Davis v. Clark County (966 F. Supp. 2d 1106, 2013)

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Defendants’ Motion for Summary Judgment. Dkt. 25. The Court has considered the pleadings filed regarding the motion, argument of counsel heard on August 1, 2013, and the remaining file.

This case arises from a series of tragedies. It was filed by two men who were convicted in 1993 of brutally raping a woman and spent 17 years in prison as a result. In 2010, deoxyribonucleic acid (“DNA”) testing resulted in their exoneration. In this civil suit, they seek damages against Detective Donald Slagle, who was the head investigator of the crime, and against Clark County, Washington, Det. Slagle’s employer, asserting that Det. Slagle and Clark County violated their constitutional due process rights and committed various state torts against them. Dkt. 1. In the pending motion, Det. Slagle and Clark County seek summary dismissal of the claims against them. For the reasons set forth below, the motion should be granted, in part, and denied, in part. Due to the complexity of this case, a table of contents is provided.

TABLE OF CONTENTS

I.FACTS AND PROCEDURAL HISTORY

A.BACKGROUND FACTS

1. Rape of Kan Morrison

2. Investigation

a. Reports Received that Dark Haired Assailant looks like Mr. Northrop

b. Photo Montage of Mr. Northrop and Ms. Morrison’s Non-Identification of Mr. Northrop

c. Interview of Steve Shade

d. Ms. Morrison Identifies Mr. Davis in Photo Montage

e. Interview of Mr. Northrop and Arrest on other Charges

f. Interview and Arrest of Mr. Davis

g. Ms. Morrison Hears of Suspects

h. Mr. Davis’s Lineup

i. d. Detectives Talk with Ms. Morrison before Mr. Northrop’s Lineup; Mr. Northrop’s Lineup & Arrest

j. Reports from Neighbors of the Home Where Attack Occurred

k. Discussion of Cases among Clark County Detectives

3. Mr. Davis’s Trial

4. Mr. Northrop’s Trial

5. Post Conviction Appeals

6. Post Conviction DNA Testing

7. Proceedings before Clark County Superior Court in 2010

8. Archived Box Produced to Plaintiffs in 2018 and other Recent Discovery

B. PROCEDURAL HISTORY

C. PENDING MOTION

D. ORGANIZATION OF OPINION

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

B. FEDERAL CLAIMS

1.Collateral Estoppel

a. Collateral Estoppel Regarding Due Process Claims based on Overly Suggestive identification Procedures

i. Whether Mr. Davis is collaterally estopped from making his current claim that the identification procedures (the photo montage and live line up) violated his due process rights?

in Whether Mr. Northrop is collaterally estopped from making his current claim that the identification procedures (the photo montage and live line up) violated his due process rights?

b. Collateral Estoppel Regarding Due Process Claims Based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

i. Whether Mr. Northrop is collaterally estopped from making his current claim that the failure to disclose Ms. Morrison’s non-identification of him in the photo montage three days áfter the rape violated his Brady based due process rights?

ii. Whether Mr. Davis is collaterally estopped from making his current claim that the failure to disclose Ms. Morrison’s nonidentification of Mr. Northrop in the photo montage three days after the rape violated his Brady based due process rights?

iii. Whether Mr. Northrop and Mr. Davis are collaterally estopped from making their Brady claim regarding the non-disclosure of Ms. Morrison being under investigation for embezzlement at the time?

2. Due Process Claims Based on Brady Violations and Qualified Immunity

a. Failure to Turn Over Information About the Investigation of Ms. Morrison-Violation of Dr. Davis and Mr. Northrop’s Due Process Rights?

b. Failure to Disclose the Exact Date of Ms. Morrison’s Non-Identification of Mr. Northrop — Violation of Mr. Davis’s Clearly Established Due Process Rights ?

c. Failure to Disclose Information on Other Suspects-Violation of Mr. Davis and Mr. Northrop’s Clearly Established Due Process Rights?

3. Due Process Claims Against Clark County Under § 1988

C. STATE LAW CLAIMS

1. Statute of Limitations

2. Negligent Investigation Against Det. Slagle and Clark County

3. Negligent Training, Supervision, and Retention Claim Against Clark County

a. Clark County Liability based on Vicarious Liability for Det. Slagle’s Investigation

b. Clark County Liability Based on Independent Duty to Train and Supervise — for Actions Outside the Scope of Employment

D. CONCLUSION

III. ORDER

The body of the Order now follows.

I. FACTS AND PROCEDURAL HISTORY

A. BACKGROUND FACTS

The Court is mindful that at oral argument, Plaintiffs’ motions to strike certain of Defendants’ exhibits and attachments were granted. As a result, the following facts are gleaned from the remaining record which was provided by the non-moving party (including police reports, some of the testimony heard during the criminal trials, and deposition testimony taken for purposes of this litigation) and may or may not reflect all the facts and evidence that may be admitted at trial.

1. Rape of Kari Morrison

The following facts are taken from a March 17, 1993 interview of Kari Morrison by Deputy Prosecutor Robert Shannon, investigator Steven Teply, and victim advocate Janet Ragan. Dkt. 41-20.

On January 11,1993, Kari Morrison was cleaning a home in La Center, Washington. Dkt. 41-20, at 3. She left the front door of the residence open so that she could retrieve cleaning supplies from her truck. Id. She began work around 9:30 a.m. Dkt. 41-20, at 3. After ten or fifteen minutes, two men broke into the home and attacked her. Dkt. 41-20, at 9. One man was blonde and large and the other was smaller with dark hair. Id. They had gloves on. Dkt. 41-20, at 9. A violent struggled ensued. Id. Ms. Morrison states that she got a better look at the dark haired attacker because the blonde attacker primarily stayed behind her and held her. Id., at 11. Eventually, the men dragged her to the kitchen, placed duct tape over her eyes, and tied both arms and one leg to the kitchen table. Id., at 13-15. The dark haired attacker cut a hole in her pants and raped her with a foreign object. Id., at 16-18. Ms. Morrison then heard tearing of something that sounded like a condom package. Id., at 19. She stated that the blonde assailant said something like “you don’t have time for that,” and the other replied “well, I’m not doing her without it.” Id. Ms. Morrison stated that the dark haired assailant then raped her while the blonde one held her down. Id. She stated that then she heard a horn honking and the blonde attacker said something like “come on we got to go, you know that’s our signal.” Id., at 20. Ms. Morrison struggled to the phone and called 9-1-1. Id. Ms. Morrison was rushed to the emergency room. Id. A medical examination was done. Id. This concludes the facts taken from the March 17, 1993 interview.

