Emmanuel Mervilus v. Union County

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-3185

EMMANUEL MERVILUS,

Appellant

v.

UNION COUNTY; DANIEL VANISKA; CHIEF OF

POLICE RONALD SIMON; *PACE KAMINSKAS, as

Executor of the Estate of John Kaminskas; EDWARD

BENENATI; ROBERT PEREZ; MICHAEL BARROS;

JOHN DOE IDENTIFICATION OFFICERS

(*Amended per Court’s Order dated 1/05/2023)

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-14-cv-07470)

District Judge: Esther Salas

Argued on January 19, 2023

Before: AMBRO*, PORTER, and FREEMAN, Circuit

Judges

(Opinion Filed: July 13, 2023)

David B. Shanies [Argued]

David B. Shanies Law Office

110 West 40th Street

New York, NY 10018

Steven J. Zweig

Office of Attorney General of New Jersey

Division of Law

25 Market Street

Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellant

Steven H. Merman

Moshood Muftau [Argued]

Office of County Counsel

10 Elizabethtown Plaza

Union Cunty Administration Building

Elizabeth, NJ 07207

*Judge Ambro assumed senior status on February 6,

2023.

2

Peter H. Spaeth

Wolff Helies Duggan Spaeth & Lucas

Suite 201-202

2517 Highway 35

P. O. Box 320, Building K

Manasquan, NJ 08736

Edward J. Kologi

Michael S. Simitz [Argued]

Kologi & Simitz

500 N. Wood Avenue

Suite 4B

Linden, NJ 07036

Catherine M. Deappolonio

Robert F. Renaud

Renaud Colicchio

190 North Avenue E

3rd Floor

Cranford, NJ 07016

Robert F. Varady

LaCorte Bundy Varady & Kinsella

989 Bonel Court

Union, NJ 07083

Counsel for Appellees

3

OPINION OF THE COURT

AMBRO, Circuit Judge

Emmanuel Mervilus sued Detective John Kaminskas

for fabricating polygraph evidence and Kaminskas’s

supervisors for failing to train or supervise his polygraph work.

We decide two principal questions. First, did Mervilus

introduce sufficient evidence to try his fabrication-of-evidence

claim against Kaminskas? We hold he did. Second, is his

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), claim

against Kaminskas’s employer, Union County, viable even if

Kaminskas did not fabricate evidence? We hold it is because

a jury might not render an inconsistent verdict if it found the

County liable but Kaminskas not culpable.

I. Background

In October 2006, Mervilus lived in New Jersey with his

mother, a cancer patient, and his two younger siblings. He

worked at a cooking oil company and, at age 22,

singlehandedly provided for his household. His life changed

drastically that month when he and a friend, Daniel Desire,

went for a late-night walk. During it, they watched a man, later

identified as Miguel Abreu, flag down a police car, reveal to

officers his stab wound, and accuse Mervilus and Desire of

robbing and stabbing him. Indignant, Mervilus stayed at the

scene and insisted that Abreu look closely at them to

understand he had identified the wrong men. But to no avail.

4

Officers arrested Mervilus and charged him with first degree

robbery, N.J.S.A. § 2C:15–1, second degree aggravated

assault, N.J.S.A. § 2C:12–1b(1), third degree aggravated

assault, N.J.S.A. § 2C:12–1b(2), and third degree possession

of a weapon for an unlawful purpose, N.J.S.A.§ 2C:39–49d.

Eager to clear his name, Mervilus agreed to take a

polygraph examination. Earlier that year, officers dismissed

drug charges after a polygraph exam indicated he truthfully

denied responsibility. So Mervilus agreed to be tested again

because he “believed, at the time, [polygraphs] tell the truth.”

A567.

