Herbert Whitlock v. Charles Bruegge

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1059, 11-1060, 11-1061,
11-1068, 11-1069 & 11-1070
H ERBERT W HITLOCK and G ORDON “R ANDY” S TEIDL,
Plaintiffs-Appellees,
v.
C HARLES B RUEGGEMANN, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of Illinois.
Nos. 08-cv-2055 & 05-cv-2127—Harold A. Baker, Judge.
A RGUED O CTOBER 27, 2011—D ECIDED M AY 30, 2012
Before F LAUM, K ANNE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. On July 6, 1986, Karen and Dyke
Rhodes were found murdered in their home in Paris,
Illinois. They had been stabbed numerous times and
their home had been set afire. From the ashes of these
gruesome murders rises another, deeply disturbing,
allegation: that police and a prosecutor conspired to
frame two innocent men of these crimes, and over the
2 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
course of the next two decades, state officials continued
to cover up those misdeeds.
Herbert Whitlock and Gordon “Randy” Steidl were
convicted of the murders in 1987 (Steidl for both deaths
and Whitlock for Karen’s). They spent the next 21 and 17
years in prison, respectively, before each was finally
able to convince a post-conviction court to reverse his
conviction on the basis of numerous Brady violations.
Whitlock and Steidl then brought suit against a
variety of state officials for violations of their constitu-
tional rights.
We are familiar with this case from our earlier decision
in Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007), in which
we affirmed the denial of a motion to dismiss filed
on behalf of some of the defendants. The case then pro-
gressed to discovery and most of the defendants moved
for summary judgment. With minor exceptions, the
district court denied those motions and set a date for
trial. We are again asked to evaluate the district court’s
interlocutory judgment because the defendants raise a
variety of immunity defenses.
It has been nearly 25 years since Steidl and Whitlock
were convicted of the Rhodes homicides. If their claims
are true, a grave and nearly unbelievable miscarriage
of justice occurred in Paris, Illinois. Two innocent men
will have to deal with its consequences for the rest of
their lives. We find no reason to delay their day in court
for these matters any further. For the reasons we
discuss below, we affirm the district court’s denial of
each defendant’s motion for summary judgment.
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 3
I
Our earlier opinion summarizes the facts in this
case. See Fermon, 494 F.3d at 626-27. For convenience
and because this appeal involves defendants and a
plaintiff (Whitlock) who were not parties to our earlier
decision, we briefly review the material facts again here.
Wherever we encounter disputed facts we will recount
them, as we must, “in the light most favorable [to the
plaintiffs].” Borello v. Allison, 446 F.3d 742, 747 (7th Cir.
2006).
Faced with a sensational and high-profile double homi-
cide, law enforcement officials in Paris, Illinois, quickly
responded. That night, Paris police officers Gene Ray
and James Parrish, Illinois State Police investigator Jack
Eckerty, and State’s Attorney Michael McFatridge came
together to form an investigative team. In the months
and years that followed, they worked closely together
on the case.
A local businessman, Robert Morgan, and his associate,
Smoke Burba, were early suspects. Morgan owned
several local businesses, including a dog food processing
company, but Morgan and Burba were also allegedly
involved in transporting illegal drugs between Paris and
Chicago. Karen Rhodes worked for Morgan at one of his
legitimate businesses. Some of her family members and
friends told the police that Karen was concerned because
she had seen Morgan and Burba loading a machine gun
and money into Morgan’s truck, and that she was also
concerned about large amounts of unexplained cash
that were coming through Morgan’s business. This
4 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
could have provided a motive for Morgan and Burba, or
someone associated with them, to kill the Rhodeses. The
team interviewed Morgan and several of his employees,
but they did not question Burba. For reasons that are
unclear, they stopped pursuing this lead.
Their sights instead turned to Steidl and Whitlock.
Shortly before the murders, Steidl and Whitlock had met
with an FBI agent to complain about illegal gambling
in Paris. At that meeting, they named local attorneys
who were involved in the gambling ring. Although it is
not clear whether they mentioned Michael McFatridge,
the State’s Attorney, he was allegedly among those in-
volved in the illegal activity. As it happened, the FBI
agent in whom Steidl and Whitlock confided knew
McFatridge; the two had a close working relationship.
On July 9, 1986, the Paris police purportedly received
an anonymous call that Steidl and Whitlock had been
making snide comments about the murders. The police
brought Steidl and Whitlock into the station and inter-
rogated them. Both denied involvement in the murders
and gave alibis, which the police later corroborated.
They were released.
Two months later, the case remained unsolved. On
September 19, 1986, Ray and Parrish were on patrol
when they came across Darrell Herrington, a man widely
known in town for his alcohol problems. Herrington
also worked for Morgan. Herrington allegedly told the
police, “Whatever you do, don’t ask me about the mur-
ders.” Unsurprisingly, the police took him to the
stationhouse and interrogated him. Initially, Herrington
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 5
told police officers that he was present during the
murders and that they had been committed by “Jim and
Ed.” Ray and Parrish informed Eckerty and McFatridge
about this interview the next morning.
The entire investigative team met with Herrington
again on September 21. At that meeting, Herrington
changed his story entirely and named Whitlock and
Steidl as the murderers. The police then put Herrington
in seclusion for several days in a hotel. They supplied
him with money and alcohol and allegedly fed him addi-
tional details about the crimes. Herrington changed his
story again, however. During a polygraph, he said that
he did not see the murders and did not see Whitlock
and Steidl committing them. Police then had Herrington
hypnotized. During the hypnosis, Herrington stated
that he thought his memory was a drunken nightmare.
Once again, the police did not arrest Whitlock or Steidl.
Several months later, in February 1987, Debra Reinbolt
contacted her probation officer, who happened to be
James Parrish’s wife. Reinbolt wanted to get in touch
with Parrish because he had previously asked her to
serve as an informant in other cases. Reinbolt’s story is
that over the course of the next several months, Parrish
and Eckerty coerced her to implicate Whitlock and
Steidl. Led by the police, who knew she had a history
of mental illness and drug abuse, she eventually con-
cocted a tale that she was at the murder scene, saw
Steidl’s car there, and was given the murder weapon
by Whitlock when Whitlock left the Rhodeses’ house. In
response to Parrish’s urging, she even turned over a knife
6 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
to him, asserting that it was the murder weapon (though
it was not). In addition, the police pressured Reinbolt to
say that there was a broken lamp in the Rhodeses’ bed-
room and that Steidl or Whitlock had a piece of the lamp
in his hand. This fact is notable because although a
broken lamp was found at the scene, and the police
knew about its existence, they did not know that later
scientific evidence would show that the lamp had been
broken after, not before, the fire. After the police secured
this account from Reinbolt, they applied for a warrant
to arrest Steidl and Whitlock.
Herrington and Reinbolt testified at Steidl’s and
Whitlock’s trials. Their testimony and credibility was the
“sine qua non of the State’s case.” Illinois v. Whitlock,
No. 4-05-0958 (Ill. App. Ct. Sept. 6, 2007). Both were
convicted (although as we said, Whitlock was convicted
of only Karen’s death). Steidl was sentenced to death
and Whitlock to life in prison. Years later, both Her-
rington and Reinbolt gave sworn statements recanting
their trial testimony and alleging that the police
had told them what to say. McFatridge then drafted af-
fidavits retracting these recantations, and each signed
the new statements. In 1996, Reinbolt gave a second, sworn
and videotaped recantation. This again was followed
by the state’s attorney’s taping a retraction of her recanta-
tion.
In April 2000, additional Illinois State Police (ISP) officers
entered the case. ISP Lieutenant Michale Callahan began
reviewing the case and concluded that Herrington and
Reinbolt’s trial testimony was false and that Steidl and
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 7
Whitlock were innocent. Callahan detailed this informa-
tion in several memoranda. As we recounted in our
earlier opinion, the ISP defendants began suppressing
Callahan’s findings. Fermon, 494 F.3d at 626-27. During
this time, the governor’s office was considering
pardoning Whitlock and Steidl, and both Whitlock and
Steidl had pending post-conviction petitions in state
(Whitlock) and federal (Steidl) court.
