               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BRUCE E. LISKER,                          No. 13-55374
                   Plaintiff-Appellee,
                                             D.C. No.
                v.                        2:09-cv-09374-
                                            AHM-AJW
CITY OF LOS ANGELES; LOS
ANGELES POLICE DEPARTMENT,
                      Defendants,           OPINION

               and

ANDREW MONSUE; HOWARD
LANDGREN,
          Defendants-Appellants.


     Appeal from the United States District Court
         for the Central District of California
     Alvin Howard Matz, District Judge, Presiding

                Argued and Submitted
       February 12, 2015—Pasadena, California

                   Filed March 20, 2015
2                       LISKER V. MONSUE

      Before: David Bryan Sentelle,* Morgan Christen,
          and Andrew D. Hurwitz, Circuit Judges.

                    Opinion by Judge Hurwitz


                           SUMMARY**


                            Civil Rights

    The panel affirmed the district court’s order denying
absolute witness immunity to two Los Angeles Police
Department detectives in an action brought pursuant to 42
U.S.C. § 1983 by Bruce Lisker who alleged, among other
things, that defendants fabricated police reports, investigative
notes, and photographs of a crime scene during their
homicide investigation.

    Lisker was convicted of second-degree murder, served
over twenty-six years in custody, and was released in 2009
after a federal judge determined falsified evidence had been
introduced at trial and conditionally granted a writ of habeas
corpus. The State then dismissed the charges against Lisker.




 *
  The Honorable David Bryan Sentelle, Senior Circuit Judge for the U.S.
Court of Appeals for the District of Columbia Circuit, sitting by
designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     LISKER V. MONSUE                         3

    The panel held that defendants’ notes, investigative
reports and photographs of the crime scene were analogous
to the sorts of documentary and physical evidence—such as
falsified videotaped interviews and forensic reports—that fall
outside the protection of absolute immunity. The panel held
that the same conclusion applied to the allegedly falsified
reconstruction of the crime scene. The panel held that the
policy interests behind absolute immunity for testimony do
not apply to the investigative materials in this case. The panel
concluded that defendants plainly acted in an investigative
capacity in producing the notes, reports and crime-scene
photographs and that qualified immunity provided sufficient
protection for these activities.

    The panel held that it lacked jurisdiction to review the
district court’s denial of summary judgment on the merits,
specifically the district court’s findings regarding the
detectives’ mental states and the falsity of the notes, reports
and photographs. The panel held that these determinations
were not inextricably intertwined with, or necessary to ensure
meaningful review of, the immunity issues properly before
the panel in the interlocutory appeal.


                         COUNSEL

Michael N. Feuer, City Attorney, Amy Jo Field (argued),
Deputy City Attorney, Los Angeles, California, for
Defendants-Appellants.

Barrett S. Litt (argued), Kaye, McLane, Bednarski & Litt,
LLP, Pasadena, California; William J. Genego, Law Office of
William J. Genego, Santa Monica, California; Vicki I.
4                     LISKER V. MONSUE

Podberesky, Nasatir, Hirsch, Podberesky & Khero, Santa
Monica, California, for Plaintiff-Appellee.


                          OPINION

HURWITZ, Circuit Judge:

    Plaintiff Bruce Lisker was convicted of second-degree
murder, served over twenty-six years in custody, and was
released in 2009 after a federal judge determined falsified
evidence had been introduced at trial and conditionally
granted a writ of habeas corpus. The State then dismissed the
charges against Lisker.

    In this 42 U.S.C. § 1983 action, Lisker seeks damages
from two Los Angeles Police Department detectives for
fabricating reports, investigative notes, and photographs of
the crime scene during the homicide investigation. The
detectives also testified during preliminary proceedings and
at trial, and the issue before us is whether the doctrine of
absolute witness immunity, which shields the detectives from
suit for their testimony, also extends to their pre-trial actions.
We hold that it does not.

                                I.

                               A.

    Dorka Lisker was murdered in her home in Sherman
Oaks, California sometime during the morning of March 10,
1983. She was stabbed multiple times in the back and
suffered a blow to the head. Dorka’s seventeen-year-old son
Bruce was at the house when paramedics and police officers
                     LISKER V. MONSUE                       5

arrived. He was taken to the Van Nuys station, where he was
interviewed by Detective Andrew Monsue.

