In the
United States Court of Appeals For the Seventh Circuit ____________________ Nos. 18-2211 & 18-2232 TYJUAN ANDERSON, et al., Plaintiffs-Appellants, v.
CITY OF ROCKFORD, et al., Defendants-Appellees. ____________________
Appeals from the United States District Court for the Northern District of Illinois, Western Division. Nos. 3:15-cv-50065 & 3:15-cv-50064 — Frederick J. Kapala, Judge. ____________________
ARGUED MAY 14, 2019 — DECIDED JULY 25, 2019 ____________________
Before FLAUM, KANNE, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Nowhere does the Constitution’s promise of due process mean more than in a criminal trial. This promise translates into an obligation when police and prosecutors find themselves in possession of information that exculpates a criminal defendant. That is the cornerstone of the Supreme Court’s 1963 decision in Brady v. Maryland, and this case presents serious and unresolved questions whether cer- tain detectives in Rockford, Illinois, failed to adhere to their 2 Nos. 18-2211 & 18-2232
Brady obligations when prosecuting three men for the murder of eight-year-old Demarcus Hanson on April 14, 2002. One of those detectives has since admitted—under oath no less—to engaging in serious misconduct during the investigation. In 2013 an Illinois court found a Brady violation as part of vacating the murder convictions of Tyjuan Anderson, Lumont Johnson, and Anthony Ross after each man served more than a decade in prison. The case entered federal court when An- derson, Johnson, and Ross then brought claims for money damages under 42 U.S.C. § 1983 and state law against the City of Rockford and a score of individual defendants. The district court granted summary judgment on all claims in favor of all defendants. We reverse. While the case entails many complex- ities, Anderson, Johnson, and Ross have brought forth suffi- cient evidence to move forward against particular defendants on particular aspects of their alleged due process violations. I Demarcus Hanson was killed by shots fired into his grand- mother’s Rockford home. The State successfully prosecuted Tyjuan Anderson, Lumont Johnson, and Anthony Ross for the murder and each received a 50-year sentence. The men spent more than a decade in prison before an Illinois court ordered a new trial based on the delayed disclosure of Brady mate- rial—specifically, the recorded jail calls of the prosecution’s key witness in which he contradicted his trial testimony. An- derson, Johnson, and Ross were retried and acquitted. They then turned to federal court by filing this lawsuit against the City of Rockford and multiple Rockford police officers alleg- ing that the defendant officers violated their rights under the U.S. Constitution and Illinois law by not only withholding the recorded jail calls and other exculpatory information, but also Nos. 18-2211 & 18-2232 3
by fabricating evidence leading to their convictions for a crime they insist they did not commit. A. The Murder and Investigation At approximately 2:51 a.m. on April 14, 2002, someone fired shots into Estelle Dowthard’s home. One of the bullets struck and killed her eight-year-old grandson Demarcus Han- son as he was sleeping in his bed. Responding officers from the Rockford Police Department soon learned that Estelle’s son, Alex Dowthard, was likely the shooter’s intended target. Dowthard would come to play a substantial role in the inves- tigation and, ultimately, the plaintiffs’ trials and convictions. Detectives Doug Palmer and Joseph Stevens—both de- fendants in this case—led the investigation. Within hours of the shooting, Palmer and another detective, defendant James Randall, interviewed Dowthard, who denied any knowledge about his nephew’s murder. Dowthard told the detectives that, in the hours before the murder, he had a verbal alterca- tion with Anderson, Johnson, and Ross near the M+M Market in Rockford and he shot at the trio as they drove in a white Suburban. Dowthard explained that he then drove to his mother’s home and hid his gun under a car parked outside. He insisted, however, that he was not present when shots were later fired at his mother’s house and therefore did not know who killed his nephew. The police used Dowthard’s admission that he possessed a gun (and shot at the plaintiffs) to detain him on a parole vi- olation. A few weeks later, on May 2, Detectives Palmer and Stevens again sought to speak with Dowthard, this time at Big Muddy River Correctional Center, where he was incarcerated on the parole violation. And Dowthard again denied any 4 Nos. 18-2211 & 18-2232
knowledge about his nephew’s murder. During this visit, De- tective Stevens also requested copies of Dowthard’s jail calls to assist with the investigation. Less than two weeks later, un- doubtedly to increase the pressure on Dowthard to cooperate, the State resurrected an old set of forgery allegations (dating to February 2002) that had gone uncharged. The new charges provided a second basis to revoke Dowthard’s parole. Rockford police met with Dowthard a third time on May 31, 2002. This time Dowthard, who was still incarcerated for the parole violation, agreed to talk, but only if detectives agreed to inform the parole board of his cooperation. He then provided Sergeant Gregory Lindmark and defendant Detec- tive Theo Glover a written statement claiming, for the first time, that he was present when his nephew was shot. Despite his initial denials, Dowthard now claimed he saw three indi- viduals—Anderson, Johnson, and Ross—exit a red car with guns and then, as he was fleeing, heard shots fired toward his mother’s house. He told the police that he initially denied see- ing the shooters because he thought he could handle the mat- ter himself. Later that summer, Dowthard repeated this story before the grand jury, and on July 31, the State dismissed his forgery charge. Detectives Stevens and Palmer also interviewed Lataurean Brown, who was with Dowthard in the hours before the mur- der. While Brown would eventually become an important prosecution witness, during his initial interview on April 24, he denied knowing who shot at the Dowthard home. But he admitted to seeing Alex Dowthard fire shots at the plaintiffs’ Suburban earlier that night. He also told police that he drove Dowthard to his mother’s house, where Dowthard hid his gun under a car. The two men then drove to the Concord Nos. 18-2211 & 18-2232 5