Polygraph science aspires to determine an examinee’s

truthfulness by measuring his or her physiological responses to

a series of questions. “Polygraph tests are psychological tests

that use physiological measures to make inferences about a

person’s psychological state when that person is asked a series

of questions to which he or she must respond with either a truth

or lie.” A416. Put simply, they are premised on the belief that

liars have certain “tells” that are detectable through sudden

changes to their blood pressure, pulse rate, perspiration, and

respiration.1

1

Polygraph examinations are the subject of much

criticism and “do not enjoy general acceptance from the

scientific community.” United States v. Laurent, 603 F. Supp.

3d 1247, 1257 (S.D. Fla. 2022). Thus, most states generally do

not permit their admission, while other states only admit such

evidence on the consent of both parties. See State v. A.O., 965

A.2d 152, 161–62 (N.J. 2009) (collecting cases). This case,

however, does not require us to scrutinize polygraphs

generally, and so we do not wade into that debate.

5

When Mervilus sat for his exam, New Jersey permitted

polygraph results to be admitted at trial if there was a

“stipulation [that] is clear, unequivocal and complete, freely

entered into with full knowledge of the right to refuse the test

and the consequences involved in taking it.” State v. McDavitt,

297 A.2d 849, 855 (N.J. 1972). The State also required

examiners to be “qualified and the test administered in

accordance with established polygraph techniques.” Id. Union

County and Mervilus entered a stipulation reflecting those

requirements. He consented to be tested, agreed the results

would be admissible, and waived his “right to introduce

another polygraph expert . . . in reference to the original

polygraph expert’s testimony.” A1798–99. Further, Union

County guaranteed the examiner would be “an expert in all

phases of both administering polygraph examinations and in

the analysis of polygraph chart recordings.” A1798.

The Union County Police Department selected

Kaminskas, its only certified polygraph examiner, to conduct

the exam.2 When the Police Department bought a polygraph

in the mid-1990s, its Chief allowed Kaminskas to learn how to

conduct examinations. He did so by attending the National

Training Center, where he learned the “Arther Method” from

its founder, Richard Arther.

2

Kaminskas died while this appeal was pending. We

granted Mervilus’s motion to substitute in Kaminskas’ place

the executor of his estate. See Order to Substitute Party, D.I.

50 (Jan. 5, 2023).

6

The Arther Method is an outlier in the polygraph world.

It is not accredited by the American Polygraph Association.

An authoritative polygraph treatise published in 2002 never

mentioned it. And a peer-reviewed list of validated polygraph

techniques, published in 2006, also did not include it. See

Donald J. Krapohl, Validated Polygraph Techniques, 35

Polygraph 123, 149 (2006). Defendants’ expert, Dr. Palmatier,

conceded it has not “been subjected to peer review.” A1197.

And juxtaposing it with conventional polygraph methods

explains why it was so poorly regarded within the field.

The Arther Method relies heavily on subjective

observations to test whether an examinee is truthful, in contrast

to conventional polygraph approaches that primarily use

objective physiological data. Among the 24 non-physiological

factors the Method treats as instructive are the following:

• If the examinee is local and arrives with a third

party, he or she is probably lying.

• First-born children are usually more nervous and

ambitious.

• The more thoroughly an examinee washes his or her

hands, the more likely he or she is telling the truth.

• “The sexier a lady is dressed, the more likely she is

lying.” A750.

• Liars will either sleep too much or too little on the

night before the examination. Sleeping too little is

the mark of someone who drank too much the night

prior, which liars tend to do. But sleeping too much,

on the other hand, suggests the examinee is an

escapist.

7

• The examiner should instruct the examinee to read a

journal article before the examination. An examinee

who reads that article is more likely to be truthful.

The Arther Method also incorporates the physiological

analysis used in conventional polygraph methods. However,

although conventional methods consider the absence of

physiological reactions to reveal truthfulness, this one teaches

that “at least 85% of the non-reactors are LYING to the crime

questions.” A1787 (emphasis in original). Indeed, the Method

believes many liars’ physiological reactions are not detected

because their identity or social standing permits them to lie

without guilt, thus not triggering the typical physiological

responses. For example, the Method teaches certain ethnic

groups “do[] not experience any guilt feelings when [they] lie[]

. . . because [they do] not consider lying to be socially

unacceptable.” Id. And the same goes for those with low

social standing, who will not care “what will happen if [they

are] exposed as [] liar[s].” Id. Thus, though the Arther Method

considers physiological responses in its analysis, it relies on

prejudiced assumptions to dismiss what other methods deem

an indicator of truthfulness.

