Tennison v. Sanders

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN TENNISON; ANTOINE GOFF, 

Plaintiffs-Appellees,

v.

CITY AND COUNTY OF SAN No. 06-15426

FRANCISCO; SAN FRANCISCO POLICE

D.C. Nos.

DEPARTMENT; GEORGE

BUTTERWORTH,  CV 04-0574 CW

CV 04-1643 CW

Defendants,

OPINION

and

PRENTICE EARL SANDERS; NAPOLEON

HENDRIX,

Defendants-Appellants.



Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted

June 12, 2007—San Francisco, California

Submission Vacated May 21, 2008

Resubmitted September 22, 2008

Filed December 8, 2008

Before: Michael Daly Hawkins, A. Wallace Tashima, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Tashima

16083

TENNISON v. SANDERS 16087

COUNSEL

James A. Quadra, Moscone, Emblidge & Quadra, LLP, San

Francisco, California, for defendants-appellants Prentice Earl

Sanders and Napoleon Hendrix.

Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, Cali-

fornia, for plaintiff-appellee John Tennison.

John H. Scott, The Scott Law Firm, San Francisco, California,

for plaintiff-appellee Antoine Goff.

OPINION

TASHIMA, Circuit Judge:

John Tennison and Antoine Goff (collectively “Plaintiffs”)

served nearly thirteen years in state prison for a murder of

which both have been declared factually innocent by the

courts. They were both released from custody after the district

court granted Tennison’s petition for writ of habeas corpus.

Following their release, they filed complaints under 42 U.S.C.

§ 1983, alleging, inter alia, that San Francisco Police Depart-

ment (“SFPD”) homicide inspectors Prentice Earl Sanders

and Napoleon Hendrix (together “Inspectors”) withheld

exculpatory evidence and manufactured and presented per-

jured testimony during the investigation and prosecution of

Plaintiffs for the murder of Roderick Shannon. The Inspectors

appeal the district court’s partial denial of their motion for

summary judgment on the basis of absolute and/or qualified

immunity. We affirm in all respects.

JURISDICTION

Although we generally do not have jurisdiction over an

interlocutory appeal from the denial of a motion for summary

16088 TENNISON v. SANDERS

judgment, the denial of a defendant’s motion for summary

judgment on the basis of qualified immunity is immediately

appealable. Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th

Cir. 2006). The district court’s denial of a claim of absolute

immunity also is immediately appealable. Castaneda v.

United States, ___ F.3d ___, No. 08-55684, 2008 WL

4426615, at *3 (9th Cir. Oct. 2, 2008). We therefore have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Id.

BACKGROUND

Construing the facts in favor of the nonmoving parties, as

we must, Genzler v. Longanbach, 410 F.3d 630, 636 99th Cir.

2005), the record establishes the following facts.

The victim in this case, Roderick Shannon, was beaten,

shot, and killed. Inspectors Sanders and Hendrix volunteered

to investigate the case. The evidence indicated that Shannon

was chased while driving his car by a pick-up truck full of

young men, and that he crashed into a fence in a parking lot

after driving in reverse in an attempt to evade his pursuers.

Shannon was beaten and shot when he tried to escape on foot.

Shannon was driving a green Buick Skylark that he and his

cousin Patrick Barnett owned.

A few days after the murder, Hendrix received a phone call

from then eleven-year-old Masina Fauolo, who told Hendrix

that she had witnessed Shannon’s murder.1 Masina initially

called anonymously and stated that she was parked in “Lov-

ers’ Lane,” when she saw numerous autos chasing another car

that she knew belonged to Barnett. She followed in her car

and saw the driver lose control and flee on foot. When the

driver was captured by his pursuers, he was beaten and shot.

The assailants fled in a pickup truck and other cars. Masina

called Hendrix again, later that same day, identified herself,

1

The district court and the parties refer to Fauolo and her friend, Pauline

Maluina, by their first names. We do the same in order to avoid confusion.

TENNISON v. SANDERS 16089

and named some of the cars involved. Following this initial

contact, Masina spoke with Hendrix every day or every other

day during the course of the investigation. Hendrix took notes

of a conversation with Masina that included names and other

information about the incident.

Several weeks after the murder, Sanders and Hendrix

requested a reward of $2,500 from the Secret Witness Pro-

gram (“SWP”) to encourage witnesses to come forward with

information about Shannon’s murder. The request stated that

the murder appeared to have been gang-related, and that

Shannon had been mistakenly identified as a member of a

rival gang. Handwritten notations and initials on the request

indicate that it was approved.

In a deposition taken in this action, Hendrix stated that he

never informed the district attorney about the SWP request.

Sanders did not provide a copy of the SWP request to the

prosecutor, Assistant District Attorney George Butterworth

(”Butterworth”) either, but he asserted that there was a copy

in Sanders’ file, to which Butterworth had access. Butterworth

stated that the request was not in the district attorney’s file

and had not been produced to Tennison’s counsel. Butter-

worth did not become aware of the SWP request until he read

Tennison’s federal habeas petition. Public Defender Jeff

Adachi, defense counsel for Tennison, stated in a declaration

that he was never told about the authorization of reward

money.

