Kiontae Mack v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2662

KIONTAE MACK,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:19-cv-4001 — Lindsay C. Jenkins, Judge.

____________________

ARGUED SEPTEMBER 4, 2024 — DECIDED AUGUST 13, 2025

____________________

Before ROVNER, BRENNAN, and LEE, Circuit Judges.

LEE, Circuit Judge. After a jury acquitted him of various

crimes, Kiontae Mack brought suit against Chicago Police De-

partment (CPD) officers and the City of Chicago under 42

U.S.C. § 1983. Mack alleged, among other things, that the of-

ficers violated his constitutional rights when they detained

him without probable cause, fabricated evidence to support

his prosecution, and coerced an involuntary confession from

him. The district court granted summary judgment for

2 No. 23-2662

Defendants. Because the CPD officers’ detention of Mack was

based on arguable probable cause, entitling them to qualified

immunity; Mack’s acquittal precludes his claim of fabricated

evidence; and his confession was not used against him in any

court proceeding, we affirm.

I

A

Shortly before 2:30 a.m. on August 25, 2012, Stephin Wil-

liams and Breonna Clausell sat in a parked car near 49th Street

and Drexel Avenue. Williams was in the driver seat; Clausell

was in the front passenger seat. Clausell saw two men walk

by. The men then turned around, walked back, and stopped

in front of the parked car. At Clausell’s urging, Williams put

the car in reverse and tried to leave.

At that point, one of the men—later identified as Michael

Tucker—raised a gun and instructed Williams to park the car

and unlock the doors. After Williams complied, the two men

stood at each side of the car—Tucker at the driver side, and

the other man at the passenger side. Tucker took Williams’s

phone and wallet, and the other man took Clausell’s purse.

Williams tried to fight Tucker off, but when that failed, Wil-

liams exited the car and started to run away. Tucker then shot

Williams and fled with the other man. Rushing to where Wil-

liams fell, Clausell called 911.

The parties disagree on the identity of the second man. De-

fendants maintain that Tucker’s accomplice was Mack and

that the two men fled together in the same direction after

Tucker shot Williams. Mack, on the other hand, denies that he

was the second man; rather, on the night of the incident, Mack

says, he was sitting with other people on the steps of a nearby

No. 23-2662 3

building when he saw Tucker approach Williams’s car with

another individual. Mack fled the scene when he heard gun-

shots and started walking down 49th Street alone.

CPD officers Thomas Barnes and Michael Ray were the

first to arrive at the crime scene. Clausell told Barnes that two

black men, one of them lighter skinned and wearing a white

polo-type shirt, had just robbed her and shot Williams. The

officers broadcasted this information over the radio.

Meanwhile, at about 2:30 a.m., University of Chicago Po-

lice Department (UCPD) officers Eric James and Randy Carter

responded to a radio call of shots fired in the area. According

to Defendants, the UCPD officers spotted Mack walking with

Tucker on 49th Street. As their vehicle turned onto 49th Street,

the UCPD officers saw Tucker run down an alley. After relay-

ing this information over the radio, the officers stopped Mack

to question him.

According to Mack, he was stopped by UCPD officers

around 2:30 a.m. on 49th Street, but he denies that he had been

walking with anyone else prior to the stop. He was not carry-

ing any weapons or contraband, and he cooperated with the

officers.

During this stop, UCPD officers James and Carter heard

over the radio that one of the assailants was a lighter com-

plected black male wearing a light-colored polo-type shirt.

According to Defendants, this matched the description of the

person whom the UCPD officers saw running down the alley

before they stopped Mack. The officers then placed Mack in a

police car. Meanwhile, another UCPD officer had arrested

Tucker based on the description that had been broadcast over

4 No. 23-2662

the radio. James and Carter confirmed that the arrestee was

the same person they saw running down the alley.

