Tennison v. Sanders

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN TENNISON; ANTOINE GOFF, 
Plaintiffs-Appellees,
v.
CITY AND COUNTY OF SAN No. 06-15426
FRANCISCO; SAN FRANCISCO POLICE D.C. Nos.
DEPARTMENT, CV 04-0574 CW
Defendants,  CV 04-1643 CW
GEORGE BUTTERWORTH, ORDER AND
Defendant, AMENDED
and OPINION
PRENTICE EARL SANDERS; NAPOLEON
HENDRIX,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
June 12, 2007—San Francisco, California
Submission Vacated May 21, 2008
Resubmitted September 22, 2008
Filed December 8, 2008
Amended June 23, 2009
Before: Michael Daly Hawkins, A. Wallace Tashima, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge A. Wallace Tashima
7527
TENNISON v. SANDERS 7531
COUNSEL
Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, Cali-
fornia, for plaintiff-appellee John Tennison.
John H. Scott, The Scott Law Firm, San Francisco, California,
for plaintiff-appellee Antoine Goff.
James A. Quadra, Moscone, Emblidge & Quadra, LLP, San
Francisco, California, for defendants-appellants Prentice Earl
Sanders and Napoleon Hendrix.
7532 TENNISON v. SANDERS
ORDER
The Opinion filed December 8, 2008, and reported at 548
F.3d 1293, is replaced by the Amended Opinion filed concur-
rently with this order. With the filing of the Amended Opin-
ion, appellants’ Petition for Rehearing En Banc is denied as
moot.
Further petitions for panel rehearing and/or petitions for
rehearing en banc may be filed with respect to the Amended
Opinion.
OPINION
TASHIMA, Circuit Judge:
John Tennison and Antoine Goff (collectively “Plaintiffs”)
served nearly thirteen years in state prison for a murder of
which both have been declared factually innocent by the
courts. They were both released from custody after the district
court granted Tennison’s petition for writ of habeas corpus.
Following their release, they filed complaints under 42 U.S.C.
§ 1983, alleging, inter alia, that San Francisco Police Depart-
ment (“SFPD”) homicide inspectors Prentice Earl Sanders
and Napoleon Hendrix (together “Inspectors”) withheld
exculpatory evidence and manufactured and presented per-
jured testimony during the investigation and prosecution of
Plaintiffs for the murder of Roderick Shannon. The Inspectors
appeal the district court’s partial denial of their motion for
summary judgment on the basis of absolute and/or qualified
immunity. We affirm in all respects.
JURISDICTION
Although we generally do not have jurisdiction over an
interlocutory appeal from the denial of a motion for summary
TENNISON v. SANDERS 7533
judgment, the denial of a defendant’s motion for summary
judgment on the basis of qualified immunity is immediately
appealable. Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th
Cir. 2006). The district court’s denial of a claim of absolute
immunity also is immediately appealable. Castaneda v.
United States, 546 F.3d 682, 687 (9th Cir. 2008). We there-
fore have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291. Id.BACKGROUND
Construing the facts in favor of the nonmoving parties, as
we must, Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir.
2005), the record establishes the following facts.
The victim in this case, Roderick Shannon, was beaten,
shot, and killed. Inspectors Sanders and Hendrix volunteered
to investigate the case. The evidence indicated that Shannon
was chased while driving his car by a pick-up truck full of
young men, and that he crashed into a fence in a parking lot
after driving in reverse in an attempt to evade his pursuers.
Shannon was beaten and shot when he tried to escape on foot.
Shannon was driving a green Buick Skylark that he and his
cousin Patrick Barnett owned.
A few days after the murder, Hendrix received a phone call
from then eleven-year-old Masina Fauolo, who told Hendrix
that she had witnessed Shannon’s murder.1 Masina initially
called anonymously and stated that she was parked in “Lov-
ers’ Lane,” when she saw numerous autos chasing another car
that she knew belonged to Barnett. She followed in her car
and saw the driver lose control and flee on foot. When the
driver was captured by his pursuers, he was beaten and shot.
The assailants fled in a pickup truck and other cars. Masina
called Hendrix again, later that same day, identified herself,
1
The district court and the parties refer to Fauolo and her friend, Pauline
Maluina, by their first names. We do the same in order to avoid confusion.
7534 TENNISON v. SANDERS
and named some of the cars involved. Following this initial
contact, Masina spoke with Hendrix every day or every other
day during the course of the investigation. Hendrix took notes
of a conversation with Masina that included names and other
information about the incident.
Several weeks after the murder, Sanders and Hendrix
requested a reward of $2,500 from the Secret Witness Pro-
gram (“SWP”) to encourage witnesses to come forward with
information about Shannon’s murder. The request stated that
the murder appeared to have been gang-related, and that
Shannon had been mistakenly identified as a member of a
rival gang. Handwritten notations and initials on the request
indicate that it was approved.
In a deposition taken in this action, Hendrix stated that he
never informed the district attorney about the SWP request.
Sanders did not provide a copy of the SWP request to the
prosecutor, Assistant District Attorney George Butterworth
(“Butterworth”) either, but he asserted that there was a copy
in Sanders’ file, to which Butterworth had access. Butterworth
stated that the request was not in the district attorney’s file
and had not been produced to Tennison’s counsel. Butter-
worth did not become aware of the SWP request until he read
Tennison’s federal habeas petition. Public Defender Jeff
Adachi, defense counsel for Tennison, stated in a declaration
that he was never told about the authorization of reward
money.
Early in their investigation, the Inspectors taped an inter-
view with Masina. Masina told them that she and her friend
Pauline Maluina were in a car at Lovers’ Lane, at the intersec-
tion of Visitacion and Mansell, when four cars that Masina
knew were from Hunters Point entered the parking lot. The
cars parked in the lot, and some people exited the cars. After
about ten minutes, they saw the Skylark go down the hill, on
Visitacion, toward Sunnydale. Masina heard someone com-
ment that Pat was going to pay the price now. The boys got
TENNISON v. SANDERS 7535
in their cars and started chasing the Skylark. Masina described
the cars involved in the chase and the order in which they
chased the Skylark.
