good morning good morning your honor terry gross counsel for appellant i'd like to reserve five minutes for rebuttal first i'm going to address the claims involving officer crenshaw and then i will address the claims against officers the the district court below found that appellant presented a triable issue that he was subjected to criminal charges based on fabricated evidence false evidence deliberately fabricated by officer crenshaw which is the constitutional tort record recognized in devereaux but then the district court held that the prosecutor's independent judgment in filing charges broke the chain of causation applying the doctrine from smitty however smitty and all of its progeny explicitly state that the doctrine only involves claims in which an element is the lack of probable cause at the time of filing charges in fact the court's rationale and smitty is it is explicitly founded on probable cause that it's unfair to hold an officer who mistakenly believes there is probable cause subject to enhanced liability if a law trained prosecutor is also mistaken about probable cause and then this court a few months ago in spencer versus peters interpreted devereaux and it made clear in that opinion that probable cause is not an element of a fabrication of evidence claim despite the fact that the state had claimed that it was so therefore a spencer requires reversal as to officer crenshaw since this mini presumption simply cannot apply to a fabrication of evidence claim like the one it issue here one that is because this fabrication of evidence claim is unrelated to any issue of probable cause the sole case is that the city cites for its argument that smitty is not limited to claims based on the lack of probable cause or beck and mcsherry neither supports this claim you know beck was only discussing fourth amendment cases based on lack of probable cause and it made this clear in its statement that it only applied to constitutional torts in which a lack of probable cause was that issue so that leaves only mcsherry and put the city concedes in mixed sherry and i quote here is unclear from experience whether the court applied smitty to the fabrication claim well given that concession and they are going to cite a case that was not in our record but we've submitted additional thirty given that concession judge to see ms opinion and morale is vs holder five sixty seven s third ten fifty eight controls which which provides that unstated assumptions on non litigated issues with you it says issues that are not raised or discussed are not mcsherry the court never stated that it was applying the smitty presumption to a separate fabrication of evidence claim unrelated to a lack of probable cause in fact every time the m court mentioned any issue about fabrication of evidence it was within a discussion of stating in the context of discussing the existence of probable cause so therefore it's spencer that controls and not mcsherry now even if the presumption would apply caldwell's evidence was sufficient to rebut the presumption now first smitty and all its progeny refer to the fact that the presumption is based on the prosecutor's knowledge at the time of filing charges and they say this over and over again smitty once made it to every other case they talk about the decision to file charges the city's only argument to get to you know to counter this overwhelming showing is once again mcsherry and what they say is well the prosecutor you know supposedly conducted interviews of witnesses subject to the charging decision but that in fact is pure conjecture nowhere in the district attorney's declaration that's that's quoted in the mcsherry opinion does he state anywhere that he interviewed witnesses subject to his charging decision there are no dates provided there in fact nowhere in the mix sherry opinion does the court state or discuss that it was considering any analysis by the prosecutor that occurred post charging in fact the mix cherry court repeatedly refers whether evidence including fabrication of evidence about the fabrication of evidence influenced the prosecutor's decision to file charges they say that over and over again and also nowhere in the mcsherry opinion does it state that mcsherry you know the plaintiff you know in that case argued that post charging decisions by the prosecutor were irrelevant to the presumption so once again more  controls and issue that's not raised by the parties and not discussed by the courts cannot be precedent and therefore we're back to what every other case but you know and smitty and his progeny state which is it's the prosecutor's knowledge at the time of filing charges will at some point the prosecutor here looking his declaration does seem to have taken this independent assessment of some of the evidence and made this decision to go forward after understanding in his view that there was this encounter at the door at that point does his independent assessment and independent decision to go forward with knowledge of the facts that concern you does the causation stop at that point and is your case limited to damages that your client may have suffered by virtue of being wrongfully charged but not wrongfully convicted report on trial there has been no case that says subsequent to the charging decision if the prosecutor then later becomes aware of stuff and still decides to go forward that this presumption applies to cut off any liability i'm not talking necessarily about this particular presumption but just under basic principles of causation if if the the prosecutor in this case in fact made an independent decision knowing all of the facts that concern you here and he made that decision before actually presenting the case to the trial how could the alleged wrong here by crenshaw have caused a wrongful conviction or wrongful incarceration all the cases that discuss this doctrine are a look