Sornberger, Scott v. City of Knoxville

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3614

SCOTT SORNBERGER and TERESA

SORNBERGER, individually and on

behalf of their children, CLAUDE

SHINALL and KAYLA BOWDEN,

Plaintiffs-Appellants,

v.

CITY OF KNOXVILLE, ILLINOIS, CITY

OF GALESBURG, RICK PESCI, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 C 1224—Joe Billy McDade, Judge.

____________

ARGUED SEPTEMBER 23, 2005—DECIDED JANUARY 20, 2006

____________

Before, POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Scott Sornberger (“Scott”) and his

wife Teresa Sornberger (“Teresa”)1 spent approximately

four months in jail while awaiting trial for their suspected

1

We refer to the parties by their first names when necessary to

avoid ambiguity.

2 No. 04-3614

involvement in the January 12, 2000 robbery of the First

Midwest Bank (“First Bank”). Eventually, a man admit-

ting to be the true bank robber came forward, and the

Sornbergers were released. They then brought this fed-

eral civil rights action, see 42 U.S.C. § 1983, against Rick

Pesci, the Knoxville, Illinois chief of police, the City of

Galesburg, Illinois and several Galesburg police officers.

The complaint alleged that the Sornbergers had been

arrested without probable cause in violation of the Fourth

Amendment, that Teresa had been coerced into confessing

in violation of her Fifth and Fourteenth Amendment

rights, and that the defendants unlawfully had concealed

evidence. The Sornbergers also brought claims on behalf of

their children for intentional infliction of emotional distress.

At the close of discovery, the defendants moved for

summary judgment. Teresa cross-moved for partial sum-

mary judgment on her false arrest claim against Galesburg

police officer Dennis Sheppard. The district court granted in

full the defendants’ motion for summary judgment, and

correspondingly denied Teresa’s motion for partial sum-

mary judgment. The Sornbergers appealed. For the reasons

set forth in the following opinion, we affirm the judgment

of the district court with respect to the Sornbergers’ conceal-

ment of evidence claim and the children’s claims for

intentional infliction of emotional distress. With respect to

Scott’s claim for unlawful arrest, we affirm the district

court’s determination that Officers Sheppard and Riley

cannot be found liable, but we reverse the entry of summary

judgment in favor of Chief Pesci and Officer Clauge.

Regarding Teresa’s claim for false arrest, we affirm the

determination of the district court that neither Chief Pesci

nor Officer Clauge may be held liable, but we reverse and

remand with respect to Officers Sheppard and Riley. On

Teresa’s claims related to her involuntary confession, we

No. 04-3614 3

reverse the judgment of the district court and remand the

case for further proceedings consistent with this opinion.

We also reverse and remand the district court’s determina-

tion that Galesburg could not be found liable on a theory of

municipal liability for Teresa’s claims.

I

BACKGROUND

A. Facts

On January 12, 2000, First Bank was robbed by a perpetra-

tor wearing a baseball cap. Only two First Bank employees

got a first-hand look at the robber, and only Tracy

Clevenger, the teller who handed money to the robber,

caught a glimpse of the robber’s face. Clevenger described

the perpetrator as male, 5'9", approximately 160 pounds,

dark complected, dark eyes, dark hair, clean shaven and

in his thirties. Knoxville, Illinois Chief of Police Rick

Pesci was the first law enforcement official to arrive at the

scene. He took the robber’s description from Clevenger and

called the FBI to assist in the investigation.

Initially, no eyewitness nor any other First Bank employee

was able to identify the robber. Shortly after the robbery,

however, as three First Bank employees began reviewing

bank surveillance video, Brent Dugan, a First Bank em-

ployee, remarked that the robber “looked like” Scott

Sornberger, who was an acquaintance of Dugan and a

former customer of First Bank. First Bank employees Diane

Carter and Roger Schultz agreed that the perpetrator

captured on video bore some likeness to Scott. After watch-

ing the same footage from a different angle, however,

Dugan remarked that he was less sure of the likeness. Chief

Pesci, who was present intermittently while the employ-

4 No. 04-3614

ees viewed the surveillance tapes, heard at least one of these

comments on the resemblance of the robber to Scott.

Acting on this information, Chief Pesci proceeded to

question the First Bank employees about Scott Sornberger.

Chief Pesci learned that Scott and Teresa had been custom-

ers of First Bank, but that their account had been closed

because of a zero or negative account balance. That evening,

Chief Pesci sent Knoxville police officers to Scott’s work-

place to bring him to the police station for questioning.

When the police found Scott, he stood 5'11", had blond hair,

blue eyes, a fair complexion and a mustache. Despite the

discrepancies between Scott’s appearance and the descrip-

tion of the bank robber, the police proceeded to question

Scott at the station house. They learned that the Sornbergers

had experienced recent financial difficulties. Scott also told

the officers that he had placed a call to Consumer Credit

Counseling earlier in the day. The same evening, Knoxville

officers brought Teresa to the police station for questioning.

They interviewed her outside of Scott’s presence. In the

course of questioning, both Sornbergers offered consistent

alibis: They were together at Scott’s parents’ home, using his

parents’ computer when the robbery occurred.

To assist in the robbery investigation, Chief Pesci obtained

the services of City of Galesburg police officers Dennis

Sheppard, Anthony Riley and David Clauge. All of these

officers are named as defendants in this action. The day

after the robbery, Officer Clauge brought still photographs

from the bank’s surveillance cameras along with digital

photos of Scott to show Illinois State’s Attorney

Paul Mangieri. Mangieri declined to seek an arrest war-

rant for Scott, but successfully obtained a search warrant for

the computer in Scott’s parents’ house to allow Officer

Clauge to confirm Scott’s alibi. Later that day, Officer

No. 04-3614 5

Clauge met again with Mangieri, this time accompanied

by Chief Pesci and FBI agent Jeff Jackson. Officer Clauge

expressed to Mangieri his belief that the pictures of Scott

presented a close match to the ones taken of the robber by

the bank surveillance cameras. At the same meeting, Chief

Pesci told Mangieri about the Sornbergers’ financial prob-

lems and their closed account at First Bank. On the informa-

tion provided by Clauge and Pesci, Mangieri told the

officers that they had probable cause to arrest Scott

for armed robbery. The officers decided to make the arrest

during the execution of the search warrant for Scott’s

parents’ computer. The officers also decided that Officers

Sheppard and Riley would re-interview Teresa if she

could be found at Scott’s parents’ home.

The day after the robbery, when Chief Pesci and Officers

Clauge, Riley and Sheppard arrived at Scott’s parents’

house to execute the search warrant, only Teresa was

present. The parties dispute whether the officers re-

quested or instructed Teresa to accompany them to the

Galesburg police station for questioning. In either case,

she complied and was transported to Galesburg in the

front seat of a police car, unrestrained by handcuffs. Chief

Pesci stayed behind at Scott’s parents’ home and arrested

Scott when he returned.

After Officers Sheppard and Riley arrived at the Gales-

burg Public Safety Building with Teresa, they conducted her

to an interview room and began to question her. This

interview resulted in a verbal and eventually a written

confession from Teresa in which she admitted that she had

assisted her husband in robbing First Bank. Although the

existence of the statement is undisputed, exactly what

occurred during Teresa’s interview is the subject of intense

dispute between the parties. According to Teresa, she was

6 No. 04-3614

told immediately after arriving in Galesburg that she was a

suspect in the robbery. Teresa claims that she was then

psychologically coerced into confessing by Officer Sheppard

who allegedly (1) falsely informed her that witnesses placed

her at the scene of the robbery; (2) “repeatedly told her to

think about her kids”; (3) “yelled at her and accused her of

lying”; (4) falsely promised her that, if she implicated her

husband, she would not be charged with any crime; (5)

“threatened to call the [D]epartment of Children and Family

[S]ervices” (“DCFS”) to take her children away if she

continued to maintain her innocence; and (6) “[r]efused to

honor her request to speak with an attorney.” R.122 ¶ 30.

Teresa also maintains that she did not receive Miranda

warnings until asked to repeat her oral confession to the

Galesburg police stenographer.

According to the defendants’ version, Teresa required

little prodding before she voluntarily began to “tell her

‘story.’ ” R.110 ¶ 33. The officers claim that they told Teresa

that they believed that Scott had committed the rob-

bery, asked Teresa about a witness who had seen Teresa

at the bank on the day of the robbery and implored Teresa

to tell the truth and to think of her children rather than

protecting Scott. The defendants also maintain that Officer

Sheppard advised Teresa of her Miranda rights before

she orally confessed to the robbery.

After hearing Teresa confess, Officer Sheppard brought

Chief Pesci into the interrogation room and asked Teresa

to repeat her statement. She resisted, and the officers

again suggested that she think of her children; this time,

they admittedly made threats to call DCFS. The officers then

presented Teresa with a transcribed version of her confes-

sion and asked her to sign it. Teresa complied.