Back at the crime scene, CPD Sergeant Terry Hoover ar-

rived soon after receiving a radio call about the incident. Hoo-

ver had heard descriptions of the suspects being put out over

the radio. He spoke with Clausell, who repeated her descrip-

tion of the shooter as a lighter skinned black male wearing a

white polo-type shirt. Clausell could not provide a descrip-

tion of the other assailant but stated that she could maybe

identify him if she saw him. Upon learning that UCPD had

two suspects in custody, Hoover requested UCPD to bring

them to the scene to conduct a “show-up.” Within a couple of

minutes, UCPD officers arrived in two cars carrying Tucker

and Mack separately.

Mack’s show-up, which lasted five to ten seconds, in-

volved Hoover opening the back door of the UCPD car, point-

ing his flashlight at Mack’s face, and asking Clausell if she rec-

ognized him as one of the assailants. Mack, who was seated

about six to eight feet from Clausell, heard her say that she

was “not sure” if he was the other assailant. Hoover heard

Clausell say that Mack was “not the person who shot the vic-

tim” but that “he might be the person who was with” the

shooter. Police reports either described Clausell’s identifica-

tion of Mack as a “tentative” identification or indicated that

Clausell “could not positively identify” Mack. Tucker’s show-

up was more conclusive; Clausell said she was “sure” he was

the shooter.

About an hour later, CPD Detective William Davis arrived

at the scene. Davis interviewed Clausell, who told him that

she had “identified” both Tucker and Mack as the assailants.

No. 23-2662 5

Following the show-up, Tucker and Mack were brought to

the police station around 3:44 a.m. and placed in separate in-

terview rooms. Prior to being questioned, Mack was permit-

ted to use the bathroom upon request and to sleep.

CPD Detectives David Roberts and Paul Maderer, who as-

sisted Detective Davis with the investigation, began inter-

viewing Mack at 6:30 a.m. The detectives read Mack his Mi-

randa rights, which Mack waived by agreeing to speak with

the detectives.

Mack initially denied any involvement in the robbery or

shooting, telling the detectives that he had sat and watched

the incident unfold from his nearby perch. Roberts pushed

back, telling Mack that he knew Mack was at the car, but that

Mack had to “take it from there.” Often using profanity-laced

language, the detective repeatedly told Mack that he wanted

to avoid charging Mack with murder, which could result in

fifty years in prison.

About ten minutes into the interview, Mack confessed to

the robbery. He shared specific details from that night, includ-

ing that he had first walked past Williams’s car before return-

ing to it, that Tucker pulled out his gun when the driver

turned on the car, and that he remembered seeing “three fe-

males” in the car. Mack also told the detectives that Tucker

might have taken Clausell’s purse and that, when the driver

got out of the car to run, Tucker shot him, and Mack fled.

However, Mack never admitted to fleeing the scene with

Tucker after the shooting or being alongside him in the

minutes after.

The entire interview lasted about sixteen minutes. After

the interview, the detectives allowed Mack to use the

6 No. 23-2662

bathroom, provided him with something to eat, and let him

sleep in between interview sessions.

Mack was woken up around 11:25 a.m. for an interview

with Assistant States Attorney (ASA) Kevin Deboni. Deboni

identified himself as a prosecutor and informed Mack of his

Miranda rights, which Mack again waived. During his twenty-

minute conversation with Deboni, Mack repeated his admis-

sion to the robbery. He mostly recounted the same details he

had shared with Roberts and Maderer several hours earlier.

Roberts and Maderer also interviewed Clausell. After she

informed them that she “did identify” the two suspects at the

show-up, the detectives showed Clausell two photos, one of

Tucker and one of Mack. Maderer later explained that they

showed Clausell these photos in order to, among other things,

make sure that “the demographics were correct.” Roberts

stated that “[i]t was just a confirmation” so that he could “be

quite certain that Michael Tucker was the one who fired a fire-

arm and Kiontae Mack was the one who took her purse.”

After talking with the detectives, Clausell spoke with ASA

Deboni. Roberts was there as well. Responding to Deboni,

Clausell once again identified Mack as the second assailant

and, according to Roberts, appeared “very confident” in do-

ing so.

Deboni later approved murder and robbery charges

against Tucker and Mack. In September 2012, a grand jury in-

dicted both men for first degree murder, armed robbery, and

various other offenses.

