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

B R U C E E. L I S K

E R , Plaintiff-Appellee
,

v

.

C I T Y O F L O S A

N G E L E S ; L O S A N G E L E S P O L I C E D E P A R T M E N T , Defendants
,

and

A N D R E W M O N S U E ; H O W

A R D L A N D G R E N , Defendants-Appellants

. N o. 13-55374

D.C. No. 2:09-cv-09374- AHM-AJ W

OPI NI ON

A ppeal from the United States District Court for the Central District of California Alvin Howard Matz , District J udg e, Presiding

Arg ued and Submitted F ebruary 1 2, 2015—Pasadena, California

F iled March 20, 2015L I S K E R V

. M O N S U E 2

B efore: David B r

y a n Sentelle, * Morg an Christen, and Andrew D. Hurwitz
, Circuit J udg es.

Opinion by

J udg e Hurwitz

SUMMARY * *

Civil Rights

The pa n el affirmed the district c ourt’s order deny ing absolute wi tness immunity to two L os Ang eles Police Department detectives in a n a ction broug h t pursu a nt to 42 U.S.C. § 1983 by B ruce L isker who alleg ed, among other thing s, that defendants fabricated police reports, investig ative
note s , a nd photog raphs of a crime scene during their homicide investig ation.

L isker was convicted of second-deg ree murder, served

over twenty -six y ears in custody
, and was released i n 2009 after a federal judg e determined falsified evid e n c e h a d been introduced at trial and conditionally g ranted a writ of h abeas
corpus. The State then dismissed the charg es ag ainst L isker.

* T h e Ho n orab l e Dav id B ry an Sen telle, Sen io r Circu i t J u d g e f o r th e U .S. Co u rt o f A

pp eals fo r t h e District o f Co lu m b ia Circu it, s ittin g b y d esig n atio n

.

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

t es n o p ar t o f t h 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.L I S K E R V

. M O N S U E 3

The panel held that d e f endants’ notes, investig ative reports and photog rap h s of the crime scene were analog ous to the sorts o f documentary and phy sical evidence—such a s falsified videotaped interviews and forensic reports—that fall outside the protection of absolute immunity

. The panel h eld that the same conclusi o n a p plied to the alleg edly falsified reconstruction of the crime scene. The panel held t h a t the policy interests behind absolute immunity for test i m ony do
not apply to the investig ative materials in this case. The panel concluded t h at defendants plainly acted in an investig ative capacity in producing the n otes, reports and crime-scene photog raphs a

nd that qualified immunity provided sufficient protection for these activities.

The p anel held that it lack e d j u r i sdiction to review the district court’s denial o f summary judg men t on the merits, specifically the district court’s f i n ding s reg a

rding the detectives’ mental states and the f alsity of the notes, reports and photog raphs. The panel held that t h e s e determinations

were not inex tricably intertwined with, or necessary to ensure meaning ful review of, the immunity issue s p r o perly before the panel in the interlocutory appeal.

COUNSEL

Michael N

. F euer, City Attorney
, A m y J o F ield (arg ued), Deputy City Attorney
, L os Angeles, California, for Defendants-Appellants.

Ba r r e t t S. L itt (arg

ued), K ay e, McL ane, B e dnarski & L itt, L L P, Pasadena, California; W illiam J

. Geneg o, L aw Office o f W illiam J

. Geneg o, Santa Mon i c a, California; V icki I

.L I S K E R V

. M O N S U E 4

Podberesky
, Nasatir, Hirsch, P odberesky & Khero, Santa Monica, California, for Plaintiff-Appellee.

OP INION

HURW I TZ , Circuit J udg e:

Plaintiff B ruce L isker w a s convicted of second-degr ee murder, served over twenty -six y ears in custody
, and was released in 20 09 after a federal judg e determined falsified evidence had been introduced at trial and conditionally
g ranted a writ of habeas c orpus. The State then dismissed the charg es ag ainst L isker.

