Kwil v. Guevara

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

David Gecht,

Plaintiff,

No. 23 CV 1742

v.

Reynaldo Guevara, et al.,

Defendants.

________________________________________

Richard Kwil,

Plaintiff, No. 23 CV 4279

v. Judge Lindsay C. Jenkins

Reynaldo Guevara, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

In March of 1999, Plaintiffs David Gecht and Richard Kwil were arrested and

interrogated in connection with the murder of Roberto Cruz. Each made an

incriminating confession, was convicted, and served 23 and 24 years in prison before

being exonerated and released. Plaintiffs bring individual actions against the

Assistant Cook County State’s Attorneys (“ASA”) involved in taking their statements,

Cook County, and others. Before the Court are the ASA Defendants and Cook

County’s motions to dismiss the complaints in their entirety. Given that Gecht and

Kwil are related cases, and the parties have filed joint briefs, the Court resolves both

motions in this single order. For the reasons stated below, the motions are granted in

part and denied in part.

I. Background

The Court takes Plaintiffs’ well-pleaded factual allegations as true for purposes

of ruling on the motion to dismiss. See Smith v. First Hosp. Lab’ys, Inc., 77 F.4th 603,

607 (7th Cir. 2023). On January 29, 1999, Roberto Cruz was murdered shortly after

leaving a nightclub in Chicago, Illinois. [Gecht Dkt. 95, ¶¶ 29–31; Kwil Dkt. 50,

¶¶ 25–27.]1 A bouncer gave police descriptions of two men seen arguing with Cruz at

the club. [Gecht Dkt. 95, ¶ 32; Kwil Dkt. 50, ¶ 28.] The next day, police received an

anonymous tip that Ruben Hernandez and another individual, “Benjamin D.,”

bragged that they’d shot Cruz because he owed Benjamin money. The tipster also

correctly stated that Cruz had been killed by his car shortly after leaving a bar in the

area. [Gecht Dkt. 95, ¶¶ 34–35; Kwil Dkt. 50, ¶¶ 30–31.] This information was shared

with Detectives Reynaldo Guevara and Ernest Halvorsen, who are also defendants

in these cases (“Police Defendants”). [Gecht Dkt. 95, ¶ 36; Kwil Dkt. 50, ¶ 32.] Cruz’s

mother confirmed that Hernandez and Benjamin were enemies of Cruz. The

detectives also pulled rap sheets and Central Booking Reports and for the two men

and discovered that Benjamin matched the description of one of the men seen arguing

with Cruz on the night of his murder. [Gecht Dkt. 95, ¶¶ 36–38; Kwil Dkt. 50, ¶¶ 32–

1 Citations to docket filings generally refer to the electronic pagination provided by

CM/ECF, which may not be consistent with page numbers in the underlying documents.

34.] There is no indication that police questioned or took immediate action against

Hernandez or Benjamin. [Gecht Dkt. 95, ¶¶ 39–40; Kwil Dkt. 50, ¶ 35–36.]

Five weeks later, Police Defendants arrested Gecht, Kwil, and Hernandez in a

24-hour period in March of 1999.2 [Gecht Dkt. 95, ¶ 41; Kwil Dkt 50, ¶ 37.] The

complaints do not present a clear timeline of events, but in some order during this

period, all three were individually taken to the Area Five police station for

interrogations resulting in false confessions.

Police Defendants questioned Gecht over several hours, showing him pictures

of Cruz, and feeding him details about how they thought the crime occurred. [Gecht

Dkt. 95, ¶¶ 44, 48, 51.] Throughout this time, Police Defendants physically abused

Gecht, including when he denied involvement in the crime and asked for a phone call

and attorney. [Id. at ¶¶ 47–50.] Gecht was slapped and punched multiple times and

left with a cut in his mouth and a chipped tooth. [Id. at ¶ 50.] Police Defendants told

Gecht that he could go home if he signed a statement confessing to participating in

the crime. [Id. at ¶ 52.] Gecht eventually relented; he gave a signed statement to ASA

Defendant Brenden McGuire confessing to shooting Cruz with Kwil and Hernandez

assisting.3 [Id. at ¶¶ 54, 56.] McGuire “walk[ed]” Gecht through Police Defendants’

version of events and had Gecht confirm them. [Id. at ¶ 59.] McGuire was also present

at Area Five while the interrogation was ongoing. [Id. at ¶ 57.]

2 Ruben Hernandez brought a separate case against the same defendants based on the

same events. Hernandez v. Guevara, No. 23-cv-15375 (N.D. Ill. Oct. 27, 2023).