According to her statement, Masina followed the cars and
saw Shannon crash into a fence, get out of the car, and start
running down the hill. Five or six boys eventually cornered
Shannon in a supermarket parking lot and beat him up. She
saw one boy get a gun from the trunk of a green Maverick and
shoot Shannon, despite Masina’s screams not to hurt Shan-
non. The group of boys left, and Masina went to help Shan-
non, who asked her to get Barnett. Masina told a woman at
a video store across the street to call an ambulance and then
left. Sanders showed Masina eight photos, and Masina identi-
fied Goff as the shooter and Tennison as one of the men who
beat Shannon.
Hendrix also interviewed Masina’s fourteen-year-old
friend, Pauline. Pauline stated that she and Masina were
across the street from the market when they heard a lot of
screaming and saw someone being beat up. Contrary to
Masina’s story, Pauline denied having been at the top of the
hill, which is the location of Lovers’ Lane. She said that she
and Masina were walking on Visitacion, that they cut through
a park to get to Leland, and that was when they saw Shannon
being beat up.
She also reported that she saw a car pull up next to Shan-
non, and that one of the boys got a gun and shot Shannon.
Before the shooting, Masina was telling the group to leave
Shannon alone. Pauline and Masina then ran away and
“hopped on a bus.”
Later, another witness, Chanté Smith, called Sanders about
the murder. Sanders and Hendrix knew Smith from the neigh-
borhood. Smith did not tell Sanders that she had witnessed the
murder, which she had, but she provided Sanders with the
names of people who were at the scene of the murder, includ-
7536 TENNISON v. SANDERS
ing Luther Blue and Lovinsky Ricard. She did not tell Sanders
that she was a witness to the shooting because she was afraid
that someone would try to hurt her. Smith did, however, tell
Sanders that Tennison and Goff were not present at the mur-
der. She also told Sanders that Ricard had shot Shannon. She
described several of the cars involved in the car chase, and
told him that the chase started at a 7-Eleven store on Bay-
shore, not at Lovers’ Lane. Sanders’ handwritten notes from
the interview include Smith’s name, phone number, and a list
of names.
Sanders went to Smith’s house to interview her a second
time prior to trial, and she again told him about the people and
cars involved in the chase, and she told him that the chase
started at the 7-Eleven store. Three SFPD officers from the
Gang Task Force went to Smith’s house on a subsequent
occasion to show her photographs of trucks to see if she rec-
ognized any of them. Undated notes, with the name “Chanté”
at the top, include Smith’s beeper number, names, and a hand-
drawn map with other information on it.
Hendrix and Officer Michael Lewis of the SFPD Gang
Task Force interviewed Ricard. Ricard denied having been
present when Shannon was beaten up, and he denied shooting
Shannon. Hendrix told Ricard that someone had placed him
at the scene of the crime, and that Hendrix did not think that
this person had a grudge against Ricard; however, Ricard
denied any involvement in the incident.
At a “707 hearing,”2 a superior court judge found that Ten-
nison should be tried as an adult rather than a juvenile. Pau-
line testified at that hearing.
The day before Tennison’s preliminary hearing, Butter-
worth confronted Pauline with the transcript of the 707 hear-
2
So named because such a hearing is held pursuant to Cal. Welf. & Inst.
Code § 707.
TENNISON v. SANDERS 7537
ing and told her that he was concerned about discrepancies
between her testimony and the information Masina had given
in her taped interview with the police. Pauline then told But-
terworth and Hendrix that she actually had not witnessed the
murder, and that she was only covering for Masina.
Butterworth and Hendrix conducted a taped interview of
Pauline. Pauline again stated that she had not been present at
the shooting, and that she had chosen Tennison’s photo during
the earlier interview because “Masina told me to pick the one
that looked the biggest, and the largest one out of all the pic-
tures.” Pauline had lied because Masina had “covered” for
Pauline when Pauline ran away from home several times.
Pauline said that she actually had never seen Tennison before.
She told Butterworth and Hendrix that she was telling the
truth now because she “didn’t want to get into any more trou-
ble.” According to Pauline, Butterworth became “very upset”
with her after she told them the truth. Hendrix also called
Masina and taped the call. These tapes were not produced to
Tennison’s counsel at the time and were not produced in
response to subpoenas in Tennison’s federal habeas case.
Copies of the tapes were not produced until Tennison made
a document request in this case. The copies were in Butter-
worth’s files.
Inspector Henry Hunter later administered an inconclusive
polygraph to Pauline, during which she again recanted her
original story. After the polygraph, Hendrix called Masina in
Samoa and had Pauline speak with Masina alone. Pauline told
Masina that she had told the police that she did not witness
the shooting and Masina became angry with her. After speak-
ing with Masina, Pauline reverted to her original story and
told Hendrix and Sanders in a taped interview that her state-
ments at the 707 hearing identifying Tennison were the truth.
Hendrix placed Hunter’s memo summarizing the results of
the polygraph in his file and told Butterworth the results of
the polygraph. Butterworth testified that he did not see Hunt-
7538 TENNISON v. SANDERS
er’s memo until 2001, in conjunction with Tennison’s federal
habeas petition, so he never gave a copy of the memo to
defense counsel. He did tell Adachi about the polygraph, but
he could not recall whether he told Melton, Goff’s lawyer.
Adachi stated in a declaration that he was never told about the
polygraph.
In a later declaration, Pauline stated that Masina had pres-
sured her during the April 24, 1990, phone call to return to her
original story, and that Masina gave her further details about
the shooting. Pauline further stated that, after the polygraph,
she felt pressured by Hendrix and Butterworth to revert to her
previous story. In an April 2005 deposition, Pauline testified
that she went along with Masina out of fear of Masina, and
that she felt that Butterworth became frustrated and angry
when she first retracted her story.
Pauline testified at Goff’s preliminary hearing. Defense
counsel, Melton, questioned Pauline about inconsistencies in
her story and about her recantation, but the court found proba-
ble cause and ordered Goff to stand trial. Masina testified at
Tennison’s June 18, 1990, preliminary hearing. Defense coun-
sel, Adachi, cross-examined Masina about her April 24, 1990,
phone conversation with Pauline and about Pauline’s recanta-
tion, but, again, the court found probable cause.