In June 2017, Tucker and Mack were tried at the same time

by separate juries. At the trial, Clausell identified Mack as the

man who had stood by the passenger side of Williams’s car.

No. 23-2662 7

She explained that she was able to identify Mack at the show-

up after she had had “a better look,” recognizing his hair,

clothing, and the visible part of his face. Tucker was con-

victed; Mack was acquitted. By the time of his acquittal, Mack

had been detained for almost five years.

B

After his release, Mack sued the City of Chicago and CPD

officers Hoover, Barnes, Davis, Roberts, and Maderer (collec-

tively the “Individual Defendants”) under 42 U.S.C. § 1983.

Relevant to this appeal, Mack’s claims alleged (1) illegal pre-

trial detention in violation of the Fourth Amendment against

the Individual Defendants; (2) evidence fabrication in viola-

tion of the Fourteenth Amendment against the Individual De-

fendants; (3) coerced confession in violation of the Fifth and

Fourteenth Amendments against Roberts and Maderer; and

(4) malicious prosecution against Davis, Roberts, and Ma-

derer.

The parties filed cross-motions for summary judgment,

and the district court ruled in favor of Defendants on all

claims. This appeal followed.

II

We review grants of summary judgment de novo, “exam-

ining the record in the light most favorable to the nonmovant

and construing all reasonable inferences from the evidence in

his favor.” Moore v. W. Ill. Corr. Ctr., 89 F.4th 582, 590 (7th Cir.

2023) (first citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986); and then citing Tolliver v. City of Chicago, 820 F.3d

237, 241 (7th Cir. 2016)). Summary judgment is appropriate

when “there is no genuine dispute as to any material fact and

8 No. 23-2662

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

A

We begin with Mack’s Fourth Amendment claim against

CPD officers Hoover, Barnes, Davis, Roberts, and Maderer.

The Fourth Amendment “establishes the minimum constitu-

tional ‘standards and procedures’ not just for arrest but also

for ensuing ‘detention.’” Manuel v. City of Joliet, 580 U.S. 357,

365 (2017) (quoting Gerstein v. Pugh, 420 U.S. 103, 111 (1975)).

Specifically, the Amendment “prohibits government officials

from detaining a person in the absence of probable cause.” Id.

at 367. This protection covers detentions that occur both be-

fore the start of legal process and those that happen after. See

id. at 366–67. This means that pretrial detention is unlawful

“when the police hold someone without any reason before the

formal onset of a criminal proceeding,” and also “when legal

process itself goes wrong—when, for example, a judge’s prob-

able-cause determination is predicated solely on a police of-

ficer’s false statements.” Id. at 367.

Mack asserts that the CPD officers lacked probable cause,

not only for his initial arrest but also throughout his years-

long detention. Defendants counter that the officers did have

probable cause to detain Mack and that, in any event, the of-

ficers are entitled to qualified immunity.

Probable cause exists if the “totality of the facts and cir-

cumstances known to the officer at the time of the arrest

would warrant a reasonable, prudent person in believing that

the arrestee had committed, was committing, or was about to

commit a crime.” Pryor v. Corrigan, 124 F.4th 475, 486 (7th Cir.

2024) (quoting Abbott v. Sangamon Cnty., 705 F.3d 706, 714 (7th

No. 23-2662 9

Cir. 2013)). “But even if an officer’s probable cause assessment

is mistaken, qualified immunity may protect him from liabil-

ity.” Mwangangi v. Nielsen, 48 F.4th 816, 825 (7th Cir. 2022).

For qualified immunity to attach under these circum-

stances, “an officer needs only ‘arguable’ probable cause.”

Huff v. Reichert, 744 F.3d 999, 1007 (7th Cir. 2014). “If an officer

has arguable probable cause—meaning that ‘a reasonable of-

ficer in the same circumstances and possessing the same

knowledge as the officer in question could have reasonably

believed that probable cause existed in light of well-estab-

lished law’—we cannot say that the officer violated the plain-

tiff’s clearly established constitutional rights.” Mwangangi, 48

F.4th at 825 (quoting Huff, 744 F.3d at 1007) (citation modi-

fied).