3 Defendant Brendan McGuire was incorrectly captioned as “Brendan Maguire.” [Gecht

Dkt. 106 at 1.]

Police Defendants also arrested Kwil. As with Gecht, they interrogated Kwil

about Cruz’s murder for multiple hours at the Area Five police station. [Kwil Dkt. 50,

¶ 38.] They attempted to force Kwil to confess to participating in the murder by

yelling at and threatening him. [Id. at ¶ 41.] Over the course of the interrogation,

Police Defendants fed Kwil details about the crime and their theory of how it

occurred. [Id. at ¶ 42.] They showed Kwil a photo of Gecht and told Kwil that he could

go home if he signed a statement confessing that Gecht murdered Cruz. [Id. at ¶ 44.]

Kwil eventually relented and gave a signed statement to ASA Defendant Michael

Hood, confessing that Gecht committed the crime with Kwil and Hernandez assisting.

[Id. at ¶¶ 45–47.] Hood “walk[ed]” Kwil through this version of events to have him

confirm it. [Id. at ¶ 50.] Hood was also present at Area Five while the interrogation

was ongoing. [Id. at ¶ 48.]

Hernandez was arrested the same day and similarly interrogated at Area Five

about Cruz’s murder. [Gecht Dkt. 95, ¶ 62; Kwil Dkt. 50, ¶ 41.] After numerous

interrogations involving physical abuse and accusations, he ultimately gave a false

statement to McGuire implicating himself, Gecht, and Kwil, which he refused to sign.

[Gecht Dkt. 95, ¶¶ 67–68; Kwil Dkt. 50, ¶¶ 61, 65–66.]

Police Defendants also allegedly arrested and interrogated Colleen Miller,

Gecht’s girlfriend, at Area Five. [Gecht Dkt. 95, ¶ 77, 83; Kwil Dkt. 50, ¶ 68, 74.] They

threatened to charge her as well if she did not cooperate and provide a statement.

[Gecht Dkt. 95, ¶ 80; Kwil Dkt. 50, ¶ 71.] Within 20 minutes of being arrested, Miller

provided a statement to McGuire claiming Gecht had confessed to her about the

murder. [Gecht Dkt. 95, ¶ 81, 84; Kwil Dkt. 50, ¶ 72, 75.]

Gecht and Kwil’s statements were used to convict them (and Hernandez), as

co-defendants, of Cruz’s murder. [Gecht Dkt. 95, ¶¶ 60, 75, 88–95; Kwil Dkt. 50,

¶¶ 51, 66, 79–84.] Miller’s statement was also allegedly used to further their

prosecutions. [Gecht Dkt. 95, ¶¶ 86; Kwil Dkt. 50, ¶¶ 77.] Between June 2022 and

July 2023, their convictions were vacated, and the State entered a motion of nolle

prosequi and dismissed all charges against them. [Gecht Dkt. 95, ¶¶ 104–05; Kwil

Dkt. 50, ¶¶ 93–94.]

Plaintiffs filed these lawsuits pursuant to 42 U.S.C. § 1983 raising three

federal and three state law claims against both Hood and McGuire: coercing a false

confession and fabricating evidence in violation of the Fifth and Fourteenth

Amendments (Count II); malicious prosecution and unlawful detention in violation of

the Fourth and Fourteenth Amendments (Count III); failure to intervene (Count IV);

malicious prosecution (Count VII); intentional infliction of emotional distress (Count

VIII); and willful and wanton conduct (Count IX). [Gecht Dkt. 95, ¶¶ 157–77, 197–

209; Kwil Dkt. 50, ¶¶ 146–66, 186–98.] They also bring indemnification claims

against Cook County based on ASA Defendants’ liability (Count XII). [Gecht Dkt 95,

¶¶ 223–24; Kwil Dkt 50, ¶¶ 212–13.]

II. Legal Standard

At the motion to dismiss stage, the Court takes well-pleaded factual allegations

as true and draws reasonable inferences in favor of the plaintiff. Choice v. Kohn L.

Firm, S.C., 77 F.4th 636, 638 (7th Cir. 2023); Reardon v. Danley, 74 F.4th 825, 826–

27 (7th Cir. 2023). “To survive a motion to dismiss under Rule 12(b)(6), plaintiff’s

complaint must allege facts which, when taken as true, plausibly suggest that the

plaintiff has a right to relief, raising that possibility above a speculative level.”

Cochran v. Ill. State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (cleaned

up). This occurs when “the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Garrard v. Rust-Oleum Corp., 575 F. Supp. 3d 995, 999 (N.D. Ill. 2021)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted)).

