Jernigan v. Richard (907 F. Supp. 2d 998, 2012)

AMENDED NUNC PRO TUNC ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are: (1) Motion for Summary Judgment by Pamela Elliott, the Town of .Gilbert, David Landgraf and Randy McLaws, collectively “the Gilbert Defendants” (Doc. 96), (2) Motion for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Kyle Richard (“SA Richard”) (Doc. 145), (3) Motion for Partial Summary Judgment by Rachel Jernigan (Doc. 152), and (4) Plaintiffs Request to Disregard the Town Defendants’ Response to Plaintiffs Statement of Additional Facts (Doc. 172). For the reasons stated below, the Court grants the Gilbert Defendants’ Motion for Summary Judgment on any state or federal claims for malicious prosecution. It also grants the motion to the extent it seeks summary judgment on behalf of Defendant David Landgraf. The motion is otherwise denied. The Court grants Defendant Kyle Richard’s Motion for Summary Judgment to the extent that Plaintiffs assert a Bivens claim against Richard arising from Plaintiffs initial arrest, detention and prosecution for the September 20, 2000 bank robbery, or the October 25, 2000 bank robbery. The Court denies the Motion as it relates to all other claims asserted by Plaintiff. The Court grants the Motion for Partial Summary Judgment by Rachel Jernigan only to the extent that it determines that Defendant Kyle Richard is not entitled to qualified immunity. It denies the motion in all other aspects. The Court grants Plaintiffs request to Disregard the Town Defendant’s Response.

BACKGROUND

In the year 2000, five robberies of East Valley banks were committed by an Hispanic or Asian female or females with similar physical characteristics, similar dress, and using similar modus operandi. The robberies were committed on September 20 in the Town of Gilbert (robbery one), October 11 in Tempe (robbery two), October 25 in Chandler (robbery three), November 28 in Gilbert (robbery four), and November 30 in Mesa (robbery five).

Pursuant to an understanding between federal and local authorities, the perpetrator of each of the five robberies was subject to federal charges. Special Agent Richard (“SA Richard”) had been the agent on call for robberies one and four, and thus was the first FBI agent to investigate the suspect or suspects in these two robberies. Because robberies two, three and five were deemed by the FBI to have been perpetrated by the same suspect or suspects, the FBI’s investigation of all five of the robberies was assigned to SA Richard.

The police departments of the respective municipalities investigated each of these robberies in conjunction with the FBI. According to SA Richard, it is the common practice, when the FBI is involved in such cases, that the FBI agent, along with the case detective from the municipality, interview the victim teller. The responding police department usually handles the other interviews which are then made available to the FBI. (Doc. 130, Ex. 7B at 23).

SA Richard interviewed the victim/teller of the first robbery, Elizabeth Chlupsa, with Detective Pamela Brock of the Gilbert Police Department. Detective Brock is also a Defendant in this action. Gilbert Police interviewed other witnesses to" the bank robbery and Detective Brock eventually completed a report. As the officer in charge for the FBI, SA Richard received copies of the witness statements and the other reports prepared by Detective Brock.

A surveillance video tape of poor quality provided some depiction of the robbery suspect. A postal inspector with whom SA Richard consulted believed that the suspect depicted in the video resembled Rachel Jernigan, with whom the postal inspector was familiar due to other investigations. With the assistance of David Landgraf running the software, SA Richard and Detective Brock prepared a six-pack photo line-up that included a booking photo of Ms. Jernigan and five other persons. These persons were among those selected by a computer program used by Gilbert police as having some similar physical characteristics to Ms. Jernigan. From the photographs generated by the computer program, Brock and Richard selected the five additional candidates for the photo array.

SA Richard showed the lineup to Ms. Chlupsa. After having received an admonition regarding eyewitness identification, and observing the card for between twenty and forty-five seconds, Ms. Chlupsa picked out Ms. Jernigan’s picture in the line-up. In doing so Ms. Chlupsa indicated that she “really [felt] like it’s her.” When asked how strongly she felt about it, she responded “I really feel confident.” (Doc. 97, Ex. A at TOG000147; Id., Ex. D at SB-0 000161).

Based on Ms. Chlupsa’s identification, SA Richard and an Assistant United States Attorney obtained a federal indictment against Ms. Jernigan for the Gilbert robbery that was issued on October 11. (Doc. 97, Ex. M). On that same date, a second similar robbery occurred in Tempe. Although the suspect was not described as wearing a baseball cap, otherwise the general description of the suspect, the clothes that she was wearing, and the method used to rob the bank were similar to the Gilbert robbery. The FBI quickly determined that both robberies were likely committed by the same person and followed its usual practice of reassigning the Tempe bank robbery from Special Agent Mesick to SA Richard. This reassignment took place on the same date that the second robbery occurred. (Doc. 97, Ex. L at KR-645). SA Richard thereafter took over the case, and conducted, among other things, follow-up interviews with Ms. Ward the vietim/teller.

Despite the FBI’s determination that the robbery was likely committed by the same suspect, when Special Agent Mesick showed Ms. Ward the same photo line-up that had been shown to Ms. Chlupsa, she did not recognize anyone depicted in the photos as the woman who robbed her. (Id. at KR-395). A few days later, when a Gilbert police officer showed Ms. Ward the surveillance photo taken of the robbery suspect in the Gilbert robbery, she indicated to SA Richard that she was “pretty sure” she had been robbed by the same person. (Doc. 130-3, Ex. 22 at S-B-0 002390-91). She indicated that the person depicted in the surveillance video and the person who robbed her were the same height, they both had a full face, and they both had short dark hair. (Id., see also Id. at 00473).

