                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TIMOTHY GANTT ,                          No. 11-55000
                  Plaintiff-Appellant,
                                            D.C. No.
                  v.                     2:08-cv-05979-
                                           ODW-CW
CITY OF LOS ANGELES; RICK LANE,
#116702; JOSE L. REYES, #21778; AL
GONZALES, #15614; LOUIS
TROVATO ; WILLIE WILLIAMS,
             Defendants-Appellees.



MICHAEL SMITH ,                          No. 11-55002
                  Plaintiff-Appellant,
                                            D.C. No.
                  v.                     2:09-cv-08565-
                                           ODW-CW
CITY OF LOS ANGELES; RICK LANE,
#16702; JOSE L. REYES, #21778; AL
GONZALES, #15614; LOUIS                    OPINION
TROVATO ; WILLIE WILLIAMS,
              Defendants-Appellees.


      Appeal from the United States District Court
         for the Central District of California
       Otis D. Wright, District Judge, Presiding
2               GANTT V . CITY OF LOS ANGELES

                    Argued and Submitted
           February 11, 2013—Pasadena, California

                        Filed May 31, 2013

    Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld
            and Barry G. Silverman, Circuit Judges.

                  Opinion by Judge Silverman;
                   Dissent by Judge Kleinfeld


                           SUMMARY*


                            Civil Rights

   The panel reversed the district court’s judgment in favor
of defendants the City of Los Angeles and others and
remanded for a new trial in these consolidated actions
brought under 42 U.S.C. § 1983 after plaintiffs’ murder
convictions were vacated.

    Plaintiffs were released from jail after, on retrial, a key
eyewitness recanted testimony that was allegedly obtained as
a result of coercive and abusive investigative techniques. The
panel held that in plaintiffs’ § 1983 actions, the district court
erred in instructing the jury about the level of culpability
required for a deliberate fabrication of evidence claim under
the Fourteenth Amendment. The panel held that the court
misled the jury when it appeared to equate the shocks-the-

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              GANTT V . CITY OF LOS ANGELES                    3

conscience standard with an intent to injure. Moreover, the
panel held that the instructional error was not harmless
because given the evidence, a reasonable juror could have
concluded that defendants used investigative techniques that
were so coercive and abusive that they should have known
that those techniques would yield false information.

   The panel held that at retrial the district court additionally
should consider whether a Brady instruction was warranted
and should also give a corrected conspiracy instruction.

    Dissenting, Judge Kleinfeld stated the fabrication of
evidence jury instruction was harmless because the
fabrication claim should not have gone to the jury at all.
Judge Kleinfeld stated that there was no evidence that police
exerted their pressure on the key witness in order to make
him testify to what the police believed to be false.



                         COUNSEL

Emmanuel C. Akudinobi (argued) and Chijioke O. Ikonte,
Law Offices of Akudinobi & Ikonte, Los Angeles, California,
for the Plaintiffs-Appellants.

Carmen A. Trutanich, City Attorney, Lisa S. Berger (argued)
and Amy Jo Field, Deputy City Attorneys, Office of the City
Attorney, Los Angeles, California, for Defendants-Appellees.
4               GANTT V . CITY OF LOS ANGELES

                             OPINION

SILVERMAN, Circuit Judge:

    Plaintiff-Appellants Timothy Gantt and Michael Smith
were tried and convicted of the August 19, 1992 murder of
Kalpesh Vardhan.         An Arthur Andersen Consulting
employee, Vardhan was stabbed to death in a parking garage
in downtown Los Angeles. This is the second time this
matter has come before us. In 2004, we reversed the denial
of Gantt’s federal habeas petition and remanded the case for
an evidentiary hearing. Gantt v. Roe, 389 F.3d 908, 916 (9th
Cir. 2004).1 That resulted in the issuance of the writ, a retrial
and, after the key witness recanted his testimony, the
dismissal of all charges with prejudice during the course of
the trial. Smith won release in 2009 on a habeas petition.
The instant appeal concerns the unsuccessful lawsuits under
42 U.S.C. § 1983 filed by Gantt and Smith following their
release. The case proceeded to trial and resulted in a verdict
for the defendants on all claims. On appeal, Gantt and Smith
challenge certain jury instructions and evidentiary rulings.
We reverse and remand for a new trial.

