FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY GANTT,

Plaintiff-Appellant,

v.

CITY OF LOS ANGELES; RICK LANE,

#116702; JOSE L. REYES, #21778; AL

GONZALES, #15614; LOUIS

TROVATO; WILLIE WILLIAMS,

Defendants-Appellees.

No. 11-55000

D.C. No.

2:08-cv-05979-

ODW-CW

MICHAEL SMITH,

Plaintiff-Appellant,

v.

CITY OF LOS ANGELES; RICK LANE,

#16702; JOSE L. REYES, #21778; AL

GONZALES, #15614; LOUIS

TROVATO; WILLIE WILLIAMS,

Defendants-Appellees.

No. 11-55002

D.C. No.

2:09-cv-08565-

ODW-CW

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright, District Judge, Presiding
2 GANTT V. CITY OF LOS ANGELES

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

Argued and Submitted

February 11, 2013—Pasadena, California

Filed May 31, 2013

Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld

and Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman;

Dissent by Judge Kleinfeld

SUMMARY

*

Civil Rights

The panel reversed the district court’s judgment in favor

of defendants the City of Los Angeles and others and

remanded for a new trial in these consolidated actions

brought under 42 U.S.C. § 1983 after plaintiffs’ murder

convictions were vacated.

Plaintiffs were released from jail after, on retrial, a key

eyewitness recanted testimony that was allegedly obtained as

a result of coercive and abusive investigative techniques. The

panel held that in plaintiffs’ § 1983 actions, the district court

erred in instructing the jury about the level of culpability

required for a deliberate fabrication of evidence claim under

the Fourteenth Amendment. The panel held that the court

misled the jury when it appeared to equate the shocks-the-
GANTT V. CITY OF LOS ANGELES 3

conscience standard with an intent to injure. Moreover, the

panel held that the instructional error was not harmless

because given the evidence, a reasonable juror could have

concluded that defendants used investigative techniques that

were so coercive and abusive that they should have known

that those techniques would yield false information.

The panel held that at retrial the district court additionally

should consider whether a Brady instruction was warranted

and should also give a corrected conspiracy instruction. 

Dissenting, Judge Kleinfeld stated the fabrication of

evidence jury instruction was harmless because the

fabrication claim should not have gone to the jury at all.

Judge Kleinfeld stated that there was no evidence that police

exerted their pressure on the key witness in order to make

him testify to what the police believed to be false.

COUNSEL

Emmanuel C. Akudinobi (argued) and Chijioke O. Ikonte,

Law Offices of Akudinobi & Ikonte, Los Angeles, California,

for the Plaintiffs-Appellants.

Carmen A. Trutanich, City Attorney, Lisa S. Berger (argued)

and Amy Jo Field, Deputy City Attorneys, Office of the City

Attorney, Los Angeles, California, for Defendants-Appellees.
4 GANTT V. CITY OF LOS ANGELES

 A full recounting of the facts of the underlying crime and additional 1

aspects of the investigation are contained in the 2004 opinion.

OPINION

SILVERMAN, Circuit Judge:

Plaintiff-Appellants Timothy Gantt and Michael Smith

were tried and convicted of the August 19, 1992 murder of

Kalpesh Vardhan. An Arthur Andersen Consulting

employee, Vardhan was stabbed to death in a parking garage

in downtown Los Angeles. This is the second time this

matter has come before us. In 2004, we reversed the denial

of Gantt’s federal habeas petition and remanded the case for

an evidentiary hearing. Gantt v. Roe, 389 F.3d 908, 916 (9th

Cir. 2004). That resulted in the issuance of the writ, a retrial 1

and, after the key witness recanted his testimony, the

dismissal of all charges with prejudice during the course of

the trial. Smith won release in 2009 on a habeas petition.

The instant appeal concerns the unsuccessful lawsuits under

42 U.S.C. § 1983 filed by Gantt and Smith following their

release. The case proceeded to trial and resulted in a verdict

for the defendants on all claims. On appeal, Gantt and Smith

challenge certain jury instructions and evidentiary rulings.

We reverse and remand for a new trial.

