Hampton v. City Of Chicago et al

Filing 162

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 7/13/2017. This case is setfor status hearing on July 26, 2017 at 9:30 a.m. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK HAMPTON,
Plaintiff,
v.
CITY OF CHICAGO, MICHAEL
DUFFIN, and THOMAS PTAK,
Defendants.

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Case No. 12-cv-5650
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and Illinois state law for alleged
violations of his civil rights stemming from his 1982 criminal conviction. This matter is before
the Court on Defendants’ motion for summary judgment [104]. For the reasons explained below,
the Court grants in part and denies in part Defendants’ motion [104]. The Court enters summary
judgment in favor of Defendants and against Plaintiff on Plaintiff’s Monell claim against the City
of Chicago for violation of his right to Due Process (Count I) and on Plaintiff’s claims for
Failure to Intervene (Count II), Malicious Prosecution (Count IV), Intentional Infliction of
Emotional Distress (Count V), Civil Conspiracy (Count VI), and Respondeat Superior (Count
VII). Defendants’ motion for summary judgment is denied as to Plaintiff’s Section 1983 claim
against Defendant Duffin for violation of Plaintiff’s right to Due Process (Count I), Plaintiff’s
Section 1983 claim for Conspiracy (Count III), and Plaintiff’s claim for Indemnification (Count
VIII). This case is set for status hearing on July 26, 2017 at 9:30 a.m.

I.

Background
The Court takes the relevant facts primarily from the parties’ Local Rule 56.1 statements

and exhibits thereto, [106], [107], [108], [122], [124], [125], [126], [142], and [148]. In addition,
the Court held an oral argument on the summary judgment issues and accepted supplemental
briefing [157], [158] on various issues arising out of the briefs and discussed further during the
oral argument. The following facts are undisputed except where otherwise noted. The parties’
evidentiary objections are discussed and ruled upon where relevant throughout this section of the
opinion.
A.

The Events of December 29, 1981

This case begins with events that occurred more than thirty years ago, on December 29,
1981. At that time, Plaintiff Patrick Hampton (“Plaintiff”) was 18 years old and living in
Chicago at 4429 South Federal in the Robert Taylor Homes.

Defendants Michael Duffin

(“Duffin”) and Thomas Ptak (“Ptak”)1 were employed by Defendant the City of Chicago
(“City”) as Detectives in the Chicago Police Department (“CPD”). They were both assigned to
Area 3 violent crimes.
On December 29, 1981, Plaintiff attended the “Holiday Jam” concert at the Chicago
International Amphitheater (“Amphitheater”). Denise M. (“Denise”), her then-boyfriend Hugo
N. (“Hugo”), his younger sister Martha N. (“Martha”), and her boyfriend Scott S. (“Scott”) also
attended the concert. They were seated in the fifth row close to the stage. During the concert, a
large numbers of concertgoers—around 40 or 50 total, and all or mostly African-American
men—moved down the aisle toward the stage. Some of these individuals were chanting or
shouting gang slogans and making motions with their hands in support of the “Black Gangster

1

Ptak is now deceased. Plaintiff has not named Ptak’s estate as a defendant.

2

Disciples” gang. While trying to leave the venue, Denise, Hugo, and Martha were attacked by
members of this group and struck with fists, chairs, and other objects.
Denise’s clothes were ripped off by the attackers. Men pushed their penises into her face
while she was being beaten and held down on the floor. All of her jewelry was ripped from her
body and stolen. Hugo was also stripped of his clothing and jewelry, kicked in his back, and
punched in his face and all over his body. He was hit with chairs while he attempted to shield
Denise from the violence. Martha’s hair was pulled and her clothing was partially removed. She
described her attackers as hitting her and trying to get her to the ground while tearing off her
pants and underwear.

Her necklace was stolen and she was knocked unconscious, before

regaining consciousness, getting up, and running away.2 Following the attack, Denise, Hugo,
and Martha were taken to Mercy Hospital.
The record includes a medical report that was prepared concerning Martha. See [12410]. The “history” section reports that Martha stated “she was in ampi. and attacked by unknown
[men] and past out [sic] for about 5 minutes, she is not sure if there was sexual assault.” [12410] at 3.
B.

