1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 CHARLES HEARD, Case No. 21-cv-09472-JSC

5 Plaintiff, ORDER RE: MOTION TO DISMISS 6 v. CONVERTED TO MOTION FOR SUMMARY JUDGMENT 7 DAMON JACKSON, et al., Re: Dkt. No. 74 Defendants. 8

9 10 Richard Barrett was shot twice in the back in San Francisco, California in November 2008. 11 (Dkt. No. 74-4 at 9.) Defendants Robert Lynch and Kevin Jones investigated the homicide for the 12 San Francisco Police Department. Defendants Damon Jackson, Reese Burrows and Sean 13 Griffin—members of the SFPD Gang Task Force—allegedly identified suspects at a meeting in 14 the District Attorney’s office prior to Plaintiff’s arrest. Each of the individual defendants worked 15 for the City and County of San Francisco (the “City”) during the Barrett murder investigation. 16 Eventually, Charles Heard (“Plaintiff”) was arrested and convicted for participating in the murder. 17 In 2020, Plaintiff’s conviction was overturned based on the failure to disclose the 18 identification of alternate suspects in 2008. And in 2022, the California Court of Appeals found 19 Plaintiff met his burden on a motion for factual innocence. Plaintiff’s lawsuit alleges the named 20 defendants and the City violated his rights under the Fourteenth Amendment. 21 Defendants moved to dismiss Plaintiff’s second amended complaint (“SAC”) and asked 22 the Court to take judicial notice of various documents related to Plaintiff’s prior criminal trial and 23 post-conviction proceedings. (Dkt. No. 74.) Because Plaintiff requested an opportunity to submit 24 contrary evidence, the Court converted the motion to dismiss to a motion for summary judgment 25 and allowed Plaintiff leave to file material “pertinent to the motion.” Fed. R. Civ. P. 12(d). After 26 considering the papers submitted—including Plaintiff’s supplementary filing and Defendants 27 reply—and conducting oral argument on August 3, 2023, the Court GRANTS in part and DENIES 1 BACKGROUND 2 I. Factual Background 3 A. Francis Smith 4 The primary witness against Plaintiff at trial was Francis Smith. Smith was a tourist from 5 Texas. She saw the murder while smoking outside a bar in North Beach, San Francisco. 6 a. The Texas Identification 7 A Texas law enforcement official, Paul Brinkley, conducted a photo lineup with Smith 8 roughly six weeks later at her home. (Dkt. No. 74-8 at 5.) Brinkley read Smith instructions from 9 a preprinted form. (Dkt. No. 74-8 at 7.) Those instructions stated:

10 The person or persons who committed the crime may or may not be in the group of photographs. You are not obligated to identify anyone. 11 Study each photograph carefully before you make any comments. Consider that the Photographs could be old or new. Hairstyles 12 change. Persons can alter their identity by growing or shaving facial hair. Persons gain or lose weight. Skin color can be lighter or darker 13 due to the photographic process. 14 (Dkt. No. 74-8 at 7-8.) Brinkley then showed Smith two groups of photos. (Id.) Smith did not 15 identify anyone in the first group of photos. (Id.) She then identified Heard in the second group 16 of photos. (Id. at 9.) Brinkley testified to the same set of events at the trial. (Id. at 18.) 17 b. The Phone Call with Lynch 18 Lynch called Smith after the photo lineup. (Dkt. No. 102-6 at 3.) According to a transcript 19 labeled “Police Incident Report No: 081 260 663,” Lynch asked Smith how Brinkley conducted 20 the photo lineup.1 (Id. at 3-4.) The exchange is then transcribed as follows:

21 Q: And so the guy that you recognized.

22 A: Yes sir.

23 Q: What did he do?

24 A: Ah, he was the one that I recognized as being the shooter.

25 Q: Okay.

26 A: Um, I wasn’t a hundred percent sure. 27 1 Q: Um hmm.

2 A: But um, you know, I would be a lot more certain if I had a little bit more information about him I guess, um, like whether he had a gold 3 tooth or a gold cap on his tooth.

4 Q: What difference would that make?

5 A: Well cause I remember seeing you know, not necessarily a solid gold tooth but I guess it’s a crown or a cap or something on one of his 6 front teeth. And then in the picture, his mouth was closed so I couldn’t really see that. But um, other than that, I mean it—it looks 7 a lot like him. I mean going off of an image I saw for a few seconds a few months ago, so— 8 Q: Right. 9 A: It’s kinda hard to say I’m a hundred percent sure. 10 Q: Right. 11 A: But ah, he did look familiar so. 12 [. . .] 13 Q: As your – okay. So let me see if I have this right. He showed you 14 a first group of photos.

15 A: Um hmm.

16 Q: And you didn’t recognize anybody.

17 A: No.

18 Q: And then he showed you a second group of photos and you recognized someone that you ah, thought looked like the shooter— 19 A: Yes Sir. 20 Q: And the um, only difference is the guy’s mouth – well not—maybe 21 not the only difference but something –one of the differences or a difference is – 22 A: Um hmm. 23 Q: In the photograph he had his mouth closed and you remember the 24 shooter having a gold cap or a gold – gold crown on his front teeth.

