Andersen v. City of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

DANIEL ANDERSEN,

)

)

Plaintiff,

)

No. 16 C 1963

)

v.

)

Judge Virginia M. Kendall

)

THE CITY OF CHICAGO, et al.,

)

)

Defendants.

)

)

)

)

MEMORANDUM OPINION AND ORDER

In January 1980, Plaintiff Daniel Andersen was arrested for the murder and

attempted rape of Cathy Trunko. He was later convicted and spent over twenty-five

years in prison. In 2015, Andersen’s conviction was reversed, and he was declared

innocent. Andersen proceeded to sue the City of Chicago and various members of

Chicago law enforcement involved in the case. (Dkt. 1). Andersen alleges in a multi-

count complaint violations of his constitutional rights, pursuant to 42. U.S.C. § 1983,

and several state-law claims. In December 2016, this Court ordered the case

bifurcated, staying Andersen’s claim against the City pursuant to Monell v. New York

Department of Social Services, 436 U.S. 658 (1978), pending resolution of the claims

against the individual defendants (“Defendants”). (Dkt. 90).

Defendants now move for summary judgment on the claims against them.

Defendants move for summary judgment on all of Andersen’s claims on statute of

limitations grounds. They also move for summary judgment on Andersen’s claim

made pursuant to Brady v. Maryland, 373 U.S. 83 (1963), (which makes up part of

Count II), and his destruction of evidence claim (Count III). Finally, defendants

move for summary judgment on all claims asserted against certain individual

defendants.

BACKGROUND

On January 19, 1980, Cathy Trunko was found lying on a sidewalk outside of

4936 S. Paulina Street in Chicago. (Dkt. 356 ¶ 1; Dkt. 330-1). Police responded to

the scene and Trunko was taken to the hospital, where she was pronounced dead on

arrival, having been stabbed. (Dkt. 356 ¶ 1; Dkt. 330-1).

The day after Trunko’s death, Detective Richard Bedran spoke with Diane Diaz

(now Grabowski), a close friend of Trunko’s. (Dkt. 356 ¶ 16). Diaz told Detective

Bedran that, on the night of Trunko’s death, Diaz and Robert “Bob” LaGace had been

at Dot’s Tavern together. (Id.). At about 10 p.m. on the night of Trunko’s death, Diaz

called Trunko on Trunko’s home phone and asked her to come to Dot’s. (Id.). Diaz

did not speak to Trunko again after that call. (Id.).

On January 21, 1980, Detective Bedran and his partner, Detective Richard

Rochowicz,1 had LaGace undergo a polygraph examination, performed by Officer

John Stout. (Id. at ¶ 18). Stout spoke to the detectives about why LaGace was

submitting to a polygraph, and documented the information they provided him; that

LaGace was in a tavern with his girlfriend, she called the victim and asked her to

1 Rochowicz was named as a Defendant in this case but is deceased. (Dkt. 60).

come to the tavern, the victim said no. (Id. at ¶¶ 19; Dkt 330-8 at 29). Stout further

documented that LaGace took a friend’s car and drove by where the victim lived but

did not see her. (Dkt. 356 ¶¶ 19; Dkt 330-8 at 29). The parties dispute whether

Stout’s notes also stated that LaGace was “known to have pulled knives on the

victim.” (Dkt. 356 ¶¶ 21; Dkt 330-8 at 29, 82–86; Dkt. 357-15). The results of Officer

Stout’s polygraph of LaGace were “erratic” so as to prevent Stout “from rendering a

decision regarding his status in this investigation.” (Dkt. 356 ¶¶ 20; Dkt 330-8 at 30,

82–86; Dkt. 357-15). Stout documented his suggestion that LaGace “be reexamined

on a future time and date if the investigators deem it advisable.” (Dkt. 356 ¶ 20; Dkt

330-8 at 30, 82–86; Dkt. 357-15).

The same day as the polygraph, January 21, 1980, Officer Larry Pawlowski

responded to a report of a knife found in the yard of a property one block south and

one block west of where Trunko was found. (Dkt. 356 ¶¶ 24, 28). He saw that the

knife had blood stains on it, and at that point he or someone else radioed evidence

technicians. (Id. at ¶ 24). Officer Pawlowski drafted a report of this event, noting

that it pertained to Trunko’s death. (Dkt. 330-13). Beyond viewing the knife and

drafting the report, Officer Pawloski had no further involvement in the Trunko

homicide investigation. (Dkt. 356 ¶ 26).

Evidence Technicians Thaddeus Melko2 and Norbert Rajewski responded to

the scene and collected the knife. (Id. at ¶ 27). No fingerprints were found on the

knife, but the blood samples from the knife tested positive for type A blood, the same

2 Melko was named as a defendant in this case but is deceased. (Dkt. 60).

as Trunko’s. (Id. at ¶ 29). Investigators on the scene, who may have been Detectives

James Higgins, Craig Ciegelski, and Daniel McWeeny, also gave the evidence

technicians a seven-ounce Old Style beer bottle. (Id. at ¶ 30; Dkt. 366 ¶¶ 38–39). The

bottle was later dusted for fingerprints and two negatives were taken of print

impressions. (Dkt. 356 ¶ 31). After the prints were found not to be suitable for

comparison, Melko and at least one other person, who may have been Rajewski,

disposed of the bottle. (Dkt. 356 ¶ 32; Dkt. 366 ¶ 40). Although photographs of the

knife were taken at the scene, no photographs of the bottle were taken nor was the

bottle inventoried. (Dkt. 366 ¶¶ 41–42).