Pauline and Masina both testified at Plaintiffs’ consolidated
trial. The jury found Plaintiffs guilty of murder on October 3,
1990. Tennison was sentenced to a twenty-five-year to life
term of imprisonment. After Goff’s motion for a new trial was
denied, he was sentenced to a twenty-seven-year to life term
of imprisonment.
Approximately a week after the verdict, Tennison heard
from friends that people named Lavista or Lavinsky Ricard
and Luther Blue were involved in the incident. Tennison cal-
led Ricard himself. Tennison told Ricard that he had been
convicted, and Ricard said that he knew; Ricard acknowl-
TENNISON v. SANDERS 7539
edged to Tennison that he had shot Shannon, but he did not
want to mention the names of any others who were involved.
At Tennison’s request, Ricard provided details about the inci-
dent and agreed to contact Adachi. Tennison gave this infor-
mation to Adachi the day after speaking with Ricard and gave
Adachi Ricard’s name, address, and phone number.
One month after the guilty verdict, Ricard was arrested on
narcotics and traffic warrants by Lewis and Neville Gittens,
another SFPD Gang Task Force officer, both of whom had
worked with Hendrix and Sanders on the Shannon murder.
Lewis and Gittens questioned Ricard about the murder in a
taped interview during which he confessed to committing the
murder and provided details consistent with Smith’s version
of events.
Lewis told Hendrix and Sanders, who were his superiors,
about the confession and gave them either the original or a
copy of the interview tape, and his notes from the interview.
In a later deposition, Lewis stated that he talked to Hendrix
the day after the Ricard interview. Lewis recalled that he
spoke with Hendrix about the confession and asked him if he
had heard the tape. Hendrix acknowledged that he had lis-
tened to the tape, but he told Lewis “that it was a good effort
but that unless Ricard was going to be specific and bring you
a weapon, bring you associates, bring you vehicles, bring you
additional rounds or something tangible, it did not appear to
be enough.”
Hendrix later testified in a deposition that, if Lewis and
Gittens had received a confession to the murder, they would
have made sure the Inspectors received the information. Hen-
drix further testified that he did not listen to the taped Ricard
confession, and he did not inform Butterworth of the tape.
But Hendrix stated in a later declaration that he learned
about the tape from Sanders, who allegedly learned about the
tape from Butterworth. He also testified that he “didn’t care
7540 TENNISON v. SANDERS
about the tape” because it “had been taken by someone other
than someone in homicide,” and that he was “[a] little PO’d
at Gittens and Lewis” because he felt that he and Sanders
should have been contacted. He felt that, because he and
Sanders were in charge of the investigation, Ricard should
have spoken with them, and that the confession was not sin-
cere because it was not given to them.
Sanders testified in a deposition that he received the tape of
the confession within a day or two after it was taken, and that
he began comparing the tape with the first interview of Ricard
and found the two “diabolically opposed. One, he had nothing
to do with it, and on this one he’s — in this interview, he is
confessing.” Sanders further stated that the tape was “para-
mount,” and that he and Hendrix “got a hold of [Butterworth]
right away” and told him they were investigating it.
Later, however, Sanders stated that he learned about the
confession from Butterworth. Sanders stated that he reviewed
the confession and “conducted some follow-up investigation,”
but he found the confession not credible because it was not
consistent with other evidence and could not be corroborated.
Without having received any information from Hendrix,
Sanders, or Butterworth, and following only the tip from Ten-
nison, Adachi obtained his own videotaped confession from
Ricard, who was disguised under a hood and unidentified.
However, Adachi was required to withdraw from the case
because the Office of the Public Defender was representing
Ricard in a different matter. Adachi was replaced by LeRue
Grim, to whom Adachi gave the tape of Ricard’s anonymous
confession, without revealing Ricard’s identity.
Tennison filed a motion for a new trial based, in large part,
on Ricard’s anonymous confession. On the third and final day
of the hearing on that motion, Butterworth learned for the first
time about the tape of the Ricard confession taken by Lewis
and Gittens. Butterworth was in the cafeteria of the Hall of
TENNISON v. SANDERS 7541
Justice, working on Tennison’s motion for a new trial, when
Lewis and Gittens asked him what had happened to the Ricard
tape. Butterworth asked what tape they were referring to, and
they explained that when they interviewed Ricard, Ricard
confessed that he was the one who shot Shannon. Butterworth
contacted Sanders about the confession, who told Butterworth
that he was not aware of any such confession.
The state trial court denied Tennison’s motion for a new
trial, concluding that the two taped confessions by Ricard
were inadmissible, and, even if admissible, Ricard’s state-
ments “contained so many inconsistencies they could not be
considered trustworthy.” The appellate court affirmed both
convictions.
Later, Sanders and Butterworth interviewed Smith again.
Smith provided specific additional details, such as the streets
on which the chase occurred, details about the cars and per-
sons involved, where each person was seated in the cars, the
words spoken during the incident, the manner in which Ricard
shot Shannon, and Ricard’s words after the shooting. Smith
told Sanders that she did not see any females at the scene and
that she did not hear any females yelling not to hurt Shannon.
Adachi stated in a declaration that he kept a “detailed
inventory of every document” he received from the prosecutor
or the SFPD and an index of taped witness statements pro-
vided to him by the prosecutor. Adachi further stated that he
never received any information about any interview. He did
not see Sanders’ notes of the phone call from Smith, or other
notes that included names and a map until June 2002. Adachi
further stated that he never received the notes from the inter-
views and telephone calls with Masina and Luther Blue, and
that the SFPD’s “Chronological Report of Investigation” did
not list the interviews.
When Plaintiffs’ state habeas petitions were denied, they
filed habeas petitions in federal court. Judge Wilken granted
7542 TENNISON v. SANDERS
Tennison’s habeas petition, based on the suppression of mate-
rial exculpatory evidence, and vacated his conviction. Goff’s
conviction was vacated by the Superior Court for the City and
County of San Francisco. Tennison and Goff were released
from custody, and both were declared factually innocent.3
Plaintiffs subsequently filed the present 42 U.S.C. § 1983action against, inter alia, the Inspectors for allegedly with-
holding material, exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963).