III. Analysis

Hood and McGuire move to dismiss the complaints on several grounds,

including qualified immunity, improper group pleading, and failure to state a claim.4

The Court addresses each argument in turn.

A. Qualified Immunity

Hood and McGuire argue that all their alleged actions are entitled to qualified

immunity. The doctrine of qualified immunity “protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Siler v. City of Kenosha, 957 F.3d 751, 758 (7th Cir. 2020). This inquiry asks (1)

“whether the plaintiff's allegations make out a deprivation of a constitutional right”

and (2) “whether the right was clearly established at the time of defendant's alleged

4 Hood and McGuire also argue that absolute immunity bars all federal claims against

them. [Gecht Dkt. 106 at 5–10; Kwil Dkt. 57 at 9–10.] Because the Court dismisses all federal

claims and gives Gecht and Kwil an opportunity to cure any pleading defects, there is no need

to address absolute immunity at this stage.

misconduct.” Taylor v. City of Milford, 10 F.4th 800, 806 (7th Cir. 2021). The Court

may consider these issues in either order. Tousis v. Billiot, 84 F.4th 692, 697 (7th Cir.

2023).

Claims are generally not dismissed under Rule 12(b)(6) on qualified immunity

grounds because qualified immunity depends on the facts of the case, and plaintiffs

are “not required initially to plead factual allegations that anticipate and overcome”

an affirmative defense. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)

(quoting Jacobs v. City of Chi., 215 F.3d 758, 765 n.3 (7th Cir. 2000)). However,

resolution at this stage is appropriate when qualified immunity turns on the second

prong—whether the constitutional right at issue was clearly established at the time

it was allegedly violated—because it is purely a legal question. Jacobs, 215 F.3d at

765 n.3.

Hood and McGuire first argue that their actions are broadly entitled to

qualified immunity because Gecht and Kwil have not alleged facts showing the

prosecutors were aware that their confessions were coerced or false. [Gecht Dkt. 106

at 19–20; Kwil Dkt. 57 at 19–20.] But the arguments for dismissal are fact dependent

and dismissal on qualified immunity grounds would be premature. Alvarado, 267

F.3d at 651; Jacobs, 215 F.3d 758, n.3 (“[I]n many cases, the existence of qualified

immunity will depend on the particular facts of a given case.”).

By contrast, qualified immunity as to the failure to intervene claim (Count IV)

can be resolved now as a question of law. Gecht and Kwil claim that Hood and

McGuire failed to stop Police Defendants from violating their constitutional rights

despite having an opportunity to do so. [Gecht Dkt. 95, ¶¶ 172–77; Kwil Dkt. 50,

¶¶ 161–66.] Hood and McGuire counter that there was no clearly established duty for

prosecutors to intervene when Defendants’ alleged misconduct occurred in 1999.

[Gecht Dkt. 106 at 20–21; Kwil Dkt. 57 at 20–21.] The Court agrees.

“To be clearly established, the right must be ‘sufficiently clear that every

reasonable official would understand that what he is doing violates that right.’”

Schimandle v. Dekalb Cnty. Sheriff's Off., No. 23-2151, 2024 WL 3964260, at *4 (7th

Cir. Aug. 28, 2024) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). Plaintiffs must

show that precedent “placed the statutory or constitutional question beyond debate”

or that the “conduct is so egregious and unreasonable that . . . no reasonable officer

could have thought he was acting lawfully.” Id.; see also Hope v. Pelzer, 536 U.S. 730,

741–42 (2002). Notice is key; precedent need not be identical, but it should be “closely

analogous,” such that the “state of the law” at the time of an incident provided “fair

warning” to the defendants “that their alleged [conduct] was unconstitutional.” Tolan

v. Cotton, 572 U.S. 650, 656 (2014) (quoting Pelzer, 536 U.S. at 739).

Gecht and Kwil cite two pre-1999 cases recognizing a duty intervene: Byrd v.

Brishke, 466 F.2d 6 (7th Cir. 1972) and Yang v. Hardin, 37 F.3d 282 (7th Cir. 1994).

[Gecht Dkt. 115 at 26.] Byrd and Yang are not closely analogous to Gecht and Kwil’s

circumstance because they only acknowledge a duty to intervene for law enforcement

officers—there is nothing to suggest that these cases would have put prosecutors on

notice of a similar duty to intervene. The very evolution of the duty to intervene belies

this notion.