It was not until several days after Trunko’s death that Andersen, 19 years old

at the time, was drawn into the investigation. (Id. at ¶ 2). On January 23, 1980,

Andersen was drinking with friends at a local tavern. (Dkt. 356 ¶ 39). Unable to find

her son, Andersen’s mother called an officer-friend, Officer Michael Riley, and asked

him to bring Andersen home. (Id. at ¶ 34–37). Officer Riley advised the officers on

patrol in the area that evening, Officers James Bednarkiewcz and Paul Nielsen, to be

on the lookout for Andersen and provided a vehicle description. (Id. at ¶ 38). Officers

Bednarkiewcz and Nielsen pulled over Andersen’s car, but he was not driving it. (Id.

at ¶ 41). They drove the car to Andersen’s home, where Andersen later pulled up as

a passenger in another vehicle. (Id. at ¶¶ 41–42). Officers Bednarkiewcz and Nielsen

then arrested Andersen, and after his mother signed a disorderly conduct charge

against him, the officers took Andersen to the Ninth District police station. (Id. at

¶¶ 42–43). At the station, Officer Riley encountered Andersen and observed that he

was “highly intoxicated, and emotionally upset.” (Id. at ¶ 46; Dkt. 330-28 at

P001018).

After Officer Bednarkiewcz spoke to Area 3 Detective John Olson, Officers

Bednarkiewcz and Nielsen transported Andersen to Area 3 to be interrogated about

Trunko’s death. (Dkt. 356 ¶ 47). While being questioned, Andersen told Detective

Olson that he heard that someone named “Bob” killed Trunko. (Id. at ¶ 48).

At some later point, Andersen was questioned by Detective Higgins. Andersen

alleges that Higgins showed Andersen a photo of a knife, which Higgins said was the

murder weapon. (Id. at ¶ 49). Next to the knife in the photo was a pair of Andersen’s

gloves—though, notably, the police did not report seeing gloves near the knife when

it was recovered. (Id. at ¶ 49; Dkt. 366 ¶¶ 35–36). Although Andersen had previously

denied killing Trunko, he began to question himself and whether he could have killed

her. (Dkt. 356 ¶ 50; Dkt 357-1 at 334–335 (“. . . when I seen that, it was like, oh my

goodness. Did I do this?”)). Andersen then confessed to Trunko’s murder and also

gave a court-transcribed confession.3 (Dkt. 356 ¶¶ 52–53). On January 24, 1980,

following his interrogation and confession, Andersen was arrested and charged with

the murder and attempted rape of Trunko. (Id. at ¶ 54).

Sheila Murphy (now the Hon. Sheila Murphy) served as Andersen’s defense

counsel. (Id. at ¶ 55). In investigating the case, Murphy spoke with Trunko’s friend

Diaz, and on August 11, 1981, Murphy questioned Diaz in a sworn, court-reported

3 The parties disagree about whether the confession was fed, “coerced” “false[]” and/or “fabricat[ed],”

but there is no dispute that Andersen confessed to the murder, regardless of whether that confession

was true. (Dkt. 356 ¶ 52-53).

interview. (Id. at ¶ 56). In the interview, Diaz recounted the events surrounding the

night of Trunko’s death. Diaz told Murphy that, the night before Trunko’s death,

Trunko, Diaz, LaGace, an unknown person named Danny (not Andersen), and others

were hanging out. (Dkt. 356 ¶ 64; 330-6 at BS-Andersen 000327). LaGace yelled at

Danny, who was dating LaGace’s sister, and told Cathy to keep away from Danny.

(Dkt. 356 ¶ 65; 330-6 at BS-Andersen 000329–30). Later on in the night before

Trunko’s death, LaGace asked Diaz out and congratulated her for having Trunko, a

good-looking girl, as a friend. (Dkt. 356 ¶ 66; 330-6 at BS-Andersen 000332).

Diaz told Murphy that, on the night of Trunko’s death, she had been at Dot’s

with LaGace and that she had invited Trunko to Dot’s but Trunko declined. (Dkt.

356 ¶ 57; 330-6 at BS-Andersen 000334–35). LaGace then took the phone and told

Trunko he was coming to pick her up, and left Dot’s in a car. (Dkt. 356 ¶ 57; 330-6 at

BS-Andersen 000336). Diaz told Murphy that LaGace returned about half an hour

later, sweaty and “out of breath,” and that “he was nervous.” (Dkt. 356 ¶ 58; 330-6

at BS-Andersen 000337). He also had more money on him when he returned than he

did prior to leaving Dot’s. (Dkt. 356 ¶ 58; 330-6 at BS-Andersen 000340). He told

Diaz he did not see Trunko. (Dkt. 356 ¶¶ 58–59; 330-6 at BS-Andersen 000337). Diaz

told Murphy that LaGace had a switchblade on him both the night of Trunko’s death

and the night before, and that Diaz had seen it both nights. (Dkt. 356 ¶ 60; 330-6 at

BS-Andersen 000339).

Diaz also told Murphy that, sometime after Trunko’s death, detectives came to

speak with her while she was with LaGace. The detectives told LaGace they wanted

to speak with him, and he left with them. (Dkt. 356 ¶ 62; 330-6 at BS-Andersen

000342). About three hours later, the detectives called Diaz and asked her if she

believed that LaGace killed Trunko, and Diaz told Murphy that she responded “no, I

can’t believe that he killed Cathy.” (Dkt. 356 ¶ 63; 330-6 at BS-Andersen 000342).

