The opinion
In the
United States Court of Appeals
For the Seventh Circuit
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No. 23-3288
ERIC BLACKMON,
Plaintiff-Appellee,
v.
GREGORY JONES, JAMES SANCHEZ, and EUGENE SCHLEDER,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19 CV 767 — Lindsay C. Jenkins, Judge.
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ARGUED AUGUST 6, 2024 — DECIDED MARCH 20, 2025
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Before EASTERBROOK, ST. EVE, and KOLAR, Circuit Judges.
EASTERBROOK, Circuit Judge. Eric Blackmon was arrested in
2002 and charged with murder. He was convicted after a
bench trial in 2004. State judges in Illinois rejected all of his
efforts to upset that conviction. But we directed a district court
to hold an evidentiary hearing on the question whether the
failure of Blackmon’s lawyer to interview potential alibi wit-
nesses made the conviction unreliable. Blackmon v. Williams,
823 F.3d 1088 (7th Cir. 2016). On remand the district court
2 No. 23-3288
found in Blackmon’s favor and ordered him released unless
retried. Blackmon v. Pfister, 2018 U.S. Dist. LEXIS 19874 (N.D.
Ill. Feb. 7, 2018). The state did not appeal and elected to release
Blackmon rather than retry him.
Blackmon then turned the tables and filed this suit under
42 U.S.C. §1983 against three of the police officers who inves-
tigated the crime. Two eyewitnesses to the murder identified
Blackmon as an assailant. Police showed these witnesses a
photo array containing pictures of Blackmon plus several
other persons, and the witnesses also viewed Blackmon and
others in a lineup. Both witnesses identified him at trial. He
asserts in this suit that the photo array and lineup were un-
constitutionally suggestive because he was the only person
who wore his hair in braids—and both witnesses had de-
scribed braids as one of the shooter’s characteristics. The Con-
stitution forbids the use at trial of identifications obtained by
unduly suggestive procedures when those procedures pose a
risk of “irreparable misidentification.” Simmons v. United
States, 390 U.S. 377, 384 (1968). See also, e.g., Manson v.
Brathwaite, 432 U.S. 98 (1977); United States v. Johnson, 745 F.3d
227 (7th Cir. 2014).
The defendant officers moved for judgment on the ground
of qualified immunity. The district court denied this motion
after concluding that it is clearly established that the results
of unduly suggestive photo arrays and lineups must not be
used at trial. Because that legal rule is clearly established—
and has been at least since Simmons was decided in 1968—the
judge concluded that immunity is unavailable. 2023 U.S. Dist.
LEXIS 195021 (N.D. Ill. Oct. 31, 2023). Defendants immediately
appealed.
No. 23-3288 3
Blackmon asks us to dismiss the appeal for lack of juris-
diction. The Supreme Court held in Johnson v. Jones, 515 U.S.
304 (1995), that a pretrial appeal based on a defense of quali-
fied immunity cannot be used to contest issues of fact. Still, a
defendant who denies some or all of a complaint’s factual al-
legations is free to argue that, even if all factual matters are
taken favorably to the plaintiff, qualified immunity is availa-
ble. Brumitt v. Smith, 102 F.4th 444, 448 (7th Cir. 2024). We pro-
ceed on the assumption that Blackmon can prove every fact
he alleges. On this understanding, appellate jurisdiction is se-
cure.
Three years ago the Supreme Court held in Vega v. Tekoh,
597 U.S. 134 (2022), that §1983 cannot be used to obtain an
award of damages against the police for a violation of the Mi-
randa procedures (see Miranda v. Arizona, 384 U.S. 436 (1966))
during the elicitation of statements later introduced at trial.
The Court proceeded in two steps: first, it asked whether the
omission of Miranda warnings is the sort of constitutional vi-
olation that entitles a suspect to damages even if the suspect’s
statements are never used at trial; second, it asked whether
the introduction of these statements at trial changes the out-
come. It answered “no” to both questions. We proceed in the
same manner to address suggestive identifications.
First question: Do the police violate a suspect’s constitu-
tional rights by showing witnesses a suggestive photo array
or conducting a suggestive lineup? They do not. Blackmon
was not present during the presentations of the photo arrays,
and although he was present at the lineups he does not con-
tend that the police violated any right of his by requiring his
attendance. His complaint is not that he was there but that the
other people in the lineup did not look enough like him.
4 No. 23-3288
Suppose a prosecutor had concluded that the lineup or ar-
ray was too suggestive and told the police to put the results in
the file. The material in a drawer would not have violated
Blackmon’s rights—and would not have done so even had the
eyewitnesses said something that led the police to other, more
reliable, evidence. Because conducting identification proce-
dures did not violate Blackmon’s rights, a derivative use also
would not have violated Blackmon’s rights. See United States
v. Payner, 447 U.S. 727 (1980). Blackmon himself describes the
right in question—the right established by Simmons and its
successors—as “the Due Process right to a fair trial” (Br. 25;
see also Br. 26–27 & n.4). And that is exactly how we have de-
scribed the entitlement: a right to a trial untainted by evidence
obtained through unduly suggestive methods. Alexander v.
