                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MAURICE CALDWELL,                                No. 16-15473
              Plaintiff-Appellant,
                                                    DC No.
                     v.                         3:12-CV-01892-
                                                     EDL
 CITY AND COUNTY OF SAN
 FRANCISCO; SAN FRANCISCO POLICE
 DEPARTMENT; KITT CRENSHAW;                         OPINION
 ARTHUR GERRANS; JAMES
 CROWLEY,
              Defendants-Appellees.


       Appeal from the United States District Court
           for the Northern District of California
     Elizabeth D. Laporte, Magistrate Judge, Presiding

           Argued and Submitted October 13, 2017
                 San Francisco, California

                       Filed May 11, 2018

  Before: A. Wallace Tashima and Jay S. Bybee, Circuit
 Judges, and Matthew Frederick Leitman,* District Judge.

                   Opinion by Judge Tashima

    *
      The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
2       CALDWELL V. CITY & CTY. OF SAN FRANCISCO

                            SUMMARY**


                             Civil Rights

   The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in an action
brought pursuant to 42 U.S.C. § 1983 alleging that San
Francisco Police Department officials fabricated evidence
against plaintiff during his investigation for murder.

    Plaintiff spent nearly twenty years in prison as a result of
his murder conviction. He brought a § 1983 action after a
state court granted his petition for writ of habeas corpus and
ordered his release. Plaintiff alleged that a police sergeant
deliberately manufactured a “show-up” by exposing him to a
witness with the purpose of manipulating that witness into
misidentifying plaintiff as the murder suspect. He further
alleged that the sergeant deliberately fabricated a statement
by plaintiff that placed plaintiff at the site of the shooting.
Finally, plaintiff alleged that his interaction with police
inspectors during a photo lineup were so coercive that they
rose to the level of deliberate fabrication of evidence.

    In reversing the district court’s grant of summary
judgment in favor of the police sergeant, the panel held that
drawing all reasonable inferences in favor of plaintiff, he
established that the sergeant had a motive to retaliate against
him. He further raised a genuine issue as to whether the
sergeant arranged the show up, deliberately fabricated the
statement and memorialized it in falsified notes. The panel

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
      CALDWELL V. CITY & CTY. OF SAN FRANCISCO                3

held that plaintiff rebutted any presumption of prosecutorial
independence and established a triable issue as to whether the
allegedly fabricated identification and falsified statements
caused him harm.

    In affirming the district court’s summary judgment as to
the police inspectors, the panel held that their conduct during
a photo line-up was not so coercive that it rose to the level of
fabricated evidence.


                         COUNSEL

Terry Gross (argued), Adam C. Belsky, and Monique Alonso,
Gross Belsky Alonso LLP, San Francisco, California, for
Plaintiff-Appellant.

Sean F. Connolly (argued) and Bradley A. Russi, Deputy City
Attorneys; Cheryl Adams, Chief Trial Attorney; Dennis J.
Herrera, City Attorney; Office of the City Attorney, San
Francisco, California; for Defendants-Appellees.
4       CALDWELL V. CITY & CTY. OF SAN FRANCISCO

                               OPINION

TASHIMA, Circuit Judge:

                         INTRODUCTION

    Plaintiff-Appellant Maurice Caldwell spent nearly twenty
years in prison for the 1990 murder of Judy Acosta. Upon
release,1 Caldwell sued San Francisco Police Department
(“SFPD”) officials Kitt Crenshaw, Arthur Gerrans, and James
Crowley, under 42 U.S.C. § 1983, for allegedly fabricating
evidence against him during the murder investigation.

    As to Sergeant Crenshaw, Caldwell alleges that the
officer deliberately manufactured a “show-up” with Caldwell
at a witness’ door. Specifically, Caldwell asserts that
Crenshaw deliberately exposed Caldwell to a witness with the
purpose of manipulating that witness into misidentifying
Caldwell as the murder suspect. The alleged show-up, if it
occurred, may have worked. Mary Cobbs, the witness in
question, later picked Caldwell out of a photo lineup despite
her initial description of the suspect being, in some regards,
inconsistent with Caldwell’s physical traits.



    1
      On December 15, 2010 the Superior Court of California, County of
San Francisco, granted Caldwell’s petition for a writ of habeas corpus and
ordered his release. Caldwell argued that he was entitled to the writ on the
grounds of, among other things, ineffective assistance of counsel, actual
innocence and that newly discovered evidence undermined the
prosecution’s case. The court held that Caldwell’s trial attorney was
ineffective on account of failing to investigate potential alibi and other
eyewitnesses that supported Caldwell’s arguments that he was not present
and was not the shooter. The court did not rule on Caldwell’s other
grounds in support of his petition.
        CALDWELL V. CITY & CTY. OF SAN FRANCISCO                      5

    Regarding Inspectors Gerrans and Crowley, Caldwell
alleges that their investigative techniques – mostly their
interactions with Cobbs during the photo lineup – were so
coercive that they rose to the level of deliberate fabrication of
evidence.

    The district court granted all of Defendants’ motions for
summary judgment, but for different reasons. As to
Crenshaw, the district court held that Caldwell had raised a
triable issue as to whether the Sergeant fabricated evidence.
The district court concluded, however, that the Sergeant was
shielded from liability because the prosecutor’s decision to
charge Caldwell was subject to a presumption of
independence and, therefore, broke the chain of causation
between the alleged wrongdoing and Caldwell’s harm. As to
Gerrans and Crowley, the district court held that Caldwell had
not raised a triable issue as to whether either or both of them
had deliberately fabricated evidence.

    We hold that because Caldwell rebutted any presumption
of prosecutorial independence, he established a triable issue
as to whether Crenshaw fabricated evidence against him.
Therefore, we reverse and remand as to Crenshaw.2 As to
Gerrans and Crowley, we hold that their investigation
techniques were not so coercive that they rose to the level of
fabricated evidence. Thus, we affirm as to Gerrans and
Crowley.