After interviewing Diaz, Murphy did not speak to LaGace, though the parties dispute

what efforts Murphy made to find LaGace. (Dkt. 356 ¶¶ 67–69; Dkt. 366 ¶ 20).

In March 1982, Andersen was tried before a jury. (Dkt. 356 ¶ 2). In her

opening statement, Murphy previewed for the jury Diaz’s testimony; that Diaz would

testify that LaGace left Dot’s to pick up Trunko, that he was gone a long time, that

he came back sweaty and out of breath, and that she knew he carried a knife. (Id. at

¶¶ 71–72). The trial court, however, ruled that Diaz could not testify about LaGace

and Trunko’s dispute the night before Trunko’s death on hearsay grounds, despite

defense counsel’s argument that it could provide a motive for LaGace to have killed

Trunko. (Id. at ¶¶ 76–77). Diaz did testify that LaGace left Dot’s around 10 p.m. and

came back sweating and out of breath. (Id. at ¶¶ 73–74). Murphy, however, failed to

question Diaz about several relevant topics—whether she knew if LaGace carried a

knife, whether she saw him with one, and whether LaGace left the bar carrying a

seven-ounce Old Style beer bottle—and the judge did not allow Murphy to recall Diaz

to ask such questions. (Id. at ¶ 75).

Andersen also testified at trial, recounting that he was shown a photograph

with the knife and his gloves, and his subsequent confession. (Id. at ¶¶ 78–80, 82).

The jury convicted Andersen of the murder and attempted rape of Trunko. (Id.

at ¶ 2; Dkt 357-2). Andersen remained in custody from the time of his arrest, through

trial, and up until his release from prison on April 24, 2007. (Dkt. 356 ¶ 2; Dkt. 357-

3). Andersen remained on supervised release until April 24, 2010. (Dkt. 356 ¶ 2).

On August 13, 2015, Andersen’s conviction was reversed, and on December 18,

2015, he was granted a Certificate of Innocence by the Circuit Court of Cook County.

(Dkt. 356 ¶ 3; Dkt. 357-4).

LEGAL STANDARD

Summary judgment is proper when “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); see, e.g., Reed v. Columbia St. Mary’s Hosp., 915 F.3d 473,

485 (7th Cir. 2019). The parties genuinely dispute a material fact when “the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.”

Daugherty v. Page, 906 F.3d 606, 609–10 (7th Cir. 2018) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining whether a genuine issue of

fact exists, the Court must take the evidence and draw all reasonable inferences in

favor of the party opposing the motion. Anderson, 477 U.S. at 255; see also Zander v.

Orlich, 907 F.3d 956, 959 (7th Cir. 2018).

DISCUSSION

A. Statute of Limitations

Defendants argue that all of Andersen’s claims are barred by the statute of

limitations. This is so, they say, because Andersen’s supervised release ended on

April 24, 2010, and the statute of limitations began running on that date, but

Andersen did not file the present case until February 4, 2016—long past the relevant

statutes of limitations periods. See 745 ILCS 10/8-101; Lewis v. City of Chicago, 914

F.3d 472, 478 (7th Cir. 2019) (“A § 1983 claim borrows the statute of limitations for

analogous personal-injury claims in the forum state; in Illinois that period is two

years.”). Defendants ask this Court to follow Savory v. Cannon in holding as much.

338 F. Supp. 3d 860, 863–64 (N.D. Ill. 2017), rev’d and remanded, 912 F.3d 1030 (7th

Cir. 2019), reh’g en banc granted, opinion vacated (Mar. 6, 2019) (holding that the

statute of limitations period begins to run on such claims when custody, including

parole, terminates).

The district court’s opinion in Savory is not binding on this Court, but Seventh

Circuit and Supreme Court precedent are. And that precedent leads to the opposite

conclusion. Claims analogous to the common-law tort of malicious prosecution, like

Andersen’s claims, accrue “only once the underlying criminal proceedings have

resolved in the plaintiff’s favor.” McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019).

As the Supreme Court explained in Heck v. Humphrey, 512 U.S. 477 (1994), this

“favorable-termination requirement is rooted in pragmatic concerns with avoiding

parallel criminal and civil litigation over the same subject matter and the related

possibility of conflicting civil and criminal judgments.” McDonough, 139 S. Ct. at

2157. To show favorable termination, a plaintiff must show “that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at

487. This favorable termination requirement “is not rendered inapplicable by the

fortuity that a convicted criminal is no longer incarcerated.” Id. at 490 n. 10.

Andersen’s conviction was not reversed until August 13, 2015. Any attack

prior to that date “would necessarily imply the invalidity” of an intact conviction, in

contravention of the principles of Heck, and Andersen would have had no valid cause

of action. Id. at 487–89; see also, e.g., Moore v. Burge, 771 F.3d 444, 446 (7th Cir.

2014) (“Heck holds that a claim that implies the invalidity of a criminal conviction

does not accrue, and the statute of limitations does not begin to run, until the

conviction is set aside by the judiciary or the defendant receives a pardon.”); Lewis v.

