that the
withholding of exculpatory evidence can cause constitutional injury; that
concession recognizes “the almost tautological conclusion that an
individual in custody has a constitutional right to be released from
confinement after it was or should have been known that the detainee was
entitled to release.” Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011)
(internal quotation marks omitted).
                      TATUM V. MOODY                         33

                              III.

    Moody and Pulido’s appeal from the award of attorney’s
fees is contingent on their appeal of the judgment. They have
not brought a particularized challenge to the calculation of the
attorney’s fees awarded to Walker by the district court or
alleged an abuse of discretion. See Corder v. Brown, 25 F.3d
833, 836 (9th Cir. 1994) (“[A] district court’s award of
attorney’s fees . . . is reviewed for an abuse of discretion.”).
Under 42 U.S.C. § 1988, the district court has discretion to
“award a reasonable attorney’s fee to prevailing parties in
civil rights litigation.” Hensley v. Eckerhart, 461 U.S. 424,
429 (1983). Because we affirm the district court’s judgment,
we likewise affirm the award of fees to the prevailing party,
Walker.

   AFFIRMED.
