Ciria v. Gerrans

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOAQUIN CIRIA, No. 24-3308

D.C. No.

Plaintiff - Appellee,

4:22-cv-07510-

KAW

v.

ARTHUR GERRANS; JAMES OPINION

CROWLEY,

Defendants - Appellants,

and

CITY AND COUNTY OF SAN

FRANCISCO, NICOLAS RUBINO,

SAN FRANCISCO POLICE

DEPARTMENT,

Defendants.

Appeal from the United States District Court

for the Northern District of California

Kandis A. Westmore, Magistrate Judge, Presiding

Argued and Submitted April 8, 2025

San Francisco, California

2 CIRIA V. GERRANS

Filed June 5, 2026

Before: Mary M. Schroeder, Richard A. Paez, and Eric D.

Miller, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Miller

SUMMARY *

Qualified Immunity

In an interlocutory appeal, the panel affirmed the district

court’s order denying qualified immunity to San Francisco

Police Department Inspectors James Crowley and Arthur

Gerrans (“Defendants”) on Joaquin Ciria’s fabrication-of-

evidence and malicious prosecution claims under 42 U.S.C.

§ 1983.

Ciria was exonerated after serving thirty-two years in

prison for the 1990 murder of Felix Bastarrica. The San

Francisco District Attorney’s Innocence Commission found

that his conviction could not stand and that he was factually

innocent. According to the Commission’s investigation,

George Varela, the star witness at Ciria’s criminal trial, had

falsely named Ciria as the shooter and was granted immunity

in exchange for his testimony. In his 42 U.S.C. § 1983

action, Ciria alleged in part that Defendants acted with

deliberate indifference to or reckless disregard of his right

*

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

been prepared by court staff for the convenience of the reader.

CIRIA V. GERRANS 3

not to be criminally charged based on fabricated evidence

and maliciously prosecuted him.

Addressing the fabrication-of-evidence claim, the panel

held under this court’s precedents and based on the assumed

facts, a reasonable jury could find that Defendants (1) were

deliberately indifferent or exhibited reckless disregard

towards Ciria’s right not to be charged based on fabricated

evidence, (2) fabricated evidence against Ciria by using

interrogation tactics including threatening Varela with an

adult murder charge and offering him a story that exculpated

him to get him to name Ciria as the shooter, and (3) knew or

should have known Varela was not telling the truth.

The panel held that it was clearly established at the time

of the investigation in 1990 that Defendants’ conduct would

violate Ciria’s due process right not to be subjected to

criminal charges on the basis of false evidence that was

deliberately fabricated by the government. Further, any

reasonable officer would know that threatening a young

witness and offering him a story that insulates him from

liability to get him to falsely implicate a suspect violates the

accused suspect’s due process rights.

The panel next held that Defendants were not entitled to

qualified immunity on Ciria’s malicious prosecution claim

at this stage. Considering all of the surrounding

circumstances, and viewing the facts in the light most

favorable to Ciria, it is not reasonably arguable that the

officers had probable cause to arrest Ciria and charge him

with murder. The state of the law in 1990 gave Defendants

fair warning that they lacked probable cause to arrest and

charge Ciria with first-degree murder.

Dissenting, Judge Miller wrote that even assuming the

officers violated Ciria’s constitutional rights, Ciria cannot

4 CIRIA V. GERRANS

show that the relevant rights were clearly established at the

time of the investigation in March 1990. He would therefore

reverse the district court’s denial of qualified immunity to

Defendants on both claims.

COUNSEL

George C. Harris (argued), Janelle T. Sampana, James

Bennett, and Matthew Ohlheiser, The Norton Law Firm PC,

Oakland, California, for Plaintiff-Appellee.

Peter J. Keith (argued), Chief of Special Litigation; Aaron

Wiener and Jose Zelidon-Zepeda, Deputy City Attorneys;

Jennifer E. Choi, Chief Trial Deputy; Yvonne R. Meré,

Chief Deputy City Attorney; David Chiu, City Attorney; San

Francisco City Attorney's Office, San Francisco, California;

for Defendants-Appellants.

CIRIA V. GERRANS 5

OPINION

PAEZ, Circuit Judge:

On April 18, 2022, Joaquin Ciria was exonerated after

serving thirty-two years in prison. The San Francisco

District Attorney did not oppose his release; in fact, after a

five-month investigation, the District Attorney’s Innocence

Commission unanimously found that Ciria’s murder

“conviction [could not] stand” and that Ciria was “factually

innocent.”

According to the Commission’s investigation, George

Varela, the star witness at Ciria’s criminal trial and an

accomplice to the actual shooter, had falsely named Ciria as

the shooter in a San Francisco murder. Ciria argues that

Varela, 18 years old at the time, did so only after Inspectors

Crowley and Gerrans (“Defendants”) threatened to charge

Varela with murder unless he adopted the story they fed him.

Ciria argues that Defendants operated with tunnel vision

during their investigation: they decided that Ciria was the

shooter and then, to support their case, deliberately elicited

Varela’s statement naming Ciria through abusive and

threatening tactics. Once they secured Varela’s statement,

they charged Ciria with murder, never investigating Ciria’s

alibi or corroborating Varela’s account. Outside of Varela’s

statement, Ciria argues, Defendants based their murder

charge on little more than rumors and similarities to a

general physical description. Ciria further argues that

Defendants acted with deliberate indifference to or reckless

disregard of his right not to be criminally charged based on

fabricated evidence, see Gantt v. City of Los Angeles, 717

F.3d 702, 708 (9th Cir. 2013), and relatedly, that Defendants

maliciously prosecuted him.

6 CIRIA V. GERRANS

In this interlocutory appeal of the district court’s order

denying Defendants qualified immunity on Ciria’s

fabrication-of-evidence and malicious prosecution claims

under 42 U.S.C. § 1983, we affirm the district court’s order.

We hold that a reasonable jury could find that Defendants

used coercive and abusive tactics to elicit a fabricated

statement against Ciria and that in 1990, it was clearly

established that doing so would violate Ciria’s constitutional

rights. We also hold that because a reasonable jury could

find that Defendants lacked probable cause to charge Ciria

without Varela’s statement and it was not “reasonably

arguable” that probable cause existed, Defendants are not

entitled to qualified immunity on Ciria’s malicious

prosecution claim. Rosenbaum v. Washoe County, 663 F.3d

1071, 1076 (9th Cir. 2011) (emphasis omitted).

I. Background

A. Facts

The facts about Inspectors Crowley and Gerrans’s

investigation are drawn largely from their declarations on

summary judgment, plus copies of handwritten notes and

transcripts of recorded interviews from their investigation.

Viewing the evidence in the light most favorable to Ciria, we

focus on what the inspectors knew at the time they

interrogated Varela and charged Ciria with murder. See

Davis v. United States, 854 F.3d 594, 598 (9th Cir. 2017).

1.

We note at the outset that Ciria has presented evidence

from which a reasonable jury could find that the inspectors’

records of their investigation are at times incomplete,

inaccurate, and skewed towards corroborating Ciria’s guilt.

CIRIA V. GERRANS 7

Ciria first points to evidence of inaccurate notes. For

example, one witness, Edward Lavalle, has declared that he

did not make certain statements attributed to him in the

inspectors’ notes, observing further that the phone number

listed in the notes as his number was not his. Ciria next

points to evidence that important parts of the investigation

were never documented. For example, one witness from

Galan’s Bar, a bar where Ciria was a patron shortly before

the murder, declared that he had been interviewed at the bar

and had told the officers what Ciria was wearing that night

(which did not match the eyewitnesses’ descriptions of the

shooter’s clothing)—but that interview is never mentioned

in the investigative record. Another witness, Mercedes

Mora, declared that her interview notes left out key context:

her daughter told the inspectors not to interview Mora and

come back another time because Mora had suffered two

epileptic attacks and was not mentally or physically prepared

to talk to anyone. Another witness testified in her deposition

that the notes from her interview omitted certain exculpatory

statements.

Finally, Ciria points to evidence that Defendants may

have incentivized certain witnesses with the prospect of

monetary rewards, which may diminish the reliability of

their statements. For example, one of the inspectors’ notes

said, “Antonio and his wife came to the homicide detail this

date and asked me if I was lying to him about receiving a

reward in this case . . . . I showed Antonio and his wife a

copy of the Mayor[’]s ten thousand dollar reward

authorization.”

2.

With that context in mind, we recount the investigation

up to Varela’s interrogation, as described in the inspectors’

8 CIRIA V. GERRANS

declarations and accompanying notes. On March 25, 1990,

Inspectors Crowley and Gerrans responded to the scene of a

murder. Felix Bastarrica, a Cuban man, had been shot in a

narrow alleyway behind a San Francisco motel.

Two men, Kenneth Duff and Anthony Queen, had

witnessed the shooting from their car and spoke to the

inspectors at the scene. They said that they saw a man get

out of the passenger seat of a white and yellow Chevy Monte

Carlo. This man confronted another man on the sidewalk,

arguing loudly in a foreign language, possibly Spanish. The

man from the Monte Carlo then shot the man on the

sidewalk, got back in the car, and left. Duff and Queen

described the shooter as “dark-skinned, Middle Eastern or

possibly Iranian,” 5’10” or 5’11”, in his late 30s, around 190

pounds, and “wearing an olive green ‘London Fog type

coat’” and “darker slacks.”

Later that night, Gerrans interviewed the only other

eyewitness, Kathleen Guevara. She stated that she was in

her second-floor apartment on the same street where

Bastarrica was murdered when she heard a loud argument

and saw a large white car from her window. She saw two

men yelling at each other and walking around for about two

minutes, before one man shot the other. She described the

shooter as a forty-year-old black male of “stocky build” who

was wearing an overcoat. She said, however, that it was

“[h]ard to tell” his height and weight because she “was

looking down on him.”

Next, Crowley and Gerrans interviewed Edward Lavalle,

Bastarrica’s brother-in-law, who had been staying with

Bastarrica the day of the murder. Lavalle explained that he

thought that Bastarrica was involved in selling narcotics. He

said that Bastarrica had told him that he witnessed a murder

CIRIA V. GERRANS 9

the night prior: his friend, Roberto Socorro, killed Ruben

Alfonso. Lavalle never mentioned Ciria’s name.

After this interview, the inspectors pulled Bastarrica’s

rap sheet and an incident report of a December 27, 1989,

arrest. This report referred to a drug seizure, which involved

five arrestees, including Ciria and Socorro. The arrest report

noted Ciria was 5’9”, 193 pounds, and a black man.

Over the next few days, Crowley and Gerrans heard that

there was a “drug war” going on between the “Cubans” that

was related to Ruben Alfonso’s murder. The inspectors

heard from witnesses that Socorro had killed Alfonso after

an argument about drugs and money and that Socorro had

since left town with a person called “Manolo.” No one ever

reported that Ciria was involved in or present at Alfonso’s

murder.

