Ralph Armstrong v. Karen Daily, et al
Filing
Filed opinion of the court by Judge Hamilton. The decision of the district court denying defendants' motions to dismiss on the defense of qualified immunity is AFFIRMED. Joel M. Flaum, Circuit Judge, Concurring in part, dissenting in part; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge. [6662000-1] [6662000] [13-3424, 13-3482]
Case: 13-3424
Document: 50
Filed: 05/11/2015
Pages: 57
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-3424 and 13-3482
RALPH D. ARMSTRONG,
Plaintiff-Appellee,
v.
KAREN D. DAILY, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Western District of Wisconsin.
No. 12-cv-426-bbc—Barbara B. Crabb, Judge.
____________________
ARGUED SEPTEMBER 9, 2014 — DECIDED MAY 11, 2015
____________________
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Ralph Armstrong was
imprisoned for 29 years for the rape and murder of Charise
Kamps—a crime that he maintains he did not commit. His
conviction was set aside in 2005, and in 2009 a Wisconsin
state judge dismissed the charges entirely because the prosecution had destroyed key exculpatory evidence, rendering a
fair trial impossible. Armstrong then brought this civil suit
Case: 13-3424
2
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
under 42 U.S.C. § 1983 seeking damages from the prosecutor
and state crime laboratory technicians who he alleges deprived him of his liberty without due process of law by destroying exculpatory evidence to frame him for Kamps’
murder. Defendants appeal from the denial of their motions
to dismiss this case under Federal Rule of Civil Procedure
12(b)(6) on grounds of qualified immunity. In this posture,
we have only the complaint before us and therefore must
treat Armstrong’s allegations as true.
Armstrong alleges a shocking course of prosecutorial
misconduct. According to the complaint, the prosecutor
quickly fixated on Armstrong as the murderer and sought to
build a case against him by any means necessary. Those
means included destroying potentially exculpatory evidence
from the crime scene, arranging for the highly suggestive
hypnosis of an eyewitness, contriving suggestive show-ups
for identification, and concealing a later confession from the
true killer that was relayed by a person with no apparent
motive to fabricate the report. Finally, the prosecutor enlisted
state lab technicians to perform an inconclusive DNA test
that consumed the last of a sample that could have proven
Armstrong’s innocence and pointed to the true killer. If these
allegations are true—and some are based on the state court’s
factual findings—the prosecution of Armstrong was a singleminded pursuit of an innocent man that let the real killer to
go free.
A full explanation of these events will require factfinding in the district court. For now, only two claims are before us. First, Armstrong claims that prosecutor John Norsetter acted in bad faith by allowing the loss or destruction of
drug paraphernalia found at the crime scene—evidence that
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
3
would exculpate Armstrong and implicate the real killer.
This evidence was allegedly tossed in a plastic trash bag,
placed in an office storage locker, and lost before Armstrong’s trial in 1981.
Second, Armstrong claims that after the Wisconsin Supreme Court vacated his conviction and ordered a new trial
in 2005, two state lab technicians, Karen Daily and Daniel
Campbell, deliberately violated a state court order to preserve evidence by destroying an exculpatory DNA sample in
2006. At the request or order of Norsetter, but without notice
to the court or the defense, Daily and Campbell performed
an inconclusive test that consumed all of a DNA sample extracted from a newly discovered semen stain on the victim’s
bathrobe belt. This test could not distinguish between Armstrong and his late brother, who Armstrong claims was the
true killer. (Armstrong’s brother had allegedly confessed to
an acquaintance, who in turn told prosecutor Norsetter in
1995.) The destruction of the DNA sample prevented Armstrong from performing other tests that could have distinguished between him and his brother. Armstrong spent three
more years in prison before a state court finally dismissed
the charges because of the destruction of the DNA sample.
We affirm the district court’s decision to allow both
claims to proceed. First, plaintiff’s federal due process claims
against all defendants based on the destruction or loss of exculpatory evidence are not barred by the availability of state
tort remedies for the same wrongs. The doctrine of Parratt v.
Taylor, 451 U.S. 527 (1981), does not apply to the actions of
law enforcement officers that undermine the fairness of a
criminal trial. Second, at the time of the original investigation, it was clearly established under Killian v. United States,
Case: 13-3424
Document: 50
Filed: 05/11/2015
4
Pages: 57
Nos. 13-3424 & 13-3482
368 U.S. 231 (1961), and then Brady v. Maryland, 373 U.S. 83
(1963), that bad-faith destruction or loss of exculpatory evidence would violate a suspect’s due process rights. Brady
made clear that the police and prosecution could not suppress
exculpatory evidence. A reasonable police officer or prosecutor would not have concluded that he could instead destroy
evidence to avoid disclosing it to the defense. Third, if plaintiff can show that the unconstitutional destruction of exculpatory evidence in 2006 caused him to suffer a deprivation
of liberty, he can sue for that injury without having gone
through a second trial. Finally, while there is some disagreement among courts about the conditions for obtaining
a civil remedy for destruction of exculpatory evidence, those
disagreements do not support a qualified immunity defense.
It was clearly established in 2006 that the defendants’ alleged
conduct of destroying the evidence would violate defendant’s
due process rights. That is sufficient to defeat the qualified
immunity defense.
I. Factual and Procedural Background
Because we are reviewing a decision on a motion to dismiss under Rule 12(b)(6), we accept the allegations of the
complaint as true and draw from those allegations all reasonable inferences in favor of the plaintiff. Parish v. City of
Elkhart, 614 F.3d 677, 679 (7th Cir. 2010); Parish v. City of Chicago, 594 F.3d 551, 552 (7th Cir. 2009). Whether Armstrong
can prove his allegations is not the issue now before us. We
must proceed on the premise that the defendants acted as
Armstrong has alleged and did so in bad faith.
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
5
A. The Crime Scene and Initial Investigation
Charise Kamps was raped and murdered in her home in
Madison, Wisconsin, on June 24, 1980. Defendant John
Norsetter, then an assistant district attorney for Dane County, arrived on the scene shortly after her body was discovered. Norsetter advised and directed Madison police officers
on all aspects of the investigation, including collecting and
retaining evidence. The officers discovered two items of
physical evidence at the center of Armstrong’s claims: a
bathrobe belt used as the murder weapon and drug paraphernalia that could have shown who had been in Kamps’
apartment the evening she was murdered.
The officers found the bathrobe belt draped over Kamps,
who was lying on her bed. The belt was not forensically analyzed in the initial investigation in 1980. However, semen
stains on the accompanying bathrobe were tested. Results
showed that the stains came from the same secretor type as
Armstrong, though Kamps’ boyfriend and 80 percent of the
population also fit that profile. More precise DNA analysis
was not available for the initial investigation in 1980.
The officers also found drug paraphernalia—a small mirror, razor blade, and silver straw, all used to snort powder
cocaine—lying on the kitchen table, suggesting recent use.
The officers and Norsetter knew that this evidence could
show who was in Kamps’ home the night of her death. By
interviewing witnesses, including Armstrong, the police had
learned that Kamps had tried to buy cocaine on the night of
her murder. A person who used cocaine with Kamps that
night would have been an obvious suspect in the murder.
Witnesses accused Armstrong of selling cocaine to Kamps
and using it with her that night, but Armstrong denied it.
Case: 13-3424
6
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
The drug paraphernalia evidence also could have corroborated Armstrong’s claim that he had not provided cocaine to
or used cocaine with Kamps that night. But the drug paraphernalia was never examined for fingerprints or subjected
to any other forensic testing. Instead, it was tossed into a
large plastic trash bag and left in an office storage locker at
the police station, only to be lost.
The police also canvassed the neighborhood and found a
witness, Riccie Orebia, who saw a man suspiciously entering
and leaving Kamps’ apartment building the night of the
murder. Orebia described that person as roughly 5’6” tall
and weighing 165 pounds. The man she saw was also shirtless with no tattoos and had a mustache. Armstrong is 6’2”
tall and weighed at least 200 pounds. He had dark, noticeable tattoos on his upper arms, and no mustache. 1
Norsetter and the police had Orebia hypnotized. During
the hypnosis sessions, Armstrong alleges, Orebia was “allowed to view” photographs of Armstrong and his car. After
the hypnosis, the police arranged a series of show-ups with
several different men, including Armstrong. All the men
were put through a reenactment near the scene of the crime
to assist Orebia in identifying the man she saw the night of
the murder. Orebia selected Armstrong. The full details of
the show-ups, which Orebia later described as rigged, are
recounted in Armstrong v. Young, 34 F.3d 421 (7th Cir. 1994),
in which this court affirmed the denial of federal habeas cor1
Orebia, described as a “male transvestite,” was referred to as a
woman by a prior decision of this court, Armstrong v. Young, 34 F.3d 421,
423 n.1 (7th Cir. 1994), and throughout Armstrong’s criminal trial, State
v. Armstrong, 329 N.W.2d 386, 389 n.3 (Wis. 1983). We use female pronouns for consistency.
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
7
pus relief to Armstrong because, among other issues, the totality of circumstances indicated that Orebia’s identification
was sufficiently reliable that its admission as evidence was
permissible.
Testimony from a hearing inquiring into the prosecution’s conduct in this case sheds further light on the initial
investigation. The complaint alleges that in that hearing,
Norsetter testified that his attitude and approach to the
Kamps investigation were that no matter what exculpatory
evidence might emerge, he would continue to believe that
Armstrong committed the crime and would act accordingly.
B. Armstrong’s Conviction and Subsequent Challenges
A jury convicted Armstrong of first-degree murder and
first-degree sexual assault in 1981. He was sentenced by the
trial court to life plus 16 years in prison. Armstrong sought
post-conviction relief on two principal grounds. Immediately after his conviction, he argued to state and federal courts
that the hypnosis and rigged show-ups were unduly suggestive and violated his due process rights. As noted, that issue
was conclusively resolved against Armstrong by this court in
1994. Armstrong v. Young, 34 F.3d 421, 430–31 (7th Cir. 1994).
Armstrong later pursued another avenue for postconviction relief, arguing for a new trial because of newly
discovered evidence. The State had argued in the trial that
the physical evidence showed “conclusively and irrefutably”
that Armstrong was the murderer. State v. Armstrong, 700
N.W.2d 98, 101 (Wis. 2005). Armstrong then presented the
results of newly available DNA testing that excluded him as
a possible source of the semen stains on the victim’s bathrobe. The State, despite its arguments at trial, responded by
Case: 13-3424
8
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
minimizing the importance of the physical evidence. The
state trial court ruled against Armstrong because he failed to
prove that a different result would be reached in a new trial
with the new evidence. The Wisconsin Court of Appeals affirmed in an unpublished order. State v. Armstrong, No. 920232-CR, 504 N.W.2d 873 (Wis. App. June 17, 1993) (Table).
