Joan B. Gottschall, United States District Judge.
On the afternoon of Saturday, August 27, 1988, someone shot Felix Valentin eleven times as he sat in a car parked on Chicago's west side. ECF No. 332 ¶¶ 2-3.
As the Seventh Circuit stated when it reviewed Rivera's conviction in 2002, "Certainly, the evidence against Rivera was not overwhelming. The state's case hinged entirely on the testimony of a thirteen-year old witness who identified Rivera as the shooter." Rivera v. Briley, 52 F. App'x 270, 274 (7th Cir. 2002); accord United States ex rel. Rivera v. DeTella, No. 97 C 2993, 1998 WL 704308, at *1 (N.D. Ill. Sept. 29, 1998). Nonetheless, "the credible testimony of one eyewitness is sufficient to support a conviction." Rivera, 52 F. App'x at 274 (citing United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1089 (7th Cir. 1989)).
The support for Rivera's conviction effectively collapsed in 2011 when Orlando Lopez, the twelve-year-old eyewitness (he was thirteen when he testified at Rivera's trial), recanted his trial testimony at a hearing held in state court on June 23, 2011. ECF No. 332 ¶ 95. The state court found that Lopez's recantation was credible and ordered a new trial. Id.; Pl. Ex. 18 at 7-8. Prosecutors dropped the charges against Rivera in October 2011, and he walked out of prison a free man after spending more than twenty years in prison
Rivera then filed this suit under 42 U.S.C. § 1983 and Illinois law against the City of Chicago ("the City") and several Chicago police officers, including Reynaldo Guevara (collectively "officer defendants"), allegedly involved in the investigation of the Valentin murder. The City and the officer defendants have filed separate motions for summary judgment; the City joins the officer defendants' motion.
Before reciting the factual background, the court sets forth the summary judgment standard-an understanding of which helps to frame a threshold issue. Defendants object to Rivera's Local Rule 56.1 submissions in opposition to the pending motions, contending that the statements should be stricken from the record.
Summary judgment is appropriate "if the movant shows 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). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The underlying substantive law governs whether a factual dispute is material: `irrelevant or unnecessary' factual disputes do not preclude summary judgment." Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In resolving summary judgment motions, "facts must be viewed in the light most favorable to," and all reasonable inferences from that evidence must be drawn in favor of, "the nonmoving party[-but] only if there is a `genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016) (citing Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016)).
The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 56 "imposes an initial burden of production on the party moving for summary judgment to inform the district court why a trial is not necessary" (citation omitted)). After "a properly supported motion for summary judgment is made, the adverse party must" go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (quotation omitted); see also Modrowski, 712 F.3d at 1169 (stating party opposing summary judgment "must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor") (citations and quotations omitted). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).
Local Rule 56.1 sets out a procedure for presenting facts that are germane to a
The parties sought and obtained leave to exceed the respective 80- and 40-statement limits on the number of paragraphs in a moving party and responding party's Local Rule 56.1 statements. See N.D. Ill. L.R. 56.1(a), (b)(3)(C). Defendants accuse Rivera of blatantly violating Local Rule 56.1 and the assigned judge's standing order on summary judgment motions. They urge the court to strike Rivera's responses to their Local Rule 56.1 statements of material facts and his Combined Statement of Facts in their entirety or, failing that, disregard several paragraphs of those papers. See Defs. Combined Reply 3-6, ECF No. 333. Defendants identify six purported defects in Rivera's Local Rule 56.1 submissions. As explained in the following paragraphs, the court disregards certain material in Rivera's Local Rule 56.1 submissions but leaves resolution of legal issues and arguments on materiality to the discussion on the merits.
"[T]he Seventh Circuit repeatedly has held that the district court is within its discretion to enforce strict compliance with the requirements of Local Rule 56.1." Hanover Ins. Co. v. House Call Physicians of Ill., No. 15 C 3684, 2016 WL 1588507, at *2 (N.D. Ill. Apr. 19, 2016) (collecting cases). This is because "[c]ompliance with local rules like Rule 56.1 ensures the facts material to the issues in the case and the evidence supporting such facts are clearly organized and presented for the court's summary judgment determination." Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015). "The purpose of Rule 56.1 is to have the litigants present to the district court a clear, concise list of material facts that are central to the summary judgment determination." Id. And parties should be cognizant of the rule that "district courts are not required to `wade through improper denials and legal argument in search of a genuinely disputed fact.'" Id. (quoting Bordelon v. Chicago Sch. Reform Bd., 233 F.3d 524,
First, some paragraphs of Rivera's Local Rule 56.1 submissions include legal argument and arguments about what inferences should be drawn from facts. Defendants sometimes respond argumentatively in their Local Rule 56.1 submissions. The court disregards the portions of the parties' Local Rule 56.1 submissions that make legal arguments and assert legal conclusions, which are not factual statements at all. See Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359-60 (7th Cir. 2009) (affirming decision to disregard "argumentative" Local Rule 56.1 statement); Fetzer v. Wal-Mart Stores, Inc., No. 13 C 9312, 2016 WL 792296, at *8 (N.D. Ill. Mar. 1, 2016) (Gottschall, J.) ("[L]egal arguments in Rule 56.1 submissions are improper so the court will disregard legal arguments and conclusions in the plaintiffs' Rule 56.1 submissions.") (citing Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008)); Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). The noncompliant paragraphs will not be stricken, however, as doing so would in some cases throw out a properly supported assertion along with a legal argument or conclusion. Instead, the properly supported factual assertion stays in the Local Rule 56.1 statement; the court disregards the portion of any factual statement that contains legal arguments or conclusions. Minn. Life Ins. Co. v. Kagan, 847 F.Supp.2d 1088, 1093 (N.D. Ill. 2012) (denying motion to strike portions of Local Rule 56.1 statements containing legal conclusions but disregarding conclusions); Phillips v. Quality Terminal Servs., LLC, 855 F.Supp.2d 764, 771-72 (N.D. Ill. 2012) (same).