The Police Investigation

Detectives Duffin and Ptak were assigned to investigate the Amphitheater attacks.
Duffin and Ptak went to Mercy Hospital and attempted to interview Denise. They were unable
to conduct the interview because Denise was too emotionally upset. They were able to interview
Hugo, who had been released from the hospital but was there visiting Denise. According to the
police report, Hugo told Duffin and Ptak that he and his girlfriend were jumped by
approximately twenty black males who were yelling “Disciples” and “get her.” [122-1] at 5.
2

The parties disagree about whether Martha was knocked unconscious for only a moment or for a longer
period of time.

3

Hugo also told the detectives that the black males who jumped him and his girlfriend tore their
clothes off their bodies and took their jewelry and money.

Hugo further stated that

approximately ten of the men had their penises out and were attempting to insert them into his
girlfriend’s mouth and vagina. In an attempt to prevent the men from doing this, Hugo laid
himself on top of Denise to shield her body; however, numerous men were still able to put their
hands inside Denise’s vagina.
On December 31, 1981, Keith Powell (“Powell”), who at the time was fourteen years old,
contacted Officer Praski (“Praski”) of the Fifth District with information regarding the incident
at the Amphitheater.

Praski reported that Powell stated that he was at the concert at the

Amphitheater on December 29, 1981 and that the individual responsible for the attack of the girl
was Ricky Knight (“Knight”). Knight was a local gang leader in the Black Disciples. Knight
was the only individual who Powell identified to Praski.
Praski contacted Duffin and Ptak with the information that Powell had provided. Duffin
and Ptak interviewed Powell at the Fifth District. They took him to the Gang Crimes office to
review gang photographs.

Duffin took notes during the interview with Powell.

Duffin

subsequently wrote a report regarding his interview with Powell, and destroyed his notes. The
report that the detectives prepared following their interview with Powell states:
“Keith Powell stated in essence but not verbatim the following. He attended the
rock concert at the international amphitheater the night of the incident. Further
that their [sic] were numerous people in attendance that he knew from his old
neighborhood at 44th & Federal. He stated that the people that he knew there
were members of the third world black gangster disciple street gang. As the
concert was in progress he observed the people he knew from this gang attack a
white girl and boy who were watching the concert. He saw them tear the clothes
off this couple and observed the couple break loose a short time thereafter and run
away. After leaving the consert [sic] he rode the 43rd Street bus east with the
people he knew while on the bus he heard them bragging about sticking their
penis’s [sic] in the girls mouth and putting their hands in her vagina. He also hear
[sic] them say that they robbed the couple of their jewelry money and clothing.

4

He then gave r/d’s the names and addresses of these offenders. He stated that the
offenders were Pat Hampton of 4429 S. Federal, Ezra Garner and his brother
Ron Garner of 4429 S. Federal, Ricky knight [sic] of 4410 S. State, Ron Mallory
of 4429 S. Federal, Bird of 4500 S. State apt. 909 and Sandel Pool. He went on to
relate that the leader of this gang was Rickt [sic] Knight. R/d”s brought Keith
Powell into A/1 Gang Suppression unit and showed him photos from the various
gang books. He identified the Photo of Ricky Knight as the leader of the gang and
one of the offenders.”
[125] at 8 (emphasis added).
Following the interview with Powell, Martha and the other victims signed complaints
against Plaintiff and swore to the facts alleged in the complaints. Duffin also signed the
complaints in the capacity of “Clerk,” stating that the complaints were “subscribed to and sworn
to before” him. [137] at 20-21. Duffin, Ptak, and other police officers arrested Plaintiff, Ezra
Garner (“Ezra”), Robbie Garner (“Robbie”3), and Bobby Brooks (“Brooks”) at the Robert Taylor
Homes. Following those arrests, other suspects, including Knight, Ronald Mallory (“Mallory”),
“Bird,” and Sandel Pool (“Pool”) were still wanted by the CPD.
Ptak and Duffin spoke with Plaintiff following his arrest. The detectives included the
following statement about that conversation in their report:
He [Plaintiff] later stated that he was at the Amphitheater during the assault and
robberies of the victims. He went onto relate that [he] was sitting in the back of
the Concert area when he saw a large group fighting near the stage and then later
heard that some people were talking about a girl getting raped. [Plaintiff] went
onto relate that he got on an Eastbound CTA bus to go home and while on the bus
he overheard a subject by the nickname “Spoon” whose real name is Ronald
Mallory state that he had kicked the white broad in her shit. He was asked what
Spoon had meant when he said shit and he replied her vagina, he also added that
Spoon was talking with Bud, Ezra Garner and Ronnie Garner. He related that Bud
is also known as Budline and that he lives at 4429 So. Federal, Apt #1405.
Hampton further stated that Spoon kept on bragging about what he did to the
white broad and her boyfriend while he was apparently attempting to rape the girl.
[125] at 9-10.

