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Alvarez v. City of Brownsville

United States Court of Appeals, Fifth Circuit

September 18, 2018

GEORGE ALVAREZ, Plaintiff-Appellee,
v.
THE CITY OF BROWNSVILLE, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and JOLLY, JONES, SMITH, WIENER, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, and HO, Circuit Judges. [*]

          CARL E. STEWART, Chief Judge, joined by JOLLY, JONES, SMITH, WIENER, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, HIGGINSON, WILLETT, and HO, Circuit Judges [**]

         This case was reheard en banc after the Appellee, George Alvarez, had his $2.3 million judgment reversed and his claims against the City of Brownsville dismissed by a panel of this court. The en banc court has carefully considered two important questions as to the merits of this case: (1) whether the City of Brownsville should have been subjected to municipal liability for Alvarez's claim under Brady v. Maryland, 373 U.S. 83 (1963); and (2) whether Alvarez was precluded from asserting his constitutional Brady claim for his 42 U.S.C. § 1983 action against the City of Brownsville because he pled guilty. For the reasons set forth below, we REVERSE the district court's judgment, and RENDER judgment in favor of the City of Brownsville. Alvarez's action against the City of Brownsville is DISMISSED with prejudice.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         A. Factual Background

         1. The Incident Between Alvarez and Officer Arias at the Jail

         On November 27, 2005, Alvarez, a then-seventeen year old ninth grade special education student, was arrested by the Brownsville Police Department and taken to a detention center in Brownsville, Texas on suspicion of public intoxication and burglary of a motor vehicle. After being placed in one of the holding cells, Alvarez attempted to use a telephone located in the cell. Initially, Alvarez was able to place a call but the phone eventually stopped working. Alvarez then banged the phone's handset against the phone's switch hook mounted on the wall, and made an obscene gesture towards a camera. Because Alvarez became somewhat disruptive, officers removed Alvarez from his cell and attempted to transfer him to a padded cell to calm down. To move Alvarez to the padded cell, the officers had to walk him across the jail's central lobby booking area.

         After reaching the booking area, Alvarez engaged in a conversation with a group of officers. Alvarez primarily spoke to Officer Jesus Arias who took the lead in trying to direct Alvarez to the padded cell. As the conversation continued, Alvarez was reluctant to move towards the padded cell and obey Officer Arias's instructions to walk towards the cell. When recalling the conversation with Officer Arias, Alvarez indicated, "I understand I wasn't compliant."

         A scuffle between Alvarez and Officer Arias soon ensued. The altercation began when Officer Arias grabbed Alvarez's left arm and maneuvered Alvarez to the ground. Officer Arias then placed Alvarez in a choke hold and eventually a head lock. Officers assisting Officer Arias subdued Alvarez by shackling Alvarez's legs and handcuffing him. Throughout the struggle, Alvarez squirmed and flailed his arms. Alvarez, handcuffed and legs shackled, was then carried and placed in the padded holding cell. All of the events that took place at the jail before, during, and after Alvarez's incident with Officer Arias were captured on video.

         2. Investigations Conducted by the Brownsville Police Department

         The Brownsville Police Department utilizes separate investigative tracks for internal disciplinary investigations of its officers and alleged crimes committed by detainees at the jail. An internal administrative investigation was conducted to determine if Officer Arias violated the Brownsville Police Department's use of force policy during the altercation with Alvarez. Additionally, a criminal investigation was conducted by the Brownsville Police Department to determine if there was probable cause for recommending that the district attorney's office criminally charge Alvarez for assaulting Officer Arias.

         Generally, the Brownsville Police Department's internal administrative affairs division does not share information with the criminal investigation division. If information is to be shared between the internal administrative affairs division and the criminal investigation division, Police Chief Carlos Garcia is usually the individual who authorizes the exchange. However, Sergeant David Infante, the jail supervisor who downloaded the videos of the incident for the internal administrative investigation of Officer Arias, stated that "if something would have been asked of me by the criminal investigation, I would have submitted it." Police Chief Garcia further added that Sergeant Infante should have provided the videos of the incident to the criminal investigation division if he knew criminal charges were being brought against Alvarez. Commander Roberto Avitia, also a supervisor of Sergeant Infante, similarly stated that Sergeant Infante should have disclosed the videos to the criminal investigation division.