Years later, Armstrong renewed his request for a new trial in another petition to the state courts. He presented the
results of additional DNA testing. The results definitively
excluded him as the possible source of hair on the victim’s
bathrobe belt, which the State had asserted at trial belonged
to Armstrong. Armstrong also offered an expert’s analysis
that swabs and scrapings taken from Armstrong’s nails and
cuticles the day of the murder contained no blood at all, contrary to the State’s argument at trial that the victim’s blood
had been detected. Finally, Armstrong pointed out that DNA
analysis excluded him as the source of semen on Kamps’
bathrobe, which the State had linked to Armstrong at trial
through the crude test of secretor types.
The state trial and appellate courts again denied relief,
but the Supreme Court of Wisconsin reversed. It held that
the real controversy of identification was not fully tried because the jury never considered the newly discovered exculpatory evidence and heard instead that the physical evidence showed conclusively that Armstrong was guilty. State
v. Armstrong, 700 N.W.2d at 128–29. The court vacated Armstrong’s conviction and ordered a new trial. In the meantime,
however, Armstrong stayed in prison.
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
9
C. Handling the Evidence on Remand
Armstrong was never retried. In 2009, after he had served
29 years in prison for Kamps’ murder, the state trial court
dismissed the charges because the State had acted in bad
faith in destroying critical physical evidence.
The contested physical evidence was governed by two
court orders. A court order issued in December 2005—after
the state lost the appeal in the state supreme court—required
the prosecution to inform the defense of future tests and to
allow the defense to be present for any handling of the evidence. Also, a court order from as far back as March 2000 required that the results of any testing be forwarded to the defense.
In 2006, after the remand, Armstrong discovered that the
prosecution had violated both court orders by destroying
key exculpatory evidence: a newly discovered semen stain
on the victim’s bathrobe belt, which was the murder weapon.
The man who was the source of the semen stain would be an
obvious suspect. Armstrong alleges that this evidence was
“the most critical and probative physical evidence remaining
in the case.” The prosecution knew the semen stain on the
belt could be exculpatory. State lab technician Karen Daily
wrote in a report dated April 10, 2006 that Armstrong was
“eliminated as the source” for all DNA samples she had tested, including the semen stains on the bathrobe and the belt.
Despite these exculpatory results, the prosecution announced a month later that it would retry Armstrong. Just a
few weeks after the announcement, prosecutor Norsetter ordered further testing of the bathrobe belt during a call with
Daily. The testing was plainly aimed at finding inculpatory
Case: 13-3424
10
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
evidence to resuscitate the prosecution’s case. Armstrong’s
attorneys had announced that they intended to test the newly discovered semen stains to identify the true killer. Armstrong’s attorneys were neither provided notice of the State’s
testing before it was done nor given the results afterward.
That violated both court orders governing access to the
physical evidence.
Daily and defendant Daniel Campbell, another state lab
technician, performed a test that consumed the entire DNA
sample but provided only inconclusive results that could not
confirm or eliminate Armstrong as a possible source of the
stain. This test, a “single tandem repeat” on the Y chromosome, or Y-STR, looks only at the Y chromosome and therefore cannot distinguish between men with the same father.
The Y-STR test matched Armstrong’s DNA to the DNA extracted from the semen stain on the bathrobe belt.
This result was dangerously misleading because Ralph
Armstrong’s brother, Stephen Armstrong, who died in 2005,
may well have been the true killer. In 1995, an acquaintance
of Stephen Armstrong called Norsetter to report that Stephen had confessed to her that he had killed Kamps. The acquaintance had no apparent motive to fabricate Stephen’s
confession. If Stephen Armstrong was the source of the newly discovered semen, then a Y-STR test of the semen stain
would show a match with plaintiff Ralph Armstrong’s Y
chromosome, though a more discriminating test could have
differentiated between the brothers and therefore exculpated
Ralph. Norsetter never disclosed the call relating Stephen’s
confession to Ralph Armstrong or his attorneys, nor, apparently, did he tell the state lab technicians that Stephen might
be a suspect.
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
11
The Y-STR test consumed the entire sample, which was
contaminated in the process. As a result, Armstrong alleges,
he is unable to prove conclusively that he was not the source
of the semen, nor can he conduct further testing to attempt
to identify the true killer.
After Armstrong’s attorneys discovered that the prosecution’s secret testing had destroyed the evidence, they moved
to dismiss the charges against Armstrong in December 2006.
The state court held an evidentiary hearing in 2009. When
Norsetter was asked about the failure to inform the defense
of the planned testing, he said that he “just forgot” about the
December 2005 court order governing the evidence.
The state court found that the stain on the bathrobe belt
had both potential and apparent exculpatory value and that
the prosecution had destroyed that evidence in bad faith.
The court dismissed the charges against Armstrong because
the destruction of that evidence had irreparably compromised his right to a fair trial. Armstrong had remained in
prison for the three years between the destruction of the evidence in 2006 and the court’s dismissal in 2009.
D. This Federal Civil Case
In 2012, Armstrong filed this civil suit for damages under
42 U.S.C. § 1983, which provides a federal remedy for state
and local officials’ violations of federal constitutional rights.
His pro se second amended complaint—the one before us—
asserts four claims: (1) prosecutor Norsetter and unnamed
police officers acted in bad faith to destroy potentially exculpatory evidence, the drug paraphernalia found in Kamps’
apartment; (2) Norsetter and other state defendants violated
Armstrong’s due process rights by introducing the testimony
Case: 13-3424
12
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
of Orebia, which was tainted by the unduly suggestive hypnosis session and rigged show-ups; (3) Norsetter, Daily, and
Campbell violated Armstrong’s due process rights by mishandling physical evidence in the court’s custody and consuming the semen sample on the bathrobe belt; (4) Norsetter
and another state defendant suppressed evidence of a confession by Stephen Armstrong, the true killer, that was relayed to Norsetter.
The district court dismissed the second and fourth claims
at screening. See 28 U.S.C. § 1915A(b). The court found the
second claim was barred by res judicata; state and federal
courts had previously adjudicated that claim and found no
due process violation. The fourth claim was barred by absolute immunity because Norsetter was acting as a prosecutor
in 1995 in dealing with the evidence of Stephen Armstrong’s
confession relayed by the acquaintance. The district court
found, however, that Armstrong could proceed on the first
and third claims: that Norsetter destroyed the drug paraphernalia evidence (when acting as an investigator rather
than as a prosecutor) and that Norsetter, Daily, Campbell,
and other state defendants destroyed the bathrobe belt semen evidence. The district court also granted Armstrong’s
request to recruit counsel for him. Since then he has been
represented by counsel.
Norsetter, Daily, and Campbell then filed motions to
dismiss these remaining claims. Norsetter moved to dismiss
the first claim, for destroying the drug paraphernalia evidence, claiming both qualified immunity and absolute prosecutorial immunity. Norsetter, Daily, and Campbell moved
to dismiss the third claim of destroying the bathrobe belt
semen stain evidence. Daily and Campbell claimed qualified
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
13
immunity, and Norsetter claimed both qualified immunity
and absolute prosecutorial immunity. Armstrong opposed
these motions and also sought leave to amend his complaint
to add a claim for federal malicious prosecution.
The district court denied Norsetter’s motion to dismiss
the first claim because, looking only at the allegations of the
complaint, it was not clear that he enjoyed qualified immunity for his actions. Norsetter is entitled to absolute immunity
for his actions as a prosecutor but not for his actions as an
investigator. The court granted the motion to dismiss
Norsetter from the third claim. His acts and omissions in assisting the State to prepare for retrial in 2006 were “intimately related to the judicial phase of the criminal process,” Fields
v. Wharrie, 672 F.3d 505, 513 (7th Cir. 2012), so he is entitled
to absolute immunity. Daily and Campbell were not dismissed from the third claim based on their involvement in
the destruction of the bathrobe belt semen stain. Finally, the
district court denied Armstrong leave to amend his complaint because the new allegations were too vague to state
claims upon which relief could be granted. Norsetter, Daily,
and Campbell took these interlocutory appeals from the district court’s denial of their motions to dismiss these two
claims for qualified immunity.
II. Analysis
A. The Scope of Appellate Jurisdiction
An appeal from a denial of an official defendant’s motion
to dismiss or for summary judgment based on the defense of
qualified immunity is permitted as an appeal from a collateral order because qualified immunity is “immunity from suit
rather than a mere defense to liability,” and is “effectively
Case: 13-3424
14
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
lost if a case is erroneously permitted to go to trial.” Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985); see also Behrens v. Pelletier,
516 U.S. 299, 307 (1996) (relying on Mitchell to hold that “an
order rejecting the defense of qualified immunity at either the
dismissal stage or the summary judgment stage is a ‘final’
judgment subject to immediate appeal”). The appeal is limited in scope for the same reason it is permitted: the question
of qualified immunity is “conceptually distinct from the
merits of the plaintiff’s claim that his rights have been violated.” Mitchell, 472 U.S. at 527–28. In this posture, we “need
not consider the correctness of the plaintiff’s version of the
facts.” Id. at 528. The qualified immunity defense requires us
to consider only two limited questions at this stage: first,
whether plaintiff has alleged a violation of his constitutional
rights, and second, whether the violation was clearly established in the law at the time of the defendant’s conduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
We must decline plaintiff Armstrong’s invitation to review the separate issue posed by the district court’s denial of
leave to amend the complaint to add a federal constitutional
claim for malicious prosecution. Whatever the merits of the
argument, we lack jurisdiction to consider it in these appeals
for several reasons. First, it was not the subject of an appealable order. Second, Armstrong did not file a cross-appeal,
which is necessary if an appellee seeks to modify a judgment
in his favor. E.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S.
473, 479 (1999). Finally, this is not the sort of closely related
issue that warrants the exercise of pendent appellate jurisdiction—“a narrow doctrine that allows an appellate court
‘to review an otherwise unappealable interlocutory order if
it is inextricably intertwined with an appealable one.’”
Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir. 2012), quoting
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
15
Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626
F.3d 973, 977 (7th Cir. 2010); see generally Swint v. Chambers
County Comm’n, 514 U.S. 35, 43–51 (1995) (restricting pendent appellate jurisdiction). For now, we have jurisdiction
over only the questions of law presented by the district
court’s denial of qualified immunity to the state defendants
on the first and third claims.
B. Legal Standard for Qualified Immunity
We review de novo the district court’s denial of the motion
to dismiss for qualified immunity. Alvarado v. Litscher, 267
F.3d 648, 651 (7th Cir. 2001). Qualified immunity “protects
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” Pearson, 555 U.S. at 231, quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
For qualified immunity, the appropriate focus is “on the
objective legal reasonableness of an official’s acts. Where an
official could be expected to know that certain conduct
would violate statutory or constitutional rights, he should be
made to hesitate; and a person who suffers injury caused by
such conduct may have a cause of action.” Harlow, 457 U.S.
at 819. Harlow “purged qualified immunity doctrine of its
subjective components,” meaning that the defendants’ actual
state of mind or knowledge of the law is irrelevant to whether the asserted conduct would have been legally reasonable.
Mitchell, 472 U.S. at 517; see also Crawford-El v. Britton, 523
U.S. 574, 598 (1998) (rejecting heightened standard of proof
for constitutional claims involving improper motive and directing district courts to “determine whether, assuming the
Case: 13-3424
16
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
truth of the plaintiff’s allegations, the official’s conduct violated clearly established law”).
To determine if the defendants are entitled to qualified
immunity, we ask two questions: (1) whether “the facts alleged show the officer’s conduct violated a constitutional
right,” and (2) whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001), modified
on other grounds by Pearson, 555 U.S. at 236 (allowing courts
discretion to conduct two-step inquiry in sequence better
suited to particular case); accord, Whitlock v. Brueggemann,
682 F.3d 567, 580 (7th Cir. 2012). With this standard in mind,
we turn to defendants’ arguments.
C. The Parratt Defense Based on State Tort Remedies
Armstrong alleges that all three defendants deprived him
of his liberty without due process of law by acting in bad
faith to cause the loss or destruction of exculpatory evidence.
All three defendants argue that Armstrong has failed to allege a violation of his federal constitutional rights. They argue that a state tort action could have provided him a remedy sufficient to satisfy federal due process requirements. The
argument is based on Parratt v. Taylor, 451 U.S. 527 (1981).
That case held that state officials did not violate a prisoner’s
procedural due process rights by negligently losing his personal property because their actions could be remedied
through a state tort suit—all the process constitutionally due
for the officials’ “random and unauthorized” acts. 451 U.S. at
541, 543–44. 2
2
On grounds not relevant here, Parratt was overruled in part by
Daniels v. Williams, 474 U.S. 327, 330–331 (1986), which held that purely
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
17
Hudson v. Palmer extended this reasoning to intentional
deprivations of property. 468 U.S. 517, 533 (1984). And in
Zinermon v. Burch, the Court concluded that the Parratt/Hudson rationale also extends to “random and unauthorized” deprivations of liberty. 494 U.S. 113, 132 (1990). As defendants read these cases and frame the question, Armstrong
has alleged wrongdoing by defendants that (a) would have
been “random and unauthorized” and (b) could have been
the subject of a tort claim under Wisconsin law, so any deprivation of liberty would not have been without due process
of law.
We reject this argument, which we view as profoundly
mistaken. The defendants read the Parratt doctrine much too
broadly. First, the Parratt doctrine does not apply to claims
alleging that wrongful conduct corrupted fair fact-finding in
the criminal justice system. No court has suggested as much.
Armstrong’s claims seek to vindicate rights of fundamental
fairness and thus differ in kind from procedural due process
claims governed by Parratt, which seek only notice and a
hearing before a deprivation occurs. Second, the defendants’
broad reading of Parratt cannot stand in light of later limiting cases. Those cases have made clear that Parratt is limited
to a narrow category of due process cases where the plaintiff
claims he was denied a meaningful pre-deprivation hearing,
but under circumstances where the very notion of a predeprivation hearing would be impractical and even nonsensical, and where the deprivation was not carried out through
established state procedures. See, e.g., Zinermon, 494 U.S. at
128, 138. The fact that the alleged wrongdoing also violated
negligent conduct could not deprive an individual of life, liberty, or
property in violation of the Fourteenth Amendment.
Case: 13-3424
18
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
state law and could support a tort claim is not sufficient to
invoke the Parratt doctrine. Third, when the Parratt doctrine
is understood properly, the differences between those cases
and this one become clear and decisive.
1. Parratt and Violations of Fundamental Fairness in
Criminal Proceedings
The defendants argue that Armstrong’s claims based on
the loss or destruction of exculpatory evidence are procedural due process claims, and procedural due process claims
are governed by Parratt. See Zinermon, 494 U.S. at 125 (holding that the existence of state remedies is relevant to procedural due process claims but not claims based on substantive due process or other specific protections in the Bill of
Rights). But no court has applied Parratt to claims that the
government violated a defendant’s right of access to exculpatory evidence. Armstrong’s claims do not seek notice and a
hearing—like the procedural due process claims addressed
in Parratt and its progeny—but rather seek to vindicate
rights of fundamental fairness in criminal proceedings.
We find support for this distinction in Justice Kennedy’s
concurring opinion in Albright v. Oliver, 510 U.S. 266, 281–86
(1994), which we have treated as controlling. See Newsome v.
McCabe, 256 F.3d 747, 750–51 (7th Cir. 2001). The claim in Albright was only that the plaintiff had been prosecuted without probable cause. Unlike this case, there was no claim that
a law enforcement official had acted in bad faith to undermine the reliability of a trial, such as by manufacturing false
evidence, arranging for perjured testimony, or destroying
exculpatory evidence.
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
19
For a claim limited to prosecution without probable
cause, Justice Kennedy, joined by Justice Thomas, urged application of Parratt but emphasized that such a claim
differs in kind from In re Winship, 397 U.S. 358
(1970), and the other criminal cases where we
have recognized due process requirements not
specified in the Bill of Rights. The constitutional requirements we enforced in those cases ensured fundamental fairness in the determination of guilt at trial. See, e.g., Mooney v. Holohan,
294 U.S. 103, 112 (1935) (due process prohibits
“deliberate deception of court and jury” by
prosecution’s knowing use of perjured testimony).
510 U.S. at 283 (citation omitted). In this passage, Justice
Kennedy recognized that certain rights essential to the fundamental fairness of a criminal trial—such as the right in
Mooney to a trial free of deliberately perjured testimony—are
beyond the reach of Parratt.
Armstrong’s claims are based on one of these rights essential to fundamental fairness that are beyond the reach of
Parratt. As we explain below, the right not to have exculpatory evidence deliberately destroyed stems directly from the
right to disclosure of exculpatory evidence identified in
Brady v. Maryland—which was itself “an extension of
Mooney,” Brady, 373 U.S. at 86, cited in Justice Kennedy’s Albright concurrence. These rights are all grounded in the due
process guarantee of fundamental fairness in criminal prosecutions. A criminal defendant’s right not to have exculpatory
evidence destroyed deliberately, like other fundamental fairness rights of criminal defendants, “safeguard[s] the liberty
Case: 13-3424
20
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
of the citizen against deprivation through the action of the
state” and “cannot be deemed to be satisfied by mere notice
and hearing.” See Mooney, 294 U.S. at 112.
So it comes as no surprise that Parratt’s application has
been rejected in the rare wrongful conviction cases where
defendants have raised it. In Castellano v. Fragozo, 352 F.3d
939 (5th Cir. 2003) (en banc), the plaintiff proved at trial that
a police officer had manufactured evidence and arranged for
perjured testimony, leading to the wrongful conviction. On
appeal, the defendants relied on Parratt to argue there had
been no due process violation. The en banc Fifth Circuit rejected the Parratt argument. The plaintiff had not claimed
merely that he was prosecuted without probable cause or
that the result of his trial was wrong. He had instead shown
that a defendant had manufactured and perjured evidence
that had violated fundamental constitutional rights and had
undermined his right to a fair determination of guilt or innocence at his trial. Id. at 957–58. Armstrong has alleged parallel violations: that Norsetter’s destruction of exculpatory evidence prevented him from having a fair trial to determine
guilt or innocence, and that the other defendants’ destruction
of exculpatory evidence made it impossible for him to have a
fair trial but also kept him in prison for three extra years.
In Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), we
drew essentially the same line that the Fifth Circuit did.
Newsome is cited most often for its rejection of a constitutional tort of malicious prosecution where a state provides a
meaningful tort remedy for malicious prosecution. That reasoning relied on Justice Kennedy’s concurring opinion as the
controlling view in Albright v. Oliver, 510 U.S. 266, 281–86.
See Newsome, 256 F.3d at 750–51. And that reasoning applied
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
21
in both Albright and Newsome to hold that there is no standalone federal constitutional right not to be prosecuted without probable cause, at least if a state-law remedy is available.
But Newsome also held that the same argument based on
Parratt did not bar a claim that police officers had withheld
exculpatory evidence from the prosecutor and thus the defense. Id. at 752–53 (affirming denial of qualified immunity
for claim based on this theory). The plaintiff in Newsome was
allowed to proceed on that theory, despite Parratt, and that
part of Newsome provides the closest parallel to Armstrong’s
claims for destruction of exculpatory evidence. See also Castellano, 352 F.3d at 962 (Jones, J., concurring in relevant part)
(agreeing that Parratt did not bar the plaintiff’s due process
claim based on manufactured evidence and perjured testimony and citing opinions from several circuits that allowed
such claims to go forward). 3
No court has accepted the defendants’ argument that the
Parratt analysis applies when the plaintiff is alleging that
wrongful conduct corrupted fair fact-finding in the criminal
justice system. We will not be the first. We will, however, explain further our reasoning for rejecting Parratt as an obstacle to Armstrong’s claims. When Parratt and its progeny are
understood properly, it becomes clear that Armstrong can
proceed on his claim because the defendants’ actions were
not “random and unauthorized” within the meaning of Par-
3
Defendants find some support for their reading of Parratt and Hudson in Judge Barksdale’s partial dissent in Castellano, 352 F.3d at 967–72,
which read both cases broadly as applying essentially to any claim for
deprivation of procedural due process. Like the Fifth Circuit majority,
though, we disagree with that reading for the reasons explained above.
Case: 13-3424
22
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
ratt and that state tort law does not provide an adequate
remedy.