25 A: Yes sir. Yes, that’s a fact. Also I mean it’s kind of a minor detail but in the picture his hair looked shorter so I’m – I’m guessing that he 26 probably got a haircut. 27 (Dkt. No. 102-6.) 1 B. The Warrant 2 In July 2009, roughly eight months after the shooting, Lynch obtained arrested Plaintiff 3 and charged him with Barrett’s murder. (Dkt. No. 74-4 at 4-8.) Lynch provided an affidavit to 4 support the warrant. (Id. at 9.) The affidavit explains Lynch and Jones were assigned to the 5 homicide in November 2008. (Id.) Witnesses saw two suspects fleeing the scene. (Id.) 6 Six witness statements are included in the affidavit. According to Lynch, “Witness #1” 7 described the shooter as a “Latin male, approximately 5’ 8”, heavy build, hair slicked back in a 8 pony tail, wearing a red shirt.” (Id.) “Witness #2” described the shooter as a “black male … 20s to 9 30s in age, medium build, looked fit, short hair, dark skin, facial hair (couple day’s growth), 10 snapped brim hate, black white gray, and shirt, black over shirt, white sneakers.” (Id.) “Witness 11 #3” said the man with a gun was “black, 30s 5’-10” to 6’ 1”, fat, black shirt with graffiti pants, 12 short hair.” (Id.) Witnesses 1, 2, and 3, did not give a description of the other suspect. (Id.) 13 “Witness #4” was “about one foot away” from the shooter and described him as a “black male.” 14 (Id. at 10.) “Witness #5” described two men, one was “Black 19 to 24 years old, wearing a white 15 hoodie, with a colored pattern. Taller than Suspect #2. Motioned like he had a gun but wit #5 16 never saw a gun.” (Id.) The other man was described as “Black, 19 to 24 years, black hoodie, 17 shorter than suspect #1.” Finally, Witness #6 described the man with the gun as “black, 5’-10” to 18 6’ 0” medium build, wearing a black nylon jacket.” (Id.) 19 Lynch also reviewed surveillance footage from a nearby office building taken around the 20 time of the shooting. Two men are visible in the footage. One was wearing a dark colored hoodie 21 and the other was wearing a light-colored hoodie. (Id.) One of the men is wearing a “pair of pants 22 with a stich design of a horseshoe pattern on the rear two pockets.” (Id.) 23 Lynch averred Sergeant Reese Burrows—a member of the SFPD Gang Task Force—told 24 him an informant identified “Cheesy” as the shooter. (Id.) Burrows explained “Cheesy” is an 25 alias for Charles Heard. (Id.) According to the affidavit, Witness #2 “viewed a photo line-up 26 containing a mug shot photo of Charles Heard and five fillers. Wit #2 identified Heard as the 27 shooter. Wit #2 said that they would be a lot more certain if he/she could see the man’s, (Heard’s) 1 photo had his mouth closed.” (Id. at 11.) Witness #3 did not identify Heard in photo array. (Id.) 2 Witness #4 identified two other photos as possible shooters. (Id.) Witness #5 identified Heard as 3 the non-shooter suspect. (Id.) Witness #6 did not identify anyone in the array. (Id.) 4 Finally, Lynch explains heard was arrested for robbery in December 2008. Burrows—the 5 arresting officer—indicated Heard was wearing “a pair of jeans with stitching in the shape of 6 horseshoes on the rear pockets.” (Id. at 11.) Lynch looked up cellphone data for the phone Heard 7 was carrying during that December arrest. (Id.) The cellphone data indicated cell-tower 8 information that allegedly corresponded with geographic events near the murder and eventual 9 getaway. (Id.) 10 C. The Preliminary Hearing & Trial 11 At the preliminary hearing, Heard’s counsel challenged the identification. (Dkt. No. 74-5 12 at 5.) Specifically, counsel noted “four witnesses who said it wasn’t him, who didn’t make the 13 identification.” (Id.) When Smith testified, she remembered a “gold crown, gold cap on one of 14 [the shooter’s] teeth.” (Id. at 7.) Heard’s counsel cross examined her on this point because Heard 15 had a “grill” such that his “whole mouth [was] filled with gold.” (Id. at 11.) Heard’s counsel 16 asked Smith if understood the difference and Smith indicated the suspect did not have a grill as far 17 as she could tell. (Id.) The Court determined there was probable cause and held Heard to answer. 18 At the jury trial, Smith testified again. (Dkt. No. 74-8 at 5.) She identified Heard in court. 19 (Id. at 12.) Heard’s counsel cross-examined Smith on the tooth-grill inconsistency and the 20 inconsistency between her description of the suspect’s clothing and the video evidence. (Id. at 13- 21 14.) Smith explained “It’s because his mouth wasn’t open all the way. It’s kind of how he’s been 22 sitting here in the courtroom today. His upper lip shows just a couple of his front teeth. And, of 23 course, there was light reflecting off of it because there was light everywhere and you see a glean 24 from it. I didn’t have an opportunity to count his teeth. But I knew for a fact that there was at least 25 one.” (Id.) Based on the inconsistencies in Smith’s statements, Heard’s counsel moved to admit 26 photos of an alternative suspect—Dennis Anderson. (Dkt. No. 74-11 at 12.) The trial court 27 rejected that motion because “there’s no comment by any of the eyewitnesses that Dennis 1 The jury convicted Heard for murder and attempted robbery but found “not true” the 2 allegations that Heard personally used or possessed a firearm. (Dkt. No. 102-5 at 3-4.) He was 3 given a sentence of 25 years to life. (Id.) The conviction was upheld on appeal in 2012. (Id.) 4 D. Federal RICO Trial 5 Two years later, the United States brought federal RICO charges against Heard. His 6 participation in the Barrett murder was alleged as a predicate offense under RICO. 7 At the federal trial in 2018, Damon Jackson testified as the government’s gang-expert. He 8 explained he had known Heard for years. (Dkt. No. 74-13 at 5.) He had also known two other 9 men: Dennis Anderson and Gregory Walker. (Id.) Jackson was then shown the video evidence 10 from the Barrett murder. (Id. at 6.) Jackson identified the men in the surveillance video as 11 Anderson and Walker. (Id.) Heard was convicted under 18 U.S.C. 1962(d) based on other 12 predicate offenses, but not the Barrett murder. (Dkt. No. 74-14 at 2.) 13 E. Habeas and Actual Innocence 14 Based on Jackson’s testimony at the RICO trial, Heard petitioned for habeas corpus as to 15 the Barrett murder. Jackson testified again at the habeas hearing in state court in 2020. (Dkt. No. 16 74-15.) Jackson explained that he watched the surveillance video from the Barrett murder for the 17 first time in 2008 at the District Attorney’s office. (Id. at 4.) He testified the quality of the video 18 appeared better when he watched the video in 2018 than what he remembered from 2008. (Id.) 19 The first exchange went as follows:

20 Q. And if you had been certain back in 2008 when you had viewed that Montgomery Street surveillance video you would have provided 21 that information to the prosecutor, the inspector in charge of the case and the defense, correct? 22 A. When we were watching the video in the District Attorney’s office, 23 if we all had positive identifications it would have been provided at that moment. 24 Q. Okay. But that did not occur? 25 A. Not to my knowledge. It didn’t come from me. Unless it came from 26 somebody else, I wouldn’t know.

27 Q. You did not make a positive identification back in 2008? 1 (Dkt. No. 74-15 at 5.) After cross-examination, the Court intervened and questioned Jackson 2 again regarding this meeting: 3 The Court: And can you estimate about how many people were 4 huddled around looking at the video?

5 The Witness: Four, five, maybe.

6 The Court: Now, when you were answering, I think it was the prosecutor’s questions, you said that as you watched it people were 7 saying “I think that’s – I think that’s --” but you just said it like that. Were people saying names, “I think that’s X, I think that’s Y”? 8 The Witness: Yes, Your Honor. The individuals who we believed it 9 could have been between Charles Heard, Dennis Anderson, and Gregory Walker. 10 […] 11 The Court: But would it – you do remember there was a representative 12 of the DA’s office there?

13 The Witness: I couldn’t tell you. I mean, obviously, someone asked us to come down and view it and provided us with the evidence but I 14 couldn’t tell you who. 15 (Id. at 7-8.) Jackson believed an assistant district attorney assigned to homicide may have been 16 there but claimed “it definitely was not” a district attorney investigator.2 At argument, the court 17 summarized: “Counsel, a meeting in the District Attorney’s office with an attorney from the 18 District Attorney’s office present. That’s the factual record.” (Dkt. No. 74-16 at 4.) Heard’s 19 counsel responded “Correct.” (Id.) 20 A cognitive science expert, Dr. Kathy Pezdek, also testified on Plaintiff’s behalf at the 21 habeas proceeding. (Dkt. No. 102-4.) She testified to the unreliability of Smith’s identification 22 for a number of reasons, including possible “contamination” of Smith’s memory during the 23 Lynch-Smith phone call. (Id. at 21.) Specifically, she noted that Lynch’s use of the word “teeth” 24 may have influenced Smith’s memory of a gold-tooth, undermining the reliability of Smith’s 25 memory. (Id.) 26 Based largely on Jackson’s testimony, the state court granted habeas relief. The court 27 1 stated:

2 I believe that the Petitioner has carried it’s burden on the Brady claims. My confidence in the outcome of the trial has been 3 significantly undermined by the failure to disclose Sergeant Jackson’s opinion about who was depicted on that video taken on Montgomery 4 Street just before the homicide occurred. Some of my questions of counsel during argument sheds light on my conclusion. 5 [. . .] 6 I think the notion that multiple members of the San Francisco Police 7 Department questioned whether or not Charles Heard was depicted in the video at a time prior to his arrest, prior to the preliminary hearing, 8 in the presence of the prosecutor and this was not disclosed to the defense is very troubling to me and I think it’s plainly a Brady 9 violation. 10 (Dkt. No. 74-16 at 6-7.) The District Attorney declined to re-try the case and the case was 11 dismissed. (Dkt. No. 102-5 at 5.) Plaintiff moved for a declaration of factual innocence. The 12 Superior Court denied that motion. The Court of Appeals reversed and found Plaintiff had met his 13 burden to prove factual innocence. People v. Heard,

at *12 (Cal. Ct. App. Sept. 14 28. 2022). That decision made Plaintiff eligible for compensation from the state.