3

Robbie is also erroneously referred to as “Ronnie” is several documents in the record.

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Plaintiff denies the accuracy of several aspects of the report. Specifically, Plaintiff denies
that he told the detectives that he was “sitting in the back of the Concert area when he saw a
large group fighting near the stage and then later heard that some people were talking about a girl
getting raped.” [125] at 10. Plaintiff also denies that he told the detectives that he overheard
Mallory talking with Ezra or Ronnie, but admits the accuracy of the remainder of the paragraph
quoted above. [125] at 10.
On December 31, 1981 at approximately 9:10 p.m., Hugo and Martha viewed a line-up at
Area 3 Violent Crimes. The line-up consisted of four suspects (Plaintiff, Brooks, Ronnie, and
Ezra) and four “fillers.” Hugo viewed the line-up and made no identifications. Martha then
viewed the line-up and identified Plaintiff, Brooks, and Garner as the offenders who pulled her
clothing off, Brooks as the person who stole her necklace, and Garner as the man who put his
hand in her vagina. Martha also identified Donnell Howard as one of her attackers, but he was
subsequently released from custody without charge. The detectives prepared a report stating
that, following her viewing of the line-up, Martha stated the following “in essence but not
verbatim”: “[A]fter her boyfriend [Scott] was hit over the head with a crowbar and left the
amphitheater she returned to where the[ir] seats were to tell her brother [Hugo] and his girlfriend
[Denise] that they should leave. Upon returning to their seats she was attacked by approximately
20 m/b’s who tore her clothes off and beat her and attempted to rape her she managed to break
loose and ran to a security guard. . . . After receiving no help from [the first security guard she
spoke with] she managed to run to another security guard who escorted her to the first aid
station.” [122-1] at 7-8.
Plaintiff objects to the Court considering this report on the basis that “[t]here is no
statement in the supplementary reports of what Martha told the Detectives, other than the

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purported line-up identifications.” [125-1] at 11. However, the statement quoted above does
appear in the report that Defendants filed in the record, see [122-1] at 7-8, and addresses more
than just Martha’s identification of Plaintiff at the line-up. Plaintiff also objects to the use of
contents of the report as hearsay on the basis that the detectives’ reports are inaccurate and
therefore not subject to the Rule 803(6) hearsay exception for business records. See Fed. R.
Evid. 803(6). Plaintiff argues that he has demonstrated pursuant to Rule 803(6)(E) that the
“method or circumstances of preparation” of the report “indicate a lack of trustworthiness.” Fed.
R. Evid. 803(6)(E). The Court concludes that it would be premature to exclude the supplemental
report from the record on the basis on Rule 803(6)(E) at the summary judgment stage. First,
Plaintiff has not met his burden to show that “the evidence is inadmissible on all potential
grounds” under the Federal Rules of Evidence. Euroholdings Capital & Inv. Corp. v. Harris
Trust & Sav. Bank, 602 F. Supp. 2d 928, 934 (N.D. Ill. 2009). Second, while Plaintiff has raised
legitimate questions concerning the trustworthiness of the report’s description of the interview
with Powell—including by pointing to Powell’s recent deposition testimony denying that he
identified Plaintiff as an assailant—Plaintiff has not raised any specific concerns about the
accuracy of the report’s description of the detectives’ interview with Martha. Although the
report does not specifically mention that Martha lost consciousness for some time during the
attack, it is not inconsistent with Martha’s medical report or subsequent testimony and therefore
does not indicate that the report is untrustworthy. Third, Plaintiff has not demonstrated that
Martha would be unavailable to testify at trial. Cf. United States v. Anderson, 450 F.3d 294, 302
(7th Cir. 2006) (police officer’s testimony about statements made to him during his investigation
by three of the informants who testified at the trial was not hearsay where statements were