Early in their investigation, the Inspectors taped an inter-

view with Masina. Masina told them that she and her friend

Pauline Maluina were in a car at Lovers’ Lane, at the intersec-

tion of Visitacion and Mansell, when four cars that Masina

knew were from Hunters Point entered the parking lot. The

cars parked in the lot, and some people exited the cars. After

about ten minutes, they saw the Skylark go down the hill, on

Visitacion, toward Sunnydale. Masina heard someone com-

ment that Pat was going to pay the price now. The boys got

16090 TENNISON v. SANDERS

in their cars and started chasing the Skylark. Masina described

the cars involved in the chase and the order in which they

chased the Skylark.

According to her statement, Masina followed the cars and

saw Shannon crash into a fence, get out of the car, and start

running down the hill. Five or six boys eventually cornered

Shannon in a supermarket parking lot and beat him up. She

saw one boy get a gun from the trunk of a green Maverick and

shoot Shannon, despite Masina’s screams not to hurt Shan-

non. The group of boys left, and Masina went to help Shan-

non, who asked her to get Barnett. Masina told a woman at

a video store across the street to call an ambulance and then

left. Sanders showed Masina eight photos, and Masina identi-

fied Goff as the shooter and Tennison as one of the men who

beat Shannon.

Hendrix also interviewed Masina’s fourteen-year-old

friend, Pauline. Pauline stated that she and Masina were

across the street from the market when they heard a lot of

screaming and saw someone being beat up. Contrary to

Masina’s story, Pauline denied having been at the top of the

hill, which is the location of Lovers’ Lane. She said that she

and Masina were walking on Visitacion, that they cut through

a park to get to Leland, and that was when they saw Shannon

being beat up.

She also reported that she saw a car pull up next to Shan-

non, and that one of the boys got a gun and shot Shannon.

Before the shooting, Masina was telling the group to leave

Shannon alone. Pauline and Masina then ran away and

“hopped on a bus.”

Later, another witness, Chanté Smith, called Sanders about

the murder. Sanders and Hendrix knew Smith from the neigh-

borhood. Smith did not tell Sanders that she had witnessed the

murder, which she had, but she provided Sanders with the

names of people who were at the scene of the murder, includ-

TENNISON v. SANDERS 16091

ing Luther Blue and Lovinsky Ricard. She did not tell Sanders

that she was a witness to the shooting because she was afraid

that someone would try to hurt her. Smith did, however, tell

Sanders that Tennison and Goff were not present at the mur-

der. She also told Sanders that Ricard had shot Shannon. She

described several of the cars involved in the car chase, and

told him that the chase started at a 7-Eleven store on Bay-

shore, not at Lovers’ Lane. Sanders’ handwritten notes from

the interview include Smith’s name, phone number, and a list

of names.

Sanders went to Smith’s house to interview her a second

time prior to trial, and she again told him about the people and

cars involved in the chase, and she told him that the chase

started at the 7-Eleven store. Three SFPD officers from the

Gang Task Force went to Smith’s house on a subsequent

occasion to show her photographs of trucks to see if she rec-

ognized any of them. Undated notes, with the name “Chanté”

at the top, include Smith’s beeper number, names, and a hand-

drawn map with other information on it.

Hendrix and Officer Michael Lewis of the SFPD Gang

Task Force interviewed Ricard. Ricard denied having been

present when Shannon was beaten up, and he denied shooting

Shannon. Hendrix told Ricard that someone had placed him

at the scene of the crime, and that Hendrix did not think that

this person had a grudge against Ricard; however, Ricard

denied any involvement in the incident.

At a “707 hearing,”2 a superior court judge found that Ten-

nison should be tried as an adult rather than a juvenile. Pau-

line testified at that hearing.

The day before Tennison’s preliminary hearing, Butter-

worth confronted Pauline with the transcript of the 707 hear-

2

So named because such a hearing is held pursuant to Cal. Welf. & Inst.

Code § 707.

16092 TENNISON v. SANDERS

ing and told her that he was concerned about discrepancies

between her testimony and the information Masina had given

in her taped interview with the police. Pauline then told But-

terworth and Hendrix that she actually had not witnessed the

murder, and that she was only covering for Masina.

Butterworth and Hendrix conducted a taped interview of

Pauline. Pauline again stated that she had not been present at

the shooting, and that she had chosen Tennison’s photo during

the earlier interview because “Masina told me to pick the one

that looked the biggest, and the largest one out of all the pic-

tures.” Pauline had lied because Masina had “covered” for

Pauline when Pauline ran away from home several times.

Pauline said that she actually had never seen Tennison before.

She told Butterworth and Hendrix that she was telling the

truth now because she “didn’t want to get into any more trou-

ble.” According to Pauline, Butterworth became “very upset”

with her after she told them the truth. Hendrix also called

Masina and taped the call. These tapes were not produced to

Tennison’s counsel at the time and were not produced in

response to subpoenas in Tennison’s federal habeas case.

Copies of the tapes were not produced until Tennison made

a document request in this case. The copies were in Butter-

worth’s files.

