F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A U R I C E C A L D W

E L L , Plaintiff-Appellant

,

v

.

C I T Y A N D C O U N T Y O F S A

N F R A N C I S C O ; S A

N F R A N C I S C O P O L I C E D E P A R T M E N T ; K I T T C R

E N S H A W ; A R T H U R G E R R A N S ; J A M E S C R O W L E Y , Defendants-Appellees. No. 16-15473

DC No. 3:12-CV-01892- EDL

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Eliz abeth D. L aporte, Mag istrate J udg e, Presiding

Arg ued and Submitted October 13, 2017 San F rancisco, California

F iled May

11, 2018

B efore: A. W a llace Tashima and J ay S. B y bee, Circuit J udg es, and Matthew F rederick L eitman, * District J udg e.

Opinion by

J u dg e Tashima

* T h e Ho n o rab le Matth ew F red erick L eitm an , Un ited States District J u d g e f o r th e Eastern District o f

Mich ig an , sittin g b y

d esig n atio n

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. C I T Y & C T Y

. O F S A N F R A N C I S C O 2

SUMMARY * *

Civil Rights

The panel affirmed in part and reversed in part the district court’s summar y j udg ment and remanded in an action broug ht pursuant to 42 U.S.C. § 1 9 8 3 alleg ing that San F rancisco Police D epartment officia l s fabricated evidence
ag ainst plaintiff during his investig ation for murder.

Plaintiff spent nearly twenty y ears in prison as a result o f his murder conviction. He b roug ht a § 1983 action a ft e r a state court g ranted his petition for writ of habeas corpus and ordered his release. Plaintiff alleg ed that a p o lice serg eant deliberately manufactured a “ show-up” by ex p o sing him to a witness with the purpose of manipulating that wi t n ess into misidentify ing plaintiff a s the murder suspect. He f u rther alleg ed that the serg eant deliberately fabricated a statement by plai n tiff that placed plaintiff at the site of the shooting

. F inally

, plaintiff alleg ed that his interac t i o n with police inspectors during a photo lineup were so c o e rcive that they rose to the level of deliberate fabrication of evidence.

I n r eversing the district court’s gr ant of summary judg ment in favor of the police serg eant, the panel held that drawing a ll reasonable in fe r e n c es in favor of plaintiff, he established that the serg eant had a motive to retaliate ag ainst him. He f

u rther raised a g e nuine issue as to whether t h e serg eant arrang ed the show up, deli b e r ately fabricated the
statement and memorializ e d it in f alsified notes. The p anel

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C A L D W E L L V

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. O F S A N F R A N C I S C O 3

held that plaintiff rebutted any presumption o f prosecutor i al independence and e stablished a triable issue as to whether the alleg ed l y fabricated identification and falsified statements caused him harm.

I n a ffirming the d istrict court’s summary judg ment as to the p olice inspectors, the panel held that their conduct during

a photo line-up was not so coercive that it rose to the level o f fabricated evidence.

COUNSEL

Terry Gross (arg

ued), Adam C. B elsky

, and Monique Alonso, Gross B elsky Alonso L L P, San Fr ancisco, California, for Plaintiff-Appellant.

Sean F

. Connolly (arg

ued) and B r adley A

. Russi, Deputy City Attorney s; Chery l Adams, Chief Trial Attorney ; Dennis J

. Herrera, City Attorney ; Office of the City Attorn e y , S an F rancisco, California; for Defendants-Appellees.C A L D W E L L V

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OP INION

TASHI MA, Circuit J udg e:

INTRODUCTION

Plaintiff-Appellant Maurice Caldwell spent nearly twenty
y ears in prison for the 199 0 m urder o f J udy Acosta. Upon release, 1 Caldwell sued Sa n F r ancisco Police Department (“SF PD”) officials Kitt Crenshaw, Arthur Gerrans, and J ames Crowley

, under 42 U.S.C. § 1983, for a lleg edly f a b r icating evidence ag ainst him during the murder investig ation.

As to Serg ea n t Crenshaw, Caldwell alleg es that the officer deliberately manufactured a “show-up” w ith Caldwell
at a witness’ door. Specifica l l y , Caldwell asserts that Crenshaw d eliberately ex posed Caldwell to a w itness with the
purpose of manipulating that witness into misidentify ing Caldwell as the murder suspect. The allege d s h o w- up, if it occurred, may have worked. Mary Cobbs, the witness in question, later picked Caldwell o ut of a photo lineup despite her initial description of the suspe ct being

, in some reg ards, inconsistent with Caldwell’s phy sical traits.

1 On Decem

b er 1 5
, 2 0 1 0 th e Su

p erio r Co u

rt o f Calif o rn ia, Co u n ty of San F ran cisco

, g ran ted Cald w ell’ s p etitio n f or a w rit of h ab eas co rp u s an d

o rd ered h is release. Cald w ell arg u ed th at h e w as en titled to th e w rit o n th e g ro u n d s o f

, am o n g o th er t

h in g s, in ef

f ectiv e assistan ce o f c ou n sel, actu al in n o cen ce an d th at n ew ly d isco v ered ev id en ce u n d erm in ed th e p ro secu tio n ’s case. T h e co u rt h eld th at Cald w ell’ s trial atto rn ey w as in ef f ectiv e on acco u n t o f f

ailin g to in v estig ate po ten t ial a l i b i a n d o th er ey ew itn esses th at su

p p o rted Cald w ell’ s arg u

m en ts th at h e w as n o t p resen t

an d w as n o t th e sh o o ter

. T he c o u rt d id n o t ru le o n Cald w ell’ s o th er g ro u n d s in

su p po rt o f h is p etitio n

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Reg arding I nspect o rs Gerrans a n d Crowley

, Caldwell alleg es that their investig ative techniques – mostly the ir interactions with Cobb s during the photo lineup – were so coercive that they rose to the level of deliberate fabrication o f evidence.

The district court g ranted all of Defendants’ motions for
summary judg ment, b ut for differe nt reasons. As to Crenshaw, the district court held tha t Caldwell had raised a triable issue as to whether the Serg eant fabricated evidence. The district court concluded, h o wever, that the Serg eant was shielded from liabilit y b ec ause the prosecutor’s decision to charg e Caldw e ll w as subject to a presumption o f independence and, therefore, brok e the chain of causation between the alleg ed wrong doing and Caldwell’s harm. As to Gerrans and Crowley

, the district court held that Caldwell h ad
not raised a triable issue a s to whether either or both of them had deliberately

fabricated evidence.

W e hold that because Caldwell rebutted any presumption of prosecutorial independence, he establ i s h ed a triable issue

as t o whether Crenshaw fabricated evidence ag ainst him. Therefore, we reverse and remand a s t o Crenshaw. 2 As to Gerrans and Crowley

, we hold that their invest i ga t ion techniques were not so coercive that they rose to the level o f fabricated evidence. T h u s , we a ffirm as to Gerrans a nd Crowley

.