Commons, where Brown saw and spoke to his cousin Rickedda Young. A few weeks later, Detectives Stevens and Palmer interviewed Brown a second time. By the end of the ten-hour interview, Brown changed his account and signed a written statement claiming Anderson, Johnson, and Ross were responsible for Hanson’s death. In April 2002, and following up on the information pro- vided by Brown, the police spoke with Rickedda Young. Young told Detectives Stevens and Scott Mastroinanni (also a defendant in this case) that she saw and spoke to Brown and Dowthard at the Concord Commons during the early morn- ing hours of April 14. She stated that Dowthard and Brown told her that someone had just fired shots at them as they fled Dowthard’s mother’s house, but they did not know who. Nei- ther Stevens nor Mastroinanni documented or disclosed this fact—that immediately after the shooting, the State’s key wit- nesses told a family member they did not see the shooter—in the subsequent prosecution of Anderson, Johnson, and Ross. The Rockford police also investigated but ultimately ex- cluded two other possible suspects, Kefentse Taylor and Casel Montgomery, before arresting the three plaintiffs (Anderson, Johnson, and Ross) for Demarcus Hanson’s murder. B. Criminal Trials Anderson and Johnson proceeded to trial in October 2002. The Thursday before trial was to begin, the prosecution re- ceived more than 40 hours of Alex Dowthard’s recorded jail calls from the Rockford police. The tapes, which were made available to the plaintiffs’ then-defense attorneys the follow- ing afternoon, included Dowthard’s conversations with fam- 6 Nos. 18-2211 & 18-2232
ily and friends while he was incarcerated for the parole viola- tion in May 2002. The conversations predated Dowthard’s May 31 written statement in which he first implicated the plaintiffs. Given the length and poor quality of the recordings, the attorneys for the plaintiffs (then defendants) requested a continuance for more time to listen to all of them and to de- termine whether they contained exculpatory or otherwise useful defense evidence. The trial court denied the request and proceeded with jury selection, affording the attorneys for Anderson and Johnson only a couple of days to review the recordings. With no physical or forensic evidence connecting the plaintiffs to the crime, the prosecution’s case rested on the tes- timony of Alex Dowthard and Lautaurean Brown. Dowthard testified consistent with his May 31 written statement impli- cating the plaintiffs, though he offered a different explanation for his evolving account of the murder. Recall that in his writ- ten statement Dowthard claimed that he initially lied to the police (by denying knowledge of who shot Hanson) because he thought he could handle the situation himself. At trial, however, Dowthard testified that during his first two inter- views he told detectives he did not witness the murder be- cause he was on parole and telling the police the true and full account of what happened during the early morning hours of April 14 would mean admitting that he had a gun and thus admitting to a parole violation. (This explanation made little sense because Dowthard admitted to possessing a gun during his first interview with police just hours after the murder, which resulted in a parole violation.) Dowthard further testified that he eventually cooperated with police without receiving anything in return. During Nos. 18-2211 & 18-2232 7
cross-examination, however, he conceded that following his testimony in the grand jury, the State dropped his unrelated forgery charge, sent a letter to the parole board relaying this information, and decided not to charge him for the shots he fired at the plaintiffs just before Hanson’s murder. Neither party introduced or otherwise used any aspect of Dowthard’s jail calls at Anderson and Johnson’s trial. Lautaurean Brown also testified for the prosecution and, like Dowthard, pointed the finger at the plaintiffs, though he denied seeing anyone carrying a gun. As for the defense case, Anderson and Johnson presented alibi witnesses and argued that two other individuals, Kefen- tse Taylor and Casel Montgomery, were the actual shooters. The jury found Anderson and Johnson guilty of murder, and the trial court later sentenced each of them to 50 years’ impris- onment. The third plaintiff, Anthony Ross, proceeded to trial in 2004. Brown and Dowthard again testified for the prosecution and echoed the accounts provided in the trial of Johnson and Anderson. The jury also heard from Ross’s cousin, Sonya White, who claimed she was with Ross when he tossed the murder weapon into a lake and confessed to killing Hanson. Ross then testified in his own defense and denied any involve- ment in the murder while also presenting an alibi witness. The jury returned a guilty verdict, and, as with Johnson and Anderson, Ross received a sentence of 50 years. C. Post-conviction Proceedings Following unsuccessful direct appeals, all three plaintiffs filed petitions for post-conviction relief in which they asserted their innocence and alleged, as they do here, that the officers 8 Nos. 18-2211 & 18-2232
investigating Demarcus Hanson’s murder committed numer- ous Brady violations. They also alleged that the defendant of- ficers engaged in misconduct by coercing witnesses and fab- ricating evidence. In support of their claim, the plaintiffs sub- mitted an affidavit by Detective Palmer—the lead investiga- tor—in which Palmer admitted that he threatened witnesses, falsified witness statements, neutralized exculpatory evi- dence, and instructed witnesses to offer testimony he believed was false. The trial court reacted to Detective Palmer’s admissions of misconduct by holding an evidentiary hearing on the plain- tiffs’ petitions for post-conviction relief. The court heard tes- timony from Palmer and approximately 34 other witnesses. Palmer’s testimony focused on three topics: the circumstances surrounding his resignation from the Rockford Police Depart- ment in 2004, his own wrongdoing during the Hanson mur- der investigation, and his belief that Anderson, Johnson, and Ross did not commit the murder. We need focus only on the testimony regarding police misconduct. Palmer admitted at length and in substantial detail that he threatened and coerced witnesses to give statements and en- couraged witnesses to provide false testimony during the plaintiffs’ criminal trials. He described, for example, how he had instructed the two key prosecution witnesses— Dowthard and Brown—to testify consistently with their writ- ten statements implicating the plaintiffs even though he be- lieved those statements were false. He also explained how he falsified a statement from a man named Bryce Croft and then compelled Croft to sign the statement. Nos. 18-2211 & 18-2232 9
The details matter. According to Palmer, in the summer of 2002 and before the plaintiffs’ trials, Bryce Croft, then an in- mate at Winnebago County Jail, requested to see him and, during the meeting that followed, provided detailed infor- mation implicating an alternative suspect, Casel Montgom- ery, in Hanson’s murder. Palmer testified that instead of pur- suing this lead against Montgomery, he took a deliberate step to prevent Croft’s statement from being of any use to the plaintiffs during their criminal trials. He told the court that he did so at the direction of his supervisor, testifying that “Ser- geant Lindmark told me to make a liar out of Bryce Croft.” Palmer explained that, upon receiving this instruction, he met a second time with Croft and, during that meeting, forced Croft to sign a pre-written and false statement recanting his original statement. The plaintiffs went to trial knowing none of the circumstances surrounding Croft’s second statement or that his recantation was false. Croft, too, testified at the evidentiary hearing and corrob- orated much of Detective Palmer’s account. He explained that he met with Palmer in July 2002 to provide information about Casel Montgomery’s role in the murder. After doing so, though, Palmer returned a few months later and, as Croft re- counted, threatened him with perjury charges if he did not recant his original statement implicating Montgomery. Croft recalled that Palmer brought with him a pre-written state- ment and, as part of leveling a threat of prosecution, de- manded Croft sign it. Croft explained that he signed the sec- ond statement—even though he knew it was false—because of Palmer’s threats. 10 Nos. 18-2211 & 18-2232