Inspector Henry Hunter later administered an inconclusive

polygraph to Pauline, during which she again recanted her

original story. After the polygraph, Hendrix called Masina in

Samoa and had Pauline speak with Masina alone. Pauline told

Masina that she had told the police that she did not witness

the shooting and Masina became angry with her. After speak-

ing with Masina, Pauline reverted to her original story and

told Hendrix and Sanders in a taped interview that her state-

ments at the 707 hearing identifying Tennison were the truth.

Hendrix placed Hunter’s memo summarizing the results of

the polygraph in his file and told Butterworth the results of

the polygraph. Butterworth testified that he did not see Hunt-

TENNISON v. SANDERS 16093

er’s memo until 2001, in conjunction with Tennison’s federal

habeas petition, so he never gave a copy of the memo to

defense counsel. He did tell Adachi about the polygraph, but

he could not recall whether he told Melton, Goff’s lawyer.

Adachi stated in a declaration that he was never told about the

polygraph.

In a later declaration, Pauline stated that Masina had pres-

sured her during the April 24, 1990, phone call to return to her

original story, and that Masina gave her further details about

the shooting. Pauline further stated that, after the polygraph,

she felt pressured by Hendrix and Butterworth to revert to her

previous story. In an April 2005 deposition, Pauline testified

that she went along with Masina out of fear of Masina, and

that she felt that Butterworth became frustrated and angry

when she first retracted her story.

Pauline testified at Goff’s preliminary hearing. Defense

counsel, Melton, questioned Pauline about inconsistencies in

her story and about her recantation, but the court found proba-

ble cause and ordered Goff to stand trial. Masina testified at

Tennison’s June 18, 1990, preliminary hearing. Defense coun-

sel, Adachi, cross-examined Masina about her April 24, 1990,

phone conversation with Pauline and about Pauline’s recanta-

tion, but, again, the court found probable cause.

Pauline and Masina both testified at Plaintiffs’ consolidated

trial. The jury found Plaintiffs guilty of murder on October 3,

1990. Tennison was sentenced to a twenty-five-year to life

term of imprisonment. After Goff’s motion for a new trial was

denied, he was sentenced to a twenty-seven-year to life term

of imprisonment.

Approximately a week after the verdict, Tennison heard

from friends that people named Lavista or Lavinsky Ricard

and Luther Blue were involved in the incident. Tennison cal-

led Ricard himself. Tennison told Ricard that he had been

convicted, and Ricard said that he knew; Ricard acknowl-

16094 TENNISON v. SANDERS

edged to Tennison that he had shot Shannon, but he did not

want to mention the names of any others who were involved.

At Tennison’s request, Ricard provided details about the inci-

dent and agreed to contact Adachi. Tennison gave this infor-

mation to Adachi the day after speaking with Ricard and gave

Adachi Ricard’s name, address, and phone number.

One month after the guilty verdict, Ricard was arrested on

narcotics and traffic warrants by Lewis and Neville Gittens,

another SFPD Gang Task Force officer, both of whom had

worked with Hendrix and Sanders on the Shannon murder.

Lewis and Gittens questioned Ricard about the murder in a

taped interview during which he confessed to committing the

murder and provided details consistent with Smith’s version

of events.

Lewis told Hendrix and Sanders, who were his superiors,

about the confession and gave them either the original or a

copy of the interview tape, and his notes from the interview.

In a later deposition, Lewis stated that he talked to Hendrix

the day after the Ricard interview. Lewis recalled that he

spoke with Hendrix about the confession and asked him if he

had heard the tape. Hendrix acknowledged that he had lis-

tened to the tape, but he told Lewis “that it was a good effort

but that unless Ricard was going to be specific and bring you

a weapon, bring you associates, bring you vehicles, bring you

additional rounds or something tangible, it did not appear to

be enough.”

Hendrix later testified in a deposition that, if Lewis and

Gittens had received a confession to the murder, they would

have made sure the Inspectors received the information. Hen-

drix further testified that he did not listen to the taped Ricard

confession, and he did not inform Butterworth of the tape.

But Hendrix stated in a later declaration that he learned

about the tape from Sanders, who allegedly learned about the

tape from Butterworth. He also testified that he “didn’t care

TENNISON v. SANDERS 16095

about the tape” because it “had been taken by someone other

than someone in homicide,” and that he was “[a] little PO’d

at Gittens and Lewis” because he felt that he and Sanders

should have been contacted. He felt that, because he and

Sanders were in charge of the investigation, Ricard should

have spoken with them, and that the confession was not sin-

cere because it was not given to them.

Sanders testified in a deposition that he received the tape of

the confession within a day or two after it was taken, and that

he began comparing the tape with the first interview of Ricard

and found the two “diabolically opposed. One, he had nothing

to do with it, and on this one he’s — in this interview, he is

confessing.” Sanders further stated that the tape was “para-

mount,” and that he and Hendrix “got a hold of [Butterworth]

right away” and told him they were investigating it.

Later, however, Sanders stated that he learned about the

confession from Butterworth. Sanders stated that he reviewed

the confession and “conducted some follow-up investigation,”

but he found the confession not credible because it was not

consistent with other evidence and could not be corroborated.

