Clyde Spencer v. Sharon Krause

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLYDE RAYMOND SPENCER, Nos. 14-35689
Plaintiff-Appellant/ 14-35737
Cross-Appellee,
D.C. No.
v. 3:11-cv-05424-BHS
JAMES M. PETERS,
Defendant, OPINION
and
SHARON KRAUSE, Detective
(Clark County); MICHAEL
DAVIDSON, Sergeant (Clark
County),
Defendants-Appellees/
Cross-Appellants.
Appeals from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted March 9, 2017
Seattle, Washington
Filed May 18, 2017
2 SPENCER V. KRAUSE
Before: Susan P. Graber, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Graber
SUMMARY*
Civil Rights
The panel reversed the district court’s judgment as a
matter of law and remanded with instructions to reinstate a
jury verdict in a 42 U.S.C. § 1983 action in which plaintiff
alleged that a Clark County detective deliberately fabricated
evidence against him and continued her criminal investigation
despite knowing that plaintiff was innocent.
Plaintiff alleged that defendant deliberately
mischaracterized witness statements in her investigative
reports. As a result, plaintiff testified that he entered a plea
pursuant to Carolina v. Alford, 500 U.S. 25, 37–38 (1970),
causing him to spend nearly twenty years in prison. A jury
found for plaintiff, but the district court granted judgment as
a matter of law to defendants on the grounds that plaintiff
failed to introduce evidence that defendant knew or should
have known of plaintiff’s innocence.
The panel held that because plaintiff introduced direct
evidence of fabrication, he did not have to prove that
defendant knew or should have known he was innocent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SPENCER V. KRAUSE 3
Addressing defendant’s cross-appeal, the panel held that
ample evidence in the record supported the jury’s finding on
causation and given the jury’s finding on causation and all
other elements, the district court did not err by not separately
instructing the jury on “but for” causation and “proximate”
causation. The panel further held that the district court did
not err by declining to instruct the jury that plaintiff was
required to prove, that setting aside the fabricated evidence,
probable cause was lacking. Finally, the panel held that the
district court did not err by giving a deliberate indifference
instruction and by permitting plaintiff to introduce certain
evidence.
COUNSEL
Kathleen Zellner (argued), Kathleen T. Zellner & Associates
P.C., Downers Grove, Illinois, for Plaintiff-Appellant/Cross-
Appellee.
Jeffrey A.O. Freimund (argued), Freimund Jackson & Tardif
PLLC, Olympia, Washington, for Defendant-Appellee/Cross-
Appellant Michael Davidson.
Guy M. Bogdanovich (argued), Law Lyman Daniel
Kamerrer & Bogdanovich, Olympia, Washington, for
Defendant-Appellee/Cross-Appellant Sharon Krause.
4 SPENCER V. KRAUSE
OPINION
GRABER, Circuit Judge:
The Fourteenth Amendment prohibits the deliberate
fabrication of evidence by a state official. Devereaux v.
Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) (en banc).
Deliberate fabrication can be established by circumstantial
evidence. For example, evidence that officials “continued
their investigation of [a person] despite the fact that they
knew or should have known that he was innocent, id. at 1076,
can raise the inference that the investigator has an “unlawful
motivation” to frame an innocent person. Costanich v. Dep’t
of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010).
Or deliberate fabrication can be shown by direct evidence, for
example, when “an interviewer . . . deliberately
mischaracterizes witness statements in her investigative
report.” Id. In cases involving direct evidence, the
investigator’s knowledge or reason to know of the plaintiff’s
innocence need not be proved. Id.In this 42 U.S.C. § 1983 action, Plaintiff Clyde Raymond
Spencer introduced direct evidence of deliberate fabrication,
specifically, evidence that Clark County Sheriff’s Office
Detective Sharon Krause deliberately mischaracterized
witnesses’ statements in her investigative reports. A jury
found for Plaintiff and against Defendants Krause and
Sergeant Michael Davidson, Krause’s supervisor. But the
district court granted judgment as a matter of law to
Defendants, on the ground that Plaintiff had failed to
introduce evidence that Krause knew or should have known
of Plaintiff’s innocence. Because the district court
misunderstood our precedent, and because Defendants’ other
challenges to the jury’s verdict fail, we reverse and remand
SPENCER V. KRAUSE 5
with instructions to enter judgment for Plaintiff consistent
with the jury’s verdict.
FACTUAL AND PROCEDURAL HISTORY1
Plaintiff and his first wife, DeAnne Spencer, had two
children, Matthew and Kathryn. After a divorce, DeAnne
retained primary custody of the children in Sacramento,
California, and the children visited Plaintiff several times a
year near Vancouver, Washington.
