FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAURICE CALDWELL,

Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO; SAN FRANCISCO POLICE

DEPARTMENT; KITT CRENSHAW;

ARTHUR GERRANS; JAMES

CROWLEY,

Defendants-Appellees.

No. 16-15473

DC No.

3:12-CV-01892-

EDL

OPINION

Appeal from the United States District Court

for the Northern District of California

Elizabeth D. Laporte, Magistrate Judge, Presiding

Argued and Submitted October 13, 2017

San Francisco, California

Filed May 11, 2018

Before: A. Wallace Tashima and Jay S. Bybee, Circuit

Judges, and Matthew Frederick Leitman,* District Judge.

Opinion by Judge Tashima

*

 The Honorable Matthew Frederick Leitman, United States District

Judge for the Eastern District of Michigan, sitting by designation.
2 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and remanded in an action

brought pursuant to 42 U.S.C. § 1983 alleging that San

Francisco Police Department officials fabricated evidence

against plaintiff during his investigation for murder.

Plaintiff spent nearly twenty years in prison as a result of

his murder conviction. He brought a § 1983 action after a

state court granted his petition for writ of habeas corpus and

ordered his release. Plaintiff alleged that a police sergeant

deliberately manufactured a “show-up” by exposing him to a

witness with the purpose of manipulating that witness into

misidentifying plaintiff as the murder suspect. He further

alleged that the sergeant deliberately fabricated a statement

by plaintiff that placed plaintiff at the site of the shooting. 

Finally, plaintiff alleged that his interaction with police

inspectors during a photo lineup were so coercive that they

rose to the level of deliberate fabrication of evidence.

In reversing the district court’s grant of summary

judgment in favor of the police sergeant, the panel held that

drawing all reasonable inferences in favor of plaintiff, he

established that the sergeant had a motive to retaliate against

him. He further raised a genuine issue as to whether the

sergeant arranged the show up, deliberately fabricated the

statement and memorialized it in falsified notes. The panel

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

been prepared by court staff for the convenience of the reader.
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 3

held that plaintiff rebutted any presumption of prosecutorial

independence and established a triable issue as to whether the

allegedly fabricated identification and falsified statements

caused him harm.

In affirming the district court’s summary judgment as to

the police inspectors, the panel held that their conduct during

a photo line-up was not so coercive that it rose to the level of

fabricated evidence. 

COUNSEL

TerryGross (argued), Adam C. Belsky, and Monique Alonso,

Gross Belsky Alonso LLP, San Francisco, California, for

Plaintiff-Appellant.

Sean F. Connolly (argued) and BradleyA. Russi, DeputyCity

Attorneys; Cheryl Adams, Chief Trial Attorney; Dennis J.

Herrera, City Attorney; Office of the City Attorney, San

Francisco, California; for Defendants-Appellees.
4 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

OPINION

TASHIMA, Circuit Judge:

INTRODUCTION

Plaintiff-Appellant Maurice Caldwell spent nearlytwenty

years in prison for the 1990 murder of Judy Acosta. Upon

release,1 Caldwell sued San Francisco Police Department

(“SFPD”) officials Kitt Crenshaw, Arthur Gerrans, and James

Crowley, under 42 U.S.C. § 1983, for allegedly fabricating

evidence against him during the murder investigation.

As to Sergeant Crenshaw, Caldwell alleges that the

officer deliberatelymanufactured a “show-up” with Caldwell

at a witness’ door. Specifically, Caldwell asserts that

Crenshaw deliberatelyexposed Caldwell to a witness with the

purpose of manipulating that witness into misidentifying

Caldwell as the murder suspect. The alleged show-up, if it

occurred, may have worked. Mary Cobbs, the witness in

question, later picked Caldwell out of a photo lineup despite

her initial description of the suspect being, in some regards,

inconsistent with Caldwell’s physical traits.

1 On December 15, 2010 the Superior Court of California, County of

San Francisco, granted Caldwell’s petition for a writ of habeas corpus and

ordered his release. Caldwell argued that he was entitled to the writ on the

grounds of, among other things, ineffective assistance of counsel, actual

innocence and that newly discovered evidence undermined the

prosecution’s case. The court held that Caldwell’s trial attorney was

ineffective on account of failing to investigate potential alibi and other

eyewitnesses that supported Caldwell’s arguments that he was not present

and was not the shooter. The court did not rule on Caldwell’s other

grounds in support of his petition.
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 5

Regarding Inspectors Gerrans and Crowley, Caldwell

alleges that their investigative techniques – mostly their

interactions with Cobbs during the photo lineup – were so

coercive that they rose to the level of deliberate fabrication of

evidence.

The district court granted all of Defendants’ motions for

summary judgment, but for different reasons. As to

Crenshaw, the district court held that Caldwell had raised a

triable issue as to whether the Sergeant fabricated evidence. 

The district court concluded, however, that the Sergeant was

shielded from liability because the prosecutor’s decision to

charge Caldwell was subject to a presumption of

independence and, therefore, broke the chain of causation

between the alleged wrongdoing and Caldwell’s harm. As to

Gerrans and Crowley, the district court held that Caldwell had

not raised a triable issue as to whether either or both of them

had deliberately fabricated evidence.

We hold that because Caldwell rebutted any presumption

of prosecutorial independence, he established a triable issue

as to whether Crenshaw fabricated evidence against him. 

Therefore, we reverse and remand as to Crenshaw.2 As to

Gerrans and Crowley, we hold that their investigation

techniques were not so coercive that they rose to the level of

fabricated evidence. Thus, we affirm as to Gerrans and

Crowley.