Byrd is a “seminal case . . . on the duty of an officer to intervene,” Yang, 37

F.3d at 285 (emphasis added). Since then, the duty of law enforcement officers to

intervene has been widespread in the Seventh Circuit. See, e.g., id. (law enforcement

officers can be liable under section 1983 if they fail to intervene to prevent other

officers from infringing on citizens’ constitutional rights); Harper v. Albert, 400 F.3d

1052, 1064 (7th Cir. 2005) (same); Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009)

(same). By contrast, courts in this district grappled with whether there was such a

duty for prosecutors and repeatedly rejected it. See, e.g., Gordon v. Devine, No. 08 C

377, 2008 WL 4594354, at *17 (N.D. Ill. October 14, 2008); Andrews v. Burge, 660

F. Supp. 2d 868, 876 n.6 (N.D. Ill. 2009); Hobbs v. Cappelluti, 899 F. Supp. 2d 738,

773 (N.D. Ill. 2012).

The tide only turned in 2012 when the Seventh Circuit held (outside of the

failure to intervene context) that “prosecutors and police are subject to the same

constraints” when acting in an investigatory capacity. Whitlock v. Brueggemann, 682

F.3d 567, 581 (7th Cir. 2012). District courts have since interpreted Whitlock to

impose a duty to intervene on prosecutors as well as police officers. See, e.g., Saunders

v. City of Chi., No. 12-cv-09158, 2013 WL 6009933, at *10 (N.D. Ill. Nov. 13, 2013)

(extending failure to intervene liability to prosecutors due to Whitlock); Wilson v.

Burge, 667 F. Supp. 3d 785, 851 (N.D. Ill. 2023) (collecting cases). But these recent

decisions only prove the point: such a right was nonexistent in 1999.

Gecht and Kwil alternatively cite Hope, which held that “officials can still be

on notice that their conduct violates clearly established law even in novel factual

circumstances” where no precedent exists. Hope, 536 U.S. at 741. Hope is reserved

for “rare cases” where the conduct is “so egregious” that it is a “patently obvious”

violation. Leiser v. Kloth, 933 F.3d 696, 702, 704 (7th Cir. 2019) (quoting Jacobs, 215

F.3d at 767). Gecht and Kwil briefly posit that the violations were clear because

prosecutors have a duty to ensure that investigations are constitutionally compliant

and, as lawyers, “they know the rules.” [Gecht Dkt. 115 at 26–27.] But they have not

explained why Hood or McGuire’s alleged conduct was particularly egregious such

that it provides unmistakable notice or shown how it fits into the narrow line of Hope

cases. Instead, they merely presume notice, which is precisely what Hope’s narrow

scope guards against.

Gecht and Kwil had a burden to show a right clearly established in 1999. They

failed to meet it. Consequently, Hood and McGuire are entitled to qualified immunity

on Count IV.

B. Group Pleading

Next, Hood and McGuire argue that the remaining section 1983 claims are

deficient because the complaints use improper “group pleading” by referring to

“Defendants” broadly throughout the complaint instead of specifying which

allegations apply to Hood and McGuire as opposed to Police Defendants. [Gecht Dkt.

106 at 10–14; Kwil Dkt. 57 at 10–14.] Consequently, Hood and McGuire lack adequate

notice as to how they are alleged to have been personally involved in violating Gecht

and Kwil’s constitutional rights. [Id. at 11.]

It is well established that section 1983 lawsuits against individuals “require

personal involvement in the constitutional deprivation to support a viable claim.”

Gonzales v. McHenry Cnty., Ill., 40 F.4th 824, 828 (7th Cir. 2022); see also Johnson v.

Rimmer, 936 F.3d 695, 710 (7th Cir. 2019). “To establish personal liability, the

plaintiff must show that the relevant official ‘caused the constitutional deprivation at

issue’ or ‘acquiesced in some demonstrable way in the alleged constitutional

violation.’” Gonzalez, 40 F.4th at 828 (quoting Palmer v. Marion Cnty., 327 F.3d 588,

594 (7th Cir. 2003)). Despite the personal involvement requirement, “[g]roup

pleading, while not ideal, is not categorically impermissible” for a section 1983 claim.

Fulton v. Bartik, 547 F. Supp. 3d 799, 810 (N.D. Ill. 2021); see also Dukes v.

Washburn, 600 F. Supp. 3d 885, 898 (N.D. Ill. 2022). The Seventh Circuit has allowed

group pleading where, “reading the allegations sensibly and as a whole, there is no

genuine uncertainty regarding who is responsible for what.” Engel v. Buchan, 710

F.3d 698, 710 (7th Cir. 2013).

