Walker v. White

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JERMAINE WALKER,

Plaintiff,

No. 16 CV 7024

v.

Judge Manish S. Shah

MICHAEL WHITE et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jermaine Walker alleges that a group of Chicago police officers

framed him for drug crimes, resulting in his conviction and a 22-year prison sentence.

Throughout the state-court proceedings, Walker insisted that a security camera in

the alley where he was arrested would expose the officers’ misconduct and exonerate

him. Before trial, a Cook County investigator took photographs of the alley, and the

prosecutor introduced them at trial. None of the photographs showed a camera, and

the investigator and two CPD officers testified at trial that there was no camera in

the alley. Years later, a reinvestigation revealed that there had been a camera in the

alley when Walker was arrested. The state moved to vacate Walker’s conviction and

sentence, and he received a certificate of innocence. Walker brings claims for

fabrication of evidence, unlawful pretrial detention, and malicious prosecution,

among others, against the CPD officers, the investigator, Cook County, and the City

of Chicago. The defendants move for partial summary judgment. For the reasons that

follow, their motions are granted in part, denied in part.

I. Legal Standards

Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and he is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). I construe all facts

and draw all inferences in favor of the nonmoving party. Robertson v. Dep’t of Health

Servs., 949 F.3d 371, 377–78 (7th Cir. 2020). I need only consider the cited materials,

but I may consider “other materials in the record.” Fed. R. Civ. P. 56(c)(3).

II. Background

Defendants Michael White, Eric Reyes, Sebastian Flatley, Brian Daly, Raul

Baeza, and Thomas Gaynor were Chicago police officers. [285] ¶ 2.1 Defendant

Thomas Finnelly was an investigator for the Cook County State’s Attorney’s Office.

[285] ¶ 3.

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers

are taken from the CM/ECF header placed at the top of filings, except in the case of citations

to depositions, which use the deposition transcript’s original page number. The facts are

largely taken from Walker’s response to defendants’ joint Local Rule 56.1 statement, [285],

and defendants’ response to Walker’s statement of additional facts, [294], where both the

asserted fact and the opposing party’s response are set forth in one document. Any fact not

properly controverted is admitted, with one significant exception discussed below. N.D. Ill.

Local R. 56.1(e)(3); see Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). I

disregard legal arguments in the statements of facts, see Cady v. Sheahan, 467 F.3d 1057,

1060 (7th Cir. 2006), and ignore additional facts included in response to the asserted fact that

do not controvert the asserted fact. N.D. Ill. Local R. 56.1(e)(2).

On February 21, 2006, Walker, a student at Fisk University in Tennessee, and

his brother, Russell Walker,2 stopped at JJ Peppers before going to their sister’s

apartment. [294] ¶¶ 1–3.3 Jermaine Walker was in the driver’s seat of the car and

Russell was in the passenger seat. [285] ¶ 9. Both brothers had been smoking

marijuana in the car that day, and there was marijuana in the ashtray of the car.

[285] ¶¶ 10, 29.

Reyes, Flatley, Daly, and White were on patrol in a police car, with Reyes

driving. [285] ¶ 6. The parties dispute what happened next. According to the officers,

around 8:30 p.m., a citizen stopped them and told them that two African-American

men in a white car with Tennessee license plates were selling drugs near Lawrence

Avenue and Sheridan Road. [285] ¶ 7. The officers saw a car matching that

description in the parking lot of JJ Peppers. [285] ¶ 8. According to White, a man

later identified as Dewey Brown was standing outside the car talking to Russell, and

Russell pointed westbound. [285] ¶ 11. The Walkers then left the parking lot, driving

west, and turned into an alley between a hotel, the Lawrence House, and JJ Peppers,

while Brown walked into the alley. [285] ¶ 12–13. The Walkers parked near the south

2 For ease of reading, I refer to plaintiff Jermaine Walker as Walker, and his brother Russell

Walker as Russell.

3 The city defendants’ request to strike some of Walker’s additional facts is denied. [296] at

7. Motions to strike are generally disfavored. N.D. Ill. Local R. 56.1(e)(2). Heller Fin., Inc. v.

Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989) (motions to strike “serve only to

delay”). And they are particularly unnecessary on summary judgment because the court must

always review statements of material facts and “eliminate from consideration any argument,

conclusions, and assertions” that are unsupported by the record. Univ. Healthsystem

Consortium v. UnitedHealth Grp., Inc., 68 F.Supp.3d 917, 921 (N.D. Ill. 2014). I disregard

arguments and legal conclusions in the Rule 56.1 statements, so a motion to strike is

unnecessary.

end of the alley. [285] ¶ 12. The officers followed in their car, and, once in the alley,

White and Reyes saw Brown hand Russell money through the passenger side window

of the car in exchange for a small object. [284] ¶¶ 14–15; [278-6] at 116:15–24; [278-

15] at 11–12. Flatley saw Brown point to the item in his hand. [285] ¶ 16.

According to Walker, Brown was never in the parking lot of the JJ Peppers,

and neither he nor his brother ever spoke to Brown. [285] ¶¶ 11–13; [294] ¶ 5. Walker

pulled out of the JJ Peppers parking lot, and the officers activated their police lights.

[285] ¶ 14; [294] ¶ 4. In response, Walker pulled into the alley and stopped the car.

[285] ¶ 14; [294] ¶ 4. Walker saw Brown talking to another person in the alley, and

that person ran away. [285] ¶ 15; [294] ¶ 6.

The parties agree that Brown fled toward the north end of the alley when the

officers got out of their car, and that Flatley chased Brown and stopped him at the

end of the alley. [285] ¶¶ 17–20. Brown had a small plastic bag containing a rock of

crack cocaine, and Flatley handcuffed him and walked him back to the police car at

the south end of the alley. [285] ¶ 20. When Brown fled, Daly got back in the police

car to follow him; once Flatley radioed that he had Brown in custody, Daly got out of

the car and saw Flatley escorting Brown down the alley. [285] ¶ 21.

While Flatley and Daly chased Brown, White and Reyes approached the

Walker brothers’ car. [285] ¶¶ 22–25; [294] ¶ 7. The parties dispute what happened

next. According to Reyes, Walker threw a bag of what appeared to be cocaine out the

window as the officers approached. [285] ¶ 26. Reyes asked Walker to get out of the

car, then patted Walker down and handcuffed him, while White did the same to

Russell. [285] ¶¶ 24, 27. White found cocaine on the front passenger seat of the car.

[285] ¶ 24.

According to Walker, there was no cocaine in the car, and he did not throw any

drugs out the window. [285] ¶¶ 24, 26; [294] ¶¶ 15, 17–19. Likewise, Russell didn’t

have drugs on him and never sold Brown drugs. [285] ¶ 15. As Walker remembers it,

Reyes approached the car with his gun drawn and asked Walker for his identification.

[285] ¶ 27; [294] ¶ 7. Walker complied and asked Reyes why the officers had stopped

him. [294] ¶ 7. Reyes didn’t answer, and ordered Walker out of the car, but Walker

refused and asked to speak to a sergeant [285] ¶ 27; [294] ¶ 7. White came to the door

a few minutes later and asked Walker to step out of the car, which he did. [285] ¶ 27;

[294] ¶ 8. Reyes searched and handcuffed Walker, then Reyes began to beat him.

[285] ¶ 27; [294] ¶¶ 9–10. Walker told the officers that their actions were on “candid

camera.” [285] ¶ 27; [294] ¶ 9. The officers deny beating Walker and dispute that

Walker ever said anything about a camera. [294] ¶ 9.

Gaynor and Baeza arrived at the north end of the alley in response to Flatley’s

radio report of a chase. [285] ¶ 30. By the time Gaynor and Baeza arrived, Brown and

the Walker brothers were already detained and handcuffed. [285] ¶¶ 30–31. Neither

Gaynor nor Baeza interacted with either Walker brother in the alley. [285] ¶ 31.

At the police station, Flatley searched Walker and found cocaine in Walker’s

sock; Walker denies that Flatley found drugs on him. [285] ¶¶ 32–33, 96; [294] ¶ 15,

17–19. Reyes wrote the case report describing Walker’s arrest. [285] ¶ 34. Daly did

not write a report and did not communicate with either Walker brother or with

Brown. [285] ¶ 35.

