FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE E. LISKER,

Plaintiff-Appellee,

v.

CITY OF LOS ANGELES; LOS

ANGELES POLICE DEPARTMENT,

Defendants,

and

ANDREW MONSUE; HOWARD

LANDGREN,

Defendants-Appellants.

No. 13-55374

D.C. No.

2:09-cv-09374-

AHM-AJW

OPINION

Appeal from the United States District Court

for the Central District of California

Alvin Howard Matz, District Judge, Presiding

Argued and Submitted

February 12, 2015—Pasadena, California

Filed March 20, 2015
2 LISKER V. MONSUE

Before: David Bryan Sentelle,* Morgan Christen,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz

SUMMARY**

Civil Rights

The panel affirmed the district court’s order denying

absolute witness immunity to two Los Angeles Police

Department detectives in an action brought pursuant to 42

U.S.C. § 1983 by Bruce Lisker who alleged, among other

things, that defendants fabricated police reports, investigative

notes, and photographs of a crime scene during their

homicide investigation.

Lisker was convicted of second-degree murder, served

over twenty-six years in custody, and was released in 2009

after a federal judge determined falsified evidence had been

introduced at trial and conditionally granted a writ of habeas

corpus. The State then dismissed the charges against Lisker.

* The Honorable David Bryan Sentelle, Senior Circuit Judge for the U.S.

Court of Appeals for the District of Columbia Circuit, sitting by

designation.

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

been prepared by court staff for the convenience of the reader.
LISKER V. MONSUE 3

The panel held that defendants’ notes, investigative

reports and photographs of the crime scene were analogous

to the sorts of documentary and physical evidence—such as

falsified videotaped interviews and forensic reports—that fall

outside the protection of absolute immunity. The panel held

that the same conclusion applied to the allegedly falsified

reconstruction of the crime scene. The panel held that the

policy interests behind absolute immunity for testimony do

not apply to the investigative materials in this case. The panel

concluded that defendants plainly acted in an investigative

capacity in producing the notes, reports and crime-scene

photographs and that qualified immunity provided sufficient

protection for these activities. 

The panel held that it lacked jurisdiction to review the

district court’s denial of summary judgment on the merits,

specifically the district court’s findings regarding the

detectives’ mental states and the falsity of the notes, reports

and photographs. The panel held that these determinations

were not inextricably intertwined with, or necessary to ensure

meaningful review of, the immunity issues properly before

the panel in the interlocutory appeal.

COUNSEL

Michael N. Feuer, City Attorney, Amy Jo Field (argued),

Deputy City Attorney, Los Angeles, California, for

Defendants-Appellants.

Barrett S. Litt (argued), Kaye, McLane, Bednarski & Litt,

LLP, Pasadena, California; William J. Genego, Law Office of

William J. Genego, Santa Monica, California; Vicki I.
4 LISKER V. MONSUE

Podberesky, Nasatir, Hirsch, Podberesky & Khero, Santa

Monica, California, for Plaintiff-Appellee.

OPINION

HURWITZ, Circuit Judge:

Plaintiff Bruce Lisker was convicted of second-degree

murder, served over twenty-six years in custody, and was

released in 2009 after a federal judge determined falsified

evidence had been introduced at trial and conditionally

granted a writ of habeas corpus. The State then dismissed the

charges against Lisker.

In this 42 U.S.C. § 1983 action, Lisker seeks damages

from two Los Angeles Police Department detectives for

fabricating reports, investigative notes, and photographs of

the crime scene during the homicide investigation. The

detectives also testified during preliminary proceedings and

at trial, and the issue before us is whether the doctrine of

absolute witness immunity, which shields the detectives from

suit for their testimony, also extends to their pre-trial actions. 

We hold that it does not.

I.

A.

Dorka Lisker was murdered in her home in Sherman

Oaks, California sometime during the morning of March 10,

1983. She was stabbed multiple times in the back and

suffered a blow to the head. Dorka’s seventeen-year-old son

Bruce was at the house when paramedics and police officers
LISKER V. MONSUE 5

arrived. He was taken to the Van Nuys station, where he was

interviewed by Detective Andrew Monsue.