Without having received any information from Hendrix,

Sanders, or Butterworth, and following only the tip from Ten-

nison, Adachi obtained his own videotaped confession from

Ricard, who was disguised under a hood and unidentified.

However, Adachi was required to withdraw from the case

because the Office of the Public Defender was representing

Ricard in a different matter. Adachi was replaced by LeRue

Grim, to whom Adachi gave the tape of Ricard’s anonymous

confession, without revealing Ricard’s identity.

Tennison filed a motion for a new trial based, in large part,

on Ricard’s anonymous confession. On the third and final day

of the hearing on that motion, Butterworth learned for the first

time about the tape of the Ricard confession taken by Lewis

and Gittens. Butterworth was in the cafeteria of the Hall of

16096 TENNISON v. SANDERS

Justice, working on Tennison’s motion for a new trial, when

Lewis and Gittens asked him what had happened to the Ricard

tape. Butterworth asked what tape they were referring to, and

they explained that when they interviewed Ricard, Ricard

confessed that he was the one who shot Shannon. Butterworth

contacted Sanders about the confession, who told Butterworth

that he was not aware of any such confession.

The state trial court denied Tennison’s motion for a new

trial, concluding that the two taped confessions by Ricard

were inadmissible, and, even if admissible, Ricard’s state-

ments “contained so many inconsistencies they could not be

considered trustworthy.” The appellate court affirmed both

convictions.

Later, Sanders and Butterworth interviewed Smith again.

Smith provided specific additional details, such as the streets

on which the chase occurred, details about the cars and per-

sons involved, where each person was seated in the cars, the

words spoken during the incident, the manner in which Ricard

shot Shannon, and Ricard’s words after the shooting. Smith

told Sanders that she did not see any females at the scene and

that she did not hear any females yelling not to hurt Shannon.

Adachi stated in a declaration that he kept a “detailed

inventory of every document” he received from the prosecutor

or the SFPD and an index of taped witness statements pro-

vided to him by the prosecutor. Adachi further stated that he

never received any information about any interview. He did

not see the Sanders’ notes of the phone call from Smith, or

other notes that included names and a map until June 2002.

Adachi further stated that he never received the notes from the

interviews and telephone calls with Masina and Luther Blue,

and that the SFPD’s “Chronological Report of Investigation”

did not list the interviews.

When Plaintiffs’ state habeas petitions were denied, they

filed habeas petitions in federal court. Judge Wilken granted

TENNISON v. SANDERS 16097

Tennison’s habeas petition, based on the suppression of mate-

rial exculpatory evidence, and vacated his conviction. Goff’s

conviction was vacated by the Superior Court for the City and

County of San Francisco. Tennison and Goff were released

from custody, and both were declared factually innocent.3

Plaintiffs subsequently filed the present 42 U.S.C. § 1983

action against, inter alia, the Inspectors for allegedly with-

holding material, exculpatory evidence in violation of Brady

v. Maryland, 373 U.S. 83 (1963).

The Inspectors moved for summary judgment on the basis

of absolute and qualified immunity. With respect to Plaintiffs’

Brady claims against the Inspectors, the district court first

rejected the Inspectors’ argument that Plaintiffs needed to

establish that the Inspectors acted in bad faith in withholding

the Ricard confession. It then denied the Inspectors’ motion

for summary judgment with respect to the Ricard confession

and the Smith interview on absolute immunity and qualified

immunity grounds, and held that disputed facts regarding the

SWP request precluded the grant of summary judgment on the

basis of qualified immunity.4 The Inspectors filed a timely

notice of appeal. We affirm the denial of summary judgment.

3

The California Victim Compensation and Government Claims Board

denied Plaintiffs’ claims seeking compensation for wrongful incarceration,

agreeing with an administrative law judge that the findings of factual inno-

cence were not binding and that Plaintiffs had failed to establish by a pre-

ponderance of the evidence that they did not commit the murder. The

denial was upheld by the California Court of Appeal. See Tennison v. Cal.

Victim Compensation & Gov’t Claims Bd., 62 Cal. Rptr. 3d 88 (Ct. App.

2007).

4

The court made numerous other rulings not relevant to this appeal,

including rulings on the availability of absolute and qualified immunity to

Butterworth. Butterworth took an interlocutory appeal on some of those

rulings, but that appeal has been dismissed, due to a settlement of Plain-

tiffs’ claims against Butterworth.

16098 TENNISON v. SANDERS

STANDARD OF REVIEW

The question of whether a defendant is entitled to absolute

immunity is a question of law reviewed de novo. Castaneda,

2008 WL 4426615, at *3. The appeal of a denial of summary

judgment based on qualified immunity similarly is reviewed

de novo. Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th

Cir. 2003). “We construe all facts in the light most favorable

to . . . the non-moving party, in deciding whether a dispute of

fact is material and thereby precludes summary judgment.”

Genzler, 410 F.3d at 636.