The complaints satisfy this minimal standard. They separate defendants into

two groups: “Prosecutor Defendants,” consisting of Assistant Cook County State’s

Attorneys Hood and McGuire, and “Police Defendants,” consisting of Chicago Police

officers named as defendants, and largely adhere to this bifurcated terminology

throughout. [Gecht Dkt. 95, ¶¶ 21, 25; Kwil Dkt. 50, ¶¶ 18, 21.] Although Hood and

McGuire identify over 50 paragraphs that use the collective term “Defendants,”

context makes clear which defendants are referenced at any given point.

One portion of these paragraphs consists of factual allegations. [Gecht Dkt. 95,

¶¶ 2–3, 8–9, 14, 16–17, 23, 26, 54–56, 60, 62, 66, 74–75, 77, 85–86, 91, 94, 101, 109–

12, 124–25, 134, 144; Kwil Dkt. 50, ¶¶ 2, 5–7, 13, 20, 22, 51, 53, 66, 68, 77, 79, 82–83,

86, 90, 98–99, 101, 113–14, 123, 133, 139, 149–51, 153, 157, 159, 163, 165, 172, 185,

188, 191, 194, 197–98, 202, 204.] In some cases, the paragraph first references a

subgroup of defendants and thereafter refers to “Defendants” generally. Read in

context, these collective references are unambiguous in whether they refer to Police

or Prosecutor Defendants. [E.g., Gecht Dkt. 95, ¶¶ 23, 77, 109; Kwil Dkt. 50, ¶¶ 20,

68, 98.] Similarly, references to “Defendants” related to the City of Chicago, [E.g.,

Gecht Dkt. 95, ¶¶ 109–11, 124–25, 134, 144; Kwil Dkt. 50, ¶¶ 98–100, 113–14, 123,

133], logically refer to Police Defendants since the complaint defines Police

Defendants as agents and employees of the City of Chicago and Prosecutor

Defendants as agents and employees of Cook County. [Gecht Dkt. 95, ¶¶ 26–27, 221,

223; Kwil Dkt. 50, ¶¶ 22–23, 210, 212.] Other allegations describe “Defendants” as

having participated in violent and psychological coercion and fabricating Hernandez,

Gecht, Kwil, and Miller’s false confessions. [Gecht Dkt. 95, ¶¶ 2–3, 8, 60; Kwil Dkt.

50, ¶¶ 2, 5–6.] But elsewhere, the complaints make the same claims specifically about

Hood and McGuire. [Gecht Dkt. 95, ¶¶ 158–59; Kwil Dkt. 50, ¶¶ 147–48.] Overall, it

is clear what specific actions Hood and McGuire are alleged to have taken, such as

being present at Area Five during the interrogations and walking suspects and

witnesses through their statements. Iqbal, 556 U.S. at 680–81. [Gecht Dkt. 95, ¶¶ 54,

56–57, 59; Kwil Dkt. 50, ¶¶ 46, 48–50.]

Hood and McGuire also point to paragraphs that assert claims using the

collective term “Defendants.” [Gecht Dkt. 95, ¶¶ 150, 160–62, 164, 168, 170, 174, 176,

183, 188, 196, 199, 202, 205, 208–09, 213, 215; Kwil Dkt. 50, ¶¶ 149–51, 153, 159, 163

165, 172, 185, 188, 191, 194, 197–98, 202, 204.] Here too, each count begins by

identifying the specific defendant group it is brought against.5 More general

references to “Defendants” thereafter logically refer to the defendants against whom

the specific claim is made.

Reading each complaint as a whole, “there is no genuine uncertainty regarding

who is responsible for what.” Engel, 710 F.3d at 710.

C. Rule 12(b)(6) Motion

To survive a motion to dismiss for failure to state a claim, Fed. R. Civ. P.

12(b)(6), a complaint must include sufficient factual allegations to show a plausible

right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although “detailed

factual allegations” are not required, the facts in the complaint must present a claim

that rises “above the speculative level.” Id. at 545. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements” cannot by

themselves satisfy Rule 8’s requirement that the complaint show the plaintiff is

entitled to relief. Fed. R. Civ. P. 8(a)(2); see also Iqbal, 556 U.S. at 678.

1. Count II: Coerced & False Confession

Gecht and Kwil’s claims under Count II are two-fold: they bring coerced and

false confession claims under the Fifth and Fourteenth Amendments. They also

assert fabrication of evidence claims under the Fourteenth Amendment.

5 For example, Count VIII refers to both Police and Prosecutor Defendants while Count

I only refers to Police Defendants. [Gecht Dkt. 95, ¶¶ 146, 204; Kwil Dkt. 50, ¶¶ 135, 193.]

References to “these Defendants” later in each count clearly refer to the subgroup initially

identified.