I n this 42 U.S.C. § 1 983 action, L i s ker seeks damag e s from two L os Ang eles Police Department dete c t ives for f a bricating reports, investig ative n otes, and photog raphs o f the crime scene during the homicide investig ation

. The detectives also testified during preliminary proc e eding s a nd
at trial, a nd the issue before us is whether t h e doctrine o f absolute witness immunity
, which shields the detectives from suit for their testimony
, also ex tends to their pre-trial a ctions. W e hold that it does not.

I.

A.

D o r k a L isker was murdered in her home in Sherma n Oaks, California sometime during the morning of March 10, 1983. She was stab b ed multiple times in the back a nd suffered a b low to the h ead. Dorka’s seventeen-y ear-old son B ruce was at the house when p aramedics and police officersL I S K E R V

. M O N S U E 5

arrived. He was taken to the Van Nuy s station, where h e was interviewed by

Detective Andrew Monsue.

During the interview, L isker claimed that he had arrived
at his parents’ house between 1 0:30 a n d 11:00 am. W hen no

one answered the front door, L isker walked throug h a muddy

area into the backy ard, looked throug h a living room window, and saw a pair of feet on the floor. He then went to a sliding
g lass d oor and saw that the feet belong ed to his mother, w ho

was ly ing mo t i o n less on the floor. A fter unsuccessfully searching f

or a spare k ey , L isker attempted to enter the h ouse throug h the kitchen w indow, but the screen on the w indow

was n ailed shut. He ran back around the house to h is car to retrieve p liers, removed the screen, and entered the hous e. I nside, he found h is mother on the living room floor with two knives in her back. L isker removed the knives and searched for a n intruder. He called the paramedics, who arrived w i th the police at approx imately 11:35 am.

B.

Detectives Monsue and Howard L andg ren w ere assig n ed
to investig ate the L isker homicide; t h e y maintained a “Murder B ook” containing their notes, investig a tive reports, and photog raphs of the cr ime scene. The Murder B ook included a “F o llow-Up I

n v e s t i g a t ion Report” dated March 13, 1983 that was provided to the L os Ang eles Coun t y District At torney ’s Office. The report states that on the day of the murder, t h e d e tectives “attempted to look into all the windows in the rear o f the location, b u t could not see inside the house” without p u t t i n g their faces a g ainst the g lass because of “ g lare from the sun, coupled with the patio being partially covered with a roll-up canvas cover.”L I S K E R V

. M O N S U E 6

The “ Chronolog ical Record” section of the Murder B ook documents that the detectives returned to the crime scene on the morning of Ma rch 23, 1983 w ith a photog r apher and a model. The model w as directed to lie where L isker’s mother had been found. The notes state that the “photog rapher concurred that susp[ e ct] could not h ave seen mother ly ing on the floor.”

The “F ollow-Up I nvestig ation Report” also states that the detectives “observed several footprints in the mud a long the
east side of the house. The footpri n t s led in the direction o f the kitchen window

. . . . ” I t ex plains that “the f o otprints 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 b l oody footprints were f ound throug hout the house, and states that the prints had a “wavelike sole desig n.”

C.

On March 14, L isker was c harg e d with the murder o f his mother. Monsue testified several w e e k s later at a juvenile d e tention h earing that the day of the murder “was a v e r y brig ht, sunny day
, clear skies; very brig ht, very , very brig ht,” and that he was unable to see throu gh t he back windows because of the g lare. Monsue also testified that the footprints along t h e side of the house only “pointed in a direction

co ming toward the rear of the residence,” these prints matched the shoes L isker was wearing
, and the bloody prints in the h ouse had a “z ig z ag g edy pattern” “very similar” to the prints in the mud.

L andg ren and Monsue both later testified at a preliminary hearing

. Each claimed to have been unable to see the floor o fL I S K E R V

. M O N S U E 7

the living room from outside the house on t h e d a y of the murder because of g lare from the sun and other obstructions. L andg ren testified that the footprints he saw i n s i d e a nd outside the house all had a “wavy ty pe pattern.”