    2
       Caldwell also brought claims against the SFPD, and the City and
County of San Francisco, under Monell v. Department of Social Services,
436 U.S. 658 (1978), but the district court did not reach the issue. The
district court should address these claims on remand.
6        CALDWELL V. CITY & CTY. OF SAN FRANCISCO

 I. FACTUAL AND PROCEDURAL BACKGROUND

    A. The Acosta Murder and Caldwell’s Conviction

     On June 30, 1990, a group of four persons, including Judy
Acosta and Domingo Bobila, went to a San Francisco housing
project to buy drugs. There, a group approached Acosta and
Bobila, offering to sell crack. The sale went wrong and one
of the dealers pulled out a handgun and shot Acosta in the
chest. Bobila tried to flee in his car and a second man began
firing a shotgun. Bobila and Acosta were hit by shotgun fire
and Acosta died in the car. Caldwell claims that he was not
present at the shooting; Defendants claimed that Caldwell
was the shotgun shooter.

    In March 1991, a jury convicted Caldwell of second-
degree murder for shooting Acosta with the shotgun. Mary
Cobbs testified at trial and identified Caldwell as the shotgun
shooter.3 A few months afterwards Cobbs and her children
received roundtrip tickets to Disneyland from the San
Francisco Secret Witness Program.

    B. The July 13, 1990 Canvass

    On July 13, 1990, Inspector Gerrans, Sergeant Crenshaw,
and Officer Robert Doss of the SFPD canvassed the housing
project where the Acosta murder occurred. The general
purpose of the canvass was to, among other things, find
witnesses to the murder. The day before, the police had
received an anonymous tip that the police should “check out”
Caldwell, “who had been shooting off guns in the projects . . .


    3
        Cobbs passed away in 1998.
        CALDWELL V. CITY & CTY. OF SAN FRANCISCO                        7

for years.” During the canvass, Gerrans mentioned the name
Caldwell to Crenshaw and Crenshaw said he knew him.

     Caldwell and Crenshaw had history. Caldwell had
interacted with Crenshaw between six and nine times prior to
the 1990 murder investigation. During these stops Caldwell
said that Crenshaw would tell him things such as,“[h]e [sic]
going to catch me, and when he do catch me, he going to end
up killing me or he going to have me in jail for the rest of my
life, you know.” Five months before the murder, Caldwell
filed a complaint with the Office of Citizen Complaints
(“OCC”)4 against Crenshaw.            During the OCC’s
investigation, Crenshaw admitted telling Caldwell:

         One day I’m going to be sitting up there and
         you’re going to be blown away. Something’s
         going to happen to you because sooner or later
         I’m going to catch you with a gun and you
         and I are going to have it out. I’m going to kill
         you. Next time we’re going to get the drop on
         you.

Gerrans later testified that had he known about Crenshaw and
Caldwell’s history, he may have had second thoughts about
Crenshaw being involved in the investigation.



    4
      According to the City and County of San Francisco’s government
website, “[t]he OCC was the civilian oversight department for the San
Francisco Police Department . . . . The OCC investigated complaints of
misconduct and neglect of duty by police officers, could file disciplinary
charges against officers, and make policy recommendations.” See DEP’T
OF POLICE ACCOUNTABILITY, New! The OCC is now the Department of
Police Accountability, SFGOV (Feb. 7, 2017), http://sfgov.org/dpa/news-
release/new-occ-now-department-police-accountability.
8     CALDWELL V. CITY & CTY. OF SAN FRANCISCO

    Gerrans met Cobbs during the course of the canvass.
Cobbs had witnessed the shooting and agreed to an interview
with Gerrans. During the interview, Cobbs stated that the
shooters did not live around her, but that she recognized them
from seeing them in the area a few times. Cobbs said she did
not know the shooters’ names or nicknames. Cobbs gave a
description of the shotgun shooter as a 5'4", 150-pound,
African-American man that wore his hair in a jheri curl.
Caldwell had an apartment next door to Cobbs’ and may have
lived there.

       1. The Alleged Show-up at Cobbs’ Door

     During the July 13, 1990, canvass, Crenshaw saw
Caldwell on the street and approached him. In Caldwell’s
retelling, Crenshaw knew that Gerrans was interviewing a
potential witness and marched Caldwell to Cobbs’ door. At
the door Crenshaw knocked, Cobbs answered, and Crenshaw
asked if the homicide inspector was there. Caldwell and
Cobbs made eye contact. According to Caldwell, once
Gerrans came to the door, Crenshaw stated “this is Maurice
Caldwell, or Twone, right here. And can I have your keys?”
Crenshaw asked for Gerrans’ keys despite having his own car
nearby. Andrena Gray, Caldwell’s girlfriend at the time,
corroborated Caldwell’s story in a later-filed declaration,
stating Crenshaw “forcibly walked [Caldwell] down the
street, and stopped in front of the door of an apartment, which
I later learned was the apartment of Mary Cobbs.”

    Caldwell alleges that Crenshaw manufactured this show-
up to manipulate Cobbs into falsely identifying Caldwell as
the shooter. Defendants do not dispute that Crenshaw
knocked on Cobbs’ door while Gerrans was interviewing the
        CALDWELL V. CITY & CTY. OF SAN FRANCISCO                           9

witness, but they all contend that Caldwell was not with
Crenshaw at the door.

         2. The Conversations between Caldwell and
            Crenshaw

    Caldwell and Crenshaw spoke to one another two
different times during the canvass. The men tell different
stories. First, Crenshaw confronted Caldwell in the street. It
was during this encounter on the street that, according to
Crenshaw, Caldwell made a “spontaneous statement” about
being present at the shooting and dealing drugs. The second
encounter between Crenshaw and Caldwell took place in
Gerrans’ car and Crenshaw told Caldwell that homicide
wanted to talk to him.