After Plaintiff and DeAnne separated, Plaintiff lived with
Karen Stone for about two years. Matthew and Kathryn
visited Plaintiff for extended periods during that time, and
they got to know Stone. In 1983, Plaintiff married his second
wife, Shirley Spencer. Shirley’s son from a previous
relationship, Matthew Hansen (“Hansen”), therefore became
Plaintiff’s stepson. Plaintiff, Shirley, and Hansen lived
together in the Vancouver area.
In the summer of 1984, Matthew and Kathryn visited
Plaintiff for a six-week stay ending on Sunday, August 26,
1984. Matthew was 8; Kathryn was 5; and Hansen was 4.
On the final weekend of the stay, Kathryn allegedly disclosed
to Shirley that she had been sexually abused, including acts
of vaginal and oral sex, by four people: her father (Plaintiff),
her mother (DeAnne), her father’s previous girlfriend (Stone),
and her eight-year-old brother (Matthew). Alarmed, Plaintiff
1
Because we are reviewing the district court’s judgment as a matter
of law following a verdict in favor of Plaintiff, we must view the evidence
in the light most favorable to Plaintiff, and we must draw all reasonable
inferences in his favor. Oracle Corp v. SAP AG, 765 F.3d 1081, 1086 (9th
Cir. 2014).
6 SPENCER V. KRAUSE
and Shirley reported Kathryn’s statements to Child Protective
Services. Investigations began in California and in
Washington.
Sacramento Detective Pat Flood contacted Plaintiff and
Shirley, who recounted Kathryn’s statements. Detective
Flood then visited DeAnne, who denied any sexual abuse and
any knowledge of the allegations against others. She later
passed a polygraph examination, and Detective Flood
terminated the investigation of DeAnne.
Detective Flood also talked with Matthew and Kathryn,
who had recently returned from Vancouver. Matthew denied
any knowledge of the allegations and denied any sexual
abuse. Kathryn was “extremely shy,” according to Detective
Flood’s contemporaneous report. (Detective Flood died
before the trial in this case and therefore did not testify.) The
report stated that Kathryn “indicated that she did tell Shirley
everything that Shirley advised me of but then when asked to
explain it or asked specific questions about it, she would say
that she couldn’t remember the words so she couldn’t tell
me.” Kathryn gave conflicting responses to questions asking
whether anyone had touched her inappropriately. DeAnne
took Kathryn for a medical exam; the examining doctor found
no physical evidence of sexual abuse.
In Washington, Krause investigated Stone (Plaintiff’s
former girlfriend) and Plaintiff. Stone denied ever abusing
Kathryn, and she agreed to take a polygraph test. Although
Krause made eight attempts to schedule a polygraph test,
Stone never took one. Krause nevertheless ended the
investigation of Stone in December 1984.
SPENCER V. KRAUSE 7
Plaintiff, too, denied abusing Kathryn, and he also agreed
to take a polygraph test. On September 21, 1984,
Plaintiff—accompanied by Shirley—took a polygraph test at
the Sheriff’s Office.2 The results of the polygraph were
inconclusive, so Plaintiff agreed to a second polygraph test a
few days later. The examiner’s report of the results of the
second test suggested deception, but not very strongly:
The subject demonstrated consistently greater
physiologic responses on the three critical
questions . . . as compared to the control
items. While this was sufficient to be
indicative of deception, . . . Spencer’s scores
were not very high so that the examiner does
not feel as certain about the validity of these
findings as in most examinations. Hopefully,
further corroboration of these results will be
obtained.
In mid-October 1984, Krause traveled to Sacramento to
continue the investigation. During that trip, she interviewed
Matthew, DeAnne, two of DeAnne’s sisters, and DeAnne’s
mother, all of whom denied any knowledge of sexual abuse
2
Sergeant Davidson was present, and Shirley met him for the first
time. Plaintiff’s theory at trial was that Davidson was immediately
attracted to Shirley, which may have motivated Davidson to be less than
scrupulous—or outright unethical—when it came to the investigation of
Plaintiff’s actions. For example, it was undisputed that Shirley and
Plaintiff separated during the investigation; that Shirley and Davidson
moved in together very shortly after Plaintiff was sentenced; and that
Shirley and Davidson lived together for about five years. Similarly,
Plaintiff introduced evidence that Davidson improperly visited Plaintiff
while he was in jail pending trial and that, during those visits, Davidson
pressured Plaintiff to sign a quitclaim deed to Shirley’s benefit.