The inspectors then interviewed a person named Charles

Austin, who was present at Alfonso’s murder. Based on a

partial transcript of the interview, Austin stated that Ciria,

Alfonso, Socorro, and Bastarrica used to work together

selling drugs and that Ciria and Bastarrica could not stand

each other. Austin admitted that he had no personal

knowledge about Bastarrica’s murder but that he had heard

about it from a friend and read about it in the newspaper. He

said that the “word” was “all over” that Ciria had killed

Bastarrica and that “people say that [Ciria] was there.”

Crowley and Gerrans met with Kathleen Guevara, one of

the eyewitnesses, to see if she could identify Bastarrica’s

shooter. Crowley had prepared a six-photo array that

included Ciria’s most recent mugshot. According to the

inspectors’ notes, Guevara could make only a comparative

identification of Ciria, saying, “of the six mugshots, ‘this

looks the most like the suspect—especially the profile, or

10 CIRIA V. GERRANS

maybe more the attitude.’” Crowley confirmed in his

deposition that this did not constitute a positive

identification.

The following week, Crowley and Gerrans met with

Duff, the other eyewitness to the shooting. Duff was also

shown a mugshot spread with Ciria’s photograph. He was

unable to make an identification. According to Gerrans’s

deposition testimony, as a matter of practice, “[i]f somebody

doesn’t identity somebody in a lineup or a mug spread, then

that’s that. It’s over with as far as [he is] concerned.”

In Duff’s interview, he confirmed that the suspect was

“wearing a dark raincoat, like, greenish type coat, with dark

pants.” He said he thought the shooter was “Hindu” but

agreed with an inspector’s suggestion that he could be a

black man. He described the shooter as a stocky man,

“almost 6 [feet],” and in his early 30s.

Another week later, Crowley and Gerrans interviewed

Mercedes Mora at her home, over Mora’s daughter’s

objections. Mora had lived with Ciria for several years as

his common-law wife before he left her for a younger

woman. She told them that Socorro, Alfonso, Bastarrica,

and Ciria had been fighting over drugs and money and that

she felt “very strong in her heart” that Ciria killed Bastarrica

“because of the things he says and his attitude.” She claimed

that she had seen Ciria near the hotel on the morning

Bastarrica was killed, told Ciria that Socorro had killed

Alfonso the night before at the Star Motel, and given Ciria

Bastarrica’s address.

Mora also said that someone named “Candito” was

telling people at Bastarrica’s funeral that Ciria had killed

Bastarrica. Candito was a black Cuban male around Ciria’s

age who was 5’9” or 5’10,” muscular, and also staying at the

CIRIA V. GERRANS 11

Star Motel. The investigators’ notes do not indicate much

more information about this man, but in a 2020 declaration,

Socorro named a “Candido” as Bastarrica’s actual killer and

explained that, like the shooter, Candido “had a distinctive

and dramatic way of dressing . . . He almost always wore

long dark trench coats.” Notably, Crowley and Gerrans

never investigated this “Candito”/“Candido.” Crowley

claimed in his deposition that Ciria was the only suspect they

investigated because “[n]obody ever brought any attention

to anybody [else] as a suspect.”

The next day, Ciria, with an attorney present, voluntarily

spoke with Crowley and Gerrans. He denied any

involvement with the murder. He explained that people were

spreading false rumors that he killed Bastarrica. He also

offered an alibi: he had been out with Varela earlier in the

evening at a video game arcade around 7:30 p.m., they went

to Galan’s Bar around 8 p.m., he got in a bar fight there, and

then Varela dropped him home around 8:25 p.m. Ciria then

spent the rest of the evening with his wife, Yojana Paiz, his

son, and their housemate, Marina Flores. Ciria stated that he

would take a polygraph test, but his counsel advised against

it. The inspectors never interviewed Ciria’s alibi witnesses

until after they had charged him with murder.

Other than the Varela interrogation, the aforementioned

evidence was the only evidence the inspectors had when they

arrested Ciria and signed a criminal complaint charging him

with first-degree murder. The inspectors never had any

physical evidence linking Ciria to the crime. The ballistics

report identified a “.44 S&W Special Charter Arms

‘Bulldog’” revolver as the murder weapon, but there was no

evidence that Ciria owned such a weapon. They never asked

anyone whether Ciria, or any other person, owned or was

ever seen wearing a trench coat like the one witnesses

12 CIRIA V. GERRANS

observed that night. They never corroborated with anyone

that Ciria was at Galan’s Bar that night, what Ciria was

wearing there, or when he left the bar. They never asked

Yojana Paiz or Marina Flores about Ciria’s alibi or his

apparel. No eyewitnesses saw Ciria near the murder scene

that night, and neither of the two eyewitnesses could

positively identify Ciria from a photo array. The inspectors

also knew that someone who matched the eyewitnesses’

description of the shooter had been telling people that Ciria

had killed Bastarrica.

3.

This brings us to Varela’s interrogation. Varela began

by corroborating Ciria’s innocence. He explained he was

downtown with Ciria at an arcade until around 7 p.m. to

7:30 p.m. He then drove Ciria to a bar that Ciria wanted to

quickly visit. They arrived there around 8 p.m. Soon after,

Varela noticed that Ciria was involved in a bar fight. Varela

then drove Ciria home, dropped him off, and returned home

before 9 p.m.

The inspectors 1 then asked whether Varela had been in

an alleyway that night. Varela denied that he had been there.

1

The District Attorney’s transcript does not distinguish or specify

whether Crowley or Gerrans was speaking during the interrogation. For

simplicity, we refer to whichever officer was speaking as “the

inspectors” or “Inspector.”

CIRIA V. GERRANS 13

The following is a transcription of what occurred next,

around four minutes into the interrogation:

Inspector: Okay, I want to tell you something. Do you

understand how the law works—can you

look at me?

...

Can you look at me? You understand how

the law works, if—if two people go out

together, alright? And they take type—any

type of action where—you said you don’t

know, in your mind, you don’t know that

Joaquin was planning on killing somebody.

Just say you go with Joaquin, and in your

mind you know that he’s either going to beat

a guy, he’s going to beat somebody up, or

maybe he’s going to rob somebody, or

maybe he’s going to thump somebody, or

kick his ass. So you don’t know, in your

mind, you’re not planning on killing him.

Okay? So you go with him, and you’re—you

know that Joaquin is going [sic] maybe jump

on somebody and beat the shit out of

somebody. And just say you’re driving the

car, and Joaquin gets out and he shoots

somebody, and you’re driving that car,

alright? You could be tried for murder. You

could be tried as being part of the murder

because you would be a principle [sic] in the

murder, or you could be tried as an

accessory to the murder, which means you

helped somebody in___.

14 CIRIA V. GERRANS

Varela: I ain’t helped nobody do shit.

Inspector: Huh?

Varela: I ain’t helped nobody do nothing.

Inspector: Alright.—

Varela: I know what you’re getting at. Why don’t

you get to the point? . . . so we can get it over

with.

Inspector: Okay, why don’t we get to the point. We

brought you down here—we know what

went on in that alley, okay? Pretty much.

Whether you realized it or not when you

came down the alley the first time in your car

you messed up the left front fender—no,

listen to me.

Varela: There’s plenty of Monte Carlos___

CIRIA V. GERRANS 15

Inspector: Alright, well,— alright, we’ve talked to some

people, okay? Okay. There were two people

sitting there in that alley. Two guys, okay?

And they saw. . . .

You got yourself into a situation, you know,

and we know you didn’t do it. But if you’re

going to continue to sit in here and lie and

cover up for Joaquin, you’re going to be in

some deep shit, because we know—we don’t

speak Spanish, we know who got out of the

car, we have witnesses because—see, the

problem was he argued and fought out there

with a guy and yelled and screamed and

people came out and looked out the window.

. . . The shit went down, it went sour, he shot,

he jumped back in your car, and you drove

off, and that’s exactly what happened.

And be honest with us son. You’re only 18

years old, you’ve been [sic] shit as a

juvenile, you don’t want to get in shit as an

adult. . . .

Varela: Alright.

Inspector: What you ought to do is tell us exactly what

happened. No lies. For your own good, son.

Okay? It’s best for you to tell us exactly what

went down. We know you didn’t do it. We

know—

Varela: I didn’t know what was going to happen. I

didn’t know what was going to___. Hey,

whatever you said.

16 CIRIA V. GERRANS

Inspector: I want you to tell us. You’re the one that’s

either in the hot seat. You’re going to either

be involved in this or not involved with this.

You know you just happened to be there—

you know, either you’re there or as a

suspect—you’re either there as a suspect—

we know you’re there. You’re either there

involved in it as a suspect, or you’re just

there as an innocent party who happened to

be there.

Varela: I just didn’t know what was going to happen.

It was like everything happened all quick.

And if would have knew what was going to

happen I would have told him to get in the

car and went home and said fuck the whole

deal and I would have been ____.

I don’t know how I’m supposed to even try to

cover up. Like you said, I’m going to be 18.

I damn sure I don’t want to go to the can for

something I didn’t do. I don’t want to go.

Inspector: I know. You tell us exactly what happened,

and how you got down there and what

happened.

Varela expressed hesitation. The inspectors then offered

their supposed understanding of what happened with a story

that insulated Varela from liability. The officers then said,

“the thing you should do right now [is] just tell us, so you

don’t get in shit, ‘cause you’re really in heavy shit, in other

words, unless you tell us the truth.” Varela was hesitant.

Soon after, he said, “But what you’re saying is, because of

what went down, ___ cover me up.” He then said, “Just

don’t—please keep me out of it.” The inspectors responded,

CIRIA V. GERRANS 17

“Alright. [J]ust tell us what happened.” Varela asked, “Can

I go home after this?” The inspectors responded, “After we

talk? Yeah.” Varela was not given Miranda warnings.

Varela still did not explicitly name Ciria. Instead, he

gave his account, starting with, “Okay, just like you said.”

As the District Attorney’s Innocence Commission

concluded, Varela then recounted the night without naming

any names, only later explicitly agreeing with the inspectors’

assumption that Ciria was the shooter.

In recounting what happened that night, Varela could not

offer many details about Ciria’s involvement in the events at

the motel, such as when he picked up Ciria and dropped him

off at home, what brought them to the motel, or why Ciria

was involved:

Inspector: What ___, did he—did you go over his house

and pick him up that night? Did he call you

and say, “Hey, come and pick me up. We

want to go somewhere.” Or ___. Where did

you meet that day?

Varela: I talked to him. I probably had seemed off

and on during the day, and somehow or

another we were together, like on the way to

the bar, but to be honest with you, I can’t

remember whether—obviously he didn’t

come to my house, because I dropped him off

at home.

Inspector: Did you go to his house and pick him that

day?

18 CIRIA V. GERRANS

Varela: Think I did. Matter of fact, I had to, because

that’s what I took him home.

Inspector: You picked him up at his house. Then where

did you go?

Varela: And then that’s when we were riding around

at stuff.

Inspector: What was he saying—

Varela: He wasn’t really saying too much, man. He

was just kicking it. . . . We drove—probably

went by my house first, and then we went

down ___ and then everything happened.

The way I—the way I said. I can’t quite

remember, to be honest with you, whether I

picked [him] up at home, or whether he came

to my house. Let me see. Shit, evidently I

had to pick him up at home, because that’s

where I took him.