Mills, 677 F.3d 324, 333 (7th Cir. 2012) (“[I]t is well-settled that Heck v. Humphrey. . .

bars a plaintiff from maintaining a § 1983 action where a judgment in favor of the

plaintiff would necessarily imply that his conviction was invalid. (citations omitted));

Am. Safety Cas. Ins. Co. v. City of Waukegan, Ill., 678 F.3d 475, 477 (7th Cir. 2012)

(noting that “claims related to wrongful conviction do not accrue until the conviction

has been invalidated”). The same is true of Andersen’s state-law claims sounding in

malicious prosecution, although the parties’ briefing focuses on the § 1983 claims.

See Ferguson v. City of Chicago, 213 Ill. 2d 94, 99, 820 N.E.2d 455, 459 (Ill. 2004) (“A

cause of action for malicious prosecution does not accrue until the criminal proceeding

on which it is based has been terminated in the plaintiff’s favor.”); see also Simon v.

Nw. Univ., 183 F. Supp. 3d 908, 920 (N.D. Ill. 2016) (same accrual rules apply to

claims premised on malicious prosecution). Andersen’s conviction was not favorably

terminated until August 13, 2015, and his claims alleging causes of action akin to

malicious prosecution did not accrue until that date. Those claims are therefore

timely.

B. Federal Malicious Prosecution Claim

Count VI alleges a claim for federal malicious prosecution, citing the Fourth

and Fourteenth Amendments.4 Andersen refers in the count to the initiation and

continuation of proceedings without probable cause and refers to this as a claim for

“unlawful pretrial detention” in his response to Defendants’ motion for summary

judgment. (Dkt. 354 at 29.) Thus, this count appears to address the time Andersen

spent detained prior to trial, pursuant to the Fourth Amendment (applicable through

the Fourteenth Amendment). See Bailey v. United States, 568 U.S. 186, 192 (2013).

In this circuit, malicious prosecution is the wrong label for such a claim—it is instead

a Fourth Amendment claim for wrongful detention. Camm v. Faith, 937 F.3d 1096,

1100, 1105 (7th Cir. 2019).

The Seventh Circuit has said that “a Fourth Amendment claim for wrongful

detention accrues when the detention ends.” Id. at 1107. Defendants argue, based

on this premise, that Andersen’s pretrial detention ended in 1982, when he was

convicted, and he should have brought his claim within two years of that date.

Further, Defendants note, Andersen was released from any detention in 2007 (when

he was released from prison), which is also more than two years before he brought

4 The complaint includes two counts titled Count VI. The other is the Monell claim, which is not

relevant for the purposes of this Opinion. Any references to Count VI are to the claim for federal

malicious prosecution.

suit. (Dkt. 328 at 3–4). In response, Andersen argues that Heck applies to his Fourth

Amendment claim—to challenge his pretrial detention would impugn his conviction

because it would challenge his confession and other evidence withheld and destroyed.

Therefore, he asserts, he could not have brought his Fourth Amendment claim until

favorable termination of his conviction. (Dkt. 354 at 29).

Defendants’ argument that this claim accrued when Andersen was convicted

is unsupported. Andersen’s detention did not end when he was convicted. In Camm,

the Seventh Circuit discussed, without deciding, a similar statute of limitations issue.

937 F.3d at 1107. In that case, the plaintiff had been held pretrial, convicted, then

retried twice ending in an acquittal. The Court allowed the plaintiff’s Fourth

Amendment claim to move forward based on the initial probable-cause affidavit

issued in the case. Though the defendant had been convicted (twice) after the

submission of that affidavit, at no point did the Court suggest that the claim accrued

at the time of conviction. Id. Although not binding for that purpose, Camm indicates

that the Seventh Circuit’s understanding is not that all Fourth Amendment claims

accrue at the time of conviction.

But that would only get Andersen to 2007, still too late to bring his claim. Even

if a court were to determine that his detention ended at the end of his supervised

release in 2010, he would still come up short. That is where Heck comes in. Although

Defendants argue that Heck has no place in the pre-conviction context, in certain

situations, Heck applies to ongoing prosecutions. See McDonough, 139 S. Ct. at 2160.

In some cases, the harm is distinct and accrues without regard to Heck, because at

that point whether a prosecution will be brought is merely speculative. See Wallace

v. Kato, 549 U.S. 384, 390–91 (2007) (claim for arrest without a warrant accrues once

detention is pursuant to legal process); see also McDonough, 139 S. Ct. at 2159 (“A

false-arrest claim, Wallace explained, has a life independent of an ongoing trial or

putative future conviction—it attacks the arrest only to the extent it was without

legal process, even if legal process later commences.”).5

A claim, however, that “centers on evidence used to secure an indictment and

at a criminal trial. . . does not require speculation about whether a prosecution will

be brought. . . . It directly challenges—and thus necessarily threatens to impugn—

the prosecution itself,” thereby implicating the concerns addressed in Heck.

McDonough, 139 S. Ct. at 2159 (citations and internal quotation marks omitted).6

Andersen’s Fourth Amendment claim centers on the argument that he was

wrongfully detained based on a coerced confession that implicated withheld and/or

destroyed evidence. That confession was used to secure the charges against him,

proceed with his prosecution, and convict him at trial. As such, Heck applies to his

Fourth Amendment claim. To bring the claim earlier would have impermissibly

5 Cases that discuss the end of detention as the sole accrual date can be distinguished. In Manuel v.

City of Joliet, Illinois, 903 F.3d 667, 669 (7th Cir. 2018), cert. denied sub nom. City of Joliet, Ill. v.

Manuel, 139 S. Ct. 2777 (2019), for example, the plaintiff was never convicted. There was no conviction

to be impugned, and therefore the plaintiff’s claim accrued as soon as detention ended.