On March 15, 2006, a grand jury indicted the Walker brothers together on four

charges: possession of a controlled substance with intent to deliver within 1,000 feet

of a school, possession of a controlled substance with intent to deliver, delivery of a

controlled substance within 1,000 feet of a school, and delivery of a controlled

substance. [285] ¶¶ 36–38; [294] ¶ 16. The indictment only charged the brothers with

possessing and delivering cocaine, not marijuana. [278-16] at 1–6. Russell pleaded

guilty to possession of cocaine with intent to deliver and possession within 1,000 feet

of a school. [285] ¶ 38. In the same indictment, the grand jury charged Brown with,

and he later pleaded guilty to, possession of a controlled substance, based on the

baggie of crack cocaine found on him in the alley. [285] ¶¶ 39–40. He was sentenced

to two years of mental-health probation, and admitted that he committed that crime.

[285] ¶ 40.

Walker opted for a trial and chose to represent himself. [285] ¶ 60. In April

2006, in preparation for Walker’s trial, an Assistant State’s Attorney requested that

an investigator photograph the alley, measure to find out if any drug sale occurred

within 1,000 feet of a school, and see if there was a camera in the alley. [285] ¶ 42.

Finnelly was assigned to that request. [285] ¶ 43; [294] ¶ 22. Walker asked the trial

court to appoint him his own defense investigator to investigate whether there was a

camera in the alley, but the court denied his request. [285] ¶ 83; [294] ¶ 21.

Twice, once in late April and once in early May, Finnelly took pictures of the

alley. [285] ¶¶ 43–46; [294] ¶ 22. He walked north and south through the alley, but

focused on the back of the JJ Peppers because that’s where he thought the drug deal

had occurred. [285] ¶ 44; [278-3] at 48:7–8, 57:2–7, 78:3–5, 82:2:11. Finnelly looked

for a camera, but says he did not see one in the alley. [285] ¶¶ 45–46.

Whether Finnelly saw a camera is important. If he did not see one, then

Walker’s case against him falls apart because the gravamen of the claim is that

Finnelly concealed a camera he knew was there. And if Finnelly’s testimony is

undisputed, then no jury could find that he violated Walker’s rights. Walker tries to

dispute Finnelly’s testimony but does not follow our court’s procedures to do so. He

cites to his own statement of facts, rather than evidence in the record. [285] ¶ 46; see

N.D. Ill. L.R. 56.1(e)(3). Worse, he cites to additional facts 69, 70, 71, and 74 to

controvert the statement. [285] ¶¶ 45–47. Those facts don’t exist—Walker’s

statement of additional facts ends at fact 46. [294]. District courts are entitled to

“require strict compliance with local summary-judgment rules.” McCurry v. Kenco

Logistics Servs., LLC, 942 F.3d 783, 790 (7th Cir. 2019). Courts are not required to

scour the record looking for factual disputes. I could deem Finnelly’s statement

undisputed and end the case against him.

Walker’s failure to follow the rules is surprising because there is evidence in

the record from which a jury could find that Finnelly saw the camera. It is undisputed

that Finnelly went to the alley twice and walked up and down looking for a camera.

There is evidence that the camera was there. [285] ¶ 43–46, 89; [294] ¶ 32; [286-8];

[286-9]; [278-3] at 48:7–8, 57:2–7, 78:3–5, 82:2:11.4 Taken together, there’s sufficient

circumstantial evidence from which a jury could discredit Finnelly’s testimony and

instead infer that Finnelly must have seen the camera. Of course, a jury could also

credit Finnelly’s testimony. There is corroborating evidence in the record: Walker’s

posttrial investigator didn’t see the camera and neither did his brother. [285] ¶¶ 51,

80. Because the record reveals a factual issue over what Finnelly saw, I treat

defendants’ asserted fact as disputed notwithstanding Walker’s failure to comply

with the local rule. See Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 957

(7th Cir. 2021) (district courts have discretion to strictly apply local rules or “overlook

any transgression” (quoting Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir.

1995))).

At trial, Finnelly, Reyes, Flatley, and White testified. [285] ¶¶ 62–63. Finnelly

testified that he took photographs of the alley on two separate occasions. [285] ¶ 63.

Finnelly took seven photographs that were admitted into evidence; five of them

depicted the alley. [285] ¶¶ 64–65. The pictures showed the alley behind JJ Peppers,

the back of JJ Peppers, a view of the alley facing southbound, a phone pole in the

alley with wires, and the side of a building with cables in the alley facing southbound.

[285] ¶ 66. None of the photos showed a camera. [285] ¶ 66. When the prosecutor

asked if the photos truly and accurately depicted “the way the scene appeared and

4 The parties dispute whether there was a video camera in the alley in February 2006.

Defendants concede that there was a camera attached to the Lawrence House at some point,

but say the camera wasn’t there in 2006, based on testimony from Finnelly and Walker’s

posttrial investigator. [285] ¶ 58; [294] ¶ 12. The parties also dispute whether the camera

was capable of recording, but that dispute is immaterial—regardless of the camera’s

capability, there’s no evidence that Walker’s arrest was recorded.

the walls of the alley,” Finnelly answered yes. [285] ¶ 67; [278-22] at 12. On cross-

examination, Finnelly again testified that there was no camera in the alley. [278-22]

at 14, 18. Walker pressed Finnelly on why he had only taken close-up shots of the

building on one side of the alley, and Finnelly responded, “Because there’s no

cameras.” [278-22] at 18.

While cross-examining Reyes, Walker stated that a camera at the scene would

prove his innocence, and asked Reyes four times if he knew about the camera on the

Lawrence House. [285] ¶¶ 68–69. Reyes said he was not aware of a camera. [285]

¶ 69. Walker also cross-examined Flatley, and asked him if there was a camera in the

alley; Flatley said he didn’t think so. [285] ¶ 70. Walker didn’t ask White about the

camera. [285] ¶ 71. An Illinois State Police forensic scientist also testified; he

identified the drugs the state introduced as cocaine. [285] ¶ 72.5

Walker didn’t present evidence on his behalf. [285] ¶ 73. During closing

argument, he argued that the officers had fabricated evidence against him, and that

the arrest had been caught on the camera, which Finnelly had refused to photograph.

[285] ¶ 76; [294] ¶ 25. During the state’s closing argument, the ASA argued that there

was “absolutely no evidence” that a camera existed in the alley, based on “[w]itness

after witness after witness” telling the jury there was no camera, and the pictures of

5 The state introduced four exhibits containing cocaine at the trial against Walker: the packet

of cocaine Flatley recovered from Dewey Brown; two packages from the passenger seat of the

car; the 19 bags that Walker allegedly tossed out the window; and two chunks of cocaine

found in Walker’s sock. [278-27] at 22–23, 26. Flatley inventoried all four exhibits, and he

identified them at trial. [278-27] at 22–23, 26. The forensic scientist identified the four

exhibits and testified that they had tested positive for cocaine. See [278-29]. White also

identified the packets of cocaine he had recovered from the passenger seat of Walker’s car at

trial. [278-15] at 12, 15–16.

the alley. [294] ¶ 27. She added, “If there was a camera, do you think this defendant

and his brother would be stupid enough to deal drugs in front of it? Come on. Don’t

you think that they would pick another alley? Get real.” [294] ¶ 27. Walker was

convicted of possession of a controlled substance with intent to deliver within 1,000

feet of a school, and possession with intent to deliver more than five grams. [285]

¶¶ 5, 77.

Walker received a court-appointed public defender for posttrial motions and

sentencing. [285] ¶ 79. His lawyer sent an investigator to the alley to examine it for

a camera. [285] ¶ 79. She looked for a camera at the mouth of the alley by the

Lawrence House, but didn’t see one. [285] ¶ 80. The trial judge sentenced Walker to

22 years in state prison. [285] ¶ 78.

On appeal, Walker argued that the trial court erred when it refused his request

for an investigator. [285] ¶ 83. The appellate court affirmed the conviction, reasoning

that the camera would only have been crucial to Walker’s case if Walker’s arrest had

been recorded, the footage was preserved, and the footage contradicted the officers’

account. [285] ¶ 84.