Monsue also testified a t trial. 1 He a g ain stated that the day of the murder h a d b een brig h t and sunny , and that g lare

on the windows made it impossible to see inside th e h o u s e

. Monsue c onfirmed that shoeprints inside and out s i d e the house “resembled q

uite c losel y ” the shoes L isker had been wearing
, and that the prints i n t h e m u d outside the h ouse faced southwards. He also testified that “[ t] he conditions o f the sun, the temperature, the en v i r o n m e nt in terms of the dampness o n the g round were very similar” during the March 23, 1983 p hotog raphic reenactment to the co n d i t i o ns on the day of the murder. T h e jury w as shown photog r aphs taken on the day of the crime of footprints inside a nd outside the h ouse and photog raphs taken during the March 23 reconstruction.

The prosec u t i on arg ued that L isker was g u ilty because only his footprints were found in and around the house, a nd because L isker had lied d uring his interv i e w w ith Monsue, including a “most condemning ” lie about se e i ng his mother throug h the w i ndows in the b ack of the house. The jury found L isker g uil ty of second-deg ree murder, and he was sentenced to six teen y e ars to life.

1 L isk er’ s f

irst trial w as ab o rted w

h en L isk er ag reed to p l ead g u ilty on

co n d itio n th at h e w o u ld b e p laced in th e cu s to d y o f th e Calif o rn ia Yo u th A u th o rity

. T h is ag reem en t u ltim ately f ell ap art, an d a seco n d trial b eg an in Octo b er 1 9 8 5

.L I S K E R V

. M O N S U E 8

D.

L isker undertook s e veral unsuccessful attempts at postconviction relief in the California courts. I n 2004, he filed a federal h abeas corpus pe t i t ion in the Central District o f California, a lleg ing d u e process violations and ineffective assistance of counsel. S

e e Lisker v. Knowles ( “

L isker II ”), 651 F

. Supp. 2d 1097, 1107 (C.D. Cal. 2009) (adopting the recommendations o f the mag istrate judg e); Lisker v. Knowles (“ Lisker I ” ), 463 F

. Supp. 2d 1008, 1010–11 (C.D. Cal. 2 006) (same).

At an evidentiary hearing on the f e d e ral petition, L isker presente d meteorolog ical charts and ex pert testimony demonstrating that it had been overcast o n the morning of the murder. Lisker II

, 651 F

. Supp. 2d at 1135. The district court found that this evidence “overwhelming ly ” showed that it h ad
not been brig ht and sunny o n the morning of the murder, a nd that t h e weather during the March 23 photog raphic reconstruction had been markedly different. Id. at 1136–37. The c ourt a lso found, based on a 2 00 5 reconstruction of the crime scene, t h a t t h e view of Dorka L isker’s body from outside t h e house would have been unobstructed. Id. at 1137–38.

L isker also p resented w itnesses who attested that there

were two sets of footprints in the mud outside the house—one with a “wave” pattern, the ot h e r with a “ herring bone” pattern—a n d t h at the herring bone pattern did n ot match L isker’s shoes. I

d

. a t 1 125–26. These witnesses also concluded that at least some o f the bloody prints in the h ouse matched the herring

bon e p at tern and had not b e en left b y L isker. I d. The district court f

ound L isker h ad conclusivelyL I S K E R V

. M O N S U E 9

p r o v e d t hat prosecution evidence reg a rding the shoeprints h a d been false. I

d. at 1138.

On A ug ust 6, 2009, the district court found L isker’s d ue process rig h ts had been violated because falsified evidence

was admitted at trial, and conditionally g ranted the petition unless the State p romptly retried L isker. 2 Id. a t 1 1 01, 1140–41. On September 21, 2009, the State, althoug h still

as serting L isker’s g uilt, soug ht dismissal of the information because the evidence was stale. L isker was rele a s e d a fter spending over twenty -six y ears in custody

.