The plaintiffs also called Alex Dowthard as a witness, but he asserted his Fifth Amendment privilege against self-in- crimination and did not testify. As part of assessing the plaintiffs’ Brady claims, the trial court also considered statements Dowthard made during tel- ephone calls from jail in May 2002. It was undisputed that these recorded conversations, which totaled approximately 40 hours, were not made available to the attorneys for Ander- son, Johnson, and Ross until Friday, October 18, and Ander- son and Johnson’s joint trial was to begin the following Mon- day, October 21. Contrary to his testimony at the plaintiffs’ criminal trials, during several conversations with family, Dowthard denied being present when his nephew was shot and killed. These conversations took place shortly after Dowthard’s incarcera- tion for the parole violation and, importantly, at the time the police were visiting him and pressing for information on the Hanson murder. On May 2, for example, the same day Detec- tives Palmer and Stevens visited Dowthard at Big Muddy, Dowthard told his mother that “he told them the truth,” a clear reference to telling the police that he did not know who shot the young boy. And again, on May 11, Dowthard told his cousin Antowan Lambert that, at the time of the murder, he “wasn’t no mother f* * * ing where around, you know what I’m saying.” The jail calls further revealed that Lambert, who officers were also pressing for information about Hanson’s murder, coached Dowthard on what to tell the police about the mur- der and fed him information about what Lautaurean Brown had told the police—all in an effort to enable Dowthard to align his account with Brown’s. For example, on May 16, two Nos. 18-2211 & 18-2232 11
weeks before Dowthard gave police a statement incriminating the plaintiffs, Lambert told Dowthard to memorize what he was telling him so that Dowthard’s statement “w[ould] coin- cide” with what Brown had already told police. In other calls from jail, Dowthard told friends and family that the police were pressuring him to cooperate. In early May, for instance, he told his mother that “[the police] talkin’ about bringin’ me up on some federal charges or whatever.” On May 13, Dowthard learned he was being charged with an unrelated forgery that would impact his parole status. On May 20, Dowthard told someone named Maria that the police were “playin’ with me, hurtin’ me until I’m damn near at the point man, you just don’t know.” In this same call, Dowthard added “[Detective] Palmer man got—hittin’ me all upside my head and everything, man tellin’ my sister what to—put his hands on me.” Following the hearing, the court rejected any claims of po- lice misconduct, emphasizing that it did not find Detective Palmer’s testimony credible. While recognizing the extraordi- nary nature of Palmer’s admissions, the court concluded that “through his words, actions and timing of his ‘disclosures,’” the former detective had “cast a pall over the credibility of his latter day revelations.” Our review of the record suggests that the court’s credibility finding may have been driven in large part by the circumstances surrounding Palmer’s resignation from the Rockford Police Department. Those circumstances are not relevant here. Turning to the plaintiffs’ arguments regarding Dowthard’s jail calls, the court awarded each plaintiff a new trial, concluding that the State impermissibly delayed disclo- sure of the recordings. The calls, the court explained, included 12 Nos. 18-2211 & 18-2232
“outright denials of knowledge about the facts of the case” as well as “potential coaching” and “potential incentive” to im- plicate the plaintiffs—and without timely access to the record- ings, the plaintiffs were “denied an essential tool in testing the credibility of Alex Dowthard.” The delayed disclosure was particularly concerning, the court emphasized, because this was “essentially a one-eyewitness case,” and the key im- peachment material was turned over “on the virtual eve of trial,” making it impossible for the attorneys to “meaningfully listen to [the tapes] and evaluate them.” Due process de- manded a new trial, the court concluded, because it could not be sufficiently assured that the outcome of the trial would have been the same had Dowthard been cross-examined with his statements on the tapes. The State unsuccessfully appealed the trial court’s award of post-conviction relief. See People v. Johnson, 2014 IL App (2d) 130368-U. The Illinois appellate court did not upset the trial court’s finding that Anderson and Johnson established a Brady violation. But the court reached a different conclusion as to Ross. Because Ross’s trial took place in 2004—more than a year after the prosecution turned over the Dowthard tapes—the court determined that he was not prejudiced by the delayed disclosure of the recordings. Instead, the court af- firmed the grant of post-conviction relief as to Ross on alter- native grounds, holding that Ross’s counsel was ineffective for failing to impeach Dowthard with the statements from his recorded jail calls. D. Criminal Retrial In 2015 the defendants were retried for the Hanson mur- der in a bench trial. This time Alex Dowthard invoked his Nos. 18-2211 & 18-2232 13
Fifth Amendment privilege against self-incrimination and re- fused to testify. Lautaurean Brown initially did the same but then ultimately took the stand and stated that he “couldn’t see [the shooting] ‘cause I pulled off.” Finally, Sonya White, who testified at Ross’s original trial that Ross confessed to the mur- der, recanted her prior testimony and stated that she did not know who was responsible for Hanson’s death. The court acquitted all three men of murder. E. Civil Litigation In March 2015 the plaintiffs filed this lawsuit, raising many of the same issues that formed the basis of their state post-conviction petitions. In two separate complaints, the plaintiffs asserted nine claims against the City of Rockford and multiple Rockford police officers pursuant to 42 U.S.C. § 1983: violation of their due process right to a fair trial under the Fourteenth Amendment, conspiracy to deprive them of a right to a fair trial, failure to intervene, supervisory liability, and malicious prosecution. Each claim alleged that the de- fendant officers engaged in gross misconduct while investi- gating Demarcus Hanson’s murder. The plaintiffs further al- leged that the officers’ misconduct was undertaken pursuant to a policy and practice of the Rockford Police Department. They also advanced four separate claims under Illinois law: malicious prosecution, intentional infliction of emotional dis- tress, respondeat superior, and indemnification based on the same underlying conduct as alleged in their federal claims. The case proceeded to discovery. What is most relevant for purposes of appeal is that during the depositions of Detective Palmer and Alex Dowthard, both individuals invoked their 14 Nos. 18-2211 & 18-2232