2 Caldwell also brought claims against the SFPD, and the City and

County of San Francisco, under Monell v. Department of Social Services,

436 U.S. 658 (1978), but the district court did not reach the issue. The

district court should address these claims on remand.
6 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Acosta Murder and Caldwell’s Conviction

On June 30, 1990, a group of four persons, including Judy

Acosta and Domingo Bobila, went to a San Francisco housing

project to buy drugs. There, a group approached Acosta and

Bobila, offering to sell crack. The sale went wrong and one

of the dealers pulled out a handgun and shot Acosta in the

chest. Bobila tried to flee in his car and a second man began

firing a shotgun. Bobila and Acosta were hit by shotgun fire

and Acosta died in the car. Caldwell claims that he was not

present at the shooting; Defendants claimed that Caldwell

was the shotgun shooter.

In March 1991, a jury convicted Caldwell of seconddegree murder for shooting Acosta with the shotgun. Mary

Cobbs testified at trial and identified Caldwell as the shotgun

shooter.3 A few months afterwards Cobbs and her children

received roundtrip tickets to Disneyland from the San

Francisco Secret Witness Program.

B. The July 13, 1990 Canvass

On July 13, 1990, Inspector Gerrans, Sergeant Crenshaw,

and Officer Robert Doss of the SFPD canvassed the housing

project where the Acosta murder occurred. The general

purpose of the canvass was to, among other things, find

witnesses to the murder. The day before, the police had

received an anonymous tip that the police should “check out”

Caldwell, “who had been shooting off guns in the projects . . .

3

 Cobbs passed away in 1998.
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 7

for years.” During the canvass, Gerrans mentioned the name

Caldwell to Crenshaw and Crenshaw said he knew him.

Caldwell and Crenshaw had history. Caldwell had

interacted with Crenshaw between six and nine times prior to

the 1990 murder investigation. During these stops Caldwell

said that Crenshaw would tell him things such as,“[h]e [sic]

going to catch me, and when he do catch me, he going to end

up killing me or he going to have me in jail for the rest of my

life, you know.” Five months before the murder, Caldwell

filed a complaint with the Office of Citizen Complaints

(“OCC”)

4

against Crenshaw. During the OCC’s

investigation, Crenshaw admitted telling Caldwell:

One day I’m going to be sitting up there and

you’re going to be blown away. Something’s

going to happen to you because sooner or later

I’m going to catch you with a gun and you

and I are going to have it out. I’m going to kill

you. Next time we’re going to get the drop on

you.

Gerrans later testified that had he known about Crenshaw and

Caldwell’s history, he may have had second thoughts about

Crenshaw being involved in the investigation.

4 According to the City and County of San Francisco’s government

website, “[t]he OCC was the civilian oversight department for the San

Francisco Police Department . . . . The OCC investigated complaints of

misconduct and neglect of duty by police officers, could file disciplinary

charges against officers, and make policy recommendations.” See DEP’T

OF POLICE ACCOUNTABILITY, New! The OCC is now the Department of

Police Accountability, SFGOV (Feb. 7, 2017), http://sfgov.org/dpa/newsrelease/new-occ-now-department-police-accountability.
8 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

Gerrans met Cobbs during the course of the canvass. 

Cobbs had witnessed the shooting and agreed to an interview

with Gerrans. During the interview, Cobbs stated that the

shooters did not live around her, but that she recognized them

from seeing them in the area a few times. Cobbs said she did

not know the shooters’ names or nicknames. Cobbs gave a

description of the shotgun shooter as a 5'4", 150-pound,

African-American man that wore his hair in a jheri curl. 

Caldwell had an apartment next door to Cobbs’ and may have

lived there.

1. The Alleged Show-up at Cobbs’ Door

During the July 13, 1990, canvass, Crenshaw saw

Caldwell on the street and approached him. In Caldwell’s

retelling, Crenshaw knew that Gerrans was interviewing a

potential witness and marched Caldwell to Cobbs’ door. At

the door Crenshaw knocked, Cobbs answered, and Crenshaw

asked if the homicide inspector was there. Caldwell and

Cobbs made eye contact. According to Caldwell, once

Gerrans came to the door, Crenshaw stated “this is Maurice

Caldwell, or Twone, right here. And can I have your keys?” 

Crenshaw asked for Gerrans’ keys despite having his own car

nearby. Andrena Gray, Caldwell’s girlfriend at the time,

corroborated Caldwell’s story in a later-filed declaration,

stating Crenshaw “forcibly walked [Caldwell] down the

street, and stopped in front of the door of an apartment, which

I later learned was the apartment of Mary Cobbs.”

Caldwell alleges that Crenshaw manufactured this showup to manipulate Cobbs into falsely identifying Caldwell as

the shooter. Defendants do not dispute that Crenshaw

knocked on Cobbs’ door while Gerrans was interviewing the
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 9

witness, but they all contend that Caldwell was not with

Crenshaw at the door.

2. The Conversations between Caldwell and

Crenshaw

Caldwell and Crenshaw spoke to one another two

different times during the canvass. The men tell different

stories. First, Crenshaw confronted Caldwell in the street. It

was during this encounter on the street that, according to

Crenshaw, Caldwell made a “spontaneous statement” about

being present at the shooting and dealing drugs. The second

encounter between Crenshaw and Caldwell took place in

Gerrans’ car and Crenshaw told Caldwell that homicide

wanted to talk to him.

According to Caldwell, on the street, he asked Crenshaw,

“why do you harass me?”

