Petition for Writ of Certiorari — McSherry v. City of Long Beach
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Supreme Court, U.S.
Supren ILED
NA 9 91284 — APR 20 2010
OFFICE OF THE CLERK
Su The
Supreme Court of the United States
e
LEONARD JAMES McSHERRY,
Petitioner,
V.
CITY OF LONG BEACH; LONG BEACH POLICE
DEPARTMENT; NORMAN TURLEY AND
CARTHEL S. ROBERSON, IN ‘THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES,
Respondents.
On Petition For A Writ Of Certiorari
To The Ninth Circuit Court Of Appeals
— fee
PETITION FOR A WRIT OF CERTIORARI
MARK E. OVERLAND
LAW OFFICES OF
MARK E. OVERLAND
100 Wilshire, Ste. 950
Santa Monica, CA 90401
Telephone: (310) 459-2830
Fax: (310) 459-4621
email: mark@overlaw.net
Attorney for Petitioner
Leonard James McSherry
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Despite a conflict in circuit authority, does Malley
v. Briggs, 475 U.S. 335 (1986), mandate that
summary judgment be granted to a defendant
police officer who fabricated evidence to implicate
an innocent man, on the ground that a prose-
cutor’s decision to file criminal charges against
an innocent suspect is an independent cause that
insulates the officer from 42 U.S.C. §1983 habil-
ity for the resulting wrongful criminal conviction
and 14-year imprisonment, where the prosecutor
had no knowledge of the officer’s unconstitutional
conduct?
Despite a conflict in circuit authority, does
Briscoe v. LaHue, 460 U.S. 325 (1983), which
granted absolute immunity to police officers for
trial perjury, mandate summary judgment in
favor of a 42 U.S.C. §1983 defendant police officer
for his highly prejudicial, perjured trial testimo-
ny where the officer was functionally equivalent
to a “complaining witness,” in light of Malley v.
Briggs, 475 U.S. 335 (1986)?
Despite a conflict in circuit authority, does the
rule of Hartman v. Moore, 547 U.S. 250 (2006),
that, in order to avoid summary judgment, a
retaliatory prosecution plaintiff must establish
absence of probable cause for arrest and prose-
cution in order to prevail, apply to section 1983
claims based on Fourth Amendment and Due
Process violations?
ll
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .....0..............cceeseeeceeees i
OPINION BELOW ......csccccesccssacssesennepusnaeeeeeeeeeeeee ]
JURISDICTION .......0<cseecexsesssssunsueserseeea ]
RELEVANT CONSTITUTIONAL AND STATU-
TORY PROVISIONS ...<<<<scessesessarsensenssaseneeaee ]
STATEMENT OF THE CASE.......................0ececeeees 3
Factual Background..........::<....:61e 3
PROCEEDINGS BELOW ..........ssu0eee
WHY CERTIORARI SHOULD BE GRANTED.... 7
ARGUMENT ........<¢+0:<+0s0c«ssseeu tein niin 1]
I. 42 U.S.C. §1983 DOES NOT SHIELD A
CULPABLE DEFENDANT OFFICER FROM
LIABILITY FOR RESULTING DAMAGES
AFTER THE PROSECUTOR FILES FOR-
MAL CHARGES BASED ON THE UNCON-
STITUTIONAL ACTS OF THE OFFICER,
WHERE THE PROSECUTOR IS UN-
AWARE OF THESE ACTS AND THE OF-
FICER DOES NOT DISCLOSE THEM......
If. POLICE OFFICERS WHO ACT AS COM-
PLAINING WITNESSES ARE NOT EN-
TITLED TO ABSOLUTE IMMUNITY FOR
PERJURED TRIAL TESTIMONY..............
11
11]
TABLE OF CONTENTS — Continued
Page
Il. THE RULE OF HARTMAN v. MOORE
SHOULD BE LIMITED TO RETALIA-
TORY PROSECUTION CLAIMS AND NOT
BE APPLICABLE .TO 42 U.S.C. §1983
CLAIMS BASED ON THE FIFTH AMEND-
Arad ca seve; shai edadyeaiueevanavsasasbesspins> 20
A. Even If Hartman Were Applicable To
This Case Respondent Is Not Entitled
To Summary Judgment In His Favor
Where He Manufactured The Probable
ND RE ey avsccdsausecssecssexsdvonsaens 23
ds iss iuy evnaviadssevibestoeatensiues 27
APPENDIX
Order and Opinion of Court of Appeals dated
ccs suiccsnssvinsuecessunnvasesdvssavunersene App. 1
Opinion of Court of Appeals dated March 30,
ee irri AL ida dudantensuscsiexstebanivesesen App. 45
Judgment of District Court dated May 31,
eds aera daw uiweckinieaienbarsens App. 60
Amended Civil Minutes General of District
Court dated May 15, 2006 —- Summary Judg-
sora cs sacapacacadveiueicuenericnesens App. 62
Denial of Rehearing of Court of Appeals dated
ET OD aiciecrsisesscnicsadscsorsssenevecssnsiee App. 73
iV
TABLE OF AUTHORITIES
Page
EDERAL CASES
Anthony v. Baker, 767 F.2d 657 (10th Cir. 1985)......... 8
Anthony v. Baker, 955 F.2d 1395 (10th Cir.
PO oa ccnsasstecdsevnieuidei mie tiacsbasieress ae ene 17, 18, 19
Barlow v. Ground, 943 F.2d 1132 (9th Cir.
| f ARR EE oh Rp nena N MRED CAEN AURDRIS iA RENE RIE Ae APRA IE CE 25
Borunda v. Richmond, 885 F.2d 1384 (9th Cir.
2 | RRA etry Sener iene etree ett Ata RRR ey Ue? A AT ERS Stes orn Se RIE ene 25
Briscoe v. LaHue, 460 U.S. 325 (1988)............... passim
Buckley v. Fitzsimmons, 509 U.S. 259 (1993)............ 16
Buenrostro v. Collazo, 973 F.2d 39 (1st Cir.
| RR REED AN ae nt ee ae Race som Rene aE Recs onan eA RON 13
Burke v. McDonald, 572 F.3d 51 (1st Cir. 2009).......... 8
Curley v. Village of Suffern, 268 F.3d 65 (2d Cir.
BPE s caissnvecses tetassins ieee acredesnn ees cece eek 22
Dahl v. Holley, 312 F.3d 1228 (11th Cir. 2002).......... Py
DeLoach v. Bevers, 922 F.2d 618 (10th Cir.
| | RDN ES SERED Sen EROS SA Soe RRS TIO Nn cat ELA eae AORN oo y
Duncan v. Nelson, 466 F.2d 939 (7th Cir, 1972)....9, 13
Egervary v. Young, 366 F.3d 238 (3d Cir. 2004)......... 14
Enlow v. Tishomingo County, Miss., 962 F.2d
BPR Oe Aa ee ws ch vic eae cic san cco cerascccecssecevciss 18, 19
Garrity v. New Jersey, 385 U.S. 493 (1967)............... 14
Greene v. Barber, 310 F.3d 889 (6th Cir. 2002).......... 22
TABLE OF AUTHORITIES — Continued
Page
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553
Oe ee aac asc svacsunicuensan staves esixeursucsseuncariserias 26
Hand v. Gary, 838 F.2d 1420 (5th Cir. 1988)......8, 14, 26
Harris v. Roderick, 126 F.3d 1189 (9th Cir.
| ere ieiphviadtsdsesuineeactbccaestipee: (eviasadeaee 17,19
Hartman v. Moore, 547 U.S. 250 (2006) ............ passim
Hector v. Watt, 235 F.3d 154 (3d Cir. 2000) ........... 9,15
Jones v. City of Chicago, 856 F.2d 985 (7th Cir.
Os hs cn sag eu tig canis cis gvaseraachaydasicasntesatyihaacataaes 8, 26
Kalina v. Fletcher, 522 U.S. 118 (1997).......0..0..... 17,18
Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002) ......... 22
Kerman v. City of New York, 374 F.3d 93 (2d
We 0, eos n na lanascmn passe i meeantaveseacienyiel 8,12
Kulas v. Flores, 255 F.3d 780 (9th Cir. 2001)............. 17
Lanier v. Sallas, 777 F.2d 321 (5th Cir. 1985)........... 27
Malley v. Briggs, 475 U.S. 335 (1986)................ passim
McKinley v. City of Mansfield, 404 F.3d 418
NN ao eave wanna divckasseccaobarce piaveedies eee 8,14
McSherry v. City of Long Beach, 423 F.3d 1015
Cae cisa vse cc sy scccstusedecsk endieaeeebescv asta 7
McSherry v. City of Long Beach, 560 F.3d 1125
PN I oo cs cpeeacsaieessnariespenersnaanecaeerenane 7,15
McSherry v. City of Long Beach, 584 F.3d 1129
Se I Bal sync ta vactsnenuaptulexdteeneusseapevdeasansavelnanas 7
Monroe v. Pape, 365 U.S. 167 (1961) ......... ee 7,12
vl
TABLE OF AUTHORITIES — Continued
Page
Skoog v. County of Clackamas, 469 F.3d 1221
aos siuussenursdotentuneuavedeswassins 21
Smuiddy v. Varney, 665 F.2d 261 (9th Cir. 1981)....... 8, 25
Smiddy v. Varney, 803 F.2d 1469 (9th Cir. 1986)....... 8, 25
Smithson v. Aldrich, 235 F.3d 1058 (8th Cir.
seca ca sani veainbnsabutsenepesinnss 22
United States v. Crawford, 576 F.2d 794 (9th
Cir.), cert. denied, 439 U.S. 851 (1978)................... 24
Wagenmann v. Adams, 829 F.2d 196 (1st Cir.
a a hi vadavus¥euandnkartaavkacaes 26
Warner v. Orange County Dep’t of Probation,
116 F.3d 1068 (2d Cir. 1996).....................000 8, 13, 26
White v. Frank, 855 F.2d 956 (2d Cir. 1988)........ 19, 26
Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) ........ 8,12
FEDERAL STATUTES
NE occ canscosnencacconasoneencaccavececoouscanccesenssevs l
42 U5.C. $1983 .............. BEEN Ea ONE DOP eT passim
FEDERAL RULES
as can acuahevevasapecvevenevens takers 7
MISCELLANEOUS
United States Const. Amend. IV........................ 2,6, 10
United States Const. Amend. XIV .......................208- 2,6
PETITION FOR A WRIT OF CERTIORARI
Petitioner Leonard James McSherry respectfully
petitions for a writ of certiorari to the Ninth Circuit
Court of Appeals.
OPINION BELOW
The opinion of the Ninth Circuit Court of Appeals
is published at 584 F.3d 1129 (2009). App. 1. The
relevant trial court proceedings and summary judg-
ment order are unpublished.
*
JURISDICTION
The Ninth Circuit denied rehearing and rehear-
ing en banc on January 20, 2010. App. 73. The juris-
diction of this Court is invoked under 28 U.S.C.
§1254(1).
RELEVANT CONSTITUTIONAL
AND STATUTORY PROVISIONS
42 U.S.C. §1983 provides:
“Every person who, under color of any stat-
ute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
2
deprivation of any rights, privileges, or im-
munities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress, except that in
any action brought against a judicial officer
for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was
violated or declaratory relief was unavail-
able. For the purposes of this section, any Act
of Congress applicable exclusively to the
District of Columbia shall be considered to be
a statute of the District of Columbia.”
United States Const. Amend. IV provides in rel-
evant part:
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated.” |
United States Const. Amend. XIV provides in rel-
evant part:
“No State shall make or enforce any law
which shall abridge the privileges or im-
munities of citizens of the United States; nor
shall any State deprive any person of life,
liberty, or property, without due process of
law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
.
STATEMENT OF THE CASE
Factual Background
On March 11, 1988, a six-year-old girl was kid-
napped from a playground on a Naval Base in Long
Beach, California. The perpetrator took her to a loca-
tion where he raped her before releasing her several
hours later.
When the victim was located on March 12, she
told the patrol officers who initially interviewed her
she was taken by the perpetrator to a smal! place
with two rooms that was white on the outside with
the numbers “1” and “O” on the door. She described
the kidnapper as a white male with black hair and
mustache, short, fat and older than her grandfather.
She stated he forced her to get into a green, “strange
car.” That same day, the victim’s four-year-old
brother, who witnessed the abduction, reported to
officers that his sister had gotten into a green car
with a man who was “red in color” and had black hair.
Shortly thereafter, Respondents Norman Turley
and his supervisor, Carthel Roberson, members of the
Long Beach Police Department, drove the victim
around Long Beach for approximately one hour trying
to find the location of the rape. The victim told them
the place was either brown or had a brown door, had
stairs, was upstairs, and had a TV, a bedroom with no
pictures on the wall.
On March 14, 1988, a witness described a sus-
picious looking man near the playground around the
time that the victim was abducted. She described the
man as white, 35+ years old, 5'7" to 5'9" and “heavy,”
with dark brown to black hair, mustache, heavy black
eyebrows and a chubby pock-marked face. She no-
ticed a green pickup truck, which she had not seen
before, in the area.
Petitioner did not fit the physical descriptions
given by any of the witnesses, nor did he have access
to any location described by the victim. At the time,
Petitioner drove a yellow station wagon.
On May 17, 1988, Respondent Turley arrested
Petitioner at his grandparent’s home, where he had
been living in March 1988. The home was a blue,
single family, one-story dwelling, numbered 829, with
a kitchen, several bedrooms, blue sheets on the bed
and pictures on the walls in Petitioner’s room. Fol-
lowing the arrest, Petitioner was interrogated by
Turley and Roberson and gave a detailed description
of the interior of his grandparents’ home.
At Petitioner’s criminal trial, the victim had little
recollection of the relevant events and did not testify
about them. Instead, Respondent Turley testified
about the victim’s photo identifications of Petitioner,
the yellow vehicle and the detailed description of the
rape location allegedly given by the victim on May 18,
1988, the day after Petitioner gave a detailed de-
scription of the interior of the home in which he
resided to Turley. Thus, the evidence which, according
to the state trial court, compelled the guilty verdict,
came not from the victim, but from Turley.’
Petitioner was convicted after jury trial in
October 1988 and sentenced to state prison for a term
of 48 years to life.
In December 2001, nearly fourteen years into his
sentence, Petitioner was exonerated by DNA evi-
dence. The DNA revealed that a then state prison
inmate had kidnapped and raped the victim. He later
According to Turley’s trial testimony, the victim described
a picture on a wall, blue sheets on a bed with a white blanket, a
black chair near a mirror, the location of a T.V., a white, push-
button telephone, a fold-up door, a big window with a seat and a
bird singing next door. This detailed description matched the in-
terior of Petitioner’s grandparents’ hor..e at which he was arrested
Turley also testified that the victim identified a photo of Peti-
tioner’s grandparents’ house as that where she had been raped.
The prosecutor focused on this evidence in his argument to
the jury:
“How could anybody talk about [the] house like that?
She must have been in the house. How did she know
labout the} blue sheets?
Do you think that that gives credence and credibility
to [the victim]? You bet. .. .
That she is able to describe the inside of a house. This
is an unimaginable coincidence.”
In denying Petiiioner’s motion for new trial, the state
criminal trial judge remarked that the most convincing prose-
cution evidence was the victim’s description of the interior of
Petitioner’s grandparents’ home.
“That bedspread stands out in my mind... . Her testi
mony weighed very heavily in how I felt about the
rightness of the jury’s verdict.”
6
confessed to the crimes using his green pickup truck
and taking her to a motel where he committed the
rape.
On December 28, 2001, Petitioner was released
from prison pursuant to a writ of habeas corpus
issued by the Los Angeles Superior Court. The state
court vacated the judgment, set aside his October
1988 conviction, dismissed all charges and declared
him factually innocent of the charges.
