In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-2598

R AUL C ARVAJAL,
                                                    Plaintiff-Appellee,
                                  v.

L OUIS D OMINGUEZ, JR., in his individual capacity,

                                               Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 05 C 2958—James F. Holderman, Chief Judge.
                          ____________

     A RGUED A PRIL 8, 2008—D ECIDED S EPTEMBER 5, 2008
                          ____________



  Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. The plaintiff/appellee, Raul
Carvajal, was prosecuted in the Southern District of
Florida for money laundering and was acquitted at the
conclusion of a jury trial. He then brought this civil suit
in the Northern District of Illinois against defen-
dant/appellant Drug Enforcement Administration (“DEA”)
Task Force Officer Louis Dominguez, Jr. for damages,
alleging violations of his constitutional rights in connec-
2                                              No. 07-2598

tion with the criminal prosecution. The Illinois district
court granted Dominguez’s motion for summary judg-
ment in part by dismissing several counts of Carvajal’s
amended complaint, but the court denied the motion with
respect to a count which asserted a Bivens cause of action
alleging a Brady violation. That decision also included a
denial of qualified immunity for Dominguez. This
appeal followed.


                     I. Background
  The relevant facts revolve around Officer Dominguez’s
identification of Carvajal in two undercover money
pickups in Chicago. Chicago DEA Task Force Officer
Wayne Hunter was assisting in an investigation (called
“Operation Double Trouble”) of a Miami-based money
laundering operation in early April 2001. DEA Miami
asked for assistance in arranging two undercover money
pickups in Chicago. DEA Miami provided Hunter with a
cell phone number and a code to be used to arrange the
pickups. The first pickup was to occur on April 16, 2001.
Hunter asked agent Dominguez to do the job. Dominguez
used the cell number to arrange to meet two individuals;
he later identified them as German Matos Ruiz and Raul
Carvajal. Dominguez met with the men for about five
minutes in the midafternoon inside a Coconuts music
store, and he saw them in the parking lot where he
spoke with the man identified as Ruiz for a few minutes
and observed the man identified as Carvajal sitting in a
vehicle. A second transaction took place on April 21, 2001.
Dominguez again identified the men as Ruiz and Carvajal;
No. 07-2598                                                 3

a woman was also with them. This meeting took place in
a Baker’s Square restaurant. The meeting lasted about
15 minutes. During the meeting Dominguez initially sat
next to the man identified as Carvajal with the man
identified as Ruiz across the table; later the men switched,
putting the supposed Carvajal across the table from
Dominguez. This meeting also occurred in the midafter-
noon.
  It is unclear just when Hunter learned of Carvajal’s
name in connection with the money laundering investiga-
tion—he testified in a deposition in this civil action that he
may have gotten the name from DEA Miami or from a
Chicago field office intelligence analyst who traced the
cell number to Carvajal’s ex-wife. Either way, on April 9,
2001, an intelligence analyst in Chicago requested a
photo of Carvajal from the Illinois Secretary of State.
Hunter did not remember when he got the photo or
whether he had it before April 16, the date of the first
undercover pickup. Hunter said he knew Carvajal’s name
by April 15th and may have had the picture by the 16th.
  Dominguez said that he did not see Carvajal’s photo or
have his name prior to the April 16th meeting. Dominguez
claims that he first saw Carvajal’s photo sometime between
the first meeting on April 16 and May 14, 2001, the date
of his written reports. He cannot recall whether he saw
another photo at the same time he saw Carvajal’s or not.
He never saw a formal lineup. Hunter testified that he
“possibly gave Carvajal’s name and photographic image
to Dominguez prior to the April 16, 2001, operation to
make sure that Dominguez had all the information about
4                                               No. 07-2598