BACKGROUND

During the original criminal trial that resulted in

Appellants’ convictions, three witnesses attempted to connect

Gantt and Smith to the murder. The sole alleged eyewitness

to the crime was a local car burglar named David Rosemond,

whom the police picked up two months after the murder on

a burglary charge. Rosemond claimed he was in the parking
GANTT V. CITY OF LOS ANGELES 5

 Deputy District Attorney Grace testified that Rosemond said the 2

detectives had informed Rosemond of the $40,000 reward put up by the

City of Los Angeles and Arthur Andersen Consulting because he was

reluctant to testify, and instructed him not to say anything about the

reward in court. Ultimately, Rosemond was awarded a portion of the

$40,000 total for his testimony. However, it appears that the court

overruled a colorable hearsay objection to Grace’s testimony as to

Rosemond’s statements. Since no exception applied, this was improperly

admitted, and we do not consider it.

garage on the morning Vardhan was killed, looking to steal

car radios to finance a drug habit. He testified that he saw

Gantt beating up the victim and Smith standing next to them,

holding a gun. Rosemond did not intervene or call for help

but, after the assailants had fled, he approached the scene and

took the dying victim’s ATM card.

LAPD homicide detectives Jose Reyes and Rick Lane,

both Defendant-Appellees here, interrogated Rosemond.

Rosemond testified that, at the time he was taken into

custody, he had been awake for approximately two days

straight on a crack binge and was still under the influence

when he made his identifications. Over the course of the

hours-long interrogation, the detectives threatened to charge

him with the murder if he did not provide information: “They

said if I didn’t give them something, that I would go down for

it.” Rosemond also testified as follows: 2

It was some days. It wasn’t just one day. It

was like, I don’t know, four or five or six

hours in that little room. And then I would go

back to my cell and they would bring me back

the next day and ask me more questions and

show me pictures. It was kind of like trying
6 GANTT V. CITY OF LOS ANGELES

to scare me. I don’t know if that was their

intention.

Additionally, Rosemond told Reyes and Lane that he believed

Gantt had once robbed him, but this statement did not make

it into their reports or the chronological log, or come out at

trial. During the first trial, Rosemond testified on crossexamination that he bore no animosity towards Gantt and had

no reason to have any biased view of him.

The District Attorney’s office initially rejected the case,

in part, because of concerns about Rosemond’s credibility

and granting Rosemond immunity. The evidence was

subsequently reviewed by a different prosecutor who decided

to go forward with the case after re-interviewing Rosemond.

The second witness was Kevin Shorts, a CPA at Arthur

Andersen, who claimed he saw Gantt and Smith near the

scene of the crime around the time of the murder. Shorts told

Lane and Reyes that he saw Gantt driving a vehicle on the

sixth floor of the garage and that he was able to see Gantt’s

face reflected in a rear-view mirror for a matter of seconds.

He identified Gantt from a photo array. However, Shorts

initially identified an individual by the name of Raymond

Wilson as the accomplice who was standing outside the

vehicle, before identifying Smith. While parked on the sixth

floor of the garage reading his mail, Shorts did not hear any

screaming or sounds of an attack or struggle; nor did he see

Rosemond. Shorts collected a $20,000 reward for his

testimony.

The third witness was Jose Cubias, the parking garage

attendant on duty. Cubias did not witness the crime either,

but he did see a car with two black men exit the garage. He
GANTT V. CITY OF LOS ANGELES 7

testified that he recalled the vehicle because it was the only

no-pay ticket that day—the car was in the garage for only

approximately five minutes and, therefore, no fee was

charged. Cubias identified the vehicle from a composite

sketch and initially was able to say Gantt’s photo resembled

the driver.

The only physical evidence potentially linking Gantt to

the crime was a matchbook from an Indian restaurant in the

Los Angeles area, which was found on his person at the time

of his arrest. The prosecution’s theory was that this item was

lifted from Vardhan’s person at the time of the crime. The

matchbook contained a handwritten phone number, but the

handwriting analysis could not conclusively link it to the

victim. The 19-digit phone number connected to an

individual in Bangladesh who did not recognize Vardhan’s

name or photo. The man’s son, who worked at the restaurant,

also did not recognize Vardhan from the photo. In 2004, we

held that the prosecutors had violated Brady by failing to

disclose that these individuals had not recognized the victim.

Gantt, 389 F.3d at 910–11. We reversed the denial of Gantt’s

federal habeas petition on the grounds that given the

weakness of the prosecution’s evidence and the state’s

reliance on the matchbook, these Brady violations were not

harmless and could well have altered the outcome of the case.

