Bruce Lisker v. City of Los Angeles
780 F.3d 1237
9th Cir.2015Background
- In 1983 Bruce Lisker was convicted of second-degree murder based in part on LAPD detectives Monsue and Landgren’s investigation; he served over 26 years before a federal court found falsified evidence and conditionally granted habeas relief in 2009, after which the State dismissed charges.
- Detectives maintained a "Murder Book" with reports, notes, and photographs; it recorded claims that glare prevented viewing the body from outside, a March 23 photographic reenactment, and footprints (allegedly matching Lisker) leading to the kitchen window.
- At pretrial and trial, Monsue and Landgren testified about the glare, footprint patterns, and the March 23 reconstruction; photographs from the reconstruction were shown to the jury.
- Federal habeas proceedings produced meteorological and reconstruction evidence showing it was overcast on the morning of the murder and that the body would have been visible from outside; expert testimony also undermined the prosecution’s footprint evidence, leading the district court to conclude prosecution evidence had been falsified.
- Lisker sued under 42 U.S.C. § 1983 for falsification of evidence and Monell claims against the City; the district court allowed falsification/Monell claims to proceed and denied the detectives’ claim of absolute witness immunity for their pretrial investigative acts.
- The detectives appealed the interlocutory denial of absolute witness immunity; the Ninth Circuit reviewed whether absolute witness immunity for testimony extends to the pretrial fabrication and investigative materials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether absolute witness immunity bars § 1983 claims based on pretrial fabrication of reports, notes, and photos | Lisker: detectives’ pretrial materials were not protected; they falsified evidence that had independent evidentiary value and led to prosecution | Monsue/Landgren: Murder Book and preparatory materials are "inextricably tied" to testimony and thus absolutely immune | Court: Absolute witness immunity does not extend to non-testimonial investigative materials and fabrication of physical evidence; denial of immunity affirmed |
| Whether photographs from the March 23 reconstruction are protected by absolute immunity because they related to testimony | Lisker: reconstruction photos were fabricated evidence with independent evidentiary value, not protected | Detectives: photos were part of preparation for testimony and thus immune | Court: Reconstruction photos were introduced at trial but still constitute fabricated physical evidence not "inextricably tied" to testimony and not absolutely immune |
| Whether policies underlying witness immunity justify shielding investigators who act as both witnesses and fabricators | Lisker: extending immunity would turn a shield into a sword, protecting constitutional violations | Detectives: immunity promotes candid testimony and should cover preparatory acts | Court: Policy rationale for witness immunity (candor) does not justify protecting investigative fabrication; qualified immunity suffices for investigative roles |
| Whether court should review merits (mental state, falsity) on pendent appeal | Lisker: merits support denial of immunity and exceed an "iota" threshold | Detectives: asked appellate review of summary judgment merits | Court: Lacks jurisdiction to review merits on this interlocutory appeal; limited to immunity issue; district court’s factual findings survive threshold inquiry |
Key Cases Cited
- Briscoe v. LaHue, 460 U.S. 325 (witnesses absolutely immune for testimony to preserve candor)
- Rehberg v. Paulk, 566 U.S. 356 (absolute immunity for grand jury witnesses and conspiracies to testify falsely; immunity not all-encompassing)
- Imbler v. Pachtman, 424 U.S. 409 (prosecutorial immunity for actions intimately associated with judicial phase)
- Paine v. City of Lompoc, 265 F.3d 975 (9th Cir.) (distinguishing testimonial conspiracies from non-testimonial fabrication/tampering)
- Gregory v. City of Louisville, 444 F.3d 725 (6th Cir.) (investigative materials have independent evidentiary value and lie outside absolute witness immunity)
- Franklin v. Terr, 201 F.3d 1098 (9th Cir.) (absolute immunity covers conspiracies to testify falsely but not distinct non-testimonial fabrication)
- Kalina v. Fletcher, 522 U.S. 118 (prosecutor acting as complaining witness not entitled to absolute immunity for certain non-judicial acts)
- Buckley v. Fitzsimmons, 509 U.S. 259 (prosecutor in investigative role not absolutely immune)
- Monell v. Dep’t of Social Servs., 436 U.S. 658 (municipal liability under § 1983 for policies or customs)