protection under the Fifth Amendment and declined to tes- tify. The district court entered summary judgment for all de- fendants on all claims. Beginning with the plaintiffs’ § 1983 due process claim, the court concluded the plaintiffs failed to identify sufficient evidence to demonstrate that any of the de- fendant police officers committed any of the alleged Brady vi- olations or instances of evidence fabrication. Because each of the remaining claims allege the same underlying conduct, this conclusion led directly to the entry of summary judgment in the defendants’ favor on every other claim. The plaintiffs now appeal. II We begin with the plaintiffs’ contention that the defendant police officers deprived them of a fair trial in violation of their rights under the Fourteenth Amendment’s Due Process Clause. The plaintiffs root their claim in two different theo- ries: the defendant officers both withheld exculpatory evi- dence in violation of their Brady obligations and fabricated false witness statements. While we agree that summary judg- ment was proper on the fabrication allegations (with one lim- ited exception), we conclude that the plaintiffs presented enough evidence to move forward on four particular grounds supporting their due process claim based on alleged Brady vi- olations. A. Due Process Claim: Brady Violations The district court concluded that the record showed no genuine dispute as to whether the defendant police officers suppressed exculpatory evidence. In reaching this conclusion, however, the court failed to view the evidence in the light Nos. 18-2211 & 18-2232 15
most favorable to the plaintiffs and adhere to the fundamental principle that “at the summary judgment stage the judgeʹs function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The teachings of Brady are clear. In Brady itself the Su- preme Court held that “the suppression by the prosecution of evidence favorable to an accused…violates due process where the evidence is material either to guilt or to punish- ment, irrespective of the good faith or bad faith of the prose- cution.” 373 U.S. 83, 87 (1963). Subsequent decisions make plain that this precept translates into an affirmative duty to disclose to defendants all potentially exculpatory evidence, including impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Because Brady material also “encom- passes evidence ‘known only to police investigators and not to the prosecutor,’” prosecutors have an affirmative duty “to learn of any favorable evidence known to the others acting on the governmentʹs behalf in [a] case, including the police.” Strickler v. Greene, 527 U.S. 263, 280–81 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 437–38 (1995)). This “Brady rule,” the Court has explained, is not intended “to displace the adver- sary system as the primary means by which truth is uncov- ered, but to ensure that a miscarriage of justice does not oc- cur.” Bagley, 473 U.S. at 675. “While most commonly viewed as a prosecutor’s duty to disclose to the defense,” it is settled that the duty imposed by Brady “extends to the police and requires that they similarly turn over exculpatory/impeaching evidence to the prosecu- tor.” Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008); 16 Nos. 18-2211 & 18-2232
see also Coleman v. City of Peoria, Illinois, 925 F.3d 336, 349 (7th Cir. 2019). To prevail on a civil Brady-based due process claim against a police officer, a plaintiff must demonstrate that the evidence in question was favorable to him, the police “suppressed” the favorable evidence, and prejudice ensued because the sup- pressed evidence was material. See Carvajal, 542 F.3d at 566– 67; see also Cairel v. Alderden, 821 F.3d 823, 832 & n.2 (7th Cir. 2016). Evidence is suppressed for Brady purposes if the “pros- ecution failed to disclose evidence that it or law enforcement was aware of before it was too late for the defendant to make use of the evidence” and “the evidence was not otherwise available to the defendant through the exercise of reasonable diligence.” Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001). To satisfy Brady’s prejudice prong, a civil plaintiff must demonstrate that the withheld evidence was material, mean- ing “there is a ‘reasonable probability’ that the result would have been different had the suppressed evidence been put be- fore the jury.” Goudy v. Cummings, 922 F.3d 834, 842 (7th Cir. 2019) (quoting Kyles, 514 U.S. at 422). The Supreme Court has made clear that Brady’s “reasonable probability” standard is less onerous than the traditional preponderance standard. See Kyles, 514 U.S. at 434. Indeed, “[t]he question is not whether the defendant would more likely than not have received a dif- ferent verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. To make this determination, courts must assess the cumulative effect of all the suppressed evi- dence “in the context of the entire record.” United States v. Agurs, 427 U.S. 97, 112 (1976); see also Kyles, 514 U.S. at 460. Nos. 18-2211 & 18-2232 17
Turning to the merits, the plaintiffs argue that the defend- ant officers failed to adhere to Brady’s mandate—and violated their due process rights—by: Failing to disclose impeachment evidence of- fered by Rickedda Young; Failing to disclose the circumstances surround- ing Bryce Croft’s second statement; Failing to disclose the improper police tactics that produced Lautaurean Brown’s May 9, 2002 statement; Failing to disclose the improper police tactics that produced Alex Dowthard’s May 31, 2002 statement and, relatedly, failing to timely dis- close Dowthard’s jail calls; and Failing to disclose the circumstances surround- ing Sonya White’s statement implicating Ross in the murder. With the exception of the allegations involving Sonya White, which lack support in the record, and the allegations involving the improper police tactics used on Dowthard, which lack admissible evidence in the record, we conclude that the plaintiffs have come forward with enough evidence to move forward with each of their alleged Brady violations against particular defendants. Rickedda Young Testimony. The plaintiffs contend that two of the defendants, Detectives Joseph Stevens and Scott Mastroianni, committed a Brady violation by failing to dis- close that Rickedda Young informed them that she saw Brown and Dowthard immediately following the murder and they 18 Nos. 18-2211 & 18-2232
