How to Try Section 1983 Lawsuits Against

Police for Fabrication of Evidence in

Reports, Affidavits, and Testimony
Investigating Investigative
Misconduct
 The Good Investigator

Seeks relevant evidence in witness

interrogations, site investigations,
premises searches, physical
evidence, and forensic analysis.
Renders complete, unbiased
reports to prosecutors.
 Fabrication of Evidence
• Creation of False Evidence
• Three Means of Fabrication:
–False Statements
–Deceptive Concealments
–Deceptive Partial Disclosures
 Framed
By Cheech and Chong
They put me in the lineup
And let the bright lights shine.
I was sitting in the coffee shop
There was ten poor dudes like me
Just minding my own affair
Standing in that line.
When all of a sudden, this
I knew I was the victim
Policeman caught me unaware
Of somebody's evil plan,
Said, “Is your name Pedro?”
When this scroungy looking dude
I says, “Yeah, I guess so”
Came up and said,
He said, “Then come with me cause
“Yeah, that's him, man.”
You're the man we been looking for.”
Hey, wait a minute, man,
I said, “Hey, man, I been framed
I been framed, man.
Hey, no, really, man, I was framed
Aw, listen to me, Judge, I was framed!
Aw, I never do nothing wrong, man
I never do nothing wrong,
But every time I get the blame!
But every time I get the blame!
I been framed!”
Hey, I been framed!
Know Your Client’s Story To Be True
Be alert to the possibility that your client is not
being perfectly honest in every detail. Warn
them that any deception will bite you both in
the rear at the likely worst time.
If they are guilty of something, concealing
something, or holding back, press for disclosure
and get the facts. Do not spare their feelings, as
no one will spare yours if you carry a bogus tale
into litigation. If there are third party witnesses
to the event, question them immediately. Get
the truth, so you can tell it.
 Investigative Work Product Impacted
by Fabrication of Evidence
• Investigative Reports (material omissions and misstatements,
biased collection, suppression and distortion of evidence)
• Witness Statements (refusal to take statements, distortions
or misrepresentations, bullying witnesses to silence or
intimidate)
• Physical Evidence, Photographs, and Recordings (failure to
collect, planting, tampering, destruction, concealment)
• Documents (forgery, distortion, planting, concealment)
• Warrant Affidavits (planted tips, unreliable informants,
invented observations of criminal activity, mere speculation
giving rise to probable cause)
• Testimony (committing and suborning perjury, providing false
corroboration of other police lies, keeping the code of silence)
 Examine All Investigative Product
Examine everything the cops have written or
said, or recorded for deceptive statements:
1. Affirmative Misstatements: Lies
2. Concealments: Sleight of Hand
3. Deceptive Narratives Based on Partial
Concealment: Smoke and Mirrors
 Police Don’t Have One of These

Police are strong in their element – as witnesses in criminal

cases in front of familiar prosecutors and judges – and weak
under oath in civil cases, when they are confronted with the
facts they concealed or distorted. Police do not have bar
licenses, or a broad education in the law. Police hate to be
questioned, and are increasingly likely to suffer employment
consequences from meritorious litigation proving they
committed misconduct.
 Assume Nothing
Never assume that police followed appropriate
procedure. Lying is commonplace, and the
distortion of other investigative products occurs
often. Recorded interviews can be carefully
massaged to help a witness provide inculpating
testimony. The use of “planted tips” by
compromised individuals to finger particular
individuals is not unknown. Planting weapons
or other contraband occurs, with and without
the knowledge of superiors. Examine everything
carefully, and be supremely suspicious.
"Cross-examination,—the rarest, the most useful, and the most
difficult to be acquired of all the accomplishments of the
advocate.... It has always been deemed the surest test of truth
and a better security than the oath."— Cox
 Cross-Examination of the Perjured Witness
from Cross-Examination, by Francis Wellman

