UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JEFFREY DEWAYNE CLARK, │ Plaintiff, │ │ GARR KEITH HARDIN, │ > No. 24-5061 Plaintiff-Appellee, │ │ v. │ │ │ LOUISVILLE-JEFFERSON COUNTY METRO GOVERNMENT, │ Defendant, │ │ ROBERT THURMAN, Kentucky State Police Crime Lab │ Forensic Serologist, in his individual capacity, │ │ Defendant-Appellant. ┘ Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:17-cv-00419—Gregory N. Stivers, District Judge.

Argued: July 25, 2024

Decided and Filed: March 7, 2025

Before: STRANCH, BUSH, and MURPHY, Circuit Judges. _________________

COUNSEL ARGUED: Ed Monarch, MCBRAYER PLLC, Louisville, Kentucky, for Appellant. Emma Freudenberger, NEUFELD SCHECK BRUSTIN HOFFMANN & FREUDENBERGER, LLP, New York, New York, for Appellee. ON BRIEF: Ed Monarch, Peter J. Rosene, MCBRAYER PLLC, Louisville, Kentucky, for Appellant. Emma Freudenberger, Anthony Balkissoon, Anna Benvenutti Hoffmann, Mary Katherine McCarthy, NEUFELD SCHECK BRUSTIN HOFFMANN & FREUDENBERGER, LLP, New York, New York, for Appellee.

The court delivered a PER CURIAM opinion. STRANCH, J. (pp. 16–19) and MURPHY, J. (pp. 20–30), delivered separate concurring opinions. No. 24-5061 Clark, et al. v. Louisville-Jefferson Cnty. Metro Gov’t, et al. Page 2

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OPINION _________________

PER CURIAM. In 1995, a Kentucky jury convicted Garr Keith Hardin and Jeffrey Clark of murdering Rhonda Sue Warford. Robert Thurman, a forensic serologist, testified at their trial that a hair found at the crime scene was “similar” to a sample of Hardin’s hair. After Clark and Hardin spent over two decades in prison, DNA testing proved that this hair was not, in fact, Hardin’s. A state court thus vacated Hardin’s and Clark’s convictions. Clark and Hardin then brought this suit under 42 U.S.C. § 1983 against (among others) Thurman. In discovery, they obtained the “observation notes” that Thurman had written when examining the hairs. These notes suggested that the hair found at the scene might not have matched Hardin’s hair sample in various ways. Hardin claimed that Thurman’s failure to disclose the notes before trial violated his disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). The district court denied Thurman’s qualified-immunity defense. On appeal, Thurman argues (1) that his notes were neither exculpatory nor material under Brady, and (2) that the law in the mid-1990s did not clearly establish that Brady’s duty of disclosure applied to scientists. Our precedent deprives us of jurisdiction over Thurman’s first argument. And it also dooms his second argument that Brady did not clearly apply to him. We thus affirm in