                         BACKGROUND

    During the original criminal trial that resulted in
Appellants’ convictions, three witnesses attempted to connect
Gantt and Smith to the murder. The sole alleged eyewitness
to the crime was a local car burglar named David Rosemond,
whom the police picked up two months after the murder on
a burglary charge. Rosemond claimed he was in the parking

  1
    A full recounting of the facts of the underlying crime and additional
aspects of the investigation are contained in the 2004 opinion.
               GANTT V . CITY OF LOS ANGELES                        5

garage on the morning Vardhan was killed, looking to steal
car radios to finance a drug habit. He testified that he saw
Gantt beating up the victim and Smith standing next to them,
holding a gun. Rosemond did not intervene or call for help
but, after the assailants had fled, he approached the scene and
took the dying victim’s ATM card.

     LAPD homicide detectives Jose Reyes and Rick Lane,
both Defendant-Appellees here, interrogated Rosemond.
Rosemond testified that, at the time he was taken into
custody, he had been awake for approximately two days
straight on a crack binge and was still under the influence
when he made his identifications. Over the course of the
hours-long interrogation, the detectives threatened to charge
him with the murder if he did not provide information: “They
said if I didn’t give them something, that I would go down for
it.”2 Rosemond also testified as follows:

        It was some days. It wasn’t just one day. It
        was like, I don’t know, four or five or six
        hours in that little room. And then I would go
        back to my cell and they would bring me back
        the next day and ask me more questions and
        show me pictures. It was kind of like trying



   2
     Deputy District Attorney Grace testified that Rosemond said the
detectives had informed Rosemond of the $40,000 reward put up by the
City of Los Angeles and Arthur Andersen Consulting because he was
reluctant to testify, and instructed him not to say anything about the
reward in court. Ultimately, Rosemond was awarded a portion of the
$40,000 total for his testimony. However, it appears that the court
overruled a colorable hearsay objection to Grace’s testimony as to
Rosemond’s statements. Since no exception applied, this was improperly
admitted, and we do not consider it.
6             GANTT V . CITY OF LOS ANGELES

       to scare me. I don’t know if that was their
       intention.

Additionally, Rosemond told Reyes and Lane that he believed
Gantt had once robbed him, but this statement did not make
it into their reports or the chronological log, or come out at
trial. During the first trial, Rosemond testified on cross-
examination that he bore no animosity towards Gantt and had
no reason to have any biased view of him.

    The District Attorney’s office initially rejected the case,
in part, because of concerns about Rosemond’s credibility
and granting Rosemond immunity. The evidence was
subsequently reviewed by a different prosecutor who decided
to go forward with the case after re-interviewing Rosemond.

     The second witness was Kevin Shorts, a CPA at Arthur
Andersen, who claimed he saw Gantt and Smith near the
scene of the crime around the time of the murder. Shorts told
Lane and Reyes that he saw Gantt driving a vehicle on the
sixth floor of the garage and that he was able to see Gantt’s
face reflected in a rear-view mirror for a matter of seconds.
He identified Gantt from a photo array. However, Shorts
initially identified an individual by the name of Raymond
Wilson as the accomplice who was standing outside the
vehicle, before identifying Smith. While parked on the sixth
floor of the garage reading his mail, Shorts did not hear any
screaming or sounds of an attack or struggle; nor did he see
Rosemond. Shorts collected a $20,000 reward for his
testimony.

    The third witness was Jose Cubias, the parking garage
attendant on duty. Cubias did not witness the crime either,
but he did see a car with two black men exit the garage. He
              GANTT V . CITY OF LOS ANGELES                 7

testified that he recalled the vehicle because it was the only
no-pay ticket that day—the car was in the garage for only
approximately five minutes and, therefore, no fee was
charged. Cubias identified the vehicle from a composite
sketch and initially was able to say Gantt’s photo resembled
the driver.

     The only physical evidence potentially linking Gantt to
the crime was a matchbook from an Indian restaurant in the
Los Angeles area, which was found on his person at the time
of his arrest. The prosecution’s theory was that this item was
lifted from Vardhan’s person at the time of the crime. The
matchbook contained a handwritten phone number, but the
handwriting analysis could not conclusively link it to the
victim. The 19-digit phone number connected to an
individual in Bangladesh who did not recognize Vardhan’s
name or photo. The man’s son, who worked at the restaurant,
also did not recognize Vardhan from the photo. In 2004, we
held that the prosecutors had violated Brady by failing to
disclose that these individuals had not recognized the victim.
Gantt, 389 F.3d at 910–11. We reversed the denial of Gantt’s
federal habeas petition on the grounds that given the
weakness of the prosecution’s evidence and the state’s
reliance on the matchbook, these Brady violations were not
harmless and could well have altered the outcome of the case.
Id. at 915–16. Our decision did not reach any of Gantt’s
other claims. We remanded the case for an evidentiary
hearing to determine whether the disclosure violations had in
fact occurred. Id. at 916. On remand, the district court
granted Gantt’s habeas petition, and a retrial was scheduled.