    During the interview, Lisker claimed that he had arrived
at his parents’ house between 10:30 and 11:00 am. When no
one answered the front door, Lisker walked through a muddy
area into the backyard, looked through a living room window,
and saw a pair of feet on the floor. He then went to a sliding
glass door and saw that the feet belonged to his mother, who
was lying motionless on the floor. After unsuccessfully
searching for a spare key, Lisker attempted to enter the house
through the kitchen window, but the screen on the window
was nailed shut. He ran back around the house to his car to
retrieve pliers, removed the screen, and entered the house.
Inside, he found his mother on the living room floor with two
knives in her back. Lisker removed the knives and searched
for an intruder. He called the paramedics, who arrived with
the police at approximately 11:35 am.

                             B.

    Detectives Monsue and Howard Landgren were assigned
to investigate the Lisker homicide; they maintained a
“Murder Book” containing their notes, investigative reports,
and photographs of the crime scene. The Murder Book
included a “Follow-Up Investigation Report” dated March 13,
1983 that was provided to the Los Angeles County District
Attorney’s Office. The report states that on the day of the
murder, the detectives “attempted to look into all the
windows in the rear of the location, but could not see inside
the house” without putting their faces against the glass
because of “glare from the sun, coupled with the patio being
partially covered with a roll-up canvas cover.”
6                    LISKER V. MONSUE

    The “Chronological Record” section of the Murder Book
documents that the detectives returned to the crime scene on
the morning of March 23, 1983 with a photographer and a
model. The model was directed to lie where Lisker’s mother
had been found. The notes state that the “photographer
concurred that susp[ect] could not have seen mother lying on
the floor.”

    The “Follow-Up Investigation Report” also states that the
detectives “observed several footprints in the mud along the
east side of the house. The footprints led in the direction of
the kitchen window . . . .” It explains that “the footprints in
the mud only led toward the kitchen window and there were
no footprints leading away from the side of the house.” The
report also notes that bloody footprints were found
throughout the house, and states that the prints had a “wave-
like sole design.”

                              C.

    On March 14, Lisker was charged with the murder of his
mother. Monsue testified several weeks later at a juvenile
detention hearing that the day of the murder “was a very
bright, sunny day, clear skies; very bright, very, very bright,”
and that he was unable to see through the back windows
because of the glare. Monsue also testified that the footprints
along the side of the house only “pointed in a direction
coming toward the rear of the residence,” these prints
matched the shoes Lisker was wearing, and the bloody prints
in the house had a “zigzaggedy pattern” “very similar” to the
prints in the mud.

   Landgren and Monsue both later testified at a preliminary
hearing. Each claimed to have been unable to see the floor of
                        LISKER V. MONSUE                               7

the living room from outside the house on the day of the
murder because of glare from the sun and other obstructions.
Landgren testified that the footprints he saw inside and
outside the house all had a “wavy type pattern.”

    Monsue also testified at trial.1 He again stated that the
day of the murder had been bright and sunny, and that glare
on the windows made it impossible to see inside the house.
Monsue confirmed that shoeprints inside and outside the
house “resembled quite closely” the shoes Lisker had been
wearing, and that the prints in the mud outside the house
faced southwards. He also testified that “[t]he conditions of
the sun, the temperature, the environment in terms of the
dampness on the ground were very similar” during the March
23, 1983 photographic reenactment to the conditions on the
day of the murder. The jury was shown photographs taken on
the day of the crime of footprints inside and outside the house
and photographs taken during the March 23 reconstruction.

    The prosecution argued that Lisker was guilty because
only his footprints were found in and around the house, and
because Lisker had lied during his interview with Monsue,
including a “most condemning” lie about seeing his mother
through the windows in the back of the house. The jury
found Lisker guilty of second-degree murder, and he was
sentenced to sixteen years to life.




  1
   Lisker’s first trial was aborted when Lisker agreed to plead guilty on
condition that he would be placed in the custody of the California Youth
Authority. This agreement ultimately fell apart, and a second trial began
in October 1985.
8                    LISKER V. MONSUE

                              D.