the case and that Dominguez was not meeting with
someone he already knew.” It is agreed that Hunter
would have provided whatever information he had to
Dominguez, including the photo—doing so would have
been his “normal practice.”
  A federal grand jury in Miami indicted Carvajal and
33 others in connection with a money laundering scheme;
in a superceding indictment he was charged only with
acting as a courier. Carvajal filed a motion to suppress
Dominguez’s identification of him as unduly suggestive
in light of the “one-photo procedure used.” The judge
denied the motion after an evidentiary hearing at which
Dominguez and another law enforcement officer (not
Hunter) testified. The judge began his ruling with the
assumption that the photo identification procedure used
by Dominguez was unduly suggestive, but he found that
“regardless of whether the procedure used was
impermissibly suggestive, there was not a substantial
likelihood of misidentification.” He noted that Dominguez
had an “excellent opportunity to view Carvajal at the
time of the two money pick ups” and that there was no
evidence that he was “pressured to select Carvajal’s
photograph.” That judge also made a finding that
during a separate undercover money pickup (in which
Dominguez was not involved), a vehicle was seen that
was registered to Carvajal’s ex-wife. Later, in a trial
with one co-defendant, who was found guilty, a jury
acquitted Carvajal.
  This brings us to the instant case in which Carvajal
brought this civil suit in the Northern District of Illinois
No. 07-2598                                                    5

for damages against Dominguez. The district court
granted Dominguez’s motion for summary judgment on
Count One, a claim for false arrest and unlawful search
and seizure, and Count Two, a claim alleging a “depriva-
tion of liberty.” The court also granted the motion
with respect to Count Four—a claim for perjury—noting
police witnesses are entitled to absolute immunity from
perjury claims for trials and pretrial proceedings and
found no evidence supporting an application of the
“complaining witness” exception to this rule. Count Three
claimed that Dominguez withheld favorable evidence
in violation of Brady v. Maryland, 

(1963). The
amended complaint alleged that he “knowingly and
falsely identified Carvajal as the perpetrator in a money
laundering conspiracy and wrote false police reports
about him.” The district court denied Dominguez’s motion
for summary judgment with respect to this claim. In its
decision, the court rejected the notion that an acquitted
defendant, such as Carvajal, cannot have a Brady claim
but noted that the question is an open one in this
circuit and that the district court is split on the question.
The court concluded that an acquittal “alone does not
show that the police officers complied with Brady or that
the defendant’s trial was fair” and applied the Brady
analysis “on a prospective basis.” 1 Analyzing under


1
  The following, from Carroccia v. Anderson, another case from
the Northern District of Illinois, explains the rationale behind
this “prospective test”:
      Brady and its progeny impose a duty on prosecutors and
    police officers to produce evidence favorable to the accused
                                                   (continued...)
6                                                    No. 07-2598

Brady, the judge explained: “Carvajal identified as ex-
culpatory Dominguez’s alleged failure to tell the prosecu-
tor that he was given Carvajal’s name and photographic
image before the first transaction on April 16, 2001.” “This
evidence would have impeached Dominguez’s testi-
mony at trial that he did not know Carvajal’s name or
see his photograph until after the April 16, 2001 trans-
action and undermined the credibility of Dominguez’s
post-April 16, 2001 identification of Carvajal.” According
to the district court, this was “material” because it “would
have changed the outcome of the suppression hearing, and
the withholding of evidence denied him a fair trial.” The
court also concluded that Dominguez was not entitled to
qualified immunity explaining that “the boundaries of
Brady as applied to this case have long been established.”


1
    (...continued)
       where the evidence is material either to guilt or punish-
       ment. To discharge this duty, law enforcement officials
       must make prospective judgments regarding the materiality
       of exculpatory evidence that comes to their attention. They
       must decide in advance of trial, and without knowing
       how the trial will come out, whether evidence favorable to
       the accused has a “reasonable probability” of affecting the
       outcome of the case. If courts prohibit a criminal defendant
       from making a civil claim for concealment of material
       exculpatory evidence simply because his trial resulted in
       an acquittal, we tolerate law enforcement misconduct
       simply because the defendant was able to overcome it by
       other means.
Carroccia v. Anderson, 

, 1023 (N.D. Ill. 2003)
(internal citations omitted).
No. 07-2598                                               7

  Dominguez now appeals.