   According to Caldwell, on the street, he asked Crenshaw,
“why do you harass me?”5 In the car, Crenshaw asked “what
do you know about a murder?” and Caldwell responded, “I
don’t know nothing about nothing.” Crenshaw then allegedly
asked Caldwell where he was the night of the murder and
Caldwell replied that he was at his uncle’s house. From these
encounters, Crenshaw later wrote the following notes:

         Maurice Caldwell stated that he was present at
         the shooting, but he was down the street.
         Prior to the shooting. Caldwell was with the
         suspects dealing drugs. After the shooting
         Caldwell returned and started yelling at the
         shooters, he did this because he felt he was
         going to be blamed. He further stated he knew

     5
       Gray also filed a declaration that she witnessed the first interaction
on the street and corroborates Caldwell’s version.
10     CALDWELL V. CITY & CTY. OF SAN FRANCISCO

        why I stopped him, because ‘anytime
        somebody does any shooting it’s usually me.’
        ‘But that was before, I don’t do that any more
        [sic].’

Caldwell denies having said any of this and alleges that
Crenshaw fabricated the statement and falsified the notes.

     C. The July 26, 1990 Photo Lineup

    On July 25, 1990, Cobbs tried to cancel a scheduled photo
lineup, stating that she had been threatened for cooperating
with the police. Gerrans convinced Cobbs to come in
regardless.

    On July 26, 1990, Cobbs met with Gerrans and Crowley.
Gerrans and Crowley then performed a non-videotaped photo
lineup. Recording a photo lineup would have been the
department’s “number one choice” in 1990, but there is no
evidence that it was required by policy. After Cobbs
apparently picked Caldwell out of the photo lineup as the
shotgun shooter, the officers turned on a camera and
conducted the photo lineup again. Once the camera was
rolling, Cobbs picked Caldwell again and said that she had
heard that people call him, “Twan.”

    After the photo lineup, the officers asked Cobbs to
recount what she saw the night of the shooting. During
Cobbs’ retelling, the officers interjected with statements, such
as “this is the man you saw out front of your house the night
of the shooting and he had a shotgun. Is that correct?” Later,
the officers asked, “[t]he man that you saw, you picked out in
this picture here, the man with the shotgun, he was still
shooting the shotgun as the car was leaving?” Finally, the
      CALDWELL V. CITY & CTY. OF SAN FRANCISCO               11

officers referenced Caldwell by name: “When you went to
the window, you recognized this man and I’m turning over
the picture of Maurice Caldwell SF No. 445392. That’s the
man that you recognized. ‘Cuz you saw him in the area
before, right?”

    The officers also discussed that people had threatened
Cobbs for cooperating with the police. During Gerrans’
deposition, Caldwell’s attorney asked, “Did you say to
[Cobbs] . . . [that] the police department would take efforts to
protect her [from threats] if she was able to help you in
ID’ing this person as a suspect?” To which Gerrans replied,
“I believe that was said.” Gerrans continued “we didn’t go
into witness . . . relocation or anything like that. We didn’t
promise her anything at that time. We promised we would
take care of her to protect her.”

   D. The Prosecutor’s Actions

    Assistant District Attorney, Alfred Giannini, prosecuted
Caldwell. In support of Defendants’ motion for summary
judgment, Giannini filed a declaration describing his
investigation in the case. Giannini declared that he
authorized charges against Caldwell on September 20, 1990,
after reviewing all the evidence available to him. Before the
preliminary hearing on December 3, 1990, Giannini
interviewed a number of witnesses and did not believe they
had been coached. At the preliminary hearing, in response to
Caldwell’s attorney’s questioning of Cobbs, Giannini
considered, for the first time, whether Cobbs had seen
Caldwell during the alleged show-up, but “determined that
Ms. Cobbs had not seen Mr. Caldwell, and . . . decided that
even if she had, it hadn’t undermined the reliability or
veracity of her testimony.” Giannini further stated, that
12     CALDWELL V. CITY & CTY. OF SAN FRANCISCO

although he did not elicit any evidence about Caldwell’s July
13, 1990, statement at trial, he initially considered the
“inconsistency” between that statement and Caldwell’s
September 21, 1990, statement, but “decided it was a minor
factor when reviewing the totality of the evidence.”

     E. The District Court’s Opinion

    As to Gerrans and Crowley, the district court held that
Caldwell had not raised a triable issue on whether either or
both of them had deliberately fabricated evidence against
Caldwell. As to Crenshaw, the court held that Caldwell had
raised a triable issue whether Crenshaw had (1) manufactured
the alleged show-up to manipulate Cobbs into identifying
Caldwell, and (2) deliberately fabricated a statement by
Caldwell, which placed Caldwell at the site of the shooting.
The court stated:

        [Caldwell] has come forth with evidence that
        Crenshaw was hostile to [Caldwell] and
        threatened to catch him, get “the drop” on him
        and kill him. Additionally, Crenshaw knew
        that Caldwell was a suspect, knew that
        Gerrans was inside a home talking to someone
        who might possibly be a witness, and
        allegedly brought [Caldwell] to that person’s
        door. It is undisputed that Mary Cobb’s
        identification of [Caldwell] was a critical
        component in the state’s case against
        [Caldwell]. Moreover, although Crenshaw’s
        notes were not introduced at trial, Plaintiff
        plausibly argues that the investigation
        continued to focus on him, at least in part, as
        a result of Crenshaw’s false report.
       CALDWELL V. CITY & CTY. OF SAN FRANCISCO               13

    Nonetheless, the district court still granted summary
judgment to Crenshaw on the basis that Giannini’s
presumptively independent decision to charge and prosecute
Caldwell broke the chain of causation between the fabricated
evidence and Caldwell’s injury.

              II. STANDARD OF REVIEW

     This court reviews a grant of summary judgment de novo.
See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001)
(en banc). “Viewing the evidence in the light most favorable
to the nonmoving party, we must determine whether there are
any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” Id.
(citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
(en banc)).