8 SPENCER V. KRAUSE
of Kathryn by anyone. Krause prepared investigative reports
of those interviews, including a report attributing many
quotations to Matthew. During the trial in this case, Matthew
testified that many of those quotations were fabricated—in
particular, statements that incorrectly portrayed Matthew as
comfortable with Krause and incorrectly portrayed Matthew
as generally aware of the allegations of sexual abuse.
Krause also interviewed Kathryn twice. The interviews
took place almost entirely in Krause’s motel room and her
rental car, without anyone else present. Krause’s
contemporaneous investigative reports claim that Kathryn
described, in great detail, sexual abuse by Plaintiff. The
reports contain scores of specific, explicit quotations
attributed to Kathryn. At trial, however, Kathryn testified
that, other than some trivial quotations unrelated to sexual
abuse, all the quotations were fabrications. Kathryn testified
that, in fact, she denied to Krause that anyone had sexually
abused her.
In late November 1984, a prosecutor from King County,
Washington, reviewed the investigative file at the request of
the Clark County Sheriff’s Office. The prosecutor concluded
that the case was “legally insufficient” for several reasons.
First, Kathryn appeared to be “extremely reluctant to talk
about facts,” and Kathryn’s failure to disclose the abuse to
her counselor did “not bode well for testifying in court.”
Second, the fact that Kathryn identified “multiple suspects is
very disturbing,” because it suggested a lack of credibility.
Third, there were inconsistencies “over all issues”: the
number of times abuse occurred, what Plaintiff was wearing,
and what Kathryn was wearing. Fourth, certain details
commonly reported by victims of sexual abuse were lacking
from Kathryn’s account.
SPENCER V. KRAUSE 9
In early December 1984, a Clark County prosecutor, Jim
Peters, conducted a videotaped interview of Kathryn.
According to Peters, the purpose was to find out “whether she
could tell me the story of what happened and whether I
thought she might be competent”; it was not an investigative
interview. For that reason, Peters was not concerned about
using techniques—such as coaching or suggestive
questioning—that would be improper if used during an
investigation.
On the videotape, which was played for the jury, Kathryn
appeared very uncomfortable during the entire 45-minute
initial interview. Very early on, she asked Krause to leave
the room, even though Krause’s investigative reports
portrayed Kathryn as extremely comfortable with her.
Kathryn was unable to describe Plaintiff’s alleged
conduct—until after an hour-long break. After the break, in
a 10-minute follow-up interview, Kathryn described various
acts of sexual abuse by Plaintiff. Kathryn testified at trial in
this case that, during the break, she had been coached about
what to say and that she went along with describing acts of
sexual abuse just so that the distressing interview would end.
Throughout the interview, Kathryn appeared eager to
leave. Peters began the post-break interview by stating,
“while the camera was off, [Kathryn] showed me something
with the dolls, didn’t you?” After some coaxing, Kathryn
demonstrated, using two anatomically correct dolls, two acts
of sexual abuse. Peters then asked, “anything else?” to which
Kathryn responded, “I forgot the last thing.” Peters later told
his supervisor, in essence, that “I wouldn’t charge [the case]
and I don’t want my name on the charging document.”
10 SPENCER V. KRAUSE
On January 2, 1985, the prosecutor’s office nevertheless
charged Plaintiff with two counts of sexually abusing
Kathryn. Plaintiff pleaded not guilty and was released.
By February 1985, Plaintiff and Shirley had separated,
and Plaintiff was living at a motel. On February 16, Shirley
dropped off four-year-old Hansen (Plaintiff’s stepson) to
spend the night with Plaintiff at the motel. Plaintiff’s lawyer
described this incident to the jury as a “set up.” Counsel
argued that Shirley would not have dropped off her own four-
year-old son had she believed that Plaintiff was a child rapist
and that the incident gave Krause an opportunity to cure the
defects in the case that the earlier prosecutors had noted. For
example, Krause reported that Hansen described certain
details that one of the prosecutors had identified as
conspicuously missing from Kathryn’s account of sexual
abuse.
After the night at the motel, Krause interviewed Hansen.
According to the investigative report, Hansen told Krause that
Plaintiff sexually abused him on that night, including having
anal sex with him. Officers arrested Plaintiff. In a follow-up
interview, Hansen recalled molestation by Plaintiff during the
summer of 1984 of all three children—him, Matthew, and
Kathryn. (Unlike Matthew and Kathryn, Hansen testified at
trial that Plaintiff did, in fact, abuse him.)
Krause then re-interviewed Kathryn and Matthew
separately and prepared further investigative reports.
According to those reports, both children described, in detail,
sexual abuse by Plaintiff of all three children. As with the
earlier reports, both Kathryn and Matthew testified at trial
that many of the quotations attributed to them were
fabricated.