Id. at 915–16. Our decision did not reach any of Gantt’s

other claims. We remanded the case for an evidentiary

hearing to determine whether the disclosure violations had in

fact occurred. Id. at 916. On remand, the district court

granted Gantt’s habeas petition, and a retrial was scheduled.

In the middle of the retrial in 2008, Rosemond recanted

his original testimony, which had pinned the murder on Gantt

and Smith. The prosecution moved to dismiss all charges
8 GANTT V. CITY OF LOS ANGELES

 Gonzales, LAPD’s homicide unit supervisor during the investigation 3

of the murder, served as Reyes and Lane’s immediate supervisor. As

commanding officer for the division, Lieutenant Trovato supervised

Gonzales.

against Gantt with prejudice, and he was released. Smith

subsequently prosecuted a writ of habeas corpus and was

released in 2009.

Gantt and Smith filed separate Section 1983 actions,

which were consolidated for discovery and trial. Gantt’s

Second Amended Complaint stated the following claims

under 42 U.S.C. §§ 1983, 1985: (1) malicious prosecution;

(2) due process violation based on Brady violations, failure to

preserve or analyze evidence, and fabrication of evidence; (3)

reckless indifference to civil rights; (4) conspiracy under

§ 1985; (5) conspiracy to violate Gantt’s constitutional rights

under § 1983; and (6) Monell liability. He named as

defendants retired detectives Lane and Reyes, the County of

Los Angeles, the City of Los Angeles, Al Gonzales,

Lieutenant Louis Trovato, LAPD Chief Willie Williams,

Deputy D.A. Sterling Norris, and D.A. Investigator Edward

Boyer.3

The Smith Complaint, filed over six months later in

November 2009, against the City of Los Angeles, Lane,

Reyes, Gonzales, Lieutenant Trovato, and LAPD Chief

Williams, stated the following claims: (1) malicious

prosecution; (2) due process violations premised on the nondisclosure of Brady and Giglio evidence; (3) failure to gather,

preserve, and/or disclose material exculpatory evidence; (4)

fabrication of evidence; (5) unconstitutionally suggestive

line-up and identification procedures; (6) Monell liability; (7)

reckless indifference to civil rights; (8) failure to intervene to
GANTT V. CITY OF LOS ANGELES 9

prevent civil rights violations; and (9) conspiracy under

42 U.S.C. § 1985.

On April 9, 2009, the court granted a motion for judgment

on the pleadings as to the County of Los Angeles, Deputy

D.A. Norris, and D.A. Investigator Boyer, citing absolute

prosecutorial immunity and ruling that Monell liability does

not apply to a county in such circumstances.

The case was divided into individual liability, Monell

liability, and punitive damages phases. Gantt and Smith

dismissed their claims against Gonzales, Williams, and

Trovato, and withdrew their § 1985 conspiracy claims.

Additionally, Smith withdrew his claim for reckless

indifference to civil rights violations, as well as his claim for

failure to intervene to prevent civil rights violations. Thus,

the case proceeded on the malicious prosecution, due process

and fabrication of evidence, Brady/Giglio, failure to gather

and preserve evidence, unconstitutional identification,

conspiracy to violate constitutional rights under § 1985, and

Monell liability claims against Defendants Lane, Reyes, and

the City of Los Angeles. A jury returned a verdict for the

Defendants on all these claims.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. “The

standard of review for an alleged error in jury instructions

depends on the nature of the claimed error.” Jenkins v. Union

Pac. R.R. Co., 22 F.3d 206, 210 (9th Cir. 1994). “A district

court’s formulation of the jury instructions is reviewed for

abuse of discretion. If, however, the instructions are

challenged as a misstatement of the law, they are then

reviewed de novo.” Duran v. City of Maywood, 221 F.3d
10 GANTT V. CITY OF LOS ANGELES

1127, 1130 (9th Cir. 2000) (per curiam) (internal quotation

marks and citation omitted). Incomplete instructions are

treated as legal errors and reviewed de novo as well. Dang v.

Cross, 422 F.3d 800, 804–06 (9th Cir. 2005).

“We have stressed that jury instructions must fairly and

adequately cover the issues presented, must correctly state the

law, and must not be misleading.” Id. at 804 (alteration,

quotation marks, citation omitted). “Further, ‘[a] party is

entitled to an instruction about his or her theory of the case if

it is supported by law and has foundation in the evidence.’”