         For the internal investigation, Sergeant Infante evaluated the videos and Officer Arias's report of the incident. Four different videos were reviewed: (1) a video of Alvarez in the initial holding cell that he was placed in; (2) a video of the officers at the central command post in the detention center before, during, and after the incident; (3) a video of the altercation between Alvarez and Officer Arias that occurred in the lobby booking area; and (4) a video of Alvarez in the padded cell after he was transported. After conducting the investigation, Sergeant Infante came to the conclusion that Officer Arias used proper force and that no further action should be taken.

         Two days after the incident between Alvarez and Officer Arias, on November 29, 2005, Sergeant Infante sent a memorandum to Police Chief Garcia reiterating his recommendation that proper force was used. On December 8, 2005, another supervisor of Sergeant Infante, Commander Ramiro Rodriguez, reviewed Sergeant Infante's report and the video recordings, and submitted a report to Police Chief Garcia recommending closure of the internal administrative investigation since Officer Arias's actions were in compliance with Brownsville Police Department regulations.

         Even though the reports and recommendations were stamped as received on December 8, 2005 by Police Chief Garcia's office, Police Chief Garcia did not review the reports. The materials for the internal investigation, including the videos, were never passed on to an internal affairs unit for a formal disciplinary investigation of Officer Arias or to the criminal investigation division of the Brownsville Police Department.

         The criminal investigation division reviewed the incident after the internal administrative review was conducted. The criminal investigation began on November 27, 2005, with Sergeant Jim Brown preparing and filing an offense report of the incident that occurred between Alvarez and Officer Arias. Sergeant Brown was the patrol supervisor responsible for addressing issues that arose at the jail when the incident occurred.[1] Sergeant Brown's report stated Alvarez allegedly assaulted Officer Arias but did not mention that there were any video recordings of the incident. Criminal investigator Officer Rene Carrejo was subsequently assigned to review Officer Arias's complaint that Alvarez assaulted him by grabbing his throat and his right inner thigh. Officer Carrejo never requested or inquired about the possible existence of a video recording of the incident. Lieutenant Henry Etheridge, the head of the internal affairs division of the Brownsville Police Department at the time of the administrative review, opined that the criminal investigation division did not conduct a proper investigation because it failed to collect all evidence. Lieutenant Etheridge further noted that, "[i]f I knew that [the criminal investigation division] wasn't conducting proper investigations in regards to collecting that video, by all means, I would have taken corrective action to . . . get that video in their hands."

         3. Alvarez's Guilty Plea and Imprisonment

         The criminal investigation division subsequently alerted the district attorney's office of the incident and Alvarez was charged with assault on a public servant, a felony offense in Texas. In January 2006, a grand jury returned an indictment charging Alvarez with the assault. During discovery, Alvarez's attorney reviewed the prosecution's case file that did not contain the videos of the incident. In March 2006, Alvarez pled guilty to assault on a public servant. In May 2006, Alvarez was given a suspended sentence of eight years of imprisonment and ten years of community supervision. As a condition of the community supervision, the court imposed "a term of confinement and treatment in a substance abuse felony punishment facility . . . for not less than 90 days or more than 12 months as a condition of probation." In November 2006, after Alvarez failed to complete the treatment program, the state revoked the suspension of Alvarez's sentence and remanded Alvarez to prison for the remainder of his eight-year sentence.

         4. The Uncovering of the Video Recordings of the Incident

         Approximately four years after Alvarez began to serve his prison sentence, the videos of Alvarez's incident with Officer Arias surfaced during discovery for an unrelated § 1983 case. After the discovery of the videos, Alvarez filed an application for a writ of habeas corpus in Texas state court, claiming that the Brownsville Police Department had withheld the videos in violation of Brady. In October 2010, after the state district court recommended that the writ of habeas corpus be granted and that Alvarez be given a new trial, the Texas Court of Criminal Appeals concluded that Alvarez was "actually innocent" of committing the assault. Alvarez's assault conviction was then set aside and all charges against Alvarez were later dismissed.