6 McDonough can be viewed as being in tension with the Seventh Circuit’s holding in Johnson v.

Winstead, 900 F.3d 428, 439 (7th Cir. 2018), cert. denied, 139 S. Ct. 2776 (2019), and cert. denied, 139

S. Ct. 2777 (2019). Johnson applies a categorical approach to Heck; holding that Heck applies to

“constitutional wrongs that occur within a criminal proceeding. . . —i.e., those that occur at trial.” 900

F.3d at 436. This Court reads McDonough as expanding the definition of what falls within the Seventh

Circuit’s categorical approach. In other words, the use of improper evidence to secure charges from

which detention stems falls inside the meaning of constitutional wrongs occurring within a criminal

proceeding.

challenged an extant conviction. Andersen’s Fourth Amendment claim, therefore,

accrued with the favorable termination of his case and is timely.

C. Intentional Infliction of Emotional Distress Claim

Defendants argue that Andersen’s state-law claim for intentional infliction of

emotional distress (“IIED”), Count VIII, is barred by the one-year statute of

limitations for such a claim. Defendants point to Bridewell v. Eberle, 730 F.3d 672,

678 (7th Cir. 2013), which provides that “a claim of intentional infliction of emotional

distress in the course of arrest and prosecution accrues on the date of the arrest.” In

response, Andersen argues that any claim of IIED based on the misconduct of

Defendants would be subject to a Heck bar—such a claim would attack and

undermine an extant conviction.

As other courts in this district have recognized, “the Bridewell decision did not

discuss the accrual of an Illinois IIED claim in relation to the Heck rule, namely, that

if a claim impugns the validity of a criminal conviction, that claim does not accrue—

and the statute of limitations does not begin to run—until the plaintiff’s conviction is

overturned or otherwise set aside.” Smith v. Burge, 222 F. Supp. 3d 669, 693 (N.D.

Ill. 2016); see also Brown v. City of Chicago, No. 18 C 7064, 2019 WL 4694685, at *7

(N.D. Ill. Sept. 26, 2019). And in Parish. v. City of Elkhart, 614 F.3d 677, 684 (7th

Cir. 2010), although under Indiana law, the Seventh Circuit recognized that a claim

of IIED resting on facts that directly attack the validity of a conviction is barred until

favorable termination of the conviction, pursuant to Heck. Illinois, like Indiana, has

adopted Heck. Lieberman v. Liberty Healthcare Corp., 948 N.E.2d 1100, 1108 (Ill.

App. Ct. 2011). While some IIED claims of this nature might not directly attack an

extant conviction, Andersen’s would have. As such, Andersen’s claim did not accrue

until the favorable termination of his conviction and is therefore timely.

D. Brady Claim

In Count II, Andersen alleges a violation of his right to due process. This count

is based, in part, on the withholding of exculpatory evidence, a claim made pursuant

to Brady v. Maryland, 373 U.S. 83 (1963). (Dkt. 1 at ¶¶ 111–12). Defendants argue

that summary judgment should be granted for them on any Brady claim included in

Count II.

To establish a violation under Brady, “a plaintiff must demonstrate (1) that

the evidence in question was favorable to his defense, either because it had

exculpatory or impeachment value; (2) that the state suppressed the favorable

evidence either will-fully or inadvertently; and (3) prejudice ensued, which occurs if

the evidence was material.” Goudy v. Cummings, 922 F.3d 834, 838 (7th Cir. 2019)

(internal quotation marks omitted). The materiality of suppressed evidence is

evaluated cumulatively. Camm, 937 F.3d at 1109.

Andersen alleges that Defendants suppressed:

• the photo, which Andersen alleges was staged, showing the blood-stained

knife next to what appeared to be a pair of Andersen’s gloves;

• the fact that the police questioned and polygraphed LaGace in connection

with Trunko’s murder; and

• the fact that LaGace was “known to have pulled knives on the victim,” and

how the police learned that information.

(Dkt 354 at 3).

Turning first to the allegations relating to LaGace, as a general matter, these

allegations are favorable to Andersen in that they point to an alternative suspect.

See Beaman v. Freesmeyer, 776 F.3d 500, 509–10 (7th Cir. 2015) (noting that it “is

true as a general matter” that “evidence inculpating another suspect [i]s Brady

material.”). Defense Counsel Murphy, however, was already aware that the police

had questioned LaGace and that police had considered whether he was a suspect;

Diaz told Murphy that she saw police tell LaGace that they wanted to question him,

saw LaGace go with police, and that police later called Diaz to ask whether she

believed LaGace had killed Trunko. (Dkt. 330-6 at BS-Andersen 000342). That

information, therefore, could have been, and was, available to defense counsel

through reasonable diligence and therefore was not suppressed under Brady. See

Anderson v. City of Rockford, 932 F.3d 494, 504–05 (7th Cir. 2019) (“Evidence is

suppressed for Brady purposes if the. . . ‘evidence was not otherwise available to the

defendant through the exercise of reasonable diligence.’” (quoting Boss v. Pierce, 263

F.3d 734, 740 (7th Cir. 2001))).