No. 04-3614 7

Criminal proceedings were instituted against the

Sornbergers for bank robbery by the State of Illinois.

Teresa’s confession was offered into evidence to support the

charges against both her and Scott. Teresa brought a pretrial

motion to suppress her confession, but the Knox County

Court denied the motion after a two-day hearing. Crediting

the officers’ testimony and finding no due process or self-

incrimination violation, the Knox County Court offered the

following rationale:

Here, I think there is no question, the credibility of the

defendant is—has been attacked successfully. . . . She

had to be lying at one time or another, and she admits it

here on the witness stand. . . . I have a tainted—clearly

having told lies to police authorities and people in

positions of authority in the past—type of defendant

here. I have no attack successful or not on the police.

R.111, Ex.15 at 52-62.

While the Sornbergers were imprisoned awaiting trial,

a man named Philip Pitcher committed a string of bank

robberies in Illinois and Indiana. Pitcher resembled Scott

Sornberger, prompting State’s Attorney Mangieri to ask the

FBI to conduct a more detailed comparison of Scott’s

facial features to the images taken by First Bank’s sur-

veillance equipment. The FBI compared Scott’s ear to the ear

of the perpetrator as pictured in the bank’s surveil-

lance photographs. The FBI comparison turned up physi-

cal differences between Scott and the bank robber that

eliminated Scott as a suspect. Charges against the

Sornbergers were dropped, and they were released from jail.

8 No. 04-3614

II

DISCUSSION

A. Standard of Review

We review the district court’s grant of summary judgment

de novo. Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir.

1991). In doing so, we must construe all facts and reasonable

inferences in the light most favorable to the Sornbergers, the

non-moving parties. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); Chortek v. City of Milwaukee, 356 F.3d 740, 745

(7th Cir. 2004). Summary judgment is proper if “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986).

B. The Sornbergers’ Arrests

With respect to the Sornbergers’ claims for unlawful

arrest, the defendants have invoked the defense of qualified

immunity. We shall first set forth the legal framework and

then address each arrest.

Government officials performing discretionary func-

tions enjoy qualified immunity from suit to the extent that

their conduct “could reasonably have been thought con-

sistent with the rights they are alleged to have violated.”

Anderson v. Creighton, 483 U.S. 635, 638-39 (1987); Leaf v.

Shelnutt, 400 F.3d 1070, 1079 (7th Cir. 2005). Because quali-

fied immunity protects the defendant not only from liability

but also from the burdens of standing trial, courts should

determine early in the proceedings whether qualified

No. 04-3614 9

immunity exists. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

To determine whether defendants are entitled to this

defense, we follow a two-step analysis. We first ask whether

the plaintiff has asserted the violation of a federal constitu-

tional right. Id. at 200; Leaf, 400 F.3d at 1080. If such a

violation did occur, we then determine whether the right

was so clearly established at the time of the alleged violation

that a reasonable officer would know that his actions were

unconstitutional. Saucier, 533 U.S. at 202; Anderson, 483 U.S.

at 640.

The constitutional right to be free from arrest without

probable cause indisputably was established at the time

Scott and Teresa were arrested. See, e.g., Beck v. Ohio, 379

U.S. 89, 91 (1964) (“Whether [the defendant’s] arrest was

constitutionally valid depends in turn upon whether,

at the moment the arrest was made, the officers had proba-

ble cause to make it . . . .”). It does not follow, however, that

any arrest made without probable cause necessarily de-

prives the officers of qualified immunity. The Supreme

Court has recognized “that it is inevitable that law enforce-

ment officials will in some cases reasonably but mistakenly

conclude that probable cause is present, and . . . in such

cases those officials—like other officials who act in ways

they reasonably believe to be lawful— should not be held

personally liable.” Anderson, 483 U.S. at 641. Instead, the

relevant question is whether “a reasonable officer could

have believed that probable cause existed” to make the

arrest. Hunter v. Bryant, 502 U.S. 224, 229 (1991) (holding

that officers are protected by qualified immunity where they

possessed trustworthy, but ultimately incorrect evidence,

that a suspect planned to assassinate the President). In this

manner, the doctrine of qualified immunity “gives ample

room for mistaken judgments by protecting all but the

plainly incompetent or those who knowingly violate the

10 No. 04-3614

law.” Id. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 341,

343 (1986)) (internal quotation marks omitted).

1. Scott’s Arrest

Scott contends that his arresting officers unreasonably

concluded that probable cause supported his arrest. Proba-

ble cause is a practical, common-sense determination.

Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir.

1993). The police ordinarily have probable cause when “the

facts and circumstances within their knowledge and of

which they [have] reasonably trustworthy information [are]

sufficient to warrant a prudent [person] in believing that the

[suspect] had committed or was committing an offense.”

Beck, 379 U.S. at 91. The question of probable cause is

typically “a proper issue for a jury if there is room for a

difference of opinion concerning the facts or the reasonable

inferences to be drawn from them.” Maxwell, 998 F.2d at 434.

The district court decided, as an initial matter, that

Officers Clauge, Sheppard and Riley could be not be found

liable for Scott’s arrest because Chief Pesci was the only

arresting officer. As to Chief Pesci, the court concluded that

probable cause in the form of eyewitness testimony, surveil-

lance footage, and motive supported Scott’s arrest and

absolved Pesci of any liability. The district court therefore

awarded the defendants summary judgment, concluding

that no reasonable juror could find that the officers lacked

probable cause to arrest Scott. In the court’s view, the

following “undisputed facts” armed the officers with

probable cause for Scott’s arrest: “(1) an individual familiar

with Scott positively identified him as bearing a strong

resemblance to the robber; (2) pictures of Scott taken the

previous evening at the Galesburg police station objectively

No. 04-3614 11

resembled, to a high degree of certainty, still shots from the

surveillance camera; and (3) an admitted motive—financial

problems.” R.144 at 18.

We respectfully disagree with the district court’s view

as to whether probable cause existed as a matter of law.

Arrayed against the indicators supporting probable

cause are other factors that weigh heavily against a determi-

nation that Scott was the bank robber. First, Scott did

not match—or even come close to matching—the physi-

cal description of the robber that was provided by the

only eyewitness who saw the robber’s face. Secondly,

Brent Dugin, the bank employee who knew Scott, told the

police that, at certain angles of the surveillance footage,

the suspect did not resemble Scott. See id. at 3. Third, the

camera footage itself lacked a clarity of resolution that made

it difficult to discern significant detail. The inconclusive

nature of this footage, in addition to the differences between

the specific description of the bank robber and the actual

appearance of Scott Sornberger, undermines substantially

the determination of probable cause in this instance.

Notably, all of these factors were known to the officers who

arrested Scott. Considering these facts, a reasonable jury

certainly could find that probable cause did not exist.

Accordingly, a determination of probable cause at the

summary judgment stage was improper.

The defendants contend that we nevertheless must

affirm the district court because Scott’s arresting officers

enjoyed qualified immunity. As they correctly point out, the

qualified immunity issue—whether a reasonable offi-

cer could have believed that he had probable cause—

is usually decided by the court before trial. Hunter, 502

U.S. at 228. Moreover, we recognize that, even if probable

cause is lacking with respect to an arrest, the arresting

officer is entitled to immunity so long as his belief that

12 No. 04-3614

he had probable cause was objectively reasonable. See id.

at 227; Edwards v. Cabrera, 58 F.3d 290, 293 (7th Cir. 1995).

However, the qualified immunity doctrine does not pro-

tect those who act unreasonably or “who knowingly vio-

late the law.” Hunter, 502 U.S. at 228. Qualified immunity is,

as the term implies, qualified. It contemplates instances in

which a public official’s actions are not protected because

the official knew or should have known he was violating an

individual’s constitutional rights. See Butz v. Economou, 438

U.S. 478, 506-07 (1978) (“[I]t is not unfair to hold liable the

official who knows or should know he is acting outside the

law, and that insisting on an awareness of clearly estab-

lished constitutional limits will not unduly interfere with

the exercise of official judgment.”).

The present record does not necessarily support a conclu-

sion that Scott’s arresting officers decided, in an objectively

reasonable fashion, that they had probable cause to arrest

Scott. As we described in our analysis of probable cause, the

evidence implicating Scott in the robbery was exceedingly

thin. Scott bore a generic resemblance to the individual

captured on grainy surveillance video and had admittedly

poor finances. The bank employee who had noticed a

resemblance later modified that conclusion in the presence

of Chief Pesci.2 Scott’s physical appearance was inconsis

2

The parties disagree as to whether Chief Pesci actually heard

the bank employee, Brent Dugan, make this later statement.

According to the deposition of Dugan, after seeing the video from

a different angle, which occurred within “a minute or two” of

viewing the footage from the original angle, he commented that

the view from the second angle did not resemble Scott. R.122,

Ex.23 at 39. Chief Pesci, although never asked whether he

heard Dugan’s second comment, testified to having been pres-

(continued...)

