Gеorge Jones was arrested, jailed, and charged with murder and other crimes. After these charges were dropped, Jones sued the City of Chicago and several Chicago police officers and a police lab technician under 42 U.S.C. § 1983 for false arrest, false imprisonment, intentional infliction of emotional distress, and malicious prosecution, as well as conspiracy to commit these wrongs. He alleged that the defendants’ conduct had denied him due process of law under the Fourteenth Amendment and violated his rights under the common law of Illinois. A jury awarded him $801,000 in compensatory and punitive damages. Judgment was entered on the verdict, and thе defendants appeal. They argue that there was insufficient evidence of conspiracy; that they are insulated from liability by the decision of the state’s attorney to charge and later to prosecute Jones, or at least are immune from liability for damages because they acted in good faith; and that the City cannot be held liable. Jones has cross-appealed, questioning the district court’s calculation of attorney’s fees.
The defendants have, as we shall see, no meritorious objections to the jury instructions; and they make only minor objections, also meritless, to the judge’s trial rulings. So we must construe the evidence in the light most fаvorable to Jones, and this perspective discloses a frightening abuse of power by members of the Chicago police force and unlawful conduct by the City itself.
Between 4 and 6 a.m. on the morning of May 4, 1981, 12-year-old Sheila Pointer was raped, and bludgeoned to death, and her 10-year-old brother Purvy beaten unconscious, in their home in a poor neighborhood of Chicago. A blood-stained pipe was found in an alley behind the Pointer home. A neighbor, Nancy Coleman, reported seeing a black teenager, clad in a dark knee-length coat and a hat and carrying a red tote bag, leaving the alley at about 6 a.m.
The police had nо other clues. Their only hope for breaking the case lay, therefore, with Purvy — who was in a coma. His doctors at the University of Chicago hospital told the police that it might be months before he could speak again, let alone remember anything about the assault. But Purvy’s recovery proceeded more rapidly than expected. By May 11 he was able to speak (though only very hoarsely) and to respond to simple verbal cues. Police detectives Houtsma and Tosello — who are defendants in this case, as are all the police officers named in this opinion except Laverty — visited the hospital that day. Without first inquiring about Purvy’s prеcarious mental state, they tried to interview him. Purvy found it difficult to speak, so the officers told him to signal “yes” or “no” by squeezing Houtsma’s hand. After indicating in this manner that his parents (whom the police had briefly suspected) had not been the assailants, Purvy uttered the name “George.” Through hand signals he conveyed the message that “George” was the assailant, and that George was a teenage gang member who lived near the Pointer home and had lighter skin than Purvy.
The detectives left the hospital and began looking for persons who lived near the Pointer home and fit the description of “George.” They discovered that George Jones lived a block away. A senior at Fenger High School, and the editor of the school newspaper, the bespectacled Jones was called “Bookworm” by his classmates in grudging tribute to his studious character. He was the son of a Chicago policeman and planned to join the Air Force upon graduation from high school and afterward attend college.
*989 The police obtained a photograph of George — his graduation photograph, which showed him in a suit — from his father, and gathered some other photos in order to prepare a photo line-up for Purvy. The other photos were mug shots.
Their shift ending, Houtsma and Tosello left the sheaf of photos for the detectives on the next shift, Kelly and Binkowsi, who that evening took the photos to show Pur-vy. Earlier that day Purvy had overheard a doctor ask a nurse, “Is that the boy whose sister is dead?” Upon thus learning that his sister was dead, Purvy became agitated. The officers knew this, but proceeded with the photo line-up. Officer Kelly displayed George Jones’s picture and asked Pur-vy whether he knew the person in it. He said yes, and Kelly then asked him whether this person was the assailant. Purvy did not respond. Kelly showed him the rest of the pictures but Purvy remained unresponsive. Eventually he started crying, and the officers left.
Just before the interview, Mrs. Pointer had told Kelly that Purvy had been murmuring a name that sounded like “George Anderson,” “George Henderson,” or “George Harrison” — and, sure enough, during the interview Kelly and Binkowski heard Purvy repeat a name that sounded like “Anderson.” So when they left the hospital they tried to find an “Anderson” in the Pointer neighborhood, but they were unsuccessful. They returned to the police station and wrote a memorandum accurately describing their interview with Purvy. Kelly gave copies of this memorandum to the other police officers investigating the case and to the sergeant on duty. He placed the remaining copy not in the police department’s regular files but in its “street files.” These were files that the police did not turn over to the statе’s attorney’s office as they did with their regular investigative files. As a result, the street files were not available to defense counsel even if they contained exculpatory material. We use the past tense because the practice was discontinued following a class-action suit (inspired by the disclosure, in the criminal trial of George Jones, of the existence of the street files) to enjoin the practice. That suit is
Palmer v. City of Chicago,
the essential orders in which are reported at 562 F.Supp 1067 (N.D.Ill.1983),
The next morning (May 12), Houtsma, accompanied by Detective McGuire, went to the hospital and reрeated the photo lineup. Houtsma showed Purvy the pictures one at a time, starting with George Jones’s picture. Purvy made no response to it but upon seeing one of the subsequent pictures cried out “Yep, yep, that’s the one who did it to me.” Houtsma asked Purvy whether he knew the person’s name; he made no response. He also made no response when Houtsma asked him whether he knew the person’s nickname and whether it was “Bookworm.”
