The fourth issue defendants raise is plaintiff's use of cross references. E.g. , Pl. SAF ¶¶ 11, 16, 19, 21, 50, 128. Local Rule 56.1 requires citations to the record evidence rather than cross reference to a reference to a citation; using a cross reference saves counsel time but offloads on the court the burden of identifying what is factually disputed and whether the dispute is material. Schlessinger v. Chicago Hous. Auth. ,
Fifth, defendants claim that several of plaintiff's additional facts are immaterial. A Local Rule "56.1(a) statement should be limited to material facts, that is, facts pertinent to the outcome of the issues identified in the summary judgment motion." Malec,
Finally, defendants point out that Rivera's response brief cites to an expert report not mentioned in his Combined Statement of Additional Facts. See Pl. Combined Resp. 34-36, ECF No. 321 (citing Report of Jennifer Dysart, Pl. Ex. 21). The court has searched Rivera's Combined Statement of Additional Facts but finds no reference to the expert by name or the cited exhibit. See ECF No. 317. Defendants therefore never had a procedurally proper opportunity, under L.R. 56.1, to test the report as a summary judgment exhibit, so the court disregards it, Pl. Ex. 21, at this stage. See Greene v. CCDN, LLC ,
Having addressed the procedural issues pertinent to the parties' Local Rule 56.1 statements, the court is ready to delve into the facts and exhibits in earnest.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of Complaint
Rivera's complaint has eight counts. In Count I, he alleges that defendants violated the due process clause by withholding and suppressing exculpatory evidence. Compl. ¶¶ 51, 53, ECF No. 1. He alleges in Count II that the officer defendants conspired to violate his constitutional rights. In Count III, Rivera brings failure to intervene claims; that is, he claims one or more of the officer defendants stood by while other officers violated his constitutional rights. Compl. ¶ 64. Finally, in Count IV, Rivera seeks to hold the City liable under Monell for his damages on the theory that a City policy was the moving force behind the officer defendants' alleged violations. Compl. ¶ 68.
Counts V-VIII arise under Illinois law. In the order pleaded, they are: a malicious prosecution claim (Count V), a civil conspiracy claim (Count VI), a claim for intentional infliction of emotional distress (Count VII), and a respondeat superior claim (Count VIII).
B. Parties
In addition to the City, Rivera names twelve former Chicago police officers (all have retired) (actually the estate of two) as defendants ("officer defendants"). See Compl. ¶¶ 9-13, ECF No. 1; Resp. to Officers SMF ¶ 2. John Leonard and Gillian
Guevara was a Gang Crimes Specialist (sometimes "GCS") as were defendants Daniel Noon, John Guzman, Joseph Sparks, Paul Zacharias, Steve Gawrys, and Joseph Fallon. Resp. to Officers SMF ¶ 2. They were assigned to the Gang Crimes Unit (not to be confused with Violent Crimes), sometimes referred to as "Gang Crimes North." Id.
Defendants Rocco Rinaldi (sued through his estate) and Russell Weingart were sergeants in Gang Crimes North; defendant Edward Mingey was a sergeant assigned to Gang Crimes North. Resp. to Officers SMF ¶ 2. Each approved one or more reports in the Valentin investigative file. Id. at ¶¶ 2, 65, 66, 72. For simplicity, the court refers to the officer defendants by their last names and elides the distinction between the estate of the two defendants who have died and the former CPD officer.
C. The Valentin Investigation and Trial
Rivera's bench trial began on April 5, 1990, and was continued to April 16, 1988, on which date rebuttal and surrebuttal witnesses testified and the court found Rivera guilty. See Resp. to SAF ¶ 90; Trial Tr. at 77:10-14, 80:4-9, Pl. Ex. 3, ECF No. 313-3. The state trial court imposed an 80-year sentence (the maximum allowed) on July 9, 1990. Trial Tr. at 114:21-115:1. Kenneth J. Wadas ("Wadas") represented Rivera through the trial and sentencing. The following individuals testified: the victim's father, Israel Valentin; Lopez; Guevara; Detective Craig Letrich ("Letrich"); Leonard by stipulation; the medical examiner, also by stipulation; Rivera's pastor, Fernando Rivas; and a friend of Rivera's named Guillermo Osorio. Resp. to SAF ¶ 90.
Israel Valentin identified the victim. Trial Tr. at 6:16-7:24. The medical examiner testified that Valentin died of a total of 11 gunshot-related wounds. See id. at 53:13-18.
1. Lopez's Trial Testimony
Lopez testified that at around 3:40 p.m., he left his home at 3320 W. Cortland Street to go to a store to buy candy. Trial Tr. at 18:5-19:11. He said he saw Valentin sitting in a red car parked in an alley on Cortland. See id. at 19:20-20:12. He saw someone standing about five feet away from the car and firing at Valentin (whom he knew as a friend of his sister's). See id. at 21:15-23. He testified that the man wore "all black" and that "his hair" was dyed "brown or gold," a color he associated with the Latin Kings gang. See id. at 21:24-23:10. The shooter had his back turned to Lopez. See id. at 21:10-12. Lopez ran to the store, asked the store's owner to call the police, but the store's owner did not want to do so, so Lopez returned to the alley and hid in an indentation. See id. at 23:11-20. The shooter looked around and then ran to a brown Chevy parked nearby. See id. at 26:7-14. Lopez told the court that he could see the shooter's face as he ran, and although he did not know the shooter's name, he recognized him as someone he had seen playing basketball "two or three times" in nearby Humboldt Park. Id. at 25:21-26:6, 26:15-27:18. The brown car drove away toward Spaulding. Id. at 28:6-12.
Lopez further testified that he told his sisters he knew who had committed the crime. See id. at 28:15-21. At some time later (his trial testimony is not entirely clear on this), he testified that he also told this story to police officers and reviewed
Lopez's testimony then jumps an uncertain number of days ahead to the lineup that occurred on September 15, 1988, at Area Five Violent Crimes. See id. at 31:10-13. Lopez testified that he viewed a lineup on that day and that he picked Rivera out of the lineup. Id. at 31:16-32:7 (referring to People's Ex. 4). When presented with a photograph of the lineup he saw that day, Lopez put an X over Rivera's head indicating that he was the person identified at the lineup. Id. at 32:9-19; see also Lineup Photos, Pl. Ex. 52 at 1 (including "X" mark).
Lopez clarified on cross examination that he was interviewed "a few times" by police about the shooting. Id. at 46:2-4. It is unclear from the record when the alleged gang book identification occurred. See id. at 42:18-24 (testifying that it may have happened as late as Sept. 12, 1988, "a few days" before the Sept. 15, 1988, lineup).
Also on cross examination Wadas brought out the fact that Lopez's narrative was inconsistent with statements recorded in a police report (discussed under the next heading of "Leonard's Report"). See id. at 46:5-48:8. Lopez did not recall telling the police that the shooting started after, rather than before, he left the store. See id. at 48:1-4.
2. Letrich's Testimony and Leonard's Report Submitted August 29, 1988
Letrich testified that he and his partner visited Valentin at Cook County Hospital on August 30, 1988. Trial Tr. 56:2-5. According to his testimony, he and his partner left the hospital, retrieved an album of photographs of members of the Imperial Gangsters street gang, showed that book to Valentin, and he arrested Jose A. Rodriguez ("Rodriguez") the next day. See id. 56:13-58:2. Letrich did not say how Valentin reacted to the photo book or that Valentin picked anyone. See id. at 57:5-13.
Letrich further testified that Rodriguez was released either on August 31 or September 1, 1988. Id. at 58:23-59:1. Wadas questioned Letrich about whether he or any other Area Five police officers interviewed Valentin on August 29, 1988, but Letrich did not recall. Id. at 60:10-13. Earlier in the trial, Wadas asked Lopez about Rodriguez. Lopez did not recall telling the police that Rodriguez did not shoot Valentin. See id. at 49:3-5.
The parties stipulated that Leonard interviewed Lopez on an unspecified date and wrote a report about the interview. See id. at 64:17-65:22 (spelling Leonard's name phonetically as "Lehner"). The report bears a submission date of August 29, 1988. Pl. Ex. 4 at Wron 29-30, ECF No. 313-4. At Lopez's trial, a portion of the report was read into the record. A quote from the report follows. Only the portion before the asterisks was read into the record at trial.
The undersigned detectives, in continuation of the investigation of the above captioned incident; interviewed an eye-witness who stated in essence but not verbatim that on date and time of this incident; LOPEZ was coming from the store at corner of Kimball and Cortland. LOPEZ observed a copper colored GM-type car coming out of the alley, traveling northbound at approximately 3319 W. Cortland. The vehicle turned east-bound on Cortland and stopped at approximately 3311 W. Cortland. LOPEZ indicated that said vehicle contained 2 M/WH's one of whom exited from thepassenger's side of the vehicle and began to walk toward 3320 W. Cortland where the victim was seated behind the wheel of his vehicle. Suddenly the M/WH began to run toward vehicle and LOPEZ noticed a gun in M/WH's hand. LOPEZ believed he heard three (3) shots but indicated that they were not very loud. LOPEZ indicated that LOPEZ saw the victim lean forward and to the right in the vehicle which victim had been seated.
LOPEZ informed R/D's that LOPEZ could identify the shooter because LOPEZ recognized the shooter as a M/WH who played baseball at Humboldt Park and LOPEZ had observed him there on a few occasions.
[* * *]
LOPEZ did not know shooters [sic] name but was aware that shooter was affiliated with the Latin Kings. LOPEZ then viewed books and made an identification of one RIOS, Jose3 (16-D Latin King Page 40-D) as the M/WH who exited the copper car and shot the victim. At this time there is no identification of the driver.
Id. at Wron 29-30.
3. Rivera's Testimony and Alibi
Rivera then took the stand. He testified that he was not a member of the Latin Kings in August 1988. Id. at 66:18-21. He stated that he lived with his common law wife and their five-month-old child when Valentin was shot. Id. at 66:22-24. He testified that his hair was not dyed at the time and that he last played basketball at Humboldt Park six or seven years prior to the shooting (making Lopez six years old at the oldest). See id. at 68:6-23. He stated that he spent Saturday, August 27, 1988, at home with his family. Id. at 70:12-16.
On cross examination, Rivera stated that he had been a member of the Latin Kings street gang six years prior to 1988 when he was in high school. Id. at 74:3-11. He recalled that he had been arrested at least once in or around 1982.
