Velez v. City of Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN VELEZ, )

)

Plaintiff, ) No. 1:18-CV-08144

)

v. )

) Judge Edmond E. Chang

CITY OF CHICAGO )

ET AL., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff John Velez was 17 years old when he was arrested in 2001 for the

murder of Anthony Hueneca. Velez was convicted of the murder and spent 16 years

in prison, after which he was released after the conviction was vacated. Velez brings

this civil rights suit, 42 U.S.C. § 1983, against several Chicago police officers; Cook

County Sheriff’s Department Detectives James Davis and John Sullivan; Cook

County Sheriff Thomas Dart, in his official capacity; former Cook County Assistant

State’s Attorney Megan Goldish; Cook County; and the City of Chicago (collectively,

the Defendants).1

Velez alleges that the police officers, Goldish, Davis and Sullivan, individually

and in concert with each other, violated his constitutional rights by fabricating evi-

dence against him. According to Velez, the police officers, Davis, and Sullivan also

1This Court has subject matter jurisdiction over the § 1983 claims under 28 U.S.C.

§ 1331 and supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367. Sep-

arately, the Court formally enters dismissal as to Defendants J. Botwinski and A. Jaglowski,

who both passed away, R. 133, 355, and no estate representative was substituted for them

(nor are they substantively addressed in the summary judgment briefing).

suppressed exculpatory evidence. Velez also brings deprivation of liberty and mali-

cious prosecution claims against the police officers, Davis, and Sullivan. Velez brings

claims of conspiracy, failure to intervene, and intentional infliction of emotional dis-

tress against the Chicago police officers, Goldish, Davis, and Sullivan. On top of the

individual claims, Velez brings a municipal-liability claim against Chicago under Mo-

nell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), and respondeat

superior and indemnification claims against the City, the County, and Sheriff Dart.

All of the Defendants—the Chicago Officers, the Sheriff Officers, the Sheriff’s Office,

Goldish, the County, and the City—have filed motions for summary judgment. R. 303

(Goldish Mot.), R. 305 (the City Mot.), R. 308 (the Chicago Officers’ Mot.), R. 311 (the

CCSD Detectives, Sheriff Dart, the County Mot.).2 For the following reasons, the De-

fendants’ motions are granted in part and denied in part.

I. Background

In deciding a motion for summary judgment, the Court views the evidence in

the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zen-

ith Radio Corp., 475 U.S. 574, 587 (1986).

A. Night of Hueneca Murder

In the very early hours of March 19, 2001, at around 1:20 or 1:30 a.m., four

friends—Apolinar Mejia, Lorena Ricardo, Micaela Gutierrez, and Gustavo Rivera—

left a Chicago nightclub located on Marshall Boulevard and Cermak Road. R. 309

2Citations to the record are “R.” followed by the docket entry number and, if needed,

a page or paragraph number.

2

(CPDSOF) ¶¶ 4–7; R. 302-3 at R-131:2–132:11; R. 302-4 at Q-97:18–98:6. At the

nightclub, Gutierrez and Rivera saw Anthony Hueneca, a member of the Latin Kings

gang. CPDSOF ¶ 5, R. 302-4 at Q-96:5–97:17; R. 302-6 at S-10:12–11:18. Upon leav-

ing the nightclub, the four got into Mejia’s car and Mejia dropped Rivera off at a

building to get rolling papers for marijuana. CPDSOF ¶ 7; R. 302-3 at R-132:6–134:4;

R. 302-4 at Q-97:18–99:19; R. 302-6 at S-14:19–15:5. While Mejia, Ricardo, and

Gutierrez were waiting in the car for Rivera, a man wearing a dark hoodie ap-

proached the car and threatened them with a gun; at one point, the man stated

“where’s the Kings, where’s the Queens at” (a reference to the Latin Kings) and “get

ready to die.” CPDSOF ¶¶ 9–14; R. 302-4 at Q-102:12–103:16, Q-105:4–22, Q-114:24–

115:16. Before walking away, the man said, “king killer, queen killer, SD love.” CPD-

SOF ¶¶ 14, 21; R. 302-4 at Q-112:4–8. Gutierrez testified she believed that “SD love”

referred to the Satan’s Disciples gang. CPDSOF ¶ 14; R. 302-4 at Q-113:3–13.

It is unclear how much time passed from when the man first approached the

car to when he left. See CPDSOF ¶ 15; R. 302-4 at Q-138:24–139:13. In any event,

when the man left, Mejia drove away, but before Mejia turned onto California Ave-

nue, Gutierrez and Ricardo heard two gunshots. CPDSOF ¶¶ 16, 21; R. 302-4 at Q-

115:20–118:9; R. 302-5 at R-192:2–20. Mejia continued to drive, and at some point,

Ricardo saw two men (one wearing a dark hoodie) quickly run across the street,

headed onto Marshall Avenue. CPDSOF ¶ 22; R. 302-5 at R-193:9–194:13, R-230:8–

231:18. When the car reached an intersection, Ricardo saw a body lying on the side-

walk. CPDSOF ¶ 23; R. 302-5 at R-195:5–197:10. There is a dispute about the

3

distance between where Hueneca was shot and where the friends were held up at

gunpoint in the car. It was Bocardo’s understanding that Hueneca was shot around

100 feet from where Mejia, Ricardo, and Gutierrez were held up at gunpoint by the

man in the dark hoodie. CPDSOF ¶ 65; R. 302-25 at H-25:17–21.

B. Investigation into Hueneca Murder

At around 1:38 am on March 19, 2001, a caller reported two gunshots and a

man lying on the ground in front of 2143 South Marshall Boulevard. CPDSOF ¶ 43;

R. 302-50 at CITY000005. Hueneca was found with gunshot wounds to the head and

chest, and was transported to the hospital, where he was pronounced dead. CPDSOF

¶¶ 43–44; R. 302-8 at 88:4–89:4; R. 302-50 at CITY000005–006. Later that day, Bo-

cardo and Dyra were assigned to the investigation. CPDSOF ¶ 56; R. 302-17 at

154:10–13; R. 302-14 at T-11:4–18.

1. Bocardo and Velez at the Police Station

The day after the murder, Bocardo interviewed Gutierrez in the Area 4 Detec-

tive Division. CPDSOF ¶¶ 63–64; R. 302-4 at Q-120:20–121:23. At the end of the in-

terview, Gutierrez asked Bocardo to check the station’s common areas. CPDSOF ¶ 66;

R. 302-4 at Q-121:24–123:3; R. 302-14 at T-87:1–15. While checking the common ar-

eas, Bocardo spotted Velez and Velez’s friend, Raul Lopez. CPDSOF ¶¶ 67, 69; R. 302-

15 (Bocardo Dep. Tr.) at 202:5–203:5; R. 325-28 (Velez Dep. Tr.) at 406:9–407:19. Ve-

lez was at the station because he was looking for a friend who had been taken into

custody on an unrelated stop order. CPDSOF ¶ 67; Bocardo Dep. Tr. at 202:5–203:9.

4

Bocardo recognized Velez and Lopez as victims of a February 2001 drive-by

shooting that Bocardo was still investigating. CPDSOF ¶ 67; Bocardo Dep. Tr. at

189:13–191:18. Bocardo told Velez and Lopez that he (Bocardo) had been looking for

them as the victims, asked them to wait in the lobby, and later spoke with them about

the shooting. CPDSOF ¶¶ 70–71; Bocardo Dep. Tr. at 204:10–205:9. During this en-

counter, Velez told Bocardo that Velez could not see the shooter’s face and that he did

not want to sign a Refusal to Prosecute form. CPDSOF ¶ 71; Velez Dep. Tr. at 412:19–

414:16. After that encounter, Bocardo obtained Velez’s mugshot, which Bocardo

printed out and put in a clipboard that he carried with him. CPDSOF ¶ 72; R. 302-14

at T-16:10–17:13; Bocardo Dep. Tr. at R. 191:2–6. Bocardo learned Velez was a Satan

Disciples member. CPDSOF ¶ 72; Bocardo Dep. Tr. at 244:10–14.

2. Mejia Identifies Velez as the Man who Threatened Him

On the same day that Bocardo ran into Velez at the station, Bocardo later in-

terviewed Mejia. CPDSOF ¶ 73; R. 302-3 at R-167:2–8; R. 302-14 at T-17:14–22.

There is a dispute, however, about what happened during this interview and whether

Mejia identified Velez.

Bocardo has testified that, before this interview, Bocardo had not made any

connections between Hueneca’s murder and Velez. CPDSOF ¶ 75; R. 302-25 at H-

8:5–7, H-30:18–31:1. Bocardo alleges that, after running into Velez, he had attached

Velez’s mugshot to his clipboard, and during Bocardo’s interview with Mejia, Mejia

happened to spot Velez’s mugshot in the clipboard and identified Velez as the man

who held up him and his friends at gunpoint. CPDSOF ¶¶ 74–75; R. 302-14 at T-

5

17:23–18:23; Bocardo Dep. Tr. at 219:18–221:15, 225:22–226:8; R. 302-19, Clear

Closed Supplementary Report (CCSR) at 13. Bocardo did not inventory the mugshot

of Velez that Mejia allegedly identified. CPDSOF ¶ 75; Bocardo Dep. Tr. at 230:9–

231:21. Bocardo did make a note of the alleged clipboard identification in the Clear

Closed Supplementary Report (a law enforcement report) created on March 29. CPD-

SOF ¶ 76; R. 325-15 at 1; Bocardo Dep. Tr. at 226:9–228:23; CCSR at 13.

But Velez contends that Bocardo fabricated the Mejia clipboard identification

to justify putting Velez in the lineup for the Hueneca murder. See R. 327 (PSOAF)

¶ 18. Mejia has testified that he did not see Velez’s photograph on Bocardo’s clip-

board, but rather identified the man who had held him and his friends at gunpoint

by looking through a so-called gang book that contained many photos. PSOAF ¶ 18;

R. 325-4 (Mejia Dep. Tr.) at 48:4–49:13, 57:12–58:24, 90:4–91:5, 104:24–108:12. Mejia

also testified in his deposition that he lied at Velez’s trial when he denied looking

through a gang book. PSOAF ¶ 18; Mejia Dep. Tr. at 57:12–58:24, 90:4–91:5, 93:22–

94:10, 104:24–108:12. Velez points out that Bocardo’s General Progress Report notes

about the interview with Mejia do not mention the alleged clipboard identification.

PSOAF ¶ 19; see R. 337-2. Velez alleges that Mejia identified a photo in a gang book

of a person other than Velez; this person was not in the lineup that included Velez;

and the photo from the alleged gang book was never inventoried. PSOAF ¶¶ 5–6, 9;

see CPDSOF ¶ 75; Mejia Dep. Tr. at 51:24–54:23.

Lineup Identification. On March 26, 2001 (one week after the murder),

Mejia, Ricardo, Gutierrez, and Rivera viewed a lineup containing four fillers and

6

Velez. CPDSOF ¶¶ 97–98; R. 302-6 at S-28:2–7; R. 302-27 at CITY000025; R. 302-48;

R. 302-14 at T-33:2–23; R. 302-3 at R-146:18–148:21.3 Bocardo and Cirone were in

the room where the witnesses (one at a time) viewed the lineup, and Dyra was with

the lineup participants. CPDSOF ¶ 99; R. 302-18 (Dyra Dep. Tr.) at 153:1–6; Bocardo

Dep. Tr. at 270:22–24; R. 302-22 (Cirone Dep. Tr.) at 16:7–9.

There is a dispute about Mejia’s lineup identification of Velez. Velez contends

that Mejia did not recognize anyone in the lineup as the man who threatened him at

gunpoint, and the lineup participants looked different from the photograph from

which Mejia earlier identified the offender. PSOAF ¶ 9; Mejia Dep. Tr. at 51:24–

54:23. Velez points out that Mejia has testified that he asked Bocardo which person

in the lineup was the man that Mejia had earlier identified in the photo to be the

offender (“where is this guy? Is that him? Or that one over there?”), to which Bocardo

instructed Mejia, “it should be that guy—that guy is that guy.” PSOAF ¶¶ 10–13;

Mejia Dep. Tr. at 53:14–54:23. Bocardo, however, denies telling Mejia whom to iden-

tify from the lineup and denies that Mejia told Bocardo that Mejia could not recognize

the offender in the lineup. R. 351 (CPD’s Resp. PSOAF) ¶¶ 10–12; Bocardo Dep. Tr.

at 270:14–21; see also Cirone Dep. Tr. at 147:6–24 (testifying that Mejia made an

3The Court need not consider whether there is a genuine dispute about the alleged

fabrication of Rivera’s identification of Velez. For summary judgment purposes, the Court

does not consider Rivera’s alleged statement to his cousins, William Pelmer and Joseph Ri-

vera, that he falsely implicated Velez because Velez has not obtained a statement from Gus

Rivera himself or shown that he is otherwise unavailable under Federal Rule of Evidence

804.

7

immediate identification of Velez in the lineup and did not hesitate in identifying

Velez).

3. Gutierrez and Ricardo Identify Velez in Photo Array and Lineup

On March 24, 2001 (five days after the murder), Bocardo and Dyra created a

photo array of five mugshots, including Velez’s. CPDSOF ¶ 84; CCSR at 13–14. That

same day, Ricardo identified Velez from the array as the man who threatened her

and her friends with the gun before Hueneca’s murder. CPDSOF ¶¶ 85–86; R. 302-

14 at T-19:12–21; R. 302-5 at R-198:13–24; R. 302-12 (Ricardo Dep. Tr.) at 104:2–12.

The next day, Gutierrez identified Velez from the photo array as the man who threat-

ened her and her friends at gunpoint. CPDSOF ¶ 87; R. 302-4 at Q-123:15–124:15;

R. 302-14 at T-20:20–21:1. It is undisputed that Bocardo and Dyra did not say or do

anything to suggest that Ricardo or Gutierrez identify Velez from the array. See

R. 324 (Pl.’s Resp. CPDSOF) ¶¶ 85–87. On March 26, Ricardo and Gutierrez both

identified Velez from the lineup. CPDSOF ¶¶ 102–03; Ricardo Dep. Tr. at 110:1–

111:3, 293:17–21; R. 302-4 at Q-129:4–130:4, Q-132:11–15.