In May 2002, Petitioner brought suit under 42
U.S.C. §1983, alleging: (1) Fourteenth Amendment
due process violations for unconstitutional police inter-
view procedures; (2) Fourth and Fourteenth Amend-
ment false arrest claims based on false witness
identifications; (3) failure to train and supervise;
(4) negligent hiring; and (5) supervisory liability,
seeking damages against the City of Long Beach and
the two Respondent Long Beach police officers. The
claims were based on Turley and Roberson’s (1) fab-
ricating the victim’s identification of the vehicle used
in the kidnapping; (2) fabricating the victim’s detailed
description of the interior of the home where the rape
occurred; (3) coercing the six-year-old victim’s identifi-
cation of McSherry as the perpetrator; (4) ignoring
exculpatory evidence; and, (5) arresting Petitioner
without probable cause. In sum, Petitioner alleged
that Turley and Roberson had arrested and pursued
prosecution of McSherry, based on evidence they
fabricated, knowing he was innocent.
— -¢@
PROCEEDINGS BELOW
In October 2003, on the first day scheduled for
trial, the district court granted Respondents’ Motion
for Judgment as a Matter of Law under Fed.R.Civ.P.
50, on the ground of qualified immunity. Petitioner
appealed. The Ninth Circuit reversed. McSherry
v. City of Long Beach, 423 F.3d 1015, 1021 (9th Cir.
2005) (“McSherry 1”).
Following remand, the district court granted
summary judgment in favor of all Defendants on the
ground of qualified immunity. Following appeal, the
Ninth Circuit again reversed. McSherry v. City of
Long Beach, 560 F.3d 1125 (9th Cir. 2009) (“McSherry
II”). App. 45. Thereafter, rehearing was granted and
the Court of Appeals withdrew its opinion in
McSherry Il and affirmed the district court’s grant of
summary judgment in its entirety. McSherry v. City of
Long Beach, 584 F.3d 1129 (2009) (“McSherry IIT”).
App. 1. Petitioner’s petition for rehearing and re-
hearing en banc was denied, App. 73.
¢-—
WHY CERTIORARI SHOULD BE GRANTED
1. Malley v. Briggs, 475 U.S. 335, 345 n.7
(1986), citing Monroe v. Pape, 365 U.S. 167, 187
(1961), is the only case where this Court has men-
tioned the applicability of the common law super-
seding cause principle on the causation requirement
of 42 U.S.C. §1983. In a somewhat cryptic footnote,
this Court indicated its interpretation of section 1983
8
would not allow for judicial action to break the chain
of causation between an officer’s unlawful conduct
and resulting damages because Ҥ1985 should be read
against the background of tort liability that makes a
man responsible for the natural consequences of his
actions.”
Several circuits apply Malley’s common law
principle of natural consequences or foreseeability in
analyzing the effect of an independent, intervening
cause. See Kerman v. City of New York, 374 F.3d 98,
126 (2d Cir. 2004); Zahrey v. Coffey, 221 F.3d 342, 352
(2d Cir. 2000); Warner v. Orange County Dep’t of Pro-
bation, 115 F.3d 1068, 1072-73 (2d Cir. 1996). Other
circuits have found an independent intervening cause
where no facts have been withheld from the allegedly
independent cause. See Hand v. Gary, 838 F.2d 1420,
1427-28 (5th Cir. 1988); McKinley v. City of Mans-
field, 404 F.3d 418 (6th Cir. 2005). Still other circuits,
including the Ninth, have created a presumption that
section 1983 officer defendants are not liable for their
unconstitutional acts causing damages to an arrested
person after a district attorney uses independent
judgment to file formal charges. Smiddy v. Varney,
665 F.2d 261, 267 (9th Cir. 1981) (““Smiddy [”). This
presumption of independent judgment may be re-
butted if the prosecutor’s judgment is not based on all
information relevant to the initiation of the prosecu-
tion. Burke v. McDonald, 572 F.3d 51, 58 (1st Cir.
2009); Jones v. City of Chicago, 856 F.2d 985, 994 (7th
Cir. 1988); Anthony v. Baker, 767 F.2d 657, 660 (10th
Cir. 1985); Smiddy v. Varney, 803 F.2d 1469, 1471
9
(9th Cir. 1986) (““Smiddy II”). Some Circuits apply a
more stringent test to determine whether the causal
chain remains unbroken when there is another con-
tributing cause to the section 1983 plaintiff’s dam-
ages. See Duncan v. Nelson, 466 F.2d 939, 943 (7th
Cir. 1972). Finally, some courts avoid the issue alto-
gether because of the lack of clarity regarding the
applicability of the common law principle of supersed-
ing causation to section 1983. See Hector v. Watt, 235
F.3d 154, 161 (3d Cir. 2000).
This case allows this Court to resolve the conflict
between the circuits regarding the effect of the prose-
cutor’s filing decision on the liability of the officer for
his unconstitutional conduct, where the prosecutor
did not know the evidence on which he was relying
was fabricated.
Is there a presumption the prosecutor’s decision
to file charges breaks the chain of causation for an
officer’s unconstitutional conduct and, if so, can the
prosecutor’s decision to file charges be the result of
independent judgment and insulate the section 1983
defendant officer from further responsibility for dam-
ages, even though the prosecutor is unaware the officer
seeking charges fabricated evidence and _ provided
perjured testimony in order to convict and imprison the
section 1983 plaintiff? Is there no such presumption
and does the common law tort principle of foresee-
ability determine whether an intervening cause can in-
sulate the offending officer from section 1983 liability?
2. In Briscoe v. LaHue, 460 U.S. 325 (1983), this
Court granted absolute immunity to police officers for
10
perjured trial testimony. In Malley v. Briggs, 475 U.S.
335, 340 (1986), absolute immunity was held unavail-
‘
able to testifying officers who acted as “complaining
witnesses” in applying for arrest warrants.
The unfounded criminal prosecution and convic-
tion of Petitioner was based on the unconstitutional
conduct by Respondent Turley, who manufactured
probable cause for McSherry’s arrest, manipulated
and coerced the six-year-old victim to allegedly make
a false identification, fabricated evidence and testi-
fied falsely at Petitioner’s trial. Turley thus was re-
sponsible for initiating the prosecution and obtaining
the conviction of Petitioner. This Court should grant
certiorari to determine the applicability of Malley to
Briscoe.
3. This Court’s decision in Hartman v. Moore,
547 U.S. 250 (2006), has been interpreted by the
Ninth Circuit as requiring that in all claims under
42 U.S.C. §1983, including those based on Fourth
Amendment and Due Process grounds, the plaintiff
must establish the absence of probable cause for
arrest and prosecution in order to prevail. This case
allows the Court to resolve a conflict between the
circuits on whether Hartman is applicable to claims
other than those based on First Amendment retali-
atory prosecution. Additionally, if this Court should
find the rule of Hartman is so applicable, should it be
interpreted to entitle a defendant police officer to
summary judgment on his behalf where he manufac-
tures probable cause for arrest to inculpate the know-
ingly innocent section 1983 plaintiff, and thereafter
1]
gives perjured testimony at the plaintiff’s criminal
trial, causing his wrongful conviction and 14-year
imprisonment?
ARGUMENT
I. 42 U.S.C. §1983 DOES NOT SHIELD A
CULPABLE DEFENDANT OFFICER FROM
LIABILITY FOR RESULTING DAMAGES
AFTER THE PROSECUTOR FILES FOR-
MAL CHARGES BASED ON THE UNCON-
STITUTIONAL ACTS OF THE OFFICER,
WHERE THE PROSECUTOR IS UNAWARE
OF THESE ACTS AND THE OFFICER
DOES NOT DISCLOSE THEM.
Here, Turley fabricated and presented evidence
to an unaware prosecutor, without disclosing the
fabrication to him. Nevertheless, the district court
granted summary judgment against Petitioner on the
ground that the prosecutor’s filing decision broke the
causal connection between Turley’s unconstitutional
conduct and Petitioner’s wrongful conviction and
imprisonment. The Circuit Court did so on summary
judgment, after Petitioner raised a triable issue that
the prosecutor did not know the evidence presented to
him as the basis for the criminal filing was fabricated
and in fact, relied on the fabricated evidence in
making the filing decision.
In Malley v. Briggs, 475 U.S. 335, 345 n. 7 (1986),
this Court stated it would reject the argument that a
section 1983 defendant police officer would not be
12
liable for damages caused by his misconduct in seek-
ing an arrest warrant because the judge’s decision to
issue the warrant breaks the causal chain between
the officer’s application for the warrant and an un-
lawful arrest. Citing Monroe v. Pape, 365 U.S. 167
(1961), this Court stated section 1983 “should be read
against the background of tort liability that makes a
man responsible for the natural consequences of his
actions. Since the common law recognized the causal
link between the submission of a complaint and an
ensuing arrest, we read §1983 as recognizing the
same causal link.” (Internal quotations omitted).
This footnote has resulted in conflicting Circuit
opinions concerning the applicability of common law
intervening cause principles to the causation require-
ments of section 1983.
Some circuits have interpreted this Court’s Malley
footnote as incorporating into section 1983, the “nat-
ural and probable consequences” tort principle of
causation. For example, in Kerman v. City of New
York, 374 F.3d 93, 126 (2d Cir. 2004), the court held
a police officer could be liable for plaintiff’s loss of
liberty after the plaintiff was sent to a mental hos-
pital because of an officer’s wrongful conduct, even
though the plaintiff’s subsequent detention in the
hospital resulted from the independent judgment of
the physicians. The court stated: “Tort defendants, in-
cluding those sued under §1983, are responsible for
the natural consequences of their actions.” In Zahrey
v. Coffey, 221 F.3d 342, 352 (2d Cir. 2000), the Court
stated “it is not readily apparent why the chain of
13
causation should be considered broken where the
initial wrongdoer can reasonably foresee that his mis-
conduct will contribute to an ‘independent’ decision
that results in a deprivation of liberty.” In Warner v.
Orange County Dep’t of Probation, 115 F.3d 1068,
1072-73 (2d Cir. 1996), the appeals court concluded
that a sentencing judge’s adoption of a probation
officers’ wrongful recommendation was entirely fore-
seeable; therefore, the judge’s decision did not break
the chain of causation with respect to the probation
officers’ liability under section 1983. In Buenrostro v.
Collazo, 973 F.2d 39, 45 (1st Cir. 1992), the Court of
Appeals citing Malley, held this Court “has made it
crystal clear that principles of causation borrowed
from tort law” apply to constitutional terts, and a jury
“could conceivably find a causal nexus between [an]
unlawful arrest and [a] consequent imprisonment,”
even after an independent magistrate determined
there was probable cause to detain the plaintiff.
At least one circuit court applies a more stringent
test to determine whether the causal chain remains
unbroken when there is another contributing cause to
the section 1983 plaintiff’s damages. Duncan v. Nel-
son, 466 F.2d 939, 943 (7th Cir. 1972), held no section
1983 cause of action exists for violation of Fifth
Amendment rights resulting from admission into
evidence at trial of a coerced confession, since the
officers did not proximately cause the violation.
Some circuits note that “the chain of causation is
broken only where all the facts are presented to the
grand jury, or other independent intermediary, where
the malicious motive of the law enforcement officials
14
does not lead them to withhold any relevant informa-
tion from the independent intermediary.” Hand uv.
Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988). In
McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir.
2005), the defendant officer, in violation of the 5th
Amendment rule of Garrity v. New Jersey, 385 U.S.
493 (1967), compelled the section 1983 plaintiff to in-
criminate himself during an internal police investiga-
tion. The officer, like Respondents here, then turned
the statements over to the prosecutor, who filed for-
mal criminal charges against the section 1983 plain-
tiff and used the officer as a witness to introduce the
statements at the criminal trial. The McKinley court
held the damages resulting from the introduction of
the statements at trial were the natural and probable
consequences of the officer’s constitutional depriva-
tion. Id. at 438. The Court of Appeals suggested “[a]
police officer may defend on the grounds that he
attempted to prevent the use of the allegedly incrim-
inating statements at trial, or that he never turned
the statements over to the prosecutor in the first
place.” Id. The Court of Appeals in Egervary v. Young,
366 F.3d 238, 248 (3d Cir. 2004), held a legally
erroneous ruling under the International Child Ab-
duction Remedies Act authorizing seizure and re-
moval of plaintiff’s child without notice was an
intervening superseding cause of the plaintiff’s
injuries precluding a Bivens claim against State De-
partment officials. “(T]o the extent that the common
law recognized the causal link between a complaint
and the ensuing arrest, it was in the situation where
‘misdirection’ by omission or commission perpetuated
the original wrongful behavior.”
15
This conflict in the Circujts regarding principles
of superseding causation to section 1983 claims has
resulted in some courts avoiding the issue altogether.
See Hector v. Watt, 235 F.3d 154, 161 (3d Cir. 2000)
(declining to reach the question of whether proximate
cause prevented a section 1983 plaintiff from suing
police officers for fabricating evidence as “there is a
great deal of tension in the caselaw about when offi-
cial conduct counts as an intervening cause.”).
In this case, the Ninth Circuit adopted the most
extreme view of intervenir g causation: that the pros-
ecutor’s decision to file charges based on fabricated
evidence, breaks the causal connection between the
police officer’s wrongful conduct and the lengthy,
wrongful imprisonment. McSherry II, 584 F.3d at
1146-47. Indeed, the Ninth Circuit’s decision that the
prosecutor’s filing decision broke the causal chain
was based on the prosecutor’s acceptance of the fabri-
cated evidence in making the filing decision.’ Ac-
cordingly, this case presents the ideal circumstances
for the Court to resolve the conflict in the circuits
* The prosecutor averred in his declaration:
“A When [the victim’s] description of a room where
these events took place meets a description of a room
that’s found that fits that description, that’s corrob
oration of her testimony.
Q Did you ever talk to [the victim] about the original
description that she had given about the place where
she had been taken and raped?
eee
McSherry II, 584 F.3d at 1145.
16
relating the applicability to section 1983 claims of the
common law tort rules of superseding, intervening
causation. The Court should grant certiorari and hold
that when a police officer presents a prosecutor with
fabricated evidence and the prosecutor makes a
charging decision based on that evidence, without
knowing the evidence was false, the causal connection
between wrongful conduct and section 1983 damages
is not broken. Here, Petitioner should be permitted to
proceed to trial to present to the jury the evidence of
fabrication and the prosecutor’s absence of knowledge
that the evidence was fabricated.
If. POLICE OFFICERS WHO ACT AS COM-
PLAINING WITNESSES ARE NOT EN-
TITLED TO ABSOLUTE IMMUNITY FOR
PERJURED TRIAL TESTIMONY.
Absolute immunity to section 1983 claims is avail-
able only under certain narrow exceptions and it is
the burden of the party claiming immunity to justify
the exception. Malley v. Briggs, 475 U.S. 335, 340 (1986);
Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
In Briscoe v. LaHue, 460 U.S. 325 (1983), this
Court held police officers in some circumstances may
be entitled to absolute immunity for perjury com-
mitted in the course of official proceedings. This
Court found that absolute immunity for witnesses
and parties “for testimony in judicial proceedings as
well as absolute immunity for officials in the judicial
17
process was established in English common law”
prior to 1871.”
Three years later, in Malley, 475 U.S. at 341-45,
this Court held an officer who functions as “com-
plaining witness” by providing an affidavit in support
of an arrest warrant to a magistrate, is not entitled to
absolute immunity for the falsity of the affidavit.
Relying on Malley, a number of circuit opinions have
expanded the exception to the Briscoe rule of absolute
immunity to perjury by police officers who func-
tionally act as complaining witnesses by wrongfully
bringing and perpetuating a prosecution in prelim-
inary hearings, grand jury and trial proceedings. See
Harris v. Roderick, 126 F.3d 1189, 1198-99 (9th Cir.
1997) (no absolute immunity for trial perjury by offi-
cer who acted as complaining witness).
