William Avery v. City of Milwaukee

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-3175

WILLIAM D. AVERY,

Plaintiff-Appellant,

v.

CITY OF MILWAUKEE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 11-C-408 — Rudolph T. Randa, Judge.

____________________

ARGUED FEBRUARY 23, 2016 — DECIDED JANUARY 30, 2017

____________________

Before WOOD, Chief Judge, SYKES and HAMILTON, Circuit

Judges.

SYKES, Circuit Judge. In February 1998 Maryetta Griffin

was raped and strangled to death and left in an abandoned

garage on Milwaukee’s north side. In 2004 Milwaukee police

arrested William Avery for the crime. He was convicted of

first-degree homicide and spent six years in prison before

DNA evidence proved that Walter Ellis, a serial killer linked

2 No. 15-3175

to nine similar homicides, was responsible for the murder. In

2010 Avery was released from prison; this wrongful-

conviction suit followed. Avery alleged that Milwaukee

detectives concocted a fake confession and induced three

jailhouse informants to falsely incriminate him—evidence

that was ultimately used to convict him. He also claimed

that the detectives failed to disclose, as required by Brady v.

Maryland, 373 U.S. 83 (1963), impeachment evidence about

how they obtained the false statements from the informants.

Finally, Avery added a claim against the City of Milwaukee

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

(1978).

The district judge rejected the Brady claims on summary

judgment, reasoning that the detectives had no duty to

disclose the impeachment evidence because Avery already

knew the informants’ statements were false. The remaining

claims were tried to a jury, which found two of the detec-

tives liable for violating Avery’s due-process rights. The jury

also found the City liable and awarded $1 million in damag-

es.

Avery’s victory was short-lived. The judge invalidated

the verdict against the detectives based on what he said were

“mixed signals” coming from this court on whether an

officer’s fabrication of evidence is actionable as a due-

process violation. The judge also set aside the verdict against

the City, holding that without a constitutional violation by

the detectives, Monell liability was not possible.

We reverse. Avery’s due-process claims fall comfortably

within our decision in Whitlock v. Brueggemann, 682 F.3d 567

(7th Cir. 2012), so the jury’s verdict was legally sound and

must be reinstated in its entirety. The Brady claims, too, must

No. 15-3175 3

be revived. That Avery knew the informants’ statements

were false did not relieve the detectives of their duty to

disclose impeachment evidence. Avery is entitled to resume

litigation of these claims.

I. Background

Maryetta Griffin, known as “Mercedes,” was sexually as-

saulted and strangled to death in the early morning hours of

February 17, 1998. Her body was found in an abandoned

garage in a decrepit and crime-ridden neighborhood on

Milwaukee’s north side. Griffin’s death was tragic; so was

her life. She made her living as a prostitute and was addict-

ed to crack cocaine.

William Avery knew Griffin. He ran a drug house in the

neighborhood and occasionally exchanged drugs for sex

with prostitutes in the area. Griffin, along with several other

prostitutes, had been at Avery’s drug house the day before

her death.

About a month after Griffin was killed, detectives from

the Milwaukee Police Department asked Avery to come to

the station to speak with them about the murder. Avery

complied; he denied any involvement in her death. After

two prolonged rounds of interrogation by four different

detectives, he was sent to a holding cell for the night. The

next day two detectives from the day before—Daniel Phillips

and Gilbert Hernandez—resumed the interrogation. Avery

again denied involvement in the crime. The detectives

continued to badger him, accusing him of killing Griffin.

They reminded him that Mercedes was last seen alive at his

drug house and suggested that perhaps she had tried to steal

from him and a struggle or chase ensued. Maybe she fell

4 No. 15-3175

down the stairs and broke her neck during the struggle?

Avery denied that this happened.