    In the middle of the retrial in 2008, Rosemond recanted
his original testimony, which had pinned the murder on Gantt
and Smith. The prosecution moved to dismiss all charges
8              GANTT V . CITY OF LOS ANGELES

against Gantt with prejudice, and he was released. Smith
subsequently prosecuted a writ of habeas corpus and was
released in 2009.

    Gantt and Smith filed separate Section 1983 actions,
which were consolidated for discovery and trial. Gantt’s
Second Amended Complaint stated the following claims
under 42 U.S.C. §§ 1983, 1985: (1) malicious prosecution;
(2) due process violation based on Brady violations, failure to
preserve or analyze evidence, and fabrication of evidence; (3)
reckless indifference to civil rights; (4) conspiracy under
§ 1985; (5) conspiracy to violate Gantt’s constitutional rights
under § 1983; and (6) Monell liability. He named as
defendants retired detectives Lane and Reyes, the County of
Los Angeles, the City of Los Angeles, Al Gonzales,
Lieutenant Louis Trovato, LAPD Chief Willie Williams,
Deputy D.A. Sterling Norris, and D.A. Investigator Edward
Boyer.3

    The Smith Complaint, filed over six months later in
November 2009, against the City of Los Angeles, Lane,
Reyes, Gonzales, Lieutenant Trovato, and LAPD Chief
Williams, stated the following claims: (1) malicious
prosecution; (2) due process violations premised on the non-
disclosure of Brady and Giglio evidence; (3) failure to gather,
preserve, and/or disclose material exculpatory evidence; (4)
fabrication of evidence; (5) unconstitutionally suggestive
line-up and identification procedures; (6) Monell liability; (7)
reckless indifference to civil rights; (8) failure to intervene to


    3
    Gonzales, LAPD’s homicide unit supervisor during the investigation
of the murder, served as Reyes and Lane’s immediate supervisor. As
commanding officer for the division, Lieutenant Trovato supervised
Gonzales.
              GANTT V . CITY OF LOS ANGELES                    9

prevent civil rights violations; and (9) conspiracy under
42 U.S.C. § 1985.

    On April 9, 2009, the court granted a motion for judgment
on the pleadings as to the County of Los Angeles, Deputy
D.A. Norris, and D.A. Investigator Boyer, citing absolute
prosecutorial immunity and ruling that Monell liability does
not apply to a county in such circumstances.

    The case was divided into individual liability, Monell
liability, and punitive damages phases. Gantt and Smith
dismissed their claims against Gonzales, Williams, and
Trovato, and withdrew their § 1985 conspiracy claims.
Additionally, Smith withdrew his claim for reckless
indifference to civil rights violations, as well as his claim for
failure to intervene to prevent civil rights violations. Thus,
the case proceeded on the malicious prosecution, due process
and fabrication of evidence, Brady/Giglio, failure to gather
and preserve evidence, unconstitutional identification,
conspiracy to violate constitutional rights under § 1985, and
Monell liability claims against Defendants Lane, Reyes, and
the City of Los Angeles. A jury returned a verdict for the
Defendants on all these claims.

   JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction pursuant to 28 U.S.C. § 1291. “The
standard of review for an alleged error in jury instructions
depends on the nature of the claimed error.” Jenkins v. Union
Pac. R.R. Co., 22 F.3d 206, 210 (9th Cir. 1994). “A district
court’s formulation of the jury instructions is reviewed for
abuse of discretion. If, however, the instructions are
challenged as a misstatement of the law, they are then
reviewed de novo.” Duran v. City of Maywood, 221 F.3d
10            GANTT V . CITY OF LOS ANGELES

1127, 1130 (9th Cir. 2000) (per curiam) (internal quotation
marks and citation omitted). Incomplete instructions are
treated as legal errors and reviewed de novo as well. Dang v.
Cross, 422 F.3d 800, 804–06 (9th Cir. 2005).

