Case Information
*1 Before F LAUM , K ANNE , and W OOD , Circuit Judges. W OOD , Circuit Judge.
On July 6, 1986, Karen and Dyke Rhodes were found murdered in their home in Paris, Illinois. They had been stabbed numerous times and their home had been set afire. From the ashes of these gruesome murders rises another, deeply disturbing, allegation: that police and a prosecutor conspired to frame two innocent men of these crimes, and over the course of the next two decades, state officials continued to cover up those misdeeds.
Herbert Whitlock and Gordon “Randy” Steidl were convicted of the murders in 1987 (Steidl for both deaths and Whitlock for Karen’s). They spent the next 21 and 17 years in prison, respectively, before each was finally able to convince a post-conviction court to reverse his conviction on the basis of numerous Brady violations. Whitlock and Steidl then brought suit against a variety of state officials for violations of their constitu- tional rights.
We are familiar with this case from our earlier decision in Steidl v. Fermon , 494 F.3d 623 (7th Cir. 2007), in which we affirmed the denial of a motion to dismiss filed on behalf of some of the defendants. The case then pro- gressed to discovery and most of the defendants moved for summary judgment. With minor exceptions, the district court denied those motions and set a date for trial. We are again asked to evaluate the district court’s interlocutory judgment because the defendants raise a variety of immunity defenses.
It has been nearly 25 years since Steidl and Whitlock were convicted of the Rhodes homicides. If their claims are true, a grave and nearly unbelievable miscarriage of justice occurred in Paris, Illinois. Two innocent men will have to deal with its consequences for the rest of their lives. We find no reason to delay their day in court for these matters any further. For the reasons we discuss below, we affirm the district court’s denial of each defendant’s motion for summary judgment.
I
Our earlier opinion summarizes the facts in this case. See Fermon , 494 F.3d at 626-27. For convenience and because this appeal involves defendants and a plaintiff (Whitlock) who were not parties to our earlier decision, we briefly review the material facts again here. Wherever we encounter disputed facts we will recount them, as we must, “in the light most favorable [to the plaintiffs].” Borello v. Allison , 446 F.3d 742, 747 (7th Cir. 2006).
Faced with a sensational and high-profile double homi- cide, law enforcement officials in Paris, Illinois, quickly responded. That night, Paris police officers Gene Ray and James Parrish, Illinois State Police investigator Jack Eckerty, and State’s Attorney Michael McFatridge came together to form an investigative team. In the months and years that followed, they worked closely together on the case.
A local businessman, Robert Morgan, and his associate, Smoke Burba, were early suspects. Morgan owned several local businesses, including a dog food processing company, but Morgan and Burba were also allegedly involved in transporting illegal drugs between Paris and Chicago. Karen Rhodes worked for Morgan at one of his legitimate businesses. Some of her family members and friends told the police that Karen was concerned because she had seen Morgan and Burba loading a machine gun and money into Morgan’s truck, and that she was also concerned about large amounts of unexplained cash that were coming through Morgan’s business. This could have provided a motive for Morgan and Burba, or someone associated with them, to kill the Rhodeses. The team interviewed Morgan and several of his employees, but they did not question Burba. For reasons that are unclear, they stopped pursuing this lead.
Their sights instead turned to Steidl and Whitlock. Shortly before the murders, Steidl and Whitlock had met with an FBI agent to complain about illegal gambling in Paris. At that meeting, they named local attorneys who were involved in the gambling ring. Although it is not clear whether they mentioned Michael McFatridge, the State’s Attorney, he was allegedly among those in- volved in the illegal activity. As it happened, the FBI agent in whom Steidl and Whitlock confided knew McFatridge; the two had a close working relationship.
On July 9, 1986, the Paris police purportedly received an anonymous call that Steidl and Whitlock had been making snide comments about the murders. The police brought Steidl and Whitlock into the station and inter- rogated them. Both denied involvement in the murders and gave alibis, which the police later corroborated. They were released.
Two months later, the case remained unsolved. On September 19, 1986, Ray and Parrish were on patrol when they came across Darrell Herrington, a man widely known in town for his alcohol problems. Herrington also worked for Morgan. Herrington allegedly told the police, “Whatever you do, don’t ask me about the mur- ders.” Unsurprisingly, the police took him to the stationhouse and interrogated him. Initially, Herrington told police officers that he was present during the murders and that they had been committed by “Jim and Ed.” Ray and Parrish informed Eckerty and McFatridge about this interview the next morning.
The entire investigative team met with Herrington again on September 21. At that meeting, Herrington changed his story entirely and named Whitlock and Steidl as the murderers. The police then put Herrington in seclusion for several days in a hotel. They supplied him with money and alcohol and allegedly fed him addi- tional details about the crimes. Herrington changed his story again, however. During a polygraph, he said that he did not see the murders and did not see Whitlock and Steidl committing them. Police then had Herrington hypnotized. During the hypnosis, Herrington stated that he thought his memory was a drunken nightmare. Once again, the police did not arrest Whitlock or Steidl.
Several months later, in February 1987, Debra Reinbolt contacted her probation officer, who happened to be James Parrish’s wife. Reinbolt wanted to get in touch with Parrish because he had previously asked her to serve as an informant in other cases. Reinbolt’s story is that over the course of the next several months, Parrish and Eckerty coerced her to implicate Whitlock and Steidl. Led by the police, who knew she had a history of mental illness and drug abuse, she eventually con- cocted a tale that she was at the murder scene, saw Steidl’s car there, and was given the murder weapon by Whitlock when Whitlock left the Rhodeses’ house. In response to Parrish’s urging, she even turned over a knife to him, asserting that it was the murder weapon (though it was not). In addition, the police pressured Reinbolt to say that there was a broken lamp in the Rhodeses’ bed- room and that Steidl or Whitlock had a piece of the lamp in his hand. This fact is notable because although a broken lamp was found at the scene, and the police knew about its existence, they did not know that later scientific evidence would show that the lamp had been broken after, not before, the fire. After the police secured this account from Reinbolt, they applied for a warrant to arrest Steidl and Whitlock.