The Inspectors moved for summary judgment on the basis
of absolute and qualified immunity. With respect to Plaintiffs’
Brady claims against the Inspectors, the district court first
rejected the Inspectors’ argument that Plaintiffs needed to
establish that the Inspectors acted in bad faith in withholding
the Ricard confession. It then denied the Inspectors’ motion
for summary judgment with respect to the Ricard confession
and the Smith interview on absolute immunity and qualified
immunity grounds, and held that disputed facts regarding the
SWP request precluded the grant of summary judgment on the
basis of qualified immunity.4 The Inspectors filed a timely
notice of appeal. We affirm the denial of summary judgment.
3
The California Victim Compensation and Government Claims Board
denied Plaintiffs’ claims seeking compensation for wrongful incarceration,
agreeing with an administrative law judge that the findings of factual inno-
cence were not binding and that Plaintiffs had failed to establish by a pre-
ponderance of the evidence that they did not commit the murder. The
denial was upheld by the California Court of Appeal. See Tennison v. Cal.
Victim Compensation & Gov’t Claims Bd., 62 Cal. Rptr. 3d 88 (Ct. App.
2007).
4
The court made numerous other rulings not relevant to this appeal,
including rulings on the availability of absolute and qualified immunity to
Butterworth. Butterworth took an interlocutory appeal on some of those
rulings, but that appeal has been dismissed, due to a settlement of Plain-
tiffs’ claims against Butterworth.
TENNISON v. SANDERS 7543
STANDARD OF REVIEW
The question of whether a defendant is entitled to absolute
immunity is a question of law reviewed de novo. Castaneda,
546 F.3d at 687. The appeal of a denial of summary judgment
based on qualified immunity similarly is reviewed de novo.
Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003).
“We construe all facts in the light most favorable to . . . the
non-moving party, in deciding whether a dispute of fact is
material and thereby precludes summary judgment.” Genzler,
410 F.3d at 636.
DISCUSSION
1. Duty of Police Officers versus Prosecutors
The Inspectors argue, first, that Brady imposes a duty on
prosecutors, but not on police officers, to disclose exculpatory
evidence. We reject the Inspectors’ argument. We have held
that
exculpatory evidence cannot be kept out of the hands
of the defense just because the prosecutor does not
have it, where an investigating agency does. That
would undermine Brady by allowing the investigat-
ing agency to prevent production by keeping a report
out of the prosecutor’s hands until the agency
decided the prosecutor ought to have it, and by
allowing the prosecutor to tell the investigators not
to give him certain materials unless he asked for
them.
United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004).
[1] The Inspectors’ position also is untenable in light of the
Supreme Court’s admonition that “Brady suppression occurs
when the government fails to turn over even evidence that is
‘known only to police investigators and not to the prosecu-
7544 TENNISON v. SANDERS
tor.’ ” Youngblood v. West Virginia, 547 U.S. 867, 869-70
(2006) (per curiam) (quoting Kyles v. Whitley, 514 U.S. 419,
438 (1995)); see also, e.g., Newsome v. McCabe, 256 F.3d
747, 752-53 (7th Cir. 2001) (stating that it was clearly estab-
lished in 1979 and 1980 that police could not withhold excul-
patory information about fingerprints and the conduct of a
lineup from prosecutors). We accordingly reject this argu-
ment.
2. Bad Faith
[2] The Inspectors also argue that Plaintiffs must establish
that the Inspectors acted in bad faith in order to establish
§ 1983 liability, citing Cunningham v. City of Wenatchee, 345
F.3d 802 (9th Cir. 2003). The Inspectors’ reliance on Cun-
ningham is misplaced. Cunningham did not involve a Brady
claim, but a claim under Arizona v. Youngblood, 488 U.S. 51(1988), that a police officer acted in bad faith when he failed
to preserve and gather potential exculpatory evidence. See
Cunningham, 345 F.3d at 812. In sharp contrast to the instant
case, there was “no question” in Youngblood that the State
complied with Brady. Youngblood, 488 U.S. at 55. The
Supreme Court distinguished a failure to disclose exculpatory
evidence under Brady, in which “the good or bad faith of the
State [is] irrelevant,” from the failure “to preserve evidentiary
material of which no more can be said than that it could have
been subjected to tests, the results of which might have exon-
erated the defendant,” which does require a showing of bad
faith. Youngblood, 488 U.S. at 57.
[3] Unlike Youngblood and Cunningham, which did not
involve Brady, but instead physical evidence that was
untested and whose exculpatory value therefore was specula-
tive and unknown, Plaintiffs here allege that the Inspectors
violated Brady by failing to disclose material, exculpatory
evidence within their possession. The question accordingly is
what standard of liability is required to impose § 1983 liabil-
TENNISON v. SANDERS 7545
ity on police officers for the failure to disclose material,
exculpatory evidence to prosecutors.
In the criminal and habeas context, “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady, 373 U.S. at 87; see also
Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004) (stating that
“Brady has no good faith or inadvertence defense”). Section
1983 “contains no state-of-mind requirement independent of
that necessary to state a violation of the underlying constitu-
tional right.” Daniels v. Williams, 474 U.S. 327, 330 (1986).
However, “in any given § 1983 suit, the plaintiff must still
prove a violation of the underlying constitutional right; and
depending on the right, merely negligent conduct may not be
enough to state a claim.” Id.
In Daniels, the Court held that a deputy’s negligent act of
leaving a pillow on prison stairs, causing an inmate to be
injured, was not a violation of the inmate’s due process rights.
Id. at 332. Because the inmate conceded that the deputy was
“at most negligent,” the Court did not consider “whether
something less than intentional conduct, such as recklessness
or ‘gross negligence,’ is enough to trigger the protections of
the Due Process Clause.” Id. at 334 n.3; see also Porter v.
White, 483 F.3d 1294, 1308 (11th Cir. 2007) (relying on Dan-
iels to hold that “mere negligence or inadvertence on the part
of a law enforcement official in failing to turn over Brady
material to the prosecution . . . cannot provide a basis for lia-
bility in a § 1983 action seeking compensation for loss of lib-
erty occasioned by a Brady violation,” and declining to
consider whether less than intentional conduct was sufficient),
cert. denied, 128 S. Ct. 1259 (2008).