told her they did not see who shot at Dowthard’s mother’s house and killed Hanson. For purposes of summary judg- ment, the defendants do not dispute that this evidence was favorable to the plaintiffs and that Stevens and Mastroianni suppressed it by not including it in their police reports or oth- erwise disclosing it to the prosecutors or plaintiffs. The de- fendants nonetheless urge us to view the evidence as falling short of Brady’s materiality threshold. Because the evidence allows a contrary inference, we decline this invitation. As the district court saw it, Young’s statement was imma- terial—and therefore its omission did not prejudice the plain- tiffs—because “it merely echoed the fact that [Alex] Dowthard and [Lautaurean] Brown had initially indicated that they did not know who [fired] shot[s] [at] Dowthard’s mother’s house.” The district court, in short, saw Young’s statement as cumulative of information the jury heard and knew. But this perspective reflects too narrow a view of the evi- dence, divorced from favorable and indeed exculpatory infer- ences available to the plaintiffs on these facts. The district court correctly observed that the jurors learned that both Brown and Dowthard initially told police they did not see the shooters—in direct contradiction to their ultimate trial testi- mony. What the court did not account for, though, was the testimony explaining these inconsistencies. Dowthard, for ex- ample, testified that he told police he did not know who killed his nephew because he was on parole and was not supposed to have a gun. Young’s statement—that immediately after the shooting, Brown and Dowthard told her, a family member, that they did not know who had just shot at them—would have directly impeached Dowthard’s explanation for why his Nos. 18-2211 & 18-2232 19
story changed. And the impeachment was on a point of sub- stantial significance. Had the trial testimony included Young’s statement, the jury could have concluded that Dowthard in fact did not see who fired the shots into his mother’s house. Put differently, the jury could have con- cluded that Dowthard’s and Brown’s statements to Young im- mediately following the murder were true—that, in fact, they did not know who shot into Dowthard’s mother’s house— and that their trial testimony (and Dowthard’s explanation of his original statement to police) was false. Suppressed impeachment evidence “may not be material if the State’s other evidence is strong enough to sustain confi- dence in the verdict.” Smith v. Cain, 565 U.S. 73, 76 (2012). But suppressed evidence takes on particular significance—and is “plainly material”—where the prosecution’s case rests solely on the credibility of an eyewitness. Id. That is the case here. No physical or forensic evidence linked the plaintiffs to the Hanson murder. Rather, the State’s case hinged on the reliability of what the prosecution insisted was eyewitness testimony from Brown and Dowthard. Rickedda Young’s suppressed evidence would have directly impeached Brown and Dowthard’s testimony that they saw the plaintiffs commit the murder—the central issue at trial. Young’s statement also would have lent credibility to the plaintiffs’ argument that Dowthard, the State’s key witness, initially told the police the truth (that he did not see the shoot- ing) but later lied during his trial testimony to garner personal favor with the State. Based on these inferences, reasonably available from the record, the plaintiffs came forward with enough evidence to survive summary judgement on their the- 20 Nos. 18-2211 & 18-2232
ory that the defendant officers (in particular, Detectives Ste- vens and Mastroianni) violated Brady by withholding Young’s statement. The district court erred in concluding otherwise. Bryce Croft Evidence. What the record shows regarding Bryce Croft is most troubling. In the summer of 2002—before the plaintiffs’ criminal trials—Croft provided Detective Palmer with firsthand information that someone other than the plaintiffs committed the murder. This development, Palmer has admitted, later led him to prepare a false state- ment on behalf of Bryce Croft, which he then forced Croft to sign. The statement was significant because it recanted the in- formation Croft previously provided police about the alterna- tive suspect (Casel Montgomery). Palmer did so—he has stated under oath—not only knowing the statement was false, but also for the sole purpose of neutralizing a witness who had a meaningful chance of undermining the prosecution’s case against the plaintiffs. The district court accepted that the plaintiffs knew nothing of Detective Palmer’s misconduct before their criminal trials or that Croft’s recantation was false. But it nonetheless con- cluded that “the concealment of the coercion and fabrication of Croft’s second statement did not prevent plaintiffs from calling him as a witness at their trials” because “[e]ither side could have called Croft and allowed the adversarial trial pro- cess to flesh out the truth.” This conclusion too discounts the evidence, especially at summary judgment. Nothing we see in the record shows that, at the time of their criminal trials, the plaintiffs had any idea that Croft’s recantation was the product of police coercion or fabrication. And, without Detective Palmer’s admission, the plaintiffs had no way to prove the recantation was false. Nos. 18-2211 & 18-2232 21
Due process entitled the plaintiffs to learn before their trial what went on with Bryce Croft. See Avery v. City of Milwaukee, 847 F.3d 433, 443 (7th Cir. 2017) (explaining that the right to a fair trial is implicated if the State fails to disclose “facts about the coercive tactics used to obtain” a witness’s statement). Re- member that Croft was not a fringe player for the plaintiffs’ defense. To the contrary, he was a witness the plaintiffs very well may have called to assign responsibility for the Hanson murder to someone else. Croft had given an initial statement to the police saying that he had firsthand knowledge that Ca- sel Montgomery—not the plaintiffs—was responsible for the murder. But there was no way the plaintiffs would have run the risk of calling Croft as a witness at their criminal trials in the wake of his statement recanting that Montgomery was re- sponsible for the murder. And that simple observation—as Detective Palmer has since admitted—is precisely why he fal- sified the recantation and then forced Croft to sign it. The whole point was to neutralize Croft without the plaintiffs ever knowing that Croft’s about-face was the fruit of police mis- conduct. The plaintiffs have brought forth plenty here to move forward on this alleged Brady violation. Lautaurean Brown’s Statement. We next consider the plaintiffs’ contention that Detectives Palmer and Stevens vio- lated Brady by failing to disclose the coercive tactics used to extract Lautaurean Brown’s statement implicating them in Hanson’s murder. The district court accepted that, when viewed in the light most favorable to the plaintiffs, the evi- dence showed that Brown’s May 9, 2002 statement (and his corresponding trial testimony) implicating the plaintiffs was the product of Palmer’s threat that he would go to jail if he did not give a written statement incriminating the plaintiffs. But from there the court concluded that the plaintiffs failed to 22 Nos. 18-2211 & 18-2232