SPENCER V. KRAUSE 11
On May 3, 1985, the prosecutor charged Plaintiff with
statutory rape of all three children. On May 16, 1985,
Plaintiff pleaded guilty pursuant to North Carolina v. Alford,
400 U.S. 25, 37–38 (1970). An “Alford plea” allows a
defendant to maintain his innocence but to plead guilty in the
face of apparent evidence of his guilt. Plaintiff’s theory at
trial was that he entered an Alford plea because of the
extensive fabricated evidence. Plaintiff has always
maintained his innocence.
The state court sentenced Plaintiff to two life terms plus
171 months. In 2004, the Governor of Washington
commuted his sentence to community supervision. In 2009,
the state courts allowed Plaintiff to withdraw his Alford plea.
In 2010, the prosecutor dismissed all charges against
Plaintiff.
In 2011, Plaintiff brought this civil action, which was
tried to a jury on three claims: (1) a violation of the
Fourteenth Amendment by Defendant Krause for deliberate
fabrication of evidence; (2) respondeat superior liability for
Defendant Davidson; and (3) conspiracy by Defendants
Krause and Davidson to fabricate evidence deliberately. The
district court instructed the jury that, in order to find for
Plaintiff on the substantive deliberate-fabrication claim, the
jury must find that:
1. Defendant Krause deliberately
fabricated evidence against plaintiff;
2. Defendant Krause acted with deliberate
indifference toward the constitutional right of
plaintiff;
12 SPENCER V. KRAUSE
3. Defendant Krause continued her
investigation of plaintiff despite the fact that
she knew or should have known that plaintiff
was innocent of the charges stemming from
that evidence;
4. The criminal charges filed against
plaintiff were based on that evidence;
5. Plaintiff suffered injury as a result of
that evidence; and
6. That evidence was so closely related to
the deprivation of plaintiff’s right as to be the
moving force that caused the ultimate injury.
The jury returned a verdict for Plaintiff on the two
substantive claims and a verdict for Defendants on the
conspiracy claim. The jury awarded $9 million in damages.
After trial, the district court granted judgment as a matter of
law to Defendants on the ground that Plaintiff had introduced
insufficient evidence to prove that Krause knew or should
have known that Plaintiff was innocent.
Plaintiff timely appeals. Defendants timely cross-appeal.3
3
The cross-appeal advances only alternative arguments in support of
the judgment. Accordingly, a cross-appeal was unnecessary. See, e.g., El
Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) (“Absent a
cross-appeal, an appellee may urge in support of a decree any matter
appearing in the record . . . .” (internal quotation marks omitted)); Rivero
v. City of San Francisco, 316 F.3d 857, 862 (9th Cir. 2002) (“Prevailing
parties need not have filed cross-appeals in order to correct errors in the
district court’s reasoning nor to preserve alternative grounds for affirming
the judgment.” (internal quotation marks and alterations omitted)).
SPENCER V. KRAUSE 13
STANDARDS OF REVIEW
We review de novo a judgment as a matter of law.
Velazquez v. City of Long Beach, 793 F.3d 1010, 1017 (9th
Cir. 2015).
We review a district court’s formulation
of civil jury instructions for an abuse of
discretion, but we consider de novo whether
the challenged instruction correctly states the
law. “Jury instructions must be supported by
the evidence, fairly and adequately cover the
issues presented, correctly state the law, and
not be misleading.” Peralta v. Dillard, 744
F.3d 1076, 1082 (9th Cir. 2014) (en banc).
But if any error relating to the jury
instructions was harmless, we do not reverse.
“In evaluating jury instructions, prejudicial
error results when, looking to the instructions
as a whole, the substance of the applicable
law was not fairly and correctly covered.
Harmless error review for a civil jury trial
shifts the burden to the defendant to
Nonetheless, “[a] protective cross-appeal is permissible once an initial
appeal is filed.” Warfield v. Alaniz, 569 F.3d 1015, 1019 n.3 (9th Cir.
2009). We treat Defendants’ arguments on cross-appeal as alternative
arguments to affirm the judgment. See Stormans, Inc. v. Wiesman,
794 F.3d 1064, 1085 (9th Cir. 2015) (“Because the cross-appeal
requirement is a rule of practice and not a jurisdictional bar, an appellate
court has broad power to make such dispositions as justice requires.”
(internal quotation marks omitted)), cert. denied, 136 S. Ct. 2433 (2016);
see also Shepard v. Quillen, 840 F.3d 686, 693 (9th Cir. 2016) (“We can
affirm on any ground supported by the record.” (internal quotation marks
omitted)).