Herrington and Reinbolt testified at Steidl’s and Whitlock’s trials. Their testimony and credibility was the “ sine qua non of the State’s case.” Illinois v. Whitlock , No. 4-05-0958 (Ill. App. Ct. Sept. 6, 2007). Both were convicted (although as we said, Whitlock was convicted of only Karen’s death). Steidl was sentenced to death and Whitlock to life in prison. Years later, both Her- rington and Reinbolt gave sworn statements recanting their trial testimony and alleging that the police had told them what to say. McFatridge then drafted af- fidavits retracting these recantations, and each signed the new statements. In 1996, Reinbolt gave a second, sworn and videotaped recantation. This again was followed by the state’s attorney’s taping a retraction of her recanta- tion.
In April 2000, additional Illinois State Police (ISP) officers entered the case. ISP Lieutenant Michale Callahan began reviewing the case and concluded that Herrington and Reinbolt’s trial testimony was false and that Steidl and Whitlock were innocent. Callahan detailed this informa- tion in several memoranda. As we recounted in our earlier opinion, the ISP defendants began suppressing Callahan’s findings. Fermon , 494 F.3d at 626-27. During this time, the governor’s office was considering pardoning Whitlock and Steidl, and both Whitlock and Steidl had pending post-conviction petitions in state (Whitlock) and federal (Steidl) court.
Steidl’s conviction was ultimately vacated on June 17, 2003, when the U.S. district court granted his petition for habeas corpus. The state decided not to reprosecute Steidl because of numerous Brady violations that had tainted his trial and the lack of credibility of Herrington and Reinbolt. Steidl was released from prison on May 28, 2004. Whitlock’s conviction was not set aside until September 6, 2007, when the Illinois Appellate Court overturned it. The state prepared to retry Whitlock, but ultimately it decided not to proceed. Whitlock was not released from prison until January 8, 2008.
After his release, Steidl filed a Section 1983 suit raising both federal and state law claims. When Whitlock was released, he too filed suit and the two cases were joined. After discovery, the defendants moved for sum- mary judgment. The district court granted only de- fendant Jeff Marlow’s motion for summary judgment on his federal claims; it denied summary judgment for all other claims and defendants. This appeal followed. *8 8
II
We begin with the appeal of the first group of defen- dants — Jack Eckerty, James Parrish, and Gene Ray — to [1]
whom we refer as the “police defendants.” And we start, as we must, with the question of our jurisdiction.
We have jurisdiction to consider the merits of these appeals only “to the extent that [they] turn[] on legal rather than factual questions.” Via v. LaGrand , 469 F.3d 618, 622 (7th Cir. 2006). That is because our jurisdiction is limited to “final decisions of the district courts.” 28 U.S.C. § 1291. Under the collateral-order doctrine, some decisions may be considered “final” and thus im- mediately appealable even if issued before final judg- ment. See Jones v. Clark , 630 F.3d 677, 679 (7th Cir. 2011) (discussing Cohen v. Beneficial Industrial Loan Corp ., 337 U.S. 541 (1949)). A decision denying a defendant’s motion for summary judgment on the ground of qualified or absolute immunity is such a decision. Mitchell v. Forsyth , 472 U.S. 511, 528-30 (1985). But “a defendant who appeals from a denial of qualified immu- nity must limit himself to ‘abstract issues of law.’ ” Clark , 630 F.3d at 679 (quoting Johnson v. Jones , 515 U.S. 304, 317 (1995)). He “may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id .; see also Hill v. Coppleson , 627 F.3d 601, 605 (7th Cir. 2010) (same for absolute immunity).
Before oral argument in this case, the plaintiffs requested that we dismiss the appeals for lack of jurisdic- tion, on the ground that the appeals did not raise any purely legal question. We chose not to do so at that time, preferring to consider the factual and legal questions with the benefit of a more complete understanding of the record. Nothing about our earlier decision not to dismiss the appeals is binding; we are always free to reconsider a motions panel’s jurisdictional decision. See United States v. Henderson , 536 F.3d 776, 778 (7th Cir. 2008) (“Decisions by motions panels do not ‘resolve definitively the question of our jurisdiction, and we are free to re-examine’ the question when the merits panel hears the case.” (quoting United States v. Lilly , 206 F.3d 756, 760 (7th Cir. 2000))). We take the opportunity to do so now.
A
The police defendants argue that we have jurisdiction to consider their appeals because they are “not based on the disputed factual record, but rather upon the insuffi- ciency of the district court’s ruling that denied them qualified immunity.” In their view, the district court failed to identify sufficient evidence in support of its finding that material issues of fact precluded summary judgment. Worse yet, the police defendants argue, the only evidence the court did cite was inadmissible hear- say. See F ED . R. C IV . P. 56(c)(2).
No matter how vigorously the police defendants
contend that these issues are the sort of abstract legal
questions we have jurisdiction to review at this stage of
the litigation, they are not. They are merely a “back-door
effort to contest the facts.”
Clark
, 630 F.3d at 680. The
police defendants frame their appeal as a challenge to
the sufficiency of the court’s explanation but they are
essentially arguing that there is no dispute of material
fact and that the district court failed to appreciate this
(as evidenced by its lack of citation to the record). This is
no more than a “sufficiency of the evidence” appeal that
we have no jurisdiction to consider.
Leaf v. Shelnutt
,
The defendants are correct that the district court’s
opinion in this case could have been more thorough.
We strongly encourage district courts to offer full,
reasoned explanations of their decisions, complete with
detailed citations to the record. But a district court’s
failure to do so, though regrettable, does not somehow
transform a decision based on disputes of fact into one
that contains a reviewable question of law. Our review
is
de novo
; even if a district court does not explain its
decision at all, we can “affirm summary judgment on
any basis we find in the record.”
Nature Conservancy v.
Wilder Corp. of Delaware
,
The brevity of the district court’s opinion thus raises
no legal question in and of itself that permits us to
exercise jurisdiction here. In each of the examples the
defendants give of this court’s remanding to a district
court to reevaluate summary judgment, we did so not
because the court’s reasoning was insufficient but be-
cause the district court had made some legal error
and failed to conduct a proper qualified immunity
inquiry in the first place. See,
e.g.