DNA testing from samples collected at the hospital were consistent with Ms. Morrison and her then boyfriend. Dkt. 41-13, at 4.

2. Investigation

According to his January 19, 1993 police report, Det. Slagle was dispatched to the scene around 10:30 a.m. Dkt. 41-21. He then went to the hospital and talked with Ms. Morrison right after she received medical treatment. Dkt. 41-21, at 3. At the hospital, she gave Det. Slagle the following descriptions of the men who had attacked her: “# 1 [w]hite, male, early to mid 20’s, 5'10" tall, 170 pounds, dkt. bro. hair, dark eyes, medium complexion, ear length hair and long around the face” and “#2 [w]hite, male, early to mid 20’s, 6'1" tall, 210 pounds, shoulder-length, dirty blonde hair, very fair complexion with ‘pink’ spots on the face, muscular.” Dkt. 41-21, at 4. Det. Slagle reported that he contacted the homeowner and that nothing was missing from the residence. Dkt. 41-21, at 6.

The next day, Clark County Officer Jana Anderson interviewed Ms. Morrison, and together they created a composite sketch of the dark haired assailant. Dkt. 41-22, at 34t. Ms. Morrison indicated she could not describe the blonde attacker well enough to draw a sketch of him. Dkt. 41-1, at-24. The composite of the dark haired assailant was circulated around the La Center area. Dkt. 42.

a. Reports Received that Dark Haired Assailant looks like Mr. Northrop

On January 13, 1993, Clark County Deputy Sheriff Todd Baker completed a supplemental report regarding the incident. Dkt. 42, at 2. The report stated that he took the composite to the La Center police department, and while there, talked with Reserve Officer Brent Murray. Id. Officer Murray told Deputy Baker that the composite looked like Alan Northrop. Id. Officer Murray also told Deputy Baker that Mr. Northrop had an associate named Steve Shade, who may resemble the second suspect.- Id. Deputy Baker stated in the report that he found a similarity between Mr. Northrop’s mug shot and the composite. Id. The report stated that the composite, mugs shots of both Mr. Northrop and Mr. Shade, and both men’s criminal records were attached to the report. Id. The report also stated that Mr. Northrop was wanted on an outstanding misdemeanor warrant out of Cowlitz County. Id.

Det. Slagle testified at Mr. Davis’s May 1993 criminal trial that he got a call from Officer Murray and was told that the composite looked like Mr. Northrop and that Mr. Northrop had an associate named Mr. Shade, who might meet the description of the second suspect. Dkt. 42-7, at 3-4. (In his February 17, 1993 supplemental report, Det. Slagle indicated that, on February 2, 1993, he “received information” that in Officer Murray’s opinion, the composite drawing appeared to be of Mr. Northrop. Dkt. 42-1, at 2.) Det. Slagle reported that he had “received other anonymous calls that the drawing that had been placed in several taverns and stores in La Center, WA appeared to be Alan Northrop.” Id. Det. Slagle testified that he pulled booking photos of both Mr. Northrop and Mr. Shade and had two separate photo montages made up. Dkt. 42-7, at 4.

b.Photo Montage of Mr. Northrop and Ms. Morrison’s Nonr-Identification of Mr. Northrop

Sue Roth of the Clark County Sheriffs Office put together photographs of dark haired suspects, including a picture of Mr. Northrop, for Det. Slagle. Dkt. 42-2, at 3. The date on the back of those photographs was January 14, 1993. Id. She stated that although she doesn’t remember specifically what happened in this instance, it is “fair to say” that she would have put them together based on a photograph that Det. Slagle gave her. Dkt. 42-2, at 4.

Det. Slagle testified at Mr. Davis’s May 1993 criminal trial that Ms. Morrison was unable to identify any suspect (neither Mr. Northrop nor Mr. Shade) from those montages. Dkt. 42-7, at 4. He now acknowledges that he failed to include her non-identification of Mr. Northrop in any of his reports. Dkt. 41-1, at 8. Det. Slagle testified in Mr. Northrop’s July 1993 trial that after Ms. Morrison was unable to identify Mr. Northrop in the photo montage, he decided to talk with Steve Shade. Dkt. 43-18, at 3.

c.Interview of Steve Shade

Det. Slagle related in his February 17, 1993 supplemental report that he then found out that Mr. Shade was in custody at the Clark County jail and had him brought to the interview area of the sheriffs office. Dkt. 42-1, at 2. (Det. Slagle testified at Mr. Davis’s trial, that after he saw Mr. Shade, he realized that he did not match the description of the second suspect, but knew that Mr. Shade knew Mr. Northrop and so still wanted to talk with Mr. Shade. Dkt. 42-7, at 5.) Det. Slagle reported in his February 17, 1993 supplemental report that he told Mr. Shade that they were investigating a rape in La Center and that several calls had reported that the composite drawing looked like Mr. Northrop. Id., at 2-3. Although Mr. Shade initially denied knowing anything about the rape, the report indicated that Mr. Shade stated that he had seen the composite in a tavern and he and his girlfriend thought the composite looked like Mr. Northrop. Id., at 3. The report further noted that Mr. Shade related that a little before he saw the composite, he saw Mr. Northrop. Id. Mr. Shade asserted that Mr. Northrop asked Mr. Shade if the cops had talked to him about Mr. Northrop. Id. Mr. Shade stated that he had not, and when he asked Mr. Northrop, “why?”, Mr. Northrop did not answer. Id. Mr. Shade said that Mr. Northrop had a man with him named Larry Davis, who seemed nervous. Id. The report stated that Mr. “Shade was asked to describe Larry and his description was very similar to that given by the rape victim of the second suspect that had held her during the rape.” Id. Mr. Shade also relayed that Northrop’s girlfriend, Tawny, had a silver Toyota Célica. Id. Det. Slagle noted in the report that he had information that a “small silver car had been seen parked in the driveway where the rape occurred at approximately the same time the rape occurred.” Id.

d.Ms. Morrison Identifies Mr. Davis in Photo Montage

Det. Ed Kingrey, also assigned to work on the case, filed a supplemental report on February 4, 1993. Dkt. 42-6, at 3. He reported that he participated in the February 2, 1993 interview of Mr. Shade, and added that Mr. Shade noted that Mr. Davis, had “skin abnormalities on [his] face much the same as the victim had described in suspect # 2.” Id. Det. Kingrey reported that Det. Slagle pulled a file photo of Mr. Davis, and had a photo montage put together by the records department. Id. According to Det. Kingrey, both he and Det. Slagle took the montage to Ms. Morrison’s home and showed her the montage “after it was explained to her that the suspect may or may not be in the lay-down.” Id. Det. Kingrey reported that Ms. Morrison identified Mr. Davis. Id.