E.

L isker filed this a ction on D e cember 22, 2009, asserting claims under 42 U.S.C. § 1983 ag ainst Monsue and L andg ren for malicious prosecution, falsifica t i on of evidence, a nd Miranda and Brady violations; he also as s e r t ed a claim
ag ainst the City of L os A ng eles and the L o s A n g eles Police Department, alleg ing that policies and practices of the Department contributed to the constitutional v iolations. 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 o r custom” causes a c o nstitutional injury). After L isker voluntarily dismissed the malicious prosecution a

nd Miranda claims, the district court g ranted in
p a r t and denied in part a defense motion for su m m a r y judg ment, d ismissing the Brady c laim but p ermitting the falsification-of-evidence and Monell claims to p r o ceed to trial. W ith res p e c t t o the falsification claim, the c ourt also rejected the defendants’ claim to absolute witness immunity

2 T h e co u rt also co n clu d ed
, f o r reaso n s n o t relev an t to th is o p in io n , th at L isk er h ad receiv ed in ef

f ectiv e assistan ce o f

co u n sel. Id

. at 1 1 3 2 , 1 1 4 1

.L I S K E R V

. M O N S U E 10

for the a lleg ed pre- trial fabrications. The defendants filed a timely Notice of I nterlocutory A ppeal from t h e d en ial o f absolute immunity

on March 4, 2013.

W e have jurisdiction over this appeal because “the denial of a substantial claim of absolu t e i m m u nity is an order appealable before final judg ment” under the col l a t eral order doctrine. Mitchell v. Forsyth
, 4 72 U .S. 5 11, 525 (1985). W e review d e n ovo the district court’s denial of immunity

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

II.

W itnesses, including police officers, are absolutely immune from liability f or t e s t i mony at trial, Briscoe v

. LaHue
, 460 U.S. 325, 345–4 6 ( 1 9 8 3 ), and before a g rand jury

, Rehberg v. Paulk
, 132 S. Ct. 1 4 9 7
, 1 5 1 0 (2012). Absolute witness immunity also ex tends to pre p a ratory activities “inex tricably tied” to testimony
, such a s conspiracies to testify falsely

. Franklin v. Terr
, 201 F .3d 1098, 1102 (9th Cir. 2000); see also Rehberg
, 132 S. Ct. at 1506–07. “ W ere it otherwise, a c r iminal d e f en d ant turned civil plaintiff could simply refram e a c l a im to attack the preparation in stead o f the absolutely immune actions themselves.” Rehberg
, 132 S. Ct. a t 1506 (internal quotation marks omitted); see also Cunningham v. Gat es , 2 29 F .3d 1271, 1291 (9th Cir. 2 000) (“[ D] efendants are

. . . entitled to absolute i m m u n ity from d amag es liability for any alleg ed conspiracy

to commit perjury .”).

I mmunity for pre-testimony conduct, how e v e r, “is not limitless.” Paine v. City of Lompoc , 265 F .3d 975, 981 (9th Cir. 2001). I n addressing claims of witness immunit y , we have disting uished conspiracies to testify falsely from “non-L I S K E R V

. M O N S U E 11

testimonial” a cts, such as “tampering with documentary o r phy sica l evidence or preventing w itnesses from coming forward

. ” I

d. at 981–82. Our sister Circuits have d o ne the

same. See, e.g. , Keko v. Hi n g l e , 318 F .3d 639, 642–44 (5th Cir. 2003) (declining to ex tend absolute immunity to forensic

ex a miner’s report); Spurlock v. S atterfield
, 167 F

. 3 d 9 9 5
, 1001–04 (6th Cir. 1 999) ( d isting uishing b etween c o n s p i r a c i e s to testify falsely
, which a r e immune, a nd manufacturing a false tape-recorded interview and p roviding h ush money to a would-be witness, which are not).