Steidl’s conviction was ultimately vacated on June 17,
2003, when the U.S. district court granted his petition
for habeas corpus. The state decided not to reprosecute
Steidl because of numerous Brady violations that had
tainted his trial and the lack of credibility of Herrington
and Reinbolt. Steidl was released from prison on
May 28, 2004. Whitlock’s conviction was not set aside
until September 6, 2007, when the Illinois Appellate
Court overturned it. The state prepared to retry Whitlock,
but ultimately it decided not to proceed. Whitlock was
not released from prison until January 8, 2008.
After his release, Steidl filed a Section 1983 suit raising
both federal and state law claims. When Whitlock was
released, he too filed suit and the two cases were
joined. After discovery, the defendants moved for sum-
mary judgment. The district court granted only de-
fendant Jeff Marlow’s motion for summary judgment
on his federal claims; it denied summary judgment for
all other claims and defendants. This appeal followed.
8 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
II
We begin with the appeal of the first group of defen-
dants—Jack Eckerty,1 James Parrish, and Gene Ray—to
whom we refer as the “police defendants.” And we
start, as we must, with the question of our jurisdiction.
We have jurisdiction to consider the merits of these
appeals only “to the extent that [they] turn[] on legal
rather than factual questions.” Via v. LaGrand, 469 F.3d
618, 622 (7th Cir. 2006). That is because our jurisdiction
is limited to “final decisions of the district courts.” 28
U.S.C. § 1291. Under the collateral-order doctrine, some
decisions may be considered “final” and thus im-
mediately appealable even if issued before final judg-
ment. See Jones v. Clark, 630 F.3d 677, 679 (7th Cir. 2011)
(discussing Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949)). A decision denying a defendant’s
motion for summary judgment on the ground of
qualified or absolute immunity is such a decision.
Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985). But “a
defendant who appeals from a denial of qualified immu-
nity must limit himself to ‘abstract issues of law.’ ” Clark,
630 F.3d at 679 (quoting Johnson v. Jones, 515 U.S. 304,
317 (1995)). He “may not appeal a district court’s
summary judgment order insofar as that order
determines whether or not the pretrial record sets forth
a ‘genuine’ issue of fact for trial.” Id.; see also Hill v.
1
On the eve of oral arguments, Steidl reached a settlement
with Eckerty. Eckerty thus remains in this case only as a
defendant in Whitlock’s suit.
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 9
Coppleson, 627 F.3d 601, 605 (7th Cir. 2010) (same for
absolute immunity).
Before oral argument in this case, the plaintiffs
requested that we dismiss the appeals for lack of jurisdic-
tion, on the ground that the appeals did not raise any
purely legal question. We chose not to do so at that time,
preferring to consider the factual and legal questions
with the benefit of a more complete understanding of
the record. Nothing about our earlier decision not to
dismiss the appeals is binding; we are always free to
reconsider a motions panel’s jurisdictional decision. See
United States v. Henderson, 536 F.3d 776, 778 (7th Cir.
2008) (“Decisions by motions panels do not ‘resolve
definitively the question of our jurisdiction, and we are
free to re-examine’ the question when the merits panel
hears the case.” (quoting United States v. Lilly, 206 F.3d
756, 760 (7th Cir. 2000))). We take the opportunity to do
so now.
A
The police defendants argue that we have jurisdiction
to consider their appeals because they are “not based on
the disputed factual record, but rather upon the insuffi-
ciency of the district court’s ruling that denied them
qualified immunity.” In their view, the district court
failed to identify sufficient evidence in support of its
finding that material issues of fact precluded summary
judgment. Worse yet, the police defendants argue, the
only evidence the court did cite was inadmissible hear-
say. See F ED. R. C IV. P. 56(c)(2).
10 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
No matter how vigorously the police defendants
contend that these issues are the sort of abstract legal
questions we have jurisdiction to review at this stage of
the litigation, they are not. They are merely a “back-door
effort to contest the facts.” Clark, 630 F.3d at 680. The
police defendants frame their appeal as a challenge to
the sufficiency of the court’s explanation but they are
essentially arguing that there is no dispute of material
fact and that the district court failed to appreciate this
(as evidenced by its lack of citation to the record). This is
no more than a “sufficiency of the evidence” appeal that
we have no jurisdiction to consider. Leaf v. Shelnutt,
400 F.3d 1070, 1078 (7th Cir. 2005).
The defendants are correct that the district court’s
opinion in this case could have been more thorough.
We strongly encourage district courts to offer full,
reasoned explanations of their decisions, complete with
detailed citations to the record. But a district court’s
failure to do so, though regrettable, does not somehow
transform a decision based on disputes of fact into one
that contains a reviewable question of law. Our review
is de novo; even if a district court does not explain its
decision at all, we can “affirm summary judgment on
any basis we find in the record.” Nature Conservancy v.
Wilder Corp. of Delaware, 656 F.3d 646, 653 (7th Cir. 2011).
The Supreme Court has recognized that this might some-
times occur. In Johnson, the Court explained that district
courts “may simply deny summary judgment motions
without indicating their reasons for doing so.” 515 U.S.
at 319. In those less-than-perfect circumstances, “a court
of appeals may have to undertake a cumbersome review
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 11
of the record to determine what facts the district court,
in the light most favorable to the nonmoving party,
likely assumed.” Id.The brevity of the district court’s opinion thus raises
no legal question in and of itself that permits us to
exercise jurisdiction here. In each of the examples the
defendants give of this court’s remanding to a district
court to reevaluate summary judgment, we did so not
because the court’s reasoning was insufficient but be-
cause the district court had made some legal error
and failed to conduct a proper qualified immunity
inquiry in the first place. See, e.g., Hernandez v. Cook Cnty.
Sheriff’s Office, 634 F.3d 906 (7th Cir. 2011) (erroneously
believed defendants had waived qualified immunity);
Green v. Carlson, 826 F.2d 647, 652 (7th Cir. 1987) (applied
wrong standard in evaluating claim of qualified immu-
nity); Whitt v. Smith, 832 F.2d 451, 453 (7th Cir. 1987) (failed
to address qualified immunity claim entirely). Here the
court has addressed the qualified immunity question, and
the police defendants raise no issue with the court’s
analysis beyond their contention that the district court
did not thoroughly discuss the facts.
Importantly, the district court’s opinion touches on
the central points. It explicitly refers to several items—
notably, the recantations of Reinbolt and Herrington—
that, if true (as we must assume at this stage), provide
evidence that police officers Eckerty, Parrish, and Ray
coerced and manipulated those witnesses to implicate
Whitlock and Steidl falsely in the murders.
12 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
The police defendants admit that the court considered
the recantations, but they urge that we have jurisdiction
because there is a legal question whether the recantations
were inadmissible hearsay. Questions of admissibility
are indeed legal questions; but they are not the sort
of legal questions that are sufficiently separable from
the merits so as to provide us with jurisdiction in a col-
lateral-order appeal. McKinney v. Duplain, 463 F.3d 679,
690 (7th Cir. 2006). In McKinney, the defendant presented
the same argument that the police defendants offer here:
he argued that “the record does not support the district
court’s conclusion that a genuine issue of fact exists . . .
because the only evidence that supports [the plaintiff’s
claim] comes from the inadmissible opinions of the prof-
fered experts.” We were sympathetic to the defendant’s
position in McKinney that the expert opinions there did
not meet the admissibility threshold of Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharm., 509
U.S. 579 (1993). Indeed, we explained that “were we to
review the record . . . we would have great difficulty in
finding them admissible under Daubert.” Id. But we
concluded that “given the mandate of Johnson, we lack
jurisdiction to conduct such a review of the record.” Id.;
see also Ellis v. Washington Cnty., 198 F.3d 225 (6th Cir.
1999) (holding that there was no jurisdiction under
Johnson to review whether denial of summary judgment
was based on inadmissible hearsay).
B
If we are mistaken about the jurisdictional issue, we
add that we see serious problems with the police defen-
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 13
dants’ position. Although Herrington’s and Reinbolt’s
recantations were both out-of-court statements, it is
likely that each would be admissible—Herrington’s
because his death makes him unavailable, F ED. R. E VID.