,
Hernandez v. Cook Cnty.
Sheriff’s Office
, 634 F.3d 906 (7th Cir. 2011) (erroneously
believed defendants had waived qualified immunity);
Green v. Carlson
,
Importantly, the district court’s opinion touches on the central points. It explicitly refers to several items — notably, the recantations of Reinbolt and Herrington — that, if true (as we must assume at this stage), provide evidence that police officers Eckerty, Parrish, and Ray coerced and manipulated those witnesses to implicate Whitlock and Steidl falsely in the murders.
The police defendants admit that the court considered the recantations, but they urge that we have jurisdiction because there is a legal question whether the recantations were inadmissible hearsay. Questions of admissibility are indeed legal questions; but they are not the sort of legal questions that are sufficiently separable from the merits so as to provide us with jurisdiction in a col- lateral-order appeal. McKinney v. Duplain , 463 F.3d 679, 690 (7th Cir. 2006). In McKinney , the defendant presented the same argument that the police defendants offer here: he argued that “the record does not support the district court’s conclusion that a genuine issue of fact exists . . . because the only evidence that supports [the plaintiff’s claim] comes from the inadmissible opinions of the prof- fered experts.” We were sympathetic to the defendant’s position in McKinney that the expert opinions there did not meet the admissibility threshold of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm ., 509 U.S. 579 (1993). Indeed, we explained that “were we to review the record . . . we would have great difficulty in finding them admissible under Daubert .” Id . But we concluded that “given the mandate of Johnson , we lack jurisdiction to conduct such a review of the record.” Id. ; see also Ellis v. Washington Cnty. , 198 F.3d 225 (6th Cir. 1999) (holding that there was no jurisdiction under Johnson to review whether denial of summary judgment was based on inadmissible hearsay).
B
If we are mistaken about the jurisdictional issue, we add that we see serious problems with the police defen- dants’ position. Although Herrington’s and Reinbolt’s recantations were both out-of-court statements, it is likely that each would be admissible — Herrington’s because his death makes him unavailable, F ED . R. E VID . 804(a)(4), and his recantation is a statement that exposes him to perjury charges, F ED . R. E VID . 804(b)(3), and Reinbolt’s because she is a named defendant in Whitlock’s case and thus a party-opponent, F ED . R. E VID . 801(d)(2). In both cases, if Reinbolt were called to testify at trial, her sworn recantation would probably be ad- missible as a prior statement by a witness. F ED . R. E VID . 801(d)(1). If her testimony at trial is inconsistent with the recantation, the recantation would be admissible under Rule 801(d)(1)(A). On the other hand, if her testi- mony at trial is consistent with the recantation, it may still be admissible under Rule 801(d)(1)(B) to rebut a claim that she had recently fabricated the recantation.
Once admitted, Herrington’s statement alone precludes summary judgment by supporting plaintiffs’ contention that the police defendants violated their right not to have police officers manufacture false evidence. See Dominguez v. Hendley , 545 F.3d 585, 589 (7th Cir. 2008) (“There was and is no disputing that such conduct [in- cluding fabricating evidence] violates clearly established constitutional rights.”). The police defendants admit that “fabricating, withholding, and suppressing material ex- culpatory and impeaching evidence is unconstitutional.” During the police defendants’ first interrogation of Herrington on September 19, 1986, he initially identified “Jim and Ed” as the perpetrators of the murders. The police defendants assert that he changed his mind and then fingered Whitlock and Steidl during that Septem- ber 19 interrogation, but Herrington has stated that he did not change his story until a few days later. During that time (and at other times) Herrington said that police defendants gave him alcohol and told him details about the murders that he should include in his testimony: that Steidl possessed a fillet knife; that Herrington knew where the bodies were positioned; and that Karen’s face was covered by a pillow. In his sworn recantation, he said that “they told me everything to say” and “ain’t none of it true.” The police defendants suggest that the fact that State’s Attorney McFatridge was aware of this conduct would have discharged their Brady obligations. But police must disclose exculpatory evidence to a “competent authority.” Fermon , 494 F.3d at 630. It is not likely that the police may take shelter behind a prosecutor who is conspiring with them to fabricate false evidence against innocent suspects.
Reinbolt’s recantation supplies additional grounds to conclude that the police defendants knew of, and failed to disclose, exculpatory evidence. In her sworn statement she recounted how Parrish coerced her to produce the (false) murder weapon. She reported that he became angry, that he threatened violence, that Parrish and Eckerty badgered her and pressured her to say things that they wanted her to say, and that at times they supplied her with alcohol. Defendant Parrish has admitted that Reinbolt told the police defendants as many as five different stories about the night of the murders before trial, and as many as six after the trial. ISP investigator Marlow, a defendant in this case, con- cluded after reviewing the record that Reinbolt’s and Herrington’s stories were the product of “blatant fabrica- tion” and were “created.”
With all of that said, our best judgment is that we lack jurisdiction to consider the police defendants’ appeals because none of the issues they raise are legal questions sufficiently separable from the merits. Even if we were to address the merits of their appeal, this limited review of the record shows that there is enough admissible evidence supporting the plaintiffs’ claim to create a dispute of material fact.
III
We next turn to the appeal of Michael McFatridge, the
original prosecuting attorney. McFatridge’s appeal raises
several questions distinct from those raised by the police
defendants because, as a prosecutor, McFatridge enjoys
absolute immunity for “acts undertaken . . . in the course
of his role as an advocate for the State.”
Buckley v.
Fitzsimmons
,
We begin again with the question of our jurisdiction. McFatridge is accused of violating Whitlock’s and Steidl’s constitutional rights during three different periods: (1) before February 19, 1987, the date when he applied for arrest warrants; (2) between February 19, 1987, and Decem- ber 31, 1991, the date he stepped down from the State’s *16 16
Attorney’s office; and, (3) the time from his resignation [2] until Whitlock’s and Steidl’s convictions were reversed.