at *8 n.7. 15 II. Subsequent Procedural Background 16 Plaintiff brought this suit against Sergeant Jackson under

for malicious 17 prosecution, violations of Brady v. Maryland,

(1963), and fabrication of evidence. 18 He also sued the City for failing to train its employees regarding their obligations under Brady. 19 The Court dismissed the allegations against Sergeant Jackson because—based on the allegations 20 in the second amended complaint—Jackson had told some employee at the District Attorney’s 21 office about his identification in 2008. (See Dkt. No. 31.) But the Court allowed the municipal 22 allegations to proceed, on the theory that the City may have been deliberately indifferent to non- 23 attorney’s Brady obligations. (Id.) Specifically, the allegations implied a District Attorney 24 investigator may have been present at the 2008 meeting when Jackson identified Heard, Walker, 25 and Anderson as possible suspects. (Id.) 26 At Jackson’s deposition in this matter, the following exchange occurred:

27 Q: [W]hen you were at this meeting, and whatever information that office; correct? 1 [. . .] 2 A: I didn’t gain any information of watching the video, so there was 3 no information to give to the district attorney, other than I could not identify anybody in the video. 4 [. . .] 5 Q: Okay. So I’ll – I’ll state to you that Judge Moody asked, quote: 6 “Now, when you were answering – I think it was the prosecutor’s questions, you said that, as you watched it, people were saying ‘I think 7 that’s…,’ ‘I think that’s…’ but you just said it like that. Many people saying names, ‘I think that’s X, I think that’s Y.’?” Does that sound 8 familiar to you?

9 A: Yes.

10 Q: Okay. And your answer was, quote: “Yes, Your Honor. The individuals who we believe it could have been were between Charles 11 heard, Dennis Anderson and Gregory Walker.” Do you – Do you recall saying that to the judge? 12 A: I don’t recall it, no. 13 Q: Do you disagree that you made that statement? 14 [. . .] 15 A: No. 16 Q: Okay. So if you told the judge that it could have been between 17 Charles Heard, Gregory Anderson, and – excuse me – Charles Heard, Anderson, and Walker, then that’s – that’s correct information; 18 correct?

19 A: Yes.

20 Q: And you testified earlier that you never conveyed this information to – you don’t recall conveying this information to any members of 21 the District Attorney’s office; correct?

22 [. . .]

23 A: I do not.

24 Q: Do you recall relaying this information to anyone, other than Mr. Burrows and Mr. Griffin, that it could have been Charles Heard, 25 Dennis Anderson, or it could have been Gregory Walker?

26 [. . .]

27 A: Did I convey that to anybody? I did not. We were unable to make investigator is with the case. 1 (Dkt. No. 74-2 at 6-8.) Based on Jackson’s deposition testimony, Plaintiff moved for 2 reconsideration of this Court’s order dismissing the complaint against Jackson. The Court granted 3 Plaintiff leave to amend the complaint. 4 Plaintiff’s second amended complaint brings claims against three sets of defendants. First, 5 Defendant sues Jackson, Burrows, and Griffin for Brady violations for failing to disclose the 6 alleged identification in the 2008 meeting. Second, Defendant sues Lynch and his partner Jones 7 for malicious prosecution, fabrication of evidence, and stand-alone “suggestive identification” due 8 process claim.3 Finally, Plaintiff again brings his municipal allegations against the City. 9 DISCUSSION 10 The Court first addresses the Brady claims against Jackson, Burrows, and Griffin 11 stemming from the 2008 meeting. Next, the Court addresses the claims against Lynch and Jones 12 regarding the investigation itself. Finally, the Court turns to the municipal allegations. 13 I. Jackson, Burrows, and Griffin 14 Plaintiff alleges Jackson, Burrows, and Griffin observed video footage of the suspects in 15 2008, they “observed” the assailants could have been Dennis Anderson and Gregory Walker, and 16 they never told any member of the San Francisco District Attorney’s Office this information. 17 Under Brady, Plaintiff must prove (1) the withheld evidence was favorable either because 18 it was exculpatory or could be used to impeach, (2) the evidence was suppressed by the 19 government, and (3) the nondisclosure prejudiced the plaintiff. Strickler v. Greene,

, 20 281–82 (1999). Individual officers may be held liable for Brady violations under Section 1983 if 21 the officers act “with deliberate indifference to or reckless disregard for an accused’s rights or for 22 the truth in withholding evidence from prosecutors.” Tennison v. City & Cty. of San Francisco, 23

(9th Cir. 2009). Because disputed questions of material fact exist regarding 24 Plaintiff’s Brady claim against the individual officers, Defendants’ motion for summary judgment 25 is DENIED. 26 27 1 A. Judicial Estoppel. 2 Defendants’ first argument is that Plaintiff should be judicially estopped from arguing a 3 District Attorney employee was not present in the meeting when Defendants made the alleged 4 identification. As the Ninth Circuit recently explained:

5 Judicial estoppel “protect[s] the integrity of the judicial process by prohibiting parties from deliberately changing positions according to 6 the exigencies of the moment” and prevents “the perception that either the first or the second court was misled.” We find a party is estopped 7 from making an argument when 1) its current position is “clearly inconsistent” with its previous position; 2) “the party has succeeded 8 in persuading a court to accept that party's earlier position”; and 3) the party, if not estopped, “would derive an unfair advantage or impose 9 an unfair detriment on the opposing party.” 10 Perez v. Discover Bank, No. 22-15322,

, at *3 (9th Cir. July 24, 2023) (cleaned 11 up). Defendants contend: (1) Plaintiff’s current position—that a District Attorney’s office 12 employee was not present during the 2008 meeting—is inconsistent with Plaintiff’s position 13 during habeas and innocence proceedings, (2) Plaintiff convinced the trial and appellate courts a 14 District Attorney was present in the habeas and innocence proceedings, and (3) Plaintiff’s new 15 position would give Plaintiff an unfair advantage. (Dkt. No. 104 at 9-11.) In short, Defendants 16 allege this advantage exists because his prior position (that a district attorney was present) led to 17 monetary compensation in innocence proceedings, but that same position would not yield 18 compensation here. (Id.) Defendants “are not asking the Court to decide what happened at the 19 alleged meeting but rather to review what Plaintiff argued in his habeas case and estop him from 20 making an inconsistent argument here to obtain a double recovery.” (Id.) 21 This argument is unpersuasive. Plaintiff would not gain an unfair advantage pursuing a 22 theory based on Jackson’s new testimony. “A party derives an unfair advantage from taking two 23 contradictory positions if invoking the new position creates the ‘possibility of [the party] 24 prevailing on the very position it successfully discredited.” Perez,

, at *4 25 (quoting United Nat. Ins. Co. v. Spectrum Worldwide, Inc.,

(9th Cir. 2009)). 26 Plaintiff never “discredited” the notion that a District Attorney was not present in the 2008 27 meeting during habeas proceedings. A Brady violation could have occurred whether an attorney 1 2009) (finding liability based on police officers’ Brady obligations). The crux of Plaintiff’s 2 position in the state proceedings was the suppression of exculpatory information, not the identity 3 of the suppressor. Moreover, Defendants’ motion overlooks that Jackson—not Plaintiff—is the 4 one changing his story. Jackson originally testified a District Attorney employee was present 5 when he speculated about the identification. (74-15 at 8 (“I mean, obviously, someone asked us to 6 come down and view it and provided us with the evidence, but I couldn’t tell you who.”) But then 7 Jackson changed his testimony during this litigation. (Dkt. No. 74-2 at 6-8.) (“Did I convey that 8 to anybody? I did not.”) Plaintiff cannot be faulted for initially relying on Jackson’s testimony in 9 the habeas proceedings—Jackson was at the meeting, Plaintiff was not. It is not unfair for 10 Plaintiff to proceed against Jackson in order to determine what really happened. 11 In sum, because Plaintiff’s advantage in pursuing Jackson’s new story would not be an 12 unfair advantage, judicial estoppel is not appropriate here. 13 B. Materiality 14 Defendants’ alternative argument is Jackson’s identification was immaterial given the 15 other strong evidence against Heard. Defendants argue the prosecutor relied on the video 16 evidence Jackson viewed solely to state the video evidence did not exclude Plaintiff as a suspect. 17 (Dkt. No. 104 at 15.) The Court disagrees. To take just a few examples of materiality supported 18 by drawing reasonable inferences from the record in Heard’s favor, that the San Francisco Gang 19 Task Force members identified alternative suspects could have been used to further impeach 20 Smith’s shaky eye-witness testimony. And, as discussed above, Heard’s counsel moved to 21 introduce Anderson’s photo but was not allowed to do so. With Jackson’s testimony regarding the 22 2008 meeting, that decision could have been different. Finally, had Jackson testified to his 23 impressions of the video, jurors could have found reasonable doubt Heard was present at the scene 24 all. In sum, Defendants ask the Court to make inferences from that evidence in Defendants’ favor. 25 The Court cannot do so on summary judgment. 26 C. Burrows and Griffin 27 Finally, Defendants Burrows and Griffin argue the evidence does not include any facts 1 Reading Jackson’s deposition in the light most favorable to Heard, as this Court must, Jackson 2 suggests Burrows and Griffin were present during the disputed meeting and may have also known 3 about the alternative suspect identification. (Dkt. No. 74-2 at 6-8.) Jackson’s testimony also 4 supports a finding Burrows and Griffin did not disclose their identification to any district attorney 5 employee. Burrows and Griffin do not offer any testimony disputing these inferences, let alone 6 rendering them unreasonable. Because genuine disputes remain, the claims against those officers 7 may proceed. 8 II. Lynch and Jones 9 Heard presents a number of new claims in the SAC against the lead investigators in the 10 murder case—Lynch and Jones. As an initial matter, no evidence in the record refers to Jones. 11 Thus, Defendants’ motion for summary judgment on the claims against Jones is GRANTED. As 12 to Lynch, Heard brings three claims under