T he detectives arg ue that the n otes and reports in t h e Murde r Bo o k are “inex tricably tied” to their testimony because these documents were not introduced at trial, a nd their purpose w as to memorializ e the substa n c e of eventual testimony

. W e disag ree. As the Six th Circuit has recog niz ed, police investig ative materials have evidentiary value wholly apart from a ssisting trial testimony —they “co m p r ise part o f the documentary

record before the prosecution and defense” and affect charg ing d ecisions, p lea ba rg aining
, and crossex a mination of the investig ating officers. Gregory v. City of Lo u i s v i lle
, 4 44 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) (recog

niz ing a f a lsification-of-evidence claim for forwarding “false information lik e l y to influence a jury ’s decision” to prosecuto r s, althoug h the evidence was not admitted at trial)

. T his non-testimonial evidentiary value disting uishes the materials in the Murder B ook from pre-trial activity aimed ex c lusively at influencing testim o n y

. See Franklin
, 201 F .3d at 1102 (finding conspiracy i mmune because its “ ostensible purpose

. . . was to en s u r e that o ne person’s testimony did not contradict the other’s testimony ”). The materials in the Murder B ook are analog ous to the sorts of documentary and phy sical e vidence—such as falsifiedL I S K E R V

. M O N S U E 12

videotaped interviews and forensic r e p orts—that f a ll 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 c o n c l usion applies to the alleg edly falsified reconstruction of the crime scene. The photog raphs f rom the reconstruction were introduced at tria l

. See Lisker I
, 4 63 F

. Supp. 2d at 1014. They are therefore squarely g o v e r n e d b y this Court’s p revious holding that “a pretrial, o ut-of-court effort to

. . . f

a bricate phy sical evidence

. . . is not ‘inex tricably tied’—or tied at all—to any witness’ o w n testimony ,” even “ [ i ] f a potential w itness does happen to be involved.” Paine , 265 F .3d at 982.

I n addition, the p olicy interests behind absolute immunity for testimony do not apply to the investig ative materials h ere. Absolute witness immunity is motivate d by the recog nition
t hat “[ a] witness who k nows that he mig h t be fo r c e d t o defend a subsequent lawsuit, and perhaps t o pay d amag es, mig ht be inclined to shade his testimony in f a v o r of the potential plaintiff, to mag nify unce rtainties, and thus to deprive the finder o f fact of candid, objective, and undistorted evidence.” Briscoe
, 460 U.S. a t 3 33. T hat immunity ex tends
to conspi r a c i es to testify falsely f or practical reasons, as a plaintiff c ould o therwise easily u ndermine the interest in witness candor by challeng ing the conspiracy rather than the
te s t i m o n y itself. Rehberg
, 132 S. Ct. a t 1506; Paine
, 265 F .3d at 9 8 1. B ut when defendants have “dual r o l e s a s witness and fabr icator,” ex tending protection from the testimony to the fabricated evidence “would transform the immunity from a shield to ensu r e ” c a n dor into “a sword allowing them to trample the statutory and constitut i o nal rig hts o f others.” Paine
, 265 F .3d at 982–83 (internalL I S K E R V

. M O N S U E 13

quotation marks o mitted). The detectives’ ultimate testimony “does not serve to cloak these a c t i o n s with absolute testimonial immunity ,” Spurlock
, 1 67 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 ha s repeatedly declined to ex tend absolu te immunity to prosecutors acting outside of their traditional roles. See, e.g. , Kalina v. F letcher
, 522 U.S. 118, 131 (1997) ( prosecutor as “co m p l aining witness”); Buckley

v. F i tzsimmons
, 509 U.S. 259, 275–76 (1993) (prosecutor acting in investig ativ e c a pacity ). 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 contex t, qu a lified immunity is presumed “sufficient to p rot e ct g overnment officials in the ex ercise o f their duties,” Burns v. Reed
, 500 U.S. 4 7 8
, 486–87 (1991). L an dg ren and Monsue plainly acted in an investig ative capacity i n p r oducing the Murder B ook and crime-scene photog raphs. Qualified immunity p rovides sufficient protection for these activities.