No. 04-3614 13

tent with the eyewitness description of the bank robber in

almost every material respect. Nevertheless, federal and

state prosecutors were approached for an authorization to

arrest Scott. See R.136, Tab 7 at 47-48. The United States

Attorney, when approached by the FBI, refused to sanction

Scott’s arrest, citing the need for further investigation.3

Undeterred, Officer Clauge and Chief Pesci then consulted

state’s attorney Mangieri for his opinion on whether there

was probable cause to arrest Scott. The information that the

2

(...continued)

ent while he and Dugan reviewed the surveillance footage

“several” consecutive times. R.136, Tab 1 at 77-80. A reasonable

inference from this testimony (and we must, in this proce-

dural context, draw all inferences in favor of Scott) is that Chief

Pesci heard both of Dugan’s statements.

3

FBI agent Brian Sharkey, who was assisting in the investigation

of the First Bank robbery, testified at his deposition that

he consulted Assistant United States Attorney Dara Lynn

Kanauss regarding whether she wished to arrest Scott on fed-

eral charges. She declined to authorize Scott’s arrest. Agent

Sharkey then rejoined the Galesburg officers to inform them

of the federal prosecutor’s decision. This is how he described

the ensuing conversation:

Basically, I told them that I told—that I had told Dara Lynn

that I felt that there were a few leads that I wanted to track

down further before we did any—before we filed any

charges. She agreed. She thought that we should—we didn’t

at that point, I didn’t feel that this guy was a risk of flight

or that he was going to leave the area, speaking of Mr.

Sornberger. And so we thought that we had time to maybe

track down a few leads, so we were going to—she said

that she was in agreement with me to do that.

R.136, Tab 6 at 55.

14 No. 04-3614

officers presented to Mangieri, however, as far as the record

reveals, appears to have been incomplete and one-sided.

Officer Clauge told Mangieri that Scott was a suspect “based

upon a generalized description of [the] bank robber,” that

Scott had poor finances, and that one bank employee had

remarked that Scott resembled the perpetrator caught on

tape. R.122, Ex.29 at 32-33. Mangieri was also informed of

the Sornbergers’ alibi, and that a neighbor had seen an

individual running behind the Sornbergers’ home near the

time that the robbery was committed. Mangieri was then

shown still-frame photographs from the surveillance video

to compare with photos taken of Scott. Officer Clauge,

however, apparently did not reveal the additional facts that

undermined the likelihood that Scott was the perpetrator.

From the record before us, it appears that Mangieri was not

told that the one actual eyewitness to the crime gave a

description that did not match Scott’s physical appearance.

He apparently was not told that the bank employee who

originally had opined that Scott resembled the perpetrator

on the tape later modified that opinion. He was not shown

the actual tape. In short, the record is susceptible to the

reading that, having heard what the officers wanted him to

hear—and no more—Mangieri opined that probable cause

existed for Scott’s arrest.4

4

In describing the set of information that the officers presented

to him, state’s attorney Mangieri gave the following account:

The information that I had is that they had developed an

investigatory lead based upon a generalized description of

this bank robber, the viewing of the surveillance tape, one of

the bank employees says, [“]It looks like Scott Sornberger,[”]

and then an initial interview of Scott Sornberger and where

he was during the time in question, and some additional

(continued...)

No. 04-3614 15

This record cannot establish that Officer Clauge and Chief

Pesci simply made a good-faith mistake as to the existence

of probable cause. We have held that, when an officer

presents his case in good-faith to a prosecutor and seeks that

official’s advice about the existence of probable cause, his

subsequent action, based on the prosecutor’s advice that

probable cause exists, is powerful evidence that the officer’s

reliance was in good faith and deserving of qualified

immunity. See Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th

Cir. 2004). Here, however, the record, as it comes to us,

hardly establishes such a good-faith seeking of legal advice.

Rather, the record is susceptible to the view that the officers

themselves realized the weakness of their case, and there-

fore manipulated the available evidence to mislead the state

prosecutor into authorizing Scott’s arrest.5 This conduct, as

alleged, creates serious factual issues as to whether the

officers reasonably relied on the prosecutor’s advice. On this

4

(...continued)

information from—that was called in from citizens of

Knoxville that law enforcement had received.

R.136, Tab 5 at 32-33.

5

These circumstances are similar in principle to our cases that

deny qualified immunity to officers who deliberately misrepre-

sent or omit facts in a warrant affidavit. In those cases, officers

will be held to have knowingly violated a plaintiff’s fourth

amendment rights if those officers, in the course of obtaining

a warrant, “had obvious reasons to doubt the accuracy of

the information [they] reported, or failed to inform the judi-

cial officer of facts they knew would negate probable cause.”

Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003);

Neiman v. Keane, 232 F.3d 577, 580 (7th Cir. 2000); cf. Franks v.

Delaware, 438 U.S. 154, 155-56 (1978).

16 No. 04-3614

record, neither Chief Pesci nor Officer Clauge can be entitled

to qualified immunity.6

“A police officer may not close her or his eyes to facts that

would help clarify the circumstances of an arrest.” BeVier v.

Hucal, 806 F.2d 123, 128 (7th Cir. 1986). As we have held,

“[r]easonable avenues of investigation must be pursued”

especially when, as here, it is unclear who committed the

crime. Id. In the present case, the officers had obtained a

warrant for the search of the Sornbergers’ parents’ com-

puter, which would have allowed the investigators to

confirm the couple’s alibi. Rather than waiting to obtain this

critical information, the officers arrested Scott while the

search of his parents’ home was taking place. On this

record, given that the lynchpin of a probable cause de-

termination was on the verge of being obtained, the officers’

arrest of Scott before reviewing the results of the computer

search appears to have been unreasonably premature.

2. Teresa’s Arrest

Teresa’s arrest presents a somewhat different situation.

The parties agree that no probable cause existed to arrest

Teresa until after she confessed to her involvement in the

6

Officers Sheppard and Riley, by contrast, may not be found

liable for Scott’s arrest. There is nothing in the record to sug-

gest that either of these officers were present at the meeting

with state’s attorney Mangieri. Nor were the officers involved

in the actual arrest of Scott. They therefore lacked both the

knowledge of a false arrest and the opportunity to intervene. See

Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Accordingly,

we must affirm the district court’s determination that neither

of these officers could be held liable for Scott’s arrest.

No. 04-3614 17

bank robbery. Instead, the parties dispute whether Teresa

actually was arrested before she confessed. Teresa contends

that, when Officers Sheppard and Riley detained her at

Scott’s parents’ home and subsequently transported her to

the Galesburg police station, she was arrested without

probable cause in violation of the Fourth Amendment. The

defendants take the view that Teresa was not arrested

prior to her confession, and, therefore, probable cause

was not required.

The district court agreed with the officers, rejecting

Teresa’s claim that her arrest occurred when she was

transported from Scott’s parents’ home to the Galesburg

police station. The court concluded that “Teresa was not

‘seized’ within the meaning of the Fourth Amendment at

any time at issue until she confessed, at which time probable

cause existed” to arrest her. R.144 at 27. The court also

determined that Teresa voluntarily consented to accompany

Officers Sheppard and Riley to Galesburg. Alternatively, the

court held that Officers Sheppard and Riley would be

protected by qualified immunity because a reasonable

officer in their position would not have been on notice that

his conduct violated clearly established law. The court also

held that neither Officer Clauge nor Chief Pesci could be

liable for Teresa’s arrest. The two officers had no role in

Teresa’s transportation to the Galesburg police station.

According to the court, they became involved in Teresa’s

detention only after she had confessed, at which point

probable cause supported a lawful arrest.

a. defendants Sheppard and Riley

An arrest occurs when “a reasonable person in the

suspect’s position would have understood the situation to

18 No. 04-3614

constitute a restraint on freedom of movement of the degree

which the law associates with formal arrest.” United States

v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999) (internal quotation

marks omitted). As the Supreme Court has explained:

There is no doubt that at some point in the investigative

process, police procedures can qualitatively and quanti-

tatively be so intrusive with respect to a suspect’s

freedom of movement and privacy interests as to trigger

the full protection of the Fourth and Fourteenth Amend-

ments. And our view continues to be that the line is

crossed when the police, without probable cause or a

warrant, forcibly remove a person from his home or

other place in which he is entitled to be and transport

him to the police station, where he is detained, although

briefly, for investigative purposes. We adhere to the

view that such seizures, at least where not under

judicial supervision, are sufficiently like arrests to

invoke the traditional rule that arrests may constitution-

ally be made only on probable cause.

Hayes v. Florida, 470 U.S. 811, 815-16 (1985) (citations

omitted).

Here, a key factual dispute exists as to whether Officer

Sheppard told Teresa that she “needed” to accompany him

to the Galesburg police station or whether she went volun-

tarily. We do not believe that the district court should have

resolved this factual issue in favor of Officer Sheppard.

