William Avery v. City of Milwaukee, et al
Filed opinion of the court by Judge Sykes. We REVERSE and REMAND for further proceedings consistent with the opinion. Diane P. Wood, Chief Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6815206-1]  [15-3175]
United States Court of Appeals
For the Seventh Circuit
WILLIAM D. AVERY,
CITY OF MILWAUKEE, et al.,
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-C-408 — Rudolph T. Randa, Judge.
ARGUED FEBRUARY 23, 2016 — DECIDED JANUARY 30, 2017
Before WOOD, Chief Judge, SYKES and HAMILTON, Circuit
SYKES, Circuit Judge. In February 1998 Maryetta Griffin
was raped and strangled to death and left in an abandoned
garage on Milwaukee’s north side. In 2004 Milwaukee police
arrested William Avery for the crime. He was convicted of
first-degree homicide and spent six years in prison before
DNA evidence proved that Walter Ellis, a serial killer linked
to nine similar homicides, was responsible for the murder. In
2010 Avery was released from prison; this wrongfulconviction suit followed. Avery alleged that Milwaukee
detectives concocted a fake confession and induced three
jailhouse informants to falsely incriminate him—evidence
that was ultimately used to convict him. He also claimed
that the detectives failed to disclose, as required by Brady v.
Maryland, 373 U.S. 83 (1963), impeachment evidence about
how they obtained the false statements from the informants.
Finally, Avery added a claim against the City of Milwaukee
under Monell v. Department of Social Services, 436 U.S. 658
The district judge rejected the Brady claims on summary
judgment, reasoning that the detectives had no duty to
disclose the impeachment evidence because Avery already
knew the informants’ statements were false. The remaining
claims were tried to a jury, which found two of the detectives liable for violating Avery’s due-process rights. The jury
also found the City liable and awarded $1 million in damages.
Avery’s victory was short-lived. The judge invalidated
the verdict against the detectives based on what he said were
“mixed signals” coming from this court on whether an
officer’s fabrication of evidence is actionable as a dueprocess violation. The judge also set aside the verdict against
the City, holding that without a constitutional violation by
the detectives, Monell liability was not possible.
We reverse. Avery’s due-process claims fall comfortably
within our decision in Whitlock v. Brueggemann, 682 F.3d 567
(7th Cir. 2012), so the jury’s verdict was legally sound and
must be reinstated in its entirety. The Brady claims, too, must
be revived. That Avery knew the informants’ statements
were false did not relieve the detectives of their duty to
disclose impeachment evidence. Avery is entitled to resume
litigation of these claims.
Maryetta Griffin, known as “Mercedes,” was sexually assaulted and strangled to death in the early morning hours of
February 17, 1998. Her body was found in an abandoned
garage in a decrepit and crime-ridden neighborhood on
Milwaukee’s north side. Griffin’s death was tragic; so was
her life. She made her living as a prostitute and was addicted to crack cocaine.
William Avery knew Griffin. He ran a drug house in the
neighborhood and occasionally exchanged drugs for sex
with prostitutes in the area. Griffin, along with several other
prostitutes, had been at Avery’s drug house the day before
About a month after Griffin was killed, detectives from
the Milwaukee Police Department asked Avery to come to
the station to speak with them about the murder. Avery
complied; he denied any involvement in her death. After
two prolonged rounds of interrogation by four different
detectives, he was sent to a holding cell for the night. The
next day two detectives from the day before—Daniel Phillips
and Gilbert Hernandez—resumed the interrogation. Avery
again denied involvement in the crime. The detectives
continued to badger him, accusing him of killing Griffin.
They reminded him that Mercedes was last seen alive at his
drug house and suggested that perhaps she had tried to steal
from him and a struggle or chase ensued. Maybe she fell
down the stairs and broke her neck during the struggle?
Avery denied that this happened.
Ignoring his persistent denials, Detectives Phillips and
Hernandez prepared reports falsely stating that Avery
confessed to the murder and gave the following account of
events: Mercedes was at his drug house on the night in
question; he fell asleep and woke up to find her stealing cash
from his pockets; he remembered fighting with her but
couldn’t recall what happened next, though he did remember telling a third person that he “killed this bitch”; and
finally, he admitted that he killed Mercedes but couldn’t
remember how he did it.