In his report of Ms. Morrison’s February 2, 1993 identification of Mr. Davis in the photo montage, Det. Slagle stated that, after looking at all the pictures, Ms. Morrison pointed to photo # 1 and said, “that’s not him.” She then pointed to numbers 2, 4, and 5 and said, “that’s definitely not him.” She then pointed to photograph number 6 and said “that’s not him, but that’s the one” as she pointed to number 3.” Number 3 was the photograph of Larry Davis. Dkt. 42-8, at 2.

Ms. Morrison was deposed in this case and although she says that she doesn’t remember how long it took her to identify Mr. Davis (and that it doesn’t seem like it took that long now), she does not dispute that she testified in 1993 that it took her around 15 or 20 minutes to identify Mr. Davis from the photo montage. Dkt. 42-9, at 4. None of the police reports indicated how long it took Ms. Morrison to identify Mr. Davis.

e.Interview of Mr. Northrop and Arrest on Other Charges

Det. Slagle related in his February 17, 1993 report that he and Det. Kingrey went to a bar where they located Mr. Northrop on February 2, 1993. Dkt. 43-20, at 5. They arrested him on an outstanding warrant regarding other charges. Id. They told him they wanted to talk with him about an incident in the La Center area. Id. The report stated that at this point Mr. Northrop appeared to be “very upset and argumentative.” Id. The detectives told Mr. Northrop that they had had calls identifying him as the man in the composite. Id. Mr. Northrop acknowledged that some of his friends “jokingly” told him it looked like him. Id. Det. Slagle reported that he told Mr. Northrop that he looked different from when the rape occurred, but did not tell him when it occurred. Id. Det. Slagle then noted that Mr. Northrop replied “Well I had my hair cut at least three times since then.” Id.

f.Interview and Arrest of Mr. Davis

In his February 4, 1993 supplemental report, Det. Kingrey reported that, on February 3, 1993, he asked Mr. Davis to come down to the police station and talk with them, which he voluntarily did. Dkt. 42-6, at 3. Det. Kingrey reported that Mr. Davis told them that he had been unemployed and stayed with Mr. Northrop in Woodland, Washington until January 22, 1993. Id. Det. Kingrey reported that Mr. Davis told them that “he was with Northrop on or about 1-11-93 and went to Woodland to get a case of beer at the A.M./P.M. Id. Mr. Davis said he was not sure what time it was but thought around nine-thirty to ten o-clock.” Id. Mr. Davis denied being involved with the crime and agreed to take a polygraph. Id. According to Det. Kingrey, Mr. Davis’s polygraph showed signs of deception and he was placed under arrest. Id., at 4.

g.Ms. Morrison Hears of Suspects

In her deposition for this case, taken on May 14, 2013, Ms. Morrison testified that the Friday after she identified Mr. Davis in the photo montage (which was February 2, 1993, a Tuesday), a friend called her and told her they had arrested a Larry Davis for the crime. Dkt. 42-9 at 6-7. She was also told that Alan Northrop was an additional “name” they had. Dkt. 42-9, at 12. Ms. Morrison then called the jail and confirmed that a Larry Davis was in custody, but for burglary. Dkt. 42-9, at 8. She stated that she wondered “Was it him? Was it not him? And he was only booked on the burglary. So at that point [she] didn’t know because there was no information.” Dkt. 42-9, at 9-10. There is no evidence in the record that Det. Slagle or Det. Kingrey knew of these events.

h.Mr. Davis’s Lineup

On March 11, 1993, a lineup was conducted which included Mr. Davis. Dkt. 42-13, at 2. Mr. Davis’s attorney was present. Dkt. 42-13, at 2. Ms. Morrison viewed the suspects and then each repeated a line Ms. Morrison asserted that the blonde attacker had made during the attack. Id. According to Det. Slagle’s report, Ms. Morrison acknowledged that she was having some difficulty identifying the suspect because of changes in his appearance, but that she believed it was number three; number three was Larry Davis. Dkt. 42-13, at 3. The report indicated that on a scale of one to ten (ten being the mostly likely that number three was the suspect), she was a seven or eight that number three (who was Mr. Davis) was the blonde attacker. Id. Det. Slagle noted in his report that he “noticed that Davis has cut his hair much shorter since he has been in custody that [sic] it was the day he was arrested. It also appeared to be darker that [sic] [Det. Slagle] remembered it during our last interview on 2-03-93 when he was arrested.” Dkt. 42-13, at 4.

i.Detectives talk with Ms. Morrison before Mr. Northrop’s Lineup; Mr. Northrop’s Lineup & Arrest

In her May 14, 2013 deposition, Ms. Morrison testified that on March 17, 1993, Dets. Slagle and Kingrey interviewed her again (after the Davis lineup, but before the Northrop lineup). Dkt. 42-9, at 15. During this conversation, Ms. Morrison stated that they told her that she did “o.k.,” and “you did it,” and “breathe” “[b]ecause [she] was a shaking mess and [she] didn’t want to do [the Davis lineup].” Dkt. 42-9, at 16. She stated that they told her that they were going to go interview (or had just interviewed) someone they thought to be the dark haired suspect. Dkt. 42-9, at 16. Ms. Morrison said, “[t]hey said, we can’t do anything with him because you haven’t been able to ID him.” Dkt. 42-9, at 17. She then stated that she thought Mr. Northrop “was in the photo laydown and [she] wasn’t able to ID him on that, so the only alternative they have, it sounds like, is if [she] can ID him through a lineup. So that may be the next step, but they didn’t know if they could get him in or what they were gonna do.” Dkt. 42-9, at 17.

