George Washington v. John Summerville, Detective 16520, P. Foley, Detective 12215, J. Capesius, Detective 11093

ILANA DIAMOND ROVNER, Circuit Judge,

concurring in part, and dissenting in part.

I agree that Washington’s unlawful arrest and excessive force claims are barred by Illinois’ two-year statute of limitations, and I therefore concur in that portion of the court’s opinion. I respectfully dissent, however, from the majority’s decision to affirm the dismissal of Washington’s malicious prosecution claims. In my view, the district court’s judgment on those claims should be reversed and the claims remanded for trial.

The majority’s conclusion about Washington’s section 1983 malicious prosecution claim relies on what I believe to be a misguided interpretation of Justice Ginsburg’s concurring opinion in Albright v. Oliver, 510 U.S. 266 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994). (See ante at 559.) Just as the court did in Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir.1996), the majority today highlights a footnote to Justice Ginsburg’s concurrence which indicates that a malicious prosecution claim against a police officer is “anomalous” because prosecutors and not police officers initiate criminal proceedings. See Albright, 510 U.S. at 279 n. 5, 114 S.Ct. at 816 n. 2 (Ginsburg, J., concurring). Yet my colleagues lose sight of the fact that despite that footnote, Justice Ginsburg would recognize a malicious prosecution-type claim against a police officer when the plaintiff alleges, as Washington did here, that the officer perpetuated the initial Fourth Amendment “seizure” by providing false or misleading testimony in the proceedings against the defendant. Id. at 280-81 , 114 S.Ct. at 816-17 (Ginsburg, J., concurring); see also Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir.1997).

In that sense, despite the majority’s contrary pronouncement, this case is easily distinguished from Reed. (Cf ante at 559 (‘Washington’s case is virtually identical to that which was dismissed in Reed.”).) There, the panel emphasized that the allegations supporting Reed’s malicious prosecution claim were not sufficiently distinct from the allegations in his time-barred unlawful arrest and detention claims because Reed did not allege that the defendant police officers had committed any further unlawful act. Reed did not allege, for example, that the officers had testified untruthfully at subsequent hearings; he merely alleged that the officers had “testified.” 77 F.3d at 1053, 1054 (“There is no allegation that the detectives covered up exculpatory evidence or testified untruthfully.”). Here, however, Washington met the very objection raised by the panel in Reed — ■ he alleged that even after his unlawful arrest, the defendant officers coerced a false inculpatory statement from him through their use of excessive force, fabricated evidence against him, prepared false reports, and then attempted to cover up their misdeeds by testifying falsely in subsequent hearings, including the hearing on Washington’s motion to suppress his allegedly coerced confession. It is therefore simply not correct to say that the allegations here are “virtually identical” *561 to those in Reed. (Cf. ante at 559.) Rather, it is clear that Washington alleged “knowing misstatements made by the officers to the prosecutor,” as the panel required in Reed. See 77 F.3d at 1053 ; see also Curtis v. Bembenek, 48 F.3d 281, 286 (7th Cir.1995) (implying that similar allegations would be sufficient to state a claim for malicious prosecution against a police officer under section 1983).

Once the underbrush is cleared away, it appears that the majority’s rejection of Washington’s malicious prosecution claim results principally from the fact that certain of the allegations supporting that claim were first made in Washington’s time-barred unlawful arrest and excessive force claims. (See ante at 560 (“Washington has only refashioned his false arrest and excessive force claims under the guise of a federal malicious prosecution claim.”).) But as I have just demonstrated, Washington’s allegations in the current claim go much further than the allegations in those time-barred claims, and indeed, they meet the objections that Judge Bauer himself raised to a similar claim in Reed . Those allegations also are plainly sufficient to state a claim under Justice Ginsburg’s concurrence in Albright. See 510 U.S. at 280-81 , 114 S.Ct. at 816 (Ginsburg, J., concurring). At bottom, then, it seems to me that the majority must be saying that a malicious prosecution claim may never lie against a police officer when that claim is based in part on allegations common to a false arrest or excessive force claim. I find that to be a rather astonishing rule of law, and one that directly contradicts the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(a) (“Relief in the alternative or of several different types may be demanded.”). The simple fact that Washington’s unlawful arrest and excessive force claims are time-barred does not prevent him from going forward with the malicious prosecution claim alleged here under section 1983.

In addition to the constitutional problem, the majority also believes that Washington failed to satisfy the state-law requirement that the earlier criminal proceeding be terminated in his favor. See Swick v. Liautaud, 169 Ill.2d 504 , 215 Ill.Dec. 98 , 662 N.E.2d 1238, 1242 (1996) (setting out elements of a malicious prosecution claim under Illinois law). Again, I am unable to agree.