Ignoring his persistent denials, Detectives Phillips and

Hernandez prepared reports falsely stating that Avery

confessed to the murder and gave the following account of

events: Mercedes was at his drug house on the night in

question; he fell asleep and woke up to find her stealing cash

from his pockets; he remembered fighting with her but

couldn’t recall what happened next, though he did remem-

ber telling a third person that he “killed this bitch”; and

finally, he admitted that he killed Mercedes but couldn’t

remember how he did it.

Detectives Phillips and Hernandez gave their reports to

Assistant District Attorney Mark Williams, Milwaukee’s

chief homicide prosecutor. Williams concluded that the

evidence was insufficient to support a homicide charge.

Avery was instead charged with state narcotics offenses

arising from his drug-house operation. He was convicted

and began serving a short prison term.

While in prison Avery met fellow inmates Keith

Randolph, Antron Kent, and Jeffrey Kimbrough. All three

men eventually became prosecution witnesses at his trial for

Griffin’s murder. Avery’s Brady claims are premised on the

failure by Milwaukee detectives to disclose details about

their interrogations of these jailhouse informants—evidence

that could have been used to impeach the informants when

they testified at trial. For present purposes, the defendants

do not contest the factual basis for Avery’s Brady claims, so

the following account is his version of events.

No. 15-3175 5

Detectives Hernandez and Katherine Hein interviewed

Randolph in prison in October 2003.1 The two detectives

supplied him with details about the Griffin homicide, told

him to point the finger at Avery, and promised in return to

help him win a reduced sentence. Randolph eventually

succumbed to the pressure; he told them that Avery had

admitted that he killed Griffin. The detectives prepared

reports to that effect but omitted facts about the interroga-

tion that could have been used for impeachment purposes.

Randolph was called as a prosecution witness at Avery’s

murder trial but refused to perjure himself by repeating the

statement he gave to the detectives. The prosecution was

permitted to introduce the detectives’ reports into evidence,

so the jury heard Randolph’s incriminating statement any-

way—without the details about the interrogation that might

have caused the jurors to doubt its reliability.

The story line on Kent is similar. Detectives coached and

pressured him on multiple occasions over several years: in

phone calls from Detective Kevin Armbruster; in an inter-

view with Detectives Armbruster and Timothy Heier; in an

interview with Detectives Hernandez and Hein; in another

meeting with Detective Heier. The upshot is that like Ran-

dolph, Kent eventually gave in and said that Avery told him

he strangled Griffin to death. Kent testified to that effect at

Avery’s trial. Again, the circumstances of the interrogation—

that the detectives coached and pressured Kent to implicate

Avery—were not disclosed to the defense.

1 Katherine Hein is now Katherine Spano, her married name.

6 No. 15-3175

Detectives Armbruster and Heier were the first to ques-

tion Kimbrough, and Detectives Hein and Hernandez con-

ducted a follow-up interview. As with Randolph and Kent,

the detectives fed Kimbrough details about the Griffin

murder and pressured him to implicate Avery. They eventu-

ally got what they were looking for: Kimbrough told them

that Avery admitted that he killed Griffin. Kimbrough later

recanted this statement and tried to back out of testifying at

Avery’s trial, but Detective Heier told him that he “had to”

testify. Kimbrough did as he was told; he took the stand and

testified that Avery told him he killed Griffin. Neither the

recantation nor the facts about Kimbrough’s interrogation

were disclosed to the defense.

Avery completed his narcotics sentence in June 2004 and

was released from prison. Three months later he was arrest-

ed and charged with Griffin’s murder. Trial was held in

March 2005. Detectives Phillips and Hernandez testified

about Avery’s confession; their reports were also admitted.

As we’ve noted, Kent and Kimbrough testified that Avery

told them he strangled Griffin. And the prosecution intro-

duced the police reports documenting the statements of all

three jailhouse informants. The jury found Avery guilty. He

was sentenced to 40 years in prison.