We can quickly dispose of the second and third periods.
The district court held that McFatridge was shielded by
absolute immunity during the second period because,
once arrest warrants were issued, he was acting as an
advocate for the state.
Fields v. Wharrie,
672 F.3d 505,
510 (7th Cir. 2012);
Coppleson
,
For a different reason, we lack jurisdiction over McFatridge’s appeal with respect to the third period: disputes of material fact remain. McFatridge argues that he cannot be held liable under Section 1983 for his actions during this period because he was no longer a state official and thus was not acting under “color of law.” Plaintiffs retort that McFatridge was still acting under color of law because he acted in concert with state actors when he made public statements during their post-conviction and clemency proceedings that con- tinued to violate their constitutional rights. Everything [3] here depends on McFatridge’s interactions with others, and those facts are disputed. We have no jurisdiction to consider this factual dispute on an interlocutory appeal. We note, however, that in order to hold McFatridge liable for his post-resignation conduct under 42 U.S.C. § 1983, plaintiffs will eventually have to show that McFatridge acted under “color of law,” by “jointly engag[ing] with state officials in the prohibited action.” Adickes v. Kress , 398 U.S. 144, 152 (1970). This is a high standard. “[T]here must be evidence of a concerted effort between a state actor and [a private] individual.” Fries v. Helsper , 146 F.3d 452, 457 (7th Cir. 1998) (emphasis in original); see also Filarsky v. Delia, 132 S. Ct. 1657 (2012) (holding that a private attorney retained by a city to investigate wrongdoing is entitled to assert qualified immunity). They would also need to address one of the points that was critical in Fields : how to surmount the burden of showing that the original prosecutor some- how ceased to function in that capacity after he was officially removed from the case. Now is not the time to address those issues in our case; we merely flag them for the future.
This brings us to the heart of McFatridge’s appeal:
whether at this time he is entitled to prevail on his claim
of absolute or qualified immunity for his conduct during
the first period, before the arrest warrant issued. He
has asserted that he is entitled to absolute immunity based
on
Imbler v. Patchman
,
A. Absolute Immunity
The district court rejected McFatridge’s assertion of absolute immunity because, in its view, the record con- tained “evidence about McFatridge’s involvement with the police during the investigation phase of the cases that could support the conclusion that he was acting in an investigative mode.” Specifically, the district court held that “manufacturing [false evidence] and directing the police officers . . . in their treatment and pursuit of the witnesses Herrington and Reinbolt; and directing the police to abandon any inquiry about other suspects” were actions taken in an investigative capacity. Thus, using the functional test of Buckley v. Fitzsimmons , 509 U.S. 259 (1993), it concluded that McFatridge was protected by only qualified, not absolute, immunity.
McFatridge argues that this holding lacks adequate factual foundation: he says that the court erred by “focus[ing] on Plaintiffs [ sic ] theories and accusations of wrongdoing which lack factual support.” He urges that if the court had considered only admissible facts and allegations supported by the record, it would have realized that McFatridge “never engaged in any inves- tigative activities” and thus was entitled to absolute immunity.
These arguments take issue solely with the district
court’s analysis of the facts, not with its application of
the law. This interlocutory appeal is therefore not the
proper place for McFatridge to challenge those decisions.
We recently addressed a similar situation in
Hill v.
Coppleson
,
McFatridge argues that even if probable cause did not arise until February 19, we should find that his actions during the pre-arrest warrant phase were not investiga- tive. He contends that he was merely overseeing the investigation to try to build a case for a future trial. But the Supreme Court has eschewed bright-line rules based solely on the status or job description of the pros- ecutor. It has instead said that “[a] prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retro- spectively described as ‘preparation’ for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.” Buckley , 509 U.S. at 276. We made a similar observation in Fields, when we said that “absolute immunity doctrine focuses on whether the nature of the action is prosecutorial, not on the fact that the actor is a prosecutor.” 672 F.3d at 514.
The fact that McFatridge eventually proceeded with
this prosecution does not wipe away his involvement in
the investigation at its earliest stages. He went to the
scene of the crime and the hospital shortly after the
murders, long before probable cause supported any
arrests or anyone had sought his advice as a lawyer.
Under the functional line the Supreme Court drew in
Buckley
, a prosecutor does not enjoy absolute immunity
before he has probable cause. 509 U.S. at 274; see
Fields,
In the end, we conclude just as we did in Hill that we cannot resolve the absolute immunity question for McFatridge’s conduct during the first period without resolving the factual dispute over the moment when probable cause developed. If McFatridge took no action related to the investigation before that point and became involved only after he had put on his prosecutorial hat, then he will be entitled to absolute immunity. If, on the other hand, plaintiffs can prove that he fabricated evidence before probable cause arose, then absolute immunity is off the table. We conclude that we have no jurisdiction over this aspect of the appeal.
Before moving on to the issue of qualified immunity, we pause to explain why we believe that nothing in what we have said about absolute immunity conflicts with our recent decision in Fields. The underlying facts in Fields were similar to those before us, but the procedural setting differed considerably. There, plaintiff Nathan Fields had been convicted of two murders in 1986; some 25 years later, he was exonerated, and he sued two assistant state’s attorneys (among others) for damages on the theory that they “induced false testi- mony during his trial and subsequent retrial, suppressed the compromised nature of this testimony and its acquisi- tion from him, and denied him due process.” 672 F.3d at 508. The appeal reached our court from the district court’s decision to deny absolute immunity to the two prosecutors. We reversed, with the following findings:
(1) . . . [Assistant State’s Attorney] Wharrie is entitled to absolute immunity for his alleged solicitation of false testimony from Earl Hawkins after Fields’ origi- nal trial, as well as for his alleged suppression of its falsity; and (2) . . . Fields failed to state a claim against [Assistant State’s Attorney] Kelley with respect to his alleged coercing Randy Langston’s testimony.
Id.