804(a)(4), and his recantation is a statement that
exposes him to perjury charges, F ED. R. E VID. 804(b)(3),
and Reinbolt’s because she is a named defendant in
Whitlock’s case and thus a party-opponent, FED. R. E VID.
801(d)(2). In both cases, if Reinbolt were called to testify
at trial, her sworn recantation would probably be ad-
missible as a prior statement by a witness. F ED. R. E VID.
801(d)(1). If her testimony at trial is inconsistent with
the recantation, the recantation would be admissible
under Rule 801(d)(1)(A). On the other hand, if her testi-
mony at trial is consistent with the recantation, it may
still be admissible under Rule 801(d)(1)(B) to rebut a
claim that she had recently fabricated the recantation.
Once admitted, Herrington’s statement alone precludes
summary judgment by supporting plaintiffs’ contention
that the police defendants violated their right not to
have police officers manufacture false evidence. See
Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008)
(“There was and is no disputing that such conduct [in-
cluding fabricating evidence] violates clearly established
constitutional rights.”). The police defendants admit that
“fabricating, withholding, and suppressing material ex-
culpatory and impeaching evidence is unconstitutional.”
During the police defendants’ first interrogation of
Herrington on September 19, 1986, he initially identified
“Jim and Ed” as the perpetrators of the murders. The
police defendants assert that he changed his mind and
14 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
then fingered Whitlock and Steidl during that Septem-
ber 19 interrogation, but Herrington has stated that he
did not change his story until a few days later. During
that time (and at other times) Herrington said that
police defendants gave him alcohol and told him
details about the murders that he should include in
his testimony: that Steidl possessed a fillet knife; that
Herrington knew where the bodies were positioned; and
that Karen’s face was covered by a pillow. In his sworn
recantation, he said that “they told me everything to
say” and “ain’t none of it true.” The police defendants
suggest that the fact that State’s Attorney McFatridge
was aware of this conduct would have discharged their
Brady obligations. But police must disclose exculpatory
evidence to a “competent authority.” Fermon, 494 F.3d
at 630. It is not likely that the police may take shelter
behind a prosecutor who is conspiring with them to
fabricate false evidence against innocent suspects.
Reinbolt’s recantation supplies additional grounds
to conclude that the police defendants knew of, and
failed to disclose, exculpatory evidence. In her sworn
statement she recounted how Parrish coerced her to
produce the (false) murder weapon. She reported that
he became angry, that he threatened violence, that
Parrish and Eckerty badgered her and pressured her to
say things that they wanted her to say, and that at
times they supplied her with alcohol. Defendant Parrish
has admitted that Reinbolt told the police defendants
as many as five different stories about the night of the
murders before trial, and as many as six after the trial.
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 15
ISP investigator Marlow, a defendant in this case, con-
cluded after reviewing the record that Reinbolt’s and
Herrington’s stories were the product of “blatant fabrica-
tion” and were “created.”
With all of that said, our best judgment is that we
lack jurisdiction to consider the police defendants’
appeals because none of the issues they raise are legal
questions sufficiently separable from the merits. Even if
we were to address the merits of their appeal, this
limited review of the record shows that there is enough
admissible evidence supporting the plaintiffs’ claim to
create a dispute of material fact.
III
We next turn to the appeal of Michael McFatridge, the
original prosecuting attorney. McFatridge’s appeal raises
several questions distinct from those raised by the police
defendants because, as a prosecutor, McFatridge enjoys
absolute immunity for “acts undertaken . . . in the course
of his role as an advocate for the State.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
We begin again with the question of our jurisdiction.
McFatridge is accused of violating Whitlock’s and Steidl’s
constitutional rights during three different periods:
(1) before February 19, 1987, the date when he applied for
arrest warrants; (2) between February 19, 1987, and Decem-
ber 31, 1991, the date he stepped down from the State’s
16 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
Attorney’s office;2 and, (3) the time from his resignation
until Whitlock’s and Steidl’s convictions were reversed.
We can quickly dispose of the second and third periods.
The district court held that McFatridge was shielded by
absolute immunity during the second period because,
once arrest warrants were issued, he was acting as an
advocate for the state. Fields v. Wharrie, 672 F.3d 505,
510 (7th Cir. 2012); Coppleson, 627 F.3d at 605. McFatridge
is not complaining about that ruling, and plaintiffs did
not file a cross-appeal challenging it; we thus have no
jurisdiction to revisit it.
For a different reason, we lack jurisdiction over
McFatridge’s appeal with respect to the third period:
disputes of material fact remain. McFatridge argues that
he cannot be held liable under Section 1983 for his
actions during this period because he was no longer a
state official and thus was not acting under “color of
law.” Plaintiffs retort that McFatridge was still acting
under color of law because he acted in concert with state
actors when he made public statements during their
post-conviction and clemency proceedings that con-
tinued to violate their constitutional rights.3 Everything
here depends on McFatridge’s interactions with others,
2
The district court’s opinion refers to this date as December 31,
2001. This must be a typo, as the record reflects that the
actual date was December 31, 1991.
3
We note that this is quite different from the situation we
faced in Fields v. Wharrie, 672 F.3d 505 (7th Cir. 2012), where
the prosecutors remained in office but had differing degrees
of responsibility for that particular case.
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 17
and those facts are disputed. We have no jurisdiction
to consider this factual dispute on an interlocutory
appeal. We note, however, that in order to hold
McFatridge liable for his post-resignation conduct under
42 U.S.C. § 1983, plaintiffs will eventually have to show
that McFatridge acted under “color of law,” by “jointly
engag[ing] with state officials in the prohibited action.”
Adickes v. Kress, 398 U.S. 144, 152 (1970). This is a high
standard. “[T]here must be evidence of a concerted effort
between a state actor and [a private] individual.” Fries v.
Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (emphasis in
original); see also Filarsky v. Delia, 132 S. Ct. 1657 (2012)
(holding that a private attorney retained by a city to
investigate wrongdoing is entitled to assert qualified
immunity). They would also need to address one of the
points that was critical in Fields: how to surmount
the burden of showing that the original prosecutor some-
how ceased to function in that capacity after he
was officially removed from the case. Now is not the
time to address those issues in our case; we merely
flag them for the future.
This brings us to the heart of McFatridge’s appeal:
whether at this time he is entitled to prevail on his claim
of absolute or qualified immunity for his conduct during
the first period, before the arrest warrant issued. He
has asserted that he is entitled to absolute immunity based
on Imbler v. Patchman, 424 U.S. 409 (1976), or in the alterna-
tive, that he is entitled to qualified immunity because he
did not violate any of the plaintiffs’ clearly established
constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800(1982); Pearson v. Callahan, 555 U.S. 223 (2009). McFatridge
18 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
cannot prevail on either of these theories, as we now
explain.
A. Absolute Immunity
The district court rejected McFatridge’s assertion of
absolute immunity because, in its view, the record con-
tained “evidence about McFatridge’s involvement with
the police during the investigation phase of the cases that
could support the conclusion that he was acting in an
investigative mode.” Specifically, the district court held
that “manufacturing [false evidence] and directing the
police officers . . . in their treatment and pursuit of the
witnesses Herrington and Reinbolt; and directing the
police to abandon any inquiry about other suspects”
were actions taken in an investigative capacity. Thus,
using the functional test of Buckley v. Fitzsimmons, 509
U.S. 259 (1993), it concluded that McFatridge was
protected by only qualified, not absolute, immunity.
McFatridge argues that this holding lacks adequate
factual foundation: he says that the court erred by
“focus[ing] on Plaintiffs [sic] theories and accusations of
wrongdoing which lack factual support.” He urges that
if the court had considered only admissible facts and
allegations supported by the record, it would have
realized that McFatridge “never engaged in any inves-
tigative activities” and thus was entitled to absolute
immunity.
These arguments take issue solely with the district
court’s analysis of the facts, not with its application of
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 19
the law. This interlocutory appeal is therefore not the
proper place for McFatridge to challenge those decisions.