In 2009 the Wisconsin State Crime Laboratory informed

the Milwaukee Police Department that evidence from the

scenes of nine unrelated homicides contained DNA from the

same person—suggesting, of course, that all nine murders

were committed by a single person. The victims shared

remarkable similarities: All were drug-addicted prostitutes,

and many were strangled to death and later found in dilapi-

dated areas on the north side of Milwaukee. Walter Ellis was

No. 15-3175 7

identified as the likely perpetrator; his DNA was found on

evidence recovered from all nine homicide scenes. Ellis was

eventually convicted of seven of these murders; he died in

prison of natural causes.

When news of the Ellis DNA match broke, Avery wrote

to the Milwaukee District Attorney asking him to test DNA

evidence found on Griffin’s body to see if it matched Ellis’s.

It did. Avery’s conviction was vacated, and he was released

from prison in May 2010.

He then filed this wrongful-conviction suit raising claims

under 42 U.S.C. § 1983 for violation of his due-process rights.

The first set of claims alleged Brady violations arising from

the suppression of the impeachment evidence about the

interrogations of the jailhouse informants Randolph, Kent,

and Kimbrough. The second set alleged that Detectives

Phillips and Hernandez violated his due-process rights by

falsifying his confession, and that Detectives Hernandez,

Heier, Hein, and Armbruster violated his due-process rights

by fabricating the informants’ false statements. Finally,

Avery included a Monell policy-or-practice claim against the

City of Milwaukee.

The judge rejected the Brady claims on summary judg-

ment, reasoning that because Avery “knew what he said (or

didn’t say) to the jailhouse informants,” the Brady disclosure

duty “drops out.” The other claims were tried to a jury,

which found Detectives Phillips and Hernandez liable for

fabricating Avery’s confession, found the City liable on the

Monell claim, and awarded $1 million in damages.

The defendants filed a Rule 59(e) motion to set aside the

verdict, arguing that the evidence-fabrication claims against

8 No. 15-3175

the detectives were really coerced-confession claims and that

coercing a confession doesn’t violate due process. The judge

didn’t buy it; instead, he granted the motion on two alterna-

tive grounds, neither of which was raised in the motion.

First, the judge said he detected “mixed signals” coming

from this court on the subject of due-process claims based on

evidence fabrication. He concluded that because an evi-

dence-fabrication claim “sounds” in malicious prosecution

and Wisconsin provides a remedy for this tort, Avery’s due-

process claims were not viable. In the alternative, the judge

held that Avery wasn’t really injured by the detectives’

fabrication of evidence at all; rather, it was their false testi-

mony at trial that caused his injury, and giving testimony is

protected by absolute immunity. Either way, the judge held,

the verdict against the detectives could not stand. He also

held that without an underlying constitutional violation by

an individual defendant, the City couldn’t be liable under

Monell. Final judgment for all defendants followed.

Avery appealed, challenging the judge’s decision on the

Rule 59(e) motion and his refusal to allow the Brady claims to

proceed to trial.

II. Analysis

A. Due-Process Claims for Evidence Fabrication

We begin with Avery’s challenge to the Rule 59(e) ruling.

In their motion the detectives argued that the claims on

which the jury found them liable were actually impermissi-

ble coerced-confession claims, not genuine evidence-

fabrication claims. The judge rejected this argument, con-

cluding instead that a due-process claim “sounds” in mali-

cious prosecution and therefore Avery’s claims were

No. 15-3175 9

“knocked out” as a matter of law because Wisconsin law

provides a remedy for that tort. He also held that the detec-

tives’ testimony at trial—and not their act of fabricating

evidence—caused Avery’s injury and that witnesses at a

criminal trial are absolutely immune from suit for damages

flowing from their testimony.

Rule 59(e) rulings are reviewed for abuse of discretion,

but embedded legal questions are reviewed de novo. ACLU

v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012). This appeal raises

purely legal questions. Before we turn to them, however, we

have a threshold question about which (if any) of the argu-

ments in support of the judge’s ruling are properly before

us.