2 Cald w ell also b ro u g h t claim s ag ain st th e S FP D, an d t h e C ity an d Co u n ty o f San Fran cisco

, u n d er M o n ell v. Dep a rtmen t o

f S ocia l Services
, 4 3 6 U.S. 6 5 8 (1 9 7 8 ), b u t th e d istrict co u rt d id n o t reach th e issu e. T h e d istrict co u rt sh ou ld ad dress th ese claim s o n rem an d

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I. F ACTUAL AND P ROCEDURAL BACK G ROUND

A. The Acosta Murder and Caldw ell’s Conviction

On J une 30, 1 990, a g roup o f four persons, including J udy Acosta a nd Doming o B obila, went to a San F rancisco housing project to buy drug s. There, a g roup approached A c osta a nd B obila, offering to sell crack. The sale went wrong and o ne of the dealers pulled o u t a handg u n and shot Acos t a i n t he chest. B obila tried to flee in his car and a second man b eg an firing a shotg un. B o bila and Acosta were hit by shotg un fire and A costa died in the car. Caldwell c laims that he was not present at the shooting ; Defenda n t s c laimed that Caldwell was the shotg un shooter.

I n March 1991, a jury c onvicted Cal d w e ll of seconddeg ree murder for shooting Acosta wi t h t he shotg un. Mary Cobbs testified at trial and identified Caldwell as the shotg un shooter. 3 A few months afterwards Cobbs and her children received roundtrip tickets to Disney land from the San F rancisco Secret W itness Prog ram.

B. The July 13, 1990 Canvass

On J uly 13, 1990, I nspector Gerrans, Serg eant Crenshaw, and Officer Robert Doss of the SF PD canvassed the housing project where the Acosta murder occurred. The g e n e ra l
purpose of the canvass was to, among other thing s, find witnesses to t h e m u r d er. The day before, the police h ad received an anony

mous tip that the police should “check o ut” Caldwell, “who h ad been shooting off g u ns in the projects

. . .

3 Co b b s p assed

aw ay in 1 9 9 8

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for y ears.” During the canvass, G errans mentioned the name Caldwell to Crenshaw and Crenshaw said he knew him.

Caldwell and Crenshaw had h i s t ory

. Caldwell h ad interacted w ith Crenshaw between six and nine times prior to the 1990 murder investig ation. During these stops Caldwell said that Crenshaw would tell him thing s such a s ,“[ h] e [ sic]
g oing to catch me, and w hen he d o catch me, he g oing to e nd
up killing me or he g o ing to have me in jail for the rest of my life, y ou k

now.” F ive months b efore the murder, Caldwell filed a complaint with the Office of Citiz en Complaints ( “ O C C ” ) 4 a ga i n s t C r enshaw. During the OCC ’s investig ation, Crenshaw admitted telling Caldwell:

One day I ’m go i n g to b e sitting up there a nd
y ou’re go ing to be blown away

. Something ’s
g oing to h appen to y ou because sooner or later I ’m g oing to catch y ou with a g un and y ou and I are g oing to have it out. I ’m g oing to k ill
y ou. Nex t time we’re g oing to g e t the drop on y ou.

Gerrans later testified that had he known about Crenshaw a nd Caldwell’s history

, he may have had second t h o u g hts about Crenshaw being

involved in the investig ation.

4 Ac c o rd i n g to th e City an d Co u n ty o f San Fran cisco ’ s g o v ern m e n t

w eb site, “ [t]h e O CC w as t h e c i v ilian o v ersig h t d ep artm en t f o r th e San Fran cisco P o lice Dep artm en t

. . . . T h e OCC in v estig ate d c o m p l ain ts of

m isco n d u ct an d n eg l ect o f d u t y b y p o l ice o f

f icers, co u ld f

i le d iscip lin ary ch arg es ag ain st o f

f icers, an d m ak e p o licy reco m m en d atio n s.” S

ee D E P ’ T
OF P OL I C E A C COUNT A BI L I T Y , New! Th e OCC is n o w t h e Dep a rtmen t o f Po lice Acco u n ta b ility

, SFGOV (Feb

. 7
, 2 0 1 7), h ttp ://sf g o v .o rg /d p a/n ew s

release/n ew

- o cc- n o w

- dep artm en t- po lice- acco u n tab ility

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Gerrans met Cobbs during the course of the c a n vass. Cobbs had witnessed the shooting and ag reed to an interview with Gerrans. During the interview, Cobbs stated that the shooters did not live around h er, but that she recog niz ed them from seeing them in the area a few times. Cobbs said she did

n o t know the shooters’ names or nicknames. Cobbs g ave a des c r i p t ion of the shotg un shooter as a 5' 4"
, 150-pound, Africa n

- A m erican man that wore h is hair in a jheri curl. Caldwell h ad an a

partment nex t door to Cobbs’ and may have lived there.

1. The Alleged Show -up at Cobbs’ Door

During the J uly 1 3, 1990, canvass , Crenshaw saw Caldwell on the street and approac h e d h im. I n Caldwell’s retelling

, Crenshaw knew that G errans 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 the r e

. C a ldwell a nd Cobbs made ey e contact. According to Caldwell, once Gerrans came to the d oor, Crenshaw st a t e d “this is Maurice Caldwell, or Twone, rig h t here. And ca n I have y our k e y s? ” Crenshaw asked for Gerrans’ key s despite having h is o wn c ar nearby

. Andrena Gray
, Caldwell’s g irlfrien d at the time, corroborated Caldwell’s s tory in a later-filed declaration, stating Cre n s h a w “forcibly walked [ Caldwell] down the street, and stopped in front of the door o f an apartment, which I later learned was the apartment of Mary Cobbs.”

Caldwell alleg es that Crenshaw manufactured this showup to manipulate Cobbs into falsely identify ing Caldwell a s the shooter. D e f

endants do not dispute that Crenshaw knocked on Cobbs’ d o or while Gerrans was interviewing theC A L D W E L L V

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witness, but they a ll c ontend that Caldwe l l was not with Crenshaw at the door.

2. The Conversations betw een Caldw e ll a nd Crenshaw

Caldwell and Crenshaw spoke to one another two different times during the canvass. T he men tell different stories. F irst, Crenshaw confronted Caldwell in the street. I t

was d u ring this encounter on the street that, ac c o r d ing to Crenshaw, Caldwell made a “spontaneous statement” about being p resent at the shooting a nd dealing drug s. The second

e n c ounter between Crenshaw and Caldwell took p lace in Gerrans’ c a r a nd Crenshaw told Caldwell that homicide wanted to talk to him.