Although Teresa responded “Yeah” when asked at a

deposition whether she voluntarily left with the officers,

Officer Sheppard also admitted that he may have told

Teresa that she “needed” to accompany him. Appellants’ Br.

at 40. Resolving inferences in favor of Teresa, as is required

at this stage, a reasonable juror could indeed find that a

No. 04-3614 19

person in Teresa’s position would believe, based on Officer

Sheppard’s need-to-go statement, that she was under arrest.7

See Gardenhire v. Schubert, 205 F.3d 303, 314 (6th Cir. 2000)

(“A police officer’s statement that ‘you need to go’ some-

where carries substantial authoritative weight. We think

very few people could hear such a directive from a police

officer and still think they were free to act otherwise. Once

the police removed the [defendants] from their home to the

police station, the encounter took on an arrest-like nature.”)

(citing Hayes, 470 U.S. at 816).8

Apart from Teresa’s alleged willingness to accompany the

officers, the district court based its finding that no arrest

occurred primarily on the lack of any threat of force by the

officers. However, physical force is not the hallmark of an

arrest. See Dunaway v. New York, 442 U.S. 200, 212 (1979).

The pertinent facts in Dunaway that led to a finding of arrest

were “that (1) the defendant was taken from a private

dwelling; (2) he was transported unwillingly to the police

station; and (3) he was subjected to custodial interrogation

resulting in a confession.” United States v. Sharpe, 470 U.S.

675, 684 n.4 (1985) (discussing Dunaway, 442 U.S. at 212).

Resolving inferences in favor of Teresa, we conclude that the

circumstances of her arrest implicate all three Dunaway

factors.

7

Ascertaining the reasonableness of the suspect’s belief that

she is under arrest is typically a question of fact for the jury. See

Posr v. Doherty, 944 F.2d 91, 99 (2d Cir. 1991).

8

The existence of a triable issue with respect to whether Officers

Sheppard and Riley requested or demanded that

Teresa accompany him also precludes summary judgment on the

district court’s alternative holding that Teresa consented to her

seizure.

20 No. 04-3614

The district court also relied on Teresa’s deposition

testimony that “reveals that she was never accused of a

crime, nor considered a suspect in the robbery.” R.144 at 36.

This characterization ignores, however, Teresa’s deposition

statement that Officer Sheppard told her she was suspected

of a crime prior to her confession. Id. Second, the district

court’s conclusion relied on inferences improperly drawn

from the fact that Sheppard’s questions to Teresa focused on

Scott’s involvement in the robbery. According to the district

court, “Sheppard and Riley’s questioning indicated their

belief that [Teresa] had some knowledge about the robbery

because they believed that Scott was the perpetrator, but

that there is no indication that either Sheppard or Riley

suspected Teresa of participation.” Id. This conclusion

resolved facts in the defendants’ favor that easily could

produce opposite inferences in light of Teresa’s testimony

that Officer Sheppard (1) had questioned her about her

whereabouts during the robbery, and (2) had informed her

that witnesses placed her around the bank. Both factors

would permit a reasonable person to conclude that she was

suspected of a crime.

Finally, the district court concluded that Teresa did not

become a suspect until she verbally confessed. Yet, at the

hearing on the motion to suppress her confession, the

officers claimed that Teresa received her Miranda warn-

ings before verbally confessing. The administration of

Miranda warnings gave clear indication to Teresa that

she was considered a suspect and was likely under arrest

before probable cause was established. See United States

v. Obasa, 15 F.3d 603, 608 (6th Cir. 1994) (holding that

“[a]lthough giving Miranda warnings to a detainee may

not automatically convert a Terry stop into an arrest, it is

evidence that the nature of the detention has grown more

serious”). The officers cannot claim, on one hand, that

No. 04-3614 21

Teresa’s confession was not tainted by a lack of Miranda

warnings and then argue, on the other, that those same

Miranda warnings are not evidence that Teresa was con-

sidered a suspect. The contradiction creates a triable

issue that prevents summary judgment.

We must conclude, therefore, that genuine issues of fact

preclude summary judgment on the issue of whether Teresa

was under arrest before confessing. There remains a dispute

as to: (1) whether Sheppard told Teresa she “needed” to

accompany the officers; and (2) whether the officers read

Teresa her Miranda rights before she confessed. Assuming,

as we must in the procedural context in which this case

comes to us, that Teresa’s version of the events is accurate,

it cannot be maintained that a person, after being told she

must accompany officers to a police station, then having her

Miranda rights read to her, would “have thought [she] was

sitting in the interview room as a matter of choice, free to

change [her] mind and go home to bed.” Kaupp v. Texas, 538

U.S. 626, 632 (2003).

Those same triable issues also preclude a determination

that Officers Sheppard and Riley are entitled to qualified

immunity as a matter of law. See White v. City of Markham,

310 F.3d 989, 993 (7th Cir. 2002) (“The threshold inquiry in a

qualified immunity analysis is whether the plain-

tiff’s allegations, if true, establish a constitutional viola-

tion.”). Viewing the disputed facts in a light most favor-

able to Teresa, a reasonable officer would not have be-

lieved that Teresa’s detention and interrogation were

consensual and that their actions were within the bounds of

the Fourth Amendment. Accordingly, the district court

erred in concluding that Officers Sheppard and Riley

were entitled to qualified immunity.

22 No. 04-3614

b. defendants Pesci and Clauge

Neither Chief Pesci nor Officer Clauge were directly

involved in Teresa’s transportation to the Galesburg

police station. For liability to attach to an officer’s failure

to intervene, that officer must have (1) had reason to

know that a citizen was unjustifiably arrested, and (2) had

a realistic opportunity to intervene to prevent that harm

from occurring. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.

1994).

Teresa’s brief admits that “Clauge, who was Sheppard

and Riley’s supervisor, emphasized to them that they

should request that Ms. Sornberger come to the police

station voluntarily and that they should take her from the

house only if she agreed.” Appellants’ Br. at 12. Clauge’s

instruction cannot be read as authorizing an arrest. He

therefore had no reason to know that Teresa would ever

be arrested without probable cause. On this record, Chief

Pesci had even less involvement in Teresa’s arrest and

virtually no opportunity to intervene. He had remained

outside of Scott’s parents’ home while the search for the

computer was being executed. Chief Pesci’s only interaction

with Teresa came once Teresa had given her oral confession

at the station house, when, as far as Pesci could tell, she was

under lawful arrest. The district court therefore properly

held that, on the record before it, Chief Pesci and Officer

Clauge could not be found liable for Teresa’s false arrest.

C. Teresa’s Confession

The district court held that Teresa was collaterally

estopped from bringing a claim based on her confession in

this § 1983 action because the Knox County Court had

determined, at a suppression hearing in the criminal action,

No. 04-3614 23

that her confession was voluntary. The district court held

inapplicable the conventional bar on using collateral

estoppel when appeal is impossible in the initial proceeding;

it reasoned that, because the state court’s decision rested on

credibility determinations, the decision had little chance of

being reversed on appeal. Principles of issue preclusion,

therefore, prevented Teresa from relitigating the voluntari-

ness of her confession in this civil suit.

In order to evaluate the correctness of this ruling, we

first examine the circumstances surrounding the ruling

in the state trial court. At the conclusion of two days of

testimony from Teresa and from Officers Riley and

Sheppard, the Knox County Circuit Court denied Teresa’s

motion to suppress her confession. The court noted, as a

preliminary matter, that Teresa’s suppression motion

came down to a question of credibility. Over the two days

of testimony, Teresa and the officers had presented dramati-

cally different accounts of what had occurred in the inter-

view room at the Galesburg Public Safety Building. The

Knox County Court ultimately refused to credit Teresa’s

testimony. The court reasoned that, by alleging that her

coerced confession was false, Teresa had proved herself

untrustworthy, and having lied once, Teresa could not be

believed when testifying at the suppression hearing.

Having made this threshold credibility finding, the

Knox County Court resolved the Miranda issue; it stated

simply: “I believe the officers. I do not believe the defen-

dant.” R.111, Ex.15 at 55. The more subtle question of

whether Teresa’s confession was voluntary for purposes of

due process gave the court greater difficulty. The court

found most troubling the consistent testimony that the

officers made certain statements to Teresa regarding her

children’s future. Nevertheless, the court eventually

24 No. 04-3614

found that the statements made before Teresa’s initial,

verbal confession consisted only of permissible appeals to

Teresa’s “priorities” and “system of values.” Id. at 60. In the

court’s view, the threatening references to Teresa’s children

being taken away were not made, if at all, until after she had

verbally confessed. On the issue of whether the later threats

tainted Teresa’s written confession, the court stated simply,

“I am letting in the written statement because the attack is

not sufficient.” Id. at 62.

1. Collateral Estoppel

With this background, we now turn to the ruling of the

district court. As we noted earlier, the court determined that

the decision of the Knox County Court on Teresa’s suppres-

sion motion collaterally estopped her from relitigating

whether her confession was Miranda-infirm or involuntary.