                       III. ANALYSIS

     “[T]here is a clearly established constitutional due process
right not to be subject to criminal charges on the basis of false
evidence that was deliberately fabricated by the government.”
Id. at 1074–75. A plaintiff can prove deliberate fabrication in
several ways. Most basically, a plaintiff can produce direct
evidence of deliberate fabrication. See Spencer v. Peters,
857 F.3d 789, 793 (9th Cir. 2017) (citing Costanich v. Dep’t
of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir.
2010)). Alternatively, a plaintiff can produce circumstantial
evidence related to a defendant’s motive. Devereaux,
263 F.3d at 1076. Devereaux noted that to prove a
fabrication claim using circumstantial evidence, a plaintiff
must:
14      CALDWELL V. CITY & CTY. OF SAN FRANCISCO

         support[] at least one of the following two
         propositions: (1) [d]efendants continued their
         investigation . . . despite the fact that they
         knew or should have known that [the plaintiff]
         was innocent; or (2) [d]efendants used
         investigative techniques that were so coercive
         and abusive that they knew or should have
         known that those techniques would yield false
         information.

Id.

      A. Sergeant Crenshaw

   As an initial matter, Caldwell is supporting his claims
against Crenshaw with direct evidence of fabrication.

         1. Fabrication

    Caldwell contends that Crenshaw fabricated evidence
against him by (1) manufacturing a show-up with Caldwell at
Cobbs’ door to manipulate her into identifying Caldwell as
the shooter, and (2) fabricating a statement from Caldwell by
falsifying notes of a conversation between the officer and the
suspect. Caldwell suggests that Crenshaw fabricated this
evidence because he was out to get Caldwell after Caldwell
reported the officer to the OCC for alleged abuses. In the
light most favorable to the non-moving party, Caldwell has
raised a triable issue as to whether Crenshaw deliberately
fabricated this evidence.

   First, Caldwell presents evidence suggesting that
Crenshaw had a motive to target him during the 1990
investigation. Crenshaw had stopped Caldwell between six
       CALDWELL V. CITY & CTY. OF SAN FRANCISCO                      15

and nine times prior to the 1990 murder investigation.
During these stops Caldwell said that Crenshaw would
threaten to kill him or throw him in jail for life. Additionally,
five months before the murder, Caldwell filed a complaint
with the OCC against Crenshaw as to which Crenshaw
admitted that he had threatened Caldwell. While Defendants
are correct that retaliatory motive is not an element of a
fabrication of evidence claim, these facts, taken in the light
most favorable to Caldwell, support the inference that
Crenshaw fabricated evidence.

             a. The Alleged Show-up

    The district court correctly held that Caldwell raised a
triable issue as to whether Crenshaw fabricated evidence by
showing-up at Cobbs’ door with Caldwell. To put it simply,
there is clearly a dispute of fact about whether this show-up
occurred. For one, Defendants concede that there are at least
four “versions” of the alleged show-up at Cobbs’ door. In
Caldwell’s version, Crenshaw detained Caldwell during the
July 13, 1990 canvass and marched him to Cobbs’ apartment,
where Caldwell made eye contact with the witness.6
According to Caldwell, once Gerrans came to the door
Crenshaw stated “this is Maurice Caldwell, or Twone, right
here. And can I have your keys?” Crenshaw asked for
Gerrans’ keys despite having his own car in the
neighborhood. Defendants dispute that Caldwell was with
Crenshaw at Cobbs’ door.

   Nevertheless, there is support for Caldwell’s version of
events. Cobbs’ initial description of the shooter is

     6
       Gray corroborates Caldwell’s version of the events, thus
strengthening our conclusion that there is a triable issue for the jury.
16    CALDWELL V. CITY & CTY. OF SAN FRANCISCO

inconsistent with her later selection of Caldwell in the photo
lineup. First, Cobbs’ description of the shooter as a 5'4", 150-
pound, African-American man with a jheri curl hairstyle is a
fairly accurate description of Caldwell, but not exact.
Crenshaw described Caldwell as 5'5" and 125-pounds. More
importantly, Cobbs first stated that the shooters did not live
in the neighborhood and that she did not know their names or
nicknames. However, there is evidence in the record that
Caldwell was Cobbs’ neighbor and Cobbs later stated she had
heard that people called Caldwell “Twan.” Taking these facts
in the light most favorable to Caldwell, the inference is that
Cobbs would have initially told Gerrans that she recognized
the shooter as her neighbor if she thought that Caldwell was
the shooter. The fact that Cobbs only later identified
Caldwell and his nickname supports the inference that the
show-up occurred and influenced her initial recollection of
the shooting.

    There is also a triable issue as to whether Crenshaw
brought Caldwell to Cobbs’ front door for the purpose of
fabricating evidence against Caldwell. Citing, Perry v. New
Hampshire, 565 U.S. 228 (2012), Defendants argue that the
show-up did not implicate Caldwell’s due process rights
because the facts do not support the notion that it was a
police-arranged. Specifically, Defendants contend that
Crenshaw could not have arranged the show-up because he
did not know that Cobbs was a witness. Defendants’
argument is not convincing.

    First, Perry is distinguishable in that the defendant
conceded that “law enforcement officials did not arrange the
suggestive circumstances surrounding [the witness’]
identification.” Id. at 240. Second, in contrast to Perry, here
there is evidence that Crenshaw purposely put Caldwell in
      CALDWELL V. CITY & CTY. OF SAN FRANCISCO             17

front of Cobbs to infect her recollection and suggest Caldwell
as the shooter. Drawing all reasonable inferences in favor of
Caldwell, he established first, that Crenshaw had a motive to
retaliate against him for reporting the officer to the OCC.
Further, Crenshaw generally understood the purpose of the
canvass to be looking for witnesses and evidence, and it is
reasonable to infer that Crenshaw knew Gerrans was
interviewing Cobbs as a witness. Finally, Caldwell presented
evidence that Crenshaw asked for Gerrans’ car keys as a
pretext for the show-up even though Crenshaw had his own
car in the neighborhood.          Taken together, Caldwell
establishes a genuine issue as to whether Crenshaw arranged
the show-up.

           b. The Allegedly Fabricated Statement

    There is also a triable issue as to whether Crenshaw
deliberately fabricated a statement from Caldwell and
memorialized it in falsified notes. According to Caldwell,
Crenshaw first confronted Caldwell in the street and, as
witnessed by Gray, all Caldwell said was something to the
effect of “why are you harassing me?” After the show-up,
Crenshaw brought Caldwell to Gerrans’ car. In the car,
Crenshaw asked “what do you know about a murder?” and
Caldwell responded, “I don’t know nothing about nothing.”
Crenshaw allegedly asked Caldwell where he was the night
of the murder and Caldwell replied that he was at his uncle’s
house.