Id. at 804–05 (quoting Jones v. Williams, 297 F.3d 930, 934

(9th Cir. 2002)). There must be a sufficient evidentiary

foundation to support giving the instruction. Yan Fang Du v.

Allstate Ins. Co., 697 F.3d 753 (9th Cir. 2012) (citing Mendez

v. Cnty. of San Bernardino, 540 F.3d 1109, 1117–18 (9th Cir.

2008)). “Whether there is sufficient evidence to support an

instruction is reviewed for abuse of discretion.” Id. (citations

omitted).

“If, however, the error in the jury instruction is harmless,

it does not warrant reversal.” Dang, 422 F.3d at 805. “In

evaluating jury instructions, prejudicial error results when,

looking to the instructions as a whole, the substance of the

applicable law was [not] fairly and correctly covered.”

Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001)

(alteration in original; internal quotation marks and citations

omitted). Harmless error review for a civil jury trial is as

follows:

An error in instructing the jury in a civil case

requires reversal unless the error is more

probably than not harmless. Because we

presume prejudice where civil trial error is
GANTT V. CITY OF LOS ANGELES 11

concerned, the burden shifts to the defendant

to demonstrate that it is more probable than

not that the jury would have reached the same

verdict had it been properly instructed.

Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (internal

citations and quotation marks omitted). “Prejudice is also

generally more likely than not if ‘nothing about th[e jury’s]

verdict indicates that the result would have been the same

without the error.’” Id. (quoting Caballero v. City of

Concord, 956 F.2d 204, 207 (9th Cir. 2009)).

DISCUSSION

1. Fabrication of Evidence

The district court erred in instructing the jury about the

level of culpability required for a deliberate fabrication of

evidence claim under the Fourteenth Amendment. In

Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc),

we held that “there is a clearly established constitutional due

process right not to be subjected to criminal charges on the

basis of false evidence that was deliberately fabricated by the

government.” Id. at 1074–75. We stated that in order to

establish deliberate fabrication of evidence, a plaintiff

must, at a minimum, point to evidence that

supports at least one of the following two

propositions: (1) Defendants continued their

investigation of [the plaintiff] despite the fact

that they knew or should have known that he

was innocent; or (2) Defendants used

investigative techniques that were so coercive

and abusive that they knew or should have
12 GANTT V. CITY OF LOS ANGELES

known that those techniques would yield false

information.

Id. at 1076. Plaintiffs adduced no evidence to support the

first theory, so they only could be relying on the second

Devereaux basis.

Regarding the required level of culpability, due process

violations under the Fourteenth Amendment occur only when

official conduct “shocks the conscience,” Wilkinson v. Torres,

610 F.3d 546, 554 (9th Cir. 2010), but what that means

“depends on the context,” Tennison v. City and Cnty. of San

Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009); see also

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In

Wilkinson, we explained that:

Where actual deliberation is practical, then an

officer’s “deliberate indifference” may suffice

to shock the conscience. On the other hand,

where a law enforcement officer makes a snap

judgment because of an escalating situation,

his conduct may only be found to shock the

conscience if he acts with a purpose to harm

unrelated to legitimate law enforcement

objectives.

610 F.3d at 554 (citations omitted). And in Tennison, we also

made clear that acting with “deliberate indifference to or

reckless disregard for an accused’s rights” was “consistent

with the standard imposed in the substantive due process

context, in which government action may violate due process

if it ‘shocks the conscience.’” 570 F.3d at 1089.
GANTT V. CITY OF LOS ANGELES 13

 The instructions quoted in this opinion are taken from the final written 4

jury instructions. There are immaterial variances between the written set

of instructions and the transcript recording the court’s verbal instructions

to the jury.

The relevant portion of the instruction the court gave the

jury was as follows:

Coercive and abusive investigative

techniques violate a person’s 14th amendment

[right] to due process when they shock the

conscience, that is, the conduct of the police

officer is intended to injure in some way,

unjustified by any governmental interest.

Torture is an example of a coercive and

abusive investigative technique.