We need not delve into the question of whether the Indi-

vidual Defendants had probable cause to detain Mack, be-

cause we are satisfied that they each had at least arguable prob-

able cause.

1

We start with Sergeant Hoover. When Hoover spoke with

Clausell after arriving at the crime scene, she told him that she

might be able to identify the second assailant if she saw him.

When she saw Mack at the show-up, Clausell said that she

was not sure, but that Mack “might be” the person who was

with the shooter. This identification, even if tentative, was suf-

ficient to support at least arguable probable cause. See McDan-

iel v. Polley, 847 F.3d 887, 895 n.5 (7th Cir. 2017) (credible wit-

ness’s tentative identification can create probable cause); see

also Holloway v. City of Milwaukee, 43 F.4th 760, 769 (7th Cir.

2022) (citing McDaniel for the proposition that “a single

10 No. 23-2662

witness’s identification from a photo array, even if tentative,

can establish probable cause”), cert. denied, 143 S. Ct. 1083

(2023).

In McDaniel, a police officer observed a man pulling a gar-

bage can into a high school parking lot at 2 a.m. and exiting

empty handed. 847 F.3d at 891. About seven hours later, other

officers found a dead woman’s body lying next to a bloodied

garbage can in the same parking lot. Id. The officer subse-

quently identified the plaintiff in a photo-array lineup, saying

that the plaintiff’s photo “look[ed] like” the man he saw pull-

ing the garbage can. Id. at 891, 895 n.5. This identification re-

sulted in the plaintiff’s arrest, and upon release he filed suit.

In response to the plaintiff’s repeated complaints that the

identification was merely tentative, we stressed that this

“does not change our analysis,” because “[a]n officer has

probable cause based on an eyewitness who it seems reason-

able to believe is telling the truth.” Id. at 895 n.5 (internal quo-

tation marks omitted).

We referenced this concept again in Holloway, where the

plaintiff matched the descriptions of the attacker offered by

five victims, had a prior conviction for crimes similar to the

one being investigated, and was tentatively identified by one

of the victims in a photo array. 43 F.4th at 769. There, we con-

cluded that “these facts establish probable cause, notwith-

standing the tentative nature of [the victim’s] identification.”

Id. (citing McDaniel, 847 F.3d at 895 n.5).

Mack attempts to distinguish McDaniel and Holloway,

pointing to the fact that the eyewitness in each case stated that

the subject “look[ed] like” or “resembled” the offender,

whereas Clausell used more conditional language. We agree

that Clausell’s language was less definitive than that in

No. 23-2662 11

McDaniel or Hollaway. But officers can consider the reliability

of the witness as well as the quality of the identification to as-

sess probable cause. Here, with Clausell’s credibility not in

dispute, the officers understandably gave her identification

substantial credence.

But Clausell’s tentative identification was not the sole ba-

sis for Hoover’s decision to detain Mack. Recall that Hoover

believed that the descriptions of the offenders had been put

out over the radio. When he arrived at the crime scene, Hoo-

ver was told that UCPD officers had detained suspects they

believed might be the offenders. At the show-up, Clausell

took just five to ten seconds before telling Hoover that Mack

“might be” the person that accompanied Tucker, whom she

was “sure” was the shooter. Faced with these facts, a reason-

able officer in Hoover’s position “could have reasonably be-

lieved that probable cause existed in light of well-established

law.” Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998) (in-

ternal quotation marks omitted). Thus, even if Hoover did not

have probable cause to detain Mack, he had arguable probable

cause, entitling him to qualified immunity.

The same is true for Davis. Upon arriving at the scene, the

detective was informed that Clausell had “tentatively identi-

fied” Mack. When Davis later interviewed Clausell, she told

him that she had “identified” both Tucker and Mack as the of-

fenders. Davis still understood Clausell’s identification at this

point to be tentative. But as with Hoover, Davis “could have

mistakenly believed that probable cause existed” based on

Clausell’s tentative identification. Humphrey, 148 F.3d at 725;

see also McDaniel, 847 F.3d at 895 n.5.