7

consistent with informants’ testimony, all three informants were subjected to cross-examination,
and their credibility was attacked).
On January 1, 1982, just after she was discharged from the hospital, Denise met with Ptak
alone and viewed a stack of approximately ten to twenty photographs. After reviewing the
photographs, Denise identified Plaintiff and Knight as two of her assailants. Subsequently,
Denise viewed a line-up at Area 3 Headquarters and identified Plaintiff and Knight as two of her
assailants. It is disputed whether Denise identified Plaintiff based on her own observation of
Plaintiff during the attack or instead based on Ptak’s use of suggestive techniques during the
photo array, in particular re-inserting Plaintiff’s photo multiple times into the stack of photos (as
discussed below).
Felony Review Assistant States Attorneys (“ASAs”) Kershner and Hyman reviewed the
evidence and approved charging Plaintiff, Ezra, Robbie, and Brooks each with three counts of
robbery, one count of deviate sexual assault, and one count of attempted rape. They also
approved warrants for the arrest of Knight and Mallory. Plaintiff disputes these facts to the
extent that they are based on Duffin’s and Ptak’s supplemental report and claims that they are
hearsay. The Court is not persuaded by this argument because Plaintiff has not identified any
out-of-court statements in the supplemental report that Defendants are using to prove the truth of
the matter asserted, i.e., that the prosecutors decided to charge Plaintiff and his co-defendants
with certain crimes.
On January 3, 1982, the Chicago Sun Times reported in an article that a women from
Cicero had reported to CPD on January 2 that she had been assaulted at the Amphitheater on
December 29, 1981, as well, and that she identified as her assailant one of the four men who had
already been arrested. The woman from Cicero is not referenced in any police reports relating to

8

the attacks on Denise, Martha, and Hugo. The Sun Times also reported that other witnesses told
Duffin and Ptak that they would have intervened in the attack but were too scared.
Within the next few days additional persons were arrested, line-ups were held, and felony
review ASAs approved charges against Mallory, Kevin Tyler (“Tyler”), Michael Neal (“Neal”),
and Kenneth Ford (“Ford”). On January 8, 1982, Knight was also arrested.
Following the arrests, Duffin and Ptak learned the names of the four security guards who
were working around the main stage area of the Amphitheater during the incident. One of the
guards was William Henrichs (“Henrichs”), who was also a Cook County Sheriff’s deputy.
Henrichs did not come forward as a witness until Detectives Duffin and Ptak contacted him.
They interviewed Henrichs around January 8, 1982 and prepared a supplemental report reflecting
the following:
Williams Henrichs stated in essence but not verbatim the following: When the
doors first opened I was standing by the Halstead street south entrance. I was
searching people coming through the doors. At one point about fifty to one
hundred people broke through and gained entrance by crashing the gate and not
paying to get in. As the band came onto the stage I was transferred to a stationary
assignment approximately ten feet south of the stage. Somewhere around midnight a female latino [sic] came up to me she was crying hysterically stating that
members of the audience tried to rape her. I observed that her shirt and her pants
had been torn and her pants zipper was torn. I recognized her as a girl I had
admitted through the gate. I told her to come with me to first aid she told me no
they still have my brother and his girlfriend. I left her with the back stage security
officer I don’t know his name. I then proceeded north across the front of the stage
and got Larry and three other security people to help me. We entered the
disturbance and observed thirty to forty m/b’s creating a disturbance. We pushed
our way through and pulled numerous people off a pile. We then observed several
m/b’s holding down and beating a m/L and also a f/L being pinned to the floor
with one m/b pulling at her breasts as if to be attempting to pull them off and
another m/b on his knees jamming an object in and out of the girls vagina. The
girl was curled up in a ball. Both latinos [sic] were nude. Larry pulled them back
stage away from the crowd. We were unable to apprehend any of the m/b’s as we
were outnumbered six to one and further we were mainly concerned about getting
the victims to safty [sic]. After arriving at the first aid station I observed that the
girl had numerous bruises and contusions on her face, back, neck and legs and
that the boy had a black eye and a cut on his cheek and bruises on his back. The