“A complaining witness is a person ‘who actively
instigated or encouraged the prosecution of the plain-
tiff”” Kulas v. Flores, 255 F.3d 780, 783 (9th Cir.
2001) (quoting Anthony v. Baker, 955 F.2d 1395, 1399
n. 2 (10th Cir. 1992). There can be more than one
complaining witness in a case. See, e.g., Kalina v.
Fletcher, 522 U.S. 118, 129-30, 131 (1997) (prosecutor
was acting as a complaining witness when she
* The common law distinguished between defamation ac-
tions for which the witness was absolutely immune and actions
for malicious prosecution, for which there was no absolute im-
munity. Briscoe, 460 U.S. at 330-31. Section 1983 is a codifi-
cation of §1 of the Civil Rights Act of 1871. See id., 460 U.S. at
337.
1%
certified in affidavit in support of arrest warrant that
accused burglary suspect was positively identified
“from a photo montage” by another witness). Jd. at
121. By personally vouching for the truth of the state-
ments of another witness inculpating the petitioner,
the prosecutor acted as a “complaining witness.” /d.
at 131.
Here, the district court determined on summary
judgment that Turley was not a complaining witness
despite evidence to the contrary. But the question of
whether a police officer is a complaining witness is a
question of fact. Anthony v. Baker, 955 F.2d at 1399-
1400; see also Enlow v. Tishomingo County, Miss., 962
F.2d 501, 511 (5th Cir. 1992) (declining to grant ab-
solute immunity to defendant officer where “disputed
factual issues remain regarding [defendant]’s role in
actively instigating, encouraging, and/or perpetuating
| plaintiffs’] prosecution”); Anthony v. Baker, 955 F.2d
at 1396-97, 1402 (plaintiff’s allegations that sheriff
instigated grand jury investigation of plaintiff and
testified falsely against plaintiff at grand jury pro-
ceedings and state court probable cause hearing could
provide a factual basis for the district court to con-
clude that [sheriff] indeed was a complaining witness
at both proceedings). Hence, the appeals court. dis-
regarded the cardinal rule on summary judgment
that in the face of conflicting evidence and inferences,
the jury must resolve the ultimate facts, as in this
case, whether Respondent Turley was or was not a
“ . 7 4 »”
complaining witness.
19
In Harris v. Roderick, 126 F.3d 1189, 1198-99
(9th Cir. 1997), defendant officers constructed a false
version of events, knowing that it would lead to the
section 1983 plaintiff’s indictment, arrest, and trial
for murder. Jd. at 119. The court, interpreting Malley
as an exception to Briscoe, held the officers acted as
“complaining witnesses” and were not entitled to
absolute immunity for false testimony, either before
the grand jury that indicted the plaintiff or at his
criminal trial on those charges. In reaching its con-
clusion, the Harris court relied on opinions of other
circuits. See White v. Frank, 855 F.2d 956, 961 (2d Cir.
1988) (his role as a “complaining witness” renders
him liable to the victim under section 1983, just as it
did at common law, and the fact that his testimony at
a judicial proceeding may have been the means by
which he initiated the prosecution does not permit
him to transpose the immunity available for defama-
tion as a defense to malicious prosecution); Anthony
v. Baker, 955 F.2d 1395, 1400 (10th Cir. 1992) (officer
not entitled to absolute immunity for grand jury
testimony “that is relevant to the manner in which he
initiated or perpetuated the prosecution”); Enlow v.
Tishomingo County, 962 F.2d 501, 512 (5th Cir. 1992)
(no immunity for grand jury witness who initiates or
perpetuates the prosecution).
This case is a prime example of the fateful con-
sequences of providing absolute immunity to police
officers for perjured testimony where they instigate the
prosecution and provide testimony which is the sine
qua non of conviction and imprisonment. Respondent
20
Turley fabricated probable cause for Petitioner’s
arrest and thereafter committed perjury that directly
caused Petitioner’s wrongful conviction and 14-year
imprisonment. Trial perjury was just part of the full
range of falsehoods by Turley without which Peti-
tioner’s unconstitutional deprivations would not have
occurred. Indeed, because the victim was just 6 years
old, Turley provided both the evidence to the fil-
ing prosecutor and trial testimony about the victim’s
statements, that resulted in conviction. He was func-
tionally the complaining witness, since the victim
herself was unable to testify about the facts necessary
for conviction.
This Court should grant certiorari to determine
the extent of Malley’s exception to the absolute im-
munity granted to police officers for trial perjury
under Briscoe, and whether, on summary judgment,
the appeals court can make a factual determination
about whether the testifying police office was a
“complaining witness” in the face of conflicting
evidence.
tl. THE RULE OF HARTMAN v. MOORE
SHOULD BE LIMITED TO RETALIATORY
PROSECUTION CLAIMS AND NOT BE
APPLICABLE TO 42 U.S.C. §1983 CLAIMS
BASED ON THE FIFTH AMENDMENT.
In Hartman v. Moore, 547 U.S. 250, 257 n. 5, 265-
66 (2006), this Court decided a Bivens plaintiff must
plead and prove the absence of probable cause for
21
prosecution in order to prevail on a First Amendment
retaliatory prosecution claim. This Court reasoned
the requisite causation between the defendant’s retal-
iatory animus and the plaintiff’s injury in such cases
is more complex than in other retaliation cases since
the retaliatory animus is not merely that of one per-
son and that person’s own action causing the injury,
but between the retaliatory animus of one person and
the action of another who is immune from liability. Jd.
at 259-62.
The Hartman decision was a response to circuit
opinions holding evidence of retaliatory motive and
discharge was sufficient to establish causation. This
Court concluded:
“Demonstrating that there was no probable
cause for the underlying criminal charge will
tend to reinforce the retaliation evidence and
show that retaliation was the but-for basis
for instigating the prosecution, while estab-
lishing the existence of probable cause will
suggest that prosecution would have oc-
curred even without a retaliatory motive.”
Id. at 261.
But Hartman also made a clear distinction be-
tween retaliatory prosecution actions to which the no-
probable cause pleading and proof requirements
apply, and “ordinary” retaliation actions to which the
requirements do not apply (i.e., those where there is
no independent prosecutorial action). Jd. at 259-62;
accord Skoog v. County of Clackamas, 469 F.3d 1221,
22
1233-34 (9th Cir. 2006) (recognizing Hartman’s
absence of probable cause pleading and_ proof
requirement applies to “a particular subcategory of
retaliation claims: retaliatory prosecution claims”);
Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002)
(holding that a claim for retaliatory arrest can be
made even if probable cause existed for the arrest);
DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990)
(same). Cf. Dahl v. Holley, 312 F.3d 1228, 1236 (11th
Cir. 2002); Keenan v. Tejeda, 290 F.3d 252, 261-62
(5th Cir. 2002); Curley v. Village of Suffern, 268 F.3d
65, 73 (2d Cir. 2001); and Smithson v. Aldrich, 235
F.3d 1058, 1063 (8th Cir. 2000).
This case does not involve a retaliation claim.
Accordingly, although there is an intervening prose-
cutorial filing decision, there is no complex issue of
proof of retaliatory animus causation involving an
immunized actor and therefore no need to apply the
objective no probable cause requirement of Hartman.
This Court should grant review and hold that Hart-
man does not apply to non-retaliatory constitutional
claims and resolve the split in authority in the Circuit
courts regarding this issue.
23
A. Even If Hartman Were Applicable To
This Case, Respondent Is Not Entitled
To Summary Judgment In His Favor
Where He Manufactured The Probable
Cause For Arrest.
Petitioner presented evidence to the trial court
that probable cause to arrest him arose only after
Respondents Turley and Roberson became involved in
the investigation and unduly suggested or coerced
identifications of McSherry and the vehicle associated
with him or fabricated such identifications. Petitioner
also presented evidence from which the jury could
infer that Respondents knew Petitioner was innocent
and intentionally violated his rights to Due Process.
The original witness descriptions of the perpe-
trator and the vehicle given to police officers matched
the physical description of the actual perpetrator and
his vehicle, which was used to abduct the victim.
Additionally, in her deposition, the victim testified
that, during the photo showup, Turley suggested Peti-
tioner as the perpetrator and she also denied ever
selecting Petitioner’s vehicle from a photo array, as
Respondent Turley claimed and testified.
Because of the DNA evidence and the confession
of the actual perpetrator, it is evident the victim and
her brother did not see Petitioner or the vehicle asso-
ciated with him on the date of the crimes. Further,
the victim, who had never been in Petitioner’s grand-
parents’ house, denied at her deposition giving the
detailed description of it which Respondent Turley
24
falsely claimed and testified she described in extra-
ordinary detail. Yet the prosecutor relied on this de-
scription of the interior of the house in filing charges.
Under these circumstances, there is a factual dispute
as to whether the prosecutor’s decision to file formal
charges was an independent cause of the wrongful
conviction and fourteen years imprisonment suffered
by Petitioner. It is for the jury and not the appellate
court to resolve this factual dispute.*
* In affirming the district court’s grant of summary judg-
ment against Petitioner, the court below failed to consider evi-
dence establishing the prosecutor’s investigation relating to the
victim’s photo showups was not “independent” because he was
unaware of Respondent Turley’s coercive tactics, unduly sugges-
tive identifications and fabrications and merely reinterviewed
the victim tainted by those unconstitutional tactics. Additionally,
the prosecutor determined the photo showup by Turley was not
suggestive merely by looking at the photos without inquiring
whether Turley influenced the victim’s identification. Yet “con-
duct on the part of the government agents tending to focus the
witness’s attention on the defendant” is one of the factors to
consider in determining the suggestiveness of a pretrial identifi-
cation. United States v. Crawford, 576 F.2d 794, 797 (9th Cir.),
cert. denied, 439 U.S. 851 (1978). Additionally, although the pros-
ecutor was aware of the victim’s initial description of the perpe-
trator that was contrary to Petitioner’s physical characteristics, he
asked her no questions to a‘tempt to resolve the discrepancies. The
prosecutor was similarly unaware of and did not inquire into the
circumstances of the purported photo identification by the victim of
the vehicle or the interior of the house. Finally, the court below
supported the prosecutor’s independent judgment by his averred
reliance on the description of the interior of Petitioner’s grand-
parents’ house. (“She was without any hesitation about the
description of the room”; “her description matched the interior of
McSherry’s grandparents’ home.”) This description could only
(Continued on following page)
25
The causation issue in the Ninth Circuit initially
depends on a rebuttable presumption that the pros-
ecutor used independent judgment in filing formal
charges. However, this presumption “can be over-
come, for example, by evidence that the officers
knowingly submitted false information.” Smiddy v.
Varney, 665 F.2d 261 (9th Cir. 1981). Whether
evidence rebuts the Smiddy I presumption is a
factual question that cannot be resolved on summary
judgment. Smiddy v. Varney, 803 F.2d 1469, 1470 (9th
Cir. 1986); see also Barlow v. Ground, 943 F.2d 1132,
1136 (9th Cir. 1991) (holding police officers can be
liable if they “made false reports to the prosecutor,
omitted material information from the reports, or
otherwise prevented the prosecutor from exercising
independent judgment”); Borunda v. Richmond, 885
F.2d 1384, 1390 (9th Cir. 1988) (presumption rebutted
by “evidence that the investigating officers made
material omissions or gave false information to the
prosecutor”).
Other circuits establish no presumption of inter-
vening causation and simply apply tort principles
of causation in holding defendants in section 1983
cases are liable for the consequences of their acts
have been suggested or fabricated by Respondent Turley, since
the victim was never inside that house. Under these circum-
stances, Petitioner presented ample evidence from which the
jury could conclude the prosecutor did not use independent judg-
ment in filing formal charges against Petitioner.
26
caused by “reasonably foreseeable intervening forces,”
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561
(Ist Cir. 1989). See also Warner v. Orange County
Dep’t of Probation, 115 F.3d 1068, 1071 (2d Cir. 1997),
reinstated after opinion vacated, 173 F.3d 120, 121
(2d Cir. 1999) (decision of a sentencing judge does not
break the causal chain between the wrongful recom-
mendation of a probation officer and an unconstitu-
tional sentence); Wagenmann v. Adams, 829 F.2d 196,
212-13 (1st Cir. 1987) (decision of court clerk acting
as bail commissioner in setting bail did not insulate
police officer from liability for violating plaintiff’s
right to be free from excessive bail); White v. Frank,
855 F.2d 956, 962 (2d Cir. 1988) (“As with the grand
jury, ... the public prosecutor’s role in a criminal
prosecution will not necessarily shield a complaining
witness from subsequeni civil liability where the wit-
ness’s testimony is knowingly and maliciously false.”);
Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.
1988) (“{A] prosecutor’s decision to charge, a grand
jury’s decision to indict, a prosecutor’s decision not to
drop charges but to proceed to trial — none of these
decisions will shield a police officer who deliberately
supplied misleading information that influenced that
decision”); Hand v. Gary, 838 F.2d 1420, 1427-28 (5th
Sir. 1988) (“the chain of causation is broken only
where all the facts are presented to the grand jury, or
other independent intermediary where the malicious
motive of the law enforcement officials does not lead
them to withhold any relevant information from the
independent intermediary. Any misdirection of the mag-
istrate or the grand jury by omission or commission
27
perpetuates the taint of the original official be-
havior’): Lanier v. Sallas, 777 F.2d 321, 324-25 (5th
‘ir. 1985) Gudge’s decision to commit plaintiff to
mental health facility did not sever chain of causation
where that decision was based in part on mis-
representation made by defendants).
Thus, either under the Ninth Circuit rebuttable
presumption rule of independent prosecutorial judg-
ment or under general tort causation principles, Peti-
tioner presented ample evidence precluding summary
judgment against him on the issue of causation.
This Court should grant certiorari and hold that
the tort causation principles mentioned in Hartman
v. Moore, 547 U.S. at 257 n. 5, include foreseeabiiity
of natural and probable consequences which apply to
intervening official conduct in a section 1983 non-
retaliatory prosecution claim when police officers
withhold relevant material information from the
prosecutor who files formal charges.
¢
CONCLUSION
As a result of Respondent Turley’s unconstitu-
tional fabrication of evidence, coercive and suggestive
identification techniques and perjured testimony at
trial, Petitioner was wrongfully convicted and served
14 years of a 48-year prison sentence before being
fully exonerated of all charges.
28
The court below on reconsideration of its original
decision to reverse and remand the trial court’s sum-
mary judgment, has upheld a grant of summary
judgment against Petitioner based on (a) an unreason-
able application of the causation requirement of 42
U.S.C. §1983, (b) a misapplication of Malley v. Briggs,
475 U.S. 335, 340 (1986), and (c) a misinterpretation
of Hartman v. Moore, 547 U.S. 250 (2006) concerning
the need to plead and prove absence of probable cause
in section 1983 claims other than First Amendment
retaliatory prosecution claims.
This Court should grant certiorari to settle these
issues and resolve their conflict in the opinions of
various circuit courts.
Respectfully submitted,
MarK E. OVERLAND
Attorney for Petitioner
Leonard James McSherry
App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD MCSHERRY,
Plaintiff-Appellant,
ie
No. 06-55837
D.C. No.
City OF LONG BEACH; LONG BEACH
OF LONG BEACH; LONG BEACH J 17 no negae -paK
POLICE DEPARTMENT; NORMAN
TURLEY, Officer; CARTHEL S. ORDER AND
ROBERSON, 1n his individual OPINION
and official capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
February 14, 2008 — Pasadena, California
Order and Opinion Filed October 20, 2009
Before: Stephen S. Trott, Richard R. Clifton,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Trott
COUNSEL
Mark E. Overland, Overland Borenstein Scheper &
Kim LLP, Los Angeles, California, for the plaintiff-
appellant.
App. 2
Michael M. Mullins and Nowland C. Hong (argued),
Akerman Senterfitt LLP, Los Angeles, California, for
the defendants-appellees.
