In Caldwell v City and County of San Francisco, published May 11, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant officers. The plaintiff was convicted of murder and sentenced to over 20 years in prison. He got out of prison on a habeas corpus petition. He alleged that one of the defendants, a police officer whom the plaintiff had requested an inspection of and who had told the plaintiff, "I'm going to kill you," had conducted a pretextual show-up by taking the plaintiff to the home of a witness to a shooting, asking if the homicide inspector was there, introducing the plaintiff to the inspector, and requesting the inspector's keys even though the defendant officer had a car in the neighborhood. He further alleged that the defendant officer took a statement from the plaintiff that the plaintiff had been visiting an uncle in the vicinity of the shooting, and falsely wrote in his notes that the plaintiff had stated he was dealing drugs at the time, and was present at the time of the shooting but down the street. He contended two other defendant officers conducted an unrecorded photo lineup with the suspect so that they could coerce her into picking the plaintiff, and that they further coerced her by offering her protection if she picked one of the suspects in the lineup. The plaintiff sued the defendants under 42 U.S.C. section 1983 for fabricating evidence. The district court granted summary judgment on the ground that the prosecutor's decision to charge the plaintiff was presumed to be independent of the alleged fabrications, and that the plaintiff had failed to overcome the presumption.
The 9th Circuit reversed the grant of summary judgment to the officer who had threatened the plaintiff and who alleged staged the pretextual show-up and fabricated the notes. There is a clearly-established constitutional due process right not to be subject to criminal charges based on false evidence that was deliberately fabricated by the government. A plaintiff can produce evidence of direct fabrication, or can produce circumstantial evidence related to a defendant's motive. To use circumstantial evidence, the plaintiff must support either of two propositions: That defendants continued their investigation even thought they knew or should have known the plaintiff was innocent, or used investigative techniques so coercive and abusive that they knew or should have known they would yield false information. As to the officer who threatened the plaintiff, the plaintiff alleged direct evidence of fabrication. There were issues of fact on whether the officer staged the show-up and whether the officer fabricated notes. The presumption of prosecutorial independence was overcome, because deliberately fabricated evidence in a prosecutor's file can rebut any presumption of prosecutorial independence. Evidence that the officer knowingly withheld relevant information from the prosecutor can also rebut the presumption. The prosecutor's consideration of potentially fabricated evidence rebuts any presumption of independent judgment and creates a triable issue for the jury. There was insufficient circumstantial evidence that the other two defendants fabricated evidence through coercive means. In particular, offering the witness protection if she testified is not so coercive that it would lead to false testimony. Summary judgment was affirmed as to those defendants.
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