Defendants next object that some paragraphs of Rivera's combined Statement of Additional Facts make compound factual assertions. For instance, defendants claim Paragraphs 1 and 40 of the Combined Statement of Additional Facts, e.g., ECF No. 317, consist of seven and eight "facts" respectively, each of which should apparently be in a separate paragraph. Paragraphs 1 and 40 are each two sentences long. The court does not count facts or sentences mechanically, however, though the number often increases complexity. "A statement of material facts that presents one fact at a time per paragraph would not be an efficient manner in which to present a statement of material facts and would not be consistent with Local Rule 56.1." Nettles-Bey v. Burke, No. 11 C 8022, 2015 WL 4638068, at *5 (N.D. Ill. Aug. 4, 2015) (Gottschall, J.) (quoting Fishering v. City of Chicago, No. 07 C 6650, 2009 WL 395462, at *2 (N.D. Ill. Feb. 18, 2009)) (alteration omitted). At some point, paragraphs become objectively too long, but deciding when requires an exercise of discretion with sensitivity to the needs and complexity of the case. See Benuzzi v. Bd. of Educ. of City of Chicago, 647 F.3d 652, 655-56 (7th Cir. 2011) ("[W]hat is `short' to one judge may be long to another, and a single judge's definition might reasonably vary from case to case."). Generally, when the presentation becomes more confusing than efficient, as when the facts in a single paragraph are jumbled or disjointed, appear to be non sequiturs, or their connection must be explained by an improper argument, Local Rule 56.1 requires the paragraph to be split. See Nettles-Bey, 2015 WL 4638068, at *5 (concluding that plaintiff properly combined sentences because "the sentences [were] all clearly interrelated so that it would make no sense to split them into separate paragraphs"); Cardoso v. Cellco P'ship, No. 13 C 2696, 2014 WL 6705282, at *3 (N.D. Ill. Nov. 26,
Recognizing the practical issues involved, defendants say that they have sought only to strike the "most egregious" portions of Plaintiff's Combined Statement of Additional Facts "that are too lengthy and disjoined to allow a proper response." Defs. Combined Reply 5, ECF No. 333 (citing specific paragraphs). Yet defendants responded to each of the allegedly egregious paragraphs, albeit while reserving the instant objection. See, e.g., Resp. to SAF ¶¶ 1, 3, 19, 68, ECF No. 332. Moreover, the sentences themselves, though there are sometimes as many as eleven of them, bear a logical relationship to one another so that keeping them together as a unit makes sense. Given the needs of this case, keeping the basic, mostly undisputed facts of the shooting and drive to the hospital together in paragraph 3 seems sensible, for instance. Paragraph 120's recitation of a purported expert witnesses' career history may be unnecessary and unhelpful because it regurgitates the record rather than streamlines the presentation of material issues. But even so, the sentences reciting the history have a logical connection. The court can see no benefit in requiring further disaggregation. See Nettles-Bey, 2015 WL 4638068, at *5.
Third, defendants contend that certain paragraphs of Plaintiff's Combined Statement of Additional Facts do not cite specific evidentiary material in the record.
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., 130 F.Supp.3d 1226, 1228 (N.D. Ill. 2015) (Gottschall, J.) (finding response that cited statement of additional facts rather than record violated
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, supra, 191 F.R.D. at 583 (emphasis omitted). Rivera argues vociferously that his facts are material in the summary judgment sense, and the answer to that question, in the appropriate context, lies very much at the heart of the parties' dispute here. Rather than attempt to winnow the voluminous statements to only material paragraphs in the abstract, the court again deems addressing materiality questions as they pertain to particular issues to be the better course because it may obviate the need to analyze each disputed paragraph. Cf. Tarau v. Coltea, No. 15-CV-03545, 2017 WL 3521410, at *1 (N.D. Ill. Aug. 16, 2017) ("Because neither party contends these facts are material, the court need not resolve [a] dispute" about whether the facts should stricken. (citation omitted)).
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, 853 F.Supp.2d 739, 744 (N.D. Ill. 2011) ("[T]he Court disregards any additional statements of fact contained in a party's response brief but not in its L.R. 56.1(b)(3)(B) statement of additional facts." (citing Malec, 191 F.R.D. at 584)).
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.
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).
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.
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.
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.
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.
Id. at Wron 29-30.
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.
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).
The trial concluded with two surrebuttal witnesses called by Rivera. The first, Rivas, described Rivera's hair style in August
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.
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.
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:
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.
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:
Id. ¶¶ 14-15 (paragraph numbering omitted).
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.
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.
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.
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 Machain
SR 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."
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.
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.
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, 501 F.3d 817, 821 (7th Cir. 2007) (faulting fact finder for "the discredited doctrine of falsus in uno, falsus in omnibus (false in one thing, false in all things), which Wigmore called `primitive psychology'" (citations and quotation omitted)); Allen v. Chicago Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003) ("[T]here are cases, perhaps the majority, in which a witness's testimony is a compound of truth and falsity. Perjury is a circumstance to be weighed by the jury in determining a witness's credibility rather than a ground for removing the issue of credibility from the jury by treating the witness's entire testimony as unworthy of belief."); Branion v. Gramly, 855 F.2d 1256, 1263 (7th Cir. 1988) ("A trier of fact may disbelieve or reject any evidence; ... [s]elective disbelief, however, is an ordinary incident of trial...."). The jury's prerogative partially to disbelieve Lopez's testimony that he picked Rivera at the first lineup does not by itself furnish a basis for the jury to find that Lopez picked a filler, however; it just leaves a hole in the proof. Rivera must still fill that hole at summary judgment by pointing to other evidence from which the jury could find that Lopez picked a filler. See Branion, 855 F.2d at 1263 ("Disbelief is not evidence of the opposite of the thing discredited, however." (citing Anderson, supra, 477 U.S. at 256-57, 106 S.Ct. 2505, and LHLC Corp. v. Cluett, Peabody & Co., 842 F.2d 928, 934-36 (7th Cir. 1988))).
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
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, 872 F.3d 825, 830 (7th Cir. 2017) ("[S]peculation is not enough to create a genuine issue of fact for the purposes of summary judgment." (citing Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012))); LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995) (explaining that invoking Fifth Amendment privilege cannot by itself be a basis for imposing civil liability). Defendants do not dispute that Lopez told two people at the police station on September 15, 1988, that Rivera was the "wrong guy." See Resp. to SAF ¶¶ 52-53 (citing, e.g., Lopez Aff. ¶ 14). Defendants say, however, that there is not enough evidence to conclude that the two people were Guevara and McLaughlin or that either understood that Lopez really meant what he said. See Officers Mem. Supp. Mot. Summ. J. 9-10. Both questions must be decided by a jury. See Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995) (substantially same on speculation at summary judgment).
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, supra, 872 F.3d at 830; speculating about an employer's motives in firing the plaintiff, Jackson v. E.J. Brach Corp., 176 F.3d 971, 984-85 (7th Cir. 1999); or averring in conclusory fashion that another witness lied about something said to the plaintiff, Parvati Corp. v. City of Oak Forest, No 08 C 0702, 2012 WL 957479, at *11 n.3 (N.D. Ill. Mar. 20, 2012) (St. Eve, J.) (citing Delapaz v. Richardson, 634 F.3d 895, 901 (7th Cir. 2011)). Weighed with Guevara's Fifth Amendment invocation on this subject, the jury can reasonably decide based on Lopez's testimony that Guevara and McLaughlin feigned incomprehension. And even if Guevara and McLaughlin earnestly held a good faith belief at the time that Lopez was scared of what might happen if he fingered Rivera (defendants claim he already had), they could not suppress Lopez's statements that Rivera was the "wrong guy" for that reason because, as discussed more fully below, those statements would have been objectively material. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that material evidence must be given to the defense "irrespective of the good faith or bad faith of the prosecution"). In short, Guevara and McLaughlin's good faith is immaterial in the summary judgment sense, id., and a reasonable jury could conclude that they suppressed the conversation before the September 15, 1988, lineup in which Lopez told them that Rivera was the "wrong guy."