4. Sheriffs’ Detectives Investigate Izquierdo Cemetery Shooting

On March 21 (two days after Hueneca’s murder), Velez’s then-18-year-old girl-

friend, Christina Izquierdo—at the time, four months pregnant with Velez’s child—

was shot at a cemetery in Worth Township and hospitalized. R. 312 (CCSSOF) ¶¶ 17–

18, 20; CCSSOF Exh. A at 53:3–9; CCSSOF Exh. C at CITY000097–099; CCSSOF

Exh. F at 19:4–20:6. It is disputed why Izquierdo was visiting the cemetery. The Chi-

cago Officers contend that Izquierdo was visiting the grave of Velez’s uncle, Gent

8

Velez, who had been killed on March 23, 2000, but Velez contends that Izquierdo went

to the cemetery to accompany her friends, who were visiting their friend’s grave for

his birthday. CPDSOF ¶ 78; CPD’s Resp. PSOAF ¶ 33; Compare R. 325-27 (Izquierdo

Dep. Tr.) at 12:19–14:2, 72:24–73:6, 166:5–167:10 and Velez Dep. Tr. at 123:1–124:1

with R. 302-29 (Goldish Dep. Tr.) at 212:23–213:25 and R. 302-32 (Izquierdo State-

ment) at CITY000102.

Cook County Sheriff Detectives Davis and Sullivan were assigned to investi-

gate the cemetery shooting. CCSSOF ¶ 21; CCSSOF Exh. B at 93:22–24. Davis and

Sullivan have both testified that they do not recall investigating the cemetery shoot-

ing at all. CCSSOF ¶ 24; CCSSOF Exh. A (Davis Dep. Tr.) at 53:23–54:1; CCSSOF

Exh. B (Sullivan Dep. Tr.) at 95:12–19, 96:15–23.

It is also disputed whether Davis and Sullivan interviewed Izquierdo at the

hospital at all. The Chicago Officers and the Sherriff Detectives maintain that, on or

around March 25, Officers Bocardo and Dyra spoke with Detectives Davis and Sulli-

van about the cemetery shooting investigation. CCSSOF ¶ 37; CCSR at 14; Bocardo

Dep. Tr. at 248:22–250:8; CPDSOF ¶¶ 93–94; Dyra Dep. Tr. at 229:4–8. The Chicago

Officers and the Sherriff Detectives contend that Davis and Sullivan told Bocardo

and Dyra that they had interviewed Izquierdo at the hospital; Izquierdo had been

cooperating with the detectives until Velez entered the room; Velez and Izquierdo

then spoke with one another in Spanish; and a nurse later translated the conversa-

tion to the detectives, relaying that Velez told Izquierdo that she had been shot be-

cause of something that he (Velez) had done on an earlier date. CPDSOF ¶¶ 93–94;

9

CCSSOF ¶ 38; CCSR at 14; Bocardo Dep. Tr. at 248:22–250:8; Dyra Dep. Tr. at 228:3–

22, 229:4–230:3. Bocardo and Dyra documented their conversation with Davis and

Sullivan in the CCSR, and Sullivan faxed a preliminary report on the cemetery shoot-

ing to Bocardo. CCSSOF ¶¶ 38–39; Sullivan Dep. Tr. at 109:6–18; CCSR at 14. The

report did not mention Davis and Sullivan’s interview with Izquierdo, nor what the

nurse said. PSOAF ¶ 51; see R. 337-5.

Velez asserts, though, that Davis and Sullivan did not interview Izquierdo at

the hospital and that Velez did not tell Izquierdo that she had gotten shot because of

something that he had done. Likewise, Izquierdo has denied that police officers came

to speak with her at the hospital and that any police officers were present during her

talk with Velez at the hospital. PSOAF ¶ 49; Izquierdo Dep. Tr. at 23:24–24:2, 31:4–

12. Both Izquierdo and Velez have denied that Velez made any damning statement

in the hospital. Velez testified that he only apologized to Izquierdo in the hospital

because he believed that he put her in danger by being in a gang, not because he

himself had done something days earlier. PSOAF ¶¶ 44, 46–47; Velez Dep. Tr. at

181:4–14, 192:20–195:14; see also Izquierdo Dep. Tr. at 25:6–26:21, 47:2–50:14 (“Q.

And just to be clear: [Velez] never said it was his fault because of something that he

had done … to the other side, or something like that? … A. No. He never said that.”)

(alterations omitted).

5. Bocardo and Goldish Interview of Izquierdo

Bocardo Interview. According to Izquierdo, on March 26 (one week after the

murder), Bocardo and Dyra interviewed her at a friend’s house about the cemetery

10

shooting. PSOAF ¶ 54; Izquierdo Dep. Tr. 31:1–15. Izquierdo testified that at this

interview, Bocardo and Dyra showed her photographs of “random” men and, at some

point, told Izquierdo, “Are you going to tell us the truth, or are you going to put on

your shoes and walk out with us now?” PSOAF ¶ 55; Izquierdo Dep. Tr. at 31:18–

32:18. According to Izquierdo, when she denied knowing what they meant, one of the

detectives told her to come with them to the station. PSOAF ¶ 55; Izquierdo Dep. Tr.

at 32:8–33:7.

Bocardo then interviewed Izquierdo at Area 4. During this interview, Izquierdo

denied any knowledge about Hueneca’s murder and denied that Velez told her at the

hospital about why she was shot, but admitted Velez was a member of the Satan

Disciples and that Latin King members shot her at the cemetery. Pl.’s Resp. CPDSOF

¶ 106; CCSR at 15; Izquierdo Dep. Tr. at 243:6–8.

The parties dispute the underlying circumstances of the interview.4 Velez al-

leges that Izquierdo (pregnant and with a days-old gunshot injury) was left in a small

room with a metal bench for a long time before Bocardo arrived; Bocardo refused to

allow her to use the bathroom, resulting in Izquierdo urinating on herself; Izquierdo

was refused phone calls, locked in the room, not offered food, denied pain medication

and could not change her bandage despite her bleeding from her wound; and she was

4The Chicago Officers argue that the circumstances of this interview do not create a

fact dispute relevant to their motion because it is undisputed that Izquierdo did not make

any incriminating statements about Velez during the Bocardo interview. CPD’s Resp. PSOAF

¶ 57. But the facts of the circumstances are relevant because, as Velez contends, Bocardo’s

interactions with Izquierdo during this interview arguably caused her to ultimately sign the

allegedly fabricated handwritten statement implicating Velez.

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not allowed to leave. PSOAF ¶¶ 57–59; Izquierdo Dep. Tr. at 38:18–40:7, 42:13–43:11,

51:4–53:23, 62:12–63:9, 85:8–20, 231:19–232:12; R. 325-43 at Q201:4–202:1.

Velez contends that Bocardo told Izquierdo that “[Velez] had killed someone”

and told her to say that Velez admitted to her that she had gotten shot because of

something he had done. PSOAF ¶ 58; Izquierdo Dep. Tr. at 45:20–46:14. Izquierdo

testified that she told Bocardo that Velez did not tell her that. PSOAF ¶ 58; Izquierdo

Dep. Tr. at 46:8–14. According to Izquierdo, when she told Bocardo she would not say

that Velez confessed to her, Bocardo told her that if she did not make the statement

(to the “people outside waiting for [her]”), he would call the Department of Children

and Family Services (DCFS) to take her daughter away, but if she did say Velez con-

fessed, she could go home and he would not call DCFS to take away her daughter.

PSOAF ¶¶ 61–63; Izquierdo Dep. Tr. at 46:8–14, 55:10–59:15. Izquierdo testified that

when Bocardo told her this, she said “okay” because she “didn’t want them to take

away [her] daughter [and] wanted to go home.” Izquierdo Dep. Tr. at 59:1–15.

In contrast, the Chicago Officers maintain that Izquierdo was put in a large

office with a comfortable chair; offered food and water; and not kept in the room in-

voluntarily. CPD’s Resps. PSOAF ¶¶ 56–57; Goldish Dep. Tr. at 70:5–12, 194:6–13

(testifying that Izquierdo made no complaints about pain), 214:10–22, 217:13–218:17;

Bocardo Dep. Tr. at 240:12–241:13 (testifying that Bocardo told Izquierdo that she

could use the restroom, told her to let him know if she needed anything to eat or

drink, and that she was able to leave if she wanted); R. 302-31 at T-109:7–12. Bocardo

12

denies telling Izquierdo that he would contact DCFS if she did not say Velez con-

fessed. CPD’s Resp. PSOAF ¶ 63; Bocardo Dep. Tr. at 256:16–22.

ASA Goldish. After interviewing Izquierdo, Bocardo requested a Felony Re-

view Assistant State’s Attorney come to Area 4; Goldish arrived that same night.

CPDSOF ¶ 107; R. 302-14 at T-38:5–12. Goldish testified that upon arrival, she spoke

to Kato about the investigation and read the officers’ reports. R. 316 (GSOF) ¶ 6;

PSOAF ¶ 107; Goldish Dep. Tr. at 57:1–25, 58: 1–14 (testifying that she does not re-

call specifically speaking with Kato but that she did speak with him); R. 302-21 (Kato

Dep. Tr.) at 156:2–5. It is disputed to what extent Goldish interviewed Izquierdo in

front of Bocardo; the Chicago Officers contend that at some point Goldish interviewed

Izquierdo alone, but Velez contends that Bocardo was there the entire time. Pl.’s

Resp. CPDSOF ¶ 113; Goldish Dep. Tr. at 135:22–24, 188:14–189:23, 217:13–15;

Izquierdo Dep. Tr. at 261:7–15.

It is undisputed that at the interview with Goldish, Izquierdo signed a hand-

written statement saying that Izquierdo went to the cemetery to visit Gent Velez’s

grave; after she had been shot, she spoke with Velez at the hospital; Velez told her

that she had gotten shot because the Sunday before, he went to 21st and Marshall

and “shot one of the Kings” because “the Kings had killed [Gent Velez].” CPDSOF

¶ 114; Izquierdo Statement at CITY000103–104. The statement said that Izquierdo

was not threatened or coerced into making it. Izquierdo Statement at CITY000104.

Izquierdo denies that these statements came from her and are true. PSOAF ¶ 72;

Izquierdo Dep. Tr. at 66:5–67:3, 72:6–73:6 (testifying that she did not know who Gent

13

Velez was), 79:20–81:3 (denying that Velez told her he shot a Latin King member to

avenge the death of Gent Velez), 86:1–11.

Velez and Goldish give contrasting accounts of the interview. Velez contends

that Goldish delayed interviewing Izquierdo until around 4 a.m., despite knowing

that Izquierdo was pregnant and was suffering from recent gunshot wounds. PSOAF

¶¶ 64, 67; Izquierdo Statement at CITY000100; Izquierdo Dep. Tr. at 33:19–34:6,

53:2–4; Goldish Dep. Tr. at 68:4–10, 188:22–189:4, 192:18–23, 196:8–16. Velez alleges

that Goldish did not introduce herself as an ASA to Izquierdo, and Izquierdo did not

know that Goldish was an ASA, believing her to be a secretary. R. 323, Velez Resp.

to GSOF ¶ 45; Izquierdo Dep. Tr. at 66:12–67:3. Velez alleges that when Izquierdo

entered the room, Goldish was already writing the statement; Izquierdo testified that

when she entered the room to be interviewed, Goldish gave her name and then im-

mediately told Izquierdo, “Okay. I’m going to write this down. And I just need you to

sign here, and you can go home.” PSOAF ¶ 68; Izquierdo Dep. Tr. at 60:14–61:3,

257:17–22. Izquierdo testified that she stood during the entire interview and told

Goldish that her back hurt and that she had urinated on herself because she was

refused the restroom, to which Goldish just said “okay” and kept writing the state-

ment. PSOAF ¶¶ 70–71; Izquierdo Dep. Tr. at 254:15–255:1, 262:8–10, 265:1–22,

266:2–10. Izquierdo testified that at the interview, she asked Bocardo if she could “go

home after this” and he replied, “Yes, after you sign it [the statement].” Izquierdo

Dep. Tr. at 260:13–24, 267:13–15 (she “pretty much had to [sign the statement] so

[she] could leave”).

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Goldish contends, however, that Izquierdo was forthcoming and conversa-

tional, and never asked to go home during the interview. Goldish Dep. Tr. at 211:7–

16, 214:7–216:13, 220:5–18. Goldish contends that she introduced herself to Izquierdo

as an ASA, and that Izquierdo told Goldish that “she knew who [Goldish] was.” GSOF

¶ 45; Goldish Dep. Tr. at 190:4–13. Goldish has testified that the signed statement

came directly from Izquierdo and that Goldish did not start writing it until around

half an hour after talking with Izquierdo. R. 347 (Goldish’s Resp. PSOAF) ¶¶ 68, 72;

Goldish Dep. Tr. at 190:1–191:25, 212:19–22. Goldish and the Chicago Officers con-

tend that Goldish just summarized what Izquierdo had told her into the statement.

Goldish’s Resps. PSOAF ¶¶ 68, 72; CPDSOF ¶ 113; Bocardo Dep. Tr. at 242:20–243:4;

Goldish Dep. Tr. at 198:25–201:3, 212:19–22; R. 302-35 at Q-180:17–20; R. 302-31 at

T-112:24–113:15, T-138:21–23. Goldish testified that Izquierdo never complained to

her about mistreatment by the police, nor of being in discomfort or pain, and was

sitting in a large, reclining chair at the interview, not standing. GSOF ¶¶ 47–48;

Goldish’s Resps. PSOAF ¶¶ 70–72, 75; Goldish Dep. Tr. at 191:19–25, 194:6–13,

214:7–216:13, 217:13–218:21; R. 302-31 at T-109:7–12, T-140:13–24.