We recently addressed a similar situation in Hill v.
Coppleson, 627 F.3d 601 (7th Cir. 2010). In Hill, the “ques-
tion of whether [the prosecutor] was acting in the role
of an advocate or an investigator depend[ed] in part on
whether probable cause for [the plaintiff’s] arrest ex-
isted.” Id. at 605; see also Buckley, 509 U.S. at 274 (“A
prosecutor neither is, nor should consider himself to be,
an advocate before he has probable cause to have
anyone arrested.”). Here too, “the probable cause ques-
tion turns on a disputed issue of fact.” 627 F.3d at 605.
On February 19, 1987, when McFatridge submitted
arrest warrants for Whitlock and Steidl, a judge deter-
mined that probable cause existed to support their ar-
rests. As we have already said, the correctness of
the district court’s decision that from that point on
McFatridge was protected by absolute prosecutorial
immunity is not properly before us. McFatridge tries to
argue that he was protected by immunity before that
point, too, because he believes that Herrington’s inter-
view supplied probable cause much earlier. But that
fact is hotly disputed. There is evidence in the record
that the police did not believe that Herrington’s
interview provided probable cause, given Herrington’s
compromised credibility. This view of the likely assess-
ment by the police is corroborated by the fact that they
did not attempt to arrest Whitlock and Steidl immedi-
ately after obtaining Herrington’s initial statements; it
was not until Reinbolt’s statement that they sought an
arrest warrant.
20 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
McFatridge argues that even if probable cause did not
arise until February 19, we should find that his actions
during the pre-arrest warrant phase were not investiga-
tive. He contends that he was merely overseeing the
investigation to try to build a case for a future trial.
But the Supreme Court has eschewed bright-line rules
based solely on the status or job description of the pros-
ecutor. It has instead said that “[a] prosecutor may not
shield his investigative work with the aegis of absolute
immunity merely because, after a suspect is eventually
arrested, indicted, and tried, that work may be retro-
spectively described as ‘preparation’ for a possible
trial; every prosecutor might then shield himself from
liability for any constitutional wrong against innocent
citizens by ensuring that they go to trial.” Buckley, 509
U.S. at 276. We made a similar observation in Fields,
when we said that “absolute immunity doctrine focuses
on whether the nature of the action is prosecutorial,
not on the fact that the actor is a prosecutor.” 672 F.3d
at 514.
The fact that McFatridge eventually proceeded with
this prosecution does not wipe away his involvement in
the investigation at its earliest stages. He went to the
scene of the crime and the hospital shortly after the
murders, long before probable cause supported any
arrests or anyone had sought his advice as a lawyer.
Under the functional line the Supreme Court drew in
Buckley, a prosecutor does not enjoy absolute immunity
before he has probable cause. 509 U.S. at 274; see Fields,
672 F.3d at 512 (“Prosecutors do not function as advocates
before probable cause to arrest a suspect exists.”). We
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 21
readily concede that the question whether a prosecutor
always has absolute immunity for conduct taken after
he has probable cause is murkier, see Buckley, 509 U.S.
at 281 (Scalia, J., concurring), but we need not address
that issue here. Plaintiffs have not appealed the district
court’s holding that McFatridge had absolute immunity
for all post-probable cause conduct, and so we have
nothing to say about it.
In the end, we conclude just as we did in Hill that we
cannot resolve the absolute immunity question for
McFatridge’s conduct during the first period without
resolving the factual dispute over the moment when
probable cause developed. If McFatridge took no action
related to the investigation before that point and became
involved only after he had put on his prosecutorial hat,
then he will be entitled to absolute immunity. If, on
the other hand, plaintiffs can prove that he fabricated
evidence before probable cause arose, then absolute
immunity is off the table. We conclude that we have
no jurisdiction over this aspect of the appeal.
Before moving on to the issue of qualified immunity,
we pause to explain why we believe that nothing in
what we have said about absolute immunity conflicts
with our recent decision in Fields. The underlying facts
in Fields were similar to those before us, but the
procedural setting differed considerably. There, plaintiff
Nathan Fields had been convicted of two murders in
1986; some 25 years later, he was exonerated, and he
sued two assistant state’s attorneys (among others) for
damages on the theory that they “induced false testi-
22 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
mony during his trial and subsequent retrial, suppressed
the compromised nature of this testimony and its acquisi-
tion from him, and denied him due process.” 672 F.3d
at 508. The appeal reached our court from the district
court’s decision to deny absolute immunity to the two
prosecutors. We reversed, with the following findings:
(1) . . . [Assistant State’s Attorney] Wharrie is entitled
to absolute immunity for his alleged solicitation of
false testimony from Earl Hawkins after Fields’ origi-
nal trial, as well as for his alleged suppression of its
falsity; and (2) . . . Fields failed to state a claim
against [Assistant State’s Attorney] Kelley with
respect to his alleged coercing Randy Langston’s
testimony.
Id.
Context matters in these cases, as Fields acknowledged,
672 F.3d at 512, and the most conspicuous difference
between our case and the one in Fields is the alleged role
played by the prosecutor. Fields argued that Wharrie
suppressed the fact that he asked Hawkins to lie after
Fields was already convicted, in the event of a potential
retrial. If true, that would be reprehensible, but the law is
clear that absolute immunity applies to a prosecutor’s
decisions about evidence and her implementation of her
Brady responsibilities. It was in that setting that we re-
marked that Brady and Giglio obligations are func-
tionally prosecutorial. Id. at 512. We did not say, nor did
we mean, that Brady and Giglio exhaust the possible
issues that might arise under the due process clause.
Where a litigant presents a due process claim—Brady,
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 23
Giglio, or otherwise—the question of immunity turns on
the capacity or function that the prosecutor was perform-
ing at the time of the alleged wrongful conduct. That is
why we noted more recently in Lewis v. Mills, No. 11-2012,
2012 WL 1372110 (7th Cir. April 20, 2012), that “a
showing that a prosecutor investigated and fabricated
evidence against a target would automatically defeat
absolute prosecutorial immunity, even if that target
was later brought to trial.” Id. at *5 (emphasis added).
In short, because the record in Fields indicates that
the two prosecutors there had undertook all of the
challenged acts while acting in a prosecutorial role,
this court reversed the district court’s decision denying
immunity. The focus of our case, as we have narrowed it,
is exclusively on the period before probable cause sup-
ported the prosecution, when a prosecutor is unquestion-
ably acting in an investigative role. Because there are
factual issues that must be resolved before we can pin-
point that moment, it is not suitable for resolution at
this time.
B. Qualified Immunity
The absolute immunity inquiry is not all that
McFatridge is presenting; he also challenges the district
court’s decision refusing to find that he has qualified
immunity from suit. An official is entitled to qualified
immunity for conduct that “does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow, 457 U.S.
at 818. The Supreme Court has held that two central
24 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
questions must be addressed in the course of determining
whether qualified immunity is available: whether the
plaintiff has alleged a deprivation of a constitutional
right at all, and whether the right at issue was clearly
established at the time and under the circumstances
presented. See Pearson, 555 U.S. at 232. Courts may take
up those questions in whatever order seems best for
the case at hand.
As the Supreme Court suggested in Saucier v. Katz,
553 U.S. 194 (2001), we will take up first the question
whether the plaintiffs have identified a violation of their
constitutional rights, and we will then consider whether
the law was clearly established such that any reasonable
person should have known what was required.
i
We have consistently held that a police officer who
manufactures false evidence against a criminal defendant
violates due process if that evidence is later used to
deprive the defendant of her liberty in some way. In
Jones v. City of Chicago, we upheld a jury’s imposition
of damages against a variety of defendants, including
police officers and a crime lab technician, who “were
determined to put away George Jones regardless of
the evidence.” 856 F.2d 985, 993 (7th Cir. 1988). We have
since said that there “is no disputing that such conduct
[fabricating evidence] violates clearly established con-
stitutional rights.” Dominguez v. Hendley, 545 F.3d
585, 589 (7th Cir. 2008). Indeed, in this very case, the
police defendants admit that the allegations that they
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 25
fabricated evidence—the same allegations as those
against McFatridge—state a due process claim.