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, 798 F.3d 578 (7th Cir. 2015). Officers Mem. Supp. Mot. Summ. J. 17, ECF No. 304. After expressing some initial reluctance, four eyewitnesses identified the plaintiff in Hart from a photo array. See Hart, 798 F.3d at 584. The plaintiff claimed that coaching occurred, but the Seventh Circuit upheld the entry of summary judgment for the defendants because "[o]n this record, there is simply no evidence of coercion or manipulation...." Id. at 588. The officer "denied that she coached any of the witnesses, and all four
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:
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., 762 F.3d 552, 564 (7th Cir. 2014) (chastising party who "cherry-picked" from deposition and providing examples from deposition showing that "[w]hen the [cited] testimony is read in context, ... it becomes clear that [the person testifying] made no such admissions"); Maxtech Consumer Prods., Ltd. v. Robert Bosch Tool Corp., 255 F.Supp.3d 833, 840 (N.D. Ill. 2017) (reading testimony at summary judgment "sensibly and in context" despite requirement that all reasonable inferences be drawn in nonmovant's favor); De Marco v. Pals Express, Inc., No. 96 C 6817, 1997 WL 619829, at *2 (N.D. Ill. Sept. 30, 1997) ("Taken in isolation, De Marco's answer of `No' to one question at his deposition seems inconsistent with [other evidence]. Reading De Marco's deposition testimony in context, however, no inconsistency is apparent." (internal citation omitted)).
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, 186 F.Supp.3d 884, 893-94 (N.D. Ill. 2016); De v. City of Chicago, 912 F.Supp.2d 709, 714 (N.D. Ill. 2012); Gondeck v. A Clear Title & Escrow Exchange, LLC, No. 11 C 6341, 2013 WL 4564994, at *3 (N.D. Ill. Aug. 28, 2013); see also Rogers v. City of Chicago, 320 F.3d 748, 751 (7th Cir. 2003), overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013), (affirming exclusion of affidavit at summary judgment on hearsay, among other, grounds). The court has no
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, supra, 798 F.3d at 588, so too is the omission of the shooter's distinctive gold hairstyle from the investigative file. Were it otherwise, every detail that surfaced at a criminal trial would require a trial in a § 1983 suit if it could not be found in police records. See id.
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 In re High Fructose Corn Syrup Antitrust
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, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The rule against adverse inferences does not hold in a civil case, however. The Supreme Court held in Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them...." See also Hillmann v. City of Chicago, 834 F.3d 787, 792 (7th Cir. 2016) (collecting Seventh Circuit authority to the same effect). The Seventh Circuit has "interpreted Baxter to mean that the negative inference against a witness who invokes the Fifth Amendment in a civil case is permissive, not required." Evans v. City of Chicago, 513 F.3d 735, 741 (7th Cir. 2008) (citing Daniels v. Pipefitters' Ass'n Local Union No. 597, 983 F.2d 800, 802 (7th Cir. 1993)). Here permissive means that "[s]ilence is a relevant factor to be considered in light of the proffered evidence, but the direct inference of guilt from silence is forbidden." LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995); accord id. at
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:
National Acceptance Co., 705 F.2d at 932 (internal citation omitted). In National Acceptance, the Seventh Circuit reversed a decision entering an $8.6 million judgment. The case was decided on the pleadings; the plaintiff filed a complaint; the defendant invoked his Fifth Amendment right to stay silent in his answer; and the trial court entered judgment based on nothing but the complaint and answer. Id. at 928-32. A plaintiff cannot offer a civil defendant immunity from criminal prosecution, so forcing the defendant to choose between relinquishing the Fifth Amendment privilege and becoming liable for a money judgment based on no other evidence, the Seventh Circuit reasoned, is constitutionally untenable because "the threat of adverse economic consequences cannot be used to compel a waiver of the Fifth Amendment privilege." Id. at 928 (discussing cases including Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)); accord id. at 931.
The Seventh Circuit applied Baxter and National Acceptance Co.'s reasoning at summary judgment in LaSalle Bank, supra, 54 F.3d at 391-93. Reversing an award of summary judgment to a plaintiff, the LaSalle Bank court reiterated that "although inferences based on the assertion of the privilege are permissible, the entry of judgment based only on the invocation of the privilege and `without regard to the other evidence' exceeds constitutional bounds." Id. at 391 (quoting Baxter, 425 U.S. at 318, 96 S.Ct. 1551) (other citation omitted).
The LaSalle Bank court quoted the following language in United States v. White, 589 F.2d 1283, 1287 (5th Cir. 1979): "a grant of summary judgment merely because of the invocation of the fifth amendment would unduly penalize the employment of the privilege." Id. at 391-92. Courts in the Seventh Circuit have accordingly held that to create a fact issue for trial, a party resisting summary judgment cannot rely exclusively on the moving party's invocation of the Fifth Amendment
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, 712 F.3d 1166, 1167 (7th Cir. 2013) (quoting Celotex, supra, 477 U.S. at 325, 106 S.Ct. 2548). Guevara did not need to "support [his] motion with affidavits or other similar materials negating the opponent's claim." Id. at 1168 (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). As already explained, Rivera must introduce evidence in addition to Guevara's silence at trial to hold him liable, See id. at 1168-69 (explaining that a party opposing a properly supported summary judgment motion must "demonstrate that there is evidence `upon which a jury could properly proceed to find a verdict' in her favor" (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))).
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, 54 F.3d at 392-93. While Guevara's silence is not dispositive at summary judgment, the jury will be able to weigh it with the evidence in its totality and draw adverse inferences if it wishes. See Hillmann, 834 F.3d at 793 (district court erred when it excused witness from testifying based on blanket invocation of Fifth Amendment privilege; jury should have heard witnesses invoke privilege on the stand); Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 835 (7th Cir. 2016) (jury properly given adverse inference instruction when witness invoked Fifth Amendment privilege); Harris v. City of Chicago, 266 F.3d 750, 754-55 (7th Cir. 2001); but see Evans, 513 F.3d at 745 (discussing factors to be considered when witness waives Fifth Amendment privilege before trial).
Like all criminal defendants, Rivera had "a Fourteenth Amendment due process right to a fundamentally fair trial" in state court. Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (citing California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)) (other citations omitted). At the heart of Rivera's theory of the case lies his contention that the police officers involved decided to railroad him on the day of the shooting and set about building a case against him by feeding a story to Lopez to make his planted identification seem plausible, fabricating a paper trail corroborating the identification, manipulating the lineup process, and burying inconsistent and exculpatory evidence. In his response to defendants' motions for summary judgment, Rivera maintains that his due process right to a fair trial was violated in three, distinct ways. ECF No. 321 at 9. First, Rivera claims that evidence fabricated by the police, including knowingly false testimony by Guevara, was used at his trial to convict him. See, e.g., Avery v. City of Milwaukee, 847 F.3d 433, 439-40 (7th Cir. 2017); Petty v. City of Chicago, 754 F.3d 416, 422 (7th Cir. 2014); Fields v. Wharrie ("Fields II"), 740 F.3d 1107, 1114 (7th Cir. 2014). Second, he claims that material evidence was suppressed in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Third, Rivera contends that the use of impermissibly suggestive lineup techniques deprived him of a fair trial.