According to Caldwell, on the street, he asked Crenshaw, “why do y ou harass me? ” 5 I n the car, Crenshaw asked “what do y ou know about a murder? ” and Caldwell r esponded, “I don’t know nothing about nothing .” Crenshaw then alleg edly

a s k ed Caldwell where he was the nig ht of the murder a n d Caldwell replied that he was at his uncle’s house. F rom these encounters, Crenshaw later wrote the following notes:

Maurice Caldwell stated that h e was present at the s h o o ting

, but he was down the street. Prior to the shooti n g. Caldwell was with the

su s pects dealing drug s. After the shooting Caldwell returned and started y elling a t the shooters, he d i d this because he felt he was g oing to be blamed. He further stated he knew

5 G ray also f

iled a d eclaratio n th at sh e w i tn essed th e f irst in teractio n

o n th e street an d co rro b o rates Cald w ell’ s v ersio n

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why I stoppe d him, because ‘any time somebody does any shooting it’s usually me.’ ‘B ut that was before, I don’t do that any more [ sic] .’

C a l d w e l l d enies having said any o f this and alleg es that Crenshaw fabricated the statement and falsified the notes.

C. The July 26, 1990 P hoto Lineup

On J uly 25, 1990, Cobbs tried to cancel a scheduled photo lineup, stating that s h e had b een threatened for cooperating with the police. Gerrans convinced Cobbs to come in
reg ardless.

On J uly 2 6, 1990, Cobbs met with Gerrans a nd Crowley

. Gerrans a nd Crowley then performed a non-videotaped photo lineup. Recording a photo lineup would have b e e n t h e department’s “number one c hoice” in 19 9 0
, b ut there is no evidence t h a t it was required by policy

. After Cobbs apparently picked Caldwell out of the ph o t o l ineup as the shotg u n shooter, the officers turned on a ca m e r a a nd conducted the photo l i n e u p ag ain. O nce the camera was rolling

, Cobbs picked Caldwell ag ain and said that she h ad heard that people call him, “Twan.”

After the photo lineup, t h e officers asked Cobbs to recount what she saw the nig ht o f t h e shooting

. During Cobbs’ r etelling

, the o f

f i c ers interjected with statements, such as “this is the man y ou saw out front of y our house the nig ht of the shooting and he had a shotg un. I s that correct? ” L ater, the o fficers asked, “[ t] he man that y ou saw, y o u picked out in
t h is picture here, the man with the shotg un, he was s t i l l

s h o o ting the shotg un a s the car was leaving ? ” F inally

, t h eC A L D W E L L V

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officers referenced Caldwell by name: “W h e n y ou went to the window, y ou r ecog niz ed this man and I ’m turning over the picture of Maurice C a ldwell SF No. 445392. That’s the

man that y ou recog niz ed. ‘Cuz y ou saw him in the area before, rig

h t? ”

The officers also d i s c u ssed that people had threatened Cobbs for cooperating with the police. Du r i n g G errans’ deposition, Caldwell’s attorney asked, “Did y ou say to [ Cobbs]

. . . [ that] the police d epartment would take efforts to protect h er [ from threats] if s h e was able to help y ou in I D’ing this person as a suspect? ” To w hich Gerrans replied,

“ I b e lieve that was said.” Gerrans c o n tinued “we didn’t g o into witness

. . . relocation or any thing like t h a t

. W e didn’t promise her any

thing at tha t time. We promised we would take care of her to protect her.”

D. The P rosecutor’s Actions

Assistant District Attorney
, Alfred Gianni n i

, prosecuted C a l d well. I n support of Defendants’ motion for summ a r y judg ment, G iannini filed a d e claration describing his investig ation in the case. G iannini d e c l ared that he authoriz ed charg es ag ainst Caldwell on September 20, 1990, after reviewing all the evidence available to him. B efore the preliminary hearing on December 3
, 1990, Giannini interviewed a number of w itness e s a nd did not believe they had been c oached. At the preliminary hearing

, in r esponse to Caldwell’s attorn ey ’s questioning of Cobbs, Giannini considered, for t h e first time, whether Cobbs had seen Caldwell during the alleg e d show-up, b ut “determin e d t h at Ms. C o b b s had n ot seen Mr. Caldwell, and

. . . decided that

even if she had, it hadn’ t undermined the reliability o r veracity of h e r testimon y

. ” Giannini further stated, thatC A L D W E L L V

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althoug h he did not elicit any evidence about Caldwell’s J uly 13, 1990, statement at t rial, he initially considered the “inconsistency ” b e t ween that statement and Caldwell’s S e p tember 2 1, 1990, statement, b ut “decided it w as a m i n o r factor when reviewing the totality of the evidence.”

E. The District Court’s Opinion

As to G errans and Crowley

, the district court h el d that Caldwell had n ot raised a triabl e i s s u e on whether either o r both of them had deliberately f a b ri cated evidence ag ainst Caldwell. As to Crenshaw, the court held that Caldwell had raised a triable issue whether Crenshaw had (1) manufactured the alleg ed show-up to m a n i p ulate Cobbs into identify ing Caldwell, and ( 2) d eliberately fabricated a statement b y Ca l d w e l l

, w hich placed Caldwell at the site of the shooting

. The court stated:

[ Caldwell] h as come forth with evidence that Crenshaw was hos t i le to [ Caldwell] a nd threatened to catch him, g et “the drop” on him and kill him. Additionally

, Crenshaw knew that Caldwell was a s uspect, knew that Gerrans was inside a home talking to someone who mig ht possibly b e a witne ss, a nd alleg edly broug ht [ Caldwell ] to that person’s door. I t is undisputed tha t M ary Cobb’s identification of [ Ca l d well] was a critical

c o m ponent in the state’s case ag ainst [ Caldwell]

. Moreover, althoug h Crenshaw’s
notes were not in t r oduced at trial, Plaintiff plausibly ar g ues that the investig ation continued to focus on him, at least in part, a s a result of Crenshaw’s false report.C A L D W E L L V

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Nonetheless, the d istrict court still g ranted summa r y judg ment t o C r enshaw on the basis that Giannini’s presumptively independent decision to charg e and prosecute Caldwell broke the chain of causation between the fabricated evidence and Caldwell’s injury

.

II. STANDARD OF REVIEW

This court reviews a g rant o f summary judg ment d e n ovo

. See Devereaux v. Abbey

, 263 F

. 3d 1070, 1074 (9th Cir. 2 001) (en banc). “Viewing the evidence in the lig ht most favorable
to the nonmoving party , w e must determine whether there a re any g enuine issue s o f material fact and whether the district
court correctly a

pplied the r elevant substantive law.” Id. ( c iting Lopez v. Smith

, 203 F .3d 1 1 22, 1131 (9th Cir. 2 0 0 0 ) (en banc)).