The Fifth Amendment, made applicable to the states by the Fourteenth

Amendment, prohibits the use of “involuntary” or coerced confessions in criminal

cases. Chavez v. Martinez, 538 U.S. 760, 766, 770–71 (2003); Sornberger v. City of

Knoxville, Ill., 434 F.3d 1006, 1023–24 (7th Cir. 2006). To bring a Fifth Amendment

claim, Gecht and Kwil must show (1) that their confessions were involuntary and

coerced, and (2) that their own confessions were used against them in a criminal case.

Chavez, 538 U.S. at 770–71. Fourteenth Amendment claims require a showing of

evidence obtained through “conscience-shocking” conduct, regardless of whether the

evidence is used at trial. Id. at 774. A fabricated evidence claim requires (1) the

defendant knowingly fabricated evidence against the plaintiff, (2) the evidence was

used at his criminal trial, (3) the evidence was material, and (4) the plaintiff was

damaged as a result. Patrick v. City of Chi., 974 F.3d 824, 835 (7th Cir. 2020).

For Hood and McGuire to be liable under section 1983, Gecht and Kwil must

show that the prosecutors were “personally responsible” for deprivation of their

constitutional rights. Childress v. Walker, 787 F.3d 433, 439–40 (7th Cir.

2015). Personal responsibility is established for one who, “having a duty under the

Constitution to the plaintiff, act[s] or fail[s] to act with a deliberate or reckless

disregard of plaintiff's constitutional rights . . . or the conduct causing the

constitutional deprivation occurs at her direction or with her knowledge or consent.”

Id. at 440 (citations omitted) (quotations omitted).

Gecht and Kwil allege that Hood and McGuire “acting as investigators and

without probable cause . . . forced [them] to make false [incriminating] statements

involuntarily and against [their] will[s] . . . which were used against [them] in

criminal proceedings.” [Gecht Dkt. 95, ¶ 158; Kwil Dkt. 50, ¶ 147.] Although they do

not claim that Hood and McGuire directly engaged in all the coercive behavior of

Police Defendants, they claim to allege facts showing that the prosecutors knowingly

and willingly participated in a “course of conduct” that deprived Plaintiffs of their

constitutional rights. [Gecht Dkt. 115 at 20–21.] Hood and McGuire protest that none

of those allegations show that they coerced or fabricated any confession or knew the

confessions were coerced or false. [Gecht Dkt. 106 at 15–16; Kwil Dkt. 57 at 16–16.]

As an initial matter, Gecht and Kwil have improperly lumped both ASA

Defendants together in their coerced confession claims. Each Plaintiff alleges that

only one ASA Defendant took their statement—McGuire took Gecht’s; Hood took

Kwil’s. Neither Plaintiff alleged any other interaction with the other ASA Defendant.

Yet, they each allege that the ASA Defendant with whom they did not interact

violated the Plaintiff’s due process rights by coercing false confessions from their co-

defendants that were used against them in criminal proceedings. For instance, while

McGuire took Gecht’s statement, Hood allegedly violated Gecht’s rights by coercing a

confession from Kwil implicating Gecht.

It is well-established in the Seventh Circuit that “where a plaintiff attempts to

assert a due process claim based upon allegations that [officials] coerced statements

from co-defendants . . . he or she does not state a due process claim, but rather, a

malicious prosecution claim.” Taylor v. City of Chi., 80 F. Supp. 3d 817, 826–27 (N.D.

Ill. 2015) (citing Petty v. City of Chi., 754 F.3d 416, 422–23 (7th Cir. 2014)). As the

Seventh Circuit has explained, “[c]oercing witnesses to speak . . . is a genuine

constitutional wrong, but the persons aggrieved [are the witnesses] rather than [the

arrestee]” and “[r]ights personal to their holders may not be enforced by third

parties.” Buckley v. Fitzsimmons, 20 F.3d 789, 794–95 (7th Cir. 1994). Consequently,

the Court dismisses without prejudice Gecht’s coerced confession claim against Hood

and Kwil’s coerced confession claim against McGuire.6 Their fabricated evidence and

malicious prosecution claims are cognizable against both ASA Defendants in each

case if properly alleged.

The Court next addresses Gecht’s coerced confession claim against McGuire,

Kwil’s coerced confession claim against Hood, and their fabricated evidence claims.