2. The Rationale for and Scope of Parratt and Hudson
We start with the rationale for Parratt and Hudson, as explained in those opinions and later cases. In Parratt, prison
staff negligently lost some personal property (“hobby materials”) that a prisoner had purchased. The prisoner sued under 42 U.S.C. § 1983 for deprivation of his property without
due process of law, arguing that he was entitled to a hearing
before a state actor permanently deprived him of his property. In a pragmatic decision, the Supreme Court held that the
prisoner had failed to state a claim for relief under the Due
Process Clause of the Fourteenth Amendment. Parratt, 451
U.S. at 539–40. A pre-deprivation hearing was not possible,
id. at 541, so a meaningful post-deprivation tort remedy provided all the process that could be expected and thus all the
process that was due. Id. at 543. Also important for present
purposes, “the deprivation did not occur as a result of some
established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the
State to follow established state procedure.” Id.
In Hudson v. Palmer, 468 U.S. 517 (1984), the Court extended the reasoning of Parratt from a claim based on negligence to a claim that a guard had intentionally destroyed a
prisoner’s property (including legal papers) in a “shakedown” search of his cell. The Court explained that a predeprivation hearing would be no more practical for a “random and unauthorized” deprivation of property that was
intentional than for one that was negligent. Id. at 533. The
prisoner in Hudson was also left to his state-law remedies.
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
23
It is possible to read these two cases broadly, as defendants do, in a way that would bar virtually all § 1983 due process claims so long as state law offers some post-deprivation
remedy. That reading would conflict with decades of precedent establishing that violations of due process are in most
instances federal claims based on federal rights and are actionable under § 1983. As we explained in Tavarez v.
O’Malley, 826 F.2d 671, 675 (7th Cir. 1987), for example, under a broad reading of Parratt, “even such classic constitutional-tort cases as that of the policeman who kills a suspect
in order to bypass the cumbersome procedures of the criminal justice system would not be actionable, provided the killing was a tort under state law.” Or consider the body of due
process law protecting tenured public employees from being
fired without prior notice and an opportunity to be heard.
See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985); Board of Regents of State Colleges v. Roth, 408 U.S.
564 (1972), and their progeny. If a post-deprivation tort remedy were sufficient to cure any due process problem, as defendants argue here, Parratt and Hudson would have erased
that body of law.
An expansive reading of Parratt might even jeopardize
Goldberg v. Kelly, 397 U.S. 254 (1970), which held that recipients of welfare benefits had a right to a hearing before their
benefits could be terminated, even if later awards of retroactive benefits might compensate for erroneous termination. If
defendants’ argument were correct here and a postdeprivation remedy cured any failure to provide a fair predeprivation hearing, then these and other fields of due process law would be undermined.
Case: 13-3424
24
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
Moreover, it is well established that the fact that a public
official violates state law does not mean that the federal
Constitution has not also been violated or that relief is not
available under § 1983. See Monroe v. Pape, 365 U.S. 167, 183
(1961) (plaintiff could seek relief under § 1983 for police officers’ violation of his Fourth Amendment rights even if police also violated state law). 4 A broad reading of Parratt is in
tension with the Court’s holding that the federal remedy under § 1983 “is supplementary to the state remedy, and the
latter need not be first sought and refused before the federal
one is invoked.” Id. Accordingly, Parratt cannot apply simply
because the defendant official’s actions were prohibited by
state law and subject to a tort remedy.
A closer reading of Parratt, Hudson, and later cases shows
that the Supreme Court never intended Parratt to reach as
broadly as the defendants argue. The Court’s decisions make
clear that Parratt is limited in three ways: first, “random and
unauthorized” conduct means unforeseeable misconduct
that cannot practicably be preceded by a hearing; second,
misconduct that is legally enabled by a state’s broad delegation of power is not “random and unauthorized”; and third,
an official’s subversion of established state procedures is not
“random and unauthorized” misconduct.
First, to count as “random and unauthorized,” misconduct must be misconduct of state officials that the State cannot foresee and that cannot be the subject of a meaningful
4
On grounds not relevant here, Monroe was overruled in part by
Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978), which
held that municipalities are suable “persons” under § 1983.
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
25
pre-deprivation procedure. Parratt, 451 U.S. at 541. This
point is illustrated by Zinermon v. Burch, 494 U.S. 113 (1990),
in which the Court allowed a due process claim despite a
Parratt argument based on adequate state remedies because
the misconduct that resulted in the deprivation was predictable and could have been prevented by a pre-deprivation
hearing.
The plaintiff in Zinermon had requested voluntary admission to a state mental hospital. His specific claim was that
state officials had deprived him of his liberty without due
process of law by allowing him to commit himself without
first ensuring that he was competent to give informed consent. The Court found that the danger of such deprivations
was foreseeable and preventable through pre-deprivation
procedures: “It is hardly unforeseeable that a person requesting treatment for mental illness might be incapable of
informed consent ….” 494 U.S. at 136.
Second, the Court further explained that an official’s exercise of broad delegated power is not within the limited
meaning of “random and unauthorized” acts under Parratt.
Zinermon held that the conduct was not unauthorized even
though it violated state law because the state’s broad delegation of authority to a state official enabled the deprivation of
liberty. Speaking of the officials who admitted Burch without
ensuring that he was competent to consent, the Court said:
“The State delegated to them the power and authority to effect the very deprivation complained of here … and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement.” Id. at 138. Therefore, the Court concluded,
the “deprivation here is ‘unauthorized’ only in the sense that
Case: 13-3424
26
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
it was not an act sanctioned by state law, but, instead, was a
‘depriv[ation] of constitutional rights … by an official’s
abuse of his position.’” Id. (alteration in original), quoting
Monroe, 365 U.S. at 172. See also Daily Services, LLC v. Valentino, 756 F.3d 893, 910 (6th Cir. 2014) (Moore, J., concurring in
part and dissenting in part) (explaining that Zinermon reasoned that the conduct of state officials in failing to follow
state-mandated procedures was authorized because they
were legally empowered to effect the deprivation). Thus, the
fact that a public official has used his power to deprive a
person of property or liberty in a way that also violates state
law does not necessarily defeat a federal due process claim.
Third, the Court held in Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982), a case decided in the immediate wake of
Parratt, that an official’s mistaken subversion of established
state procedures is not “unauthorized” conduct. In Logan the
Court considered a claim that the plaintiff was deprived of
property because a state officer mistakenly subverted the
prescribed state procedures. Logan had asserted a state-law
claim for disability discrimination in employment. He was
required to bring his claim through a state agency, and the
agency made a mistake in scheduling a required conference.
The state courts ruled that the agency’s mistake required
dismissal of Logan’s claim.
The Logan Court found that the feature of state law requiring dismissal of a presumably valid claim because a
state actor had made a mistake deprived the plaintiff of
property without due process of law. 455 U.S. at 436. The
Court rejected a defense argument based on Parratt. The
Court explained that the tortious loss of property in Parratt
had been the result of “‘a random and unauthorized act by a
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
27
state employee … not a result of some established state procedure.’” Id. at 435–36 (omission in original), quoting Parratt,
451 U.S. at 541. In Logan, by contrast, “it is the state system
itself that destroys a complainant’s property interest, by operation of law, whenever the Commission fails to convene a
timely conference—whether the Commission’s action is taken through negligence, maliciousness, or otherwise. Parratt
was not designed to reach such a situation,” where the loss occurred through “established state procedure,” even where a
mistake had been made in carrying out that procedure. Id. at
436 (emphasis added).
To support their much broader reading of Parratt, which
fails to recognize these three limitations, defendants here
quote Hood v. City of Chicago, where we said that Parratt
meant that “‘a victim of a property or liberty deprivation
who has recourse to an adequate state remedy has not been
denied due process of law.’” 927 F.2d 312, 314 (7th Cir. 1991),
quoting Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.
1984) (some internal quotations marks omitted). The quoted
language is an incomplete and overly broad statement of the
Parratt doctrine.
Our later cases have recognized more accurately that the
Parratt doctrine applies only to conduct that is “random and
unauthorized” in the sense that the state could not predict
the conduct causing the deprivation, could not provide a
pre-deprivation hearing as a practical matter, and did not
enable the deprivation through established state procedures
and a broad delegation of power. See Veterans Legal Defense
Fund v. Schwartz, 330 F.3d 937, 940 (7th Cir. 2003) (“Parratt
essentially stands for the rule that when predeprivation
hearings are impractical because the actions of the state of-
Case: 13-3424
28
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
ficers were ‘random and unauthorized’ the state is only responsible for providing postdeprivation remedies.”); Cushing v. City of Chicago, 3 F.3d 1156, 1165 (7th Cir. 1993) (acknowledging that “‘Zinermon narrowed the scope of Parratt’s
application in certain factual circumstances’” and emphasizing the relevance of the predictability of the deprivation),
quoting Easter House v. Felder, 910 F.2d 1387, 1400 (7th Cir.
1990) (en banc); Easter House, 910 F.2d at 1400 (interpreting
Zinermon to counsel a narrow reading of potentially broad
language in Parratt: “the dispositive factor in determining
whether Parratt will indeed apply in a given situation is still
whether the state actor’s conduct is ‘random and unauthorized’ or, as the Court has rephrased it, whether the state actor’s conduct is ‘predictable and authorized’”).
To sum up, the Parratt doctrine responded to a practical
problem in a narrow subset of procedural due process cases,
where a plaintiff contends that the state must provide notice
and a hearing before carrying out a deprivation of liberty or
property, but where a pre-deprivation hearing simply is not
practical. In both Parratt and Hudson, the plaintiffs complained they had been deprived of property with no process
at all, so they sought to vindicate their right to notice and an
opportunity to be heard through § 1983. The Court responded in Parratt with a special application of the Mathews v. Eldridge, 424 U.S. 319, 335 (1976), balancing test: “Parratt and
Hudson represent a special case of the general Mathews v. Eldridge analysis, in which postdeprivation tort remedies are
all the process that is due, simply because they are the only
remedies the State could be expected to provide.” Zinermon,
494 U.S. at 128.
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
29
The familiar test weighs three factors to determine what
process is due: first, the private interest at stake; second, the
degree to which more process will make a difference in the
risk of wrongful deprivation; and third, the cost to the government of providing more procedural protection. Mathews,
424 U.S. at 335. Parratt and Hudson held that in cases where
the deprivation is unpredictable, no pre-deprivation hearing
is required because it would be utterly impractical. Viewed
through the lens of Mathews, more process is unlikely to
make a difference in the risk of deprivation when the deprivation is caused by random and unpredictable acts and not
through established state procedures.