: (1) a malicious prosecution claim, 13 (2) a claim for fabrication of evidence, and (3) a “suggestive identification” due process claim. 14 These claims largely focus on Lynch’s phone call with Smith, during which he repeated Smith’s 15 description of the shooter as having gold “teeth” rather than a single gold “tooth.” 16 A. Malicious Prosecution 17 To prevail on his malicious prosecution claim, Plaintiff must prove “that the prior action 18 (1) was commenced by or at the direction of the defendant and was pursued to a legal termination 19 in his, plaintiff's, favor; (2) was brought without probable cause; and (3) was initiated with 20 malice.” Mills v. City of Covina,

(9th Cir. 2019) (cleaned up; quoting 21 Sheldon Appel Co. v. Albert & Oliker,

(Cal. 1989)); see also

(“Federal 22 courts rely on state common law for elements of malicious prosecution.”). 23 In California, as in virtually every other jurisdiction, it is a long-standing principle of 24 common law that a decision by a judge or magistrate to hold a defendant to answer after a 25 preliminary hearing constitutes prima facie—but not conclusive—evidence of probable cause. 26 Awabdy v. City of Adelanto,

(9th Cir. 2004). “A plaintiff can rebut a prima 27 facie finding of probable cause is by showing that the criminal prosecution was induced by fraud, 1 Moreover, “[o]rdinarily, the decision to file a criminal complaint is presumed to result from an 2 independent determination on the part of the prosecutor, and thus, precludes liability for those who 3 participated in the investigation or filed a report that resulted in the initiation of proceedings.”

4 However, the presumption of prosecutorial independence does not bar a subsequent § 1983 claim 5 against state or local officials who improperly exerted pressure on the prosecutor, knowingly 6 provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in 7 wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal 8 proceedings. Id. 9 Heard rebuts neither the prima facie finding of probable cause nor presumption of 10 prosecutorial independence. He argues Lynch’s “reckless and wrongful conduct” regarding “the 11 impermissibly suggestive identifications made by Francis [Smith] as described above is more than 12 enough to rebut the presumption of probable cause.” (Dkt. No. 99 at 26.) Not so. It is undisputed 13 Smith identified Heard in the photo array before speaking with Lynch. Lynch included both 14 Smith’s uncertainty regarding the identification and her description of a single gold tooth rather 15 than multiple “teeth” in his affidavit. (Dkt. No. 74-4 at 11.) The prosecution was based on that 16 record information. And Smith was cross-examined in detail regarding the tooth-grill discrepancy 17 during the preliminary hearing. (Dkt. No. 74-8 at 5.) Upon review of the record, the evidence can 18 only support a finding that the independent judgment of prosecutor disrupts proximate causation 19 here.4 Thus, Lynch’s motion for summary judgment on the malicious prosecution claim is 20 GRANTED. 21 B. Evidence Fabrication 22 Heard next submits Lynch fabricated Smith’s identification evidence by saying “teeth” 23 instead of using Smith’s singular reference to a gold “tooth” when speaking with her. According 24 to Plaintiff, this contamination constitutes deliberate fabrication because Lynch knew Heard had a 25 grill and wanted to shore up Smith’s identification by changing her memory. 26

27 4 Moreover, Lynch’s affidavit did not omit the ample exculpatory evidence—including five other 1 The Fourteenth Amendment prohibits the deliberate fabrication of evidence by a state 2 official. Devereaux v. Abbey,

, 1074–75 (9th Cir. 2001) (en banc). To prevail on 3 a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the defendant official 4 deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation 5 of liberty. Spencer v. Peters,

(9th Cir. 2017). An evidence fabrication claim 6 requires more than just continuing an investigation or suppressing exculpatory evidence. 7 Devereaux,

. Otherwise, evidence fabrication claims would subsume claims for 8 malicious prosecution or Brady violations. “Deliberate fabrication, in other words, must mean 9 something more than a mere omission.” O'Doan v. Sanford,

(9th Cir. 2021). 10 Plaintiff’s evidence is insufficient to support a finding of fabrication here. See Spencer, 11

(describing direct evidence as “an interviewer … deliberately mischaracterize[ing] 12 witness statements in her investigative report.”) Plaintiff asks the Court to speculate that Lynch 13 acted deliberately because he knew Plaintiff had a grill. But, as noted above, Lynch accurately 14 characterized Smith’s identification of one gold tooth in his affidavit for the arrest warrant. (Dkt. 15 No. 74-4 at 11.) Plaintiff cites no case finding deliberate fabrication based on an officer’s casual 16 repetition of the witness’s wording in an interview conversation—let alone a case in which the 17 officer subsequently reported the testimony accurately in an affidavit.5 Gausvik v. Perez,

813, 817 (9th Cir. 2003) (“While Perez’s affidavit may have been careless or inaccurate, it does 19 not satisfy Devereaux's stringent test.”) 20 Even if the Court assumes Lynch’s usage of “teeth” did change Smith’s perception and her 21 later testimony at trial such that the evidence was unreliable, Plaintiff must prove facts to support 22 his claim Lynch’s behavior was “deliberate.” Deliberate fabrication can be established by 23 circumstantial evidence. Spencer,