“Here you will require infinite patience and

industry. Try to show that his story is inconsistent
with itself, or with other known facts in the case,
or with the ordinary experience of mankind.
There is a wonderful power in persistence. If you
fail in one quarter, abandon it and try something
else. There is surely a weak spot somewhere, if
the story is perjured. Frame your questions
skilfully. “
https://www.gutenberg.org/files/40781/40781-h/40781-h.htm#Page_57
 3 Ways to Expose a Liar
“His story is inconsistent with itself,
or with other known facts in the case,
or with the ordinary experience of mankind.”
1. Inconsistent with itself: Requires familiarity with the liar’s prior
statements, drawn from reports, public records, disciplinary files,
personal notes, social media posts, etc.
2. Inconsistent with other known facts in the case: Requires
familiarity with all available or obtainable statements of third parties.
3. Inconsistent with the ordinary experience of mankind: Requires
knowledge of the facts, and the ability to infer all that must be true if
the police story is true. Then you can find and present empirical
proof that the police story is impossible. Eg., testimony in a traffic
case from a DOT official that the signals at an intersection cannot
work as the Sheriff’s deputy described in her police report.
 Why Cops Lie
• Compulsion: “Look, when DEA tells us to find a
reason to search a house, we find a reason! Call me
when you’ve found one!”
• Arrogance: “They’re scum. Screw the warrant.”
• Laziness: “Let’s not and say we did.”
• Coverup: “Well, of course we would never do that!”
• Bias: “I think those cholos are driving a vehicle with a
very low profile and a really dim tail-light, don’t you?”
• Retaliation: “He thought he was pretty smart, asking
for a lawyer, didn’t he? We’ll see who’s smart.”
 Know What Their Job Is

• Use the Bureau of Labor Statistics

Employment Descriptions to learn
what police and detectives are
expected to know and do.
• Between patrol officers and
detectives, there can be a
considerable gulf in skill and
responsibility.
Law, Public Safety, Corrections & Security Workers
Tasks
•Check victims for signs of life, such as breathing and pulse.
•Obtain facts or statements from complainants, witnesses, and accused persons and record
interviews, using recording device.
•Secure deceased body and obtain evidence from it, preventing bystanders from tampering
with it prior to medical examiner's arrival.
•Record progress of investigation, maintain informational files on suspects, and submit reports
to commanding officer or magistrate to authorize warrants.
•Prepare charges or responses to charges, or information for court cases, according to
formalized procedures.
•Preserve, process, and analyze items of evidence obtained from crime scenes and suspects,
placing them in proper containers and destroying evidence no longer needed.
•Obtain summary of incident from officer in charge at crime scene, taking care to avoid
disturbing evidence.
•Note, mark, and photograph location of objects found, such as footprints, tire tracks, bullets
and bloodstains, and take measurements of the scene.
•Prepare reports that detail investigation findings.
https://www.onetonline.org/link/summary/33-3021.00
Hornbook 1983 Law in Your Materials
 Two Goals of 1983: Deterrence of Police
Misconduct and Compensation for Victims
Section 1983 was enacted "to deter state actors
from using the badge of their authority to
deprive individuals of their federally guaranteed
rights and to provide relief to victims if such
deterrence fails.“
Wvatt v. Coie, 504 U.S. 158. 161,112S. Ct. 1827,
1830. 118 L Ed 2d504 (1992).
"The obvious purpose" of enacting section 1983 was "to provide
a remedy to parties deprived of constitutional rights by a state
official's abuse of his position while acting under color of state
law.“
Haines v. Fisher, 82 F.3d 1503, 1508 (10th cir. 19961.
Under Color of State Law
"Misuse of power,
possessed by virtue of
state law and made
possible only because
the wrongdoer is clothed
with the authority of
state law, is action taken
'under color of' state
law.“
Williams v. United
States, 341 U.S. 97, 99,
71 S. Ct. 576, 578 (1951)
 Procedural Features of 1983
• Original Jurisdiction in the U.S. District Court,
and State Court Concurrent Jurisdiction
• The 1983 Statute “Borrows” the Forum State
Statute of Limitations for Personal Injury
• Recoverable Damages include economic and
non-economic, potential punitive damages
against individual law enforcement agents,
and attorneys fees.
 Conscious
Indifference
 1983 Defendants
• Law Enforcement Officers and
• Their Employers
– States
– Counties
– Cities
Not
• State Government (11 Amendment Immunity)
• Federal Agents (Except maybe Bivens claims)
 Public / Private Conspiracies
to Violate Civil Rights
Private persons, jointly engaged with state
officials in the prohibited action, are acting
"under color" of law for purposes of the statute.
To act "under color" of law does not require that
the accused be an officer of the State. It is
enough that he is a willful participant in joint
activity with the State or its agents.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42,
102 S. Ct. 2744, 2756 (1982), quoting United
States v. Price, 383 U.S., at 794.
Bivens Cases
[A] case can present a new
context for Bivens purposes
if it implicates a different
constitutional right; if
judicial precedents provide
a less meaningful guide for
official conduct; or if there
are potential special factors
that were not considered in
previous Bivens cases.