Two weeks later, on October 25, a third similar bank robbery occurred in Chandler. The descriptions of the suspect given by the witnesses again generally matched the descriptions given of the suspect in the Gilbert and Tempe robberies. In light of the distinct similarities, when the case was opened it was officially assigned to SA Richard. (Doc. 130, Ex. 7B at 16). Once assigned to the case, SA Richard traveled to Ms. Etherington’s home on the day of the robbery and showed her the same photo six-pack containing Ms. Jernigan that had been show to Ms. Chlupsa and Ms. Ward. After studying the line-up card for about twelve minutes, Ms. Etherington selected Ms. Jernigan as being the person who robbed her. She thought “[t]he shape of her face is right, kind of rounded, and came to a point. The eyes look very similar.” (Doc. 97-2, Ex. D at S-B-0 000156; Doc. 97-4, Ex. L at KR-453).

On November 10, 2000 Ms. Jernigan was arrested and taken into custody. (Doc. 97-4, Ex. L at KR-574-79). She was detained and was thus in custody when two distinctly similar additional robberies occurred in quick succession.

On November 28, a fourth similar robbery of another bank in Gilbert occurred directly across the intersection from the location of robbery one. SA Richard was the agent on call for the FBI. Detective Brock was not assigned to this investigation. Instead, Detective Ross Estavillo, also a detective with the Gilbert Investigations-Persons Crimes Unit was assigned. Witnesses again gave the same general description and MO of the suspect that had been given for the first three robberies.

Two days later, on November 30, a fifth similar robbery occurred in Mesa. Again, the physical description of the robber was indistinct in general terms from the physical description of the robber given for robbery numbers one through four. The description of the modus operandi was similar to certain aspects of those robberies. The suspect was described as fleeing the scene in a dark Toyota 4Runner with gold trim — the same description given of the getaway car in robbery two. The FBI reassigned SA Richard to the file after having determined that the November 30 robber was committed by a serial-robber. (Doc 165-1, Ex. B at 289).

Witnesses to all of the robberies generally described a short woman in her late twenties or early thirties who was either Hispanic or Asian, with pulled back black hair, indicating, at best, a statistically uncommon bank robber. The perpetrator dressed in jeans and a blue jacket, sweatshirt or long sleeved shirt, often with a shirt underneath. The witnesses from the first five robberies described the robber as waiting her turn in the teller line and then, when arriving at the teller, presenting her demand in a note that she gave to, but did not leave with, the teller. Witnesses described the notes as having been written on white lined paper that was folded or crumpled.

Multiple witnesses to robbery two and a witness to robbery five independently described the vehicle in which the robber fled the scene as a dark or black Toyota 4Runner with gold trim. Witnesses to robberies one, four - ánd five described the perpetrator as having a “casual pretty appearance” or as being “cute” and also as having a blemished or pock-marked complexion. Witnesses to robberies two and four separately described their robber as having a facial appearance “like she just woke up.”

While in general most witnesses to the robberies described the perpetrator as Hispanic, others described her as Asian. For example, individual witnesses to the September robbery, as well as both November robberies, indicated that they would describe the perpetrator as being either “Hispanic or Asian.” The handwriting on the note for robberies one, two and four was independently described by witnesses as “messy,” “flowing” and “sloppy.”

Despite the general and specific similarities in the descriptions of robberies four and five to robberies one through three, SA Richard testified that he and other law enforcement agencies concluded after “thoughtful consideration” that one person committed bank robberies one through three, and a separate person committed robberies four and five. (Doc. 97-3, Ex. G at S-B-0 3779).

On January 2, 2001, SA Richard testified before the grand jury for the purpose of obtaining a superceding indictment charging Ms. Jernigan for robberies two and three as well as robbery one. (Doc. 97, Ex. N). In seeking the superceding indictment, SA Richard did not disclose to Ms. Jernigan’s counsel, the grand jury, or the Assistant United States Attorney who was seeking the superceding indictment, that after the arrest and detention of Ms. Jernigan for robbery one in early November, two similar bank robberies had occurred in Gilbert and Mesa, by a similarly described suspect, and that these bank robberies had features that identified them with the first three robberies.

Although video surveillance was available for robbery four that provided a somewhat clearer image of the perpetrator than the surveillance footage from robbery-one, SA Richard did not show those surveillance photos to any of the witnesses to robberies one through three. Nor, apparently, did he show the victims of robberies four and five the six-pack card photo array featuring Ms. Jernigan.

Beginning in mid-February, a month before Ms. Jernigan’s trial, SA Richard, in combination with Detective Brock, went back to four of the witnesses to robbery one who had less exposure to the robber than had Ms. Chlupsa, the teller. On February 14, 2001 SA Richard returned to the bank and showed Yaranjic Nath and Kathleen Golliher the original six-pack from which Elizabeth Ms. Chlupsa had identified Ms. Jernigan. Detective Brock joined SA Richard at some point during his interview with Kathleen Golliher. Six days later, on February 20, Detective Brock showed Donavon Grierson the original six pack photo array. On March 19, two days before her trial testimony, both SA Richard and Detective Brock showed Elizabeth Hawley the original six pack photo array. All four identified Ms. Jernigan from the six-pack card, and they all subsequently identified her as the perpetrator in their trial testimony.

Prior to trial, Ms. Jernigan moved to suppress Ms. Chlupsa’s identification because the six-pack photo array was overly suggestive. The trial court held an evidentiary hearing and denied the motion. It severed for trial each of the three separate bank robberies with which Ms. Jernigan was charged in the superceding indictment, and set trial for robbery one in March 2001.

At trial, the prosecution introduced the photo line-up into evidence and Detective Brock and SA Richard testified about the process used in the creation of the photo line-up. Ms. Chlupsa testified and identified Ms. Jernigan as the bank robber, as did Nath, Golliher, Grierson and Hawley. The prosecutor also played the bank’s surveillance tape of the robbery. Ms. Jernigan argued that the identifications were in error, but was unaware of evidence of similar bank robberies being conducted by persons of similar description and modus operandi that had occurred after she was taken into custody. The jury convicted Ms. Jernigan for committing robbery one.

Ms. Jernigan appealed her conviction. Two months after her conviction, in light of the conviction, the United States dismissed, without prejudice, counts three and four of the superceding indictment which were the counts relating to robberies two and three. (Doc. 97, Ex. BB).