In 2010, an investigator with the public defender’s office obtained two

affidavits from employees of the Lawrence House. [285] ¶ 89; [294] ¶ 32; [286-8]; [286-

9]; [278-33] at 11; [278-25] at 41:18–43:4. The employees affirmed that, in February

2006, there was a closed-circuit camera at the mouth of the alley providing live

footage to a monitor at the front desk of the Lawrence House. [294] ¶¶ 12–14; [286-

8]; [286-9].

In 2015, Walker filed his second postconviction petition and attached the two

2010 affidavits from the Lawrence House employees. [285] ¶ 86; [294] ¶ 32.6 In his

petition, Walker argued that Finnelly and the officers had perjured themselves at

trial when they denied there was a camera in the alley. [285] ¶ 89; [294] ¶ 32.

The State’s Attorney’s Office reopened and investigated Walker’s case. [285]

¶ 90. The owner of the Lawrence House confirmed that there had been a camera on

the back of the building in 2006. [285] ¶ 91. In March 2016, the state moved to vacate

Walker’s conviction and sentence and nolle pros (abandon) the case. [285] ¶¶ 91–92;

[294] ¶ 33. The state asserted that the pictures had depicted a different part of the

alley than where Walker said the camera was, and that the appellate court had based

its holding about denying Walker an investigator in part on the trial evidence that no

camera existed. [285] ¶ 92. The judge who presided over Walker’s trial granted the

motion to vacate, noting that the officers testifying at trial had sworn to tell the truth,

but had testified to something untrue. [294] ¶ 34. She added that, “everybody in the

court system was relying on the information and the photographs that were sworn to

as truth.” [294] ¶ 34.7 Walker served almost 11 years of the 22-year sentence. [285]

¶ 93.

6 Defendants object to Walker’s postconviction petition as hearsay, but defendants offered the

fact that Walker had filed an amended postconviction petition in their own statement of facts,

and attached the petition as an exhibit. See [285] ¶ 86. The fact is therefore undisputed and

it’s admitted.

7 The judge’s comments are admitted for purposes of summary judgment over defendants’

objection, not for their truth or for the judge’s assessment of the officers’ credibility, but for

the limited purpose of ascertaining whether Walker’s conviction was terminated in a manner

indicative of his innocence. See, e.g., Washington v. Summerville, 127 F.3d 552, 558 (7th Cir.

In 2016, Walker filed a petition for a certificate of innocence under 735 ILCS

§ 5/2-702. At the hearing, the State’s Attorney’s Office took no position on Walker’s

guilt or innocence. [294-6] at 5. The ASA asserted that vacating the conviction was

the “right thing to do” and a “fair resolution of the matter” because Walker had not

been able to present his defense as trial. [294] ¶ 41; [294-6] at 4. The judge said that

he was struggling with whether Walker had met his burden. [294-6] at 9. The judge

found that, based on Walker’s “insistence that he’s innocent,” the officers “either

testifying mistakenly or testifying falsely on purpose” about the camera “inure[d] to

Mr. Walker’s benefit.” [294-6] at 10. He entered an order granting Walker a certificate

of innocence. [294] ¶ 42.

CPD officers typically didn’t communicate with the State’s Attorney’s Office

about investigations; once the officers processed an arrest and gave it to the State’s

Attorney’s Office, it was out of the officers’ hands and the officers were not involved

from that point on. [285] ¶ 48.8 The officers and Finnelly have never spoken to each

other, including about the investigation of Walker’s case. [285] ¶¶ 4, 50.9

1997) (considering “state court transcripts” on summary judgment in assessing whether

plaintiff’s case was nolle prossed in a manner indicative of innocence).

8 The fact is admitted over Walker’s objection. He asserts that Finnelly would have known

from the ASA’s investigator report form which officers were involved in the case. But that’s

not responsive to the asserted fact—Finnelly’s knowledge of which officers were involved in

the arrest has nothing to do with whether the officers participated in the investigation once

they handed it off to the State’s Attorney’s Office.

9 Walker denies this fact because Finnelly was a CPD officer before joining the State’s

Attorney’s Office. [285] ¶ 4. Walker’s fact is unresponsive to defendants’ asserted fact, and

doesn’t refute the defendants’ testimony that none of the officers had ever met Finnelly. The

fact is admitted.

Walker sues White, Reyes, Flatley, Daly, Baeza, Gaynor, Finnelly, the City of

Chicago, Cook County, and unidentified Chicago police officers. He brings seven

claims against the individual defendants: evidence fabrication under the Fourteenth

Amendment for planting the drugs and fabricating photographs of the alley (count I);

failure to intervene (count II); conspiracy under 42 U.S.C. § 1983 (count III); unlawful

detention in violation of the Fourth Amendment (count IV); malicious prosecution

(count V); state-law conspiracy (count VI); and intentional infliction of emotional

distress (count VII). Finnelly is not named in the failure-to-intervene claim.10 Walker

also brings claims of state-law respondeat superior against the City (count VIII);

indemnification against the City and Cook County (count IX); and a Monell claim

against the City. [285] ¶ 94. The Monell claim was bifurcated for discovery. [98].

Finnelly and Cook County move for summary judgment on all claims against

them. The officers and the City move for partial summary judgment on the fabrication

claim as it pertains to the photographs—not the allegedly planted drugs—as to all

defendants, and to the drug-fabrication claim as to Daly, Baeza, and Gaynor; the

failure-to-intervene claim as to Daly, Gaynor, and Baeza; the Fourth Amendment,

malicious-prosecution, and conspiracy claims as to all defendants; the intentional

infliction of emotional distress claim as to White, Daly, Baeza, and Gaynor, and the

10 To the extent Walker argues in his brief that the defendants committed a Brady violation,

that claim has been dismissed. [99].

derivative claims to the extent summary judgment is granted on the underlying

claims.11

III. Analysis

A. Fabrication of Evidence

Using false evidence to convict someone at trial deprives that person of his due-

process right to a fair trial under the Fourteenth Amendment. Patrick v. City of

Chicago, 974 F.3d 824, 834–35 (7th Cir. 2020); Coleman v. City of Peoria, 925 F.3d

336, 344 (7th Cir. 2019). The “essence” of a due-process fabrication claim is that “the

accused was convicted and imprisoned based on knowingly falsified evidence,

violating his right to a fair trial and thus depriving him of liberty without due

process.” Patrick, 974 F.3d at 835.

To establish this kind of due-process violation, a plaintiff must show that the

defendants created evidence that they knew to be false. Anderson v. City of Rockford,

932 F.3d 494, 510 (7th Cir. 2019); Petty v. City of Chicago, 754 F.3d 416, 423 (7th Cir.

2014). Further, the plaintiff must show that the evidence was used in some way to

deprive him of his liberty. Anderson, 932 F.3d at 510.

To be liable for any claim under § 1983, a defendant must be “personally

responsible” for the alleged deprivation of the plaintiff’s constitutional rights.

Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018); Perez v. Fenoglio, 792 F.3d 768,

781 (7th Cir. 2015). No reasonable jury could find that any of the CPD officers

11 The city defendants also move for summary judgment against any unnamed Chicago police

officers, and Walker agrees. [284] at 41. All unnamed officers are dismissed as defendants.

participated in creating the photographs. Walker identifies no evidence that they

collaborated with Finnelly before he went to the alley. The officers and Finnelly didn’t

know each other and had never spoken at all, let alone about Walker’s case. Once the

officers handed the case over to the State’s Attorney’s Office, the officers weren’t

involved in the case and would have had no occasion to talk to Finnelly. And although

two officers testified that they didn’t notice a camera at trial, witnesses are immune

from suit under § 1983 solely for their trial testimony. Rehberg v. Paulk, 566 U.S.

356, 367 (2012) (“[A] trial witness has absolute immunity with respect to any claim

based on the witness’ testimony.”); Avery v. City of Milwaukee, 847 F.3d 433, 443 (7th

Cir. 2017) (“trial testimony, standing alone” could not subject officers to damages

liability). This rule applies equally to law-enforcement witnesses. Rehberg, 566 U.S.

at 369. Since the officers cannot be liable for their testimony alone, and no evidence

suggests they were involved in creating the photographs, summary judgment is

granted to all CPD officers on the claim of fabricating the photographs.