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, 847 F.3d at 439 (quoting Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012)) (alteration in original, other citation omitted). The Seventh Circuit has also distinguished between manufacturing false evidence from a "claim that an officer coerced a witness to give incriminating evidence." Id. The latter type of claim "does not, at least standing alone, violate the wrongly convicted person's due-process rights," though it may give rise to a Brady claim that the evidence of the coercion to which the witness was subjected must be disclosed, so a jury may weigh the circumstances under which the evidence came to light when deciding how much of it to believe.
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, 566 U.S. 356, 368-69, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012) (holding investigator was absolutely immune from § 1983 claims that he testified falsely before grand jury); Briscoe v. LaHue, 460 U.S. 325, 341-45, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (refusing to carve out exception to absolute immunity for a police officer's allegedly perjured trial testimony). But the Supreme Court has "accorded only qualified immunity to law enforcement officials who falsify affidavits and fabricate evidence concerning an unsolved crime." Rehberg, 566 U.S. at 370 n.1, 132 S.Ct. 1497 (internal citations omitted). On this record, a reasonable jury could find that Guevara fabricated Lopez's identification and the false details of hair style and color during the investigation. Lopez, who had on the version of facts most favorable to plaintiff never seen Rivera before viewing the Latin King photo book, could not have known those things, and because that fabrication happened during the investigation, Guevara does not enjoy absolute immunity. See Avery, 847 F.3d at 441-43 (denying absolute immunity to officers who testified to fabricated confession because "[w]hen the detectives falsified their reports of a nonexistent confession, it was entirely foreseeable that this fabricated `evidence' would be used to convict [the § 1983 plaintiff] at trial for [the] murder. That was, of course, the whole point of concocting the confession."); Fields II, 740 F.3d at 1110; Whitlock, 682 F.3d at 572, 584.
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, Bianchi v. McQueen, 818 F.3d 309, 320 (7th Cir.
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, 740 F.3d at 1112-13, as the following hypothetical from the case law illustrates. "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 anyone's liberty interest." Bianchi, 818 F.3d at 319 (quoting Whitlock, 682 F.3d at 582) (alteration omitted); see also Fields II, 740 F.3d at 1112-13, 1114; Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994), on remand from 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
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. 225 F.Supp.3d 708, 725 (N.D. Ill. 2016) (also granting summary judgment for independent reason that the claim that the record contradicted the contention that the reports were false). Under ordinary causation principles, then, the September 16, 1988, report cannot by itself support Rivera's due process fabrication claim since it was not used or mentioned at trial. See id.
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." Id. As the Seventh Circuit recently put the matter, "[i]f an officer who fabricates evidence can immunize himself from liability by authenticating falsified documentary or physical evidence and then repeating the false `facts' in his trial testimony, wrongful-conviction claims premised on evidence fabrication would be a dead letter." Avery, 847 F.3d at 441; see also id. at 437, 442 (denying absolute immunity to police officers who fabricated the defendant's confession by planting it with three jailhouse informants, described the fabricated confession in their reports, and testified about the confession at trial).
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.
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." 373 U.S. at 87, 83 S.Ct. 1194. Favorable evidence under Brady includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); see also Socha v. Richardson, 874 F.3d 983, 988 (7th Cir. 2017), petition for cert. filed No. 17-8519 (Jan. 23, 2018) (citing Strickler v. Greene, 527 U.S. 263, 282 n.21, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)) (other citations omitted) ("Indeed, a prosecutor must share impeachment evidence with the defense even if the evidence partly inculpates the defendant."). The Brady disclosure requirement does not stop at the prosecutor's door; it "encompasses evidence `known only to police investigators and not to the prosecutor.'" Strickler, 527 U.S. at 280-81, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)); accord Whitlock, 682 F.3d at 572; Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir. 2011). "To prevail on a Brady claim for an officer's failure to disclose evidence, a plaintiff must show that (1) the evidence was favorable to him; (2) the officer concealed the evidence; and (3) the concealment prejudiced him." Gill v. City of Milwaukee, 850 F.3d 335, 343 (7th Cir. 2017) (citing Cairel, 821 F.3d at 832).
"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, 588 F.3d 464, 492 (7th Cir. 2009) (quoting Ienco v. Angarone, 429 F.3d 680, 683 (7th Cir. 2005)) (alteration omitted). All of the suppressed evidence must be considered cumulatively when asking whether it was material under Brady. Wearry v. Cain, ___ U.S. ___, 136 S.Ct. 1002, 1007, 194 L.Ed.2d 78 (2016) (citing Kyles, 514 U.S. at 441, 115 S.Ct. 1555). To establish materiality, Rivera does not need to "show that he "more likely than not" would have been acquitted had the new evidence been admitted." Id. at 1006 (quoting Smith v. Cain, 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012)). Rather, "[e]vidence qualifies as material when there is `any
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.
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, 643 F.3d at 256 (citing Carvajal v. Dominguez, 542 F.3d 561, 567 (7th Cir. 2008)). Nonetheless, as defendants acknowledge in their briefing, the "reasonable diligence" aspect of Brady does not extend to "inquiry into matters defense counsel could not have been expected to ask about," or to "information possessed by a defense witness [which] is available through the exercise of reasonable diligence where that information is not of a type defense counsel could reasonably expect that witness to possess." Boss v. Pierce, 263 F.3d 734, 744 (7th Cir. 2001). Noting that Lopez has never testified about what he would have said if asked by Wadas before trial, defendants speculate on the value of Wadas interviewing Lopez: "Perhaps Lopez would have recanted; perhaps not. Perhaps he would have said something to lead Wadas to further investigate the identification procedures in which Lopez was involved." Officers Mem. Supp. Mot. Summ. J. 11.
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, 225 F.Supp.3d 708 (N.D. Ill. 2016), but the eyewitness whom defense counsel failed to interview in Boyd had not been coerced or fed a story by the police, see id. at 722-723. In situations like the one the summary judgment record requires this court to find, where a witness has fabricated an identification with police, the witness might well view the consequences of revealing the truth to be dire. A reasonable jury could find from that fact alone that the witness and police officers involved would be "uncooperative or reluctant" if interviewed by defense counsel. Boss, 263 F.3d at 740 (stating that "it would be nearly impossible for defense counsel to discover" favorable evidence from such witnesses); see also Hampton v. City of Chicago, No. 12-cv-5650, 2017 WL 2985743, at *22 (N.D. Ill. July 13, 2017) (distinguishing Patrick v. City of Chicago, 103 F.Supp.3d 907, 915 (N.D. Ill. 2015) for similar reasons). Viewing the evidence in the light most favorable to Rivera, it would certainly be within the range of allowable fact finding for the jury to conclude that Lopez, having concocted the false identification with the police, would have identified with them and feared too much the consequences of telling the truth to have come clean if interviewed by defense counsel. See Jimenez v. City of Chicago, 830 F.Supp.2d 432, 444-45 (N.D. Ill. 2011) ("Witnesses coerced or persuaded to testify in a particular way often tend to identify with, and to ally themselves with, their persuaders. A legal rule that assumes that such a witness will readily describe the circumstances of the coercion or persuasion simply because the other side's lawyer asks the witness the right question would defy common sense."); Hampton, 2017 WL 2985743, at *22.
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, 136 S.Ct. at 1007 (citation omitted). As already explained, the wider mosaic of suppressed evidence allows a finding that the statements that Lopez could not be found were fabricated to paper over a filler identification. That narrative would have been strong medicine for impeaching Lopez's testimony at trial.