Context matters in these cases, as Fields acknowledged, 672 F.3d at 512, and the most conspicuous difference between our case and the one in Fields is the alleged role played by the prosecutor. Fields argued that Wharrie suppressed the fact that he asked Hawkins to lie after Fields was already convicted, in the event of a potential retrial. If true, that would be reprehensible, but the law is clear that absolute immunity applies to a prosecutor’s decisions about evidence and her implementation of her Brady responsibilities. It was in that setting that we re- marked that Brady and Giglio obligations are func- tionally prosecutorial. Id. at 512. We did not say, nor did we mean, that Brady and Giglio exhaust the possible issues that might arise under the due process clause. Where a litigant presents a due process claim — Brady , Giglio , or otherwise — the question of immunity turns on the capacity or function that the prosecutor was perform- ing at the time of the alleged wrongful conduct. That is why we noted more recently in Lewis v. Mills, No. 11-2012, 2012 WL 1372110 (7th Cir. April 20, 2012), that “a showing that a prosecutor investigated and fabricated evidence against a target would automatically defeat absolute prosecutorial immunity, even if that target was later brought to trial.” Id. at *5 (emphasis added). In short, because the record in Fields indicates that the two prosecutors there had undertook all of the challenged acts while acting in a prosecutorial role, this court reversed the district court’s decision denying immunity. The focus of our case, as we have narrowed it, is exclusively on the period before probable cause sup- ported the prosecution, when a prosecutor is unquestion- ably acting in an investigative role. Because there are factual issues that must be resolved before we can pin- point that moment, it is not suitable for resolution at this time.
B. Qualified Immunity
The absolute immunity inquiry is not all that McFatridge is presenting; he also challenges the district court’s decision refusing to find that he has qualified immunity from suit. An official is entitled to qualified immunity for conduct that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. The Supreme Court has held that two central questions must be addressed in the course of determining whether qualified immunity is available: whether the plaintiff has alleged a deprivation of a constitutional right at all, and whether the right at issue was clearly established at the time and under the circumstances presented. See Pearson, 555 U.S. at 232. Courts may take up those questions in whatever order seems best for the case at hand.
As the Supreme Court suggested in Saucier v. Katz, 553 U.S. 194 (2001), we will take up first the question whether the plaintiffs have identified a violation of their constitutional rights, and we will then consider whether the law was clearly established such that any reasonable person should have known what was required.
i
We have consistently held that a police officer who
manufactures false evidence against a criminal defendant
violates due process if that evidence is later used to
deprive the defendant of her liberty in some way. In
Jones v. City of Chicago
, we upheld a jury’s imposition
of damages against a variety of defendants, including
police officers and a crime lab technician, who “were
determined to put away George Jones regardless of
the evidence.”
The only question is whether a prosecutor who is acting in an investigatory capacity is subject to rules that are any different. We think not. A prosecutor who manufactures evidence when acting in an investigatory role can cause a due process violation just as easily as a police officer. The fact that the prosecutor who introduces the evidence at trial cannot be liable for the act of introduction, whether it is the same prosecutor who fabricated the evidence or a different prosecutor, is beside the point. It would be “incongruous,” Burns v. Reed , 500 U.S. 478, 495 (1991), to hold a police officer liable for fabricating evidence but hold that the prosecutor has not committed any violation for taking the same action in the same capacity. [4]
In fact, the whole point of the Supreme Court’s rule in
Buckley
is that the police and investigating prosecutors
are subject to the same constraints. McFatridge pushes
back against that conclusion primarily by arguing that
the allegations against him fall short because of his
later
prosecutorial role. He cites this court’s decision in
Buckley v. Fitzsimmons
,
In Buckley , the Supreme Court assumed that the answer to that question is yes in order to hold that prose- cutors have the same immunity as police officers for such conduct. See 509 U.S. at 274 n.5. The Court was poised to address this question more directly in McGhee v. Pottawatamie Cnty. , 547 F.3d 922 (8th Cir. 2008), cert. granted , 129 S. Ct. 2002 (2009), in which the Eighth Circuit squarely held that this conduct violates due process. But the parties settled after oral argument and the Court dismissed the case without an opinion. See 130 S. Ct. 1047 (2010). We thus focus on earlier Supreme Court case law addressing a prosecutor’s creation and use of perjured testimony.
In
Mooney v. Holohan
,
McFatridge’s error is to assume that because a pros-
ecutor acting in a prosecutorial capacity cannot be liable
for the act of introducing perjured testimony (because
of the protection of absolute immunity), he cannot be
liable while acting in an investigatory capacity for
creating false testimony. The only wrong, he argues, is
the one that occurred at trial and thus any fabrication
in which he participated is beyond the reach of the law.
This argument ignores the lessons of
Mooney
and
Napue.
McFatridge is correct that the alleged constitutional
violation here was not complete until trial. That is
because a violation of the Fourteenth Amendment does
not occur unless a person is “deprive[d] . . . of life, liberty,
or property, without due process of law.” U.S. C ONST .
amend. XIV. As we explained in
Buckley IV
, if an officer
(or investigating prosecutor) fabricates evidence and
puts that fabricated evidence in a drawer, making no
further use of it, then the officer has not violated due
process; the action did not cause an infringement of any-
one’s liberty interest. 20 F.3d at 795; see also
id.
at 796
(“Just as there is no common law tort without injury,
there is no constitutional tort without injury.”). In other
words, in such a case the plaintiff could not establish one
of the necessary elements of a constitutional tort: that the
officer’s act (fabrication) caused any injury. See
McCree
v. Grissom
, 657 F.3d 623, 624 (7th Cir. 2011) (dismissing
Section 1983 suit for failure to state a claim where
plaintiff “did not allege an injury”) (per curiam). This
principle is universally recognized among circuits that
have considered this question. See,
e.g., Zahrey v. Coffey
, 221
F.3d 342, 348 (2d Cir. 2000) (“The manufacture of false
evidence, ‘in and of itself,’ . . . does not impair anyone’s
liberty, and therefore does not impair anyone’s constitu-
tional right.”);
Landrigan v. City of Warwick
,
Here, the plaintiffs have properly alleged that the act
of fabrication caused a harm to them: the fabricated
evidence, because it was introduced against them at
trial, was instrumental in their convictions. Section 1983
imposes liability on every official who “subjects,
or causes
to be subjected
, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983 (emphasis
added). This provision must be “read against the back-
ground of tort liability.”