III. ANALYSIS

“[ T] here is a clearly established constitu t i o n a l d u e process rig ht not to b e subject to c riminal charg es on the basis of false evidence that was deliberately fabricated by the g o vernment.” Id. at 1 074–75. A plaintiff can prove deliberate fabrication in several way s. Most b a sically

, a plaintiff can produce direct evidence of deliberate f

a brication. See Spencer v

. Peters
, 857 F

. 3d 789, 793 (9th Cir. 2 017) (citing Costanich v. Dep’t of Soc. & Health Servs.
, 627 F

. 3d 1101, 1111 (9th Cir. 2010)). Alternatively

, a plaintiff c an p roduce circumstantial evidence related to a defendant’s moti v e. Devereaux
, 26 3 F .3d at 1076. Devereaux noted that to prove a fabrication claim using c ircumstantial evidence

, a p laintiff
must:C A L D W E L L V

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support[ ] a t l e ast one of the following two propositions: (1) [ d] e fendants continued their investig ation

. . . despite the fact that they knew or should have known that [ the plaintiff]

w a s innocent; or (2) [d] efendants used investig ative techniques that were so coercive and abusive that they knew or shou l d h ave known that those techniques would y ield false information.

Id.

A. Sergeant Crenshaw

As a n initial matter, C aldwell is supporting his c laims
ag ainst Crenshaw with direct evidence of fabrication.

1. F abrication

Caldwell c ontends that Crenshaw fabr i c ated evidence
ag ainst him b y (1) manufacturing a show-up with Caldwell at Cobbs’ door to manipulate h er into i d e n tify ing Caldwell a s the shooter, and (2) fabricating a statement from Caldwell b y falsify ing notes of a conversation between the officer and the suspect. Caldwell sug g e sts that Crenshaw fa b r i cated this evidence because he was out to ge t C a l d well after Caldwell reported the o ffic e r to the OCC for alleg ed abuses. I n the lig ht most favorable to the no n

- m o ving party , Caldwell has raised a triable issue as to whether Crenshaw deliberately fabricated this evidence.

F irst, Caldwell p resents evidence sug g esting that C r e n s h a w had a motive to targ et him during the 1990 i nvestig ation. Crenshaw had stopped Caldwell between s i xC A L D W E L L V

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and nine times prior to the 1 9 9 0 murder investig ation. 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 a g ainst Crensh a w as to which Crenshaw admitted that he had threatened Caldwell. W hile Defendants

are correct that retaliatory motive is n ot an eleme n t o f a fabrication of evidence claim, these f a c t s , taken in the lig ht
most favorable to Caldwell, sup p o rt the inference that Crenshaw fabricated evidence.

a. The Alleged Show -up

The district court correctly held that Caldwell raised a t r iable issue as to whether Crenshaw f abricated e viden c e b y showing

- up a t Cobbs’ door with Caldwell. To put it simply

, there i s c l ea r l y a dispute of fact a b out whether this show-up occurred. F or one, D efendants c oncede that there a re at least four “versions” of the alleg ed show-up a t C o b bs’ door. I n Caldwell’s version, Crenshaw detained Caldwell during the J uly 13, 1 990 c anvass and marched him to Cobbs’ apartment, where Caldwell made ey e contact with the wit n e s s

. 6 Acc o r d ing to Caldwell, o nce Gerrans came to the door Crenshaw stated “this is Maurice C a l d w ell, or Twone, rig ht here. And can I have y our k ey s? ” Crenshaw asked for Ger r a n s’ key s despite having his own car in the neig hborhood. Defendants dispute that Caldwell was with Crenshaw at Cobbs’ door.

Nevertheless, th ere is support for Caldwell’s version o f

eve n t s. Cobbs’ initial description of the shooter is

6 G r a y co rro bo rates Cald w ell’ s v ersio n o f t h e ev en ts, th u s stren g th en in g o u r co n clu sio n th at th ere is a triab le issu e f o r th e j u ry

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inconsistent with her later selection of Caldwell in the photo lineup. F irst, Cobbs’ d escription of the shooter as a 5 ' 4"
, 150- pound, A frican-American man with a jheri curl hairsty le is a fairly accurate descri p t ion of Caldwell, but not ex act. Crenshaw described Caldwell as 5' 5" and 125-pounds. More i mportantly

, Cobbs first stated that the shooters did no t l i v e in the neig hborhood a

nd that she did not know their names o r nicknames. However, there is evidence in the record that Caldwell was Cobbs’ neig hbor and Cobbs later stated she h ad heard that people called Caldwell “Twan.” Taking these facts in the lig h t most favorable to Caldwell, the inference is that Cobbs would h ave initially told Gerrans that she recog niz ed the shooter as her neig

hbor if she thoug h t that Caldwell was the shooter. The fact that Cobbs only later identified Caldwell and his n ickname supports t h e i nference that the show-up occurred and influenced her initial recolle c t i on o f the shooting

.

There is al s o a triable issue as to whether Crenshaw broug ht Caldwell to Cobbs’ front door for t h e p u rpose o f fabricating

evidence ag ainst Caldwell. Citing

, Perry v. New Hampshire

, 565 U.S. 228 (2012), Defendants arg u e that the show-up d id not implicate Caldwell’s due process rig hts because the facts d o not support the n otion that it was a police-arrang ed. Specifically

, Defendants c ontend that Crenshaw could not hav e a r rang ed the show-up because he did not know that Cobbs w as a witness. Defendants’
arg ument is not convincing

.

F irst, Perry is disting uishable in that the def endant conceded that “law enforcement officials did not arrang e the
sug g estive circumstances surrounding [ t h e wi t n e s s’] identification.” Id. at 240. Second, in contrast to P e rry , here there is evidence that Crenshaw p urposely put Caldwel l inC A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 17

front of Cobbs to infect her recollection and sug g est Caldwell

as the shooter. Drawing a ll reasonable inferences in favor o f Caldwell, he established f irst, that Crenshaw had a motive to retaliate ag ainst him for r eporting the o fficer to the OCC. F urther, Crenshaw g enera l l y understood the purpose o f the

canvass to be looking f

o r witnesses a

nd evidence, and it is

reasona b l e to infer that Crenshaw knew Gerrans was interviewing Cobbs as a witness. F inally

, Caldwell presented evidence that Crenshaw asked for Gerrans’ car key s as a pretex t for the show-up even thoug h Crenshaw had his o wn

car in the neig hborhood. Taken tog ether, Caldwell establishes a g enuine issue as to whether Crenshaw arrang ed the show-up.

b. The Allegedly F abricated Statem ent

There is also a triable issue as to wheth e r C r enshaw deliberately fabricated a statement from Caldwell a nd memorializ ed it in falsified notes. Accor d i n g to Caldwell, Crenshaw first confronted Caldwell in the s t reet and, a s witnessed by Gray
, all Caldwell said was s o m e t hing to the effect of “ why are y ou harassing me? ” Af ter the show-up, Crensha w b roug ht Caldwell to G errans’ car. I n the car, Crenshaw asked “what d o y ou know about a murder? ” a nd Caldwell responded, “I d on’t know nothing ab o u t n othing

. ” Crenshaw alleg edly a sked Caldwell w here he was the nig ht of the murder and Caldwell replied that h e was at his uncle’s house.