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, 136 S.Ct. at 1006 (quoting Agurs, 427 U.S. at 113, 96 S.Ct. 2392); see also id. at 1004-05, 1006-07 (holding undisclosed statements of witness tending to suggest a motive to fabricate testimony to curry favor with the prosecutor was material); see also Smith, 565 U.S. at 75, 132 S.Ct. 627 (holding that evidence impeaching only eyewitness to identify the defendant was material); Fields v. Wharrie ("Fields I"), 672 F.3d 505, 517 (7th Cir. 2012). At summary judgment, the jury could find it was favorable, for it could reasonably be seen as shedding light on how the officers "induced the witnesses to finger" Rivera, making it "information vital to probe whether manipulation occurred." Newsome v. McCabe, 319 F.3d 301, 302-05 (7th Cir. 2003).
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, 2017 WL 2985743, at *19.
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, 433 F.3d 550, 555 (7th Cir. 2006) (citing Hensley v. Carey, 818 F.2d 646, 648, 650 (7th Cir. 1987) for first quotation) (other citation omitted); see also Perry v. New Hampshire,
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, 708 F.3d at 985 ("[S]cientific sources should generally accompany an argument that a particular procedure was unnecessarily suggestive."). Rivera points to the report of his expert, Jennifer Dysart, see Resp. to Officers Mot. Summ. J. 35-36, which details a laundry list of problems ranging from Lopez's age at the time of the identifications, the unconscious transference effects from reviewing long mug books, the selection of the particular fillers used in Lopez's lineups and the fact that only some of them matched the shooter's description, and more. See Pl. Ex. 21 at 9-16. As the officer defendants note, Rivera does not cite Dysart's report in his Local Rule 56.1(b)(3) response to their statement of facts or his own statement of additional facts. Citations to the Dysart report appear only in Rivera's response brief. See ECF No. 321 at 34-36, 38 (last citation to establish that lineup was unreliable). The court must disregard it, as it was not subjected to the established Local Rule 56.1 adversary process for testing and sifting factual disputes at summary judgment. See supra Part I. B; Greene v. CCDN, LLC, 853 F.Supp.2d 739, 744 (N.D. Ill. 2011). That leaves Rivera with insufficient evidence to create a fact issue on the first prong of his suggestive lineup claim, and it must therefore be dismissed at summary judgment.
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. 08 C 4586, 2014 WL 883553, at *11 (N.D. Ill. Mar. 6, 2014). Additionally, Rivera does not respond to this argument. See, e.g., Grayson v. City of Aurora, 157 F.Supp.3d 725, 743 (N.D. Ill. 2016).
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, 550 F.3d 613, 617 (7th Cir. 2008) (conspiracy); Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005); see also Pl. Resp. to Officers Mot. Summ. J. 39-40 (not disputing this portion of defendants' argument).
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:
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 id. R. 56(c)(1). In Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010), to which Rivera analogizes this issue, the Seventh Circuit found that an opening summary judgment memorandum did not shift the initial burden of production to the plaintiff because, though the motion sought judgment on all claims, it "made no mention whatsoever" of the particular claim at issue. The memorandum, the court explained, lacked "citation to relevant facts or authority pertaining to the" particular claim. Id. So the defendants' memorandum, ECF No. 304 at 18, 19, has authority but no facts. That is, it "identif[ies] the ... defense ... on which summary judgment is sought" but does not "show" why summary judgment should be granted on the facts of this particular case. See Fed. R. Civ. P. 56(a); see also 10A Wright & Miller, Federal Practice & Procedure § 2727.1 & n.18 (West 2018) ("[T]he party moving for summary judgment cannot sustain its burden ... merely by asserting that the nonmovant lacks evidence to support its claim. The movant must show why the opponent's allegations of fact are insufficient to support the claim for relief as a matter of law or why the court should conclude that its opponent lacks sufficient evidence.").
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
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, 700 F.3d 919, 928 (7th Cir. 2012). Failing to intervene in the suppression of evidence can give rise to liability for suppressing evidence in contravention of Brady. See Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988) (finding evidence sufficient to impose liability on supervisors); Marshall v. Buckley, 696 F.Supp.2d 964, 969 (N.D. Ill. 2010) (recognizing availability of theory but granting officers' motion for summary judgment); see also, e.g., Colbert, supra, 851 F.3d at 657 ("`Individual liability under § 1983,' however, `requires personal involvement in the alleged constitutional deprivation.'" (quoting Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (alteration omitted))). "Section 1983 creates a cause of action based on personal liability and predicated upon fault. An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation. A causal connection, or an affirmative link, between the misconduct complained of and the official sued is necessary." Colbert, 851 F.3d at 657 (quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)) (alteration and emphasis omitted).
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); id. at Wron 49-50 (Sept. 15, 1988, lineup report approved by Weingart); id. at Wron 9-10 (Sept. 16 report approved by Mingey), in Resp. to Officers SMF ¶¶ 65, 66, 72 (collecting these citations). Mingey's personal involvement is the subject of a motion to supplement the summary judgment record filed May 7, 2018. The court reserves ruling on Mingey's involvement because the motion to supplement has not been fully briefed. Rivera argues that the sergeant defendants supervised the investigation during a "crucial period." Resp. to Officers SMF ¶¶ 65, 66, 72. That fact does not alone support liability. To be held liable for something they did not personally do, see id. (not disputing this portion of fact statement), "[t]he supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless
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.
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. ___, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)). "Though [qualified immunity] is an affirmative defense for pleading purposes, the plaintiff carries the burden of showing that defendants are not immune." Sebesta v. Davis, 878 F.3d 226, 233 (7th Cir. 2017) (citing Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017)).
The two prongs of the qualified immunity inquiry may be addressed "in whatever order seems best for the case at hand." Sebesta, 878 F.3d at 233 (tracing this principle to Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The court has analyzed whether constitutional violations occurred, so for the fabrication and Brady due process claims that have survived, the question is whether the unlawfulness of the officers' conduct was clearly established.
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, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (alterations in original); see also Wesby, 138 S.Ct. at 589 (clearly established "must be `settled law.'" (quoting Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991))); Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (stating that "qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law'" (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986))). The plaintiff "need not point to an identical case finding the alleged violation unlawful, `but existing precedent must have placed the statutory or constitutional question beyond debate.'" Kemp v. Liebel, 877 F.3d 346, 351 (7th Cir. 2017) (quoting Mullenix, 136 S.Ct. at 308). The Seventh Circuit first examines "controlling Supreme Court precedent and ... [Seventh] circuit decisions on the issue." Id. (quoting Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000)). In the absence of controlling or persuasive authority from those sources, the search expands to "all relevant case law in order to determine whether there was such a clear trend in the case law that [the court] can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time." Id. (quoting Jacobs, 215 F.3d at 767); accord Werner v. Wall, 836 F.3d 751,
The right violated must not be defined at too high a level of generality. Wesby, 138 S.Ct. at 589 (citations omitted); al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074; Kemp, 877 F.3d at 351 (collecting authority emphasizing that the Supreme Court has repeatedly made this point); but see Gustafson v. Adkins, 803 F.3d 883, 892 (7th Cir. 2015) ("a broad constitutional test ... is sufficient to clearly establish the law `in an obvious case ... even without a body of relevant case law.'") (quoting Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)) (second ellipsis in original). For qualified immunity purposes, "[t]he dispositive question is whether the violative nature of particular conduct is clearly established." Kemp, 877 F.3d at 351 (quoting Mullenix, 136 S.Ct. at 308) (alteration in original); see also Wesby, 138 S.Ct. at 589 ("A rule is too general if the unlawfulness of the officer's conduct `does not follow immediately from the conclusion that [the rule] was firmly established.'") (quoting Anderson, 483 U.S. at 641, 107 S.Ct. 3034) (alteration in original).