4. Guevara's Rebuttal Testimony
Guevara testified in rebuttal on April 16, 1988. He stated that he knew Rivera "for quite a while prior to the arrest." Id. at 81:2-7. Guevara testified that when he arrested Rivera, Rivera's hair was unusual in that "[i]n the back it was gold, like a little pigtail died [sic] in gold." Id. at 82:8-16. Guevara also testified that he "play[ed] ball in Humboldt Park" and worked primarily in the area in the summer of 1988. Id. at 82:21-83:1. He stated that he saw Rivera in the park "numerous times" that summer. Id. at 83:6-9.
Wadas cross examined Guevara. In response to questioning about baseball (basketball was not mentioned), Guevara said that he had never seen Rivera playing baseball. Id. at 83:23-84:2. Wadas also had Guevara confirm that a photo depicted an accurate side view of a lineup in which Rivera participated and that Rivera looked the same as he did in the lineup when he was arrested. Id. at 84:12-16; see also Pl. Ex. 52 at CPD-105 (indeterminate black-and-white sidelong photographs).
5. Surrebuttal Witnesses: Rivas and Osorio
The trial concluded with two surrebuttal witnesses called by Rivera. The first, Rivas, described Rivera's hair style in August
6. Closing Arguments
Wadas began his closing arguments with the point that the State did not call any police officers to describe the investigation. Id. at 93:10-19. He focused on the differences between Leonard's August 29 report and Lopez's trial testimony. See id. at 93:20-95:3. He also pointed out that if anything, Letrich's testimony implied that Valentin identified the shooter as a member of the Imperial Gangsters. See id. at 95:16-96:20. Wadas argued that a photo of Rivera introduced into evidence "shows long hair down his neck, and there's no dyed hair, which would be obvious in that photo." Id. at 97:13-21. The state disagreed with this characterization of the photograph. See id. at 99:5-13.
D. Lopez's Recantation
In 2010, Northwestern University's Center for Wrongful Convictions agreed to represent Rivera. Resp. to SAF ¶ 94. Two investigators interviewed Lopez at his Ohio home on February 28, 2010. Resp. to Officers SMF ¶ 54, ECF No. 316. That interview led to the production of an interview report, Lopez's affidavit, his eventual testimony in state court in 2011, and his deposition in this action.
1. The 2010 Interview
The notes of one of the interviewers, Cynthia Estes ("Estes"), Officer Defs. Tab 54, ECF No. 305-55, and her report, Officer Defs. Tab 55, ECF No. 305-56, prepared three or four days later, record Lopez's initial recantation. Lopez said he knew that Rivera was not the shooter in 1988 and in 1990, but because Lopez was then a "peewee" in another gang, he did not care about what happened to Rivera, whom he believed to be a member of the Latin Kings. Officer Defs. Tab 55 at 8. The report also states that Lopez "did try to tell [the police] it was not the real guy" in 1988, "but they kept saying to him, 'don't be afraid, we will protect you, we will keep you safe.' " Id.
According to notes Estes made during the interview and her report, see Resp. to Officers SMF ¶ 56, Lopez stated that the police took him to his home after the shooting and had him review Latin King photo books, Estes Report 9. The report further states that Lopez "just kind of got sick of looking at them so he picked out someone who looked similar to the real shooter." Estes Report 9; Officer Defs. Tab 54, Estes Notes at MJC 12.11.13 00012. Lopez saw the real shooter about a week later. See id. When confronted with his trial testimony, Lopez acknowledged that his testimony that he had recognized Rivera from Humboldt Park was false. Estes Report 13-14.
The report records Lopez' statement that he thought "he may have picked [Rivera] from a line-up a few days later," i.e., after the initial identification on August 27, 1988. Id. at 11. The report further states:
He thinks a few days after that they showed him more photos, and that is when he told them Rivera was not the guy, but the lady wouldn't listen. We asked which lady. He said she was not in a uniform, maybe she was a lawyer. She was older with blond hair and some white hair. Mr. Lopez pointed to my hair and said, "kind of like yours." Mr. Lopez said he thinks it was the third time hewas brought back that he tried to tell them they had the wrong guy but by then no one wanted to hear it. He said they just kept saying to him he didn't need to be afraid. He said it seemed as if they really did not want to hear him.
Id. Finally, the following passage appears in Estes' report: "Mr. Lopez said he wants us to know that the cops did not coerce him into picking anybody out. They just didn't want to hear when he tried to make it right." Estes Report 12.
2. The Lopez Affidavit (2010)
After six rounds of draft affidavits and two more in person meetings, see Resp. to Officers SMF ¶ 58, Lopez signed an affidavit prepared by Rivera's counsel on June 12, 2010, ("the Lopez affidavit"), Pl. Ex 20, ECF No. 313-24. In it, Lopez averred that his testimony was false and that he "knew it at the time." Lopez Aff. ¶ 5. He described the shooter as having long hair "with a streak of light color running through it." Id. ¶ 9.
Explaining his identification on the night of the Valentin shooting, Lopez averred that he made the assumption that the shooters were members of the Latin Kings because the car in which they left turned right on Spalding into that gang's territory. Id. ¶ 10. He picked out a photo he later learned was Rivera's "[t]hat same evening," meaning August 27, 1988. Id. ¶ 11.
Lopez's affidavit then described a "first line-up of possible suspects." Lopez Aff. ¶ 12. The first lineup, states his affidavit, occurred "[w]ithin a few days of the shooting," and he "recall[ed] that [his] mother and sister ... accompanied [him] to the police station but were not present in the room during the lineup procedure." Id. The first lineup was not mentioned at trial or in prior proceedings.
The second lineup, which a jury could reasonably decide was the September 12, 1988, lineup, occurred "[a]bout two weeks after the shooting." Lopez Aff. ¶ 14. Lopez's affidavit describes what occurred at the second lineup as follows:
[T]he police asked me to come to the police station in order to view a second lineup. It was at this point that I told a non-uniformed police officer that Jacques Rivera was not the shooter, and that the real shooter was an Imperial Gangster and a neighborhood guy. I told the same thing to a woman who could have been a lawyer. No one wanted to hear what I had to say. The police officer and possible lawyer kept saying "don't be afraid, we will protect you, we will keep you safe." What the police officer and possible lawyer did not understand is that I was not afraid-I wanted to take back my identification of Jacques Rivera because I had made a mistake and Jacques Rivera was not the shooter.
At some point I made the decision that it was just easier to stick with my original identification of Jacques Rivera as the shooter. I then proceeded to identify Jacques Rivera in the second lineup knowing that he was not the killer.
Id. ¶¶ 14-15 (paragraph numbering omitted).
3. Lopez's 2011 Testimony at Rivera's Post-Conviction Hearing
Lopez was the lead witness at Rivera's 2011 post-conviction hearing held June 23, 2011. Post-Conviction Hr'g Tr. 38-96, Pl. Ex. 5, ECF No. 313-5. At one point, Lopez stated that the police pointed Rivera out to him. Id. at 93:13-18. This drew a question from the court. See id. at 93:19-20. Lopez clarified that when he pointed out Rivera's photograph, police officers asked him, "have you seen him anywhere else, at a park, playing you know, baseball, stuff like
Lopez testified about the first lineup, stating that it occurred "[a]t some point." Id. at 53:14-16. He testified a detective conducted the lineup, and gave a description generally matching Guevara's appearance
Lopez also testified that he saw the shooter on the street before the second lineup. See id. at 56:19-57:4. Lopez also described his efforts to recant at the second lineup. Id. at 58:24-62:6. He stated that the light-haired woman told him not to be afraid when he confessed as though she was "trying to ... console" him. Id. at 60:11-15; see also id. at 83:18-88:14 (attempting to clarify on cross examination the sequence of events at the second lineup). On cross examination Lopez testified that Guevara was present at the second lineup and further described the woman with whom he spoke as not dressed like a police officer and carrying a folder that might have been a Redweld. See id. at 83:2-17. He testified that neither "the police" nor "anyone else in authority at the station that night ... force[d] [him] to identify Jacques Rivera as the shooter ... during that second lineup." Id. 62:12-17; see also id. at 67:4-12, 89:9-19 (testifying that neither the police nor the prosecutor pressured him to testify falsely at trial). Lopez learned for the first time during his cross examination that Rivera was released after the first lineup. See id. at 79:1-6.
4. Lopez's 2013 Deposition
On May 29, 2013, Lopez sat for a deposition during discovery in this case. Pl. Ex. 6A, ECF No. 313-6. Lopez testified that he had not seen the shooter before August 27, 1988, and that he participated in two lineups during the Valentin investigation. See Lopez Dep. 18:3-19, 58:21-59:3, cited in Resp. to SAF ¶ 27. He again testified that he picked Rivera at the first lineup. Lopez Dep. 82:9-16.
Drawing inferences favorable to Rivera, Lopez recalled interacting with Guevara but no other officers after the night of the shooting. See Lopez Dep. 75:19-77:24, cited in Resp. to SAF ¶ 41. He recounted a materially similar version of seeing the real shooter about a week later. See Lopez Dep. 87:24-90:16. He also testified again that that he told Guevara and a woman with white, yellow, or blond hair carrying a "binder full of papers" that he had identified the wrong person, but they assured him that "everything was going to be fine." Lopez Dep. 95:1-97:18 ("They assumed that I was afraid and that I wanted to change my story, because I was afraid, but that was not the case."); see also Resp. to Pl. SAF ¶ 53.
E. Documentary Evidence
1. Recordkeeping in the CPD
Some background on recordkeeping helps to understand the evidence on what documents were produced before Rivera's trial. By 1988 each case referred to the
Between 1982 and 1986, the CPD issued four directives and orders aimed at regularizing the practice of creating RD files, on the one hand, and separate, noncentralized investigative files on the other. See Resp. to City SMF ¶¶ 22-30. Effective February 3, 1983, Special Order 83-1, which applied to "Detective Division field units," for the first time mandated the use of GPRs "by all detectives assigned to violent crime field investigations. This document is designed to standardize the recording of handwritten notes and memoranda .... normally generated by investigating detectives during the course of a violent crime field investigation." Pl. Ex. 60 at 1, 3, ECF No. 313-73, rescinded by Special Order 83-2, City Tab 30 (eff. May 2, 1983). The order and it successors required all documents to be placed in the file and logged on a separate inventory sheet. Id. at 3; accord CPD Detective Div. Special Order 86-3, Pl. Ex. 54, ECF No. 313-67 (May 19, 1986, eff. May 29, 1986). The orders further required the inventory sheet to be forwarded to the Records Division for inclusion in the permanent retention file and required all documents, even those not included in the RD file, to be maintained in what the order defined as the "investigative file," a folder kept by the investigating unit. Special Order 86-3 at RFC 019365; see also id. at RFC 019363 (defining "investigative file").