5

In the car, Crenshaw asked “what

do you know about a murder?” and Caldwell responded, “I

don’t know nothing about nothing.” Crenshaw then allegedly

asked Caldwell where he was the night of the murder and

Caldwell replied that he was at his uncle’s house. From these

encounters, Crenshaw later wrote the following notes:

Maurice Caldwell stated that he was present at

the shooting, but he was down the street. 

Prior to the shooting. Caldwell was with the

suspects dealing drugs. After the shooting

Caldwell returned and started yelling at the

shooters, he did this because he felt he was

going to be blamed. He further stated he knew

5 Gray also filed a declaration that she witnessed the first interaction

on the street and corroborates Caldwell’s version.
10 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

why I stopped him, because ‘anytime

somebody does any shooting it’s usually me.’

‘But that was before, I don’t do that any more

[sic].’

Caldwell denies having said any of this and alleges that

Crenshaw fabricated the statement and falsified the notes.

C. The July 26, 1990 Photo Lineup

On July 25, 1990, Cobbs tried to cancel a scheduled photo

lineup, stating that she had been threatened for cooperating

with the police. Gerrans convinced Cobbs to come in

regardless.

On July 26, 1990, Cobbs met with Gerrans and Crowley. 

Gerrans and Crowley then performed a non-videotaped photo

lineup. Recording a photo lineup would have been the

department’s “number one choice” in 1990, but there is no

evidence that it was required by policy. After Cobbs

apparently picked Caldwell out of the photo lineup as the

shotgun shooter, the officers turned on a camera and

conducted the photo lineup again. Once the camera was

rolling, Cobbs picked Caldwell again and said that she had

heard that people call him, “Twan.”

After the photo lineup, the officers asked Cobbs to

recount what she saw the night of the shooting. During

Cobbs’ retelling, the officers interjected with statements, such

as “this is the man you saw out front of your house the night

of the shooting and he had a shotgun. Is that correct?” Later,

the officers asked, “[t]he man that you saw, you picked out in

this picture here, the man with the shotgun, he was still

shooting the shotgun as the car was leaving?” Finally, the
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 11

officers referenced Caldwell by name: “When you went to

the window, you recognized this man and I’m turning over

the picture of Maurice Caldwell SF No. 445392. That’s the

man that you recognized. ‘Cuz you saw him in the area

before, right?”

The officers also discussed that people had threatened

Cobbs for cooperating with the police. During Gerrans’

deposition, Caldwell’s attorney asked, “Did you say to

[Cobbs] . . . [that] the police department would take efforts to

protect her [from threats] if she was able to help you in

ID’ing this person as a suspect?” To which Gerrans replied,

“I believe that was said.” Gerrans continued “we didn’t go

into witness . . . relocation or anything like that. We didn’t

promise her anything at that time. We promised we would

take care of her to protect her.”

D. The Prosecutor’s Actions

Assistant District Attorney, Alfred Giannini, prosecuted

Caldwell. In support of Defendants’ motion for summary

judgment, Giannini filed a declaration describing his

investigation in the case. Giannini declared that he

authorized charges against Caldwell on September 20, 1990,

after reviewing all the evidence available to him. Before the

preliminary hearing on December 3, 1990, Giannini

interviewed a number of witnesses and did not believe they

had been coached. At the preliminary hearing, in response to

Caldwell’s attorney’s questioning of Cobbs, Giannini

considered, for the first time, whether Cobbs had seen

Caldwell during the alleged show-up, but “determined that

Ms. Cobbs had not seen Mr. Caldwell, and . . . decided that

even if she had, it hadn’t undermined the reliability or

veracity of her testimony.” Giannini further stated, that
12 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

although he did not elicit any evidence about Caldwell’s July

13, 1990, statement at trial, he initially considered the

“inconsistency” between that statement and Caldwell’s

September 21, 1990, statement, but “decided it was a minor

factor when reviewing the totality of the evidence.”

E. The District Court’s Opinion

As to Gerrans and Crowley, the district court held that

Caldwell had not raised a triable issue on whether either or

both of them had deliberately fabricated evidence against

Caldwell. As to Crenshaw, the court held that Caldwell had

raised a triable issue whether Crenshaw had (1) manufactured

the alleged show-up to manipulate Cobbs into identifying

Caldwell, and (2) deliberately fabricated a statement by

Caldwell, which placed Caldwell at the site of the shooting. 

The court stated:

[Caldwell] has come forth with evidence that

Crenshaw was hostile to [Caldwell] and

threatened to catch him, get “the drop” on him

and kill him. Additionally, Crenshaw knew

that Caldwell was a suspect, knew that

Gerrans was inside a home talking to someone

who might possibly be a witness, and

allegedly brought [Caldwell] to that person’s

door. It is undisputed that Mary Cobb’s

identification of [Caldwell] was a critical

component in the state’s case against

[Caldwell]. Moreover, although Crenshaw’s

notes were not introduced at trial, Plaintiff

plausibly argues that the investigation

continued to focus on him, at least in part, as

a result of Crenshaw’s false report.
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 13

Nonetheless, the district court still granted summary

judgment to Crenshaw on the basis that Giannini’s

presumptively independent decision to charge and prosecute

Caldwell broke the chain of causation between the fabricated

evidence and Caldwell’s injury.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo. 

See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001)

(en banc). “Viewing the evidence in the light most favorable

to the nonmoving party, we must determine whether there are

any genuine issues of material fact and whether the district

court correctly applied the relevant substantive law.” Id.

(citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)

(en banc)).

III. ANALYSIS

“[T]here is a clearlyestablished constitutional due process

right not to be subject to criminal charges on the basis of false

evidence that was deliberatelyfabricated bythe government.” 