9

girl was bleeding profusely. The nurse called for an ambulance and the police.
Also some of the security called the police and the fire dept. A few days after the
incident I was watching television and I saw the first four people who were
arrested on television in custody. I recognized all of them as being in attendance
at the concert the night of the incident. Further I recognized one of them as the
person I saw jamming something into the girls vagina.
[125] at 13 (quoting [107-19] at 3). The supplemental report also states that Henrichs was shown
“numerous photos” and “identified the photo of [Plaintiff] as the person he observed jamming a
foreign object into the girls vagina.” [107-19] at 3. It further states that Henrichs identified
Brooks, Ezra, and Ronnie “as people he saw enter through the gate he was watching,” but that he
did not recall Plaintiff passing through his gate. Id.
Plaintiff objects to Defendants’ use of this supplemental report on the basis that it is
“inherently unreliable and therefore is hearsay” under Federal Rule of Evidence 803(6)(E).
[125] at 14. As evidence, he points to Hugo’s 2013 deposition testimony, which is discussed in
more detail below. When Hugo was asked whether “any security guards [came] to [his] aid
while [he was] being punched and kicked,” he testified: “No. After . . . the crowd had—the only
way I could describe it is like they had backed off to see what they had done to us. Only then is
when I actually remember seeing a man in a yellow coat that was security.” [124-11] at 3-4.
When asked, “[d]id you ever see any security ripping people away from you or the scene,” he
responded: “No. Nobody came to help us, nobody.” Id. at 4. The Court concludes that it will
not exclude the supplemental report from the record on the basis on Rule 803(6)(E). The fact
that Hugo did not (more than thirty years after the fact) recall seeing security guards pulling
people off of him does not demonstrate that the supplemental report is inherently unreliable.
Further, Hugo and Denise both testified at the time of the trial in 1982 that security guards pulled
people off of them. [122-4] at 77, 103-04.

10

On January 24, 1982, Duffin and Ptak interviewed Garnett Dubose (“Dubose”), who was
also in attendance at the Amphitheater on the evening of the incident. Dubose was under arrest
on an unrelated charge at the time of the interview. The report that the detectives prepared stated
that Dubose “stated in essence but not verbatim” that he was at the concert with Francine Harris
(“Francine”) and “observed between twenty to thirty m/b’s attack a young white couple who
were seated in front of him.” [122-10] at 3. The report states further that Dubose and Francine
were seated “about nine rows back from the incident” and that ‘Francine probably got a good
look at the offenders as she was watching the incident through a pair of binoculars.” Id.
According to the report, the detectives showed Dubose “numerous photos and he identified the
photos of [Plaintiff] and Ricky Knight as two of the m/b’s who were attacking the young white
couple” and stated that “he saw these two going in and out of the pile that was on top of the
aforementioned couple.” Id. At the subsequent suppression hearing, Dubose testified that he
was shown a pile of photographs and picked out two photos and told the detectives, “These are
the two people I’m sure I saw at the Amphitheater.” [123-13] at 30.
Plaintiff objects to the portion of the police report concerning Dubose as hearsay under
Rule 803(6)(E). The Court is not persuaded because Plaintiff does not cite to any evidence in the
record showing a lack of trustworthiness with the part of the report that recounts Dubose’s
testimony. The Court will not discount the entire report as hearsay simply because Plaintiff
questions the accuracy of other parts of the report, such as its description of Powell’s statement
to police.
C.

Pre-Trial Proceedings

On January 4, 1982, Duffin testified before the grand jury on charges against Plaintiff and
seven other suspects. He testified that his investigation revealed that Plaintiff was a gang

11

member; that Plaintiff and the other suspects approached the three victims as a group and
attacked them; that they stole from the victims; that members of the group sexually assaulted
Denise and Martha; that members of the group including Plaintiff were overheard admitting their
participation in the attack; and that “a witness or all of the victims” identified each participant.
[137] at 27.
The Grand Jury returned an indictment against Plaintiff for: 1) attempted rape, deviate
sexual assault, three counts of aggravated battery, robbery, conspiracy to commit rape, and
conspiracy to commit deviate sexual assault of Denise; 2) aggravated battery and robbery of
Hugo; and 3) attempted rape, aggravated battery, robbery, and conspiracy to commit rape of
Martha. Judge Strayhorn was the presiding judge.
Plaintiff retained Jack Rodgon (“Rodgon”) as his defense attorney.

