Jаmes Newsome, Plaintiff-Appellee, v. John McCabe and Raymond McNally, Defendants-Appellants.
No. 00-2326
United States Court of Appeals For the Seventh Circuit
Argued September 25, 2000--Decided July 11, 2001
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 7680--Paul E. Plunkett, Judge.
OPINION
Easterbrook, Circuit Judge. James Newsоme spent 15 years in prison for murder. The killing and associated crimes (armed robbery and armed violence) occurred in October 1979. Newsome was arrested in November 1979 when police, who were holding him on other charges, noted his resemblance to a composite sketch of the person who in the course of a robbery shot and killed Mickey Cohen. Newsome was convicted of that crime in September 1980, see People v. Newsome, 110 Ill. App. 3d 1043, 443 N.E.2d 634 (1st Dist. 1982); and his efforts to obtain collateral relief were unavailing until December 1994, when a state court vacated his conviction. In 1995, after the State‘s Attorney declined to put Newsome on trial a second time, the Governor of Illinois concluded that Newsome is innocent and pardoned him. Newsome then filed this suit under
The district judge granted summary judgment in favor of James W. Eckner, Bruce James, and David Dioguardi, ruling that the evidence of record could not be read to imply that they did anything wrong. 2000 U.S. Dist. Lexis 5678 (N.D. Ill. Apr. 25, 2000), reconsideration denied, 2000 U.S. Dist. Lexis 6929 (May 16, 2000). But the court thought that the evidence would allow a jury to find that the other two defendants, John McCabe and Raymond McNally, failed to alert the prosecutors that Newsome‘s fingerprints did not match those they had obtained at the scene of the crime. Moreover, a jury could find that McCabe and McNally encouraged two witnesses to select Newsome from a lineup--which the witnesses did, forming a vital link in the process that led to Newsome‘s conviction as Cohen‘s killer--yet withheld from the prosecutors information about their coaching of the witnesses and the fact that these witnesses earlier selected pictures from a book of mug shots that did not contain Newsome‘s photo. The judge concluded that these events could support damages for malicious prosecution, which the judge viewed as a constitutional tort when:
- the requirements of a state law cause of action for malicious prosecution are satisfied;
- a state actor committed the malicious prosecution; and
- plaintiff was deprived of liberty.
2000 U.S. Dist. Lexis 5678 at *31-32. The judge thought that all three of these ingredients have been satisfied because, taking the facts in the light most favorable to Newsome and disregarding all testimony derived from the tainted identificatiоns, there was not even
McCabe and McNally have filed this interlocutory appeal to argue for immunity, as they are entitled to do, see Behrens v. Pelletier, 516 U.S. 299 (1996), but the first question on the tablе is whether Newsome has made out a violation of constitutional rights--for we cannot call a constitutional right “clearly established” when the defendants acted (here in 1979 and 1980) if it has never been established at all. See Wilson v. Layne, 526 U.S. 603, 609 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999). Defendants make a strong pitch regarding point (1) of the district court‘s list. They insist thаt Newsome has not made out “the requirements of a state law cause of action for malicious prosecution” because neither McCabe nor McNally prosecuted Newsome or was a party to the case. The People of the State of Illinois (through the State‘s Attorney), not police officers, brought the criminal prosecution. This contention has led to a complex debate about the extent to which, under Illinois law, a complaining witness can be deemed a party for purposes of the tort of malicious prosecution. Our opinion in Logan v. Caterpillar, Inc., 246 F.3d 912, 921-26 (7th Cir. 2001), explores some of these subtleties. But the answer doesn‘t matter unless there is a constitutional tort called “malicious prosecution,” a subject not fully resolved in Albright v. Oliver, 510 U.S. 266 (1994), and this constitutional tort applies to state actors the same rules state courts apply to private actors, thus using the Constitution to enforce state law. Recall the district judge‘s formulation: the plaintiff must show all requirements of a tort claim under state law, plus a deprivation of liberty, plus the defendant‘s status as a state actor (this last ingredient found in
Whether there is a constitutional right not to be prosecuted without probable cause--the question that the district court saw through the lens of malicious prosecution--was addressed and answered in the negative by seven Justices in Albright. The problem is that they did not agree on the reason. Four Justices concluded that probable cause is the exclusive domain of the
