Witness Immunity Does Not Extend To Police Investigators' Pre-trial Actions

THE DOCTRINE OF WITNESS IMMUNITY DOES NOT EXTEND TO LAW ENFORCEMENT’S PRE-TRIAL ACTIONS

Witnesses, including police officers, are absolutely immune from liability for testimony at trial. Absolute witness immunity also extends to preparatory activities that are inextricably tied to testimony (e.g., a conspiracy to testify falsely).

The Ninth Circuit recently announced an important limitation on absolute witness immunity, particularly as it pertains to law enforcement. The case is called Lisker v. City of Los Angeles, No. 13-55374, 2015 WL 1260810 (9th Cir. Mar. 20, 2015).

The plaintiff, a man named 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 of California later dismissed the charges against Mr. Lisker, although it still asserted Mr. Lisker’s guilt.

The former inmate—Mr. Lisker—brought a Section 1983 civil rights lawsuit against two Los Angeles Police Department detectives for allegedly fabricating reports, investigative notes, and photographs of a crime scene during a homicide investigation. The LAPD and the City of Los Angeles were also named in the lawsuit.

At the trial court level, the detective defendants asked the district court to dismiss the falsification-of-evidence claim. The district court rejected the request, denying summary judgment and allowing the claim to proceed to trial. In so ruling, the district court rejected defendants’ claim to absolute witness immunity for the alleged pre-trial fabrications. The defendants filed an interlocutory appeal, which is a relatively rare procedural device that allows an aggrieved party to challenge a trial court’s order midstream in the litigation.

The Ninth Circuit Court of Appeals held that absolute witness immunity does not extend to law enforcement’s pre-trial activities. The detectives argued that the notes and reports were inextricably tied to their testimony because the documents were not produced at trial and were otherwise designed to memorialize their eventual testimony. The Ninth Circuit rejected that argument, relying in part on case law from the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee). Police investigative materials have evidentiary value wholly apart from assisting trial testimony and affect the criminal process well-beyond their testimonial value. Therefore, documentary and physical evidence, such as a falsified interviews or forensic reports—fall outside of the protections offered by absolute witness immunity. The Ninth Circuit affirmed the district court’s denial of summary judgment and the claims will presumably be tried to a jury.

The holding in Lisker makes it clear that law enforcement witnesses will not be afforded absolute witness immunity for the materials they generate over the course of an investigation. This limitation is significant and will result in defenses of this type being litigated under the less favorable qualified immunity doctrine.