Seven months later, on December 11, 2001, a sixth similar robbery occurred at the same Bank of America branch that had been the subject of robbery one. The perpetrator was again a short Hispanic/Oriental female. Like robberies one through five, witnesses to robbery six described a short woman in her late twenties or early thirties who was either Hispanic or Asian, with pulled back black hair. As with robberies one and two', the robber pulled a gun out of her purse and pointed it at the victim teller. As with robberies one, four and five, witnesses to the robbery described the perpetrator of robbery six as being “quite attractive,” and as having a blemished complexion. (Doc. 97-5, Ex. L at KR-1064). Similar to the previous robberies, the perpetrator was described as being dressed in jeans and a zippered blue sweat shirt.

After the robbery, a bank employee chased the suspect eastbound through the parking lot into the parking lot of the strip mall. She witnessed the suspect get into a white Isuzi Rodeo with Arizona license plate 150-GRM. (Doc. 97-5, Ex. L at KR1049, 1058-59). Police were able to subsequently apprehend the vehicle. When apprehended, the suspect, Juanita Rodríguez-Gallegos, had in her possession the bait bills given to her when she robbed the bank. Ms. Rodriguez was arrested. The Gilbert Police Department conducted the investigation in which Detective Brock, who had transferred departments by this time, played no role.

Although the FBI assigned SA Richard to investigate the robbery, he did not respond to the scene on the day that the robbery occurred. He did, however, subsequently investigate the crime and arranged for the filing of federal charges. As the FBI agent assigned to the investigation, SA Richard received all of the reports prepared by the Gilbert Police Department.

After the arrest, Sergeant McLaws, the supervisor of the Investigations-Persons Crime Unit at the Gilbert Police Department, advised Detective Palmer that the suspect’s physical appearance was similar to the description given by witnesses of the perpetrator of robbery four. He made no mention of the similar physical appearance to the perpetrator of robbery one, which occurred in the same bank. Detective Palmer researched the file for robbery four and two days later met with Gabrielle Emmons, who was the teller during that robbery. When Sgt. Palmer showed Ms. Emmons a line-up card that contained a photo of Ms. Rodríguez-Gallegos, Ms. Emmons identified her as the robber, circled her photograph and signed the line-up card. Five days later, Detective Palmer met with SA Richard, and, at SA Richard’s request, gave him the photo line-up card signed by Gabrielle Emmons. SA Richard advised Palmer that the FBI would be filing charges against Rodríguez-Gallegos for robbery four. (Doc. 97-5, Ex. L at KR-948^19).

SA Richard subsequently either showed, or arranged for others to show, the line-up card to Allison Williams, the teller in robbery five. Ms. Williams also identified Rodríguez-Gallegos as her robber. (Doc. 97-7, Ex. DD at S-B-0 001016). The next month, Rodríguez-Gallegos was indicted on charges of committing robberies four, five and six. She subsequently entered into a plea agreement in which she admitted committing those robberies but only pled guilty to the charge of using a firearm during the course of robbery six. (Doc. 97-3, Ex. G at SBO 3730-3731, 3775).

There is no indication that Sgt. McLaws or SA Richard raised with Detective Palmer the similarity of Ms. Rodríguez-Gallegos to the perpetrator of robbery one. Richard never investigated whether Rodríguez-Gallegos committed any or all of the robberies attributed to Ms. Jernigan, nor did he ever disclose to the AUSA who prosecuted Ms. Jernigan or the AUSA who prosecuted Ms. Rodríguez-Gallegos the similarities between robberies one through three and robberies four through six.

Ms. Jernigan’s conviction for the September 20, 2000 robbery was affirmed on appeal in August, 2002.

Eventually Rodríguez-Gallegos was assigned to the samé prison complex that housed Ms. Jernigan. When Ms. Jernigan heard of Rodriguez-Gallegos’s arrest and conviction for the similar robberies, she sought relief from her conviction based on the government’s failure to disclose the subsequent similar robberies committed by Rodríguez-Gallegos.

The Court granted an evidentiary hearing on this motion on May 12-13, 2004. SA Richard was the only witness to testify at this hearing. In addition to SA Richard’s testimony, evidence was admitted including photo stills from the surveillance videos taken of robbery one and four, individual booking photographs of Rachel Jernigan and Juanita Rodriguez-Gallegos, the six-pack photo lineup from which some witnesses had identified Ms. Jernigan, and a statement from Kathleen Golliher opining that the robberies were committed by two separate women.

After considering the testimony and the evidence, the trial judge denied Jernigan’s Motion for a New Trial. His ruling was affirmed by a divided panel of the Ninth Circuit, United States v. Jernigan, 451 F.3d 1027 (9th Cir.2006) (hereafter Jenligan I), but was ultimately reversed by a 13-2 en bane panel in Jernigan II. United States v. Jernigan, 492 F.3d 1050 (9th Cir.2007).

During a subsequent interview in prison in 2008, Gallegos confessed, in addition to the three robberies to which she had already admitted, to robbery one, robbery two and maybe one other robbery, the location of which she could not remember. She stated that she brought her gun with her on all of her robberies although it was unloaded. She further admitted to using a black Toyota 4Runner as a vehicle during at least the first three of her robberies.

The United States ultimately dismissed the indictment against Ms. Jernigan for robbery one. She was released after she had been incarcerated for approximately seven years and three months.

ANALYSIS

In counts one and two of her complaint, Plaintiff brings § 1983 claims against Defendants McLaws, Brock, Landgraf and Richard for Brady violations, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and for malicious prosecution. At oral argument, however, Plaintiff conceded that she stated no claims against SA Richard in Counts One and Two and that she has abandoned any conspiracy claims filed in her complaint. As a result, Plaintiffs Bivens claims against SA Richard for Brady violations and malicious prosecution are contained in counts four and five of her complaint. At oral argument, Plaintiff also conceded that any supervisory liability claims she brought against McLaws in Count Three are not distinct from the claims she asserts against him in Counts One and Two. Count Three is therefore dismissed.