On April 5, 1993, another lineup was conducted, and this time included Mr. Northrop. Dkts. 42-5, at 8; 42-14, at 2. Detective Sergeant Craig Randall prepared a report which indicated that attorneys for the prosecution and defense were present. Dkt. 42-14, at 2. He reported that, with all the parties present, a viewing window was slid open and within ten seconds, Ms. Morrison turned away and, with an emotional reaction and “teared” voice, said that she did not need to look anymore. Dkt. 42-14, at 3. The report further stated that she was urged to be sure, and that she identified # 4, which was Alan Northrop. Dkt. 42-14, at 3-4.

Mr. Northrop was arrested on April 7, 1993, for the burglary and rape of Ms. Morrison. Dkt. 28-16, at 2.

j.Reports from Neighbors of the Home Where Attack Occurred

On April 26, 1993, Det. Slagle filed a supplemental report in which he stated that he and Det. Kingrey contacted Ms. Laila Siebold, one of the neighbors of the house where the rape occurred. Dkt. 41-19, at 3. Ms. Siebold told Det. Slagle that on the day of the rape, she was outside the house in her field preparing to feed her horses. Dkt. 41-19, at 3. (The day the detectives actually talked with her is not in the report). Ms. Siebold told them that, on the day of the incident, she heard loud horn honking and then saw “a silver-gray, older car leave the area, occupied by three long haired people.” She could not see their faces. Id. Ms. Siebold stated that the exhaust from the car was loud. Id., at 4.

The April 26, 1993 report also indicated that on April 19,1993, Det. Slagle and Det. Kingrey talked with Mr. Hans Siebold, a neighbor, who told them that, around 2:00 to 3:00 p.m., he had been driving down their dead end road when he saw an older silver-colored Toyota Célica driving out of the area. Id., at 3. He reported that the passenger had “longer, dirty blonde hair” and that the driver had “dark, curly, bushy type hair.” Id. Det. Slagle reported that he asked if Mr. Siebold could recognize either, and Mr. Siebold thought he could recognize the driver. Id. The report stated that Det. Slagle showed Mr. Siebold photographs taken in Cowlitz County of the lineup that included Mr. Northrop. Id. After looking at the photographs for a “short time,” Mr. Siebold stated that “I can’t be sure but, it really looked like number four.” Id. Mr. Northrop was number four. Id. The report continued, “Mr. Siebold did say that his hair seemed much ‘fuller’ around his face when he saw him in the car. It should be noted that the victim, Morrison, also said the suspect’s hair seemed fuller and longer during the rape incident than it did during the lineup.” Id., at 3-4.

k. Discussion of Cases among Clark County Detectives

Sheriffs Sergeant Craig Randal testified in his deposition for this case that the detectives in Clark County (there were six) worked closely together, and had a round table once a week to discuss their cases. Dkt. 42-5, at 3. Sgt. Randal recalled discussion of the 1993 rape of Ms. Morrison, and her identity as the victim. Dkt. 42-5, at 3. He testified that in 1993, in practice, they did not turn over evidence to the defense or prosecution that an individual who was a victim of a rape was being investigated for embezzlement, if the investigators “felt that [the victim] was credible about the incident.” Dkt. 42-5, at 9. Sgt. Randall testified that although it was not a written policy, this was the “practice” in 1993, and it occurred in other cases as well. Id.

Mr. Robert W. Shannon, the prosecutor in both cases, testified in his deposition in this case, that he was unaware that Ms. Morrison was under investigation for embezzlement at the time of Mr. Davis and Mr. Northrop’s trials. Dkt. 42-12, at 4. He did not remember turning any materials over to the defense regarding such an investigation. Id.

Det. Slagle testified that he did not personally deliver files to the prosecutor, but would refer the file to case management and they would make sure it got to the prosecutor’s officer. Dkt. 41-1, at 22.

3. Mr. Davis’s Trial

Mr. Davis was tried before a jury beginning on May 10, 1993, and convicted of first degree burglary, rape, and kidnapping. Dkt. 28-25. Mr. Davis was sentenced on July 9, 1993. Dkt. 28-25, at 30.

4. Mr. Northrop’s Trial

On June 25, 1993, Mr. Northrop’s counsel interviewed Ms. Morrison. Dkt. 56, at 55. Mr. Northrop’s counsel moved for a continuance of the trial date to allow counsel more time to review all the police reports (he discovered the week before he had only a third of them) and to hire experts. Dkt. 56, at 53-56. His motion was denied. Dkt. 28-27.

On July 6-8, 1993, Mr. Northrop was tried before a jury for first degree burglary, rape and kidnapping. Dkt. 42-12, at 4. He was convicted on all counts. Dkt. 28-28. Mr. Northrop was sentenced on September 14,1993. Dkt. 28-27, at 24.

5. Post Conviction Appeals

Both Mr. Davis and Mr. Northrop filed appeals with the Washington State Court of Appeals Division II. Dkts. 28-25, 28-26, 28-27, and 28-28. The trial court’s judgment was affirmed. Id. Mr. Davis filed a petition for review with the Washington State Supreme Court (Dkt. 28-29); the petition was denied (Dkt. 28-30). Mr. Davis also filed a Petition for Habeas Corpus in the U.S. District Court for the Western District of Washington (Dkt. 28-31) which was denied (Dkts. 28-34 and 28-35). Mr. Davis appealed the denial of his habeas corpus petition and the Ninth Circuit Court of Appeals affirmed the district court’s denial of the petition. Dkt. 28-36.

6. Post Conviction DNA testing

In 2004, the Innocence Project Northwest Clinic (“Innocence Project”) requested that Clark County retest the DNA that had been collected during the investigation of the 1993 rape. Dkt. 43-1. Although Clark County refused to do so voluntarily, on January 31, 2006, the Innocence Project’s motion to have the DNA tested was granted by the Clark County Superior Court. Dkt. 43-16, at 2-4.

In 2006, 2007 and 2009, the Washington State Patrol Laboratory in Seattle tested the DNA collected during the investigation of the 1993 rape of Ms. Morrison. Dkt. 41-9, at 2. The testing included DNA testing procedures that were not available in 1993. Id. DNA from an unknown male was found in the pubic combings. Id., at 6. Mr. Northrop and Mr. Davis were excluded as being the sources of this DNA. Id. DNA profiles from two unknown male individuals were found under Ms. Morrison’s fingernails; Mr. Northrop and Mr. Davis were excluded as being the sources of this DNA. Id. DNA from an unknown male was also extracted from a cord used to tie Ms. Morrison up. Id. at 7. Mr. Northrop and Mr. Davis were excluded as being the sources of this DNA. Id.