The interrogation proceeded, as Varela recounted what

happened based on what he saw at the scene of the murder.

The inspectors then obtained a statement from Varela. That

statement ended with the inspectors confirming that Varela

“began to talk to [them]” because he “did not want to be

considered . . . as a suspect . . . , rather than as a witness in

the case.”

4.

After the interview, without any additional investigation,

Crowley and Gerrans shared their investigative files with a

district attorney. Crowley prepared and signed an affidavit

CIRIA V. GERRANS 19

for a search warrant for Ciria’s home, which was signed by

a judge. The affidavit attached to the search warrant

included only Varela’s statements from the interrogation as

the basis for probable cause. Crowley prepared and signed

an arrest warrant at the same time that he did the search

warrant, but the declaration accompanying that warrant is

lost. Crowley also prepared and signed a criminal complaint

charging Ciria with murder and felon in possession of a

firearm. Ciria maintained his innocence and never

confessed.

5.

Five days after his arrest on April 19, 1990, Ciria was

arraigned. At his preliminary hearing in September 1990,

the Superior Court found probable cause and bound him over

for trial. Ciria’s trial began on February 4, 1991. During the

trial, Varela testified about his interview, but the jury did not

hear the portion that is the basis of Ciria’s fabrication-of-

evidence claim. 2 According to the District Attorney’s

Innocence Commission, “Varela was the prosecution’s star

witness at trial” and “was granted immunity in exchange for

his testimony.” On February 20, 1991, a jury convicted Ciria

of Bastarrica’s murder.

6.

On January 19, 2021, after three decades of

incarceration, Ciria filed a state habeas petition challenging

the validity of his conviction. The San Francisco District

Attorney referred Ciria’s case to its Innocence Commission,

2

Ciria’s trial attorney now acknowledges that it was a mistake not to

include a recording of the full testimony because “[t]he jury needed to

hear the police threatening Mr. Varela and specifically telling him that

he was lying and covering up, not for the killer, but for Joaquin.”

20 CIRIA V. GERRANS

which unanimously found that “Ciria’s conviction cannot

stand” and that Ciria was “factually innocent.” As to

Varela’s statement, the Commission found that the police

“pressured Varela to implicate Ciria” and that Varela’s

testimony at trial was “self-serving” and “incentivized.”

On April 18, 2022, the San Francisco Superior Court

granted in part Ciria’s state habeas petition, vacating his

conviction on the ground that he presented credible new

evidence of his innocence under California Penal Code

§ 1473(b)(3) (2022). 3 The new evidence included

declarations from Denise Corretjer, Varela’s sister, and

Caridad Gonzalez, Varela’s family friend, who each

separately declared that Varela told them that Ciria did not

kill Bastarrica. Varela told Corretjer that he lied because the

police had pushed him to “go with the flow” because they

“wanted Joaquin so bad.”

Ciria was released from custody two days after the court

vacated his conviction. The District Attorney moved to

dismiss all charges against Ciria in the interest of justice

based on a lack of sufficient evidence, and the court granted

the motion.

B. Procedural History

In November 2022, Ciria sued the City and County of

San Francisco, its police department, and three of its

employees—Inspector Crowley, Inspector Gerrans, and

Officer Rubino—for violating his civil rights under 42

3

In California, state habeas relief is available if “[n]ew evidence exists

that is credible, material, presented without substantial delay, and of such

decisive force and value that it would have more likely than not changed

the outcome at trial.” Cal. Pen. Code § 1473(b)(3) (2022) (later amended

and now codified Cal. Pen. Code § 1473(b)(1)(C)).

CIRIA V. GERRANS 21

U.S.C. § 1983 and California law. Ciria alleged three claims

under § 1983: (1) fabrication of evidence; (2) malicious

prosecution; and (3) failure to disclose exculpatory evidence

of rewards and incentives provided to Varela and Guevara.

Ciria also alleged several state law claims. Ciria additionally

alleged municipal liability for all his claims.

On a motion to dismiss, the district court limited Ciria’s

recovery on his California law claims to the harm suffered

prior to his arraignment. Defendants then moved for

summary judgment on Ciria’s remaining federal claims,

invoking qualified immunity. The district court granted the

motion in part and denied it in part, with rulings on

Defendants’ evidentiary objections. Officer Rubino and the

City of San Francisco and its police department prevailed on

all federal claims against them. Inspectors Crowley and

Gerrans prevailed on the nondisclosure claim. The district

court, however, denied Inspectors Crowley and Gerrans

qualified immunity on the § 1983 claims for fabrication of

evidence and malicious prosecution. Defendants timely

appealed.

II. Jurisdiction and Standard of Review

The denial of a defendant’s motion for summary

judgment based on qualified immunity is a reviewable

collateral order under 28 U.S.C. § 1291. See Mitchell v.

Forsyth, 472 U.S. 511, 528–30 (1985); Plumhoff v. Rickard,

572 U.S. 765, 771–72 (2014). “The scope of our review in

this context, however, is circumscribed.” Est. of Anderson

v. Marsh, 985 F.3d 726, 730 (9th Cir. 2021) (alterations and

quotations omitted). In Johnson v. Jones, the Supreme Court

held that any “portion of a district court’s summary

judgment order that, though entered in a ‘qualified

immunity’ case, determines only a question of ‘evidence

22 CIRIA V. GERRANS

sufficiency,’ i.e., which facts a party may, or may not, be

able to prove at trial . . . is not appealable.” 515 U.S. 304,

313 (1995). Only the portion of a summary judgment order

that turns on “the application of ‘clearly established’ law to

a given (for appellate purposes undisputed) set of facts” is

immediately appealable. Id.; accord Peck v. Montoya, 51

F.4th 877, 885 (9th Cir. 2022); Est. of Anderson, 985 F.3d at

731; Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir.

2018).

At this stage, our jurisdiction is limited to purely legal

issues, which we review de novo. See Est. of Lopez ex rel.

Lopez v. Gelhaus, 871 F.3d 998, 1005, 1007 (9th Cir. 2017).

We must “accept the district court’s determinations that

there are genuine disputes of fact,” Peck, 51 F.4th at 887,

and “take, as given, the facts that the district court assumed

when it denied summary judgment for a (purely legal)

reason,” Est. of Lopez, 871 F.3d at 1007 (quoting Watkins v.

City of Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998)).

“[W]here the district court does not explicitly set out the

facts that it relied upon, we undertake a review of the pretrial

record only to the extent necessary to determine what facts

the district court, in the light most favorable to the

nonmoving party, likely assumed.” Id. (quoting Watkins,

145 F.3d at 1091). Although “qualified immunity is to be

determined at the earliest possible point in the litigation,”

“summary judgment in favor of moving defendants is

inappropriate where a genuine issue of material fact prevents

a determination of qualified immunity until after trial on the

merits.” Id. at 1021 (quoting Liston v. County of Riverside,

120 F.3d 965, 975 (9th Cir. 1997)).

CIRIA V. GERRANS 23

III. Fabrication of Evidence

A. Scope of Jurisdiction

We first clarify the scope of our jurisdiction by isolating

the legal questions on appeal going to the fabrication of

evidence claim. A public official sued for damages in his

individual capacity is entitled to qualified immunity unless

(1) “the facts taken in the light most favorable to the plaintiff

show that the officer’s conduct violated a constitutional

right,” and (2) “the right in question was clearly established

at the time of the officer’s actions, such that any reasonably

well-trained officer would have known that his conduct was

unlawful.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th

Cir. 2020).

In this case, the district court held that a reasonable jury

could find: (1) the Varela interview “went beyond

explaining to a witness the advantages of telling the truth”;

(2) it “involved inspectors threatening an 18-year-old, who

had a juvenile record” and “did not feel free to leave,” “with

an adult murder charge for driving a vehicle they knew was

involved in the Bastarrica murder”; (3) the officers “told

[Varela] exactly what information was necessary to protect

himself from that adult murder charge and to, instead, serve

as a witness”; (4) Varela’s response to their threat was,

“Hey, whatever you said”; and (5) Varela confirmed to the

inspectors that “he was talking to them because he wanted to

be a witness rather than a suspect.” We may not revisit these

factual determinations on appeal. See Est. of Lopez, 871

F.3d at 1007.

Our jurisdiction is thus limited to the two “purely legal

issues,” id. (citation omitted), of: (1) whether a reasonable

jury could find on these facts that the inspectors fabricated

evidence against Ciria; and, if so, (2) whether in 1990, the

24 CIRIA V. GERRANS

inspectors had a fair warning that their conduct—

“threatening” Varela with a murder charge and “feeding him

the story he needed to tell to avoid it”—violated Ciria’s due

process rights.

Defendants also ask us to review purely factual disputes,

which we lack jurisdiction to consider at this stage. See Est.

of Anderson, 985 F.3d at 731. First, we lack jurisdiction to

consider Defendants’ argument that the government did not

fabricate evidence because even before the interrogation,

“Varela had already named Ciria as the shooter to his

girlfriend Kristina Martin.” The district court determined,

because of statements made during Martin’s deposition and

the fact that Martin only spoke to inspectors after Varela had

already falsely implicated Ciria, that “a reasonable jury

could conclude that Varela told Martin what to say” and that

Varela had not actually named Ciria as the shooter

beforehand. Defendants nonetheless argue that “it is not

reasonable or rational to infer from Martin’s testimony that

she lied to police about what Varela said to her about the

shooting.” This amounts to an appeal of the district court’s

contrary evidence-sufficiency determination, and we lack

jurisdiction to entertain it. See id.

Second, Defendants challenge the district court’s

determination that a reasonable jury could find that the

inspectors knew or should have known Varela’s statement

was fabricated because “[b]y the time they interviewed

Varela, [the inspectors] already had ample evidence against

Ciria.” But the district court concluded that a reasonable

jury could find that the inspectors did not have “ample

evidence” that Ciria was the shooter for various reasons,

including that key witnesses had failed to identify him and

that there had only been gossip about his involvement in the

murder. Because Defendants’ challenge amounts to a fact-

CIRIA V. GERRANS 25

related dispute over the pre-trial record, rather than a dispute

over the application of law to the district court’s assumed

facts, we lack jurisdiction to consider it. See Est. of Lopez,

871 F.3d at 1007.

B. Constitutional Violation

We next consider whether, given the facts assumed by

the district court, a reasonable jury could find that Inspectors

Crowley and Gerrans violated Ciria’s constitutional rights.

We agree with the district court that a reasonable jury could.

Ciria has a Fourteenth Amendment due process right not

to be deprived of liberty as a result of evidence fabricated by

a government officer. See Devereaux v. Abbey, 263 F.3d

1070, 1074–75 (9th Cir. 2001) (en banc). “To prevail on a

§ 1983 claim of deliberate fabrication, a plaintiff must prove

that (1) the defendant official deliberately fabricated

evidence and (2) the deliberate fabrication caused the

plaintiff’s deprivation of liberty.” Spencer v. Peters, 857

F.3d 789, 798 (9th Cir. 2017). 4

A plaintiff can establish the first element of a fabrication-

of-evidence claim with direct evidence of fabrication, such

as a “direct misquotation of witnesses in investigative

reports,” id. at 799, as well as with circumstantial evidence,

such as evidence that the defendants (i) “continued their

investigation of [the plaintiff] despite the fact that they knew

or should have known that he was innocent,” or (ii) “used

investigative techniques that were so coercive and abusive

4

Defendants have not raised any arguments regarding causation and

have therefore waived any challenge to the second prong. See Friends

of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008)

(“Arguments not raised by a party in its opening brief are deemed

waived.”).