Id. at 1074–75. A plaintiff can prove deliberate fabrication in

several ways. Most basically, a plaintiff can produce direct

evidence of deliberate fabrication. See Spencer v. Peters,

857 F.3d 789, 793 (9th Cir. 2017) (citing Costanich v. Dep’t

of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir.

2010)). Alternatively, a plaintiff can produce circumstantial

evidence related to a defendant’s motive. Devereaux,

263 F.3d at 1076. Devereaux noted that to prove a

fabrication claim using circumstantial evidence, a plaintiff

must:
14 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

support[] at least one of the following two

propositions: (1) [d]efendants continued their

investigation . . . despite the fact that they

knew or should have known that [the plaintiff]

was innocent; or (2) [d]efendants used

investigative techniques that were so coercive

and abusive that they knew or should have

known that those techniques would yield false

information.

Id.

A. Sergeant Crenshaw

As an initial matter, Caldwell is supporting his claims

against Crenshaw with direct evidence of fabrication.

1. Fabrication

Caldwell contends that Crenshaw fabricated evidence

against him by (1) manufacturing a show-up with Caldwell at

Cobbs’ door to manipulate her into identifying Caldwell as

the shooter, and (2) fabricating a statement from Caldwell by

falsifying notes of a conversation between the officer and the

suspect. Caldwell suggests that Crenshaw fabricated this

evidence because he was out to get Caldwell after Caldwell

reported the officer to the OCC for alleged abuses. In the

light most favorable to the non-moving party, Caldwell has

raised a triable issue as to whether Crenshaw deliberately

fabricated this evidence.

First, Caldwell presents evidence suggesting that

Crenshaw had a motive to target him during the 1990

investigation. Crenshaw had stopped Caldwell between six
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 15

and nine times prior to the 1990 murder investigation. 

During these stops Caldwell said that Crenshaw would

threaten to kill him or throw him in jail for life. Additionally,

five months before the murder, Caldwell filed a complaint

with the OCC against Crenshaw as to which Crenshaw

admitted that he had threatened Caldwell. While Defendants

are correct that retaliatory motive is not an element of a

fabrication of evidence claim, these facts, taken in the light

most favorable to Caldwell, support the inference that

Crenshaw fabricated evidence.

a. The Alleged Show-up

The district court correctly held that Caldwell raised a

triable issue as to whether Crenshaw fabricated evidence by

showing-up at Cobbs’ door with Caldwell. To put it simply,

there is clearly a dispute of fact about whether this show-up

occurred. For one, Defendants concede that there are at least

four “versions” of the alleged show-up at Cobbs’ door. In

Caldwell’s version, Crenshaw detained Caldwell during the

July 13, 1990 canvass and marched him to Cobbs’ apartment,

where Caldwell made eye contact with the witness.

6

According to Caldwell, once Gerrans came to the door

Crenshaw stated “this is Maurice Caldwell, or Twone, right

here. And can I have your keys?” Crenshaw asked for

Gerrans’ keys despite having his own car in the

neighborhood. Defendants dispute that Caldwell was with

Crenshaw at Cobbs’ door.

Nevertheless, there is support for Caldwell’s version of

events. Cobbs’ initial description of the shooter is

6 Gray corroborates Caldwell’s version of the events, thus

strengthening our conclusion that there is a triable issue for the jury.
16 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

inconsistent with her later selection of Caldwell in the photo

lineup. First, Cobbs’ description of the shooter as a 5'4", 150-

pound, African-American man with a jheri curl hairstyle is a

fairly accurate description of Caldwell, but not exact. 

Crenshaw described Caldwell as 5'5" and 125-pounds. More

importantly, Cobbs first stated that the shooters did not live

in the neighborhood and that she did not know their names or

nicknames. However, there is evidence in the record that

Caldwell was Cobbs’ neighbor and Cobbs later stated she had

heard that people called Caldwell “Twan.” Taking these facts

in the light most favorable to Caldwell, the inference is that

Cobbs would have initially told Gerrans that she recognized

the shooter as her neighbor if she thought that Caldwell was

the shooter. The fact that Cobbs only later identified

Caldwell and his nickname supports the inference that the

show-up occurred and influenced her initial recollection of

the shooting.

There is also a triable issue as to whether Crenshaw

brought Caldwell to Cobbs’ front door for the purpose of

fabricating evidence against Caldwell. Citing, Perry v. New

Hampshire, 565 U.S. 228 (2012), Defendants argue that the

show-up did not implicate Caldwell’s due process rights

because the facts do not support the notion that it was a

police-arranged. Specifically, Defendants contend that

Crenshaw could not have arranged the show-up because he

did not know that Cobbs was a witness. Defendants’

argument is not convincing.

First, Perry is distinguishable in that the defendant

conceded that “law enforcement officials did not arrange the

suggestive circumstances surrounding [the witness’]

identification.” Id. at 240. Second, in contrast to Perry, here

there is evidence that Crenshaw purposely put Caldwell in
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 17

front of Cobbs to infect her recollection and suggest Caldwell

as the shooter. Drawing all reasonable inferences in favor of

Caldwell, he established first, that Crenshaw had a motive to

retaliate against him for reporting the officer to the OCC. 

Further, Crenshaw generally understood the purpose of the

canvass to be looking for witnesses and evidence, and it is

reasonable to infer that Crenshaw knew Gerrans was

interviewingCobbs as a witness. Finally, Caldwell presented

evidence that Crenshaw asked for Gerrans’ car keys as a

pretext for the show-up even though Crenshaw had his own

car in the neighborhood. Taken together, Caldwell

establishes a genuine issue as to whether Crenshaw arranged

the show-up.

b. The Allegedly Fabricated Statement

There is also a triable issue as to whether Crenshaw

deliberately fabricated a statement from Caldwell and

memorialized it in falsified notes. According to Caldwell,

Crenshaw first confronted Caldwell in the street and, as

witnessed by Gray, all Caldwell said was something to the

effect of “why are you harassing me?” After the show-up,

Crenshaw brought Caldwell to Gerrans’ car. In the car,

Crenshaw asked “what do you know about a murder?” and

Caldwell responded, “I don’t know nothing about nothing.” 