In Count Six, Plaintiff asserts a state malicious prosecution claim against all Defendants including the Town of Gilbert based on the assertion that the Town of Gilbert is vicariously liable for the malicious prosecution committed by its police officers.

I. Brady Claims against the Defendants

To provide due process, the government has a constitutional obligation to disclose to a criminal defendant before trial material, exculpatory evidence known to it. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While the exculpatory information of which the government is aware must be turned over prior to trial, the government may not consider accruing evidence in a criminal investigation on a piecemeal basis. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding that the government must gauge the likely net effect of all undisclosed evidence “and make disclosure when the point of ‘reasonable probability’ is reached”); United States v. Bagley, 473 U.S. 667, 682-84, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that exculpatory evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”). As a result, information that may be deemed immaterial upon original examination may become material1 as additional evidence is uncovered. Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (holding that “the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress”). Accruing information in a criminal investigation may make some information exculpatory that was not originally so perceived. And the obligation to evaluate whether accruing information is exculpatory, and to disclose such information, continues even after conviction. Tennison v. City & County of San Francisco, 570 F.3d 1078, 1094 (9th Cir.2009) (“The Brady duty to disclose is ongoing and extends to all stages of the judicial process, before trial, during trial and after conviction; failure to do so is a violation of the judicial process.”); Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir.2003) (“A prosecutor’s decision not to preserve or turn over exculpatory material before trial, during trial, or after conviction is a violation of due process under [Brady ].”); Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir.2001) (stating that “Brady requires disclosure of information that the ’ prosecution acquires during the trial itself, or even afterward”); Smith v. Roberts, 115 F.3d 818, 820 (10th Cir.1997) (agreeing with the state’s concession that the Brady “duty to disclose is ongoing and extends to all stages of the judicial process” where the evidence arose after trial but during direct appeal.)

Defendants acknowledge, as they must, that the Ninth Circuit has already held that the government committed a Brady violation in failing to disclose to Ms. Jernigan the exculpatory evidence regarding the subsequent similar robberies that occurred after she was in custody. See Jernigan II, 492 F.3d at 1057. Defendants, however, move for summary judgment on several related grounds. First, they assert that Plaintiff cannot demonstrate that any Defendant acted with the deliberate indifference to her rights that is required for Plaintiff to make out a § 1983 claim or a Bivens claim for a Brady violation. Second, they assert that they are entitled to qualified immunity for several different reasons. Each of these arguments .will be addressed in turn.

II. Deliberate Indifference

To successfully bring a § 1983 claim, Plaintiff must establish that each Defendant has “acted with deliberate indifference to or reckless disregard for an accused’s rights or for the truth in withholding evidence from prosecutors.” See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (Plaintiff must establish “that each Government-official defendant, through the official’s own individual actions, has violated the Constitution”); Tennison, 570 F.3d at 1088 (“[A] § 1983 plaintiff must show that police officers acted with deliberate indifference to or reckless disregard for an accused’s rights or for the truth in withholding evidence from prosecutors.”). Plaintiff “must set forth specific facts as to each individual defendant’s deliberate indifference.” Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988). Moreover, “[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Id. at 633.

On a motion for summary judgment, therefore, the Plaintiff must put forth facts that would allow a reasonable jury to find that he or she acted with at least “deliberate indifference” to the Plaintiffs rights. “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002). Plaintiff has successfully done so here with each of the Defendants with the exception of David Landgraf.

A. SA Kyle Richard

The defendants in each of the six robberies at issue in this case were charged in federal court. Each of the six robberies was either resolved by a federal plea agreement or dismissed without prejudice in light of earlier convictions. The FBI was the lead federal agency investigating these crimes. Defendant Kyle Richard was the agent in charge of investigating all six of the bank robberies for the FBI. (Doc. 97, Ex. G. at S-B-0 003710 and 003711).

As the FBI case agent for each of these six robberies, Agent Richard conducted interviews and actively participated in the investigations — particularly the interviews of the victim/tellers. SA Richard had copies of all of the investigative files prepared by the municipal police departments including the interviews of other witnesses they conducted. He reviewed all the witness statements. He further acknowledges that he was well aware of his obligation to turn over any evidence that exculpated Ms. Jernigan.

SA Richard obtained an indictment for Ms. Jernigan for the first robbery and took custody of her after she was arrested on November 10, 2000. After Ms. Jernigan’s detention, he immediately became aware of, and was assigned to investigate, robberies four and five. Both robberies four and five occurred within a few weeks of robbery number three, and all five robberies occurred within approximately a two month period. Both were in the same general region as robberies one through three. Both were committed by a woman whose physical description including race, age, appearance, and clothing were similar to the witness descriptions given of the perpetrator(s) of robberies one, two and three.

Further, the independent witness descriptions of the perpetrator of robbery numbers four and five had additional and independent similarities with the witness descriptions of the perpetrator of robberies one and two. The perpetrator or perpetrators of robberies number one, four and five were all similarly described by witnesses as “pretty” or “cute.” Witnesses to these same robberies described their perpetrator as having a blemished complexion. Witnesses to robberies number two and four independently described the perpetrator of their respective robberies as having a facial appearance that made it look “like she just woke up.” Witnesses to robberies two and five independently described the perpetrator’s car as a dark Toyota 4Runner with gold trim. SA Richard was aware that the teller in robbery two did not identify Ms. Jernigan as her bank robber, yet she believed that the person who robbed her was also probably the same person who committed robbery one. The FBI believed the same thing.

In light of the similar descriptions of the five robberies, SA Richard asserted in previous testimony that he and other law enforcement personnel “thoughtfully considered” whether the perpetrator of the subsequent robberies could be the same as the perpetrator for robbery one for which he had already charged Ms. Jernigan. However, he did not disclose to Ms. Jernigan or to her prosecutor the similarities in those robberies. He also did not show witnesses to robberies one through three available surveillance photos of the suspect for robbery four. However, he did, thereafter, testify at the grand jury in support of obtaining a superceding indictment charging Ms. Jernigan with robberies two and three without disclosing the occurrence of robberies four or five to anyone.