Ziglar v. Abbasi, 137 S. Ct.

1843, 1864 (2017)
 1983 Claims Against Cities and
Counties for Unconstitutional Policies
Local governing bodies, therefore,
can be sued directly under § 1983
for monetary, declaratory, or
injunctive relief where, as here, the
action that is alleged to be
unconstitutional implements or
executes a policy statement,
ordinance, regulation, or decision
officially adopted and promulgated
by that body's officers.
Monell v. Dep't of Soc. Servs., 436
U.S. 658, 690-91, 98 S. Ct. 2018,
2035-36 (1978)
Government Custom That Acquires the Force of Law
Moreover, although the touchstone
of the § 1983 action against a
government body is an allegation that
official policy is responsible for a
deprivation of rights protected by the
Constitution, local governments, like
every other § 1983 "person," by the
very terms of the statute, may be
sued for constitutional deprivations
visited pursuant to governmental
"custom" … not authorized by
written law but so permanent and
well settled as to constitute a
'custom or usage' with the force of
law. Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 690-91.
Two Main (But Not Only) Types of Cases Where
Fabrication is Actionable Violation Under
Section 1983
Fourteenth Amendment Violations – Fair Trial
Claims. Accrues upon termination of bad faith
prosecution in favor of criminal defendant.
McDonough v. Smith, 139 S. Ct. 2149, 2152
(June 20, 2019).
Fourth Amendment Violations – Bad Faith
Search Warrants. Offshoots of Motions to
Controvert Search Warrants supported by bad
faith affidavits. Eg., Bettin v. Maricopa Cty.,
2007 U.S. Dist. LEXIS 42979 (D. Ariz. 2007).
The “Fair Trial” Claim
When a police officer creates
false information likely to
influence a jury's decision and
forwards that information to
prosecutors, he violates the
accused's constitutional right
to a fair trial, and the harm
occasioned by such an
unconscionable action is
redressable in an action for
damages under 42 U.S.C. §
1983.

Daniels v. Taylor, 443 F. Supp.