identify adequate evidence to satisfy Brady’s prejudice ele- ment because, during the plaintiffs’ retrial in 2015, Brown tes- tified that the threat did not impact the accuracy of his state- ment. We cannot agree. The district court’s reasoning effectively required the plaintiffs to accept that Brown’s testimony in 2002 and 2004 was true because he later said so. The proper Brady analysis works a different way. Regardless of whether Brown’s state- ment (and resulting testimony) was true or false, Brady im- posed a disclosure obligation: due process required disclo- sure to the plaintiffs of the coercive tactics used to obtain Brown’s statement. See Avery, 847 F.3d at 439. Armed with that information, the plaintiffs could have contended, in their cross examinations of Brown and during closing arguments, that Brown’s testimony implicating the plaintiffs in the Han- son murder was false—the fruit of police coercion. Put most simply, a criminal defendant has a due process right to infor- mation that may materially impeach the testimony of a state’s witness. Indeed, that is the very promise—the essential pro- tection—of Brady. Because it is undisputed that the defend- ants failed to disclose the coercive tactics used to obtain Brown’s statement, the district court erred by granting sum- mary judgment on this alleged Brady violation. Alex Dowthard’s Jail Calls. Finally, the district court com- pounded these errors by rejecting the plaintiffs’ contention that an interrelated Brady violation occurred with the delayed disclosure of the recordings of Alex Dowthard’s telephone calls from Big Muddy River Correctional Center. Recall that the tapes contain 40 hours of conversations Dowthard had with his family and friends in May 2002, following his incar- ceration on a parole violation. In the recorded conversations, Nos. 18-2211 & 18-2232 23
Dowthard told his family and friends that he was not present when his nephew was shot; he was threatened with addi- tional charges if he failed to cooperate; he was physically threatened by police; and he was coached on what to say to police. Without question this evidence is both favorable and material to the plaintiffs. The only issue, then, is whether the tapes were suppressed within the meaning of Brady. The plaintiffs have come forward with enough at summary judg- ment showing the answer may well be yes. To establish that the tapes were suppressed, the plaintiffs must show that the State “failed to disclose known evidence before it was too late for [them] to make use of the evidence” at their criminal trials. Collier v. Davis, 301 F.3d 843, 850 (7th Cir. 2002). “The relevant inquiry,” we have emphasized, “is not whether the [State] disclosed the potentially exculpatory information at all, but whether [the criminal defendant] had sufficient time to use any exculpatory information revealed to him during trial.” Petty v. City of Chicago, 754 F.3d 416, 423 (7th Cir. 2014). The record shows that the prosecution received the Dowthard recordings from Rockford police on October 17, 2002—the Thursday before Anderson and Johnson’s trial. The State produced the tapes to the plaintiffs’ (then defendants’) attorneys the next day, a period that two Illinois courts con- cluded was insufficient to allow for meaningful review and use of the tapes at trial. The plaintiffs contend, however, that Detective Stevens—not the prosecutors—suppressed the tapes by willfully withholding them from the prosecution un- til the eve of trial. In most circumstances “a police officer’s Brady obligations are discharged by disclosing material exculpatory evidence to 24 Nos. 18-2211 & 18-2232
the prosecutor, [because] it is the prosecutor’s responsibility to turn the evidence over to defense counsel.” Beaman v. Freesmeyer, 776 F.3d 500, 512 (7th Cir. 2015). Here, though, the facts as they presently stand permit a different conclusion. The record shows that Detective Stevens requested Dowthard’s jail calls on May 2, 2002. He testified that the jail sent him the recorded calls piecemeal on 20 different tapes, and he then listened to each of them. Though we are unable to discern with precision when Stevens actually received or listened to each of the tapes, there are indications in the record that he received them in May and June. In a supplemental po- lice report dated September 9, 2002, for example, Stevens de- scribed his work on the Hanson case in May 2002, noting that “[w]hile Dowthard was in prison, [Stevens] received pack- ages of cassette tapes which had recorded phone calls Alex Dowthard made while incarcerated at Big Muddy River Cor- rectional Center.” Dowthard testified that he was released from custody at the end of June 2002, permitting the inference that Detective Stevens possessed the jail tapes for at least three months before Anderson and Johnson’s criminal trial yet waited to disclose them until the Thursday before trial, while also assuring the lead prosecutor that the calls contained nothing relevant to the Hanson case. When we view the evidence in the light most favorable to the plaintiffs—as we must on summary judgment—the rec- ord allows the inference that, after receiving the tapes in May and June 2002, Detective Stevens withheld the calls, waited until the eve of trial to turn them over (when it was already too late for the plaintiffs to use them), and may well have com- pounded the delay by inaccurately describing their content and significance when he eventually turned them over to the prosecution. On this record, we conclude that there is enough Nos. 18-2211 & 18-2232 25
here to infer that Stevens suppressed the Dowthard tapes within the meaning of Brady. Of course, the ultimate facts may come out differently at trial and fully absolve Detective Ste- vens. Our conclusion is limited to observing that the record, as it now stands, allows the plaintiffs to survive summary judgment on this alleged Brady violation. For the sake of completeness, we briefly address an evi- dentiary matter the parties have raised with respect to the Dowthard tapes. The parties devote considerable attention to the admissibility of the recordings. The district court con- cluded that Dowthard’s calls could not be used as evidence in opposition to summary judgment because they contain inad- missible hearsay. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (“[A] court may consider only admissible evidence in assessing a motion for summary judgment.”). To the extent that the plaintiffs seek to admit Dowthard’s statements on the calls for their truth, we agree. But observing that the statements made on the recorded calls may not be admissible for their truth under one or an- other exception to the hearsay rule does not mean the evi- dence is not relevant and admissible for another purpose. The alternative purpose here is to establish the existence of a Brady violation based on Detectives Stevens’s failure to disclose the impeachment material contained on the tapes. To succeed on this aspect of their due process claim, Anderson and Johnson must show not that Dowthard was telling the truth during his phone conversations with family and friends, but rather that the plaintiffs could have used his statements for impeachment purposes during their criminal trial—to undermine the cred- ibility of testimony offered by Dowthard. See 28 Wright & Gold, Federal Practice and Procedure § 6206 at 593 (2012) 26 Nos. 18-2211 & 18-2232