During the interview, Lisker claimed that he had arrived

at his parents’ house between 10:30 and 11:00 am. When no

one answered the front door, Lisker walked through a muddy

area into the backyard, looked through a living room window,

and saw a pair of feet on the floor. He then went to a sliding

glass door and saw that the feet belonged to his mother, who

was lying motionless on the floor. After unsuccessfully

searching for a spare key, Lisker attempted to enter the house

through the kitchen window, but the screen on the window

was nailed shut. He ran back around the house to his car to

retrieve pliers, removed the screen, and entered the house. 

Inside, he found his mother on the living room floor with two

knives in her back. Lisker removed the knives and searched

for an intruder. He called the paramedics, who arrived with

the police at approximately 11:35 am.

B.

Detectives Monsue and Howard Landgren were assigned

to investigate the Lisker homicide; they maintained a

“Murder Book” containing their notes, investigative reports,

and photographs of the crime scene. The Murder Book

included a “Follow-Up Investigation Report” dated March 13,

1983 that was provided to the Los Angeles County District

Attorney’s Office. The report states that on the day of the

murder, the detectives “attempted to look into all the

windows in the rear of the location, but could not see inside

the house” without putting their faces against the glass

because of “glare from the sun, coupled with the patio being

partially covered with a roll-up canvas cover.”
6 LISKER V. MONSUE

The “Chronological Record” section of the Murder Book

documents that the detectives returned to the crime scene on

the morning of March 23, 1983 with a photographer and a

model. The model was directed to lie where Lisker’s mother

had been found. The notes state that the “photographer

concurred that susp[ect] could not have seen mother lying on

the floor.”

The “Follow-Up Investigation Report” also states that the

detectives “observed several footprints in the mud along the

east side of the house. The footprints led in the direction of

the kitchen window . . . .” It explains that “the footprints in

the mud only led toward the kitchen window and there were

no footprints leading away from the side of the house.” The

report also notes that bloody footprints were found

throughout the house, and states that the prints had a “wavelike sole design.”

C.

On March 14, Lisker was charged with the murder of his

mother. Monsue testified several weeks later at a juvenile

detention hearing that the day of the murder “was a very

bright, sunny day, clear skies; very bright, very, very bright,”

and that he was unable to see through the back windows

because of the glare. Monsue also testified that the footprints

along the side of the house only “pointed in a direction

coming toward the rear of the residence,” these prints

matched the shoes Lisker was wearing, and the bloody prints

in the house had a “zigzaggedy pattern” “very similar” to the

prints in the mud.

Landgren and Monsue both later testified at a preliminary

hearing. Each claimed to have been unable to see the floor of
LISKER V. MONSUE 7

the living room from outside the house on the day of the

murder because of glare from the sun and other obstructions. 

Landgren testified that the footprints he saw inside and

outside the house all had a “wavy type pattern.”

Monsue also testified at trial.1 He again stated that the

day of the murder had been bright and sunny, and that glare

on the windows made it impossible to see inside the house. 

Monsue confirmed that shoeprints inside and outside the

house “resembled quite closely” the shoes Lisker had been

wearing, and that the prints in the mud outside the house

faced southwards. He also testified that “[t]he conditions of

the sun, the temperature, the environment in terms of the

dampness on the ground were very similar” during the March

23, 1983 photographic reenactment to the conditions on the

day of the murder. The jury was shown photographs taken on

the day of the crime of footprints inside and outside the house

and photographs taken during the March 23 reconstruction.

The prosecution argued that Lisker was guilty because

only his footprints were found in and around the house, and

because Lisker had lied during his interview with Monsue,

including a “most condemning” lie about seeing his mother

through the windows in the back of the house. The jury

found Lisker guilty of second-degree murder, and he was

sentenced to sixteen years to life.

1 Lisker’s first trial was aborted when Lisker agreed to plead guilty on

condition that he would be placed in the custody of the California Youth

Authority. This agreement ultimately fell apart, and a second trial began

in October 1985.
8 LISKER V. MONSUE

D.