Detectives Phillips and Hernandez gave their reports to
Assistant District Attorney Mark Williams, Milwaukee’s
chief homicide prosecutor. Williams concluded that the
evidence was insufficient to support a homicide charge.
Avery was instead charged with state narcotics offenses
arising from his drug-house operation. He was convicted
and began serving a short prison term.
While in prison Avery met fellow inmates Keith
Randolph, Antron Kent, and Jeffrey Kimbrough. All three
men eventually became prosecution witnesses at his trial for
Griffin’s murder. Avery’s Brady claims are premised on the
failure by Milwaukee detectives to disclose details about
their interrogations of these jailhouse informants—evidence
that could have been used to impeach the informants when
they testified at trial. For present purposes, the defendants
do not contest the factual basis for Avery’s Brady claims, so
the following account is his version of events.
Detectives Hernandez and Katherine Hein interviewed
Randolph in prison in October 2003.1 The two detectives
supplied him with details about the Griffin homicide, told
him to point the finger at Avery, and promised in return to
help him win a reduced sentence. Randolph eventually
succumbed to the pressure; he told them that Avery had
admitted that he killed Griffin. The detectives prepared
reports to that effect but omitted facts about the interrogation that could have been used for impeachment purposes.
Randolph was called as a prosecution witness at Avery’s
murder trial but refused to perjure himself by repeating the
statement he gave to the detectives. The prosecution was
permitted to introduce the detectives’ reports into evidence,
so the jury heard Randolph’s incriminating statement anyway—without the details about the interrogation that might
have caused the jurors to doubt its reliability.
The story line on Kent is similar. Detectives coached and
pressured him on multiple occasions over several years: in
phone calls from Detective Kevin Armbruster; in an interview with Detectives Armbruster and Timothy Heier; in an
interview with Detectives Hernandez and Hein; in another
meeting with Detective Heier. The upshot is that like Randolph, Kent eventually gave in and said that Avery told him
he strangled Griffin to death. Kent testified to that effect at
Avery’s trial. Again, the circumstances of the interrogation—
that the detectives coached and pressured Kent to implicate
Avery—were not disclosed to the defense.
Katherine Hein is now Katherine Spano, her married name.
Detectives Armbruster and Heier were the first to question Kimbrough, and Detectives Hein and Hernandez conducted a follow-up interview. As with Randolph and Kent,
the detectives fed Kimbrough details about the Griffin
murder and pressured him to implicate Avery. They eventually got what they were looking for: Kimbrough told them
that Avery admitted that he killed Griffin. Kimbrough later
recanted this statement and tried to back out of testifying at
Avery’s trial, but Detective Heier told him that he “had to”
testify. Kimbrough did as he was told; he took the stand and
testified that Avery told him he killed Griffin. Neither the
recantation nor the facts about Kimbrough’s interrogation
were disclosed to the defense.
Avery completed his narcotics sentence in June 2004 and
was released from prison. Three months later he was arrested and charged with Griffin’s murder. Trial was held in
March 2005. Detectives Phillips and Hernandez testified
about Avery’s confession; their reports were also admitted.
As we’ve noted, Kent and Kimbrough testified that Avery
told them he strangled Griffin. And the prosecution introduced the police reports documenting the statements of all
three jailhouse informants. The jury found Avery guilty. He
was sentenced to 40 years in prison.
In 2009 the Wisconsin State Crime Laboratory informed
the Milwaukee Police Department that evidence from the
scenes of nine unrelated homicides contained DNA from the
same person—suggesting, of course, that all nine murders
were committed by a single person. The victims shared
remarkable similarities: All were drug-addicted prostitutes,
and many were strangled to death and later found in dilapidated areas on the north side of Milwaukee. Walter Ellis was
identified as the likely perpetrator; his DNA was found on
evidence recovered from all nine homicide scenes. Ellis was
eventually convicted of seven of these murders; he died in
prison of natural causes.
When news of the Ellis DNA match broke, Avery wrote
to the Milwaukee District Attorney asking him to test DNA
evidence found on Griffin’s body to see if it matched Ellis’s.
It did. Avery’s conviction was vacated, and he was released
from prison in May 2010.
He then filed this wrongful-conviction suit raising claims
under 42 U.S.C. § 1983 for violation of his due-process rights.
