Eddie Gill v. City of Milwaukee, et al
Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6823903-1]  [16-2846]
United States Court of Appeals
For the Seventh Circuit
CITY OF MILWAUKEE, et al.,
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:15‐cv‐00587‐RTR — Rudolph T. Randa, Judge.
ARGUED JANUARY 11, 2017 — DECIDED MARCH 7, 2017
Before BAUER, FLAUM, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge. In February 2013, Eddie Gill con‐
fessed to and was charged with the murder of Jordin Crawley.
Gill spent just over a year in jail awaiting trial. The charges
were dropped, however, after a Milwaukee County Circuit
Court judge suppressed Gill’s confession. Gill then filed a
series of federal and state law claims in federal district court
against the City of Milwaukee, Chief of Police Edward Flynn,
and six Milwaukee police detectives. The district court entered
judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) in favor of Defendants on all of Gill’s federal
claims and dismissed the state law claims without prejudice.
For the reasons that follow, we affirm.
On February 3, 2013, Jordin Crawley was shot and killed
while standing in a crowd outside a club in Milwaukee,
Wisconsin, just after it had closed for the night. Gill exited the
club as it was closing and crossed the street to greet a group of
friends that he saw at a gas station. After a couple minutes, Gill
and the group walked back towards the crowd of people
outside the club. Just then, multiple gunshots were fired,
killing Crawley and wounding another man.
In the days that followed the shooting, Milwaukee Police
detectives collected security video footage from the area and
interviewed approximately 20 witnesses. One of the witnesses
identified Gill from the video footage of the gas station parking
lot. Detective Mark Peterson spoke with Gill on the phone and
spoke with his mother in person. Gill’s mother explained to
Peterson that Gill had cognitive impairments. At approxi‐
mately 7:30 p.m. on February 12, 2013, Gill voluntarily came to
the police station to be interviewed.
Detectives Timothy Graham and Erik Gulbrandson
conducted the initial interview. Gill’s complaint states that the
detectives knew of Gill’s intellectual disability prior to the
interview, and that it was also apparent through his behavior
and answers. During the interview, Gill made multiple
statements that were disproved by the video footage, including
the number of people he was with and where he was standing
when the shooting occurred. Based on those statements, the
detectives arrested Gill for obstruction and immediately read
Gill his Miranda rights. Gill requested a lawyer, and the
detectives ended the interview.
As the detectives transported him to booking, Gill said that
he wanted to take a polygraph test and that he wished to waive
his right to a lawyer in order to do so. The next morning,
Detective James Hensley retrieved Gill from his cell to take the
polygraph test. Hensley reiterated that Gill could not take the
polygraph without a lawyer present, unless he was willing to
waive his right to a lawyer. Gill’s complaint states that he
interpreted this to mean either that he could take a polygraph
without a lawyer or that he could not take one at all. Still, Gill
stated that he understood his Miranda rights and chose to
proceed with the polygraph without a lawyer present. He
denied any involvement with the shooting during the examina‐
tion, which lasted over six hours.
After the polygraph, Detectives Hensley and Billy Ball took
Gill to another room and continued interrogating him. The
detectives again read Gill his Miranda rights, which he waived.
Throughout this interrogation, which lasted five more hours,
Gill continued to maintain his innocence.
The next morning, February 14, 2013, Hensley began
interrogating Gill once again. Gill initially stated that he
wanted a lawyer, but Hensley convinced him to waive his
rights and continue with the interrogation. Hensley employed
several interrogation techniques, including social isolation,
confrontation, theme development, and minimization. He also
falsely stated that Gill had been identified as the shooter by an
eyewitness, and that Gill had failed his polygraph test. During
the course of this interrogation, Gill professed his innocence
more than 140 times, but eventually confessed to the shooting.
He was charged with first degree reckless homicide and
remained in jail.
Gill filed a motion to suppress his confession, which the
trial court granted on February 24, 2014. The court specifically
noted that Gill was “functionally illiterate,” that he had
previously been found incompetent to stand trial for a different
crime, and that his mother had advised Hensley of his intellec‐
tual disability. In light of those facts and the “stressful”
interrogations, the court held that his confession was involun‐
tary and inadmissible. As a result, the charges were dismissed
on March 13, 2014.