Lisker undertook several unsuccessful attempts at postconviction relief in the California courts. In 2004, he filed a

federal habeas corpus petition in the Central District of

California, alleging due process violations and ineffective

assistance of counsel. See Lisker v. Knowles (“Lisker II”),

651 F. Supp. 2d 1097, 1107 (C.D. Cal. 2009) (adopting the

recommendations of the magistrate judge); Lisker v. Knowles

(“Lisker I”), 463 F. Supp. 2d 1008, 1010–11 (C.D. Cal. 2006)

(same).

At an evidentiary hearing on the federal petition, Lisker

presented meteorological charts and expert testimony

demonstrating that it had been overcast on the morning of the

murder. Lisker II, 651 F. Supp. 2d at 1135. The district court

found that this evidence “overwhelmingly” showed that it had

not been bright and sunny on the morning of the murder, and

that the weather during the March 23 photographic

reconstruction had been markedly different. Id. at 1136–37. 

The court also found, based on a 2005 reconstruction of the

crime scene, that the view of Dorka Lisker’s body from

outside the house would have been unobstructed. Id. at

1137–38.

Lisker also presented witnesses who attested that there

were two sets of footprints in the mud outside the house—one

with a “wave” pattern, the other with a “herringbone”

pattern—and that the herringbone pattern did not match

Lisker’s shoes. Id. at 1125–26. These witnesses also

concluded that at least some of the bloody prints in the house

matched the herringbone pattern and had not been left by

Lisker. Id. The district court found Lisker had conclusively
LISKER V. MONSUE 9

proved that prosecution evidence regarding the shoeprints had

been false. Id. at 1138.

On August 6, 2009, the district court found Lisker’s due

process rights had been violated because falsified evidence

was admitted at trial, and conditionally granted the petition

unless the State promptly retried Lisker.2

Id. at 1101,

1140–41. On September 21, 2009, the State, although still

asserting Lisker’s guilt, sought dismissal of the information

because the evidence was stale. Lisker was released after

spending over twenty-six years in custody.

E.

Lisker filed this action on December 22, 2009, asserting

claims under 42 U.S.C. § 1983 against Monsue and Landgren

for malicious prosecution, falsification of evidence, and

Miranda and Brady violations; he also asserted a claim

against the City of Los Angeles and the Los Angeles Police

Department, alleging that policies and practices of the

Department contributed to the constitutional violations. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978)

(holding that liability can be imposed under 42 U.S.C. § 1983

if a municipal “policy or custom” causes a constitutional

injury). After Lisker voluntarily dismissed the malicious

prosecution and Miranda claims, the district court granted in

part and denied in part a defense motion for summary

judgment, dismissing the Brady claim but permitting the

falsification-of-evidence and Monell claims to proceed to

trial. With respect to the falsification claim, the court also

rejected the defendants’ claim to absolute witness immunity

2 The court also concluded, for reasons not relevant to this opinion, that

Lisker had received ineffective assistance of counsel. Id. at 1132, 1141.
10 LISKER V. MONSUE

for the alleged pre-trial fabrications. The defendants filed a

timely Notice of Interlocutory Appeal from the denial of

absolute immunity on March 4, 2013.

We have jurisdiction over this appeal because “the denial

of a substantial claim of absolute immunity is an order

appealable before final judgment” under the collateral order

doctrine. Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). We

review de novo the district court’s denial of immunity. Knox

v. Sw. Airlines, 124 F.3d 1103, 1105 (9th Cir. 1997).

II.

Witnesses, including police officers, are absolutely

immune from liability for testimony at trial, Briscoe v.

LaHue, 460 U.S. 325, 345–46 (1983), and before a grand

jury, Rehberg v. Paulk, 132 S. Ct. 1497, 1510 (2012). 