Roberts and Maderer are also covered by qualified im-

munity, although for slightly different reasons. When the two

12 No. 23-2662

detectives interviewed Clausell, neither had been informed

that her identification of Mack at the show-up was “tenta-

tive.” To the contrary, Clausell told them directly that she

“did identify” Tucker and Mack at the scene, one as the

shooter and the other as the person who took her purse. More-

over, the detectives also had Mack’s confession that he was

the second assailant. Based on the undisputed facts, we agree

with the district court that Roberts and Maderer had at least

arguable probable cause to detain Mack.

2

Mack also claims that the Individual Defendants violated

his Fourth Amendment rights by fabricating police reports

and improperly showing Clausell a single photograph of

Mack to support his detention. “Obviously, law enforcement

officers ‘may not knowingly use false evidence, including

false testimony, to obtain a tainted conviction.’” Coleman v.

City of Peoria, 925 F.3d 336, 344 (7th Cir. 2019) (quoting Napue

v. Illinois, 360 U.S. 264, 269 (1959)). But a claim based on the

alleged fabrication of evidence poses a “high bar to clear”:

Mack must prove not only that Clausell’s identification as de-

scribed in the officers’ reports was false, but also that the of-

ficers “manufactured” it. Id. (quoting Whitlock v. Brueggemann,

682 F.3d 567, 580 (7th Cir. 2012)).

We turn first to Mack’s assertion that the Individual De-

fendants fabricated police reports to manufacture Clausell’s

tentative identification. In support, he contrasts Barnes’s ini-

tial case incident report (which noted that Clausell “could not

positively identify” Mack), with Barnes’s subsequent arrest

report (which stated that Mack “was tentatively identified” as

the second assailant). To Mack, this discrepancy not only cre-

ates a factual dispute as to whether Clausell tentatively

No. 23-2662 13

identified him at all, but also suggests that the officers fabri-

cated the identification. As Mack remembers it, what Clausell

actually said was that she was unsure if Mack was the second

offender.

We see no material inconsistency between Mack’s account

and the varying police reports. Admittedly, the several police

reports documenting the show-up differed slightly in their

descriptions of Clausell’s identification. But the police reports

agree on this much: Clausell did not positively identify Mack,

but she thought he may have been the culprit (although she

was not sure) and did not rule him out. As Barnes and Hoover

each explained, a witness, who is unsure about an identifica-

tion she gives, can fairly be described as giving a tentative

identification. Furthermore, even if the variation in wording

across police reports constitutes a material inconsistency,

nothing in the record suggests that the officers caused Clau-

sell to give them a statement that “they knew—with cer-

tainty—was false.” Coleman, 925 F.3d at 344. Without more,

Mack cannot clear the “high bar” to substantiate his fabrica-

tion-of-evidence claim. Id.

Mack also contends that Detectives Davis, Roberts, and

Maderer falsely reported that Clausell had identified Mack at

the show-up. But, again, Mack offers no facts to support this

narrative, only speculation. This is not enough to survive

summary judgment.

Nor can Mack show that the detectives’ purported fabri-

cation of Clausell’s statement tainted Deboni’s decision to

prosecute him. Instead of relying solely on the detectives’ ac-

counts, Deboni interviewed both Clausell and Mack himself.

Additionally, Clausell “very confident[ly]” identified Mack to

Deboni as the second man, and she explained to Deboni that

14 No. 23-2662

she could identify Mack “specifically by his hair and by the

upper features of his face.” Deboni also heard Mack confess

to his part in the robbery and murder. As such, Deboni’s own

interviews with Clausell and Mack independently provided

grounds for Mack’s prosecution.

Turning to the photograph, in Mack’s view, Roberts and

Maderer’s use of his photo during their interview of Clausell

was unduly suggestive. It is true that “[t]he practice of show-

ing suspects singly to persons for the purpose of identifica-

tion, and not as part of a lineup, has been widely con-

demned.” Stovall v. Denno, 388 U.S. 293, 302 (1967), abrogated

on other grounds by United States v. Johnson, 457 U.S. 537 (1982).