(“Where a prior inconsistent statement is offered only to im- peach, it is not hearsay since it merely shows the witness is unreliable and says nothing about the truth of the facts as- serted in the statement.”). To the extent that the parties debate the authenticity of the Dowthard tapes, we note only that, as best we can tell, no one questions whether the tapes came from the State and reflect Dowthard’s voice and telephone discussions while incarcer- ated at Big Muddy. And what we see in the summary judg- ment record are certified transcripts of the recorded calls (just as a deposition transcript would be certified), and there too nobody seems to say the certification is false. We have no rea- son, in short, to question that the plaintiffs have sufficiently authenticated the tapes and transcripts to allow us to consider their impeachment value for purposes of assessing this aspect of their Brady claim. B. Due Process Claim: Fabricated Evidence In their amended complaint, the plaintiffs also alleged that the officers fabricated a laundry list of evidence. Those allega- tions extend to Alex Dowthard’s and Lautaurean Brown’s statements (and subsequent trial testimony) implicating the plaintiffs in Hanson’s murder as well as Bryce Croft’s recan- tation. While we agree that the plaintiffs brought forward ev- idence of coercion, we see no error with the district court dis- allowing the due process claim to go forward on a theory of fabricated evidence with one limited exception as it pertains to Detective Palmer. It is well-established that “a police officer who manufac- tures false evidence against a criminal defendant violates due process if that evidence is later used to deprive the defendant Nos. 18-2211 & 18-2232 27
of [his] liberty in some way.” Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012). To establish such a violation, the plaintiffs must demonstrate not only that the defendant offic- ers “created evidence that they knew to be false,” Petty, 754 F.3d at 423, but also that the evidence was used “in some way” to deprive them of liberty, Whitlock, 682 F.3d at 580. The plaintiffs’ primary contention is that the defendant of- ficers coerced the prosecution’s two key witnesses, Dowthard and Brown, to give statements implicating the plaintiffs that the defendants knew were false, with the statements then be- ing used to convict the plaintiffs of the Hanson murder. Be- ginning with Brown, the plaintiffs assert that Detectives Palmer and Stevens secured a false statement blaming Ander- son, Johnson, and Ross for Hanson’s murder by threatening Brown with jail time if he failed to cooperate and detaining him for more than ten hours. They also contend that Palmer and Stevens, along with Detective Theo Glover, coerced Dowthard into falsely implicating the plaintiffs, this time through physical force and by threatening him with addi- tional charges if he failed to cooperate. And, with respective to both Dowthard and Brown, the plaintiffs maintain that De- tective Palmer instructed both witnesses to testify consistently with their statements, even though he knew those statements were false. As a threshold matter, we agree that the record shows a genuine and unresolved dispute about whether the police co- erced Brown and Dowthard to provide statements blaming the plaintiffs for Hanson’s murder. But coercion and fabrica- tion are not synonyms, and we have stressed that “[an allega- tion] that an officer coerced a witness to give incriminating evidence does not, at least standing alone, violate the wrongly 28 Nos. 18-2211 & 18-2232
convicted person’s due-process rights.” Avery, 847 F.3d at 439. Even more specifically, we have drawn a line between coerced testimony—“testimony that a witness is forced by improper means to give… [it] may be true or false”—and fabricated tes- timony—which is “invariably false.” Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014). Only the latter supports a due process claim, and even then, only if the record shows that the officers “created evidence they knew to be false.” Avery, 847 F.3d at 439; see also Whitlock, 682 F.3d at 584 (explaining that “[c]oercively interrogating witnesses, paying witnesses for testimony, and witness-shopping may be deplorable, and these tactics may contribute to wrongful convictions, but they do not necessarily add up to a constitutional violation even when their fruits are introduced at trial” because “[e]vidence collected with these kinds of suspect techniques, unlike falsi- fied evidence and perjured testimony, may turn out to be true”). The plaintiffs have not brought forth enough evidence to create a genuine material dispute as to whether Detectives Stevens or Glover knew that Brown and Dowthard’s state- ments implicating the plaintiffs were false as required to maintain a due process claim premised on a theory of evi- dence fabrication. But we reach a different conclusion with re- spect to Detective Palmer. The plaintiffs insist that the record shows more than mere coercion because Detective Palmer admitted that he knew that Brown and Dowthard’s statements were false and nonethe- less instructed them to testify consistent with these false state- ments at the plaintiffs’ criminal trials. See Fields, 740 F.3d at 1112 (explaining that investigators fabricated evidence when Nos. 18-2211 & 18-2232 29
they “told witnesses what to say knowing that what the [wit- ness] was telling them was false”). Indeed during the state post-conviction proceedings, Palmer repeatedly shared his belief that Anderson, Johnson, and Ross did not shoot Demar- cus Hanson—and that Dowthard’s claim that he witnessed the plaintiffs shoot at his mother’s house was not true. And, perhaps most critical to our analysis, Palmer testified that, de- spite this belief, he instructed Dowthard and Brown to testify consistent with their written statements implicating the plain- tiffs. Against the backdrop of Palmer’s admissions of wrong- doing—not an everyday occurrence—it is very difficult to conclude that the plaintiffs have not done enough to survive summary judgment on this dimension of their due process claim. This conclusion finds additional support in the record. When deposed in this matter, for example, Detective Palmer exercised his Fifth Amendment right against self-incrimina- tion when asked whether he told Brown and Dowthard to tes- tify consistent with their statements “even though [he] be- lieve[d] their statements [were] not truthful.” The Fifth Amendment permits an adverse inference against parties in civil actions when they refuse to testify in response to proba- tive evidence against them. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Based on the record before us, and upon com- bining the weight of Palmer’s admissions during the state post-conviction proceedings with this adverse factual infer- ence, we conclude that the plaintiffs have carried their sum- mary judgment burden on their allegation that Detective Palmer fabricated Brown and Dowthard’s statements. Palmer did so by coercing the witnesses to give statements he be- lieved were false—and this evidence was used to deprive the plaintiffs of their liberty when Palmer then instructed Brown 30 Nos. 18-2211 & 18-2232