Shortly prior to Ms. Jernigaris trial on robbery one, SA Richard sought out additional witnesses to robbery one and showed them the original photo six-pack containing Ms. Jernigan’s photo. He did not show these witnesses the surveillance photos of the suspect from robbery four.

When, nine months later, Juanita Rodríguez-Gallegos was arrested for robbing the same bank that Ms. Jernigan had been convicted of robbing, SA Richard was assigned the case by the FBI. Ms. Rodríguez-Gallegos was convicted on federal charges for that crime. Ms. Rodriguez’s description matched that given by witnesses of the perpetrator of robberies one through five, and the details of the robbery matched many details of the previous five robberies. SA Richard was informed by Detective Palmer that he had shown the victim/teller of robbery four, that had occurred a year earlier, a six-pack photo array that contained Ms. Rodríguez-Gallegos. That witness, Ms. Emmons, identified Ms. Rodríguez-Gallegos as her bank robber. SA Richard was aware that the victim/teller of robbery five also identified Ms. Rodríguez-Gallegos as her robber.

He did nothing to show a photograph of Ms. Rodríguez-Gallegos to any of the witnesses to robberies one through three, or to disclose to Ms. Jernigan or her prosecutor the arrest of Ms. Rodríguez-Gallegos, the three similar bank robberies occurring after her arrest, or the identification of Ms. Rodríguez-Gallegos as the perpetrator of the last three of those robberies.

Even though Ms. Jernigan was convicted of robbery one in March 2001, SA Richard had a continuing obligation to disclose exculpatory information of which he became aware. See, e.g., Tennison, 570 F.3d at 1094; Brown, 320 F.3d at 1030. When, years later Ms. Jernigan independently discovered that Rodríguez-Gallegos, who had the same general physical condition as she did, had been convicted for committing similar crimes at the same time and in the same general area, she moved for a new trial. SA Richard was the only witness to testify at the hearing on that motion. As will be demonstrated in additional detail, in his testimony he made factually inaccurate statements that wrongfully tended to implicate Ms. Jernigan in robbery one. He further testified that distinctions in the witnesses’ descriptions resulted in a consensus among law enforcement officers that there were two distinct perpetrators of the six robberies, one perpetrator for robberies one through three and another perpetrator for robberies four through six. However, a careful review of the witness statements to the robberies demonstrates that all of the purported distinctions to which he testified are illusory. Further, he offers no admissible evidence that there was any such consensus within the FBI or among the any local law enforcement agencies which may have been investigating the robberies.

Based on the above evidence and law, a reasonable jury could find that SA Richard not only acted with negligent indifference or reckless disregard with respect to Ms. Jernigan’s rights, but that he intentionally deprived her of her right to due process to avoid calling into question her guilt for robbery one.

B. Detective Brock

There are possible factual disputes which a reasonable jury could resolve to find that Detective Brock was aware of the exculpatory facts pertaining to Ms. Jernigan, that she should have disclosed them, and that she was deliberately indifferent to Ms. Jernigan’s rights in failing to do so. The Town correctly asserts that Detective Brock cannot be liable under § 1983 for conducting a negligent investigation. Nevertheless, Detective Brock was the Town officer charged with the investigation, and a reasonable jury could conclude that she knew of facts that were exculpatory as to Jernigan that she did not disclose. The question thus presented is not what Detective Brock did not know that she should have known, but whether Detective Brock knew exculpatory facts that she failed to disclose. Because there are material issues of fact as to whether Detective Brock knew of material exculpatory evidence that she did not disclose, Ms. Jernigan’s 1983 claim is for more than a negligent investigation, and summary judgment will not be granted to Detective Brock on this basis.

It is undisputed that Detective Brock was the Gilbert “detective assigned to” the investigation of robbery one. In that capacity, she prepared a crime bulletin describing the suspect and containing a surveillance photo of her which she distributed to other local police departments in the area. This crime bulletin would have been posted in the Gilbert Police Department patrol report writing room and/or placed in the briefing book.

As the assigned investigator, Detective Brock prepared the report and supplements concerning the investigation. Detective Brock was supplementing her report and her investigation, and did not complete it, until at least mid-February of 2001. During the time of her investigation, Brock became aware of robbery two in Tempe. She also became aware that the teller/victim of that bank robbery believed that the perpetrator was the same person that had committed robbery one.

Robberies three through five, including robbery four in Gilbert, also occurred during the period in which Brock was still investigating and writing her report on robbery one. SA Richard, the same FBI agent who was working with her on robbery one, was assigned to investigate all of these subsequent robberies in both Gilbert and other municipalities. He testified that to the extent he had communication with the Town throughout his investigation of robbery one, he spoke principally with Detective Brock. Detective Brock was not assigned to investigate robbery four, but Detective Estavillo, another officer from the Investigations-Persons Crime Unit, was. The Investigations-Persons Crime Unit was charged with, among other things, investigating bank robberies within the Town. That unit consisted of five or six people and was housed in a trailer north of the Gilbert Police Station. It was a very small closed environment. Sergeant McLaws, the supervisor of the unit, testified that “[j]ust the size [of the unit] would lend to the exchange of information.” What appear to be admissible statistical compilations indicate there were only two bank robberies in Gilbert in the year 2000. The jury could, on such evidence, reasonably conclude that bank robberies one and four were the only bank robberies that occurred in the Town of Gilbert in that year.