26 CIRIA V. GERRANS

that they knew or should have known that those techniques

would yield false information,” Devereaux, 263 F.3d at

1076; see also Spencer, 857 F.3d at 799. The key is that the

plaintiff must make some showing of “dishonesty” through

either direct or circumstantial evidence. Devereaux, 263

F.3d at 1076. “The Devereaux test envisions an investigator

whose unlawful motivation is illustrated by her state of mind

regarding the alleged perpetrator’s innocence, or who

surreptitiously fabricates evidence by using coercive

investigative methods. These are circumstantial methods of

proving deliberate falsification.” Costanich v. Dep’t of Soc.

& Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010).

Taking the facts as the district court assumed them, and

in the light most favorable to Ciria, Inspectors Crowley and

Gerrans threatened an 18-year-old who was at the murder

scene into adopting a story naming Ciria as the shooter; the

inspectors made their story attractive by telling Varela

exactly what he needed to say to avoid liability; Varela did

not feel free to leave the interrogation; he was evidently

going along with their version of events to avoid a murder

charge; and there was minimal objective evidence that Ciria

was the shooter at the time of the interrogation. Ciria has

therefore presented evidence from which a jury could

reasonably conclude that Defendants used coercive or

abusive tactics during Varela’s interrogation to fabricate

evidence against Ciria.

The dissent characterizes Varela’s interview as

involving only “standard interrogation methods.” This

approach, however, disregards our jurisdictional limitations.

As discussed above, see supra Sections II & III.A, we may

not revisit the district court’s determinations that a

reasonable jury could find the interview “went beyond

explaining . . . the advantages of telling the truth” and

CIRIA V. GERRANS 27

“involved inspectors threatening an 18-year-old” who “did

not feel free to leave,” “with an adult murder charge for

driving a vehicle they knew was involved in the Bastarrica

murder.” Est. of Lopez, 871 F.3d at 1007. And while the

dissent suggests “Varela provided an account of the shooting

that implicated Ciria,” we lack jurisdiction to reconsider the

district court’s determination that a reasonable jury could

find after threatening Varela, the officers “fe[d] him the story

he needed to tell to avoid” a murder charge, to which Varela

acceded, “Hey, whatever you said.” These factual

characterizations are beyond the scope of our review.

Instead, the “purely legal issue[]” we have jurisdiction to

review is whether a reasonable jury could find that these

assumed facts amount to a constitutional violation. Id. We

decline the dissent’s invitation to weigh the evidence

presented by Ciria. That is a task for the jury.

Importantly, Ciria does not merely argue that the

inspectors used “improper” techniques or techniques that

“violated state regulations.” Devereaux, 263 F.3d at 1075

(holding that the use of such techniques, without more, is

insufficient). Rather, he has presented evidence that the

inspectors “knew or should have known [their] interview

tactics would yield false information.” Gausvik v. Perez,

345 F.3d 813, 817 (9th Cir. 2003). This provides the

requisite circumstantial evidence of “dishonesty.”

Devereaux, 263 F.3d 1076.

For example, a reasonable jury could find that during

their interrogation, Defendants faced numerous indicia that

Varela was not providing a truthful account of what

happened but was merely repeating what the inspectors

wanted him to say. A reasonable jury could find that despite

this, Defendants continued to threaten Varela and offered

him a story insulating him from liability so that they could

28 CIRIA V. GERRANS

obtain a statement naming Ciria as the shooter. As the

district court explained, and as the assumed facts show,

Defendants told Varela that he could be liable for murder if

he continued to “cover up for [Ciria]”:

Inspector: Alright, well,— alright, we’ve talked to some

people, okay? Okay. There were two people

sitting there in that alley. Two guys, okay?

And they saw. . . .

You got yourself into a situation, you know,

and we know you didn’t do it. But if you’re

going to continue to sit in here and lie and

cover up for Joaquin, you’re going to be in

some deep shit, because we know—we don’t

speak Spanish, we know who got out of the

car, we have witnesses because—see, the

problem was he argued and fought out there

with a guy and yelled and screamed and

people came out and looked out the window.

. . . The shit went down, it went sour, he shot,

he jumped back in your car, and you drove

off, and that’s exactly what happened.

And be honest with us son. You’re only 18

years old, you’ve been [sic] shit as a

juvenile, you don’t want to get in shit as an

adult.

Defendants again asked Varela what happened, telling him

that they knew he did nothing wrong; in response, Varela

said, “Hey, whatever you said.”

After one of the inspectors said, “You’re going to either

be involved in this or not involved in this,” Varela replied,

CIRIA V. GERRANS 29

“I don’t know how I’m supposed to even try to cover up. Like

you said, I’m going to be 18.” And after an inspector said

Varela could go home only after talking to them, and without

giving him Miranda warnings, one of the inspectors again

asked what happened, and Varela responded, “Okay, just like

you said.” Throughout the interrogation, Varela sought

assurances that compliance with Defendants’ wishes would

keep him out of trouble, and Varela struggled to provide

details about Ciria’s involvement in the events at the murder

scene.

As the district court determined, a reasonable jury could

find that Varela, scared by the threat of serious criminal

liability, was adopting the story Defendants fed him. The

jury could reasonably find that this story implicating Ciria

was not backed by objective evidence of Ciria’s guilt and

was elicited through threats of criminal prosecution against

a young witness. And the jury could reasonably find that,

despite the indicia that Varela was merely repeating what

Defendants wanted him to say, Defendants used Varela’s

statement to charge Ciria with murder. Defendants never

attempted to corroborate Varela’s story or ask anyone about

Varela’s credibility.

Our holding in Gantt, where we determined that there

was sufficient evidence to submit the fabrication-of-

evidence claim to the jury, confirms that the factual

circumstances here present a triable question for the jury.

717 F.3d at 708. In Gantt, the essence of the plaintiffs’ claim

was that Rosemond, another suspect, falsely implicated the

plaintiffs due to police pressure. The key evidence was that

Rosemond “testified that the detectives threatened to charge

him with murder if he did not provide information.” Id.

Rosemond testified that the officers told him “if [he] didn’t

give them something, that [he] would go down for it.” Id. at

30 CIRIA V. GERRANS

704. In addition to this testimony, we noted some of the

“manner and circumstances” of Rosemond’s interrogation—

the officers allegedly told him not to tell anyone they showed

him certain materials, and even though the officers “did not

think Rosemond was still under the influence during the

interrogation,” Rosemond testified that he “had been awake

for approximately two days straight on a crack binge, and

was in fact still high when he made his identifications.” Id.

at 708.

The crux of the fabrication claims here and in Gantt—

threatening a witness with criminal liability unless he agreed

to the officers’ story—is the same, and any factual

differences between the cases are not legally meaningful.

While Defendants point out that Rosemond’s interrogation

lasted four to six hours a day for multiple days, see id. at 704,

this fact was plainly not dispositive, as we never mentioned

it in explaining our decision, see id. at 708.

Additionally, a jury could reasonably find facts that

would make Ciria’s fabrication-of-evidence claim even

stronger. As the district court noted, Varela, at only 18 years

old, was a teenager who was at the scene of the murder,

making an adult murder charge with a life sentence

especially daunting. Moreover, while Rosemond was only

threatened to provide “information,” id. at 704, the

inspectors offered Varela an enticing story that specifically

named Ciria as the shooter. As the district court further

noted, a jury could also reasonably find that Varela did not

feel free to leave the interrogation. By withholding Miranda

warnings from him, a jury could reasonably conclude that

the inspectors increased the pressure on Varela to agree with

whatever they said, as Varela was not made aware of his

right to remain silent or to speak to an attorney in the face of

their interrogation.

CIRIA V. GERRANS 31

The Sixth Circuit, which relies on a framework for

fabrication-of-evidence claims similar to ours, recently held

that a jury could conclude that inspectors fabricated evidence

under similar circumstances, where: (1) the witness

repeatedly denied knowing anything about the crime; (2) the

witness told inconsistent stories; (3) the defendants were

aware of an alibi witness for the named suspect; and (4) the

defendants pressured the witness into giving a statement by

threatening to take away her children. See Clark v.

Abdallah, 131 F.4th 432, 448 (6th Cir. 2025). The Sixth

Circuit concluded that there was “no legal reason why the

combination of factors presented here could not support a

jury verdict in [the plaintiffs’] favor.” Id. at 449.

Defendants appeal to three types of cases to argue that,

as a matter of law, the assumed facts do not make out a

constitutional violation: first, they point to distinguishable

fabrication-of-evidence cases; second, they point to cases

about unconstitutional interrogations under the Fifth and

Fourteenth Amendments; finally, they point to cases

resolved under the legal standard for dismissing indictments

on due process grounds. None of these cases affect our

holding.

1.

Defendants argue that because the plaintiffs in

Devereaux, 263 F.3d 1070, and Cunningham v. City of

Wenatchee, 345 F.3d 802 (9th Cir. 2003), failed to present

triable fabrication-of-evidence claims, Ciria’s claim

necessarily fails. But both cases are readily distinguished.

In Devereaux, a fabrication-of-evidence claim failed

where an officer confronted A.R., a minor, about her

recanting her allegations against Devereaux. 263 F.3d at

1078. The officer threatened her with charges for “false

32 CIRIA V. GERRANS

reporting” if she stuck to her recantation. Id. Importantly,

the claim did not fail because this tactic was not coercive—

rather, we recognized that the officer employed a “coercive

technique” and referenced the “coercive nature of the

threat.” Id. The claim failed because A.R. stuck to her

recantation, so the threat “did not . . . yield any false

testimony.” Id. Devereaux therefore held that

“unsuccessfully” applying pressure cannot support a

fabrication-of-evidence claim, while nonetheless

acknowledging the coercive nature of a threat to file charges

against a vulnerable witness. Id. (emphasis in original).

Here, by contrast, the pressure was successful, or at least a

reasonable jury could so find in light of Varela’s comments.

Cunningham is also distinguishable. There, we

concluded that a fabrication-of-evidence claim failed where

an investigator “kept questioning the [accused’s] daughters

after they initially denied the sex abuse” and “may have also

told [one of the daughters] that she could not leave [the

hospital] until she confessed to the abuse.” 345 F.3d at 812.

First, threatening an 18-year-old with an adult murder charge

is more analogous to telling someone he would go “down for

murder” if he did not give the officers “information” (which

created a triable issue for the jury in Gantt, 717 F.3d at 708)

or threatening a child with false reporting charges (which

was considered coercive in Devereaux, 263 F.3d at 1078).