In 2009, an independent laboratory, Orchid Cellmark, Inc., tested evidence from the incident. Dkt. 41-10. That lab concluded that the unidentified male DNA found in the pubic comb extract is consistent with one of the unidentified male’s DNA found under Ms. Morrison’s fingernails. Id., at 4.

7. Proceedings Before Clark County Superior Court in 2010

In 2010, Mr. Davis and Mr. Northrop moved the superior court for new trials based on newly discovered evidence — that the DNA profiles that were found at the crime scene were not consistent with being from either Mr. Northrop or Mr. Davis. Dkt. 41-13. Their motion was granted on June 30, 2010, after a hearing on the merits. Id. The Clark County Superior Court’s opinion stated that it “didn’t reach the issue of the taint of the identification due to the overwhelming evidence of the DNA.” Dkt. 41-13, at 6. On July 13, 2010, the State stipulated to dismissal of all charges without prejudice. Dkts. 41-17.

8. Archived Box Produced to Plaintiffs in 2013 and Other Recent Discovery

On March 8, 2013, a box of Det. Slagle’s archived files (“archived box”) was produced by Clark County, and although there is some confusion in the current record, it appears that this box had not been given to the Clark County Prosecutor’s Office in 1993. Dkt. 41, at 3. These files include what are purported to be Det. Slagle’s hand written notes that state:

Tawny, who works at the Phoenix, is the suspect’s girlfriend, she 4 rapes in La Center area (an up arrow and another symbol) note reported drops them off & comes back & picks them up.

Larry stopped at La Center Tavern it was brought up in Tawny was living with Bonnie for several months Th [sic] guy is related to someone who owns Ray’s store (Don Soul) (Clara bartender at tavern)

Tillet

Bonnie’s dad Richard lives in La Center Timmens landing ...

/Kathy Fisher/ info.

2 weeks ago saw two men similar description ...

Svanson area park — pay $1.00 and write license number and # in vehicle you can see [the residence where the incident took place] from park.

Dkt. 42-10, at 2-3. Another hand written note dated January 13, 1993, stated: “possible rape suspects: 1) Joe West (Jesse) West dark haired.” Dkt. 42-10, at 4. A hand written note entitled “La Center Rape Info.” with the name “Joe Berry” and a phone number and address, the name “Pat Kahn” with a phone number, and the name “Jesse West (a symbol of some kind) Scott Grant on 26th Ave. work together, tree cutting & trimming both have drug problems used to drive brown pickup.” Dkt. 42-10, at 5. This archived box included an application for protective order, dated February 12, 1991, that Ms. Morrison had filed against Richard Stratton (Ms. Morrison’s ex-husband). Dkt. 42-10, at 6-9. Lastly, the archived box contained a three page document entitled “Larry Wayne Davis Followup [sic] Needed.” Id. This document appears to be a list of things to do connected with the investigation including: interviewing the victim regarding prior activities in the North county area, contacting “Rod Peterson (Defendant supposedly stayed at his house on the night prior),” recontacting Northrop’s girlfriend, recontacting Steve Shade, and “seefing] if you can rule out boyfriend, associates, ex-husband, Richard Todd Stratton?” Dkt. 42-10, at 10-12.

An additional police report regarding the incident also surfaced during the discovery in this case; the Clark County Prosecutor was unaware of this report before it was produced in this case. Dkt. 42-12, at 7. That report stated that, on February 28, 1993, Clark County Officer Jana Anderson took an anonymous call from a man (now identified as Gregory Usery) who said that he had seen the composite drawing (which was of the dark haired attacker) that had been made in the criminal case. Dkts. 41-14 and 42-11. Mr. Usery reported that he recognized the man in the drawing as an acquaintance named Monte Ollom. Id. He reported that he knew Mr. Ollom because they used to work together and that he still saw him a few times a week. Id. Mr. Usery relayed that he thought Mr. Ollom was living with two other individuals, one of whom was believed to be a child molester. Id. The report stated “[r]efer this information to Detective Slagle for additional follow up.” Dkt. 41-14, at 8. Officer Anderson stated that, after writing the report, she turned it into the records department (Dkt. 41-23, at 5-6) which was then supposed to file the report under the case number (Dkt. 42-5, at 16). She stated that she added the line regarding referral to Det. Slagle so that the sergeant in the records department would know to whom to send it. Dkt. 41-23, at 6.

Curtis Shelton, Mr. Northrop’s defense attorney at the trial, stated that he was not given the report regarding Mr. Ollom. Dkt. 41-15, at 2. Mr. Shelton stated that, had he been aware of this other suspect, he would have pursued further investigation of that lead. Id.

B. PROCEDURAL HISTORY

Plaintiffs filed this case on August 25, 2012. Dkt. 1. They make federal claims against both Clark County and Det. Slagle for violation of their due process right to a fair trial under the 6th and 14th Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983. Dkt. 22. Plaintiffs assert state law claims against Clark County and Det. Slagle for negligence, against Clark County for negligent training, supervision, and retention and against Clark County and Det. Slagle for intentional infliction of emotional distress or “outrage.” Id. Plaintiffs seek damages, including punitive damages, attorneys’ fees, and costs. Id.

C. PENDING MOTION

Defendants move for Summary Judgment, arguing that as to Plaintiffs’ federal claims: 1) collateral estoppel precludes re-litigation of Plaintiffs’ claims under Brady and the Fourteenth Amendment, 2) no Brady violation occurred as to the investigation of Ms. Morrison for embezzlement because Plaintiffs cannot show disclosure would change the outcome of the cases, 3) no Brady violation occurred as to Northrop in regard to the investigation of Ms. Morrison for embezzlement because the completed investigation was turned over to the Clark County Prosecutor’s Office on June 14, 1993, three weeks prior to the Northrop trial, 4) no Brady violation occurred regarding the failure to report the precise date of the non-identification of Northrop because the jury discovered the real date in the Northrop trial during deliberation and Davis cannot show what impact the precise date of the non-identification of Northrop would have had on his trial, 5) Det. Slagle is entitled to qualified immunity as to the Brady violation related to the precise date of non-identification of Northrop, 6) no Brady violation occurred as to the “other suspects” because Plaintiffs cannot show that these suspects were linked to perpetration of the crime, 7) Det. Slagle is entitled to qualified immunity for the Fourth and Fourteenth Amendment claims because there was probable cause to arrest both Plaintiffs, and 8) Plaintiffs’ claims against Clark County should be dismissed because Plaintiffs cannot show that there is a policy, custom, or practice was in place that violated their constitutional rights, or that such a policy, custom, or practice caused their damages. Dkts. 25 and 51. As to Plaintiffs’ state law claims of negligence, Defendants' argue that: 1) there is no recognized cause of action for negligent investigation in Washington and so that claim should be dismissed, and 2) Plaintiffs state law claims are time-barred. Id. Mr. Davis and Mr. Northrop oppose the motion. Dkt. 50. Oral argument has been heard and the matter is ripe for decision.