Contrary to t h e detectives’ arg uments, Rehberg v. P a ulk does not compel a different result. I n that case, the Supreme Court h e l d t hat g rand jury witnesses are entitled to absolute immunit y , even if acting as “complaining w itnesses.” 3 See

3 A “ co m plain in g w i tn e s s ” i s o n e “ w h o se alleg atio n s serv e to b rin g ab o u t a p ro secu tio n .” Pa in e , 2 6 5 F.3 d at 9 8 1 n .2

. W i t n e s s e s w h o m ay

o th erw i se r e c eiv e ab so lu te im m u n ity f o r th eir actio n s are so m etim es

acco rd ed o n ly q u alif

ied im m u n ity w h en serv in g as a co m

p lain i n g w i t

n ess. S e e , e.g

. , Ka lin a , 5 2 2 U.S. at 1 3 1

. L isk er arg u es th at L an dg ren a n d Mo n su e are co m

p lain in g w i tn esses. In

lig h t of o u r h o ld in g , w e n eed n o t d ecid e t h is q u estio n

. W e n o te, h o w ev er, th at t h e e x cep t io n so m etim esL I S K E R V

. M O N S U E 14

132 S. Ct. at 1507, 1510. The Court also c o n firmed that witness immu n i t y ex tends to c onspiracies to testify falsely

. Id. at 1 5 0 6–07, 1510. I n d oing so, the Court was careful to emphasiz e that witness i m m u n ity does not ex tend to “ all activity that a w itness conducts” before testify ing
, and noted in particular that it had “ a ccorded o nly qualified immunity to law enforcement officials who falsify affidavits.” I d

. at 1507 n.1 (citing Kalina
, 5 22 U.S. at 129–131, and Malley v

. Briggs
, 4 7 5 U .S. 3 35, 340–45 (1986)). The circumstances presented here fall squarely outside the careful l y limited holding of Rehberg

.

III.

The d efendants also s ee k review, under the doctrine o f pendent appell a t e jurisdiction, of the denial of their motion for summary judg ment on the merits. See Swint v. Chambers Cnty. Comm ’n
, 514 U.S. 35, 50–51 (1995) (ex plaining pendent appellate jurisdiction). I n particular, they challeng e the district c ourt’s f

inding s reg arding the detectives ’ mental
states and the falsity of the Murder Bo o k and photog raphs. These determinations, however, are not “inex t ricably intertwined with, or necessary to en sure meaning ful r eview of,” the immunity issues p roperly bef o r e u s in this interlocutory a

ppeal. B urlington N

. & S anta Fe Ry. Co. v

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

d r a w n f o r co m p lain in g w itn esses b ecau se of th eir ro l e in i n itiatin g p ro ceed in g s f

u rth e r u n d ersco res th e sig n i f ican ce o f th e Mu rd er B o o k in in itiatin g p ro ceed in g s ag ain st L isk er.L I S K E R V

. M O N S U E 15

lack jurisdiction to review the d istrict court’s denial o f
summary judg ment on the merits. 4

IV.

F or the r easons ex plained above, w e AF F IRM the district court’s denial of s u mmary judg ment on witness immunity
g rounds.

4 T o th e ex ten t w e h av e j u risd i ctio n to d eterm in e “ at least w h eth er th ere is a n y —‘ an i o ta’ —o f ev id en ce su p p o rtin g ” th e claim s , Pa i n e , 26 5 F.3 d at 9 8 5 , th e d i strict co u rt’ s th o ro u g h su m m ary j u d g m en t o rd er co n v in cin g ly d em on strates th at th e ev id en ce h ere su rm o u n ts th is th resh o ld

.