Turning to Finnelly’s liability, there is a dispute of fact about whether a camera

existed in the alley in February 2006. Neither Finnelly nor a defense investigator saw

one in 2006. A jury could credit that testimony. But two Lawrence House employees

signed affidavits in 2010 verifying that a camera had been in the alley in February

2006. The State’s Attorney’s Office reinvestigated the case years later, confirming

with the owner of the Lawrence House that the camera had been there. A reasonable

jury could find that a camera existed in 2006.

There is a genuine dispute about whether the photos were fabricated.

Fabricated testimony is testimony that is “made up; it is invariably false.” Fields v.

Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014). Courts have drawn a line between

evidence that was obtained dishonestly (e.g., paying witnesses for testimony or

coaxing a reluctant witness) and evidence that is fully fabricated. That’s because

evidence collected by coercive techniques isn’t necessarily untrue. Coleman, 925 F.3d

at 346. For Walker to win on his fabricated-evidence claim, he must show that the

evidence was actually untrue.

The photos themselves weren’t doctored or altered; there’s no dispute that they

accurately displayed parts of the alley. A jury might find that the photos spoke for

themselves—five photos couldn’t reasonably be expected to display every detail of a

multi-block alley, and anyone would know that if Finnelly had been standing in a

different spot, a different part of the alley would have appeared in the photographs.

A photo of one wall of the alley obviously only shows that wall. The probative value

of the photographs depended on the scope of the area they represented. That they

were incomplete or even strategically selective doesn’t mean they were made up.

But a jury could also find that the photos, though not altered, were taken and

presented in such a misleading way as to be fabricated. As noted, witnesses at a

criminal trial are immune from suit for their testimony alone. Avery, 847 F.3d at 441.

But “virtually any item of evidence introduced at trial must be authenticated by oral

testimony.” Id. The due-process violation is not complete until the officer

authenticates and introduces the fabricated evidence at trial. Id. So although an

officer is immune from liability for his testimony alone, he is not immune from

testimony that repeats or authenticates the content of the fabricated evidence. Id.

At trial, Finnelly described photographing the alley “from the south to the

north and from the north to the south.” [278-22] at 6–7. When the prosecutor asked

if the photos accurately depicted “the way the scene appeared and the walls of the

alley,” Finnelly answered yes. [278-22] at 12. In the course of laying foundation for

Finnelly’s photos, the prosecutor asked him three times if he saw a camera in the

alley while photographing it; each time, Finnelly said no. [278-22] at 7, 8, 13. So the

prosecution introduced the photographs as a fair and accurate representation of the

alley in full, without a camera. A reasonable jury could find the photos to be such a

distortion of the truth that they were effectively false. They were a device used to

convey a false statement: that there was no camera in the alley. It’s rare, but not

unprecedented, to treat evidence containing egregious omissions as fabricated. For

example, where a police report omitted “the most important details,” the court of

appeals treated that report the same way it treated other fabricated evidence. Hurt

v. Wise, 880 F.3d 831, 837 (7th Cir. 2018), overruled on other grounds by Lewis v. City

of Chicago, 914 F.3d 472 (7th Cir. 2019); see also Hyung Seok Koh v. Graf, 307

F.Supp.3d 827, 858 (N.D. Ill. 2018) (“there must be some point where omissions

become egregious enough” to render an item of evidence “effectively false”). A jury

would not be required to find that the photos amounted to a false presentation, but

there are enough disputes about the factual context to preclude judgment as a matter

of law on the issue of falsity.

There’s also a genuine dispute about whether Finnelly knowingly created false

evidence. A jury could credit Finnelly’s assertion that he looked for a camera and

didn’t see one, and attribute it to a good-faith oversight. Walker’s own investigator

didn’t find the camera, suggesting it may not have been as obviously visible in 2006

as Walker suggests. Walker’s brother didn’t notice a camera either. There’s also

evidence that Finnelly had the wrong information about where the drug deal

occurred, so he looked for the camera behind the JJ Peppers instead of attached to

the hotel. On this record, Finnelly had little motive to frame Walker and never

collaborated with the police officers. And the record is unclear about whether Finnelly

knew that it was Walker, not the state, who would benefit from his photographing

the camera. See [285] ¶¶ 43–44; [278-3] at 34:15–21, 42:7–46:7 (Finnelly initially said

he didn’t know about Walker’s claim that a camera would exonerate him, then said

he couldn’t remember if he had talked to anyone from the State’s Attorney’s Office or

CPD about Walker’s claim). If Finnelly thought the presence of a camera would help

the state’s case, not Walker’s, he couldn’t have knowingly created false evidence to

injure Walker.

On the other hand, Finnelly knew that part of his assignment was to look for

a camera, and he went to the alley two separate times to do so. Even if he had the

wrong address where the deal occurred, Finnelly repeatedly testified that he walked

up and down the alley looking for a camera. A jury could find that he couldn’t possibly

have missed it, so its omission from his photographs must have been intentional. And

a reasonable factfinder might find it too convenient of a coincidence that although

Finnelly took multiple photos of the alley from different angles—five were introduced

at trial—not one even inadvertently captured the one thing that Walker insisted

would help his case. Given the ambiguity in the record about what Finnelly knew and

when, it will be up to the jury to assess Finnelly’s credibility and decide whether he

knowingly created inaccurate photographs or simply made a mistake.

Walker must also prove a “reasonable likelihood” that the fabricated evidence

“affected the judgment of the jury.” Patrick, 974 F.3d at 835. Walker is wrong that he

can establish a due-process violation without proving that the evidence prejudiced

him in some way—the evidence must have caused the deprivation of liberty. If the

fabricated evidence was “immaterial, it cannot be said to have caused an

unconstitutional conviction and deprivation of liberty.” Id.

The prosecution called five witnesses: Reyes, Flatley, White, Finnelly, and the

forensic scientist who identified the drug evidence. It introduced four cocaine exhibits

and seven photographs, five of which depicted the alley. The bulk of the prosecution’s

case was the physical evidence and the officers’ testimony that they saw Brown and

Russell exchange cocaine for money, saw Walker try to discard 19 packets of cocaine,

and recovered cocaine from the car, Walker’s sock, the ground, and Brown. The

prosecution relied on the photographs to set the scene, asking Reyes to mark up one

of the photographs—Reyes identified the locations of Walker’s car in the alley, the

officers’ car, where the officers saw Brown, and where Walker’s drugs landed after he

tossed them. [278-13] at 28–30. The ASA didn’t show any of the photographs to White

or Flatley. [278-15]; [278-28]. The prosecutor also used the photos to establish that

there was no camera in the alley. While laying the foundation for the photos, she

asked Finnelly three times whether he saw a camera while photographing the alley.

[278-22] at 7, 8, 13. On redirect of Reyes, the ASA showed him each photo of the alley,

and asked whether each photo contained a camera. [278-13] at 60–63. And in her

closing argument, the ASA referenced the photographs to emphasize that there was

no camera in the alley: “You have pictures of the alley, including closeups that show

you there is no camera.” [286-11] at 9.

There’s a genuine dispute about whether the photographs’ omission of the

camera could have affected the verdict in Walker’s criminal trial. The photographs

were the only evidence the prosecution gave the jury to visualize what occurred. The

prosecution relied on the photographs to advance its theory that there was no camera

in the alley and to corroborate testimony about the absence of a camera. And they

were uncontradicted—Walker was denied an investigator before trial and didn’t

present his own evidence. Two witnesses, Reyes and Finnelly, testified that the

photographs showed no camera. The ASA referenced the photos in her closing

argument to emphasize that there was no camera in the alley. Walker tried to make

the trial about the camera; he cross-examined three witnesses about it and mentioned

in his closing argument that his arrest was “caught on camera.” [278-31] at 5–6.

Defendants make much of the fact that the camera didn’t record, so without footage,

the photographs of the alley couldn’t have influenced the verdict. The question isn’t

whether a recording would have affected the verdict, but whether there’s a reasonable

likelihood that the photographs themselves (and the arguably false impression they

conveyed) did. Given the prosecution’s use of the photographs to prove that there was

no camera in the alley, there is evidence from which Walker can argue that the

pictures were material.