Absolute witness immunity also extends to preparatory

activities “inextricably tied” to testimony, such as

conspiracies to testify falsely. Franklin v. Terr, 201 F.3d

1098, 1102 (9th Cir. 2000); see also Rehberg, 132 S. Ct. at

1506–07. “Were it otherwise, a criminal defendant turned

civil plaintiff could simply reframe a claim to attack the

preparation instead of the absolutely immune actions

themselves.” Rehberg, 132 S. Ct. at 1506 (internal quotation

marks omitted); see also Cunningham v. Gates, 229 F.3d

1271, 1291 (9th Cir. 2000) (“[D]efendants are . . . entitled to

absolute immunity from damages liability for any alleged

conspiracy to commit perjury.”).

Immunity for pre-testimony conduct, however, “is not

limitless.” Paine v. City of Lompoc, 265 F.3d 975, 981 (9th

Cir. 2001). In addressing claims of witness immunity, we

have distinguished conspiracies to testify falsely from “non-
LISKER V. MONSUE 11

testimonial” acts, such as “tampering with documentary or

physical evidence or preventing witnesses from coming

forward.” Id. at 981–82. Our sister Circuits have done the

same. See, e.g., Keko v. Hingle, 318 F.3d 639, 642–44 (5th

Cir. 2003) (declining to extend absolute immunity to forensic

examiner’s report); Spurlock v. Satterfield, 167 F.3d 995,

1001–04 (6th Cir. 1999) (distinguishing between conspiracies

to testify falsely, which are immune, and manufacturing a

false tape-recorded interview and providing hush money to a

would-be witness, which are not).

The detectives argue that the notes and reports in the

Murder Book are “inextricably tied” to their testimony

because these documents were not introduced at trial, and

their purpose was to memorialize the substance of eventual

testimony. We disagree. As the Sixth Circuit has recognized,

police investigative materials have evidentiary value wholly

apart from assisting trial testimony—they “comprise part of

the documentary record before the prosecution and defense”

and affect charging decisions, plea bargaining, and crossexamination of the investigating officers. Gregory v. City of

Louisville, 444 F.3d 725, 741 (6th Cir. 2006); see also

Ricciuti v. N.Y.City Transit Auth., 124 F.3d 123, 127, 130 (2d

Cir. 1997) (recognizing a falsification-of-evidence claim for

forwarding “false information likely to influence a jury’s

decision” to prosecutors, although the evidence was not

admitted at trial). This non-testimonial evidentiary value

distinguishes the materials in the Murder Book from pre-trial

activity aimed exclusively at influencing testimony. See

Franklin, 201 F.3d at 1102 (finding conspiracy immune

because its “ostensible purpose . . . was to ensure that one

person’s testimony did not contradict the other’s testimony”). 

The materials in the Murder Book are analogous to the sorts

of documentary and physical evidence—such as falsified
12 LISKER V. MONSUE

videotaped interviews and forensic reports—that fall outside

the protection of absolute immunity. See Gregory, 444 F.3d

at 741–42; Keko, 318 F.3d at 642; Paine, 265 F.3d at 981–82;

Spurlock, 167 F.3d at 1001–04.

The same conclusion applies to the allegedly falsified

reconstruction of the crime scene. The photographs from the

reconstruction were introduced at trial. See Lisker I, 463 F.

Supp. 2d at 1014. They are therefore squarely governed by

this Court’s previous holding that “a pretrial, out-of-court

effort to . . . fabricate physical evidence . . . is not

‘inextricably tied’—or tied at all—to any witness’ own

testimony,” even “[i]f a potential witness does happen to be

involved.” Paine, 265 F.3d at 982.

In addition, the policy interests behind absolute immunity

for testimony do not apply to the investigative materials here. 

Absolute witness immunity is motivated by the recognition

that “[a] witness who knows that he might be forced to

defend a subsequent lawsuit, and perhaps to pay damages,

might be inclined to shade his testimony in favor of the

potential plaintiff, to magnify uncertainties, and thus to

deprive the finder of fact of candid, objective, and undistorted

evidence.” Briscoe, 460 U.S. at 333. That immunity extends

to conspiracies to testify falsely for practical reasons, as a

plaintiff could otherwise easily undermine the interest in

witness candor by challenging the conspiracy rather than the

testimony itself. Rehberg, 132 S. Ct. at 1506; Paine,

265 F.3d at 981. But when defendants have “dual roles as

witness and fabricator,” extending protection from the

testimony to the fabricated evidence “would transform the

immunity from a shield to ensure” candor into “a sword

allowing them to trample the statutory and constitutional

rights of others.” Paine, 265 F.3d at 982–83 (internal
LISKER V. MONSUE 13

quotation marks omitted). The detectives’ ultimate testimony

“does not serve to cloak these actions with absolute

testimonial immunity,” Spurlock, 167 F.3d at 1001; if it did,

they would be rewarded for “compound[ing] a constitutional

wrong,” Gregory, 444 F.3d at 739.