     “We have stressed that jury instructions must fairly and
adequately cover the issues presented, must correctly state the
law, and must not be misleading.” Id. at 804 (alteration,
quotation marks, citation omitted). “Further, ‘[a] party is
entitled to an instruction about his or her theory of the case if
it is supported by law and has foundation in the evidence.’”
Id. at 804–05 (quoting Jones v. Williams, 297 F.3d 930, 934
(9th Cir. 2002)). There must be a sufficient evidentiary
foundation to support giving the instruction. Yan Fang Du v.
Allstate Ins. Co., 697 F.3d 753 (9th Cir. 2012) (citing Mendez
v. Cnty. of San Bernardino, 540 F.3d 1109, 1117–18 (9th Cir.
2008)). “Whether there is sufficient evidence to support an
instruction is reviewed for abuse of discretion.” Id. (citations
omitted).

    “If, however, the error in the jury instruction is harmless,
it does not warrant reversal.” Dang, 422 F.3d at 805. “In
evaluating jury instructions, prejudicial error results when,
looking to the instructions as a whole, the substance of the
applicable law was [not] fairly and correctly covered.”
Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001)
(alteration in original; internal quotation marks and citations
omitted). Harmless error review for a civil jury trial is as
follows:

        An error in instructing the jury in a civil case
        requires reversal unless the error is more
        probably than not harmless. Because we
        presume prejudice where civil trial error is
              GANTT V . CITY OF LOS ANGELES                 11

       concerned, the burden shifts to the defendant
       to demonstrate that it is more probable than
       not that the jury would have reached the same
       verdict had it been properly instructed.

Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (internal
citations and quotation marks omitted). “Prejudice is also
generally more likely than not if ‘nothing about th[e jury’s]
verdict indicates that the result would have been the same
without the error.’” Id. (quoting Caballero v. City of
Concord, 956 F.2d 204, 207 (9th Cir. 2009)).

                       DISCUSSION

   1. Fabrication of Evidence

    The district court erred in instructing the jury about the
level of culpability required for a deliberate fabrication of
evidence claim under the Fourteenth Amendment. In
Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc),
we held that “there 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.” Id. at 1074–75. We stated that in order to
establish deliberate fabrication of evidence, a plaintiff

       must, at a minimum, point to evidence that
       supports at least one of the following two
       propositions: (1) Defendants continued their
       investigation of [the plaintiff] despite the fact
       that they knew or should have known that he
       was innocent; or (2) Defendants used
       investigative techniques that were so coercive
       and abusive that they knew or should have
12            GANTT V . CITY OF LOS ANGELES

       known that those techniques would yield false
       information.

Id. at 1076. Plaintiffs adduced no evidence to support the
first theory, so they only could be relying on the second
Devereaux basis.

    Regarding the required level of culpability, due process
violations under the Fourteenth Amendment occur only when
official conduct “shocks the conscience,” Wilkinson v. Torres,
610 F.3d 546, 554 (9th Cir. 2010), but what that means
“depends on the context,” Tennison v. City and Cnty. of San
Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009); see also
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In
Wilkinson, we explained that:

       Where actual deliberation is practical, then an
       officer’s “deliberate indifference” may suffice
       to shock the conscience. On the other hand,
       where a law enforcement officer makes a snap
       judgment because of an escalating situation,
       his conduct may only be found to shock the
       conscience if he acts with a purpose to harm
       unrelated to legitimate law enforcement
       objectives.

610 F.3d at 554 (citations omitted). And in Tennison, we also
made clear that acting with “deliberate indifference to or
reckless disregard for an accused’s rights” was “consistent
with the standard imposed in the substantive due process
context, in which government action may violate due process
if it ‘shocks the conscience.’” 570 F.3d at 1089.
                 GANTT V . CITY OF LOS ANGELES                          13

    The relevant portion of the instruction the court gave the
jury was as follows:

             Coercive and abusive investigative
         techniques violate a person’s 14th amendment
         [right] to due process when they shock the
         conscience, that is, the conduct of the police
         officer is intended to injure in some way,
         unjustified by any governmental interest.
         Torture is an example of a coercive and
         abusive investigative technique.