Deliberate indifference is the conscious or

reckless disregard of the consequences of

one’s acts or omissions. It entails something

more than negligence but is satisfied by

something less than acts or omissions for the

very purpose of causing harm or with

knowledge that harm will result.4

This explanation of the law was confusing and misleading in

two related respects. First, it failed to state the intent-toinjure and deliberate-indifference standards in a clear

disjunctive format, so that a reasonable juror would

understand each of these satisfies the broader “shocks-theconscience” standard. Second, it included only torture as an

example of what would satisfy the “shocks-the-conscience

standard.” Had the court given only the second paragraph as

an instruction on the level of culpability, there would be no
14 GANTT V. CITY OF LOS ANGELES

error. None of the proffered evidentiary bases for this claim

involved “a snap judgment because of an escalating

situation,” Wilkinson, 610 F.3d at 554, so the court could

have simplyomitted the intent-to-injure (or purpose-to-harm)

standard altogether. Instead, the court misled the jury when

it appeared to equate the “shocks-the-conscience” standard

with an intent to injure.

The question is whether the instructional error was

harmless. The district court recognized that there was

sufficient evidence to submit the claim to the jury. On our

own independent review of the evidence, we concur that there

was sufficient evidence to instruct the jury on the claim of

fabrication of evidence. Rosemond testified that the

detectives threatened to charge him with the murder if he did

not provide information. The manner and circumstances of

Rosemond’s interrogation also support the conclusion that

there was sufficient evidence to send this claim to the jury:

“[Q:] Did any of the officers show you some materials where

they told you don’t say we showed you this? . . . . [A:] I

would say yes.” Furthermore, Lane and Reyes did not think

Rosemond was still under the influence during the

interrogation, but he testified that he had been awake for

approximately two days straight on a crack binge, and was in

fact still high when he made his identifications. A reasonable

juror could have concluded that the “Defendants used

investigative techniques that were so coercive and abusive

that they . . . should have known that those techniques would

yield false information.” Devereaux, 263 F.3d at 1076. The

question was triable and for the jury to resolve.

As the district court itself recognized, the plaintiffs

produced enough proof of their claim of fabrication of

evidence both to survive a motion for judgment as a matter of
GANTT V. CITY OF LOS ANGELES 15

law and to have the jury instructed on that theory. It therefore

follows that the erroneous jury instructions cannot be deemed

harmless for lack of proof. Accordingly, we reverse and

remand for a new trial on the fabrication of evidence claim.

2. Brady Claim

We have held in no uncertain terms that Brady’s

requirement to disclose material exculpatory and

impeachment evidence to the defense applies equally to

prosecutors and police officers. Tennison, 570 F.3d at 1087.

“Brady suppression occurs when the government fails to turn

over even evidence that is known only to police investigators

and not to the prosecutor.” Youngblood v. West Virginia,

547 U.S. 867, 869–70 (2006) (per curiam) (citation and

quotation marks omitted). “To state a claim under Brady, the

plaintiff must allege that (1) the withheld evidence was

favorable either because it was exculpatory or could be used

to impeach, (2) the evidence was suppressed by the

government, and (3) the nondisclosure prejudiced the

plaintiff.” Smith v. Almada, 640 F.3d 931, 939 (9th Cir.

2011); accord Milke v. Ryan, No. 07-99001, 2013 WL

979127, at *13 (9th Cir. Mar. 14, 2013).

The district court declined, without explanation, to give

an instruction on the Brady claim. That claim was premised

on the police officers’ failure to disclose that Rosemond told

them that he had been robbed by Gantt in the past. Plaintiffs

contend that they could have used that information to show

Rosemond’s animosity towards Gantt and thereby impeach

his story. However, it is possible that the court reasoned that

the police cannot be faulted for failing to see the mitigating

value of Rosemond’s statement about the prior robbery.

Indeed, the court may have concluded the police reasonably
16 GANTT V. CITY OF LOS ANGELES

 Plaintiff-Appellants complain that Judge Wright was biased against 5

them. We find no reason to reassign this matter. Mindful that this was a

difficult case to try, we respectfully remind the district court and the

parties to maintain an atmosphere of mutual respect and civility.

viewed it as more incriminating than mitigating by showing

both Gantt’s propensity to rob and his familiarity with the

person he purported to identify. At any retrial in this matter,

the court should consider whether a Brady instruction is

warranted and explain its ruling.