Shortly after

Hampton was indicted, Rodgon issued a subpoena duces tecum to CPD’s keeper of records
requesting “any and all police reports.” [125] at 15. On April 22, 1982, while discovery was
ongoing, Rodgon issued a subpoena duces tecum to the Commander of Area 3, Stibich, and to Lt.
Joseph Curtin at Area 3 Violent Crimes requesting “any and all reports, records, memorandums,
statements and any other documents you may have involving the investigation …. including but
not limited to any and all street files that may have been prepared by officers in area 3.” [125] at
16. On April 23, 1982, Judge Strayhorn entered an order instructing the Cook County State’s
Attorney and Superintendent of CPD to preserve all handwritten notes, memoranda, tape
recordings, and other records prepared in connection with the case by arresting officers and
investigative personnel, commonly known as a “street file.” [125] at 16.
On May 7, 1982, the deadline for returning the subpoenas, ASA O’Connor represented to
the Court that he “had a conversation with the detective that worked on this case” and “[t]here is

12

no street file.” [125] at 16. He further clarified that, “to our knowledge, there is no street file,
now or ever,” and that “[t]o our knowledge, . . . we are giving [the defense] what we have.” Id.
Stibich and Curtin failed to appear at the scheduled hearing concerning the subpoenas. Four
days later, on May 11, 1982, Rodgon filed petitions for rule to show cause against Stibich and
Curtin for their failure to appear. The same day, Judge Strayhorn issued orders requiring Stibich
and Curtin to appear on May 26, 1982 “to show cause why they should not be held in contempt
of court.” Id. at 17. The record does not reflect how the order to show cause was resolved.
During pre-trial proceedings, Plaintiff’s attorney Rodgon made an oral motion to quash
Plaintiff’s arrest and the subsequent identifications by the state’s witnesses. Rodgon followed
this up on June 11, 1982, by filing a motion to suppress testimony concerning the line-up
Plaintiff participated in and the in-court identification of Plaintiff by the state’s witnesses. See
[107-33]. He offered the following points in support of his motion to suppress: 1) prior to being
placed in the line-up, Plaintiff was handcuffed and was presented to certain identification
witnesses of the state, and police officials indicated to the identification witnesses that he was the
perpetrator of the crime; 2) Plaintiff believed that the identification was induced by the activities
of the police at the police headquarters; and 3) “the witness, prior to any corporal identification
of [Plaintiff], observed photographs in a manner that was unnecessarily suggestive.” [125] at 1718 (quoting [107-33] at 3).
While these motions were pending, six of Plaintiff’s eight co-defendants pled guilty and
received sentences of six months with credit for time served. [125] at 18. On July 30, 1982,
Plaintiff’s oral motion to quash Plaintiff’s identification was heard. Plaintiff’s counsel and
Knight’s counsel questioned Ptak. Ptak testified that Duffin had taken notes during his initial
interview with Powell, that the notes were reduced to a written report, and that the notes were

13

then destroyed. According to Ptak, he watched Duffin rip up the notes and throw them in the
waste basket. Id. at 19. The Court denied Plaintiff’s motion to quash.
On September 1, 1982, Judge Strayhorn heard argument on Plaintiff’s written motion to
suppress. Hugo, Denise, Martha, Powell, and Ptak also testified at the suppression hearing.
Upon questioning by Knight’s attorney, Gary Brownfield (“Brownfield”), Hugo testified that he
went to the police station on December 31, 1981 and viewed a line-up, and that no police officer
said anything to him prior to viewing the line-up. [136-1] at 105, 111. He further testified that
after the line-up, he looked through a stack of about twenty color photographs and recognized
one person from the photos.

Id. at 106-108.

Officers Duffin and Ptak handed him the

photographs and told him to look at them, but did not tell him what he was looking for, who the
photographs were of, or whether there was a suspect among the photos. Id. at 109. Hugo picked
out one photo from the stack (Knight’s) and handed it the officers. Id. at 110. Hugo testified
that he viewed a second line-up at the police station on January 8, 1982, and identified the same
person who he had identified in the photographs he viewed on December 31. Id. at 112, 116.
According to Hugo, the officers did not tell him anything when he viewed the line-up. Id. at 116.
Hugo further testified that he never identified Plaintiff in a line-up and that no one ever identified
Plaintiff to him. Id. at 117.
At the suppression hearing, Rodgon and Brownfield also cross-examined Denise at length
about the photographs that she viewed and the identifications that she made. Denise testified that
she and Ptak did not have any conversation before she viewed the photo array. Brownfield
examined Denise first. Specifically, Denise testified:
Q: And do you remember how many photographs they showed you?
A: It was about ten to twenty.
….
Q: Do you remember who showed you these photographs?