Gill then filed this case in the district court, bringing federal
claims under 42 U.S.C. § 1983, as well as supplemental state
law claims. He brought claims against each of the individual
detectives for violations of his Fifth and Fourteenth Amend‐
ment rights, a claim for false arrest, and a claim for conceal‐
ment of favorable evidence. He also brought claims for
conspiracy and failure to intervene, corresponding to each of
those claims. Finally, he brought claims against Chief of Police
Edward Flynn for supervisory liability, and against the City of
Milwaukee for municipal liability. In two written opinions, the
district court entered judgment in favor of Defendants on all of
the federal claims under Federal Rule of Civil Procedure 12(c).
The district court dismissed the supplemental state law claims
without prejudice. Gill now appeals the judgment on his
We review de novo an entry of judgment on the pleadings
under Rule 12(c). Buchanan‐Moore v. Cty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009). A motion for judgment on the plead‐
ings is subject to the same standard as a motion to dismiss
under Rule 12(b)(6). Id. Therefore, we must determine whether
the complaint states “a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A. Fifth and Fourteenth Amendment Claims
Gill claims that the detectives coerced his confession in
violation of his right against self‐incrimination under the Fifth
Amendment, as well as his substantive due process rights
under the Fourteenth Amendment. He also claims that the
detectives are liable for conspiracy and failure to intervene
based on these violations. Defendants argue that they are
entitled to qualified immunity on these claims.
“The doctrine of qualified immunity shields officials from
civil liability so long as their conduct ‘does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S.
223, 231 (2009)). To determine whether an official is entitled
to qualified immunity, we must consider two questions:
“(1) whether the facts, taken in the light most favorable to the
plaintiff, make out a violation of a constitutional right, and
(2) whether that constitutional right was clearly established at
the time of the alleged violation.” Allin v. City of Springfield, 845
F.3d 858, 862 (7th Cir. 2016) (citation omitted). We have the
discretion to choose which of these inquiries to address first.
Pearson, 555 U.S. at 236. Because the answer is dispositive, we
address only whether the right at issue was clearly established.
“A clearly established right is one that is sufficiently clear
that every reasonable official would understand that what he
is doing violates that right.” Mullenix, 136 S. Ct. at 308 (citation
and quotation marks omitted). The Supreme Court has
continually reiterated that “clearly established law should not
be defined at a high level of generality.” White v. Pauly, 137
S. Ct. 548, 552 (2017) (citation and quotation marks omitted).
While a case directly on point is not required, “the clearly
established law must be ‘particularized’ to the facts of the
case.” Id. at 551 (citation omitted). In other words, “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Mullenix, 136 S. Ct. at 308 (citation
Gill argues that the detectives violated his Fifth Amend‐
ment right when the “unconstitutionally coerced statements”
were used against him in his criminal case, specifically in his
preliminary hearing. He then claims that the detectives also
violated his Fourteenth Amendment substantive due process
right “to be free from coercive interrogation tactics.” Both
claims depend upon the coercive nature of the interrogation.
Gill argues, therefore, that his right to be free from coercive
interrogation was well established, such that the unconstitu‐
tionality of Defendants actions was settled.
To support that argument, Gill relies primarily on two
principles from our case law. First, he points to the proposition
that individuals with a diminished mental capacity can be
particularly susceptible to coercive interrogation tactics. See,
e.g., Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990)
(citing Andersen v. Thieret, 903 F.2d 526, 530 n. 1 (7th Cir. 1990)).
Second, he cites cases recognizing that interrogation tactics that
“shock the conscience” may give rise to substantive due
process claims. See, e.g., Fox v. Hayes, 600 F.3d 819, 841 (7th Cir.
2010) (citing Rochin v. California, 342 U.S. 165, 172 (1952)); see
also Wallace v. City of Chicago, 440 F.3d 421, 429 (7th Cir. 2006)).
He argues that, together, these principles have clearly estab‐
lished his right to be free from coercive interrogation.