Special Order 83-2 added a requirement that two copies of the inventory sheet be forwarded either to the CPD's Office of Legal Affairs or the State's Attorney, as appropriate, "[w]henever a subpoena or discovery motion is received in any case." City Tab 30 at 4, ECF No. 307-3. Special Order 86-3, which superseded Special Order 83-2, contained no comparable language. See Brasfield Report 29, Pl. Ex 12, ECF No. 313-15. Investigative files for "Cleared/Closed Homicide Cases," as the Valentin shooting then was, had to be forwarded to the "Records Division for postconviction retention" after final court disposition. Id. at RFC 019365; see also id. (establishing periodic, unannounced inspections of files to ensure compliance); Resp. to City SMF ¶ 30.
Rivera points to evidence tending to show that these written policies were not always followed. See Pl. SAF ¶¶ 112-14.
2. Wadas File
In 2002, Wadas produced a copy of his file for the Rivera case to the Bluhm Legal
The 2013 version of Wadas' file contained 341 pages. Adding the page counts on the index of the 2002 version of the Wadas file yields a total of 328 pages. See Pl. Ex. 16 at RFC 808.
Early in this litigation defendants produced the RD file for the Valentin investigation. Resp. to City SMF ¶ 41. Rivera attached the RD file, which he labels the street file, produced by the City to his summary judgment response and marked it as Exhibit 4. The exhibit consists of 63 pages excluding copies of folder covers and inventory sheets.
The following table compares the 2013 Wadas file and plaintiff's Exhibit 4.
Document Authors Number of Bates No. (Pl's Bates No. (Pl's pages Ex. 4 - `street Ex. 16 - file') `Wadas file') SR dated 9/16/88 Gawrys, Guevara 2 Wron 9-10 RFC 516-17 SR dated 9/29/88 Leonard 1 Wron 11 Hospitalization Lettrich, Elliott 1 Wron 12 Case Report dated 9/15/88 Prelim. Fired illegible 1 Wron 13 Evidence Report dated 9/22/88 (day uncertain) SR dated 9/16/88 Lazar 3 Wron 15-17 RC 523-25 Property Inventory Thomas 1 Wron 18-19 sheet dated 9/16/88 Facsimile dated 6 (which Wron 20-25 6/7/12 from M. encompasses the Majka to C/O Area report which North follows) Wron 20-21 cover sheet and request are 2 pages Case Report dated Crawford, 4 Wron 22-25 RFC 532-35 8/27/88 MachainSR dated 9/15/88 Dorsch, Boyle 3 Wron 26-28 RFC 518-20 SR dated 8/29/88 McLaughlin, 2 Wron 29-30 RFC 513-14 Leonard SR dated 8/27/88 McLaughlin, 3 Wron 31-33 RFC 507-09 Leonard SR dated 9/1/88 McLaughlin, 3 Wron 34-36 RFC 510-12 Leonard Polaroid Photo of n/a 2 (photocopy of Wron 37-38 Rivera - unlabeled, front and back, undated presumably same photo) SR dated 8/31/88 Letrich, Moriarty 1 Wron 39 RFC 515 SR dated 9/16/88 Gawrys, Guevara 2 Wron 40-41 see RFC 516-17 (duplicate version of SR at Wron 9-10, but this one does not bear the signature of the supervisor approving) Piece of paper on unknown 1 Wron 42 which is written: "A/5 VC Det. Dorsch" - otherwise blank Case Report dated Crawford, 2 Wron 43-44 8/27/88 (appears to Machain be prior draft of the case report attached to the fax listed above, in that it lacks signatures of approving officers and is not stamped permanent retention file) Evidence Report Boyle 2 Wron 45-46 dated 9/15/88 (investigating officer) Criminal Complaint signed Dorsch 1 Wron 47 RFC 476 dated 9/16/88 Felony Minute Unsigned 1 Wron 48 Sheet SR dated 9/15/88 - Boyle, Dorsch 2 Wron 49-50 RFC 521-22 Lineup report Arrest Report Guevara Wron 51 RFC 527 9/16/88 3 Release of person in signed by 1 Wron 52 custody dated Leonard 8/31/88 GPR dated 8/27/88 McLaughlin, 1 Wron 53 Leonard GPR dated 8/27/88 Leonard 1 Wron 54 Criminal history of unknown 1 Wron 55 Rivera stamped "Issued on Inquiry Aug 27 1988 By Name Check Only" Arrest Report dated Guevara 1 Wron 56 8/30/88 Hold papers dated Leonard 1 Wron 57 8/30/18 (Rivera) Arrest Report dated Letrich 1 Wron 58 8/31/88 Hold papers dated Boyle, 1 Wron 59 8/31/88 (Rodriguez) Tapkowski Property Inventory Leonard, Keating 1 Wron 60 dated 8/28/88 Evidence Report McDonald, 1 Wrong 61 dated 8/28/88 Keating Property Inventory unknown 1 Wron 62 sheet dated 8/31/88 Release of person in Leonard, 1 Wron 63 custody dated illegible 8/31/18 GPR dated 8/31/88 Leonard 1 Wron 64 Preliminary Fired Firearms 1 Wron 65 Evidence Report examiner (but also signed by McLaughlin) Piece of paper on unknown 1 Wron 66 which is written: "A5VC" - otherwise blank Criminal History of unknown 1 Wron 67 RFC 526 Rivera (unstamped version) GPRs dated 8/27/88 McLaughlin, 2 Wron 68-69 Leonard
Compare Pl. Ex. 4 with Pl. Ex. 16.
A material fact dispute exists over whether the police reports and other investigative material not present in the 2013 Wadas file were disclosed before Rivera's trial. Although the cumulative page count from the index of the 2013 Wadas file exceeds the page count of the 2002 Wadas index by 13 pages, the index also shows that the 2002 file contained 29 pages of "police reports."
F. Facts at Summary Judgment
While Rivera advances three distinct due process theories and related federal and state law claims, they all revolve around a closely related body of summary judgment evidence. Defendants challenge the sufficiency of the summary judgment record to support several of Rivera's key factual positions on what happened during the Valentin investigation through trial. The court considers many of those challenges in the following paragraphs to establish what the jury could reasonably find on this record viewed in the light most favorable to Rivera.
1. Rivera Was Pre-Selected as the Investigation's Target
First, a reasonable jury could find that Rivera was selected as the investigation's target before the police interviewed Lopez. Whether this dispute is genuine largely depends on exactly when Lopez was first interviewed and picked Rivera from a book of suspected gang members. The RD file, but not Wadas' file, includes a copy of Rivera's criminal history report stamped as "issued on inquiry" the day Valentin was shot ("August 27 criminal history report"). Pl. Ex. 4 at Wron 55. If Lopez initially identified Rivera on the day of the Valentin shooting, the criminal inquiry might be explainable as the product of Lopez's identification earlier that day, but if the police had no suspects yet, the jury could reasonably view the report as marking the first step in framing Rivera.
Though defendants point to evidence that Lopez was first interviewed on the night of the shooting, e.g. , Pl. Ex. 4 at Wron 53, a report submitted by Guevara and Gawrys summarizing the Valentin investigation ("the September 16 report") states that Lopez was interviewed and picked Rivera from a gang book two days later on August 29, 1988. Id. at Wron 9-10. With inferences favorable to Rivera, another report, this one prepared by Leonard and McLaughlin on August 29, 1988, corroborates the date of Lopez's first interview and gang book identification as two days after the Valentin shooting. See Pl. Ex. 4 at Wron 29-30 (recounting investigation conducted since August 27 and transitioning to description of Lopez's gang book identification by stating "in continuation of the investigation of the above captioned incident," which can be reasonably read as implying a break between August 27 and Lopez's interview and gang book identifications). To be sure, the timeline just described conflicts with other evidence in the record, including some of Lopez's post-recantation testimony, but defendants point to no evidence explaining the dates given in the two reports just discussed. See Resp. to SAF ¶ 23 and material cited therein. Because the jury could believe Rivera or the defendants' timeline, the dispute here must be deemed genuine, and Rivera's version receives credence at summary judgment.
A reasonable jury could also find that, despite statements of police reports to the contrary, e.g. , Pl. Ex. 4 at Wron 10, Valentin, the victim, never identified Rivera as the shooter from a photograph. Defendants point to evidence that on the day of the shooting, Valentin, while in the hospital, told police officers that the person who shot him was a 16-18-year-old Hispanic male believed to be a member of the Latin Kings. Officers SMF ¶ 6; see also Resp. to Officers SMF ¶ 6 (citing McLaughlin Dep. 167:5-19, Pl. Ex. 9A) (testimony that by the 5 o'clock hour, when Leonard and McLaughlin responded to the hospital, Valentin was able only to respond to yes-or-no questions by nodding).
Three days later, on August 30, 1988, Valentin apparently changed this story, and Letrich and Moriarity visited Valentin in the hospital and showed him a book of photos of suspected members of another gang, the Imperial Gangsters. Resp. to Officers SMF ¶ 12 (responding by pointing to evidence that Valentin stated that a member of the Imperial Gangsters shot him). Valentin identified Jose Rodriguez ("Rodriguez") and Felipe Nieves
Some police records and other evidence state that Leonard and McLaughlin attempted to show Valentin photos of Rodriguez and Rivera the next day (August 31, 1988). See id. ¶ 16; see also Officer Defs. Tab 29 (six photographs used). According to defendants' evidence, Valentin's eyes were tearing, he could not focus because was heavily medicated, and Leonard and McLaughlin left. See Resp. to Officers SOF ¶ 17. But Rivera also points to Leonard's deposition testimony that he recalled meeting only once with Valentin on August 27, 1988, and the testimony of three of the people who participated in the first lineup that, viewed favorably to Rivera, no photos were taken. See id. at ¶ 16 (citing Leonard Dep. 54:13-15, Pl. Ex. 26) (citations to other depositions omitted). For summary judgment purposes, drawing the most favorable inferences in Rivera's favor compels the finding that the documented August 31, 1988, photo array shown to Valentin never happened.