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, 740 F.3d at 1114 (citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)) (other citations dating to 1935 omitted). The same went for police officers by 1988. See Patrick v. City of Chicago, No. 14 C 3658, 2014 WL 7204501, at *7 (N.D. Ill. Dec. 17, 2014), modified on reconsideration on other grounds, 103 F.Supp.3d 907 (N.D. Ill. 2015) (applying Fields II's qualified immunity holding to police officers without comment). In Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012), the Seventh Circuit began its qualified immunity analysis with the pronouncement, "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." The court cited Jones v. City of Chicago, 856 F.2d 985, 993 (7th Cir. 1988), and Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008), to make its point. The original opinion in Jones (the opinion was amended on petition for rehearing) was handed down on September 14, 1988, the day Valentin died and one day before Lopez says he made the "wrong guy" statement at a lineup at which he picked Rivera. See Resp. to Pl. SAF ¶ 7 (stating date of death). The facts of Jones are very similar to those here, and the Jones decision more than suffices to show that by 1988 it was clearly established that due process would not tolerate a police officer fabricating evidence. See Dominguez, 545 F.3d at 588, 589; Jones, 856 F.2d at 953.
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." 256 F.3d 747, 752-53 (7th Cir. 2001), abrogated on other grounds by Manuel v. City of Joliet, ___ U.S. ___, 137 S.Ct. 911, 197
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, 260 F.3d 824, 825 (7th Cir. 2001). As discussed extensively earlier, the jury could find that whole swaths of evidence that would have corroborated the existence of the first lineup were suppressed and that cumulatively the withheld evidence was an impeachment goldmine.
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.
This court has supplemental jurisdiction over Rivera's claims under Illinois law for conspiracy, malicious prosecution, and intentional infliction of emotional distress ("IIED"). See 28 U.S.C. § 1367(a). Defendants move for summary judgment on all three claims. The analysis turns on whether Rivera can maintain his malicious prosecution claim. Finding that the summary judgment record supports a malicious prosecution claim against Guevara but not the other defendants, the court dismisses the state law claims against all defendants except him. The conspiracy claim survives, however, because there is evidence from which the jury could find that Guevara took a step in furtherance of it.
"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, 851 F.3d at 654-55 (quoting Cairel v. Alderden, 821 F.3d 823, 834 (7th Cir. 2016)) (brackets omitted). Defendants seek summary judgment on the first and third elements. Officers Mem. Sup. Mot. Summ. J. 22-24. The material fact disputes here amount to an absence of any probable cause; the jury could conclude that Rivera was targeted without suspicion on August 27, 1988. The malicious prosecution claim nevertheless fails at summary judgment for lack of evidence that any defendant
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, 851 F.3d at 655 (quoting Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996) (emphasis omitted)). Rivera must therefore point to evidence of "some postarrest action which influenced the prosecutor's decision to indict." Id. (quoting Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 902 (7th Cir. 2001)); see also Mahoney v. Kesery, 976 F.2d 1054, 1061 (7th Cir. 1992).
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, 197 F. App'x 475, 481 (7th Cir. 2006)). There is no evidence of how, if at all, any officer's post-arrest activity influenced the ASA's decision. That gap in proof breaks the chain of causation. See Colbert, 851 F.3d at 655; Reed, 77 F.3d at 1053; Cervantes v. Jones, 23 F.Supp.2d 885, 891 (N.D. Ill. 1998) (holding chain of causation broken by prosecutor's independent decision to initiate and continue charges even though officer allegedly lied to grand jury). Rivera cites a number of district court cases and quotes general principles, but he does not attempt to distinguish the approach taken in Colbert. See Pl. Combined Resp. 42-45, ECF No. 321.
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, 976 F.2d at 1061 (citing Jones, 856 F.2d at 993-94) (decided under Wisconsin law but relying on Illinois malicious prosecution law applied in Jones). The court therefore dismisses Rivera's malicious prosecution claims against all defendants except Guevara.
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.
In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities can be liable for damages under 42 U.S.C. § 1983 caused by constitutional violations, but not under the respondeat superior theory that the person who committed the violation was acting in the course and scope of employment with the municipality when the violation occurred. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. 2018. "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018) (other citation omitted). Rivera proposes to use the final method here.
"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., 520 U.S. 781, 796, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (quoting St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)) (internal quotations and alteration omitted). In addition to having caused the violation, the custom or policy must be "the moving force behind it." Colbert v. City of Chicago, 851 F.3d 649, 660 (7th Cir. 2017) (quoting Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007)). Before discussing Rivera's Monell claims in detail, the court must settle a dispute over their scope and breadth.
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"):
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, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also, e.g., Carmichael v. Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010) ("The burden of defeating summary judgment did not shift to the plaintiffs on this issue simply because, without citation to relevant facts or authority pertaining to the [particular claim], the defendants sought summary judgment on all claims....").
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, 583 F.3d 990, 994 (7th Cir. 2009); United States ex rel. McGee v. IBM Corp., No. 11-C-3482, 2017 WL 4467458, at *11 (N.D. Ill. Oct. 6, 2017); Abbott Labs. v. Sandoz, Inc., 743 F.Supp.2d 762, 771 (N.D. Ill. 2010); see also Eli Lilly & Co. v. Teva
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. 16 C 1963, 2016 WL 7240765, at *4 (N.D. Ill. Dec. 14, 2016) (stating that "any harm caused by an alleged street files policy or practice could only manifest itself through the Defendant Officers actually maintaining such files" (citing Veal v. Kachiroubas, No. 12 C 8342, 2014 WL 321708, at *4 (N.D. Ill. Jan. 29, 2014))). But if the claims that the City has briefed survive summary judgment, the disputed theories will be in play at trial.