3. Conspiracy Under 42 U.S.C. § 1983

Defendants concede that the conspiracy instruction was

erroneous, but argue harmlessness. The court gave an

instruction for a 42 U.S.C. § 1985 claim, but Plaintiffs were

prosecuting a § 1983 claim. If a new trial is to be held, the

correct conspiracy instruction must be given.

4. Remaining Assignments of Error and Claims

Plaintiff-Appellants’ remaining assignments of error

either lack merit or the claims are not supported by sufficient

evidence in the record, such that any claimed instructional

error was harmless—or both. Because we find reversible

instructional error in this case and remand for a new trial, we

need not rule on the claimed errors in the district court’s

evidentiary rulings. However, if Plaintiffs again seek to use

a police-practices expert, the court may not exclude this

testimony without first allowing Plaintiffs to make a proffer

and then giving specific reasons for the exclusion.5
GANTT V. CITY OF LOS ANGELES 17

CONCLUSION

Accordingly, we REVERSE and REMAND for a new

trial limited to the specific claims outlined above.

KLEINFELD, Senior Circuit Judge, dissenting:

Gantt and Smith did not get a fair trial. We therefore

caused their convictions to be vacated. The evidence against

them was weak, so when one of the prosecutor’s three main

witnesses changed his story in the middle of Gantt’s second

trial, the prosecutor dismissed. Both are now free, and further

prosecution is barred. Their guilt or innocence, and the

fairness of their first criminal trial, are no longer before us.

What we have before us are their civil lawsuits against the

two police officers who instigated the prosecution. The trial

judge let the fabrication of evidence claim get to the jury, and

gave some arguably confusing or erroneous instructions. Any

such trial error, though, was harmless, because plaintiffs

lacked a prima facie case.

That is not to suggest that Gantt and Smith were treated

fairly in the criminal proceedings, or that they committed the

murder. From all we can tell from the record, the two police

detectives thought Gantt and Smith had murdered Kalpesh

Vardhan, and did all they could, rightly and wrongly, to get

them convicted for it. The evidence against Gantt and Smith,

though, was very thin, and, whatever the police detectives

thought, the prosecutor did not think he could prove murder

once a key witness changed his story. One of the three

witnesses, the accountant, was shaky on the identifications.
18 GANTT V. CITY OF LOS ANGELES

The second, the one who changed his story in the middle of

the second trial, was a thief in the garage to steal car stereos.

He was not very credible, both because he was a thief, and

because (though the prosecutors and police hid this from

defense counsel), he probably had a grudge against Gantt.

The third witness, the parking garage attendant, seems to me

to be as supportive of the defense as of the prosecution. On

the one hand, he was the best witness for putting Gantt and

Smith in the garage at the right time, but on the other hand,

their parking garage ticket put them there for what sounds

like too short a time to locate, rob, and kill the victim. The

only physical evidence was a matchbook Gantt had from an

Indian restaurant, used by the prosecution to suggest that the

non-Indian defendants took it from the ethnically Indian

victim. The matchbook turned out to be a false lead because

no one could establish that the Indian victim had ever been to

the restaurant. The prosecution hid from the defense in the

first trial the evidence that it was a false lead.

But the thinness of the evidence for murder does not

establish fabrication of evidence, the theory the majority

accepts. The tort theory would be, basically, that the

prosecutors and police knew Gantt and Smith were innocent

and prosecuted them anyway, and created false evidence with

which to do it. Gantt and Smith failed to establish a prima

facie case for fabrication of evidence.

Any inadequacy in the fabrication of evidence jury

instruction was harmless, because the fabrication claim

should not have gone to the jury at all. The constitutional

violation claimed is that the police denied due process of law

to Gantt and Smith by fabricating evidence. The supposedly

fabricated evidence was the car stereo thief’s identification.
GANTT V. CITY OF LOS ANGELES 19

 The American Heritage Dictionary 484 (2d. coll. ed. 1985). 1

 Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc). 2

 Id. at 1073. 3

 Id. at 1074–75. 4

“Fabrication” means creating something in order to deceive.1

The interrogation techniques used on Rosemond, the car

stereo thief, may have violated his rights but that is not

enough to establish that Gantt’s and Smith’s rights were

violated. There was no evidence that the police exerted their

pressure on Rosemond in order to make him testify to what

the police believed to be false.

