Lisker v. City of L. A.

• Decision Date: 20 March 2015
• Docket Number: No. 13–55374.,13–55374.
• Citation: 780 F.3d 1237
• Parties: Bruce E. LISKER, Plaintiff–Appellee, v. CITY OF LOS ANGELES; Los Angeles Police Department, Defendants, and Andrew Monsue; Howard Landgren, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

780 F.3d 1237

Bruce E. LISKER, Plaintiff–Appellee,

v. CITY OF LOS ANGELES; Los Angeles Police Department, Defendants,andAndrew Monsue; Howard Landgren, Defendants–Appellants.

No. 13–55374.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 2015.

Filed March 20, 2015.

Michael N. Feuer, City Attorney, Amy Jo Field (argued), Deputy City Attorney, Los Angeles, CA, for Defendants–Appellants.

Barrett S. Litt (argued), Kaye, McLane, Bednarski & Litt, LLP, Pasadena, CA; William J. Genego, Law Office of William J. Genego, Santa Monica, CA; Vicki I. Podberesky, Nasatir, Hirsch, Podberesky & Khero, Santa Monica, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, Alvin Howard Matz, District Judge, Presiding. D.C. No. 2:09–cv–09374–AHM–AJW.

Before: DAVID BRYAN SENTELLE,^*MORGAN CHRISTEN, and ANDREW D. HURWITZ, Circuit Judges.

OPINION

HURWITZ, Circuit Judge:

Plaintiff Bruce Lisker was convicted of second-degree murder, served over twenty-six years in custody, and was released in 2009 after a federal judge determined falsified evidence had been introduced at trial and conditionally granted a writ of habeas corpus. The State then dismissed the charges against Lisker.

In this 42 U.S.C. § 1983 action, Lisker seeks damages from two Los Angeles Police Department detectives for fabricating reports, investigative notes, and photographs of the crime scene during the homicide investigation. The detectives also testified during preliminary proceedings and at trial, and the issue before us is whether the doctrine of absolute witness immunity, which shields the detectives from suit for their testimony, also extends to their pre-trial actions. We hold that it does not.

I.

A.

Dorka Lisker was murdered in her home in Sherman Oaks, California sometime during the morning of March 10, 1983. She was stabbed multiple times in the back and suffered a blow to the head. Dorka's seventeen-year-old son Bruce was at the house when paramedics and police officers arrived. He was taken to the Van Nuys station, where he was interviewed by Detective Andrew Monsue.

During the interview, Lisker claimed that he had arrived at his parents' house between 10:30 and 11:00 am. When no one answered the front door, Lisker walked through a muddy area into the backyard, looked through a living room window, and saw a pair of feet on the floor. He then went to a sliding glass door and saw that the feet belonged to his mother, who was lying motionless on the floor. After unsuccessfully searching for a spare key, Lisker attempted to enter the house through the kitchen window, but the screen on the window was nailed shut. He ran back around the house to his car to retrieve pliers, removed the screen, and entered the house. Inside, he found his mother on the living room floor with two knives in her back. Lisker removed the knives and searched for an intruder. He called the paramedics, who arrived with the police at approximately 11:35 am.

B.

Detectives Monsue and Howard Landgren were assigned to investigate the Lisker homicide; they maintained a “Murder Book” containing their notes, investigative reports, and photographs of the crime scene. The Murder Book included a “Follow–Up Investigation Report” dated March 13, 1983 that was provided to the Los Angeles County District Attorney's Office. The report states that on the day of the murder, the detectives “attempted to look into all the windows in the rear of the location, but could not see inside the house” without putting their faces against the glass because of “glare from the sun, coupled with the patio being partially covered with a roll-up canvas cover.”

The “Chronological Record” section of the Murder Book documents that the detectives returned to the crime scene on the morning of March 23, 1983 with a photographer and a model. The model was directed to lie where Lisker's mother had been found. The notes state that the “photographer concurred that susp [ect] could not have seen mother lying on the floor.”

The “Follow–Up Investigation Report” also states that the detectives “observed several footprints in the mud along the east side of the house. The footprints led in the direction of the kitchen window....” It explains that “the footprints in the mud only led toward the kitchen window and there were no footprints leading away from the side of the house.” The report also notes that bloody footprints were found throughout the house, and states that the prints had a “wavelike sole design.”

C.