Monroe v. Pape
, 365 U.S. 167,
187 (1961). Causation is a standard element of tort
liability, and includes two requirements: (1) the act must
be the “cause-in-fact” of the injury,
i.e
., “the injury
would not have occurred absent the conduct”; and (2) the
act must be the “proximate cause,” sometimes referred
to as the “legal cause,” of the injury,
i.e
., “the injury is of a
type that a reasonable person would see as a likely
result of his or her conduct.”
Ciomber v. Cooperative Plus,
Inc
.,
The actions of an official who fabricates evidence that later is used to deprive someone of liberty can be both a but-for and proximate cause of the due process violation. Without the fabrication, the prosecuting attorney would have had no tainted evidence to introduce at trial. And in a trial where the fabricated evidence is the crux of the case (as Whitlock and Steidl allege is the case here), a plaintiff could show that the fabrication was a but-for cause of his conviction.
We have found fabrication to be a proximate cause of
the violation in comparable cases. This is why we
hold police officers who fabricate evidence liable
for the liberty deprivation that occurs later when the
fabrication is used.
Jones
, 856 F.2d at 994 (calling
the police officer’s role “instrumental” in causing the
violation). In
Jones
we explained that “[i]n constitu-
tional-tort cases as in other cases, ‘a man [is] respons-
ible for the natural consequences of his actions.’ ” 856
F.2d at 993 (quoting
Monroe
,
That a prosecutor has absolute immunity for conduct
taken in his advocacy role is beside the point for this
purpose: “there is no common-law tradition of immunity
for [investigatory conduct], whether performed by a
police officer or prosecutor.”
Buckley
,
The causal link between a police officer’s fabrication and the victim’s injury may be broken if that police officer tells a prosecuting attorney before trial about the fabrication. We noted in Buckley IV that the officers in Jones would not have been liable “if the prosecutors had known the truth and proceeded anyway” because “then the immunized prosecutorial decisions would be the cause of the injury.” 20 F.3d at 797; see also Newsom v. McCabe , 256 F.3d 747, 752 (7th Cir. 2001) (explaining the converse: “If officers are not candid with prosecutors, then the prosecutors’ decisions — although vital to the causal chain in a but-for sense — are not the important locus of action.”). In the hypothetical scenario from Jones , causal responsibility for the violation lies with the prosecutor who chooses to put on the fabricated evidence, not with the fabrication itself, because “[i]f the prosecutors had known” of the fabrication they could (and should) “have dropped the charges.” Jones , 856 F.2d at 993.
Another way of describing this break in the causal chain
is that a prosecutor’s action in putting evidence on,
known to be fabricated, may in some circumstances be a
superseding or supervening cause of the violation. See
R EST . 3 D T ORTS § 34;
cf. Malley v. Briggs
,
It is true that
Buckley IV
also dealt with a claim against
a prosecutor who collected evidence as an investigator
and then went on to use that evidence at trial, and we
did not permit that claim to go forward. But the alleged
constitutional violations in
Buckley IV
were different
from those here and thus do not control our analysis. Here
the plaintiffs allege that the investigator-prosecutor
fabricated evidence, and from a common-sense stand-
point, the only reasonable explanation for this act
was to make that evidence available for use in later pro-
ceedings. The plaintiff in
Buckley IV
, in contrast, sought
to hold prosecutors
liable for “repeatedly
inter-
rogat[ing]” two witnesses and “pa[ying] them for state-
ments inculpating [the plaintiff],”
We conclude, in summary, that the plaintiffs have asserted claims that, if proven, would demonstrate a violation of their constitutional rights, and thus they have satisfied the first step of Saucier and Pearson.
ii
We turn therefore to the second issue, which is the one on which the district court focused: whether the “right to due process that the plaintiffs claim” was clearly established before February 19, 1987, the date of their conviction. The court quoted Mooney to show that as early as 1935 it was clearly established that a state’s “presentation of testimony known to be perjured . . . to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimida- tion.” 294 U.S. 103, 112-13 (1935). The court noted that “McFatridge, as a State’s Attorney, must be held to have known such a basic concept.”
The district court did not define this “basic concept.” Perhaps this is because the idea that an investigating prosecutor (or any other state actor) should know not to fabricate evidence in order to frame a suspect is so elementary that the court felt that it needed no further explanation. In order for us to evaluate whether the right that plaintiffs identified was clearly established, however, “it is important to determine the precise claim” at issue. Burns , 500 U.S. at 487. Mooney is not directly on point; it concerned a due process violation that occurred at trial (the introduction of perjured testi- mony), as opposed to the rather different question whether an official’s creation of false evidence while an investigation is ongoing violates due process. As we just explained, we believe that the clear implication of Mooney and its progeny is that a prosecutor’s creation of false evidence also violates due process, so long as a plaintiff can show the fabrication actually injured her in some way (and can get beyond absolute immunity).
Significantly, all courts that have directly confronted
the question before us agree that the deliberate manu-
facture of false evidence contravenes the Due Process
Clause.
E.g.
,
Devereaux
, 263 F.3d at 1074-75 (recognizing
a “due process right not to be subjected to criminal
charges on the basis of false evidence that was
deliberately fabricated by the government” and noting
that because this “proposition is virtually self evident, we
are not aware of any prior cases that have expressly
recognized this specific right”);
Brown v. Miller
, 519 F.3d
231, 237 (5th Cir. 2008) (“We therefore hold that
the deliberate or knowing creation of a misleading and
scientifically inaccurate serology report amounts to a
violation of a defendant’s due process rights, and that a
reasonable laboratory technician in 1984 would have
understood that those actions violated those rights.”).
McFatridge points to no contrary authority. It is of no
moment that the Supreme Court has never expressly
held that this conduct violates the Constitution; it is
enough that officials have “fair and clear warning” that
their conduct is prohibited under earlier precedents.