                II. Discussion & Analysis
  This case comes to us from a denial of summary judg-
ment—typically a case in such a posture is not immedi-
ately appealable to our court. We have jurisdiction, how-
ever, under 28 U.S.C. § 1291 and the “collateral order”
doctrine. An appeal of an order denying qualified immu-
nity is a well-established application of this doctrine: “A
district court’s denial of a claim of qualified immunity,
to the extent that it turns on an issue of law is an
appealable final decision within the meaning of 18 U.S.C.
§ 1291, notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 

, 530 (1985).
  The Supreme Court recently clarified that the scope of
this doctrine includes jurisdiction over whether “to devise
a new Bivens damages action” and explained:
    We recognized just last Term that the definition of an
    element of the asserted cause of action was “directly
    implicated by the defense of qualified immunity and
    properly before us on interlocutory appeal.” Hartman
    v. Moore, 

, 257 n.5 (2006). Because the
    same reasoning applies to the recognition of the
    entire cause of action, the Court of Appeals had juris-
    diction of this issue, as do we.
Wilkie v. Robbins, 

, 2597 & n.4 (2007). Thus,
we have jurisdiction over the questions presented by this
appeal. Our review is de novo. See Wernsing v. Thompson,

, 741 (7th Cir. 2005); Wade v. Hopper, 

, 1251 (7th Cir. 1993).
8                                                     No. 07-2598

  Determining whether a defendant law enforcement
officer is entitled to qualified immunity involves a two-
step analysis. The first step is whether the facts alleged,
taken in the light most favorable to the plaintiff, amount
to a constitutional violation. If not, the inquiry ends, and
the officer has qualified immunity. If yes, then the second
step is whether the violated right was clearly established.
This is determined by looking at whether it would be
clear to a reasonable official that his or her conduct was
unlawful in the situation. E.g., Michael C. v. Gresbach, 

, 1012 (7th Cir. 2008). We begin with the first
prong and address whether the facts alleged show a
constitutional violation.
  The constitutional violation alleged in this case was a
violation of due process for failure to turn over exculpa-
tory/impeaching evidence to the defendant as constitu-
tionally required—a so-called Brady violation. Brady v.
Maryland, 

(1963). While most commonly
viewed as a prosecutor’s duty to disclose to the defense,
the duty extends to the police and requires that they
similarly turn over exculpatory/impeaching evidence to
the prosecutor, thereby triggering the prosecutor’s dis-
closure obligation. See Youngblood v. West Virginia, 

, 870 (2006) (“[A] Brady suppression occurs when
the government fails to turn over even evidence that is
‘known only to police investigators and not to the prosecu-
tor . . . .’ ” (citing Kyles v. Whitley, 

, 438 (1995)));
Strickler v. Green, 

, 280-81 (1999); Steidl v.
Fermon, 

, 628, 630-32 (7th Cir. 2007). A Brady
violation can be broken down into three basic elements:
(1) the evidence at issue is favorable to the accused, either
No. 07-2598                                                  9

being exculpatory or impeaching; (2) the evidence must
have been suppressed by the government, either willfully
or inadvertently; and (3) there is a reasonable probability
that prejudice ensued—in other words, “materiality.” See

; United States v. Bland, 

, 934 (7th Cir. 2008); Ienco v. Angarone, 

,
683 (7th Cir. 2005). Evidence is “suppressed” 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. 