    Crenshaw had a different view of the conversations.
Crenshaw later memorialized his version of the interactions
in a report. According to Crenshaw, Caldwell made a
“spontaneous statement” on the street about being present at
the shooting and dealing drugs. The report also claimed that
18     CALDWELL V. CITY & CTY. OF SAN FRANCISCO

Caldwell stated he returned to the scene after the shooting to
yell at the shooters.

    Clearly there is a triable dispute about whether Caldwell
actually made the statements attributed to him by Crenshaw.
Further, the discrepancy between Caldwell and Crenshaw’s
accounts of their conversations is the type of direct evidence
of fabrication that was at issue in Costanich. In Costanich,
the court found evidence of intentional fabrication sufficient
to survive summary judgment where “witnesses pointed out
that the [investigation] report contained evidence or
statements they never made.” Costanich, 627 F.3d at 1112.
Here, Caldwell stated in his deposition that “[t]he only thing
correct in [the disputed statement] is my name.”

    Defendants counter that the discrepancies between the
accounts do not rise to the level of fabrication and are “[a]t
the very worst . . . careless or inaccurate.” As support,
Defendants cite Gausvik v. Perez, which held that an affidavit
for probable cause that contained errors was not sufficient to
establish deliberate fabrication of evidence. 345 F.3d 813,
817 (9th Cir. 2003). The affidavit in Gausvik stated that three
children had tested “positive” for sexual abuse when really
the tests were only “suggestive” or “consistent” with abuse.
Id. Further, the affidavit stated that eight children had
accused the suspect, when only two had, but one of them told
the officer that the suspect had abused at least eight other
children. Id. The court chalked these errors up the officer
being careless with the facts, but that the errors did not rise to
the level of deliberate fabrication. Id.; Costanich, 627 F.3d
at 1112 (not every “recording error[] and misstatement[]” in
an investigative record rises to the level of constitutional
violation).
      CALDWELL V. CITY & CTY. OF SAN FRANCISCO             19

    Defendants cherry pick facts from Caldwell’s statements
to attempt to portray the discrepancies in Crenshaw’s notes as
careless errors like those in Gausvik. For example, Caldwell
said that he told Crenshaw that he was at his uncle’s house,
which is “down the street” from the shooting. Defendants also
contend that, because Caldwell later testified that he went to
the scene after the shooting, there is no inconsistency with
Crenshaw’s note. These arguments are unsupported by the
record.

     What Defendants fail to mention is that Caldwell never
admitted that he was with the drug dealers, dealing drugs, or
that “anytime somebody does any shooting it’s usually me.”
There is a wide gulf between telling someone you were at
your uncle’s house nearby when a shooting occurred and
telling someone you were “present” for a shooting and were
“with the suspects dealing drugs.” We conclude that the
potential “errors” are not obviously the product of
carelessness and that there is a triable issue as to whether
Crenshaw intentionally fabricated his notes.

       2. Causation

    Our inquiry, however, does not end with the conclusion
that Caldwell has raised triable issues on whether Crenshaw
deliberately fabricated evidence. Caldwell must still come
forward with a showing that the fabrication caused him some
harm.

    “To prevail on a § 1983 claim of deliberate fabrication, a
plaintiff must prove that (1) the defendant official
deliberately fabricated evidence and (2) the deliberate
fabrication caused the plaintiff’s deprivation of liberty.”
Spencer, 857 F.3d at 798 (citing Costanich, 627 F.3d at
20    CALDWELL V. CITY & CTY. OF SAN FRANCISCO

1111). To establish causation, Caldwell must raise a triable
issue that the fabricated evidence was the cause in fact and
proximate cause of his injury. See id. Like in any proximate
cause analysis, an intervening event may break the chain of
causation between the allegedly wrongful act and the
plaintiff’s injury. See Beck v. City of Upland, 527 F.3d 853,
862 (9th Cir. 2008) (citing RESTATEMENT (SECOND) OF
TORTS §§ 440 et seq.).

    As to what constitutes an injury, a § 1983 plaintiff need
not be convicted on the basis of the fabricated evidence to
have suffered a deprivation of liberty – being criminally
charged is enough. See Devereaux, 263 F.3d at 1074–75
(“[T]here is a clearly established constitutional due process
right not to be subjected to criminal charges on the basis of
false evidence that was deliberately fabricated by the
government.” (emphasis added)); cf. NINTH CIR. JURY INSTR.
COMM., MANUAL OF MODEL CIVIL JURY INSTRUCTIONS,
§ 9.33 (2017) (“The defendant [name] deliberately fabricated
evidence that was used to [[criminally charge] [prosecute]
[convict]] the plaintiff.” (brackets in original)).

           a. Rebuttable Presumption of Prosecutorial
              Independent Judgment

    Typically, in constitutional tort cases the “[f]iling of a
criminal complaint immunizes investigating officers . . .
because it is presumed that the prosecutor filing the complaint
exercised independent judgment in determining that probable
cause for an accused’s arrest exists at that time.” Smiddy v.
Varney, 665 F.2d 261, 266 (9th Cir. 1981) (“Smiddy I”),
overruled on other grounds by Beck, 527 F.3d at 865. The
district court held, and Defendants argue here, that the
Smiddy presumption breaks the chain of causation between
        CALDWELL V. CITY & CTY. OF SAN FRANCISCO                       21

Crenshaw’s alleged fabrication of evidence and the harm that
Caldwell suffered in being criminally charged. Thus,
Defendants contend, Crenshaw is immunized from § 1983
liability.