A reasonable jury could also find that the other evidence against Walker was

overwhelming. The presence or absence of a camera went to Walker’s theory of the

case, not the prosecutor’s. The prosecution’s case relied on the officers’ testimony and

the physical evidence proving that Walker possessed and distributed drugs. The three

officers testified consistently, and the drugs introduced into evidence corroborated

their testimony. The photographs may have played only a minor, if any, role in that

process. The ASA didn’t ask either White or Flatley—key prosecution witnesses—

about the photographs or use them to supplement their testimony. And the ASA only

mentioned the photographs once in her closing argument. Walker’s focus on the

camera was just a red herring and the photos’ omission of a camera couldn’t have

made a difference—or so a jury might find.

The Cook County defendants insist that the photographs couldn’t have been a

proximate cause of Walker’s injury because Finnelly thought that he was looking for

a camera to help the prosecution, not to help Walker, so Walker’s injury wasn’t

foreseeable. See Whitlock v. Brueggemann, 682 F.3d 567, 582 (7th Cir. 2012) (the

injury from fabricated evidence should be “of a type that a reasonable person would

see as a likely result of his or her conduct” (quoting Ciomber v. Cooperative Plus, Inc.,

527 F.3d 635, 640 n.1 (7th Cir. 2008))). But there’s a dispute about what Finnelly

knew, as discussed. In any event, Finnelly’s subjective belief doesn’t mean Walker’s

injury wasn’t reasonably foreseeable. Under an objective proximate-cause analysis,

an investigator sent to photograph a camera might reasonably foresee that

fabricating that camera’s absence would affect the fairness of the trial.

Walker has a weak case against Finnelly because there is evidence that

Finnelly did not knowingly create false photographs that caused Walker’s loss of

liberty. But weak cases survive motions for summary judgment, so Finnelly’s motion

on the evidence-fabrication claim is denied.

B. Fourth Amendment

Defendants have preserved their argument that Walker’s Fourth Amendment

claim is untimely, but I reject it. “[A] Fourth Amendment claim for wrongful pretrial

detention accrues when the detention ceases.” Lewis v. City of Chicago, 914 F.3d 472,

478 (7th Cir. 2019). And if the pretrial-detention claim implicates the validity of the

underlying conviction, as it does here, then the claim doesn’t accrue until the plaintiff

receives a favorable termination of his case. Savory v. Cannon, 947 F.3d 409, 430–31

(2020). Walker’s conviction was vacated and he was released from custody in March

2016. He filed his complaint a few months later, on July 7, 2016, well within the two-

year time limit. See Lewis, 914 F.3d at 478 (statute of limitations for § 1983 claims in

Illinois is two years).

The Fourth Amendment prohibits unreasonable searches and seizures. Arrest

and pretrial detention are both seizures and are justified only on probable cause.

Young v. City of Chicago, 987 F.3d 641 (7th Cir. 2021); Patrick, 974 F.3d at 834.

Probable cause exists if the facts and circumstances within the arresting officer’s

knowledge would allow a prudent person to believe that the suspect had committed

or was committing an offense. Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir. 2019).

Probable cause is assessed objectively, based on the conclusions that the arresting

officer reasonably might have drawn from the information known to him. Young, 987

F.3d at 641. Generally, probable cause is an “absolute defense” to a claim of wrongful

arrest. Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015).

There’s a factual dispute about whether the officers saw Russell sell drugs to

Brown, saw Walker throw cocaine out the window, and found cocaine in Walker’s sock

and car. But Walker doesn’t dispute that there was marijuana in plain view in the

car’s ashtray. He makes no attempt to grapple with that fact in his response brief.

Because there was undisputed evidence that a crime had occurred in plain view, the

officers had probable cause to arrest Walker. No reasonable jury could find otherwise.

See Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007) (“[P]robable

cause to believe that a person has committed any crime will preclude a false arrest

claim, even if the person was arrested on additional or different charges for which

there was no probable cause.”). Summary judgment is granted to all defendants on

the false-arrest claim.12

Defendants’ argument, however, collapses the distinction between false arrest

and wrongful pretrial detention. The Supreme Court has recognized a difference

between “pre-legal-process[] arrest” and “post-legal process[] pretrial detention.”

12 Finnelly was also not involved in Walker’s arrest or the decision to detain him. He joined

the case in April, two months after Walker’s arrest and after Walker’s indictment. So

summary judgment is granted to Finnelly on all Fourth Amendment claims.

Manuel v. City of Joliet, 137 S. Ct. 911, 919 (2017). The Fourth Amendment governs

both. Id.; see also Kuri v. City of Chicago, 2021 WL 926288, at *2 (7th Cir. Mar. 11,

2021) (if the detention is not supported by probable cause, the Fourth Amendment

provides a remedy). Unlawful pretrial detention occurs “when the police hold someone

without any reason before the formal onset of a criminal proceeding,” and also when

“legal process itself goes wrong—when, for example, a judge’s probable-cause

determination is predicated solely on a police officer’s false statements.” Manuel, 137

S. Ct. at 919.

Walker claims that he was both unlawfully arrested and unlawfully held before

trial. Although the marijuana cigarette precludes his false-arrest claim, the record is

unclear on whether Walker was detained on that basis as well. The Local Rule 56.1

statements of fact don’t mention a judicial probable-cause determination, initial

appearance, arraignment, detention hearing, or the like. Nor is there mention of

which charges were written up in a criminal complaint. No one disputes that Walker

was held pretrial. He testified at his deposition that he was transferred to county jail

after the officers processed him at the precinct. [278-11] at 82:17–83:3. He went to

bond court right after the transfer, and arraignment court three weeks later. [278-

11] at 83:22–84:10, 90:5–7. But the earliest judicial proceeding the parties included

as an exhibit in the record is dated April 2006, after Walker was indicted. [278-1]. He

was indicted only on the cocaine offenses. And there’s reason to think he was never

charged with the marijuana in the car: in the defendants’ Local Rule 56.1 statement,

they cite only to Walker’s deposition to support the fact that there was marijuana in

the car. [285] ¶ 29. If a judge based the probable-cause determination solely on the

cocaine offenses, a jury could find Reyes, White, and Flatley liable for unlawful

pretrial detention. In other words, “legal process itself” may have been compromised

if Walker’s detention was based “solely on a police officer’s false statements.” Manuel,

137 S. Ct. at 918.

Without evidence showing that Walker was detained on the basis of the

marijuana in his car, the officers are not entitled to judgment as a matter of law on

the pretrial-detention claim—the dispute over the drug evidence creates a material

dispute over the wrongfulness of Walker’s detention. Summary judgment is granted

to all defendants on the false-arrest claim and to all defendants but Flatley, Reyes,

and White on the pretrial-detention claim.

C. Malicious Prosecution

To succeed on a malicious-prosecution claim under Illinois law, a plaintiff must

prove: (1) the defendant commenced an original judicial proceeding; (2) the

proceeding was terminated in the plaintiff’s favor; (3) the absence of probable cause;

(4) malice; and (5) damages. Lund v. City of Rockford, 956 F.3d 938, 949 (7th Cir.

2020); Beaman v. Freesmeyer, 2019 IL 122654, ¶ 26. Only the first and second

elements are at issue here.13

Although prosecutors decide whether to bring a case, a police officer or

investigator may be liable for malicious prosecution if he “played a significant role in

13 Walker appears to argue that his malicious-prosecution claim is grounded in the

Fourteenth Amendment, but state law governs the claim. There is “no such thing as a

constitutional right not to be prosecuted without probable cause.” Anderson, 932 F.3d at 512

(quoting Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018))).

causing the prosecution of the plaintiff.” Beaman, 2019 IL 122654, ¶ 43 (quoting Frye

v. O’Neill, 166 Ill.App.3d 963, 975 (4th Dist. 1988)). Where the claim is against the

arresting officer, an indictment typically breaks the chain of causation, so the

plaintiff must show some “postarrest action which influenced the prosecutor’s

decision to indict.” Colbert v. City of Chicago, 851 F.3d 649, 655 (7th Cir. 2017)

(quoting Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 902 (7th

Cir. 2001)). For example, a law-enforcement officer might be liable if he knowingly

provides misinformation to the prosecutor, conceals exculpatory information, engages

in wrongful or bad-faith conduct instrumental in the initiation of the prosecution, or

participates in the case so actively as to amount to advice and cooperation. Beaman,

2019 IL 122654, ¶¶ 44–45. The defendant’s conduct must have been both a cause in

fact and a proximate cause “of the commencement or continuation of the original

criminal proceedings.” Id. ¶ 46.