Avery urges us to ignore all three arguments because the

defendants did not properly preserve them. As he sees it, the

Rule 59(e) motion was really a misnamed Rule 50(b) motion

for judgment as a matter of law; he asks us to treat it as such.

He then points to the familiar rule that a Rule 50(b) motion

may only seek relief on grounds preserved in a Rule 50(a)

motion at the close of the evidence. See Exxon Shipping Co. v.

Baker, 554 U.S. 471, 485 n.5 (2008). The defendants didn’t

follow this procedure.

Avery is right that the caption on a motion “is not essen-

tial,” but he overlooks the fact that a Rule 59(e) motion can

be used “to ask that a judgment be set aside in its entirety.”

A.D. Weiss Lithograph Co. v. Ill. Adhesive Prods. Co., 705 F.2d

249, 250 (7th Cir. 1983). That was the relief sought here, and

Rule 59(e) was not an improper vehicle. Avery counters that

if the Rule 59(e) motion was indeed proper, the defendants

are limited to the single argument raised in their moving

10 No. 15-3175

papers and cannot now defend the judge’s actual reasons for

setting aside the verdict.

It’s true that the judge reached beyond the sole argument

raised in the Rule 59(e) motion, resting his decision on his

own analysis of the legal viability of Avery’s due-process

and Monell claims. But a district judge is permitted to “en-

large the issues to be considered in acting on a timely motion

under Rule 59.” Charles v. Daley, 799 F.2d 343, 347 (7th Cir.

1986). The question for us is whether the judge’s Rule 59(e)

decision was legally sound. We conclude that it was not.

To defend their posttrial victory, the defendants begin by

reprising their failed argument that Avery never asserted

genuine evidence-fabrication claims in the first place. They

insist that this case boils down to a claim about the use of

coercion. We have indeed drawn a distinction between a

“‘coercion’ case for which there is no cognizable due process

claim … [and] an ‘evidence fabrication’ case where there is a

cognizable claim.” Petty v. Chicago, 754 F.3d 416, 422–23 (7th

Cir. 2014). But the defendants’ argument is an exercise in

misdirection: It’s clear that Avery’s due-process claims are

factually grounded in acts of evidence fabrication by the

detectives—evidence that was later used to convict and

imprison him.

“We have consistently held that a police officer who

manufactures false evidence against a criminal defendant

violates due process if that evidence is later used to deprive

the defendant of [his] liberty in some way.” Whitlock,

682 F.3d at 580; see also Mooney v. Holohan, 294 U.S. 103, 112

(1935) (explaining that the use of perjured testimony “to

procure the conviction and imprisonment of a defendant is

as inconsistent with the rudimentary demands of justice as is

No. 15-3175 11

the obtaining of a like result by intimidation”). On the other

hand, a claim that an officer coerced a witness to give in-

criminating evidence does not, at least standing alone,

violate the wrongly convicted person’s due-process rights. 2

As we explained in Petty, “coercively interrogating wit-

nesses, paying witnesses for testimony, and witness-

shopping may be deplorable, and these tactics may contrib-

ute to wrongful convictions, but … unlike falsified evidence

and perjured testimony, [coerced testimony] may turn out to

be true.” 754 F.3d at 422 (internal brackets and quotation

marks omitted). Because coerced testimony may in fact be

true, the due-process right to a fair trial isn’t implicated

absent a violation of the Brady duty to disclose facts about

the coercive tactics used to obtain it. See Fields v. Wharrie

(Fields II), 740 F.3d 1107, 1123 (7th Cir. 2014) (Sykes, J.,

concurring in part and dissenting in part) (“[I]f the police

officers … withhold exculpatory information about coerced

or fabricated evidence, the aggrieved defendant will have a

good § 1983 claim against the officers for violation of

Brady.”). Armed with the Brady disclosure, the accused can

impeach the coerced testimony by pointing to the tactics the

officers used to extract it, and the jury has a fair opportunity

to find the truth.