[4] We know, therefore, that a § 1983 plaintiff must prove
a violation of the underlying constitutional right. Daniels, 474
U.S. at 330. In light of the fact that the suppression of Brady
7546 TENNISON v. SANDERS
material “violates due process . . . irrespective of the good
faith or bad faith of the prosecution,” Brady, 373 U.S. at 87,
we believe that a § 1983 plaintiff should not be required to
show that officers acted in bad faith in withholding material,
exculpatory evidence from prosecutors.5 Instead, a § 1983
plaintiff must show that police officers acted with deliberate
indifference to or reckless disregard for an accused’s rights or
for the truth in withholding evidence from prosecutors.
In Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007), the Sev-
enth Circuit rejected the argument that “police officers violate
due process ‘only if they deliberately withhold or conceal
exculpatory evidence from the prosecutor.’ ” Id. at 631. The
court relied on its decision in Jones v. City of Chicago, 856
F.2d 985 (7th Cir. 1988), which “held that supervisors may be
liable for their subordinates’ violation of others’ constitutional
rights when they ‘know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what
they might see. They must in other words act either know-
ingly or with deliberate, reckless indifference.’ ” Steidl, 494
F.3d at 631 (quoting Jones, 856 F.2d at 992-93). Because the
plaintiff similarly alleged that “supervisors perpetuated other
officers’ misconduct,” the court concluded that he had suffi-
ciently alleged a constitutional violation. Id. at 632. Reason-
ing that “the duty to disclose was clearly established as of
1979 and 1980,” the court concluded that “all of the police
officers involved in this case[ ] had ample notice that the
knowing suppression of exculpatory material that was in the
files at the time of the trial violated the defendant’s constitu-
tional rights.” Id.
[5] We therefore hold that a § 1983 plaintiff must show that
police officers acted with deliberate indifference to or reckless
5
But see Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) (relying
on Youngblood to hold that the “bad faith standard should likewise apply
to due process claims that law enforcement officers preserved evidence
favorable to the defense but failed to disclose it”).
TENNISON v. SANDERS 7547
disregard for an accused’s rights or for the truth in withhold-
ing evidence from prosecutors. This standard is consistent
with the standard imposed in the substantive due process con-
text, in which government action may violate due process if
it “shocks the conscience.” County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998). The level of culpability required to
meet the conscience-shocking standard depends on the con-
text. See id. at 850 (stating that “[d]eliberate indifference that
shocks in one environment may not be so patently egregious
in another”). In determining whether deliberate indifference is
sufficient to shock the conscience, or whether the more
demanding standard of purpose to harm is required, “the ‘crit-
ical consideration [is] whether the circumstances are such that
actual deliberation is practical.’ ” Porter v. Osborn, 546 F.3d
1131, 1137 (9th Cir. 2008) (“Osborn”) (quoting Moreland v.
Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir.
1998)) (alteration in original). Thus, in Lewis, the Court held
that, in the context of a high speed car chase, an officer could
not be liable for a due process violation without a purpose to
harm. Lewis, 523 U.S. at 836; see also Osborn, 546 F.3d at
1140 (where the decedent’s evasive actions required the offi-
cers to react quickly, the officers could be held liable only if
they acted with a purpose to harm).
The instant case, however, is more akin to cases that apply
a reckless indifference standard to due process claims because
the decision whether to disclose or withhold exculpatory evi-
dence is a situation in which “actual deliberation is practical.”
Osborn, 546 F.3d at 1137. For example, in Amrine v. Brooks,
522 F.3d 823 (8th Cir. 2008), the Eighth Circuit discussed a
“substantive due process cause of action for reckless investi-
gation.” Id. at 833. The court stated that the liberty interest in
such a cause of action is the interest in obtaining fair criminal
proceedings, pursuant to Brady. Id. The court then explained
that “[w]here state officials have the opportunity to deliberate
various alternatives prior to selecting a course of conduct,
such action violates due process if it is done recklessly.” Id.7548 TENNISON v. SANDERS
at 833-34 (quoting Wilson v. Lawrence County, 260 F.3d 946,
956 (8th Cir. 2001)).
[6] Here, the evidence indicates that the Inspectors acted
with reckless indifference to Plaintiffs’ rights. As detailed
supra, Lewis stated in his deposition that he spoke with Hen-
drix about Ricard’s confession the day after the interview, and
that Hendrix acknowledged listening to the tape. Hendrix tes-
tified in a deposition that Lewis and Gittens would have made
sure the Inspectors knew about the confession, but he stated
that he did not listen to the confession and did not tell Butter-
worth about it. By contrast, in a subsequent declaration, Hen-
drix stated that he learned about the tape from Sanders, who
allegedly learned about it from Butterworth. Hendrix further
testified that he “didn’t care about the tape” because it “had
been taken by someone other than someone in homicide,” and
that he was “PO’d at Gittens and Lewis” because he felt that
he and Sanders should have been contacted. He expressed the
opinion that, because he and Sanders were in charge of the
investigation, Ricard should have spoken with them, and that
the confession was not sincere because it was not made to
them.
Sanders testified in a deposition that he received the tape of
the confession within a day or two after it was taken. Sanders
further stated that the tape was “paramount,” and that he and
Hendrix “got a hold of [Butterworth] right away” and told
him they were investigating it. Butterworth, however, gave a
detailed description of learning about the tape from Lewis and
Gittens while working on Tennison’s motion for a new trial.
In a declaration several years later, Sanders stated that he
learned about the confession from Butterworth.
[7] Ricard described the events surrounding the murder in
detail and in a manner consistent with the evidence. Lewis
stated that he believed that Ricard had committed the crime.
Lewis also consistently stated in his early and subsequent
depositions that he spoke with Hendrix about the confession
TENNISON v. SANDERS 7549
and that Hendrix acknowledged having listened to the tape.
By contrast, both Hendrix and Sanders changed their stories
regarding when they learned about the confession, at first
acknowledging that they had listened to the confession imme-
diately, but, in subsequent depositions, claiming to have
learned about it later from Butterworth. Hendrix’s statements
in his deposition that he was angry at Lewis and Gittens for
taking the confession, rather than contacting him and Sanders
to take it, is further evidence that the Inspectors did not act
merely negligently in withholding the confession from Butter-
worth.