In response to the motion, Gecht and Kwil point to a handful of allegations: (1) Hood

and McGuire were present at Area Five while Gecht, Kwil, and Miller were

interrogated. [Gecht Dkt. 95, ¶ 57; Kwil Dkt. 50, ¶ 48]; (2) during the interrogation,

Police Defendants physically abused Gecht, chipping his tooth and cutting the inside

of his mouth [Gecht Dkt. 95, ¶ 50]; (3) Gecht had a discernable learning disability and

emotional disorder [Id. at ¶ 55]; (4) during the interrogation, Police Defendants

threatened Kwil that he wouldn’t see his daughter again unless he signed a statement

[Kwil Dkt. 50, ¶ 41]; (5) after the interrogations, McGuire took Gecht and Miller’s

statements and Hood took Kwil’s statements implicating themselves, each other, and

Hernandez, which largely consisted of them “walking [each of them] through

6 The parties did not raise this issue in briefing, but the Court exercises its discretion

to address an unpreserved prudential standing question sua sponte. RK Co. v. See, 622 F.3d

846, 851 (7th Cir. 2010).

Defendants’ version of events to have them confirm” it. [Gecht Dkt. 95, ¶ 59; Kwil

Dkt. 50, ¶ 50]; and (6) Hood and McGuire “ignored indicators” that their statements

were “obviously false.” [Id.]

Thin allegations are not fatal at the motion to dismiss stage so long as the

Court can draw reasonable inferences in a plaintiff’s favor that amount to a plausible

claim. Iqbal, 556 U.S. at 678. But on these allegations, the Court would have to strain

to infer that Hood and McGuire participated in coercion or were aware that Gecht

and Kwil had been coerced. First, mere presence at Area Five is insufficient to show

coercion or awareness of it. There are no factual allegations that Hood or McGuire

participated in the interrogation, or allegations explaining how Hood and McGuire

would have known Gecht and Kwil were being interrogated, much less coerced. See

Andrews v. Burge, 660 F. Supp. 2d 868, 877 (N.D. Ill. 2009) (presence at police station

insufficient to show knowledge of coercion).

Once Hood and McGuire were face to face with Gecht and Kwil, knowledge of

coercion would be inferable if there were apparent signs. See, e.g., Abrego v. Guevara,

No. 23-cv-1740, 2024 WL 3566679, at *4 (N.D. Ill. July 29, 2024) (plaintiff’s “body was

marred by bruises” and his “underwear was soiled”); Orange v. Burge, No. 04 C 0168,

2008 WL 4443280, at *11 (N.D. Ill. Sept. 29, 2008) (plaintiff told prosecutor about his

mistreatment by police). But the allegations here fall short. Gecht was allegedly

physically beaten, resulting in a cut in his mouth and chipped tooth. [Gecht Dkt. 95,

¶ 50.] But it’s not apparent that these injuries would be visible or attributable to

recent violence and Gecht does not make the allegation that the injuries were

apparent. It’s also not clear why Gecht’s learning disability or emotional disorder

would indicate coercion. Gecht isn’t alleged to have told McGuire what happened.

Kwil did not allege that he was physically abused at all. His “will was broken,” [Kwil

Dkt. 50, ¶ 45], but there are no allegations about how that visibly manifested. Kwil

also did not allege that he told Hood about the interrogation. Without more, it is not

plausible to infer that Hood or McGuire knew Gecht or Kwil had been coerced.

Finally, Hood and McGuire’s alleged behavior while taking Gecht and Kwil’s

statements only shows fabrication, coercion or knowledge of coercion or false

statements in a conclusory fashion. “[W]alking” a suspect through their statement to

“have them confirm” it is abstract and does not bespeak coercion or fabrication

without more. It is not the same as handing a suspect a pre-typed statement, coaching

a suspect, or feeding them details to include in their statement. Cf. Hill v. Coppleson,

627 F.3d 601, 603–04 (7th Cir. 2010) (prosecutor alleged to have fed plaintiff details

about murder he later confessed to); Orange, 2008 WL 4443280, at *10 (prosecutor

alleged to have coached plaintiff on false confession). Hood and McGuire also

allegedly ignored signs that the statements were false, but there are no factual

allegations showing they knew they were false.

Hernandez and Miller’s interrogations don’t add any more color to Plaintiffs’

fabrication claims. Police Defendants allegedly physically abused Hernandez and

threatened Miller to obtain false confessions against Plaintiffs. [Gecht Dkt. 115 at

18.] Again, the complaints fail to allege that any abuse was visible or otherwise

known to McGuire or explain how he knew their confessions were false. This gap in

the pleadings is fatal for a fabrication claim. Patrick, 974 F.3d at 835.

The Court is aware that this case is one among many brought by exonerated

defendants against former Chicago Police Detective Guevara and his Area Five

colleagues for coercion and other constitutional violations. See, e.g., Abrego, 2024 WL

3566679, at *1 (collecting cases). And it recognizes that ASAs might have been

involved. But plaintiffs still have a burden to allege concrete facts demonstrating that

defendants were personally responsible for any coercion or fabrication that occurred.