The Supreme Court has repeatedly declined to extend

absolute immunity to prosecutors acting outside of their

traditional roles. See, e.g., Kalina v. Fletcher, 522 U.S. 118,

131 (1997) (prosecutor as “complaining witness”); Buckley

v. Fitzsimmons, 509 U.S. 259, 275–76 (1993) (prosecutor

acting in investigative capacity). These cases confirm that

absolute immunity is reserved for conduct “intimately

associated with the judicial phase of the criminal process,”

Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and that

outside of this context, qualified immunity is presumed

“sufficient to protect government officials in the exercise of

their duties,” Burns v. Reed, 500 U.S. 478, 486–87 (1991). 

Landgren and Monsue plainly acted in an investigative

capacity in producing the Murder Book and crime-scene

photographs. Qualified immunity provides sufficient

protection for these activities.

Contrary to the detectives’ arguments, Rehberg v. Paulk

does not compel a different result. In that case, the Supreme

Court held that grand jury witnesses are entitled to absolute

immunity, even if acting as “complaining witnesses.”3

See

3 A “complaining witness” is one “whose allegations serve to bring

about a prosecution.” Paine, 265 F.3d at 981 n.2. Witnesses who may

otherwise receive absolute immunity for their actions are sometimes

accorded only qualified immunity when serving as a complaining witness. 

See, e.g., Kalina, 522 U.S. at 131. Lisker argues that Landgren and

Monsue are complaining witnesses. In light of our holding, we need not

decide this question. We note, however, that the exception sometimes
14 LISKER V. MONSUE

132 S. Ct. at 1507, 1510. The Court also confirmed that

witness immunity extends to conspiracies to testify falsely. 

Id. at 1506–07, 1510. In doing so, the Court was careful to

emphasize that witness immunity does not extend to “all

activity that a witness conducts” before testifying, and noted

in particular that it had “accorded only qualified immunity to

law enforcement officials who falsify affidavits.” Id. at 1507

n.1 (citing Kalina, 522 U.S. at 129–131, and Malley v.

Briggs, 475 U.S. 335, 340–45 (1986)). The circumstances

presented here fall squarely outside the carefully limited

holding of Rehberg.

III.

The defendants also seek review, under the doctrine of

pendent appellate jurisdiction, of the denial of their motion

for summary judgment on the merits. See Swint v. Chambers

Cnty. Comm’n, 514 U.S. 35, 50–51 (1995) (explaining

pendent appellate jurisdiction). In particular, they challenge

the district court’s findings regarding the detectives’ mental

states and the falsity of the Murder Book and photographs. 

These determinations, however, are not “inextricably

intertwined with, or necessary to ensure meaningful review

of,” the immunity issues properly before us in this

interlocutory appeal. Burlington N. & Santa Fe Ry. Co. v.

Vaughn, 509 F.3d 1085, 1093 (9th Cir. 2007). We therefore

drawn for complaining witnesses because of their role in initiating

proceedings further underscores the significance of the Murder Book in

initiating proceedings against Lisker.
LISKER V. MONSUE 15

lack jurisdiction to review the district court’s denial of

summary judgment on the merits.4

IV.

For the reasons explained above, we AFFIRMthe district

court’s denial of summary judgment on witness immunity

grounds.

4 To the extent we have jurisdiction to determine “at least whether there

is any—‘an iota’—of evidence supporting” the claims, Paine, 265 F.3d at

985, the district court’s thorough summary judgment order convincingly

demonstrates that the evidence here surmounts this threshold.