This characterization of the right at issue, however, is
precisely the type of “high level of generality” the Supreme
Court has rejected in the qualified immunity context. See White,
137 S. Ct. at 552. Whether interrogation tactics are unconstitu‐
tionally coercive is an inquiry that depends on the specific facts
and circumstances present in a particular case. Indeed, our
cases have highlighted that “[t]here is no clear‐cut analysis to
determine what constitutes ‘conscience–shocking’ conduct
… .” Fox, 600 F.3d at 841; see also Cairel v. Alderden, 821 F.3d
823, 833 (7th Cir. 2016) (“Determining what constitutes such
behavior can be difficult … .”). This is true even where the
officers have knowledge of a witness’s cognitive impairment.
Cairel, 821 F.3d at 833–34. The right “to be free from coercive
interrogation” is highly generalized. Therefore, it cannot be the
basis for defeating a qualified immunity defense, unless there
is closely analogous precedent that is “particularized” to the
facts of the instant case. See White, 137 S. Ct. at 552.
“When looking at closely analogous cases to determine if a
right was clearly established at the time of violation, we look
first to controlling precedent on the issue from the Supreme
Court and to precedent from this Circuit.” Estate of Escobedo v.
Bender, 600 F.3d 770, 781 (7th Cir. 2010). Gill has not cited, and
we have not identified, any precedent from the Supreme Court
or this Circuit that puts the unconstitutionality of the officers’
conduct here “beyond debate.” See Mullenix, 136 S. Ct. at 308.
When no such precedent exists, we look outside our Circuit
“to determine whether there was such a clear trend in the case
law that we can say with fair assurance that the recognition of
the right by a controlling precedent was merely a question
of time.” Escobedo, 600 F.3d at 781 (citation and quotation
marks omitted). Gill relies exclusively on two cases from the
Eighth Circuit that he argues clearly establish the contours of
the right violated here. See Livers v. Schenk, 700 F.3d 340 (8th
Cir. 2012); Wilson v. Lawrence Cty., 260 F.3d 948 (8th Cir. 2001).
In both cases, the court denied officers summary judgment
after determining that there were questions of fact as to
whether the interrogation methods in question violated the
Fifth and Fourteenth Amendment rights of a mentally disabled
suspect. Livers, 700 F.3d at 354; Wilson, 260 F.3d at 954.
In our view, however, these two cases from another circuit
are insufficient to establish a “clear trend” indicating that
recognition of this right as clearly established in this Circuit is
“merely a question of time.” Escobedo, 600 F.3d at 781 (citation
omitted). This is particularly true in light of our recent holding
in Cairel, where we rejected a closely similar substantive due
process claim based on the interrogation of a suspect with a
cognitive disability. Cairel, 821 F.3d at 833–34. There, the
officers interrogated the suspect without a lawyer present,
despite the fact that they were “aware of [the suspect’s]
disability and knew that he might not have been fully able to
understand what was going on.” Id.
In sum, Gill has failed to demonstrate that his right to be
free from the interrogation tactics used here is clearly estab‐
lished. There is no precedent that places the constitutionality
of the detectives’ actions “beyond debate.” See Mullenix, 136
S. Ct. at 308. For that reason, Defendants are entitled to
qualified immunity on Gill’s Fifth and Fourteenth Amendment
Gill’s corresponding claim against the detectives for failure
to intervene must also fail. To succeed on this claim, Gill must
demonstrate that the Defendants (1) knew that a constitutional
violation was committed; and (2) had a realistic opportunity to
prevent it. See Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).
As we have demonstrated, Gill’s right to be free from these
interrogation tactics was not clearly established. It follows
then, that the detectives would not have known a constitu‐
tional violation was committed, and therefore, cannot be liable
for failure to intervene. Similarly, because the Defendants are
entitled to qualified immunity on the underlying claims, they
While we have determined that the specific right at issue here has not
been well established, we must make clear that nothing in this opinion
should be construed as condoning or approving the specific behavior and
tactics of the detectives in this case.
are entitled to judgment on the corresponding conspiracy
claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992)
(noting that “[a] person may not be prosecuted for conspiring
to commit an act that he may perform with impunity”).