The only question is whether a prosecutor who is
acting in an investigatory capacity is subject to rules
that are any different. We think not. A prosecutor who
manufactures evidence when acting in an investigatory
role can cause a due process violation just as easily as
a police officer. The fact that the prosecutor who
introduces the evidence at trial cannot be liable for the
act of introduction, whether it is the same prosecutor
who fabricated the evidence or a different prosecutor, is
beside the point. It would be “incongruous,” Burns v.
Reed, 500 U.S. 478, 495 (1991), to hold a police officer
liable for fabricating evidence but hold that the
prosecutor has not committed any violation for taking
the same action in the same capacity.4
In fact, the whole point of the Supreme Court’s rule in
Buckley is that the police and investigating prosecutors
are subject to the same constraints. McFatridge pushes
back against that conclusion primarily by arguing that
4
Our comment in Fields that there might be a distinction
between the liability of a police officer who fabricates
evidence and that of a prosecutor who fabricates or
suppresses evidence must once again be understood against
the backdrop of the facts there. See 672 F.3d at 514. Once
the prosecutor ceases his investigatory work and acts in a
prosecutorial capacity, he is entitled to absolute immunity even
if the police officers who are working side by side with him
may invoke only qualified immunity.
26 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
the allegations against him fall short because of his later
prosecutorial role. He cites this court’s decision in
Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994) (Buckley
IV ), for the proposition that even if he had participated
in the coercion of witnesses Herrington and Reinbolt, that
action alone did not violate Whitlock’s and Steidl’s rights.
Their rights were not violated, he contends, until the
perjured testimony was introduced at trial. McFatridge
enjoys absolute immunity for anything that happened at
trial, of course. We thus focus exclusively on the legal
question whether coercing witnesses to perjure them-
selves during the investigatory phase of a case can give
rise to an actionable due process violation against a
prosecutor.
In Buckley, the Supreme Court assumed that the
answer to that question is yes in order to hold that prose-
cutors have the same immunity as police officers for
such conduct. See 509 U.S. at 274 n.5. The Court was
poised to address this question more directly in McGhee
v. Pottawatamie Cnty., 547 F.3d 922 (8th Cir. 2008), cert.
granted, 129 S. Ct. 2002 (2009), in which the Eighth
Circuit squarely held that this conduct violates due
process. But the parties settled after oral argument and the
Court dismissed the case without an opinion. See 130
S. Ct. 1047 (2010). We thus focus on earlier Supreme
Court case law addressing a prosecutor’s creation and
use of perjured testimony.
In Mooney v. Holohan, 294 U.S. 103 (1935), Pyle v. Kansas,
317 U.S. 213 (1942), and Napue v. Illinois, 360 U.S. 264(1959), the Supreme Court held that a prosecutor
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 27
violates due process when she knowingly uses perjured
testimony to secure a conviction. The question before us
is whether that principle also covers the predicate step
of creating the false testimony. In Napue, the Court con-
demned something even more innocuous—a prosecutor’s
failure to correct a witness—while pointing out that it
was not as bad as affirmatively “soliciting false evi-
dence.” 360 U.S. at 269. It is hard to see how the more
egregious step of crafting false evidence is any less of a
violation. That creation, whether by police officers or by
a prosecutor acting in an investigatory capacity, would
not happen unless the investigatory personnel intended
to serve it up to the prosecutor for use at trial—which,
we note, is exactly what happened here. As the First
Circuit has put it, “if any concept is fundamental to
our American system of justice, it is that those charged
with upholding the law are prohibited from deliberately
fabricating evidence and framing individuals for crimes
they did not commit. Actions taken in contravention of
this prohibition necessarily violate due process (indeed,
we are unsure what due process entails if not protection
against deliberate framing under color of official sanc-
tion).” Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004).
McFatridge’s error is to assume that because a pros-
ecutor acting in a prosecutorial capacity cannot be liable
for the act of introducing perjured testimony (because
of the protection of absolute immunity), he cannot be
liable while acting in an investigatory capacity for
creating false testimony. The only wrong, he argues, is
the one that occurred at trial and thus any fabrication
in which he participated is beyond the reach of the law.
28 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
This argument ignores the lessons of Mooney and Napue.
McFatridge is correct that the alleged constitutional
violation here was not complete until trial. That is
because a violation of the Fourteenth Amendment does
not occur unless a person is “deprive[d] . . . of life, liberty,
or property, without due process of law.” U.S. C ONST.
amend. XIV. As we explained in Buckley IV, if an officer
(or investigating prosecutor) fabricates evidence and
puts that fabricated evidence in a drawer, making no
further use of it, then the officer has not violated due
process; the action did not cause an infringement of any-
one’s liberty interest. 20 F.3d at 795; see also id. at 796(“Just as there is no common law tort without injury,
there is no constitutional tort without injury.”). In other
words, in such a case the plaintiff could not establish one
of the necessary elements of a constitutional tort: that the
officer’s act (fabrication) caused any injury. See McCree
v. Grissom, 657 F.3d 623, 624 (7th Cir. 2011) (dismissing
Section 1983 suit for failure to state a claim where
plaintiff “did not allege an injury”) (per curiam). This
principle is universally recognized among circuits that
have considered this question. See, e.g., Zahrey v. Coffey, 221
F.3d 342, 348 (2d Cir. 2000) (“The manufacture of false
evidence, ‘in and of itself,’ . . . does not impair anyone’s
liberty, and therefore does not impair anyone’s constitu-
tional right.”); Landrigan v. City of Warwick, 628 F.2d 736,
744 (1st Cir. 1980) (“For purposes of recovering damages
at least, we do not see how the existence of a false
police report, sitting in a drawer in a police station, by
itself deprives a person of a right secured by the Con-
stitution and laws.”); see also Buckley, 509 U.S. at 281
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 29
(Scalia, J., concurring) (“I am aware of no authority for
the proposition that the mere preparation of false
evidence, as opposed to its use in a fashion that deprives
someone of a fair trial or otherwise harms him, violates
the Constitution.”).
Here, the plaintiffs have properly alleged that the act
of fabrication caused a harm to them: the fabricated
evidence, because it was introduced against them at
trial, was instrumental in their convictions. Section 1983
imposes liability on every official who “subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983 (emphasis
added). This provision must be “read against the back-
ground of tort liability.” Monroe v. Pape, 365 U.S. 167,
187 (1961). Causation is a standard element of tort
liability, and includes two requirements: (1) the act must
be the “cause-in-fact” of the injury, i.e., “the injury
would not have occurred absent the conduct”; and (2) the
act must be the “proximate cause,” sometimes referred
to as the “legal cause,” of the injury, i.e., “the injury is of a
type that a reasonable person would see as a likely
result of his or her conduct.” Ciomber v. Cooperative Plus,
Inc., 527 F.3d 635, 640 n.1 (7th Cir. 2008) (citing 1 D AN B.
D OBBS, T HE L AW OF T ORTS § 182 (2001)). This is the sense
in which the “location of the injury” is relevant to
“whether a complaint has adequately alleged a cause of
action for damages.” Buckley, 509 U.S. at 272. Causation
requires us to analyze the relation between an official’s
conduct and a resulting injury; when, where, and exactly
30 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
how that injury occurs is part of the proximate cause
question. Cf. Martinez v. California, 444 U.S. 277, 285 (1980)
(injury that resulted from parolee’s killing was “too
remote” from state parole board’s decision to release
the parolee to hold the board liable for the death).
The actions of an official who fabricates evidence
that later is used to deprive someone of liberty can be
both a but-for and proximate cause of the due process
violation. Without the fabrication, the prosecuting
attorney would have had no tainted evidence to
introduce at trial. And in a trial where the fabricated
evidence is the crux of the case (as Whitlock and Steidl
allege is the case here), a plaintiff could show that the
fabrication was a but-for cause of his conviction.