In Swick , the Illinois Supreme Court followed the majority rule that the abandonment of a criminal proceeding via a nolle prosequi motion generally will be considered a termination in favor of the accused “unless the abandonment is for reasons not indicative of the innocence of the accused.” Id. at 102-03, 662 N.E.2d at 1242-43 . That court then provided the following examples of when such an abandonment is not indicative of the accused’s innocence: “when the nolle prosequi is the result of an agreement or compromise with the accused, misconduct on the part of the accused for the purpose of preventing trial, mercy requested or accepted by the accused, the institution of new criminal proceedings, or the impossibility or impracticability of bringing the accused to trial.” Id. at 103, 662 N.E.2d at 1243 . The present case falls into none of these categories. Instead, I think it safe to assume that once the state trial judge suppressed Washington’s allegedly coerced confession, the prosecutor filed a nolle prosequi motion because at that point, he lacked sufficient evidence to pursue the murder charge. Indeed, the defendants have come forward with no other reason for the motion, nor have they suggested that the prosecutor had any evidence implicating Washington in the murder other than the allegedly coerced confession. In this case, then, I have no doubt that the circumstances surrounding the nolle prosequi motion “compel an inference that there existed a lack of reasonable grounds to pursue the criminal prosecution.” Swick, 215 Ill.Dec. at 103 , 662 N.E.2d at 1243 . There simply is no other viable explanation for the motion here.

My colleagues nonetheless are of the view that the circumstances leading up to the grant of the suppression motion suggest Washington’s guilt rather than his innocence, as they assert that “the evidence from the state court transcripts flies in the face of [Washington’s] position.” Ante at 558.) To support that assertion, the majority points out that after the original suppression hearing, the state trial judge chose to credit the police officers’ testimony while finding Wash *562 ington’s story incredible. My colleagues emphasize, moreover, that it was only after Officer Summerville chose to .exercise his Fifth Amendment privilege that the motion to suppress was granted. (Jd.) I take it from this discussion that the majority must believe that Summerville’s invocation of his Fifth Amendment privilege had no impact on the state trial judge’s earlier credibility determinations, which my colleagues find indicative of Washington’s guilt. But the state trial court obviously thought otherwise because it granted the motion to suppress once Summerville notified the court that he would refuse to answer questions the court found critical to his credibility, questions specifically relating to a twenty-two count indictment returned against Summerville, which included charges of official misconduct and sexual assault, and to reports that Summerville had been receiving treatment for substance abuse. To illustrate the nature of the trial court’s concern, I excerpt below a portion of the court’s ruling upon reopening the suppression issue:

THE COURT: Just so I am clear and my recollection is refreshed, the statement in this case that is subject to litigation [ie., Washington’s confession] was taken by the detective [Summerville], is that correct, originally?

[PROSECUTOR]: Originally, yes.

THE COURT: There were no other officers present at the time of the statement, is that correct?

[PROSECUTOR]: Yes.

* :|: * * * *

THE COURT: [S]o the Court spent time late yesterday afternoon reviewing [Summerville’s medical] records. And it is the Court’s determination that with all the competing interests involved here that the records will not be tendered. But I will inform the defense that they do provide information sufficient to warrant cross-examination of the witness in the areas that had previously been indicated, which puts us in a situation wherein the motion to reopen the motion to suppress, therefore, is granted.... Given the Court’s findings that there is relevant inquiry that the defendant in this ease is entitled to inquire into and the fact that the witness refuses to testify, pursuant to his own constitutional rights, the Court has no choice, therefore, but to grant the motion to suppress the statements. So that will be granted.

(R. 29, Ex. 11, at 4-7.)

It is apparent from this excerpt that the court’s earlier credibility determinations, made without the benefit of cross-examination on these highly pertinent matters, do not withstand the later decision to suppress Washington’s confession. And on the heels of that suppression order came the prosecutor’s decision to dismiss the case via his nolle prosequi motion. The obvious inference to be drawn from these circumstances is that without the confession, the prosecutor had no reasonable grounds to pursue the charge against Washington. On defendants’ motion for summary judgment, where the evidence must be viewed in a light most favorable to Washington (not to the defendants), that is the only permissible inference. The dismissal in these circumstances thus was clearly consistent with Washington’s innocence. 1

*563 For these reasons, I would reverse the dismissal of Washington’s malicious prosecution claims and remand those claims to the district court for trial. From the majority’s refusal to do so, I respectfully dissent.

. I must add a word as well about the majority's statement that Washington failed to satisfy his burden on summary judgment because he came forward with no evidence of the reason for the dismissal other than the bare nolle prosequi order itself. (Ante at 558.) What the majority ignores, however, is that defendants' motion did not put Washington to his proof on that issue. Initially, it is important to emphasize that defendants’ motion was one to dismiss under Rule 12(b)(6), which the district court then converted to a summary judgment motion because the parties had relied on state court records that were outside the federal pleadings. Significantly, because they essentially were moving to dismiss, the defendants never argued that the nolle prosequi motion was filed by the prosecutor for any reason other than the lack of evidence on which to proceed once Washington's confession was suppressed. Instead, defendants made a legal argument that did not address the reason for the nolle prosequi motion at all; they argued that because the motion to suppress was granted on “technical” grounds, the subsequent dismissal was not indicative of Washington’s innocence. (See R. 28, at 9-11; see also R. 27, at 10-13.) The district court accepted that legal argument (R. 32, at 12-15), but my colleagues quite rightly have not. Instead, they have found that Washington failed to satisfy a burden that he never *563 had under the circumstances, based upon an argument that the defendants never made.