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, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (holding that decision to admit scientific expert testimony at summary judgment is "reviewable under the abuse-of-discretion standard"); see also Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704-05 (7th Cir. 2009) ("Although it is rarely a dispositive question, we have repeatedly affirmed district courts that have made evidentiary rulings on proposed expert testimony in conjunction with summary judgment orders.... [I]t is of no import that [the defendant] objected to the expert testimony only in its motion for summary judgment, as opposed to first filing a separate motion...." (citations omitted)). Federal Rule of Evidence 702 allows opinion testimony by an expert "who is qualified ... by knowledge, skill, experience, training, or education" to testify provided that four conditions are satisfied. In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court declined to adopt a "`general acceptance' standard" for expert opinion testimony because it "would be at odds with the `liberal thrust' of the Federal Rules and their `general approach of relaxing the traditional barriers to opinion testimony.'" Daubert, 509 U.S. at 588, 113 S.Ct. 2786 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)). Nevertheless, "the court must ensure that the evidence is relevant and reliable before admitting it." Lees v. Carthage Coll., 714 F.3d 516, 521 (7th Cir. 2013) (citing Daubert, 509 U.S. at 588-89, 113 S.Ct. 2786). Rule 702 requires the court to ask the following questions before admitting expert testimony: (1) is the "expert
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 509 U.S. at 594, 113 S.Ct. 2786; Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012). They include "whether it can be (and has been) tested," "whether the theory or technique has been subjected to peer review and publication," "the known or potential rate of error," "the existence and maintenance of standards controlling the technique's operation," and "general acceptance" within an explicitly identified scientific community and the degree of acceptance within that community. Daubert, 509 U.S. at 594, 113 S.Ct. 2786 (internal citations omitted) (emphasizing that "[t]he inquiry ... is ... a flexible one"); Lapsley, 689 F.3d at 810 (further emphasizing that "[t]he Rule 702 inquiry is fact-dependent and flexible" (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999))); see also Gopalratnam, 877 F.3d at 779-80 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)) (listing additional factors which may be considered).
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, 877 F.3d at 780; Smith, 215 F.3d at 718 (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786 and Walker v. Soo Line R.R. Co., 208 F.3d 581, 587 (7th Cir. 2000)). "The focus ... `must be solely on principles and methodology, not on the conclusions that they generate.'" Gopalratnam, 877 F.3d at 781 (quoting Daubert, 509 U.S. at 595, 113 S.Ct. 2786). "The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment." Id. (quoting Smith, 215 F.3d at 718) (other citation omitted).
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, 755 F.2d 560 (7th Cir. 1985), a putative class action under 42 U.S.C. § 1983. The litigation in Palmer grew out of the 1981 prosecution of George Jones
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." Id. The CPD issued Detective Division Notice 82-2 implementing the TRO's requirements, but, according to evidence later introduced at a preliminary injunction hearing, some detectives continued to withhold some notes they considered to be their personal property. See id. The court in Palmer noted the following regarding a preliminary injunction hearing before the late Judge Shadur:
Id. at 566 (quoting Palmer v. City of Chicago, 562 F.Supp. 1067, 1069, 1070 (N.D. Ill. 1983)) (internal citations omitted). Effective February 3, 1983, CPD Detective Division Special Order 83-1 required the use of a uniform "investigative file" folder, with an inventory sheet logging its contents; the order required the file to contain "all handwritten notes and investigative documents generated or received" in the investigation. Id. at 568. The Palmer litigation ended in a preliminary injunction that required preservation of the 300 files, but a review of them disclosed no exculpatory material. Palmer v. City of Chicago, 806 F.2d 1316, 1317 (7th Cir. 1986) ("The lawyers say they think the files were
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, 856 F.2d 985, 988 (7th Cir. 1988). Affirming, the Seventh Circuit decided that the evidence was sufficient to hold the City liable under Monell. Id. at 995-96. The custom involved was "the maintenance of the `street files,' police files withheld from the state's attorney and therefore unavailable as a source of exculpatory information that might induce him not to prosecute or, failing that, would at least be available to defense counsel under" Brady. Id. at 995. The evidence showed that a detective wrote two reports that would have been very helpful to Jones. Id. at 991. A superior rewrote the first to eliminate the helpful material, and another supervisor buried the second in a desk drawer. Id. Brady, the Seventh Circuit explained, "`does not require the police to keep written records of all their investigatory activities; but attempts to circumvent the rule of that case by retaining records in clandestine files deliberately concealed from prosecutors and defense counsel cannot be tolerated.'" Id. at 995. The Seventh Circuit determined that "[t]here is little doubt that the clandestine character of the street files played a role in Jones's misfortunes." Id.
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.
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 id. The permanent retention file includes a folder cover, and the papers appear to be hole-punched at the top in the manner that CPD policy required investigative files to be kept. See Resp. to City SMF ¶¶ 41, 42; Pl. Ex. 4 at Wron 1-69; City Tab 43 (color copy). As with Wadas' records and many of the other historic documents in this case, the jury need not infer that the papers in the RD file produced in discovery were in the same condition at as they were in 1988-90. That is, they may have been kept somewhere other than the required folder when documents were gathered to be given to the prosecutors and then to Wadas. See Wadas Dep. 86:22-88:9, Pl. Ex. 19A (testifying that the prosecutors assured Wadas that he had everything they had). It would also be reasonable to infer on this record that the papers missing from the 2013 Wadas file had been kept in the folder, but someone culled them before giving them to prosecutors and defense counsel.
If consistent with a widespread practice, both possibilities fit the description of the practice in Jones.
A similar question was tried to a jury in Fields v. City of Chicago. See No. 10 C 1168, 2017 WL 4553411, at *1 (N.D. Ill. Oct. 12, 2017). The plaintiff, Nathson Fields, spent 17 years in jail for two 1984 murders in Chicago. Id.; Fields II, 740 F.3d at 1109. A state court vacated his conviction when new evidence came to light; the jury acquitted him on retrial; and the court that convicted him issued him a certificate of innocence. Fields II, 740 F.3d at 1109. Fields then sued the city and police officers involved in the investigation under § 1983 and state law, claiming, among other things, that the officers withheld evidence that would have helped to exculpate him. See Fields, 2017 WL 4553411, at *2. The jury credited Fields' evidence that the officers who conducted the investigation fabricated evidence and identifications and buried unfavorable evidence in a street file. See id. Judge Kennelly held the evidence supported the jury's verdict against the City based on evidence of systematic underproduction of police reports, was sufficient to show a systemic failing that went beyond his own case. Id. at *2-3. The City and police department were on notice, via the Jones/Palmer litigation and the department's own subsequent internal inquiry, of deficiencies in its recordkeeping and record-production practices that, at least in some situations, led to harm. And Fields offered evidence that permitted a reasonable jury to find that the policies instituted to deal with these problems were insufficient to correct them. Id. at *3 (citing Daniel v. Cook Cty., 833 F.3d 728, 734 (7th Cir. 2016)) (footnote omitted).
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, 877 F.3d 264, 270 (7th Cir. 2017) (quoting Dexia Credit Local v. Rogan, 629 F.3d 612, 628 (7th Cir. 2010)) (alterations in original). Fields and Kluppelberg grew out of investigations culminating in trials held respectively in 1986 and 1984, and Jones arose out of an investigation that occurred in 1980. The Valentin investigation took place in 1988, and Rivera was convicted in 1990. This passage of time, the court thinks, renders the issue in Fields sufficiently dissimilar to defeat collateral estoppel. Widespread practices do not necessarily persist indefinitely. And the gravamen of the City's position on this practice, pointing to the aspirations stated in the orders issued in the wake of the Palmer/Jones cases, is that the CPD was on a path of reform. Regardless of what the Fields jury decided when rendering its general verdict,
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, 562 F.Supp. at 1070; see also Resp. to SAF ¶ 104 (City response quoting this language). Yet the jury could conclude that the City took no affirmative steps to train its officers on implementing the general orders meant to mitigate that risk and did not take steps to audit compliance with those directives. See id. ¶¶ 101-11. Indeed, Hickey testified that he viewed compliance responsibilities as the individual supervisor's problem. Id. ¶ 111 (citation to testimony omitted).