The same cannot be said for fabricated evidence. Falsified

evidence will never help a jury perform its essential truth-

2 Using a coerced confession against the accused at trial may give rise to

a claim for violation of the accused’s Fifth Amendment right not to be a

witness against himself. See Chavez v. Martinez, 538 U.S. 760, 767 (2003).

Avery raised only due-process claims.

12 No. 15-3175

seeking function. That is why convictions premised on

deliberately falsified evidence will always violate the de-

fendant’s right to due process. What’s relevant is not the

label on the claim, but whether the officers “created evidence

that they knew to be false.” Petty, 754 F.3d at 423 (emphasis

added). The jury found that Detectives Phillips and

Hernandez knew their reports of Avery’s confession were

false when they wrote them; those reports—and the fake

confession—were used at trial to convict him. The detectives

can’t escape liability for this due-process violation by shift-

ing the focus to the background facts about the tactics they

used to interrogate him.

This brings us to the two grounds on which the judge ac-

tually rested his Rule 59(e) decision. First, and primarily, the

judge held that an evidence-fabrication claim “sounds” in

malicious prosecution and therefore Avery’s due-process

claims were “knocked out” by Wisconsin’s common-law

remedy for that tort. This reasoning traces to Newsome v.

McCabe, 256 F.3d 747 (7th Cir. 2001), which in turn relied on

Justice Kennedy’s concurring opinion in Albright v. Oliver,

510 U.S. 266 (1994).

To properly understand Newsome, it’s important to recall

the nature of the claim asserted in Albright. As we recently

explained in Armstrong v. Daily,

[t]he claim in Albright was only that the plain-

tiff had been prosecuted without probable

cause. … [T]here was no claim that a law en-

forcement official had acted in bad faith to un-

dermine the reliability of a trial, such as by

manufacturing false evidence, arranging for

No. 15-3175 13

perjured testimony, or destroying exculpatory

evidence.

786 F.3d 529, 540 (7th Cir. 2015).

To be more specific, the plaintiff in Albright had been ar-

rested and released on bail, but the charges against him were

later dropped. He asked the Supreme Court to recognize a

due-process right to be free from criminal prosecution except

on probable cause. 510 U.S. at 271. A four-justice plurality

held that there is no such right, at least not under the Four-

teenth Amendment’s Due Process Clause. 3 Id. at 274. Justice

Kennedy, joined by Justice Thomas, concurred in the judg-

ment, agreeing that there is no freestanding due-process

right not to be prosecuted except on probable cause; the

concurrence invoked the doctrine announced in Parratt v.

Taylor that “[i]n the ordinary case where an injury has been

caused … by a random and unauthorized act that can be

remedied by state law, there is no basis for intervention

under § 1983, at least in a suit based on ‘the Due Process

Clause of the Fourteenth Amendment simpliciter.’” Id. at 285

(Kennedy, J., concurring in the judgment) (quoting Parratt v.

Taylor, 451 U.S. 527, 536 (1981)).

3 The plurality suggested that if the plaintiff had a claim at all, it would

be for an unreasonable seizure in violation of the Fourth Amendment.

Albright v. Oliver, 510 U.S. 266, 274 (1994). But three justices in the

plurality “express[ed] no view as to whether [the plaintiff’s] claim would

succeed under the Fourth Amendment,” id. at 275; Justice Ginsburg

concluded that the plaintiff had an actionable Fourth Amendment claim,

id. at 276–81 (Ginsburg, J., concurring). The Fourth Amendment issue has

returned to the Supreme Court in a case argued earlier this term. Manuel

v. City of Joliet, No. 14-9496 (oral argument held Oct. 5, 2016).

14 No. 15-3175

Newsome read Justice Kennedy’s opinion as the narrowest

ground of decision in Albright. Newsome, 256 F.3d at 751

(citing Marks v. United States, 430 U.S. 188 (1977)). Applying

the Parratt principle, Newsome construed Albright as rejecting

a constitutional claim of malicious prosecution where state

law provides a meaningful remedy for that tort. Id.

