and Submitted October 13, 2017
from the United States District Court for the Northern
District No. 3:12-CV-01892-EDL of California Elizabeth D.
Laporte, Magistrate Judge, Presiding
Gross (argued), Adam C. Belsky, and Monique Alonso, Gross
Belsky Alonso LLP, San Francisco, California, for
F. Connolly (argued) and Bradley A. Russi, Deputy City
Attorneys; Cheryl Adams, Chief Trial Attorney; Dennis J.
Herrera, City Attorney; Office of the City Attorney, San
Francisco, California; for Defendants-Appellees.
Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges,
and Matthew Frederick Leitman, [*] District Judge.
panel affirmed in part and reversed in part the district
court's summary judgment and remanded in an action
brought pursuant to 42 U.S.C. § 1983 alleging that San
Francisco Police Department officials fabricated evidence
against plaintiff during his investigation for murder.
spent nearly twenty years in prison as a result of his murder
conviction. He brought a § 1983 action after a state
court granted his petition for writ of habeas corpus and
ordered his release. Plaintiff alleged that a police sergeant
deliberately manufactured a "show-up" by exposing
him to a witness with the purpose of manipulating that
witness into misidentifying plaintiff as the murder suspect.
He further alleged that the sergeant deliberately fabricated
a statement by plaintiff that placed plaintiff at the site of
the shooting. Finally, plaintiff alleged that his interaction
with police inspectors during a photo lineup were so coercive
that they rose to the level of deliberate fabrication of
reversing the district court's grant of summary judgment
in favor of the police sergeant, the panel held that drawing
all reasonable inferences in favor of plaintiff, he
established that the sergeant had a motive to retaliate
against him. He further raised a genuine issue as to whether
the sergeant arranged the show up, deliberately fabricated
the statement and memorialized it in falsified notes. The
panel held that plaintiff rebutted any presumption of
prosecutorial independence and established a triable issue as
to whether the allegedly fabricated identification and
falsified statements caused him harm.
affirming the district court's summary judgment as to the
police inspectors, the panel held that their conduct during a
photo line-up was not so coercive that it rose to the level
of fabricated evidence.
TASHIMA, Circuit Judge:
Maurice Caldwell spent nearly twenty years in prison for the
1990 murder of Judy Acosta. Upon release,  Caldwell sued San
Francisco Police Department ("SFPD") officials Kitt
Crenshaw, Arthur Gerrans, and James Crowley, under 42 U.S.C.
§ 1983, for allegedly fabricating evidence against him
during the murder investigation.
Sergeant Crenshaw, Caldwell alleges that the officer
deliberately manufactured a "show-up" with Caldwell
at a witness' door. Specifically, Caldwell asserts that
Crenshaw deliberately exposed Caldwell to a witness with the
purpose of manipulating that witness into misidentifying
Caldwell as the murder suspect. The alleged show-up, if it
occurred, may have worked. Mary Cobbs, the witness in
question, later picked Caldwell out of a photo lineup despite
her initial description of the suspect being, in some
regards, inconsistent with Caldwell's physical traits.
Regarding Inspectors Gerrans and Crowley, Caldwell alleges
that their investigative techniques - mostly their
interactions with Cobbs during the photo lineup - were so
coercive that they rose to the level of deliberate
fabrication of evidence.
district court granted all of Defendants' motions for
summary judgment, but for different reasons. As to
the district court held that Caldwell had raised a triable
issue as to whether the Sergeant fabricated evidence. The
district court concluded, however, that the Sergeant was
shielded from liability because the prosecutor's decision
to charge Caldwell was subject to a presumption of
independence and, therefore, broke the chain of causation
between the alleged wrongdoing and Caldwell's harm. As to
Gerrans and Crowley, the district court held that Caldwell
had not raised a triable issue as to whether either or both
of them had deliberately fabricated evidence.
that because Caldwell rebutted any presumption of
prosecutorial independence, he established a triable issue as
to whether Crenshaw fabricated evidence against him.
Therefore, we reverse and remand as to
Crenshaw. As to Gerrans and Crowley, we hold that
their investigation techniques were not so coercive that they
rose to the level of fabricated evidence. Thus, we affirm as
to Gerrans and Crowley.
FACTUAL AND PROCEDURAL BACKGROUND
Acosta Murder and Caldwell's Conviction
30, 1990, a group of four persons, including Judy Acosta and
Domingo Bobila, went to a San Francisco housing project to
buy drugs. There, a group approached Acosta and Bobila,
offering to sell crack. The sale went wrong and one of the
dealers pulled out a handgun and shot Acosta in the chest.