D.ORGANIZATION OF THE OPINION

This opinion will first address Defendants’ arguments regarding the federal claims and then turn to the arguments on the state law claims.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitied to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt.”). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir.1987).

The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial — e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, 106 S.Ct. 2505, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

B. FEDERAL CLAIMS

1. Collateral Estoppel

“State law governs the application of collateral estoppel or issue preclusion to a state court judgment in a federal civil rights action.” Ayers v. City of Richmond, 895 F.2d 1267 (9th Cir.1990) (internal citations omitted). Under Washington law, collateral estoppel requires that there be:

(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.

Schroeder v. Excelsior Management Group, LLC, 177 Wash.2d 94, 108, 297 P.3d 677 (2013) (internal quotation omitted). In Washington, collateral estoppel bars re-litigation of “issues actually litigated” and “necessarily decided” in a prior adjudication. City of Arlington v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 164 Wash.2d 768, 792, 193 P.3d 1077 (2008).

The parties contest the first two requirements (as will be discussed below). The parties do not meaningfully contest the third requirement. As to the fourth requirement, under Washington law, “the injustice component is generally concerned with procedural, not substantive irregularity.” Christensen v. Grant County Hosp. Dist. No. 1, 152 Wash.2d 299, 309, 96 P.3d 957 (2004) (internal citations omitted). Washington requires that the “party against whom the doctrine is asserted must have had a full and fair opportunity to litigate the issue in the first forum. Accordingly, applying collateral estoppel may be improper where the issue is first determined after an informal, expedited hearing with relaxed evidentiary standards.” Id. (citing State v. Vasquez, 148 Wash.2d 303, 303, 59 P.3d 648 (2002)). In this Order, the fourth requirement will only be discussed if the first two requirements are met.

Clark County and Det. Slagle argue that each of the Plaintiffs is collaterally es-topped from re-litigating their due process claims based on overly suggestive identification procedures, their due process claims based on Brady violations regarding the failure to disclose the date of non-identification of Mr. Northrop in the photo montage, and failure to disclose the embezzlement investigation of Ms. Morrison. Dkt. 25. Each of these will be examined in turn.

a. Collateral Estoppel Regarding Due Process Claims Based on Overly Suggestive Identification Procedures

“To determine whether an identification procedure violates a defendant’s due process rights, a court must consider ‘whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.’” U.S. v. Drake, 543 F.3d 1080, 1088 (9th Cir.2008) (quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). The factors to be considered in the Ninth Circuit “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id.

i. Whether Mr. Davis is collaterally es-topped from making his current claim that the identification procedures (the photo montage and live line up) violated his due process rights?

The County and Det. Slagle’s motion (Dkt. 25) as to this claim should be granted and Mr. Davis should be barred from re-litigating this claim. The first two collateral estoppel requirements are met. Mr. Davis’s current claim that the identification procedures violated his due process rights are issues identical to those raised in the criminal proceedings and resulted in a final judgment on the merits. In Mr. Davis’s Opening Brief in his 1993 appeal to the Washington State Court of Appeals, Division II, he argued:

The identification procedures used in the initial drawing and photo procedure was flawed:

Once the co-defendant in this case was apprehended, two photo laydowns of six photos each were prepared. She could not select Alan Northrop from either laydown. She also could not identify a friend of Alan’s named Steve Shade as the suspect from another six photo lay-down. Apparently Steven Shade fingered Larry Davis as a friend of Alan Northrop. Another six photo laydown was done and defendant [Mr. Davis] was identified....

The primary issue then, of the victim’s identification of defendant from the photo montage, is the actual reliability of the identification. Victim here appears to have had fair opportunity both to observe the attackers. She had a high degree of attention and seemed to display a good level of certainty at the actual line-up. More open to question is the accuracy of her prior description, which was not good at the time of the crime and which was only developed when she spoke to Detective Slagle at the hospital. An extensive record was not made of when the line-up and lay-down were done, but apparently photo laydowns were done in March and the line-up about April 5,1998.

A possible contributing effect is that of the sheer stress of the case itself on the victim, and the desire to put it behind her ... Detective Slagle went to the point of traveling to the victim’s home to show her laydown photos in the hopes she would identify one----

Still, most troublesome is the possibility that [Mr. Davis’s] identification was tainted by the persistence of police investigative work. Out of an available population of perhaps 350,000 it seems highly suspicious that Alan Northrop would be one of only a dozen laydown suspects, and Larry Davis one of only another half-dozen. Statistically there are problems with the state’s case. The laydown and the line-up were not inherently reliable and the identification of defendant should be excluded.

Dkt. 28-25, at 36-39 (internal citations to the record omitted).

In its decision affirming the conviction and sentence, the Washington State Court of Appeals, Division II, found that “[n]or is there merit to Davis’s contention that the trial court should have granted him a new trial because the victim’s identification of him is ‘suspect.’ Davis has failed to show any error in the identification procedures.” Dkt. 28-26, at 6. It further held,

The trial court did not err in admitting evidence that the victim identified Davis in a photo montage and lineup nor did it err in allowing her to identify Davis in court. Davis argues that the trial court violated his constitutional right to due process when it admitted the victim’s photo and lineup identifications of him when it allowed the victim to identify him in court. Davis asserts that the victim’s identification did not satisfy the Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) criteria’ i.e. the identification was not “inherently reliable.” Davis mistakes his burden of proof.

To obtain a new trial based upon faulty identification procedures, it is not the State’s burden to show that the identification procedures are “inherently reliable.” Rather the burden is on the defendant to show that identification procedures were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. U.S. [390 U.S. 377] 88 U.S. [S.Ct.] 967[, 19 L.Ed.2d 1247] (1968) ... The inquiry ends if no suggestiveness is present, and in such a case, the uncertainty or inconsistency in identification testimony goes only to its weight, not its admissibility. ...