On March 14, Lisker was charged with the murder of his mother. Monsue testified several weeks later at a juvenile detention hearing that the day of the murder “was a very bright, sunny day, clear skies; very bright, very, very bright,” and that he was unable to see through the back windows because of the glare. Monsue also testified that the footprints along the side of the house only “pointed in a direction coming toward the rear of the residence,” these prints matched the shoes Lisker was wearing, and the bloody prints in the house had a “zigzaggedy pattern” “very similar” to the prints in the mud.

Landgren and Monsue both later testified at a preliminary hearing. Each claimed to have been unable to see the floor of the living room from outside the house on the day of the murder because of glare from the sun and other obstructions. Landgren testified that the footprints he saw inside and outside the house all had a “wavy type pattern.”

Monsue also testified at trial.¹ He again stated that the day of the murder had been bright and sunny, and that glare on the windows made it impossible to see inside the house. Monsue confirmed that shoeprints inside and outside the house “resembled quite closely” the shoes Lisker had been wearing, and that the prints in the mud outside the house faced southwards. He also testified that “[t]he conditions of the sun, the temperature, the environment in terms of the dampness on the ground were very similar” during the March 23, 1983 photographic reenactment to the conditions on the day of the murder. The jury was shown photographs taken on the day of the crime of footprints inside and outside the house and photographs taken during the March 23 reconstruction.

The prosecution argued that Lisker was guilty because only his footprints were found in and around the house, and because Lisker had lied during his interview with Monsue, including a “most condemning” lie about seeing his mother through the windows in the back of the house. The jury found Lisker guilty of second-degree murder, and he was sentenced to sixteen years to life.

D.

Lisker undertook several unsuccessful attempts at post-conviction relief in the California courts. In 2004, he filed a federal habeas corpus petition in the Central District of California, alleging due process violations and ineffective assistance of counsel. See Lisker v. Knowles (“ Lisker II ”), 651 F.Supp.2d 1097, 1107 (C.D.Cal.2009) (adopting the recommendations of the magistrate judge); Lisker v. Knowles (“ Lisker I ”), 463 F.Supp.2d 1008, 1010–11 (C.D.Cal.2006) (same).

At an evidentiary hearing on the federal petition, Lisker presented meteorological charts and expert testimony demonstrating that it had been overcast on the morning of the murder. Lisker II, 651 F.Supp.2d at 1135. The district court found that this evidence “overwhelmingly” showed that it had not been bright and sunny on the morning of the murder, and that the weather during the March 23 photographic reconstruction had been markedly different. Id. at 1136–37. The court also found, based on a 2005 reconstruction of the crime scene, that the view of Dorka Lisker's body from outside the house would have been unobstructed. Id. at 1137–38.

Lisker also presented witnesses who attested that there were two sets of footprints in the mud outside the house-one with a “wave” pattern, the other with a “herringbone” pattern—and that the herringbone pattern did not match Lisker's shoes. Id. at 1125–26. These witnesses also concluded that at least some of the bloody prints in the house matched the herringbone pattern and had not been left by Lisker. Id. The district court found Lisker had conclusively proved that prosecution evidence regarding the shoeprints had been false. Id. at 1138.

On August 6, 2009, the district court found Lisker's due process rights had been violated because falsified evidence was admitted at trial, and conditionally granted the petition unless the State promptly retried Lisker. ²Id. at 1101, 1140–41. On September 21, 2009, the State, although still asserting Lisker's guilt, sought dismissal of the information because the evidence was stale. Lisker was released after spending over twenty-six years in custody.

E.

Lisker filed this action on December 22, 2009, asserting claims under 42 U.S.C. § 1983 against Monsue and Landgren for malicious prosecution, falsification of evidence, and Miranda and Brady violations; he also asserted a claim against the City of Los Angeles and the Los Angeles Police Department, alleging that policies and practices of the Department contributed to the constitutional violations. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (holding that liability can be imposed under 42 U.S.C. § 1983 if a municipal “policy or custom” causes a constitutional injury). After Lisker voluntarily dismissed the malicious prosecution and Miranda claims, the district court granted in part and denied in part a defense motion for summary judgment, dismissing the Brady claim but permitting the falsification-of-evidence and Monell claims to proceed to trial. With respect to the falsification claim, the court also rejected the defendants' claim to absolute witness immunity for the alleged pre-trial fabrications. The defendants filed a timely Notice of Interlocutory Appeal from the denial of absolute immunity on March 4, 2013.

We have jurisdiction...