But Albright must be understood in the context of its

facts. As we explained at length in Armstrong, Albright has

nothing at all to say about a deprivation of the due-process

right to a fair trial. 786 F.3d at 539–41. That is, Albright did

not involve a plaintiff who claimed he was wrongfully

convicted of a crime in a trial tainted by falsified evidence,

known perjury, or the deliberate destruction of exculpatory

evidence. Id. at 540. That kind of claim is “grounded in the

due process guarantee of fundamental fairness in criminal

prosecutions” and has long been recognized. Id. The Parratt

doctrine, we explained in Armstrong, doesn’t apply in this

context. Id. at 539–41. The availability of a state-law remedy

for malicious prosecution doesn’t defeat a federal due-

process claim against an officer who fabricates evidence that

is later used to obtain a wrongful conviction. 4 Id.

4 It bears noting that the claim in Newsome was materially different from

the claim in Albright. As we’ve explained, the plaintiff in Albright was

never convicted; the charges against him were dropped, so his claim

rested on an assertion that he was prosecuted without probable cause.

Albright, 510 U.S. at 271. In contrast Newsome was convicted, impris-

oned for many years, exonerated and released, and later pardoned.

Newsome v. McCabe, 256 F.3d 747, 748–49 (7th Cir. 2001). He sued five

officers under § 1983 alleging Brady violations and claims for “malicious

prosecution.” Id. at 749. Applying Justice Kennedy’s Albright concur-

rence, the panel rejected the malicious-prosecution theory but let the

No. 15-3175 15

So it was a mistake for the judge to set aside the verdict

on this ground. That Wisconsin provides a remedy for

malicious prosecution is irrelevant to the viability of Avery’s

§ 1983 claims for deprivation of his right to a fair trial. The

jury found that Detectives Phillips and Hernandez manufac-

tured the confession that featured prominently in his trial

and contributed to his wrongful conviction for Griffin’s

murder.

The judge’s second reason for setting aside the verdict

rested on the immunity rule that witnesses at a criminal trial

cannot be sued for damages flowing from their testimony.

See generally Briscoe v. LaHue, 460 U.S. 325 (1983). The judge

thought the detectives’ perjured testimony—and not their

falsification of the confession—actually caused Avery’s

injury. So he concluded that the due-process claims were

blocked by absolute immunity.

This rationale is flawed for two reasons. First, virtually

any item of evidence introduced at trial must be authenticat-

ed by oral testimony. See FED. R. EVID. 901. Here, the detec-

tives testified about Avery’s “confession” and authenticated

their false reports memorializing it; the reports were then

Brady claims stand, affirming the denial of qualified immunity. Id. at 751–

52. The panel explained that although Newsome didn’t have a cogniza-

ble malicious-prosecution claim grounded in due process or the Fourth

Amendment, he did “have a due process claim in the original sense of

that phrase—he did not receive a fair trial if the prosecutors withheld

material exculpatory details.” Id. at 752. Because Newsome involved a

wrongful conviction, not merely a wrongful prosecution, its invocation of

Albright was arguably misplaced, or at least not strictly necessary to the

outcome; the due-process claims were allowed to move forward under

the rubric of Brady.

16 No. 15-3175

introduced into the trial record. If an officer who fabricates

evidence can immunize himself from liability by authenticat-

ing falsified documentary or physical evidence and then

repeating the false “facts” in his trial testimony, wrongful-

conviction claims premised on evidence fabrication would

be a dead letter. That would squarely conflict with our

caselaw—most notably Whitlock—and would put us at odds

with every other circuit to consider the viability of due-

process claims premised on fabricated evidence. 5

5 See, e.g., Cole v. Carson, 802 F.3d 752, 773 (5th Cir. 2015), cert. granted,

vacated and remanded, No. 16-351, 2016 WL 4991790 (Nov. 28, 2016) (for

further consideration in light of Mullenix v. Luna, 136 S. Ct. 305 (2015));

Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1328 (11th Cir.