         B. Procedural History

         Several months after being declared "actually innocent," in April 2011, Alvarez sued the City of Brownsville, Officer Arias, and other individuals from the Brownsville Police Department, asserting various claims under § 1983, which included nondisclosure of exculpatory evidence in violation of Brady. In August 2012, the City of Brownsville, Officer Arias, and the other defendants filed a motion for summary judgment arguing that Alvarez's claims should be dismissed. Adopting the magistrate judge's report and recommendation, the district court denied the defendants' motion for summary judgment as to: (1) the Brady claim against the City of Brownsville for nondisclosure of exculpatory evidence; and (2) a fabrication of evidence claim brought against Officer Arias in his individual capacity. The district court granted the defendants' motion for summary judgment as to all other claims. The fabrication claim against Officer Arias was later dismissed after Alvarez and Officer Arias filed a voluntary stipulation of dismissal.

         In January 2014, Alvarez and the City of Brownsville, as the only remaining parties, filed cross motions for summary judgment addressing whether: (1) a Brownsville Police Department policy of nondisclosure existed; (2) the Brownsville Police Department's failure to disclose the videos constituted a Brady violation; and (3) a Brownsville Police Department policy caused the Brady violation. The district court subsequently granted Alvarez's motion for summary judgment concluding that there was a Brady violation as a matter of law, and Alvarez established "all substantive elements of a § 1983 municipal liability claim against the City of Brownsville."

         The district court held a jury trial to determine whether Alvarez was entitled to monetary damages for the Brady violation. Following a two-day jury trial, the jury awarded Alvarez $2, 000, 000 in compensatory damages. The parties agreed to attorneys' fees of $300, 000 and the court entered final judgment in favor of Alvarez for $2, 300, 000. The City of Brownsville filed post-trial motions, which were denied by the district court. The City of Brownsville timely appealed.

         A panel of this court reversed the $2, 300, 000 judgment awarded to Alvarez and dismissed Alvarez's action against the City of Brownsville. Alvarez v. City of Brownsville, 860 F.3d 799, 803 (5th Cir. 2017), reh'g en banc granted, 874 F.3d 898 (5th Cir. 2017). The panel opinion held that by entering a guilty plea Alvarez waived the right to assert the Brady claim foundational to his § 1983 action. The panel opinion was withdrawn in light of en banc rehearing of this case. After supplemental briefing and oral argument to the en banc court, we reverse the district court and render judgment of dismissal in favor of the City of Brownsville.

         II. DISCUSSION

         Alvarez's Brady claim should have been dismissed as a matter of law on summary judgment because the City of Brownsville should not have been subjected to municipal liability for Alvarez's § 1983 claim. This court also declines the invitation to disturb its precedent concerning a defendant's constitutional right to Brady material prior to entering a guilty plea.

         A. Municipal Liability

         Alvarez argues that the City of Brownsville, through its police department, had an unwritten, customary policy of not disclosing exculpatory evidence obtained in the course of internal administrative investigations-a policy that caused Alvarez's constitutional violation. Alternatively, Alvarez asserts that making Police Chief Garcia the sole decision-maker related to the sharing of information from internal administrative matters created the high possibility of a constitutional violation. Because of Police Chief Garcia's oversight, Alvarez asserts that the City of Brownsville should be held liable as a municipality. This court is not persuaded by Alvarez's arguments.

         Summary judgment rulings are subject to de novo review. Aldous v. Darwin Nat'l Assurance Co., 851 F.3d 473, 477 (5th Cir. 2017), vacated in part by 889 F.3d 798 (5th Cir. 2018). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "'A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial' and 'mandates the entry of summary judgment' for the moving party." United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." State Farm Fire & Casualty Co. v. Flowers, 854 F.3d 842, 844 (5th Cir. 2017) (quoting Little v. Liquid Air Corp., 37 F.3d 1068, 1075 (5th Cir. 1994)).

         Three essential elements must be established for a municipality to face § 1983 liability. There must be: (1) a policymaker; (2) an official policy; and (3) a violation of a constitutional right whose "moving force" is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). An official policy "usually exists in the form of written policy statements, ordinances, or regulations, but may also arise in the form of a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy." James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at 579) (quotation marks omitted).

         To establish that the City of Brownsville is liable as a municipality, a policy must have been the "moving force" behind Alvarez's constitutional violation. See Piotrowski, 237 F.3d at 580 (quoting Monell, 436 U.S. at 694). Stated differently, Alvarez "must show direct causation, i.e., that there was 'a direct causal link' between the policy and the violation." See James, 577 F.3d at 617 (quoting Piotrowski, 237 F.3d at 580). Additionally, Alvarez must demonstrate that the policy was implemented with "deliberate indifference" to the "known or obvious consequences" that constitutional violations would result. See Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997). To base deliberate indifference on a single incident, "it should have been apparent to the policymaker that a constitutional violation was the highly predictable consequence of a particular policy." Burge v. St. Tammany Par., 336 F.3d 363, 373 (5th Cir. 2003). The causal link "moving force" requirement and the degree of culpability "deliberate indifference" requirement must not be diluted, for "where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability." Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (quoting Brown, 520 U.S. at 415).

