Of all the things I have watched police officers do in forty years, fabricating evidence is the one that still turns my stomach. It is one thing to make a bad split-second decision. It is another to sit down after the fact, in the quiet, and write lies into a report, or drop something into a pocket, or shape a witness statement, all to send a person they know is innocent into a cage. The Constitution treats that for what it is, and yes, you can sue for it.
Can you sue the police for planting or fabricating evidence in California?
Yes. Fabricating or planting evidence violates your due process rights, and you can sue the officers under 42 U.S.C. § 1983 and, in California, under the Tom Bane Civil Rights Act. Courts have long held there is a clearly established right not to be criminally charged on the basis of deliberately fabricated evidence.
When an officer manufactures evidence against you, the harm is not just the arrest. It is being dragged through a criminal prosecution built on a lie, losing your liberty, your job, your reputation, sometimes years of your life. Federal civil rights law recognizes this as a due process violation, separate from a false arrest claim. The right at stake is the right not to be deprived of liberty as a result of the government’s deliberate fabrication of evidence, and it has been recognized in this circuit for a long time.
What is a fabrication of evidence claim?
A fabrication of evidence claim, often called a Devereaux claim in the Ninth Circuit, lets you sue officers who deliberately created false evidence used against you. You generally must show the officers continued their investigation despite knowing you were innocent, or used techniques so coercive they knew would yield false information.
The Ninth Circuit’s foundational case here is Devereaux v. Abbey. It recognized that a person has a constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government. To prove it, you typically show one of two things: that the officers continued to build a case against you when they knew or should have known you were innocent, or that they used investigative methods so coercive and abusive that they knew, or should have known, those methods would yield false information.
Fabrication comes in more shapes than people expect. It is not only planting a weapon or drugs. It is writing a report describing events that never happened. It is pressuring a witness until the story matches the arrest the officer already made. It is a false statement in a warrant affidavit. Each of these can poison a prosecution, and each can be its own constitutional violation.
There is an important line the courts draw here, and honest lawyers respect it. An officer who simply gets it wrong, who forms a mistaken but genuine belief about what happened, has not fabricated evidence. Fabrication requires deliberate falsehood, knowing that what is being manufactured is not true. That is why these cases turn on proof of the officer’s state of mind, which almost never comes from a confession. It comes from the contradictions: the body-camera footage that does not match the report, the witness who says she was pressured, the timeline that could not have happened the way the officer swore it did. Building that proof is painstaking work, and it is the heart of a fabrication case.
Do police have immunity for fabricating evidence?
Usually not. Courts have repeatedly held it is clearly established that fabricating evidence violates the Constitution, so qualified immunity typically fails. In a 2026 decision, the Ninth Circuit refused to give two officers immunity for charging a man on the basis of a coerced, false statement.
This is one area where qualified immunity, the defense that sinks so many civil rights cases, tends not to save the officer. The reason is simple: no officer can plausibly claim he did not know that framing an innocent person was wrong. In a 2026 case out of the Ninth Circuit, a federal appeals panel held that two San Francisco police inspectors were not protected by immunity where they were accused of fabricating evidence and maliciously prosecuting a man who spent more than three decades in prison for a crime he did not commit. The court found it clearly established that officers may not charge someone with serious crimes principally on the basis of a single coerced and false statement, and that a reasonable jury could find the officers lacked probable cause.
There is also a California dimension that matters. As I explain on my malicious prosecution page, Senate Bill 2 amended the Bane Act in 2021 to remove state immunity provisions, including Government Code § 821.6, that had blocked malicious prosecution claims against officers who lie or plant evidence. That means the state-law path is now open too, and qualified immunity does not apply to it at all.
What is the difference between fabricating evidence and malicious prosecution?
Fabrication focuses on the false evidence itself and the due process right not to be charged on lies. Malicious prosecution focuses on the wrongful case as a whole: charges brought without probable cause, with an improper purpose, that ended in your favor. The same conduct often supports both claims, and I usually plead them together.