But here, Clausell had already informed Roberts and Maderer

that she had identified both arrestees at the scene before the

detectives presented her with the photographs. What is more,

in addition to Clausell’s identification of Mack, the detectives

also heard Mack’s confession. Thus, even without Clausell’s

identification of Mack in the photograph, the detectives had

at least arguable probable cause to detain Mack.

3

Mack also claims that the Individual Defendants violated

his Fourth Amendment rights by causing his detention with-

out probable cause following the issuance of his indictment.

Manuel, 580 U.S. at 366–67. 1 But Mack’s claim against the In-

dividual Defendants cannot prevail because the Individual

Defendants did not cause his post-legal-process detention.

1 For purposes of Manuel, Mack’s appearance before the state court for

his bond hearing on August 27, 2012, would also constitute legal process.

No. 23-2662 15

“To recover damages under § 1983, a plaintiff must estab-

lish that a defendant was personally responsible for the dep-

rivation of a constitutional right.” Gentry v. Duckworth, 65 F.3d

555, 561 (7th Cir. 1995) (citation omitted). Mack therefore

needs to establish “some causal connection or affirmative link

between the action complained about and the official sued.”

Id. (citation omitted).

Here, Mack cannot show that the Individual Defendants

caused his pretrial detention following the grand jury indict-

ment. This is because “the chain of causation is broken by an

indictment, absent an allegation of pressure or influence ex-

erted by the police officers, or knowing misstatements made

by the officers to the prosecutor.” Reed v. City of Chicago, 77

F.3d 1049, 1053 (7th Cir. 1996); see also Manuel, 580 U.S. at 367

(a police officer may be liable for causing the “legal process

itself [to go] wrong” if “a judge’s probable-cause determina-

tion is predicated solely on [the officer’s] false statements”).

By the time of the grand jury indictment, the evidence in-

cluded not only the police reports that Mack alleged were fab-

ricated, but also Clausell’s positive identification of Mack, as

well as Mack’s confessions to the detectives and Deboni. In-

deed, a grand jury indictment is “prima facie evidence of

probable cause.” Coleman, 925 F.3d at 351 (citation omitted).

And Mack has presented no evidence the CPD officers “ob-

tained the indictment through improper or fraudulent

means.” Id. Accordingly, Mack’s post-legal-process pretrial

detention was properly supported by probable cause. See Ma-

nuel, 580 U.S. at 368.

16 No. 23-2662

4

Turning to Mack’s malicious prosecution claim, he singles

out Davis, Roberts, and Maderer and believes they wrong-

fully initiated the charges against him. The Supreme Court

has recognized malicious prosecution claims under the

Fourth Amendment. See Thompson v. Clark, 596 U.S. 36, 42

(2022) (citing Manuel, 580 U.S. at 363–64, 367–68). And, as the

Supreme Court has held, “the gravamen of the Fourth

Amendment claim for malicious prosecution … is the wrong-

ful initiation of charges without probable cause.” Id. at 43.

Thus, like Mack’s illegal pretrial detention claim, the ab-

sence of probable cause is the keystone of Mack’s malicious

prosecution claim. See Burritt v. Ditlefsen, 807 F.3d 239, 249

(7th Cir. 2015) (“Probable cause to arrest is an absolute de-

fense to any claim under Section 1983 against police officers

for wrongful arrest, false imprisonment, or malicious prose-

cution.”) (internal quotation marks omitted). Here, because

Davis, Roberts, and Maderer had arguable probable cause to

detain Mack for the reasons explained, they are entitled to

qualified immunity as to Mack’s malicious prosecution claim.

Cf. Burritt, 807 F.3d at 249–51 (qualified immunity based on

arguable probable cause justified summary judgment on state

malicious prosecution claim); Washington v. City of Chicago, 98

F.4th 860, 878 (7th Cir. 2024) (“Plaintiffs’ claims for malicious

prosecution fail for the same reason that their Fourth Amend-

ment claims fail—the detectives and courts had probable

cause to detain them.”).