             Deliberate indifference is the conscious or
         reckless disregard of the consequences of
         one’s acts or omissions. It entails something
         more than negligence but is satisfied by
         something less than acts or omissions for the
         very purpose of causing harm or with
         knowledge that harm will result.4

This explanation of the law was confusing and misleading in
two related respects. First, it failed to state the intent-to-
injure and deliberate-indifference standards in a clear
disjunctive format, so that a reasonable juror would
understand each of these satisfies the broader “shocks-the-
conscience” standard. Second, it included only torture as an
example of what would satisfy the “shocks-the-conscience
standard.” Had the court given only the second paragraph as
an instruction on the level of culpability, there would be no


 4
   The instructions quoted in this opinion are taken from the final written
jury instructions. There are immaterial variances between the written set
of instructions and the transcript recording the court’s verbal instructions
to the jury.
14            GANTT V . CITY OF LOS ANGELES

error. None of the proffered evidentiary bases for this claim
involved “a snap judgment because of an escalating
situation,” Wilkinson, 610 F.3d at 554, so the court could
have simply omitted the intent-to-injure (or purpose-to-harm)
standard altogether. Instead, the court misled the jury when
it appeared to equate the “shocks-the-conscience” standard
with an intent to injure.

    The question is whether the instructional error was
harmless. The district court recognized that there was
sufficient evidence to submit the claim to the jury. On our
own independent review of the evidence, we concur that there
was sufficient evidence to instruct the jury on the claim of
fabrication of evidence. Rosemond testified that the
detectives threatened to charge him with the murder if he did
not provide information. The manner and circumstances of
Rosemond’s interrogation also support the conclusion that
there was sufficient evidence to send this claim to the jury:
“[Q:] Did any of the officers show you some materials where
they told you don’t say we showed you this? . . . . [A:] I
would say yes.” Furthermore, Lane and Reyes did not think
Rosemond was still under the influence during the
interrogation, but he testified that he had been awake for
approximately two days straight on a crack binge, and was in
fact still high when he made his identifications. A reasonable
juror could have concluded that the “Defendants used
investigative techniques that were so coercive and abusive
that they . . . should have known that those techniques would
yield false information.” Devereaux, 263 F.3d at 1076. The
question was triable and for the jury to resolve.

    As the district court itself recognized, the plaintiffs
produced enough proof of their claim of fabrication of
evidence both to survive a motion for judgment as a matter of
              GANTT V . CITY OF LOS ANGELES                  15

law and to have the jury instructed on that theory. It therefore
follows that the erroneous jury instructions cannot be deemed
harmless for lack of proof. Accordingly, we reverse and
remand for a new trial on the fabrication of evidence claim.

   2. Brady Claim

    We have held in no uncertain terms that Brady’s
requirement to disclose material exculpatory and
impeachment evidence to the defense applies equally to
prosecutors and police officers. Tennison, 570 F.3d at 1087.
“Brady suppression occurs when the government fails to turn
over even evidence that is known only to police investigators
and not to the prosecutor.” Youngblood v. West Virginia,
547 U.S. 867, 869–70 (2006) (per curiam) (citation and
quotation marks omitted). “To state a claim under Brady, the
plaintiff must allege that (1) the withheld evidence was
favorable either because it was exculpatory or could be used
to impeach, (2) the evidence was suppressed by the
government, and (3) the nondisclosure prejudiced the
plaintiff.” Smith v. Almada, 640 F.3d 931, 939 (9th Cir.
2011); accord Milke v. Ryan, No. 07-99001, 2013 WL
979127, at *13 (9th Cir. Mar. 14, 2013).

    The district court declined, without explanation, to give
an instruction on the Brady claim. That claim was premised
on the police officers’ failure to disclose that Rosemond told
them that he had been robbed by Gantt in the past. Plaintiffs
contend that they could have used that information to show
Rosemond’s animosity towards Gantt and thereby impeach
his story. However, it is possible that the court reasoned that
the police cannot be faulted for failing to see the mitigating
value of Rosemond’s statement about the prior robbery.
Indeed, the court may have concluded the police reasonably
16              GANTT V . CITY OF LOS ANGELES

viewed it as more incriminating than mitigating by showing
both Gantt’s propensity to rob and his familiarity with the
person he purported to identify. At any retrial in this matter,
the court should consider whether a Brady instruction is
warranted and explain its ruling.

      3. Conspiracy Under 42 U.S.C. § 1983

    Defendants concede that the conspiracy instruction was
erroneous, but argue harmlessness. The court gave an
instruction for a 42 U.S.C. § 1985 claim, but Plaintiffs were
prosecuting a § 1983 claim. If a new trial is to be held, the
correct conspiracy instruction must be given.