.
Evidence is “material” “if there is a reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”

(internal quotations omitted);
see also 

.
   Specifically, Carvajal alleges that Dominguez failed to
disclose that he had Carvajal’s name and saw his photo-
graph prior to the first undercover drug pickup on
April 16th. Dominguez’s version of the events is that he
did not see Carvajal’s photograph until sometime after
the first undercover pickup. Hunter’s deposition testi-
mony, on the other hand, suggests that perhaps
Dominguez had the photo earlier, prior to the first pickup.
This can be inferred from the April 9th request to the
Illinois Secretary of State for a photograph of Carvajal and
Hunter’s deposition testimony in the civil case that he
was “sure” he would have a picture back from the Illinois
Secretary of State within a week. Hunter and Dominguez
also explained that, per the usual practice, if Hunter
indeed had the photograph of Carvajal before the April
10                                                No. 07-2598

16th undercover pickup he would have shown it to
Dominguez. Carvajal claims that this fact would have
been used to impeach Dominguez and would have
changed the outcome of the suppression hearing and that
perhaps Carvajal would not even have been subjected to
a trial. We simply cannot agree, however, that this
amounts to a Brady violation.
   At the most (as we must assume from the conflicting
recollections of when the photo may have been viewed),
the facts could support an inference that Dominguez
did see the photo before the first pickup and that he
lied about when he saw the photograph. But a lying
witness is certainly not a Brady violation. It is already
established law that Brady does not extend so far as to
provide relief in a situation where “a police officer makes
a false statement to a prosecutor.” Harris v. Kuba, 

, 1017 (7th Cir. 2007) (“Harris essentially seeks an
extension of Brady to provide relief if a police officer
makes a false statement to a prosecutor by arguing that
an officer is ‘suppressing’ evidence of the truth by
making the false statement. This court has already fore-
closed this extension.”); see also Sornberger v. City of Knox-
ville, 

, 1029 (7th Cir. 2006) (“The Constitution
does not require that police testify truthfully; rather the
constitutional rule is that the defendant is entitled to a
trial that will enable jurors to determine where the truth
lies.” (citations omitted)).
  Moreover, both Hunter and Dominguez were accessible
to the defense for the hearing on the motion to sup-
press the identification in the criminal case. It is Carvajal’s
No. 07-2598                                                     11

responsibility to probe the witnesses and investigate
their versions of the relevant events. There was nothing
preventing Carvajal from discovering and drawing out
this discrepancy between the officers’ stories during the
suppression hearing. Suppression does not occur when
the defendant could have discovered it himself through
“reasonable diligence.” 

; cf. United
States v. Tadros, 

, 1005 (7th Cir. 2002). Brady
does not require disclosure by one officer that he and
another officer, both called as witnesses, have slightly
different versions with respect to precisely which date
they saw Carvajal’s photograph or learned his name.
   There is also a logical flaw in Carvajal’s argument. His
“claim is based on the fact that Dominguez failed to
disclose to the prosecutors that he was given Carvajal’s
name and shown his photograph prior to the first transac-
tion . . . while insisting the opposite in his . . . police reports
and during his testimony . . . .” Appellee’s Br. at 10.
However, the fact that Dominguez saw the photograph or
had the name prior to the first meeting itself is not im-
peaching. Under Brady, the evidence suppressed must be
exculpatory or impeaching, not the fact that it was sup-
pressed. Now, perhaps, one could, at least logically, argue
that the prosecutor’s failure to disclose that Dominguez
lied violated Brady (thus the suppressed impeaching
evidence was the fact that Dominguez lied and not the
fact that he saw a photo). Carvajal did not advance such
an argument, however, and regardless, it could not logi-
cally support a cause of action against Dominguez himself,
rather than the prosecutor.
12                                              No. 07-2598

  And by itself the fact that he saw the photograph before
the first pickup is not exculpatory either—too many
inferences have to be made to reach that conclusion. See

(“None of the pieces of evidence
[the plaintiff] points to, when considered at face value, is
exculpatory. . . . [T]he evidence is arguably favorable
only after several inferences are made. . . . This stretches
the meaning of ‘favorable’ beyond that of Brady.”). Simply
because a trained officer viewed a photograph of
someone he might potentially encounter in an under-
cover investigation—to make sure it was not someone
he already knew, or someone who might know him—does
not amount to exculpatory evidence. This is regular
police practice—in fact, a sign of good police work. It
only makes sense that an officer going undercover
would gather information about the individuals he may
meet, if for no other reason, to preserve his undercover
status and ensure his (and others’) safety. As Hunter
and Dominguez testified, obtaining and looking at such
information was part of their regular practice. Frankly, it
is quite difficult to see at all how the regular police prac-
tice of checking a photograph before meeting someone
undercover amounts to exculpatory evidence.
   Similarly, there is also no “reasonable probability” that
if Dominguez had disclosed that he had Carvajal’s name
and/or had seen the photograph prior to the April 16th
pickup that his identification of Carvajal would have
been suppressed or the charges dropped. See 