DISCUSSION

1. Duty of Police Officers versus Prosecutors

The Inspectors argue, first, that Brady imposes a duty on

prosecutors, but not on police officers, to disclose exculpatory

evidence. We reject the Inspectors’ argument. We have held

that

exculpatory evidence cannot be kept out of the hands

of the defense just because the prosecutor does not

have it, where an investigating agency does. That

would undermine Brady by allowing the investigat-

ing agency to prevent production by keeping a report

out of the prosecutor’s hands until the agency

decided the prosecutor ought to have it, and by

allowing the prosecutor to tell the investigators not

to give him certain materials unless he asked for

them.

United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004).

[1] The Inspectors’ position also is untenable in light of the

Supreme Court’s admonition that “Brady suppression occurs

when the government fails to turn over even evidence that is

‘known only to police investigators and not to the prosecu-

TENNISON v. SANDERS 16099

tor.’ ” Youngblood v. West Virginia, 547 U.S. 867, 869-70

(2006) (per curiam) (quoting Kyles v. Whitley, 514 U.S. 419,

438 (1995)); see also, e.g., Newsome v. McCabe, 256 F.3d

747, 752-53 (7th Cir. 2001) (stating that it was clearly estab-

lished in 1979 and 1980 that police could not withhold excul-

patory information about fingerprints and the conduct of a

lineup from prosecutors). We accordingly reject this argu-

ment.

2. Bad Faith

[2] The Inspectors also argue that Plaintiffs must establish

that the Inspectors acted in bad faith in order to establish

§ 1983 liability, citing Cunningham v. City of Wenatchee, 345

F.3d 802 (9th Cir. 2003). The district court properly rejected

this argument. “[T]he suppression by the prosecution of evi-

dence favorable to an accused upon request violates due pro-

cess where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady, 373 U.S. at 87 (emphasis added); see

also Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004) (stating

that “Brady has no good faith or inadvertence defense”).

[3] Further, the Inspectors’ reliance on Cunningham is mis-

placed. Cunningham did not involve a Brady claim, but a

claim under Arizona v. Youngblood, 488 U.S. 51 (1988), that

a police officer acted in bad faith when he failed to preserve

and gather exculpatory evidence. See Cunningham, 345 F.3d

at 812. The Supreme Court has distinguished a failure to dis-

close exculpatory evidence under Brady from the failure “to

preserve evidentiary material of which no more can be said

than that it could have been subjected to tests, the results of

which might have exonerated the defendant,” which does

require a showing of bad faith. Youngblood, 488 U.S. at 57.

Unlike in Cunningham, Plaintiffs allege that the Inspectors

violated Brady by failing to disclose material, exculpatory

evidence. The district court did not err in rejecting the Inspec-

16100 TENNISON v. SANDERS

tors’ argument that bad faith is required to establish a Brady

violation.

3. Smith’s Statements

The Inspectors contend that they are entitled to qualified

immunity with respect to their failure to disclose Smith’s

statements. They argue that Sanders discharged his duty by

placing his memo regarding her statements in his file because

Butterworth had access to the file, and that Plaintiffs “were

aware of the same ‘essential facts’ ” that Sanders learned from

Smith. They further contend that there are no disputes of

material fact regarding this claim, that they did not act in bad

faith, and that it was not clearly established that a police offi-

cer violates Brady by failing to take comprehensive interview

notes.

[4] Placing the notes regarding Smith’s statements in the

police file did not fulfill the Inspectors’ duty to disclose

exculpatory information to the prosecutor. Evidence that a

person, known to the officers, has told the officers that they

have arrested the wrong people, has identified the people

involved, including the shooter, and described the cars and the

chase in a manner consistent with the evidence, should not

have been buried in a file, but should have been made known

to the prosecutor. Moreover, Smith’s statements contradicted

the account of their key witness, and the notes included a

hand-drawn map of the incident, based on her statements.

The Inspectors cite Raley v. Ylst, 444 F.3d 1085 (9th Cir.),

amended by 470 F.3d 792 (9th Cir. 2006), cert. denied, 128

S. Ct. 59 (2007), for the proposition that Brady is not violated

where the defendant is aware of exculpatory evidence. Raley

is distinguishable from the instant case. The evidence alleg-

edly withheld in Raley was evidence contained in the petition-

er’s medical records from his pretrial confinement. We

reasoned that the petitioner “knew that he had made frequent

visits to medical personnel at the jail,” and “knew that he was

TENNISON v. SANDERS 16101

taking medication that they prescribed for him.” Raley, 470

F.3d at 804. Thus, in Raley, we concluded that “[t]hose facts

were sufficient to alert defense counsel to the probability that

the jail had created medical records relating to Petitioner.” Id.

A defendant’s awareness of his own medical history, how-

ever, is not analogous to Plaintiffs’ awareness that Smith

might have information helpful to their case. Tennison and

Goff had heard that Smith might have information about the

shooting, but, even at Tennison’s hearing on his new trial

motion, Adachi thought that her last name was White. Thus,

not only did defense counsel not even know Smith’s name,

but he certainly did not know the extent of the information

that Smith had given to Sanders. Smith contradicted Masina’s

account of where the chase started, gave the names of many

of the people involved, including Ricard, and exonerated Ten-

nison and Goff.