    Lisker undertook several unsuccessful attempts at post-
conviction relief in the California courts. In 2004, he filed a
federal habeas corpus petition in the Central District of
California, alleging due process violations and ineffective
assistance of counsel. See Lisker v. Knowles (“Lisker II”),
651 F. Supp. 2d 1097, 1107 (C.D. Cal. 2009) (adopting the
recommendations of the magistrate judge); Lisker v. Knowles
(“Lisker I”), 463 F. Supp. 2d 1008, 1010–11 (C.D. Cal. 2006)
(same).

    At an evidentiary hearing on the federal petition, Lisker
presented meteorological charts and expert testimony
demonstrating that it had been overcast on the morning of the
murder. Lisker II, 651 F. Supp. 2d at 1135. The district court
found that this evidence “overwhelmingly” showed that it had
not been bright and sunny on the morning of the murder, and
that the weather during the March 23 photographic
reconstruction had been markedly different. Id. at 1136–37.
The court also found, based on a 2005 reconstruction of the
crime scene, that the view of Dorka Lisker’s body from
outside the house would have been unobstructed. Id. at
1137–38.

    Lisker also presented witnesses who attested that there
were two sets of footprints in the mud outside the house—one
with a “wave” pattern, the other with a “herringbone”
pattern—and that the herringbone pattern did not match
Lisker’s shoes. Id. at 1125–26. These witnesses also
concluded that at least some of the bloody prints in the house
matched the herringbone pattern and had not been left by
Lisker. Id. The district court found Lisker had conclusively
                         LISKER V. MONSUE                                9

proved that prosecution evidence regarding the shoeprints had
been false. Id. at 1138.

    On August 6, 2009, the district court found Lisker’s due
process rights had been violated because falsified evidence
was admitted at trial, and conditionally granted the petition
unless the State promptly retried Lisker.2 Id. at 1101,
1140–41. On September 21, 2009, the State, although still
asserting Lisker’s guilt, sought dismissal of the information
because the evidence was stale. Lisker was released after
spending over twenty-six years in custody.

                                    E.

     Lisker filed this action on December 22, 2009, asserting
claims under 42 U.S.C. § 1983 against Monsue and Landgren
for malicious prosecution, falsification of evidence, and
Miranda and Brady violations; he also asserted a claim
against the City of Los Angeles and the Los Angeles Police
Department, alleging that policies and practices of the
Department contributed to the constitutional violations. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978)
(holding that liability can be imposed under 42 U.S.C. § 1983
if a municipal “policy or custom” causes a constitutional
injury). After Lisker voluntarily dismissed the malicious
prosecution and Miranda claims, the district court granted in
part and denied in part a defense motion for summary
judgment, dismissing the Brady claim but permitting the
falsification-of-evidence and Monell claims to proceed to
trial. With respect to the falsification claim, the court also
rejected the defendants’ claim to absolute witness immunity

 2
   The court also concluded, for reasons not relevant to this opinion, that
Lisker had received ineffective assistance of counsel. Id. at 1132, 1141.
10                   LISKER V. MONSUE

for the alleged pre-trial fabrications. The defendants filed a
timely Notice of Interlocutory Appeal from the denial of
absolute immunity on March 4, 2013.

    We have jurisdiction over this appeal because “the denial
of a substantial claim of absolute immunity is an order
appealable before final judgment” under the collateral order
doctrine. Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). We
review de novo the district court’s denial of immunity. Knox
v. Sw. Airlines, 124 F.3d 1103, 1105 (9th Cir. 1997).

                              II.