    Conversely, Caldwell contends that prosecutorial
independence only severs the causal chain where the
underlying civil rights violation is based on a lack of probable
cause. And that because deliberate fabrication of evidence
cases are not dependent on finding a lack of probable cause,
no presumption should be at play. See Spencer, 857 F.3d at
801 (rejecting the contention that a plaintiff must “prove that,
setting aside the fabricated evidence, probable cause was
lacking”); see also Halsey v. Pfeiffer, 750 F.3d 273, 292–93
(3d Cir. 2014) (even where probable cause exists, “we believe
that no sensible concept of ordered liberty is consistent with
law enforcement cooking up its own evidence”). To support
his argument that the presumption does not extend to
deliberate fabrication cases, Caldwell highlights that the
underlying violation in Smiddy I was false arrest and that the
Court emphasized that the prosecutor made its “independent
judgment decision in determining that probable cause . . .
exist[ed] . . . .” Smiddy I, 665 F.2d at 266 (emphasis added).7


    7
       Caldwell also argues that this Court has never applied the
presumption in a fabrication of evidence case and cites a string of cases
where this Court applied the Smiddy presumption in false arrest or
malicious prosecution cases – claims that require a lack of probable cause.
See, e.g., Harper v. City of L.A., 533 F.3d 1010, 1027 (9th Cir. 2008);
Newman v. Cty. of Orange, 457 F.3d 991, 993 (9th Cir. 2006)).
Defendants respond that this Court did just that in McSherry v. City of
Long Beach, 584 F.3d 1129 (9th Cir. 2009). But McSherry is unclear on
this point. It is true that McSherry involved a deliberate fabrication of
evidence claim and that this Court held that the allegedly fabricated
evidence did not influence the prosecutor’s independent decision. Id. at
22     CALDWELL V. CITY & CTY. OF SAN FRANCISCO

Alternatively, Caldwell argues that even if the presumption
applies, he sufficiently rebutted it.

    While we recognize that both sides make reasonable
arguments as to the applicability of the causation-breaking
presumption in fabrication of evidence cases, we need not
resolve the parties’ debate. Assuming without deciding that
the presumption applies to such claims, we hold that Caldwell
sufficiently rebutted any presumption and has established a
triable issue as to causation.

             b. Presumption Rebutted

    Deliberately fabricated evidence in a prosecutor’s file can
rebut any presumption of prosecutorial independence. In
Smiddy I, this Court gave a few non-exclusive examples of
how a plaintiff might overcome the presumption, including
by showing that the officers presented the district attorney
with “information known by them to be false.” 665 F.2d at
266–67. A plaintiff can also rebut the presumption by
presenting evidence “that the officers knowingly withheld
relevant information” from the prosecutor. See Smiddy v.
Varney, 803 F.2d 1469, 1471 (9th Cir. 1986) (“Smiddy II”).
In sum, if a plaintiff establishes that officers either presented


1137. However, there is no discussion of a presumption of independence
that automatically precludes a finding of causation. Instead, the Court
held that McSherry had not presented sufficient evidence of causation.
See id. at 1142 (“[E]ven 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 [the prosecutor’s]
investigation and decision making was not independent and was tainted
by the alleged fabrication of evidence.”) Thus, the McSherry court
engaged in a normal causation analysis at the summary judgment stage,
without reference to any presumption.
        CALDWELL V. CITY & CTY. OF SAN FRANCISCO                      23

false evidence to or withheld crucial information from the
prosecutor, the plaintiff overcomes the presumption of
prosecutorial independence and the analysis reverts back to
a normal causation question.

    As stated above, we hold that Caldwell presents “more
than conclusory allegations of the falsehood” of (1) Cobbs’
identification of him, and (2) Crenshaw’s notes. See
Blankenhorn v. City of Orange, 485 F.3d 463, 483 (9th Cir.
2007). Further, Caldwell raises a triable issue as to whether
Giannini relied on these alleged falsehoods in his decision to
charge Caldwell. See id. Thus, Caldwell has rebutted any
presumption of prosecutorial independent judgment and has
established a triable issue as to causation.

    First, the allegedly fabricated identification was part of
the evidentiary record that Giannini reviewed prior to
authorizing charges against Caldwell. And there is no dispute
that Cobbs’ identification was a crucial piece of evidence
against Caldwell. Further, Giannini himself admitted that the
preliminary hearing on December 3, 1990, was the first
occasion that he “considered the possibility that Ms. Cobbs
had seen Caldwell during her interview with Inspector
Gerrans.]” It therefore follows that Giannini did not consider
whether the alleged show-up had taken place until more than
two months after he had authorized charges against
Caldwell.8 A prosecutor’s judgment cannot be said to be


    8
       Giannini continues, “I determined that Ms. Cobbs had not seen Mr.
Caldwell, and I decided that even if she had, it hadn’t undermined the
reliability or veracity of her testimony.” We take no position on whether
the causal chain was broken after Giannini first learned of and considered
the alleged fabrication on December 3, 1990. We hold only that Caldwell
sufficiently rebuts any presumption of independence in Giannini’s
24        CALDWELL V. CITY & CTY. OF SAN FRANCISCO

independent where the prosecutor considers potentially
fabricated evidence without knowing that the evidence might
be fundamentally compromised and misleading.9 Therefore,
this falsified identification may have infected Giannini’s
review of the evidence and rebuts any presumption that his
September 20, 1990, decision to charge was independent. See
Blankenhorn, 485 F.3d at 483 (plaintiff rebutted presumption
of prosecutorial independence where, at the time of charging,
the prosecutor only considered police reports and not
contradictory evidence that showed the reports might contain
fabricated evidence).