The doctrine of collateral estoppel generally bars relitigation

of issues that were litigated fully and decided with finality

in a previous proceeding. Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 398 (1981); Lee v. City of Peoria, 685 F.2d

196, 199-202 (7th Cir. 1982) (applying Illinois law). Illinois

law,9 however, provides that collateral estoppel is unavail-

able when: (1) “additional evidence” is discovered after the

prior decision; or (2) the party against whom preclusion is

sought was unable to appeal the judgment in the initial

action. Teresa argues that both exceptions apply to her case

and deprive the suppression ruling of preclusive effect. In

this case, we believe that the unavailability of an appeal is

determinative.

9

Illinois law determines the preclusive effect, if any, of a

judgment rendered by an Illinois court. See 28 U.S.C. § 1738; Rekhi

v. Wildwood Indus., 61 F.3d 1313, 1317 (7th Cir. 1995).

No. 04-3614 25

Teresa relies on People v. Mordican, 356 N.E.2d 71, 73 (Ill.

1976), in which the Supreme Court of Illinois held that

collateral estoppel cannot be asserted against a criminal

defendant who “had no opportunity to obtain a review of

the correctness of the ruling made in his earlier [proceed-

ing].” In Mordican, a criminal defendant was unable to

appeal the denial of his motion to suppress evidence in a

prior trial because the trial had ended in an acquittal. When

the defendant was subsequently tried on a separate criminal

charge stemming from the same events, he again sought to

suppress the same evidence. The trial court denied the

defendant’s motion on the grounds that the issue had been

adjudicated during the first criminal proceeding. The

defendant ultimately was convicted of the charges brought

against him at the second trial. On appeal, the Supreme

Court of Illinois held that acquittal of a criminal defendant

forecloses the application of collateral estoppel in subse-

quent proceedings. Id. at 74. The court reasoned that a

defendant who is acquitted has no opportunity to obtain

appellate review of rulings made by the trial judge during

the course of the trial. Id. Because of this “peculiar circum-

stance,” rulings by the trial judge cannot bind an acquitted

defendant in later proceedings through the doctrine of

collateral estoppel. Id. Recent Illinois decisions demonstrate

the continued vitality of this rule. See, e.g., People v.

Weilmuenster, 670 N.E.2d 802, 808-09 (Ill. App. 1996).

Whether Mordican applies in the civil context, however,

has not yet been decided by Illinois courts. Language in

Mordican indicates that its holding may indeed be confined

to the criminal context. See id. (“The extent to which the

doctrine of collateral estoppel may be used against a

defendant in a criminal case is, of course, severely lim-

ited.”). Subsequent Illinois cases, however, have hinted in

dicta that the Mordican rule applies with equal force in the

26 No. 04-3614

civil context and bars a civil litigant from using collateral

estoppel against a party who had no chance to appeal. See,

e.g., Morris B. Chapman & Assocs., Ltd. v. Kitzman, 739 N.E.2d

1263 (Ill. 2000) (applying Missouri law); Cirro Wrecking Co.

v. Roppolo, 605 N.E.2d 544, 553 (Ill. 1992) (citing Restatement

(Second) of Judgments § 28(1), which “recognizes an

exception to the application of collateral estoppel where the

party against whom preclusion is sought was unable, as a

matter of law, to appeal the judgment in the initial action”).

Recognizing its duty to predict how Illinois’ highest

court would decide this case, the district court held that,

“if the Illinois Supreme Court were to consider the facts of

this case, they would not find [that] the inability to appeal

barred application of collateral estoppel principles.” R.144

at 47. In reaching this conclusion, the district court relied

heavily on the Northern District of Illinois’ decision in

Thompson v. Mueller, 976 F. Supp. 762 (N.D. Ill. 1997).

Thompson held that the absence of appellate review of a

state-court decision finding probable cause to arrest a

defendant was insufficient to prevent the application of

collateral estoppel in the defendant’s subsequent § 1983

action against the arresting officers. In Thompson, the district

court cabined Mordican to the criminal context, and relied

upon the acknowledgment of the United States Supreme

Court that “the availability of appellate review is not always

an essential predicate of collateral estoppel.” Id. at 766

(citing Standefer v. United States, 447 U.S. 10, 23 n.18 (1980)).

Mindful that the doctrine of collateral estoppel is concerned

primarily with whether “the result achieved in the initial

action was substantially correct,” the court in Thompson

focused its inquiry on, whether, under the particular facts of

the case before it, application of collateral estoppel would be

unfair or unjust. Id. The court concluded that Thompson’s

No. 04-3614 27

inability to appeal did not bar the use of collateral estoppel

“because (1) the issue of probable cause was litigated

thoroughly in the state court; (2) the judge’s decision rested

on the credibility determinations of several witnesses; and

(3) the possibility of the decision being reversed on appeal

was, at best, extremely low.” Id.

Here, the district court considered that the relevant facts

are “practically identical” to the facts in Thompson. R.144

at 51. Reasoning that, because the Knox County Court’s

decision on Teresa’s suppression motion rested on cred-

ibility determinations that are virtually never overturned on

appeal, the result in the initial action was “substantially

correct.” Thompson, 976 F. Supp. at 766. Accordingly, the

district court held that Teresa’s inability to appeal did

not preclude application of collateral estoppel.

We respectfully decline to adopt the reasoning of the

district court. In our view, the court erred, both in refusing

to extend Mordican to the § 1983 context, and in its applica-

tion of the principles from Thompson. Mordican cited approv-

ingly language from People v. Hopkins, 284 N.E.2d 283, 284

(Ill. 1972), which stressed the limited applicability of

collateral estoppel against a criminal defendant. The

rationale for this limitation, Hopkins explained, is that

a defendant, unlike the prosecution, is not allowed an

immediate appeal from an adverse ruling upon a

motion to suppress. He cannot review that ruling

until after he has been convicted and sentenced. And for

a variety of reasons he might not wish to appeal, or as

in the case of an acquittal at the first trial, he might not

be able to do so.

Id. As this language indicates, the concerns that limit

application of collateral estoppel in the criminal context

28 No. 04-3614

arise out of problems of appealability for criminal defen-

dants, rather than the nature of subsequent proceedings.

The situation in Teresa’s case certainly is no different. She

was, at the time of the suppression hearing, a crim-

inal defendant like the defendants in Mordican and Hopkins.

Teresa similarly was limited in her ability to test the correct-

ness of the trial court’s ruling through appellate review.

Because the problem in Mordican was that the criminal

defendant could not appeal the initial ruling, we see no

reason why Mordican would not extend to a criminal

defendant, similarly unable to appeal, merely because she

protests the use of collateral estoppel against her in a

subsequent § 1983 action instead of in a subsequent criminal

proceeding. Therefore, it appears highly likely that the

Supreme Court of Illinois would extend the rule in Mordican

to cover situations like Teresa’s.10

Collateral estoppel is an equitable doctrine. Jones v. City of

Alton, 757 F.2d 878, 885 (7th Cir. 1985); Talarico v. Dunlap,

685 N.E.2d 325, 328 (Ill. 1997). Even when the technical

10

Such an extension would bring Illinois into conformity

with other courts that have addressed this issue. Each applied the

approach of the Restatement and refused to allow col-

lateral estoppel in a subsequent civil trial against a criminal

defendant who had been unable to appeal the initial ruling. See,

e.g., Looney v. City of Wilmington, 723 F. Supp. 1025, 1033 (D. Del.

1989) (applying Delaware law); Lombardi v. City of El Cajon, 117

F.3d 1117, 1121-22 (9th Cir. 1997) (applying California law);

AKAK, Corp. v. Commonwealth, 567 S.E.2d 589, 639-40 (Va. App.

2002); see also Restatement (Second) of Judgments § 28(1) (allow-

ing relitigation of an issue if “the party against whom preclusion

is sought could not, as a matter of law, have obtained review of

the judgment in the initial action”).

No. 04-3614 29

conditions of the doctrine are met, collateral estoppel

must not be applied to preclude an issue “unless it is

clear that no unfairness results to the party being estopped.”

Talarico, 685 N.E.2d at 328. True, the Knox County Court’s

suppression ruling relied in large part on credibility deter-

minations. These credibility findings flow, however, from a

line of circular reasoning. The Knox County Court decided

that, because Teresa claimed she was coerced into a false

confession, she established a record of lying to public

officials and therefore could not be trusted to testify truth-

fully at the suppression hearing. This logic unfairly counts

against a defendant an untruth that the defendant now

contends was made because of physical or psychological

threats. Indeed, the Knox County Court’s reasoning would

prohibit, as a practical matter, any involuntary confession

from ever being suppressed on the testimony of the defen-

dant, no matter how strong that testimony otherwise might

be. If a defendant could not be credited at a suppression

hearing due to the admitted falsity of her confession, the

officers’ version of the events would invariably carry the

day. As the Knox County Court pointed out, suppression

motions often turn on whether the court believes the

officers’ or the defendant’s account of the events leading to

confession. The court, however, set up a credibility analysis

that decided the issue before hearing any testimony. In these

circumstances, it would be extremely unfair to hold Teresa

to the unappealable judgment of a court that used unsound

reasoning to resolve credibility. Collateral estoppel therefore

cannot bar relitigation of the voluntariness of Teresa’s

confession.