3. The Differences Between the Parratt Doctrine and This
Case
When Parratt and its progeny are read carefully, then,
and are read against the broader sweep of due process jurisprudence, they do not bar Armstrong’s claims based on deprivation of his liberty through deliberate destruction of exculpatory evidence. More specifically, Parratt does not bar
Armstrong’s claims because the defendants’ conduct was not
“random and unauthorized” and the available state remedies are not adequate.
First, the alleged conduct here was not “random and unauthorized” as the phrase is used in the Parratt doctrine. It is
foreseeable that law enforcement officers will, on occasion,
act overzealously to pursue conviction of the wrong person.
See Zinermon, 494 U.S. at 136 (holding that foreseeable conduct is not “random and unauthorized”). Prosecutor Norsetter was acting within the broad delegation of power he had
been given, see id. at 138 (holding that a deprivation by an
official’s abuse of position is not unauthorized), and Arm-
Case: 13-3424
30
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
strong was deprived of his liberty through established state
procedures, in the form of his criminal trial, see Logan, 455
U.S. at 435–36 (holding that a deprivation resulting from a
mistake in established state procedures is not “random and
unauthorized”).
This is not a case where a pre-deprivation hearing would
have been utterly impractical, as was the case in both Parratt
and Hudson. Armstrong was not deprived of his liberty until
after he had gone through the most elaborate predeprivation procedural protections known to American law:
a criminal trial. Instead, Armstrong’s claim is that the procedure he was due—a fair criminal trial—was rendered unfair
by Norsetter’s deliberate wrongdoing. The same reasoning
applies to Armstrong’s claim against lab technicians Daily
and Campbell since he alleges that their actions caused him
to spend an additional three years in prison, which were also
the product of established state procedures.
Second, even if we ignored the other limits to Parratt and
Hudson, the state tort of malicious prosecution simply does
not provide an adequate remedy for the deprivations that
Armstrong has alleged. At the most fundamental level, it is
an absurd notion that a state-law tort remedy is an adequate
and meaningful remedy in this situation and thus that there
is no violation of the federal constitutional guarantee of due
process of law. A person in Armstrong’s position loses his
liberty upon conviction at trial. He is deprived of his liberty
unless and until he can win reversal of his conviction. Only
then, years or even decades later, could he possibly pursue a
damages remedy. An award of money damages decades later is of course better than nothing, whether in state court or
federal court. At that point, it’s all the civil legal system can
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
31
offer. But by no stretch of the legal imagination can it be
deemed an adequate or meaningful remedy for years of
wrongful imprisonment such that one can say there was no
constitutional violation in the first place. For the claims
against Daily and Campbell, we discuss the causation issue
in more detail below. Suffice it to say for now that the same
reasoning applies to the last three years that Armstrong
spent in prison.
For all of these reasons, the fact that state law might provide a tort remedy for the alleged wrongdoing by the defendants in this case does not bar Armstrong’s claims.
D. Prosecutor Norsetter’s Arguments
We now turn to arguments specific to prosecutor Norsetter and the alleged destruction of the potentially exculpatory
drug paraphernalia that the police collected from Kamps’
apartment. Armstrong alleges that Norsetter acted in bad
faith and was intent on prosecuting him for this crime from
the beginning, regardless of the evidence. Armstrong never
had the opportunity to present this potentially exculpatory
evidence at his 1981 trial ending with his conviction for
murder and sexual assault. He served 26 years of his life sentence before that conviction was overturned and another
three years before the charges were dismissed.
The district court found the factual allegations in Armstrong’s complaint sufficient to state a due process claim.
Norsetter maintains that Armstrong’s claim must be dismissed because the allegations of the complaint show he is
entitled to qualified immunity. On appeal, Norsetter repeats
two arguments that failed to persuade the district court: (1)
the destruction of the evidence did not violate Armstrong’s
Case: 13-3424
32
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
right to procedural due process; and (2) Norsetter’s alleged
actions in 1980 violated no law clearly established at that
time.
1. Violation of a Constitutional Right
To show that Norsetter’s actions in causing the loss or destruction of the drug paraphernalia evidence violated his
constitutional right to due process of law, Armstrong relies
on Arizona v. Youngblood, 488 U.S. 51, 58 (1988), where the
Supreme Court held that the destruction of potentially exculpatory evidence is not a denial of due process of law unless it is done in bad faith. See also California v. Trombetta, 467
U.S. 479, 488–89 (1984) (good faith failure to preserve evidence with no apparent exculpatory value did not violate
due process). Norsetter argues that Armstrong’s “allegations
of bad faith are inherently contradictory,” that the drug paraphernalia evidence “did not have ‘apparent’ potentially exculpatory value,” and that this evidence was not particularly
important because the alleged cocaine user would likely
have left other prints in the apartment.
Whatever weight these argument may have at a later
stage of the case, they cannot prevail in this appeal from a
denial of a motion to dismiss on the pleadings. We must accept the facts pled in the complaint as true and draw all reasonable inferences in Armstrong’s favor. In that light, Armstrong has sufficiently alleged facts that Norsetter knew the
evidence had significant exculpatory value and acted in bad
faith.
Armstrong alleges that Norsetter acted “with bad faith
from the very beginning of the investigation.” And this is no
bare legal conclusion. Rule 9(b) allows states of mind to be
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
33
alleged generally. Even if it did not, the facts alleged here
certainly permit a reasonable inference that Norsetter was
acting in bad faith. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The complaint states that Norsetter admitted under oath in a
2009 state court hearing on prosecutorial misconduct that
“from the beginning he believed the Plaintiff guilty of the
rape and murder of Charise Kamps, and would never believe otherwise no matter what exculpatory evidence exonerated the Plaintiff or pointed to another suspect.” The complaint also contains other allegations that paint Norsetter as
pursuing Armstrong through any means necessary, including violating court orders on access to evidence and suppressing the post-conviction report that Stephen Armstrong
had confessed to Kamps’ murder. These allegations are more
than sufficient to allow the inference that Norsetter was acting in bad faith. 5
Armstrong also alleges detailed facts to support his contention that the drug paraphernalia evidence was, “even to
the most cursory consideration, plainly probative to both
general motive for the crime” and Armstrong’s innocence.
The drug paraphernalia was lying on the kitchen table in
Kamps’ home and was likely used recently. It could show
who last saw her the night of the murder. Armstrong also
5
Norsetter objects that the court may not consider later events because he is entitled to absolute prosecutorial immunity for his actions
after he charged Armstrong. While Norsetter receives absolute immunity
from suit arising out of his truly prosecutorial tasks, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976), we do not see why that rule should prohibit the
use of later prosecutorial actions as evidence that sheds light on the
prosecutor’s state of mind in earlier, non-immune actions.
Case: 13-3424
34
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
alleges that Norsetter and the investigating detectives knew
that he denied using cocaine with the victim, so the paraphernalia could corroborate his denial and point to another
suspect. These allegations fairly support the inferences—
which must be drawn in Armstrong’s favor at this stage—
both that the evidence could have exculpatory value and
that Norsetter must have known that.
Armstrong’s allegations are sufficient to state a constitutional violation. In Youngblood the Supreme Court took for
granted that the destruction of such evidence amounted to a
denial of due process of law if done in bad faith, though the
Court found no constitutional violation where the police
were merely negligent. 488 U.S. at 58 (“We therefore hold
that unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law”).
Armstrong has alleged facts that permit the reasonable inference that Norsetter acted in bad faith to cause the loss of
this potentially exculpatory evidence. Norsetter may dispute
these allegations and the inferences one could draw in later
stages of litigation, but they suffice for now, on the pleadings. 6
6
Judge Flaum concludes that Armstrong has not alleged sufficiently
that Norsetter acted in bad faith in 1980 when the drug evidence disappeared. We respectfully disagree on both substantive and procedural
grounds. Substantively, Armstrong has alleged a decades-long course of
events in which Norsetter tried to frame him for the rape and murder of
Charise Kamps and then to keep him in prison as exculpatory evidence
accumulated over the years. While it is certainly possible that the loss of
the drug evidence was merely negligent, as Judge Flaum concludes, as
we consider the pleadings we must give plaintiff, not defendant, the
benefit of reasonable inferences from his well-pled allegations. Parish v.
Case: 13-3424
Document: 50
Filed: 05/11/2015
Nos. 13-3424 & 13-3482
Pages: 57
35
2. Clearly Established Law in 1980
Youngblood was of course decided in 1988, eight years after the events in question here. Norsetter argues that even if
Armstrong has stated a claim against him under Youngblood,
his conduct was not clearly unlawful in 1980. He first asserts
that he violated no clearly established law because the drug
paraphernalia evidence was only potentially exculpatory.
The drug paraphernalia could have aided Armstrong only if
it were tested and only if testing revealed someone else’s fingerprints, which he says is all speculation because the evidence is gone. Even if the evidence had shown someone
else’s fingerprints, Norsetter argues, that would merely have
pointed to an additional suspect without exonerating Armstrong. Norsetter suggests the Supreme Court did not establish a legal duty to preserve potentially exculpatory evidence
until Youngblood in 1988.
We disagree. This argument is refuted by both Killian v.
United States, 368 U.S. 231 (1961), and Brady v. Maryland, 373
U.S. 83 (1963).
City of Elkhart, 614 F.3d at 679 (wrongful conviction case); see also Fed. R.
Civ. P. 9(b) (allowing states of mind to be alleged generally). Armstrong’s allegation of bad faith is at least plausible.
In terms of procedure, recall that Norsetter has appealed from the
denial of his motion to dismiss on qualified immunity. If an appellate
court finds insufficient detail in a complaint that the district court found
sufficient, the remedy should be a remand to the district court with an
opportunity to amend the complaint, not a dismissal with prejudice as
sought by Norsetter. See Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009)
(after remand of Iqbal by Supreme Court, remanding to district court to
allow amendment of complaint).
Case: 13-3424
36
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
Killian addressed law enforcement’s duty to preserve potentially exculpatory evidence. Killian was convicted of giving false testimony for lying about his involvement in the
Communist Party. Killian, 368 U.S. at 235. A witness working
for the government testified he had seen Killian participate
in party meetings. Id. at 237. The witness, Ondrejka, was reimbursed for party membership fees and travel expenses by
orally reporting his expenses to an FBI agent, who took notes
and saw that Ondrejka was paid. Id. at 238. Killian wanted
the government to produce the FBI agents’ notes of the reimbursement payments. Id. at 238–39. The government refused but offered a summary of payments showing the date,
amount, and reason for each payment. Id. at 238.