ORDER
The Opinion filed March 30, 2009, slip op. 3805,
and appearing at 560 F.3d 1125 (9th Cir. 2009), is
withdrawn. It may not be cited as precedent by or to
N
this court or any district court of the Ninth Circuit.
The superseding opinion will be filed concur-
rently with this order. The parties may file an addi-
tional petition for rehearing or rehearing en banc. All
other pending motions are denied as moot.
OPINION
TROTT, Circuit Judge:
I
After Leonard McSherry (“McSherry”) served
almost fourteen years in prison for kidnaping, raping,
and molesting a six-year-old girl, he was exonerated
by DNA evidence acquired from George Valdespino
and Valdespino’s subsequent confession to these
crimes. McSherry was released from prison pursuant
to a writ of habeas corpus issued by the Los Angeles
Superior Court. Alleging violations of his civil rights
pursuant to 42 U.S.C. § 1983, he then filed suit
related to his arrest and conviction against De-
fendants City of Long Beach, Long Beach Police
App. 3
Department (““LBPD”), and the officers he claimed
were responsible for his faulty conviction, Detective
Norman Turley (“Turley”), and Sergeant Carthel S.
Roberson (“Roberson”).
This appeal follows the district court’s plenary
grant of summary judgment to Defendants on the
basis of qualified immunity. We have jurisdiction, and
we affirm. San Jose Christian College v. City of
Morgan Hill, 360 F.3d 1024, 1030 (9th Cir. 2004) (“We
may affirm the district court’s grant of summary
judgment on any basis supported in the record.”).
II
BACKGROUND
A. Factual Background
1. The initial descriptions of the suspect
and car
In March of 1988, a_ six-year-old girl was
kidnaped frem a playground on a Navy base in Long
Beach, C «lifornia. She was molested and raped by her
kidnapper and then released. The abduction was wit-
nessed by her four-year-old brother. Within ten hours
of the kidnaping, LBPD patrol officers interviewed
her. Initially she described her kidnapper as a short,
fat, white male with black hair, who was older than
her grandfather. Her brother told police that the man
who took his sister was “red in color” and had black
hair. Both sister and brother said the suspect made
her get into a green car.
App. 4
Shortly after the victim’s return, a neighbor,
Robin Davis (“Davis”), reported she had seen a white
male, thirty-five years old or older, 5'7"-5'9" tall,
heavy, with dark brown to black hair, a mustache,
heavy black eyebrows, and a chubby pock-marked
face, in the area on the day the victim was abducted.
Davis said she saw an unattended 1970’s model, dark
green, larger model pickup truck with a white cab-
over camper in the parking lot by the playground.
2. Photo and physical identifications of
McSherry and the vehicle
On April 19, 1988, Officer Turley interviewed the
victim in the Charter Hospital in Long Beach, Cali-
fornia. He showed her a photo line-up that included a
suspect named John Larocco. The other photos in the
lineup, including McSherry’s, were simply “fillers.”
McSherry’s photo was on file because of his
criminal record. On June 16, 1970, McSherry forcibly
abducted and sexually molested a six-year-old girl
and later pleaded guilty to felony child molestation.
On January 15, 1975, McSherry was convicted of
lewd and lascivious conduct towards an eight-year-old
girl and served four years in state prison. On July 8,
1979, McSherry was convicted of kidnaping a fifteen
year-old girl, and served six years before being
paroled. In 1986 McSherry was convicted of a misde-
meanor involving children and sentenced to county
jail. Turley was a witness in that case. McSherry’s
official record shows that he first registered as a sex
App. 5
offender in California with respect to children in 197]
and renewed that registration in 1985.
Turley said that because he believed McSherry
was still in jail on his 1986 misdemeanor conviction
at the time the crime under investigation was com-
mitted, McSherry was not a suspect. Unexpectedly,
the victim picked McSherry’s photo out of the lineup.
Later, Turley learned that McSherry had _ been
released early from jail before this crime occurred.
During that same interview, Turley showed the
victim pictures of sixteen different campers/trucks to
try and determine in what kind of vehicle she had
been kidnaped, but she said the vehicle was a car, not
a truck. Turley said she seemed confused but could
communicate.
On April 21, 1988, Turley re-interviewed the
victim. He showed her the same photo lineup as he
had shown her on the 19th, but, out of “fairness,” in a
different order. She again picked McSherry. Turley
also showed her photographs of nine cars. She identi-
fied a car, and then after Turley asked her if she was
sure, she identified a different car. Turley determined
that she was confused and told her that he wanted
her to look at all of the cars before she told him if she
saw the car or not. Turley changed the order of the
photographs, and she picked out McSherry’s father’s
yellow station wagon.
On May 16, 1988, Turley and Navy Investigative
Officer Tammy Warmack (“Warmack”) interviewed
the victim’s brother. They showed him a photo lineup
App. 6
of nine vehicles, and he picked out the same car his
sister had chosen. He then identified McSherry from
a photo lineup.
Subsequently, on July 21, 1988, the victim and
her brother were taken at the request of McSherry’s
attorney to a court-ordered physical lineup. After the
lineup was over and she was out in the hallway, she
volunteered first to her mother and then to Warmack
that the person who took her was number three
(McSherry), not number six, as she had written down.
She said that she wrote down six because she was
afraid. Ten minutes later, she reaffirmed these state-
ments to Roberson. During the same lineup, her
brother picked out number four. The victim also
positively identified McSherry under oath during a
preliminary hearing and later at trial.
Robin Davis picked McSherry’s photo out of a
lineup on May 18, 1988, the day after McSherry was
arrested. This lineup was witnessed by Warmack.
Warmack said that Davis’ selection of McSherry
“appeared independent” (i.e., not coached). Davis
selected McSherry again in a later physical lineup,
made an in-court identification of him during a pre-
liminary proceeding, and identified him again in
court at his trial.
At McSherry’s trial, Turley testified that each
time he showed photos to the victim, her brother, and
Davis, he told them that they did not have to identify
anyone, or any particular vehicle. With respect to the
victim and her brother, this admonition is reflected in
App. 7
the police reports. Warmack testified at McSherry’s
trial that Turley did not make any effort to influence
the victim in her selections during the photo lineups.
.
3. The descriptions and identification of
the house
Turley and Roberson arrested McSherry for these
crimes on May 17, 1988. In her initial interview with
police, the victim described the place where she was
taken as a white house with two rooms, a bedroom
and a bathroom. She said the numbers one and zero
were on the door. At some other point, when Turley
and Roberson were driving her around, she said that
the house was brown.
The day after McSherry’s May 17th arrest,
Turley and Warmack interviewed the victim again.
She picked McSherry’s grandparents’ home out of a
photo lineup, identifying it as the place McSherry had
taken her. The grandparents’ residence was blue and
white. She provided specific details about the room
where she had been raped. Warmack said most of the
questions were open ended. On the same day, Deputy
District Attorney Ken Lamb authorized on behalf of
the Los Angeles County District Attorney’s Office the
filing of a felony complaint charging McSherry with
various felonies against the victim.
On May 19th, police served a search warrant at
McSherry’s grandparents’ house. The victim’s descrip-
tion generally matched a bedroom in the residence.
While executing the warrant, officers noticed a bird in
App. 8
the living room area, and a barking dog in the
backyard. Turley re-interviewed the victim on May
24th and asked if she had heard or seen any animals.
She said she heard a bird. He asked her several other
questions regarding the interior of the house, and her
responses matched details of the residence. Finally,
when asked if she saw a phone, she said she saw a
white push button phone. McSherry’s room contained
only a black rotary phone.
B. Procedural History of the Present Case
McSherry brought suit under 42 U.S.C. § 1983,
alleging (1) Fourteenth Amendment due _ process
violations for unconstitutional interview procedures;
(2) Fourth and Fourteenth Amendment false arrest
claims based on false witness identifications; (3) fail-
ure to train and supervise; (4) negligent hiring; and
(5) supervisory liability. He claimed damages arising
from Turley’s and Roberson’s alleged errors that
directly and proximately caused his wrongful arrest,
trial, conviction, and incarceration.
In October 2003, on the first day scheduled for
trial, the district court granted Defendants’ Motion
for Judgment as a Matter of Law under Fed. R. Civ. P.
50 on the ground of qualified immunity. McSherry ap-
pealed. A panel of our court held on procedural
grounds that a “district court may not grant a motion
filed under Rule 50 prior to the presentation of any
evidence in a case ... because the non-moving party
must be afforded the opportunity to present evidence,
App. 9
and the court must evaluate that evidence. ...” Mc-
Sherry v. City of Long Beach, 423 F.8d 1015, 1021
(9th Cir. 2005). The panel explained that it was con-
cerned that “McSherry was not provided an adequate
opportunity to present evidence in his case. Further-
more, disputed issues of fact evident on the face of
McSherry’s pre-trial contentions, of fact render judg-
ment as a matter of law on the basis of qualified
immunity inappropriate at this time.” Jd. The panel
explained also that treating the motion as a motion
for judgment on the pleadings, “|tJhe facts alleged by
McSherry support a claim of deliberate fabrication,
and thus, on the basis of the pleadings, the defen-
dants are not entitled to qualified immunity as a
matter of law.” Jd. at 1021-22 (emphasis added). In a
footnote, we said that McSherry “was not informed
that he should treat |Defendants’ motion] as a motion
for summary judgment and provide evidence in sup-
port of his claims.” /d. at 1021 n.4. We remanded to
the district court “for further proceedings consistent
with this opinion.” Jd. at 1022. We denied McSherry’s
request that the case be remanded to a different
judge. Id. at 1024.
On remand, the district court granted summary
judgment to Defendants on the ground of qualified
immunity. The court held that probable cause existed
for McSherry’s arrest. It further held that the fabrica-
tion of the evidence claim failed because (1) McSherry
did not present “any evidence that Defendants de-
liberately fabricated evidence, or acted in a way that
produced false information”; (2) the District Attorney
App. 10
had conducted an independent investigation of the
evidence, and under the totality of the circumstances,
there was “no evidence that Defendants knew or
should have known that McSherry was innocent’;
and (3) McSherry “failed to make or support any
factual allegations of any fabrication of evidence . .
that were logically capable of supporting” a claim that
Turley used unconstitutionally suggestive interview
techniques. Finally, the district court held that the
Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658 (1978), claim against the City and LBPD
failed because McSherry did not show a constitu-
tional violation by either Roberson or Turley.
Hil
DISCUSSION
A. Standard of Review
This court reviews de novo a district court’s grant
of summary judgment on the ground of qualified
immunity. Blankenhorn v. City of Orange, 485 F.3d
463, 470 (9th Cir. 2007). “We may not affirm a grant
of summary judgment if there is any genuine issue of
material fact or the district court incorrectly applied
the substantive law.” Jd. Stripped to its core, our in-
quiry is “whether the evidence presented a sufficient
disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail
as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986). In making this deter-
mination, we view the evidence in the light most
App. 1]
favorable to McSherry. All justifiable inferences are to
be drawn in his favor and his evidence is to be
believed. We may affirm on the basis of any ground
supported by the record. San Jose Christian College,
360 F.3d at 1030.
B. Analysis
1. Probable cause for the arrest
McSherry claims that Defendants lacked prob-
able cause to arrest him because they: (1) used
suggestive interview techniques; (2) manipulated or
coerced witnesses; (3) fabricated evidence; and (4)
disregarded exculpatory evidence.
“Probable cause arises when an officer has
knowledge based on reasonably trustworthy informa-
tion that the person arrested has committed a crim-
inal offense.” Gausvik v. Perez, 345 F.3d 813, 818 (9th
‘ir. 2003) (citing Beck v. Ohio, 379 U.S. 89, 91
(1964)). “Because many situations which confront offi-
cers in the course of executing their duties are more
or less ambiguous, room must be allowed for some
mistakes on their part.” Brinegar v. United States,
338 U.S. 160, 176 (1949).
Here, before McSherry was arrested, the victim
on two occasions positively identified McSherry as
her attacker, and also identified his father’s car as
the vehicle used to facilitate the crime. Scientific
evidence reported by the Sheriff’s Crime Laboratory
indicated that semen taken from the _ victim’s
App. 12
underwear could belong to McSherry in that he could
not be excluded as the person whose semen was
found. Also, McSherry’s modus operandi known to the
police from previous convictions was similar to the
manner in which the victim was abducted and
sexually assaulted.
McSherry attempts to undercut probable cause
with allegations that the officers violated the Due
Process clause of the Fourteenth Amendment by ig-
noring exculpatory evidence. “A police officer’s failure
to preserve or collect potential exculpatory evidence
does not violate the Due Process Clause unless the
officer acted in bad faith.” Cunningham v. City of
Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003).
McSherry claims that Defendants acted in bad
faith when they ignored: 1) George Valdespino’s
arrest for a crime similar to the victim’s abduction
one week later in a nearby county; 2) the fact that
initial identification statements by Davis, the victim,
and the victim’s brother did not resemble McSherry;
and 3) the possibility that Davis’s identification was
influenced by a newspaper photograph of McSherry.
These claims fail.
First, McSherry does not offer any evidence that
Defendants knew in 1988 that Valdespino was
arrested in a nearby county for a similar crime.
Absent such a showing, there is no evidence of bad
faith.
Second, as to the descriptions of the perpetrator
given by the victim and her brother, police officers
App. 13
“must be given some latitude in determining when to
credit witnesses’ denials and when to discount them,
and we are not aware of any federal law ... that
indicates precisely where the line must be drawn.”
Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir.
2001) (en banc). Turley and Roberson do not dispute
that McSherry did not closely resemble the initial
descriptions given by the two children, however,
nothing in the record shows that the officers acted in
bad faith by relying on the children’s photo lineup
identification of McSherry rather than their initial
descriptions.
Third, with respect to Davis’ identification of
McSherry in a photo lineup, McSherry argues that
Davis was shown a photo lineup after McSherry’s
picture appeared in the paper, implying that she
chose him because she recognized him from the
newspaper photo. This bald assertion does not
demonstrate bad faith. McSherry does not offer any
evidence whatsoever that Davis ever saw the picture,
or that she based her subsequent identification on
that picture.
Fourth, McSherry’s allegations of the use of im-
proper, unreliable and suggestive identification pro-
cedures turn out upon examination to be without
adequate factual support. Surmise, conjecture, theory,
speculation and an advocate’s suppositions cannot “do
duty for probative facts” and valid inferences. Poppell
v. City of San Diego, 149 F.3d 951, 962 (9th Cir. 1998).
App. 14
As for McSherry’s allegations of fabrication of
evidence, this claim pertains to incidents involving
McSherry’s grandparents’ home as_ possibly the
location of the sexual assault. These matters occurred
after McSherry’s arrest and are therefore irrelevant
to the question of probable cause.
The probable cause to arrest McSherry as well as
to hold him to answer for trial was confirmed in a
preliminary hearing held before a neutral magistrate
where the victim again identified McSherry as her
attacker, this time under oath. Gerstein v. Pugh, 420
U.S. 103, 114 (1975) (““(Wje hold that the Fourth
Amendment requires a judicial determination § of
probable cause as a prerequisite to extended restraint
of liberty following arrest.”). Neither Turley nor
Roberson testified at this hearing which resulted in
the filing of a felony information against McSherry in
los Angeles Superior Court.
“In California, ... it is a long-standing principle
of common law that a decision by a judge or mag-
istrate to hold a defendant to answer after a pre-
liminary hearing constitutes prima facie — but not
conclusive — evidence of probable cause.” Awabdy uv.
City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004)
(emphasis in original). We held in Awabdy that one
way a “plaintiff can rebut a prima facie finding of
probable cause is by showing that the criminal prose-
cution was induced by fraud, corruption, perjury,
fabricated evidence, or other wrongful conduct under-
taken in bad faith.” Jd. To do so, a plaintiff must be
“able to prove the allegations in his complaint that
App. 15
the criminal proceedings were initiated on the basis
of the defendants’ intentional and knowingly false ac-
cusations and other malicious conduct.” Jd. McSherry
has not alleged facts sufficient to create a genuine
dispute on this issue for reasons discussed in section
B.2 of this opinion.