2015) (holding that an allegation that police officers fabricated evidence

and lied in their police reports, and that these fabrications caused the

plaintiff’s incarceration, is sufficient to state a § 1983 claim); Coggins v.

Buonora, 776 F.3d 108 (2d Cir.), cert. denied, 135 S. Ct. 2335 (2015) (holding

that a police officer who falsified police reports, made false statements to

a district attorney, and otherwise fabricated evidence is liable to a § 1983

suit); Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014) (“[I]f a defendant

has been convicted at a trial at which the prosecution has used fabricated

evidence, the defendant has a stand-alone claim under section 1983

based on the Fourteenth Amendment if there is a reasonable likelihood

that, without the use of that evidence, the defendant would not have

been convicted.”); Livers v. Schenck, 700 F.3d 340, 354 (8th Cir. 2012)

(“[T]he Fourteenth Amendment’s guarantee of due process is violated by

the manufacture of … false evidence in order to falsely formulate a

pretense of probable cause.”) (internal quotation marks omitted); Wilkins

v. DeReyes, 528 F.3d 790, 805 (10th Cir. 2008) (holding that the plaintiff’s

assertion that officers intentionally coerced false statements supported a

§ 1983 claim); Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005)

(holding that “proof that [the officer] fabricated evidence and that the

fabrication resulted in a deprivation of … liberty” is sufficient to state a

§ 1983 claim); Limone v. Condon, 372 F.3d 39, 49 (1st Cir. 2004) (holding

No. 15-3175 17

Second, and more fundamentally, the judge’s reasoning

is utterly at odds with the Supreme Court’s decision in

Buckley v. Fitzsimmons, 509 U.S. 259 (1993). There the Court

held that although a prosecutor is absolutely immune from

liability for the actions he takes during the course of a prose-

cution, he remains subject to liability for misconduct com-

mitted in an investigative capacity “before he has probable

cause to have anyone arrested.” Id. at 274. We’ve read the

Buckley exception to mean that a “prosecutor cannot retroac-

tively immunize himself from conduct by perfecting his

wrong-doing through introducing the fabricated evidence at

trial and arguing that the tort was not completed until a time

at which he had acquired absolute immunity.” Fields II,

740 F.3d at 1114. Although this case involves evidence

fabrication by detectives, not a prosecutor, the judge’s ruling

gives the detectives’ testimony precisely that impermissible

effect.

It’s true that the detectives’ testimony was a factual pred-

icate for Avery’s claim: A § 1983 claim requires a constitu-

tional violation, and the due-process violation wasn’t com-

plete until the false confession was introduced at Avery’s

trial, resulting in his conviction and imprisonment for a

that an officer who coaches a witness whom he knows will commit

perjury is liable to a § 1983 suit); Devereaux v. Abbey, 263 F.3d 1070, 1074–

75 (9th Cir. 2001) (en banc) (“[T]here is a clearly established constitution-

al due process right not to be subjected to criminal charges on the basis

of false evidence that was deliberately fabricated by the government.”);

Stemler v. Florence, 126 F.3d 856, 872 (6th Cir. 1997) (holding that a police

officer “violate[s] … due process if he knowingly fabricated evidence

against [a criminal defendant] and if there is a reasonable likelihood that

the false evidence could have affected the judgment of the jury”).

18 No. 15-3175

murder he did not commit. See Cairel v. Alderden, 821 F.3d

823, 831 (7th Cir. 2016) (explaining that the plaintiff’s acquit-

tal foreclosed his due-process evidence-fabrication claim); see

also Whitlock, 682 F.3d at 582. After all, it was the admission

of the false confession that made Avery’s trial unfair. As we

explained in Fields II, however, under common-law causa-

tion principles, “[h]e who creates the defect is responsible for

the injury that the defect foreseeably causes later.” 740 F.3d

at 1111–12.