Houtsma and McGuire left the hospital. Accompanied by officers McCabe and McNally, they went directly to Jones’s high school. They sent uniformed police officers into his classroom who arrested him. They searched his locker but did not find the clothes or bag matching Nancy Coleman’s description. They took him to the police station, where they questioned him and threatened him with the electric chair if he didn’t confess. He denied having anything to do with the crime and was packed off to Cook County Jail after a night in a police lockup.
McCabe and McNally took George’s graduation photo to Nancy Coleman, who at first was uncertain but after covering up part of the face with strips of paper said he was indeed the “clean looking” person she had seen emerging from the alley on the morning of the crime.
An assistant state’s attorney suggested that an attempt be made to get Purvy to identify Jones in person as the assailant. Accompanied by two assistant state’s attorneys, Houtsma and McCabe brought George Jones to Purvy’s hospital room, ordered him to stand about three and a half feet from the bed, and asked Purvy whether this was the person who had hit him over the head. Speaking calmly, Purvy answered, “No, that’s not the man, that’s *990 not the man, no, no, no.” Houtsma ordered Jones to take off his glasses and stand within two feet of Purvy. Houtsma turned up the lights, then repeated the question. “No,” said Purvy — then, “Yes, that’s him, yes”; then, “Yes, no, yes, no” over and over. Someone asked Purvy whether he was sure (of what?) and Purvy answered with аnother string of yes-nos. One of the assistant state’s attorneys present, Schultz, testified in this case that Purvy’s identification of George Jones was the best identification he had ever seen. Such testimony could not have helped the defendants’ credibility with the jury.
The morning after this “identification,” a grand jury indicted George Jones for murder, rape, attempted murder, armed violence, burglary, and home invasion. On the same day (May 13), Sergeant Palmer signed the official arrest report. A document intended for use by prosecutors, this report had been compiled the previous day by Tosello, Houtsma, McCabe, McGuire, and McNally, and signed by the first two. The report was full of falsеhoods, such as that Nancy Coleman had picked out Jones’s picture from a group of seven (his picture was the only one she had been shown), that Jones’s father had not seen him on the morning of May 4 (in fact his father had told the investigating officers that he had seen George at home that morning), and that Purvy had said that his assailant attended Fenger High School (Purvy had said no such thing). The report did not mention that Purvy had described his assailant as a gang member (George Jones was not a gang member), as being a lighter-skinned black than Purvy (George Jones is darker-skinned than Purvy), and as having a name like Anderson. The report also did not mention that the doctors had warned the officers at least twice that Purvy’s head injury had left him with serious memory problems.
The state’s attorney’s office used this report to persuade the court to set George Jones's bond at $250,000, an amount his family could not raise — so George was returned to Cook County Jail. While there he had to fight off a rape attempt, was beaten up by gang members, and was forced to join a gang for self-protection, a process that included a brutal initiation rite. After a month of these horrors the court reduced the bond to an amount the Jones family could afford, and George was released.
On May 18 there was a new development in the case. Mrs. Pointer reported to the police that she had found two pairs of pantyhose in her house that belonged neither to her nor to her murdered daughter. Detective Laverty was assigned to investigate this new evidence, Houtsma and To-sello having gone on leave. Laverty went to Purvy, who was still in the hospital, and asked him what he knew about the pantyhose. Purvy said for the first time that there had been two assailants and that both had worn stocking masks. Purvy referred to one of the assailants as George Anderson and to the other as “twin brother George.” He reiterated that George Anderson was a gang member. Laverty asked Purvy how he knew that one of the assailants had been Georgе Anderson when both had worn masks. Purvy broke down and cried.
Laverty went to Commander Deas, the head of the area detective division, described to him and Sergeant Palmer Pur-vy’s responses, and told him he was convinced the wrong person had been charged. Deas told Laverty to continue investigating but took no other action.