Second, the officer in Cunningham faced distinguishable

circumstances in his investigation. Notably, one daughter

had previously claimed that her father sexually abused her

and was now denying it, and Cunningham had confessed to

the abuse. See 345 F.3d at 805–06. Because Cunningham’s

daughters “did not immediately corroborate the confession,”

and one had even backtracked from her earlier claim, the

police “kept questioning” them, and the daughters eventually

CIRIA V. GERRANS 33

implicated their father. Id. at 811–12. Here, however,

Varela had never backtracked from claiming Ciria was the

shooter, nor had Ciria confessed. Rather, Varela had

corroborated Ciria’s alibi, and Ciria maintained his

innocence.

Given the context of the investigation, there was

ultimately no evidence in Cunningham that the officer knew

or should have known that when the daughters implicated

their father, they were lying in response to his tactics.

Absent any “independent evidence that [the officer] knew or

should have known his interview tactics would yield false

information,” Gausvik, 345 F.3d at 817, we held that

repeated questioning amounted at most to an “improper

interview technique[].” Cunningham, 345 F.3d at 812. By

contrast, here, as the district court determined, a reasonable

jury could find that the inspectors were aware or should have

been aware that Varela was not being truthful and was

merely adopting Defendants’ account of events in response

to police pressure. Cunningham, therefore, creates no legal

obstacle to presenting this case to a jury.

2.

Defendants next rely on the fact that many of the

techniques the inspectors used were constitutional under the

Fifth Amendment and Fourteenth Amendment standards for

involuntary confessions. In such contexts, they argue,

continuing to question a suspect after he claims he is

innocent, accusing a suspect of lying, explaining potential

criminal liability, or explaining the advantages of telling the

truth do not automatically render a confession involuntary.

This argument fails for several reasons.

First, “it may be true that application of each of these

tactics would not render the witness’s statement

34 CIRIA V. GERRANS

constitutionally involuntary,” but “it does not follow that

when an officer uses these tactics together, he could not infer

that the witness’s story was false or at least highly

unreliable.” Clark, 131 F.4th at 450 (emphasis omitted).

Whether officers violated someone’s constitutionally-

protected right against self-incrimination is a separate

question from whether they used coercive or abusive tactics

to elicit a fabricated statement against someone. The latter

is the essence of a fabrication-of-evidence claim. An officer

can fabricate evidence by pressuring a witness to make a

false statement, even without violating that witness’s

constitutional right. After all, coercing someone into

incriminating themselves would typically require an even

higher level of coercion than coercing someone into

incriminating someone else. The “critical element” of a

fabrication of evidence claim is not whether use of the tactics

alone would be constitutional against the interrogated

witness but whether “the defendants . . . knew or should have

known that they were eliciting false accusations” against the

eventual defendant. Devereaux, 263 F.3d at 1076 (citation

omitted). Thus, even if the inspectors’ tactics did not violate

Varela’s Fifth Amendment right, it does not follow that the

inspectors did not fabricate evidence against Ciria.

Defendants’ reliance on cases from the Fourteenth

Amendment involuntary confession context is similarly

misplaced. See, e.g., Stoot v. City of Everett, 582 F.3d 910,

928 (9th Cir. 2009). It is irrelevant whether Varela’s

substantive due process rights under the Fourteenth

Amendment were violated by the inspectors’ interrogation.

Ciria’s claim is that the conduct that shocks the conscience

is not what the inspectors did to Varela, but what they did to

him—specifically, that the inspectors used abusive tactics to

produce a statement against him and then used that statement

CIRIA V. GERRANS 35

to charge him with murder, acting with deliberate

indifference to or with reckless disregard towards his right

not to be charged with fabricated evidence. See Gantt, 717

F.3d at 707–08.

Unsurprisingly, we never held in Devereaux that

fabrication-of-evidence claims only arise when the

underlying interrogation violates the constitutional rights of

the person being questioned. Confirming this point,

Defendants cannot identify any case that has applied Fifth or

Fourteenth Amendment involuntary confession standards to

the fabrication-of-evidence context.

Furthermore, even if cases from the Fifth Amendment

context were informative regarding the type of tactics that

produce unreliable statements, Defendants’ tactics, at least

when viewed in the light most favorable to Ciria, would still

qualify as coercive. We have recognized that “threats”

constitute a coercive interrogation technique and that

confessions made in a coercive manner are “likely to be

unreliable.” United States v. Tingle, 658 F.2d 1332, 1334–

35 (9th Cir. 1981). At this stage, we take as given that that

the inspectors threatened Varela with criminal liability.

None of the cases Defendants point to permit officers to

use threats. For example, in People v. Andersen, 161 Cal.

Rptr. 707, 715 (Cal. Ct. App. 1980), although the court held

that there was “nothing wrong in the statements made by the

police officers to the interviewee urging her to tell the truth,”

that was because “the admonition to tell the truth was

appropriate and timely and not one extraneously dragged in

as a club with which to bully the suspect.” Id.. Likewise, in

United States v. Leon Guerrero, 847 F.2d 1363, 1366 n.2

(9th Cir. 1988), we observed that while officers may

incentivize cooperation by promising to tell prosecutors if a

36 CIRIA V. GERRANS

witness cooperates, they may not threaten someone to adopt

a particular statement.

Regardless, the essence of a fabrication-of-evidence

claim is not the constitutionality of the techniques as applied

to the person being questioned—in this case, Varela—but

whether there is “independent evidence that [the officers]

knew or should have known [their] interview tactics would

yield false information.” Gausvik, 345 F.3d at 817; see

Devereaux, 263 F.3d at 1078. Defendants have not pointed

us to any authority—nor could we find any—for their

proposition that there can be no fabrication of evidence if the

interview did not violate the witness’s constitutional rights.

3.

Finally, Defendants cite cases in which this court has

declined to dismiss an indictment on due process grounds.

See, e.g., United States v. Ryan, 548 F.2d 782 (9th Cir.

1976). In Ryan, we declined to dismiss an indictment on due

process grounds where officers secured an informant’s

cooperation through assertions that the informant would go

to jail if he refused to cooperate, “[p]rophecies that his health

would suffer irreparably if he went to jail,” and “[a]ssurances

that his friends . . . would be kept ‘out of it.’” Id. at 789.

Defendants argue that the inspectors’ tactics here are less

coercive or at least comparable to the practices in Ryan, so

they do not amount to fabrication of evidence.

Ryan has little relevance here. First, Ryan involves an

informant’s consent to have his conversations with a suspect

recorded. Id. at 785, 789. Concerns regarding the officers’

techniques producing false information were never raised

and would naturally be far less salient in those

circumstances, since the government sought the informant’s

willingness to be recorded when talking to a suspect, not the

CIRIA V. GERRANS 37

adoption of a specific statement implicating someone. Id. at

786.

Second, in Ryan, the issue before us was whether an

indictment should be dismissed on due process grounds.

That involves a high standard not found in the context of

fabrication-of-evidence claims brought under § 1983: the

government conduct must be “so outrageous that due process

principles would absolutely bar the government from

invoking judicial processes to obtain a conviction.” Id. at

788 (citation omitted). There is no basis in our precedent to

graft this standard onto our analysis of fabrication-of-

evidence claims under § 1983. See Gantt, 717 F.3d at 707–

08 (explaining the legal standard for fabrication-of-evidence

claims).

Finally, even if the facts and legal standard in Ryan were

relevant here, the case’s procedural posture makes it

inapposite. In considering whether the informant’s consent

was voluntary under these circumstances, we were

reviewing the trial court’s factual determination for clear

error. Ryan, 548 F.2d at 791. That is a distinct legal inquiry

from the one here, which is whether any reasonable jury

could find that the inspectors used coercive and abusive

tactics to produce a false statement against Ciria.

In sum, we are not persuaded by any of the cases

Defendants raise that there can be no constitutional violation

on these facts. Under our precedents and based on the

assumed facts, a reasonable jury could find that the

inspectors were deliberately indifferent or exhibited reckless

disregard towards Ciria’s right not to be charged based on

fabricated evidence. A reasonable jury could also find that

the inspectors fabricated evidence against Ciria by using

interrogation tactics including threatening Varela with an

38 CIRIA V. GERRANS

adult murder charge and offering him a story that exculpated

him to get him to name Ciria as the shooter. Finally, given

the context of the full investigation and comments Varela

made during the interrogation, a reasonable jury could find

that the inspectors knew or should have known Varela was

not telling the truth but merely adopting the fabricated story

they fed him.

C. Clearly Established Law

We consider next whether Defendants are nonetheless

entitled to qualified immunity at this stage because the law

was not clearly established at the time of the events in

question. We conclude that they are not.

Even if he violated a constitutional right, a public official

sued for damages in his individual capacity is entitled to

qualified immunity unless “the right in question was clearly

established at the time of the officer’s actions, such that any

reasonably well-trained officer would have known that his

conduct was unlawful.” Orn, 949 F.3d at 1174. “There need

not be a case directly on point for a right to be clearly

established.” Martinez v. City of Clovis, 943 F.3d 1260,

1275 (9th Cir. 2019). “The ‘salient question . . . is whether

the state of the law’ at the time of their misconduct” gave the

officers “‘fair warning that their [misconduct] was

unconstitutional.’” Rieman v. Vazquez, 96 F.4th 1085, 1094

(9th Cir. 2024) (alteration in original) (quoting Hardwick v.

County of Orange, 844 F.3d 1112, 1117 (9th Cir. 2017)).

The constitutional question must be “beyond debate.”

Hardwick, 844 F.3d at 1117.

As discussed above, a reasonable jury could find that

Defendants used abusive tactics to feed Varela a story

naming Ciria as a shooter. A reasonable jury could also find

that Defendants used Varela’s statement to charge Ciria with

CIRIA V. GERRANS 39

murder, even though they knew or should have known based

on their investigation and Varela’s responses that Varela was

merely adopting the story they fed him. The relevant

question at this juncture is whether, assuming these facts as

we must, it was clearly established in 1990 that such conduct

would violate Ciria’s due process rights. We hold that it

was. Defendants, of course, emphasize that they never

threatened Varela and that they had no reason to know

Varela’s statement was not truthful. But those are factual

issues for the jury to resolve, not us. In any case, we lack

jurisdiction to review the district court’s contrary factual

determinations on those points.

Several authorities put the constitutional question

“beyond debate.” Id. As an initial matter, there is no dispute

that in 1990, “there [was] a clearly established constitutional

due process right not to be subjected to criminal charges on

the basis of false evidence that was deliberately fabricated

by the government.” Devereaux, 263 F.3d at 1074–75.

Although Devereaux was only published in 2001,

Defendants do not dispute that this due process right was

clearly established in 1990, at the time of Varela’s

interrogation. Indeed, Devereaux observed that a right not

to be charged based on fabricated evidence was “virtually

self-evident,” even without a prior case on point. Id. at 1075;

see also Limone v. Condon, 372 F.3d 39, 44–45 (1st Cir.

2004) (holding that it is “self-evident” that “those charged

with upholding the law are prohibited from deliberately

fabricating evidence and framing individuals for crimes they

did not commit”).