Crenshaw had a d ifferent view of the conversations. Crensh a w later memorializ ed his version of the interactions i n a report. According to Crenshaw, Caldwell made a “spontaneous statement” on the street about being present at the shooting and dealing drug s. The report also claimed thatC A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 18

Caldwell stated h e returned to the scene after the shooting to
y ell at the shooters.

Clearly there is a triable dispute about whether Caldwell actually made the statements attributed to him by Crenshaw. Fu r t h er, the discrepancy between Caldwell and Crenshaw’s
accounts o f their conversations is the ty pe of direct evidence of fabric a t i o n that was at issue in Costanich

. I n Costanich

, the court found evidence of intentional fabrication sufficient
to survive s u mmary judg ment where “witnesses pointed out that the [ investig ation] report c on tained evidence o r statements they never made.” Costanich

, 627 F. 3d at 1112. Here, Caldwell stated in his d eposition that “[ t] he only thing correct in [ the disputed statement] is my name.”

Defendants counter that the discrepancies between the
accounts do not ris e to the level of fabrication and are “[ a] t the very worst

. . . careless or inaccurate.” As support, Defendants cite Gausvik v. Perez
, w hich held that an affidavit for p r o bable cause that contained e rrors was not sufficient to establish deliberate f

a b rication o f e v idence. 3 45 F

. 3d 813, 817 (9th Cir. 2003). The affidavit in Gausvik stated that three children had tested “positive” f o r sex ual abuse when really the tests were only “s u gge s t ive” or “ consistent” w ith abuse. Id. F urther, the affidavit state d that eig ht children h ad accused the suspect, when only two had, but one of them told the off i ce r t hat the suspect h ad abused at least eig ht other children. I

d

. The court chalked these e rrors up th e o f f icer being careless with the facts, but that the errors did not rise to the level o f d eliberate fabrication. Id. ; Costanich , 627 F .3d at 1112 (not every “recording error[ ] and misstatement[ ] ” in

an investig ative record rises to the level o f constitutional violation).C A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 19

Defendants cherry p ick facts from Caldwell’s statements to a ttempt to portray the discrepancies in Crenshaw’s notes a s careless errors like those in Gausvik

. F or ex ample, Caldwell

sa i d t h a t he told Crenshaw that he w as at his uncle’s house, which is “down the street” from the shooting

. Defendants also contend that, because Caldwell later testified that he w e nt to the scene after the shooting

, there is no incon s istency with Crensh a w ’ s note. These arg uments are unsupported by the record.

W h at Defendants fail to mention is that Caldw ell never admitted that he was with the drug dealers, d ealing drug s, o r that “ any time somebody

does any shooting it’s usually me.” There is a wide g ulf bet we e n t e l ling someone y ou were at
y our uncle’s house n e a r

b y w hen a shooting occurred a nd telling someone y o u were “present” for a shooting and were “with the suspects dealing drug s.” W e conclude that the potential “ e rr ors” are not o bviously the product o f carelessness and that there is a triable issue as to whether Crenshaw intentionally

fabricated his notes.

2. Causation

Our inquiry

, however, does n o t end with the conclusion that Caldwell h as raised triable issues on whether Crenshaw deliberately fabricat ed evidence. Caldwell must still come forward with a showing that the fabrication caused h im some harm.

“To prevail on a § 1983 c laim of deliberate fabrication, a plaintiff must prove that (1) the defen d a n t official deliberately fabricated evidence a n d (2) the deliber a t e f a b rication caused the plaintiff’s deprivation of liberty

. ” Spencer
, 8 57 F .3d at 798 (citing Costanich

, 627 F .3d atC A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 20

1111). To e stablish causation, Caldwell must raise a tria b le issue that t h e f

a b ricated evidence was the c ause in fact a nd
prox imate cause of his injury

. See id

. L ike in a ny prox imate

cause analy sis, an interveni n g e v e n t may break the chain o f causation b et w e e n the alleg edly wrong ful act and the plaintiff’s injury

. S

ee Beck v. City of Upland , 527 F .3d 853, 862 (9th Cir. 2008) (citing R E S T A T E M E N T (S E C O N D ) O F T O R T S §§ 440 et seq

. ).

As to w hat constitutes an injury

, a § 1983 plaintiff need
not be c o nvicted on the basis of the fabricated evidence to have suffered a deprivation of l i b e r t y – being criminally charge d is enoug h. See Devereaux
, 263 F .3d at 1074–75 (“[ T] here is a clearly estab l ished constitutional due process rig ht not to be subjected to criminal charges on the basis o f false evidence that was de l i b er ately fabricated by the
g overnment.” ( emphasis added)); c f. N I N T H C I R

. J U

R Y I N S T R

. C O M M ., M A

N U A L O F M O D E L C I V I L J U R Y I N S T R U C T I O N S , § 9.33 ( 2017) (“The defendant [ name ] d eliberately fabricated evidence that was used to [ [ criminally c h arg e] [ prosecute] [ convict] ] the plaintiff.” (brackets in orig inal)).

a. Rebuttable P resum ption of P rosecutorial Independent Judgm ent

Ty pically

, in constitutional tor t c ases the “[ f] iling of a criminal complaint immuniz e s investig ating off i c e rs

. . . because it is presumed that the prosecutor filing the complaint

ex e r cised independent judg ment in determining that probable

cause for an accused’s arr e s t e x ists a t that time.” Smiddy v

. Varney
, 665 F .2d 261, 266 (9th Cir. 1 981) (“ Smi ddy I ”),

o v e r ruled on other g

rounds by Beck

, 527 F .3d at 865

. T h e district c ourt held, and D e fendants arg ue here, that the Smiddy presumption breaks th e c h a in of causation b etweenC A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 21

Crenshaw’s alleg ed fabrication of evidence and the harm that Caldwel l suffered in being criminally charg ed. Thus, Defendants c onte n d

, C renshaw is immuniz ed from § 1983 liability

. Conversely

, Cald w ell c ontends that prosecutorial independence only severs the causal chain where the underly ing c ivil rig hts violation is based on a lack of probable

cause. And t h a t b e cause deliberate fabrication of evidence

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

no pres umption should be at play

. See Spencer
, 857 F

. 3d at 801 (rejecting the contention that a plaintiff must “prove that, setting aside the fabricated evi d e n c e , probable cause was lacking ”); see also Halsey v. Pfeiffer

, 750 F .3d 273, 292–93 (3d Cir. 2014) (even where probable c ause ex ists, “we believe that n o sensible concept of ordered liberty is consistent with law enforcement cooking u p its own evidence”). To support h i s a r g ument that the presumption does not ex tend to deliberate fabrication cases, Caldwell h ig h lig hts that the underly ing violation in Smiddy I was false arrest and that the Court emphasiz ed that the prosecutor made its “ independent judg ment decision in determining tha t p robable cause