14 SPENCER V. KRAUSE
demonstrate that it is more probable than not
that the jury would have reached the same
verdict had it been properly instructed.”
Gantt v. City of L.A., 717 F.3d 702, 707 (9th
Cir. 2013).
Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014)
(alterations omitted).
We review for abuse of discretion the district court’s
admission of evidence. McEuin v. Crown Equip. Corp.,
328 F.3d 1028, 1032 (9th Cir. 2003).
DISCUSSION
To prevail on a § 1983 claim of deliberate fabrication, a
plaintiff must prove that (1) the defendant official
deliberately fabricated evidence and (2) the deliberate
fabrication caused the plaintiff’s deprivation of liberty.
Costanich, 627 F.3d at 1111. To establish the second element
of causation, the plaintiff must show that (a) the act was the
cause in fact of the deprivation of liberty, meaning that the
injury would not have occurred in the absence of the conduct;
and (b) the act was the “proximate cause” or “legal cause” of
the injury, meaning that the injury is of a type that a
reasonable person would see as a likely result of the conduct
in question. Whitlock v. Brueggemann, 682 F.3d 567, 582–83
(7th Cir. 2012).
A. Deliberate Fabrication
Plaintiff argues that the district court incorrectly granted
judgment as a matter of law to Defendants. “[W]hen
reviewing a motion for judgment as a matter of law, we apply
SPENCER V. KRAUSE 15
the law as it should be, rather than the law as it was read to
the jury.” Pincay v. Andrews, 238 F.3d 1106, 1109 n.4 (9th
Cir. 2001); accord Fisher v. City of San Jose, 558 F.3d 1069,
1074 (9th Cir. 2009) (en banc); cf. Musacchio v. United
States, 136 S. Ct. 709, 715 (2016) (“All that a [criminal]
defendant is entitled to on a sufficiency challenge is for the
court to make a ‘legal’ determination whether the evidence
was strong enough to reach a jury at all.”).
As we explained in Costanich, 627 F.3d at 1111, “an
interviewer who deliberately mischaracterizes witness
statements in her investigative report . . . commits a
constitutional violation.” Here, Plaintiff introduced sufficient
evidence for a reasonable juror to find that this standard was
satisfied. Krause’s investigative reports contained scores of
quotations attributed to Kathryn and Matthew, both of whom
unequivocally testified at trial that they had never made those
statements. For example, Krause reported that, in October
1984, Kathryn described detailed acts of sexual abuse by
Plaintiff, and Krause’s report contained many specific
quotations attributed to Kathryn. Kathryn testified at trial
that, not only did she not make those statements to Krause,
but she affirmatively told Krause that no abuse had occurred.
The jury was permitted to credit Kathryn’s testimony rather
than Krause’s contrary testimony. See, e.g., First Nat’l
Mortg. Co. v. Fed. Realty Inv. Tr., 631 F.3d 1058, 1069 (9th
Cir. 2011) (“[I]t was the jury’s province to make any
credibility determinations and to resolve any factual
disputes.”).
To be sure, not all inaccuracies in an investigative report
give rise to a constitutional claim. See, e.g., Black v.
Montgomery County, 835 F.3d 358, 372 (3d Cir. 2016)
(noting the limitations on a fabricated-evidence claim), cert.
16 SPENCER V. KRAUSE
denied, 2017 WL 1540522 (U.S. May 1, 2017) (No. 16-846);
Whitlock, 682 F.3d at 586 (same). Mere “careless[ness]” is
insufficient, Gausvik v. Perez, 345 F.3d 813, 817 (9th Cir.
2003), as are mistakes of “tone,” Costanich, 627 F.3d at
1113. Errors concerning trivial matters cannot establish
causation, a necessary element of any § 1983 claim. Black,
835 F.3d at 372. And fabricated evidence does not give rise
to a claim if the plaintiff cannot “show the fabrication
actually injured her in some way.” Whitlock, 682 F.3d at 585.
But, if Kathryn’s testimony is credited, the misquotations
here cannot be explained as carelessness or as a mistake of
tone; nor are they trivial or without consequence. Kathryn
told Krause that no abuse had occurred. Krause falsely
reported, in quotations attributed to Kathryn, that Kathryn had
made detailed, explicit statements of abuse. Plaintiff testified
that, due to the fabricated evidence, he entered an Alford plea,
causing him to spend nearly two decades in prison.
Because Plaintiff introduced direct evidence of deliberate
fabrication, he did not have to prove that Krause knew or
should have known that he was innocent. The district court’s
contrary holding misapprehends our precedent.