[8] Plaintiffs are not required to establish that the Inspec-
tors acted in bad faith in withholding the evidence. They have
sufficiently shown at this stage of the case that the Inspectors
acted with reckless disregard for their rights and for the truth
in failing to disclose the evidence to Butterworth.
3. Smith’s Statements
The Inspectors contend that they are entitled to qualified
immunity with respect to their failure to disclose Smith’s
statements. They argue that Sanders discharged his duty by
placing his memo regarding her statements in his file because
Butterworth had access to the file, and that Plaintiffs “were
aware of the same ‘essential facts’ ” that Sanders learned from
Smith. They further contend that there are no disputes of
material fact regarding this claim, that they did not act in bad
faith, and that it was not clearly established that a police offi-
cer violates Brady by failing to take comprehensive interview
notes.
[9] Placing the notes regarding Smith’s statements in the
police file did not fulfill the Inspectors’ duty to disclose
exculpatory information to the prosecutor. Evidence that a
person, known to the officers, has told the officers that they
have arrested the wrong people, has identified the people
involved, including the shooter, and described the cars and the
7550 TENNISON v. SANDERS
chase in a manner consistent with the evidence, should not
have been buried in a file, but should have been made known
to the prosecutor. Moreover, Smith’s statements contradicted
the account of their key witness, and the notes included a
hand-drawn map of the incident, based on her statements.
The Inspectors cite Raley v. Ylst, 444 F.3d 1085 (9th Cir.),
amended by 470 F.3d 792 (9th Cir. 2006), cert. denied sub
nom. Raley v. Ayres, 128 S. Ct. 59 (2007), for the proposition
that Brady is not violated where the defendant is aware of
exculpatory evidence. Raley is distinguishable from the
instant case. The evidence allegedly withheld in Raley was
evidence contained in the petitioner’s medical records from
his pretrial confinement. We reasoned that the petitioner
“knew that he had made frequent visits to medical personnel
at the jail,” and “knew that he was taking medication that they
prescribed for him.” Raley, 470 F.3d at 804. Thus, in Raley,
we concluded that “[t]hose facts were sufficient to alert
defense counsel to the probability that the jail had created
medical records relating to Petitioner.” Id.A defendant’s awareness of his own medical history, how-
ever, is not analogous to Plaintiffs’ awareness that Smith
might have information helpful to their case. Tennison and
Goff had heard that Smith might have information about the
shooting, but, even at Tennison’s hearing on his new trial
motion, Adachi thought that her last name was White. Thus,
not only did defense counsel not even know Smith’s name,
but he certainly did not know the extent of the information
that Smith had given to Sanders. Smith contradicted Masina’s
account of where the chase started, gave the names of many
of the people involved, including Ricard, and exonerated Ten-
nison and Goff.
In United States v. Howell, 231 F.3d 615 (9th Cir. 2000),
the government argued that its failure to notify defense coun-
sel of errors in police reports before trial was not a Brady vio-
lation because the defendant “knew the truth and could have
TENNISON v. SANDERS 7551
informed his counsel.” Id. at 625. We held that “[t]he avail-
ability of particular statements through the defendant himself
does not negate the government’s duty to disclose.” Id.Defendants “cannot always remember all of the relevant facts
or realize the legal importance of certain occurrences. Conse-
quently, ‘[d]efense counsel is entitled to plan his trial strategy
on the basis of full disclosure by the government . . . .” Id.(citation omitted).
[10] Even if Goff had heard that Smith had information
about the murder, this knowledge is not the same as Smith’s
extensive statements to the police. We agree with the reason-
ing of the Seventh Circuit, which rejected “as untenable a
broad rule that any information possessed by a defense wit-
ness must be considered available to the defense for Brady
purposes.” Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001).
The court reasoned that “it is simply not true that a reasonably
diligent defense counsel will always be able to extract all the
favorable evidence a defense witness possesses. Sometimes,
a defense witness may be uncooperative or reluctant.” Id. This
is precisely the situation that Plaintiffs confronted in the
instant case. Although both Tennison and Goff informally
asked Smith to help them, she was unwilling to become
involved because she was afraid, and because she did not
want to have to testify at the trial. For the foregoing reasons,
we affirm the district court’s denial of summary judgment to
the Inspectors with respect to Smith’s statements.6
6
We also reject the Inspectors’ argument that the failure to take compre-
hensive notes does not constitute a Brady violation. The Brady claim is
not founded on Sanders’ failure to take comprehensive notes. Rather, it is
clear that Smith gave Sanders extensive information regarding the murder,
including information that contradicted the account of their key witness.
The failure to disclose any of this information, including the fact that
Smith had come forward at all, is the Brady violation.
7552 TENNISON v. SANDERS
4. 1990 Ricard Confession
The Inspectors argue that they are entitled to both absolute
and qualified immunity with respect to the 1990 Ricard con-
fession. The Inspectors argue that they are entitled to absolute
immunity because they were not engaged in police-type
investigative work but were acting in an advocacy role.
[11] Preliminarily, we have some doubt that investigative
law enforcement officers would ever be entitled to absolute
immunity. Because, however, of the Supreme Court’s teach-
ing that “in determining [absolute] immunity, we examine
‘the nature of the function performed, not the identity of the
actor who performed it,’ ” Kalina v. Fletcher, 522 U.S. 118,
127 (1997) (quoting Forrester v. White, 484 U.S. 219, 229
(1988)), we nonetheless analyze this contention on the
assumption that the application of absolute immunity is not
barred as a matter of law.
[12] First, the Inspectors are not officers of the court, as are
lawyers acting as prosecutors. Because they were not acting
as prosecutors, or even directly assisting Butterworth in the
presentation of evidence, they were not “performing the tradi-
tional functions of an advocate.” Id. at 131. Because the pur-
pose of absolute immunity is to protect the judicial process,
rather than any actor in the process, “[t]o qualify as advocacy,
an act must be ‘intimately associated with the judicial phase
of the criminal process.’ ” Genzler, 410 F.3d at 637 (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Here, with
respect to the Inspectors’ actions and duties, there is no evi-
dence in the record that the Inspectors ever engaged in con-
duct “ ‘intimately associated with the judicial phase of the
criminal process.’ ” Id. Their claim of absolute immunity
accordingly is rejected. Even if the Ricard confession was
obtained by Lewis and Gittens, rather than Sanders and Hen-
drix, this does not transform the Inspectors’ role into that of
an advocate, rather than that of an investigator.