After the interview, Goldish recommended to her supervisor that murder

charges be brought against Velez. Her supervisor approved, and Velez was later

charged with first-degree murder. CPDSOF ¶ 115; Goldish Dep. Tr. at 225:11–226:14,

234:5–25; R. 302-62 at T-270; R. 302-54.

15

6. The Velez Statement

On March 25, 2001, Bocardo, Dyra, Kato, and Cirone arrested Velez for

Hueneca’s murder. CPDSOF ¶ 89; R. 302-14 at T-21:5–18; Bocardo Dep. Tr. at

158:20–159:3. Bocardo and Dyra wrote the supplementary CCSR, which contains a

statement from Velez (Velez Statement). CPD’s Resp. PSOAF ¶ 78; Dyra Dep. Tr. at

252:20–254:11; CCSR at 14. The Velez Statement says that Velez did not recall his

whereabouts on the night of the murder; he and Izquierdo went to the cemetery to

visit Gent Velez’s grave; and he believes that the Latin Kings shot and killed Gent

Velez and also shot Izquierdo. CCSR at 14.

Velez disputes the statement’s accuracy (and that it came from him), including

denying that he said that Izquierdo went to the cemetery to visit Gent Velez’s grave;

that Gent Velez was a Satan Disciples member; Latin Kings killed Gent Velez; and

he could not recall his whereabouts the night of the murder. PSOAF ¶ 79; Velez Dep.

Tr. at 123:1–18, 127:2–128:18, 134:14–135:7, 159:10–17, 318:1–22; Izquierdo Dep. Tr.

at 13:8–14:14, 27:2–4. According to Velez, when asked where he was the night of the

murder, he said he wanted a lawyer; Velez contends that he refused to answer ques-

tions and told the officers he did not know what they were talking about. PSOAF

¶¶ 79, 81; Velez Dep. Tr. at 316:15–319:13. Velez recalls that an older gentlemen

(positioned in front of Kato) brought in photos of Gent Velez and told Velez, “This is

why you did it.” PSOAF ¶ 83; Velez Dep. Tr. at 313:10–316:16. The Chicago Officers

assert, however, that the statement came directly from Velez and Velez brought up

16

the shooting of Izquierdo on his own. CPD’s Resps. PSOAF ¶¶ 79–81, 83; Bocardo

Dep. Tr. at 243:14–244:9.

C. Sentence and Vacatur

At the state court trial, the State argued that Velez murdered Hueneca in a

gang-retaliation shooting to avenge the murder of his uncle, Gent Velez. CPDSOF

¶ 120; R. 302-33 at Q-7:1–20. Mejia, Ricardo, and Gutierrez identified Velez at trial

as the man who threatened them before the shooting. CPDSOF ¶ 123; R. 302-3 at R-

134:16–20, R-149:15–150:5; R. 302-4 at Q-103:20–104:5, Q-124:5–20; R. 302-5 at R-

198:19–199:2, R-201:2–15. Bocardo testified at trial that Mejia identified the photo of

Velez on his clipboard. CPDSOF ¶ 126; R. 302-14 at T-16:10–18:16, T-91:6–93:20.

Also, at trial, Izquierdo recanted her written statement and testified that Goldish had

not prepared it in her presence. CPDSOF ¶ 128; R. 302-35 at Q-182:24–184:13, Q-

198:20–24, Q-233:15–234:15. During closing arguments, the State told the jury to re-

call Velez’s confession in the hospital and to consider Izquierdo’s statement as an

admission that Velez murdered Hueneca. CPDSOF ¶ 130; R. 302-40 at T-209:4–9, T-

175:24–176:6 (“What did [Velez] tell Cristina when he was at the hospital with her

just two days after this? That this was all his fault because he killed the King on

Marshall and 21st Street, and he did it because Latin Kings killed his uncle, Gent

Velez, Snaky, the year before.”).

On October 15, 2002, a jury found Velez guilty of first-degree murder. CPDSOF

¶ 132; R. 302-62 at T-270:12–22. In mid-December 2002, Velez was sentenced to 55

17

years in prison for the murder, and an additional 25 years because the jury found

Velez had used a firearm to kill Hueneca. CPDSOF ¶ 132; R. 302-46 at W-36:4–14.

Velez later pursued post-conviction relief. Around 15 years later, on December

11, 2017, at post-conviction proceedings, an ASA informed the court that the State

found “there were some constitutional violations that occurred at the trial” and

agreed to post-conviction relief. CPDSOF ¶ 139; R. 302-37 at 2–3. The State told the

court it would not be retrying Velez and made an oral motion to dismiss the case.

CPDSOF ¶ 139; R. 302-37 at 2–3. That same day, an order was entered vacating Ve-

lez’s conviction and sentences. CPDSOF ¶ 139; R. 302-38.

II. Legal Standard

Summary judgment must be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of 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). And again, in eval-

uating summary judgment motions, courts must view the facts and draw reasonable

inferences in the light most favorable to the non-moving party. Scott v. Harris, 550

U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make credibil-

ity determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th

Cir. 2011), and must consider only evidence that can “be presented in a form that

would be admissible.” Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment

has the initial burden of showing that there is no genuine dispute and that they are

18

entitled to judgment as a matter of law. Carmichael v. Village of Palatine, 605 F.3d

451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the ad-

verse party must then “set forth specific facts showing that there is a genuine issue

for trial.” Anderson, 477 U.S. at 256.

III. Analysis

A. The Chicago Officers

For the reasons explained below, the Chicago Officers’ motion is granted in

part, denied in part.

1. Individual Officers’ Participation in the Investigation

Velez concedes that summary judgment should be granted to Chicago Police

Officers Patrick O’Donovan, Bradul Ortiz, Michael Walsh, Victor Perez, D. Wolver-

ton, A. Jaglowski, Sergeant Denis Walsh, and Lieutenant John Farrell. See R. 331

(Pl.’s Resp. Defs.’ Mot. Summ. J.) at 2 n.1. With that concession in place, the Court

grants summary judgment on all claims against those defendants, and the claims

against them are dismissed with prejudice.

The claims against Bocardo, Dyra, Cruz, Cirone, and Kato remain at issue. It

is undisputed that Bocardo had sufficient involvement in the alleged claims to be

personally liable if the claims otherwise survive, but Dyra, Cruz, Cirone, and Kato

argue that they lack the requisite personal involvement in the underlying events.

R. 352 (CPD Reply) at 13, 16, 34; see Colbert v. City of Chicago, 851 F.3d 649, 657 (7th

Cir. 2017) (“Individual liability under § 1983 requires personal involvement in the

19

alleged constitutional deprivation … A causal connection, or an affirmative link, be-

tween the misconduct complained of and the official sued is necessary.”) (cleaned up).5

Dyra. Giving the benefit of reasonable inferences to Velez, a jury could reason-

ably find that Dyra had sufficient personal involvement in the alleged fabrication of

the Velez Statement and the Velez hospital statement. It is undisputed that Dyra

and Bocardo wrote the CCSR containing Velez’s hospital statement and the Velez

Statement. CPD’s Resp. PSOAF ¶ 78; Dyra Dep. Tr. at 252:20–254:11; CCSR at 14.

The Chicago Officers contend that Cook County Detectives Davis and Sullivan told

Dyra and Bocardo about Velez’s admission to Izquierdo in the hospital, an admission

that Velez claims was fabricated by Bocardo and Dyra, or Davis or Sullivan, or both

sets of officers. CPDSOF ¶¶ 93–94; CCSSOF ¶ 38; CCSR at 14; Bocardo Dep. Tr. at

248:22–250:8; Dyra Dep. Tr. at 228:3–22, 229:4–230:3. In any event, with regard to

personal involvement, it is undisputed that Bocardo and Dyra were the ones who

documented the allegedly fabricated hospital confession and the Velez Statement in

the CCSR. CCSSOF ¶¶ 38–39; CCSR at 14.

Beyond the allegedly fabricated hospital statement, it is true that Velez does

not point to direct evidence that Dyra was involved in the Mejia identifications. The

alleged clipboard identification occurred with, at most, Bocardo; and Dyra was not in

the room with Mejia when Bocardo allegedly told him to pick Velez from the lineup.

5This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,

18 Journal of Appellate Practice and Process 143 (2017).

20

See CPDSOF ¶ 99; Dyra Dep. Tr. at 153:1–6. Having said that, a jury could reasona-

bly infer that Dyra acted with the other officers to fabricate the case against Velez,

because otherwise the jury would have to find that each set of officers fabricated evi-

dence with the other set somehow not knowing. Frame-ups like that would be ex-

tremely risky, because the pieces of fabricated evidence could contradict or under-

mine each other if the officers did not work together. Given Dyra’s alleged direct in-

volvement with the Velez Statement and Velez’s alleged hospital statement, he had

sufficient personal involvement—as an alleged conspirator—in the identifications

too.

Cirone. A reasonable jury could find that Cirone had sufficient personal in-

volvement with the Mejia lineup identification to support the failure to intervene

claim. Velez contends that Cirone was present, right there, when Bocardo allegedly

told Mejia to pick out Velez from the lineup. PSOAF ¶¶ 10–13, 15; Mejia Dep. Tr. at

53:14–54:23; Cirone Dep. Tr. at 16:7–9, 147:6–24. The record allows a jury to reason-

ably find that Cirone failed to intervene in the alleged fabrication of the Mejia lineup

identification. At the same time, however, the record does not allow a reasonable jury

to find that Cirone fabricated the identification himself. Velez also fails to specify how

Cirone was involved in the allegedly fabricated Mejia clipboard identification, the

Velez Statement, and the Izquierdo Statement. For these reasons, the § 1983 direct

claims against Cirone are dismissed, and only the failure to intervene claim as to the

Mejia lineup identification survives.

21

Kato. Velez does not specify how Kato was involved in the allegedly fabricated

Mejia clipboard identification, Velez Statement, or Izquierdo Statement. But there is

a genuine fact dispute over whether Kato was present during Velez’s interview where

another officer told Velez that he killed Hueneca because Gent Velez was killed.

PSOAF ¶ 83; Compare Velez Dep. Tr. at 313:10–316:14 with Dyra Dep. Tr. at 223:12–

18, Kato Dep. Tr. at 22:22–23:4, 101:15–24. For this reason, like with Cirone, the

§ 1983 direct claims against Kato are dismissed except for the failure to intervene

claim as to the Velez Statement.

Cruz. Velez focuses on Cruz’s handling of the crime scene. See Pl.’s Resps.

CPDSOF ¶¶ 47–49 (stating that Cruz did not initiate a diagram of the scene, make

measurements of evidence, collect results of the witness canvas, and that Cruz’s

“rapid absence from the scene precluded any possibility for additional photographs to

be taken, locating further witnesses to be interviewed, or any other immediate follow

up”). But the events giving rise to the § 1983 claims (that is, the events that caused

the conviction and sentence) are premised on alleged fabrication of witness interviews

and statements, as well as withholding evidence—but not on how the crime scene was

handled or mishandled. It is undisputed that after Cruz worked the crime scene,

other detectives followed up on the case. Pl.’s Resp. CPDSOF ¶ 49. Because there is

insufficient evidence in the record from which a reasonable jury could find Cruz had

sufficient personal involvement, all claims against Cruz are dismissed with prejudice.

See Colbert, 851 F.3d at 657.

22

2. Fabrication of Evidence

Velez alleges that the Chicago Officers violated his due process rights by fab-

ricating evidence against him (Count 1). R. 91 (Compl.) ¶¶ 109–14. The allegedly fab-

ricated evidence includes the Velez Statement; the Velez hospital statement; the

Mejia clipboard identification; Mejia’s lineup identification; and the Izquierdo State-

ment. Pl.’s Resp. Defs.’ Mot. Summ. J. at 13–14. As detailed below, summary judg-

ment is denied on the fabrication claim as to Bocardo and Dyra because there is a

genuine issue for trial on whether they fabricated the Izquierdo Statement, the Velez

Statement, and Mejia’s identifications (both clipboard and lineup). (It is worth men-

tioning that there is apparently no dispute that Ricardo and Gutierrez identified Ve-

lez.).

“Law enforcement officers may not knowingly use false evidence, including

false testimony, to obtain a tainted conviction.” Coleman v. City of Peoria, Illinois,

925 F.3d 336, 344 (7th Cir. 2019) (cleaned up). “Using false evidence to convict vio-

lates a defendant’s right to a fair trial guaranteed by the Fourteenth Amendment’s

Due Process Clause.” Id. Accordingly, the Seventh Circuit has “consistently held that

a police officer who manufactures false evidence against a criminal defendant violates

due process if that evidence is later used to deprive the defendant of her liberty in

some way.” Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012). To establish

a fabrication claim, a plaintiff must show that a defendant “created evidence that

they knew to be false.” Anderson v. City of Rockford, 932 F.3d 494, 510 (7th Cir. 2019)

(cleaned up). “Knowledge and intent must often be proven by circumstantial

23

evidence.” Stinson v. Gauger, 868 F.3d 516, 527 (7th Cir. 2017) (cleaned up). At sum-

mary judgment, a plaintiff “need not have a smoking gun or an admission to prove

knowledge”; a plaintiff need only offer “sufficient evidence from which a reasonable

jury could find that the Individual Defendants knew the evidence they were eliciting

was false.” Gray v. City of Chicago, 2022 WL 910601, at *10 (N.D. Ill. Mar. 29, 2022).

At this stage, in evaluating the fabrication claim, the Court will consider the

alleged fabricated evidence in the aggregate. See Goudy v. Cummings, 922 F.3d 834,

843–44 (7th Cir. 2019); Washington v. Boudreau, 2022 WL 4599708, at *20 (N.D. Ill.