United
States v. Lanier
,
iii
Our decision to deny qualified immunity under the
unusual circumstances presented by this case should not
deter prosecutors from engaging in legitimate investiga-
tory work. Qualified immunity remains an important
shield that protects “all but the plainly incompetent or
those who knowingly violate the law.”
Malley
, 475 U.S.
at 341. Furthermore, the plaintiff bears the burden of
alleging in the complaint “enough factual matter” to
supply “plausible grounds” to infer that absolute immu-
nity has not yet attached, that the prosecutor knowingly
fabricated evidence, that the evidence was later used
against the plaintiff at her criminal trial, and that it was
material enough to have caused a wrongful conviction.
Bell
Atlantic Corp. v. Twombly
, 550 U.S. 544, 556 (2007). In
addition, courts “presume that public officials have
properly discharged their official duties.”
Banks v. Dretke
,
Before closing this part of our discussion, we
emphasize that we have dealt with the facts in the light
most favorable to the opponents of summary judgment —
Whitlock and Steidl. McFatridge is free to argue, and a
jury free to decide, that he did not do the things that
Whitlock and Steidl allege. He may also argue that
even if he did fabricate evidence, the plaintiffs cannot
establish causation. He may try to convince a jury that
the plaintiffs would have been convicted regardless of
the fabricated evidence. See,
e.g.
,
Jones
,
This decision also controls
the disposition of
McFatridge’s challenges to plaintiffs’ state claims. In
Illinois, immunity is either the same as, or harder to
obtain, than it is in a federal court. See
White v. City of
Chicago
,
IV
We finally reach the appeals of our last group of defen- dants: Illinois State Police officials Charles E. Brueg- gemann, Diane Carper, Steven M. Fermon, Kenneth Kaupas, Andre Parker, and Jeffrey Marlow (we will refer to this group as the “ISP defendants”). The ISP defendants have settled with Steidl, but they remain in the case as defendants in Whitlock’s case. Our discussion in this section thus focuses exclusively on Whitlock. In addition, the district court granted summary judgment on Marlow’s federal claims. He remains in the suit as a defendant on only the state law claims. The ISP defendants contest the district court’s decision that they are not entitled to qualified immunity. We have jurisdiction over those questions and address each in turn. Like the police defendants, they challenge the district court’s evaluation of disputes of material fact. That means that these appeals are not properly before us.
A
Focusing on the first inquiry for qualified immunity
purposes — whether a constitutional right was allegedly
violated — the ISP defendants begin with a challenge to
this court’s earlier holding in
Steidl v. Fermon
that “the
Brady
line of cases has clearly established a defendant’s
right to be informed about exculpatory evidence through-
out the proceedings, including appeals and authorized
post-conviction procedures, when that exculpatory evi-
dence was known to the state at the time of the original
trial.” 494 F.3d at 625. Not only do they take issue with
our earlier decision that such a right was clearly estab-
lished; they go further and argue that no such right
exists in the first place. They believe this result is
required by
Osborne v. District Attorney’s Office for the
Third Judicial District
, in which the Supreme Court
rejected the proposition that the “Due Process Clause
requires that certain familiar preconviction trial rights
[like
Brady
] be extended to protect [a defendant’s]
postconviction liberty interest.”
The district court correctly rejected this argument: the
ISP defendants read
Osborne
too broadly.
Osborne
rejected
a claim that Alaska’s procedures governing the access
of defendants to post-conviction DNA testing violated
due process. Critically, the evidence that Osborne sought
was not exculpatory evidence that had been in existence
at the time of his original trial. Instead, he was seeking
the opportunity to collect and submit entirely new, and
he hoped exculpatory, evidence. The Court rejected the
argument that
Brady
required the state to allow the defen-
dant access to these new tests because the defendant
had already been “proved guilty after a fair trial.” 129 S.
Ct. at 2320. But
Brady
continues to apply to an assertion
that one did not receive a fair trial because of the con-
cealment of exculpatory evidence known and in existence
at the time of that trial. We explicitly recognized this
distinction in our earlier opinion. See
Fermon
,
The ISP defendants cite only two cases in support of
their argument that
Osborne
has worked a significant
change in
Brady
doctrine, but neither is precedential
and both dealt with evidence that did not exist at the time
of the original trial. See
Galatolo v. United States
, 394
F. App’x 670, 672-73 (11th Cir. 2010);
Barnes v. Hennepin Co.
Dist. Atty’s Office
,
The ISP defendants also contend that Whitlock
and Steidl have no right to exculpatory evidence at
post-conviction or clemency proceedings, but they misun-
derstand the
Brady
right. It is a trial right; the reason
there is a continuing obligation on the state to disclose
evidence is not because of some special right associated
with post-conviction or clemency but because “the taint
on the trial that took place continues throughout the
proceedings, and thus the duty to disclose and allow
correction of that taint continues.”
Fermon
,
Although the district court did not address any of the ISP defendants’ other arguments in support of immunity, we can quickly dispose of them. First, they assert that plaintiffs cannot raise a Brady claim because, in the final analysis, they prevailed in their criminal proceeding. We have suggested, without squarely holding, that “a trial that results in an acquittal can never lead to a claim for a Brady violation because the trial produced a fair result, even without the exculpatory evidence.” Mosley v. City of Chicago , 614 F.3d 391, 397 (7th Cir. 2010). But even if this is correct, it has nothing to do with Whitlock’s and Steidl’s cases. Both were convicted after trials that, years later, were acknowledged to have been riddled with constitutional violations. See Illinois v. Whitlock , No. 4-05-0958 (Ill. App. Ct. Sept. 6, 2007) (“The cumulative prejudicial effect of the ineffective assistance and the Brady violations requires a new trial. . . . Reinbolt’s and Herrington’s credibility was the sine qua non of the State’s case.”). The fact that Whitlock and Steidl were ultimately able to have their convictions set aside does not mean that they are “prevailing criminal defendants” in the sense that Mosley used the term. To hold other- wise would be a perverse application of that doctrine.