at it as you know sort of as an evidentiary or pleading kind of doctrine even hartmann the supreme court case that applied in a retaliatory prosecution case is trying to look at this at the doctrine of the prosecutor's independent judgment you know not as something that continues on and on but we're trying to find some bright line rule that allows us you know to you know to make some sort of decision on causation here and so to continue to to look at you know now you know when we're talking about you know and charging decision which will take place you know hope you know presumably shortly after her arrest it makes sense to have this kind of bright line rule but then to have it go on and you know to have this kind of causation issue go on and on on and on to cut it off it would actually does it substitutes the prosecutor's judgment for the judgment of the jury as to whether there was a constitutional violation that occurred because like i said you know it to me there are several distinct stages in the criminal process where you might say you know you could cut off for the damage in another words it's a violation of the constitution to charge somebody with a crime on the basis of i think it's also probably separate violation to do you know go ahead with either a you know grand jury hearing or a preliminary hearing that's conducted on the basis of i mean that's a separate violation and that's a separate violation to convict somebody on the basis of fabricated  basis of the fabricated evidence will it and then it and then it's all cut off if you think the prosecutor's affidavit is sufficient it's cut off at the time of the preliminary hearing is not well this court would be making new law to to make that determination because there's no case that has ever done that before that has cut off a cut you know of the claim of a constitutional violation because the prosecutor made a judgment at some later time other than as an smitty at the charging decision in fact a lot of it in this case and the process of the d a s declaration and what the district court relied on a lot of this was even at trial he talks about even at trial was when i heard this evidence and i still decided to go forward and so if this court was to make that kind of rule that would effectively substitute the prosecutor's judgment for the jury's judgment and we submit that that's improper  you know i would like to go forward with respect to guarantee croly or the other things but i'm at the limit of my tomorrow ok ok a crime based on deliberately fabricated evidence there is no constitutional right to have a criminal investigation conducted in a particular manner and plaintiff's case today essentially that is a complaint about how this murder investigation was conducted and well is easy to scrutinize an investigation for errors twenty seven years after the fact plaintiff claims here fabrication fail law the trial court correctly granted defend his motion for summary judgment plaintiff argues that that a brief handwritten note drafted by sergeant crenshaw during a murder investigation is evidence of fabrication and the parties agree that starting crenshaw some days after the murder had a brief conversation with the plaintiff in the back of a police car and that sergeant crenshaw summarize that note in a now four sentences and forward that note to the homicide file for the homicide investigators who are been assigned the case plaintiff argues that that handwritten note is fabrication of a due process proportion because the no does not accurately reflect what he now says he told sergeant crenshaw that particular claim fails as a matter of law for three reasons one the notice not a fabric i asked just a preliminary question i don't necessarily understand playing this claim to be that any particular piece of evidence standing alone makes the fabrication claim but the universe of conduct by grandchild wasn't just the no it's the note when seen in conjunction with the show up you take it together this was a collective in the long run it it doesn't matter because it's immaterial the prosecutor looked at the note consider the note and found it in consequential the note to the extent it was relied on by the investigators will out was relied on for the simple fact that the note said consistent with what plaintiff testified to that he was at the scene of the murder shortly after it occurred and though doesn't say shortly after the murder the know it says i was up the street and came came after them came after the shooting i think the note says maurice caldwell stated that he was present at the shooting well i don't recall mr caldwell saying anything of the sort that he well i think that's the first half of that note says comma but he was down the street prior to the shooting so that is consistent especially with what co maintains to this day as i said the note is not a fabrication because it's it's not inconsistent with what he said he at least as i read that sentence he says before the shooting i was down the street during the shooting i was present when i don't see that i don't think in any case i don't think however the note was interpreted it was not interpreted by sergeant crenshaw or the inspectors as putting call well at the scene of the murder at the time the murder occurred i think it is agreed that it put a call well at the murder shortly after the initial shots were fired which is consistent of course with the eyewitness said and what the other witnesses said that's the that's the only import of the note but again it wasn't material most of them noticed pretty specific so i'm looking at the actual handwritten note mari's called gulf states that he was present at the shooting but he was down the street prior to the shooting caldwell was with the suspects dealing with that that puts him that puts him pretty squarely into this thing i mean whatever you want to say