Tennison v. City and County of San Francisco

• Decision Date: 23 June 2009
• Docket Number: No. 06-15426.,06-15426.
• Citation: 570 F.3d 1078
• Parties: John TENNISON; Antoine Goff, Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO; San Francisco Police Department, Defendants, George Butterworth, Defendant, and Prentice Earl Sanders; Napoleon Hendrix, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

570 F.3d 1078

John TENNISON; Antoine Goff, Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO; San Francisco Police Department, Defendants, George Butterworth, Defendant, and Prentice Earl Sanders; Napoleon Hendrix, Defendants-Appellants.

No. 06-15426.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2007.

Submission Vacated May 21, 2008.

Resubmitted September 22, 2008.

Filed December 8, 2008.

Amended June 23, 2009.

Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, CA, for plaintiff-appellee John Tennison.

John H. Scott, The Scott Law Firm, San Francisco, CA, for plaintiff-appellee Antoine Goff.

James A. Quadra, Moscone, Emblidge & Quadra, LLP, San Francisco, CA, for defendants-appellants Prentice Earl Sanders and Napoleon Hendrix.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. Nos. CV 04-0574 CW, CV 04-1643 CW.

Before: MICHAEL DALY HAWKINS, A. WALLACE TASHIMA, and SIDNEY R. THOMAS, Circuit Judges.

ORDER

The Opinion filed December 8, 2008, and reported at 548 F.3d 1293, is replaced by the Amended Opinion filed concurrently with this order. With the filing of the Amended Opinion, 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 Department ("SFPD") homicide inspectors Prentice Earl Sanders and Napoleon Hendrix (together "Inspectors") withheld exculpatory evidence and manufactured and presented perjured 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 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 therefore 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 "Lovers' 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, 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 Program ("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. Butterworth 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 interview with Masina. Masina told them that she and her friend Pauline Maluina were in a car at Lovers' Lane, at the intersection 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 comment that Pat was going to pay the price now. The boys got 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 Shannon. The group of boys left, and Masina went to help Shannon, 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 identified 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 Shannon, 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 neighborhood. 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, including 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 murder. 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 Bayshore, 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 recognized any of them. Undated notes, with the name "Chanté" at the top, include Smith's beeper number, names, and a handdrawn 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 Tennison should be tried as an adult rather than a juvenile. Pauline testified at that hearing.

The day before Tennison's preliminary hearing, Butterworth confronted Pauline with the transcript of the 707 hearing 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 Butterworth and Hendrix that she actually had not witnessed the murder, and that she was only covering for Masina.

Butterworth and...