In Devereaux, 263 F.3d at 1073–76, the plaintiff alleged
that police officers used extremely aggressive interview
techniques when questioning children, thus generating false
evidence against him. In that context, we “assumed” that a
plaintiff must
point to evidence that supports at least one
of the following two propositions:
(1) Defendants continued their investigation
of Devereaux despite the fact that they knew
or should have known that he was innocent; or
SPENCER V. KRAUSE 17
(2) Defendants used investigative techniques
that were so coercive and abusive that they
knew or should have known that those
techniques would yield false information.
Id. at 1076. We later applied that standard in cases involving
allegedly aggressive interviewing tactics. E.g., Gantt,
717 F.3d at 707–08.
Those two prongs make sense in the absence of direct
evidence of deliberate fabrication of evidence. If an
investigator knows that a person is innocent, yet continues the
investigation nevertheless, then the evidence suggests
circumstantially that the investigator has an unlawful
motivation to frame an innocent person, which supports a
claim that the investigator deliberately fabricated evidence.
Similarly, if an investigator knowingly uses coercive and
abusive techniques that likely will generate false information,
then that circumstantial evidence suggests that the
investigator is deliberately fabricating evidence.
But, as we made clear in Costanich, 627 F.3d at 1111–14,
those methods of proving deliberate fabrication are
unnecessary in a case involving direct evidence of deliberate
fabrication. In Costanich, there was direct evidence that the
investigator had fabricated evidence—for example, direct
misquotation of witnesses in investigative reports. Id. at
1111. The district court had granted summary judgment to
the defendants on the ground that the record contained
insufficient evidence of either of the two Devereaux prongs.
Id. We reversed, with the following explanation:
The district court read the Devereaux
standard too narrowly. Costanich alleges, and
18 SPENCER V. KRAUSE
has produced evidence supporting her claim,
that Duron deliberately misquoted and
misrepresented witness statements, i.e.,
deliberately falsified statements in her
investigative report and declaration. The
Devereaux test envisions an investigator
whose unlawful motivation is illustrated by
her state of mind regarding the alleged
perpetrator’s innocence, or one who
surreptitiously fabricates evidence by using
coercive investigative methods. These are
circumstantial methods of proving deliberate
falsification. Here, Costanich argues that the
record directly reflects Duron’s false
statements. If, under Devereaux, an
interviewer who uses coercive interviewing
techniques that are known to yield false
evidence commits a constitutional violation,
then an interviewer who deliberately
mischaracterizes witness statements in her
investigative report also commits a
constitutional violation. Similarly, an
investigator who purposefully reports that she
has interviewed witnesses, when she has
actually only attempted to make contact with
them, deliberately fabricates evidence.
Id. Elsewhere in our opinion, we reiterated the point:
It is also true that, in the course of her
investigation, Duron could have believed that
Costanich was guilty of [a state-law
crime]. . . . If the only evidence of deliberate
fabrication were inferences from Duron’s
SPENCER V. KRAUSE 19
investigative methods, under Devereaux,
Duron’s subjective and personal belief of
Costanich’s guilt might have explained why
Duron continued the investigation. 263 F.3d
at 1076. That belief, however, does not
permit or excuse deliberate falsification of
evidence.
Id. at 1113.
In sum, the Constitution prohibits the deliberate
fabrication of evidence whether or not the officer knows that
the person is innocent. See Devereaux, 263 F.3d at 1074–75
(“[T]here is a clearly established constitutional due process
right not to be subjected to criminal charges on the basis of
false evidence that was deliberately fabricated by the
government.”); Halsey v. Pfeiffer, 750 F.3d 273, 292–93 (3d
Cir. 2014) (“[N]o sensible concept of ordered liberty is
consistent with law enforcement cooking up its own
evidence.”); see also Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123, 130 (2d Cir. 1997) (“No arrest, no matter how
lawful or objectively reasonable, gives an arresting officer or
his fellow officers license to deliberately manufacture false
evidence against an arrestee.”). The district court erred by
granting judgment as a matter of law to Defendants because,
in this case involving direct evidence of fabrication, Plaintiff
was not required to show that Krause actually or
constructively knew that he was innocent.
B. Causation
Defendants challenge the jury instructions on causation,
which required Plaintiff to prove that:
20 SPENCER V. KRAUSE
5. Plaintiff suffered injury as a result of
that [fabricated] evidence; and
6. That evidence was so closely related to
the deprivation of plaintiff’s right as to be the
moving force that caused the ultimate injury.
Defendants contend that the district court erred by not
separately instructing the jury on “but for” causation and
“proximate” causation, using those terms verbatim.