. To support a deliberate fabrication of 24 evidence claim via circumstantial evidence, Plaintiff “must, at a minimum, point to evidence that 25 supports at least one of the following two propositions: (1) Defendants continued their 26

27 5 Indeed, as Plaintiff admitted at oral argument, qualified immunity would almost certainly apply 1 investigation of [Plaintiff] despite the fact that they knew or should have known that he was 2 innocent; or (2) Defendants used investigative techniques that were so coercive and abusive that 3 they knew or should have known that those techniques would yield false information.” O’Doan, 4

. The evidence does not support an inference Lynch knew or should have known 5 Heard was innocent because (1) Smith identified Heard outside of Lynch’s presence before the 6 teeth-tooth conversation, and (2) Lynch accurately reported Smith’s testimony in the affidavit after 7 that conversation. Moreover, Plaintiff cites no case finding an officer’s use of a slightly different 8 word during an interrogation constitutes an investigative technique that was “so coercive and 9 abusive” it is likely to yield false information. See Carrillo v. Cnty. of Los Angeles,

(9th Cir. 2015) (officers told witness his initial identification “could not be the suspect 11 shooter” then affirmed he made the “right choice” after the witness ultimately selected the 12 plaintiff). Rather, Plaintiff argued at the hearing his motion was based on the idea that Lynch 13 “should have known better.” But “[s]urmise, conjecture, theory, speculation and an advocate’s 14 suppositions cannot ‘do duty for probative facts’ and valid inferences.” McSherry v. City of Long 15 Beach,

(9th Cir. 2009). 16 Because Plaintiff fails to provide evidence sufficient to support a vital element of the 17 claim, the Court GRANTS Lynch’s motion for summary judgment on the evidence fabrication 18 claim. 19 C. Suggestive Identification Due Process Claim 20 Plaintiff cites a habeas case, Neil v. Biggers,

(1972), and a criminal case, 21 United States v. Montgomery,

(9th Cir. 1998) for the proposition that Lynch can be 22 liable for a due process violation under § 1983 if Lynch used suggestive identification procedures. 23 Plaintiff cites no case finding civil liability under circumstances similar to those alleged here. Nor 24 has the Court found such a case upon its own investigation. But see McSherry v. City of Long 25 Beach,

(9th Cir. 2009) (rejecting a due process claim for use of an 26 “improper, unreliable and suggestive identification procedure” on factual, rather than legal 27 grounds). 1 actionable under § 1983, the harm stemming from the identification procedure overlaps entirely 2 with Plaintiff’s Deveraux fabrication claim in practice. See Carrillo v. Cnty. of Los Angeles, No. 3 2-11-CV-10310-SVW-AGR,

, at *5 n.5 (C.D. Cal. Nov. 14, 2012), aff’d, 798

(9th Cir. 2015). As the district court explained in Carrillo, 5 Unconstitutionally suggestive identification techniques are those that 6 are “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” [] By definition, such 7 techniques appear to be “so coercive and abusive” that officers know or should know that they yield false information. Whether 8 unconstitutionally suggestive identification techniques state a claim under Devereaux’s fabrication-of-the-evidence test or as due process 9 violations matters little to Plaintiff’s claim: either way, the use of such techniques to procure a conviction violates the requirements of due 10 process. 11

(cleaned up). The same is true here. Thus, Plaintiff’s due process claim based on suggestive 12 interrogation techniques fails for the same reason as the Devereaux evidence fabrication claim. 13 III. The City 14 Plaintiff’s final claim is against the City for failing to train officers regarding their 15 obligations under Brady v. Maryland. “To [prevail on a claim against a municipal entity for a 16 constitutional violation], a plaintiff must go beyond the respondeat superior theory of liability and 17 demonstrate that the alleged constitutional deprivation was the product of a policy or custom of 18 the local governmental unit.” Kirkpatrick v. Cty. of Washoe,

(9th Cir. 2016) (en 19 banc). A plaintiff may also establish municipal liability by demonstrating that the alleged 20 constitutional violation was caused by a failure to train municipal employees adequately. See City 21 of Canton, Ohio v. Harris,

, 388–91 (1989). Such a showing depends on three 22 elements: (1) the training program must be inadequate “in relation to the tasks the particular 23 officers must perform”; (2) the city officials must have been deliberately indifferent “to the rights 24 of persons with whom the [local officials] come into contact”; and (3) the inadequacy of the 25 training “must be shown to have ‘actually caused’ the constitutional deprivation at issue.” Merritt 26 v. Cty. of Los Angeles,

(9th Cir. 1989) (cleaned up). “A municipality's 27 culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to 1 “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal 2 actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 3 61 (cleaned up). “Satisfying this standard requires proof that the municipality had actual or 4 constructive notice that a particular omission in their training program will cause municipal 5 employees to violate citizens' constitutional rights.” Kirkpatrick,

(cleaned up). 6 “[T]o demonstrate that the municipality was on notice of a constitutionally significant gap in its 7 training, it is ordinarily necessary for a plaintiff to demonstrate a pattern of similar constitutional 8 violations by untrained employees.”