was present at the shooting but he was down the street might indicate some leeway but if he was present with the drug transaction that puts him there prior to the shooting ok i think it's in big us enough to to be interpreted in different ways but what's important is the the inspectors interpret it as caldwell saying he was not present at the initial shooting but was present shortly after and that's and that's in the record in multiple second shooter with a shotgun and that because it was the second shooter the no it's not material b because it didn't implicate him in the murder and i would discuss this a little bit it is a little i guess an issue of ing that was driving this investigation was the tip about maurice caldwell and of course a very reliable and credible eyewitness who saw the entire homicide firsthand from close distance witness during a routine canvass at the scene of the murders some some days later thirteen days later we of course we credit played its version of this event and that even crediting kind of version of the event there was nothing inherently suggestive about the circumstances of that interaction that would have made this identification correct that's disputed but if those things are true if cobb saw him and he was identified as twan and caldwell and crenshaw says i've got him that tends to go against the testimony that cop gave initially that she had no idea who the guy was you should never seen him before despite the fact that twice on live next door to her and have lived next door to her for months they were not he says he says didn't really speak to our but but she later but she later comes up with the name twang the first time she says i don't know who it was never seen him before around here and it turns out he lives next door to r and she later identifies him by name as twan and those those things don't really add up very well i mean let me his own testimony says he was only in the presence of this witness for twenty seconds those questions at the court asked were asked of mary cobbs a witness at trial and what she said was the following things she said one at the time i was describing the incident to the inspector i didn't i wasn't sure i know who the shooter was but i wasn't sure of his name and i didn't want to say a name at that point and it is point the finger at the wrong person  too she explained she learned the name tahn from her children of course her children had been threatened after the murder after she had began to cooperate ing and she had discussions with her kids about it that's where she learned the name cowell was not a resident of the alameda projects the council i'm a little i'm a little confused by what you just told me because i am looking now at the transcript of her discussion with the officers this is the july thirteenth interview with mary cobb and she tells them to the fellows live around here no they don't live around here and you've lived here long i've lived here eight years you're right and so what more is call it was not a resident of the on many projects he he had lived from time to time with the woman who lived next door to mary cops he also even at the time he was interviewed there he was interviewed at his mother's house which is on a different  different part of town and it was a place he said he he lived from time to time he also said he lived with his another girlfriend adreno great in daly city he also said during that period of time you look at a hotel what you're doing is  point is that well the way the made two very different statements and you're trying to explain the difference well isn't that for the jury to do for instance you know the other part about oh she knows nothing which is strange for some reason you've never seen before i didn't know who he was i mean there are contradictions in her you know to stick i you know the record was you know the record was included her trial testimony of course and i think that's explained in her testimony when she asked those questions and also explained other parts of the same record the same record the district court looked at  in that call actually game in had had several addresses and it inconsistent answers as to where he lived in a certain time so mary cobb says like well i see him around the neighborhood and you know she also explained that she had been relocated from up the street to the apartment she was in to time the murder once before i don't think that there was any big surprise she wasn't exactly clear where he lived or if he was a neighbor or not abusive investigation tactic prong in the problem is one as a matter of law this particular conduct is not coercive or abusive to there is no case there was no case then there's no case now that would have put a reasonable police officer on notice that that door interaction would have been unconstitutional there no devereaux cases that address a suggestive door suggestive out of court identification the only cases that address that lend any any help to this discussion are the manson biggers line of cases and we cited a bunch of cases in that brief that that have  many examples of single witness or sort of egregious or bad conduct identification cases and what manson biggers and those line of cases say we need all these id procedures are inherently suggestive some more so than others but the issue is not whether it's suggestive the issue is you know is it still reliable and has to be understood in the context of other factors such as you know did the witness have an opportunity to see the crime and see the suspect at the time of the crime the witnesses attention to detail the accuracy of the descriptions the certainty of the identifications there are many factors those factors when you look at mary and in her description of the event and her and her position at the time of the event and the fact that she she made crucial descriptive details