It is also undisputed that a portion of the September 16, 1988, report prepared by Gawrys and Guevara is false. See Resp. to SAF ¶ 46. The report states that Valentin identified Lopez in what could be a third photo review on September 10, 1988. Pl. Ex. 4 at Wron 10. Defendants do not dispute that by September 9, 1988, "Valentin was in effect in a comatose condition-among other things, he could not breathe on his own and was fully intubated ...." Resp. to Pl. SAF ¶ 46. Valentin could not have reviewed a photo album or spoken to another person, so the September 16 report's statement that Valentin identified Rivera is false. Id.
3. Lopez Picked a Filler at the First Lineup
The jury could also reasonably find that Lopez picked a filler at the first lineup on August 31, 1988. Three basic narratives of the first lineup emerge from the summary judgment record. The first derives from
In the second, no lineup occurred. This version comes from police reports and forms in the RD file. They confirm that Rivera and Rodriguez were arrested on August 30, 1988, for a lineup, but they say the lineup ultimately never happened because Lopez could not be located and because Valentin was unable to view a photo array. See Resp. to Officers SMF ¶¶ 11, 13, 21. The documents state that Lopez could not be located or, more specifically, was asleep when police officers went to his home in the early morning of August 31, 1988, and Lopez's family told the officers to return later. But later that day, the documents say, Lopez could not be located (family members told police officers that Lopez might be at his father's home), so Rivera and Rodriguez had to be released.
The third, the one of which Rivera is a proponent, derives from most of the same evidence and inferences from how the investigation later unfolded. Again, it is undisputed that Rivera was released after the first lineup. Resp. to Officers SMF ¶ 25. Rivera submits that Lopez's testimony that the first lineup occurred should be credited, but Lopez does not accurately remember who he picked. See Officers SMF ¶ 26 (citing Lopez's deposition testimony that he saw the real shooter about a week after the shooting and realized he identified the wrong person).
Defendants argue that Rivera cannot pick and choose from Lopez's testimony about the August 31, 1988, lineup; it is all or nothing. Officers Mem. Supp. Mot. Summ. J. 7-8 (no citation for proposition). But the jury will be free to believe all, some, or none of Lopez's and the other witnesses' testimony, so Rivera may select as much of Lopez's testimony as he wishes to be regarded as true at summary judgment. See Kadia v. Gonzales ,
Rivera has identified enough evidence other than Lopez's testimony to survive summary judgment. He points to the undisputed fact that Rivera was released after August 31, 1988, Resp. to Officers SMF ¶ 25, and not rearrested until the second lineup fifteen days later. See Pl. SAF ¶¶ 39-41. To reiterate, that the first lineup occurred must be accepted as true at summary judgment; the question is who Lopez
4. Lopez Told Guevara and Leonard that Rivera Was the "Wrong Guy"
Rivera relies on Lopez's post-recantation testimony to establish that he tried, but failed, to recant to a man and woman conducting the September 15, 1988, lineup. See Pl. SAF ¶¶ 52-53. Nothing in the RD file or Wadas' file suggests that Lopez tried to recant on September 15, 1988. Defendants argue that, other than Guevara's Fifth Amendment invocation, which is insufficient on its own, the evidence Rivera cites piles speculative inferences too high to create a genuine issue for trial. Officers Mem. Supp. Mot. Summ. J. 9-10; see also Consolino v. Towne ,
Lopez has testified to a physical description of the man and woman with whom he spoke, "an older woman with white or blonde hair, and a Latino man with mustache, glasses, and an afro." Resp. to SAF ¶ 53 (undisputed fact). The description of the man matches the photograph of Guevara in the record closely enough to allow the jury to find that they were the same person, see Pl. Ex. 37; see also supra note 5, and even if it did not, Lopez testified that at his deposition in this case the man, he thought, was the same one with whom he had interacted previously, see Lopez Dep. at 95:23-96:7, Pl. Ex. 6A. The woman in the photo of McLaughlin in the record, Officer Defs. Tab 38, ECF No. 305-39, has brown hair, but it was taken at a certain time in or around 1988 (the photo was taken indoors). People sometimes change their hair color within the same year, and Gawrys testified at his deposition that he thought McLaughlin had blond hair in 1988, Gawrys Dep. 174:9-15, Pl. Ex. 25A. Especially in view of the fact that no other investigator assigned to the case was a woman, Resp. to Pl. SAF ¶ 55, this evidence suffices to allow the jury to identify McLaughlin as the woman to whom Lopez
Defendants also maintain that Lopez has been unwavering in his testimony that Guevara and McLaughlin believed that he was afraid of reprisal and so did not take his "wrong guy" protestations seriously. Officers Mem. Supp. Mot. Summ. J. 10. They correctly characterize the summary judgment record. See, e.g. , Lopez Aff. ¶ 14; Lopez Dep. 95:23-97:18. But Lopez can only speculate about what Guevara and McLaughlin thought his motives were, which is no more probative than a plaintiff submitting a conclusory affidavit speculating about what someone else knew, see Consolino,
5. Rivera's Photo Was Pointed Out to Lopez, and Lopez Was Fed Identification Details
To understand the final strand of Rivera's factual position on the Valentin investigation and trial, rewind to Lopez's initial identification of Rivera from a gang book, which, for summary judgment purposes, occurred two days after the shooting on August 29, 1988. The evidence, Rivera argues, creates a genuine dispute over whether Guevara and several other officer defendants coaxed Lopez to pick Rivera. See Pl. SAF ¶¶ 25-26. Then, in an effort to make Lopez's identification stick at trial, Guevara and McLaughlin concocted the details that Lopez had seen Rivera playing baseball in Humboldt Park and that the shooter had a gold streak in his hair; those details were then fed to Lopez to be repeated in his trial testimony and corroborated in part by Guevara. See id. ¶¶ 85, 91, 92.
Defendants analogize this record to the summary judgment record in a Fourth Amendment false arrest case, Hart v. Mannina ,
Since he first recanted in 2010, Lopez has maintained that he was not coached. See Officers SOF ¶¶ 40, 41, 75 and material cited therein. To show that there is an issue for trial, Rivera cites one passage from Lopez's testimony at the 2011 post-conviction hearing. See Pl. SAF ¶¶ 25, 26. The quoted material seems to support his position directly, but in light of the back-and-forth that follows, it turns out to be a slip of the tongue:
Q. Why did you testify at the time of trial that you had seen the shooter play baseball at Humboldt Park?
A. Because, you know, what happened was the cops were like, when they pointed him out, they were asking me have you seen him playing baseball or have you seen him anywhere else; and I said, yes, that was the reason why I said that I seen him playing baseball at a park.
The court: Just a minute, did you say when they pointed him out?
The witness: Who me?
The court: Yes.
The witness: No, they didn't point it out to me. When I pointed him out, they were asking have you seen him anywhere else, at a park, playing, you know, baseball, stuff like that and I said yes.
The court: Okay, go ahead.
Post-Conviction H'rg Tr. at 93:10-94:4, Pl. Ex. 5. Lopez's clarification, even viewed in the light most favorable to Rivera, does not create a genuine fact dispute. Lopez's immediate clarification in response to the state court's inquiry cannot be ignored. See Malin v. Hospira, Inc. ,
Rivera also cites the deposition of Jennifer Linzer ("Linzer"), Pl. Ex. 46. Pl. SAF ¶ 85. In this testimony, Linzer stated that, based on her notes from a telephone call with Lopez on March 2, 2010, shortly after he first recanted, he may have said that he thought he was coached. See Linzer Dep. (Pl. Ex. 46, pg. 64:5-65:14, 113:4-7). Defendants object on double hearsay grounds. Resp. to Pl. SAF ¶ 85.
Examples of cases resolving hearsay objections raised in responses to Local Rule 56.1 statements can be readily found. E.g. , Spalding v. City of Chicago ,
Defendants' hearsay objection to the cited portions of Linzer's deposition is nevertheless well taken. Each level of hearsay must fall into an exception to the rule against hearsay. Fed. R. Evid. 805. Neither Lopez's statement on the phone nor Linzer's notes can be admitted for the truth of the matter asserted as prior inconsistent statements because Lopez's statement on the phone (the innermost kernel of hearsay), and Linzer's notes (the next layer), were not "given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition."
Without any direct or hearsay testimony from Lopez admissible to prove that he was coached, only inferential theories remain. Rivera correctly observes that the story of the shooter's gold hair first surfaced at Rivera's trial; it does not appear in police reports. See Resp. to Pl. SAF ¶¶ 61, 62. But just as using a flawed process for recording interviews is too speculative to support an inference of coaching, Hart,
Nonetheless, what sets this record apart is the presence of evidence from which the jury could find that the officers selected Rivera before Lopez picked him from the gang book. See supra , Part II. F. Viewed in the light most favorable to Rivera, that fact casts substantial doubt on Lopez's testimony that he happened to select the very person the police were targeting more or less at random from the photo book. See
III. THE EFFECT OF GUEVARA'S EXERCISE OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT
At his deposition in this case and in his answers to written discovery, Guevara invoked his Fifth Amendment right not to be compelled to be a witness against himself hundreds of times. Together, the questions Guevara exercised his right not to answer cover virtually every aspect of the Valentin investigation, prosecution, and trial, and if the adverse inference that they would be answered in a way admitting culpability were to be drawn, those answers implicate Guevara and many, if not all, of the other officer defendants in egregious violations of Rivera's constitutional rights at every stage of the Valentin investigation and prosecution. See, e.g. , Pl. SAF ¶¶ 22, 26-27, 40-41, 46, 52, 61, 65, 79. No matter how damning the adverse inferences are, liability in a civil case cannot be based exclusively on a party's privileged decision to remain silent, so the court cannot deny summary judgment exclusively on that basis.
Guevara's silence may be properly considered at summary judgment. In a criminal case, the jury cannot draw an adverse inference from the defendant's invocation of his Fifth Amendment right not to be compelled to be a witness against himself. Griffin v. California ,
Rivera "acknowledges that courts may not enter judgment based solely on an invocation of the Fifth Amendment," Pl. Combined Resp. 8, ECF No. 321, but he nevertheless argues that Guevara cannot win at summary judgment because Guevara has invoked his Fifth Amendment right to be silent, id. at 8-9. Rivera reasons that a defendant who invokes his right to remain silent in a civil case deprives the plaintiff of an important source of proof. Without a rule requiring denial of summary judgment, a defendant in Guevara's position would be able to use the Fifth Amendment to "shift the burden at summary judgment" to the plaintiff, id. at 6.