In United States v. Howell, 231 F.3d 615 (9th Cir. 2000),

the government argued that its failure to notify defense coun-

sel of errors in police reports before trial was not a Brady vio-

lation because the defendant “knew the truth and could have

informed his counsel.” Id. at 625. We held that “[t]he avail-

ability of particular statements through the defendant himself

does not negate the government’s duty to disclose.” Id.

Defendants “cannot always remember all of the relevant facts

or realize the legal importance of certain occurrences. Conse-

quently, ‘[d]efense counsel is entitled to plan his trial strategy

on the basis of full disclosure by the government . . . .” Id.

(citation omitted).

[5] Even if Goff had heard that Smith had information

about the murder, this knowledge is not the same as Smith’s

extensive statements to the police. We agree with the reason-

ing of the Seventh Circuit, which rejected “as untenable a

broad rule that any information possessed by a defense wit-

ness must be considered available to the defense for Brady

purposes.” Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001).

16102 TENNISON v. SANDERS

The court reasoned that “it is simply not true that a reasonably

diligent defense counsel will always be able to extract all the

favorable evidence a defense witness possesses. Sometimes,

a defense witness may be uncooperative or reluctant.” Id. This

is precisely the situation that Plaintiffs confronted in the

instant case. Although both Tennison and Goff informally

asked Smith to help them, she was unwilling to become

involved because she was afraid, and because she did not

want to have to testify at the trial. For the foregoing reasons,

we affirm the district court’s denial of summary judgment to

the Inspectors with respect to Smith’s statements.5

4. 1990 Ricard Confession

The Inspectors argue that they are entitled to both absolute

and qualified immunity with respect to the 1990 Ricard con-

fession. The Inspectors argue that they are entitled to absolute

immunity because they were not engaged in police-type

investigative work but were acting in an advocacy role.

[6] Preliminarily, we have some doubt that investigative

law enforcement officers would ever be entitled to absolute

immunity. Because, however, of the Supreme Court’s teach-

ing that “in determining [absolute] immunity, we examine

‘the nature of the function performed, not the identity of the

actor who performed it,’ ” Kalina v. Fletcher, 522 U.S. 118,

127 (1997) (quoting Forrester v. White, 484 U.S. 219, 229

(1988)), we nonetheless analyze this contention on the

assumption that the application of absolute immunity is not

barred as a matter of law.

5

We also reject the Inspectors’ argument that the failure to take compre-

hensive notes does not constitute a Brady violation. The Brady claim is

not founded on Sanders’ failure to take comprehensive notes. Rather, it is

clear that Smith gave Sanders extensive information regarding the murder,

including information that contradicted the account of their key witness.

The failure to disclose any of this information, including the fact that

Smith had come forward at all, is the Brady violation.

TENNISON v. SANDERS 16103

[7] First, the Inspectors are not officers of the court, as are

lawyers acting as prosecutors. Because they were not acting

as prosecutors, or even directly assisting Butterworth in the

presentation of evidence, they were not “performing the tradi-

tional functions of an advocate.” Id. at 131. Because the pur-

pose of absolute immunity is to protect the judicial process,

rather than any actor in the process, “[t]o qualify as advocacy,

an act must be ‘intimately associated with the judicial phase

of the criminal process.’ ” Genzler, 410 F.3d at 637 (quoting

Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Here, with

respect to the Inspectors’ actions and duties, there is no evi-

dence in the record that the Inspectors ever engaged in con-

duct “ ‘intimately associated with the judicial phase of the

criminal process.’ ” Id. Their claim of absolute immunity

accordingly is rejected. Even if the Ricard confession was

obtained by Lewis and Gittens, rather than Sanders and Hen-

drix, this does not transform the Inspectors’ role into that of

an advocate, rather than that of an investigator.

[8] The Inspectors also argue that they are entitled to quali-

fied immunity. The threshold question in determining whether

an official is entitled to qualified immunity is whether the

alleged facts, taken in the light most favorable to the party

asserting the injury, show that the conduct violated a constitu-

tional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).

If no constitutional right would have been violated

were the allegations established, there is no necessity

for further inquiries concerning qualified immunity.

On the other hand, if a violation could be made out

on a favorable view of the parties’ submissions, the

next, sequential step is to ask whether the right was

clearly established. . . . The relevant, dispositive

inquiry in determining whether a right is clearly

established is whether it would be clear to a reason-

able [official] that his conduct was unlawful in the

situation he confronted.

16104 TENNISON v. SANDERS

Id. at 201-02; see also Scott v. Harris, 127 S. Ct. 1769, 1774

(2007).

[9] There is no question that a constitutional right has been

violated if a prosecutor fails to disclose exculpatory evidence

to a defendant during the course of the prosecution. See

Brady, 373 U.S. at 87; see also United States v. Bagley, 473

U.S. 667, 675 (1985) (stating that the Brady rule requires the

prosecutor “to disclose evidence favorable to the accused that,

if suppressed, would deprive the defendant of a fair trial”);

Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006) (“The ani-

mating purpose of Brady is to preserve the fairness of crimi-

nal trials.”), cert. denied, 127 S. Ct. 957 (2007).