(“[T]he question is whether ‘the favorable
evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the
No. 07-2598                                               13

[outcome].’ ” (quoting 

)). The judge at
the suppression hearing (in response to Carvajal’s chal-
lenge to the one-photo procedure used) assumed that a
suggestive identification procedure had been utilized, but
nevertheless concluded that there was “not a substantial
likelihood of misidentification.” Dominguez had an
“excellent opportunity to view [Carvajal] at the time
of the two money pick ups.” There was also other
evidence supporting the conclusion that Carvajal was
involved besides Dominguez’s identification—the cell
phone number and car links to his ex-wife, for instance.
So, even if there were something troubling about when
Dominguez saw the photo, Carvajal has not shown that
it would have made any difference in the outcome. If we
focus on the possible impeachment aspect, the best
Carvajal could have achieved is casting some doubt on
Dominguez’s credibility—however, he has presented no
persuasive explanation that Dominguez was motivated
by some malice or even that he purposefully lied. Thus
any impeachment value from the inconsistent testimony
between Hunter and Dominguez seems insignificant.
We cannot reasonably see how the discrepancy about
when a photo was seen would have caused the prosecu-
tion’s entire case to unravel or the suppression judge to
alter his ruling. Moreover, everyone agrees that the
photograph was seen at some point before the end of
the investigation. And the suppression hearing judge
explicitly determined that the one-photo method did not
undermine the reliability of the identification. See also
United States v. Brown, 

, 804-05 (explaining that
a trained officer viewing photographs is not the same as a
14                                              No. 07-2598

witness “trying to separate a culprit from a crowd”); 

(“The officers approached the photo not as victims
open to persuasion by officialdom, but as skeptics trying
to check up on their new source.”). Carvajal has not
established a “reasonable probability” that the sup-
pression result or the decision to go to trial would have
been altered by the desired disclosure.
  To conclude on this point—inconsistent police testi-
mony does not a Brady violation make. Carvajal comes
up short on all three elements of a Brady claim. Inference
upon inference is needed to explain how the evidence
is favorable to Carvajal. Most obviously, it is also not
rightly considered “suppressed” evidence because
Carvajal could have discovered Dominguez’s and
Hunter’s inconsistent testimony himself: the hearing
allowed on the identification challenge was his vehicle
for doing so. And lastly, Carvajal has not established the
third requirement—materiality or prejudice—because there
is no reasonable probability that the failure to disclose
would have altered the outcome of the suppression or
caused the prosecutor to forego the trial.
  Since there was no Brady violation, we conclude, under
the first step in the qualified immunity analysis, that
the facts, taken in the light most favorable to Carvajal, do
not establish a constitutional violation on the part of
defendant Dominguez. Therefore, the district court erred
in failing to find that Dominguez was entitled to
qualified immunity. As such, his motion for summary
judgment should have been granted.
No. 07-2598                                                15

