McSherry v. City of Long Beach

On March 30, 2009, in McSherry v. City of Long Beach, 560 F.3d 1125 (9th Cir. 2009) (here) (media coverage here), a unanimous three-judge panel held that a lawsuit alleging a fabrication of evidence claim against the Long Beach Police Department could go forward.  The original McSherry opinion was 12 pages.

Yesterday, in a 38-page opinion, the same panel withdrew the earlier - published opinion - issuing a superseding opinion.  In today's opinion, the panel dismissed the wrongfully convicted man's lawsuit.

The 38-page opinion is analytically unsound, and has disastrous policy implications.  The facts drive this case.  The facts involve an eyewitness identification; a car; and a grandmother's living room.

The Facts.  In 1988, a six-year-old girl and her brother were together at a playground.  A man got out of his car, kidnapped the six-year old girl, brought her to a home, and raped her.  Several hours later, the rapist released the victim.

The victim's four-year-old brother witnessed the abduction.  Both the victim and her brother gave police a description of the rapist.  The description did not match Leonard McSherry.

Several weeks later, Officer Norman Terry allegedly showed the two children a photographic line-up.  McSherry's picture was included.  According to Officer Terry, the children identified McSherry as the rapist.

Officer Terry also claimed that he showed the victim and her brother a photography array of cars.  According to, the children identified a yellow Mazda station wagon that belonged to McSherry's father.

Based on the eyewitness identification of McSherry and McSherry's father's car, Officer Terry applied for an arrest warrant.  Officer Terry then arrested McSherry.

At this point, all of us would agree that - assuming Officer Terry told the truth - there was probable cause to arrest McSherry.  No especially debatable, right?  The problem is that there is smoking-gun evidence providing that Officer Terry fabricated evidence.  Let's look at it.

After McSherry was in custody, McSherry gave a detailed description of his grandmother's living room.  Officer Terry claimed that, during a witness interview with the six-year-old victim, the victim described McSherry's grandmother's living room to a T.  There was one problem: The victim was never in the grandmother's living room.  We know this because: a) the victim said so; and b) McSherry never brought the victim to his grandmother's living room - since someone other than McSherry raped the child.

It wasn't until 16-years later that we learned that the victim had never been in McSherry's grandmother's room.  It wasn't until DNA evidence linked a notorious child rapist to the victim that we learned the truth.

Given that Officer Terry lied the living room: Couldn't a reasonable jury conclude that Officer Terry also lied when he claimed that the children identified McSherry as the rapist?  Remember, too, that the children's earlier description of the rapist did not match McSherry.

The Panel's Opinion.  The panel held that Officer Terry should escape criminal liability essentially because Terry did a good job of framing McSherry.  Do you consider that hyperbole?  Please read on.

The panel seems to suggest that a probable cause hearing based on fabricated evidence exonerates police officers who fabricate evidence against an innocent citizen.  Slip op. at 14588 ("The probable cause to arrest McSherry as well as to hold him to answer for trial was confirmed in a preliminary hearing held before a neutral magistrate where the victim again identified McSherry as her attacker, this time under oath.")  A preliminary hearing presupposes that the witnesses are testifying truthfully; and that they haven't been coerced or manipulated into giving false testimony.  Given that Officer Terry definitely fabricated evidence, isn't the preliminary hearing tainted?

Indeed, consider the opinion's policy implications.  A police officer who frames someone will escape liability if he does a really good job of framing the person.  If the officer's lies are believable, then of course a court will find probable cause that the defendant committed a crime.  According to the Ninth Circuit panel, a police officer who commits fraud upon the court cannot be sued - if, again, his fraud is done well enough.

The panel gave police officers another escape hatch.  The panel held that a police officer who tricks a prosecutor into filing charges (using fabricated evidence) can escape liability.  Wrote the panel:
In Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008), a case decided after briefs were filed and we heard oral argument in this matter, we held that "in any constitutional tort case . . . in which a prosecutor has instigated a prosecution, it is necessary, if not sufficient, that a plaintiff seeking to sue non-prosecutorial officials alleged to be responsible post complaint for the arrest or prosecution show the absence of probable cause."
Slip op. at 14589.  Think about the policy implications.  A police officer who frames an innocent citizen need only trick the prosecutor, too, to completely avoid civil liability.  Isn't that astounding?
The panel's attempt to sidestep the negative policy implications fail.  The panel wrote:
McSherry argues specifically that Lamb's independent investigation was tainted by Defendant's fabricated evidence and unconstitutionally suggestive interview procedures and techniques. This, of course, could be a valid claim — if McSherry had facts to back it up.
Slip op. at 14601.  McSherry does have the evidence to back it up.  Namely, Officer Terry lied about the grandmother's living room.  Moreover, the children's initial description of the rapist did not match McTerry.  A reasonable jury could infer that Officer Terry fabricated evidence in the arrest warrant, and that he "nudged" the children into identifying McSherry.
The panel, rather than addressing that argument, returns again to the preliminary hearing and decision-to-prosecute argument:
But McSherry’s presentation fell short and failed toraise a genuine issue of material fact as to whether the alleged fabrication or any misconduct by Defendants caused his arrest, prosecution, and conviction. As described above, there was probable cause to justify McSherry’s arrest and prosecution.
Slip op. at 14601.  Again, there was probable cause only because Officer Terry convinced a police and prosecutor that there was probable cause.  Since Officer Terry used fabricated evidence, both the preliminary hearing and prosecutor's decision were tainted.

Unfortunately, the panel gave Officer Terry a pass - even though the evidence seems pretty clear that Officer Terry fabricated evidence.  What's worse is that the panel's opinion seems to give police officers who frame an innocent citizen two escape hatches: Convince a prosecutor to file charges; or lie well enough at the preliminary hearing.



8:54 PM

Santa Barbara County, California prosecutors will sometimes file bogus charges to protect the police from a successful lawsuit (see Heck v. Humphrey). Their purpose is often to see that their "clienta," the police, are protected and that justice is not done.