Had one of the policemen gone to an Indian restaurant,

obtained a matchbook, and planted it in Gantt’s pocket, in

order to tie him to the ethnically Indian victim, that would be

fabrication of evidence. Or had the car stereo thief told the

police that Gantt and Smith were not the men he saw, and

they told him, “testify that he was, or we’ll frame you for the

murder,” that would be fabrication of evidence. The due

process violation consists, essentially, of creating false

evidence to frame someone for a crime.

We spoke to what “fabrication of evidence” means in

Devereaux v. Abbey, an en banc case arising out of the 2

Wenatchee “sexual abuse ‘witch hunt’ in which 43 adults

were charged with over 29,000 counts of sexual

molestation.” We held that “there is a clearly established 3

constitutional due process right not to be subject to criminal

charges on the basis of false evidence that was deliberately

fabricated by the government.” We deemed such fabrication 4
20 GANTT V. CITY OF LOS ANGELES

 Id. at 1075 (discussing Pyle v. Kansas, 317 U.S. 213 (1942)).

5

 Id. at 1076. 6

 Id. 7

 Id. 8

 Id. at 1077. 9

comparable to knowing use of perjured testimony, the subject

of the Supreme Court decision in Pyle v. Kansas.

5

Yet the “fabrication” claim was unsuccessful as a matter

of law even in the Wenatchee witch hunt. We held that, even

though the lengthily interrogated children who denied having

been sexually molested were pressured for hours until they

changed their stories to what the investigating detective and

social workers wanted them to say, the victim of the false

charges “ha[d] not adduced or pointed to any evidence in the

record to support” a fabrication claim. He would have had

6

to show either that the defendants continued investigating him

even though they “knew or should have known that he was

innocent,” or that their techniques “were so coercive and

abusive that they knew or should have known that those

techniques would yield false information.” We held that the 7

“critical element” of the “coercive and abusive” claim was

that the defendants “knew or should have known that they

were eliciting false accusations.” We held that improper 8

investigation “is one thing, intentionally fabricating false

evidence is quite another.” Even pressuring child witnesses 9

for long periods of time to change their stories was not

enough to get past summary judgment, because the victim of

the false charges lacked evidence that the investigators knew
GANTT V. CITY OF LOS ANGELES 21

 Id. 10

 Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc); 11

Cunningham v. City of Wenatchee, 345 F.3d 802 (9th Cir. 2003).

or should have known that he “was innocent,” or that their

improper techniques “would yield false information.”10

Under Devereaux, pressuring the car stereo thief to

implicate Gantt and Smith did not entitle them to trial, much

less setting aside a jury verdict for fabrication of evidence,

because the police did not know (nor do we) that they were

innocent, or that the interrogation techniques would yield a

false identification. As for the suggestion that if he could not

identify Gantt and Smith as the perpetrators, they would “put

it on” him, they did not know that Gantt, Smith, or the car

stereo thief was innocent, so the coercive threat is not

“fabrication” under Devereaux.

In Gantt’s and Smith’s case, there was no witch hunt.

There is no particular reason to think that Gantt and Smith are

innocent, much less that the police knew they were. There is

no showing that the police believed the identification the car

stereo thief made was false. He himself has not claimed that

he lied twenty years ago, just that he can no longer remember

and had not been wearing his glasses. We held in the

Wenatchee witch hunt cases that the plaintiffs were not

entitled to get to trial on their fabrication of evidence cases.11

A fortiori, the far less coercive questioning and the lack of

any reason to infer a frameup of an innocent man did not

entitle Gantt and Smith to put their fabrication case before a

jury. Here the plaintiffs were mistakenly permitted to try

their cases, and the jury returned verdicts that a correct

application of law would have compelled regardless of their
22 GANTT V. CITY OF LOS ANGELES

verdicts. The fabrication of evidence claim is no more than

a claim that false evidence, not known by the prosecution to

be false, was used to convict them.

Because the fabrication of evidence claim should not have

gone to trial at all, there being no prima facie case, we need

not reach the questions about the correctness of the

instructions. The case was put to the jury, which reached the

legally required conclusion despite the poor instructions. The

publication of today’s decision vastly expands the application

of § 1983 to failed prosecutions, in quite a dangerous way.

Now police pressure on a witness to tell what the police

believe to be the truth arguably opens the door to a § 1983

claim. We should affirm on the fabrication of evidence

claims, the basis for the reversal.