      4. Remaining Assignments of Error and Claims

    Plaintiff-Appellants’ remaining assignments of error
either lack merit or the claims are not supported by sufficient
evidence in the record, such that any claimed instructional
error was harmless—or both. Because we find reversible
instructional error in this case and remand for a new trial, we
need not rule on the claimed errors in the district court’s
evidentiary rulings. However, if Plaintiffs again seek to use
a police-practices expert, the court may not exclude this
testimony without first allowing Plaintiffs to make a proffer
and then giving specific reasons for the exclusion.5




  5
    Plaintiff-Appellants complain that Judge W right was biased against
them. W e find no reason to reassign this matter. Mindful that this was a
difficult case to try, we respectfully remind the district court and the
parties to maintain an atmosphere of mutual respect and civility.
              GANTT V . CITY OF LOS ANGELES                  17

                      CONCLUSION

     Accordingly, we REVERSE and REMAND for a new
trial limited to the specific claims outlined above.



KLEINFELD, Senior Circuit Judge, dissenting:

     Gantt and Smith did not get a fair trial. We therefore
caused their convictions to be vacated. The evidence against
them was weak, so when one of the prosecutor’s three main
witnesses changed his story in the middle of Gantt’s second
trial, the prosecutor dismissed. Both are now free, and further
prosecution is barred. Their guilt or innocence, and the
fairness of their first criminal trial, are no longer before us.

    What we have before us are their civil lawsuits against the
two police officers who instigated the prosecution. The trial
judge let the fabrication of evidence claim get to the jury, and
gave some arguably confusing or erroneous instructions. Any
such trial error, though, was harmless, because plaintiffs
lacked a prima facie case.

    That is not to suggest that Gantt and Smith were treated
fairly in the criminal proceedings, or that they committed the
murder. From all we can tell from the record, the two police
detectives thought Gantt and Smith had murdered Kalpesh
Vardhan, and did all they could, rightly and wrongly, to get
them convicted for it. The evidence against Gantt and Smith,
though, was very thin, and, whatever the police detectives
thought, the prosecutor did not think he could prove murder
once a key witness changed his story. One of the three
witnesses, the accountant, was shaky on the identifications.
18            GANTT V . CITY OF LOS ANGELES

The second, the one who changed his story in the middle of
the second trial, was a thief in the garage to steal car stereos.
He was not very credible, both because he was a thief, and
because (though the prosecutors and police hid this from
defense counsel), he probably had a grudge against Gantt.
The third witness, the parking garage attendant, seems to me
to be as supportive of the defense as of the prosecution. On
the one hand, he was the best witness for putting Gantt and
Smith in the garage at the right time, but on the other hand,
their parking garage ticket put them there for what sounds
like too short a time to locate, rob, and kill the victim. The
only physical evidence was a matchbook Gantt had from an
Indian restaurant, used by the prosecution to suggest that the
non-Indian defendants took it from the ethnically Indian
victim. The matchbook turned out to be a false lead because
no one could establish that the Indian victim had ever been to
the restaurant. The prosecution hid from the defense in the
first trial the evidence that it was a false lead.

    But the thinness of the evidence for murder does not
establish fabrication of evidence, the theory the majority
accepts. The tort theory would be, basically, that the
prosecutors and police knew Gantt and Smith were innocent
and prosecuted them anyway, and created false evidence with
which to do it. Gantt and Smith failed to establish a prima
facie case for fabrication of evidence.

    Any inadequacy in the fabrication of evidence jury
instruction was harmless, because the fabrication claim
should not have gone to the jury at all. The constitutional
violation claimed is that the police denied due process of law
to Gantt and Smith by fabricating evidence. The supposedly
fabricated evidence was the car stereo thief’s identification.
                    GANTT V . CITY OF LOS ANGELES                   19

“Fabrication” means creating something in order to deceive.1
The interrogation techniques used on Rosemond, the car
stereo thief, may have violated his rights but that is not
enough to establish that Gantt’s and Smith’s rights were
violated. There was no evidence that the police exerted their
pressure on Rosemond in order to make him testify to what
the police believed to be false.