Bobila tried to flee in his car and a second man began firing
a shotgun. Bobila and Acosta were hit by shotgun fire and
Acosta died in the car. Caldwell claims that he was not
present at the shooting; Defendants claimed that Caldwell was
the shotgun shooter.
March 1991, a jury convicted Caldwell of second-degree murder
for shooting Acosta with the shotgun. Mary Cobbs testified at
trial and identified Caldwell as the shotgun
shooter. A few months afterwards Cobbs and her
children received roundtrip tickets to Disneyland from the
San Francisco Secret Witness Program.
July 13, 1990 Canvass
13, 1990, Inspector Gerrans, Sergeant Crenshaw, and Officer
Robert Doss of the SFPD canvassed the housing project where
the Acosta murder occurred. The general purpose of the
canvass was to, among other things, find witnesses to the
murder. The day before, the police had received an anonymous
tip that the police should "check out" Caldwell,
"who had been shooting off guns in the projects . . .
for years." During the canvass, Gerrans mentioned the
name Caldwell to Crenshaw and Crenshaw said he knew him.
and Crenshaw had history. Caldwell had interacted with
Crenshaw between six and nine times prior to the 1990 murder
investigation. During these stops Caldwell said that Crenshaw
would tell him things such as, "[h]e [sic] going to
catch me, and when he do catch me, he going to end up killing
me or he going to have me in jail for the rest of my life,
you know." Five months before the murder, Caldwell filed
a complaint with the Office of Citizen Complaints
("OCC") against Crenshaw. During the OCC's
investigation, Crenshaw admitted telling Caldwell:
One day I'm going to be sitting up there and you're
going to be blown away. Something's going to happen to
you because sooner or later I'm going to catch you with a
gun and you and I are going to have it out. I'm going to
kill you. Next time we're going to get the drop on you.
later testified that had he known about Crenshaw and
Caldwell's history, he may have had second thoughts about
Crenshaw being involved in the investigation.
Gerrans met Cobbs during the course of the canvass. Cobbs had
witnessed the shooting and agreed to an interview with
Gerrans. During the interview, Cobbs stated that the shooters
did not live around her, but that she recognized them from
seeing them in the area a few times. Cobbs said she did not
know the shooters' names or nicknames. Cobbs gave a
description of the shotgun shooter as a 5'4",
150-pound, African-American man that wore his hair in a jheri
curl. Caldwell had an apartment next door to Cobbs' and
may have lived there.
Alleged Show-up at Cobbs' Door
the July 13, 1990, canvass, Crenshaw saw Caldwell on the
street and approached him. In Caldwell's retelling,
Crenshaw knew that Gerrans was interviewing a potential
witness and marched Caldwell to Cobbs' door. At the door
Crenshaw knocked, Cobbs answered, and Crenshaw asked if the
homicide inspector was there. Caldwell and Cobbs made eye
contact. According to Caldwell, once Gerrans came to the
door, Crenshaw stated "this is Maurice Caldwell, or
Twone, right here. And can I have your keys?" Crenshaw
asked for Gerrans' keys despite having his own car
nearby. Andrena Gray, Caldwell's girlfriend at the time,
corroborated Caldwell's story in a later-filed
declaration, stating Crenshaw "forcibly walked
[Caldwell] down the street, and stopped in front of the door
of an apartment, which I later learned was the apartment of
alleges that Crenshaw manufactured this show-up to manipulate
Cobbs into falsely identifying Caldwell as the shooter.
Defendants do not dispute that Crenshaw knocked on Cobbs'
door while Gerrans was interviewing the witness, but they all
contend that Caldwell was not with Crenshaw at the door.
Conversations between Caldwell and Crenshaw
and Crenshaw spoke to one another two different times during
the canvass. The men tell different stories. First, Crenshaw
confronted Caldwell in the street. It was during this
encounter on the street that, according to Crenshaw, Caldwell
made a "spontaneous statement" about being present
at the shooting and dealing drugs. The second encounter
between Crenshaw and Caldwell took place in Gerrans' car
and Crenshaw told Caldwell that homicide wanted to talk to
to Caldwell, on the street, he asked Crenshaw, "why do
you harass me?" In the car, Crenshaw asked "what do
you know about a murder?" and Caldwell responded,
"I don't know nothing about nothing." Crenshaw
then allegedly asked Caldwell where he was the night of the
murder and Caldwell replied that he was at his uncle's
house. From these encounters, Crenshaw later wrote the
Maurice Caldwell stated that he was present at the shooting,
but he was down the street. Prior to the shooting. Caldwell
was with the suspects dealing drugs. After the shooting
Caldwell returned and started yelling at the shooters, he did
this because he felt he was going to be blamed. He further
stated he knew why I stopped him, because 'anytime
somebody does any ...