When the case reached the Supreme Court, the Solicitor
General represented that the FBI had destroyed the original
notes “in accord with normal practice” before Killian’s trial.
368 U.S. at 241. The Solicitor General argued that there was
no harm from the destruction of the notes because all relevant information from them was incorporated into the
summary report or contained in Ondrejka’s narrative statements, both of which were given to the defense. Id. at 240–41.
But Killian still asserted a violation of statutory and constitutional due process rights because the government “admits
the destruction of evidence that may have been helpful.” Id.
at 241.
The Court found no statutory or constitutional violation,
but only on the assumption that the Solicitor General was
correct and the government acted in good faith: “If the
agents’ notes of Ondrejka’s oral reports of expenses were
made only for the purpose of transferring the data thereon to
the receipts to be signed by Ondrejka, and if, after having
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
37
served that purpose, they were destroyed by the agents in
good faith and in accord with their normal practice, it would
be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of
any right.” 368 U.S. at 242. The Court then remanded to the
district court with specific directions: “If … the District
Court finds that the Solicitor General’s representations are
untrue in any material respect, it shall grant petitioner a new
trial.” Id. at 244.
Norsetter argues that the Killian remand order was limited to determining whether the non-disclosure of two other
documents was harmless error. This interpretation is untenable in light of the Court’s order that the petitioner be granted a new trial if “the Solicitor General’s representations are
untrue in any material respect,” 368 U.S. at 244, and the
plainly conditional ruling on the destruction of the notes, id.
at 242.
Based on Killian, then, law enforcement officials were on
notice long before 1980 that the duty to preserve was not
limited to obviously exculpatory evidence. In fact, the connection between evidence in question in Killian and guilt or
innocence of the charged crime was much more attenuated
than the connection here between the drug paraphernalia
and Armstrong’s guilt or innocence. It is not entirely clear
under what theory Killian thought the FBI agents’ notes
would be relevant, only that he insisted he had the right to
inspect them free from bad-faith government interference. In
this case, by contrast, Armstrong has advanced a straightforward theory for the relevance of the drug paraphernalia:
if tested, it probably would have revealed the fingerprints or
other evidence of the real killer.
Case: 13-3424
38
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
The Supreme Court acknowledged the significance of
Killian when it faced the question of the duty to preserve evidence decades later in California v. Trombetta, 467 U.S. 479
(1984). The Trombetta Court said “the instant case is reminiscent of Killian,” a case “in which we have discussed due process constraints on the Government’s failure to preserve potentially exculpatory evidence.” Id. at 487. And our colleagues in other circuits have consistently interpreted Killian
in this manner. See United States v. Sullivan, 919 F.2d 1403,
1427 & n.37 (10th Cir. 1990); United States v. Arra, 630 F.2d
836, 848–49 (1st Cir. 1980) (relying in part on Killian in announcing a three-pronged inquiry—materiality, prejudice,
and good or bad faith—for due process claims for destruction of evidence); United States v. Moore, 453 F.2d 601, 603–04
(3rd Cir. 1971) (citing Killian but finding no error because FBI
agent’s notes “were destroyed in good faith”).
Norsetter also asserts that a prosecutor had no clearly established legal duty to refrain from destroying evidence of
any kind in 1980. While he acknowledges that Brady v. Maryland established a duty to disclose material evidence to the
defense, 373 U.S. at 86, he says there was no non-disclosure
here because Armstrong was aware that the evidence was
destroyed before trial.
This second argument fails in light of Killian, but it also
strains Brady to the point of absurdity. Though Brady did not
announce a duty to preserve evidence, a duty to refrain from
bad-faith destruction flows necessarily, and obviously, from
its familiar holding that suppression of material exculpatory
evidence violates due process. Brady, 373 U.S. at 86. Brady
would mean nothing if, as Norsetter argues, a prosecutor
could comply with its command by deliberately destroying
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
39
exculpatory evidence and then disclosing the fact of destruction to the defense.
Under Norsetter’s argument, a reasonable police investigator could have believed in 1980 that if he possessed exculpatory evidence, he had an obligation to disclose it to the defense unless he deliberately destroyed it first. No reasonable police officer or prosecutor could have believed that in 1980.
That is not a reasonable interpretation of Brady, and neither
Norsetter nor the partial dissenting opinion has directed us
to any courts that have adopted it. Under the law in 1980,
including at least Killian and Brady, prosecutors had a clearly
established legal duty not to act in bad faith to destroy evidence, which if suppressed or destroyed, “creates a reasonable doubt that did not otherwise exist.” See United States v.
Agurs, 427 U.S. 97, 112–13 (1976) (defining material evidence
that must be disclosed under Brady).
The Supreme Court wrote in Trombetta that it had “never
squarely addressed the government’s duty to take affirmative steps to preserve evidence on behalf of criminal defendants.” 467 U.S. at 486. In light of both Killian and Brady, that
comment is best understood as meaning that the Court had
never addressed a duty to preserve evidence above and beyond the duty to act in good faith under Killian and the duty
to disclose material evidence under Brady. The question in
Trombetta was whether the duty to preserve extended to cases where the government did not act in bad faith. The Court
was assuming that bad-faith destruction of evidence was already unlawful because of Killian and Brady, though it did
not dwell on this point because there was no allegation of
bad faith in Trombetta. Id. at 489.
Case: 13-3424
Document: 50
Filed: 05/11/2015
40
Pages: 57
Nos. 13-3424 & 13-3482
Killian and Brady thus gave sufficient notice to defeat
Norsetter’s claim of qualified immunity on this ground. See
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (denying qualified
immunity where “a general constitutional rule already identified in the decisional law may apply with obvious clarity to
the specific conduct in question, even though the very action
in question has not previously been held unlawful”) (citations and internal quotations omitted). And even if all this
were not enough, this court had ruled expressly in 1978 that
destroying and falsifying evidence was unlawful, further
supporting that this rule was uncontroverted by 1980. Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978). The Heidelberg opinion on the point was terse, but that only emphasizes the strength of Brady in this regard.
The district court properly rejected Norsetter’s qualified
immunity defense at this stage. Discovery or evidence at trial
may show that Armstrong’s allegations of bad faith are not
true or that Norsetter was not responsible for the loss of the
drug paraphernalia evidence. In holding that the complaint
alleges a violation of clearly established constitutional law,
we express no opinion on the propriety of qualified immunity at a later stage of litigation.
E. Daily and Campbell’s Arguments
Armstrong’s claim against the two state lab technicians,
Daily and Campbell, stems from their handling of evidence
after his conviction was vacated and the case was remanded
for a new trial. Armstrong alleges that Daily and Campbell
violated his rights by performing testing that consumed a
critical piece of evidence—the newly discovered semen stain
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
41
on the victim’s bathrobe belt. That final test, the Y-STR analysis, examined only the Y chromosome and could not distinguish between men with the same father. The choice of the
Y-STR test may have been especially devious because, if the
real killer was Armstrong’s brother Stephen, consistent with
the confession reported to Norsetter back in 1995, then the YSTR test would seem to implicate plaintiff Ralph Armstrong
while also depriving him of the ability to clear his name
through tests that could have distinguished between him
and Stephen.
Armstrong presents two legal theories for his claim
against the state lab technicians. First, he argues the exculpatory value of the semen sample was apparent to Daily and
Campbell so that its destruction was plainly unlawful under
Trombetta, 467 U.S. at 488–89. In the alternative, he argues
that even if the semen sample was only potentially exculpatory, Daily and Campbell acted unlawfully because they destroyed it in bad faith. See Youngblood, 488 U.S. at 58. Both
theories are sufficient to assert a violation of Armstrong’s
right to due process of law.
Daily and Campbell offer two arguments to support the
defense of qualified immunity. First, they argue that the destruction of the semen sample violated no constitutional
right because Armstrong was not retried and trial is an essential element of this constitutional claim. Second, they argue that even if their alleged actions violated a constitutional
right, that right was not clearly established in 2006. We address these arguments in turn.
Case: 13-3424
42
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
1. Is a Trial Needed for a Constitutional Violation?
Daily and Campbell’s argument on the first prong of the
qualified immunity defense is that Armstrong asserts a due
process right to a fair trial, so the fact that he was not retried
on remand defeats his claim. (Recall that a state judge ordered dismissal of the charges against Armstrong because
the evidence destruction had made a fair trial impossible.)
We reject this argument. We first explain the basis of Armstrong’s claim and then turn to the defense argument.
The constitutional violation that Armstrong asserts is the
deprivation of his liberty without due process of law, as the
result of the destruction of evidence by a state actor. See
Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000) (defining the
right at issue as “the right not to be deprived of liberty as a
result of the fabrication of evidence by a government officer
acting in an investigating capacity”). Though the most common liberty deprivation cases are based on post-trial incarceration after a wrongful conviction, the essential elements
of this constitutional claim are more general and not limited
to wrongful convictions. See Fields v. Wharrie, 740 F.3d 1107,
1112 (7th Cir. 2014) (“[T]he fabrication of evidence harmed
the defendant before and not just during the trial, because it
was used to help indict him.”), citing Julian v. Hanna, 732
F.3d 842, 847 (7th Cir. 2013).
Armstrong’s claim therefore has two essential elements:
(1) the defendant destroyed exculpatory evidence in bad
faith or engaged in other misconduct (2) that caused a deprivation of the plaintiff’s liberty. Even assuming for the sake of
argument that Armstrong needed to allege in his pro se
complaint facts that permit the inference that defendants
acted with improper motive, his complaint clearly satisfies
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
43
the first element. He has alleged (plausibly) that Daily and
Campbell acted in bad faith to destroy exculpatory evidence.
He has also alleged the second element, that defendants’ actions caused him to suffer a deprivation of liberty. Taking
Armstrong’s allegations as true, and giving him the benefit
of favorable inferences, we must assume that Daily and
Campbell’s actions caused Armstrong to suffer a loss of liberty as he languished in prison for three more years after
Daily said he was excluded by the earlier DNA tests and after the last sample had been destroyed in the Y-STR test of
the newly discovered stain.