    Had one of the policemen gone to an Indian restaurant,
obtained a matchbook, and planted it in Gantt’s pocket, in
order to tie him to the ethnically Indian victim, that would be
fabrication of evidence. Or had the car stereo thief told the
police that Gantt and Smith were not the men he saw, and
they told him, “testify that he was, or we’ll frame you for the
murder,” that would be fabrication of evidence. The due
process violation consists, essentially, of creating false
evidence to frame someone for a crime.

    We spoke to what “fabrication of evidence” means in
Devereaux v. Abbey,2 an en banc case arising out of the
Wenatchee “sexual abuse ‘witch hunt’ in which 43 adults
were charged with over 29,000 counts of sexual
molestation.”3 We held that “there 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.”4 We deemed such fabrication


 1
     The American Heritage Dictionary 484 (2d. coll. ed. 1985).

 2
     Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc).

 3
     Id. at 1073.

 4
     Id. at 1074–75.
20                  GANTT V . CITY OF LOS ANGELES

comparable to knowing use of perjured testimony, the subject
of the Supreme Court decision in Pyle v. Kansas.5

    Yet the “fabrication” claim was unsuccessful as a matter
of law even in the Wenatchee witch hunt. We held that, even
though the lengthily interrogated children who denied having
been sexually molested were pressured for hours until they
changed their stories to what the investigating detective and
social workers wanted them to say, the victim of the false
charges “ha[d] not adduced or pointed to any evidence in the
record to support” a fabrication claim.6 He would have had
to show either that the defendants continued investigating him
even though they “knew or should have known that he was
innocent,” or that their techniques “were so coercive and
abusive that they knew or should have known that those
techniques would yield false information.”7 We held that the
“critical element” of the “coercive and abusive” claim was
that the defendants “knew or should have known that they
were eliciting false accusations.”8 We held that improper
investigation “is one thing, intentionally fabricating false
evidence is quite another.”9 Even pressuring child witnesses
for long periods of time to change their stories was not
enough to get past summary judgment, because the victim of
the false charges lacked evidence that the investigators knew



 5
     Id. at 1075 (discussing Pyle v. Kansas, 317 U.S. 213 (1942)).

 6
     Id. at 1076.

 7
     Id.

 8
     Id.

 9
     Id. at 1077.
              GANTT V . CITY OF LOS ANGELES                    21

or should have known that he “was innocent,” or that their
improper techniques “would yield false information.”10

    Under Devereaux, pressuring the car stereo thief to
implicate Gantt and Smith did not entitle them to trial, much
less setting aside a jury verdict for fabrication of evidence,
because the police did not know (nor do we) that they were
innocent, or that the interrogation techniques would yield a
false identification. As for the suggestion that if he could not
identify Gantt and Smith as the perpetrators, they would “put
it on” him, they did not know that Gantt, Smith, or the car
stereo thief was innocent, so the coercive threat is not
“fabrication” under Devereaux.

    In Gantt’s and Smith’s case, there was no witch hunt.
There is no particular reason to think that Gantt and Smith are
innocent, much less that the police knew they were. There is
no showing that the police believed the identification the car
stereo thief made was false. He himself has not claimed that
he lied twenty years ago, just that he can no longer remember
and had not been wearing his glasses. We held in the
Wenatchee witch hunt cases that the plaintiffs were not
entitled to get to trial on their fabrication of evidence cases.11
A fortiori, the far less coercive questioning and the lack of
any reason to infer a frameup of an innocent man did not
entitle Gantt and Smith to put their fabrication case before a
jury. Here the plaintiffs were mistakenly permitted to try
their cases, and the jury returned verdicts that a correct
application of law would have compelled regardless of their


 10
      Id.

  11
     Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc);
Cunningham v. City of Wenatchee, 345 F.3d 802 (9th Cir. 2003).
22            GANTT V . CITY OF LOS ANGELES

verdicts. The fabrication of evidence claim is no more than
a claim that false evidence, not known by the prosecution to
be false, was used to convict them.

    Because the fabrication of evidence claim should not have
gone to trial at all, there being no prima facie case, we need
not reach the questions about the correctness of the
instructions. The case was put to the jury, which reached the
legally required conclusion despite the poor instructions. The
publication of today’s decision vastly expands the application
of § 1983 to failed prosecutions, in quite a dangerous way.
Now police pressure on a witness to tell what the police
believe to be the truth arguably opens the door to a § 1983
claim. We should affirm on the fabrication of evidence
claims, the basis for the reversal.