TENNISON v. SANDERS 7553
[13] The Inspectors also argue that they are entitled to qual-
ified immunity. The threshold question in determining
whether an official is entitled to qualified immunity is
whether the alleged facts, taken in the light most favorable to
the party asserting the injury, show that the conduct violated
a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).7
If no constitutional right would have been violated
were the allegations established, there is no necessity
for further inquiries concerning qualified immunity.
On the other hand, if a violation could be made out
on a favorable view of the parties’ submissions, the
next, sequential step is to ask whether the right was
clearly established. . . . The relevant, dispositive
inquiry in determining whether a right is clearly
established is whether it would be clear to a reason-
able [official] that his conduct was unlawful in the
situation he confronted.
Id. at 201-02; see also Scott v. Harris, 550 U.S. 372, 378
(2007).
[14] There is no question that a constitutional right has
been violated if a prosecutor fails to disclose exculpatory evi-
dence to a defendant during the course of the prosecution. See
Brady, 373 U.S. at 87; see also United States v. Bagley, 473
U.S. 667, 675 (1985) (stating that the Brady rule requires the
prosecutor “to disclose evidence favorable to the accused that,
if suppressed, would deprive the defendant of a fair trial”);
Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006) (“The ani-
mating purpose of Brady is to preserve the fairness of crimi-
nal trials.”), cert. denied, 549 U.S. 1125 (2007).
7
The Supreme Court has “withdraw[n] from the mandate set forth in
Saucier,” although the Court further stated that this “does not prevent the
lower courts from following the Saucier procedure; it simply recognizes
that those courts should have the discretion to decide whether that proce-
dure is worthwhile in particular cases.” Pearson v. Callahan, 129 S. Ct.
808, 821 (2009).
7554 TENNISON v. SANDERS
The Inspectors argue that there was no Brady violation
because the tape eventually was disclosed. They further argue
that the failure to disclose the tape was not prejudicial because
Tennison received the tape in time to use it at the hearing on
his motion for a new trial. The district court rejected this argu-
ment, adopting the reasoning in its August 2003 order grant-
ing Tennison’s habeas petition, which carefully explained
why the delay in disclosing the Ricard confession was preju-
dicial to Tennison’s motion for a new trial. The court pointed
out that the focus of the new trial motion was the “unauthenti-
cated and therefore inadmissible videotape of a hooded,
unidentified person confessing to the shooting,” and that, at
the time of the evidentiary hearing on the motion, the prose-
cution had not disclosed to Tennison “Smith’s statements to
the police and Sanders’ reliance on her information in the
Blue interview.” Tennison v. Henry, No. CV 98-3842 (N.D.
Cal. Aug. 26, 2003) (Order Granting Tennison’s Habeas Pet.,
at 100). The court reasoned that the judge who denied the new
trial motion found that Ricard’s testimony was inconsistent
and uncorroborated, but the judge did not know that Ricard’s
testimony in fact was corroborated. Id. at 100-01. The district
court reasoned that Goff was prejudiced by the delay in the
disclosure of the Ricard confession because he could have
made use of it in his state appeals and habeas petitions.
[15] It is true that a Brady violation “may be cured . . . by
belated disclosure of evidence, so long as the disclosure
occurs ‘at a time when disclosure would be of value to the
accused.’ ” United States v. Gamez-Orduno, 235 F.3d 453,
461 (9th Cir. 2000) (quoting United States v. Span, 970 F.2d
573, 583 (9th Cir. 1992)). However, Tennison did not learn
about the tape until the second to the last day of the hearing
on his motion for a new trial, much too late for the disclosure
to be of value to him. We agree with the district court’s sound
reasoning that Tennison was prejudiced by the delay in the
disclosure of the confession.
Similar to their argument regarding Smith’s statement, the
Inspectors argue that there was no Brady violation in their
TENNISON v. SANDERS 7555
failure to disclose the Ricard confession because Tennison
and Goff knew that Ricard had bragged about his involvement
in the shooting. Goff’s overhearing Ricard bragging in the
neighborhood, however, is not comparable to Ricard’s Miran-
dized confession to police. Further, similar to Smith, Ricard
was hesitant to become involved in the case, for obvious rea-
sons.
The Inspectors argue that, even if a constitutional right was
violated, such a constitutional right was not clearly estab-
lished in 1990. The Inspectors, however, define the right too
narrowly. They argue that they did not have a duty to disclose
a confession that was made after a guilty verdict was ren-
dered, that was “inherently unbelievable,” and that was given
by someone who earlier had denied involvement in the mur-
der. “For a legal principle to be clearly established, it is not
necessary that ‘the very action in question has previously
been held unlawful.’ ” Fogel v. Collins, 531 F.3d 824, 833
(9th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). Rather, “[t]he dispositive inquiry is ‘whether it
would be clear to a reasonable [official] that his conduct was
unlawful in the situation he confronted.’ ” CarePartners, LLC
v. Lashway, 545 F.3d 867, 883 (9th Cir. 2008) (quoting Sau-
cier, 533 U.S. at 202) (second brackets in the original), cert.
denied, __ S. Ct. __, 2009 WL 357566, (U.S. May 18, 2009).
[16] The Inspectors received a Mirandized confession by
someone who had been named by a reliable witness, known
to the officers, who recounted events surrounding the murder
in detail, and whose account contradicted that of the prosecu-
tion’s witnesses. The evidence certainly “undermines confi-
dence in the outcome of the trial.” Benn v. Lambert, 283 F.3d
1040, 1053 (9th Cir. 2002). Thus, it would have been clear to
a reasonable officer that such material should have been dis-
closed to the defense. See Barker v. Fleming, 423 F.3d 1085,
1095 (9th Cir. 2005) (“It is well settled that evidence
impeaching the testimony of a government witness falls
within the Brady rule . . . .”).