before any alleged misconduct in this case occurred that ultimately led the pla conviction that identification even if it had been challenge the trial would have been admitted and there's nothing about it that would have put the officers on knows that it was some sort of constitutional violation  this is this is not a presumption case it's an invention case this case is just like mcsherry in the sense that in mcsherry there the same allegations were made there was an allegation that a police report that was fabricated by an officer was used against the defendant there was an allegation that there were improper identification procedures this case like me sherry in this case more so the prosecutor said i looked at all the evidence i interviewed all the witnesses i was aware of the things that plaintiff has now claim were misconduct i found there the evidence was lawful reliable and when the deposit you made that decision the prosecutor broke the chain of causation the prosecutor broke the chain of causation there's nothing about the alleged constitutional harm the plaintiff complains of there was cause for he convinced his conviction because the prosecutor interviewing the court says as pointed out it placed them at the scene it it's cut completely the statements attributed by crenshaw completely contradicted what caldwell had told the officers you know in the two times he was interviewed by them which was that he was in an apartment you know with a girlfriend if you want on that below why does it matter i mean that's that's the city's kind of rejoinder even if the note is inaccurate it played according to the  city no harm no foul it didn't end up hurting your person well but but i mean if this is a causation argument it did in fact we have all karen's and croly and the district attorney all say they looked at that note and they saw the inconsistency and that's what they relied on the inspector said that's what we relied on in deciding to focus on him is that you know when he if that that's an incriminating statement but no but it completely contradicts what he told us the district attorney said i looked at that and i considered that inconsistency and in fact this is to go to the question your honor that you had earlier about causation the the issue of whether this note was fabricated become aware to the district attorney at any time prior to trial there was you know incompetent counsel as you know that the as the district court found he never raised this issue the issue about the fabricated note only came up during the heebie as proceedings decades later so that so that basically this note was that was was one of the critical things that caused the officers to focus on him and that to you know the charges ultimately to be filed but the focus on in cause the charges the prosecutor made the charging decision in isn't his affidavit that the now so i assume now i think you're talking about the prosecutor's independent judgment standard rather than a pure causation standard and in that case the district attorney said i decided i looked at that and i considered that inconsistency he didn't say i didn't pay any attention he said i considered the inconsistency in deciding to file charges ok and as i pointed out he never found out it was never that he could have found out during you know at any time even all the way up to and during trial that the note was fabricated because that was never raised but what did then he failed minor in really didn't make a difference he he said that he thought the note itself was minor you know that's what he said i thought the note was minor so i didn't put it in evidence but that doesn't mean that if he had known that it was fabricated of what he would have done or how he would have you viewed things and he wasn't even aware of that and this is exactly what the you know the exceptions to the the rebuttal to the smithy standard  if you can show that the officers withheld information from the prosecutor so he couldn't have made an independent judgment and that's what you know what happened here he mean the real issue is did the fabricated note cause him to be charged tried and convicted and we have a summary as as your honor has pointed out this is summary judgment standard here and we have all of these disputed issues of fact about the note that this case is just like one cherry well it's not like mcsherry in quite a number of ways it will one day if we're talking about i think he's saying it's like mcsherry in applying the smitty presumption but where it's not is in the in this case we do not have a false arrest claim we do not have any claim this based on a lack of probable cause in smith in in mcsherry there was a claim like that in mcsherry but th also claim of fabrication sure there there was a claim that there was some fabrication but when the the court was discussing that it was discussing it only within every time it discussed it discussed it within whether there was probable cause it never said we're standing back you know we're we're just looking at a separate claim for fabrication of evidence you know that's unrelated to probable cause and we are going to apply the smiddy presumption to that it was basically lumped it all together that issue was never raised of whether the smitty presumption could apply to a separate claim for fabrication of evidence the long beach if you at the court can take traditional notice of the you know of the briefs below along the long beach my ability for the officers that's all that they said they didn't say you know anything about something that happened afterwards they just said it cuts off all liability and so that this issue of whether whether this may be presumption could be extended to causes of action that have nothing to do with the lack of probable cause was never raised or decided in on in in the mcsherry case and that makes this completely different