    Witnesses, including police officers, are absolutely
immune from liability for testimony at trial, Briscoe v.
LaHue, 460 U.S. 325, 345–46 (1983), and before a grand
jury, Rehberg v. Paulk, 132 S. Ct. 1497, 1510 (2012).
Absolute witness immunity also extends to preparatory
activities “inextricably tied” to testimony, such as
conspiracies to testify falsely. Franklin v. Terr, 201 F.3d
1098, 1102 (9th Cir. 2000); see also Rehberg, 132 S. Ct. at
1506–07. “Were it otherwise, a criminal defendant turned
civil plaintiff could simply reframe a claim to attack the
preparation instead of the absolutely immune actions
themselves.” Rehberg, 132 S. Ct. at 1506 (internal quotation
marks omitted); see also Cunningham v. Gates, 229 F.3d
1271, 1291 (9th Cir. 2000) (“[D]efendants are . . . entitled to
absolute immunity from damages liability for any alleged
conspiracy to commit perjury.”).

    Immunity for pre-testimony conduct, however, “is not
limitless.” Paine v. City of Lompoc, 265 F.3d 975, 981 (9th
Cir. 2001). In addressing claims of witness immunity, we
have distinguished conspiracies to testify falsely from “non-
                     LISKER V. MONSUE                       11

testimonial” acts, such as “tampering with documentary or
physical evidence or preventing witnesses from coming
forward.” Id. at 981–82. Our sister Circuits have done the
same. See, e.g., Keko v. Hingle, 318 F.3d 639, 642–44 (5th
Cir. 2003) (declining to extend absolute immunity to forensic
examiner’s report); Spurlock v. Satterfield, 167 F.3d 995,
1001–04 (6th Cir. 1999) (distinguishing between conspiracies
to testify falsely, which are immune, and manufacturing a
false tape-recorded interview and providing hush money to a
would-be witness, which are not).

    The detectives argue that the notes and reports in the
Murder Book are “inextricably tied” to their testimony
because these documents were not introduced at trial, and
their purpose was to memorialize the substance of eventual
testimony. We disagree. As the Sixth Circuit has recognized,
police investigative materials have evidentiary value wholly
apart from assisting trial testimony—they “comprise part of
the documentary record before the prosecution and defense”
and affect charging decisions, plea bargaining, and cross-
examination of the investigating officers. Gregory v. City of
Louisville, 444 F.3d 725, 741 (6th Cir. 2006); see also
Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 127, 130 (2d
Cir. 1997) (recognizing a falsification-of-evidence claim for
forwarding “false information likely to influence a jury’s
decision” to prosecutors, although the evidence was not
admitted at trial). This non-testimonial evidentiary value
distinguishes the materials in the Murder Book from pre-trial
activity aimed exclusively at influencing testimony. See
Franklin, 201 F.3d at 1102 (finding conspiracy immune
because its “ostensible purpose . . . was to ensure that one
person’s testimony did not contradict the other’s testimony”).
The materials in the Murder Book are analogous to the sorts
of documentary and physical evidence—such as falsified
12                   LISKER V. MONSUE

videotaped interviews and forensic reports—that fall outside
the protection of absolute immunity. See Gregory, 444 F.3d
at 741–42; Keko, 318 F.3d at 642; Paine, 265 F.3d at 981–82;
Spurlock, 167 F.3d at 1001–04.

    The same conclusion applies to the allegedly falsified
reconstruction of the crime scene. The photographs from the
reconstruction were introduced at trial. See Lisker I, 463 F.
Supp. 2d at 1014. They are therefore squarely governed by
this Court’s previous holding that “a pretrial, out-of-court
effort to . . . fabricate physical evidence . . . is not
‘inextricably tied’—or tied at all—to any witness’ own
testimony,” even “[i]f a potential witness does happen to be
involved.” Paine, 265 F.3d at 982.

     In addition, the policy interests behind absolute immunity
for testimony do not apply to the investigative materials here.
Absolute witness immunity is motivated by the recognition
that “[a] witness who knows that he might be forced to
defend a subsequent lawsuit, and perhaps to pay damages,
might be inclined to shade his testimony in favor of the
potential plaintiff, to magnify uncertainties, and thus to
deprive the finder of fact of candid, objective, and undistorted
evidence.” Briscoe, 460 U.S. at 333. That immunity extends
to conspiracies to testify falsely for practical reasons, as a
plaintiff could otherwise easily undermine the interest in
witness candor by challenging the conspiracy rather than the
testimony itself. Rehberg, 132 S. Ct. at 1506; Paine,
265 F.3d at 981. But when defendants have “dual roles as
witness and fabricator,” extending protection from the
testimony to the fabricated evidence “would transform the
immunity from a shield to ensure” candor into “a sword
allowing them to trample the statutory and constitutional
rights of others.” Paine, 265 F.3d at 982–83 (internal
                        LISKER V. MONSUE                            13

quotation marks omitted). The detectives’ ultimate testimony
“does not serve to cloak these actions with absolute
testimonial immunity,” Spurlock, 167 F.3d at 1001; if it did,
they would be rewarded for “compound[ing] a constitutional
wrong,” Gregory, 444 F.3d at 739.