B. False Arrest Claim
Next, we turn to Gill’s claim for false arrest, which was also
accompanied by claims for conspiracy to commit and failure to
intervene in the false arrest. Gill was arrested on February 12,
2013, for obstruction after lying to the detectives in his initial
interview. After Gill confessed two days later, he was charged
with murder, while he was still in jail for the obstruction
charge. Gill does not quarrel with the arrest for obstruction.
Instead, he argues that a “second and separate arrest” occurred
when the murder charge was filed. The false arrest claim,
therefore, is based on his theory that there was no probable
cause for the “second arrest” (i.e., the murder charge), in light
of the finding that his confession was involuntary.
Probable cause acts as an absolute bar to a claim for false
arrest. Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 622
(7th Cir. 2010). We have previously explained that “probable
cause to believe that a person has committed any crime will
preclude a false arrest claim, even if the person was arrested on
additional or different charges for which there was no probable
cause … .” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682
(7th Cir. 2007) (citing Devenpeck v. Alford, 543 U.S. 146, 153
(2004)). Gill concedes that there was probable cause for his
initial arrest for obstruction. He remained in custody for that
arrest until he confessed and was charged with murder. There
was no period of release followed by a subsequent arrest.
Thus, the existence of probable cause for his arrest for obstruc‐
tion bars his claim for false arrest. See id.
Gill attempts to avoid this conclusion by arguing that
Holmes only applies to a situation in which multiple charges
are filed simultaneously. There is no indication in Holmes,
however, that its reasoning applies only to charges filed
simultaneously. Indeed, the Supreme Court has rejected such
a distinction when determining the validity of an arrest.
Devenpeck, 543 U.S. at 153‐54.
What is important here is that the officers had probable
cause for Gill’s arrest for obstruction and that he was in
custody for that arrest when he was charged with murder.
There was no “subsequent arrest.” Therefore, Gill’s claims for
false arrest fails. For that reason, his related claims for conspir‐
acy and failure to intervene, must also fail. See Hill v. Shobe, 93
F.3d 418, 422 (7th Cir. 1996) (explaining that there can be no
conspiracy liability under § 1983 where there is no denial of
constitutional rights); see also Leaf v. Shellnut, 400 F.3d 1070,
1093 (7th Cir. 2005) (denying a claim for failure to intervene
where there was no underlying constitutional violation).
C. Brady Claim
Gill’s next claim is that, under Brady v. Maryland, 373 U.S.
83, 87 (1963), the detectives violated his due process rights
when they failed to disclose certain witness statements. He also
brought corresponding conspiracy and failure to intervene
claims against the detectives for this failure. On February 20,
2014, the trial judge handling Gill’s case learned that two of the
detectives had recently filed incident reports of witness
interviews that occurred over a year earlier. Gill claims that
these statements supported his original account of the events,
and that the officers withheld them from Gill, the prosecutors,
and the trial court until approximately a year after Gill’s arrest.
To prevail on a Brady claim for an officer’s failure to
disclose evidence, a plaintiff must show that (1) the evidence
was favorable to him; (2) the officer concealed the evidence;
and (3) the concealment prejudiced him. Cairel, 821 F.3d at 832.
“Prejudice requires proof that the failure to disclose caused a
deprivation of the accused’s liberty.” Id. Gill argues that his
claim should move forward because he has sufficiently alleged
that the concealment here prejudiced him by causing his
continued pretrial imprisonment.