That leaves, for Brady purposes, the fact that LaGace was polygraphed and

that detectives knew that he had previously pulled a knife on Trunko. Regarding the

polygraph, Andersen’s argument cannot be that it was a violation of Brady not to turn

over the results of LaGace’s polygraph test—Defendants are entitled to qualified

immunity on such a claim. See Beaman, 776 F.3d at 510 (“Beaman points to no pre–

1995 case from Illinois or the Supreme Court, and we are unable to find one,

establishing that inadmissible evidence inculpating another suspect (to frame it

broadly) or polygraph tests (to frame it narrowly) is Brady material.”). So, the claim

must be framed as being that Defendants failed to disclose that LaGace was

polygraphed, regardless of the results. Defendants suggest that Murphy could have

interviewed LaGace and found this information out. But there is a genuine dispute

as to whether Murphy could have located LaGace with reasonable diligence—she

testified that she made every effort to find him but could not. (Dkt. 366 ¶ 20).

Defendants also argue that this evidence would have been cumulative and not

material, and that is the better argument. Murphy already knew that LaGace was

questioned and that police considered that he could have killed Trunko (they asked

Diaz as much directly). Murphy could have introduced some, if not all of this

information at trial, but failed to do so. That LaGace was also given a polygraph test,

without more, might not have been sufficient to “undermine[] confidence in the

verdict.” Beaman, 776 F.3d at 506 (internal quotation marks omitted); see also, e.g.,

Socha v. Richardson, 874 F.3d 983, 989 (7th Cir. 2017) (stating that evidence that is

“merely cumulative” is not material) (internal quotation marks omitted)).

But materiality is to be considered cumulatively, and there is also the fact that

detectives knew that LaGace had previously pulled a knife on Trunko. This argument

is nuanced. Andersen argues not that Stout’s polygraph report (with the “known to

have pulled knives” statement) must have been turned over. Instead, he argues that

that information came from detectives, and, apart from the polygraph, if the

detectives knew that LaGace had previously pulled a knife on Trunko they had a duty

to make that fact known to the defense.

True, Stout’s polygraph report might not have said “known to pull knives,” or

he might have misunderstood what the detectives were saying. But Stout testified

that his report stated that LaGace was “known to have pulled knives on the victim,”

and that this is information he would have obtained from the detectives. (Dkt 330-8

at 29). At the summary judgment stage, reasonable inferences are drawn in favor of

the non-movant, and here, a reasonable juror could find that the detectives told Stout

that LaGace was known to have pulled knives on Trunko. If so, the next inference is

that the detectives learned somehow that LaGace had pulled a knife on Trunko,

probably through a conversation with a witness, yet failed to disclose that to the

defense. Defendants argue in response that there is no proof that a report of any such

conversation exists, that officers are not required to create exculpatory evidence, and

that the failure to draft a report is not a Brady violation. This is a misstatement of

the law. The failure to “record and report the substance” of an exculpatory

conversation is “a serious violation of the government’s duty to turn over all evidence

favorable to the accused.” United States v. Mota, 685 F.3d 644, 648 (7th Cir. 2012).

And as to any argument that pulling a knife on someone could be harmless (maybe,

for instance, he just showed her a knife), reasonable inferences must be made in favor

of Andersen and there is certainly a reasonable inference to be had that pulling a

knife on someone is not inherently innocuous.

Further, it is not clear how Murphy could have obtained this information

through reasonable diligence. She could not interview a witness unknown to her, and

we cannot assume that LaGace would have revealed this information, even if she had

located him. See, e.g., Boss, 263 F.3d at 741 (“In cases like the present one, the

question is whether defense counsel had access to Brady material contained in a

witness’s head. Because mind-reading is beyond the abilities of even the most

diligent attorney, such material simply cannot be considered available in the same

way as a document.” (citations omitted)). And as to materiality, a reasonable

factfinder, if he accepted these inferences, could certainly find this evidence to be

material. It goes beyond the general proposition that LaGace might have been the

murderer and suggests that a viable suspect—who disappeared around the time of

the crime and returned appearing sweaty and out of breath—was known to have

threatened the victim in the same manner of her killing prior to her death. Although

not conclusively exculpatory, this would have been much stronger evidence that

LaGace, and not Andersen, was the culprit than anything else the jury heard at trial.

See, e.g., Goudy v. Basinger, 604 F.3d 394, 400–01 (7th Cir. 2010) (noting that

suppressed evidence inculpating another suspect may be material, even when that

evidence did not necessarily point to the defendant’s innocence).

Defendants also argue that any conversation the detectives had with a witness

who told them LaGace had pulled a knife on Trunko would have been inadmissible

hearsay. That is not necessarily true. For one, Murphy might have learned who told

the detectives that and called that person as a witness. Additionally, the information

could have been admitted to for its effect on the detectives—whether true or not,

Murphy could have asked why the detectives declined to pursue LaGace in light of

knowledge that he pulled a knife on Trunko. See Kyles v. Whitley, 514 U.S. 419, 447

(1995) (“By demonstrating the detectives’ knowledge. . . the defense could have laid

the foundation for a vigorous argument that the police had been guilty of

negligence.”). Even viewing solely the evidence suggesting that the detectives were

aware that LaGace had previously pulled a knife on Trunko, Andersen has stated a

claim under Brady sufficient to survive summary judgment. Viewing the facts in the

light most favorable to Andersen, a reasonable factfinder could conclude that

Defendants suppressed information that was favorable, unavailable to him, and,

material.