The Seventh Circuit balanced the tradeoffs in civil cases of requiring proof of liability other than a party's reliance on the Fifth Amendment privilege in its first case applying Baxter :
Inevitably, in civil cases where related criminal charges are involved, tension will arise between plaintiffs' rights to a just and timely adjudication and defendants' rights to refuse to answer under the Fifth Amendment upon a reasonable fear of prosecution. At the least, defendants may not be free to defend the suit as they would like, while plaintiffs may be prevented from acquiring evidence helpful, or even necessary, to their case. That tension is not for us to resolve, for it has its sources in the Constitution itself.
National Acceptance Co. ,
The Seventh Circuit applied Baxter and National Acceptance Co. 's reasoning at summary judgment in LaSalle Bank, supra ,
The LaSalle Bank court quoted the following language in United States v. White ,
Requiring other evidence does not shift Guevara's summary judgment burden to Rivera. If the plaintiff will bear the burden of persuasion at trial, Guevara's initial summary judgment obligation is satisfied "by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Modrowski v. Pigatto ,
Under Baxter , LaSalle Bank , and a host of district court cases in this circuit, defendants' motions for summary judgment cannot be denied solely because Guevara has exercised his Fifth Amendment right to remain silent any more than the question of liability for damages could be sent to the jury on that basis alone. Instead, Rivera must identify additional evidence that would permit the jury to impose liability. See LaSalle Bank ,
Like all criminal defendants, Rivera had "a Fourteenth Amendment due process right to a fundamentally fair trial" in state court. Perruquet v. Briley ,
A. Fabrication of Evidence
The Seventh Circuit has "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 [his] liberty in some way." Avery ,
Part II. F, supra , explains that the jury could reasonably find that Lopez and Guevara's testimony fabricated the story about the shooter's distinctive streak of gold in his hair. Guevara claims that absolute immunity shields him from damages liability for his testimony before the grand jury and at trial. Officers Mem. Supp. Mot. Summ. J. 16. The court finds it useful to begin by separating whether Rivera experienced liberty deprivation from causation issues. Absolute immunity shields a police officer, like most other witnesses, from damages liability under § 1983 for testimony before a grand jury or at trial. See Rehberg v. Paulk ,
Rivera also points to portions of the September 16, 1988, supplementary report prepared after Rivera's arrest by Guevara and Gawrys (and approved by Mingey), Pl. Ex. 4 at Wron 9-10, that were fabricated. Pl. Combined Resp. 13-14. Because this evidence was not introduced at Rivera's trial, defendants say Rivera cannot show that the fabrication caused a deprivation of his liberty, regardless of whether the evidence was in fact fabricated. Officers Mem. Supp. Mot. Summ. J. 14-15; Reply 22-23. Having to go to court and stand trial does not work a liberty deprivation in the relevant sense, so where the defendant is released on bond before trial, introducing fabricated evidence at the criminal trial does not violate due process if the defendant is acquitted,
Defendants' contentions regarding the introduction of evidence at trial fall under the heading of causation. Ordinary § 1983 causation principles apply in due process evidence fabrication cases, Fields II ,
An absence of causation evidence proved dispositive in Boyd v. City of Chicago , cited by defendants, where the summary judgment record showed that the allegedly fabricated police reports never found their way into evidence at trial and were not otherwise referenced.
Nor does Rivera argue that it does. Rather, he disavows seeking to hold Guevara liable for his testimony before the grand jury and at Lopez's trial, at least not in the relevant sense. Pl. Combined Resp. 18. He instead seeks to impose liability for creating the "false identification from Valentin and false identifications and testimony from Lopez-that was used to secure charges, obtain an indictment, and cause a conviction at trial, when the false evidence was introduced through testimony and exhibits."
Although Lopez's identification of Rivera as the shooter can fairly be described as the centerpiece of the case against Rivera presented at his trial, Rivera identifies no evidence that the Valentin identification was introduced at trial or before the grand jury. Guevara's testimony before the grand jury that an "eyewitness" identified Rivera cannot be reasonably read as referring to the victim. See Pl.
B. Brady Claims
In Brady , the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
"Evidence is 'suppressed' for Brady purposes when (1) the prosecution failed to disclose the evidence in time for the defendant to make use of it, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence." United States v. Kimoto ,
Rivera contends that the officer defendants suppressed four types of favorable evidence: (1) the criminal history report stamped issued on inquiry on August 27, 1988; (2) the fabrication of Lopez's initial gang book identification and the subsequent alleged fabrication of the gold pony tail and Humboldt Park details; (3) evidence showing that the first lineup happened, which evidence could have supported an argument that Lopez picked a filler; and (4) Lopez's statement that Rivera was the "wrong guy" at the September 15, 1988, lineup. See Pl. Combined Resp. 20-23. Defendants argue that there is insufficient evidence for the jury to find that the final three things happened, so any related documents and evidence would not have helped Rivera. Officers Mem. Supp. Mot. Summ. J. 5-6 & n.4, 8, 9-10. The court has already found genuine fact disputes preclude summary judgment on that basis, however. See supra Part II. F. Furthermore, the table, supra , comparing what discovery material Wadas had to the police department's permanent retention file for the Valentin investigation, demonstrates the jury could reasonably find that Wadas did not have, and the prosecution never produced, several investigative documents at trial. See Resp. to SAF ¶ 73.
1. Reasonable Diligence
Defendants submit that Rivera's Brady claims fail because Wadas did not act with reasonable diligence. As a former prosecutor, Wadas, defendants say, should have issued a subpoena to Area Five, where GPRs would have been kept at the time, to get the documents he now claims were withheld. See Officers SMF ¶ 44-45. But Wadas filed a motion generally requesting Brady material, Pl. Ex. 47 at RFC 282-86, and he testified at his deposition that he sought and obtained verbal assurances from the prosecutors handling the case (Wadas had been a prosecutor himself) that he had all of the investigative material they had. See Pl. SAF ¶ 74 and potions of Wadas Dep. cited therein. Those steps, if believed by the jury, suffice to allow it to find that Wadas made a specific request for the suppressed documents.
Given his client's claim to have participated in a first lineup, Resp. to Officers SMF ¶ 46, defendants also contend that Wadas was not reasonably diligent because he did not attempt to interview Lopez, attempt to interview the officers involved in the second lineup, and did not file a motion to suppress the identification at the second lineup (though he considered doing so but concluded he had no basis in the documents he then had, according to his testimony). See id. ¶¶ 46, 47, 49. To bolster their claim, defendants rely on an expert report opining that Wadas' failure to interview key witnesses violated the Illinois Code of Professional Responsibility. Officers SMF ¶ 49 (citing Officer Defs. Tab 51 at 250) (other citations, including expert's deposition, omitted). Filing a motion to suppress, contend defendants, would have allowed him to probe the circumstances of both lineups by questioning Lopez and the officers involved in the second lineup. See
A defendant in a criminal case that actually goes to trial has the "responsibility to probe the witnesses and investigate their versions of the relevant evidence." Holland ,
Facts material to whether Wadas acted with reasonable diligence are genuinely disputed. The opinion that Wadas violated the Illinois Code of Professional Responsibility, Officers SMF ¶ 47, 49, does nothing to establish that Lopez would have coughed up exculpatory evidence had he been interviewed. Defendants say that this case is like Boyd v. City of Chicago ,
2. Suppression of First Lineup
Defendants argue that any evidence germane to the first lineup cannot be deemed suppressed because Rivera participated in it and therefore knew about it when he was tried. Wadas testified that Rivera told him about the first lineup, but he had no documentary evidence corroborating its existence to use at trial. See Resp. to
One might wonder how the police records could have been used to impeach Lopez's testimony. They all state that Lopez could not be located and the witnesses were released. Remember that the evidence must be considered cumulatively rather than piecemeal. Wearry ,
Taking Rivera's allegedly suppressed evidence cumulatively, a jury could find that it was reasonably likely to have affected the fact finder's judgment at his trial. The trial hinged largely, if not exclusively, on the believability of Lopez's eyewitness account of the Valentin shooting and his identification of Rivera as the shooter. Because of the relative weakness of the prosecution's case and the centrality of Lopez's credibility, "additional evidence of relatively minor importance" impeaching him and undermining his narrative qualifies as material. Wearry ,
Accordingly, the court must deny summary judgment on Rivera's Brady claims. The genuine factual disputes discussed above must be resolved by the jury. Hampton ,
C. Claim for Use of Unduly Suggestive Identification Techniques
While the constitution does not prescribe a "particular standard of quality" for lineups, "[i]t does ... guarantee the right to a fair trial[,] ... and that right is violated if unduly suggestive identification techniques are allowed to taint the trial." Alexander v. City of S. Bend ,
On the first prong, Rivera cites two things to show that the techniques used at the lineups were unduly suggestive in his response to the officer defendants' motion for summary judgment. See ECF No. 321 at 34-36. The first is the evidence-apparently the August 27, 1988, criminal history inquiry-that the police had preselected Lopez. Id. at 34. Inferring that unduly suggestive techniques must have been used from bare evidence that the police knew who they wanted Lopez to pick speculates too much even for summary judgment where Rivera gets the benefit of all reasonable inferences. The Seventh Circuit has expressed a distinct preference for scientific evidence in this area. See Sanders ,
D. Rivera's Fifth Amendment Claim
Defendants also move for summary judgment on Rivera's Fifth Amendment claim for violation of his right not to be compelled to be a witness against himself. As defendants note, no statement of Rivera's was used at his trial or criminal proceedings. That defeats this claim. Ellwood v. City of Chicago , No.
As the officer defendants argue, the conspiracy claims and claims for failure to intervene brought in Counts II and III rise and fall with the underlying constitutional violations. The court accordingly grants summary judgment dismissing those counts to the extent they derive from the § 1983 claims that are dismissed today. See, e.g. , Smith v. Gomez ,
Entering summary judgment on those claims in their entirety would be improper, however, because the briefing does not adequately develop the issues. In their opening memorandum, the officer defendants describe the elements of both claims and then assert that Rivera lacks evidence of a conspiracy. ECF No. 304 at 18, 19. Rivera complains in his response that the opening memorandums' arguments are too perfunctory and underdeveloped to allow him to respond meaningfully. ECF No. 321 at 38, 40. The officer defendants reply as follows:
Defendants' Memorandum of Law (at 18-19) concisely discussed the federal conspiracy and failure to intervene claims. Plaintiff claims this discussion is "cursory" and "not developed in a way that permits a response" (Pl. Brief, at 38, 40), yet responds in three pages. Defendants' brevity does not distract from the fact that these claims do not survive summary judgment.