The first set of claims alleged Brady violations arising from
the suppression of the impeachment evidence about the
interrogations of the jailhouse informants Randolph, Kent,
and Kimbrough. The second set alleged that Detectives
Phillips and Hernandez violated his due-process rights by
falsifying his confession, and that Detectives Hernandez,
Heier, Hein, and Armbruster violated his due-process rights
by fabricating the informants’ false statements. Finally,
Avery included a Monell policy-or-practice claim against the
City of Milwaukee.
The judge rejected the Brady claims on summary judgment, reasoning that because Avery “knew what he said (or
didn’t say) to the jailhouse informants,” the Brady disclosure
duty “drops out.” The other claims were tried to a jury,
which found Detectives Phillips and Hernandez liable for
fabricating Avery’s confession, found the City liable on the
Monell claim, and awarded $1 million in damages.
The defendants filed a Rule 59(e) motion to set aside the
verdict, arguing that the evidence-fabrication claims against
the detectives were really coerced-confession claims and that
coercing a confession doesn’t violate due process. The judge
didn’t buy it; instead, he granted the motion on two alternative grounds, neither of which was raised in the motion.
First, the judge said he detected “mixed signals” coming
from this court on the subject of due-process claims based on
evidence fabrication. He concluded that because an evidence-fabrication claim “sounds” in malicious prosecution
and Wisconsin provides a remedy for this tort, Avery’s dueprocess claims were not viable. In the alternative, the judge
held that Avery wasn’t really injured by the detectives’
fabrication of evidence at all; rather, it was their false testimony at trial that caused his injury, and giving testimony is
protected by absolute immunity. Either way, the judge held,
the verdict against the detectives could not stand. He also
held that without an underlying constitutional violation by
an individual defendant, the City couldn’t be liable under
Monell. Final judgment for all defendants followed.
Avery appealed, challenging the judge’s decision on the
Rule 59(e) motion and his refusal to allow the Brady claims to
proceed to trial.
A. Due-Process Claims for Evidence Fabrication
We begin with Avery’s challenge to the Rule 59(e) ruling.
In their motion the detectives argued that the claims on
which the jury found them liable were actually impermissible coerced-confession claims, not genuine evidencefabrication claims. The judge rejected this argument, concluding instead that a due-process claim “sounds” in malicious prosecution and therefore Avery’s claims were
“knocked out” as a matter of law because Wisconsin law
provides a remedy for that tort. He also held that the detectives’ testimony at trial—and not their act of fabricating
evidence—caused Avery’s injury and that witnesses at a
criminal trial are absolutely immune from suit for damages
flowing from their testimony.
Rule 59(e) rulings are reviewed for abuse of discretion,
but embedded legal questions are reviewed de novo. ACLU
v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012). This appeal raises
purely legal questions. Before we turn to them, however, we
have a threshold question about which (if any) of the arguments in support of the judge’s ruling are properly before
Avery urges us to ignore all three arguments because the
defendants did not properly preserve them. As he sees it, the
Rule 59(e) motion was really a misnamed Rule 50(b) motion
for judgment as a matter of law; he asks us to treat it as such.
He then points to the familiar rule that a Rule 50(b) motion
may only seek relief on grounds preserved in a Rule 50(a)
motion at the close of the evidence. See Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008). The defendants didn’t
follow this procedure.
Avery is right that the caption on a motion “is not essential,” but he overlooks the fact that a Rule 59(e) motion can
be used “to ask that a judgment be set aside in its entirety.”
A.D. Weiss Lithograph Co. v. Ill. Adhesive Prods. Co., 705 F.2d
249, 250 (7th Cir. 1983). That was the relief sought here, and
Rule 59(e) was not an improper vehicle. Avery counters that
if the Rule 59(e) motion was indeed proper, the defendants
are limited to the single argument raised in their moving
papers and cannot now defend the judge’s actual reasons for
setting aside the verdict.
It’s true that the judge reached beyond the sole argument
raised in the Rule 59(e) motion, resting his decision on his
own analysis of the legal viability of Avery’s due-process
and Monell claims. But a district judge is permitted to “enlarge the issues to be considered in acting on a timely motion
under Rule 59.” Charles v. Daley, 799 F.2d 343, 347 (7th Cir.
1986). The question for us is whether the judge’s Rule 59(e)
decision was legally sound. We conclude that it was not.