Further, robbery four took place directly across the intersection from robbery one. Estavillo created a Crime Bulletin for robbery four that described the similar suspect and which was posted in the patrol report writing room and placed in the briefing book. Brock acknowledges that the detective trailer and the patrol report writing room were 50 feet apart, and she did go into the patrol report writing room during this period. As such, a reasonable jury could conclude that Brock was aware of the details of robbery four and that to the extent she was aware of it, she was also aware of its exculpatory value in the investigation of robbery one. Reid v. Simmons, 163 F.Supp.2d 81, 91 (D.N.H.2001) (holding that “[t]o be sure, there may be cases in which a police officer is aware of evidence located in a separate investigative file that is so patently exculpatory ... that it may fairly be inferred that the officer fully appreciated its legal significance in the case at hand”).

There are facts from which á reasonable jury could conclude that Detective Brock was aware of more than just robberies one, two and four. SA Richard testified that there was a weekly robbery meeting occurring throughout this period that was located at the Phoenix Police Department to which all the local police departments sent representatives. He testified that Ms. Jernigan and robberies attributed to her (robberies one through three) were thoughtfully considered and compared with subsequent robberies by the law enforcement agencies involved. (Doc. 97, Ex. G at S-B-0 003790).

Further, Detective -Brock continued to investigate or assist in the investigation and prosecution of Jernigan well after the commission of robberies four and five. Prior to trial, in February 2001 Detective Brock assisted SA Richard in photographing various areas of the bank. Her photos were subsequently released to the FBI to analyze the height of the perpetrator. On February 14, 2001, SA Richard interviewed bank employees Nath and Golliher at the Bank of America branch that had been robbed. Brock was present with Richard during part of Richard’s interview of Golliher. The next day, Brock and Richard testified at the hearing on Ms. Jernigan’s motion to suppress the identification of Ms. Chlupsa. Five days later Brock showed the six-pack photo array for the first time to Donovan Grierson — another witness to robbery one. The next month, a day before Ms. Jemigan’s trial began, Brock accompanied Richard to show the six-pack photo array for the first time to witness Elizabeth Hawley. Detective Brock and SA Richard further testified at Ms. Jernigan’s trial.

To the extent that Brock and Richard continued to work on this investigation throughout this period, a jury would not be unreasonable in concluding that Brock acquired knowledge of the existence of the other similar robberies that Richard was investigating and with which Jernigan was charged, in addition to the similar robberies with which she was not charged.

To the extent that Brock asserts that she was unaware of these robberies or their details, that does not entitle her to summary judgment when there is evidence in the record from which a reasonable jury could conclude otherwise. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002) (holding that uncorroborated and self-serving testimony does not create or negate a genuine issue of fact). Therefore she is not entitled to summary judgment on her assertion that there are no material facts raising a question as to whether she violated Ms. Jernigan’s constitutional rights.

C. Sergeant Randall McLaws

Even assuming that Sergeant McLaws did not know about the similar robberies occurring in other municipalities, three out of the six robberies at issue here occurred within the Town of Gilbert. He participated to some extent in the investigation of all of those robberies, and all were investigated by Detectives who were under his supervision.

He responded to the scene at robbery one, at which time he directed the “on-scene police officers in securing the scene and processing the scene for evidence.” (Doc. 97-2, Ex. B ¶ 9). There is also evidence that may indicate that Sergeant McLaws actually responded to both robberies four and six. Although he does not

A supervisor may be liable for a subordinate’s violation of another’s constitutional rights if he acted knowingly or with deliberate, reckless indifference. Tennison, 570 F.3d at 1088-89. However, “willful blindness” requires “deliberate actions to avoid” confronting the facts presented. United States v. Heredia, 483 F.3d 913, 918 n. 4,(9th Cir.2007). “Supervisors who are merely negligent in failing to detect and prevent subordinates’ misconduct are not liable, because negligence is no longer culpable under section 1983.” Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.1988) (upholding jury verdict against a supervisory police officer because “there was ... enough evidence to enable the jury to infer that” he had concealed an exculpatory report). See also Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir.2008). To be liable, therefore, the supervisor “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.” Jones, 856 F.2d at 992-93. specifically recall whether he did so, he nevertheless agrees he was generally aware of the incidents and gave direction to the Gilbert police personnel on scene about processing evidence. He was also aware of the suspect’s description in all three crimes.

In addition to being Detective Brock’s supervisor and reading and approving all of her reports, including the reports concerning robbery one, he was also the supervisor of Detective Estavillo, who investigated robbery four, and Detective Palmer, who investigated robbery six. The Investigations-Persons Crimes Unit, which he supervised, was charged with investigating bank robberies that occurred within Gilbert. There is admissible evidence from which a jury could conclude that robbery one and robbery four were the only bank robberies that occurred within Gilbert in 2000. As has been previously discussed, the unit was small and, according to Sergeant McLaws lent itself to the efficient exchange of information . Further he testified that to the extent,he was aware of information from one investigation that was relevant to another officer’s investigation, he would share that information. Crime bulletins were posted in the Unit.

After robbery six, Sergeant McLaws discussed with Detective Jim Palmer the similarities of the witnesses description of the suspects in both robbery four and robbery six. There is no evidence that Sergeant McLaws raised with Detective Palmer, or anyone else, the similarities between those two robberies and robbery one. There were, however, if anything, more similarities between robberies four and six and robbery one than there were between robbery six and robbery four. Robberies one and six were of the very same bank, and in both robberies the perpetrator was described as pointing a gun at the teller, which was not the case for robbery four which occurred just across the intersection. Robberies one and four occurred only two months apart, while there was more than a year between robbery four and robbeiy six. A reasonable juror could conclude that when Sergeant McLaws raised with Detective Palmer the similarities between robbery six and robbery four, Sergeant McLaws realized those same similarities also applied to robbery one. A reasonable juror could also conclude that Sergeant McLaws did not raise those similarities with Detective Palmer because he was aware that an arrest and conviction had already occurred for robbery one.

Even assuming Detective McLaws did not realize that the subsequent robberies formed a pattern of exculpatory conduct that would exculpate Jernigan from having committed the first until after the last was committed, he would still be required to disclose the subsequent robberies at the time he came to this realization. As has been previously discussed, Jernigaris intervening conviction does not remove from law enforcement the responsibility to disclose exculpatory evidence of which it becomes aware. Tennison, 570 F.3d at 1094; Broam, 320 F.3d at 1030.