We have found fabrication to be a proximate cause of
the violation in comparable cases. This is why we
hold police officers who fabricate evidence liable
for the liberty deprivation that occurs later when the
fabrication is used. Jones, 856 F.2d at 994 (calling
the police officer’s role “instrumental” in causing the
violation). In Jones we explained that “[i]n constitu-
tional-tort cases as in other cases, ‘a man [is] respons-
ible for the natural consequences of his actions.’ ” 856
F.2d at 993 (quoting Monroe, 365 U.S. at 187). A prosecu-
tor’s decision to introduce the bad evidence at trial may
be a second proximate cause, albeit one beyond the reach
of the law if absolute immunity applies because the
prosecutor is acting in a prosecutorial function. But even
though a prosecutor’s immunized decision may be closer
in time to the deprivation of liberty than the officer’s
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 31
earlier decision to fabricate, there is no rule demanding
that every case have only one proximate cause. To the
contrary, “multiple proximate causes are often present”
and “an actor’s tortious conduct need not be close in space
or time to the plaintiff’s harm to be a proximate cause.”
R EST. 3 D T ORTS § 29 cmt. b. Thus it does not matter that
other acts are also proximate causes of the ultimate viola-
tion, or that some of those acts may be taken by an actor
who is absolutely immune.
That a prosecutor has absolute immunity for conduct
taken in his advocacy role is beside the point for this
purpose: “there is no common-law tradition of immunity
for [investigatory conduct], whether performed by a
police officer or prosecutor.” Buckley, 509 U.S. at 274 n.5.
Thus, a prosecutor whose investigatory conduct is the
proximate cause of the due process violation that occurs
when the false evidence is introduced at trial is held to
the same standard of liability as a police officer who
does the same thing. See Buckley IV, 20 F.3d at 797 n.2
(explaining that a prosecutor acting in an investigatory
capacity and thus not absolutely immune could be
liable just like a police officer, “under the rationale of
Jones”).
The causal link between a police officer’s fabrication
and the victim’s injury may be broken if that police
officer tells a prosecuting attorney before trial about the
fabrication. We noted in Buckley IV that the officers in
Jones would not have been liable “if the prosecutors had
known the truth and proceeded anyway” because “then
the immunized prosecutorial decisions would be the
32 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
cause of the injury.” 20 F.3d at 797; see also Newsom v.
McCabe, 256 F.3d 747, 752 (7th Cir. 2001) (explaining
the converse: “If officers are not candid with prosecutors,
then the prosecutors’ decisions—although vital to the
causal chain in a but-for sense—are not the important
locus of action.”). In the hypothetical scenario from
Jones, causal responsibility for the violation lies with
the prosecutor who chooses to put on the fabricated
evidence, not with the fabrication itself, because “[i]f the
prosecutors had known” of the fabrication they could
(and should) “have dropped the charges.” Jones, 856 F.2d
at 993.
Another way of describing this break in the causal chain
is that a prosecutor’s action in putting evidence on,
known to be fabricated, may in some circumstances be a
superseding or supervening cause of the violation. See
R EST. 3 D T ORTS § 34; cf. Malley v. Briggs, 475 U.S. 335, 345
(1986) (judge’s decision to issue an arrest warrant does
not break causal chain of police officer’s liability for
submitting an affidavit without probable cause); see also
Dominguez, 545 F.3d at 589-90 (discussing proximate
and supervening causes). This formulation does not
help McFatridge, however, because in his case there is
no supervening cause that breaks the chain from his
fabrication as an investigator to the constitutional viola-
tion. McFatridge was one of the officials who allegedly
fabricated evidence. One’s own conduct cannot be an
intervening cause sufficient to defeat a finding of causa-
tion. “A superseding cause is something culpable that
intervenes . . . , some action of a third party that makes
the plaintiff’s injury an unforeseeable consequence of the
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 33
defendant’s negligence.” Scottsdale Ins. Co. v. Subscription
Plus, Inc., 299 F.3d 618, 621 (7th Cir. 2002) (emphasis
added); see also Zahrey, 221 F.3d at 353; Gregory v. City of
Louisville, 444 F.3d 735, 739 (6th Cir. 2006); Thomas v. Sams,
734 F.2d 185 (5th Cir. 1984); Michaels v. McGrath, 531 U.S.
1118, 1119 (2001) (Thomas, J., dissenting from denial of
certiorari) (supporting the Second Circuit’s approach in
Zahrey that the “intervention of a subsequent immunized
act by the same officer does not break the chain of causa-
tion necessary for liability”).
It is true that Buckley IV also dealt with a claim against
a prosecutor who collected evidence as an investigator
and then went on to use that evidence at trial, and we
did not permit that claim to go forward. But the alleged
constitutional violations in Buckley IV were different
from those here and thus do not control our analysis. Here
the plaintiffs allege that the investigator-prosecutor
fabricated evidence, and from a common-sense stand-
point, the only reasonable explanation for this act
was to make that evidence available for use in later pro-
ceedings. The plaintiff in Buckley IV, in contrast, sought
to hold prosecutors liable for “repeatedly inter-
rogat[ing]” two witnesses and “pa[ying] them for state-
ments inculpating [the plaintiff],” 20 F.3d at 794, as well
as for “seeking out and hiring a witness,” i.e., witness-
shopping for favorable expert testimony, id. at 797. Coer-
cively interrogating witnesses, paying witnesses for
testimony, and witness-shopping may be deplorable,
and these tactics may contribute to wrongful convic-
tions, but they do not necessarily add up to a constitu-
tional violation even when their fruits are introduced at
34 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
trial. Evidence collected with these kinds of suspect
techniques, unlike falsified evidence and perjured testi-
mony, may turn out to be true. See, e.g., Kunik v. Racine
Cnty., 106 F.3d 168 (7th Cir. 1997) (granting qualified
immunity to police defendants who obtained confession
using coercive tactics because “such confessions might
nonetheless be considered ‘voluntary’ as a matter of law,
and arrests are based on them every day”); see also Wallace
v. City of Chicago, 440 F.3d 421, 429 (7th Cir. 2006) (rejecting
that there is a “free-standing due process claim when-
ever unfair interrogation tactics . . . are used to obtain
a confession”); Devereaux v. Abbey, 263 F.3d 1070, 1077-78
(9th Cir. 2001) (en banc) (holding that questionable investi-
gative techniques did not cause due process violations and
noting that “[f]ailing to follow guidelines or to carry out an
investigation in a manner that will ensure an error-free
result is one thing; intentionally fabricating false evidence
is quite another”); Michaels v. New Jersey, 222 F.3d 118, 120
(3d Cir. 2000) (dismissing Section 1983 claim against
officials who used questionable techniques to interview
children regarding alleged sex abuse). In this latter group
of cases, any resulting due process violation that occurs
when the evidence is introduced at trial cannot be
traced back as far as its creation. We recognized as much
in Buckley IV; we explained that it was possible that the
use of “the [coerced] confession could violate Buckley’s
rights” when admitted at trial, if it were actually false
or unreliable. Nevertheless, we held that any claim about
that injury would be barred by absolute immunity
“[b]ecause the ‘reliability’ aspect of coerced-confession
law is an element of trial practice.” 20 F.3d at 795; see
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 35
also id. at 797 (“These wrongs, if they are wrongs at all,
occurred at trial.”).
We conclude, in summary, that the plaintiffs have
asserted claims that, if proven, would demonstrate a
violation of their constitutional rights, and thus they
have satisfied the first step of Saucier and Pearson.
ii
We turn therefore to the second issue, which is the
one on which the district court focused: whether the
“right to due process that the plaintiffs claim” was
clearly established before February 19, 1987, the date of
their conviction. The court quoted Mooney to show that
as early as 1935 it was clearly established that a state’s
“presentation of testimony known to be perjured . . . to
procure the conviction and imprisonment of a defendant
is as inconsistent with the rudimentary demands of
justice as is the obtaining of a like result by intimida-
tion.” 294 U.S. 103, 112-13 (1935). The court noted that
“McFatridge, as a State’s Attorney, must be held to have
known such a basic concept.”
The district court did not define this “basic concept.”