To defend their posttrial victory, the defendants begin by
reprising their failed argument that Avery never asserted
genuine evidence-fabrication claims in the first place. They
insist that this case boils down to a claim about the use of
coercion. We have indeed drawn a distinction between a
“‘coercion’ case for which there is no cognizable due process
claim … [and] an ‘evidence fabrication’ case where there is a
cognizable claim.” Petty v. Chicago, 754 F.3d 416, 422–23 (7th
Cir. 2014). But the defendants’ argument is an exercise in
misdirection: It’s clear that Avery’s due-process claims are
factually grounded in acts of evidence fabrication by the
detectives—evidence that was later used to convict and
“We have consistently held that a police officer who
manufactures false evidence against a criminal defendant
violates due process if that evidence is later used to deprive
the defendant of [his] liberty in some way.” Whitlock,
682 F.3d at 580; see also Mooney v. Holohan, 294 U.S. 103, 112
(1935) (explaining that the use of perjured testimony “to
procure the conviction and imprisonment of a defendant is
as inconsistent with the rudimentary demands of justice as is
the obtaining of a like result by intimidation”). On the other
hand, a claim that an officer coerced a witness to give incriminating evidence does not, at least standing alone,
violate the wrongly convicted person’s due-process rights. 2
As we explained in Petty, “coercively interrogating witnesses, paying witnesses for testimony, and witnessshopping may be deplorable, and these tactics may contribute to wrongful convictions, but … unlike falsified evidence
and perjured testimony, [coerced testimony] may turn out to
be true.” 754 F.3d at 422 (internal brackets and quotation
marks omitted). Because coerced testimony may in fact be
true, the due-process right to a fair trial isn’t implicated
absent a violation of the Brady duty to disclose facts about
the coercive tactics used to obtain it. See Fields v. Wharrie
(Fields II), 740 F.3d 1107, 1123 (7th Cir. 2014) (Sykes, J.,
concurring in part and dissenting in part) (“[I]f the police
officers … withhold exculpatory information about coerced
or fabricated evidence, the aggrieved defendant will have a
good § 1983 claim against the officers for violation of
Brady.”). Armed with the Brady disclosure, the accused can
impeach the coerced testimony by pointing to the tactics the
officers used to extract it, and the jury has a fair opportunity
to find the truth.
The same cannot be said for fabricated evidence. Falsified
evidence will never help a jury perform its essential truth-
Using a coerced confession against the accused at trial may give rise to
a claim for violation of the accused’s Fifth Amendment right not to be a
witness against himself. See Chavez v. Martinez, 538 U.S. 760, 767 (2003).
Avery raised only due-process claims.
seeking function. That is why convictions premised on
deliberately falsified evidence will always violate the defendant’s right to due process. What’s relevant is not the
label on the claim, but whether the officers “created evidence
that they knew to be false.” Petty, 754 F.3d at 423 (emphasis
added). The jury found that Detectives Phillips and
Hernandez knew their reports of Avery’s confession were
false when they wrote them; those reports—and the fake
confession—were used at trial to convict him. The detectives
can’t escape liability for this due-process violation by shifting the focus to the background facts about the tactics they
used to interrogate him.
This brings us to the two grounds on which the judge actually rested his Rule 59(e) decision. First, and primarily, the
judge held that an evidence-fabrication claim “sounds” in
malicious prosecution and therefore Avery’s due-process
claims were “knocked out” by Wisconsin’s common-law
remedy for that tort. This reasoning traces to Newsome v.
McCabe, 256 F.3d 747 (7th Cir. 2001), which in turn relied on
Justice Kennedy’s concurring opinion in Albright v. Oliver,
510 U.S. 266 (1994).
To properly understand Newsome, it’s important to recall
the nature of the claim asserted in Albright. As we recently
explained in Armstrong v. Daily,
[t]he claim in Albright was only that the plaintiff had been prosecuted without probable
cause. … [T]here 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
786 F.3d 529, 540 (7th Cir. 2015).
To be more specific, the plaintiff in Albright had been arrested and released on bail, but the charges against him were
later dropped. He asked the Supreme Court to recognize a
due-process right to be free from criminal prosecution except
on probable cause. 510 U.S. at 271. A four-justice plurality
held that there is no such right, at least not under the Fourteenth Amendment’s Due Process Clause. 3 Id. at 274. Justice
Kennedy, joined by Justice Thomas, concurred in the judgment, agreeing that there is no freestanding due-process
right not to be prosecuted except on probable cause; the
concurrence invoked the doctrine announced in Parratt v.