At this stage, the Court declines to grant Defendants summary judgment on

the grounds that they would have qualified immunity on this claim. “A state official

is protected by qualified immunity unless the plaintiff shows: (1) that the official

violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Reed v. Palmer, 906 F.3d 540, 546

(7th Cir. 2018) (internal quotation marks omitted). “A plaintiff can show that a right

is ‘clearly established’ by statute or constitution in at least two ways: (1) he can point

to a clearly analogous case establishing the right to be free from the conduct at issue;

or (2) he can show that the conduct was ‘so egregious that no reasonable person could

have believed that it would not violate established rights.’” Beaman, 776 F.3d at 508

(quoting Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001)). “Even if factual

circumstances are novel, a right can still be clearly established so long as the state of

the law at the time gave the defendants fair warning that their conduct was

unconstitutional.” Id. at 509.

The Seventh Circuit has said that “[i]t was already clearly established as early

as 1981 that police could not withhold exculpatory information from prosecutors.”

Goudy v. Cummings, 922 F.3d at 844; see also Beaman, 776 F.3d at 509 (noting that

“the idea that police officers must turn over materially exculpatory evidence has been

on the books since 1963”); Manning v. Miller, 355 F.3d 1028, 1034 (7th Cir. 2004)

(noting that for qualified immunity purposes, the question of immunity need not be

tailored, “it is enough that, prior to the actions that gave rise to this case, it was well

established that investigators who withhold exculpatory evidence from defendants

violate the defendant’s constitutional due process right.”). Viewing the evidence in

the light most favorable to Andersen, a reasonable factfinder could conclude that

Defendants suppressed exculpatory evidence. By the time of Andersen’s trial,

Defendants had clear warning under existing case law that such evidence must be

disclosed.7

Finally, there is the purported picture of Andersen’s gloves beside the bloody

knife. The picture, on its face, is not exculpatory. In fact, it would have inculpated

Andersen by showing what appeared to be his gloves with what was thought to be the

7 Defendants do not seriously contest this, instead stating that “Plaintiff cannot identify any case law

that clearly establishes Defendants were required to disclose their opinions of LaGace to Plaintiff.”

(Dkt. 328 at 20). Evidence, if it existed, that LaGace had pulled a knife on Trunko was not merely the

detectives’ “opinions” of LaGace.

murder weapon. Andersen argues, however, that, had the photograph been produced

at trial, it would have supported the theory that the police did not adequately

investigate the case and instead framed an innocent person, and therefore was

exculpatory. To get to the premise that the photograph was exculpatory requires too

many leaps—that officers falsified it to coerce Andersen to confess, then hid it so that

defense counsel could never find out that it was actually staged. “Brady does not

require that police officers or prosecutors explore multiple potential inferences to

discern whether evidence that is not favorable to a defendant could become

favorable.” Harris v. Kuba, 486 F.3d 1010, 1016 (7th Cir. 2007); see also Carvajal v.

Dominguez, 542 F.3d 561, 568 (7th Cir. 2008) (concluding that evidence was not

exculpatory because “too many inferences have to be made to reach that conclusion”).

This is better brought as a fabrication of evidence claim—officers fabricated

the evidence to obtain Andersen’s confession, which they then used to wrongfully

convict him. See Saunders-El v. Rohde, 778 F.3d 556, 560 (7th Cir. 2015) (noting that

there can be a fabrication of evidence claim in violation of a defendant’s due process

rights when law enforcement “‘fabricates evidence that is used to obtain a wrongful

conviction’” (quoting Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir. 2012))).8 As

8 A comparison to Saunders-El v. Rohde, 778 F.3d 556, 562 (7th Cir. 2015), is helpful, though not

directly analogous. Saunders-El explains that suppression of the fact that police fabricated evidence

is not a Brady violation, i.e., police do not violate Brady by “keeping quiet about their wrongdoing.”

Id. at 562. Although in Saunders-El there was no piece of evidence suppressed akin to the photograph

here, the argument is very similar—by not producing the photo, Defendants were keeping quiet about

their wrongdoing. Such a claim, while actionable, is more appropriately characterized as a claim

outside of the Brady framework.

such, Andersen may use this argument to support his fabrication of evidence claim,

but not his Brady claim.

E. Destruction of Evidence

In Count III, Andersen brings a destruction of evidence claim based on the fact

that Defendants destroyed the seven-ounce Old Style beer bottle they found.

Destruction of potentially exculpatory evidence, if done in bad faith, is a violation of

due process. Armstrong v. Daily, 786 F.3d 529, 547 (7th Cir. 2015). The “exculpatory

nature” of the evidence must have been “apparent,” and the evidence must have not

been able to be obtained elsewhere. Tabb v. Christianson, 855 F.3d 757, 768 (7th Cir.

2017); see also McCarthy v. Pollard, 656 F.3d 478, 485 (7th Cir. 2011) (“[T]the

destruction of potentially exculpatory evidence violates the defendant’s right to due

process if (1) the State acted in bad faith; (2) the exculpatory value of the evidence

was apparent before it was destroyed; and (3) the evidence was of such a nature that

the petitioner was unable to obtain comparable evidence by other reasonably

available means.”).

Andersen sets forth two reasons the bottle is exculpatory. The first is that it

was “an odd-sized beer bottle uniquely sold” at Dot’s, where LaGace was drinking

beer before disappearing for thirty minutes. (Dkt. 354 at 22). Showing the bottle to

the jury would corroborate any testimony that Diaz saw LaGace drinking such a

bottle and would tend to inculpate him. This argument fails. By the time of trial,

Murphy knew the type of bottle that was found. (Dkt. 356 ¶ 5; Dkt. 330-34 at

P001256–57). She did not need the bottle itself to make the argument that this was

a special-sized bottle sold at Dot’s or to ask Diaz about it—which she forgot to do.