Sept. 30, 2022) (noting addressing the bases of fabrication claim individually was un-

necessary because courts look at plaintiff’s § 1983 “allegations as a whole, not the

disaggregated bases”) (cleaned up). In Goudy, the Seventh Circuit explained it would

be premature at the summary judgment stage to dismiss due process claims against

a defendant who was only personally responsible for the suppression of some mate-

rial, but not others. 922 F.3d at 843. This is because the plaintiff brought “a single

claim based on one overarching constitutional harm: that he was deprived of a fair

trial in violation of his due process rights” and alleged that individual defendants

contributed to that constitutional injury in different ways. Id. (“Section 1983 liability

must be understood against the background of the ordinary principles of tort law,

where joint and several liability is the norm.”). The Seventh Circuit concluded that,

generally speaking, it was for a jury to decide whether the defendant’s alleged wrongs

(for which he was personally responsible) was enough to undermine confidence in the

verdict. Id.

24

Like the plaintiff in Goudy, Velez brings a single fabrication claim based on an

overarching injury (the conviction and sentence), and alleges that Bocardo and Dyra

contributed to that harm in different ways. So the Court considers the fabrication

allegations as a whole (though even an individualized assessment of each basis of the

fabrication claim shows why summary judgement cannot be granted here).

Velez has presented enough to go to trial on the fabrication claim against Bo-

cardo and Dyra. This is a close call, because (as noted earlier) there is no record evi-

dence to believe that Bocardo and Dyra said or did anything to suggest that Ricardo

or Gutierrez identify Velez from the photo array. Pl.’s Resps. CPDSOF ¶¶ 85–87.

Still, viewing the alleged fabrication in the aggregate, a jury could reasonably find

that the Velez Statement, the Mejia identifications, and the Izquierdo Statement

were fabricated and caused the conviction.

 Velez Statement. Giving reasonable inferences to Velez, a jury could rea-

sonably find that Bocardo and Dyra fabricated Velez’s Statement based on

Velez’s own testimony that the statement was inaccurate and did not come

from him; he refused to answer questions in his interview; he asked for a

lawyer in lieu of answering questions; and an older officer (in front of Kato)

insisted to Velez that Velez killed Hueneca to avenge his uncle’s murder.

PSOAF ¶¶ 79, 81, 83; Compare CCSR at 14 with Velez Dep. Tr. at 123:1–

18, 127:2–128:18, 134:14–135:7, 313:10–319:13; Izquierdo Dep. Tr. at 13:8–

14:14, 27:2–4. Velez’s assertions clash with the Chicago Officers’, who allege

that the statement came directly from Velez, Velez brought up the shooting

25

of Izquierdo on his own, and he did not refuse to answer questions. See

CPD’s Resps. PSOAF ¶¶ 79–81, 83; Bocardo Dep. Tr. at 243:14–244:9;

CCSR at 14.

 Mejia clipboard identification. There is a genuine dispute about Mejia’s

clipboard identification, which is another reason why summary judgment

on the fabrication claim cannot be granted. Velez contends that the entire

clipboard identification is a lie created to justify putting him in the lineup

for the Hueneca investigation. Velez points out that, most importantly,

Mejia has testified that he did not view Velez’s photograph on Bocardo’s

clipboard, but instead identified the man who had held him and his friends

at gunpoint in a gang book with many photos. PSOAF ¶¶ 18–19; Mejia Dep.

Tr. at 48:4–49:13, 57:12–58:24, 90:4–91:5, 104:24–108:12. Velez emphasizes

that Mejia has testified that he lied at Velez’s trial when he denied looking

through a gang book. PSOAF ¶ 18; Mejia Dep. Tr. at 57:12–58:24, 90:4–

91:5, 93:22–94:10, 104:24–108:12; R. 337-2 (GPR notes on Mejia interview

lacking alleged clipboard identification). In contrast, the Chicago Officers

assert that the clipboard identification really happened. CPDSOF ¶¶ 74–

75; Bocardo Dep. Tr. at 219:18–221:15, 225:22–226:8; CCSR at 13.

 Mejia lineup identification. Giving reasonable inferences to Velez, a rea-

sonable jury could find that Mejia initially identified a photograph of some-

one other than Velez, but Bocardo still told Mejia to select Velez from the

lineup when Mejia said that he did not recognize anyone in the lineup. See

26

PSOAF ¶¶ 9–13, 18; Mejia Dep. Tr. at 51:24–54:23. Velez’s allegations on

the lineup identification clash with the Chicago Officers’, who deny that

Bocardo told Mejia to identify Velez from the lineup or that Mejia told Bo-

cardo that he did not recognize the offender in the lineup. CPD’s Resps.

PSOAF ¶¶ 10–12; Bocardo Dep. Tr. at 270:14–21; Cirone Dep. Tr. at 147:6–

24 (testifying that Mejia made an immediate identification of Velez in the

lineup).

 Izquierdo Statement. Drawing all reasonable inferences in Velez’s favor,

a reasonable jury could find that Bocardo fabricated Izquierdo’s statement.

Velez contends that Bocardo threatened to take away Izquierdo’s child (via

DCFS) if she did not say that Velez confessed to her, and that Bocardo told

Izquierdo during the interview (with Goldish) that she could go home after

she signed the statement. See PSOAF ¶¶ 61–63; Izquierdo Dep. Tr. at 46:8–

14, 55:10–59:15, 260:13–24, 267:13–15 (testifying that she “pretty much

had to [sign the statement] so [she] could leave”). Bocardo denies these al-

legations. CPD’s Resp. PSOAF ¶ 63; Bocardo Dep. Tr. at 242:20–243:4,

256:16–22. Given Izquierdo’s testimony, Velez presents sufficient evidence

on Bocardo’s role in allegedly fabricating the Izquierdo Statement.

As the listing of disputes shows, Velez and the Chicago Officers present diver-

gent accounts on the allegedly fabricated evidence, creating fact questions properly

reserved for a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Cred-

ibility determinations, the weighing of the evidence, and the drawing of legitimate

27

inferences from the facts are jury functions, not those of a judge.”); Hackett v. City of

South Bend, 956 F.3d 504, 507 (7th Cir. 2020) (“In fact-intensive cases, credibility

traps abound, and courts must be alert to avoid them.”). There is a genuine fact dis-

pute on whether Bocardo and Dyra had knowledge of the alleged fabrication. Velez

alleges, among other things, that Bocardo made up the clipboard identification; Bo-

cardo told Mejia to select Velez from the lineup despite Mejia allegedly identifying

someone other than Velez before to Bocardo; and that the Velez Statement did not

come from Velez, but rather Bocardo and Dyra. The evidence presented is sufficient

for the knowledge requirement at this stage. Stinson, 868 F.3d at 527 (circumstantial

evidence sufficient to prove knowledge and intent).

The Chicago Officers argue that Velez is just repackaging a claim for an unduly

suggestive identification or coercion into a fabrication claim. But “there is a difference

between fabricated evidence, which is necessarily untrue, and evidence obtained

through coercion, which may be true.” Brown v. City of Chicago, 633 F. Supp. 3d 1122,

1156 (N.D. Ill. 2022); Avery v. City of Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017)

(explaining that coerced testimony may still be helpful to jury so long as coercive

methods are disclosed but “the same cannot be said for fabricated evidence, [which]

will never help a jury perform its essential truth-seeking function.”) (cleaned up) (em-

phasis in original). The events alleged here are properly considered as part of a fab-

rication claim. For example, Velez and Izquierdo both assert that their statements

did not come from them, but rather were fabricated by the Chicago Officers. And Ve-

lez does not argue the Mejia clipboard identification was coercion—Velez’s argument

28

is that the identification never happened at all. So Velez’s allegations do not involve

solely coercion, but instead allege the manufacturing of false confessions, inculpatory

statements, and identifications. See Phillips v. City of Chicago, 2018 WL 1309881, at

*26 (N.D. Ill. Mar. 13, 2018) (denying summary judgment on fabrication claim where

evidence—plaintiffs testifying that police gave them pre-written stories, urged them

to adopt the stories, and coached them to memorize the stories’ details—“suggest[ed]

a calculated effort to weave a complex narrative out of whole cloth”).

The Chicago Officers unpersuasively argue that certain pieces of potential ev-

idence—the CCSR; testimony about the discussion between Bocardo, Dyra, Davis,

and Sullivan; and police reports documenting the Mejia identifications—were not

used against Velez at the state court trial. It is true that the Seventh Circuit has

“consistently held that a police officer who manufactures false evidence against a

criminal defendant violates due process if that evidence is later used to deprive the

defendant of her liberty in some way.” Whitlock, 682 F.3d at 580. But here, although

the CCSR, the discussion amongst Bocardo, Dyra, Davis, and Sullivan, and the police

reports about the Mejia identifications may not have been admitted into evidence, the

alleged fabrications (the Mejia identifications themselves, Izquierdo Statement,6 hos-

pital statement) were used at trial against Velez. Taylor v. City of Chicago, 2021 WL

4401528, at *7 (N.D. Ill. Sept. 27, 2021) (holding that a police report was used against

6The Court rejects the Chicago Officers’ argument that the Izquierdo Statement is not

actionable due to it being inadmissible. The Statement was admitted at Velez’s trial and was

admissible as impeachment evidence.

29

defendant at trial where the contents of the fabricated report were used at trial).

Indeed, Velez’s alleged hospital statement (contained in the CCSR) and Mejia’s lineup

and clipboard identifications were explicitly testified about at the trial. See, e.g.,

R. 302-14 at T-16:10–18:21, T-34:18–35:1, T-91:11–94:7 (Bocardo testifying at trial

about Mejia’s clipboard and lineup identifications); R. 302-3 at R-144:19–146:16, R-

153:1–154:1, R-171:2–172:14 (Mejia trial testimony on clipboard and lineup identifi-

cations); R. 302-35 at 177:3–179:17, 181:1–184:12, 195:3–8 (Izquierdo testifying

about hospital confession and statement); R. 302-40 at T-175:24–176:6, T-209:4–9

(prosecution citing alleged hospital confession as motive evidence and an admission

of murder in closing argument).

Lastly, the Chicago Officers argue that the Izquierdo Statement was not ma-

terial given the other evidence of guilt, citing the Mejia, Ricardo, Rivera, and

Gutierrez’s identifications. But a reasonable jury could find the statement was mate-

rial because it provided important motive evidence and arguably could be considered

a damning admission by Velez. Giving reasonable inferences to Velez, a reasonable

jury could especially find that the Mejia identifications were material, and indeed the

trial evidence was arguably closely balanced. See R. 302-40 at T-175:24–176:6, T-

209:4–9; R. 325-35 at T254:9–15 (jury stating that they reached “a state of impasse”

due to “fundamental disagreements”); Myvett v. Chicago Police Detective Edward

Heerdt, 232 F. Supp. 3d 1005, 1022 (N.D. Ill. 2017).

In sum, a reasonable jury could find that Bocardo and Dyra deliberately man-

ufactured the alleged fabricated evidence (including fabricating the grounds to

30

pursue Velez as a suspect), and that the fabrication proximately caused Velez’s con-

viction and imprisonment. Summary judgment is denied on the fabrication claim as

to Bocardo and Dyra.

3. Brady

Moving on, as detailed below, summary judgment is denied on the Brady claim

(Count 2) against Bocardo based on the alleged suppression of Mejia’s identifica-

tions—the photo that Mejia picked as the offender, that Mejia did not recognize any-

one in the lineup as the offender, and Mejia’s identification of someone else as the

offender. But (as explained below) the Court rejects that the Ricardo, Gutierrez, and

Rivera identifications, or the alleged notes or reports of the Rivera interview, support

the Brady claim.

“Under Brady, the government violates its duty to produce exculpatory evi-

dence when (1) the evidence at issue favors the defendant because it is either excul-

patory or impeaching; (2) the government suppresses the evidence willfully or inad-

vertently; and (3) the suppression of the evidence results in prejudice.” United States

v. Serfling, 504 F.3d 672, 678 (7th Cir. 2007). Evidence is not suppressed if the de-

fendant “knew of the evidence and could have obtained it through the exercise of rea-

sonable diligence.” United States v. Walker, 746 F.3d 300, 306 (7th Cir. 2014). Rea-

sonable diligence, however, does not require defense counsel to seek evidence they

“had no reason to believe existed.” Boss v. Pierce, 263 F.3d 734, 743 (7th Cir. 2001).

Brady claims turn on the “cumulative effect of all such evidence suppressed by

the government,” not each piece of suppressed evidence in isolation. Kyles v. Whitley,

31

514 U.S. 419, 421 (1995); Anderson, 932 F.3d at 505 (7th Cir. 2019) (“Courts must

assess the cumulative effect of all the suppressed evidence in the context of the entire

record.”) (cleaned up). Also, in considering prejudice, “the question is not whether the

defendant would more likely than not have received a different verdict with the evi-

dence, but whether in its absence he received a fair trial, understood as a trial result-

ing in a verdict worthy of confidence.” Kyles, 514 U.S. at 434 (cleaned up).

In Avery v. City of Milwaukee, the Seventh Circuit approved the viability of a

Brady claim based on coercive interrogations or fabricated evidence, reasoning that

the accused could “impeach the coerced testimony by pointing to the tactics the offic-

ers used to extract it [giving] the jury a fair opportunity to find the truth.” 847 F.3d

433, 439 (7th Cir. 2017) (cleaned up). The Seventh Circuit acknowledged that the

criminal defendant (the later civil-rights plaintiff) knew that the informants’ state-

ments were false but did not know about the pressure tactics and inducements the

detectives used to obtain them, and thus was denied impeachment evidence. Id. 435–

36, 439, 443; see also Anderson, 932 F.3d at 506–07.

Here, Velez has presented sufficient evidence for the Brady claim to survive

summary judgment as against Bocardo, who was involved in the alleged Mejia iden-

tifications. Velez argues that Mejia initially identified someone else’s photograph as

the person who threatened him and his friends with the gun, and that Bocardo did

not disclose that identification, nor the photo Mejia picked, nor that Mejia did not

recognize anyone in the lineup as the offender. PSOAF ¶¶ 4–9. This allegedly with-

held evidence is impeachment evidence that, if disclosed, could have been used by

32

Velez at trial to not only attack Mejia’s identifications but also the Chicago Officers’

grounds for suspecting Velez in the first place. See Fields v. Wharrie, 672 F.3d 505,

517 (7th Cir. 2012) (“The constitutional violation occurs when the means by which

the testimony was acquired are not disclosed at trial—or when other information that

impeach the testimony’s reliability are not shared with the defense.”); Avery, 847 F.3d

at 439 (Brady obligation covers disclosing facts about coercive tactics to obtain testi-

mony to ensure the accused can impeach the coerced testimony). Drawing reasonable

inferences in favor of Velez, a reasonable jury could find prejudice based on the failure

to disclose Mejia’s identification of someone else, Mejia’s lack of recognition at the

lineup, and the photo of someone else initially selected by Mejia.