Houtsma and Tosello returned from leave, learned of Laverty’s discoveries, and went to the hospital to interview Purvy yet again. Purvy repeated that there had been two assailants, both masked. But this time Purvy added that one of them had removed his mask during the assault. He was not asked to describe that assailant.
Houtsma and Tosello cоnfronted Laverty. They were furious. They told him that he was messing up their case, and threatened to destroy his career if he continued to “interfere.” They assured Laverty that Purvy had identified George Jones and that Jones was guilty. Laverty said that if the case went to trial he might testify for *991 Jones; Tosello threatened to “blow him away” if he did.
Laverty prepared an official report, but it was not submitted, because Houtsma took it away and rewrote it. The rewritten report omitted any reference to Laverty and concluded that no further investigation was warranted. Laverty then wrote up his interview with Purvy and deposited it in the street files.
In July, 21-year-old Sharon Hudson was raped, and bludgeoned to death, four blocks from the Pointer hоme. Lester Pique was arrested, and confessed to the crime. Laverty thought Pique matched Purvy’s description of his attacker: Pique went by the name “King George,” was a gang member, and had lighter skin than Purvy. Questioned by Laverty about the Pointer crime, Pique said that it was possible he had committed it, but that as he had frequent blackouts he wasn’t sure. Laverty reported this information to Lieutenant Griffith, who was the head of the violent crimes unit of the area detective division, and asked Griffith to arrange for Purvy to view a line-up with Pique in it. Griffith refused on the sound but surprising ground that Purvy was not competent to make an identification, falsely implying that because of Purvy’s incompetence the prosecution of Jones had been abandoned. Laverty opined to Deas that Pique, not Jones, had committed the Pointer crime. The report was never forwarded to the state’s attorney’s office.
In October, with preparations for the trial of Jones proceeding at full tilt, police laboratory technician Mary Furlong, who is also a defendant in this case, discovered that George Jones had different semen and blood types from the types found in Sheila Pointer’s vagina. Furlong failed to include this information in the lab report that she was preparing for the prosecution of Jones. After being confronted with this omission, she submitted a new report that contained the results of the blood and semen tests. And she placed in the Sharon Hudson file, but not in the Pointer file, the results of an examination of hair taken from the pantyhose that Mrs. Pointer had discovered. This examination indicated that one of the hairs found was not Jones’s but might be Pique’s, The other hairs found in the pantyhose could not be tested.
Also in October, Deas asked Laverty to write a memo setting forth all he knew about the Pointer case. Laverty complied. Deas put the memo in his desk drawer and it stayed there.
The spring of 1982 arrived and the trial against George Jones began. A newspaper carried a report of the trial. Laverty read it with astonishment; Griffith had told him that the prosecution had been abandoned. Laverty went to Deas and asked him why an innocent person was being prosecuted. Deas replied that if Jones was innocent, the jury would acquit him. After calling the court where Jones was on trial and being referred to counsel, Laverty told Jones’s lawyer about the exculpatory information secreted in the “street files.” The lawyer promptly relayed Laverty’s disclosures to the judge, who declared a mistrial. Shortly afterward the state’s attorney dropped all charges against Jones. No apology was ever made to Jones, and neither the City nor the state offered to compensate him for his ordeal.
The Pointer crime has never been solved. Purvy, although declared “legally unavailable” to testify at the trial of George Jones’s civil rights suit (implying that he was mentally incompetent), has recovered from his head injury and is today a sophomore in high school. Although another panel of this court has said that Laverty should have been commended “for his adherence to the principles of honesty, decency, and justice,”
Palmer v. City of Chicago, supra,
The defendants do not quarrel with the propositions that to arrest a person without probable cause, or to prosecute a person when there is no reasonable ground for believing that he committed a crime, or to do both things to the same person, violates both the Constitution and the common law, and that the victim of such official misconduct is entitled to recover all damages flowing from it. These concessions make it unnecessary for us to examine the difficult question whether malicious prosecution can ever count as a deprivation of liberty without due process of law when the defendant is not imprisoned (recall that George Jones was let out on bail a month after his initial arrest).
Hand v. Gary,
The defendants do, however, argue that George Jones failed to prove a conspiracy. Conspiracy is a more familiar doctrine in criminal than in civil cases, except under statutes such as the Sherman Act and RICO that provide both criminal and civil sanctions for the same conspiracies. In a tort case such as this (a section 1983 constitutional-tort case is still a tort case, and Jones’s pendent claims charge garden-variety common law torts), the function of conspiracy doctrine is merely to yoke particular individuals to the specific torts charged in the complaint. The requirements for establishing participation in a conspiracy are the same, however, as in a case (criminal or civil) in which conspiracy is a substantive wrong. See
Hartford Accident & Indemnity Co. v. Sullivan,
To be liable as a conspirator you must be a voluntary participant in a common venture, although you need not havе agreed on the details of the conspiratorial scheme or even know who the other conspirators are. It is enough if you understand the general objectives of the scheme, accept them, and agree, either explicitly or implicitly, to do your part to further them. See, e.g.,
id.
at 383-85;
Bell v. City of Milwaukee,
We cannot say that the jury acted unreasonably in finding that all of the individual defendants were voluntary participants in a common venture to railroad George Jones.