The ISP defendants also complain that their failure
to reinvestigate the Rhodes homicides is not a due
process violation. If this were the claim plaintiffs were
making, the ISP defendants would be correct. There is
no affirmative duty on police to investigate. See,
e.g., Town of Castle Rock v. Gonzales,
545 U.S. 748
(2005);
Linda R.S. v. Richard D.,
B
The ISP defendants make a variety of additional argu- ments that boil down to an assertion that they are entitled to immunity because the undisputed evidence in the record demonstrates that they did not violate Whitlock’s Brady rights. They urge that the case against them is only about the disclosure of a few memos that were turned over to Whitlock and various state prosecutors (at different points in time). That disclosure was all that was needed to comply with whatever obligation they had, in their view. For good measure, they add that the memos do not contain any exculpatory evidence that was un- known to Whitlock and that Whitlock has not shown that he was prejudiced by their failure to turn over the memos.
These arguments lie beyond the scope of this appeal. Whether the ISP defendants met their Brady obligations is an argument going to the merits. It may prove to be a good defense, but it is “unrelated to immunity (a doctrine designed to protect public officials from the effects of guessing wrong in a world of legal uncertainty) and thus, Johnson held, not a proper ground of interlocutory appeal.” Anderson v. Cornejo , 355 F.3d 1021, 1022 (7th Cir. 2004).
In any event, the record by no means compels the conclusion that these defendants discharged their Brady obligations. The ISP defendants focus on a few memos. But the case cannot be solely about these memos, because they were created after Whitlock’s and Steidl’s original trials. As we have stressed, the continuing Brady obliga- tion that applies to the ISP defendants covers only evidence that existed at the time of the original trials. This does not foreclose Whitlock’s suit, because we do not understand Whitlock’s claim to be limited to these par- ticular memos. The memos summarize some of the ex- culpatory evidence that was known to the ISP defendants at the time of trial. It is the underlying evi- dence, which the memos discuss, that is at issue. And even if the ISP defendants disclosed some or all of this evidence at a late date to Whitlock and the state prosecu- tors, Whitlock would still have a claim that their earlier nondisclosure was a Brady violation that caused him prejudice by delaying his ability to correct the taint on his original trial.
C
Finally, we address the ISP defendants’ arguments that they are immune from suit on Whitlock’s state law claims. The parties dispute whether we have jurisdiction to consider this question, because Illinois courts do not provide for interlocutory appeals on the basis of immunity. Illinois’s practice in this regard, however, does not control our jurisdiction. We have jurisdiction so long as Illinois’s immunity is immunity from suit, rather than immunity from damages. See Aspen Orthopedics & Sports Medicine LLC v. Aspen Valley Hosp. Dist. , 353 F.3d 832 (10th Cir. 2003) (“Every circuit to address this issue . . . applies the same analysis . . . . [W]e have subject matter jurisdiction to hear appeals of orders denying motions to dismiss where the motions are based on im- munity from suit. State law governs the scope of the immunity at issue.”). The Illinois Supreme Court has not squarely addressed whether state law immunity is immunity from suit, rather than damages, but that court has implied that it is immunity from suit. See Blair v. Walker , 349 N.E.2d 385, 387 (Ill. 1976) (adopting official immunity because officials “should be able to carry out [their] daily responsibilities free from concern that [their actions] will result in civil damage suits”).
The ISP defendants suggest that we certify this question
to the Illinois Supreme Court, but we have no reason to
bother that court because the question is not one that
might be determinative. See I LL . S. C T . R ULE 20(a). Here,
even if the consequence of that court’s decision were
favorable to our jurisdiction, the defendants’ argument
would not succeed. Illinois law grants officials absolute
immunity for torts arising out of the scope of their duties.
Harris v. News-Sun
,
The ISP defendants’ argument that the state claims are barred on the ground of sovereign immunity fails for a similar reason. If the ISP defendants were being sued for acting in the scope of their duties, the claim could be construed as a suit against the State of Illinois rather than one against the ISP defendants as individuals. But Whitlock alleges that the ISP defendants violated his constitutional rights. “[W]hen an officer of the State commits an unconstitutional act or violates a statute, the suit is not against the State, because the State is presumed not to violate its own constitution or enactments.” Turpin v. Koropchak , 567 F.3d 880, 884 (7th Cir. 2009). The ISP defendants cannot use the doctrine of sovereign immunity to avoid facing suit on Whitlock’s state law claims.
* * *
We D ISMISS the appeal for want of jurisdiction insofar as it pertains to the cases against police defendants Eckerty, Parrish, and Ray. Plaintiffs failed to take a cross- appeal challenging the district court’s recognition of McFatridge’s absolute immunity for the second stage of the proceedings, and so that issue is not properly before us. To the extent that McFatridge urges that he is entitled to absolute immunity for stage three, we conclude that disputed issues of fact remain that preclude a definitive resolution. The same is true for his claim to absolute immunity during stage one. Insofar as he asserts an entitlement to qualified immunity for stages one and three, we A FFIRM the district court’s rejec- tion of that claim. Finally, we A FFIRM the district court’s denial of qualified immunity for the ISP defendants. 5-30-12
Notes
[1] On the eve of oral arguments, Steidl reached a settlement with Eckerty. Eckerty thus remains in this case only as a defendant in Whitlock’s suit.
[2] The district court’s opinion refers to this date as December 31, 2001. This must be a typo, as the record reflects that the actual date was December 31, 1991.
[3] We note that this is quite different from the situation we faced in Fields v. Wharrie, 672 F.3d 505 (7th Cir. 2012), where the prosecutors remained in office but had differing degrees of responsibility for that particular case.
[4] Our comment in Fields that there might be a distinction between the liability of a police officer who fabricates evidence and that of a prosecutor who fabricates or suppresses evidence must once again be understood against the backdrop of the facts there. See 672 F.3d at 514. Once the prosecutor ceases his investigatory work and acts in a prosecutorial capacity, he is entitled to absolute immunity even if the police officers who are working side by side with him may invoke only qualified immunity.