ECF No. 333 at 24.
Rivera raises a close procedural question. As the parties moving for summary judgment, defendants must "identify[ ] each claim or defense ... on which summary judgment is sought" and also "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also
But even if the officer defendants' opening memorandum is sufficient, their reply abandoned their motion for summary judgment on conspiracy and failure to intervene claims by offering no analysis of the governing law or the evidence Rivera cites in his response. See Resp. 38-40. The court cannot tell whether the officer defendants agree that Rivera correctly articulated the governing legal principles. Nor do defendants offer any reason why they
F. Personal Involvement of Officers
All but four of the officer defendants-all except Guevara, Gawrys, McLaughlin, and Leonard-seek summary judgment on personal involvement grounds. Officers Mem. Supp. Mot. Summ. J. 19-21. A police officer acting under color of state law can be liable under § 1983 for failing to intervene in a constitutional violation perpetrated by another person when the "defendant actually had notice, opportunity, and the ability to prevent the other person from inflicting harm." Sanchez v. City of Chicago ,
Beginning with the three defendants who were sergeants in 1988, the reports in the Valentin investigation show that Defendants Rinaldi, Weingart, and Mingey approved them. See Pl. Ex. 4 at Wron 29-30, 34-36, 53-54, 68-69 (approved by Rinaldi);
Even viewed in the light most favorable to Rivera, the summary judgment record does not permit the same conclusion about what Rinaldi and Weingart knew about their subordinates' chicanery. Rinaldi testified that he relied on the detectives to incorporate everything into their reports. Officer Defs. Tab 59 at 54:13-19 ("I wasn't part of the investigation."). Weingart admitted he would have been generally "ke[pt] apprised" of the Valentin investigation, Pl. Ex. 72A at 50:6-8, but that does not demonstrate knowledge of the specific steps his subordinates took to frame Rivera.
The other five defendants were Gang Crimes Specialists. Each testified that he had minimal involvement in the Valentin investigation or could not recall it. See Resp. to Officers SMF ¶ 67 (Noon fetched a report on Aug. 27, 1988, and may have looked for Lopez for a lineup); id. ¶ 68 (Guzman looked for Rivera and Lopez; not present for physical lineup); id. ¶ 71 (Fallon has no recollection of Valentin investigation). But two GCS defendants, the jury could reasonably find, were personally involved in Lopez's initial gang book identification. Defendant Sparks recalls bringing the gang photo book to Lopez's home and partially observing the identification. Id. ¶ 69. Given the fact dispute about when that identification happened (Sparks places it on Aug. 27), the jury could find that he was personally involved in fabricating Lopez's identification from the gang book but not in any later conduct. See id. Zacharias testified to no specific recollection of the Valentin investigation but recalled riding with Sparks. Id. ¶ 70. To create a genuine dispute, Rivera points to the list of "Arresting Officers" on the September 16 report summarizing the Valentin investigation. See id. ¶¶ 65-71 (citing Pl. Ex. 4 at Wron 9-10); see also id. at Wron 34-36, 56 (specific arrest reports listing Guevara as arresting officer and Zacharias, Sparks, Fallon, Leonard, and McLaughlin as additional arresting officers). Unchallenged evidence in the record shows that at the time, it was common practice to list every police officer involved in the investigation as an arresting officer to give the widest possible credit-even if the officer rode along on only one night of the investigation. Sparks Dep.
For these reasons, the § 1983 claims for fabrication and Brady violations against defendants Noon, Guzman, and Fallon are dismissed. The court partially dismisses the § 1983 claims against Sparks and Zacharias except as to the due process claim based on fabrication at the gang book identification.
G. Qualified Immunity
The officer defendants argue that they are entitled to qualified immunity. Officer Defs.' Mem. Supp. Mot. Summ J. 21-22, ECF No. 304. The doctrine of qualified immunity shields police officers in § 1983 actions from liability for money damages unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was "clearly established at the time." District of Columbia v. Wesby , --- U.S. ----,
The two prongs of the qualified immunity inquiry may be addressed "in whatever order seems best for the case at hand." Sebesta ,
A right is clearly established for qualified immunity purposes "when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.' " Ashcroft v. al-Kidd ,
The right violated must not be defined at too high a level of generality. Wesby ,
Starting with the fabrication claims, "it was established law by 1985 (indeed long before), when the fabrication is alleged to have occurred, that a government lawyer's fabricating evidence against a criminal defendant was a violation of due process." Fields II ,
As for the Brady claims, the Seventh Circuit held in Newsome v. McCabe that it was "clearly established in 1979 and 1980 that police could not withhold from prosecutors exculpatory information about fingerprints and the conduct of a lineup."
Given the genuine fact issues, the court cannot say that Rivera is complaining of the nondisclosure of "little ... tidbit[s]" of evidence whose value to the defense would not have been apparent to the officer defendants. Newsome v. McCabe ,
Based on the foregoing analysis, the court concludes that a jury viewing the summary judgment record most favorably to Rivera could find that his clearly established rights were violated.
V. STATE LAW CLAIMS
This court has supplemental jurisdiction over Rivera's claims under Illinois law for conspiracy, malicious prosecution, and intentional infliction of emotional distress ("IIED"). See
"To establish a claim for malicious prosecution under Illinois law, plaintiffs must establish five elements: (1) commencement or continuation of an original proceeding by the defendant; (2) termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause; (4) malice; and (5) damages." Colbert, supra ,
While an arrest can be the first step toward prosecution, the police do not make charging decisions, so "the chain of causation [from the arrest to the conviction] is broken by an indictment, absent an allegation of pressure or influence exerted by the police officers, or knowing misstatements by the officers to the prosecutor." Colbert ,
With the exception of Guevara, Rivera has not done so. The reports state that they were written pre- rather than post-arrest, as Colbert requires. Rivera points to evidence he contends shows that at least Guevara and Gawrys must have repeated the false Valentin and Lopez identifications described in the September 16 report to the Assistant State's Attorney who approved charges on September 15, 1988. See Pl. SAF ¶¶ 51-56, 80-83. The court has already found this inference to be too speculative to create a genuine dispute for trial because the ASA testified that she cannot recall what was discussed. See Part IV. A (citing Brown v. Chicago Transit Auth. Retirement Plan ,
Unlike the other officer defendants, Guevara testified before the grand jury. On this record, the jury could reasonably find that Guevara fabricated his testimony that an eyewitness identified Lopez. See Pl. SAF ¶ 84; Grand Jury Tr. at JR1392:15-21. Put succinctly, "a police officer who procures a prosecution by lying to the prosecutor or to the grand jury can be sued for the consequences of the prosecution." Mahoney ,
The officer defendants also argue that the other state law claims are derivative of Rivera's malicious prosecution claim and fail for want of proof of essential elements.
VI. THE CITY'S LIABILITY UNDER MONELL
In Monell v. Department of Social Services of City of New York ,
"Allowing plaintiffs to prove that a widespread practice has been established by custom or usage with the force of law" prevents "egregious attempts by local governments to insulate themselves from liability for unconstitutional policies." McMillian v. Monroe Cty. ,
A. The Monell Theories Listed in Plaintiff's Response
Rivera and the City disagree about what Monell theories are in play. The City moves for summary judgment dismissing all of Rivera's § 1983 claims against it. Citing the complaint, the City groups Rivera's Monell claims into the following categories: "(1) maintaining 'street files' that were not routinely disclosed to prosecutors and criminal defendants; (2) failing to document lineups in which a witness identified a 'filler,' meaning someone other than the suspect in the lineup; and (3) failing to
Rivera argues that the City missed five of his Monell theories in its motion for summary judgment (the "disputed theories"):
(1) the theory that the Chicago Police Department's express written policies governing the creation, maintenance, and production of investigative files were deficient (or non-existent) and caused the suppression of exculpatory investigative materials in this case;
(2) the theory that the City's final policymakers, who admittedly were on notice of the problem of systemic suppression of investigative materials, chose not to adopt obviously needed policies to ensure transmission of police files, and in so doing made a decision that caused suppression of exculpatory materials in Rivera's case;
(3) the theory that the City is liable for its failure to adequately train its officers: (a) to retain investigative materials, maintain investigative files, and produce those materials to the criminal justice system; (b) to properly conduct identification procedures and to accurately record the results of those identification procedures; and (c) to write accurate police reports documenting their investigation regardless of the path the investigation takes;
(4) the theory that the City is liable for failing to adequately supervise or discipline employees to ensure disclosure of investigative files, given: (a) the lack of policies on supervision of file production; (b) the lack of any effort to audit the City's file-production procedures promulgated after Jones and Palmer ; and (c) the lack of any training or policies governing the subpoena service unit, among other things; and,
(5) the theory that the City had notice of and was deliberately indifferent to a widespread practice among its police officers of fabricating false evidence, primarily through witness coercion and corrupt identification procedures, for use in criminal cases, which resulted in violations of due process and numerous wrongful convictions.
Pl. Combined Resp. 51-52 (footnote and internal citations omitted). If Rivera is right, a trial must be held on those five theories regardless of what happens to the three listed in the City's motion because the City did not discharge its initial burden at summary judgment to "point out an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett ,
The City received ample notice that Rivera was pursuing the five disputed theories in this case. The complaint lays out his Monell theories in general terms. See ECF No. 1 ¶¶ 35-48. Rivera devoted all 43 pages of his response to defendants' fourth set of interrogatories to describing the basis of his Monell claims. See Pl. Ex. 153. An interrogatory response or expert report can put the defendant on notice of a plaintiff's theory; indeed, that is often the point of 'contention interrogatories.' See Walsh v. Chez ,
Nonetheless, as the City points out, some of the disputed theories depend on the existence of underlying widespread practices of maintaining street files and fabricating evidence, and as a result, they will fail for lack of evidence of causation if summary judgment is appropriate on Rivera's Monell claims as the City frames them. See Andersen v. City of Chicago , No.
B. Admissibility of Expert Opinions
One more general standard is important here. Rivera cites the reports of expert witnesses to establish his Monell claims. The City argues that several of the experts' opinions are unreliable, and therefore inadmissible, on several points key to Rivera's case because the expert used flawed methods to form the opinion.