In May 2007, Kaminskas tested Mervilus to determine

whether he stabbed and robbed Abreu. In line with the

Method’s teachings, Kaminskas first asked Mervilus a series

of personal questions. Among them: Was Mervilus the first-

born children of his parents?; Who raised him?; Was he

married?; Was he a high school graduate? After Kaminskas

recorded his own observations, he tested Mervilus’s

physiological reactions to a series of eight questions. Of them,

four were relevant questions pertaining to the crime at issue

and four were control questions.

8

The four relevant questions were:

R3K: Do you know for sure who robbed and

stabbed someone on 10/19/06 in Elizabeth?

R5: Did you rob someone of their backpack on

10/19/06 in Elizabeth?

R8: Is the person who was robbed and stabbed

wrong when he said you held him and took his

backpack?

R9: Were you holding someone when Daniel

Desire stabbed them on 10/19/06 in Elizabeth?

Mervilus denied any responsibility for the crime and

therefore answered the latter three questions with a “no.” But

Kaminskas’s first question, R3K, did not ask whether he

committed the crime. Instead, it asked whether he knew “for

sure” who did. He answered with a “yes,” explaining that

someone told him who committed the crime. But Kaminskas

pushed back, telling Mervilus he could not answer he knew

“for sure” who committed the crime based on hearsay.

Kaminskas then re-asked the question and Mervilus answered

it the same way. But Kaminskas again insisted that he could

not truthfully answer the question in the affirmative based on

what he heard secondhand. So when Kaminskas asked the

question again, Mervilus finally relented by changing his

answer to a “no.”

Ultimately, Kaminskas concluded Mervilus was being

deceptive when he denied responsibility for the crime.

Kaminskas partly relied on a software program to analyze

Mervilus’s polygraph recordings, and that program indicated

“probable deception.” However, the only relevant question

where Mervilus’s physiological responses signaled deception

9

was for R3K—the question for which Kaminskas insisted

Mervilus change his answer.

Kaminskas operated his polygraph practice with no

oversight from the Police Department. When he examined

Mervilus, the Department had no policies or procedures related

to polygraph tests. The Department’s then-Chief, Daniel

Vaniska, conceded he had only a “basic understanding” of

polygraphs at the time of Mervilus’s examination. A1304–05.

Kaminskas’s examinations were never peer-reviewed by

Police Department personnel or others in the field. And he had

sole discretion on where he received continuing education.

Thus, Kaminskas relayed to the prosecution his conclusion that

Mervilus was lying without anyone checking his work.

Mervilus stood trial in 2008. At it, Abreu failed to

identify him, pointing instead to a different Black man. But in

line with Mervilus and Union County’s stipulation, the Court

admitted the polygraph exam done by Kaminskas and

permitted him to testify. He stated that “innocent” examinees

will react differently to certain questions than “a person [who]

actually did the crime,” A1509–12, and those who “react more

to [r]elevant [q]uestions on a test” are lying. A1511. He

further asserted he never had a confirmed mistake on a test.

Because the stipulation provided that Kaminskas would

be the only polygraph expert to testify, Mervilus was not able

to challenge that testimony meaningfully. Ultimately, the jury

found him guilty of first-degree robbery, second-degree

aggravated assault with intent to cause serious bodily injury,

and third-degree aggravated assault with a deadly weapon.

The Court sentenced him to eleven years in prison.