Our cases, however, have consistently held that Brady
does not require the disclosure of favorable evidence prior to
trial. Armstrong v. Daily, 786 F.3d 529, 552 (7th Cir. 2015)
(recognizing that Brady disclosure obligations can be met
“in the time leading up to or even during trial”); United States
v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001) (explaining that
“Brady does not require pretrial disclosure” and demands only
that disclosure come with enough time for a defendant to make
use of the evidence). Gill argues, however, that language from
our recent cases suggests that his claim is viable because of his
pretrial detainment, despite the ultimate dismissal of his
charges. As support, he specifically points to Cairel, which
notes that “[a]s we explained in Armstrong, … the key to a civil
Brady claim is not conviction or acquittal, but a deprivation of
liberty.” Cairel, 821 F.3d at 833 (citing Armstrong, 786 F.3d at
In Armstrong, we held that the plaintiff had a viable claim
where he alleged that state lab technicians deliberately de‐
stroyed exculpatory evidence, which caused him to remain in
prison before the charges against him ultimately were dis‐
missed before trial. 786 F.3d at 553. Armstrong made clear,
however, that “Brady cases involving failures to disclose
evidence are plainly distinguishable from this case involving
destruction of evidence.” Id. at 552. In failure to disclose cases,
such as Gill’s, “[t]he critical question under Brady is whether
the exculpatory evidence is ‘disclosed in time for the defendant
to make use of it.’” Id. (quoting Grintjes, 237 F.3d at 880); see
Saunders‐El v. Rhode, 778 F.3d 556, 562 (7th Cir. 2015); see also
Bielanksi v. Cty. of Kane, 550 F.3d 632, 645 (7th Cir. 2008). Had
Gill’s case proceeded to trial, he would have been able to make
use of the statements that the officers failed to disclose initially.
For that reason, his Brady claim fails. Again, Gill’s correspond‐
ing conspiracy and failure to intervene claims fail because
there is no underlying violation. See Hill, 93 F.3d at 422; see also
Leaf, 400 F.3d at 1093.
D. Supervisory Liability and Monell Claims
Gill’s remaining claims are against Chief of Police Flynn for
supervisory liability and against the City of Milwaukee for
municipal liability under Monell v. Dep’t of Soc. Servs. of the City
of N.Y., 436 U.S. 658 (1978). The district court held that Gill’s
complaint did not plausibly allege the necessary elements of
To succeed on a claim for supervisory liability, a plaintiff
must show that the supervisor was personally involved in the
constitutional violation. Matthews v. City of E. St. Louis, 675 F.3d
703, 708 (7th Cir. 2012) (citation omitted). That means the
supervisor “must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what [he]
might see.” Id. (citation and quotation marks omitted). Gill’s
complaint fails to plausibly allege that Chief Flynn had such
personal involvement in the detectives’ conduct. It states only
that Chief Flynn failed to train the detectives adequately and
that he was “deliberately and recklessly indifferent” to the
detectives’ actions. There is, however, no allegation or plausi‐
ble inference that Chief Flynn knew about or was personally
involved in the specific conduct. Therefore, we agree with the
district court that Gill cannot maintain a claim for supervisory
Gill also failed to plead a plausible Monell claim. His
complaint states that the City of Milwaukee has a de facto
policy of “placing an emphasis on clearing cases and convict‐
ing suspects over seeking truth,” which led to the coercion of
his confession and the concealment of exculpatory evidence. A
municipal body may be liable for constitutional violations
“pursuant to a governmental ‘custom’ even though such a
custom has not received formal approval through the body’s
official decisionmaking channels.” Monell, 436 U.S. at 690–91.
To succeed on this de facto custom theory, the plaintiff must
demonstrate that the practice is widespread and that the
specific violations complained of were not isolated incidents.
Jackson v. Marion Cty., 66 F.3d 151, 152 (7th Cir. 1995). At the
pleading stage, then, a plaintiff pursuing this theory must
allege facts that permit the reasonable inference that the
practice is so widespread so as to constitute a governmental
custom. See McCauley v. City of Chicago, 671 F.3d 611, 618 (7th
Cir. 2011) (citing Iqbal, 556 U.S. at 683).
Gill’s complaint fails to do so. It does not provide exam‐
ples of other Milwaukee police officers taking actions similar
to those complained of here. More importantly, it does not
plausibly allege that such examples exist. Instead, it simply
states that this de facto policy caused the “Defendant Detectives
named supra to commit the aforesaid wrongful acts against
Plaintiff.” The specific actions of the detectives in Gill’s case
alone, without more, cannot sustain a Monell claim based on
the theory of a de facto policy. Id.; see also Palmer v. Marion Cty.,
327 F.3d 588, 596 (7th Cir. 2003) (explaining that “isolated acts
of misconduct will not suffice; a series of violations must be
presented to lay the premise”for a widespread practice claim
For the foregoing reasons, Defendants are entitled to
judgment on the pleadings on all of Gill’s claims before us. The
judgment of the district court is AFFIRMED.
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