  Three other matters deserve brief comments.
  The district court reached the second step of qualified
immunity analysis in concluding that the obligation to
disclose impeaching or exculpatory information would
have been clear to a reasonable law enforcement officer.
Given our conclusion that no Brady violation occurred
here, we do not need to evaluate that aspect of the rul-
ing. Nonetheless, a more careful examination of this
question should have produced a different result. The
question at this step, if reached, would not be whether
a law enforcement officer would clearly know that he
had to disclose impeaching or exculpatory information.
That assumed the result. Rather, the question should
have been whether it was clear that a law enforcement
officer would have been expected to disclose whether
he had seen a photo of a suspect before he went to a
potentially dangerous undercover meeting with that
individual. As noted, good police practices and common
sense would suggest that an officer ought to prepare in
that way. We are aware of no case which clearly
indicates, or even hints, for that matter, that a law enforce-
ment officer would be expected to disclose that he had
undertaken such preparation. It is about the equivalent
of strapping on a concealed weapon or reviewing a sus-
pect’s prior criminal history before attending such an
undercover encounter. Unless clear guidance is given
that such a practice must be disclosed as potentially
impeaching or exculpatory, the broad protection of quali-
fied immunity should protect a law enforcement officer
from liability for failure to mention viewing a suspect’s
photo before meeting with him.
16                                                      No. 07-2598

   We also pause briefly to consider, and express our
doubts, about some other aspects of Carvajal’s claim. First
we are doubtful, in addition to the specific reasons ex-

, that an acquitted defendant can ever estab-
lish the requisite prejudice for a Brady violation. The
district court’s “prospective” test does not seem to accu-
rately capture what Brady protects and misunderstands
the “materiality” requirement in a true Brady violation.
We find the following from the Supreme Court to be
instructive on this point:
     [T]he term “Brady violation” is sometimes used to
     refer to any breach of the broad obligation to disclose
     exculpatory evidence—that is, to any suppression of
     so-called “Brady material”— although strictly
     speaking, there is never a real “Brady violation” unless
     the nondisclosure was so serious that there is a rea-
     sonable probability that the suppressed evidence
     would have produced a different verdict.

. “[T]he question is whether the
favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.” 

Therefore, while a
prosecutor has to make decisions about what is Brady
material prospectively, so to speak, a true constitutional
violation is measured with the outcome in mind.2


2
   The plaintiff, as well as Illinois district judges in similar cases,
pointed to Carey v. Piphus, 

(1978), in support. We
find this reliance misplaced. In addressing a high school stu-
                                                         (continued...)
No. 07-2598                                                    17

   We are equally doubtful, given the considerations in
deciding whether to recognize a Bivens cause of action, 3
that such an action exists for a Brady violation. Most
specifically it seems that there is an “alternative, existing
process for protecting the interest”: namely, the dis-
closure obligation put on the prosecution under Brady
itself protects the defendant’s interest in a fair trial, and,
the fact that if a criminal defendant does establish a
Brady violation he already has a remedy in getting his


2
   (...continued)
dent’s suspension without a hearing, the Court concluded
that “the denial of procedural due process should be actionable
for nominal damages without proof of actual injury.” 

In doing so, the Court was focusing on fair process and was
not holding that there was any actual damage or harm
resulting from the insufficient process. Therefore, there is not a
parallel from Carey’s holding to the materiality/prejudice
requirement of Brady, which requires more in order to estab-
lish the constitutional violation at issue. Additionally, unlike
the instant case, Carey was a § 1983 action.
3
   The Supreme Court outlined, in 

, the
two step analysis for whether there is a Bivens cause of action:
(1) “whether any alternative, existing process for protecting
the interest amounts to a convincing reason for the Judicial
Branch to refrain from providing a new and freestanding
remedy in damages”; and (2) “even in the absence of an alter-
native, a Bivens remedy is a subject of judgment: ‘the federal
courts must make the kind of remedial determination that
is appropriate for a common-law tribunal, playing particular
heed, however, to any special factors counseling hesitation
before authorizing a new kind of fed eral litigation.’”
18                                          No. 07-2598

conviction overturned (of course, an acquittal from the
outset, as the defendant received here, is even better).
However, we need not labor over these points any longer
because it was abundantly clear, as we ex

,
that the allegedly suppressed evidence on these facts
simply does not rise to the level of a Brady violation,
and Dominguez is entitled to qualified immunity on that
claim.


                    III. Conclusion
  For the foregoing reasons, we R EVERSE the denial of
summary judgment on Count Three of Carvajal’s Amended
Complaint.




                         9-5-08