The least extensive participations were those of the supervisory officers (Deas, Griffith, and Palmer) and of the lab technician (Furlong). Thеre is no principle of superiors’ liability, either in tort law generally or in the law of constitutional torts. See, e.g.,
Riordan v. Kempiners,
Furlong testified that it was only through inadvertence that she left out of her lab report information that would have exculpated George Jones and inculpated Lester Pique. The jury was not required to believe her, especially given the evidence that she had talked to Houtsma several times by phone and that she had originally planned to file the hair study in the Pointer file but had later altered the file number to that of Sharon Hudson. The jury was entitled to conclude that Furlong, like the three supervisory officers, had for whatever reason decided to help the officers, centrally Houtsma and Tosello, who were determined to put away George Jones regardless of the evidence. They had a hunch he was guilty and were not going to let a mere absence of evidence stand in their way.
The defendants point out that the state’s attorney, who neither is nor could be a defendant, see
Imber v. Pachtman,
In constitutional-tort cases as in other cases, “a man [is] responsible for the natural consequences of his actions.”
Monroe v. Pape,
It is true that at some point after a person is arrested, the question whether his continued confinement or prosecution is unconstitutional passes over from the Fourth Amendment to the due process clause (and after conviction to the Eighth Amendment’s cruel and unusual punishments clause, but that is not relevant here). Seе
Johnson v. Glick,
The defendants’ alternative argument is that they are immune from liability for damages because they were acting in the good-faith discharge of their public office. The “good faith” immunity of public officers from constitutional tort liability is now a misnomer; ever since
Harlow v. Fitzgerald,
Who decides the immunity question when facts pertinent to it are in dispute — judge or jury? See
McGaughey v. City of Chicago,
The judge did not commit an error, clear or otherwise. The facts show conduct that no reasonable police officer would have engaged in. Although Houtsma and Tosel-lo would have had probable cause to arrest George Jones if (1) a lucid Purvy had (2) identified Jones as the assailant,
Gramenos v. Jewel Cos., Inc.,
So much for the individual defendants. The City of Chicago is liable to Jones under section 1983 if a custom or policy of the City was a cause of the plaintiff’s injury. See
Monell v. Department of Social Services,
The custom in question is the maintenance of the “street files,” police files withheld from the state’s attorney and therefore unavailable as a source of exculpatory information that might induce him not to prosecute or, failing that, would at least be available to defense counsel under
Brady v. Maryland,
There is little doubt that the clandestine character of the street files played a role in Jones’s misfortunes. Cf.
Harris v. City of Pagedale,
Before turning to the cross-appeal, we shall take a moment to discuss the defendants’ objections to the jury instructions. They are shallow.
1. The judge refused a requested instruction that the jury could not base liability on the defendants’ conducting an unduly suggestive line-up. The plaintiff had never sоught to impose liability on that basis, but had merely argued that the suggestiveness of the identification procedures used by the defendants vitiated the “identifications” of Jones by Purvy and by Nancy Coleman as grounds for probable cause to detain him.
2. The defendants were refused an instruction that they had no duty to continue investigating once probable cause had been established. But that assumed that probable cause has been established; it never was.
3. The defendants objected to an instruction that they say allowed the jury to award damages for a violation of the principle of Brady v. Maryland. The instructions that were given did no such thing, so we do not reach the question whether damages could ever bе awarded for such a violation.
4. The defendants were refused an instruction that probable cause is an absolute defense to an action for false arrest, but the instructions that were given made clear that liability for false arrest indeed depends on an absence of probable cause.
5. The defendants wanted an instruction that the decision by the prosecutor to charge Jones broke the causal chain between the conduct of the defendant officers and the injury to Jones. The instruction was properly refused; as we have seen, the defendants’ causal argument is unsound.
We turn to the plaintiff’s cross-appeal, which сhallenges the adequacy of the attorney’s fee award. The plaintiff claims that the district court erred by (1) using the contingency-fee contract between him and his lawyer to place a ceiling on the attorney’s fees and (2) deducting from the award all fees allocable to the state-law claims. The defendants do not defend the award, which indeed is indefensible, see, e.g.,
City of Riverside v. Rivera, 477
U.S. 561,
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.