Taylor that “[i]n the ordinary case where an injury has been
caused … by a random and unauthorized act that can be
remedied by state law, there is no basis for intervention
under § 1983, at least in a suit based on ‘the Due Process
Clause of the Fourteenth Amendment simpliciter.’” Id. at 285
(Kennedy, J., concurring in the judgment) (quoting Parratt v.
Taylor, 451 U.S. 527, 536 (1981)).
The plurality suggested that if the plaintiff had a claim at all, it would
be for an unreasonable seizure in violation of the Fourth Amendment.
Albright v. Oliver, 510 U.S. 266, 274 (1994). But three justices in the
plurality “express[ed] no view as to whether [the plaintiff’s] claim would
succeed under the Fourth Amendment,” id. at 275; Justice Ginsburg
concluded that the plaintiff had an actionable Fourth Amendment claim,
id. at 276–81 (Ginsburg, J., concurring). The Fourth Amendment issue has
returned to the Supreme Court in a case argued earlier this term. Manuel
v. City of Joliet, No. 14-9496 (oral argument held Oct. 5, 2016).
Newsome read Justice Kennedy’s opinion as the narrowest
ground of decision in Albright. Newsome, 256 F.3d at 751
(citing Marks v. United States, 430 U.S. 188 (1977)). Applying
the Parratt principle, Newsome construed Albright as rejecting
a constitutional claim of malicious prosecution where state
law provides a meaningful remedy for that tort. Id.
But Albright must be understood in the context of its
facts. As we explained at length in Armstrong, Albright has
nothing at all to say about a deprivation of the due-process
right to a fair trial. 786 F.3d at 539–41. That is, Albright did
not involve a plaintiff who claimed he was wrongfully
convicted of a crime in a trial tainted by falsified evidence,
known perjury, or the deliberate destruction of exculpatory
evidence. Id. at 540. That kind of claim is “grounded in the
due process guarantee of fundamental fairness in criminal
prosecutions” and has long been recognized. Id. The Parratt
doctrine, we explained in Armstrong, doesn’t apply in this
context. Id. at 539–41. The availability of a state-law remedy
for malicious prosecution doesn’t defeat a federal dueprocess claim against an officer who fabricates evidence that
is later used to obtain a wrongful conviction. 4 Id.
It bears noting that the claim in Newsome was materially different from
the claim in Albright. As we’ve explained, the plaintiff in Albright was
never convicted; the charges against him were dropped, so his claim
rested on an assertion that he was prosecuted without probable cause.
Albright, 510 U.S. at 271. In contrast Newsome was convicted, imprisoned for many years, exonerated and released, and later pardoned.
Newsome v. McCabe, 256 F.3d 747, 748–49 (7th Cir. 2001). He sued five
officers under § 1983 alleging Brady violations and claims for “malicious
prosecution.” Id. at 749. Applying Justice Kennedy’s Albright concurrence, the panel rejected the malicious-prosecution theory but let the
So it was a mistake for the judge to set aside the verdict
on this ground. That Wisconsin provides a remedy for
malicious prosecution is irrelevant to the viability of Avery’s
§ 1983 claims for deprivation of his right to a fair trial. The
jury found that Detectives Phillips and Hernandez manufactured the confession that featured prominently in his trial
and contributed to his wrongful conviction for Griffin’s
The judge’s second reason for setting aside the verdict
rested on the immunity rule that witnesses at a criminal trial
cannot be sued for damages flowing from their testimony.
See generally Briscoe v. LaHue, 460 U.S. 325 (1983). The judge
thought the detectives’ perjured testimony—and not their
falsification of the confession—actually caused Avery’s
injury. So he concluded that the due-process claims were
blocked by absolute immunity.