“In a § 1983 action, the plaintiff must . . . demonstrate
that the defendant’s conduct was the actionable cause of the
claimed injury. To meet this causation requirement, the
plaintiff must establish both causation-in-fact and proximate
causation.” Harper v. City of Los Angeles, 533 F.3d 1010,
1026 (9th Cir. 2008) (citation omitted). The “moving force”
formulation given in this case is most commonly used in
cases involving municipal liability: “official policy must be
‘the moving force of the constitutional violation’ in order to
establish the liability of a government body under § 1983.”
Polk County v. Dodson, 454 U.S. 312, 326 (1981) (quoting
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).
But we need not decide whether the district court erred or
abused its discretion in using the “moving force” formulation
in this individual liability case, because any error was
harmless.
The jury affirmatively found both that “Plaintiff suffered
injury as a result of” the fabricated evidence and that the
fabricated evidence was “the moving force that caused the
ultimate injury.” (Emphases added.) See Gravelet-Blondin
v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013) (holding that
“moving force” in the Monell context includes “both
SPENCER V. KRAUSE 21
causation-in-fact and proximate causation”). Nor were
Defendants prevented from arguing their theory of the case.
Defendants argued to the jury that the fabricated evidence
was not the moving force because of intervening
events—such as non-fabricated evidence and Plaintiff’s
Alford plea. But the jury necessarily rejected that argument.
Ample evidence in the record supports the jury’s findings
on causation. If Kathryn’s testimony is credited, very little
evidence of Plaintiff’s guilt actually existed. Indeed, even
with the fabricated evidence in the file, two prosecutors
independently recommended that charges not be brought.
Moreover, roughly the same amount of evidence implicated
Stone as implicated Plaintiff—yet prosecutors declined to
charge Stone, strongly suggesting that, had Krause not
fabricated any evidence, prosecutors likewise would have
declined to charge Plaintiff.
Given the jury’s findings on causation and all the other
elements, we see no likelihood that the jury would have
concluded that but-for causation or proximate causation was
lacking. We therefore easily conclude that “it is more
probable than not that the jury would have reached the same
verdict,” Gantt, 717 F.3d at 707, had the district court given
Defendants’ proffered instructions on causation.
C. Probable Cause
Defendants next argue that the district court erred by
declining to instruct the jury that Plaintiff was required to
prove that, setting aside the fabricated evidence, probable
cause was lacking. We disagree.
22 SPENCER V. KRAUSE
The only two sister circuits to have addressed this issue
directly have held that the plaintiff need not prove a lack of
probable cause for the prosecution. Halsey, 750 F.3d at
292–93; Ricciuti, 124 F.3d at 129–31. Although we have not
addressed the question squarely, our cases strongly suggest
that a lack of probable cause to prosecute a defendant is not
an element of a deliberate-fabrication claim. See Gausvik,
345 F.3d at 817–18 (analyzing whether the allegations met
the standard for deliberate fabrication, even though probable
cause existed); see also Costanich, 627 F.3d at 1113 (holding
that the investigator’s belief that a crime had been committed
“does not permit or excuse deliberate fabrication of
evidence”); Crowe v. County of San Diego, 608 F.3d 406,
432–37 (9th Cir. 2010) (upholding a Fourteenth Amendment
coercive-interview claim while rejecting Fourth Amendment
claims because of the existence of probable cause).
Defendants assert that, when probable cause exists, an
investigator’s deliberate fabrication of evidence does not
shock the conscience. See Gantt, 717 F.3d at 707 (“[D]ue
process violations under the Fourteenth Amendment occur
only when official conduct shocks the conscience . . . .”
(citation and internal quotation marks omitted)). We join our
sister circuits in rejecting that assertion as inconsistent with
the Fourteenth Amendment’s guarantee of due process:
“Even if we agreed [that probable cause existed], we believe
that no sensible concept of ordered liberty is consistent with
law enforcement cooking up its own evidence.” Halsey,
750 F.3d at 292–93; see id. at 293 (“A rule of law foreclosing
civil recovery against police officers who fabricate evidence,
so long as they have other proof justifying the institution of
the criminal proceedings against a defendant, would not
follow the statute’s [§ 1983] command or serve its purpose.”);
Ricciuti, 124 F.3d at 130 (“To hold that police officers,
SPENCER V. KRAUSE 23
having lawfully arrested a suspect, are then free to fabricate
false confessions at will, would make a mockery of the notion
that Americans enjoy the protection of due process of the law
and fundamental justice.”); see also Black, 835 F.3d at 371
(“[D]eliberate framing by officials offends the most strongly
held values of our nation.” (internal quotation marks
omitted)).