    Second, the allegedly falsified notes were likewise part of
the evidentiary record that Giannini reviewed in deciding to
charge Caldwell.10 Giannini declared, “[a]lthough I initially




September 20, 1990, charging decision and that Caldwell raises a triable
issue on causation. A jury will need to consider these causation questions.
     9
       Defendants argue that McSherry stands for the premise that the
existence of fabricated evidence in a prosecutor’s file does not rebut the
presumption of independent judgment. However, the officer in McSherry
allegedly fabricated some of the evidence after the prosecutor’s initial
decision to charge. See McSherry, 584 F.3d at 1133, 1136, 1142. Thus,
the allegedly fabricated evidence could not have affected the prosecutor’s
decision to charge.
     10
       The district court rejected Caldwell’s rebuttal arguments on this
point by concluding that Gray’s declaration did not corroborate Caldwell’s
story about the falsified statements and that, therefore, Caldwell only
supported his contention with his own testimony. See Newman, 457 F.3d
at 995 (“To rebut the presumption of independent judgment and to survive
summary judgment on a malicious prosecution claim, a plaintiff must
provide more than an account of the incident in question that conflicts
with the account of the officers involved.”).
        CALDWELL V. CITY & CTY. OF SAN FRANCISCO                       25

considered the inconsistency between [the July 13, 1990]
statement and Caldwell’s recorded statement of September
21, 1990, during the course of the prosecution, I decided it
was a minor factor when reviewing the totality of the
evidence.”

    Again we hold that Giannini’s consideration of potentially
fabricated evidence rebuts any presumption of independent
judgment and creates a factual issue for the jury. For one,
reading the prosecutor’s statement in the light most favorable
to Caldwell, a jury could conclude that “considering the
inconsistency” did not mean that the prosecutor knew that the
statement was allegedly fabricated. Further, even though
Giannini decided “during the course of the prosecution” that
the inconsistency was a “minor factor,” a jury could
reasonably conclude that the prosecutor relied on the falsified
statement in deciding to charge Caldwell. As such, we
conclude that Caldwell raises a triable issue as to causation
for both the allegedly fabricated identification and allegedly
falsified statements, even if the presumption of prosecutorial
independent judgment extends to deliberate fabrication of
evidence claims.




     We disagree. The district court reasoned that because Gray could not
have heard Caldwell’s and Crenshaw’s conversation inside the police car,
she did not have personal knowledge of the statements at issue. However,
Crenshaw himself testified that Caldwell’s “spontaneous statement” about
being present at the shooting and dealing drugs occurred during their first
interaction on the street. As such, Gray’s declaration corroborates
Caldwell’s claim that he did not say anything about the shooting to
Crenshaw. Therefore, Caldwell may use Gray’s declaration to rebut any
presumption of prosecutorial independence.
26        CALDWELL V. CITY & CTY. OF SAN FRANCISCO

     B. Inspectors Gerrans and Crowley

    Unlike in regards to Crenshaw, Caldwell does not contend
that he has direct evidence that Gerrans and/or Crowley
deliberately fabricated evidence during the investigation.
Instead, Caldwell relies on the second prong of Devereaux to
bring his claims. Therefore, he must establish that there is a
triable issue as to whether “[d]efendants used investigative
techniques that were so coercive and abusive that they knew
or should have known that those techniques would yield false
information.” Devereaux, 263 F.3d at 1076. Caldwell has
not met this burden.

    Caldwell attacks Gerrans’ and Crowley’s investigative
actions in a number of ways, most of which relate to their
conduct during the July 26, 1990, photo lineup in which
Cobbs identified Caldwell as the shooter. Essentially,
Caldwell’s theory is that Cobbs’ initial statement on July 13
ruled out Caldwell as the shooter,11 so that her later
identification of Caldwell constituted a change that must have
been the result of improper coercion during the July 26 photo
lineup. Specifically, Caldwell contends that Gerrans and
Crowley intentionally did not record the initial portion of the
July 26 meeting with Cobbs to cover up their use of the
improperly suggestive techniques. The techniques that
Caldwell alleges were coercive include: (1) telling Cobbs

     11
        We disagree that Cobbs’ statements to Gerrans during the canvass
ruled out Caldwell as the shooter. As already touched upon, her physical
description of the shooter is not exact as to Caldwell, but is not totally
inconsistent either. Further, even though Cobbs said the shooters did not
live in the area, there is uncertainty about whether Caldwell actually lived
in the apartment next door. Finally, even if Cobbs knew Caldwell’s
nickname two weeks after the initial interview, this is not conclusive
evidence that she knew his moniker during the canvass.
      CALDWELL V. CITY & CTY. OF SAN FRANCISCO               27

that the “suspect” was in the lineup, (2) “reinforcing” her
identification of Caldwell, and (3) offering her protection or
financial benefits conditioned upon her picking a suspect out
of the lineup or testifying against the suspect. Even
considering the facts in the light most favorable to Caldwell,
there is no triable issue that Gerrans and Crowley used these
investigative techniques or that the techniques were so
coercive or abusive that they rose to the level of intentionally
fabricated evidence.

    As a preliminary matter, Caldwell is not contending that
Gerrans’ and Crowley’s failure to videotape the initial
exchanges with Cobbs during the July 26 photo lineup is, by
itself, a constitutional violation. Instead, Caldwell references
the decision not to videotape to imply that Gerrans and
Crowley must have coached Cobbs during the unrecorded
portion of the lineup. Without any evidence that coaching
actually occurred during this time, it is not reasonable to draw
Caldwell’s requested inference. Regardless, Caldwell also
takes issue with some of the inspectors’ techniques during the
recorded portion of the photo lineup.