. . . exist[ed]

. . . . ” Smiddy I

, 665 F .2d at 266 (emphasis added). 7

7 Cald w ell also arg u es th at th is Co u rt h as n ev er a p p lied th e p resu m p tio n in a f

ab ricatio n o f ev id en ce case an d cites a stri n g o f cases

w h ere th is Co u rt ap p lied t h e S m i d d y p resu m p tio n i n f

alse arrest or

m alicio u s p ro s ecu tio n cases

– claim s th at req u ire a lack o f p ro b ab le cau se. S ee, e.g

. , Ha rp er v. City o f L.A.
, 5 3 3 F.3 d 1 01 0
, 1 0 2 7 (9 th Cir. 20 0 8 ); Newma n v. Cty. o

f Ora n g e , 4 5 7 F.3 d 99 1
, 9 9 3 (9 th Cir. 2 0 0 6 )). Def en d an ts resp o n d t h a t t h is Co u rt d id j u st th at in McS h erry v. City o

f Lo n g Bea ch

, 5 84 F.3 d 1 1 2 9 (9 th Cir. 2 00 9 ). Bu t McS h erry is u n clear on th is p o i n t

. It is tru e th at McS h erry in v o l v ed a delib erate f ab ricatio n of

ev id en ce claim an d t h a t th is C o u rt h eld th at th e alleg ed ly f ab ricated

ev id en ce d id n o t in f

lu en ce t h e p ro secu t o r’ s in d ep en d en t d ecisio n

. Id

. atC A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 22

Alternatively

, Caldwell arg ues that even if the presumption applies, he sufficiently

rebutted it.

W h ile w e rec o gniz e that both sides make reasonable
arg uments as to the appli c a b ility of the causation-breaking presumption in fabricatio n o f evidence cases, we need not resolve the parties’ debate. Assuming without deciding that the presumption applies to such claims, we hold that Caldwell sufficiently r eb u tted any p r esumption and has established a triable issue as to causation.

b. P resum ption Rebutted

Deliberately fabricated evidence in a prosecutor’s file can rebut any presumption of pr o secutorial independence. I n Smiddy I
, this Court g a ve a few n o n

- e x clusive ex amples o f how a plaintiff mig ht overcome the p r esumption, including by showing that the officers presented the district a t torney with “information known by them to b e f a l s e

. ” 665 F .2d at 2 6 6

– 6 7

. A plaintiff can a lso rebut the presumption by presenting e vidence “that the officers k n o wing ly withheld relevant information” from the prosecutor

. See Smiddy v

. Varney
, 803 F .2d 1469, 1 471 ( 9th Ci r

. 1986) (“ Smiddy II ”). I n sum, if a plaintiff establishes that officers e ither presented

1 1 3 7

. H o w ev er, t

h ere is n o d iscu ssio n o f a presu m p tio n o f i n d ep en d en ce t h a t a u t o m atically p reclu d es a f in d in g o f cau satio n

. In stead

, th e Co u r t h eld t h a t McSh erry h ad n o t presen ted su f f icien t ev id en ce o f cau s atio n

. S ee id

. at 1 1 4 2 (“ [E]v en e xa m i n i n g th e ev id en ce in t h e lig h t m ost f av o rab le to McSh erry , t

h e ev id en ce presen ted b ef o re th e d ist r i c t co u rt

w as sim ply i n su f f icien t to su stain a f

in d i n g th at [th e p ro secu to r’ s] in v estig atio n an d d ecisio n m ak in g w a s n o t in d ep en d en t an d w as tain ted b y th e alleg ed f

ab ricatio n o f ev id en ce.”) T h u s, th e McS h erry co u rt

en g ag ed in a n o rm al c au satio n an aly sis at th e su m m ary j u d g m en t stag e,

w ith o u t ref

eren ce to an y

p resu m p tio n

.C A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 23

false evidence to o r withheld crucial information from the prosecutor, the plaintiff overcomes the presumption o f prosecutorial independence and t h e a n aly sis r everts b ack to a normal causation question.

As stated above, we hold that Caldwell pres e n t s “more than conclusory all e ga tions of the falsehood” of ( 1) Cobbs’ identifi c ation of him, and (2) Crenshaw’s notes. See Blankenhorn v. City o

f Orange
, 485 F .3d 463, 483 (9th Cir. 2007)

. F urther, Caldwell raises a triable issue as to whether Giannini r elied on these alleg ed falsehoods in his decision to charg e Caldwell. See id. Thus, Caldwell has r ebutted any presumption of prosecutorial independent judg ment and has established a triable issue as to causation.

F irst, the alleg edly fabricated identifica t i on was p art o f the evidentiary record that Giannini reviewed prior to authoriz ing charg es ag ainst Caldwell. And there is no dispute that Cobbs’ identification was a crucia l p i e c e of evidence
ag ainst Caldwell. F urther, Giannini himself a dmitted that the preliminary hearing on December 3, 1 990, was the first occasion that h e “considered the p o ssibility that Ms. Cobbs had seen Caldwell during her intervie w with I nspector Gerrans.] ” I t therefore follows that Giannini did not consider whether the alleg ed show-up had taken place until more than
two months after he had a uthoriz ed charg es a g ainst Caldwell. 8 A prosecutor’s ju d gm e n t cannot be said to be

8 Gian n i n i co n tin

u es, “ I d eterm in ed th at Ms. Co b b s h ad n o t seen Mr. Cald w ell, a n d I d ecid ed th at ev en if sh e h ad

, it h ad n ’ t u n d erm in ed th e reliab ility o r v eracity of h er testim o n y .” W e tak e n o p o sitio n o n w h eth er th e cau sal ch ain w as b ro k en af ter Gian n in i f

irst learn ed o f an d co n sid ered th e alleg ed f

ab ricatio n o n Decem

b er 3
, 1 9 9 0

. W e h o ld o n ly th at C ald w ell

su f f icien tly r e b u ts an y p resu m p t io n o f in d ep en d en ce in Gian n in i’ sC A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 24

independent where the prosecu t o r considers potentially fabricated evidence without knowing that the evidence mig ht be fundamentally compromised a nd misleading

. 9 Therefore, this falsified identification may have infected Gianni ni’s review of the evidence and rebuts any p resumption tha t h is September 2 0, 1990, decision to charg e was independent. See Blankenhorn

, 485 F .3d at 483 ( p laintiff rebutted presumption of prosecutorial independence where, a t the time of charg ing

, the prosecutor on l y c o nsidered police reports and not contradictory evidence that showed the reports mig ht c ontain fabricated evidence).