Thus, although a jury might draw other conclusions, there is evidence from which a reasonable jury could conclude that Sergeant McLaws was aware of exculpatory facts concerning Ms. Jernigan that he failed to disclose and that he was deliberately indifferent to her rights in not doing so.

D. Officer David Landgraf

With respect to David Landgraf, there is no factual basis set forth by Plaintiffs sufficient for a reasonable juxry to find that he acted “with deliberate indifference to or reckless disregard for” her rights. See, e.g., Tennison, 570 F.3d at 1088. There is no evidence that he ever had responsibility for investigating, or supervising the investigation of, any of the robberies at issue here. Nor is there evidence that he was in a position to become aware that there existed exculpatory facts with respect to Ms. Jernigan that were not disclosed. He assisted in the initial investigation of robbery number one to the extent that he assisted in removing still photographs from the bank’s surveillance tape, and assisted SA Richard and Detective Brock in operating the software necessary to create the six-pack photo array. Approximately fifteen months later he apparently provided perimeter security at the scene of robbery number six. Plaintiffs offer no evidence that he was ever involved with robbery number four, that he ever had any investigative role with respect to robberies one, four or six, or that, during the relevant period he was in a position to realize that there were similarities in the three robberies that should have been disclosed. There is, therefore, no factual basis from which a reasonable jury could find that David Landgraf deprived Ms. Jernigan of a constitutional right by acting “with deliberate indifference to or reckless disregard for” her rights. See, e.g., Tennison, 570 F.3d at 1088. Any § 1983 claim against him is, therefore, dismissed.

With the exception of Officer Landgraf, however, there is evidence from which a reasonable jury could find that the remaining Defendants acted with at least deliberate indifference for Plaintiffs rights.

III. Qualified Immunity

A law enforcement officer is entitled to qualified immunity unless: (1) he or she deprived the Plaintiff of a significant constitutional right; and (2) that constitutional right was “clearly established” at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 239-41, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Defendants here assert that neither of these requirements are met.

In making a qualified immunity determination, the Court does not consider the subjective knowledge or intent of the individual defendant, but applies an objective standard. See Anderson v. Creighton, 488 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Grant, 315 F.3d at 1090 (holding that if, when “viewed in the light most favorable to the non-moving party, there [is] enough evidence for a reasonable jury to conclude that reasonable officers would not have acted as did [the Defendants]” then the officer is not entitled to qualified immunity). Of course, sometimes even an objective evaluation requires the resolution of a factual dispute. When that is the case, the factual question must be resolved by the jury. Ortega v. O’Connor, 146 F.3d 1149, 1154 (9th Cir.1998). See also Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir.1997) (quoting Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir.1993)).

A. Whether Defendants Deprived Plaintiff of a Constitutional Right

While acknowledging that it has already been conclusively determined that Ms. Jernigan was deprived of her constitutional rights by their collective action or inaction, Defendants assert that when their actions are objectively judged on an individual basis, as they must be for purposes of determining qualified immunity, they did nothing to deprive the Plaintiff of her constitutional rights.

In this case there are no factual disputes pertaining to what SA Richard knew or the facts that were provided to him with respect to all six of the robberies at issue here. There is no need to restate the facts pertaining to SA Richards’ role in the investigations of all six similar robberies. Based on an objective standard, his acts were sufficient in themselves to violate Ms. Jernigan’s constitutional rights.

With respect to Detective Brock and Sergeant McLaws, however, even an objective determination ultimately depends upon what Defendants actually knew when they failed to act. In this case an allegation that Defendants should have known certain facts that they did not know is insufficient to state a § 1983 claim. Because, however, there are facts upon which a reasonable jury could conclude that Brock and McLaws did have sufficient knowledge to have deprived Plaintiff of her constitutional rights, the questions of fact bearing upon whether Detective Brock and Sergeant McLaws are entitled to qualified immunity must be decided by a jury.

B. Whether Ms. Jernigan’s Right Was Clearly Established

In determining whether a right is clearly established, the Court must not focus on “broad general proposition^]” but on “the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Thus the relevant inquiry is whether “a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). As the Court further explained in Wilson,

In Anderson, we explained that what “clearly established” means in this context depends largely “u on the level of generality at which the relevant ‘legal rule’ is to be identified.” ... “[C]learly established” for purposes of qualified immunity means that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”

Id. at 614-15, 119 S.Ct. 1692 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). See also Tennison, 570 F.3d at 1093-94 (holding that “[f|or a legal principle to be clearly established it is not necessary that the very action in question has previously been held unlawful, ... [r]ather [t]he dis-positive inquiry is ‘whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted’ ”) (quoting CarePartners, LLC v. Lashway, 545 F.3d 867, 883 (9th Cir.2008)).

Defendants acknowledge that Brady clearly established that the prosecutor must disclose to the defendant material exculpatory evidence of which he or she is aware prior to trial. That principle was established in 1963. This principle has been applicable to police officers and agents since 1995 at the very latest. Kyles, 514 U.S. at 437-38, 115 S.Ct. 1555 (“We have held that exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it, and by allowing the prosecutor to tell the investigators not to give him certain materials unless he asked for them.”.). See also Tennison, 570 F.3d at 1087 (“[E]xculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does.”); United States v. Blanco, 392 F.3d 382, 388 (9th Cir.2004) (noting that “a prosecutor’s duty under Brady necessarily requires the cooperation of other government agents who might possess Brady material”); United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir.1995) (holding that “it is the government’s, not just the prosecutor’s, conduct which may give rise to a Brady violation”).