30 No. 04-3614

2. The Merits of Teresa’s Fifth and Fourteenth

Amendment Claims

The facts in the record before us certainly do not establish,

as a matter of law, that Teresa’s confession was free of police

coercion. Threats to a suspect’s family or children, even if

implicit, certainly may render confessions involuntary for

purposes of due process. See, e.g., Lynumn v. Illinois, 372 U.S.

528, 533 (1963) (confession coerced when police told a

female suspect that she was in jeopardy of losing welfare

benefits and custody of her children); Rogers v. Richmond,

365 U.S. 534, 543 (1961) (confession coerced when police

threatened to take suspect’s wife into custody if he did not

confess); Spano v. New York, 360 U.S. 315, 323 (1959) (confes-

sion coerced when officer, a close friend of defendant, told

defendant that officer would get in trouble if defendant did

not confess). Moreover, the parties vehemently dispute

which threats Officers Sheppard and Riley actually made to

Teresa and when the officers made those threats. These

issues of fact preclude summary judgment.

There are similar issues of fact regarding whether Teresa

received Miranda warnings before she confessed. The

defendants contend, nevertheless, that we must affirm the

district court’s Miranda ruling because of Chavez v. Martinez,

538 U.S. 760 (2003), in which the Supreme Court narrowed

the availability of the Fifth Amendment as a basis for civil

liability.11 In Chavez, the § 1983 plaintiff Martinez had made

11

Chavez left open the possibility that a plaintiff could pursue a

claim for violation of substantive due process in the event of

genuine physical or mental coercion surrounding her confession:

[A]ny argument for a damages remedy in this case must

depend not on its Fifth Amendment feature but upon the

(continued...)

No. 04-3614 31

incriminating statements while in police custody without

receiving Miranda warnings. He never was prosecuted, but

filed a § 1983 action against Chavez, the officer who had

questioned him. In that action, Martinez alleged that Chavez

violated his Fifth Amendment right to be free from self-

incrimination as well as his Fourteenth Amendment sub-

stantive due process right to be free from coercive question-

ing. The Supreme Court, in a plurality opinion, held that the

police officer’s questioning of Martinez without Miranda

warnings did not violate his rights under the Self-Incrimina-

tion Clause of the Fifth Amendment because his compelled

statements had not been used against him in a criminal case.

The plurality reasoned that Miranda “created prophylactic

rules designed to safeguard the core constitutional right

protected by the Self-Incrimination Clause,” id. at 770,

namely that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself,” id. at 766

(citing, with added emphasis, U.S. Const. amend. V). The

phrase “criminal case,” as it is employed in the Self-Incrimi-

nation Clause, requires, at the very least, the initiation of a

legal proceeding, rather than mere police questioning,

before a suspect’s self-incrimination rights are implicated.

Id. at 767 (“Statements compelled by police interrogations of

11

(...continued)

particular charge of outrageous conduct by the police,

extending from their initial encounter with Martinez through

the questioning by Chavez. That claim, however, if it is to be

recognized as a constitutional one that may be raised in an

action under § 1983, must sound in substantive due process.

Chavez v. Martinez, 538 U.S. 760, 779-80 (2003) (Souter, J., joined

by Stevens, Kennedy, Ginsburg & Breyer, JJ.). Teresa’s claim

that her confession was the result of psychological coercion

is therefore unaffected by Chavez.

32 No. 04-3614

course 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.”).12 Martinez never

was prosecuted. Consequently, the absence of a criminal

case “in which Martinez was compelled to be a ‘witness’

against himself” defeated his claim for damages based on

the Self-Incrimination Clause. Id. at 773.

After Chavez, therefore, violation of the Miranda safe-

guards cannot provide the basis for § 1983 liability without

use of a suspect’s statements against him in a “criminal

12

Two other Justices also rejected the self-incrimination claim,

but did so in less absolute terms. They noted a cause of action

based on the Miranda protections may be available, but only if the

Fifth Amendment’s “core guarantee, or the judicial capacity to

protect it, would be placed at some risk in the absence of such

complementary protection.” Chavez v. Martinez, 538 U.S. 760, 778

(2003) (Souter, J., joined by Breyer, J., concurring). They added

that the plaintiff had not made the requisite “powerful showing”

needed to come within this exception, especially since he

“offer[ed] no limiting principle or reason to foresee a stopping

place short of liability in all . . . cases” where Miranda was

violated. Id. at 779. The remaining members of the Court con-

tended, in dissent, that the Self- Incrimination Clause “provides

both assurance that a person will not be compelled to testify

against himself in a criminal proceeding and a continuing right

against government conduct intended to bring about

self-incrimination. . . . The principle extends to forbid policies

which exert official compulsion that might induce a person into

forfeiting his rights under the Clause. . . .” Id. at 791-92 (Kennedy,

J., joined by Stevens & Ginsburg, JJ., dissenting). According to the

dissenters, “[t]he conclusion that the Self-Incrimination Clause is

not violated until the government seeks to use a statement in

some later criminal proceeding strips the Clause of an essential

part of its force and meaning.” Id. at 793.

No. 04-3614 33

case.” The plurality in Chavez declined to define “the precise

moment when a ‘criminal case’ commences.” Id. at 766 (“[I]t

is enough to say that police questioning does not constitute

a ‘case.’ ”). At the very least, Chavez requires “the initiation

of a legal proceeding.” Id. In the paradigmatic Miranda case,

the Fifth Amendment is violated when a criminal defen-

dant’s Miranda-infirm statements are admitted as evidence

against him in the prosecution’s case-in-chief at criminal

trial. Teresa’s self-incrimination claim falls short of this

paradigm; charges were dropped before her case went to

trial. Yet, her “criminal case” advanced significantly farther

than did that of the Chavez plaintiff, who never had criminal

charges filed against him at all. Teresa’s statement, by

contrast, allowed police to develop probable cause sufficient

to charge her and initiate a criminal prosecution. In this

fashion, her allegedly un-warned statements were used

against her in a way perhaps contemplated by the Self-

Incrimination Clause. Teresa’s situation, thus, raises the

intermediate question left unanswered by Chavez: whether

a suspect suffers a violation of her right to be free from self-

incrimination when her un-warned confession is used to

initiate a criminal prosecution against her, but charges are

dropped before that confession can ever be introduced at

trial.13

This court has not directly addressed this issue, and has

given mixed indication on the scope of the Chavez hold-

ing. In Allison v. Synder, 332 F.3d 1076, 1080 (7th Cir. 2003),

we held that, under Chavez, inmates who make un-

13

As Justice Souter noted in concurrence, “[t]he question whether

the absence of Miranda warnings may be the basis for a § 1983

action under any circumstances is not before the Court.” Chavez,

538 U.S. at 779 (Souter, J., concurring).

34 No. 04-3614

warned incriminating statements in the course of sex

offender group therapy programs have no damages remedy

available without evidence that those statements were used

against them in a criminal proceeding. In Allison, we made

no attempt to define the manner in which statements must

be used for the self-incrimination right to attach. That the

prisoners, like the Chavez plaintiff, were never prosecuted

based on the un-warned statements was sufficient to deny

relief. This court, in another post-Chavez opinion, recently

noted in dicta:

We also place little weight on earlier court conclu-

sions that a failure to give Miranda warnings cannot

support a claim under § 1983. E.g., Giuffre v. Bissell, 31

F.3d 1241, 1256 (3d Cir. 1994); Warren v. City of Lincoln,

864 F.2d 1436, 1442 (8th Cir. 1989). The latter cases were

decided before the Supreme Court determined in

Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326,

147 L. Ed. 2d 405 (2000), that the Miranda warnings

themselves have constitutional status. Although a

plurality of the Court expressed the opinion that civil

remedies continue to be unavailable for Miranda viola-

tions in Chavez v. Martinez, 538 U.S. 760, 123 S. Ct. 1994,

155 L. Ed. 2d 984 (2003), the full Court has never taken

that step.

Jogi v. Voges, 425 F.3d 367, 385 (7th Cir. 2005). This leaves

us with little guidance from our own circuit on whether

Teresa has stated a valid claim for damages based on the

Self-Incrimination Clause.

There are only two post-Chavez cases from other courts

of appeals that are closely, but not directly, on point. See

Burrell v. Virginia, 395 F.3d 508 (4th Cir. 2005); Renda v. King,

347 F.3d 550 (3d Cir. 2003). In Renda, the police failed to

warn a suspect of his Miranda rights in the course of custo-

No. 04-3614 35

dial interrogation. The resulting statements were then used

as a basis for filing criminal charges, which were later

dropped. In the ensuing civil rights action, the Third Circuit

affirmed summary judgment for the officer defendants,

holding that Renda’s constitutional right to be free from

self-incrimination was not violated. The court recognized

that Chavez did not compel this conclusion, as it “leaves

open the issue of when a statement is used at a criminal

proceeding.” Renda, 347 F.3d at 559. The Third Circuit found

itself bound, however, by its pre-Chavez holding in Giuffre v.