Finnelly can’t be liable for malicious prosecution. Walker was indicted on

March 15, and Finnelly didn’t become involved in the case until April, when he was

assigned to take the pictures. Nothing in the record suggests that Finnelly informally

advised the prosecutor before that, or in any way influenced the prosecutor’s decision

to commence or continue criminal proceedings. Walker’s prosecution was in motion

well before Finnelly joined the case. In any event, Finnelly’s photos alone were not

inculpatory and couldn’t have been a driving force behind the decision to prosecute

Walker. To the extent Walker argues that Finnelly helped obtain his conviction,

malicious-prosecution claims against law-enforcement officers are concerned with

those officers who were active “in causing the prosecution,” not the ultimate

conviction. Beaman, 2019 IL 122654, ¶ 44 (quoting 52 Am. Jur. 2d Malicious

Prosecution § 88 (2018)).

The city defendants argue that White, Daly, Baeza, and Gaynor likewise

played insignificant roles in initiating Walker’s prosecution. As discussed below,

Daly, Baeza, and Gaynor are entitled to summary judgment on the malicious-

prosecution claim. But a jury could find that White, Flatley, and Reyes were equally

involved in initiating the prosecution. The city defendants appear to take Walker’s

argument to be that only the cocaine found in his sock was planted. But I read

Walker’s claim more broadly—that all of the drug evidence used against him was

fabricated, including the cocaine found on the passenger seat of the car. See [285]

¶¶ 24, 26 (disputing that White found cocaine in Walker’s car). True, White’s focus at

the moment of arrest was on Russell Walker, and it was Reyes who wrote the case

report and Flatley who inventoried all the drug evidence. But White gathered and

provided evidence that was used against Walker. It was White who purportedly saw

Russell talking to Brown in the parking lot of JJ Peppers and White who recovered

cocaine from the front passenger seat of the car. Both White and Reyes say they saw

the hand-to-hand drug deal. [285] ¶¶ 11, 15, 24. Walker and his brother were indicted

together, on the same four charges, for distributing and possessing with intent to

distribute the same quantities of cocaine. [278-16] at 1–7. Walker was charged not

just with possessing cocaine, but for distributing it as well. So it’s reasonable to infer

that White’s witnessing the sale and recovering some of the cocaine contributed to

the prosecutor’s decision to charge Walker. Though the record isn’t clear about which

officers spoke to the prosecutor before she decided to indict the Walker brothers, an

officer may be liable even if he did not “actively deceive prosecutors.” Beaman, 2019

IL 122654, ¶ 43; see also Frye v. O’Neill, 166 Ill.App.3d 963, 975 (4th Dist. 1988)

(“Liability for malicious criminal prosecution is not confined to situations where the

defendant signed a complaint against the plaintiff.”). Rather, liability extends to “all

persons who played a significant role in causing the prosecution of the plaintiff,”

Beaman, 2019 IL 122654, ¶ 43 (quoting Frye, 166 Ill.App.3d at 975). If a jury found

that White planted the cocaine from the car and lied about seeing the drug deal, it

could find that he engaged in “bad-faith conduct instrumental in the initiation of the

prosecution.” Beaman, 2019 IL 122654, ¶¶ 44–45. Where White provided some of the

(allegedly false) evidence used against Walker, there’s a material dispute about his

role in initiating the prosecution.

A plaintiff bringing a malicious-prosecution claim must prove that the case was

terminated “for reasons that indicate his innocence.” Barnes v. City of Centralia, 943

F.3d 826, 833 (7th Cir. 2019) (quoting Filimoniuk v. Nilles, 2019 IL App (1st) 173198-

U, ¶ 28). Under Illinois law, a nolle prosequi order doesn’t dispose of a case on the

merits, but reverts it to the same condition that existed before the prosecution began.

Lund, 956 F.3d at 949. There are “many reasons” why a state’s attorney might nolle

pros a case, id., so a bare nolle pros order is not enough to show innocence without

“specific reasons for its entry.” Barnes, 943 F.3d at 833; see also Lund, 956 F.3d at

949. The case must be terminated “on the merits” rather than for “procedural or

technical reasons.” Shea v. Winnebago Cty. Sheriff’s Dep’t, 746 Fed. App’x 541, 549

(7th Cir. 2019) (quoting Cult Awareness Network v. Church of Scientology Int’l, 177

Ill.2d 267 (1997)). The “circumstances surrounding the entry of the nolle prosequi”

inform whether the plaintiff has met the favorable-termination element. Cult

Awareness Network, 177 Ill.2d at 279. A nolle pros order does not indicate innocence,

for example, if it was the product of an agreement or compromise with the accused,

or because it was impossible or impractical to retry him. Washington v. Summerville,

127 F.3d 552, 557 (7th Cir. 1997).

That Walker obtained a certificate of innocence is enough to create a factual

dispute about whether his case was terminated in a manner indicative of his

innocence. A state court judge found that he was innocent by a preponderance of the

evidence. See 735 ILCS § 5/2-702(g)(3). The certificate is not dispositive and has no

res judicata effect in federal court; it allows a wrongly convicted person to obtain relief

in the Illinois Court of Claims. Id. § 5/2-702(j); Patrick, 974 F.3d at 833. Though it

lacks preclusive effect, a certificate of innocence may be “directly relevant” at trial on

a malicious-prosecution claim to prove that the criminal proceeding was terminated

consistent with innocence. Patrick, 974 F.3d at 833.

The certificate is not inadmissible hearsay, because it is not offered for the

truth of an assertion of innocence, but for its existence as a circumstance under which

Walker’s conviction was vacated. The distinction is subtle, but any risk of prejudice

would be mitigated with “[w]ell-crafted jury instructions.” Id. For example, the court

of appeals pointed favorably to the jury instructions the district court gave in Harris

v. City of Chicago, 2018 WL 2183992, at *5 (N.D. Ill. May 11, 2018). Patrick, 974 F.3d

at 833. So too here, the jury would be told that the certificate was admitted for a

limited purpose.

Beyond the certificate, a jury might find that Walker’s case was terminated on

the merits—both the trial judge who vacated his conviction and the judge who

granted the certificate of innocence implied that the camera’s existence called into

question the veracity of the officers who provided drug evidence against Walker. On

the other hand, they both stopped short of adopting Walker’s assertion that the

officers framed him. And there’s evidence that Walker’s case was terminated to

remedy investigative and procedural errors before and during trial, not because

Walker was actually innocent of the underlying drug crimes. A jury would have to

draw inferences from the evidence to characterize the termination of Walker’s

prosecution. White, Reyes, and Flatley’s motion for summary judgment is denied.

D. Intentional Infliction of Emotional Distress

To prove intentional infliction of emotional distress under Illinois law, Walker

must prove that (1) defendants’ conduct was extreme and outrageous; (2) defendants

intended their conduct to inflict severe emotional distress, or knew that there was a

high probability that their conduct would inflict such distress; and (3) the conduct

caused severe emotional distress. Boston v. U.S. Steel Corp., 816 F.3d 455, 467 (7th

Cir. 2016); Bailey v. City of Chicago, 779 F.3d 689, 696–97 (7th Cir. 2015). The

conduct must be “so outrageous in character” and “so extreme in degree” as to “go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Schweihs v. Chase Home Fin., LLC, 2016 IL

120041, ¶ 51 (quoting Restatement (Second) of Torts § 46 cmt. D, at 73 (1965)).14

The city defendants don’t dispute that a jury could find Reyes and Flatley’s

alleged conduct extreme and outrageous. Framing someone for multiple felonies by

planting drugs on him and lying under oath at trial is outrageous conduct that a

civilized society would find utterly intolerable. Defendants focus their argument on

the other four officers. But as discussed above, White’s participation in the alleged

scheme is up for debate. Here too, defendants don’t persuasively distinguish White’s

involvement from Reyes and Flatley’s. Walker’s claim is that the officers planted all

of the drug evidence introduced against him at trial—including the cocaine White

says he found in the car. White provided evidence that he had seen a drug sale,

recovered packets of cocaine from the passenger seat of Walker’s car, and later

identified those packets as People’s Exhibit 14. [278-15] at 12, 15–16.15 If a jury

concluded that Reyes and Flatley fabricated drug evidence—thus committing

intentional infliction of emotional distress—it could reasonably find that White did,

too.