Also, a reasonable jury could infer that Velez could not have obtained the with-

held information about Mejia’s identifications through reasonable diligence. Gener-

ally speaking, reasonable diligence does not require defense counsel to uncover fabri-

cated witness identifications. See Boss, 263 F.3d at 740; Jimenez v. City of Chicago,

830 F.Supp.2d 432, 444–45 (N.D. Ill. 2011) (“Defendants’ argument seems to assume

the existence of a Perry Mason-like world in which prosecution witnesses readily give

up impeaching information when interviewed or questioned by defense coun-

sel …. Witnesses coerced or persuaded to testify in a particular way often tend to

identify with, and to ally themselves with, their persuaders.”).

It is worth noting that there is no genuine fact issue on whether the Chicago

Officers withheld notes on the clipboard identification, because Velez fails to present

sufficient evidence that these notes ever existed. Also, the Court need not address the

33

disclosure (or lack thereof) of the circumstances of the Izquierdo interview or Gent

Velez’s arrest autopsy report. Velez does not respond to the Chicago Officers’ argu-

ments on this point in his Response. See Pl.’s Resp. Defs.’ Mot. SJ at 33 (defining

Brady claim as based on Mejia identifying someone else, Bocardo pressuring Mejia to

pick Velez, and the Rivera coercion). Those events cannot be part of the Brady claim

at trial.

4. Intentional Infliction of Emotional Distress

Velez’s claim for intentional infliction of emotional distress (Count 7) also sur-

vives summary judgment. For this claim, Velez must show “(1) that the conduct was

extreme and outrageous, (2) that the actor intended that his conduct inflict severe

emotional distress or knew that there was a high probability that his conduct would

inflict such distress, and, (3) that the conduct in fact caused severe emotional dis-

tress.” Bailey v. City of Chicago, 779 F.3d 689, 696 (7th Cir. 2015) (citing Schiller v.

Mitchell, 828 N.E.2d 323, 333 (Ill. App. Ct. 2005)). “For conduct to be extreme and

outrageous, it must go beyond all bounds of decency and be considered intolerable in

a civilized community.” Fox v. Hayes, 600 F.3d 819, 842 (7th Cir. 2010) (cleaned up).

“Courts analyze whether conduct is extreme and outrageous based on an objective

standard taking into consideration the totality of the circumstances” and do not “look

at each of the acts separately.” Parker v. Side by Side, Inc., 50 F. Supp. 3d 988, 1023

(N.D. Ill. 2014) (citing Duffy v. Orlan Brook Condo. Owners’ Ass’n, 981 N.E.2d 1069,

1079 (Ill. App. Ct. 2012)); Holder v. Ivanjack, 39 F. Supp. 2d 965, 970 (N.D. Ill. 1999).

34

Courts also examine the “degree of power or authority the defendant holds over the

plaintiff.” Cairel v. Alderden, 821 F.3d 823, 835 (7th Cir. 2016).

Drawing inferences in Velez’s favor, a reasonable jury could conclude that the

remaining Chicago Officers’ alleged acts were “extreme and outrageous.” See Wash-

ington, 2022 WL 4599708, at *25 (explaining that other courts in this District have

explained that “an average member in the community would consider it outrageous

for police officers to falsely frame, arrest and imprison an innocent citizen”) (cleaned

up). Contrast the allegations here with those in Cairel where the court rejected an

emotional-distress claim because the officers there did not use anything other than

“ordinary interrogation tactics.” 821 F.3d at 833. Here, Velez alleges (and the evi-

dence supports at the summary judgment stage) that the Chicago Officers fabricated

Velez’s statement; fabricated an initial identification and told a witness to pick Velez

in a lineup, despite that witness identifying someone else before; and coerced a wit-

ness to sign a fabricated statement. This alleged conduct goes beyond an “ordinary

interrogation tactic.” Id.; see also Carroccia v. Anderson, 249 F. Supp. 2d 1016, 1028

(N.D. Ill. 2003) (“If, as alleged, defendants fabricated false or misleading evidence of

[plaintiff’s] guilt or concealed exculpatory evidence from prosecutors, that behavior is

sufficiently outrageous to support a claim for emotional distress.”) (cleaned up);

Washington, 2022 WL 4599708, at *25. If a jury is persuaded by Velez’s evidence on

the fabrication and Brady claims, then a jury may similarly find the Chicago Officers

liable for emotional distress.

35

5. Deprivation of Liberty and Malicious Prosecution

Summary judgment is granted against Velez’s claims for deprivation of liberty

without probable cause and malicious prosecution (Counts 3 and 8) because there is

not a genuine fact dispute that the Chicago Officers had probable cause to seize Velez.

Probable cause precludes these claims.

“Probable cause is not a high bar.” Kaley v. United States, 571 U.S. 320, 338

(2014) (cleaned up). Probable cause exists “whenever an officer or a court has enough

information to warrant a prudent person to believe criminal conduct has occurred.”

Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir. 2010). The probable cause standard is

an objective one based on the facts known to the officers at the time of the seizure or

arrest. Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Fox, 600 F.3d at 834. “False

statements and fabricated evidence cannot serve as the basis for probable cause.”

Tucker v. Lally, 2020 WL 60205, at *4 (N.D. Ill. Jan. 6, 2020).

Velez fails to present sufficient evidence from which a reasonable jury could

find a lack of probable cause. Before Velez was arrested, at least two witnesses—

Gutierrez and Ricardo—identified Velez in a photo array as the man who had threat-

ened them with a gun shortly before Hueneca’s murder. CPDSOF ¶¶ 84–87; R. 302-

14 at T-19:12–21, T-20:20–21:1; R. 302-5 at R-198:13–24; Ricardo Dep. Tr. at 104:2–

12, 105:8–106:8; R. 302-4 at Q-123:15–124:15, 126:21–127:3. Again, there is no genu-

ine dispute that Ricardo or Gutierrez’s identifications were fabricated or coerced—

they were not. See Pl.’s Resps. to CPDSOF ¶¶ 84–87 (admitting Bocardo and Dyra

“did not say or do anything to suggest Ricardo identify the photograph of Velez”;

36

admitting there is no evidence that Bocardo or any other officer pressured or sug-

gested to Gutierrez to identify Velez’s photograph). “Probable cause can be based on

a single identification from a credible eyewitness.” Hart v. Mannina, 798 F.3d 578,

587 (7th Cir. 2015); Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000) (“[W]e

have consistently held that an identification or a report from a single, credible victim

or eyewitness can provide the basis for probable cause.”).

And though it is true that the identifications occurred after the allegedly fab-

ricated clipboard identification, the Chicago Officers still had probable cause based

on the Gutierrez and Ricardo identifications predating Velez’s arrest. See Vaughn v.

Chapman, 662 F. App’x 464, 467 (7th Cir. 2016) (“Although Vaughn alleges that this

evidence was the fruit of an illegal search of the car, this would not undermine its

relevance to the question of probable cause.”); Nugent v. Hayes, 88 F. Supp. 2d 862,

869 (N.D. Ill. 2000) (“Even excluding all of the evidence Mr. Nugent claims is tainted

or concocted and including all of the evidence that Mr. Nugent believes is exculpatory,

the remaining evidence and testimony establishes probable cause ….”); Cairel, 821

F.3d at 834. Summary judgment is granted on Velez’s deprivation of liberty claim

against the Chicago Officers.

Because probable cause existed when the criminal complaint was filed, Velez’s

malicious prosecution claim also cannot survive summary judgment.7 See Martinez v.

City of Chicago, 900 F.3d 838, 849 (7th Cir. 2018) (“To state a claim for malicious

7The court need not address the CPD Officers’ indicative of innocence point, given the

dismissal on probable cause grounds.

37

prosecution under Illinois law, a plaintiff must allege that: (1) he was subjected to

judicial proceedings; (2) for which there was no probable cause ....”) (cleaned up);

Cairel, 821 F.3d at 834. This claim too is dismissed.

6. Failure to Intervene

The Court grants summary judgment on the failure-to-intervene claim (Count

5) against Bocardo and Dyra, but but denies summary judgment on the failure-to-

intervene claim against Cirone and Kato. To prevail on a failure-to-intervene claim,

a plaintiff must show “that the Defendants (1) knew that a constitutional violation

was committed; and (2) had a realistic opportunity to prevent it.” Gill v. City of Mil-

waukee, 850 F.3d 335, 342 (7th Cir. 2017); see also Sanchez v. City of Chicago, 700

F.3d 919, 928 (7th Cir. 2012) (explaining failure to intervene theory of liability is to

hold Officer A liable for the wrongdoing of Officer B when Officer A has knowledge of

the wrongdoing and ability to stop it).

A reasonable jury cannot find that Bocardo or Dyra failed to intervene because

one cannot fail to intervene in one’s own conduct. See Thompson v. Vill. of Monee,

2013 WL 3337801, at *13 (N.D. Ill. July 1, 2013) (dismissing failure-to-intervene

claim with prejudice because officer-defendant “cannot possibly intervene to stop his

own conduct”); Rosario v. City of Chicago, 2012 WL 1319806, at *9 n.2 (N.D. Ill. Apr.

17, 2012) (granting summary judgment on failure-to-intervene claim “because [of-

ficer] cannot be said to have failed to intervene in what [plaintiff] contends was his

own conduct”). Velez argues Bocardo himself fabricated the Mejia clipboard story,

Mejia’s lineup identification, coerced Izquierdo (with Goldish) into signing a false

38

statement, and fabricated the Velez statement. A jury cannot reasonably infer Bo-

cardo failed to intervene because the allegations concern Bocardo’s own conduct.

Same for Dyra. Velez alleges Dyra fabricated the contents of the CCSR, including the

contents of the conversation with Davis and Sullivan about the hospital confession.

Because Velez alleges Dyra himself fabricated and he fails to allege how Dyra had an

opportunity to intervene in the other alleged fabrications, the failure-to-intervene

claim against Dyra fails.

But a reasonable jury could find that Cirone and Kato failed to intervene. Velez

alleges, with enough factual support, that Cirone was present when Bocardo allegedly

told Mejia to pick Velez from the lineup after Mejia said he did not recognize anyone.

CPDSOF ¶ 99; Bocardo Dep. Tr. at 270:22–24; Cirone Dep. Tr. at 16:7–9. And the

record evidence supports a finding that Kato was present during Velez’s interview

when another officer told Velez that he killed Hueneca because Gent Velez was killed.

PSOAF ¶ 83; Velez Dep. Tr. at 313:10–316:16. Drawing reasonable inferences in fa-

vor of Velez, a reasonable jury could find that Cirone and Kato knew that other offic-

ers were fabricating evidence (for example, Mejia allegedly told Bocardo that he did

not recognize anyone in the lineup, and Velez alleges that Velez refused to answer

questions). PSOAF ¶¶ 9, 79, 81; Mejia Dep. Tr. at 51:24–54:23; Velez Dep. Tr. at

316:15–319:13; see Brown, 633 F. Supp. 3d at 1168 (failure to intervene survives sum-

mary judgment where sufficient evidence detective knew one or more of his colleagues

“were determined to extract [plaintiff’s] confession without regards to protecting his

constitutional rights and had an opportunity to warn them to stop”). The fact question

39

of identifying when Kato and Cirone could have intervened is reserved for the jury in

the circumstances of this case. Brown, 633 F. Supp. 3d at 1168 (detective defendants

worked together to interrogate witnesses and thus plaintiff does not “need to pinpoint

a particular moment when each Detective Defendant could have stepped in” because

that is a question for the factfinder).

7. Qualified Immunity

The Chicago Officers argue they are entitled to qualified immunity on the fed-

eral claims. The Court need not address qualified immunity for the liberty-depriva-

tion claim, because that claim has been dismissed. Otherwise, the Chicago Officers

are not entitled to qualified immunity on the federal claims.

“Two central questions must be addressed in the course of determining

whether qualified immunity is available: whether the plaintiff has alleged a depriva-

tion of a constitutional right at all, and whether the right at issue was clearly estab-

lished at the time and under the circumstances presented.” Whitlock, 682 F.3d at 580

(cleaned up). “There was and is no disputing that [fabricating evidence and withhold-

ing material exculpatory evidence] violates clearly established constitutional rights.”

Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008); see also Brown, 633 F. Supp.

3d at 1154 (no qualified immunity on fabrication, coercive interrogation, or conspiracy

claims because “it is beyond reasonable dispute that fabricating evidence and con-

spiring to frame a suspect violates an individual’s constitutional rights”).

Velez’s due process rights were clearly established in 2001. Newsome v.

McCabe, 256 F.3d 747, 752–53 (7th Cir. 2001) (holding that it was “clearly established

40

in 1979 and 1980 that police could not withhold from prosecutors exculpatory infor-

mation about fingerprints and the conduct of a lineup”), abrogated on other grounds

by Manuel v. City of Joliet, 580 U.S. 357 (2017); Fields v. Wharrie, 740 F.3d 1107,

1114 (7th Cir. 2014) (“[I]t was established law by 1985 (indeed long before), ... that a

government lawyer’s fabricating evidence against a criminal defendant was a viola-

tion of due process.”); Yang v. Hardin, 37 F.3d 282, 285–86 (7th Cir. 1994) (officer

who is present has duty to intervene to prevent other officers from infringing on the

constitutional rights). And on the facts of this case, officers would know that fabricat-

ing witness statements, the accused’s statements, and identifications would all vio-

late the right to due process. Because Velez has enough evidence of constitutional-

rights violations, (fabricating evidence and withholding exculpatory evidence), and

those rights were clearly established in 2001, qualified immunity does not apply to

the Chicago Officers here.