Crenshaw allegedly asked Caldwell where he was the night

of the murder and Caldwell replied that he was at his uncle’s

house.

Crenshaw had a different view of the conversations. 

Crenshaw later memorialized his version of the interactions

in a report. According to Crenshaw, Caldwell made a

“spontaneous statement” on the street about being present at

the shooting and dealing drugs. The report also claimed that
18 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

Caldwell stated he returned to the scene after the shooting to

yell at the shooters.

Clearly there is a triable dispute about whether Caldwell

actually made the statements attributed to him by Crenshaw. 

Further, the discrepancy between Caldwell and Crenshaw’s

accounts of their conversations is the type of direct evidence

of fabrication that was at issue in Costanich. In Costanich,

the court found evidence of intentional fabrication sufficient

to survive summary judgment where “witnesses pointed out

that the [investigation] report contained evidence or

statements they never made.” Costanich, 627 F.3d at 1112. 

Here, Caldwell stated in his deposition that “[t]he only thing

correct in [the disputed statement] is my name.”

Defendants counter that the discrepancies between the

accounts do not rise to the level of fabrication and are “[a]t

the very worst . . . careless or inaccurate.” As support,

Defendants cite Gausvik v. Perez, which held that an affidavit

for probable cause that contained errors was not sufficient to

establish deliberate fabrication of evidence. 345 F.3d 813,

817 (9th Cir. 2003). The affidavit in Gausvik stated that three

children had tested “positive” for sexual abuse when really

the tests were only “suggestive” or “consistent” with abuse. 

Id. Further, the affidavit stated that eight children had

accused the suspect, when only two had, but one of them told

the officer that the suspect had abused at least eight other

children. Id. The court chalked these errors up the officer

being careless with the facts, but that the errors did not rise to

the level of deliberate fabrication. Id.; Costanich, 627 F.3d

at 1112 (not every “recording error[] and misstatement[]” in

an investigative record rises to the level of constitutional

violation).
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 19

Defendants cherry pick facts from Caldwell’s statements

to attempt to portray the discrepancies in Crenshaw’s notes as

careless errors like those in Gausvik. For example, Caldwell

said that he told Crenshaw that he was at his uncle’s house,

which is “down the street” from the shooting. Defendants also

contend that, because Caldwell later testified that he went to

the scene after the shooting, there is no inconsistency with

Crenshaw’s note. These arguments are unsupported by the

record.

What Defendants fail to mention is that Caldwell never

admitted that he was with the drug dealers, dealing drugs, or

that “anytime somebody does any shooting it’s usually me.” 

There is a wide gulf between telling someone you were at

your uncle’s house nearby when a shooting occurred and

telling someone you were “present” for a shooting and were

“with the suspects dealing drugs.” We conclude that the

potential “errors” are not obviously the product of

carelessness and that there is a triable issue as to whether

Crenshaw intentionally fabricated his notes.

2. Causation

Our inquiry, however, does not end with the conclusion

that Caldwell has raised triable issues on whether Crenshaw

deliberately fabricated evidence. Caldwell must still come

forward with a showing that the fabrication caused him some

harm.

“To prevail on a § 1983 claim of deliberate fabrication, a

plaintiff must prove that (1) the defendant official

deliberately fabricated evidence and (2) the deliberate

fabrication caused the plaintiff’s deprivation of liberty.” 

Spencer, 857 F.3d at 798 (citing Costanich, 627 F.3d at
20 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

1111). To establish causation, Caldwell must raise a triable

issue that the fabricated evidence was the cause in fact and

proximate cause of his injury. See id. Like in any proximate

cause analysis, an intervening event may break the chain of

causation between the allegedly wrongful act and the

plaintiff’s injury. See Beck v. City of Upland, 527 F.3d 853,

862 (9th Cir. 2008) (citing RESTATEMENT (SECOND) OF

TORTS §§ 440 et seq.).

As to what constitutes an injury, a § 1983 plaintiff need

not be convicted on the basis of the fabricated evidence to

have suffered a deprivation of liberty – being criminally

charged is enough. See Devereaux, 263 F.3d at 1074–75

(“[T]here 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.” (emphasis added)); cf. NINTHCIR.JURY INSTR.

COMM., MANUAL OF MODEL CIVIL JURY INSTRUCTIONS,

§ 9.33 (2017) (“The defendant [name] deliberately fabricated

evidence that was used to [[criminally charge] [prosecute]

[convict]] the plaintiff.” (brackets in original)).

a. Rebuttable Presumption of Prosecutorial

Independent Judgment

Typically, in constitutional tort cases the “[f]iling of a

criminal complaint immunizes investigating officers . . .

because it is presumed that the prosecutor filing the complaint

exercised independent judgment in determining that probable

cause for an accused’s arrest exists at that time.” Smiddy v.

Varney, 665 F.2d 261, 266 (9th Cir. 1981) (“Smiddy I”),

overruled on other grounds by Beck, 527 F.3d at 865. The

district court held, and Defendants argue here, that the

Smiddy presumption breaks the chain of causation between
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 21

Crenshaw’s alleged fabrication of evidence and the harm that

Caldwell suffered in being criminally charged. Thus,

Defendants contend, Crenshaw is immunized from § 1983

liability.