Accordingly, we hold that there exists no genuine
issue of material fact regarding probable cause or the
legality of McSherry’s arrest and detention for trial.
Finding no constitutional violation on this issue, we
affirm the district court.
2. Causation
In Beck v. City of Upland, 527 F.8d 853 (9th
Cir. 2008), a case decided after briefs were filed and
we heard oral argument in this matter,’ we held that
“in any constitutional tort case ... in which a pros-
ecutor has instigated a prosecution, it is necessary, if
not. sufficient, that a plaintiff seeking to sue non-
prosecutorial officials alleged to be responsible post-
complaint for the arrest or prosecution show the
absence of probable cause.” Jd. at 865 (citing Smiddy
v. Varney, 665 F.2d 261 (9th Cir. 1981), and Hartman
v. Moore, 547 U.S. 250 (2006)). Relying on the Su-
preme Court’s decision in //artman, we said “la] pros-
ecutor’s independent judgment may break the chain
of causation between the unconstitutional actions of
Both parties have now given us their views on Beck and
Hartman.
App. 16
other officials and the harm suffered by a constitu-
tional tort plaintiff.” Beck, 527 F.3d at 862. We added
that “[pJut in traditional tort terms, the prosecutor’s
independent decision can be a superseding or inter-
vening cause of a constitutional tort plaintiff’s injury,
precluding suit against the officials who made an
arrest or procured a prosecution.” Id. See also, Stoot
v. City of Everett, _ F.8d __, __. (No. 07-35425
9th Cir. August 13, 2009) (an intervening decision of
an informed neutral decision-maker may break the
chain of causation).
In Beck, we concluded on the record (1) that Beck
was arrested without probable cause, and (2) that the
officers had not met their burden to show that the
prosecutor’s charging decisions acted as an “interven-
ing cause,” thus shielding them from liability. Beck,
527 F.3d at 870.
On the record in this case, however, the opposite
is true. Substantial evidence of probable cause
existed for McSherry’s arrest and to bind him over for
trial. There is no question that the prosecutor’s ac-
tions in authorizing all charges against McSherry and
conducting his prosecution were (1) amply supported
by probable cause at all stages of the process, and (2)
the result of his independent professional judgment
based upon a thorough review of the evidence, a judg-
ment that was predicated on eyewitness identifica-
tion related to him and uninfluenced by either Turley
or Roberson or the “evidence” McSherry claims
was fabricated. Because McSherry cannot survive
App. 17
summary judgment on this critical issue, his related
claims must fail.
In the ordinary course of business, Turley took
McSherry’s case to Deputy District Attorney Ken
Lamb, a prosecutor with ten years of previous experi-
ence as a police officer. Lamb’s declaration filed in
support of the officers’ motion for summary judgment
reads as follows:
DECLARATION OF DEPUTY
DISTRICT ATTORNEY KEN LAMB
I, Ken Lamb, declare and state as follows:
1. J am a Deputy District Attorney for
the County of Los Angeles, and I was the
trial deputy in the case of the People v.
Leonard McSherry, Case No. A 040264.
2. Before I became a Deputy District
Attorney, I was a member of the Los Angeles
Police Department for ten years. During my
career as a police officer and as a district
attorney, I have interviewed over a thousand
children, and have now been involved in the
investigation of sexual abuse crimes for over
eighteen years. I have conducted training
seminars on sexual assault crimes, including
techniques for interviewing children. Through-
out my career, I have prosecuted over 600
felony jury trials.
3. I make this declaration in support of
the Defendant’s Motion for Summary Judge-
ment. The facts set forth herein are true of
my own personal knowledge, except for those
App. 18
things stated on information and _ belief,
which are believed to be true, and if called
upon to testify thereto, I could and would
competently do so under oath.
4. Leonard McSherry (“McSherry”) was
arrested for the kidnap and rape of six year-
old[ J]... on May 17, 1988. On May 18, 1988,
I authorized that he be charged with (1)
forcible rape; (2) oral copulation of a person
under age 14 and more than 10 years
younger; (3) rape by a foreign object; and (4)
kidnaping to commit child molestation of a
victim under the age of 14.
5. After McSherry’s arrest, I reviewed
all of the evidence, including the witnesses’
identifications, the witnesses’ statements,
the police officers’ statements, the physical
evidence, the criminal lab results, and other
corroborating evidence, to ensure that there
was a case against McSherry.
6. In addition, I reviewed the _ police
reports, the photo lineups, and the live line-
ups in order to ensure their lawfulness.
7. Furthermore, | interviewed the wit-
nesses in order to verify the information
provided to me by the police officers.
8. I personally interviewed |the victim]
on more than one occasion. During the inter
views, I was convinced by her demeanor and
language that she was describing what she
remembered from her kidnaping, rather than
from any coaching or outside influence.
App. 19
Based upon my experience with child victims
of sexual assault, I further believed that her
emotional state was such that it would have
been virtually impossible for anyone to have
coached her on what to say.
9. I personally interviewed ... , [the
victim’s] four year-old brother. ‘There were no
indications that anyone had coached him or
otherwise inappropriately attempted to influ-
ence him.
10. I personally interviewed the adult
witnesses, and clearly explained to them that
they were to testify only to those things
about which they had personal knowledge,
and not about anything they might have
heard from other sources. Based upon my
conversations with the adult witnesses, I
believed that they were recounting their
personal experiences.
11. Based on my independent investi-
gation, I concluded the photo lineups and the
live lineups were not misleading or sugges-
tive. | further concluded that the testimony
of the witnesses was of their own recall, and
not the result of influence by police officers.
I declare under penalty of perjury under
the laws of the United States of America that
the foregoing is true and correct.
Executed on March 27
Angeles, California.
2006, in Los
>
SIGNED
Ken Lamb, Declarant
App. 20
The prosecutor’s assertions that he personally
made the decision to approve and to file a felony com-
plaint against McSherry and to prosecute the case,
and that he did so based solely upon his own indepen-
dent investigation, were closely tested by McSherry’s
counsel in lengthy depositions. We have scoured
this record to uncover any facts or valid inferences
uncovered in those depositions or elsewhere that
materially undermine the credibility of Lamb’s asser-
tions as to the independence of his judgment and
have found none. It is not enough to demonstrate a
genuine issue of material fact simply to say, as
McSherry has, “McSherry disputes Defendants’ factu-
al premise that Lamb used independent judgment.”
Summary judgment requires facts, not simply unsup-
ported denials or rank speculation. Poppell, 149 F.3d
at 954. McSherry’s statement of genuine issues in
opposition to Defendants’ motion for summary judg-
ment does no better. At most, the facts relied upon by
McSherry take issue with the thoroughness of Lamb's
investigation, not the convincing evidence that it was
entirely independent. Because this appeal is about
the facts in the record, we array them in detail
greater than our ordinary practice.
For example, McSherry’s counsel asked Lamb,
“It|he circumstances of the original identification by
[the victim]... as far as you know are based on what
Turley said; isn’t that right?” Lamb’s answer was,
“No, I interviewed |the victim] herself. I personally
interviewed her.” Later, McSherry’s counsel pressed
the same point, asking Lamb, “So what you know
App. 2]
about that identification fof McSherry] is what has
been related to you by Mr. Turley; correct?” Answer,
“No, that’s not correct. I also know what’s been re-
lated to me [by the victim].”
Lamb elaborated about the victim’s initial identi-
fication of McSherry in great detail:
@® (by counsel for McSherry) And what
was it that [the victim] said to you?
A (by Ken Lamb) Throughout various
interviews?
() What do you remember about what
she said to you?
A That she referred to the individual
who did these acts as “the stranger.” She was
unable to recall sexual — a great deal about
the sexual acts themselves. She remembers
going to a house, that in the bedroom there
was a photograph of the stranger on the
wall, that she was dropped off and went up
to some other house, that — I think that
would be her initial sort of description about
what happened.
() Okay. Anything else that you re-
member?
A At some point we talked about the
photographic identification. Do you want me
to go into that?
@ Yeah.
App. 22
A Okay, I at some point — I don’t recall
when — J explained to her that she’s not in
any trouble, that no matter what she says,
none of this is her fault. Kids frequently
think that somehow when they get abused,
when they get sexually assaulted, that they
did something wrong, that it’s their fault. I
told her you didn’t do anything wrong, it’s
not your fault. I told her that whatever she
said, that as long as it was the truth, it didn’t
matter, she wasn’t going to get into any
trouble.
We would have had some conversation
about — to make sure that she understood
what it meant to tell the truth. In my mind -
she was a child. When I interview kids, I rate
them on © one to ten scale. On their ability to
communicate her biggest problem was that
she could communicate about portions of
things that had happened, but there were
areas that she was totally blank on. The best
example I can give of that is what I did in
closing argument was I broke up a record
album. You might be young enough that you
don’t know a record album, but I broke it and
I held up pieces. She was — it was like trying
to put a record album back together. There
were pieces that you could hear, but then
there would be spots missing. She came
across in that way.
She was afraid. I told her that nothing
was going to happen to her, that if she didn’t
remember something, it was okay. There
were no wrong answers. We talked about —- I]
App. 23
tried to get some information about the
stranger. She was really not very able to give
information other than stranger. I asked her
if she had seen photographs of which she
said and that the stranger was one of them. I
told her if she was guessing, that she didn’t
have to guess. If there was nobody there, she
could say that. There was no wrong answers.
And she told me that she identified the
stranger, that he was in a photographic line-
up, that nis picture had been on the wall in
the house. I think that’s the extent of how
the conversations would have gone. I don’t
believe that they got — as we progressed
through the conversations up to the trial, |
don’t believe that they got much more in
detail things.
() When you had a conversation with
her about what it meant to tell the truth,
what did you say to her?
A I asked here {sic} if she understood
that it was important that she tell the truth.
She said yes, and I said —I held up a pen or
something and I said if this was a yellow pen
and it was a black one (sic), would that be
the truth, and she said no, and Im giving
that example. That’s not the — I’m not citing
word for word. Im doing some sort of
description like that, some item. If I said it
was a black pen it would be the truth; yes. I
said what do you think would happen if you
told me that it was not the truth, like the
App. 24
black pen was yellow when it really wasn’t.
She said she would be in trouble, and I said
do you understand that if people tell you
what to say, it doesn’t matter, tell the truth.
If someone else has told you what to say in
the past — one of the tests that I use — and
again, I don’t want to mislead you. This is
general things that [ do. I can’t give you
specific word for word of what happened.
I give kids the example after they’re
done talking — I let them talk. I try not to
give them suggestions or say things to them.
At some point I will then say, well, what if
your mother told me that, an example, that
you were in a bathtub and these things
happened t« you. When kids tell me, oh,
yeah, I remember that, Pll go into that con-
versation with them. That’s not good. That
tells me that they’re very easily influenced
and that they’re probably not going to be a
very good witness. Other kids who are on the
other end and say if mom told you that, she’s
wrong, that’s not what happened, I know
that they’re going to be a good witness, and
we had conversations to that type of extent
because in my mind it’s important kids
understand they’re not going to be in trouble,
and that they don’t — there’s no one they
have to please I guess is the best way to put
it.
+ * +
A She was without any hesitation that
the stranger was in fact the person that she
identified which I knew to be, now know to
App. 25
be, McSherry. She was without any hesi-
tation about the description of the room. She
was very — had extreme difficulties in dis-
cussing the sex aspects of the crime. Those
are the areas that I know.
The victim herself corroborated in her deposition
the officers’ and Lamb’s recitations of her multiple
positive identifications of McSherry
@ (by counsel for the Defense) Were
you told that you didn’t have to pick out
anybody if the person wasn’t there?
A (the victim) Yes.
@ Were you then shown the _ photo-
graphs?
A Yes.
© Did you pick out somebody?
A Yes.
@ Okay. Now, as to that somebody, did
you ultimately pick that somebody out of the
live line-up?
A Yes.
@ And did you ultimately identify that
same somebody in a courtroom at a trial in
Long Beach?
A Yes.
@ Who was that somebody?
A Mr. McSherry.
App. 26
@ And is that the person that you
picked out on your own when you were first
shown the photographs?
A Yes.
@ And was that the same person you
identified in the courtroom?
A Yes.
@ And were you being honest at the
time on all three occasions?
A At the time, yeah.
@ When you picked out the photograph
of McSherry, did you honestly believe it was
McSherry who had done this to you?
A Can you say that again.
@ Yeah. When you first picked out the
picture of McSherry at a hospital, did you
believe at that time McSherry was the indi-
vidual who had done this to you?
[objection by counsel}
A Yes.
@ Your answer is yes?
A Yes.
@ When you told them at the live line-
up whether it was in the room or just outside
the room that it was McSherry, was that a
trutnful statement?
[objection by counsel]
App. 27
A Yes.
Q@ Yes?
A Yes.
Q@ And when you identified him in
court, was that a truthful statement?
A Yes.
@ And the “him” you identified in court
was who?
A McSherry.
As for Lamb’s acceptance at face value of the
police reports, he said this:
@ (by counsel for McSherry) And the
evidence that you have is the evidence that’s
given to you by the police officers in the case;
correct?
A (by Ken Lamb) No, because I inter-
view witnesses. It’s coming directly from the
witnesses.
McSherry’s counsel probed Lamb during his
deposition for evidence of bias against a suspect in a
sexual assault case. He found none.
() (by counsel for McSherry) And is the
ultimate goal to obtain a conviction within
those parameters?
A (by Ken Lamb) No.
Q What is the ultimate goal?
App. 28
A_ Is to examine the evidence in a fair
and equitable manner. It’s no — it’s just as
good if somebody who is accused of a crime
you determine isn’t guilty than it is that if
you have the evidence and you convict some-
body. I don’t believe a prosecutor or deputy
district attorney’s role is ever as if it’s a game
and you have to win. You win — if it turns out
<omebody is innocent, you win. If it turns out
somebody is guilty, then that’s an appro-
priate win, too.
@ That’s a pretty good job, you win no
matter what.
A That’s why I like it.
We also find it noteworthy that McSherry was
offered a DNA test by the prosecution before trial,
and he declined, preferring instead to go to trial with-
out delay. Lamb testified that he was willing to waive
time to allow the DNA test to be performed, but that
McSherry was not.
At the core of McSherry’s substantive constitu-
tional claims as well as his rejoinder to the issue of
causation is the assertion that the officers’ allegedly
improper conduct materially influenced the prose-
cutor’s decision to file charges against him and to
pursue a conviction. In this regard, McSherry relies
in large measure on (1) a discrepancy between the
victim’s initial description of her attacker and
McSherry, (2) allegedly flawed identification pro-
cedures used by Turley, and (3) what Turley said
about the victim’s incrimir “ting description of the
App. 29
interior of the house where she was assaulted, which
was at odds with the facts as well as denied by the
victim 14 years later. McSherry argues specifically
that “Lamb’s ‘independent investigation’ was tainted
by Defendant's fabricated evidence and unconstitu-
tionally suggestive interview procedures and tech-
niques.” This, of course, could be a valid claim — if
McSherry had facts to back it up. See Borunda ov.
Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988);
Barlow v. Ground, 943 F.2d 1132, 1136-1137 (9th Cir.
1991).