8. Conspiracy

The Chicago Officers seek summary judgment on Velez’s federal and state con-

spiracy claims (Counts 4 and 10), arguing that there is no evidence of a conspiracy or

agreement to violate Velez’s rights in this case. “Because conspiracies are carried out

in secret, direct proof of agreement is rare.” Kraemer v. Grant Cnty., 892 F.2d 686,

689 (7th Cir. 1990) (cleaned up); McClure v. Owens Corning Fiberglas Corp., 720

N.E.2d 242, 258 (Ill. 1999). So, a plaintiff need not provide direct evidence of the

agreement between the conspirators; circumstantial evidence may suffice. Williams

v. City of Chicago, 2011 WL 133011, at *1 (N.D. Ill. Jan. 14, 2011) (plaintiff did not

41

have direct evidence of an express or implied agreement but presented enough cir-

cumstantial evidence to survive summary judgment); McClure, 720 N.E.2d at 258

(explaining that conspiracy usually must be established from circumstantial evidence

and inferences drawn from evidence). Due to the difficulty of establishing a conspir-

acy with direct evidence, “the question [of] whether an agreement exists should not

be taken from the jury in a civil conspiracy case so long as there is a possibility that

the jury can infer from the circumstances (that the alleged conspirators) had a meet-

ing of the minds and thus reached an understanding to achieve the conspiracy’s ob-

jectives.” Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev’d in part on

other grounds, 446 U.S. 754 (1980)); see also United States ex rel. McGee v. IBM Corp.,

2017 WL 4467458, at *15 (N.D. Ill. Oct. 6, 2017).

Velez has presented sufficient circumstantial evidence of an agreement for the

conspiracy claim to survive summary judgment. Similar to the plaintiff in Williams,

Velez provides evidence that “defendant officers’ similar stories diverge significantly

from his own.” 2011 WL 133011, at *1 (cleaned up). Viewing the evidence in the light

most favorable to Velez, a jury could reasonably conclude that Bocardo suppressed

the fact that Mejia had identified someone other than Velez; Bocardo fabricated the

grounds (the clipboard identification) to suspect Velez in the first place; Bocardo told

Mejia to pick Velez at the lineup in front of Cirone; Bocardo and Dyra spoke with

County Detectives Davis and Sullivan, which led to the fabricated hospital confession,

disputed by both Velez and Izquierdo; Bocardo and Goldish fabricated the Izquierdo

Statement and pressured Izquierdo to sign it; and Bocardo and Dyra fabricated the

42

Velez Statement to support the fabricated confession. “The existence of a mutual un-

derstanding can be inferred from evidence of joint conduct that is unlikely to have

occurred absent the existence of a conspiratorial agreement.” Id. at *1 (cleaned up).

If the jury finds Velez’s version of events credible, then the evidence presented (along

with the stark contrast between Velez, Izquierdo, and Mejia’s accounts versus the

Defendants’ version) is enough to, at least circumstantially, support a finding that

Defendants had a conspiratorial agreement. A jury could reasonably conclude the

Chicago Officers reached an agreement with Davis, Sullivan, and Goldish to violate

Velez’s constitutional rights. Summary judgment on Velez’s conspiracy claims

against the remaining Chicago Officers is denied.

B. ASA Goldish

1. Fabrication of Evidence

Moving on to the claims against former prosecutor Goldish, Velez bases the

fabrication claim (Count 1) against her primarily on Izquierdo’s statement. Goldish

argues that there is no evidence showing that she “did anything other than review

reports, interview witnesses, memorialize witness statements, and recommend

charges with the approval of a supervisor.” Goldish Mot. Summ. J. at 10. But a rea-

sonable jury could conclude that Goldish fabricated the statement, and so the fabri-

cation claim against Goldish survives summary judgment.

“A fabrication-of-evidence due process violation occurs when the criminal de-

fendant is harmed by ‘the police or prosecutor who manufactures evidence that he

knows to be false.’” Chatman v. City of Chicago, 2015 WL 1090965, at *6 (N.D. Ill.

43

Mar. 10, 2015) (quoting Petty v. City of Chicago, 754 F.3d 416, 422 (7th Cir. 2014)).

Through Izquierdo’s testimony, Velez has presented evidence that Goldish began

writing the statement before meeting with Izquierdo, and that upon Izquierdo enter-

ing the room with Goldish, Goldish just gave her name and immediately told

Izquierdo, “Okay. I’m going to write this down. And I just need you to sign here, and

you can go home.” PSOAF ¶ 68; Izquierdo Dep. Tr. at 60:14–61:3, 257:17–22.

Izquierdo denies that the contents of the Izquierdo Statement came from her and

denies that the contents are accurate. PSOAF ¶ 72; Izquierdo Dep. Tr. at 66:5–67:3,

72:6–73:6, 79:20–81:3. Velez also points to the coercive conditions in which Izquierdo

signed the statement, as well as Izquierdo’s testimony that she was told she could go

home after she signed the statement. PSOAF ¶¶ 70–71; Izquierdo Dep. Tr. at 254:15–

255:1, 260:13–24, 262:8–10, 265:1–22, 266:2–10, 267:13–15 (testifying that she

“pretty much had to [sign the statement] so [she] could leave”).

To be sure, Velez’s version of events is directly contradicted by Goldish’s. Gold-

ish contends that the Izquierdo Statement is based on responses from Izquierdo;

Goldish did not start writing the statement until after talking with Izquierdo;

Izquierdo never asked to go home or complained about pain or mistreatment by the

police; and Izquierdo was forthcoming. GSOF ¶¶ 47–48; Goldish’s Resps. PSOAF

¶¶ 68, 70–72, 75; Goldish Dep. Tr. at 190:1–191:25, 194:6–13, 211:7–16, 212:19–22,

214:7–216:13, 220:5–18; R. 302-31 at T-109:7–12, T-140:13–24. But, as described

above, Velez presents sufficient evidence of a genuine fact dispute on fabrication. A

reasonable jury could find that Goldish wrote the Izquierdo Statement containing

44

false statements that did not come from Izquierdo, and then Goldish (along with Bo-

cardo) pressured Izquierdo to sign a false statement.

Goldish argues that Velez fails to show that Goldish caused Izquierdo to adopt

statements that Goldish knew to be false. R. 346, Goldish Reply at 8 (citing Petty v.

City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014)). In Petty, the Seventh Circuit ex-

plained that “a prosecutor fabricating evidence that she knows to be false is different

than getting a reluctant witness to say what may be true.” 754 F.3d at 422 (cleaned

up). But here, Izquierdo’s testimony asserts that Goldish did not merely get a reluc-

tant witness to say what may be true or simply memorialize an interview, but instead

drafted the statement herself with details not told to her by Izquierdo and pressured

Izquierdo to sign the statement containing those details that Izquierdo denies. Alt-

hough Izquierdo has testified that Velez told her that he blamed himself for her get-

ting shot, that self-blame is completely different from Velez telling Izquierdo that he

blamed himself because she was shot due to him “[shooting] one of the Kings” because

“the Kings had killed [Gent Velez].” CPDSOF ¶ 114; Izquierdo Statement at

CITY000103–004. Velez has presented sufficient evidence from which a reasonable

jury could find that Goldish knew the Izquierdo Statement was false, and thus the

fabrication claim against Goldish may proceed. See Gray, 2022 WL 910601, at *10

(plaintiff “need not have a smoking gun or an admission to prove knowledge.”).

2. Absolute Immunity and Qualified Immunity

Neither absolute nor qualified immunity protect Goldish here. Goldish argues

that absolute immunity applies because she did nothing more than “review reports,

45

interview witnesses, memorialize witness statements, and recommend charges with

the approval of a supervisor.” Goldish Mot. Summ. J. at 6, 10. Goldish contends that

this conduct is “intimately associated with the judicial phase of the criminal process,”

so absolute immunity applies. Goldish Mot. Summ. J. at 6; Smith v. Power, 346 F.3d

740, 742 (7th Cir. 2003) (explaining that prosecutors are absolutely immune from

§ 1983 suits for monetary damages for conduct intimately associated with the judicial

phase). Absolute immunity, however, does not shield a prosecutor whose acts are in-

vestigative and who fabricate evidence during the “preliminary investigation of an

unsolved crime.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 275–76 (1993).

Velez presents sufficient evidence to show that Goldish’s acts were investiga-

tive, and thus not covered by absolute immunity. Goldish did not just analyze evi-

dence and memorialize the statement in her prosecutorial function, but instead al-

legedly fabricated the Izquierdo Statement and participated in coercing Izquierdo to

sign the statement. See supra § III(B)(1). This type of conduct “distinguishes [Gold-

ish] from a prosecutor who ‘simply evaluated the evidence assembled.’” Orange v.

Burge, 2008 WL 4443280, at *10 (N.D. Ill. Sept. 29, 2008) (quoting Spiegel v. Rab-

inovitz, 121 F.3d 251, 254 (7th Cir.1997)). A reasonable jury could infer from the evi-

dence that Goldish acted in an investigative capacity by, among other things, “partic-

ipating in the creation of new evidence.” Serrano v. Guevara, 2020 WL 3000284, at

*23 (N.D. Ill. June 4, 2020); see also Orange, 2008 WL 4443280, at *10 (denying ab-

solute immunity because prosecutor “actively assisted in gathering the evidence that

would later form the basis of the charges against [plaintiff]”). In sum, absolute

46

immunity does not apply because a reasonable jury could infer that Goldish fabri-

cated the statement and coerced Izquierdo, acts not covered by absolute immunity.

See, e.g., Lewis v. Mills, 677 F.3d 324, 331 (7th Cir. 2012) (“[A] showing that a prose-

cutor investigated and fabricated evidence against a target would automatically de-

feat absolute prosecutorial immunity.”); Patrick v. City of Chicago, 213 F. Supp. 3d

1033, 1051 (N.D. Ill. 2016) (denying absolute immunity because “there are facts from

which a jury could infer that the ASAs participated in coercive interrogations, that

they fabricated the confessions, and that they reduced the confessions to writing so

the codefendants could sign them”).

Turning to qualified immunity, Goldish does not address in detail the qualified

immunity claim. In any event, for the same reasons explained in § III.A.7, qualified

immunity does not apply to Goldish. See Brown, 633 F. Supp. 3d at 1154 (“When a

prosecutor acts as an investigator rather than as a legal advocate, he is entitled to

qualified immunity to the same extent as police officers carrying out those same du-

ties.”). Velez presents sufficient evidence from which a reasonable jury could infer

Goldish fabricated evidence. Because fabrication of evidence violates “clearly estab-

lished constitutional rights,” qualified immunity does not apply to Goldish. In Brown,

the court reasoned that because it was “beyond reasonable dispute that fabricating

evidence and conspiring to frame a suspect violates an individual’s constitutional

rights,” an ASA was not entitled to qualified immunity on plaintiff’s claims for fabri-

cation, coercive interrogation, or conspiracy. Id.; see also Dominguez v. Hendley, 545

F.3d at 589; Whitlock, 682 F.3d at 580–82, 586.

47

3. Failure to Intervene

Next, Velez’s failure-to-intervene claim against Goldish must be dismissed. It

is true that Velez presents evidence from which a reasonable jury could infer that

Goldish fabricated the Izquierdo statement, coerced Izquierdo to sign the fabricated

statement, and conspired with Bocardo to fabricate the statement. But an interven-

tion claim does not apply because Goldish cannot fail to intervene in her own conduct.

See Thompson, 2013 WL 3337801, at * 13 (dismissing failure-to-intervene claim be-

cause officer-defendant “cannot possibly intervene to stop his own conduct”); see also

Rosario, 2012 WL 1319806, at *9 n.2. This particular theory against Goldish will not

be sent to the jury.

4. Intentional Infliction of Emotional Distress

The Court denies summary judgment on Velez’s emotional-distress claim

(Count 7) as to Goldish. Goldish argues that there is “nothing in the record that sug-

gests Goldish’s conduct was extreme and outrageous” and that she was acting within

her “core functions as a prosecutor.” Goldish Mot. Summ. J. at 14. To repeat, however,

Velez presents sufficient evidence from which a reasonable jury could infer that Gold-

ish fabricated the Izquierdo Statement and coerced Izquierdo to sign it. See supra

§ III(B)(1); PSOAF ¶¶ 68, 72; Izquierdo Dep. Tr. at 60:14–61:3, 66:5– 67:3, 72:6–73:6,

79:20–81:3, 254:15–255:1, 260:13–262:10, 257:17–22, 265:1–22, 266:2–10, 267:13–15.

As previously explained, see supra § III(B)(2), the fabrication goes well beyond Gold-

ish’s core functions as a prosecutor to participating in the creation of evidence, and

allegedly fabricated evidence at that. A reasonable jury could find that Goldish’s

48

alleged acts, including fabrication, were “extreme and outrageous” to sustain an emo-

tional distress claim. See Rosario v. City of Chicago, 2012 WL 1319806, at *11 (N.D.

Ill. Apr. 17, 2012) (“Allegations that a state official fabricated false or misleading ev-

idence of guilt ... would be sufficiently ‘outrageous’ to support an IIED claim.”)

(cleaned up); see also Carroccia, 249 F. Supp. 2d at 1028.

5. Conspiracy

Marching on, Goldish argues that the federal conspiracy claim (Count 4) fails

because Velez fails to show an underlying constitutional violation and fails to show

that the Defendants agreed to inflict the constitutional harm. Goldish Mot. Summ. J.

at 12. As previously explained, see supra § III(B)(1), Velez presents sufficient evidence

of a due-process violation (fabrication of evidence) by Goldish to survive summary

judgment. So there is an underlying violation on which to premise the conspiracy

claim.