    The Supreme Court has repeatedly declined to extend
absolute immunity to prosecutors acting outside of their
traditional roles. See, e.g., Kalina v. Fletcher, 522 U.S. 118,
131 (1997) (prosecutor as “complaining witness”); Buckley
v. Fitzsimmons, 509 U.S. 259, 275–76 (1993) (prosecutor
acting in investigative capacity). These cases confirm that
absolute immunity is reserved for conduct “intimately
associated with the judicial phase of the criminal process,”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and that
outside of this context, qualified immunity is presumed
“sufficient to protect government officials in the exercise of
their duties,” Burns v. Reed, 500 U.S. 478, 486–87 (1991).
Landgren and Monsue plainly acted in an investigative
capacity in producing the Murder Book and crime-scene
photographs.      Qualified immunity provides sufficient
protection for these activities.

   Contrary to the detectives’ arguments, Rehberg v. Paulk
does not compel a different result. In that case, the Supreme
Court held that grand jury witnesses are entitled to absolute
immunity, even if acting as “complaining witnesses.”3 See

  3
    A “complaining witness” is one “whose allegations serve to bring
about a prosecution.” Paine, 265 F.3d at 981 n.2. Witnesses who may
otherwise receive absolute immunity for their actions are sometimes
accorded only qualified immunity when serving as a complaining witness.
See, e.g., Kalina, 522 U.S. at 131. Lisker argues that Landgren and
Monsue are complaining witnesses. In light of our holding, we need not
decide this question. We note, however, that the exception sometimes
14                     LISKER V. MONSUE

132 S. Ct. at 1507, 1510. The Court also confirmed that
witness immunity extends to conspiracies to testify falsely.
Id. at 1506–07, 1510. In doing so, the Court was careful to
emphasize that witness immunity does not extend to “all
activity that a witness conducts” before testifying, and noted
in particular that it had “accorded only qualified immunity to
law enforcement officials who falsify affidavits.” Id. at 1507
n.1 (citing Kalina, 522 U.S. at 129–131, and Malley v.
Briggs, 475 U.S. 335, 340–45 (1986)). The circumstances
presented here fall squarely outside the carefully limited
holding of Rehberg.

                                III.

    The defendants also seek review, under the doctrine of
pendent appellate jurisdiction, of the denial of their motion
for summary judgment on the merits. See Swint v. Chambers
Cnty. Comm’n, 514 U.S. 35, 50–51 (1995) (explaining
pendent appellate jurisdiction). In particular, they challenge
the district court’s findings regarding the detectives’ mental
states and the falsity of the Murder Book and photographs.
These determinations, however, are not “inextricably
intertwined with, or necessary to ensure meaningful review
of,” the immunity issues properly before us in this
interlocutory appeal. Burlington N. & Santa Fe Ry. Co. v.
Vaughn, 509 F.3d 1085, 1093 (9th Cir. 2007). We therefore




drawn for complaining witnesses because of their role in initiating
proceedings further underscores the significance of the Murder Book in
initiating proceedings against Lisker.
                         LISKER V. MONSUE                              15

lack jurisdiction to review the district court’s denial of
summary judgment on the merits.4

                                   IV.

   For the reasons explained above, we AFFIRM the district
court’s denial of summary judgment on witness immunity
grounds.




 4
    To the extent we have jurisdiction to determine “at least whether there
is any—‘an iota’—of evidence supporting” the claims, Paine, 265 F.3d at
985, the district court’s thorough summary judgment order convincingly
demonstrates that the evidence here surmounts this threshold.