We recognize that McSherry presented evidence
to support one of his contentions, notably that one of
the police officers may have fabricated evidence
against him. In support of that claim, McSherry
pointed in particular to the description of the interior
of his grandparents’ residence and argues that: 1) he
provided ‘Turley a detailed description of his grand-
parents’ house after he was arrested; 2) Turley in-
terviewed the victim the next day, then later
documented in his police report and also testified at
trial that the victim provided a detailed description of
the interior of the residence during that interview; 3)
the victim’s detailed description differed from her
initia) description but matched the grandparents’
residence; 4) after Turley searched the house, he
reported that the victim provided another description
with more matching details; 5) albeit fourteen years
after she was kidnaped, the victim denied giving the
descriptions that Turley documented and testified to;
and 6) because McSherry was exonerated of the
App. 30
crimes and another party confessed, the victim ob-
viously was never in the residence and could not have
provided such a detailed description.
But McSherry’s presentation fell short and failed
to raise a genuine issue of material fact as to whether
the alleged fabrication or any misconduct by Defen-
dants caused his arrest, prosecution, and conviction.
As described: above, there was probable cause to
justify McSherry’s arrest and prosecution. In addi-
tion, even examining the evidence in the light most
favorable to McSherry, the evidence presented before
the district court was simply insufficient to sustain a
finding that Lamb’s investigation and decision mak-
ing was not independent and was tainted by the
alleged fabrication of evidence. Again, we refer to
Lamb’s lengthy deposition where he was repeatedly
challenged on these issues.
@ (by counsel for McSherry) Do you
remember anything else other than what
you’ve told us about your independent con-
versation with [the victim]?
A (by Ken Lamb) I may have
mentioned it already, I don’t know, but my
telling her it was important to tell the truth.
Part of the interviewing of her was to eval-
uate whether or not she was a competent
witness and could actually communicate and
testify, so I was looking for that, and the only
other thing would be looking to see other
things that she was saying that were issues
that I call red flags I would have had to
address or deal with.
ele FARES HTM
Mee
Val ioht coriatet
App. 31
@ Do you remember anything else?
A No.
@ You stated here, “The evidence is
reviewed to ensure that there is not a bias or
unfair inference placed upon witnesses.”
What do you mean by that?
A When I’m looking at a case, I’m
trying to do a couple of things. Obviously if
there’s evidence that shows that somebody
didn’t commit the crime, I don’t want that
evidence to be ignored, and second, | need to
make sure that we have evidence that will
stand up in court, a jury will hear it and say,
yes, beyond a reasonable doubt I believe this
person cou.mitted this crime. In order to do
that I try to think and look for things that a
defense attorney representing somebody will
argue. Whether they’re, one, meritorious or
have any value doesn’t mean, with all re-
spect to the defense attorneys, that they’re
not going to still argue it, so if there’s some-
thing that even if it’s not there — example, if
a police officer says I saw this person drop a
gun, there may be no evidence that that
officer is lying, but the defense is going to
argue how can you trust the police officer’s
testimony, so you have to be alert for those
things, and in evaluating a case I’m looking
to see if there’s any indications or evidence
that a defense attorney is going to raise
questions about. In this case there was a
huge red flag immediately, and that was how
Mr. McSherry’s photograph was identified.
App. 32
@ When you say “The evidence is re-
viewed,” are you saying that this is what you
did with respect to Mr. McSherry’s case?
A Correct.
Q@ And when you say, “The evidence is
reviewed,” what evidence are you talking
about? Are you talking about the police re-
ports that are presented to you by the police
department?
A No, I’m talking about all of the — let’s
make sure we're talking about a time frame
here. Back then I’m talking about state-
ments by witnesses, physical evidence that
you have, statements by police officers, any
evidence that’s going to be presented in
court,
@ And when you look at this evidence
are you looking at the formal police reports,
are you looking at the officers’ notes, what
are you looking at?
A I’m looking at whatever I have which
would be police reports, statements of
witnesses, interviews with witnesses. or
victims, physical evidence, testing of physical
evidence and results of that, whatever evi-
dence | have that could find its way into
court.
Q@ And the evidence that you have ts the
evidence thats given to you by the police
unvestigators in the case; correct ¢
App. 33
A No, because when I interview wit-
nesses, it’s coming directly from the witnesses.
Q Other than your own independent
investigation?
A No, because it could come from crime
lab people, not police officers.
@ Other than that? Whatever investi-
gations the police officers have done and they
present it to you —
A Right.
Q — do you independently search for
any documents relating to that investigation
that they've done, or do you rely on the
documents that they give to you”?
A I’m sorry, I don’t understand the
distinction you’re trying to make.
Q Okay. Let’s say I’m an investigator
on {this} case.
A Right.
@ And I go to you and I say here, Mr.
Lamb, I want the charges filed and here are
the reports on this case, and | give you the
reports in this case. You then review those
reports and you make a determination. Do
you then say, well, do you have anything else
in connection with this case, do you have any
notes, do you have any other reports, do you
have something else that you haven't given
me?
App. 34
A Yes, and frequently
@ Did you do that in this case?
A Yes, and frequently direct them to do
other things.
@® And were you given what to your
satisfaction was all the reports that they had
in connection with the McSherry case?
A Yes.
Q@ Were you given all their handwritten
notes to your satisfaction?
A At Some point, yes
Q@ And did you review all those?
A Yes
@ Now you say here, “The photo line
ups and live line-ups were not misleading or
suggestive.” What photo line-ups are you
talking about?
A The photo that I refer to as the six
pack of McSherry.
@ Any other photo line-ups?
A There were | believe there were
some photo line-ups of the vehicle, and
possibly — well, I’m not positive there were
any of the house. I think it was just the
vehicle.
@ And what did you do to determine
that the photo let’s talk about them in
App. 35
terms of show-ups — that the photo show-ups
of the individuals were not suggestive?
A J looked at the photo line-ups.
@ And?
A They weren't suggestive.
And what criteria did you use to
determine that they weren’t suggestive?
A Well, for example, if you’re trying to
identify or eliminate an African-American
and you put his photo in with five male
Caucasians, that’s the argument and there’s
a distinction here again. Now we're talking
about what will happen in a trial versus the
reality aspect. The argument is that’s going
to be highly suggestive. ’'m not commenting
on whether that’s true or not true, but that’s
the argument.
( I’m sorry to interrupt you. Maybe
you didn’t understand my question. My ques-
tion is not a general question. My question is
vith respect to the six-pack in this case, in
the MeSherry case, what criteria did you use
to determine that that six-pack was not
suppestive?
A That’s what I’m explaining. I looked
at the photographs and made sure that if you
were showing somebody these photographs
without any knowledge of who they were
supposed to be looking for, would anybody be
picking a specific photograph for whatever
reasons. Did the officers tell me or write
App. 36
anything that suggested in any way that the
photographic line-up could be questioned.
For example, if someone showed me your
photograph by itself and they said is this the
person who was asking you questions in the
deposition, well, the answer would be yes,
but there still could be the argument of,
sec, that was suggestive because they only
showed one photograph. Doesn’t change that
il’s actually the truth, but that argument
could exist, so that’s what I mean by looking
at the photographs and determining that.
® Kut that didn’t exist in this case
because there were six photographs.
A Correct.
@ So we're not dealing with a single
photograph being shown.
A J understand.
() What was it about this particular
six-pack that lead you to believe that it was
not suggestive in any way?
A I didn’t see — if you didn’t know that
McSherry was involved in a case, I didn’t see
any photographs that if you showed it to
general people the consensus would be they
would be picking the same photograph be-
cause something stood out in that photo-
yvraph, nor did I have any information to lead
me to believe that contrary to — let’s assume
you get past that stage, that the photographs
are okay, that something else was occurring
that made people pick the same photograph.
App. 37
() What was the description that the
witnesses gave of the individual who had
kidnapped [the victim}?
A I don’t know exactly. 1 am aware that
it was not fitting of McSherry.
@ In your conversations with [the vic-
tim], were you aware of the description that
she had given of the individual?
A Yes.
() And were you aware that it didn’t fit
Mr. McSherry?
A Yes.
® And did you talk to [the victim]
about the difference between that description
and her identification of Mr. McSherry?
A I wouldn’t say it that way because it
would be too suggestive. I would say it more
on when you looked at the photographs, are
you certain that the person you picked was
the stranger.
( My question was did you talk to [the
victim| at all about her initial description of
the individual?
A No.
[freak in the deposition]
@ Mr. Lamb, we were talking before
the lunch break about Exhibit 1022 which
is your Rule 26 report, and in there you state
if you look at the paragraph that says
App. 38
“Information relied upon by the Expert,”
the last sentence you say, “The testimony of
witnesses was cross-checked with other in-
formation to ensure that there was corrob-
oration.” What other information are you
referring to?
A Witnesses corroborate other’ wit-
nesses, events that were corroborated by —
for example, [the victim’s] description of the
house. There was a house that had a room
with that description. Things like that.
@ Anything else that you mean by
that?
A Other than evidence corroborating
evidence and witnesses, no.
@® When you say “corroboration,” are
you talking about whether the testimony of
the witnesses corroborated cach other?
A Sure, that’s one way of corroboration.
@® What other — other than that, other
than testimony corroborating, what other
aspects of corroboration did you mean to
include with the word “information”?
A When |the victim’s| description of a
room where these events took place meets a
description of a room that’s found that fits
that description, that’s corroboration of her
testimony.
Q@ Did you ever talk to [the victim]
about the original description that she had
App. 39
given about the place where she had been
taken and raped?
A No. What I would ask her is what
. 3
can you tell me about the place. Now if that’s
asking her about her original description,
that would be, I guess, a yes, but I wouldn’t
tell her details, if that’s what you’re asking.
I’m not sure.
Q Well, you were aware that she had
originally given a description of the place to
where she had been taken; correct?
A Correct.
@ You were aware of that description;
correct?
A Correct.
( Did you ever ask her anything about
that original description that she gave?
A If there were issues that were
contradictory, I may have very well asked
her about it without giving her — letting her
give me the information first, and then say-
ing could it have been this or this instead, or
do you recall saying something like this to
somebody else.
Q Did you feel that there were any, as
you say, issues that were contradictory?
A Yes, I believe there were description
contradictions, but not that she was giving to
me, if that’s what you're asking.
App. 40
Q Well, ’m not sure I understand your
question. You say that you believe that there
were description contradictions?
A_ I believe that from the initial reports
the description of the suspect and the descrip-
tion of the location would be somewhat
contradictory to what she was now telling me.
@ And my question is did you attempt
to resolve those contradictions by asking her
questions concerning the contradictions?
A Yes.
@ And what did you ask her?
A | don’t recall.
@ How were the contradictions resolved
in your own mind?
A From talking to [the victim], the in-
formation that she was telling me I believed
over things that were in the reports.
Q@ Are you saying you did not believe
that she had originally given the description
contained in the reports?
A No, 'm saying that whether she gave
them then or didn’t give them, I didn’t be-
heve that they were accurate.
Q Why?
A Because I’m talking to [the victim]
and she’s telling me information.
@ Any other reason other than that?
App. 41
A Well, the information that she’s tell-
ing me is then corroborated by other infor-
mation.
Q Which is what?
A Robin Davis, her brother, the loca-
tion, the description of the location.
* > **k
Q Did you personally attempt to estab-
lish the veracity or credibility of any of the
reports that were prepared by police officers?
A Yes.
( How did you do that?
A By personally interviewing the wit-
nesses myself.
@ In interviewing the witnesses your-
self was your purpose to try to determine the
veracity of the police reports?
A I would phrase it differently because
it seems to imply that I had some question
about the veracity. I had nothing that lead
me to believe that there was a problem other
than I had to focus on the photo line-up
because of how — the uniqueness of it,
because of the way the person was selected,
being a filler, not having a reason why he
as in the line-up, but I would have been
examining those areas so that they would
not have been trial issue areas.
App. 42
© When you say “so that they would
not have been trial issue areas,” what do you
mean?
A Well, | want to make sure that when
a witness is on the stand and | say thinking
back to that day and that time and looking at
the defendant here, are you absolutely cer-
tain it’s that defendant, that their answer is
yes and that they weren’t influenced by
anybody to say yes, and that on the stand
they’re not going to be telling me things that
I should have known before they were
testifying.
(emphases added).
Against this record, McSherry has put forward
insufficient facts and evidence to proceed past sum-
mary judgment. The record is devoid of any informa-
tion, facts, or valid inferences that might undermine
the prosecutor’s testimony. In fact, the evidence —
including the victim’s continuing affirmation of her
identification of McSherry as her attacker — supports
Lamb’s deposition testimony. Accordingly, this case
is particularly distinguishable from Borunda and
Barlow where the prosecutors relied only on police
reports in making their decision to file charges. See
Borunda, 885 F.2d at 1390; Barlow, 943 F.2d at 1136-
37. In the words of Anderson v. Liberty Lobby, Inc.,
477 U.S. at 252, this case is manifestly so “one-sided”
that it need not be submitted to a jury.
McSherry argues also that Turley is liable for
his allegedly false trial testimony regarding the
App. 48
descriptions of the interior of the residence. This
claim is foreclosed by Briscoe v. LaHue, 460 U.S. 325,
326 (1983) (holding that police officers are immune
from liability under 42 U.S.C. § 1983 for perjured
testimony).
3. Monell claims
Because McSherry has no case against the offi-
cers, and because he tenders no facts other than their
alleged personal misdeeds as evidence of a_ policy
statement, ordinance, regulation, decision, custom,
usage, or practice of either the City of Long Beach or
the Long Beach Police Department that caused his
injury, see Poppell, 149 F.3d at 970-71, his Monell
claim also fails as a matter of Jaw. City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If a
person has suffered no constitutional injury at the
hands of the individual police officer, the fact that the
departmental regulations might have authorized the
use of constitutionally excessive force is quite beside
the point.”); Scott v. Henrich, 39 F.3d 912, 916 (9th
Cir. 1994) (“While the lability of municipalities
“ McSherry relies on Harris v. Roderick, 126 F.3d 1189,
1198-99 (9th Cir. 1997) for the proposition that Turley is not
entitled to immunity because he initiated the prosecution. We do
not find this argument persuasive. Harris holds that if officers
“functionally served as complaining witnesses who may be said
to have initiated [the] prosecution they are not entitled to ab-
solute immunity for their false statements.” Jd. In Harris, unlike
the case at bar, there were no other complaining witnesses, only
the officers. Here, the victim served as the complaining witness.
App. 44
doesn’t turn on the liability of individual officers, it is
contingent on a violation of constitutional rights.”);
Jackson v. City of Bremerton, 268 F.3d 646, 653-654
(9th Cir. 2001) (“Neither a municipality nor a super-
visor ... can be held liable under § 1983 where no
injury or constitutional violation has occurred.”). This
case is distinguishable from cases such as Chew v.
Gates, 27 F.3d 1432, 1444 (9th Cir. 1994), where the
City of Los Angeles maintained an explicit policy
involving the use of biting police dogs, one of which
allegedly inflicted excessive force upon the plaintiff.
AFFIRMED.
App. 45
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LLEONARD MCSHERRY,
Plaintiff-Appellant,
v. No. 06-55837
CITY OF LONG BEACH; LONG BEACH D.C. No.
POLICE DEPARTMENT; NORMAN CV-02-03767-RGK
TURLEY, Officer; CARTHEL S.
ROBERSON, 1n his individual
and official capacities,
OPINION
Defendants-Appellees. |
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
February 14, 2008 — Pasadena, California
Filed March 30, 2009
Before: Stephen S. Trott, Richard RK. Clifton,
and Consuelo M. Callahan, Circuit Judges
Opinion by Judge Trott
COUNSEL
Mark A. Borenstein, Overland Borenstein Scheper &
Kim LLP, Los Angeles, California, for the plaintiff
appellant.
App. 46
Michael M. Mullins and Nowland C. Hong, Akerman
Senterfitt LLP, Los Angeles, California, for the
defendants-appellees.
OPINION
TROTT, Circuit Judge:
This case is before us for the second time.’ In this
appeal, Leonard McSherry appeals the district court’s
order granting summary judgment on the ground of
qualified immunity to the City of Long Beach (“City”),
Long Beach Police Department (“LBPD”), Officer
Norman Turley, and Sergeant Carthel S. Roberson.