Second, the alleg edly falsified n otes were likewise part o f the evidenti a ry r e cord that Giannini reviewed in deciding to charg e Caldwell. 1 0 Giannini declared, “[ a] lthoug h I initially

Sep tem b er 2 0 , 1 9 9 0 , ch arg i n g d ecisio n an d th at Cald w ell raises a triab le issu e o n cau satio n

. A j u ry w ill n eed to co n sid er th ese cau satio n q u estio n s.

9 Def en d an t s arg u e th at McS

h erry stan d s f

o r th e p rem ise t

h at th e

ex isten ce o f f

ab ricated ev id en ce in a p ro secu to r’ s f ile d o es n o t reb u t th e p resu m p tio n o f in d ep en d en t j u d g m en t. Ho w ev er, th e o f f icer in McS

h erry alleg ed ly f

ab ricated so m e o f th e ev i d en ce a f t er th e p ro secu to r’ s in itial d ecisio n t o ch arg e. S

ee McS h erry , 5 8 4 F .3 d at 1 1 3 3
, 1 13 6
, 1 1 42

. T h u s, th e alleg ed ly f

ab ricated ev id en ce co u ld n o t h av e af f ected th e pro secu to r’ s d ecisio n to ch arg e.

10 T h e d istrict co u

rt rej ected Cald w ell’ s reb u ttal arg u m en ts o n t h is
p o in t b y co n clu d in g th at Gray ’ s d eclaratio n d id n ot co rro b o rate Cald w e l l ’ s sto ry ab o u t th e f

alsif ied statem en ts an d th at, th eref o re, Cal d w ell o n ly

su p p o rted h is co n ten tio n w ith h i s o w n testim o n y

. S

ee Newma n , 45 7 F.3 d
at 9 9 5 (“ T o reb u t th e p resu m p t io n of in d ep en d en t j u d g m en t an d t o su rv iv e

s u m m ary j u d g m en t o n a m alicio u s p ro secu t io n claim

, a plain tif f m u st p ro v id e m ore th an a n a c c o u n t o f th e i n cid en t in q u estio n th at co n f licts

w ith th e acco u

n t o f th e o f f icers in v o lv ed .”).C A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 25

considered the inconsistency between [ the J u l y 13, 1990]
statement and Caldwell’s recorded statement of September 21, 199 0
, d uring the course of the p rosecution, I d ecided it

was a minor factor w hen r e v i ewing the totality o f the evidence.”

A g a in we hold that G iannini’s consideration of pote n t i a l l y fabricated evidence rebuts any presumption of independent judg ment and creates a f actual issue f

o r t h e jury

. F o r one, reading the prosecutor’s statement in the lig ht most favorable
to Caldwell, a j u r

y could c o n clude that “considering the inconsistency ” did not mean that the prosecutor knew that the
statement was alleg edly fabricated. F urther, even thoug h Giannini d ecided “during the course of the prosecution” that the inconsistency w a s a “ minor f actor,” a jury could reasonably c onclude that the p rosecutor relied on the falsified
statement in d eciding to charg e C aldwell. As such, we

c o n clude that Caldwell raises a triable issue as to causation f o r both the alleg edly fabricated identification a nd alleg edly falsified statements, even if the presumption of prosecutorial independent judg ment ex tends to d elibera t e fabrication o f evidence claims.

W e d isag ree. T h e d istrict co u rt reaso n ed th at b ecau se Gray co u l d n o t h av e h eard C ald w ell’ s an d C ren sh aw ’ s co n v ersatio n in sid e th e p o lice car, sh e d id n o t h av e p erso n al k n o w led g e o f th e s tatem en ts at issu e. Ho w ev er, Cren sh aw h im self testif

ied th at Cald w ell’ s “ s p o n t an eo u s statem en t” ab o u t b ein g p resen t at th e sh oo tin g an d d ealin g d ru g s o ccu rred d u rin g th eir f irst in teractio n o n t

h e street. A s su ch

, G r a y ’s d eclaratio n co rro b o rates C a l d w e ll’ s claim th at h e did n o t say an y th in g ab o u t th e s h o o tin g to Cren sh aw

. T h eref

o re, Cald w ell m ay

u se Gray ’ s d eclaratio n to reb u t an y p resu m p tio n o f p ro secu to rial in d ep en d en ce.C A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 26

B. Inspectors G errans and Crow ley

Unlike in reg ards to Crenshaw, Caldwell does n o t contend that he h as direct evi d e n c e that Gerrans and/or Crowley deliberately fabricated evidence during the investig a t ion. I nstead, 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] e fendants u sed investig ative techniques that were so coercive and abusive that they knew

or should have known that those techniques would y ield false information.” Devereaux
, 2 6 3 F. 3d at 1076. Caldwell has not met this burden.

Caldwell attacks Gerrans’ and Crowley ’s investig ative actions in a number of way s, most of which r elate to their conduct during the J uly 26, 1 990, photo lineup in which Cobbs identified Caldwell a s the shooter. Essentially

, Caldwell’s theory

is that Cobbs’ initial statement on J uly 13 ruled out Caldwell as the shooter, 1 1 s o that her later identification of Caldwell constituted a chang e that must have been the result of improper coercion during the J uly 26 photo lineup. Specifically

, Caldwell contends that Gerrans a nd Crowley intentionally did not record the initial portion of the J uly 26 meet i n g w i t h Cobbs to c over up their u se of the improperly sug g estive techniques. The techniques that Caldwell alleg es were coercive i n c l ude: (1) telling Cobbs

11 W e d isag ree t

h at Co b b s’ statem en ts to Gerran s d u rin g th e can v ass

ru led ou t Cald w ell as th e sh o o ter. A s alread y t o u ch ed u p o n , h er p h

y sical d escrip tio n o f th e s h o o t e r is n o t ex act as to Cald w ell, b u t is n o t to tally in co n sisten t eith er. Fu

rth er, ev en t

h o u g h Co b b s said th e sh o o ters d id n o t liv e in th e area, th ere is u n certain ty ab o u t w h eth er Cald w ell actu ally liv ed i n t h e ap artm en t n ex t d o o r. Fin ally

, ev en i f Co b b s k n ew Cald w ell’ s

n ick n am e tw o w eek s af

t er th e in itial in terv iew

, th is i s n o t co n clu siv e

ev id en ce th at sh e k

n ew h is m o n i k er d u rin g th e can v ass.C A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 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 p icking a suspect out of the lineup or testify ing ag a inst the suspect. E v en considering the facts in the lig ht most favorable to Caldwell, there is no triable issue that Gerrans and Crowley used these investig ative techniques o r that the techniques were so coercive or abusive that they rose to the level o f intentionally fabricated evidence.