         Assuming that Police Chief Garcia is a policymaker and that the practice of not freely sharing information from the internal administrative investigations with the criminal investigation division constitutes a policy, Alvarez's theory of liability falls short in two respects: (1) there is not a "direct causal link between the policy and the violation," and (2) there was no "deliberate indifference" shown. See Valle v. City of Hous., 613 F.3d 536, 542 (5th Cir. 2010); James, 577 F.3d at 617 (quoting Piotrowski, 237 F.3d at 580).

         First, there is not "a direct causal link between the policy and the violation." See James, 577 F.3d at 617 (quoting Piotrowski, 237 F.3d at 580). When questioned about whether he could turn materials over to the criminal investigation division, Sergeant Infante stated that "if something would have been asked of me by the criminal investigation, I would have submitted it." Moreover, Police Chief Garcia and Commander Avitia both stated that Sergeant Infante should have disclosed the videos of the incident if he was aware of the criminal investigation against Alvarez. Commander Avitia further stated that "[v]ideos are videos. They should be able to be available to either one of the investigations. . . . They're available for both investigations." The criminal investigator, Officer Carrejo, also neglected to request or inquire about any video recordings of the incident despite knowing about the presence of cameras in the jail. Lieutenant Etheridge stated that the criminal investigation division did not conduct a proper investigation because of its failure to collect all of the evidence. Lieutenant Etheridge further noted that, "[i]f I knew that [the criminal investigation division] wasn't conducting proper investigations in regards to collecting that video, by all means, I would have taken corrective action to . . . get that video in their hands."

         This series of interconnected errors within the Brownsville Police Department that involved individual officers was separate from the general policy of non-disclosure of information from the internal administrative investigations. The general policy of non-disclosure was not a direct cause of Alvarez's injury. See Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992) ("To form the basis of liability under § 1983, a municipal policy must be affirmatively linked to the constitutional violation and be the moving force behind it.").

         Second, this general policy of non-disclosure was not implemented with "deliberate indifference." To show deliberate indifference based on a single incident, there must be evidence that shows that it should have been apparent or obvious to the policymaker that a constitutional violation was the "highly predictable consequence" of the particular policy. See Burge, 336 F.3d at 373; Brown v. Bryan County, 219 F.3d 450, 461 (5th Cir. 2000). While it was established that information from internal administrative investigations is generally not shared, Sergeant Infante, Commander Avitia, Lieutenant Etheridge, and Police Chief Garcia still understood that this policy did not prohibit them from disclosing video recordings. Moreover, if Officer Carrejo requested or inquired about the existence of any videos of the incident, the videos would have been turned over. Because of the understanding throughout the police department that even with the policy that possibly exculpatory evidence such as the videos could be disclosed, it was by no means "apparent" that a constitutional violation was a "highly predictable consequence" of the general policy of non-disclosure. See Burge, 336 F.3d at 373. Put another way, it can not be "apparent" that a constitutional violation is a "highly predictable consequence" if no impression is created from the policy that the evidence central to the alleged violation has to be withheld. Accordingly, there was no "deliberate indifference" shown in implementing this policy. See id. (citing Brown, 219 F.3d at 461).

         Even if this court adopts Alvarez's alternative theory that the "policy" was Police Chief Garcia being vested with the sole authority to review the internal administrative investigation reports, there is no showing that this policy was adopted or implemented with deliberate indifference. When advancing this theory, Alvarez lodges two different concepts for how deliberate indifference was shown. First, Alvarez asserts that the policy of allowing Police Chief Garcia to be the sole decision maker relating to the internal investigations was deliberately indifferent because there was no safety net to catch Police Chief Garcia's mistakes. Second, Alvarez avers that Police Chief Garcia implemented this policy with deliberate indifference because he overlooked internal administrative reports, knowing that his error would probably result in the violation of an individual's constitutional rights.