Similarly, it has long been established in this Circuit that exculpatory evidence includes evidence that tends to prove that someone other than the defendant committed a crime by showing that “other crimes similar in detail have been committed at or about the same time by a person other than the defendant.” United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir.1991). See also United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.1996) (“[fundamental standards of relevancy ... require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.”) (quoting United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980)); United States v. Brannon, 616 F.2d 413, 418 (9th Cir.1980), cert. denied, 447 U.S. 908, 100 S.Ct. 2993, 64 L.Ed.2d 858 (1980) (“A defendant is entitled tq prove his innocence by showing that someone else committed the crime.”). Before disclosure is required in such cases, however, identifying factors tying the other crime or crimes with the crime for which the defendant is charged must be “sufficiently distinctive to warrant an inference that the person who committed the act also committed the offense at issue.” United States v. Luna, 21 F.3d 874, 879 (9th Cir.1994) (quoting Perkins, 937 F.2d at 1400). See also United States v. Andrini 685 F.2d 1094, 1097 (9th Cir.1982).

Smith v. Almada, 640 F.3d 931 (9th Cir.2011), cited by Defendants, does not set forth a contrary rule; it merely illustrates the principle. In Smith, Plaintiff had been arrested for setting fire to a consignment furniture store. The fire had been started by five gallon water bottles stuffed with papers and gasoline. Some of the papers were envelopes with Smith’s name and address on them. When Smith was acquitted of the criminal charges, he brought § 1983 claims against the local police for, among other things, their failure to disclose a series of dumpster fires set at an address neighboring the furniture store that had occurred before Smith’s dispute with the store. One of those previous dumpster fires was possibly set by a similar mechanism — “possible chemical based incendiary device in a plastic container.” Id. at 934. In determining that the disclosure of the previous adjacent dumpster fires were not “sufficiently distinctive to warrant an inference that the person who committed [the other crime or crimes] also committed the offense at issue,” Andrini 685 F.2d at 1097, and thus did not have to be disclosed by the police to Smith, the district court noted that “[witnesses to the dumpster fires described various suspects with very different appearances, suggesting there was no repeat offender who might have later started the February 2003 . fire.” Smith, 640 F.3d at 939. Because the witness descriptions of the various perpetrators of the dumpster fires were all different from each other, no additional facts were “sufficiently distinctive” to suggest the existence of a repeat offender setting dumpster fires in the adjacent neighborhood. Thus, the Ninth Circuit upheld the ruling of the district court that the police were not obliged to disclose the prior dumpster fires.

To the same effect is United States v. Perkins, which has some instructive similarities and distinctions from the facts in this case. 937 F.2d 1397 (9th Cir.1991). Perkins had been originally charged with four bank robberies, but three of the charges had been dismissed before Perkins’ trial. Each of the four robberies had been committed by a perpetrator or perpetrators who wore various disguises, approached the teller with something in which to carry the money, handed the teller a note, requested the money, and told the teller not to push any buttons. Id. at 1400. Perkins claimed that he was at work during two of the four robberies (although not the one for which he was tried). Id. Perkins made no attempt to show physical similarities in descriptions offered by witnesses to the perpetrator or perpetrators of all four of the robberies, or even a similarly recurring disguise. Rather he sought to show that in two of the four robberies the perpetrator used a tennis racket cover to carry away the robbery proceeds. Id.

In not allowing such evidence into trial, however, the court noted that the perpetrator of the crime for which Perkins was charged had not used a tennis racket cover to carry away the robbery proceeds. Per kins, 937 F.2d at 1400-01. Nor was there anything else sufficiently distinct about the description of the perpetrator or the modus operandi of the other three dismissed robberies that would serve to identify the perpetrator of the other robberies with the one for which Perkins was charged. Id.

Such facts are quite distinct from those presented here. Unlike in Smith or Perkins, the physical description of the suspect here (short, Hispanic female) was strikingly similar from crime to crime to crime. Further, in specific particulars the description recurred for both some of the robberies with which Ms. Jernigan was charged, and for some of the robberies that she could not have committed (pretty, with acne, with a “stretched appearance”). The witnesses’ descriptions of her clothing, and her getaway vehicle were also virtually identical. Further, to at least some extent, her modus operandi had some similarities between the crimes. The first five robberies occurred in a compressed period of time. Thus, unlike Smith or Perkins, there both was both direct and circumstantial evidence that was sufficiently distinct to link the crime with which Jernigan was charged to crimes that she could not have committed. Thus neither Smith nor Perkins suggests that the exculpatory nature of the information in this context was not clearly established.

Defendants further assert that United States v. Jernigan, 492 F.3d 1050 (9th Cir.2007) (Jernigan II) creates new law. Defendants argue that for the first time Jernigan II requires law enforcement to turn over exculpatory information concerning subsequent similar crimes even when those separate crimes were committed by suspects who did not look like the suspect of the crime at issue. Such a characterization, however, distorts Jernigan II’s holding beyond recognition.

In virtually all cases involving a series of crimes that contain distinct similarities, law enforcement cannot know, and they did not know here, whether separate suspects are involved. In such circumstances where the similarities are “sufficiently distinctive to warrant an inference that the person who committed [the other crime or crimes] also committed the offense at issue,” it has long been clearly established that the evidence is exculpatory and, thus, law enforcement is obliged to disclose it to the defendant. Perkins, 937 F.2d at 1400. Jernigan II did nothing to add to or take from that rule.

Upon Ms. Rodriguez-Gallegos’s arrest, nine months after Jernigan’s conviction, it could be discerned that she and Jernigan are not the same person even though they share some general physical similarities. But, that fact, without more, exculpates Ms. Jernigan at least as much as it inculpates her. And, even if it did, somehow, inculpate Ms. Jernigan, it could not have been discerned until nine months after Ms. Jernigan’s conviction. Prior to that time all that law enforcement knew is that they had a series of similar crimes committed by a similarly described perpetrator. Thus, it could not provide a basis upon which SA Richard could claim that Jernigan’s right to the exculpatory information he knew before her trial was not clearly established.

If an objective person could discern from the surveillance tape of the first robbery that Ms. Jernigan committed it, or at least, that the perpetrator portrayed in the surveillance tape from robbery