See, e.g., California v. Trombetta, 467 U.S. 479, 490 (1984) (holding there was no due

process violation because defendants were “perfectly capable of raising” defense

arguments “without resort to preserved” evidence).

Andersen’s second argument is that the bottle was potentially and apparently

exculpatory because defense counsel could have performed additional testing for

fingerprints that might have led to a different conclusion about whether any

fingerprints on the bottle were suitable for testing. At this stage, Andersen has

pointed to evidence sufficient to suggest that the potentially exculpatory nature of

the bottle was or should have been apparent to Defendants. It was discovered at

what was believed to be part of the crime scene, strongly suggesting its relevance.

And evidence technicians knew it was possible to lift fingerprints from the bottle;

they had done as much. There is a viable argument that the technicians should have

known that the bottle may need to be retested or reexamined for fingerprints at a

future date or that defense counsel might want to do their own testing. Cf. Arizona v.

Youngblood, 488 U.S. 51, 58 (1988) (holding that there was no due process violation

because the state made physical evidence available to the defense for testing);

Armstrong, 786 F.3d at 549 (noting that evidence is potentially exculpatory if it might

reveal fingerprints, although in that case, evidence was never tested).

It is not enough, however, that evidence be potentially and apparently

exculpatory, there must also be bad faith. And Andersen points to no evidence

suggesting that Evidence Technician Rajewski, who Andersen alleges destroyed the

evidence, acted in bad faith. Instead, Andersen cites only the general proposition

that a party’s state of mind is a question for the factfinder. True, but there must be

some dispute of fact supporting an inference in Andersen’s favor. Andersen argues

that Rajewski should have known not to destroy the bottle because of the “unusual

circumstances” in which he got it and because it was not the typical practice to destroy

evidence. Without more, and if true, this supports only that Rajewski was negligent,

and negligence is not sufficient for a destruction of evidence claim. See Armstrong,

786 F.3d at 547 (observing that, in Youngblood, “the Court found no constitutional

violation where the police were merely negligent.”); see also United States v. Bell, 819

F.3d 310, 318 (7th Cir. 2016) (noting that a showing of bad faith requires “proof of an

official animus or a conscious effort to suppress exculpatory evidence”) (internal

quotation marks omitted)). Andersen has failed to point to a genuine dispute of

material fact regarding bad faith, and Defendants are entitled to summary judgment

on Count III.

F. Individual Defendants

Finally, Defendants seek dismissal of certain individual defendants: Detective

Bedran; Officer Pawlowski; Evidence Technician Rajewski; and Officer Riley.

Andersen concedes dismissal of Officer Pawlowski. (Dkt. 354 at 30 n.9).

A genuine dispute of material fact prevents Detective Bedran from being

dismissed at this stage. Detective Bedran took LaGace to be polygraphed. If Stout

did document that LaGace was known to pull knives on Trunko, Stout testified that

this is information he would have obtained from the detectives he spoke to prior to

the polygraph—which includes Detective Bedran. As previously stated, Andersen’s

claim that Defendants suppressed the fact that LaGace had previously pulled a knife

on Trunko can go forward. Detective Bedran plays a central role in this claim.

Andersen argues that Evidence Technician Rajewski cannot be dismissed

because of his alleged involvement in destroying the beer bottle. Because the Court

dismisses Andersen’s destruction of evidence claim, Rajewski can be dismissed as a

defendant.

Last is Officer Riley. Defendants argue that Officer Riley should be dismissed

because he was not involved in the Trunko investigation and there is no evidence that

he was a part of a conspiracy against Andersen. In response, Andersen argues that

Officer Riley knew how intoxicated and incoherent Andersen was when he was

arrested, yet he failed to question or intervene in Andersen’s interrogation which

ultimately led to his false confession. Both parties spend only a few sentences on

their arguments pertaining to Officer Riley, and neither cites any case law supporting

their position. Courts are not obligated “to research and construct the legal

arguments open to parties, especially when they are represented by counsel.”9 United

States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (internal quotation marks omitted).

As a result, the Court declines to address this argument at this time, considering it

waived for the purposes of summary judgment. See, e.g., Crespo v. Colvin, 824 F.3d

9 It is not clear from the parties’ submissions what claims Officer Riley is implicated in. The relevant

claims appear to be at least Counts IV and V, for conspiracy and failure to intervene, yet neither party

sets out the elements of these claims or explains when an officer may be found liable.

667, 674 (7th Cir. 2016) (noting that “perfunctory and undeveloped arguments, and

arguments that are unsupported by pertinent authority, are waived’).

CONCLUSION

Defendants’ motion for summary judgment is granted in part and denied in

part. The Court grants summary judgment for Defendants on Count III because

Andersen has failed to establish a genuine dispute of material fact as to whether

evidence was destroyed in bad faith. Summary judgment is otherwise denied.

Andersen’s claims were timely brought, and genuine disputes of fact remain that

prevent this Court from granting summary judgment on Count II, nor have

Defendants shown that they are entitled to qualified immunity on this count.

Defendants Rajewski and Pawlowski are dismissed as defendants in this case. Trial

will proceed against all other Defendants on the counts that remain.

iT

Ap sey JM én tl

AOAC J AA ie"

ginja M. Kendall

United States District Judge

Date: November 26, 2019

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