South Bend, 433 F.3d 550, 555 (7th Cir. 2006).
Second question: Do the police violate the suspect’s consti-
tutional right to a fair trial by introducing into evidence the
results of a suggestive identification? This question focuses
not on the “what” but on the “who”. For the police do not
introduce evidence at trial. That is done by prosecutors, and
rulings on admissibility are made by judges.
A prosecutor’s use of evidence at trial is a weak ground of
liability for police officers. The people who make the deci-
sions—prosecutors and judges—are outside police officers’
control and cannot be liable. A prosecutor has absolute im-
munity for acts during trial. See, e.g., Buckley v. Fitzsimmons,
509 U.S. 259 (1993). The judge too has absolute immunity. See,
e.g., Imbler v. Pachtman, 424 U.S. 409 (1976). The three defend-
ant officers had absolute immunity for their testimony. See
Rehberg v. Paulk, 566 U.S. 356 (2012). These immunities create
a temptation to drop liability on the head of someone who
No. 23-3288 5
might be ordered to pay damages: an officer in his capacity as
an investigator. But since an investigating officer is not re-
sponsible for the decisions of the prosecutor and the judge,
without which there could not have been a problem under the
Due Process Clause, it is hard to see why damages would be
appropriate.
Vega wrapped up by holding that, because Miranda creates
a trial right, the appropriate remedy is one at trial: exclusion
of wrongfully obtained evidence. 597 U.S. at 152. “[E]xcept in
unusual circumstances, the ‘exclusion of unwarned state-
ments’ should be ‘a complete and sufficient remedy.’” Ibid.
That is equally true of eyewitness identifications potentially
influenced by suggestive procedures.
Blackmon had an opportunity to move for the exclusion of
any identification testimony by the two eyewitnesses. Indeed,
his lawyer filed such a motion. Yet, on the day set for the evi-
dentiary hearing, counsel withdrew the motion. The record
does not show why; perhaps this decision, too, reflects inef-
fective assistance. No matter the reason, counsel’s choice can-
not be blamed on the officers. Blackmon had an opportunity
to keep the testimony out of evidence and did not use it.
Vega has a proviso: “unusual circumstances”. What might
these be? It is not hard to imagine them. Suppose the police
coached the witnesses to identify the suspect but told the
prosecutor that they had not done so. Or suppose the police
had only one lookalike in the photo array but then furnished
the prosecutor with a bogus array containing six or eight sim-
ilar persons. By defrauding the prosecutor or otherwise man-
ufacturing evidence, the police could undermine the value of
the safeguards offered against the admission of unduly sug-
gestive evidence. That would create the sort of “unusual
6 No. 23-3288
circumstances” that could justify awards of damages against
the police. Cf. Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988).
Blackmon makes allegations along these lines. He asserts
that the officers lied when they told prosecutors that one of
the eyewitnesses had identified him during the lineup. Black-
mon also maintains that the police later coerced this witness
to testify adversely at trial. These are serious charges and, if
established, would entitle Blackmon to damages. But they are
not at issue on this appeal. The officers have not asked for
qualified immunity with respect to the counts of Blackmon’s
complaint that charge them with manufacturing evidence or
coercing testimony. Their appeal is limited to Blackmon’s
contention that an unduly suggestive photo array or lineup by
itself entitles an accused to damages. And our answer—that it
does not—is limited to that issue. Blackmon’s appropriate
remedy on that subject would have been exclusion of evi-
dence at trial, not damages.
We have so far looked at this suit using the framework es-
tablished by Vega in 2022. A different perspective would ask
whether, in 2002, when the police obtained these identifica-
tions, it was clearly established that investigating officers
could be personally liable under §1983 for conducting a sug-
gestive lineup. The answer is no. Before 2002 neither this cir-
cuit, nor any other, had held that an officer could be liable for
employing suggestive identification procedures. See Hensley
v. Carey, 818 F.2d 646, 649–50 (7th Cir. 1987) (rejecting an ar-
gument for liability under these circumstances, although the
suggestive identification led to pretrial detention).
And it did not become clearly established in the years be-
tween 2002 and 2022 that officers could be personally liable
for suggestive identification procedures. Even as late as 2022,
No. 23-3288 7
this circuit expressed uncertainty about how the law treats
these situations, Holloway v. Milwaukee, 43 F.4th 760, 766 (7th
Cir. 2022). At least one other circuit held that damages for sug-
gestive identification procedures would be “unprecedented
and unwarranted” unless the officer misled the prosecutor or
lied to the judge. Wray v. New York, 490 F.3d 189, 193 (2d Cir.
2007). We agree with Wray that any “violation [of the right to
a fair trial] was caused by the ill-considered acts and decisions
of the prosecutor and trial judge” (and, here, defense counsel
too). Ibid. Blackmon has not cited, and we have not found, any
appellate decision holding police officers liable in damages
when judges allowed prosecutors to introduce suggestive
identifications into evidence at trial. The absence of a clearly
established right entitles the defendants in this case to quali-
fied immunity.
REVERSED