Even if it were not obvious, an array of Supreme Court

cases confirm Ciria’s constitutional right not to be charged

with deliberately fabricated evidence. In Miller v. Pate, the

Supreme Court emphasized the “established principle” that

40 CIRIA V. GERRANS

the “Fourteenth Amendment cannot tolerate a state criminal

conviction obtained by the knowing use of false evidence.”

386 U.S. 1, 7 (1967). Even earlier, Pyle v. Kansas, 317 U.S.

213, 216 (1942), established that the knowing use of

perjured testimony to secure a criminal conviction violates

the accused’s constitutional due process rights. Pyle

emphasized that public officials may not coerce and threaten

witnesses to testify falsely against a suspect. Id. at 214–15.

In addition to finding the “wrongfulness of charging

someone on the basis of deliberately fabricated evidence . . .

sufficiently obvious,” Devereaux held that “Pyle is

sufficiently analogous” to a “right to be free from such

charges.” 263 F.3d at 1075; see also Halsey v. Pfeiffer, 750

F.3d 273, 296 (3d Cir. 2014).

We also conclude that, as a necessary corollary to this

general prohibition, it would have been clear to any

reasonable official in Defendants’ shoes that they could not

use coercive and abusive interrogation tactics to get a

witness to adopt a story they knew or should have known

was fabricated. After all, any reasonable officer would know

that if he uses certain interrogation tactics to get a witness to

adopt a fabricated statement, he has fabricated evidence

against the accused person, whether directly or

surreptitiously. See Hope v. Pelzer, 536 U.S. 730, 741

(2002) (emphasizing that “general statements of the law are

not inherently incapable of giving fair and clear warning”

and that “a general constitutional rule already identified in

the decisional law may apply with obvious clarity to the

specific conduct in question” (citation omitted)). Therefore,

even in 1990, it was beyond debate that using interrogation

tactics to feed Varela a fabricated story naming Ciria

constituted fabricating evidence and that fabricating

evidence violated Ciria’s constitutional rights. See also

CIRIA V. GERRANS 41

Jackson v. City of Cleveland, 925 F.3d 793, 825 (6th Cir.

2019).

If that were not enough, as Defendants claim, Pyle

confirms that Defendants had a further warning that their

tactic—threatening a witness with criminal liability—is one

way to elicit false testimony. See Pyle, 317 U.S. at 215. In

Pyle, the Supreme Court held that Pyle “set forth allegations

that his imprisonment resulted from perjured testimony”

when one witness alleged that he was threatened with a

penitentiary sentence for burglary if he did not testify falsely

against Pyle and that another was threatened with

prosecution unless he testified for the State. Id. at 214–216.

Pyle therefore “confirms what common sense dictates,” Est.

of Soakai v. Abdelaziz, 137 F.4th 969, 978 (9th Cir. 2025),

that threatening a witness with criminal liability to elicit a

false statement against the accused violates the accused

person’s rights.

Given this array of authorities solidifying the principle,

and because the proposition is self-evident, any reasonable

officer would know that threatening a young witness and

offering him a story that insulates him from liability to get

him to falsely implicate a suspect violates the accused

suspect’s due process rights. Defendants dispute that they

threatened or intimidated Varela, or that the officers knew or

should have known that Varela’s statement was not truthful,

but these are factual questions for the jury to resolve. As the

district court determined, a reasonable jury could find that

the inspectors threatened and pressured Varela, who was

evidently susceptible to intimidation, into adopting a

fabricated story that the inspectors fed him. As we must, we

assume these factual determinations are true. Because even

in 1990, it was clearly established that such conduct would

42 CIRIA V. GERRANS

violate Ciria’s rights, qualified immunity is improper at this

stage.

IV. Malicious Prosecution Claim

We next analyze Ciria’s malicious prosecution claim.

The elements of a malicious prosecution claim under § 1983

derive from the state law elements of malicious prosecution.

See Usher v. City of Los Angeles, 828 F.2d 556, 561–62 (9th

Cir. 1987). To prevail on a § 1983 claim of malicious

prosecution in California, a plaintiff “must show that the

defendants prosecuted [him] with malice and without

probable cause, and that they did so for the purpose of

denying [him] equal protection or another specific

constitutional right.” Awabdy v. City of Adelanto, 368 F.3d

1062, 1066 (9th Cir. 2004) (alterations in original) (quoting

Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.

1995)). 5

To sustain a malicious prosecution claim, Ciria must also

show the absence of probable cause. See Yousefian v. City

of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015). “The

probable cause inquiry is objective, asking whether a

reasonable person would have thought that the claim was

legally tenable.” Est. of Tucker ex rel. Tucker v. Interscope

Recs., Inc., 515 F.3d 1019, 1031 (9th Cir. 2008). The

5

Because no freestanding “substantive due process right exists under the

Fourteenth Amendment to be free from malicious prosecution,” to bring

a malicious prosecution claim under § 1983, Ciria must point to another

constitutional right that Defendants violated in prosecuting him.

Awabdy, 368 F.3d at 1069. The district court recognized this

constitutional right as the right not to be charged based on fabricated

evidence under the Fourteenth Amendment. Defendants do not

challenge that determination.

CIRIA V. GERRANS 43

probable cause determination is the focus of Defendants’

appeal.

On appeal, Defendants argue that (1) the district court

erred in focusing solely on the four corners of the search

warrant affidavit (produced at the same time as the arrest

warrant and draft of the Criminal Complaint), rather than

everything the inspectors knew at the time they charged

Ciria; (2) even excluding Varela’s statement implicating

Ciria, probable cause existed to charge Ciria with murder;

and (3) even if probable cause did not exist to charge Ciria,

the existence of probable cause was reasonably arguable, so

Defendants are entitled to qualified immunity on the

malicious prosecution claim.

A. Constitutional Violation

To begin, we agree with Defendants that we are not

limited to the contents of the affidavit that accompanied the

inspectors’ search warrant in analyzing whether Defendants

had probable cause to charge Ciria. 6 Crowley declared that

after he interviewed Varela, and before he signed the

Criminal Complaint against Ciria, he and Gerrans met with

the Assistant District Attorney assigned to the case, shared

the full investigative file with him, and discussed the

investigation. We therefore consider the totality of the

circumstances known to the inspectors at the time they

signed the Criminal Complaint.

Probable cause exists when “under the totality of

circumstances known to the arresting officers, a prudent

6

Where the scope of the officers’ knowledge is uncertain on the record,

as here, the affidavit may nonetheless be evidence of what information

the officers found sufficiently credible to attest to and present to a

magistrate.

44 CIRIA V. GERRANS

person would have concluded that there was a fair

probability that [the defendant] had committed a crime.”

United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986).

The totality of the evidence shows only that Ciria looked

somewhat like the shooter and was involved in drug dealing

with Bastarrica and other Cuban people in the area. There

was no physical evidence linking Ciria to the crime. There

was no match between what Ciria had been wearing an hour

before the murder (at Galan’s Bar) and the distinctive trench

coat that the shooter wore and was specifically noted by two

eyewitnesses. No one had placed him near the scene of the

murder that night. Neither eyewitness could positively

identify Ciria as the shooter. He also had an unverified alibi.

Moreover, Ciria was willing to talk to the inspectors and take

a polygraph test; he made no attempt to flee. And

Defendants knew of at least one other person who knew

Bastarrica and that matched the description of the shooter,

but they did not seek him out for further investigation.

Considering this evidence as a whole, viewed in the light

most favorable to Ciria, a reasonable jury could find that

there was less than a “fair probability” that Ciria was the

shooter. Id.

First, “[m]ere suspicion, common rumor, or even strong

reason to suspect are not enough” to provide probable cause.

McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984).

Mercedes Mora’s and Charles Austin’s statements about

what people had been saying about the identity of the shooter

cannot help Defendants. Statements about the “word” in the

community are clearly rumors, and the officers had no idea

what the bases of those statements were. See id. at 1009

(holding that officers could not rely on suspicions of a

witness who “had no personal knowledge” and whose

suspicions were not confirmed by objective evidence); see

CIRIA V. GERRANS 45

also United States v. Freitas, 716 F.2d 1216, 1222 (9th Cir.

1983). Among the credible new evidence of Ciria’s

innocence identified by the Innocence Commission, it was

the person named by Socorro as the actual shooter, Candido,

who spread the rumors about the shooting to cast suspicion

onto Ciria. Likewise, there is no evidence regarding the

basis for Austin’s and Mora’s belief that Ciria had a falling

out with Bastarrica, and, viewing the evidence in the light

most favorable to Ciria, a jury could reasonably find that this

was an accompanying rumor. Indeed, no one linked Ciria to

the scene of Bastarrica’s murder, and no witness placed him

at Alfonso’s murder the night before.

Second, the evidence regarding Ciria’s match to the

physical description of the shooter was weak. Guevara

viewed the shooting only from above. She could not see the

shooter’s face, and she said she was not sure about his height

and weight. Duff witnessed the shooting from around thirty

feet away, and his descriptions were both general and

changed a bit over time, in height (from 5’10”–5’11” to

almost 6’0”), age (from late 30s to no older than early 30s),

and race (including Middle Eastern or Iranian, Hindu, and

Black).

Although general physical descriptions can be relevant,

see United States v. Pinion, 800 F.2d 976, 979 (9th Cir.

1986), they are not sufficient. We have repeatedly observed

that “mere resemblance to a general description is not

enough to establish probable cause.” Grant v. City of Long

Beach, 315 F.3d 1081, 1088 (9th Cir. 2002); accord Torres

v. City of Los Angeles, 548 F.3d 1197, 1208 (9th Cir. 2008);

United States v. Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007);

see also United States v. Ricardo D., 912 F.2d 337, 342 (9th

Cir. 1990).

46 CIRIA V. GERRANS

There were also key and “more specific aspects” of the

description that were missing, such as the distinctive trench

coat worn by the shooter. Lopez, 482 F.3d at 1073; see also

Torres, 548 F.3d at 1208. The inspectors should have known

that Ciria had not been wearing the dark trench coat that both

witnesses observed the shooter wearing that night.

Tellingly, as the inspectors have admitted, the eyewitnesses

whose physical descriptions they relied on could not

positively identify Ciria as the shooter. See Lopez, 482 F.3d

at 1074 (“The effect of evidence which may support, or

incline toward, a finding of probable cause can, of course, be

vitiated by countervailing evidence.”); see also Torres, 548

F.3d at 1209 (describing an unreliable comparative

identification). There was additionally no physical evidence

linking Ciria to the murder scene.

Finally, Ciria made “no attempt to flee” and instead

voluntarily offered to talk to the inspectors. Torres, 548 F.3d

at 1209. Further, Ciria had an alibi, which the officers never

attempted to verify before charging him with murder. See

also Gilker v. Baker, 576 F.2d 245, 247 (9th Cir. 1978) (“His

explanation lent itself to verification which apparently was

never sought.”).

As a whole, when viewed in the light most favorable to

Ciria, this case involves evidence similar in strength and in

type to McKenzie, 738 F.2d at 1006–10: rumor and

suspicions not based on objective evidence, an imperfect

match to a general physical description, some circumstantial

evidence linking the suspect to the crime but no physical

evidence, and a failed identification from a key witness.