This rationale is flawed for two reasons. First, virtually
any item of evidence introduced at trial must be authenticated by oral testimony. See FED. R. EVID. 901. Here, the detectives testified about Avery’s “confession” and authenticated
their false reports memorializing it; the reports were then
Brady claims stand, affirming the denial of qualified immunity. Id. at 751–
52. The panel explained that although Newsome didn’t have a cognizable malicious-prosecution claim grounded in due process or the Fourth
Amendment, he did “have a due process claim in the original sense of
that phrase—he did not receive a fair trial if the prosecutors withheld
material exculpatory details.” Id. at 752. Because Newsome involved a
wrongful conviction, not merely a wrongful prosecution, its invocation of
Albright was arguably misplaced, or at least not strictly necessary to the
outcome; the due-process claims were allowed to move forward under
the rubric of Brady.
introduced into the trial record. If an officer who fabricates
evidence can immunize himself from liability by authenticating falsified documentary or physical evidence and then
repeating the false “facts” in his trial testimony, wrongfulconviction claims premised on evidence fabrication would
be a dead letter. That would squarely conflict with our
caselaw—most notably Whitlock—and would put us at odds
with every other circuit to consider the viability of dueprocess claims premised on fabricated evidence. 5
See, e.g., Cole v. Carson, 802 F.3d 752, 773 (5th Cir. 2015), cert. granted,
vacated and remanded, No. 16-351, 2016 WL 4991790 (Nov. 28, 2016) (for
further consideration in light of Mullenix v. Luna, 136 S. Ct. 305 (2015));
Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1328 (11th Cir.
2015) (holding that an allegation that police officers fabricated evidence
and lied in their police reports, and that these fabrications caused the
plaintiff’s incarceration, is sufficient to state a § 1983 claim); Coggins v.
Buonora, 776 F.3d 108 (2d Cir.), cert. denied, 135 S. Ct. 2335 (2015) (holding
that a police officer who falsified police reports, made false statements to
a district attorney, and otherwise fabricated evidence is liable to a § 1983
suit); Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014) (“[I]f a defendant
has been convicted at a trial at which the prosecution has used fabricated
evidence, the defendant has a stand-alone claim under section 1983
based on the Fourteenth Amendment if there is a reasonable likelihood
that, without the use of that evidence, the defendant would not have
been convicted.”); Livers v. Schenck, 700 F.3d 340, 354 (8th Cir. 2012)
(“[T]he Fourteenth Amendment’s guarantee of due process is violated by
the manufacture of … false evidence in order to falsely formulate a
pretense of probable cause.”) (internal quotation marks omitted); Wilkins
v. DeReyes, 528 F.3d 790, 805 (10th Cir. 2008) (holding that the plaintiff’s
assertion that officers intentionally coerced false statements supported a
§ 1983 claim); Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005)
(holding that “proof that [the officer] fabricated evidence and that the
fabrication resulted in a deprivation of … liberty” is sufficient to state a
§ 1983 claim); Limone v. Condon, 372 F.3d 39, 49 (1st Cir. 2004) (holding
Second, and more fundamentally, the judge’s reasoning
is utterly at odds with the Supreme Court’s decision in
Buckley v. Fitzsimmons, 509 U.S. 259 (1993). There the Court
held that although a prosecutor is absolutely immune from
liability for the actions he takes during the course of a prosecution, he remains subject to liability for misconduct committed in an investigative capacity “before he has probable
cause to have anyone arrested.” Id. at 274. We’ve read the
Buckley exception to mean that a “prosecutor cannot retroactively immunize himself from conduct by perfecting his
wrong-doing through introducing the fabricated evidence at
trial and arguing that the tort was not completed until a time
at which he had acquired absolute immunity.” Fields II,
740 F.3d at 1114. Although this case involves evidence
fabrication by detectives, not a prosecutor, the judge’s ruling
gives the detectives’ testimony precisely that impermissible
It’s true that the detectives’ testimony was a factual predicate for Avery’s claim: A § 1983 claim requires a constitutional violation, and the due-process violation wasn’t complete until the false confession was introduced at Avery’s
trial, resulting in his conviction and imprisonment for a
that an officer who coaches a witness whom he knows will commit
perjury is liable to a § 1983 suit); Devereaux v. Abbey, 263 F.3d 1070, 1074–
75 (9th Cir. 2001) (en banc) (“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis
of false evidence that was deliberately fabricated by the government.”);
Stemler v. Florence, 126 F.3d 856, 872 (6th Cir. 1997) (holding that a police
officer “violate[s] … due process if he knowingly fabricated evidence
against [a criminal defendant] and if there is a reasonable likelihood that
the false evidence could have affected the judgment of the jury”).