On the conspiratorial agreement, at this summary judgment stage, Velez pre-

sents sufficient circumstantial evidence of an agreement between the Chicago Offic-

ers and Goldish to violate Velez’s due-process rights. A plaintiff asserting a conspir-

acy claim need not provide direct evidence; circumstantial evidence may suffice. Wil-

liams, 2011 WL 133011, at *1; Hampton, 600 F.2d at 621. Drawing all reasonable

inferences in favor of Velez and viewing the evidence in the light most favorable to

him, a reasonable jury could infer an agreement based on evidence that Goldish spoke

with Kato upon arriving at Area 4 before interviewing Izquierdo; Bocardo was in the

room when Goldish interviewed Izquierdo; the allegedly fabricated Izquierdo

49

Statement has a narrative consistent with the one in the CCSR with the Velez hos-

pital statement; and Bocardo and Goldish coerced Izquierdo into signing the state-

ment. See GSOF ¶ 6; PSOAF ¶¶ 68, 107; Pl.’s Resp. CPDSOF ¶ 113; Goldish Dep. Tr.

at 57:1–25, 58: 1–14; Kato Dep. Tr. at 156:2–5; Izquierdo Dep. Tr. at 60:14–61:3,

257:17–22, 260:13–24, 261:7–15, 267:13–15.

Velez’s allegations on the Goldish and Bocardo interviews of Izquierdo conflict

with Goldish and the Chicago Officers’ accounts. Goldish and the Chicago Officers

contend that Goldish just summarized what Izquierdo had told her into the statement

and the statement came directly from Izquierdo. Goldish’s Resps. to PSOAF ¶¶ 68,

72; CPDSOF ¶ 113; Bocardo Dep. Tr. at 242:20–243:4; Goldish Dep. Tr. at 198:25–

201:3, 212:19–22; R. 302-35 at Q-180:17–20; R. 302-31 at T-112:24–113:15, T-138:21–

23. If the jury finds Velez’s version of events credible, then the evidence presented

(along with the stark contrast between Velez and Izquierdo’s accounts versus the De-

fendants’ version) is enough to, at least circumstantially, support a jury finding that

Goldish entered into a conspiratorial agreement with the Chicago Officers.

The state law conspiracy claim likewise survives summary judgment. An Illi-

nois state law conspiracy claim can also be established from circumstantial evidence

and inferences drawn from that evidence. See McClure, 720 N.E.2d at 258. As ex-

plained above, Velez presents sufficient evidence of an agreement between Goldish

and the Chicago Officers for a state law conspiracy claim to survive summary judg-

ment.

50

C. Sheriff Detectives, Sheriff Dart, and the County

Velez concedes dismissal of the Brady, emotional distress, and malicious pros-

ecution claims against the Sherrif Detectives, and concedes that Davis and Sullivan

did not coerce any witness. Pl.’s Resp. Defs.’ Mot. Summ. J. 2, 23 nn.1, 4. Of the re-

maining claims, the Court denies in part and grants in part the motion for the reasons

below.8

1. Fabrication of Evidence

The fabrication claim (Count 1) against Davis and Sullivan is a closer call than

the case against the Chicago Officers, but a reasonable jury could find that Davis and

Sullivan fabricated the Velez hospital statement. Velez alleges that the following

statements attributed to Davis and Sullivan were fabricated, specifically, that Davis

and Sullivan interviewed Izquierdo; that Davis and Sullivan saw Izquierdo and Velez

speaking Spanish in front of a nurse; and that the nurse told Davis and Sullivan that

Velez told Izquierdo that she was shot because of something Velez had done days

earlier.

Velez presents sufficient evidence at this stage that, in reality, Davis and Sul-

livan did not visit Izquierdo at the hospital and did not witness any conversation

between Izquierdo and Velez, let alone one where Velez confessed to Izquierdo.

8The Sheriff Detectives, Sheriff Dart, and the County argue that Paragraphs 15, 16,

19, 25, 30, 33, 36 of the CCSDSOF (the Statement of Facts) should be deemed admitted. The

Court declines to deem those paragraphs admitted. The responses contain supplements to

cited facts and are proper. Also, the responses did not impede this Court from assessing

whether there is a genuine dispute and making a summary judgment determination.

51

Izquierdo has denied that police officers came to speak with her at the hospital and

that any police officers were present during her conversation with Velez at the hos-

pital. PSOAF ¶ 49; Izquierdo Dep. Tr. at 23:24–24:2, 31:4–12. And both Izquierdo and

Velez have denied that Velez told her that she had gotten shot because he had done

something days earlier. PSOAF ¶¶ 44, 46–47; Velez Dep. Tr. at 193:1–195:8 (testify-

ing he only apologized to Izquierdo due to his gang affiliation and that he never ex-

plained to Izquierdo why he was sorry); Izquierdo Dep. Tr. at 25:6–26:21, 181:4–14,

192:20–195:14, 47:2–50:14 (“Q. And just to be clear: [Velez] never said it was his fault

because of something that he had done … to the other side, or something like that?

A. No. He never said that.”) (cleaned up). Velez points out the Sheriff Detectives’ re-

port for the cemetery shooting does not mention Davis and Sullivan interviewing

Izquierdo, nor Velez’s allegedly inculpatory statements to Izquierdo at the hospital.

R. 337-5.

Although it is true that Davis and Sullivan played no further role in the

Hueneca investigation beyond speaking with the Chicago Officers about their alleged

interview of Izquierdo, Velez has presented sufficient evidence that Davis and Sulli-

van were the source of the allegedly fabricated hospital confession, which was later

cited at trial and in closing argument. See R. 302-40 at T-175:24–176:6, T-209:4–9

(prosecution citing alleged hospital statement as motive evidence and an admission

of murder in closing argument). A reasonable jury also could conclude the hospital

confession (1) provided critical motive evidence based upon which Bocardo would

52

later interview Izquierdo and (2) made it into the Izquierdo Statement, which was

used at trial to secure Velez’s conviction.

Velez raises sufficient evidence on the fabrication claim against the Sheriff De-

tectives to survive summary judgment. Both Velez and Izquierdo have disputed that

Davis and Sullivan were present for their conversation and deny that Velez told

Izquierdo she had gotten shot because of something he had done days earlier. PSOAF

¶¶ 44, 46–47, 49; Izquierdo Dep. Tr. at 23:24–24:2, 25:6–26:21, 31:4–12, 47:2–50:14;

Velez Dep. Tr. at 181:4–14, 192:20–195:14. These accounts directly contradict the

statements attributed to Davis and Sullivan. CPDSOF ¶¶ 93–94; CCSSOF ¶ 38;

CCSR at 14; Bocardo Dep. Tr. at 248:22–250:8; Dyra Dep. Tr. at 228:3–22, 229:4–

230:3. Also, Velez argues that the hospital statement was either fabricated by the

Chicago Officers or the Sheriff Detectives—or both. Pl.’s Resp. Defs.’ Mot. Summ. J.

at 21. It is the jury’s role to decide which set of Defendants (if any) are responsible—

or if both are responsible as part of a conspiracy. The dispute on the fabrication claim

boils down to witness credibility: Velez and Izquierdo’s versions of events versus the

CPD and CCSD Officers’. These “questions of witness credibility are reserved for the

jury.” Mohr v. Chicago Sch. Reform Bd. of Trustees of Bd. of Educ. of City of Chicago,

155 F. Supp. 2d 923, 926 (N.D. Ill. 2001) (cleaned up).

Lastly, the Sheriff Detectives argue that Velez and Izquierdo have both testi-

fied consistently with some portions of the account, specifically that Velez and

Izquierdo spoke at the hospital in front of a nurse during which Velez apologized for

her getting shot. This argument is unavailing, however, because testifying that Velez

53

apologized generally is far different from an account that Velez’s apology contained

an incriminating admission that Izquierdo was shot due to him shooting someone.

2. Deprivation of Liberty and Failure to Intervene

Next, the Court dismisses the claim for deprivation of liberty against the Sher-

iff Detectives due to the existence of probable cause, which bars this claim. See supra

III(A)(5). Summary judgment is also granted on the failure-to-intervene claim against

the Sheriff Detectives. Velez has enough evidence to convince a reasonable jury that

Davis and Sullivan fabricated the hospital admission. But, as with Bocardo and Dyra,

Davis and Sullivan cannot intervene in their own conduct. Thus, the failure-to-inter-

vene claim against them is dismissed. See Thompson, 2013 WL 3337801, at *13 (dis-

missing failure-to-intervene claim with prejudice because officer-defendant “cannot

possibly intervene to stop his own conduct”); see also Rosario, 2012 WL 1319806, at

*9 n.2. A jury cannot reasonably infer Davis and Sullivan failed to intervene in their

own conduct.

3. Qualified Immunity

Qualified immunity does not apply to the Sheriff Detectives.9 As previously

explained, see § III.A.7, qualified immunity generally does not shield officers who

9The Sheriff Detectives also argue that they are entitled to qualified immunity based

on alleged unsettled law on whether officers from a single municipality can be liable for con-

spiring with one another. The Court concludes that, at the summary judgment stage, the

fabrication and conspiracy claims against the individual detectives survive. But it might be

appropriate, when this case approaches trial, for the defense to request a jury instruction on

intra-corporate conspiracy (not using that legalese, of course). The Court need not decide this

issue now.

54

fabricate material evidence. See Dominguez, 545 F.3d at 589 (“There was and is no

disputing that [fabricating evidence and withholding material exculpatory evidence]

violates clearly established constitutional rights.”); see also Brown, 633 F. Supp. 3d

at 1154 (no qualified immunity because “it is beyond reasonable dispute that fabri-

cating evidence and conspiring to frame a suspect violates an individual’s constitu-

tional rights”). And Velez’s due process rights were clearly established in 2001. See,

e.g., Fields, 740 F.3d at 1114.

4. Conspiracy

Velez’s federal and state conspiracy claims against the Sheriff Detectives

(Counts 4 and 10) survive summary judgment. The Sheriff Detectives argue that Ve-

lez’s conspiracy allegations are speculative, and that Velez supposedly presents no

evidence of a conspiracy. It is true that a viable conspiracy claim cannot be based on

mere conjecture. But here, Velez has presented sufficient circumstantial evidence of

a conspiratorial agreement to survive summary judgment on this claim. See Kraemer,

892 F.2d at 689 (noting that direct proof of conspiratorial agreement is rare);

McClure, 720 N.E.2d at 258 (conspiracy usually must be established from circum-

stantial evidence); Williams, 2011 WL 133011, at *1.

Velez has presented sufficient evidence from which a reasonable jury could in-

fer that (1) Bocardo and Dyra spoke with Davis and Sullivan and a product of that

conversation was the allegedly fabricated Velez hospital admission; (2) Bocardo and

Goldish fabricated the Izquierdo Statement that contains the hospital statement; and

(3) Bocardo and Dyra fabricated the Velez Statement, which says that Latin King

55

members shot and killed Gent Velez and shot Izquierdo. Again, based on Izquierdo’s

own testimony, Velez presents evidence that Davis and Sullivan did not interview

Izquierdo at the hospital and that Velez never told Izquierdo at the hospital that she

had gotten shot because of something he had done. See PSOAF ¶¶ 44, 46–47, 49;

Izquierdo Dep. Tr. at 23:24–24:2, 31:4–12, 47:2–50:14; Velez Dep. Tr. at 181:4–14,

192:20–195:14. Yet Bocardo and Dyra’s conversation with Davis and Sullivan (re-

flected in the CCSR) says that Davis and Sullivan did interview Izquierdo in the hos-

pital, Velez and Izquierdo had a conversation in Spanish in front of Davis and Sulli-

van, and a nurse later translated the conversation to the detectives, including relay-

ing that Velez told Izquierdo she was shot because of something he had done on an

earlier date. CPDSOF ¶¶ 93–94; CCSSOF ¶ 38; CCSR at 14; Bocardo Dep. Tr. at

248:22–250:8; Dyra Dep. Tr. at 228:3–22, 229:4–230:3.

Based on the record evidence and viewing the evidence in a light most favora-

ble to Velez, a reasonable jury could infer that Davis and Sullivan reached an agree-

ment with the Chicago Officers to fabricate the hospital admission. The circumstan-

tial evidence presented is enough to support a reasonable jury finding that Davis and

Sullivan had a conspiratorial agreement with the Chicago Officers. Summary judg-

ment on the federal conspiracy claim is denied.

The state law conspiracy claim also survives summary judgment. The state

law conspiracy claim can also be established from circumstantial evidence and infer-

ences drawn from that evidence. See McClure, 720 N.E.2d at 258. As explained above,

56

Velez presents sufficient evidence of an agreement between Davis and Sullivan and

the Chicago Officers for the state law conspiracy claim to survive summary judgment.

5. Respondeat Superior and Indemnification

Cook County argues that the respondeat superior claim (Count 9) against it

must be dismissed because the County is not responsible for the actions of the Cook

County Sheriff’s officers. R. 313 (CCSD Mot. Summ. J. Mem.) at 15 (citing Moy v.

County of Cook, 640 N.E. 2d 926 (Ill. 1994)). The County’s argument is well-supported

by the case law, so the respondeat superior claim against the County is dismissed.

See Moy, 640 N.E.2d at 930, 931 (affirming dismissal of vicarious liability claims

against County because the County Sheriff “is not in an employment relationship

with the County of Cook ... [t]herefore, the county may not be held vicariously liable

for the sheriff’s alleged negligent conduct”); see also O’Connor v. County of Cook, 787

N.E.2d 185, 190 (Ill. App. 2003) (holding Cook County did not “bear any vicarious

liability for the acts and omissions of the Sheriff and his staff”); Mohammed v. West-

Care Found., Inc., 2018 WL 2388407, at *4 (N.D. Ill. May 25, 2018) (“It is well estab-

lished that there is no vicarious liability against a county for the actions of elected

officials and their deputies in their individual capacities”) (cleaned up). “This is also

true for supervisors who are named in an attempt to shift liability from employee-

tortfeasors in § 1983 actions and so Sheriff Dart also may not be liable under a theory

of respondeat superior.” Mohammed, 2018 WL 2388407, at *4 (N.D. Ill. May 25,

2018). Accordingly, the respondeat superior claim is dismissed against Cook County

and the Sheriff’s Office on the federal law claims. For the state law claims against

57

the remaining Chicago Officers, respondeat superior liability still remains in the case

as to Chicago, but whether that should be presented to the jury or bifurcated will be

decided at the pretrial-conference stage.