Conversely, Caldwell contends that prosecutorial

independence only severs the causal chain where the

underlying civil rights violation is based on a lack of probable

cause. And that because deliberate fabrication of evidence

cases are not dependent on finding a lack of probable cause,

no presumption should be at play. See Spencer, 857 F.3d at

801 (rejecting the contention that a plaintiff must “prove that,

setting aside the fabricated evidence, probable cause was

lacking”); see also Halsey v. Pfeiffer, 750 F.3d 273, 292–93

(3d Cir. 2014) (even where probable cause exists, “we believe

that no sensible concept of ordered liberty is consistent with

law enforcement cooking up its own evidence”). To support

his argument that the presumption does not extend to

deliberate fabrication cases, Caldwell highlights that the

underlying violation in Smiddy I was false arrest and that the

Court emphasized that the prosecutor made its “independent

judgment decision in determining that probable cause . . .

exist[ed] . . . .” Smiddy I, 665 F.2d at 266 (emphasis added).7

7 Caldwell also argues that this Court has never applied the

presumption in a fabrication of evidence case and cites a string of cases

where this Court applied the Smiddy presumption in false arrest or

malicious prosecution cases – claims that require a lack of probable cause. 

See, e.g., Harper v. City of L.A., 533 F.3d 1010, 1027 (9th Cir. 2008);

Newman v. Cty. of Orange, 457 F.3d 991, 993 (9th Cir. 2006)). 

Defendants respond that this Court did just that in McSherry v. City of

Long Beach, 584 F.3d 1129 (9th Cir. 2009). But McSherry is unclear on

this point. It is true that McSherry involved a deliberate fabrication of

evidence claim and that this Court held that the allegedly fabricated

evidence did not influence the prosecutor’s independent decision. Id. at
22 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

Alternatively, Caldwell argues that even if the presumption

applies, he sufficiently rebutted it.

While we recognize that both sides make reasonable

arguments as to the applicability of the causation-breaking

presumption in fabrication of evidence cases, we need not

resolve the parties’ debate. Assuming without deciding that

the presumption applies to such claims, we hold that Caldwell

sufficiently rebutted any presumption and has established a

triable issue as to causation.

b. Presumption Rebutted

Deliberately fabricated evidence in a prosecutor’s file can

rebut any presumption of prosecutorial independence. In

Smiddy I, this Court gave a few non-exclusive examples of

how a plaintiff might overcome the presumption, including

by showing that the officers presented the district attorney

with “information known by them to be false.” 665 F.2d at

266–67. A plaintiff can also rebut the presumption by

presenting evidence “that the officers knowingly withheld

relevant information” from the prosecutor. See Smiddy v.

Varney, 803 F.2d 1469, 1471 (9th Cir. 1986) (“Smiddy II”). 

In sum, if a plaintiff establishes that officers either presented

1137. However, there is no discussion of a presumption of independence

that automatically precludes a finding of causation. Instead, the Court

held that McSherry had not presented sufficient evidence of causation. 

See id. at 1142 (“[E]ven examining the evidence in the light most

favorable to McSherry, the evidence presented before the district court

was simply insufficient to sustain a finding that [the prosecutor’s]

investigation and decision making was not independent and was tainted

by the alleged fabrication of evidence.”) Thus, the McSherry court

engaged in a normal causation analysis at the summary judgment stage,

without reference to any presumption.
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 23

false evidence to or withheld crucial information from the

prosecutor, the plaintiff overcomes the presumption of

prosecutorial independence and the analysis reverts back to

a normal causation question.

As stated above, we hold that Caldwell presents “more

than conclusory allegations of the falsehood” of (1) Cobbs’

identification of him, and (2) Crenshaw’s notes. See

Blankenhorn v. City of Orange, 485 F.3d 463, 483 (9th Cir.

2007). Further, Caldwell raises a triable issue as to whether

Giannini relied on these alleged falsehoods in his decision to

charge Caldwell. See id. Thus, Caldwell has rebutted any

presumption of prosecutorial independent judgment and has

established a triable issue as to causation.

First, the allegedly fabricated identification was part of

the evidentiary record that Giannini reviewed prior to

authorizing charges against Caldwell. And there is no dispute

that Cobbs’ identification was a crucial piece of evidence

against Caldwell. Further, Giannini himself admitted that the

preliminary hearing on December 3, 1990, was the first

occasion that he “considered the possibility that Ms. Cobbs

had seen Caldwell during her interview with Inspector

Gerrans.]” It therefore follows that Giannini did not consider

whether the alleged show-up had taken place until more than

two months after he had authorized charges against

Caldwell.8 A prosecutor’s judgment cannot be said to be

8 Giannini continues, “I determined that Ms. Cobbs had not seen Mr.

Caldwell, and I decided that even if she had, it hadn’t undermined the

reliability or veracity of her testimony.” We take no position on whether

the causal chain was broken after Giannini first learned of and considered

the alleged fabrication on December 3, 1990. We hold only that Caldwell

sufficiently rebuts any presumption of independence in Giannini’s
24 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

independent where the prosecutor considers potentially

fabricated evidence without knowing that the evidence might

be fundamentally compromised and misleading.

9 Therefore,

this falsified identification may have infected Giannini’s

review of the evidence and rebuts any presumption that his

September 20, 1990, decision to charge was independent. See

Blankenhorn, 485 F.3d at 483 (plaintiff rebutted presumption

of prosecutorial independence where, at the time of charging,

the prosecutor only considered police reports and not

contradictory evidence that showed the reports might contain

fabricated evidence).