Bissell, 31 F.3d 1241 (3d Cir. 1994), which, on materially

identical facts, held that an alleged Miranda violation is not

actionable under § 1983 if the suspect’s statements were

never introduced against him at trial.

Burrell, from the Fourth Circuit, involved a § 1983 claim

by a motorist who, at the scene of a car accident, was

asked by police to produce documentation of automobile

liability insurance for his vehicle. When Burrell refused,

citing his Fifth Amendment right against self-incrimination,

the police served him with a summons for obstruction of

justice. On appeal from the district court’s dismissal of the

action, the Fourth Circuit held that Burrell’s § 1983 suit was

precluded by Chavez v. Martinez, “regardless of whether the

Fifth Amendment would bar admission in court of insur-

ance information produced under compulsion.” Burrell, 395

F.3d at 512. The court acknowledged that, “[u]nlike in

Chavez, criminal charges were ultimately brought against

Burrell.” Id. (emphasis in original). This distinction did not

change the analysis, however. The court read the Chavez

plurality and Justice Souter’s concurrence as limiting the

self-incrimination protection to the “courtroom use of a

criminal defendant’s compelled, self-incriminating testi-

mony.” Id. (citing, with added emphasis, Chavez, 538 U.S. at

777 (Souter, J., concurring)). Therefore, Burrell holds that a

36 No. 04-3614

§ 1983 suit cannot proceed if the compelled testimony was

never admitted into evidence in court.

On the facts of Teresa’s case, we are satisfied that her un-

warned statements were used against her in a “criminal

case” and in a manner that implicates the Self-Incrimination

Clause. Before charges against Teresa and her husband

eventually were dropped, a preliminary hearing was held to

determine whether probable cause existed to allow the case

against her to go to trial.14 Teresa’s confession was offered

by the prosecution to support a determination of probable

cause. Her confession was then used to set the amount of

bail for Teresa and Scott. See R.122 ¶ 132. At a subsequent

arraignment on charges stemming from the First Bank

robbery, Teresa’s confession was once again admitted before

she was called upon to plead guilty or not guilty. See id. ¶

134-35; see generally 725 ILCS 5/113-1 (describing procedure

at arraignment). Chavez, of course, did not determine

whether pre-trial proceedings such as these fall within the

scope of a “criminal case” for purposes of the Self-Incrimi-

nation Clause. We know only that, under Chavez, a criminal

prosecution must at least be initiated to implicate a suspect’s

right against self-incrimination. We are also conscious of

language in Chavez suggesting that the Fifth Amendment is,

at bottom, a trial protection. Yet, where, as here, a suspect’s

criminal prosecution was not only initiated, but was

14

Illinois law requires a probable cause determination to be made

in every felony case before the accused felon may be brought to

trial. That probable cause determination may be made either by

a judge conducting a preliminary hearing or by a grand jury. See

725 ILCS 5/109-3 (preliminary hearing); 725 ILCS 5/112-4 (grand

jury); see generally People v. Mennenga, 551 N.E.2d 1386, 1390-91

(Ill. App. 1990).

No. 04-3614 37

commenced because of her allegedly un-warned confession,

the “criminal case” contemplated by the Self-Incrimination

Clause has begun. That Teresa’s confession was then

introduced as evidence of her guilt at a probable cause

hearing, a bail hearing and an arraignment proceeding

further persuades us that Teresa was “compelled in [a]

criminal case to be a witness against [her]self.” U.S. Const.

amend. V.15 This use of Teresa’s confession, if the confession

is indeed found to have been elicited without Miranda

warnings, allows a suit for damages under § 1983.16

15

Other Supreme Court precedent confirms that the right to

be free from self-incrimination may attach at pre-trial stages of

the criminal prosecution. See, e.g., Michigan v. Tucker, 417 U.S. 433,

440 (1974) (“Although the constitutional language in which the

privilege is cast might be construed to apply only to situations in

which the prosecution seeks to call a defendant to testify against

himself at his criminal trial, its application has not been so

limited.”); Kastigar v. United States, 406 U.S. 441, 453 (1972)

(noting that the Fifth Amendment privilege’s “sole concern is to

afford protection against being forced to give testimony leading

to the infliction of penalties affixed to . . . criminal acts”); see also

Lefkowitz v. Turley, 414 U.S. 70, 84 (1973) (stating that the Fifth

Amendment privilege allows one “not to answer official ques-

tions put to him in any other proceeding, civil or criminal, formal

or informal, where the answers might incriminate him in future

criminal proceedings”) (emphasis added). We, therefore, refuse

to hold that the right against self-incrimination cannot be violated

unless a confession is introduced in the prosecution’s case-in-

chief at trial before the ultimate finder of fact.

16

Additionally, we note that Teresa’s confession was used against

her in a second criminal proceeding after the charges of bank

robbery were dropped. On the day that the Sornbergers were

released from jail, state’s attorney Mangieri charged Teresa with

(continued...)

38 No. 04-3614

We do not see conflict between our holding today and that

of our sister circuit in Burrell. There, Burrell claimed that his

constitutional rights were violated when the police issued

him an obstruction of justice summons for invoking his

right to remain silent. The Fourth Circuit held that the

issuance of a summons was not a “courtroom use of a

criminal defendant’s compelled, self-incriminat-

ing testimony,” and therefore Burrell failed to state a

claim under § 1983 for violation of his right against self-

incrimination. Burrell, 395 F.3d at 513 (emphasis in original).

Here, by contrast, Teresa’s confession was used at a prelimi-

nary hearing to find probable cause to indict, to arraign and

to set her bail. More than the mere issuance of a summons,

failure to administer Teresa Miranda warnings led to three

distinct “courtroom uses” of her un-warned statements.

Assuming the predicate Miranda violation, she has been

compelled to bear witness against herself.

D. Concealment of Exculpatory Evidence

The Sornbergers’ complaint further alleged that the

defendants violated the Sornbergers’ rights to due pro-

16

(...continued)

obstruction of justice for making a false confession. Mangieri

threatened to try Teresa on the bank robbery charge unless she

pleaded guilty to obstruction. Teresa complied and was sen-

tenced to time served; she had already spent 118 days in jail

awaiting trial for bank robbery. Although this plea and sentence

were later vacated, the proceeding in which Teresa entered her

guilty plea certainly qualifies as a use of her allegedly coerced

confession in a criminal case. Accordingly, this alternative use of

Teresa’s confession supports a claim for damages under the Fifth

Amendment.

No. 04-3614 39

cess by generating a police report that falsely described the

circumstances surrounding Teresa’s confession, by lying

to the state prosecutor about the confession, and by perjur-

ing themselves at the suppression hearing. The complaint

also alleged that the officers violated Scott’s right to due

process by withholding facts from the state’s attorney that

cast doubt on the probability that Scott committed the

robbery.

The district court held that this claim failed because (1)

Teresa’s confession was deemed voluntary by the Knox

County Court; and (2) the facts supporting Scott’s inno-

cence, even if disclosed, would not have disturbed the

finding of probable cause. Thus, in the district court’s

view, the alleged violations lacked any causal relation-

ship to the Sornbergers’ prolonged detention. We shall

now examine this claim in more detail. The Sornbergers’

complaint alleged that Officers Sheppard and Riley failed to

disclose the coercive circumstances surrounding Teresa’s

confession, both in the police report filed by the officers and

in their testimony at the suppression hearing. Considering

itself bound by the facts established by the Knox County

suppression proceeding, the district court determined that

the officers’ police report and testimony could not be false.

Accordingly, in the district court’s view, the evidence did

not establish the causation element necessary to proving the

constitutional torts alleged by Teresa. As we already have

concluded, the findings of the Knox County court are not

entitled to preclusive effect, and the circumstances sur-

rounding Teresa’s confession may indeed have violated

her Fifth and Fourteenth Amendment rights. We must

address, therefore, whether Teresa has stated an other-

wise valid claim of unconstitutional concealment.

Because the allegations involve active concealment and

failure to disclose on the part of Officers Sheppard and

40 No. 04-3614

Riley, we must treat Teresa’s due process claim as one

predicated on Brady v. Maryland, 373 U.S. 83, 87 (1963).17

Such a claim is viable when the prosecution or police fails to

disclose exculpatory evidence to a criminal defendant before

trial. See Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003).