They have not done so here.

The Court’s normal practice, in accordance with Seventh Circuit guidance, is

to give one chance to amend after a motion to dismiss is briefed, even if a plaintiff has

amended previously. Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022). And

Seventh Circuit precedent is clear that the Court should err on the side of allowing

an amendment; “a court should deny leave to amend only if it is certain that

amendment would be futile or otherwise unwarranted.” Runnion ex rel. Runnion v.

Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015). The Court

dismisses Count II with leave to amend.

2. Count III: Malicious Prosecution & Unlawful Detention

Count III asserts malicious prosecution and unlawful detention claims under

the Fourth and Fourteenth Amendments.

For malicious prosecution, a plaintiff must allege that: (1) the prosecution was

instituted without any probable cause; (2) the motive in instituting the prosecution

was “malicious”; and (3) a favorable termination of the underlying criminal

prosecution. Thompson v. Clark, 142 U.S. 36, 44 (2022). “Malicious” is defined as

“without probable cause.” Id. Unlawful detention claims also require lack of probable

cause. Manuel v. City of Joliet, 580 U.S. 357, 364–65 (2017).

Given that Gecht and Kwil have not alleged sufficient facts to show that Hood

or McGuire coerced Gecht or Kwil or knew their confessions were false or coerced,

supra Part III.C.1, it follows that Gecht and Kwil have not shown a lack of probable

cause to charge them. Cf. Wilson, 667 F. Supp. 3d at 873 (absence of probable cause

alleged where defendants alleged to have known plaintiff’s confession was coerced).

Thus, the Court also dismisses their Fourth Amendment claims with leave to amend.

Count III also brings malicious prosecution claims under the Fourteenth

Amendment. Hood and McGuire argue that this claim is improper because Gecht and

Kwil also bring malicious prosecution claims under Illinois law. [Gecht Dkt. 106 at

16–17.] Generally, a plaintiff “cannot invoke the substantive due process clause

where state laws provide an adequate postdeprivation remedy for the complained-of

conduct.” Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010). Accordingly, the Seventh

Circuit has rejected federal malicious prosecution claims because Illinois law

recognizes tort claims for malicious prosecution. See e.g., id.; Ray v. City of Chi., 629

F.3d 660, 664 (7th Cir. 2011).

Gecht and Kwil argue that this Court should chart a new course because the

Supreme Court has “implied” that the Fourteenth Amendment can support a

malicious prosecution claim. [Gecht Dkt. 115 at 22–23 (citing McDonough v. Smith,

588 U.S. 109, 115 n.2 (2019)).] The Court declines to do so. McDonough did not

approve such a claim and Thompson, which post-dates McDonough, declined to

consider it. Thompson, 596 U.S. at 43 n.2. Although it might be considered an “open

question,” it is “likely preclude[d]” by the availability of a state remedy. Jones v. York,

34 F.4th 550, 564 n.8 (7th Cir. 2022).

Count III also cites the Fourteenth Amendment as a basis for their unlawful

detention claims. Such a claim only sounds in the Fourth Amendment. “Manuel I

makes clear that the Fourth Amendment, not the Due Process Clause, governs a

claim for wrongful pretrial detention.” Lewis v. City of Chi., 914 F.3d 472, 475 (7th

Cir. 2019) (citing Manuel, 580 U.S. at 365-69); see also Patrick, 974 F.3d at 834.

In sum, the Court dismisses Gecht and Kwil’s Fourth Amendment claims with

leave to amend, and their Fourteenth Amendment claims with prejudice.

IV. Conclusion

For the reasons stated herein, Hood and McGuire’s motions to dismiss are

granted in part and denied in part. Plaintiffs’ Fifth and Fourteenth Amendment

(Count II), and Fourth Amendment claims (Count II) are dismissed without

prejudice. Their failure to intervene (Count IV) and remaining Fourteenth

Amendment claims (Count III) are dismissed with prejudice. Gecht and Kwil may file

amended complaints by or before October 14, 2024. If they do not, their remaining

state law claims (Counts VII, VIII, and IX) will be dismissed for lack of supplemental

jurisdiction, 28 U.S.C. § 13867(c)(8), and their indemnification claims against Cook

County (Count XII) will be dismissed for lack of Cook County ASA defendants to

indemnify. The motions are otherwise denied.

Enter: 23 CV 1742 and 23 CV 4279

Date: September 26, 2024

Lindsay C.Jenkins s—s—

United States District Judge

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