As a preliminary matter, Caldwell is not contending that Gerrans’ a

nd Crowley ’s failure to videotape the initial

ex c h a ng e s with Cobbs during the J uly 2 6 photo lineup is, b y itself, a constitutional violation. I n stead, Caldwell references the d ecision n ot to vi deotape to imply that Gerrans a nd Crowley must have coached C o b b s d uring the u nrecorded portion of the lineup. W ithout any evide nce that c oaching actually occurred during this time, it is n ot reasonable to draw Caldwell’s requested inference. Reg ard l ess, Caldwell also takes issue with some of the inspectors’ techniques during the recorded portion of the photo lineup.

1. Telling Cobbs that a Suspect w as in the Lineup

F irst, Caldwell asserts that the officers to l d C o bbs that “the suspect ” was in the photo lineup they presented to her. Caldwel l ’ s o n l y evidence for this is that, the day after the meeting with Co b b s , t he officers alleg edly told a different witness
, B obila, that there was a suspect in the photo lineup. To support this, Caldwell cites to the following from B obila’s deposition:

[ M] y r ecollection, [ the officers] just asked me if I could recog niz e a n y of these six picturesC A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 28

t h a t w as put in front of me. L ike I said, the y pick up a suspect that they think is a suspect, and it’s g oing to be six pictures that’s similar
to the one they arrested, and I pick up the picture because I thoug ht t h a t he looks familiar.

Even reading this statement in the lig ht most favo r a b le to Plaintiff, it say s nothing about Gerrans and Crowley telling Bo b i l a that a suspect was in the lineup. At best, this s h o w s that B obila’s u nderstanding wa s t h a t a suspect was in the lineup, but n ot how he came to have that understanding

. F urther, e ven if the officers h ad told a different witness that there was a subject in the lineup

, i t w ould likely not be
enoug h to raise a triable issue as to w hether Gerrans a nd Crowley also told Cobbs that a suspect was in her photo lineup.

2. “Reinf

o rcing” Cobbs’ Selection of Caldw ell

Second, Caldw ell arg ues that Gerrans and Crowley improperly “reinforced” Cobbs’ identification of Caldwell in the photo lineup “no less than eig h t times.” At first, the officers tried to confirm w hether the person she selected was the shotg u n shooter: “this is the m a n y o u saw out front o f
y our house the nig ht of the shooting and he had a shotg un. I s that co r r e c t ? ”L ater, the o fficers asked, “[ t] he man that y ou saw, y ou picked out in this pi c t u r e here, the man with the shotg u n, he was still shooting the shotg un as th e c a r was leaving ? ” F inally

, the officers referenced Caldwell by name: “[ w] hen y ou went to the window, y ou recog niz ed t h i s man and I ’m turning over the picture o f Maurice Caldwell SF No. 445392. That’s the man that y ou r ecog n iz ed. ‘ Cuz y ou saw him in the area before, rig ht? ’”C A L D W E L L V

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. O F S A N F R A N C I S C O 29

The officers never actually confirmed that Cobbs picked the correct “suspect,” apart from, possibly

, stating Caldwell’s
name, which o nly came towards the end of the di s c u ssion. This is d ifferent than directly confirming that a witness picked the correct suspect. F u rther, o ne of the cases Caldwell cites in support of his assertion, Oliva v. Hedgpeth

, 3 7 5 F

. A p p ’ x 697 (9th Cir. 2010) (unpublished), is both non

precedential and disting uishable. Here there is no alleg ation that Cobb s p icked another photo out o f the lineup before selecting Caldwell; no indication that Cobbs thoug ht that she

was r eq u i r e d t o select a photo from the lineup. S ee id. At 698. W e d o n ot believe that any “reinforcing ” in this case

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

3. Conditioning Benef its on Testif

ying against Caldw ell

T h ird, Caldwell alleg e s that the officers manipulated Cobbs’ identification by offering her ince n t i v e s to testify

. The alleg ed incentives came in the form of a p romise to relocate her – conditioned o n p icking a witness – a nd financial benefits under SF PD’s Secret W itness Prog ram.

As to the promise to relocate Cobbs, Caldwell alleg es that this was impermissibly sug g estive because a jury could conclude that the offer of p rotection w as only on the table if she picked a suspect o ut of the p hoto lineup. During Gerrans’ deposition, Caldwell’s attorney ask e d t h e o f ficer 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 g o into witness

. . . relocation or any thing like that

. . . . W e d idn’t promise h e r any thing at that time. W e promised we would take care of her to protect her.”C A L D W E L L V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 30

This evidence mig h t create a triable issue about whether Gerrans and Crowley

conditioned the offer to protect Cobbs

o n identify ing a suspect – e ven if Gerrans did not prom i s e any thing to Cobbs, he still a greed with Caldwell’s attorney that he said the “police would take efforts to protect [ Cobbs] i f ” she identified a suspect. Nonetheless, even if ther e i s a f actual dispute as to whether the officer conditione d protection on Cobbs testify ing , any conditioning in this case is not so coercive as to lead to fabricated evidence.

F or ex ample, while pay ing a witness f o r testimony may create adverse incentives to provide false statements, pay ing

a witness alone does not violate d u e p r o cess. See United S t a t e s v. Cuellar

, 96 F .3d 1179, 1182 (9th Cir. 1996) (“W e, and other c ourts as well, have con s i s t e ntly held that the
g overnment is not precluded f r om using [ paid] informants before or during trial simply because an informant may have

a m o t ive to f

alsify testimony

. . . .”); cf. United States v

. McQuin
, 612 F. 2 d 1 193, 1195 (9th Cir. 1980) (witness “assured p ay

ment by the F B I only if there were an arrest a nd he testified”). I f directly

pay ing a witness does n o t violate a defendant’s due process, offering Cobbs p r o t e ction if she
t e s t ified is not so coercive that it would lead to f al s e testimony

. A defendant facing a p aid o r motivated witness can raise those issues during cross-ex a mination.

F inally

, Caldwell makes a similar arg ument that, because Cobbs r e ceived a trip to Disney land six months a fter Caldwell’s c onvic tion, Crowley a nd G errans must have promised Cobbs financial benefits. I n support of this theory

, Caldwell identifies a lette r from United Airlines a warding Cobbs three round trip tickets to Orang e County “in support of the Secret W itness P r o g ram.” H owever, there is noC A L D W E L L V

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. O F S A N F R A N C I S C O 31

evidence linking Cro w l ey or G errans to the Secret W itness Prog r am. There is no sug g estion of coercion here.

According ly

, we hold that G errans’ and Crowley ’s i nvestig ative techniques were not so “ coercive and ab u s i v e that [the officers] k

new or should have known that [they ] would y ield false information.” Deve r e a ux , 263 F .3d at 1076. As such, we affir m s ummary judg ment in favor o f Gerrans and Crowley

.

IV. CONCLUSION

F or the foreg oing reasons we affirm the g rant of summary judg ment as to I nspectors Gerrans and Crowle y , b u t reverse and r emand a s to Serg eant Crenshaw. Each p a r ty shall bear his own costs on appeal.

AF F IRMED in p a r t, REVERSED in part, a nd REMANDED.