B

We now address Mack’s fabricated-evidence claim under

the Fourteenth Amendment (as opposed to the Fourth

No. 23-2662 17

Amendment). As we recently explained, “[a] claim for a false

arrest or pretrial detention based on fabricated evidence im-

plicates the Fourth Amendment protection against seizures

without probable cause, whereas a claim that fabricated evi-

dence was later used at trial to obtain a conviction violates a

defendant’s rights under the Due Process Clause of the Fifth

and Fourteenth Amendments.” Zambrano v. City of Joliet, 141

F.4th 828, 830 (7th Cir. 2025) (citation omitted).

Mack “may have suffered a violation of his due-process

right to a fair trial [under the Fourteenth Amendment]” if

“fabricated evidence [was] later used at trial to obtain a con-

viction.” Patrick v. City of Chicago, 974 F.3d 824, 835 (7th Cir.

2020). For this Fourteenth Amendment claim, Mack must

show that (1) the CPD officers knowingly fabricated evidence

that was used against him at trial; (2) the evidence was mate-

rial; and (3) Mack was damaged as a result. See id.; see also Fed.

Civ. Jury Instructions 7th Cir. § 7.14 (2017).

Mack’s due process claim cannot prevail for the simple

reason that he was acquitted. “The essence of a due-process

evidence-fabrication claim is that the accused was convicted

and imprisoned based on knowingly falsified evidence[.]” Pat-

rick, 974 F.3d at 835 (emphasis added). Here, the jury did not

convict Mack of any crimes, and Mack has not alleged any

post-trial deprivation of liberty. Because he was not “dam-

aged” by the admission of any evidence, Mack’s Fourteenth

Amendment argument fails. 2

2 Mack’s claim doubly fails because the CPD officers’ reports were

never introduced as evidence (i.e., “used”) against Mack at trial.

18 No. 23-2662

C

Finally, we turn to Mack’s claim that Detectives Roberts

and Maderer coerced his confession in violation of the Fifth

and Fourteenth Amendments. The Self-Incrimination Clause

of the Fifth Amendment provides that “[n]o person … shall

be compelled in any criminal case to be a witness against him-

self.” U.S. Const. amend. V. In addition to making the Fifth

Amendment applicable to the states, the Fourteenth Amend-

ment extends its protection to statements given in response to

interrogation. See Carrion v. Butler, 835 F.3d 764, 775 (7th Cir.

2016) (“A foundational principle of due process of law is that

the state cannot procure a criminal conviction through the use

of an involuntary confession.”) (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 223–26 (1973)).

To prove a Fifth Amendment violation, a plaintiff must

show not only that the confession was coerced but also that

his coerced confession was used against him in a criminal

case. See Chavez v. Martinez, 538 U.S. 760, 767 (2003) (com-

pelled statements “may not be used against a defendant at

trial … but it is not until their use in a criminal case that a

violation of the Self-Incrimination Clause occurs”) (citation

modified). The “courtroom use” could occur during a trial or

a pretrial proceeding. Id. at 777 (Souter, J., concurring); see

Sornberger v. City of Knoxville, 434 F.3d 1006, 1027 (7th Cir.

2006) (finding Fifth Amendment violation where coerced con-

fession was introduced as evidence of guilt at a probable

cause hearing, a bail hearing, and an arraignment proceed-

ing).

Here, Mack already conceded that his confession was not

used at his criminal trial. He therefore is left to argue on ap-

peal that the confession was used during a hearing on his

No. 23-2662 19

motion to suppress the confession. But because Mack did not

raise this argument before the district court, it is waived. See

Sumrall v. LeSea, Inc., 104 F.4th 622, 630 (7th Cir. 2024) (consid-

ering as waived a new theory presented on appeal).

That said, even if this argument were not waived, it fails

on the merits because Mack’s confession was not “used” by

the government as testimony against him during the suppres-

sion hearing. The whole purpose of the hearing—held on

Mack’s motion—was to determine whether the government

could use the confession at trial. The district court held that the

government could, and the government subsequently de-

cided against it. Mack was not “compelled … to be a witness

against himself” during the hearing in any fashion. U.S.

Const. amend. V. 3

III

For the above reasons, we AFFIRM the district court’s

judgment.

3 Because Mack’s confession was not used against him in court, we

need not decide whether the confession was unlawfully coerced to resolve

this appeal.