The allegations in this case stem from a kidnaping,
rape, and molestation that occurred in Long Beach,
California, in March of 1988. After McSherry served
almost fourteen years in prison for these crimes, he
was exonerated by DNA evidence and a confession by
the actual perpetrator. McSherry then brought this
suil, alleging violations of his civil rights pursuant to
A2 U.S.C. § 1983
McSherry argues that Defendants violated his
civil rights by: 1) fabricating the victim’s descriptions
of the interior of the home where the rape occurred;
2) fabricating the victim’s identificalion of the ve
hicle used in the kidnaping; 3) coercing the victim’s
' The first decision, McSherry v. City of Long Beach, (“Mo
Sherry 1”), is reported at 423 F.3d 1015, 1016 (9th Cir. 2005). It
reviews in greater detail the facts leading to MecSherry’s arrest
and conviction
App 47
identification of McSherry as the perpetrator; 4) ig-
noring exculpatory evidence; and 5) arresting Mce-
Sherry without probable cause. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm in part,
reverse in part, vacate in part, and remand.
We conclude that genuine issues of material fact
exist as to whether Turley deliberately fabricated
evidence. See Devereaux v. Abbey, 263 F.3d 1070, 1076
(9th Cir. 2001) (en banc). Accordingly, we reverse and
remand this claim against Turley, but affirm the
district court with respect to all other claims against
him. Because the district court dismissed the Monell
v Dep't of Soc. Servs. of New York, 436 U.S. 658
(1978), claim against the City and LBPD only because
McSherry did not show a constitutional violation at
the hands of Turley or Roberson, and these defen-
dants did not assert any other ground for dismissal
on appeal, we vacate and remand the claim. We
affirm the district court's grant of summary judgment
to Roberson on all claims. We deny McSherry’s re
quest for reassignment to a different judge for the
reasons we articulated in McSherry ]
I
BACKGROUND
‘This appeal comes to us following remand to the
district court after we determined that the district
correct incorrectly granted judgment as a matter of
law to Defendants on the first day of the trial. Mi
Sherry 1, 423 F.3d at 1022. On remand, the district
App. 48
court granted summary judgment to Defendants
on the ground of qualified immunity. The district
court held that probable cause existed for McSherry’s
arrest. It further held that the fabrication of the
evidence claims against Defendants failed because: 1)
McSherry did not present “any evidence that Defen-
dants deliberately fabricated evidence, or acted in
any way that produced false information”; 2) District
Attorney Ken Lamb conducted an independent inves-
tigation of the evidence; and 3) McSherry “failed to
make or support any factual allegations of any fabri-
cation of evidence ... that were logically capable of
supporting” a claim that Turley used unconstitu-
tionally suggestive interview techniques. The district
court held also that the Monell claim against the City
and LBPD failed because McSherry did not show a
constitutional violation by either Roberson or Turley
The issues now before us arise out of the fol-
lowing facts. In March of 1988, the six-year-old victim
was kidnaped from a playground on a Navy Base in
California. The perpetrator raped and molested her
before releasing her several hours later. According
to police reports, the victim and her four-year-old
brother, a witness to the kidnaping, both provided
descriptions of the suspect to the police. Several
weeks later, Turley showed both children a photo
lineup separately, and both identified MeSherry as
the perpetrator. Turley’s police reports indicate that
he showed the victim and her brother photos of cars,
Both selected a yellow Mazda station wagon belong-
ing to McSherry’s fother, identifying it as the vehicle
App 49
used in the abduction. After MecSherry’s arrest, an
adult witness, Kobin Davis, picked McSherry out of a
lineup, identifying him as a person she had seen in
the area on the day of the kidnaping.
McSherry was arrested for the crime on May 17,
198%. According to police reports, Turley and Rober-
son interrogated McSherry, and he provided a de-
tailed description of the interior of his grandparents’
residence. On May 1%, the day after MeSherry’s
arrest, ‘Turley and Navy Investigative Officer Tammy
Warmack interviewed the victim to obtain a descrip
tion of the place she had be-n taken. Turley’s report
documenting this interview states that the victim
picked McSherry’s grandparents’ home out of a photo
lineup, identifying it as the place McSherry had
taken her. The report lists specific details allegedly
provided by the victim about the room where she had
been raped, including: descriptions of 1) a picture of
the kidnapper on the wall; 2) a small brown television
sitting on a pray dresser; 3) a small, possibly twin
size bed, with blue sheets and a white blanket; 4) a
black chair; and 5) a mirror alongside the door.
Qn May 19, Turley and Warmack served a search
warrant at McSherry’s grandparents’ house. Turley’s
subsequent police report states that the victim’s
description provided on May 18, matched a bedroom
in the residence. Furthermore, according to the re-
port, while executing the warrant officers noticed a
bird in the livingroom area and a barking dog in the
backyard
App. 50
On May 24, following the execution of the search
warrant, Turley and Warmack re-interviewed the vic-
tim to determine if she could provide a more detailed
description of the location where she was taken.
During ** | interview, the officers asked if she had
heard or seen any animals at the place she was
taken. According to Turley’s report, the victim said
she heard a bird. Turley asked her several] other
questions regarding the interior of the house, and the
victim’s responses matched details of the interior of
the residence. Specifically, according to Turley, the
victim gave the following additional details: 1) the
room had one door that folded up and one door that
swung open; 2) the mirror was big and round; 3) the
picture of the kidnapper was round and hanging on
the same wall where the television was located; and
4) the room had a window with a seat.”
Turley testified at trial, again attributing the
descriptions of the interior of the residence to the
victim. Also at trial, the victim and Davis identified
McSherry as the perpetrator. Medical evidence indi-
‘ated that McSherry was a possible donor of the
semen taken from the victim’s underwear.
“ According to Turley’s report, although the victim said also
that there was a white push button phone in the bedroom, offi-
cers only observed a black rotary phone in the room. Turley
stated in his report that the investigators believed the victim
may have been remembering the phone in the house where the
kidnapper released her.
App. 5]
Following the trial, McSherry was convicted of
the crimes. In December of 2001, nearly fourteen years
into his forty-eight-year to life sentence, McSherry
was exonerated by DNA evidence. The DNA revealed
that George Valdespino had committed the crime.
aldespino later confessed
Ij
STANDARD OF REVIEW
We review de novo a district court’s grant of sum-
mary judgment on the ground of qualified immunity.
Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th
Cir. 2007). “We may not affirm a grant of summary
judgment if there is any genuine issue of material
fact or the district court incorrectly applhed the sub-
stantive law.” Id. All justifiable inferences are to be
drawn in favor of the non-moving party and his evi-
dence is to be beheved. Id.
IT]
DISCUSSION
“Qualified immunity is ‘an entitlement not to
stand trial or face the other burdens of litigation.”
Saucier v. Katz, 533 U.S. 194, 200 (200]) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Quali-
fied immunity is a two-part test. We must determine
whether, taken in the light most favorable to McSherry,
Defendants’ conduct amounted to a constitutional
violation, and, if so, we must determine whether or
App. 52
not the right was clearly established at the time of
the violation. Jd. at 201 We may address the prongs
in the sequence we see fit. Pearson v. Callahan,
U.S.___, 129 S.Ct. 808, 818 (2009).
A. Fabrication of Evidence
1. Turley
In support of his claim that officers deliberately
jabricated evidence, McSherry points in particular to
the description of the interior of his grandparents’
residence and argues that: 1) he provided Turley a
detailed description of his grandparents’ house after
he was arrested; 2) Turley interviewed the victim the
next day, then later documented in his police report
and also testified at trial that the victim provided a
detailed description of the interior of the residence
during that interview; 3) the victim’s detailed descrip-
tion differed from her imitial description but matched
the grandparents’ residence; 4) after Turley searched
the house, he reported that the victim provided
another description with more matching details, 5)
fourteen years after she was kidnaped, the victim
denied giving the descriptions that Turley docu-
mented and testified to; ana 6) because McSherry was
exonerated of the crimes and another party confessed,
the victim obviously was never in the residence and
could not have provided such a detailed description.
The victim’s deposition creates a genuine issue of
material fact as to whether Turley fabricated evi-
dence. She denied prowiding the detailed description
App. 53
of the residence ascribed to her by Turley. Specifically,
the victim said she did not tell police there was a
picture on the wall because there was not one. She
also denied telling the police that there were blue
sheets and a white blanket on the bed. When asked
whether she had told police that there was a folded
up door in the room where she was taken, she said
“No. There was no way that a five-year-old can actu-
ally remember everything in the house. I mean that’s
too much for a five-year-old. There’s no way. That’s
too much information in a house for a five-year-old to
describe.” She denied also telling police that there
was a window seat, that she heard a bird, or that
there was a circular mirror. That Turley included tha
information, attributed to the victim, in his reports
means there are genuine issues of material fact as to
whether Turley fabricated the descriptions. Credi-
bility is an issue for the trier of fact.
As a result, Turley is not entitled to qualified
immunity. If the evidence was fabricated, Turley vio-
lated McSherry’s “clearly established constituticnal
due process right not to be subjected to criminal
charges on the basis of false evidence that was delib-
erately fabricated by the government.” Devereaux,
263 F.3d at 1074-75. Consequently, we reverse the
judgment of the district court as to this claim that
Turley deliberately fabricated evidence. At trial, Mc-
Sherry may support his deliberate fabrication claim
with evidence that Turley “used investigative tech-
niques that were so coercive and abusive that [he]
knew or should have known that those techniques
App. 54
weuld yield false information.” id. at 1076. McSherry
may present direct or circumstantial evidence, in-
cluding evidence about identifications of McSherry by
the victim, the victim’s brother, and an adult witness,
and identifications of McSherry’s father’s car by the
victim and the victim’s brother.
McSherry argues also that Turley is liable for his
allegedly false trial testimony regarding the descrip-
tions of the interior of the residence. This claim is
foreclosed by Briscoe v. LaHue, 460 U.S. 325, 326
(1983) (holding that police officers are immune from
liability under 42 U.S.C. § 1983 for perjured testi-
mony).
2. Roberson
We hold that no genuine issue of material fact
exists as to whether Roberson fabricated evidence.
There are no police reports by Roberson in the record
attributing the allegedly fabricated descriptions of
the interior of the residence to the victim. Roberson
* McSherry relies on Iarris v. Roderick, 126 F.3d 1189,
1198-99 (9th Cir. 1997) for the proposition that Turley is not
entitled to immunity because he initiated the prosecution. We do
not find this argument persuasive. Harris holds that if officers
“functionally served as complaining witnesses who may be said
to have initiated [the] prosecution they are not entitled to
absolute immunity for their false statements.” 126 F.3d at 1199
In Harris, unlike the case at bar, there were no other com-
plaining witnesses, only the officers. Here, the victim served as
the complaining witness.
App. 55
did not participate in the interviews with the victim,
nor did he participate in serving the search warrant
at the residence. Furthermore, nothing in the victim’s
deposition testimony indicates that Roberson attrib-
uted fabricated descriptions of the residence to her.
3. Monell Claim against the City
Under the Monell doctrine, McSherry may re
cover from the City and LBPD if his injury was in-
flicted pursuant to city policy, regulation, custom, or
usage. See Monell, 486 U.S. at 690-91, 694. The
district court dismissed the claims against the City
and LBPD only because McSherry did not show a
constitutional violation at the hand of Turley or
Roberson, and the City and LBPD did not present
any other argument in support of the judgment in
favor of the City and LBPD. Based on our deter
mination that there is a genuine issue of material fact
as to whether Turley committed a constitutional vio-
lation, and because the defendants have not asserted
any other ground for dismissal on appeal, we vacate
and remand the Monell claim against the City and
LBPD.
B. Exculpatory Evidence
McSherry argues also that Defendants violated
the Due Process Clause of the Fourteenth Amend-
ment by ignoring exculpatory evidence. “A_ police
officer’s failure to preserve or collect potential excul-
patory evidence does not violate the Due Process
—— ee ee ee ee ee ee ee ee ee Oe ee Se ee ee ee ee ee eee ee ee Cee ee ee ee ee ae ee
App. 56
Clause unless the officer acted in bad faith.” Cun-
ningham v. City of Wenatchee, 345 F.3d 802, 812 (9th
Cir. 2003).
McSherry claims that Defendants acted in bad
faith when they ignored: 1) Valdespino’s arrest for a
crime similar to the victim’s abduction one week later
in a nearby county; 2) the fact that initial identi-
fication statements by Davis, the victim, and the
victim’s brother did not resemble McSherry; and 3)
the possibility that Davis’s identification was influ-
enced by a newspaper photograph of McSherry. These
claims fail. First, McSherry does not offer any evi-
dence that in 1988 Defendants knew that Valdespino
was arrested in a nearby county for a similar crime.
Absent such a showing, there is no evidence of bad
faith.
Second, as to the descriptions given by the
children, Defendants “must be given some latitude in
determining when to credit witnesses’ denials and
when to discount them, and we are not aware of any
federal law ... that indicates precisely where the line
must be drawn.” Devereaux, 263 F.3d at 1075. Defen-
dants do not dispute that McSherry did not resemble
the imitial descriptions given by the two children,
however, nothing in the record shows that Defen-
dants acted in bad faith by relying on the children’s
photo lineup identification of McSherry rather than
their initial descriptions.
Third, with respect to Davis’ identification of
McSherry in a photo lineup, McSherry argues that
App. 57
Davis was shown a photo lineup after McSherry’s pic-
ture appeared in the paper, implying that she chose
him because she recognized him from the newspaper
photo. This evidence does not prove bad faith because
we
McSherry must “‘put forward specific, nonconclusory
factual allegations’ that establish improper motive.”
Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001)
(per curiam) (quoting Crawford-El v. Britton, 523
U.S. 574, 598 (1998)). McSherry does not offer any
evidence that Davis ever saw the picture nor that she
based her subsequent identification on that picture.
Furthermore, because Davis selected McSherry’s pic-
ture from the lineup, we do not find bad faith on the
part of Defendants in relying on this identification
rather than her initial description.
‘
> Probable Cause
McSherry claims that Defendants had no prob-
able cause to arrest him because they: 1) fabricated
evidence; 2) used suggestive interview techniques;
3) manipulated or coerced witnesses; and 4) disre-
garded exculpatory evidence. “Probable cause arises
when an officer has knowledge based on reasonably
trustworthy information that the person arrested has
committed a criminal offense.” Gausvik v. Perez, 345
I. 3d 818, 818 (9th Cir. 2003) (citing Beck v. Ohio, 379
U.S. 89, 91 (1964)).
We have already determined that there are no
genuine issues of material fact as to whether Defen-
dants used improper interview techniques or ignored
App. 58
exculpatory evidence. Even if the description of the
interior of the residence was fabricated, Defendants
had probable cause for the arrest. Here, the victim
and her brother identified McSherry as the perpe-
trator and his father’s car as the vehicle used to per-
petrate the crime. Medical evidence indicated that
semen taken from the victim’s underwear could be-
long to McSherry. We hold that these facts estab-
lished probable cause for the arrest. See id.
D. Independent Investigation by District Attor-
ney Lamb
Defendants argue that they cannot be held liable
for any damages McSherry suffered after the district
attorney filed charges against him. We disagree.
“|W Jhere police officers do not act maliciously or with
reckless disregard for the rights of an arrested per-
son, they are not liable for damages suffered by the
arrested person after a district attorney files charges
unless the presumption of independent judgment by
the district attorney is rebutted.” Smiddy v. Varney,
665 F.2d 261, 267 (9th Cir. 1981). The presumption
may be rebutted if McSherry met his burden of show-
ing that “officers knowingly withheld relevant infor-
mation with the intent to harm [him], or that the
officers knowingly supplied false information.” Smiddy
v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986).