Second, the allegedly falsified notes were likewise part of

the evidentiary record that Giannini reviewed in deciding to

charge Caldwell.10 Giannini declared, “[a]lthough I initially

September 20, 1990, charging decision and that Caldwell raises a triable

issue on causation. A jury will need to consider these causation questions.

9 Defendants argue that McSherry stands for the premise that the

existence of fabricated evidence in a prosecutor’s file does not rebut the

presumption of independent judgment. However, the officer in McSherry

allegedly fabricated some of the evidence after the prosecutor’s initial

decision to charge. See McSherry, 584 F.3d at 1133, 1136, 1142. Thus,

the allegedly fabricated evidence could not have affected the prosecutor’s

decision to charge.

10 The district court rejected Caldwell’s rebuttal arguments on this

point by concluding that Gray’s declaration did not corroborate Caldwell’s

story about the falsified statements and that, therefore, Caldwell only

supported his contention with his own testimony. See Newman, 457 F.3d

at 995 (“To rebut the presumption ofindependent judgment and to survive

summary judgment on a malicious prosecution claim, a plaintiff must

provide more than an account of the incident in question that conflicts

with the account of the officers involved.”).
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 25

considered the inconsistency between [the July 13, 1990]

statement and Caldwell’s recorded statement of September

21, 1990, during the course of the prosecution, I decided it

was a minor factor when reviewing the totality of the

evidence.”

Again we hold that Giannini’s consideration of potentially

fabricated evidence rebuts any presumption of independent

judgment and creates a factual issue for the jury. For one,

reading the prosecutor’s statement in the light most favorable

to Caldwell, a jury could conclude that “considering the

inconsistency” did not mean that the prosecutor knew that the

statement was allegedly fabricated. Further, even though

Giannini decided “during the course of the prosecution” that

the inconsistency was a “minor factor,” a jury could

reasonably conclude that the prosecutor relied on the falsified

statement in deciding to charge Caldwell. As such, we

conclude that Caldwell raises a triable issue as to causation

for both the allegedly fabricated identification and allegedly

falsified statements, even if the presumption of prosecutorial

independent judgment extends to deliberate fabrication of

evidence claims.

We disagree. The district court reasoned that because Gray could not

have heard Caldwell’s and Crenshaw’s conversation inside the police car,

she did not have personal knowledge of the statements at issue. However,

Crenshawhimselftestified that Caldwell’s “spontaneous statement” about

being present at the shooting and dealing drugs occurred during their first

interaction on the street. As such, Gray’s declaration corroborates

Caldwell’s claim that he did not say anything about the shooting to

Crenshaw. Therefore, Caldwell may use Gray’s declaration to rebut any

presumption of prosecutorial independence.
26 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

B. Inspectors Gerrans and Crowley

Unlike in regards to Crenshaw, Caldwell does not contend

that he has direct evidence that Gerrans and/or Crowley

deliberately fabricated evidence during the investigation. 

Instead, Caldwell relies on the second prong of Devereaux to

bring his claims. Therefore, he must establish that there is a

triable issue as to whether “[d]efendants used investigative

techniques that were so coercive and abusive that they knew

or should have known that those techniques would yield false

information.” Devereaux, 263 F.3d at 1076. Caldwell has

not met this burden.

Caldwell attacks Gerrans’ and Crowley’s investigative

actions in a number of ways, most of which relate to their

conduct during the July 26, 1990, photo lineup in which

Cobbs identified Caldwell as the shooter. Essentially,

Caldwell’s theory is that Cobbs’ initial statement on July 13

ruled out Caldwell as the shooter,11so that her later

identification of Caldwell constituted a change that must have

been the result of improper coercion during the July 26 photo

lineup. Specifically, Caldwell contends that Gerrans and

Crowley intentionally did not record the initial portion of the

July 26 meeting with Cobbs to cover up their use of the

improperly suggestive techniques. The techniques that

Caldwell alleges were coercive include: (1) telling Cobbs

11 We disagree that Cobbs’ statements to Gerrans during the canvass

ruled out Caldwell as the shooter. As already touched upon, her physical

description of the shooter is not exact as to Caldwell, but is not totally

inconsistent either. Further, even though Cobbs said the shooters did not

live in the area, there is uncertainty about whether Caldwell actually lived

in the apartment next door. Finally, even if Cobbs knew Caldwell’s

nickname two weeks after the initial interview, this is not conclusive

evidence that she knew his moniker during the canvass.
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 27

that the “suspect” was in the lineup, (2) “reinforcing” her

identification of Caldwell, and (3) offering her protection or

financial benefits conditioned upon her picking a suspect out

of the lineup or testifying against the suspect. Even

considering the facts in the light most favorable to Caldwell,

there is no triable issue that Gerrans and Crowley used these

investigative techniques or that the techniques were so

coercive or abusive that they rose to the level of intentionally

fabricated evidence.

As a preliminary matter, Caldwell is not contending that

Gerrans’ and Crowley’s failure to videotape the initial

exchanges with Cobbs during the July 26 photo lineup is, by

itself, a constitutional violation. Instead, Caldwell references

the decision not to videotape to imply that Gerrans and

Crowley must have coached Cobbs during the unrecorded

portion of the lineup. Without any evidence that coaching

actually occurred during this time, it is not reasonable to draw 

Caldwell’s requested inference. Regardless, Caldwell also

takes issue with some of the inspectors’ techniques during the

recorded portion of the photo lineup.

1. Telling Cobbs that a Suspect was in the Lineup

First, Caldwell asserts that the officers told Cobbs that

“the suspect” was in the photo lineup they presented to her. 

