The opinion
FILED
NOT FOR PUBLICATION
NOV 3 2025
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRICK HARRIS, No. 24-6536
Plaintiff-Appellant, D.C. No.
2:21-cv-07999-WLH-JPR
v.
SHARON KIM, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Wesley L. Hsu, District Judge, Presiding
Argued and Submitted September 15, 2025
Pasadena, California
Before: CLIFTON, IKUTA and LEE, Circuit Judges.
Dissent by Judge CLIFTON.
Defendant Sharon Kim appeals the district court’s order denying her motion
for summary judgment on qualified immunity grounds in this 42 U.S.C. § 1983
action alleging Kim violated the Fourteenth Amendment by deliberately
fabricating evidence. We have jurisdiction over “whether the defendant would be
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
entitled to qualified immunity as a matter of law, assuming all factual disputes are
resolved, and all reasonable inferences are drawn, in plaintiff's favor.” Ballou v.
McElvain, 29 F.4th 413, 421 (9th Cir. 2022) (quoting Estate of Anderson v. Marsh,
985 F.3d 726, 731 (9th Cir. 2021)). We reverse and remand.
Assuming all facts and inferences in the light most favorable to Harris, Kim
stated that Harris admitted to being in the Bounty Hunter Bloods in reliance on
other officers’ reports even though Harris never made such an admission. It is not
clearly established that Kim’s reliance on other officers’ reports in these
circumstances rises to the level of a deliberate fabrication. See Spencer v. Peters,
857 F.3d 789, 798 (9th Cir. 2017).1
Assuming all facts and inferences in the light most favorable to Harris, Kim
stated that the gang injunction named Harris, but it did not. However, given that
the record of service instructed the serving officer to hand the gang injunction to a
member of the defendant gang and the gang injunction included those who act in
concert with defendant gang members, it is not clearly established that such a
1
Kim has absolute immunity for her trial testimony. Lisker v. City of Los
Angeles, 780 F.3d 1237, 1241 (9th Cir. 2015). Therefore, the district court erred in
considering Kim’s statement at trial that Harris admitted to her that he was in the
Bounty Hunter Bloods.
2
technical error rises to the level of a deliberate fabrication. See Spencer, 857 F.3d
at 798; O’Doan v. Sanford, 991 F.3d 1027, 1046 (9th Cir. 2021).
Assuming all facts and inferences in the light most favorable to Harris,
Harris asked Kim if the reason he was being detained had anything to do with a
robbery, but Kim failed to report that a bystander mentioned the robbery first. It is
not clearly established that such an omission rises to the level of a deliberate
fabrication. See O’Doan, 991 F.3d at 1045.
Finally, because it is not clearly established that Kim deliberately fabricated
the evidence referenced above, it is likewise not clearly established that she
violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405
U.S. 150 (1972), by failing to disclose to prosecutors that she fabricated that
evidence. Cf. Comstock v. Humphries, 786 F.3d 701, 708-13 (9th Cir. 2015).
REVERSED and REMANDED.
3
FILED
Harris v. Kim, 24-6536 NOV 3 2025
MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. We lack appellate jurisdiction to re-weigh the
determination of the district court not to grant summary judgment to Defendant
Sharon Kim in this interlocutory appeal. Our court’s binding precedent expressly
holds that the “district court’s determination that the parties’ evidence presents
genuine issues of material fact is categorically unreviewable on interlocutory
appeal.” Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009). “[W]e have
jurisdiction over an interlocutory appeal from the denial of qualified immunity
where the appeal focuses on whether the defendants violated a clearly established
law given the undisputed facts, while we do not have jurisdiction over an
interlocutory appeal that focuses on whether there is a genuine dispute about the
underlying facts.” Knox v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997).
The core premise of Kim’s position on appeal, accepted by the majority, is
that there was insufficient evidence to support Harris’s claim that Kim deliberately
fabricated evidence. The district court explicitly found that “Harris has established
a genuine issue of material fact as to whether Officer Kim deliberately fabricated
evidence that was used against him in her report, in Detective Parker’s report, and
in her testimony at trial.” Relevant factual questions may remain, such as whether
Kim made her false statements deliberately or in error, but we do not have
jurisdiction to reassess the sufficiency of the evidence and may not draw inferences
in Kim’s favor. Because I do not believe we are permitted to reach the conclusion
set forth in the memorandum disposition, I dissent.