The Inspectors argue that there was no Brady violation

because the tape eventually was disclosed. They further argue

that the failure to disclose the tape was not prejudicial because

Tennison received the tape in time to use it at the hearing on

his motion for a new trial. The district court rejected this argu-

ment, adopting the reasoning in its August 2003 order grant-

ing Tennison’s habeas petition, which carefully explained

why the delay in disclosing the Ricard confession was preju-

dicial to Tennison’s motion for a new trial. The court pointed

out that the focus of the new trial motion was the “unauthenti-

cated and therefore inadmissible videotape of a hooded,

unidentified person confessing to the shooting,” and that, at

the time of the evidentiary hearing on the motion, the prose-

cution had not disclosed to Tennison “Smith’s statements to

the police and Sanders’ reliance on her information in the

Blue interview.” Tennison v. Henry, No. CV 98-3842 (N.D.

Cal. Aug. 26, 2003) (Order Granting Tennison’s Habeas Pet.,

at 100). The court reasoned that the judge who denied the new

trial motion found that Ricard’s testimony was inconsistent

and uncorroborated, but the judge did not know that Ricard’s

testimony in fact was corroborated. Id. at 100-01. The district

court reasoned that Goff was prejudiced by the delay in the

disclosure of the Ricard confession because he could have

made use of it in his state appeals and habeas petitions.

TENNISON v. SANDERS 16105

[10] It is true that a Brady violation “may be cured . . . by

belated disclosure of evidence, so long as the disclosure

occurs ‘at a time when disclosure would be of value to the

accused.’ ” United States v. Gamez-Orduno, 235 F.3d 453,

461 (9th Cir. 2000) (quoting United States v. Span, 970 F.2d

573, 583 (9th Cir. 1992)). However, Tennison did not learn

about the tape until the second to the last day of the hearing

on his motion for a new trial, much too late for the disclosure

to be of value to him. We agree with the district court’s sound

reasoning that Tennison was prejudiced by the delay in the

disclosure of the confession.

Similar to their argument regarding Smith’s statement, the

Inspectors argue that there was no Brady violation in their

failure to disclose the Ricard confession because Tennison

and Goff knew that Ricard had bragged about his involvement

in the shooting. Goff’s overhearing Ricard bragging in the

neighborhood, however, is not comparable to Ricard’s Miran-

dized confession to police. Further, similar to Smith, Ricard

was hesitant to become involved in the case, for obvious rea-

sons.

The Inspectors argue that, even if a constitutional right was

violated, such a constitutional right was not clearly estab-

lished in 1990. The Inspectors, however, define the right too

narrowly. They argue that they did not have a duty to disclose

a confession that was made after a guilty verdict was ren-

dered, that was “inherently unbelievable,” and that was given

by someone who earlier had denied involvement in the mur-

der. “For a legal principle to be clearly established, it is not

necessary that ‘the very action in question has previously

been held unlawful.’ ” Fogel v. Collins, 531 F.3d 824, 833

(9th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). Rather, “[t]he dispositive inquiry is ‘whether it

would be clear to a reasonable [official] that his conduct was

unlawful in the situation he confronted.’ ” CarePartners, LLC

v. Lashway, 545 F.3d 867, 883 (9th Cir. 2008) (quoting Sau-

cier, 533 U.S. at 202) (second brackets in the original).

16106 TENNISON v. SANDERS

[11] The Inspectors received a Mirandized confession by

someone who had been named by a reliable witness, known

to the officers, who recounted events surrounding the murder

in detail, and whose account contradicted that of the prosecu-

tion’s witnesses. The evidence certainly “undermines confi-

dence in the outcome of the trial.” Benn v. Lambert, 283 F.3d

1040, 1053 (9th Cir. 2002). Thus, it would have been clear to

a reasonable officer that such material should have been dis-

closed to the defense. See Barker v. Fleming, 423 F.3d 1085,

1095 (9th Cir. 2005) (“It is well settled that evidence

impeaching the testimony of a government witness falls

within the Brady rule . . . .”), cert. denied, 547 U.S. 1138

(2006).

Moreover, we reject the Inspectors’ attempt to dismiss their

Brady duty by downplaying the importance of the evidence.

“[I]f there were questions about the reliability of the exculpa-

tory information, it was the prerogative of the defendant and

his counsel — and not of the prosecution — to exercise judg-

ment in determining whether the defendant should make use

of it,” because “[t]o allow otherwise would be to appoint the

fox as henhouse guard.” DiSimone v. Phillips, 461 F.3d 181,

195 (2d Cir. 2006).