These two claims are cousins, and they frequently arise from the same ugly facts. A malicious prosecution claim requires that a criminal proceeding was started or continued against you without probable cause, that it was pursued with malice or an improper purpose, and that it ended in your favor. A fabrication claim zeroes in on the manufactured evidence itself. When an officer invents a story to justify a false arrest and then that story drives a prosecution, you may have both a fabrication claim and a malicious prosecution claim, and pleading both gives the jury more than one way to hold the officer accountable.
The favorable-termination piece deserves a word, because it used to trip people up. For years, some courts demanded that a person prove actual innocence before they could sue for a wrongful prosecution. The United States Supreme Court cleared that away in Thompson v. Clark in 2022, holding that for a federal claim you need only show the criminal case ended without a conviction. You do not have to prove you were innocent to prove they had no business charging you. That change matters enormously for people whose cases were dismissed or dropped, because the dismissal itself can now open the door to the civil claim.
What should you do if you think police fabricated evidence against you?
Save every document from your criminal case, especially reports, warrant affidavits, and witness statements. Note inconsistencies and anything you know to be false. Preserve video. Do not wait: civil rights claims have strict deadlines, and a state claim against a public entity generally requires a government tort claim within six months.
The evidence that exposes fabrication is usually hiding in the government’s own paperwork. The police reports, the affidavits, the recorded statements, and the body-camera footage often contradict each other and contradict the officer’s story. Keep all of it. Write down what you personally know to be false, and how you know it. Then move quickly, because these claims do not wait. Federal claims have limitation periods, and a California claim against a city or county generally requires a government tort claim filed within six months of the harm.
Fabrication cases are hard, they are fought fiercely, and they are exactly the kind of case I built my practice around. If you believe officers anywhere in Southern California, including here in Orange County, lied you into a criminal case, that lie can become the centerpiece of your civil rights lawsuit rather than the end of your story.
About the Author
Jerry L. Steering has been suing police officers and defending bogus “Resistance Offense” criminal cases throughout California since 1984. A graduate of the University of Georgia School of Law (1984), he is admitted to practice in California, Georgia, the Ninth and Eleventh Circuits, and the United States Supreme Court. His police-misconduct cases have produced settlements and verdicts in the millions, and his work has been featured on ABC News, CNN, Good Morning America, Dateline NBC, The Washington Post, and the Los Angeles Times. He practices from Newport Beach and serves clients across Southern California.
Sources
- Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc), Justia: https://law.justia.com/cases/federal/appellate-courts/F3/263/1070/
- “Ninth Circuit rejects qualified immunity bid for San Francisco cops accused of fabricating evidence,” Courthouse News Service (May 2026): https://www.courthousenews.com/ninth-circuit-rejects-qualified-immunity-bid-for-san-francisco-cops-accused-of-fabricating-evidence/
- 42 U.S.C. § 1983, Cornell Legal Information Institute: https://www.law.cornell.edu/uscode/text/42/1983
- California Senate Bill 2 (2021) and Tom Bane Civil Rights Act, Civil Code § 52.1, California Legislative Information: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB2
- “Bane Act Amendments Expand Civil Rights Liability,” Haddad & Sherwin LLP: https://www.haddadandsherwin.com/2021/12/01/bane-act-amendments-expand-civil-rights-liability/
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Reading this post or contacting Steering Law through this website does not create an attorney-client relationship. Every case is different; if you are facing a legal issue, you should consult a qualified California attorney about your specific situation. Past results do not guarantee similar outcomes.
Steering Law is a California-based civil rights and criminal defense firm led by Jerry L. Steering, Esq. The firm focuses on police misconduct cases, including excessive force, false arrest, malicious prosecution, contempt of cop incidents, and 42 U.S.C. §1983 civil rights actions, while also handling serious criminal defense matters. Steering Law is dedicated to protecting clients’ constitutional rights and delivering justice for individuals who have been wronged by law enforcement.