and Dowthard to testify consistent with these allegedly false statements. We turn next to the allegations involving Bryce Croft. Again, the plaintiffs maintain that Detective Palmer drafted a statement for Croft to sign which falsely recanted the infor- mation he previously provided about Casel Montgomery’s involvement in the murder. Palmer’s actions, the plaintiffs contend, prohibited them from presenting evidence of an al- ternate suspect through Croft because, if called as a witness, he would have been impeached by his false recantation. While this description of events finds support in the record, the plaintiffs cannot show that the prosecution used Croft’s second statement (the one prepared by Palmer) to convict any of the plaintiffs. Summary judgment, therefore, was appropri- ate as it pertains to the plaintiffs’ evidence fabrication theory. III The plaintiffs’ amended complaints are expansive—nam- ing nine defendants and advancing nine separate claims. On appeal, their arguments are equally sprawling, advancing nu- merous claims against numerous parties and raising multiple legal issues. Based upon our thorough review of the record and the parties’ briefs, we have focused only on those issues we believe warrant discussion and on those aspects of the plaintiffs’ claims that survive summary judgment. We have done so in part to aid and sharpen the focus of the proceed- ings as the case returns to the district court. In furtherance of this effort, we conclude by recapping which of the plaintiffs’ claims (or aspects of claims) may pro- ceed against which defendants on remand. Nos. 18-2211 & 18-2232 31
Beginning with Count I, we affirm the entry of summary judgment for the defendants on the plaintiffs’ evidence fabri- cation allegations with respect to all defendants except Detec- tive Doug Palmer, and only then as it pertains to the testi- mony of Brown and Dowthard. On this same count, the plain- tiffs may proceed with a due process claim rooted in each of following alleged Brady violations: Failure to disclose impeachment evidence of- fered by Rickedda Young: defendants Joseph Stevens and Scott Mastroianni; Failure to disclose the circumstances surround- ing Bryce Croft’s statement: defendant Doug Palmer; Failure to disclose the improper police tactics that produced Lautaurean Brown’s statement: defendants Joseph Stevens and Doug Palmer; and Failure to timely disclose the recordings of Alex Dowthard’s jailhouse telephone calls: defend- ant Joseph Stevens. As for the remaining defendants named in Count I (on ei- ther theory), we affirm the entry of summary judgment in fa- vor of defendants Theo Glover, Dominic Iasparro, James Ran- dall, and Torrey Regez because the plaintiffs have failed to set forth any arguments or identify any evidence that any of these officers engaged in any of the alleged due process violations. Turning to Count II (failure to intervene), Count III (con- spiracy), and Count VII (supervisor liability), the district court concluded that the defendants necessarily were entitled to summary judgment owing to its determination that plaintiffs 32 Nos. 18-2211 & 18-2232
failed to bring forth enough evidence to support their Brady and fabrication allegations. In these circumstances, and espe- cially given the expanse and complexity of the factual record, remand is appropriate to allow the district court to consider each of these claims in the first instance—and to determine whether they may proceed and, if so, against which defend- ants. The district court also granted summary judgment on Count VIII (§ 1983 malicious prosecution) and Count IX (Illi- nois malicious prosecution). We affirm this aspect of the dis- trict court’s judgment. Beginning with the § 1983 claim, the plaintiffs’ amended complaint alleges that the defendant of- ficers violated their rights under the Fourth and Fourteenth Amendments by improperly subjecting them to judicial pro- ceedings without probable cause. But “[t]here is no such thing as a constitutional right not to be prosecuted without proba- ble cause.” Manuel v. City of Joliet, Illinois, 903 F.3d 667, 670 (7th Cir. 2018) (quoting Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013)). There is, however, “a constitutional right not to be held in custody without probable cause,” id., and the Supreme Court has “ma[de] clear that the Fourth Amendment, not the Due Process Clause, governs a claim for wrongful pretrial de- tention,” Lewis v. City of Chicago, 914 F.3d 472, 475 (7th Cir. 2019) (citing Manuel v. City of Joliet, Illinois, 137 S. Ct. 911 (2017)). The plaintiffs do not assert they were subjected to pretrial detention (though evidence in the record suggests they were)—but even if they had, their claim would still fail be- cause it hinges upon showing the absence of probable cause to support their arrests and confinement. The record supports Nos. 18-2211 & 18-2232 33
the district court’s conclusion that at least some of the defend- ant officers reasonably believed that the plaintiffs were guilty of murder based on the accounts given by Dowthard and Brown. And it cannot reasonably be disputed that the written statements of Dowthard and Brown provided probable cause to support the arrests. Summary judgment, therefore, was ap- propriate on the plaintiffs’ federal claim. Because an Illinois claim for malicious prosecution likewise requires the absence of probable cause, the district court properly granted sum- mary judgment on this claim as well. See Johnson v. Saville, 575 F.3d 656, 659 (7th Cir. 2009) (identifying the elements of a ma- licious prosecution claim under Illinois law). Finally, the district court concluded that the City of Rock- ford was entitled to summary judgment on Count XI (re- spondeat superior) and Count XII (indemnification) because the plaintiffs failed to maintain a claim against any defendant police officer. In light of our conclusion regarding the poten- tial liability of certain individual officers, the entry of sum- mary judgment on these claims was likewise premature. We leave it to the district court to evaluate these claims on the merits in the first instance on remand. For the sake of com- pleteness, however, we note that the district court rejected the plaintiffs’ claims against the City premised on a Monell theory of liability. Because the plaintiffs failed to challenge this as- pect of the district court’s ruling, we consider this argument waived and the plaintiffs may not seek to revive this aspect of their claims on remand. For all of these reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.