14 Defendants have preserved their argument that the intentional infliction of emotional

distress claim is untimely. [279] at 32; see [99] (rejecting defendant’s motion to dismiss claim

as untimely).

15 Illinois courts have applied the Briscoe immunity rule to liability for state-law torts, so the

officers would be immune based on their testimony alone. See Barnes v. Martin, 2014 IL App

(2d) 140095-U, ¶ 57; see also Nichols v. Fahrenkamp, 2019 IL 123990, ¶ 15. The outrageous

conduct would be the officers’ actions in the course of their investigation, plus their testimony

authenticating and introducing the fabricated evidence.

A jury could also find that Finnelly acted in an extreme or outrageous way by

intentionally creating misleading evidence, knowing that doing so would cause

extreme emotional distress. A jury could credit Finnelly’s testimony that he simply

missed the camera, as defendant’s own investigator did, or had bad information about

where he was supposed to look. But as discussed above, it could find that he

knowingly staged the photos to omit the camera. Whether it was an oversight or an

intentional omission is a credibility determination best left to the jury. And whether

it was Finnelly’s evidence that caused Walker’s injury is a disputed issue of fact.

Finnelly’s motion for summary judgment is denied.

E. Individual Defendants

The city defendants move for summary judgment on all of the § 1983 claims

against Daly, Gaynor, and Baeza because they did not personally participate in any

of the alleged constitutional violations. Walker makes no attempt to parse the actions

or liability of any of the individual defendants in his response brief, so any argument

on that front is waived. Delapaz v. Richardson, 634 F.3d 895, 900 (7th Cir. 2011). I

nevertheless address the defendants’ arguments in the interest of completeness.

No jury could find that Daly, Gaynor, and Baeza were personally involved in

either the Fourth Amendment or due-process violations, as required for liability

under § 1983. Gaynor and Baeza responded to the alley in response to Flatley’s radio

call about chasing Brown. By the time Gaynor and Baeza arrived, Brown and the

Walker brothers were already detained. Neither officer interacted with the Walker

brothers or with Brown in the alley or recovered any of the evidence later used against

Walker. They didn’t search him, didn’t write a case report, didn’t contribute to the

decision to detain him, and would have had no opportunity to fabricate evidence. So

neither Gaynor nor Baeza could have been personally involved in detaining Walker,

or in fabricating any dug evidence. Based on this record, their only involvement was

briefly responding to the alley.

Likewise, Daly’s role in the arrests and postarrest processing was minimal.

Daly was on patrol with White, Reyes, and Flatley. After the officers pulled into the

alley, Flatley chased Brown, and Daly returned to the patrol car to follow, but ended

up not needing to. While Flatley dealt with Brown, Reyes and White approached the

Walker brothers. Daly wasn’t involved in either Walker’s arrest or recovery of any

evidence. He was at the police station following the arrests, but never communicated

with Walker or his brother, did not conduct any custodial search, and did not write a

case report. He didn’t testify at trial. Walker hasn’t pointed to evidence from which a

jury could find that Daly personally participated in detaining Walker or fabricating

drug evidence against him.

For the same reasons, Walker hasn’t marshaled evidence from which a jury

could find that Daly, Gaynor, or Baeza played a significant role in initiating his

prosecution, or that they committed any extreme or outrageous conduct. So summary

judgment is granted to those three officers on the evidence-fabrication, Fourth

Amendment, malicious-prosecution, and intentional infliction of emotional distress

claims.

F. Conspiratorial Liability

Walker advances a number of claims to try to broaden the scope of the alleged

scheme beyond its primary participants, White, Reyes, and Flatley. These include

failure-to-intervene and federal and state conspiracy claims.

1. Federal Conspiracy

To prove a conspiracy under § 1983, Walker must prove that the defendants

reached an agreement to deprive him of his constitutional rights, and that a member

of the conspiracy took an overt act to deprive him of those rights. Daugherty v. Page,

906 F.3d 606, 612 (7th Cir. 2018). He must show an underlying constitutional

violation and demonstrate that the defendants agreed to inflict the constitutional

harm. Id. In the § 1983 context, conspiracy is not a separate claim from the

underlying constitutional violation—it is a way of proving that a defendant is legally

responsible for that violation. Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008)

(conspiracy is “not an independent basis of liability in § 1983 actions”).

Because conspiracies are often “carried out clandestinely,” direct evidence is

rarely available, and plaintiffs may rely on circumstantial evidence. Daugherty, 906

F.3d at 612 (quoting Beaman v. Freesmeyer, 776 F.3d 500, 511 (7th Cir. 2015)). A

government official is a coconspirator if he voluntarily participates in a “common

venture.” McCann v. Mangialardi, 337 F.3d 782, 789 (7th Cir. 2003) (quoting Jones

v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)). Under both federal and state

conspiracy law, the official need not have agreed on the details of the conspiratorial

scheme, but he must understand the “general objectives of the scheme,” accept them,

and agree, either explicitly or implicitly, to do his part to further them. Id. at 789–90

(quoting Jones, 856 F.2d at 992) (federal law); see Indep. Tr. Corp. v. Stewart Info.

Servs. Corp., 665 F.3d 930, 939 (7th Cir. 2012) (Illinois law).

No evidence supports Walker’s contention that the CPD officers conspired with

Finnelly to create misleading evidence about the camera in the alley. Finnelly worked

for a separate entity, the State’s Attorney’s Office, not the CPD. Typically, once the

arresting officers gave the case to the State’s Attorney’s Office, the officers’

involvement investigating the case ended. [285] ¶ 48. Finnelly didn’t join the case

until April 2006, well after the State’s Attorney’s Office took over from the CPD. The

officers and Finnelly say that they have never spoken to each other, and never talked

about the investigation of Walker’s case, [285] ¶¶ 4, 50, and Walker points to no

evidence from which a jury could find otherwise. That Finnelly worked in the Gang

Crimes Unit of CPD does not support an inference that he conspired with the officer-

defendants. Finnelly left the CPD for the State’s Attorney’s Office in 1993, years

before the other defendants even joined the CPD. [278-3] at 9:1–22. White joined the

CPD around 1995, Reyes was hired in 1998, Flatley and Daly joined in 1999, and

Baeza in 2000. [278-5] at 15:3; [278-6] at 11:20; [278-7] at 11:6–7; [278-8] at 10:11–

12; [278-9] at 8:18. Simply passing through the same CPD unit would have been

insufficient to show that the officers conspired with Finnelly, and the evidence of an

agreement is nonexistent here since the officers and Finnelly did not work for CPD

at the same time. Finally, as discussed, there’s no evidence that the officers were

involved in creating the photographs. So there’s no joint action or similar course of

conduct by Finnelly and the officers that would allow a jury to infer that there must

have been an agreement among them. Summary judgment is granted to Finnelly on

the conspiracy claim.

The evidence supports an inference that Flatley, Reyes, and White had an

agreement. If a jury found that the three of them fabricated the drug evidence, that

finding would necessarily imply they had an agreement to do so—it’s highly

improbable that three officers would independently decide to plant drugs on a suspect

without consulting each other first. See generally Geinosky v. City of Chicago, 675

F.3d 743, 749 (7th Cir. 2012) (reversing dismissal of conspiracy claim based on

harassment where it was “a challenge to imagine a scenario in which that harassment

would not have been the product of a conspiracy”). But Walker points to no evidence

that Daly, Gaynor, and Baeza were party to any agreement or involved in the scheme.