In this case, the presumption may be rebutted
because, if Turley fabricated evidence regarding the
victim’s description of the interior of the residence, he
App. 59
knowingly supplied false information to Lamb. We
hold that the investigation and filing of charges by
District Attorney Lamb does not insulate Defendants
from hability.
IV
CONCLUSION
Because genuine issues of material fact exist as
to whether ‘Turley fabricated evidence, we reverse the
grant of summary judgment as to Turley on this claim
and vacate and remand the grant of summary judg-
ment on the Monell claim against the City and LBPD.
We affirm the district court’s grant of summary
judgment to Roberson on all claims, and to Turley, the
City, and LBPD on all remaining claims.
AFFIRMED in part, REVERSED in part, VA-
CATED in part, and REMANDED.
The parties shall bear their own costs of this
appeal.
App. 60
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LEONARD McSHERRY, ) CASE NO.
Plaintiff CV 02-3767 RGK
(MANx)
JUDGMENT
(Filed May 81, 2006)
Va
)
)
)
CITY OF LONG BEACH, ©?
LONG BEACH POLICE
DEPARTMENT, in his )
individual and official
capacities, SERGEANT
CARTHEL S. ROBERSON, ?
in his individual and official ’
capacities, and DOES 2
through 10, inclusive, :
)
Defendants.
TO ALL PARTIES AND THEIR COUNSEL OF
RECORD:
The Motion for Summary Judgment (“Motion”)
by Defendants City of Long Beach (“City”), Long
Beach Police Department (““LBPD”), Officer Norman
Turley (“Turley”), and Sergeant Carthe! S. Roberson
(“Roberson”) (collectively “Defendants”) was taken
under submission by the Honorable R. Gary Klaus-
ner, District Judge Presiding. The Court, after fully
considering the issues and evidence presented by the
Motion, including all written argument and other
paper in support and in opposition thereto, rendered
decision granting summary judgment in favor of
App. 6]
Defendants and against Plaintiff Leonard McSherry
(“McSherry )
IT IS THEREFORE ORDERED AND AD
JUDGED that judgment in this action is entered in
favor of Defendants Turley and Roberson on the basis
of qualified immunity and all other individual claims
against Turley and Roberson are dismissed. The
municipal liability claims against City and LBPD are
dismissed as pendant to the individual liability claims
Plaintiff McSherry take nothing, that the action be
dismissed with prejudice, on the merits, and Defen
dants may apnly to recover their costs by Application
to the Clerk Court
DATED: } "26, 2006
Gary Klausner
R. Gary Klausner, Judge
United States District Court
App. 62
P-SEND, CLOSED
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
AMENDED CIVIL MINUTES - GENERAL
Case No. CV 02-3767-RGK (MANx)
Date May 15, 2006
Title LEONARD McSHERRY v.
CITY OF LONG BEACH, et al.
Present: The Honorable R. GARY KLAUSNER,
U.S. DISTRICT JUDGE
Sharon L. Williams Not Reported N/A
Deputy Clerk Court Reporter Tape No
Recorder
Attorneys Present for Plaintiffs: Not Present
Attorneys Present for Defendants: Not Present
Proceedings: (IN; CHAMBERS) PLAINTIFF'S
MOTION TO CONTINUE TRIAL
DATE (DE 214); DEFENDANTS’
MOTION ©rOR SUMMARY JUDG.-
MENT (DE 216)
lL INPRODUCTION
Plaintil! Leonard McSherry (“McSherry”), brings
this civil rights action under 42 U.S.C. § 1983 against
multiple Defendants: the City of Long Beach (“City”),
Long Beach Police Department (“LBPD”"), Officer
Norman Turley (“Turley”), and Sergeant Carthel S
App. 63
Reberson (“Roberson”) (collectively “Defendants”).
McSherry alleges that Defendants’ improper investi-
gative practices and policies violated his Fourth,
Fifth, and Fourteenth Amendment rights which led to
his conviction for child molestation.
The following facts are undisputed, unless other-
wise stated:
On March 11, 1988, six year-old Candice Birr
(“Candice”) was abducted from a playground near her
home in Long Beach, California and raped. Her ab-
duction was witnessed by her four year-old brother,
Matthew Birr (“Matthew”) and Robin Davis (“Robin”),
a neighbor who reportedly saw a suspicious looking
man driving in unfamiliar green pick-up truck in the
area on the day of the abduction. On May 17, 1988,
McSherry was arrested at his grandparents’ home for
the kidnaping and rape of Candice.
Shortly after McSherry’s arrest, Defendants Tur-
ley and Roberson interrogated McSherry, who pro-
vided a detailed description of the bedroom where the
alleged rape occurred. Turley interviewed Candice the
following day to obtain a description of the place to
which she had been taken. Candice provided Turley
with specific details of the interior, including the color
of the sheets on the bed, and a description of a photo-
graph hanging on the wall. The description conformed
to the interior of the bedroom in McSherry’s grand-
parents’ house. Candice also identified McSherry’s
grandparents’ house from an array of photographs.
App 64
Turley served a search warrant on McSherry’s grand-
parents’ house the following day. McSherry argues
that in her next interview, Candice added more de-
tails to her description of the interior of the house,
including the shape of the mirror, the location of a
photograph, and the sound of a bird in the next room.
During the course of the investigation, McSherry was
positively identified as the perpetrator by Candice,
Matthew, and Robin in separate photographic show-
ups, live line-ups, and in-court identifications. Can-
dice and Matthew also identified McSherry’s father’s
small yellow Mazda station wagon as the vehicle used
in the kidnaping.
In December 2001, McSherry had served nearly
fourteen years of a 48-year to life prison sentence
before his conviction was overturned based on sub-
sequent DNA analysis. The DNA matched that of
George Valdespino, who later confessed in December
2001 that in 1988 he had kidnaped a girl in Long
Beach in a green Ford Ranchero and molested her in
a motel room
On May 8, 2002, McSherry filed a Complaint
against City, LBPD, and Turley, and subsequently
filed a First Amended Complaint (“FAC”) on March
21, 2003 to add Roberson as a defendant, alleging
the following claims pursuant to 42 U.S.C. § 1983:
(1) Fourteenth Amendment due process claim against
Turley and Roberson for unconstitutional interview
procedures; (2) Fourth and Fourteenth Amendment
claim against Turley and Roberson for false arrest;
(3) unconstitutional identification techniques against
App. 65
City and LBPD; (4) failure to train and supervise
against City and LBPD; (5) negligent hiring and re-
tention against City and LBPD; and (6) supervisory
liability against Roberson and LBPD.
On October 21, 2003, just prior to the commence-
ment of trial, Defendants filed a Motion for Judgment
as a Matter of Law under Federal Rule of Civil Proce-
dure 50 (“Rule 50”) on the basis of qualified immu-
nity. The Court heard oral argument on the first day
of trial, and on November 13, 2003, the Court granted
Defendants’ Rule 50 Motion.
On November 18, 2003, McSherry filed an appeal
to the United States Court of Appeals for the Ninth
Circuit. In its appeal, McSherry argued that dismissal
was improper under Rule 50. Defendants, however,
maintained that their motion was proper under Rule
50(a)(2), permitting motions “at any time before sub-
mission of the case to the jury.”
The Ninth Circuit rejected Defendants’ interpre-
tation, and held that the use of Rule 50 at the outset
of trial, prior to the presentation of any evidence is
not supported by the language of the rule, the advi-
sory committee’s notes to the 1991 Amendments, or
caselaw. Specifically, the Ninth Circuit concluded that
the advisory committee’s notes made clear that a
court may not grant a Rule 50 motion before a party
has presented evidence in the case, emphasizing that
Rule 50(a)(2) clearly sets forth the requirement that a
party be “fully heard” on an issue prior to the grant of
a Rule 50 motion. While “early action” is permissible
App. 66
under Rule 50, the Ninth Circuit further stated that
in the present case, it was “too early: McSherry was
not afforded an opportunity to present evidence bear-
ing on the issue of qualified immunity, nor was he
‘apprised of the materiality of the dispositive fact.’”
Accordingly, on January 18, 2006, the Ninth Circuit
issued a Mandate vacating and remanding the No-
vember 13, 2003 Order.
On March 27, 2006, Defendants filed a Motion for
Summary Judgment, which is presently before the
Court. For the reasons stated below, the Court grants
Defendants’ Motion.
Il. JUDICIAL STANDARD
Summary judgment is proper only where “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Upon such a showing, the Court may grant summary
judgment as to “all or any part thereof.” Fed. R. Civ.
af 56(a), (b).
To prevail on a summary judgment motion, the
moving party must show there are no triable issues of
fact as to matters upon which it has the burden of
proof at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). On issues where the moving party
does not have the burden of proof at trial, the mov-
ing party is required only to show that there is an
App. 67
absence of evidence to support the nonmoving party’s
case. Id. at 326.
To defeat a summary judgment, the non-moving
party may not merely rely on its pleadings or on con-
clusory statements. Fed. R. Civ. P. 56(e). Nor may
the non-moving party merely attack or discredit the
moving party’s evidence. Nat'l Union Fire Ins. Co. v.
Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983). The
non-moving party must affirmatively present specific
admissible evidence sufficient to create a genuine is-
sue of material fact for trial. See Celotex Corp ov.
Catrett, 477 U.S. at 324.
III. DISCUSSION
A. Qualified Immunity Is Warranted
Generally, the actions of government officials are
protected from civil liability under the doctrine of
qualified immunity. Camarillo v. McCarthy, 998 F.2d
638, 639 (9th Cir. 1993) (citing Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). When a public official as-
serts qualified immunity from liability in a Section
1983 action, the Court must determine whether, in
light of clearly established principles governing the
conduct in question, the official objectively could
have believed that his conduct was lawful. Act Up!/
Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993)
(citing Anderson v. Creighton, 483 U.S. 635, 64]
(1987)). The Court must determine whether officials
acted reasonably under settled law in the circum-
stances, not whether another reasonable approach
App. 68
can be invented after the fact. Hemphill v. Kincheloe,
987 F.2d 589, 591-92 (9th Cir. 1993).
The Supreme Court has instructed that qualified
immunity shields officers from § 1983 actions where a
reasonable officer could conclude, even if he is mis-
taken, that probable cause is present. See Hunter uv.
Bryant, 502 U.S. 224, 227 (1991). Moreover, the quali-
fied immunity doctrine “gives ample room for mis-
taken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.”
Id. at 229. Because qualified immunity is “an entitle-
ment not to stand trial” rather than a defense to
liability, it is important to resolve immunity questions
at the earliest possible stage of litigation. Saucier v.
Katz, 533 U.S. 194, 201 (2001). If a reasonable official
could have believed that his actions were lawful, sum-
mary judgment on the basis of qualified immunity is
appropriate. Hemphill, 987 F.2d at 598.
This Court finds that even though modern DNA
analysis revealed that another suspect, George Val-
despino, committed the crime against Candice, De-
fendants had probable cause to arrest and charge
McSherry because McSherry was positively identified
as the culprit by several eyewitnesses supported by
corroborating evidence. Candice identified McSherry
twice prior to his arrest in a photo showup and later
in a live lineup. Matthew and neighbor Robin also
positively identified McSherry in a photo showup and
live lineup. In addition, Candice and Matthew selected
from an array of photographs, McSherry’s father’s
small yellow Mazda station wagon as the car used in
App. 69
the kidnaping. It is undisputed that McSherry had
been seen driving the vehicle. Corroborating evidence
from the Los Angeles County Sheriff ’s crime lab fur-
ther concluded that McSherry was a possible donor of
the semen taken from Candice’s rape kit. Thus, based
on the totality of the evidence, Defendants had prob-
able cause to arrest and charge McSherry.
B. Deliberate Fabrication of Evidence
McSherry argues that because it is uncontro-
verted that Candice was never inside McSherry’s
grandparents’ house, Turley’s testimony at trial relat-
ing to Candice’s alleged description of the interior of
the grandparents’ house was deliberately fabricated.
To prove this claim, McSherry “must, at a minimum,
point to evidence that ... Defendants continued their
investigation ... despite the fact that they knew or
should have known that he was innocent” or that “De-
fendants used investigative techniques that were so
coercive and abusive that they knew or should have
known that those techniques would yield false in-
formation. Devereaux v. Abbey, 263 F.3d 1070, 1076
(9th Cir. 2001) (en banc). This claim fails because
McSherry has not adduced or presented any evidence
that Defendants deliberately fabricated evidence, or
acted in a way that produced false information.
McSherry was charged for the crime based on an
independent investigation of the evidence by District
Attorney Ken Lamb. McSherry was later convicted on
App. 70
the basis of the testimony and in-court identifications
by Candice, Matthew, Robin, and Turley’s testimony
about Candice’s identification and description of
McSherry’s grandparents’ house. In light of the to-
tality of the circumstances, there is no evidence
that Defendants knew or should have known that
McSherry was innocent.
Moreover, McSherry specifically argues that Tur-
ley employed unconstitutionally suggestive procedures
to cause Candice and Matthew to identify McSherry
and McSherry’s father’s yellow Mazda during the
photographic show-ups. However, mere allegations
and inferences that Defendants used interviewing
techniques that were in some sense improper does not
give rise to a due process claim under Section 1983.
There is no constitutional due process right to have
child witnesses in a sexual abuse case be interviewed
in any “particular manner, or to have the investi-
gation carried out in a particular way.” Devereaux,
263 F.3d at 1075. Interviewers of child witnesses in
sexual abuse investigation “must be given some lati-
tude in determining when to credit witnesses’ denials
and when to discount them.” /d. Thus, suggestive
interviewing methods, even if it “violated state regu-
lations, without more, cannot serve as the basis for a
claim under § 1983. Jd. McSherry has failed to make
or support any factual allegations of any fabrication
of evidence against Defendants that were logically
capable of supporting such a claim.
App. 71
C. Monell Liability for the City and the
LBPD
McSherry brings § 1983 claims against City and
LBPD under Monell v. Dep't. of Soc. Serus., 436 U.S.
658 (1978), alleging that City and LBPD maintained
policies or practices that included failure to train or
supervise officers on investigation procedures, and
reckless retention or assignment of officers. The
Monell claim against City and LBPD fails because
McSherry has not shown a constitutional violation
at the hand of Turley or Roberson. See City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986); see also
Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th
Cir. 1991) (holding that a governmental officer or
entity can be found liable in an official capacity “only
if policy or custom or a one-time decision by a govern-
mentally authorized decision-maker ... played a part
in the violation of federal law.”)
D. McSherry’s Motion to Continue Trial
In light of the Court’s granting of Defendants’
Motion for Summary Judgment, McSherry’s Motion
to Continue Trial is deemed as moot.
IV. CONCLUSION
For the foregoing reasons, Defendants Turley and
Roberson’s Motion for Summary Judgment on the
basis of qualified immunity is hereby granted and all
other individual claims against Turley and Roberson
are dismissed. The municipal liability claims against
App. 72
City and LBPD are dismissed as pendant to the 1
dividual liability claims.
ITIS SO ORDERED.
Initials of Preparer
App. 73
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD MCSHERRY,
Plaintiff-Appellant,
No. 06-55837
'D.¢ ». No.
: CV-02-03767-RGK
|
j
ee | |
CITY OF LONG BEACH, |7entral District of
LONG BEACH POLICE | ‘alifornia, Los Angeles
DEPARTMENT; NORMAN |ORDER
TURLEY: CARTHELS
ROBERSON, in his
individual and official
(Filed Jan. 20, 2010)
capacities,
Defendants-Appellee:
Before: TROTT, CLIFTON and CALLAHAN, Circuit
Judge:
The panel as constituted above has voted to deny
the petition for rehearing. Judges Clifton and Calla
han have voted to deny the petition for rehearing en
banc and Judge Trott so recommend:
The full court has been advised of the suggestion
for rehearing en banc and no judge of the court ha:
reques ted a vote on it. Fed. R App P. 35(b
The petition for rehearing and the petition for
rehearing en banc are DENIED
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