Perhaps this is because the idea that an investigating
prosecutor (or any other state actor) should know not
to fabricate evidence in order to frame a suspect is so
elementary that the court felt that it needed no further
explanation. In order for us to evaluate whether the
right that plaintiffs identified was clearly established,
however, “it is important to determine the precise
36 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
claim” at issue. Burns, 500 U.S. at 487. Mooney is not
directly on point; it concerned a due process violation
that occurred at trial (the introduction of perjured testi-
mony), as opposed to the rather different question
whether an official’s creation of false evidence while an
investigation is ongoing violates due process. As we just
explained, we believe that the clear implication of
Mooney and its progeny is that a prosecutor’s creation
of false evidence also violates due process, so long as a
plaintiff can show the fabrication actually injured her
in some way (and can get beyond absolute immunity).
Significantly, all courts that have directly confronted
the question before us agree that the deliberate manu-
facture of false evidence contravenes the Due Process
Clause. E.g., Devereaux, 263 F.3d at 1074-75 (recognizing
a “due process right not to be subjected to criminal
charges on the basis of false evidence that was
deliberately fabricated by the government” and noting
that because this “proposition is virtually self evident, we
are not aware of any prior cases that have expressly
recognized this specific right”); Brown v. Miller, 519 F.3d
231, 237 (5th Cir. 2008) (“We therefore hold that
the deliberate or knowing creation of a misleading and
scientifically inaccurate serology report amounts to a
violation of a defendant’s due process rights, and that a
reasonable laboratory technician in 1984 would have
understood that those actions violated those rights.”).
McFatridge points to no contrary authority. It is of no
moment that the Supreme Court has never expressly
held that this conduct violates the Constitution; it is
enough that officials have “fair and clear warning” that
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 37
their conduct is prohibited under earlier precedents. United
States v. Lanier, 520 U.S. 259, 271 (1997); see also Devereaux,
263 F.3d at 1075 (“[A] right can be clearly established on
the basis of common sense.” (quoting Giebel v. Sylvester, 244
F.3d 1182, 1189 (9th Cir. 2001)); Burgess v. Lowery, 201 F.3d
942, 944-45 (7th Cir. 2000); Anderson v. Romero, 72 F.3d 518,
526-27 (7th Cir. 1995). Plaintiffs have described just such a
clearly established right here, and thus the district court
properly refused to grant qualified immunity to
McFatridge for any acts he undertook while acting in his
investigatory capacity.
iii
Our decision to deny qualified immunity under the
unusual circumstances presented by this case should not
deter prosecutors from engaging in legitimate investiga-
tory work. Qualified immunity remains an important
shield that protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley, 475 U.S.
at 341. Furthermore, the plaintiff bears the burden of
alleging in the complaint “enough factual matter” to
supply “plausible grounds” to infer that absolute immu-
nity has not yet attached, that the prosecutor knowingly
fabricated evidence, that the evidence was later used
against the plaintiff at her criminal trial, and that it was
material enough to have caused a wrongful conviction. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). In
addition, courts “presume that public officials have
properly discharged their official duties.” Banks v. Dretke,
38 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
540 U.S. 668, 696 (2004); see also United States v. Pittman,
642 F.3d 583, 587-88 (7th Cir. 2011). It will be exceedingly
rare (we hope) that a plaintiff will be presenting any-
thing like the serious and disturbing allegations Whitlock
and Steidl raise in this case. Finally, and in some ways
most importantly, these claims cannot be brought at all
unless and until a criminal defendant is able to secure
a dismissal or reversal of his criminal conviction. See
Dominguez, 545 F.3d at 588 (“A § 1983 claim for a due
process violation based on the denial of a fair criminal
trial may be brought only after the conviction is set
aside.”). Winning a challenge to a criminal conviction
on direct appeal or through a collateral attack is no
easy task. Given these high barriers, we are convinced
that the prospect of suit will not “cause a deflection of
the prosecutor’s energies from his public duties.” Imbler,
424 U.S. at 423.
Before closing this part of our discussion, we
emphasize that we have dealt with the facts in the light
most favorable to the opponents of summary judgment—
Whitlock and Steidl. McFatridge is free to argue, and a
jury free to decide, that he did not do the things that
Whitlock and Steidl allege. He may also argue that
even if he did fabricate evidence, the plaintiffs cannot
establish causation. He may try to convince a jury that
the plaintiffs would have been convicted regardless of
the fabricated evidence. See, e.g., Jones, 856 F.2d at 993. All
we decide on this interlocutory appeal is that he is not
entitled to have the entire case set aside on immunity
grounds, either absolute or qualified.
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 39
This decision also controls the disposition of
McFatridge’s challenges to plaintiffs’ state claims. In
Illinois, immunity is either the same as, or harder to
obtain, than it is in a federal court. See White v. City of
Chicago, 369 Ill. App. 3d 765 (Ill. App. Ct. 2006). Because
McFatridge is not protected by immunity on the federal
claims we have identified, he is not protected by im-
munity on the comparable state claims.
IV
We finally reach the appeals of our last group of defen-
dants: Illinois State Police officials Charles E. Brueg-
gemann, Diane Carper, Steven M. Fermon, Kenneth
Kaupas, Andre Parker, and Jeffrey Marlow (we will refer
to this group as the “ISP defendants”). The ISP defendants
have settled with Steidl, but they remain in the case
as defendants in Whitlock’s case. Our discussion in
this section thus focuses exclusively on Whitlock. In
addition, the district court granted summary judgment
on Marlow’s federal claims. He remains in the suit as a
defendant on only the state law claims. The ISP defendants
contest the district court’s decision that they are not
entitled to qualified immunity. We have jurisdiction over
those questions and address each in turn. Like the
police defendants, they challenge the district court’s
evaluation of disputes of material fact. That means
that these appeals are not properly before us.
40 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
A
Focusing on the first inquiry for qualified immunity
purposes—whether a constitutional right was allegedly
violated—the ISP defendants begin with a challenge to
this court’s earlier holding in Steidl v. Fermon that “the
Brady line of cases has clearly established a defendant’s
right to be informed about exculpatory evidence through-
out the proceedings, including appeals and authorized
post-conviction procedures, when that exculpatory evi-
dence was known to the state at the time of the original
trial.” 494 F.3d at 625. Not only do they take issue with
our earlier decision that such a right was clearly estab-
lished; they go further and argue that no such right
exists in the first place. They believe this result is
required by Osborne v. District Attorney’s Office for the
Third Judicial District, in which the Supreme Court
rejected the proposition that the “Due Process Clause
requires that certain familiar preconviction trial rights
[like Brady] be extended to protect [a defendant’s]
postconviction liberty interest.” 129 S. Ct. 2308, 2319 (2009).
The district court correctly rejected this argument: the
ISP defendants read Osborne too broadly. Osborne rejected
a claim that Alaska’s procedures governing the access
of defendants to post-conviction DNA testing violated
due process. Critically, the evidence that Osborne sought
was not exculpatory evidence that had been in existence
at the time of his original trial. Instead, he was seeking
the opportunity to collect and submit entirely new, and
he hoped exculpatory, evidence. The Court rejected the
argument that Brady required the state to allow the defen-
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 41
dant access to these new tests because the defendant
had already been “proved guilty after a fair trial.” 129 S.
Ct. at 2320. But Brady continues to apply to an assertion
that one did not receive a fair trial because of the con-
cealment of exculpatory evidence known and in existence
at the time of that trial. We explicitly recognized this
distinction in our earlier opinion. See Fermon, 494 F.3d at
629 (“We . . . have no need here to decide whether dis-
closure of exculpatory evidence discovered post-trial is
required under Brady; this case presents only the same
question as the Court addressed in Brady, namely, whether
exculpatory evidence discovered before or during trial
must be disclosed during post-conviction proceedings.”).
The ISP defendants cite only two cases in support of
their argument that Osborne has worked a significant
change in Brady doctrine, but neither is precedential
and both dealt with evidence that did not exist at the time
of the original trial. See Galatolo v. United States, 394
F. App’x 670, 672-73 (11th Cir. 2010); Barnes v. Hennepin Co.
Dist. Atty’s Office, 364 F. App’x 301, 302 (8th Cir. 2010).