       1. Telling Cobbs that a Suspect was in the Lineup

    First, Caldwell asserts that the officers told Cobbs that
“the suspect” was in the photo lineup they presented to her.
Caldwell’s only evidence for this is that, the day after the
meeting with Cobbs, the officers allegedly told a different
witness, Bobila, that there was a suspect in the photo lineup.
To support this, Caldwell cites to the following from Bobila’s
deposition:

       [M]y recollection, [the officers] just asked me
       if I could recognize any of these six pictures
28    CALDWELL V. CITY & CTY. OF SAN FRANCISCO

       that was put in front of me. Like I said, they
       pick up a suspect that they think is a suspect,
       and it’s going to be six pictures that’s similar
       to the one they arrested, and I pick up the
       picture because I thought that he looks
       familiar.

Even reading this statement in the light most favorable to
Plaintiff, it says nothing about Gerrans and Crowley telling
Bobila that a suspect was in the lineup. At best, this shows
that Bobila’s understanding was that a suspect was in the
lineup, but not how he came to have that understanding.
Further, even if the officers had told a different witness that
there was a subject in the lineup, it would likely not be
enough to raise a triable issue as to whether Gerrans and
Crowley also told Cobbs that a suspect was in her photo
lineup.

       2. “Reinforcing” Cobbs’ Selection of Caldwell

    Second, Caldwell argues that Gerrans and Crowley
improperly “reinforced” Cobbs’ identification of Caldwell in
the photo lineup “no less than eight times.” At first, the
officers tried to confirm whether the person she selected was
the shotgun shooter: “this is the man you saw out front of
your house the night of the shooting and he had a shotgun. Is
that correct?”Later, the officers asked, “[t]he man that you
saw, you picked out in this picture here, the man with the
shotgun, he was still shooting the shotgun as the car was
leaving?” Finally, the officers referenced Caldwell by name:
“[w]hen you went to the window, you recognized this man
and I’m turning over the picture of Maurice Caldwell SF No.
445392. That’s the man that you recognized. ‘Cuz you saw
him in the area before, right?’”
       CALDWELL V. CITY & CTY. OF SAN FRANCISCO               29

    The officers never actually confirmed that Cobbs picked
the correct “suspect,” apart from, possibly, stating Caldwell’s
name, which only came towards the end of the discussion.
This is different than directly confirming that a witness
picked the correct suspect. Further, one of the cases Caldwell
cites in support of his assertion, Oliva v. Hedgpeth, 375 F.
App’x 697 (9th Cir. 2010) (unpublished), is both non-
precedential and distinguishable. Here there is no allegation
that Cobbs picked another photo out of the lineup before
selecting Caldwell; no indication that Cobbs thought that she
was required to select a photo from the lineup. See id. At
698. We do not believe that any “reinforcing” in this case
was so coercive or abusive that it was likely to lead to a false
identification.

        3. Conditioning Benefits on Testifying against
           Caldwell

    Third, Caldwell alleges that the officers manipulated
Cobbs’ identification by offering her incentives to testify.
The alleged incentives came in the form of a promise to
relocate her – conditioned on picking a witness – and
financial benefits under SFPD’s Secret Witness Program.

     As to the promise to relocate Cobbs, Caldwell alleges that
this was impermissibly suggestive because a jury could
conclude that the offer of protection was only on the table if
she picked a suspect out of the photo lineup. During Gerrans’
deposition, Caldwell’s attorney asked the officer whether they
offered to protect Cobbs if she identified a suspect. To which
Gerrans replied, “I believe that was said.” Gerrans continued
“we didn’t go into witness . . . relocation or anything like that
. . . . We didn’t promise her anything at that time. We
promised we would take care of her to protect her.”
30    CALDWELL V. CITY & CTY. OF SAN FRANCISCO

    This evidence might create a triable issue about whether
Gerrans and Crowley conditioned the offer to protect Cobbs
on identifying a suspect – even if Gerrans did not promise
anything to Cobbs, he still agreed with Caldwell’s attorney
that he said the “police would take efforts to protect [Cobbs]
if” she identified a suspect. Nonetheless, even if there is a
factual dispute as to whether the officer conditioned
protection on Cobbs testifying, any conditioning in this case
is not so coercive as to lead to fabricated evidence.

    For example, while paying a witness for testimony may
create adverse incentives to provide false statements, paying
a witness alone does not violate due process. See United
States v. Cuellar, 96 F.3d 1179, 1182 (9th Cir. 1996) (“We,
and other courts as well, have consistently held that the
government is not precluded from using [paid] informants
before or during trial simply because an informant may have
a motive to falsify testimony . . . .”); cf. United States v.
McQuin, 612 F.2d 1193, 1195 (9th Cir. 1980) (witness
“assured payment by the FBI only if there were an arrest and
he testified”). If directly paying a witness does not violate a
defendant’s due process, offering Cobbs protection if she
testified is not so coercive that it would lead to false
testimony. A defendant facing a paid or motivated witness
can raise those issues during cross-examination.

    Finally, Caldwell makes a similar argument that, because
Cobbs received a trip to Disneyland six months after
Caldwell’s conviction, Crowley and Gerrans must have
promised Cobbs financial benefits. In support of this theory,
Caldwell identifies a letter from United Airlines awarding
Cobbs three round trip tickets to Orange County “in support
of the Secret Witness Program.” However, there is no
      CALDWELL V. CITY & CTY. OF SAN FRANCISCO           31

evidence linking Crowley or Gerrans to the Secret Witness
Program. There is no suggestion of coercion here.

    Accordingly, we hold that Gerrans’ and Crowley’s
investigative techniques were not so “coercive and abusive
that [the officers] knew or should have known that [they]
would yield false information.” Devereaux, 263 F.3d at
1076. As such, we affirm summary judgment in favor of
Gerrans and Crowley.

                   IV. CONCLUSION

    For the foregoing reasons we affirm the grant of summary
judgment as to Inspectors Gerrans and Crowley, but reverse
and remand as to Sergeant Crenshaw. Each party shall bear
his own costs on appeal.

  AFFIRMED in part, REVERSED in part, and
REMANDED.