3d 471, 476 (S.D.N.Y. 2020)
 McDonough v. Smith
“Malicious prosecution's favorable-termination
requirement is rooted in pragmatic concerns
with avoiding parallel criminal and civil
litigation over the same subject matter and
the related possibility of conflicting civil and
criminal judgments, and likewise avoids
allowing collateral attacks on criminal
judgments through civil litigation.”
Id., 139 S. Ct. 2149, 2152 (June 20, 2019))
 Bad Faith Search Affidavits
Violate The Fourth Amendment
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
 Essential Warrant Law
A search warrant which is facially overbroad is not reasonable
and a seizure of property pursuant to a facially invalid warrant is
a violation of the property owners' Fourth Amendment rights.
"The uniformly applied rule is that a search conducted pursuant
to a warrant that fails to conform to the particularity
requirement of the Fourth Amendment is unconstitutional."
An officer who prepares a plainly invalid warrant that a
reasonably competent officer should know was deficient is not
entitled to immunity, despite the approval of the warrant by a
magistrate. It is presumed that officers executing an overbroad
warrant are aware of the unreasonableness of their behavior.
Bettin v. Maricopa Cty., 2007 U.S. Dist. LEXIS 42979 (D. Ariz.
2007)(numerous citations omitted).
 Pleading Your Complaint
Set things up during the Criminal Proceeding by
Getting Full Discovery especially all client and
witness statements, conducting evidentiary
hearings to attack the warrant and question the
officers.
Settle on Alleging Fabrication from the outset.
Don’t Do it If You Don’t Have the Facts
Know Whether You Have the Facts By Doing
Diligent Pre-Filing Investigation and Knowing
the Criminal Case File
Plaintiff’s Law Enforcement Experts
Retain experts who specialized in the same field as your
target defendant.
If the case involves search warrants, the methodology
to applied there is going to vary from field to field.
Close examination of all the pre-filing evidence should
help you draw some conclusions about what the
cops did wrong. Be sure and clear these ideas with
your expert, because you don’t want them
disagreeing with liability theories you’ve already
plead.
Initial Disclosures and Joint Statement
Be proactive to comply with the Court’s goal of
collaborative adversarial proceedings.
Draft the Joint Statement and control the sound
bites and narrative at the outset.
Push the other side to stipulate to some facts,
but be very careful not to compromise your
own.
Provide basic case disclosures, witness list, and
documents, and insist that they do so as well.
 Discovery in Fabrication Cases

Your Expert should help you prepare discovery. Start with

Document Demands. Custodian Depositions for Documents are often
helpful to just get the full content of the file from a records clerk.
Use RFAs with interlocking interrogatories and Rule 30(b)(6)
depositions to focus on issues and get testimony on policy issues
Have encyclopedic command of the officer’s own statements before
you depose him. Never let officers listen to each other testify.
 No Defense Psych Exams

Since you will likely plead emotional injury, be careful not to

consent to a psychological examination of your client. In California,
where Independent Medical Exams are statutorily required in PI
cases, many lawyers think psych evaluations are required. They are
not. Always oppose them. Psychological experts are skilled in using
jargon to describe your client as deceptive, causing her own
problems, and only lightly impacted by police misconduct, when in
fact, she knows the truth, and is highly motivated to reveal it.
Defense Experts Who Benefit Your Case
A troubling aspect to this case is that
the Maricopa County Attorney's Office,
Defendants and Defendants' expert,
with over thirty years police experience,
urge the court to find the way Plaintiff
was seized and interrogated to be
perfectly acceptable. Defendants'
expert describes the actions as
"standard police practice." But
Defendants' conduct is of the nature
which has been repeatedly condemned
by the federal courts. The Court is left
to wonder if such actions are standard
policy at the Maricopa County Sheriff's
Office?
Bettin v. Maricopa Cty., No. CIV 04-
02980 PHX MEA, 2007 U.S. Dist. LEXIS
42979, at *37 (D. Ariz. June 11, 2007)
(citations omitted).
 Qualified Immunity and MSJ
[D]efendant bears the burden of establishing there is
no genuine issue of material fact to be resolved
regarding his immunity [and] if there is a genuine
dispute over a material fact regarding the
circumstances under which a defendant acted, the
Court should make its determination regarding the
defendant's immunity after the facts have been
developed at trial.
Bettin v. Maricopa Cty., No. CIV 04-02980 PHX MEA,
2007 U.S. Dist. LEXIS 42979, at *27-28 (D. Ariz. June 11,
2007), citing Act Up! Portland v. Bagley, 988 F.2d 868,
873 (9th Cir. 1993).
 “a genuine dispute over a material fact
regarding the circumstances under which a
defendant acted”