10

However, after several years’ imprisonment, Mervilus

successfully overturned his conviction. State v. Mervilus, 12

A.3d 258 (N.J. Super. Ct. App. Div. 2011). The New Jersey

Superior Court, Appellate Division, held Kaminskas’s

testimony was improper and prejudicial. Id. at 262–64. It

remanded the case for a new trial, requiring the State to

establish the polygraph evidence’s reliability prior to

introducing it at trial. Id. at 264. That didn’t occur because,

when the State re-tried Mervilus, it did not seek to admit the

polygraph evidence or have Kaminskas testify. Again, the

victim did not identify Mervilus. And after a mere thirty

minutes of deliberation, the jury acquitted him.

In 2014, Mervilus sued Kaminskas, Chief Vaniska in

his personal capacity, Union County, and other now-dismissed

defendants under 42 U.S.C. § 1983 and the New Jersey Civil

Rights Act, N.J.S.A § 10:6-1. Mervilus claimed Kaminskas

fabricated the polygraph evidence and falsely testified at trial,

Vaniska and the County failed to train and supervise

Kaminskas, and the County had a policy, practice, or custom

of conducting polygraphs in a manner that caused an

unreasonable risk of Fourth and Fourteenth Amendment

deprivations.3

The United States District Court for the District of New

Jersey granted summary judgment for Kaminskas, Vaniska,

and the County. Mervilus v. Union Cnty., No. 14-cv-7470,

2021 WL 4963293 (D.N.J. Oct. 26, 2021). Looking first to the

claim against Kaminskas, the Court concluded the evidence

3

The District Court previously dismissed additional

claims in the complaint, and Mervilus does not appeal those

dismissals.

11

suggested only that his polygraph methods were flawed and

results incorrect, not that he acted in bad faith—an element of

the fabrication claim. Id. at *5–10. After holding the evidence

failed to support the claim against Kaminskas, the Court

granted Vaniska and Union County’s motion without

analyzing the merits of the claims against them. In its view,

because Mervilus did not show “evidence to establish that

Kaminskas committed a constitutional violation, [his] Monell

claims against the Union County Defendants must fail.” Id. at

*11. The Court did not analyze the individual claims against

Vaniska. This appeal followed.

II. Jurisdiction & Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§

1331 and 1367 because, for the former, Mervilus brought

claims under 42 U.S.C. § 1983 and, for the latter, the pendent

state law claims falling under the district courts’ supplemental

jurisdiction. We have appellate jurisdiction under 28 U.S.C. §

1291.

We give a fresh review to a district court’s entry of

summary judgment. Ellis v. Westinghouse Elec. Co., LLC, 11

F.4th 221, 229 (3d Cir. 2021). We must “view the record and

draw inferences in a light most favorable to the non-moving

party,” In re IKON Office Solutions, Inc., 277 F.3d 658, 666

(3d Cir. 2002), and ask if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). For us to affirm, we must conclude that “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

12

III. Analysis

We turn to the merits. First, is the evidence sufficient

for Mervilus to try his fabrication claim against Kaminskas?

In answering this question, we clarify the state of mind

necessary to sustain that claim. Second, we decide if

Mervilus’s Monell claims against Union County are viable if

Kaminskas is ultimately found not liable.4

A. A Reasonable Jury Could Find Kaminskas

Fabricated Evidence.

“[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.” Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir.

2014). That Amendment is the constitutional source of a

fabrication claim for two reasons. First, its due process

guarantee ensures criminal defendants a fair trial. See Black v.

Montgomery Cnty., 835 F.3d 358, 370 (3d Cir. 2016)

(“Fabricated evidence is an affront to due process of law, and

state actors seeking to frame citizens undermine fundamental

fairness and are responsible for ‘corruption of the truth-seeking

4

The New Jersey Civil Rights Act is “interpreted

analogously to § 1983,” so Mervilus’s claims under that statute

rise and fall with his parallel § 1983 claims. Est. of Roman v.

City of Newark, 914 F.3d 789, 796 n.5 (3d Cir. 2019). Thus,

the District Court did not analyze those claims separate from

the § 1983 claims, and we do the same.