7556 TENNISON v. SANDERS
Moreover, we reject the Inspectors’ attempt to dismiss their
Brady duty by downplaying the importance of the evidence.
“[I]f there were questions about the reliability of the exculpa-
tory information, it was the prerogative of the defendant and
his counsel — and not of the prosecution — to exercise judg-
ment in determining whether the defendant should make use
of it,” because “[t]o allow otherwise would be to appoint the
fox as henhouse guard.” DiSimone v. Phillips, 461 F.3d 181,
195 (2d Cir. 2006).
[17] The fact that the Inspectors received the tape of the
confession after the guilty verdict was rendered is immaterial
because the record discloses that they received the tape while
they were still involved in the new trial and post-conviction
proceedings for both Tennison and Goff. See Broam v. Bogan,
320 F.3d 1023, 1030 (9th Cir. 2003) (“A prosecutor’s deci-
sion not to preserve or turn over exculpatory material before
trial, during trial, or after conviction is a violation of due pro-
cess under [Brady].”); Leka v. Portuondo, 257 F.3d 89, 100
(2d Cir. 2001) (stating that “Brady requires disclosure of
information that the prosecution acquires during the trial
itself, or even afterward”); Smith v. Roberts, 115 F.3d 818,
820 (10th Cir. 1997) (agreeing with the State’s concession
that the Brady “duty to disclose is ongoing and extends to all
stages of the judicial process,” where the evidence arose after
trial but during direct appeal). The inconsistencies and contra-
dictory statements in Hendrix’s and Sanders’ 2001 and 2005
declarations and depositions, especially seen in light of the
declarations of Butterworth and Melton, establish that genuine
issues of material fact remain as to this claim.8 The district
8
Lewis stated in his May 2005 deposition that he talked to Hendrix
about the Ricard confession the day after the Ricard interview, in Novem-
ber 1990. In a January 2005 deposition, Hendrix stated that he did not lis-
ten to the confession and did not tell Butterworth about the tape, but, by
contrast, in a June 2005 declaration, he stated that he first learned of the
tape from Sanders, who, in turn, learned about the tape from Butterworth.
In a December 2001 deposition, Sanders stated that he received the tape
TENNISON v. SANDERS 7557
court did not err in denying the Inspectors’ motion for sum-
mary judgment with respect to the Ricard confession.
5. SWP Request
The Inspectors argue that they are entitled to qualified
immunity with respect to the claim regarding the SWP
request. They argue that the evidence is undisputed that no
reward was ever offered or paid to any witness. They further
argue that, even if the SWP request was exculpatory, they dis-
closed the request by placing it in their file, which was avail-
able to Butterworth. Finally, they contend that, even if the
Plaintiffs had been aware of the request, it would not have
affected the outcome of the case.
There is no merit to the Inspectors’ argument that the evi-
dence regarding a reward is undisputed. One need look only
at the differing declarations put forth by the parties’ respec-
tive experts regarding the tape of the April 23, 1990, tele-
phone call from Hendrix to Masina. The district court
correctly concluded that disputed issues of fact precluded the
grant of summary judgment. See Johnson v. Jones, 515 U.S.
304, 313 (1995) (holding that a district court’s “determination
that the summary judgment record . . . raised a genuine issue
of fact” was not subject to interlocutory appeal on qualified
immunity grounds); KRL v. Estate of Moore, 512 F.3d 1184,
1188-89 (9th Cir. 2008) (“Our jurisdiction is limited to ques-
tions of law, and does not extend to qualified immunity
claims involving disputed issues of fact.”).
of the confession a day or two after it was taken, but, in a June 2005 decla-
ration, he stated that he learned about the confession from Butterworth in
May 1991. Butterworth stated that he learned about the confession in May
1991, and he stated that he immediately notified defense counsel of the
tape. However, Melton stated that he was never informed of the confes-
sion. The numerous contradictions indicate the existence of genuine issues
of material fact that preclude summary judgment.
7558 TENNISON v. SANDERS
[18] The Inspectors’ placement of the request in their file
does not satisfy their obligation to disclose evidence to But-
terworth. Masina was their key witness, so any evidence of a
reward paid to her should have been made known to the pros-
ecutor. In fact, in a June 16, 2005, deposition, Officer Morris
Tabak testified that the SFPD is required to turn over all
information relevant to a case to the district attorney’s office,
whose duty it is to then determine whether to disclose the
information to defense counsel.
[19] If Masina had indeed been offered a reward for her
testimony against Tennison and Goff, Plaintiffs should have
been made aware of this fact. We accordingly reject the
Inspectors’ argument that it would have had no effect on the
outcome of the case. The offer of a reward to a key witness
is material impeachment evidence that should have been dis-
closed. See Barker, 423 F.3d at 1095 (citing Bagley, 473 U.S.
at 683, for the proposition that evidence that a witness
received an inducement from the prosecution to testify is evi-
dence favorable to the accused); Benn, 283 F.3d at 1057(“The Brady rule requires prosecutors to disclose any benefits
that are given to a government informant . . . .”); cf. Reynoso
v. Giurbino, 462 F.3d 1099, 1112-13 (9th Cir. 2006) (con-
cluding that trial counsel’s failure to investigate a reward
offered to witnesses rendered her performance deficient and
“cannot under any theory be deemed a sound trial strategy”).
The district court’s denial of the Inspectors’ motion for sum-
mary judgment with respect to the SWP request is affirmed.
CONCLUSION
The district court’s denial of the Inspectors’ summary judg-
9
The Inspectors also argue that, in the § 1983 context, the court must
examine the effect of each piece of evidence rather than the cumulative
effect of all evidence. The district court carefully examined each piece of
evidence and the circumstances surrounding the withholding of each piece
separately. It also distinguished among the state actors in its consideration
of § 1983 liability. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)
(“The inquiry into causation must be individualized and focus on the
duties and responsibilities of each individual defendant whose acts or
omissions are alleged to have caused a constitutional deprivation.”).
TENNISON v. SANDERS 7559
ment motion is affirmed.9 Plaintiffs-appellees shall recover
their costs on appeal from defendants-appellants.
AFFIRMED and REMANDED.