Caldwell’s only evidence for this is that, the day after the

meeting with Cobbs, the officers allegedly told a different

witness, Bobila, that there was a suspect in the photo lineup. 

To support this, Caldwell cites to the following from Bobila’s

deposition:

[M]y recollection, [the officers] just asked me

if I could recognize any of these six pictures
28 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

that was put in front of me. Like I said, they

pick up a suspect that they think is a suspect,

and it’s going to be six pictures that’s similar

to the one they arrested, and I pick up the

picture because I thought that he looks

familiar.

Even reading this statement in the light most favorable to

Plaintiff, it says nothing about Gerrans and Crowley telling

Bobila that a suspect was in the lineup. At best, this shows

that Bobila’s understanding was that a suspect was in the

lineup, but not how he came to have that understanding. 

Further, even if the officers had told a different witness that

there was a subject in the lineup, it would likely not be

enough to raise a triable issue as to whether Gerrans and

Crowley also told Cobbs that a suspect was in her photo

lineup.

2. “Reinforcing” Cobbs’ Selection of Caldwell

Second, Caldwell argues that Gerrans and Crowley

improperly “reinforced” Cobbs’ identification of Caldwell in

the photo lineup “no less than eight times.” At first, the

officers tried to confirm whether the person she selected was

the shotgun shooter: “this is the man you saw out front of

your house the night of the shooting and he had a shotgun. Is

that correct?”Later, the officers asked, “[t]he man that you

saw, you picked out in this picture here, the man with the

shotgun, he was still shooting the shotgun as the car was

leaving?” Finally, the officers referenced Caldwell by name:

“[w]hen you went to the window, you recognized this man

and I’m turning over the picture of Maurice Caldwell SF No.

445392. That’s the man that you recognized. ‘Cuz you saw

him in the area before, right?’”
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 29

The officers never actually confirmed that Cobbs picked

the correct “suspect,” apart from, possibly, stating Caldwell’s

name, which only came towards the end of the discussion. 

This is different than directly confirming that a witness

picked the correct suspect. Further, one of the cases Caldwell

cites in support of his assertion, Oliva v. Hedgpeth, 375 F.

App’x 697 (9th Cir. 2010) (unpublished), is both nonprecedential and distinguishable. Here there is no allegation

that Cobbs picked another photo out of the lineup before

selecting Caldwell; no indication that Cobbs thought that she

was required to select a photo from the lineup. See id. At

698. We do not believe that any “reinforcing” in this case

was so coercive or abusive that it was likely to lead to a false

identification.

3. Conditioning Benefits on Testifying against

Caldwell

Third, Caldwell alleges that the officers manipulated

Cobbs’ identification by offering her incentives to testify. 

The alleged incentives came in the form of a promise to

relocate her – conditioned on picking a witness – and

financial benefits under SFPD’s Secret Witness Program.

As to the promise to relocate Cobbs, Caldwell alleges that

this was impermissibly suggestive because a jury could

conclude that the offer of protection was only on the table if

she picked a suspect out of the photo lineup. During Gerrans’

deposition, Caldwell’s attorneyasked the officer whether they

offered to protect Cobbs if she identified a suspect. To which

Gerrans replied, “I believe that was said.” Gerrans continued

“we didn’t go into witness . . . relocation or anything like that

. . . . We didn’t promise her anything at that time. We

promised we would take care of her to protect her.”
30 CALDWELL V. CITY & CTY. OF SAN FRANCISCO

This evidence might create a triable issue about whether

Gerrans and Crowley conditioned the offer to protect Cobbs

on identifying a suspect – even if Gerrans did not promise

anything to Cobbs, he still agreed with Caldwell’s attorney

that he said the “police would take efforts to protect [Cobbs]

if” she identified a suspect. Nonetheless, even if there is a

factual dispute as to whether the officer conditioned

protection on Cobbs testifying, any conditioning in this case

is not so coercive as to lead to fabricated evidence.

For example, while paying a witness for testimony may

create adverse incentives to provide false statements, paying

a witness alone does not violate due process. See United

States v. Cuellar, 96 F.3d 1179, 1182 (9th Cir. 1996) (“We,

and other courts as well, have consistently held that the

government is not precluded from using [paid] informants

before or during trial simply because an informant may have

a motive to falsify testimony . . . .”); cf. United States v.

McQuin, 612 F.2d 1193, 1195 (9th Cir. 1980) (witness

“assured payment by the FBI only if there were an arrest and

he testified”). If directly paying a witness does not violate a

defendant’s due process, offering Cobbs protection if she

testified is not so coercive that it would lead to false

testimony. A defendant facing a paid or motivated witness

can raise those issues during cross-examination.

Finally, Caldwell makes a similar argument that, because

Cobbs received a trip to Disneyland six months after

Caldwell’s conviction, Crowley and Gerrans must have

promised Cobbs financial benefits. In support of this theory,

Caldwell identifies a letter from United Airlines awarding

Cobbs three round trip tickets to Orange County “in support

of the Secret Witness Program.” However, there is no
CALDWELL V. CITY & CTY. OF SAN FRANCISCO 31

evidence linking Crowley or Gerrans to the Secret Witness

Program. There is no suggestion of coercion here.

Accordingly, we hold that Gerrans’ and Crowley’s

investigative techniques were not so “coercive and abusive

that [the officers] knew or should have known that [they]

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

1076. As such, we affirm summary judgment in favor of

Gerrans and Crowley.

IV. CONCLUSION

For the foregoing reasons we affirm the grant of summary

judgment as to Inspectors Gerrans and Crowley, but reverse

and remand as to Sergeant Crenshaw. Each party shall bear

his own costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.