13

function of the trial process.’” (quoting United States v. Agurs,

427 U.S. 97, 104 (1976))). Second, it guards against unlawful

seizures post-conviction. See Halsey, 750 F.3d at 291

(explaining that the Fourth Amendment protects liberty

interests only until trial, and the Fourteenth Amendment

protects against unlawful seizures “through and after trial.”).

For Mervilus to withstand Kaminskas’s motion for

summary judgment, he must bring “persuasive evidence

supporting a conclusion that [Kaminskas was] aware that

evidence is incorrect or that [it was] offered in bad faith.”

Black, 835 F.3d at 372 (quoting Halsey, 750 F.3d at 295

(internal quotation marks omitted)). Evidence is not fabricated

if it “is incorrect or simply disputed.” Halsey, 750 F.3d. at 295.

Were it otherwise, every acquittal could spawn a fabrication

claim. Because this intent requirement is stringent, “it will be

an unusual case in which a police officer cannot obtain a

summary judgment in a civil action charging him with having

fabricated evidence.” Id.

1. “Bad Faith” Includes Willful,

Knowing, and Reckless Fabrication.

We have yet to clarify the scope of “bad faith” in the

fabrication context. Obviously it encompasses the knowing or

willful submission of false evidence. See Fabricate, MERRIAM

WEBSTER’S THIRD NEW INT’L DICTIONARY (1993) (“3a:

Invent, Formulate: Create; 3b(1): to make up with intent to

deceive (2): Forge.”); Fabricate, BLACK’S LAW DICTIONARY

(11th ed. 2019) (“4. To invent, forge, or devise falsely.”). But

does it include recklessly submitting that evidence?

14

Recall that the fabrication claim stems from the

Fourteenth Amendment’s guarantee of due process, which

ensures individuals are not unlawfully deprived of liberty after

a fundamentally unfair trial. In other contexts where the law

protects those interests, recklessness is enough. Consider, for

example, claims by persons alleging they were unlawfully

seized based on a warrant obtained through the affiant’s false

statements. A plaintiff bringing this claim must show “(1) that

the [affiant] ‘knowingly and deliberately, or with a reckless

disregard for the truth, made false statements or omissions that

create a falsehood in applying for a warrant’; and (2) that ‘such

statements or omissions are material, or necessary, to the

finding of probable cause.’” Wilson v. Russo, 212 F.3d 781,

786–87 (3d Cir. 2000) (emphasis added) (quoting Sherwood v.

Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)). The same

standard applies to a malicious-prosecution claim, which

requires the plaintiff to prove he, among other things, suffered

a deprivation of liberty from a prosecution brought with a

reckless disregard for the truth in determining probable cause.

See Geness v. Cox, 902 F.3d 344, 356–57 (3d Cir. 2018).

It would be anomalous to treat recklessness as sufficient

in those contexts, but not here. An individual who furnishes

inculpatory evidence while consciously disregarding a

substantial risk it is false behaves culpably, heightens the risk

of a wrongful conviction, and “offends some principle of

justice so rooted in the traditions and conscience of our people

to be ranked as fundamental.” Medina v. California, 505 U.S.

437, 446 (1992) (cleaned up). So we rule that Mervilus’s

fabrication-of-evidence claim requires persuasive evidence

Kaminskas formulated or submitted false evidence willfully,

knowingly, or with a reckless disregard for its truth.

15

2. There is Sufficient Evidence

Kaminskas Acted in Bad Faith.

Having clarified the state of mind necessary to make out

a fabrication claim, we now review whether Mervilus

submitted enough evidence for a jury to find the standard met.

We begin by noting evidence Kaminskas adhered to the Arther

method despite red flags as to its validity and reliability. By

the time he conducted Mervilus’s examination, Kaminskas had

read a National Academy of Science report concluding

polygraph science was neither valid nor reliable. A reasonable

polygraphist might then attempt to ensure the method he or she

employs is sound. But Kaminskas admitted he never saw any

support for many of the Method’s teachings. Indeed, he did

not follow some of what it taught. From this a jury could

conclude he knew that polygraph science was generally

suspect, and his approach especially so. Yet he proceeded with

it anyway.