Most of defendants’ support for the proposition that the
plaintiff must have been tried before he can sue is drawn
from cases applying the Brady obligation to disclose exculpatory evidence. See Ray v. City of Chicago, 629 F.3d 660, 664
(7th Cir. 2011) (expressing doubt whether a plaintiff has a
civil claim for a Brady violation “when the individual is
merely charged with a crime, but never fully prosecuted”);
Taylor v. Waters, 81 F.3d 429, 435–36 (4th Cir. 1996) (rejecting
a due process claim for failure to disclose exculpatory evidence to a pretrial detainee).
In this respect, the Brady cases involving failures to disclose evidence are plainly distinguishable from this case involving destruction of evidence. We have often observed
that “Brady does not require pretrial disclosure.” United
States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001); Buckley v.
Fitzsimmons, 20 F.3d 789, 797 (7th Cir. 1994); see also Whitlock,
682 F.3d at 588 (explaining Brady as imposing an obligation
on state actors to disclose “exculpatory evidence that is discovered before or during trial”). The prosecution may fulfill
its Brady obligation through disclosure in the time leading
Case: 13-3424
44
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
up to or sometimes even during trial. The critical question
under Brady is whether the exculpatory evidence is “disclosed in time for the defendant to make use of it.” Grintjes,
237 F.3d at 880. We therefore have been hesitant to recognize
a § 1983 cause of action for the withholding of exculpatory
evidence before trial because the constitutional violation is
not even ripe if the prosecution can still meet its Brady obligation by disclosing the evidence in time for the defendant
to use it.
In this respect, Armstrong’s claim for destruction of exculpatory evidence is different. Under the reasoning of Killian and Youngblood, bad-faith destruction of exculpatory evidence is an immediate constitutional violation. It may or
may not eventually cause harm, but harm is a separate issue.
Destruction is not easy to remedy. Deliberate destruction of
evidence with potential or apparent exculpatory value can
make it impossible for the accused to receive due process of
law, regardless of the procedural posture of the criminal case
at the time of the destruction. See Trombetta, 467 U.S. at 482–
83 (considering claims on merits but rejecting claims where
evidence had no apparent exculpatory value and was destroyed in good faith); Youngblood, 488 U.S. at 58 (reviewing
reversal of conviction on direct appeal and holding that “unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law”). The outright destruction of exculpatory evidence raises immediate
constitutional concern because the resulting prejudice to the
defense is permanent. Whatever unfairness results from the
destruction will infect all future proceedings because the exculpatory evidence will continue to be unavailable.
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
45
We assume that the most common cases involving destruction of evidence are those where a defendant was
wrongly convicted and imprisoned after a trial. But this case
illustrates why the claim should not be limited to its most
common version by a too-narrow requirement that the accused have been tried and convicted.
The only reason Armstrong did not face retrial after 2005
is that the defendants’ conduct was so outrageous and harmful that a judge prohibited the prosecution from proceeding
any further, even with crimes as serious as the brutal murder
and rape of Ms. Kamps. Wisconsin courts evaluating the
State’s actions in this case found bad faith. One judge found
that “a series of conscious decisions” “seriously prejudice[d]
the defense.” After finding alternative evidentiary remedies
“insufficient,” that judge dismissed the criminal case against
Armstrong because his “due process right to a fair trial has
been irreparably compromised.” Yet now the civil defendants argue that the judge’s dismissal of the case immunized
them from civil liability for the constitutional violation of
intentionally destroying the evidence that Armstrong needed to prove his innocence and regain his liberty.
Under these circumstances, requiring a plaintiff to undergo a second trial and conviction to pursue a civil claim
under § 1983 would work an obvious injustice. It would deny victims of the most egregious evidence destruction—for
whom dismissal is appropriate because a fair trial is impossible—a civil remedy for their loss of liberty. We have previously rejected drawing lines in § 1983 law that “would leave
a victim of graver misconduct … completely unprotected.”
Fields, 740 F.3d at 1113.
Case: 13-3424
46
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
Of course, to say that the improper destruction of exculpatory evidence violates due process is not to say that every
criminal defendant may bring a § 1983 suit whenever any
piece of exculpatory evidence is lost or destroyed. A plaintiff
must still establish “one of the necessary elements of a constitutional tort: that the officer’s act … caused any injury.”
Whitlock, 682 F.3d at 582, citing McCree v. Grissom, 657 F.3d
623, 624 (7th Cir. 2011). For “there is no tort without an actionable injury caused by the defendant’s wrongful act.”
Fields, 740 F.3d at 1111, citing Buckley, 20 F.3d at 796. We have
observed, for example, that an accused has no claim against
an officer who fabricates evidence and puts the evidence in a
drawer, never to be used. Whitlock, 682 F.3d at 582, citing
Buckley, 20 F.3d at 795. Similarly, if a state officer destroys
evidence that would exculpate a person who is never prosecuted, there would be no injury and thus no constitutional
tort actionable under § 1983.
That is not what Armstrong has alleged, however. His allegations permit the reasonable inference that the defendants’ destruction of evidence was both a cause-in-fact and a
proximate cause of Armstrong’s last three years in prison.
Our circuit’s approach to Brady claims is instructive on this
point. Though we have not yet recognized a Brady claim under § 1983 absent a trial resulting in conviction, we have said
that we may do so if the plaintiff shows “that if all parties
had known of some piece of exculpatory evidence, the prosecution would not have moved forward with charges, the
grand jury would not have indicted [the plaintiff], or the trial court would have granted a motion to dismiss the indictment.” Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir.
2010).
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
47
Armstrong’s allegations support the inference that a reasonable prosecutor in these circumstances would not have
moved forward with the charges in 2006 and kept Armstrong in prison if the semen stain had not been destroyed
and the evidence had been provided to the defense for further testing. 7 Much of the physical evidence—which the
prosecution repeatedly and erroneously portrayed in the
1981 trial as conclusively establishing Armstrong’s guilt—
had already been thrown into doubt by new DNA analysis
and other laboratory findings that led the Wisconsin Supreme Court to conclude that the real controversy of identification was not fully tried. Armstrong, 700 N.W.2d at 129.
And Daily had concluded from earlier testing of the bathrobe and the belt that Armstrong was excluded as the source
of the semen. The destroyed stain on the murder weapon
was therefore “the most critical and probative physical evidence remaining in the case,” as Armstrong alleges. Its destruction, and especially the potentially false positive generated by the defendants’ choice of the Y-STR test, plausibly
caused the case to proceed, with Armstrong still in prison,
even though the testing of other evidence tended to exculpate Armstrong.
It is also a plausible inference from the complaint that
Armstrong’s continued imprisonment was reasonably foreseeable to Daily and Campbell at the time they destroyed the
semen sample. Again, the results of Daily’s first analysis of
7
Of course, it would be no defense that Norsetter himself would
have prosecuted Armstrong regardless of the exculpatory evidence. The
appropriate counterfactual to consider is whether a reasonable prosecutor under these circumstances would have moved forward with the
charges.
Case: 13-3424
48
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
the bathrobe and the belt had eliminated Armstrong as a
possible source of any of the semen stains, including the
newly discovered one on the belt. When the crucial sample
was destroyed, Daily and Campbell were retesting the stain
in an attempt to find inculpatory evidence. In fact, it is reasonable to infer from the allegations not only that Armstrong’s continued imprisonment was reasonably foreseeable, but also that continued imprisonment was Daily and
Campbell’s goal in consuming the last of the stain to perform
the Y-STR test, which would be so misleading under these
circumstances. The factual allegations in the complaint
therefore add up to a viable claim that Daily and Campbell
violated Armstrong’s constitutional rights by destroying exculpatory evidence under both Youngblood and Trombetta,
and that the destruction caused Armstrong to be deprived of
liberty.
Our conclusion that Armstrong has alleged a constitutional violation actionable against Daily and Campbell under
§ 1983 causes us to disagree with some of the Tenth Circuit’s
broad language in Morgan v. Gertz, 166 F.3d 1307 (10th Cir.
1999), but not necessarily with its holding. In Morgan, the
plaintiff had been prosecuted for molesting his young stepdaughter. When police first questioned the girl in a recorded
interview, she gave no indication she had been a victim of
sexual abuse. When additional information surfaced, the police interviewed her again and she said her stepfather had
sexually assaulted her. The second interview was recorded
using the same tape and thus erased the recording of the
first, exculpatory interview. The prosecutor disclosed to the
defense the fact that the first interview had been exculpatory.
At the end of the criminal trial, the jury convicted the stepfather, but the trial court ordered dismissal of the charges be-
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
49
cause of the deliberate destruction of exculpatory evidence.
The accused stepfather later sued the detective and caseworker who had destroyed the evidence.
The Tenth Circuit affirmed summary judgment for the
defendants. It wrote broadly: “Regardless of any misconduct
by government agents before or during trial, a defendant
who is acquitted cannot be said to have been deprived of the
right to a fair trial.” Morgan, 166 F.3d at 1310. The court explained that § 1983 claims based on rights of access to evidence “fall into two distinct categories.” Id. In the first category, where “all criminal charges were dismissed prior to
trial,” the Tenth Circuit observed, “courts have held universally that the right to a fair trial is not implicated, and, therefore, no cause of action exists under § 1983.” Id. In the second category, where the defendant was convicted but is exonerated in collateral proceedings, courts have permitted
§ 1983 claims to proceed. Id.
The two categories of cases discussed in Morgan simply
did not address the situation we face here. Morgan did not
consider the possibility that a defendant could be imprisoned before (re)trial because of the deliberate destruction of
exculpatory evidence. And the cases cited in Morgan to support the conclusion that courts have “universally” rejected
pre-conviction § 1983 claims for destruction of evidence are
simply not comparable. None concerned a pretrial deprivation of liberty resulting from the bad-faith destruction of evidence. See Rogala v. District of Columbia, 161 F.3d 44, 55–56
(D.C. Cir. 1988) (plaintiff was never prosecuted, let alone
imprisoned); Taylor, 81 F.3d at 435–36 & n.5 (plaintiff claimed
only failure to disclose evidence, not destruction of evidence); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th
Case: 13-3424
50
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
Cir. 1988) (same). And Morgan itself is distinguishable—the
plaintiff did not allege or argue any pretrial deprivation of
his liberty.