These circumstances did not establish probable cause in

McKenzie, and they do not establish probable cause here.

Defendants make no other argument challenging the district

court’s determination that Ciria has a triable malicious

CIRIA V. GERRANS 47

prosecution claim. We thus agree with the district court,

although for different reasons, that a reasonable jury could

find that the inspectors lacked probable cause that Ciria was

the murderer, and accordingly, that Ciria—if Defendants are

not immune—has a viable malicious prosecution claim.

B. Clearly Established Law

We next consider whether Defendants are entitled to

qualified immunity on the malicious prosecution claim.

Malicious prosecution claims based on a violation of a

constitutional right were actionable under § 1983 in 1990, as

they are now. See Usher, 828 F.2d at 562; Cline v. Brusett,

661 F.2d 108, 112 (9th Cir. 1981); see also Malley v. Briggs,

475 U.S. 335, 340–41 (1986) (“In 1871, the generally

accepted rule was that one who procured the issuance of an

arrest warrant by submitting a complaint could be held liable

if the complaint was made maliciously and without probable

cause.”). It was also clearly established in 1990 that a

malicious prosecution claim may be brought not only against

prosecutors but also against others, including police officers,

who wrongfully caused prosecution. See, e.g., Usher, 828

F.2d at 562.

Malicious prosecution claims require a lack of probable

cause. Probable cause “exists when officers have knowledge

or reasonably trustworthy information sufficient to lead a

person of reasonable caution to believe that an offense has

been or is being committed by the person being

arrested.” Sialoi v. City of San Diego, 823 F.3d 1223, 1232

(9th Cir. 2016) (quoting Lopez, 482 F.3d at 1072); see also

Beck v. State of Ohio, 379 U.S. 89, 91 (1964). While not a

“high bar,” probable cause requires a “substantial chance of

criminal activity.” District of Columbia v. Wesby, 583 U.S.

48, 57, 61 (2018) (quoting Kaley v. United States, 571 U.S.

48 CIRIA V. GERRANS

320, 338 (2014) and Illinois v. Gates, 462 U.S. 213, 243 n.13

(1983)).

In applying qualified immunity analysis to claims of a

lack of probable cause, we consider “whether it is

reasonably arguable that there was probable cause.”

Johnson v. Barr, 79 F.4th 996, 1005 (9th Cir. 2023)

(emphasis in original) (quoting Rosenbaum, 663 F.3d at

1076). “Given its imprecise nature, officers will often find

it difficult to know how the general standard of probable

cause applies in ‘the precise situation encountered.’” Wesby,

583 U.S. at 64 (citation omitted). But in an “obvious case,”

the “unlawfulness of the officer’s conduct” may be

“sufficiently clear even though existing precedent does not

address similar circumstances.” Id. (citation omitted).

Viewing the facts in the light most favorable to Ciria, it

is not reasonably arguable that the officers had probable

cause to arrest Ciria and charge him with murder. As the

district court observed, outside of Varela’s statements,

“much of the other cited evidence and witness interviews

were not based on personal knowledge, and, instead, are

more akin to gossip or rumor.” It was clearly established in

1990 that “[m]ere suspicion” and “common rumor” cannot

provide probable cause. McKenzie, 738 F.2d at 1008; see

Freitas, 716 F.2d at 1222 (discounting assertions where

there was “no assurance that [the] source had gathered his

information from personal observation rather than ‘casual

rumor’”). Similarly, the physical descriptions offered by

eyewitnesses were weak, inconsistent, and highly generic.

And at the time of the relevant events, it was clearly

established that “mere resemblance to a general description

is not enough to establish probable cause.” Grant, 315 F.3d

at 1088; see also Ricardo D., 912 F.2d at 342; Pinion, 800

CIRIA V. GERRANS 49

F.2d at 979 (explaining that a match to a “general”

description is “insufficient to establish probable cause”).

The “state of the law” in 1990 thus gave the officers “fair

warning” that they lacked probable cause to arrest and

charge Ciria with first-degree murder. Hope, 536 U.S. at

741.

This is not a case where “reasonable officers could

disagree as to the legality of [Ciria’s] arrest.” Rosenbaum,

663 F.3d at 1076. Tellingly, the inspectors relied exclusively

on Varela’s statements as the basis for probable cause in the

search warrant affidavit, and as we have explained, a

reasonable jury could find that the inspectors coerced Varela

into producing those false statements. In their attempt to

demonstrate probable cause before the magistrate, the

inspectors did not include the “word” in the community,

“common rumor” about Ciria’s relationship with Bastarrica,

or even the imperfect match to a physical description of the

shooter. McKenzie, 738 F.2d at 1008. Defendants’

entitlement to qualified immunity rises and falls with this

same evidence. Like the arresting officers who declined to

rely on this weak evidence when seeking a search warrant, it

is clear to us that this evidence is insufficient to render it

“reasonably” arguable that there was probable cause.

Rosenbaum, 663 F.3d at 1076.

Not only was it clearly established that rumor and a weak

match to a general description were insufficient for probable

cause, the unlawfulness of the Defendants’ conduct should

also have been “obvious.” Wesby, 583 U.S. at 64. Officers

do not need a case on point to know that it is unlawful to

charge first-degree murder principally on the basis of a

single coerced and false statement, particularly when the

50 CIRIA V. GERRANS

only other available evidence is rumor and a weak match to

a generic physical description.

The cases Defendants cite are inapposite. Defendants

invoke three cases to argue that a match to a detailed physical

description provided by eyewitnesses and a close connection

with a vehicle linked to the crime are sufficient for probable

cause. See United States v. Gaines, 563 F.2d 1352, 1358

(9th Cir. 1977); United States v. Barnett, 423 F.2d 694, 694

(9th Cir. 1970); Hollins v. United States, 338 F.2d 227, 229

(9th Cir. 1964). But in each of these cases, there was

probable cause because the suspect in question actually

matched the description provided by witnesses and was

directly connected to the vehicle associated with the crime.

For example, in Gaines, physical descriptions of the

robbery suspects matched the occupants of the vehicle

“which was unquestionably linked to the bank robbery.” 563

F.2d at 1358. Importantly, because Gaines had also

acknowledged to the officer that he and his girlfriend had

“sole” use of the vehicle and he had possession of it when

the robberies were committed, we concluded that the officers

possessed adequate information to take Gaines into custody.

Id.

Similarly, there was probable cause to arrest Barnett

because he matched the physical description of the robber,

the officers knew his name and address based on the license

plate on the getaway car, and he had approached the known

address and identified himself by name. 423 F.2d at 694.

Finally, in Hollins, the officer had a litany of “trustworthy

information” amounting to probable cause. 338 F.2d at 229.

Hollins’s “generally similar” match to a physical description

of the suspect was only a part of our analysis. Id. The officer

also had reliable information that the bank had been robbed

CIRIA V. GERRANS 51

around an hour before and that the robber had fled in a car

with the same make, description, and license plate as the car

parked in the driveway of the home where Hollins lived and

answered the door. Id. The officer even observed that the

car parked in the driveway was “still warm” when he arrived,

demonstrating a strong connection between the vehicle, the

suspect, and the crime. Id.

These cases show that it was unreasonable for the

officers to believe they had probable cause in this case.

Construing the facts in the light most favorable to Ciria,

there was an absence of knowledge or “trustworthy

information” sufficient to lead a reasonable officer to

“believ[e] that [Ciria] had committed . . . an offense.” Beck,

379 U.S. at 91; see also Lopez, 482 F.3d at 1072. To

reiterate, the evidence regarding Ciria’s match to the general

physical description of the shooter was weak. Eyewitnesses

could not positively identify Ciria as the shooter. And

importantly, evidence that undermined this match was

missing, such as the distinctive trench coat two eyewitnesses

said that the shooter wore on the night of the murder. With

respect to the vehicle, Ciria did not own the Monte Carlo;

the officers knew it belonged to Varela. No one connected

Ciria to the vehicle at the time of the shooting. No one even

placed him near the scene of the murder that night. He had

an unverified alibi. There was no physical evidence linking

him to the murder. And the officers knew that the only

concrete piece of evidence they had linking Ciria to the

murder was a statement that they fabricated.

“[C]onsidering all of the surrounding circumstances,” it

is not reasonably arguable that the officers had probable

cause to arrest Ciria. Wesby, 583 U.S. at 61 (citation

omitted). Under these circumstances, Defendants are not

52 CIRIA V. GERRANS

entitled to qualified immunity on Ciria’s malicious

prosecution claim.

AFFIRMED.

Defendants shall bear all costs on appeal.

MILLER, Circuit Judge, dissenting:

Joaquin Ciria spent many years in prison based on a

murder conviction that has now been vacated, so it is natural

to think that he should be compensated. But this case does

not present the abstract question whether Ciria is entitled to

some form of compensation. Instead, it presents a more

specific legal question: whether James Crowley and Arthur

Gerrans, the two police officers who investigated Ciria, are

subject to liability under 42 U.S.C. § 1983 for fabrication of

evidence and malicious prosecution.

Officers are shielded from civil liability under section

1983 unless a plaintiff establishes that their conduct

“violate[d] clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). First, the

plaintiff must show “a violation of a constitutional right.”

Carrillo v. County of Los Angeles, 798 F.3d 1210, 1218 (9th

Cir. 2015). Second, that right must be “‘clearly established’

at the time of the alleged misconduct.” Id. (quoting Pearson

v. Callahan, 555 U.S. 223, 232 (2009).

The Supreme Court has “repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly established

law at a high level of generality.” Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011) (citation omitted). Instead, we must

focus on “whether the violative nature of particular conduct

CIRIA V. GERRANS 53

is clearly established.” Id. (emphasis added). “The relevant,

dispositive inquiry . . . is whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202

(2001); accord Brosseau v. Haugen, 543 U.S. 194, 198–99

(2004). Thus, except in an “obvious case,” a plaintiff seeking

to overcome an assertion of qualified immunity “must

identify a case that put [the defendant] on notice that his

specific conduct was unlawful.” Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 6 (2021) (per curiam).

Both of Ciria’s claims fail because, even assuming that

the officers violated Ciria’s constitutional rights, Ciria

cannot show that the relevant rights were clearly established

at the time of the investigation in March 1990. I would

therefore reverse the district court’s order denying the

officers’ motion to dismiss.

I

Ciria’s fabrication-of-evidence claim rests on the

officers’ interview with George Varela, a witness who

named Ciria as the shooter in the murder for which he was

ultimately convicted. The record shows that the officers first

explained “how the law works” by telling Varela that if he

drove Ciria to the crime scene and Ciria shot someone, then

Varela “could be tried as being a part of the murder . . . or

[he] could be tried as an accessory to the murder.” Varela

responded by denying involvement: “I ain’t helped nobody

do nothing.” The officers then told Varela that they spoke to

eyewitnesses who “saw the driver.” They added that Varela

had “got [himself] into a situation” and that if he was “going

to continue to sit in here and lie and cover up for Joaquin

[Ciria], [he was] going to be in” legal jeopardy. The officers

cautioned Varela to “be honest,” noting that he was 18 years

54 CIRIA V. GERRANS

old, had been in trouble as a juvenile, and did not want to get

in trouble as an adult. They added: “What you ought to do is

tell us exactly what happened. No lies. For your own good,

son. Okay? It’s best for you to tell us exactly what went

down. We know you didn’t do it.” Soon after that exchange,

Varela provided an account of the shooting that implicated

Ciria.