A jury might also find that, in examining Mervilus,

Kaminskas failed to adhere to accepted practices in the field of

polygraphy that are instituted to avoid bias against innocent

suspects. Recall he instructed Mervilus to change his answer

for a single question, R3K, the one that triggered physiological

reactions purportedly indicating deception. Mervilus’s expert,

Dr. Honts, stated this technique “was highly likely to cause Mr.

Mervilus to have large physiological reactions,” and the

question “posed a substantial risk of skewing the examination

results against an actually innocent subject.” A425.

Kaminskas’s expert, Dr. Palmatier, did not address this point.

16

So the notion that Kaminskas neglected standard practices

designed to avoid false positives stands unrebutted and may

prove persuasive to a jury.

In addition, a jury could conclude Kaminskas acted in

bad faith when he reported Mervilus was lying because neither

expert concurred with Kaminskas’s conclusion that the data

from Mervilus’s exam suggested deception. Dr. Honts

explained the physiological data strongly indicated Mervilus

was being truthful in asserting his innocence. Dr. Palmatier,

on the other hand, asserted the results supported a conclusion

of “Deception Indicated” or “Inconclusive.” Critically, an

“inconclusive” result would not have been admissible evidence

under the stipulation. See A1799 (“[I]nconclusive results shall

not be introduced into evidence.”). Thus, neither expert fully

adopted Kaminskas’s conclusion that the physiological data

proved Mervilus was lying.

Considering the evidence holistically, we hold Mervilus

brought sufficient evidence that Kaminskas fabricated his

polygraph examination. This is so because, viewing the

evidence in the light most favorable to Mervilus, Kaminskas

had reason to doubt his method’s validity and reliability, used

biased techniques to examine Mervilus, and rendered a

conclusion not compelled by the data. So we disagree with the

District Court’s observation that the evidence merely “suggests

that Kaminskas knew superior polygraph methods may have

existed.” A22–30. Although knowingly employing an inferior

method does not per se amount to a constitutional violation, we

do not perceive Mervilus’s argument to be that Kaminskas

behaved culpably for not using some other, superior method.

We thus vacate the District Court’s summary judgment for

Kaminskas and remand for further proceedings consistent with

this opinion.

17

3. Kaminskas Does Not Have Qualified

Immunity.

After holding Mervilus’s claim against Kaminskas

failed, the District Court did not address qualified immunity.

Because the record is sufficiently developed, we do so now.

See Beers-Capitol v. Whetzel, 256 F.3d 120, 126 n.1 (3d Cir.

2001) (reaching qualified immunity on appeal from a decision

that did not reach the issue); Est. of Smith v. Marasco, 318 F.3d

497, 511 (3d Cir. 2003) (refusing to reach qualified immunity

“in recognition that the record is unclear as to the relationship

between each defendant’s specific conduct and the rights at

issue”).

The right at issue is the due process protection against

criminal investigators’ fabrication of inculpatory evidence

against a defendant. Prior to the events in question, that right

had long been recognized by the Supreme Court and Courts of

Appeal, including this one. Pyle v. Kansas, 317 U.S. 213, 216

(1942); Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam);

Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014); U.S. ex

rel. Moore v. Koelzer, 457 F.2d 892, 893 (3d Cir. 1972);

Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001);

Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000); Ricciuti v.

NYC Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); Geter v.

Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988); Anthony v.

Baker, 767 F.2d 657, 662 (10th Cir. 1985). Thus, because a

jury may find that Kaminskas fabricated the polygraph

evidence, we cannot conclude he is immune from suit.

18

B. Union County May Be Liable Even if Kaminskas

Did Not Fabricate Evidence.

Mervilus claims his wrongful conviction stems from

two Union County policies, practices, or customs. First, he

asserts the County was deliberately indifferent to his

constitutional rights by failing to train or supervise Kaminskas.