The ISP defendants also contend that Whitlock
and Steidl have no right to exculpatory evidence at
post-conviction or clemency proceedings, but they misun-
derstand the Brady right. It is a trial right; the reason
there is a continuing obligation on the state to disclose
evidence is not because of some special right associated
with post-conviction or clemency but because “the taint
on the trial that took place continues throughout the
proceedings, and thus the duty to disclose and allow
correction of that taint continues.” Fermon, 494 F.3d at 630.
42 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
As we explained at length before, Brady and its
progeny impose an obligation on state actors to dis-
close exculpatory evidence that is discovered before or
during trial. See 494 F.3d at 627-30. This obligation does
not cease to exist at the moment of conviction. Otherwise
no one could argue a Brady point either on direct appeal
or in a collateral attack under 28 U.S.C. § 2254 or § 2255.
Although the district court did not address any of the
ISP defendants’ other arguments in support of immunity,
we can quickly dispose of them. First, they assert that
plaintiffs cannot raise a Brady claim because, in the final
analysis, they prevailed in their criminal proceeding.
We have suggested, without squarely holding, that “a trial
that results in an acquittal can never lead to a claim for a
Brady violation because the trial produced a fair result,
even without the exculpatory evidence.” Mosley v. City
of Chicago, 614 F.3d 391, 397 (7th Cir. 2010). But even
if this is correct, it has nothing to do with Whitlock’s
and Steidl’s cases. Both were convicted after trials that,
years later, were acknowledged to have been riddled
with constitutional violations. See Illinois v. Whitlock,
No. 4-05-0958 (Ill. App. Ct. Sept. 6, 2007) (“The cumulative
prejudicial effect of the ineffective assistance and the
Brady violations requires a new trial. . . . Reinbolt’s and
Herrington’s credibility was the sine qua non of the
State’s case.”). The fact that Whitlock and Steidl were
ultimately able to have their convictions set aside does
not mean that they are “prevailing criminal defendants”
in the sense that Mosley used the term. To hold other-
wise would be a perverse application of that doctrine.
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 43
The ISP defendants also complain that their failure
to reinvestigate the Rhodes homicides is not a due
process violation. If this were the claim plaintiffs were
making, the ISP defendants would be correct. There is
no affirmative duty on police to investigate. See,
e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748(2005); Linda R.S. v. Richard D., 410 U.S. 614 (1973). But that
is not Whitlock’s theory. Whitlock asserts that the ISP
defendants “took affirmative steps to quash an inves-
tigation to further conceal the evidence.” That is quite
different from a failure-to-investigate complaint.
B
The ISP defendants make a variety of additional argu-
ments that boil down to an assertion that they are entitled
to immunity because the undisputed evidence in the
record demonstrates that they did not violate Whitlock’s
Brady rights. They urge that the case against them is only
about the disclosure of a few memos that were turned
over to Whitlock and various state prosecutors (at
different points in time). That disclosure was all that was
needed to comply with whatever obligation they had, in
their view. For good measure, they add that the memos
do not contain any exculpatory evidence that was un-
known to Whitlock and that Whitlock has not shown
that he was prejudiced by their failure to turn over the
memos.
These arguments lie beyond the scope of this appeal.
Whether the ISP defendants met their Brady obligations
is an argument going to the merits. It may prove to be a
44 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
good defense, but it is “unrelated to immunity (a doctrine
designed to protect public officials from the effects of
guessing wrong in a world of legal uncertainty) and
thus, Johnson held, not a proper ground of interlocutory
appeal.” Anderson v. Cornejo, 355 F.3d 1021, 1022 (7th
Cir. 2004).
In any event, the record by no means compels the
conclusion that these defendants discharged their Brady
obligations. The ISP defendants focus on a few memos.
But the case cannot be solely about these memos, because
they were created after Whitlock’s and Steidl’s original
trials. As we have stressed, the continuing Brady obliga-
tion that applies to the ISP defendants covers only
evidence that existed at the time of the original trials.
This does not foreclose Whitlock’s suit, because we do not
understand Whitlock’s claim to be limited to these par-
ticular memos. The memos summarize some of the ex-
culpatory evidence that was known to the ISP
defendants at the time of trial. It is the underlying evi-
dence, which the memos discuss, that is at issue. And
even if the ISP defendants disclosed some or all of this
evidence at a late date to Whitlock and the state prosecu-
tors, Whitlock would still have a claim that their earlier
nondisclosure was a Brady violation that caused him
prejudice by delaying his ability to correct the taint on
his original trial.
C
Finally, we address the ISP defendants’ arguments that
they are immune from suit on Whitlock’s state law claims.
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 45
The parties dispute whether we have jurisdiction to
consider this question, because Illinois courts do
not provide for interlocutory appeals on the basis of
immunity. Illinois’s practice in this regard, however,
does not control our jurisdiction. We have jurisdiction
so long as Illinois’s immunity is immunity from suit,
rather than immunity from damages. See Aspen Orthopedics
& Sports Medicine LLC v. Aspen Valley Hosp. Dist., 353
F.3d 832 (10th Cir. 2003) (“Every circuit to address this
issue . . . applies the same analysis . . . . [W]e have subject
matter jurisdiction to hear appeals of orders denying
motions to dismiss where the motions are based on im-
munity from suit. State law governs the scope of the
immunity at issue.”). The Illinois Supreme Court has
not squarely addressed whether state law immunity is
immunity from suit, rather than damages, but that court
has implied that it is immunity from suit. See Blair v.
Walker, 349 N.E.2d 385, 387 (Ill. 1976) (adopting official
immunity because officials “should be able to carry out
[their] daily responsibilities free from concern that [their
actions] will result in civil damage suits”).
The ISP defendants suggest that we certify this question
to the Illinois Supreme Court, but we have no reason to
bother that court because the question is not one that
might be determinative. See ILL. S. C T. R ULE 20(a). Here,
even if the consequence of that court’s decision were
favorable to our jurisdiction, the defendants’ argument
would not succeed. Illinois law grants officials absolute
immunity for torts arising out of the scope of their duties.
Harris v. News-Sun, 646 N.E.2d 8, 11-12 (Ill. App. Ct. 1995).
Absolute immunity can apply to similar torts, like those
46 Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al.
at issue here. Bays v. Edgar, No. 87 C5045, 1998 WL 13639,
*9 (N.D. Ill. Feb. 17, 1988). But the allegations brought
against the ISP defendants are allegations that they took
actions outside the scope of their duties: it is not within
the scope of a police officer’s duty to conceal exculpatory
evidence. Thus, state law immunity would not apply.
The ISP defendants’ argument that the state claims are
barred on the ground of sovereign immunity fails for a
similar reason. If the ISP defendants were being sued for
acting in the scope of their duties, the claim could be
construed as a suit against the State of Illinois rather
than one against the ISP defendants as individuals. But
Whitlock alleges that the ISP defendants violated his
constitutional rights. “[W]hen an officer of the State
commits an unconstitutional act or violates a statute, the
suit is not against the State, because the State is presumed
not to violate its own constitution or enactments.” Turpin
v. Koropchak, 567 F.3d 880, 884 (7th Cir. 2009). The ISP
defendants cannot use the doctrine of sovereign
immunity to avoid facing suit on Whitlock’s state law
claims.
***
We D ISMISS the appeal for want of jurisdiction insofar
as it pertains to the cases against police defendants
Eckerty, Parrish, and Ray. Plaintiffs failed to take a cross-
appeal challenging the district court’s recognition of
McFatridge’s absolute immunity for the second stage of
the proceedings, and so that issue is not properly before
us. To the extent that McFatridge urges that he is
entitled to absolute immunity for stage three, we
Nos. 11-1059, 11-1060, 11-1061, 11-1068, et al. 47
conclude that disputed issues of fact remain that
preclude a definitive resolution. The same is true for
his claim to absolute immunity during stage one. Insofar
as he asserts an entitlement to qualified immunity for
stages one and three, we A FFIRM the district court’s rejec-
tion of that claim. Finally, we A FFIRM the district court’s
denial of qualified immunity for the ISP defendants.
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