murder he did not commit. See Cairel v. Alderden, 821 F.3d
823, 831 (7th Cir. 2016) (explaining that the plaintiff’s acquittal foreclosed his due-process evidence-fabrication claim); see
also Whitlock, 682 F.3d at 582. After all, it was the admission
of the false confession that made Avery’s trial unfair. As we
explained in Fields II, however, under common-law causation principles, “[h]e who creates the defect is responsible for
the injury that the defect foreseeably causes later.” 740 F.3d
When the detectives falsified their reports of a nonexistent confession, it was entirely foreseeable that this fabricated
“evidence” would be used to convict Avery at trial for
Griffin’s murder. That was, of course, the whole point of
concocting the confession. An unbroken causal chain connects the acts of evidence fabrication to Avery’s wrongful
conviction and imprisonment. The detectives are liable
under § 1983 for this due-process violation even though their
trial testimony, standing alone, would not subject them to
So the judge was wrong to set aside the verdict on this
ground. The jury’s verdict—including the City’s liability on
the Monell claim, which is not independently challenged—
must be reinstated.
B. Summary Judgment on the Brady Claims
For present purposes, the defendants do not dispute the
facts underlying Avery’s Brady claims: The detectives (the
larger group) failed to disclose material impeachment
evidence regarding their interrogations of the three jailhouse
informants, and their suppression of this evidence preju-
diced Avery’s defense. See Kyles v. Whitley, 514 U.S. 419, 437–
We’ve held, however, that evidence cannot be said to
have been suppressed in violation of Brady if it was already
known to the defendant. See Gauger v. Hendle, 349 F.3d 354,
360 (7th Cir. 2003). Other circuits agree. See, e.g., Fullwood v.
Lee, 290 F.3d 663, 686 (4th Cir. 2002); West v. Johnson, 92 F.3d
1385, 1399 (5th Cir. 1996); Felker v. Thomas, 52 F.3d 907, 910
(11th Cir.), opinion supplemented on denial of reh'g, 62 F.3d 342
(11th Cir. 1995); United States v. Diaz, 922 F.2d 998, 1007 (2d
Cir. 1990); Atkins v. County of Riverside, 151 F. App’x 501, 505
n.4 (9th Cir. 2005) (citing Gauger, 349 F.3d 354); see also United
States v. Agurs, 427 U.S. 97, 103 (1976) (stating that Brady
applies to “information which had been known to the prosecution but unknown to the defense”).
We’ve applied the Gauger rule to preclude Brady claims
against officers who failed to disclose the coercive circumstances surrounding the statements of prosecution witnesses
when the criminal defendant already knew of those circumstances. Petty, 754 F.3d at 423–24; Sornberger v. City of
Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006). We’ve also
applied it in a case involving officers who falsely reported a
relationship between the criminal defendant and a third
party. Harris v. Kuba, 486 F.3d 1010, 1016–17 (7th Cir. 2007).
Here, the judge correctly stated the Gauger rule but misapplied it to this case. Recall that Avery’s Brady claims are
premised on the detectives’ failure to disclose the details of
the pressure and inducements they brought to bear to extract
false statements from Randolph, Kent, and Kimbrough. The
judge thought the Brady obligation “dropped out” because
Avery already “knew what he said (or didn’t say) to the
jailhouse informants.” But that’s beside the point; the material question is whether Avery was aware of the impeachment
In Gauger, Petty, and Sornberger, the criminal defendants
were already aware of the impeaching facts—namely, that
the testimony in question was coerced. In Harris the criminal
defendant was just complaining that the officer didn’t admit
to falsifying his report. Here, in contrast, Avery knew that
the informants’ statements were false, but he did not know
about the pressure tactics and inducements the detectives
used to obtain them. And he did not know that Kimbrough
had in fact recanted his statement just before trial but was
told that he “had to” testify. In other words, he did not have
the evidence that could help him prove that the informants’
statements were false. The Gauger rule does not apply.
Summary judgment on the Brady claims was improper.
Because the judge’s summary-judgment and Rule 59(e)
rulings rested on legal errors, the jury’s verdict must be
reinstated in its entirety and the Brady claims must be revived and allowed to move forward. We REVERSE and
REMAND for further proceedings consistent with this opinion.
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