Second, Mervilus alleges it maintained a policy of convincing

suspects to stipulate to polygraph exams, conducting those

exams in a biased way, and then using the skewed results to

convict them wrongfully.

After holding that no reasonable jury could find

Kaminskas liable on the evidence Mervilus presented, the

District Court rejected his Monell claims without reviewing the

merits. In its view, “[b]ecause [he] has not adduced evidence

to establish that Kaminskas committed a constitutional

violation, his Monell claims . . . must fail.” A35. We disagree.

“[A] municipality can be held liable under Monell, even

when its officers are not, unless such a finding would create an

inconsistent verdict.” Thomas v. Cook Cnty. Sheriff’s Dep’t,

604 F.3d 293, 305 (7th Cir. 2010) (emphasis in original).

Where it is possible for the Monell defendant to cause

constitutional harm without any individual defendant violating

the plaintiff’s rights, it is not inconsistent for a jury to find only

the Monell defendant liable. See Speer v. City of Wynne, 276

F.3d 980, 985–86 (8th Cir. 2002) (“[S]ituations may arise

where the combined actions of multiple officials or employees

may give rise to a constitutional violation, supporting

municipal liability, but where no one individual’s actions are

sufficient to establish personal liability for the violation.”);

19

Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) (“If a

plaintiff establishes he suffered a constitutional injury by the

City, the fact that individual officers are exonerated is

immaterial to liability under § 1983.” (emphasis in original));

Barrett v. Orange Cty. Human Rights Comm’n, 194 F.3d 341,

350 (2d Cir. 1999) (“[U]nder Monell[,] municipal liability for

constitutional injuries may be found to exist even in the

absence of individual liability, at least so long as the injuries

complained of are not solely attributable to the actions of

named individual defendants.”). But where a finding for the

individual defendant necessarily means the plaintiff suffered

no constitutional deprivation, there is no basis for a Monell

claim, and thus it too must fall. See Mulholland v. Gov’t Cnty.

of Berks, Pa., 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is

well-settled that, if there is no violation in the first place, there

can be no derivative municipal claim.”) (emphasis added).

Here, it would be consistent for the jury to find

Kaminskas not liable because he lacked bad faith in conducting

the exam, while simultaneously holding the County liable for

failing to train or supervise him. Cf. Fagan v. City of Vineland,

22 F.3d 1283, 1292 (3d Cir. 1994) (“It is easy to imagine a

situation where an improperly trained police officer may be

ignorant of the danger created by his actions and inflicts

injury.”). Thus, Mervilus may ultimately prevail on his failure

to train and supervise theory against Union County even if

Kaminskas avoids liability. On the other hand, Mervilus’s

second Monell theory— that the County customarily fabricated

exams—depends on Kaminskas being complicit in that

scheme, and thus would be untenable if the jury finds for

Kaminskas.

20

To be clear, our analysis is limited to determining

whether either of Mervilus’s Monell theories depends on his

claim against Kaminskas. We express no view on whether his

claims based on these theories are triable. The result is a

remand for the District Court to decide in the first instance as

to Union County.

***

A reasonable jury could find Kaminskas fabricated the

polygraph exam. We therefore vacate and remand the District

Court’s summary judgment for him. We also vacate and

remand its summary judgment for Union County on the Monell

claims. 5

5

For the District Court’s benefit on remand, we clear up

additional points of confusion. Mervilus brought counts 2, 3,

5, and 6—each alleging unconstitutional polygraph policies,

practices, or customs and the failure to train and supervise

Kaminskas—against Vaniska and Union County. But only

counts 2 and 5 are styled as Monell actions. This matters for

two reasons. First, Mervilus sued Vaniska in his personal

capacity, and thus he is an improper Monell defendant. We

therefore affirm the District Court’s summary judgment for

Vaniska on counts 2 and 5 only; we vacate and remand on

counts 3 and 6 with no view expressed on the merits. Second,

because a Monell claim is the way to sue municipalities, we

affirm the summary judgment for Union County on counts 3

and 6, which, to repeat, are not Monell claims.

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