Daily and Campbell also attempt to recast Armstrong’s
claim as a garden-variety complaint of prolonged pretrial
detention. That claim would be foreclosed in this circuit because we have already rejected a plaintiff’s due process challenge to the length of his pretrial detention after the prosecutor discovered strong exculpatory evidence. Garcia v. City of
Chicago, 24 F.3d 966, 971–72 (7th Cir. 1994). We said the
length of detention did not violate due process, though we
identified other constitutional limitations on the prosecution,
such as the Brady right to disclosure before trial and the Sixth
Amendment speedy trial right. Id.
That principle is correct, but it poses no barrier to Armstrong’s claim, which is based on the defendants’ destruction
of exculpatory evidence, not prolonged pretrial detention.
The three years of prolonged imprisonment that he suffered
show he was injured—an essential element of a constitutional tort—but that injury is actionable only if Armstrong can
prove that it was caused by the unconstitutional act. He may
pursue damages for that injury without running afoul of our
holding in Garcia that prolonged pretrial detention is not independently actionable.
2. Clearly Established Law in 2006—Conduct v. Remedies
Armstrong has satisfied the first prong needed to defeat
qualified immunity because he has alleged that Daily and
Campbell violated his constitutional rights by destroying exculpatory evidence under Youngblood or Trombetta. We now
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
51
turn to the second prong, whether it was clearly established
in 2006 that such conduct violated the Constitution.
Daily and Campbell argue that even if Armstrong has a
valid claim, the right he asserts was not clearly established
by any controlling authority. See Wilson v. Layne, 526 U.S.
603, 617–18 (1999) (affirming that government officials were
entitled to qualified immunity where no “controlling authority in their jurisdiction” clearly established the rule on which
the petitioners sought to rely). To support this argument,
they point to ambiguity in this circuit’s precedent and cases
from other circuits that doubt whether withholding exculpatory evidence supports a due process claim by a criminal defendant who has not been tried and convicted. This debate
or uncertainty, they argue, shows that reasonable judges and
public officials could disagree. See, e.g., Upton v. Thompson,
930 F.2d 1209, 1217 (7th Cir. 1991) (circuit split indicated the
rights at issue were “currently unsettled as a matter of constitutional law and therefore were not ‘clearly established’”).
Defendants argue that reasonable officials would not be
aware that they violated a constitutional right in these circumstances—destroying evidence that would or could exculpate a criminal defendant detained in preparation for retrial.
This argument is built on a basic misunderstanding
about qualified immunity. The issue is not whether issues
concerning the availability of a remedy are settled. The qualified immunity defense focuses instead on whether the official defendant’s conduct violated a clearly established constitutional right. As we said in Fields, “when the question is
whether to grant immunity to a public employee, the focus is
Case: 13-3424
52
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
on his conduct, not on whether that conduct gave rise to a
tort in a particular case.” 740 F.3d at 1114.
In Fields, we considered whether Wharrie, the prosecutor,
was entitled to qualified immunity for fabricating evidence
before the trial. (Wharrie had absolute immunity as a prosecutor for his later introduction of the evidence at trial.) Fields
relied on cases where a state official fabricated evidence and
then introduced it at trial to conclude that Wharrie was not
entitled to qualified immunity because fabricating evidence
clearly violated due process. 740 F.3d at 1114. “[T]he immunity depends on the official’s acts; the existence of a cause of
action depends on the illegality of those acts and on whether
an injury results, because, to repeat, no injury—no tort.” Id.
In other words, Wharrie lost his qualified immunity when he
committed acts that were obviously unlawful, regardless of
whether those acts caused the later injury needed for the
claim to ripen into a constitutional tort.
This point is consistent with the way the Supreme Court
has repeatedly described the defense of qualified immunity,
in terms of whether the defendant official’s “actions” or
“conduct” violated clearly established law, not in terms of
whether a defendant should have realized he would be held
civilly liable for his actions or conduct. E.g., Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“conduct”); Behrens v. Pelletier,
516 U.S. 299, 305 (1996) (“conduct”); Anderson v. Creighton,
483 U.S. 635, 638 (1987) (“actions”); Mitchell v. Forsyth, 472
U.S. 511, 528 (1985) (“actions”); Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (“conduct”).
On the merits here, Youngblood and Trombetta had been
the law of the land for more than a decade when Daily and
Campbell destroyed the critical evidence. Those cases made
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
53
clear that the bad-faith destruction of potentially exculpatory
evidence—or destruction of evidence with apparent exculpatory value, even without bad faith—violated a criminal defendant’s right to due process of law. And at this stage of the
case, we must accept Armstrong’s allegations that Daily and
Campbell destroyed this evidence in bad faith and knowing
of its exculpatory value.
Debate about the need for a trial or conviction goes to the
question of injury, which is essential to proving liability but
not relevant to qualified immunity. Focusing on the defendants’ conduct—destroying a semen stain that had previously
tested negative for Armstrong’s DNA—it is clear that they
had fair warning that this exculpatory evidence had to be
preserved. Their alleged actions were objectively unreasonable in defying that command. The fact that their actions
were so egregious as to cause dismissal of the charges before
a retrial does not protect them from liability for injuries they
caused. The district court correctly denied their motion to
dismiss on the ground of qualified immunity.
We AFFIRM the decision of the district court denying defendants’ motions to dismiss on the defense of qualified immunity.
Case: 13-3424
54
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
FLAUM, Circuit Judge, concurring in part and dissenting in
part.
While I join the majority’s conclusion regarding the viability of Armstrong’s claims against lab technicians Karen
Daily and Daniel Campbell, I disagree with the conclusion
that Armstrong’s claim against prosecutor John Norsetter
regarding the preservation of drug paraphernalia evidence is
sufficient to remove the shield of qualified immunity. For
this reason, I concur in part and respectfully dissent in part.
The facts of Ralph Armstrong’s case are indeed troubling.
All told, Armstrong spent 29 years in prison for a crime that
he still claims he did not commit. After DNA evidence called
into question the identity of Charise Kamps’ killer—and
Armstrong’s conviction—Norsetter and his team resolved to
re-try Armstrong in 2005. While preparing for re-trial,
Norsetter directed lab technicians Daily and Campbell to
perform a DNA test on a critical semen stain from the victim’s bathrobe using a less-than-precise method. This testing
occurred in violation of a trial court order, and also destroyed the stain, rendering it unusable for further testing.
But regardless of what actions Norsetter took or directed in
2005, Armstrong’s claim against Norsetter regarding evidence preservation concerns actions taken in 1980 and 1981.
Specifically, Armstrong alleges in his complaint that Norsetter, while acting in an investigatory capacity, “intentional[ly]
mishandl[ed] and/or los[t]…probative crime scene evidence
in violation of known departmental investigative protocols.”
(The “probative crime scene evidence” to which Armstrong
refers is the drug paraphernalia found at Kamps’ apartment.) Armstrong claims that the paraphernalia evidence—
which could have contained DNA evidence or perhaps fin-
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
55
gerprints of Kamps’ killer—was dumped into a garbage bag,
never tested, and lost prior to Armstrong’s trial in 1981; all
this, Armstrong alleges, was done in bad faith in an effort to
deprive him of evidence which may have demonstrated his
innocence. Armstrong argues—and the majority agrees—
that in 1980 and 1981 a reasonable prosecutor was aware that
he or she could not, in bad faith, fail to preserve potentially
exculpatory evidence. I disagree.
In assessing the applicability of qualified immunity, we
determine whether an official violated clearly established
law through his or her conduct. Ashcroft v. al-Kidd, 131 S.Ct.
2074, 2083 (2011). To determine what conduct was clearly
established as unconstitutional at a particular point in time,
the Supreme Court does “not require a case directly on
point, but existing precedent must have placed the statutory
or constitutional question beyond debate.” Id. In this case,
the Supreme Court’s position on the prosecutorial duty to
preserve evidence was not clarified until several years after
1980. As the majority notes, the cases of California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51
(1988) expound significantly on this topic. In 1984, the Supreme Court stated, “We have…never squarely addressed
the government’s duty to take affirmative steps to preserve
evidence on behalf of criminal defendants.” Trombetta, 467
U.S. at 486. While the Court’s decision in Trombetta did not
draw a bright line indicating when prosecutors must preserve evidence, four years later the Court stated more explicitly, “We therefore hold that unless a criminal defendant can
show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of
due process of law.” Youngblood, 488 U.S. at 58. Thus, I question whether a prosecutor’s affirmative duty to preserve po-
Case: 13-3424
56
Document: 50
Filed: 05/11/2015
Pages: 57
Nos. 13-3424 & 13-3482
tentially exculpatory evidence was clearly established prior
to the Supreme Court’s pronouncements in 1984 and 1988.
But assuming that, as the majority contends, Killian v.
United States, 368 U.S. 231 (1961), and Brady v. Maryland, 373
U.S. 83 (1963), clearly established well before 1980 that a
prosecutor’s bad faith failure to preserve evidence was a constitutional violation sufficient to override qualified immunity, I conclude that Armstrong has pleaded insufficient facts
to support his allegation of bad faith. Armstrong alleges that
someone—possibly the police, possibly Norsetter himself—
placed the drug paraphernalia from the victim’s apartment
in a trash bag in 1980, and that by the time of Armstrong’s
trial in 1981, the evidence was lost. Even viewing the facts in
the light most favorable to Armstrong, I believe that these
allegations suggest actions akin to negligence rather than
bad faith. And simply because Armstrong employs the key
phrase “in bad faith,” to describe these events does not, in
my opinion, change the analysis. Armstrong fails to plead
any facts demonstrating bad faith during the time period
that the alleged evidence mishandling took place. In fact, in
examining Armstrong’s claim of bad faith, the majority primarily considers Norsetter’s actions and statements over a
quarter of a century after the prosecutor and his team allegedly failed to preserve certain drug paraphernalia evidence.
I cannot conclude that examining statements and actions so
far removed from the alleged unconstitutional conduct provides us with sufficient factual allegations plausibly suggesting bad faith. Nor do I believe that an appropriate remedy
would be to remand and allow Armstrong to amend his
complaint. Armstrong believes that the evidence which is
central to his claim was placed into a garbage bag and subsequently discarded by unknown persons and at an un-
Case: 13-3424
Document: 50
Nos. 13-3424 & 13-3482
Filed: 05/11/2015
Pages: 57
57
known time; this reflects an information base inadequate to
support a claim of bad faith, and further amendment would
not cure that deficiency. Thus, it is my view that Armstrong’s
pleadings are insufficient to remove Norsetter’s protection of
qualified immunity. For these reasons, I concur in part and
respectfully dissent in part.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?