At summary judgment, factual disputes must be resolved against the movant, "[b]ut the question of admissibility of expert testimony is not such an issue of fact." Gen. Elec. Co. v. Joiner ,
The City's Daubert challenges implicate the third and fourth questions. Daubert included a nonexhaustive list of factors courts may use when assessing whether an opinion is based on a sufficiently reliable methodology to be admitted. See
The court must remain vigilant not to overstep its place at summary judgment. Experts frequently opine on a hypothetical set of facts. An expert might, for instance, assume, as one set of witnesses testified, that a stoplight was green and offer an opinion in that scenario. So long as a reasonable jury could believe the witnesses who say the light was green (a genuine dispute exists), that is not a methodology problem. See Gopalratnam ,
C. Maintaining Street Files
The City's memorandum in support of its motion for summary judgment begins its analysis of this issue with a review of litigation in the 1980's over Chicago's policies and practices regarding documenting and retaining notes and other material created and gathered during investigations. The City argues that Rivera does not advance a true claim of a violation traceable to the "street file" practices discussed in the 1980's cases. ECF No. 306 at 11-12.
The Seventh Circuit first considered a "street file" claim in Palmer v. City of Chicago ,
The Palmer litigation led to several changes in CPD policy. A temporary restraining order issued in 1982 requiring the CPD to "preserve intact all police department investigative, office or working files, some known as 'street files,' together with all of the contents of such files, and all other papers and documents belonging in such files."
A six-day evidentiary hearing was conducted in the district court and based upon the evidence presented, Judge Shadur found that the detectives within the CPD's violent crimes unit "record the results of their investigations in documents that may be classified in two categories, 'Unofficial Reports' and 'Official Reports.' " According to the court, the unofficial reports consist of detectives' notes, typewritten witness statements or interviews, and major crime incident work sheets, all prepared contemporaneous with the detectives' obtaining of the information. These unofficial reports are commonly referred to as "street files," "running files," or "office files." In contrast, the official reports consist of "standardized incident, opening, supplementary and closing reports" that are typed, marked with the Record Division number assigned to the investigation, and subsequently transmitted to the CPD's Record Division headquarters.
In a separate suit brought under Brady and § 1983, George Jones won an $801,000 jury verdict against the City and several police officers. Jones v. City of Chicago ,
The Palmer and Jones cases give helpful background on the evolving practices of the CPD in the first half of the 1980's, but they do not purport to explore, much less settle, what the City's widespread practices were in 1988. On that score, the City directs the court to one more written order, Special Order 86-3, which required periodic audits to ensure compliance with CPD's investigative files policy. Resp. to City SMF ¶ 30, ECF No. 315.
1. The Jury Could Find That There Was a File the Police "Did Not Turn Over to the State's Attorney's Office as They Did with Their Regular Investigative Files"
The City first argues that Rivera has not come forward with sufficient evidence for the jury to conclude that a Jones -style street file was maintained in the Valentin investigation. City Mem. Supp. Mot. Summ. J. 11-12, ECF No. 306. This argument draws on the condition of the copy of the permanent retention file for the Valentin investigation produced during discovery. See
If consistent with a widespread practice, both possibilities fit the description of the practice in Jones .
2. No Issue Preclusion on the Existence of Widespread Practice
A similar question was tried to a jury in Fields v. City of Chicago . See No.
Invoking the doctrine of collateral estoppel, a.k.a. issue preclusion, Rivera argues that the verdict in Fields prevents the City from relitigating in this case the existence of a widespread CPD practice of keeping unofficial street files. Last year Judge Lefkow reached just such a conclusion, finding that the Monell verdict in Fields prevented the City from relitigating the same Monell claim in a § 1983 action brought by a person wrongfully convicted of a 1984
The times at which the underlying alleged constitutional violations occurred distinguish this case. "Under federal law, the doctrine of issue preclusion bars relitigating factual or legal issues if '(1) the issue sought to be precluded is the same as that involved in the prior action; (2) the issue was actually litigated; (3) the determination of the issue was essential to the final judgment; and (4) the party against whom estoppel is invoked was fully represented in the prior action [i.e., their interests were represented even if they were not a party in the prior suit].' " United States ex rel. Conner v. Mahajan ,
3. The Jury Could Find That the Practice Was Widespread
In the early 1980's, James Hickey ("Hickey") conducted a review of CPD document retention practices and found pattern of retaining investigative documents in a decentralized manner. See Resp. to SAF ¶¶ 102-03 (disputed evidence characterized favorably to plaintiff). Even the City acknowledges that there was "a struggle" to implement the 1982 and 1983 general orders within the CPD. Resp. to SAF ¶ 102 (characterizing testimony of its Fed. R. Civ. P. 30(b)(6) witness, who investigated CPD practices at the time). Rivera calls this "resistance," id. ¶ 101, the City calls it "confusion." Id. The jury must decide which is correct.
At summary judgment, however, the Jones / Palmer litigation and the CPD's resistance become the prologue to the Valentin investigation. As the City acknowledges, Judge Shadur's opinion explicitly warned City officials of the risks the system posed: "any failure to retain Unofficial Reports creates a serious potential of deprivation of defendants' constitutional rights." Palmer ,
[Certain] Defendants in this case admit that they continued the practice of keeping street files containing personal notes and memoranda exchanged between investigators that were not preserved in any official file or disclosed, and instead were destroyed. For example, Defendant Leonard took notes on a pad (not GPRs), and then destroyed his notes. Defendant Gawrys took notes as a gang crimes officer, keeping the[m] in his own personal street file, and then shredding his street file at the end of each investigation. He also wrote notes to the next shift related to ongoing investigations, and at the end of an investigation would take those out of his files and destroy them. Defendant Guzman kept his own notes, would not transfer everything from his notes into his reports, and then would shred his notes. Defendant Fallon took notes in his own personal spiral notebook, and then threw away the notes. Defendant Zacharias would take notes on a piece of paper that was not an official police form of any kind, and then discard his notes. Defendant Mingey, a sergeant overseeing the gang crimes officers that investigated the Valentin homicide, testified that there was no centralized file for an investigation and the specialists instead kept files in their own lockers or elsewhere, and destroyed their notes.
Resp. to SAF ¶ 113 (citations omitted). Defendants' only response to these facts, aside from the claim that they are not material, is to argue (improperly in a Local Rule 56.1 response) that the general orders applied to detectives, not gang crimes investigators. See id. That does not create a genuine dispute, and it seems to imply that the practice of keeping and destroying personal notes remained unabated, at least in 1988 (and perhaps today, for the record does not say anything about whether non-detectives are bound by CPD record policies today), among gang officers working gang crimes and there is evidence that Area Four (the defendants here worked in Area Five) utilized a practice of leaving notes about something needing follow up for the next shift; the notes never made it into investigative files. See id. ¶ 114 (citing Rinaldi Dep. 28:1-30:10, Pl. Ex. 77) (disputed fact).
This evidence allows the jury to go well beyond a single incident; as a sergeant, Mingey's testimony, for instance would seem to apply to the practices throughout Gang Crimes North. Cf. Calhoun v. Ramsey ,
the non-production of ... documents in [this] case, together with the circumstances suggesting they were secreted beyond the reach of prosecutors and defense attorneys, took place on a backdrop of a previously-longstanding police department custom or practice, found to exist by the jury in the Jones case, that made withholding of such records part of a regular way of doing business.19
The report, Pl. Ex. 12, ECF No. 313-15, of plaintiff's expert on police practices, Michael Brasfield ("Brasfield"), lends further support to this Monell theory. See also Report of Jeff Nobel at 14, City Tab 24, ECF No. 307-2 (creating fact dispute with contrary opinion). Brasfield identifies several defects in the City's general and special orders issued in the wake of Palmer and Jones which in his opinion left the risk of nondisclosure unacceptably high. See Brasfield Report at 56-59. Those deficiencies include not keeping investigative records in a central place, not covering gang crimes officers even though they participated substantially in investigations, leaving too much discretion on what goes in the file, and insufficient training and auditing, even after General Order 86-3's formal auditing requirement.
The City does claim that Brasfield's analysis of several files produced in discovery is unreliable. Brasfield based his opinion on a comparison of files for homicide investigations for the three years surrounding the Valentin investigation. See Brasfield Report 41. The files came from three sources: (1) 38 "criminal defense files" produced by the Cook County Public Defender's Office;
According to the City, Brasfield's analysis ignores the fact that permanent retention files were never supposed to contain GPRs, so their absence signifies nothing of evidentiary value. City Mem. Supp. Mot. Summ. J. 15; see also Resp. to City SMF ¶ 25. This seems to get the direction of comparison backwards. As the court understands Brasfield's comparison, see Report 41-49, some permanent retention files did contain handwritten notes, GPRs, and other documents not required by the governing general orders. Yet despite their sometimes gratuitous inclusion in the file in the CPD warehouse, they do not appear in the corresponding criminal defense attorney's file. See
Nor is the age of the defense files and the lack of evidence of a full chain of custody for them fatal to Brasfield's methodology. Perhaps the documents were removed from the defense files later; perhaps they were lost or stolen; Brasfield cannot say for sure. See Resp. to City SMF ¶ 59 (statement of Brasfield that he could not confirm that the defense attorneys' files were in the same condition as they were when documents were produced to the defense attorney). Brasfield also
Finally, the City faults Brasfield's analysis because he did not determine whether any of the withheld documents were material in the Brady sense. See City SMF ¶ 63. Brasfield did not have to perform a materiality analysis. As the City observes, Mot. Sum. J. 17, Rivera must "demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." See Bd. of the Cty. Comm'rs of Bryan Cty. v. Brown ,
Though Brasfield's report is not required for the court to deny summary judgment, the City's Daubert challenge to his opinions fails. The court denies summary judgment on Rivera's "street files" practice.
D. Practice of Failing to Document Lineups at Which a Filler Was Picked
To establish the existence of a widespread practice of failing to document lineups in which a filler is picked, the City proffers the analysis of Gary Wells ("Wells"), a psychology professor at Iowa State specializing in eyewitness identifications. See Resp. to SAF ¶ 138; Wells Report, Pl. Ex. 69. During discovery, the parties reviewed all 435 homicide files from CPD Area Five stored in the CPD's warehouse. Resp. to SAF ¶ 135. "The parties agreed that these 435 files were a representative sample of the City's policies, practices, or customs for documenting live, in-person, and photographic lineups on a City-wide basis, including all of the Areas."
After spot checking 30-35 files, see id. ¶ 139 (citation omitted), Wells concluded that no filler identifications had been recorded on forms provided for that purpose.