The failure of Officers Sheppard and Riley to disclose

the coercive circumstances of Teresa’s confession does

not, however, state a viable Brady claim. Our decision in

Gauger controls such a situation. In that case, Gauger sued

three detectives under § 1983 for allegedly giving the

prosecution a false account of Gauger’s interrogation. The

court found Gauger’s “proposed extension of Brady difficult

even to understand.” Id. The court explained:

17

In the Sornbergers’ summary judgment briefing, they term

the officers’ concealment of evidence a due process violation. The

Sornbergers do not further articulate the specific due process

right being invoked. Nor does the Sornbergers’ appellate brief

provide any illumination, as it focuses on showing why

the district court was wrong to dismiss the predicate coerced

confession claim. The Sornbergers’ complaint also alleged that the

officers perjured themselves at the suppression hearing. Of

course, were Teresa claiming damages solely based upon the

officers’ perjured testimony, the officers would be entitled to

absolute immunity. See Briscoe v. LaHue, 460 U.S. 325 (1983);

Buckley v. Fitzsimons, 20 F.3d 789 (7th Cir. 1994). However, Teresa

also argues that the officers withheld exculpatory information

and lied to the prosecutor who successfully indicted her and

Scott. “Neither the withholding of exculpatory information nor

the initiation of constitutionally infirm proceedings is protected

by absolute immunity.” Ineco v. City of Chicago, 286 F.3d 994, 1000

(7th Cir. 2002). The fact that Teresa also complained of perjury

does not foreclose her Brady claim.

No. 04-3614 41

It implies that the state has a duty not merely to

disclose but also to create truthful exculpatory evidence.

Indeed the duty to disclose falls out, because Gauger

knew what he had said at the interrogation. The prob-

lem was not that evidence useful to him was being

concealed; the problem was that the detectives were

giving false evidence. Gauger wants to make every false

statement by a prosecution witness the basis for a civil

rights suit, on the theory that by failing to correct the

statement the prosecution deprived the defendant of

Brady material, that is, the correction itself.

Id. (citations omitted). Here, Teresa complains that Offi-

cers Sheppard and Riley failed to disclose the circumstances

of her interrogation. However, Teresa already was quite

familiar with those circumstances. Teresa knew herself what

occurred during the interrogation, and the police were

under no Brady obligation to tell her again that they coerced

her into confessing.

Nor can Brady serve as the basis of a cause of action

against the officers for failing to disclose these circum-

stances to the prosecutor. Brady rights run to the criminal

defendant, not to the prosecution. The Constitution does not

require that police testify truthfully; rather “the constitu-

tional rule is that the defendant is entitled to a trial that will

enable jurors to determine where the truth lies.” Buie v.

McAdory, 341 F.3d 623, 625-26 (7th Cir. 2003). Teresa was not

deprived of evidence held by the police or prosecutor that

would have helped her question the officers’ version of the

events in court. She therefore has not stated a valid Brady

claim.

42 No. 04-3614

E. Municipal Liability

The district court dismissed the City of Galesburg as a

defendant. It held that the City could not be liable under a

theory of respondeat superior, absent a predicate con-

stitutional violation by one of its agents. Because we

have determined that Officers Sheppard and Riley may

be found liable for Teresa’s unlawful arrest and coerced

confession, we must determine whether the City of Gales-

burg is subject to municipal liability for the conduct of its

officers.

Under Monell v. Department of Social Services, 436 U.S. 658,

690 (1978), municipalities and other local government units

are “among those persons to whom § 1983 applies.” Monell,

however, places a substantial limitation on this liability. A

municipality “cannot be held liable solely because it em-

ploys a tortfeasor—or, in other words, a municipality cannot

be held liable under § 1983 on a respondeat superior

theory.” Id. at 691. Rather, municipal governments may be

sued only when their officers inflict an injury in the execu-

tion of the government’s policy or custom, “whether made

by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy.” Id. at 694.

The Sornbergers do not point to any express Galesburg

policy that Sheppard and Riley were enforcing when they

violated Teresa’s constitutional rights. Instead, the Sorn-

bergers attempt to show that Sheppard and Riley’s actions

were part of a “wide-spread practice that although not

authorized by written law and express policy, is so per-

manent and well-settled as to constitute a custom or usage

with the force of law.” Calhoun v. Ramsey, 408 F.3d 375,

379 (7th Cir. 2005) (internal quotation marks omitted).

Establishing Monell liability based on evidence of inad-

equate training or supervision requires proof of “deliberate

No. 04-3614 43

indifference” on the part of the local government. City of

Canton v. Harris, 489 U.S. 378, 388 (1989); Robles v. City of

Fort Wayne, 113 F.3d 732, 735 (7th Cir. 1997) (requiring

deliberate indifference for a finding of municipal liability

under § 1983). This proof can take the form of either (1)

failure to provide adequate training in light of foresee-

able consequences; or (2) failure to act in response to re-

peated complaints of constitutional violations by its officers.

Id. at 390 & n.10; see also, e.g., Robles, 113 F.3d at 735 (indicat-

ing that failure to act after learning of pattern of violations

would be deliberately indifferent).

Here, Teresa’s proferred evidence suffices to create triable

issues with respect to both forms of deliberate indifference.

Teresa first cites evidence that Galesburg had a policy of

coercing confessions out of female suspects by threatening

to have DCFS take away their children. For support, Teresa

offers the deposition testimony of criminologist Paul

Palumbo, who “reviewed the [Galesburg Police Depart-

ment’s] practices and policies and created an expert report.”

R.122 ¶ 152. Palumbo concluded, based on his review of

complaints lodged against Galesburg, that the Galesburg

Police Department “has been deliberately indifferent to a

pattern of use of coercive threats, including threats to

misuse DCFS, by its officers.” Id. ¶ 155.F. Teresa also relies

upon the deposition testimony of Officer Riley in which he

admits that, in his understanding, telling a person in

Teresa’s situation, “you need to come with me to the police

department” is consistent with “policies and practices of the

Galesburg police department.” Id., Ex.38 at 141. This

evidence gives rise to triable issues with respect to

Galesburg’s municipal liability on theories of both failure to

train and refusing to correct complained-of behavior. On

this record, summary judgment dismissing the City of

Galesburg was therefore improper.

44 No. 04-3614

F. The Sornbergers’ Children’s Claims of Intentional

Infliction of Emotional Distress

The district court dismissed the Sornbergers’ pendant

state law claim for intentional infliction of emotional

distress brought on behalf of their children. The court

held that the Sornbergers had not offered any evidence

that the children suffered the “severe emotional distress”

needed to make out their claim under Illinois law. The

district court considered the affidavits from family, educa-

tors and the children themselves, and concluded that the

“drop in grades and poor attitude” described in those

affidavits could not amount to severe emotional distress.

R.144 at 55.

The tort of intentional infliction of emotional distress

requires proof of four elements: (1) extreme and outrageous

conduct; (2) intent or recklessness to cause emotional

distress; (3) severe or extreme emotional distress suffered by

the plaintiff; and (4) actual and proximate causation of the

emotional distress by defendant’s outrageous conduct. See

Pub. Fin. Corp. v. Davis, 360 N.E.2d 765, 767-68 (Ill. 1976).

This case does not present an occasion to explore all of these

requirements in depth. It is sufficient to note that, in Illinois,

“emotional distress alone is not sufficient to give rise to a

cause of action. The emotional distress must be severe.” Id.

at 767. Although perhaps caused by their parents’ wrongful

incarceration, the Sornbergers’ children’s drop in grades and

attitude problems are not evidence of the type of severe

distress, unendurable by a reasonable person, that is

actionable under Illinois law. See Kleidon v. Rizza Chevrolet,

Inc., 527 N.E.2d 374, 377 (Ill. App. Ct. 1988) (“Although

fright, horror, grief, shame, humiliation, worry, etc. may fall

within the ambit of the term ‘emotional distress,’ these

mental conditions alone are not actionable.”).

No. 04-3614 45

We therefore see no infirmity in the judgment of the

district court. Its decision granting summary judgment

on the children’s claims was correct.

Conclusion

For the foregoing reasons, we affirm in part and reverse

and remand in part the judgment of the district court. We

affirm the judgment of the district court with respect to

the Sornbergers’ concealment of evidence claim and the

children’s claims for intentional infliction of emotional

distress. With respect to Scott’s claim for unlawful arrest, we

affirm the district court’s determination that Officers

Sheppard and Riley cannot be found liable, but we reverse

the entry of summary judgment in favor of Chief Pesci and

Officer Clauge. Regarding Teresa’s claim for false arrest, we

affirm the determination of the district court that neither

Chief Pesci nor Officer Clauge may be held liable, but we

reverse and remand with respect to Officers Sheppard and

Riley. On Teresa’s claims related to her involuntary confes-

sion, we reverse the judgment of the district court and

remand the case for further proceedings consistent with this

opinion. We also reverse and remand the district court’s

determination that Galesburg could not be found liable on

a theory of municipal liability for Teresa’s claims. We also

direct that on remand this case be reassigned to a different

judge. See 7th Cir. R. 36. The parties shall bear their own

costs in this court.

AFFIRMED in part,

REVERSED and REMANDED in part

46 No. 04-3614

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-20-06