(cleaned up). 9 Defendants challenge only whether Plaintiff can establish deliberate indifference to a 10 pattern of constitutional violations here. (Dkt. No. 104 at 19-20.) As at the motion to dismiss 11 stage, Plaintiff relies solely on Tennison v. City & County of San Francisco,

, 1091 12 (9th Cir. 2009) to meet the notice requirement. As the Court explained there: 13 In Tennison, the Ninth Circuit found two SFPD homicide inspectors 14 withheld exculpatory evidence and violated the plaintiffs’ Brady rights. 570 F.3d at 1090–1095. The conduct in that 15 case resembles the alleged Brady violation here. For example, the homicide detectives in Tennison did not tell the prosecutor that a 16 witness identified alternative murder suspects.

. On that point, the court held: 17 “Evidence that a person, known to the officers, has told the officers 18 that they have arrested the wrong people, has identified the people involved, including the shooter, and described the cars and the chase 19 in a manner consistent with the evidence, should not have been buried in a file, but should have been made known to the prosecutor.” 20

. Just as the inspectors in Tennison knew a credible witness 21 identified alternative suspects, Plaintiff alleges the District Attorney investigator here knew that an SFPD officer and gang expert had 22 identified alternative suspects. And, as in Tennison, Plaintiff contends the City employees did not share the identification with the attorneys 23 prosecuting the case. 24 Heard v. Jackson, No. 21-CV-09472-JSC,

, at *6 (N.D. Cal. June 30, 2022). 25 Defendants object that one decision, handed down roughly contemporaneously within the events 26 here, cannot constitute adequate notice to the City. (Dkt. No. 104 at 20.) 27 The Court disagrees. Tennison was a major case that described a series of separate, 1 decision in Tennison on December 8, 2008—just weeks after the Barrett murder. See Tennison v. 2 City & Cnty. of San Francisco,

(9th Cir. 2008).6 3 Defendants’ citation to Hyde v. City of Willcox,

(9th Cir. 2022) is 4 inapposite. Defendants quote Hyde for the proposition that “an inadequate training policy itself 5 cannot be inferred from a single incident.” (Dkt. No. 104-20.) But the full quotation from Hyde 6 reveals Defendants’ error:

7 While deliberate indifference can be inferred from a single incident when “the unconstitutional consequences of failing to train” are 8 “patently obvious,” Connick, 563 U.S. at 61,

, an inadequate training policy itself cannot be inferred from a single 9 incident. 10 Hyde,

(emphasis added). Plaintiff is not asking the Court to infer anything 11 about the adequacy of Defendants’ training from Tennison. Plaintiff is only using Tennison for 12 the proposition that Defendants were on notice. Moreover, as described above, Tennison describes 13 multiple incidents of Brady violations, not just one. Defendants then argue:

14 Plaintiff fails to explain how the City could have notice to train the individual defendants based on a Ninth Circuit decision affirming 15 denial of summary judgment on qualified immunity grounds to individual police inspectors involved in a 1989-90 murder 16 investigation (not municipal liability) first filed weeks after the Barrett murder—potentially after the alleged 2008 meeting—and 17 amended shortly before Plaintiff was arrested. 18 (Dkt. No. 104 at 20.) But this argument also fails. First, the Court must interpret the facts in the 19 light most favorable to Heard at this stage. The murder occurred on November 25, 2008. 20 Tennison came down on December 8, 2008. Jackson speculated the meeting probably occurred 21 “within 30 days” of the murder. (Dkt. No. 74-15 at 8.) Viewing the evidence in the light most 22 favorable to Heard, the meeting could have occurred multiple weeks after Tennison. Defendants 23 cite no case establishing a grace period for failure-to-train allegations. 24 Second, Defendants try to limit Tennison’s force as merely “a Ninth Circuit decision 25 affirming denial of summary judgment on qualified immunity grounds” rather than a “municipal 26 liability” case. (Dkt. No. 104 at 20.) This is just a circular argument. If only municipal 27 1 violations could place a city on notice regarding municipal violations, no city would ever be held 2 || accountable. Defendants have not shown that a published decision condemning a pattern of 3 alleged Brady violations by individual SFPD officers does not put a municipality on notice that a 4 || risk exists. 5 Thus, viewing the evidence in the light most favorable to Plaintiff, the City’s motion for 6 summary judgment is DENIED. 7 CONCLUSION 8 For the reasons stated above, Jackson, Burrows, Griffin, and the City’s motion for 9 summary judgment is DENIED. Lynch and Jones’ motions for summary judgment are 10 || GRANTED. The parties shall schedule a further settlement conference with Chief Magistrate 11 Judge Ryu at a time to be determined by Magistrate Judge Ryu. A further case management 12 conference is scheduled for September 21, 2023, at 1:30 p.m. by Zoom Video. 5 13 IT IS SO ORDERED. 14 This Order resolves Dkt. No. 74. 3 15 Dated: August 3, 2023 16 & ' □□□ Subaly 8 JAGQUELINE SCOTT CORL United States District Judge 19 20 21 22 23 24 25 26 27 28