Davis fails to demonstrate that the identification procedures were suggestive. Montages are a proper procedure for identification and the presentation of a series of photographs whose arrangement does not suggest whom is the suspect is a fair test ... Minor differences in appearances of photographs do not constitute an impermissibly suggestive procedure ... Davis has not argued, nor has he presented any evidence, that his physical characteristics are unique among the six photos displayed. Similarly, Davis has not argued, nor has he presented any evidence, that his physical characteristics differed materially from the physical characteristics of the other suspects who participated in the lineup. Thus, he fails to meet his burden of showing that the identification procedures were suggestive, much less impermissibly so.

Dkt. 28-26, at 7-8. Mr. Davis’s due process claim regarding the identification procedures were “issues actually litigated” and “necessarily decided” in his first appeal of his conviction. City of Arlington, at 792, 193 P.3d 1077. Accordingly, the first two requirements are met, as is the third (uncontested) requirement of privity.

The fourth requirement, that application of collateral estoppel not work an injustice on Mr. Davis, has also been met. There is no evidence of a procedural irregularity. Christensen, at 309, 96 P.3d 957. There is no evidence that Mr. Davis did not have a “full and fair opportunity to litigate the issue in the first forum.” Id. Mr. Davis is collaterally estopped from re-litigating his due process claim based on the procedures used to identify him.

ii. Whether Mr. Northrop is collaterally estopped from making his current claim that the identification procedures (the photo montage and live line up) violated his due process rights?

As was the case with Mr. Davis, Mr. Northrop’s claim that the identification procedures used violated his due process rights is barred. The first two requirements are met: In Mr. Northrop’s 1994 appeal in the Washington State Court of Appeals, Division II, he argued in regard to the procedures used to identify him and Mr. Davis:

Morrison viewed a photo montage and a lineup involving Larry Davis, a friend of the defendant. Morrison also listened to the voice of Davis others in the lineup. Morrison identified Davis as the taller of her attackers.

Morrison viewed Northrop during a lineup procedure on March 11, 1993. Northrop was the only person whose likeness was repeated between the montage procedure and the lineup. After viewing part of the lineup for approximately two (2) seconds, Morrison identified Northrop. Morrison also identified Northrop at trial.

Throughout her testimony, and during various interviews with investigators, Morrison gave widely differing accounts of her ability to describe and recognize her attackers. By the time she testified at trial, however, she had “no doubt” of her ability to identify [Mr. Northrop].

Dkt. 28-27, at 20 (internal quotations and citations to the record omitted). He continued,

The trial court, over [Mr. Northrop’s] pre-trial and trial objections, permitted the State to introduce evidence that a friend of the defendant’s, Larry Davis, had been identified as a participant in the rape. The State argued that the ‘connection’ between Davis and Northrop, combined with evidence of Davis’ involvement, was evidence of Northrop’s guilt. Over objection, the trial court also admitted Morrison’s pre-trial and trial identifications of Northrop as her shorter attacker.

Id., at 23-24. He urged,

The admission of identification evidence which has been corrupted by pretrial procedures violates a defendant’s right to due process under the Federal and State constitutions. The evidence will be excluded if the defendant establishes that the procedures used were unnecessarily suggestive and ‘created a substantial likelihood of irreparable misidentification.’

The suggestiveness inherent in the identification procedures used in this case flow from the repeated showings of one individual to a victim who has had a limited opportunity to observe her attacker. This repeated showing of the same individual ‘was almost certain to leave the witness with a recollection based on the photograph instead of her initial observations ...

Morrison’s identification of Northrop is not reliable. Morrison indicated her opportunity to view the suspects without the distraction of a physical struggle was ‘split’ second. After the initial struggle, at which Morrison’s face was deliberately held in a way to obstruct her vision, her eyes were covered with electrician’s tape ...

Morrison’s initial descriptions of her attackers were vague and sparse on detail. She could not identify Northrop in the photo montage, she refused to work on a sketch of her second attacker because she could not identify him. Morrison’s level of certainty as to identification increased only after repeated viewings of the suspects in the photo montages and lineups ... Finally, the length of time between the initial attack and lineup procedure was lengthy — two (2) months in Alan Northrop’s case.... The evidence presented regarding the identification of Alan Northrop shows a progression from uncertainty to certainty, based upon tainted, repetitive procedures. Those procedures denied Northrop due process of law ...

Id. (internal quotations and citations omitted).

In their decision affirming Mr. Northrop’s the conviction and sentence, the Washington State Court of Appeals, Division II, held that Mr. Northrop’s line-up procedure was not impermissibly suggestive. Dkt. 28-28, at 8. His appeal for relief was denied. Id.

Accordingly, the first two requirements of collateral estoppel are met: the issues before the Washington State Court of Appeals, Division II are identical to those raised here and were finally decided. The third requirement is uncontested, and the last collateral estoppel requirement, that application of collateral estoppel not work an injustice on Mr. Northrop, has also been met. There is no evidence of a procedural irregularity or evidence that Mr. Northrop did not have a “full and fan-opportunity to litigate the issue in the first forum.” Christensen, at 309, 96 P.3d 957. Accordingly, Mr. Northrop is barred from re-litigating his due process claim based on the procedures used to identify him. The County and Det. Slagle’s motion (Dkt. 25) as to this claim should be granted.

b. Collateral Estoppel Regarding Due Process Claims Based on Brady

A defendant’s due process rights are violated “if the government fails to disclose evidence that is materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)).

Such 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 although a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal. The reversal of a conviction is required upon a showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

Id., at 870, 126 S.Ct. 2188 (internal quotations and citations omitted). The obligation under Brady “is the obligation of the government, not merely the obligation of the prosecutor.” United States v. Blanco, 392 F.3d 382, 393 (9th Cir.2004).

Clark County and Det. Slagle contend that the Plaintiffs are barred from bringing two of their Brady based due process claims: the failure to disclose the date of Ms. Morrison’s nonidentification of Mr. Northrop in the photo montage and the failure to disclose the fact that Ms. Morrison was under investigation for embezzlement at the time of these events. Dkt. 25. The bar as to each of the Plaintiffs will be examined.

i. Whether Mr. Northrop is collaterally estopped from making his current claim that the failure to disclose Ms. Morrison’s non-identification of him in the photo montage three days after the rape violated his Brady based due process rights?