         Both of Alvarez's arguments are unavailing. Placing the final decision making authority in the hands of one individual, even if it makes an error more likely, does not by itself establish deliberate indifference. "Deliberate indifference is a degree of culpability beyond mere negligence or even gross negligence; it must amount to an intentional choice, not merely an unintentionally negligent oversight." James, 577 F.3d at 617-18 (quoting Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992) (quotation marks omitted). No evidence from the record indicates that Police Chief Garcia's actions should be characterized as anything more than negligent oversight. Moreover, Alvarez points to no case from any circuit that premises § 1983 municipal liability on a policymaker's deliberate indifference to a constitutional right that a circuit court has expressly held does not exist-e.g., the defendant's right to be presented with Brady material before entering a guilty plea. No deliberate indifference was shown to establish municipal liability under this alternative theory proposed by Alvarez.

         In conclusion, the City of Brownsville should not have been liable as a matter of law for Alvarez's § 1983 action.

         B. Extension of the Brady right to the Plea Bargaining Process

         Alvarez additionally argued to the en banc court that his guilty plea did not preclude him from asserting a viable Brady claim for his § 1983 action. Prior to this court granting Alvarez's petition for rehearing en banc, settled precedent in this circuit held that there was no constitutional right to Brady material prior to a guilty plea. See United States v. Conroy, 567 F.3d 174, 178- 79 (5th Cir. 2009) (citing Matthew v. Johnson, 201 F.3d 353, 361-62 (5th Cir. 2000)). Alvarez argues that under Brady the videos of the incident between him and Officer Arias constituted exculpatory evidence that he was constitutionally entitled to before the entry of his guilty plea. See 373 U.S. at 87. This court declines the invitation to uproot its precedent.

         In United States v. Ruiz, the Supreme Court held that "the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." 536 U.S. 622, 633 (2002). The Supreme Court stated that impeachment information was not "critical information of which the defendant must always be aware prior to pleading guilty." Id. at 630. The Supreme Court, however, did not explicitly address whether the withholding of exculpatory evidence during the pretrial plea bargaining process would violate a defendant's constitutional rights. See id. at 630-33.

         In Conroy, this court addressed the scope of a defendant's constitutional entitlement to Brady material before he enters a guilty plea. 567 F.3d at 179. Unequivocally, the court rejected the defendant's argument that Ruiz states that impeachment and exculpatory evidence should be treated differently, and that exculpatory evidence must be turned over before the entry of a guilty plea. Id. This court stated, "Ruiz never makes such a distinction nor can this proposition be implied from its discussion. Accordingly, we conclude that [the defendant's] guilty plea precludes her from claiming that the government's failure to disclose . . . was a Brady violation." Id.

         The First, Second, and Fourth Circuits also seem to have doubts about a defendant's constitutional entitlement to exculpatory Brady material before entering a guilty plea. In United States v. Mathur, the First Circuit explained that, "[t]he animating principle of Brady is the avoidance of an unfair trial. It is, therefore, universally acknowledged that the right memorialized in Brady is a trial right." 624 F.3d 498, 506-07 (1st Cir. 2010) (internal citation omitted). Extending Brady to pretrial plea negotiations was characterized as "new ground," a "novel approach," and an "unprecedented expansion of Brady." Id. at 507. The First Circuit noted that "Ruiz teaches that Brady does not protect against the possible prejudice that may ensue from the loss of an opportunity to plea-bargain with complete knowledge of all relevant facts." Id. "[W]hen a defendant chooses to admit his guilt, Brady concerns subside." Id. ("The Brady rule's focus on protecting the integrity of trials suggests that where no trial is to occur, there may be no constitutional violation." (quoting Matthew, 201 F.3d at 361)).

         Additionally, the Second Circuit in Friedman v. Rehal stated the "Supreme Court has consistently treated exculpatory and impeachment evidence in the same way for the purpose of defining the obligation of a prosecutor to provide Brady material prior to trial, and the reasoning underlying Ruiz could support a similar ruling for a prosecutor's obligations prior to a guilty plea." 618 F.3d 142, 154 (2d Cir. 2010) (internal citation omitted).