When the detectives falsified their reports of a nonexist-

ent confession, it was entirely foreseeable that this fabricated

“evidence” would be used to convict Avery at trial for

Griffin’s murder. That was, of course, the whole point of

concocting the confession. An unbroken causal chain con-

nects the acts of evidence fabrication to Avery’s wrongful

conviction and imprisonment. The detectives are liable

under § 1983 for this due-process violation even though their

trial testimony, standing alone, would not subject them to

damages liability.

So the judge was wrong to set aside the verdict on this

ground. The jury’s verdict—including the City’s liability on

the Monell claim, which is not independently challenged—

must be reinstated.

B. Summary Judgment on the Brady Claims

For present purposes, the defendants do not dispute the

facts underlying Avery’s Brady claims: The detectives (the

larger group) failed to disclose material impeachment

evidence regarding their interrogations of the three jailhouse

informants, and their suppression of this evidence preju-

No. 15-3175 19

diced Avery’s defense. See Kyles v. Whitley, 514 U.S. 419, 437–

38 (1995).

We’ve held, however, that evidence cannot be said to

have been suppressed in violation of Brady if it was already

known to the defendant. See Gauger v. Hendle, 349 F.3d 354,

360 (7th Cir. 2003). Other circuits agree. See, e.g., Fullwood v.

Lee, 290 F.3d 663, 686 (4th Cir. 2002); West v. Johnson, 92 F.3d

1385, 1399 (5th Cir. 1996); Felker v. Thomas, 52 F.3d 907, 910

(11th Cir.), opinion supplemented on denial of reh'g, 62 F.3d 342

(11th Cir. 1995); United States v. Diaz, 922 F.2d 998, 1007 (2d

Cir. 1990); Atkins v. County of Riverside, 151 F. App’x 501, 505

n.4 (9th Cir. 2005) (citing Gauger, 349 F.3d 354); see also United

States v. Agurs, 427 U.S. 97, 103 (1976) (stating that Brady

applies to “information which had been known to the prose-

cution but unknown to the defense”).

We’ve applied the Gauger rule to preclude Brady claims

against officers who failed to disclose the coercive circum-

stances surrounding the statements of prosecution witnesses

when the criminal defendant already knew of those circum-

stances. Petty, 754 F.3d at 423–24; Sornberger v. City of

Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006). We’ve also

applied it in a case involving officers who falsely reported a

relationship between the criminal defendant and a third

party. Harris v. Kuba, 486 F.3d 1010, 1016–17 (7th Cir. 2007).

Here, the judge correctly stated the Gauger rule but mis-

applied it to this case. Recall that Avery’s Brady claims are

premised on the detectives’ failure to disclose the details of

the pressure and inducements they brought to bear to extract

false statements from Randolph, Kent, and Kimbrough. The

judge thought the Brady obligation “dropped out” because

Avery already “knew what he said (or didn’t say) to the

20 No. 15-3175

jailhouse informants.” But that’s beside the point; the mate-

rial question is whether Avery was aware of the impeachment

evidence.

In Gauger, Petty, and Sornberger, the criminal defendants

were already aware of the impeaching facts—namely, that

the testimony in question was coerced. In Harris the criminal

defendant was just complaining that the officer didn’t admit

to falsifying his report. Here, in contrast, Avery knew that

the informants’ statements were false, but he did not know

about the pressure tactics and inducements the detectives

used to obtain them. And he did not know that Kimbrough

had in fact recanted his statement just before trial but was

told that he “had to” testify. In other words, he did not have

the evidence that could help him prove that the informants’

statements were false. The Gauger rule does not apply.

Summary judgment on the Brady claims was improper.

III. Conclusion

Because the judge’s summary-judgment and Rule 59(e)

rulings rested on legal errors, the jury’s verdict must be

reinstated in its entirety and the Brady claims must be re-

vived and allowed to move forward. We REVERSE and

REMAND for further proceedings consistent with this opin-

ion.