Ciria alleges that the techniques used to interview Varela

were “so coercive and abusive that [the officers] knew or

should have known that those techniques would yield false

information.” Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th

Cir. 2001) (en banc). Even assuming that the interview

violated the rule we announced in Devereaux more than a

decade after the interview took place, this is hardly a case in

which the constitutional violation was “obvious” at the time.

Cf. Hope v. Pelzer, 536 U.S. 730, 738 (2002). Notably, the

coerciveness of the interrogation was not obvious to Ciria’s

lawyer, who had access to the entire transcript of Varela’s

interrogation—including all of the exchanges that the court

today uses to decide that “Varela, scared by the threat of

serious criminal liability, was adopting the story Defendants

fed him”—but concluded that it would not be helpful to

present any of it to the jury at Ciria’s criminal trial.

The officers did not use or threaten to use physical force

against Varela, and their statements reflected standard

interrogation methods. The officers’ observation that

someone who drove a shooter to a crime scene might be

subject to prosecution either as a principal or an accessory

was an accurate statement of the law. See People v. Jennings,

237 P.3d 474, 513 (Cal. 2010). Their statement that Varela

matched the description of the driver given by an eyewitness

was an accurate statement of the facts. And their explanation

of Varela’s potential criminal liability was a tactic that this

CIRIA V. GERRANS 55

court has repeatedly approved. See, e.g., Cunningham v. City

of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003) (“Officers

are allowed to recite the sentence a suspect may receive if

found guilty.”); United States v. Bautista-Avila, 6 F.3d 1360,

1364–65 (9th Cir. 1993) (same); cf. Amaya-Ruiz v. Stewart,

121 F.3d 486, 494 (9th Cir. 1997) (approving of

interrogation in which officer told suspect, “[w]e can forgive

your lies, but the United States Court system will not forgive

your lies”), overruled on other grounds by United States v.

Preston, 751 F.3d 1008 (9th Cir. 2014) (en banc).

To recognize that the officers lacked fair notice that their

interrogation methods violated Ciria’s constitutional rights,

we need not revisit the district court’s factual

determinations. In particular, the district court’s

characterization of the officer’s conduct as “feeding [Varela]

the story he needed to tell to avoid” a murder charge is not a

factual determination, which we would lack jurisdiction to

review. Rather, it is a legal conclusion—one that we review

de novo—about the coerciveness of the officer’s

interrogation tactics.

Ciria emphasizes a statement Varela made partway

through the interrogation: “I didn’t know what was going to

happen. I didn’t know what was going to—Hey, whatever

you said.” That statement is ambiguous, but construing it in

the light most favorable to Ciria, as we must, it supports an

inference that Valera was merely adopting the officer’s

version of events. I agree that if Valera had been coerced into

giving a false statement implicating Ciria, that would violate

the Fourteenth Amendment. But whether Valera was

coerced into adopting the story fed to him by police depends

on the interrogation tactics that preceded Valera’s

admission. To prevail, he needs to show that those tactics

were unconstitutionally coercive.

56 CIRIA V. GERRANS

Even if, under the totality of the circumstances, the

officers’ questioning of Varela crossed the boundary into

unlawful conduct, no case law in 1990 would have put the

officers on notice that their interrogation tactics would

amount to fabrication of evidence in violation of the Due

Process Clause. To be sure, our decision in Devereaux

makes clear that, as of 1990, “there [was] a clearly

established constitutional due process right not to be

subjected to criminal charges on the basis of false evidence

that was deliberately fabricated by the government.” 263

F.3d at 1074–75. The court today reasons that “a necessary

corollary to this general prohibition” is that officers “could

not use coercive and abusive interrogation tactics to get a

witness to adopt a story they knew or should have known

was fabricated.” But clearly established law is not evaluated

based on “general proposition[s].” Saucier, 533 U.S. at 201.

Instead, Ciria must identify a decided case that would have

put the officers on notice that their specific conduct

amounted to tactics so coercive and abusive that they should

have known the interrogation would produce false

information. Specificity is important because “[i]t is

sometimes difficult for an officer to determine how the

relevant legal doctrine”—here, the due-process prohibition

on using coercive or abusive tactics to obtain false

information in an interrogation—“will apply to the factual

situation the officer confronts.” Mullenix v. Luna, 577 U.S.

7, 12 (2015) (per curiam) (quoting Saucier, 533 U.S. at 205).

Devereaux did not provide such specificity because, as

already noted, it was not decided until years after Varela’s

interview. The same is true of Gantt v. City of Los Angeles,

717 F.3d 702 (9th Cir. 2013), on which Ciria relies. And the

handful of other cases identified by Ciria do not do the job

either.

CIRIA V. GERRANS 57

In United States v. Tingle, for example, a federal agent

interrogated a criminal defendant and told her that she would

not see her two-year-old child “for a while if she went to

prison.” 658 F.2d 1332, 1334 (9th Cir. 1981). In addressing

a Fifth Amendment claim brought by the defendant, we

stated that “a confession ‘must not be extracted by any sort

of threats or violence, nor obtained by any direct or implied

promises, however slight, nor by the exertion of any

improper influence.’” Id. at 1335 (quoting Malloy v. Hogan,

378 U.S. 1, 7 (1964)). And considering the “cumulative

effect” of the coercive tactics employed by the agent, id. at

1336 n.4, we concluded that the defendant had been

subjected to a form of “psychological coercion generated by

concern for a loved one [that] could impair a suspect’s

capacity for self control,” id. at 1336 (quoting United States

v. McShane, 462 F.2d 5, 7 (9th Cir. 1972)). The case

involved much more than an implicit threat of prosecution,

and it did not involve a claim of fabrication of evidence

through coercive interrogation of a third party.

Similarly unhelpful is Pyle v. Kansas, 317 U.S. 213

(1942). There, a state habeas petitioner submitted evidence

of perjured testimony knowingly used by the State to convict

him, including one witness who had previously been

committed to a mental institution and who was threatened

with prosecution if he did not testify for the State. Id. at 214.

The Supreme Court determined that the petitioner’s

allegations “sufficiently charge a deprivation of

[constitutional] rights.” Id. at 216. But Pyle arose in the

context of perjured testimony used by prosecutors at trial. It

did not provide guidance on whether the threat of

prosecution would be a coercive and abusive technique that

yields false information during police interrogations. And

the opinion in Pyle provided no details about how exactly

58 CIRIA V. GERRANS

the State threatened the witness, so it would not have

allowed the officers here to assess whether their conduct was

impermissible. See id. at 214 (describing the petitioner’s

allegations as “crude”).

Ciria cites no other examples of cases that might have

told the officers that their exchange with Varela—explaining

the law of accomplice liability, detailing the consequences

of an adult murder charge, and cautioning Varela that

eyewitnesses saw the driver—could support a claim of a

deliberate fabrication of evidence. For that reason, the

officers are entitled to qualified immunity.

II

Ciria’s malicious-prosecution claim fails for similar

reasons. A necessary element of a malicious-prosecution

claim is lack of probable cause. Awabdy v. City of Adelanto,

368 F.3d 1062, 1066 (9th Cir. 2004). Even assuming that

Ciria has adequately alleged that the defendant officers

lacked probable cause to charge him with murder, he cannot

overcome qualified immunity because it was at least

“reasonably arguable” that probable cause existed. Johnson

v. Barr, 79 F.4th 996, 1005 (9th Cir. 2023).

Probable cause “requires only a probability or substantial

chance of criminal activity, not an actual showing of such

activity.” District of Columbia v. Wesby, 583 U.S. 48, 57

(2018) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13

(1983)). It “is not a high bar.” Id. (quoting Kaley v. United

States, 571 U.S. 320, 338 (2014)). Here, it is undisputed that

Ciria fit the general physical description of the shooter

offered by eyewitnesses, that he was previously involved in

narcotics dealing with the victim, that the two had had a

falling out and one of Ciria’s friends had been murdered just

the night before, that Ciria was with Varela—who was

CIRIA V. GERRANS 59

placed at the scene of the murder—earlier that night, and that

Ciria had a criminal record. On those facts, it is at least

reasonably arguable that a reasonable officer would have

thought there was a “fair probability” that Ciria was the

shooter. Gates, 462 U.S. at 238.

To be sure, some of our pre-1990 cases stated that

probable cause cannot be established through gossip and

rumor or mere resemblance to a general physical description.

See, e.g., United States v. Pinion, 800 F.2d 976, 979 (9th Cir.

1986) (resemblance); McKenzie v. Lamb, 738 F.2d 1005,

1008 (9th Cir. 1984) (rumors). But the Supreme Court has

held that “[i]t is not enough that the rule is suggested by then-

existing precedent. The precedent must be clear enough that

every reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.” Wesby, 583 U.S.

at 63. Thus, a “robust consensus of cases . . . finding a Fourth

Amendment violation ‘under similar circumstances’” is

usually necessary to “place the lawfulness of a particular

arrest ‘beyond debate.’” Id. at 65 (first quoting White v.

Pauly, 580 U.S. 73, 79 (2017) (per curiam); and then quoting

al-Kidd, 563 U.S. at 741).

Ciria has identified no authority that, in 1990, would

have put the defendant officers on notice that they lacked

probable cause under these specific circumstances.

McKenzie, for example, involved significantly weaker

evidence than is present here. In that case, the defendants,

both jewelry salesmen, possessed three items of jewelry

resembling “general inventory descriptions” of jewelry

stolen in an earlier robbery-homicide. 738 F.2d at 1009. One

defendant also had “some similarity” to a description of the

suspect, but the eyewitness who had provided that

description stated that the defendant was not the person he

had observed. Id. at 1008–09.

60 CIRIA V. GERRANS

The other cases on which Ciria relies addressed discrete

categories of evidence in isolation—such as resemblance to

a general physical description or uncorroborated rumor—

rather than the cumulative effect of multiple pieces of

inculpatory evidence considered together. But “this sort of

divide-and-conquer analysis” is antithetical to the totality-

of-the-circumstances approach that is key to the probable-

cause inquiry. Wesby, 583 U.S. at 61 (quoting United States

v. Arvizu, 534 U.S. 266, 274 (2002)). More importantly,

overcoming qualified immunity requires a much closer

factual correspondence: Existing precedent must have

placed the unlawfulness of the officers’ conduct “beyond

debate” under the particular circumstances they confronted.

Id. at 63 (quoting al-Kidd, 563 U.S. at 741). No such case

did so here. Nor is this “the rare ‘obvious case,’ where the

unlawfulness of the officer’s conduct is sufficiently clear

even though existing precedent does not address similar

circumstances.” Wesby, 583 U.S. at 65 (quoting Brosseau v.

Haugen, 543 U.S. 194, 199 (2004) (per curiam)).

I would reverse the district court’s denial of qualified

immunity to defendants on both claims.