         Likewise, the Fourth Circuit in United States v. Moussaoui emphasized that "[t]he Brady right . . . is a trial right" that "exists to preserve the fairness of a trial verdict and to minimize the chance that an innocent person would be found guilty." 591 F.3d 263, 285 (4th Cir. 2010) (emphasis in original). The Fourth Circuit went on citing the Fifth Circuit's Matthew and Orman opinions, stating "[w]hen a defendant pleads guilty, those concerns are almost completely eliminated because his guilt is admitted." Id. (citing Orman v. Cain, 228 F.3d 616, 617 (5th Cir. 2000); Matthew, 201 F.3d at 361). After acknowledging the circuit split for whether the Brady right extended to the guilty plea context, the Fourth Circuit did not decide the issue. Id. at 286.

         The Seventh, Ninth, and Tenth Circuits, however, recognized the possible distinction noted by the Supreme Court in Ruiz between impeachment and exculpatory evidence in the guilty plea context. In McCann v. Mangialardi, the Seventh Circuit stated that "Ruiz indicates a significant distinction between impeachment information and exculpatory evidence of actual innocence." 337 F.3d 782, 788 (7th Cir. 2003). The Seventh Circuit went on to say, "[g]iven this distinction, it is highly likely that the Supreme Court would find a violation of the Due Process Clause if prosecutors or other relevant government actors have knowledge of a criminal defendant's factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea." Id. In the next line, the court explained that "[w]e need not resolve this question" because the plaintiff did not present evidence that the defendant was aware of the potential exculpatory evidence. Id.

         In United States v. Ohiri, the defendant contended that the government committed Brady violations by failing to disclose exculpatory evidence prior to his decision to plead guilty. 133 Fed.Appx. 555, 556 (10th Cir. 2005) (unpublished). The Tenth Circuit explained that the "government should have disclosed all known exculpatory information at least by that point in the proceedings" prior to the defendant's guilty plea entered on the first day of jury selection. Id. at 562. Notably, "the unusual circumstances presented" by the defendant's acceptance of an "eleventh-hour plea agreement" on the day the defendant was set to go to trial was highlighted in the court's reasoning. See Ohiri, 133 Fed.Appx. at 562. The Tenth Circuit emphasized that, unlike Ruiz, the evidence the prosecution withheld from the defendant was alleged to be exculpatory and not just impeachment evidence. Id. The court concluded by stating that "the Supreme Court [in Ruiz] did not imply that the government may avoid the consequence of a Brady violation if the defendant accepts an eleventh-hour plea agreement while ignorant of withheld exculpatory evidence in the government's possession." Id.

         Similarly, the Ninth Circuit alluded to possibly allowing a defendant to assert a Brady violation after pleading guilty. See Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir. 2007) (en banc). When the Ninth Circuit referred to the defendant's ability to assert a Brady violation after pleading guilty, the court cited to a case predating Ruiz for the proposition that the defendant could still assert a viable Brady claim even though he pled guilty. See id. (citing Sanchez v. United States, 50 F.3d 1148, 1454 (9th Cir. 1995)).

         In sum, case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process. The en banc court will not disturb this circuit's settled precedent and abstains from expanding the Brady right to the pretrial plea bargaining context for Alvarez.

         III. CONCLUSION

         For the foregoing reasons, we REVERSE the district court's judgment, and RENDER judgment in favor of the City of Brownsville. Alvarez's action against the City of Brownsville is DISMISSED with prejudice.

          EDITH H. JONES, Circuit Judge, joined by SMITH and HO, Circuit Judges, concurring

         I am pleased to join Chief Judge Stewart's opinion for the court, with which I fully agree. The genesis of this case is, however, troubling, and worth noting. It is an unsavory vehicle in which to be discussing significant theories of law.

         How Alvarez[1] obtained his habeas relief in the state appellate court, using his then-attorney Lucio, who later became a co-defendant in a federal RICO and bribery prosecution against then-Cameron County DA Villalobos, is more than suspicious. The state courts were presented a redacted video of the encounter between Alvarez and Officer Arias, which omitted a crucial 30 seconds leading up to their tussle. In that period of time, it was evident that Alvarez was arguing with and resisting the officers' instructions to move from one cell into another. Unredacted, the video portrays a much more complex picture of events than the "self defense" theory propounded by attorney Lucio. Lucio also offered the supporting testimony of Alvarez's former attorney, de la Fuente, an unindicted co-conspirator in the bribery case. In the state habeas court, the DA's office, oddly, never questioned the video, immediately agreed to a new trial, and apparently offered an agreed set of findings and conclusions. That court granted only a new trial. When Lucio appealed to the state appellate court on his "actual innocence" theory-which is supportable only ...


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