The County and Det. Slagle’s motion as to this claim should be granted and Mr. Northrop should be barred from re-litigating this claim. Dkt. 25. The first two collateral estoppel requirements are met. Mr. Northrop’s current claim, that his due process rights as defined in Brady were violated when the State failed to disclose the date Ms. Morrison was unable to identify him in the photo montage, is identical to that raised in the criminal proceedings and resulted in a final judgment on the merits. On August 10, 1993, Mr. Northrop filed a “Memorandum in Support of Defendant’s Post-Verdict Motions” in which he argued that:

The evidence implicating the defendant in the crimes charged consisted primarily, if not exclusively, of the victim’s eyewitness identifications of him which occurred at a lineup at the Cowlitz County jail on April 5, 1993, and at trial. During the pretrial discovery process the defendant’s counsel attempted to investigate all factors relating to the accuracy of these identifications. The victim was interviewed and police officers who investigated the case were interviewed. Discovery motions were made at an omnibus hearing.

During the course of the discovery process defense counsel learned that the lead investigating officer, Detective Don Slagle, had at some point in time showed the victim a 6-person photo montage (admitted at trial as Exhibit No. 6) containing clear color photographs of the front and side views of the defendant’s fact. It was also learned that the victim, after a “careful” examination of the montage, did not identify the photos of the defendant as the person who raped her. No written report of this event was ever prepared by Slagle or any other police investigator. Defense counsel interviewed the victim, Kari Morrison, on June 25, 1993. Diming the interview Ms. Morrison stated that she recalled being shown the photo montage at issue by Detective Slagle. Although she could not recall specifically when it was shown to her, she said she believed that it was “weeks” after the rape occurred.

When Detective Slagle was interviewed by defense counsel on June 30, 1993, Slagle stated that the montage was prepared and presented to Kari Morrison after he had interviewed Steven Shade, a friend of the defendant’s brother, who provided Slagle with information suggesting that the defendant had committed the rape. According to a police report prepared by Detective Slagle, which had previously been provided to defendant’s counsel, Slagle’s first contact with Steven Shade occurred on February 2, 1993, over three weeks after the rape. Slagle confirmed that he had not prepared a report or otherwise memorialized the facts surrounding the presentation of the montage to Kari Morrison ....

From the information disclosed by the state to the defense regarding the presentation of the montage in issue, defense counsel reasonably concluded that the montage was presented to Kari Morrison at least 3 weeks after the rape occurred ...

After the trial, it was learned that the montage had been prepared by the Sheriffs Office on January 14,1993, only 3 days following the rape and only 1 day after the composite drawing of the rape suspect, later identified by Kari Morrison as the defendant, was completed. The timing of the presentation of this montage is material evidence favorable to the defense. The state’s actions in failing to disclose this evidence to the defendant prior to trial, and in providing false, inaccurate, and perhaps untruthful information to the defense regarding the timing of the preparation and presentation of the montage to the victim deprived the defendant of his due process right to a fair trial. The court should, at the very least, grant him a new trial.

Dkt. 28-24, at 2-4. Mr. Northrop argued that the failure of both the prosecutor and the detectives to disclose that Ms. Morrison was unable to identify him in the photo montage three days after the rape was a violation of his due process rights under Brady v. Maryland. Id., at 5-11. Mr. Northrop’s motion was denied. Dkt. 28-27, at 24.

On October 24, 1994, Mr. Northrop filed his brief in his appeal challenging his conviction and sentence in the Washington State Court of Appeals, Division II. Dkt. 28-27, at 2. As to the failure to disclose the date of Ms. Morrison’s initial non-identification of him, he argued:

Three (3) days after the incident, Sheriffs Deputy Don Slagle prepared a photo montage which contained photos of the defendant, Alan Northrop. Slagle showed the montage to Morrison, who looked at it “for some time.” Morrison could not identify anyone in the montage as her attacker. Slagle entered the montage in evidence, but did not prepare a report of this contact. Slagle later told defense investigators and testified that this montage was prepared and viewed weeks after the incident, after Northup had already been developed as a suspect. [Mr. Northrop] did not learn of the actual date the montage was prepared until after [his] trial was completed.

The State’s misrepresentation of the dates the photo montage was prepared and presented to the victim materially prejudiced [Mr. Northrop’s] ability to defend himself.... In this case, the only eyewitness to the crime was unable to identify the [Mr. Northrop’s] photograph in a montage presented to her by police within days of the crime having occurred. This evidence is highly probative to the reliability of the identification.

Id., at 19 and 42-44. In their decision affirming Mr. Northrop’s the conviction and sentence, the Washington State Court of Appeals, Division II, rejected Mr. Northrop’s argument that his constitutional rights were violated and that he did not receive a fair trial when the State failed to disclose the date that Ms. Morrison was not able to identify him in the initial photo montage. Dkt. 28-28 at 13. It held:

Northrop claims that he was denied a fair trial by the State’s misrepresentation of the date on which it presented the photo montage to [Ms. Morrison], He contends that before trial, the State told him that it showed [Ms. Morrison] the montage several weeks after the attack and that this was inaccurate.

Although the failure to disclose evidence pertaining to the reliability of a key State witness may violate due process rights, the grant of a new trial is not automatic. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).. The right to a new trial depends upon whether the new evidence is material, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and whether it would, in any reasonable likelihood, have changed the verdict. Giglio, 405 U.S. at 154, 92 S.Ct. 763.

Here, the State neither destroyed nor withheld evidence. The defense knew in advance of trial that [Ms. Morrison] had failed to identify Northrop in the photo montage. The record does not show the State hid or misstated the date. Deputy Slagle, the lead investigator, testified that he simply could not remember the exact date. Nor has Northrop demonstrated how knowledge of the precise date of the showing would have changed the outcome of the trial. Without some evidence of bad faith by the State, we find no breach of the State’s duty to preserve evidence or violation of Northrop’s due process rights.

Dkt. 28-28, at 13-14.

Both the Clark County Superior Court and Washington State Court of Appeals, Division II considered and actually decided the identical issue Mr. Northrop raises here, so the first two requirements are met. As above, the parties do not contest that they are in privity, so the third requirement is met. Nor is there any evidence of procedural “irregularities” that would make collaterally estopping Mr. Northrop’s claim unjust.