The district judge is hardly to be faulted for using a tripartite formula for a constitutional tort of malicious prosecution. This court has articulated it at least four times since Albright. See Cervantes v. Jones, 188 F.3d 805, 809 (7th Cir. 1999); Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998); Washington v. Summerville, 127 F.3d 552, 558-59 (7th Cir. 1997); Reed v. Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). But in none of these cases did anything turn on the precise formulation, and none of our opinions dealt with reconciling this formulation with the position that Justices Kennedy and Thomas took in Albright, which, as the narrowest ground of decision, constitutes the effective holding of the Court. See Marks v. United States, 430 U.S. 188, 193 (1977). The formula appears to be dictum developed from pre-Albright opinions, unexamined in our more recent decisions because the parties to Cervantes, Sneed, Washington, and Reed did not seek to have this court reexamine the issue in the light of intervening developments. In other recent decisions we have recognized that Albright scotches any constitutional tort of malicious prosecution when state courts are open. See, e.g., Mays v. East St. Louis, 123 F.3d 999, 1002-03 (7th Cir. 1997); Spiegel v. Rabinovitz, 121 F.3d 251, 254-57 (7th Cir. 1997); Smart v. Board of Trustees, 34 F.3d 432, 434-35 (7th Cir. 1994) (suggesting the
Where does this leave Newsome? Certainly not with a constitutional claim founded on malicious prosecution. Nor does he have a viable fourth amendment claim, for the statute of limitations expired long ago. But he does have a due process сlaim in the original sense of that phrase--he did not receive a fair trial if the prosecutors withheld material exculpatory details. See Brady v. Maryland, 373 U.S. 83 (1963). Although the State‘s Attorney did not have in his file details about the fingerprints and the means McCabe and McNally used to influence the identification, a prоsecutor is responsible for learning of and disclosing all exculpatory evidence known to the police. See Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). Defendants recognize that a claim along these lines states a genuine constitutional tort. See Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988); Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (en banc) (all 12 judges concluded that police who deliberately withhold exculpatory evidence, and thus prevent the prosecutors from complying with Brady, violate the due process clause). Such a violation occurred at trial (for Brady identifies a trial right) and therefore the due process claim‘s accrual was postponed by Heck
Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994), provides the principal support for this contention. It holds that responsibility rests on the prosecutor, rather than the police, when there would have been no injury but for a prosecutorial decision that is рrotected by absolute immunity. Buckley finds company in Michaels v. McGrath, 222 F.3d 118 (3d Cir. 2000), but two circuits have reached contrary conclusions. See Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000); Clanton v. Cooper, 129 F.3d 1147 (10th Cir. 1997). One Justice has expressed the view that Buckley was decided incorrectly. See Michaels v. McGrath, 121 S. Ct. 873 (2001) (Thomas, J., dissenting from the denial of certiorari). But Newsome‘s suit does not present the Buckley issue, and defendants’ reliance on that decision is unavailing, for a fundamental reason: Buckley supposed that the police had been forthcoming with the prosecutors, so that injury reаlly could be traced to prosecutorial decisions. We distinguished what occurred in Jones, where the police had fabricated some evidence and concealed much exculpatory information. If officers are not candid with prosecutors, then the prosecutors’ deсisions--although vital to the causal chain in a but-for sense--are not the important locus of action. Pressure must be brought to bear elsewhere. Prosecutors kept in the dark by the police (and not negligent in failing to hire other persons to investigate the police) won‘t improve their performance with or without legal liability for their conduct. Requiring culpable officers to pay damages to the victims of their actions, however, holds out promise of both deterring and remediating violations of the Constitution.
Putting Buckley and all problems of establishing causation to one side, we make the normal immunity inquiry: was it clearly established in 1979 and 1980 that
affirmed.