The City first says that Wells relies on sketchy data because he relied on a spreadsheet of the lineups prepared by plaintiff's counsel. Plaintiff's counsel responds that this is routine practice. That does not make the expert's opinion ipso facto reliable; this court serves only as a gatekeeper under Rule 702. Concerns about relying on attorneys' summaries are legitimate, for the court must ensure that testimony comes from an independent expert rather than a "hired gun." Tyus v. Urban Search Mgmt. ,
In its discretion, the court nevertheless determines that Wells based his opinion on reliable data. Coding a form showing the result of a lineup borders on the mechanical. Pick from one of three options: suspect, filler, or no identification. The task requires less subjective characterization than summarizing a deposition, for instance. Cf. Obrycka ,
The City also argues that Wells' analysis ignores the City's evidence that, at the time of the Valentin investigation, filler identifications were documented as negative (meaning no identification occurred) rather than as fillers, making it impossible to distinguish how many filler identifications were misdocumented. See City SMF ¶¶ 64-65 (citing testimony of Rule 30(b)(6) witness). But the City does not challenge Wells' opinion establishing a baseline rate of 23.7% filler identifications. Wells Report 4-5. If fillers were rolled into negative identifications, the jury could decide that it would expect to see a rate of negative identifications equaling the sum of expected fillers and negatives, but the observed rate of negative identifications is nearly half of what would be expected in that scenario, according to Wells' report. See id. at 7, 9-10 (filler negative identifications in field studies: 59.2%; negative rates here: 32.0%
E. Failure to Discipline Guevara
The court begins its analysis of the final Monell theory on which the City seeks
Rivera's response memorandum can be read as implying that the City has conceded that evidence of failure to discipline other officers exists. In his response, Rivera characterizes the theory at issue more succinctly as "the City is liable for failing to discipline officers." Pl. Combined Resp. 62, ECF No. 321. He then appears to narrow the issue further but lays the blame at the City's feet. See id. He says he will focus on the failure to discipline Guevara because "[t]he City's motion focuses solely on Rivera's contention that it failed to discipline Guevara." Id.
That fairly characterizes the arguments in the City's motion but not the reason given for their focus. See City Mot. Summ. J. 21-24, ECF No. 306. Plaintiff, not the City, bears the burden to come forward with enough evidence to create a fact issue on whether a widespread custom or practice was the moving force behind the constitutional violation. Dixon v. Cty. of Cook ,
The opinion in Monell defined a widespread practice as one that is "persistent," "widespread," "permanent," and "well-settled." Monell ,
Even viewed in the light most favorable to Rivera, what he cites does not create a fact issue for trial. Because Rivera relies on indirect proof of a widespread practice, he "must introduce evidence demonstrating that the unlawful practice was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision." Dixon ,
Rivera cites three cases denying summary judgment on a widespread practice theory. Pl. Combined Resp. 68-69. In Garcia v. City of Chicago , the plaintiff presented statistical evidence tending to show a low rate (less than 1%) of civil rights complaints against Chicago police officers being sustained in the three years prior to the plaintiff's beating. No.
The record here differs from the cases Rivera cites in a key respect.
It bears emphasis that the parties do not litigate the adequacy of the CPD's written policies here or whether anyone deviated from them. In Woodward , by contrast, the court found evidence of numerous deviations from written policies established a widespread practice. See
Furthermore, Brasfield offers no sufficient methodological basis for his opinion that Guevara engaged in misconduct and that the City mishandled or failed to discipline him in response to complaints lodged against him or misconduct about which City officials knew. See Brasfield Report 24. Typically, experts in this area offer an analysis of the CR files they have reviewed and why they think the investigator erred.
The court does not mean to diminish the seriousness of the kind and number of allegations against Guevara reflected in the record amassed here. See Pl. SAF ¶¶ 154-60. The jury certainly could conclude, if it believes even a small fraction of these allegations, that something at the CPD was broken as to him. But as the Seventh Circuit recently explained, "the gravamen [of a Monell claim] is not individual misconduct by police officers (that is covered elsewhere under § 1983 ), but a widespread practice that permeates a critical mass of an institutional body." Rossi ,
VII. CONCLUSION
For the reasons stated, genuine issues of material fact require a trial. Defendants' motions for summary judgment are granted in part and denied in part. The motions are granted only to the following extent:
1. the § 1983 claims for fabrication and the claims under Brady against defendants Rinaldi, Weingart, Noon, Guzman, and Fallon are dismissed;
2. the § 1983 claims against defendants Sparks and Zacharias, with the exception of the due process fabrication claim based on conduct at the gang book identification, are dismissed;
3. the portion of Rivera's due process fabrication claim based on the falsified Valentin identification on September 10, 1988, is dismissed;
4. Rivera's claims premised on the use of improper identification procedures in violation of his right to due process are dismissed;
5. Rivera's claims premised on a violation of his Fifth Amendment right not to be compelled to be a witness against himself are dismissed;
6. Rivera's § 1983 conspiracy and failure to intervene claims are dismissed solely to the extent they derive from the claims dismissed in paragraphs 1-5;
7. the malicious prosecution and intentional infliction of emotional distress claims against all defendants except Guevara are dismissed; and
8. as discussed in Part VI. E, the Monell claim based on a failure to discipline Guevara and so much of the Monell theories articulated in plaintiff's combined response to the instant motions, ECF No. 321 at 51-52, as derive from that theory are dismissed.
Notes
It appears that Rivera sometimes used the name Jose Rios.
The record includes no further details on this alleged arrest, which appears to have occurred while Rivera was a minor.
All three men in the photograph of Rivera submitted as plaintiff's Exhibit 46 wear glasses and could conceivably fit Lopez's description of the detective. The record does not make clear which man in the photograph is Guevara. Still, defendants do not dispute that one of the men in the photograph is Guevara, so based on it the jury could reasonably find that Guevara fit Lopez's description of the male detective. The photograph therefore provides the link needed to send to the jury the question of whether Guevara was the detective to whom Lopez tried to recant at the September 15, 1988, lineup.
The blanks in the Wadas file column indicate documents that are not present.
Four pages of the 29-page count include an Illinois State Police Report dated October 26, 1990, Pl. Ex. 16 at RFC 528-31, which plaintiff's Exhibit 4 does not include.
The parties agree that Nieves was in jail in Nebraska when Valentin was shot. Resp. to Officers SMF ¶ 14. As Rivera observes, nothing in the RD file suggests that efforts were made to locate Nieves. See
The court expresses no view on whether Linzer's testimony could be admitted for its truth as a prior consistent statement. See Fed. R. Evid. 801(d)(1)(B).
As the court understands them, the pending motions seek summary judgment on claims for which Rivera will bear the burden of proof at trial. The court therefore expresses no view on whether a party's Fifth Amendment silence can support summary judgment on a claim or defense for which that party bears the burden of proof. Cf. Clancy v. Coyne ,
In Fields II the Seventh Circuit used the following terminology:
Coerced testimony is testimony that a witness is forced by improper means to give; the testimony may be true or false. Fabricated testimony is testimony that is made up; it is invariably false. False testimony is the equivalent; it is testimony known to be untrue by the witness and by whoever cajoled or coerced the witness to give it. Much testimony is inaccurate, but not deliberately so and therefore not false or fabricated as we are using these words.
Fields II ,
The officer defendants note in their opening memorandum some confusion about what Rivera claims was fabricated. ECF No. 304 at 14. They analyze whether a report of the lineup prepared August 31, 1988, was used at Rivera's trial,
Also, Wadas testified that in 1988 police officers were still taking notes and destroying them rather than using the GPR form, so it was not uncommon for investigative files to have no GPRs at all. See Wadas Dep. at 87:17-22, 254:24-55:24 Pl. Ex. 19A.
Guevara's invocation of his Fifth Amendment privilege in answer to a question about whether he told Weingart about Lopez saying he had the "wrong guy" cannot by itself form the link needed to impose liability, particularly someone else's liability.
According to Rivera, the arguments on this subject in the officer defendants' opening summary judgment memorandum are underdeveloped and too perfunctory to shift the summary judgments burden. ECF No. 321 at 47, 48. To the contrary, the opening memorandum cites specific case law for each proposition, including the case on which the court relies in the text for its disposition. See ECF No. 304 at 24. If anything, it is Rivera who has forfeited an argument by failing to respond to the officer defendants' contentions that the conspiracy and IIED claims are derivative. See ECF No. 321 at 47, 48.
On pages 12-14 of its memorandum in support of its motion for summary judgment, the City argues that the jury could not find that a Brady violation occurred because Wadas failed to subpoena the CPD, because the prosecutorial file is lost, and because any documents not produced were not material. The court addressed the substance of those arguments in Part IV. B, supra.
The City makes a similar point in its briefing regarding the methodology used by one of plaintiff's experts. See City Mem. Supp. Mot. Summ. J. 15-16 ("Brasfield's admission that he could not determine if the attorney files he reviewed were in the same condition as they were during the time of the criminal proceedings also renders any comparison devoid of any evidentiary meaning.").
After Kluppelberg , Judge Kennelly held on post-judgment motions that "[t]he verdict on the Monell claim is also sustainable on other bases." Fields ,
The City objects that any documents produced in the Fields and Kluppelberg litigation may not be introduced here. The parties have not briefed this issue in their memoranda, and the court finds it unnecessary to address it now. It remains an open question for trial.
Brasfield excluded files transferred to a private attorney. Brasfield Report 42.
Two pages, not forms, arguably mentioned filler identifications. See id. ¶ 140 (collecting citations). The lineup report forms for those incidents did not record a filler identification.
Wells separately computed the rate of negative identifications for primary and ancillary lineup reports. His expert report lists the respective rates as 32.0% and 31.8%.
The parties argue at length about whether evidence of post-event conduct is relevant to the Monell analysis. The reported conduct in Garcia , Kindle , and Robinson preceded the incident made the subject of the suit. Rivera relies on alleged conduct that occurred as late as 2001. See Pl. SAF ¶¶ 154-60. On a Monell claim, "post-event evidence is admissible if it 'sufficiently relates to the central occurrence.' " Estate of Keys v. City of Harvey , No.
Rivera offers some argument on the insufficiency of the five complaints filed against Guevara before 1988 in his response to the City's Local Rule 56.1 statement of undisputed facts. See Resp. to City SOF ¶ 76 (spanning two pages). This is simply too much for a Local Rule 56.1 response, and the court disregards it, particularly because the City has not responded. Moreover, Rivera admits that some discipline was imposed under two of the CR's. See