FILED

NOT FOR PUBLICATION

JUN 28 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP SCOTT CANNON; MATHIAS No. 15-35047 CANNON; PHILIP SCOTT CANNON, on behalf of his minor child, QC, D.C. No. 3:10-cv-00224- HA

Plaintiffs-Appellants,

MEMORANDUM*

v.

POLK COUNTY; POLK COUNTY

SHERIFF; CITY OF DALLAS; DALLAS

POLICE DEPARTMENT; BURNETTE

KRAUGER; KERRY TAYLOR;

MICHAEL OJA; JOHN WALLACE;

MICHAEL HOLSAPPLE; PAUL BOX;

RAY STEELE; BOB WOLFE; CHAD

WOODS,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted June 7, 2017 Portland, Oregon

Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellant Philip Scott Cannon was convicted in 2000 of a triple homicide.

Among the evidence admitted at the trial was evidence about the bullets from the

crime scene. That purported scientific evidence, known as Comparative Bullet

Lead Analysis (“CBLA”), has since been debunked as junk science. In 2009,

Cannon and the Oregon Department of Justice entered into a stipulation vacating

his conviction and remanding to the Polk County Circuit Court for a retrial. While

preparing for a new trial, the Polk County District Attorney was unable to find the

original trial exhibits. As a result, the district attorney dismissed the charges.

Cannon and his sons then commenced this action. The district court granted

summary judgment to Appellees on Appellants’ claims under 42 U.S.C. § 1983

and for various torts under Oregon state law. We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm.

I. Cannon’s Claims Under 42 U.S.C. § 1983

Cannon’s § 1983 claims are based on a litany of alleged misconduct by the

various law enforcement officers and agencies involved in his arrest. Broadly,

these alleged violations fall into three categories: Brady1 violations; destruction of

1 Brady v. Maryland, 373 U.S. 83 (1963). 2 evidence under Trombetta/Youngblood;2 and alleged violations of Cannon’s

substantive due process rights. None of these claims has merit.

A. Alleged Brady Violations

Much of the evidence that Cannon claims was withheld was turned over by

Appellees to the district attorney for turnover to Cannon. This includes the

Gannaway report,3 the February 2000 crime lab report, and the crime scene video.4

The Appellees satisfied their Brady obligations with regard to that evidence.

Broam v. Bogan, 320 F.3d 1023, 1033 (9th Cir. 2003). Other evidence, including

the McMahon photo lineup5 and the crime scene video, was known to Cannon

during discovery and could have been requested at any time. Amado v. Gonzalez,

758 F.3d 1119, 1137 (9th Cir. 2014). Finally, any Brady material contained on the

2 California v. Trombetta, 467 U.S. 479 (1984); Arizona v. Youngblood, 488 U.S. 51 (1988). 3 Cannon also claims that Appellee Krauger violated Brady by disclosing the Gannaway report late. However, the report was disclosed “at a time when disclosure would be of value to the accused.” United States v. Gamez- Orduno, 235 F.3d 453, 461 (9th Cir. 2000). Brady was therefore satisfied. 4 Cannon has not identified the exculpatory value of either the February 2000 report or the crime scene video. Therefore, neither constitutes Brady material. 5 Cannon has not identified a defendant in this case who was responsible for the alleged suppression of the photo lineup. His claim therefore fails on that basis as well. 3 reverse side of the Property in Custody sheets was disclosed in the memorandum

from Polk County Sheriff’s Office Property and Evidence Technician Ailsa Gray.

See United States v. Winslow, 962 F.2d 845, 848–49 (9th Cir. 1992) (holding that

disclosure of a summary of a “rap sheet” was sufficient to satisfy Brady); United

States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984) (holding that disclosure of

summaries of an “informant file” was sufficient to satisfy Brady).

B. Alleged Trombetta/Youngblood Violations

If evidence is only “potentially useful” to the defense, there must be bad

faith on the part of the police to make out a Trombetta/Youngblood violation.

Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989) (citing Youngblood, 488

U.S. 51). Cannon has failed to demonstrate bad faith on the part of any Appellee.

His claims regarding the red lighter and the crime scene video therefore fail.

Cannon also contends that police failed adequately to investigate “Bimla”

Boyd. The record belies this contention; police thoroughly interviewed “Bimla” on

a number of occasions.

C. Substantive Due Process Claims

Substantive due process “forbids the government from depriving a person of

life, liberty, or property in such a way that ‘shocks the conscience’ or ‘interferes

with rights implicit in the concept of ordered liberty.’” Nunez v. City of L.A., 147

4 F.3d 867, 871 (9th Cir. 1998) (quoting United States v. Salerno, 481 U.S. 739, 746

(1987)). None of the minor evidentiary and chain-of-custody errors alleged by

Cannon rises to the level of a due process violation.

II. Absolute Immunity

Cannon alleges that Defendant Taylor violated his constitutional rights by

sending bullets off for CBLA analysis, which is now recognized as unreliable.

When Taylor sent the bullets for CBLA analysis, however, he was working at the

direction of the district attorney to help prepare for trial. He is therefore entitled to

absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (stating that

prosecutorial functions include “the professional evaluation of the evidence

assembled by the police and appropriate preparation for its presentation at trial”).

III. Associational Rights

Cannon and his two sons assert violations of their Fourteenth Amendment

familial associational rights. Interference with the parent-child relationship is a

constitutional violation if a parent or child is “wrongfully detained.” Crowe v. Cty.

of San Diego, 608 F.3d 406, 441 (9th Cir. 2004). To amount to a violation, the

conduct of the accused must “shock the conscience” or “offend the community’s

sense of fair play and decency.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079

(9th Cir. 2011) (alteration and internal quotation marks omitted). Cannon not only

5 was not wrongfully detained at any time, his detention was not so shocking or

offensive as to rise to the level of a constitutional violation.

IV. State Law Torts

Cannon asserts claims for malicious prosecution and abuse of process under

Oregon Law.

With regards to malicious prosecution, Cannon has failed to show that the

criminal proceeding against him terminated in his favor. The criminal prosecution

against Cannon was dismissed because, preparatory to the retrial, the district

attorney could not locate the original trial exhibits. The action was therefore

terminated “without regard to its merits or propriety.” Portland Trailer & Equip.,

Inc. v. A-1 Freeman Moving & Storage, Inc., 49 P.3d 803, 808 (Or. Ct. App. 2002)

(quoting Gumm v. Heider, 348 P.2d 455, 464 (Or. 1960)). Further, there was

probable cause to prosecute Cannon. Finally, Cannon cannot show malice, which

is the touchstone of this tort.

Cannon’s claim for abuse of process fails because he cannot show that he

was prosecuted for any “ulterior purpose.” Larsen v. Credit Bureau, Inc. of Ga.,

568 P.2d 657, 658 (Or. 1977).

V. Conclusion

6 For the reasons set forth above, the judgment of the district court is

AFFIRMED.

7

FILED

Cannon v. Polk County, Case No. 15-35047

JUN 28 2017

Rawlinson, Circuit Judge, concurring:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.