To Establish a Genuine Dispute Over A Material Fact

you a police witness:
1.Contradicting him/herself (in reports, testimony,
conversation, social media, etc.).
2.Contradicting another credible witness (another cop,
the plaintiff, or a third party).
3.Contradicting the laws of the universe (bad time
sequences, physical site, evidence, or circumstances
other than described by officer, asserting impossible
events, showing uncharacteristic credulity for a cop).
 Creating Sources of Contradiction
• Hold evidentiary hearings in the underlying case to
get all cops under oath before trial:
– Preliminary Hearing (where available)
– Motion to Suppress
– Motion to Controvert
• Summon all cops present at an event to each
hearing, and exclude them court during each other’s
testimony.
• For depositions, get a protective order on stip or by
motion to keep only one cop in the deposition room
(a whole vanload could show up just to be nice).
 Qualified Immunity Doesn’t Bar
Injunctive Relief

Although qualified immunity shields an

individual defendant from monetary damages, it
does not shield a defendant sued in their official
capacity from injunctive or declaratory relief.
Bettin v. Maricopa County, at id., citing Perry v.
Sheahan, 222 F.3d 309, 314 (7th cir. 2000).
 SEVENTH CIRCUIT JURY INSTRUCTION 7.14
FAIR TRIAL: CONCEALMENT OF EXCULPATORY EVIDENCE / FABRICATION OF EVIDENCE
Plaintiff claims that Defendant violated his right to a fair trial by [failing to disclose
exculpatory and/or impeachment evidence [optional - identify the allegedly
undisclosed evidence] that was material to Plaintiff’s defense in the criminal case]
[and/or] [by fabricating evidence that was used against Plaintiff in the criminal case].
To succeed on this claim, Plaintiff must prove each of the following (number of
elements) things by a preponderance of the evidence:
1. Defendant [knowingly concealed [from the prosecutor] exculpatory and/or
impeachment evidence, and the evidence was not otherwise available to Plaintiff,
through the exercise of reasonable diligence, to make use of at his criminal trial]
[and/or] [knowingly fabricated evidence that was introduced against Plaintiff[at his
criminal trial] [in his criminal case].
2. The evidence was material.
3. Plaintiff was damaged as a result.
4. If you find that Plaintiff has proved each of these things by a preponderance of the
evidence, then you must decide for Plaintiff, and go on to consider the question of
damages. If, on the other hand, you find that Plaintiff has failed to prove any one
of these things by a preponderance of the evidence, then you must decide for
Defendant, and you will not consider the question of damages.
 Exculpatory and Impeachment
Evidence Defined
“Exculpatory evidence” is evidence that tends to show
that the accused is not guilty of the crime.
“Impeachment evidence” is evidence that would have
made the [judge] [jury] at the criminal trial less likely
to believe a witness who testified against the
accused at the criminal trial. [Exculpatory;
impeachment; fabricated] evidence is “material” if
there is a reasonable likelihood that the result in the
criminal proceeding would have been different if the
evidence had been disclosed.
 Voir Dire
•Have you ever or do you now watch real life “cop shows?”
•Has that shaped your view of what is proper police conduct?
•Have you ever been up against a police officer’s word in
court?
•Do you know what police do to obtain a search warrant?
•Can police tell white lies to make their jobs easier?
•Have you ever heard of a policeman lying?
•Have you ever heard of a policeman losing their job for lying?
•Have you ever heard of a policeman going to jail for perjury?
•Will you keep your oath, and show no bias in this trial?
•Can you sit in judgment of police misconduct in this case?
•Will you hold police to their oaths?
 Lay Witnesses
The uninvolved, third party witness to police
misconduct is an invaluable witness in a police
misconduct case for several reasons:
Their testimony establishes that police are lying
They stand up for truth and model courage for
the jurors
They speak against authority, sometimes at risk
to their employment or relationships.
Find out who they are ASAP, locate, interview,
subpoena for deposition and trial.
 Damages Presentations
Plan your damages presentation carefully, to
give the plaintiff an opportunity to explain their
injuries.
Physical injuries require a medical expert unless
a hospital subpoena is all you can afford.
Prepare economic injury presentation with the
help of an economic expert.
Beware of psychological testimony for the
plaintiff, as it opens a dangerous door.
Use sympathetic friends and relations to relate
the emotional distress story, so your client
doesn’t have to articulate their own suffering.
Presenter: Charles Carreon

628-227-4059
[email protected]
[email protected]