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, 408 F.3d 375, 380-81 (7th Cir. 2005) (single incident insufficient to show widespread practice). Taken together and viewed in the light most favorable to Rivera, this evidence alone suffices to allow the jury to conclude, as Judge Kennelly put it when denying summary judgment in Fields:
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. Id. The City does not challenge the admissibility of those opinions. See Resp. to SAF ¶¶ 121-22.
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 id.; see also, e.g., Brasfield Attachment F at 5, 6, 8 (C. Lee, supplemental report ("SR") present in RD file but not in defense file; M. Green, SR, criminal history report, statements, handwritten notes not in defense file but in RD file; E. Madrid, same for SRs and lineup SRs). If anything, this seems to help plaintiff, not hurt him.
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, 520 U.S. 397, 411, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (emphasis added). The standard requires an awareness of the risk, which the court has already explained flowed from Judge Shadur's pronouncements in Palmer and other sources. Rivera "need not present evidence that these systemic failings affected other specific [persons]." Fields, 2017 WL 4553411, at *3 (quoting Daniel v. Cook Cty., 833 F.3d 728, 734 (7th Cir. 2016) (internal quotation marks omitted)) (holding evidence at trial sufficed to support jury verdict).
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.
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." Id.; see also id. ¶ 136 (so stipulating). One hundred thirty-eight files included evidence of a lineup, and the City produced those files in discovery. Id. ¶ 135. Plaintiff's attorneys then recorded the results of the lineups in the 138 files in a spreadsheet and gave it to Wells. Id. ¶ 139.
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., 102 F.3d 256, 263 (7th Cir. 1996); see also, e.g., Obrycka v. City of Chicago, 792 F.Supp.2d 1013, 1026-27 (N.D. Ill. 2011); Sommerfield v. City of Chicago, 254 F.R.D. 317, 321 (N.D. Ill. 2008). Of course, an expert may take one or the other party's version of disputed facts as true when offering an opinion. Sanders v. City of Chicago Heights, No. 13 C 0221, 2016 WL 1730608, at *6 (N.D. Ill. May 2, 2016) (St. Eve, J) (citing Cage v. City of Chicago, 979 F.Supp.2d 787, 810 (N.D. Ill. 2013)) (allowing expert to presume that recantations would be considered credible by jury); Richman v. Sheahan, 415 F.Supp.2d 929, 942 (N.D. Ill. 2006).
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, 792 F.Supp.2d at 1026-27 (excluding report in part for relying on attorneys' summary of depositions); Sommerfield, 254 F.R.D. at 321-22 (same). The City offers no analysis or citation suggesting that counsel mischaracterized the lineup forms, and even if it did, the court would be required to resolve any genuine disputes about the characterizations as true at summary judgment. Because the City has not objected to them, the court assumes at summary judgment that the jury will have the files to verify every citation if it wishes.
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%
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, 819 F.3d 343, 348 (7th Cir. 2016). In its opening motion, the City argues that it focuses solely on Guevara because Brasfield, plaintiff's expert, reviewed citizen complaint registers (CRs) made against Guevara and no other officers. City Mot. Summ. J. 21 (citing City SMF ¶ 75). But the City then cites cases, see id. at 21-22, for the general proposition that isolated acts generally do not establish a widespread practice under Monell. E.g., McNabola v. Chi. Transit Auth., 10 F.3d 501, 511 (7th Cir. 1993); Cornfield ex rel. Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1326 (7th Cir. 1993). Those citations and the accompanying argument give Rivera ample notice that the City contends he lacks evidence of failure to discipline officers other than Guevara. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548 (moving party carries initial summary judgment burden by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case" (internal punctuation omitted)); Weeks v. Hodges, 871 F.Supp.2d 811, 825 (N.D. Ind. 2012) (applying rule at summary judgment). Accordingly, the court will not assume that Rivera could or would prove that the City failed to discipline other officers during the relevant time period.
The opinion in Monell defined a widespread practice as one that is "persistent," "widespread," "permanent," and "well-settled." Monell, 436 U.S. at 691, 98 S.Ct. 2018. In his Local Rule 56.1(b)(3) statement of additional facts, Rivera cites Brasfield's analysis and evidence (viewed favorably to him) of a staggering number of exonerations in which Guevara was involved, other complaints against by Guevara brought in pending and former lawsuits, and complaints by private citizens and public officials made to the CPD-before and after the Valentin investigation-about
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, 819 F.3d at 348 (quoting Phelan v. Cook Cty., 463 F.3d 773, 790 (7th Cir. 2006)). Plaintiff does not articulate who he believes the pertinent final policymaker was in this case. The Seventh Circuit has declined to adopt any bright-line rules defining a "widespread custom or practice." Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010). Nonetheless, "evidence of a single violation of federal rights can trigger municipal liability if the violation was a `highly predictable consequence' of the municipality's failure to act." Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929 (7th Cir. 2004) (citing Bryan Cty., 520 U.S. at 409, 117 S.Ct. 1382). And "there is no clear consensus as to how frequently such conduct must occur to impose Monell liability." Thomas, 604 F.3d at 303 (internal citations omitted) (noting consensus that more than one, or even three instances, is required).
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. 01 C 8945, 2003 WL 1715621, at *6-7 (N.D. Ill. Mar. 20, 2003). The record there also contained evidence that a police watch commander told the police officer involved "not to worry" about being arrested for battery. Id. at *3, 7. In the second two cases, the courts denied summary judgment on a theory that the city had a widespread practice of failing to investigate excessive force complaints because the record showed that, in the three years leading up to the incident at issue in the suit, the "decision of whether to investigate excessive force complaints [were] often unreviewed and undocumented" and that 35 complaints of citizens against officers for using excessive force were filed "and no corrective action was ever taken on any of them." Kindle v. City of Harvey, No. 00 C 6886, 2002 WL 230779, at *4-5 (N.D. Ill. Feb. 15, 2002); accord Robinson v. City of Harvey, No. 99 C 3696, 2001 WL 138901, at *7 (N.D. Ill. Feb. 16, 2001).
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 368 F.3d at 929 (concluding that the multiple deviations showed that the case was not a single-incident case).
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, 790 F.3d at 737. The court deems Brasfield's opinion unreliable on this issue. Even if the opinion was admissible, Rivera has not identified enough evidence to take the next step from one officer to a "critical mass." So the failure to discipline theory must be dismissed.
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:
Fields II, 740 F.3d at 1110 (majority opinion); see also Avery, 847 F.3d at 439 ("[C]oercively interrogating witnesses, paying witnesses for testimony, and witness-shopping may be deplorable, and these tactics may contribute to wrongful convictions, but unlike falsified evidence and perjured testimony, coerced testimony may turn out to be true." (quoting Petty v. Chicago, 754 F.3d 416, 422-23 (7th Cir. 2014)) (alterations omitted)).