Summary judgment is not granted on the indemnification claim (Count 11)

against Cook County and Sheriff Dart. The County and Sheriff Dart argue for dis-

missal of the claim because Velez cannot prove Davis and Sullivan are liable for any

misconduct. Because Velez has presented sufficient evidence on the fabrication claim

against Davis and Sullivan, this argument fails. The indemnification claim may pro-

ceed. See Carver v. Sheriff of LaSalle Cnty., 787 N.E.2d 127, 141 (Ill. 2003) (holding

that because “the office of the sheriff is funded by the county, the county is therefore

required to pay a judgment entered against a sheriff’s office in an official capacity”);

Carver v. Sheriff of LaSalle Cnty., 324 F.3d 947–48 (7th Cir. 2003) (per curiam); Wil-

son v. Cook County, 2020 WL 5642945, at *3 n.3 (N.D. Ill. 2020); Harris v. Cnty. of

Cook, 2022 WL 425716, at *12 (N.D. Ill. Feb. 11, 2022) (noting “the County remains

a proper defendant because state law requires the County to pay judgments entered

against the Sheriff in his official capacity”).

D. City of Chicago

Velez seeks to hold Chicago liable under Monell for his constitutional injuries

under the theory that the City was deliberately indifferent to a widespread pattern

and practice of (1) fabricating evidence and coercing and pressuring witness to pro-

vide statements officers knew to be false; (2) failing to investigate and discipline CPD

officers for misconduct; (3) condoning a code of silence; (4) withholding material,

58

exculpatory evidence that a witness had been coerced, pressured, or induced to pro-

vide false statements; and (5) failing to supervise CPD officers to prevent misconduct.

A municipality or local government cannot be liable under § 1983 unless the

underlying constitutional deprivation is caused by a municipal policy, custom, or

practice. See Monell, 436 U.S. 658; see also Flores v. City of S. Bend, 997 F.3d 725,

731 (7th Cir. 2021). Three types of action by a municipality support municipal liabil-

ity under § 1983: “(1) an express policy that causes a constitutional deprivation when

enforced; (2) a widespread practice that is so permanent and well-settled that it con-

stitutes a custom or practice; or (3) an allegation that the constitutional injury was

caused by a person with final policymaking authority.” First Midwest Bank Guardian

of Estate of LaPorta v. City of Chicago, 988 F.3d 978, 986 (7th Cir. 2021) (cleaned up).

If Velez relies on a widespread policy or custom, then “he must prove three elements:

(1) a widespread policy or custom, (2) deliberate indifference, and (3) causation.”

Brown, 633 F. Supp. 3d at 1175.

Velez’s evidence on the Monell claim includes prior complaints filed against

certain Chicago police officers; a low rate of sustained complaints against police offic-

ers; and expert reports.10 Velez’s expert, Anthony Finnell, is a former supervising

investigator for Chicago’s Independent Police Review Authority, homicide

10Because this case involves fabrication claims (not suggestive identification), Dr.

Nancy Steblay’s expert report is not probative for summary judgment purposes. The Court

does not rely on Dr. Steblay’s report for summary judgment analysis and thus need not ad-

dress the City’s challenge to Dr. Steblay’s opinion.

59

investigator, and training officer. See R. 329-8. He cites a 2017 DOJ Report and dis-

cusses events from the 1970s, 1980s, and early 1990s. See R. 329-7 (Finnell Rep.) at

23, 26, 36. But these events are too remote in time from the underlying misconduct

alleged here—mostly in 2001—to be relevant in establishing a pertinent practice or

custom. See Brown, 633 F. Supp. 3d at 1148, 1150 (noting that reports concerning

events substantially before or after the events at issue were “immaterial” to Monell

claim analysis); Milan v. Schulz, 2022 WL 1804157, at *5 (N.D. Ill. June 2, 2022)

(explaining that the 2017 DOJ Report focused on police officer shootings and use of

force was not relevant to Monell claim in case involving claims of fabrication and

withholding of evidence).

Also, Velez fails to present evidence sufficient for a reasonable jury to find a

widespread practice of fabrication. Finnel points to prior complaints against Bocardo,

Dyra, and Kato, but it is unclear what conduct all of the complaints targeted. R. 328

(PSOAF to the City) ¶ 54; Finnell Rep. at 49–54; R. 329-21; R. 338-1 (Dyra CR Histo-

ries); R. 338-2 (Kato CR Histories). Finnel lists examples of the complaints, but of

those examples, only a few involved fabrication, and of those few, three are against

Kato and concern incidents from 1992 to 1994, and one is against Bocardo and Dyra

in 2002. See Finnell Rep. at 50–53. See Thomas v. City of Markham, 2017 WL

4340182, at *4 (N.D. Ill. Sept. 29, 2017) (“Allegations of general past misconduct or

allegations of dissimilar incidents are not sufficient to allege a pervasive practice and

a defendant’s deliberate indifference to its consequences.”) (cleaned up).

60

What’s more, the civil lawsuits cited by Velez do not support a widespread

practice of fabrication, because many of the cases settled or had judgment entered in

favor of the defense, and the few in favor of plaintiffs did not involve fabrication. See

Finnell Rep. at 54–56; Miller v. City of Harvey, 2015 WL 5144476, at *4 (N.D. Ill. Aug.

31, 2015) (explaining proffered evidence of settled cases insufficient to survive sum-

mary judgment on Monell claim); Thomas, 2017 WL 4340182, at *4–5 (reasoning most

of lawsuits against defendant-officer were too remote in time from plaintiff’s lawsuit

and involved different claims “not sufficiently similar to infer either a widespread

practice of using excessive force [or deliberate indifference]”).

Lastly, Velez relies on the low sustained rates of complaint registers (CRs),

that is, disciplinary charges, from 1996 to 2001 for his Monell claim. PSOAF ¶ 32. In

that five-year span, there were 18 total allegations of fabricated statements (17 ex-

ternal, 1 internal) of which the one internal allegation was sustained post-investiga-

tion and the 17 external ones were not. Id.; Finnell Rep. at 8, 25. There were also

three allegations (all external) of fabricated statement or fabricated evidence, of

which none were sustained. Although “there is no clear consensus as to how fre-

quently [conduct] must occur to impose Monell liability,” a plaintiff still must demon-

strate “that there is a policy at issue rather than a random event.” Thomas v. Cook

Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010). Here, Velez fails to present

sufficient evidence from which a reasonable jury could conclude fabrication goes be-

yond “individual misconduct by police officers (that is covered elsewhere under

§ 1983) [to] a widespread practice that permeates a critical mass of an institutional

61

body.” Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015) (emphasis in orig.);

see also Bryant v. Whalen, 759 F. Supp. 410, 412 (N.D. Ill. 1991) (“Statistics of unsus-

tained complaints of excessive force, without any evidence that those complaints had

merit, will simply not suffice to establish municipal liability under § 1983”).

Velez, however, does present sufficient evidence of Monell liability based on a

failure to investigate and a failure to discipline specific officers. Velez presents evi-

dence that despite incurring 42 CRs, Kato had never been disciplined by CPD, and

cites Kato’s testimony that he does not recall a supervisor even speaking with him

about complaints against him for coercion. Finnell Rep. at 49; PSOAF to the City

¶¶ 54–56; Kato Dep. Tr. at 213:16–215:3, 254:1–15, 255:10–18; Kato CR Histories.

The Plaintiff’s expert, Anthony Finnell, opines on the integrity of CPD misconduct

investigations from 1996 to 2001, and finds that out of 2,679 allegations, only 111

were sustained after initial investigation and only 62 were sustained after external

review (of which 12 led to discipline). See PSOAF to the City ¶ 38; Finnell Rep. at 7,

24–25, 58. Finnell also finds low rates of sustained complaints that are made by the

public versus internally, procedural deficiencies of investigations, and lengthy delays

of investigations. See Finnel Rep. at 31, 40–46. Viewing the evidence in a light most

favorable to Velez, Velez presents sufficient evidence to survive summary judgment

on his Monell claim against the City based on a failure to investigate and to discipline

theory. See, e.g., Washington, 2022 WL 4599708, at *16–17 (concluding Plaintiff pre-

sented sufficient evidence for Monell claim based on expert opinion on deficiencies of

investigations and discipline); Marcinczyk v. Plewa, 2012 WL 1429448, at *3–4 (N.D.

62

Ill. Apr. 25, 2012) (concluding plaintiff presented sufficient evidence for Monell claim,

including evidence indicating that “minuscule percentage of civil rights complaints

are found to be meritorious after investigations and that officers who have complaints

lodged successfully against them are subject to only minimal discipline”).

A reasonable jury could find a widespread failure to investigate and to disci-

pline caused the Chicago Officers to believe that their alleged “misconduct would not

be discovered and that, even if discovered, [they] would not face any effective disci-

plinary action resulting from such misconduct.” Marcinczyk, 2012 WL 1429448, at *4;

see LaPorta v. City of Chicago, 277 F. Supp. 3d 969, 991 (N.D. Ill. 2017) (“As long as

the causal link is not too tenuous, the question [of] whether the municipal policy or

custom proximately caused the constitutional infringement should be left to the

jury.”) (cleaned up).

Having said that, Velez does not present sufficient evidence on the code-of-

silence theory of his Monell claim. To support a widespread practice of condoning a

code of silence, Velez cites 2015 statements from then-City of Chicago Mayor Rahm

Emanuel, a 2016 statement by the president of the policers officers’ union in Chicago,

the 2017 DOJ Report, the 1990 Goldston Report, and a 1991 statement from the

Christopher Commission. This evidence substantially pre-dates or post-dates the al-

leged misconduct against Velez in 2001, so the evidence is not relevant. See Bedford

v. Dewitt, 2023 WL 2561757, at *23 (N.D. Ill. Mar. 17, 2023) (reasoning that the plain-

tiff fails to meet burden to “establish that such a widespread practice existed at the

time relevant to these events”). Velez also cites the absence of internal allegations of

63

lineup and photo array misconduct as supporting a code of silence. This, though, in

addition to conclusory statements in the report about a code of silence existing and

citations to statements made long before or after the alleged misconduct, is insuffi-

cient to sustain the code-of-silence theory to survive summary judgment.

Velez’s Monell claim also fails at this stage to the extent it relies on a wide-

spread failure to supervise or failure to train. Velez fails to marshal sufficient evi-

dence connecting an alleged widespread failure to train or to supervise with the con-

stitutional violations against him. To support the theory, Velez cites a policy stating

that detectives should function with autonomy; deposition testimony that detectives

conduct their own lineups; an expert report finding inadequate supervision of lineups;

and the alleged little direction from supervisors on Velez’s lineup. Still, Velez fails to

present sufficient evidence from which a reasonable jury could conclude a widespread

practice of failing to train or to supervise, or that this alleged failure directly caused

his constitutional violations. See Milan, 2022 WL 1804157, at *3, 6 (explaining that

plaintiff failed to provide facts linking failure to train to his injuries, which is required

to “permit an inference that the municipal entity has chosen an impermissible way

of operating”) (cleaned up); Barnes v. City of Centralia, 943 F.3d 826, 832 (7th Cir.

2019) (affirming summary judgment where plaintiff failed to provide evidence that

the city failed to properly train its police “much less evidence that a failure to train

or supervise was the moving force” behind her constitutional injury).

The Monell claim also fails to the extent that it relies on a Brady theory. Velez

has not presented sufficient evidence from which a reasonable jury could infer a

64

widespread practice of withholding Brady evidence. The Finnell Report addresses

Brady violations only in passing and does not analyze Brady withholdings in its anal-

ysis of allegations against Chicago police officers. Moreover, Velez does not substan-

tively respond to the City’s motion on this theory.

In sum, the Monell claim survives summary judgment only to the extent that

it is based on a widespread practice of a failure to investigate and to discipline for

fabrication of evidence. (The City does not contest the respondeat superior and in-

demnification claims in its motion, so those claims survive against the City.)

IV. Conclusion

The Defendants’ motions are granted in part and denied in part. For the Chi-

cago Officers, summary judgment is granted on (a) all claims against Officers Patrick

O’Donovan, Bradul Ortiz, Michael Walsh, John A. Cruz, Victor Perez, D. Wolverton

(#20014), A. Jaglowski (#20196), Sergeant Denis Walsh, and Lieutenant John Farrell;

(b) all claims against Sam Cirone and Kriston Kato, except for the failure to inter-

vene; (c) the failure-to-intervene claim against Officers Michael Bocardo and Michael

Dyra; (d) the deprivation of liberty claim; and (e) the malicious prosecution claim.

With regard to Bocardo and Dyra, summary judgment is denied on the claims for

fabrication, emotional distress, and conspiracy, and as to Bocardo, on the Brady claim

as well.

With regard to former prosecutor Goldish, summary judgment is denied on the

claims for fabrication, emotional distress, and conspiracy; and granted on the failure-

to-intervene claim. For Sheriff Detectives Davis and Sullivan, summary judgment is

65

granted on the claims for failure to intervene and deprivation of liberty (and, as con-

ceded by Velez, on the claims for emotional distress, malicious prosecution, and

Brady); and denied on the claims for fabrication and conspiracy. For the County and

the Sheriff’s Office, summary judgment is granted on respondeat superior and denied

on the indemnification claim. Finally, with regard to the City, summary judgment is

denied on the Monell claim based on the failure to investigate and to discipline for

fabrication of evidence, but on all other premises, summary judgment is granted.

With this decision in place, the parties shall engage in settlement negotiations,

starting with a reasonable demand from Velez by October 18, 2023, and a response

from the defense by November 6, 2023. The defense shall file email the demand and

response to the Court’s Proposed Order email account on November 6, 2023. The par-

ties shall file a status report on November 10, 2023. The status hearing of October 6,

2023, is reset to November 17, 2023, at 8:30 a.m.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: September 30, 2023

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