Gaynor and Baeza weren’t on patrol with the other officers, arrived on the scene after

the arrests had already been made, and weren’t involved in searching Walker or his

brother. Daly arguably had more of an opportunity to conspire with the other three

officers because he was in the patrol car with them initially. But Flatley, Reyes, and

White were the officers who recovered the drugs Walker was charged with possessing

and distributing. Daly wasn’t involved in arresting Walker or his brother, never spoke

to either of them, didn’t recover any drug evidence, didn’t search Walker at the station

or write up a case report, and didn’t testify at Walker’s trial. True, Daly doesn’t need

to be the one who acted in furtherance of the conspiracy to have been a part of it, so

long as some other party to the conspiracy committed an overt act. But there must be

some evidence that Daly understood the “general objectives of the scheme,” and

agreed to further those objectives. Jones, 856 F.2d at 992. Walker identifies no

evidence from which a jury could find that Daly was aware of a scheme to frame

Walker and that he agreed to help. Even if Daly knew about the alleged misconduct,

knowledge alone is typically insufficient to support the existence of an agreement

absent evidence that Daly expressly or tacitly agreed to participate in the scheme.

See Daugherty, 906 F.3d at 612. So summary judgment is granted to Gaynor, Baeza,

and Daly.

The point of civil conspiracy is to “spread[] the net of liability to additional

persons” for a substantive violation. Niehus v. Liberio, 973 F.2d 526, 531–32 (7th Cir.

1992). A jury could only find Reyes, White, and Flatley liable for conspiracy. Those

are the same three officers who will face substantive claims of evidence fabrication

and unlawful pretrial detention. So the conspiracy theory adds nothing to the case. It

doesn’t rope in another defendant or cover additional conduct, and Walker may only

recover once for the same injury. See Boothe v. Sherman, 66 F.Supp.3d 1069, 1077

(N.D. Ill. 2014) (if state actor defendants violated plaintiff’s rights, then the

conspiracy charge “adds nothing to the case,” as § 1983 plaintiffs “may recover only

once for each injury”); see also Gramenos v. Jewel Cos., 797 F.2d 432, 435 (7th Cir.

1986) (“If the arrest was constitutionally unreasonable, then the police are liable

under § 1983 without regard to the ‘conspiracy’, and if not, not.”). Put differently,

although claims for “alleged conspiracies between state actors are possible under

section 1983,” they generally “add nothing but needless complexity.” Ewell v. Toney,

853 F.3d 911, 917–18 (7th Cir. 2017); Scott v. City of Chicago, 619 Fed. App’x 548 (7th

Cir. 2015) (where all members of alleged conspiracy were state actors, “a conspiracy

claim ha[d] no role to play”). Because the conspiracy claim is redundant and

unnecessarily complicates the case, the jury will not be asked to find liability on a

separate § 1983 conspiracy.16

2. State Conspiracy

The elements of a state-law conspiracy are similar to federal-law conspiracy.

Walker must prove that two or more people agreed to participate in an unlawful act,

and that one of the parties performed a tortious act in furtherance of the agreement

16 Because the conspiracy theory against Flatley, Reyes, and White adds nothing to the case

and is not an independent cause of action on which the jury will return a verdict, there’s no

reason to resolve the officers’ argument that they are entitled to qualified immunity. In the

interest of completeness, I simply note that I don’t agree that qualified immunity applies

here. Qualified immunity protects government officials from liability for civil damages unless

their conduct violates a clearly established right. Henry v. Hulett, 969 F.3d 769, 785 (7th Cir.

2020). The right to be free from detention without probable cause and the right to not be tried

on fabricated evidence were clearly established in 2006. See Dominguez v. Hendley, 545 F.3d

585, 589 (7th Cir. 2008) (there was “no disputing” that fabricating evidence “violates clearly

established constitutional rights”); Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir.

2000) (“[I]t was clearly established that a citizen may not be detained by law enforcement

officials without probable cause.”). The officers’ argument is based on the unsettled

application of the intracorporate conspiracy doctrine to police officers from the same police

department under § 1983. In antitrust cases, the intracorporate conspiracy doctrine holds

that “an agreement between or among agents of the same legal entity, when the agents act

in their official capacities, is not an unlawful conspiracy.” Ziglar v. Abbasi, 137 S. Ct. 1843,

1867 (2017). The Court reasoned that because the law is unsettled on whether the doctrine

applies to conspiracies under § 1985(3), the defendants were entitled to qualified immunity.

137 S. Ct. at 1868–69. But § 1983 conspiracies are different. Section 1985(3) creates

substantive liability for a conspiracy, whereas conspiracy under § 1983 is a theory of

responsibility for an underlying constitutional violation. It would make little sense to

preclude liability for conspiracy when conspiracy itself is not a standalone violation for which

a defendant can be liable in the first place. In other words, the § 1983 conspiracy is not

unlawful, the constitutional tort is the unlawful act. So long as it is properly understood that

conspiratorial responsibility is simply a method of proof for an officer’s personal involvement

in a constitutional tort under § 1983 and so long as the underlying constitutional right is

clearly established, qualified immunity does not apply.

that caused an injury. Fritz v. Johnston, 209 Ill.2d 302, 317 (2004). Conspiracy is not

a separate tort in Illinois either; it is a means of establishing vicarious liability among

coconspirators for an underlying tort. Merrilees v. Merrilees, 2013 IL App (1st)

121897, ¶ 49. Like federal conspiracy, a plaintiff may prove state conspiracy with

circumstantial evidence. Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 66 (1994).

For the reasons just discussed, Walker hasn’t marshaled evidence from which

a jury could find that anyone other than White, Reyes, and Flatley agreed to commit

an underlying tort. And again, the function of a conspiracy claim “is to extend liability

in tort beyond the active wrongdoer to those who have merely planned, assisted or

encouraged the wrongdoer’s acts.” Adcock, 164 Ill.2d at 62. Walker’s state-law

conspiracy claim doesn’t add a different defendant. If a jury found Reyes, Flatley, and

White liable for malicious prosecution, there’s no need to rely on a conspiracy theory.

As in the federal context, Walker “may obtain only one recovery for an injury.” Dowd

& Dowd, Ltd. v. Gleason, 181 Ill.2d 460, 486 (1998). There is complete overlap

between the substantive and the conspiratorial conduct alleged. See Powell v. City of

Berwyn, 68 F.Supp.3d 929, 950 (N.D. Ill. 2014) (“Conspiracy alleging a tort as the

underlying wrongful act is actionable, as long as it includes additional defendants or

new facts not already pled in the underlying tort.” (quoting Real Colors, Inc. v. Patel,

974 F.Supp. 645, 651 (N.D. Ill. 1997))). Cf. Dowd, 181 Ill.2d at 486 (dismissal of

conspiracy claim as duplicative was premature where conspiracy allegations were

“not subsumed under another theory of recovery” and one defendant was named in

conspiracy claim but not elsewhere).

Walker may propose a jury instruction on conspiratorial liability at trial. But

to the extent he pleads standalone claims of conspiracy, defendants are entitled to

judgment as a matter of law because conspiracy is not a separate claim.

3. Failure to Intervene

To prove failure to intervene under § 1983, Walker must prove that the

defendants knew that a constitutional violation was committed and had a realistic

opportunity to prevent it. Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017).

Like conspiracy, failure to intervene is a mechanism to hold additional defendants

liable for an underlying constitutional violation. As with the conspiracy claims, a jury

could find that Flatley, Reyes, and White knew about their fellow officers’ plan to

plant drugs on Walker and realistically could have stopped it. But Walker points to

no evidence that Daly, Gaynor, Baeza, or Finnelly knew about the scheme. They are

entitled to judgment as a matter of law on the failure-to-intervene theory.

G. Derivative Liability Claims

The respondeat superior and indemnification claims derive from the

underlying claims, so they survive to the extent the underlying claims survive. The

defendants’ motions for summary judgment on the derivative claims is denied.

IV. Conclusion

Defendants’ motions for summary judgment [275], [277] are granted in part,

denied in part. Walker may proceed on his evidence-fabrication claim as to the drugs,

failure to intervene, unlawful pretrial detention, malicious prosecution, and

intentional infliction of emotional distress against White, Reyes, and Flatley. Walker

may proceed against Finnelly on fabrication of the photographs and intentional

infliction of emotional distress. The respondeat superior and indemnification claims

survive summary judgment. Summary judgment is granted on all other claims and

to all other defendants.

ENTER:

Manish 8. Shah

United States District Judge

Date: March 19, 2021

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