We have held that, to establish a Fourth Amendment
violation where officers allegedly have included false
information in a warrant affidavit, “the plaintiff must
establish that the remaining information in the affidavit is
insufficient to establish probable cause.” Hervey v. Estes,
65 F.3d 784, 789 (9th Cir. 1995). But the reasoning of our
Fourth Amendment cases does not apply here. Probable
cause definitively resolves a Fourth Amendment claim for
including false information in a warrant affidavit, because the
Fourth Amendment mandates that “no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation.”
U.S. Const. amend. IV. If bona fide information in the
warrant affidavit establishes probable cause, then the plaintiff
necessarily cannot state a Fourth Amendment violation
because the warrant was, in fact, issued upon probable cause,
supported by oath or affirmation. The warrant would have
issued regardless of the false information; the plaintiff cannot
“establish that, but for the dishonesty, the challenged action
would not have occurred.” Liston v. County of Riverside,
120 F.3d 965, 973 (9th Cir. 1997). In other words, in the
Fourth Amendment warrant-issuance context, the probable-
cause inquiry collapses into the causation inquiry.
By contrast, the existence of probable cause does not
resolve Plaintiff’s Fourteenth Amendment claim for
deliberate fabrication of evidence. Plaintiff’s theory of the
24 SPENCER V. KRAUSE
case—accepted by the jury—was that the fabricated evidence
caused him to enter an Alford plea, which led to his serving
nearly two decades in prison. Whether probable cause
existed is entirely beside the point of that inquiry. The only
causation question for the jury was whether the fabricated
evidence did, in fact, cause his nearly two decades of
imprisonment. See Part B, above. We therefore need not
decide whether an instruction on probable cause would be
proper in a case involving alleged damages stemming only
from a prosecutor’s charging decision.4
For those reasons, the district court properly declined to
instruct the jury on the issue of probable cause.
D. Deliberate Indifference
The district court instructed the jury that, to find for
Plaintiff, the jury must find that:
1. Defendant Krause deliberately
fabricated evidence against plaintiff;
2. Defendant Krause acted with deliberate
indifference toward the constitutional right of
plaintiff; [and four other elements.]
Deliberate indifference is the conscious or
reckless disregard of the consequences of
one’s acts or omissions. It entails something
4
Our sister circuits have split on the closely related issue of whether
a “deliberate fabrication of evidence” claim necessarily fails if the plaintiff
was acquitted. See Black, 835 F.3d at 371 & n.12 (collecting cases). This
case does not raise that issue because Plaintiff was not acquitted.
SPENCER V. KRAUSE 25
more than negligence but is satisfied by
something less than acts or omissions for the
very purpose of causing harm or with
knowledge that harm will result.
Defendants argue that the district court erred by giving the
instruction on deliberate indifference and the accompanying
definition. Necessarily, requiring that Plaintiff prove an
additional element—an added burden—cannot, by itself, have
prejudiced Defendants.
Defendants further argue that, because the first and
second elements used similar words—“deliberately
fabricated” and “deliberate indifference”—the jury may have
misunderstood the first element as encompassing a deliberate
indifference standard. We find no reasonable likelihood of
confusion here. “A jury is presumed to follow its
instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000).
The first and second elements are plainly separate; the phrase
“deliberately fabricated” is not a technical term likely to
confuse the jury; and the definition in the paragraph at the
end of the instruction clearly defines “deliberate
indifference,” not “deliberately fabricated.” Nor does the
jury’s question regarding the instruction establish a likelihood
of confusion. Rather, the jury’s question concerned the
relationship between deliberate indifference and negligence,
not between deliberate indifference and deliberate fabrication.
E. Admission of Evidence
Finally, we hold that the district court did not abuse its
discretion by permitting Plaintiff to introduce certain
evidence. The district court identified the correct legal
standard, Federal Rule of Evidence 403, and its application of
26 SPENCER V. KRAUSE
that standard was not illogical, implausible, or without
support in inferences that may be drawn from the facts in the
record. United States v. Torres, 794 F.3d 1053, 1059 (9th
Cir. 2015), cert. denied, 136 S. Ct. 2005 (2016). The
evidence was relevant on many grounds, including to show
credibility and state of mind, and the court gave a proper
limiting instruction that is unchallenged on appeal. The fact
that the evidence was also relevant to claims that were
dismissed before or during trial does not affect the relevance
of the evidence to the deliberate-fabrication claim that was
presented to the jury. Evidence is often relevant to more than
one claim.
REVERSED and REMANDED with instructions to
reinstate the verdict.