[12] The fact that the Inspectors received the tape of the

confession after the guilty verdict was rendered is immaterial

because the record discloses that they received the tape while

they were still involved in the new trial and post-conviction

proceedings for both Tennison and Goff. See Broam v. Bogan,

320 F.3d 1023, 1030 (9th Cir. 2003) (“A prosecutor’s deci-

sion not to preserve or turn over exculpatory material before

trial, during trial, or after conviction is a violation of due pro-

cess under [Brady].”); Leka v. Portuondo, 257 F.3d 89, 100

(2d Cir. 2001) (stating that “Brady requires disclosure of

information that the prosecution acquires during the trial

itself, or even afterward”); Smith v. Roberts, 115 F.3d 818,

820 (10th Cir. 1997) (agreeing with the State’s concession

that the Brady “duty to disclose is ongoing and extends to all

TENNISON v. SANDERS 16107

stages of the judicial process,” where the evidence arose after

trial but during direct appeal). The inconsistencies and contra-

dictory statements in Hendrix’s and Sanders’ 2001 and 2005

declarations and depositions, especially seen in light of the

declarations of Butterworth and Melton, establish that genuine

issues of material fact remain as to this claim.6 The district

court did not err in denying the Inspectors’ motion for sum-

mary judgment with respect to the Ricard confession.

5. SWP Request

The Inspectors argue that they are entitled to qualified

immunity with respect to the claim regarding the SWP

request. They argue that the evidence is undisputed that no

reward was ever offered or paid to any witness. They further

argue that, even if the SWP request was exculpatory, they dis-

closed the request by placing it in their file, which was avail-

able to Butterworth. Finally, they contend that, even if the

Plaintiffs had been aware of the request, it would not have

affected the outcome of the case.

There is no merit to the Inspectors’ argument that the evi-

dence regarding a reward is undisputed. One need look only

at the differing declarations put forth by the parties’ respec-

tive experts regarding the tape of the April 23, 1990, tele-

6

Lewis stated in his May 2005 deposition that he talked to Hendrix

about the Ricard confession the day after the Ricard interview, in Novem-

ber 1990. In a January 2005 deposition, Hendrix stated that he did not lis-

ten to the confession and did not tell Butterworth about the tape, but, by

contrast, in a June 2005 declaration, he stated that he first learned of the

tape from Sanders, who, in turn, learned about the tape from Butterworth.

In a December 2001 deposition, Sanders stated that he received the tape

of the confession a day or two after it was taken, but, in a June 2005 decla-

ration, he stated that he learned about the confession from Butterworth in

May 1991. Butterworth stated that he learned about the confession in May

1991, and he stated that he immediately notified defense counsel of the

tape. However, Melton stated that he was never informed of the confes-

sion. The numerous contradictions indicate the existence of genuine issues

of material fact that preclude summary judgment.

16108 TENNISON v. SANDERS

phone call from Hendrix to Masina. The district court

correctly concluded that disputed issues of fact precluded the

grant of summary judgment. See Johnson v. Jones, 515 U.S.

304, 313 (1995) (holding that a district court’s “determination

that the summary judgment record . . . raised a genuine issue

of fact” was not subject to interlocutory appeal on qualified

immunity grounds); KRL v. Estate of Moore, 512 F.3d 1184,

1188-89 (9th Cir. 2008) (“Our jurisdiction is limited to ques-

tions of law, and does not extend to qualified immunity

claims involving disputed issues of fact.”).

[13] The Inspectors’ placement of the request in their file

does not satisfy their obligation to disclose evidence to But-

terworth. Masina was their key witness, so any evidence of a

reward paid to her should have been made known to the pros-

ecutor. In fact, in a June 16, 2005, deposition, Officer Morris

Tabak testified that the SFPD is required to turn over all

information relevant to a case to the district attorney’s office,

whose duty it is to then determine whether to disclose the

information to defense counsel.

[14] If Masina had indeed been offered a reward for her

testimony against Tennison and Goff, Plaintiffs should have

been made aware of this fact. We accordingly reject the

Inspectors’ argument that it would have had no effect on the

outcome of the case. The offer of a reward to a key witness

is material impeachment evidence that should have been dis-

closed. See Barker, 423 F.3d at 1095 (citing Bagley, 473 U.S.

at 683, for the proposition that evidence that a witness

received an inducement from the prosecution to testify is evi-

dence favorable to the accused); Benn, 283 F.3d at 1057

(“The Brady rule requires prosecutors to disclose any benefits

that are given to a government informant . . . .”); cf. Reynoso

v. Giurbino, 462 F.3d 1099, 1112-13 (9th Cir. 2006) (con-

cluding that trial counsel’s failure to investigate a reward

offered to witnesses rendered her performance deficient and

“cannot under any theory be deemed a sound trial strategy”).

TENNISON v. SANDERS 16109

The district court’s denial of the Inspectors’ motion for sum-

mary judgment with respect to the SWP request is affirmed.

CONCLUSION

The district court’s denial of the Inspectors’ summary judg-

ment motion is affirmed.7 Plaintiffs-appellees shall recover

their costs on appeal from defendants-appellants.

AFFIRMED and REMANDED.

7

The Inspectors also argue that, in the § 1983 context, the court must

examine the effect of each piece of evidence rather than the cumulative

effect of all evidence. The district court carefully examined each piece of

evidence and the circumstances surrounding the withholding of each piece

separately. It also distinguished among the state actors in its consideration

of § 1983 liability. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)

(“The inquiry into causation must be individualized and focus on the

duties and responsibilities of each individual defendant whose acts or

omissions are alleged to have caused a constitutional deprivation.”).