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A: Detective Ptak.
Q: And where was this?
A: It was close to the lobby in a little square room near the lobby.
Q: And what date was this on again?
A: January 1st.
Q: And about what time was that?
A: It was in the morning?
Q: Prior to Officer Ptak showing you these pictures, what, if anything, did he say
to you?
A: Nothing, he just said to look at the pictures and see if I recognized anybody.
Q: Did he tell you that any of the offenders were in the photographs?
A: No.
[125] at 20; see also [136] at 8; [136-1] at 6-53. Denise further testified that when she looked at
the photos, they were not spread out on a table, but “they were by hand, I was looking at them
one at a time.” [136-1] at 12. She then made in-court identifications of Plaintiff as one of the
two people she recognized in the photographs. Id. at 13. Rodgon then questioned Denise. He
asked her, “while you were looking at the pictures, was there any other conversation between
yourself or Officer Ptak,” and she responded, “No.” [136-1] at 23-24. At the close of the
testimony, the motion to suppress was denied on the basis that Plaintiff had not presented any
evidence indicating that any illegal police activity lead to the witness identifications.
On October 7, 1982, Rodgon issued a subpoena duces tecum to Officer Barberio and
Officer Garmon of the CPD requesting any and all police records, reports, memoranda, and street
files related to Plaintiff and involving the December 29, 1981 incident.
D.

Plaintiff’s Criminal Trial and Direct Appeal

On October 12, 1982, Plaintiff’s trial began. His case was tried simultaneously with the
cases against Knight and Mallory, with three separate juries. Powell was called as a witness by
the prosecution. He testified that, at the end of the concert, he saw a group of men coming down
the aisle toward the stage making gang signs and chanting gang slogans. He identified Plaintiff,
Knight, and Mallory as members of the group. [137] at 18. However, he did not testify that he

15

saw Plaintiff do anything. Powell also testified that Plaintiff was in the group that got on the bus
with Knight following the concert and that the group were heard “bragging about what they did
to that girl” and talking about taking jewelry. [137] at 18.

However, Powell did not testify

about who specifically said what.
Henrichs testified at trial that he saw Plaintiff enter the concert gate and searched him.
Henrichs stated that just after midnight, a woman with torn clothes approached him and told him
that others were being attacked. He testified that he approached the stage with other guards and
saw a large crowd of black men in a circle. Henrichs further testified that he saw Plaintiff
thrusting his arm toward a woman’s vaginal area and that on January 6, 1982, he identified
Plaintiff and three other participants in a photo array. According to Henrichs, another security
guard pulled Plaintiff off of Denise.
Hugo testified at trial that when he, Martha, and Denise saw the men move toward the
front of the stage, they attempted to leave but had their path blocked and then were attacked.
Hugo further testified that he was hit, kicked, and punched and had his wallet, keys, and jewelry
stolen. Hugo identified Knight in court as one of his and Denise’s attackers and testified that he
had identified Knight from a photo array and a line-up. Hugo testified that a “black guy in a
yellow coat” (a security guard) came and pulled him out of the crowd and that “another guy in a
yellow coat was taking Denise out.” [122-4] at 103-04.
Martha testified at trial that she ducked when she saw Knight about to hit her with a chair
and that a number of men then starting hitting and kicking her. She testified that there were as
many as thirty or thirty-five men around her, grabbing at her clothes and jewelry. Martha further
testified that Plaintiff was the man who tore her pants and “tried to put his hand in her vagina.”

16

[125] at 24. She also testified that she managed to get away, heard someone yell “get her,” and
saw Knight behind her. Id. at 24.
Denise testified at trial that she was beaten, sexually brutalized, and robbed of her
clothing and jewelry. She testified specifically that Knight put his penis in her mouth and that
Plaintiff attempted to put a cold, hard object in her vagina. [122-4] at 76. She further testified
that a man in a yellow coat eventually pulled the men off of her and they scattered. Id. at 77.
She also confirmed her earlier identifications of Plaintiff from the photo array and in the first
line-up she viewed at the police station.

Rodgon cross-examined Denise regarding her

identification of Plaintiff.
At the conclusion of trial, the jury was provided with instructions.

One of the

instructions informed the jury on a theory of accountability: “A person is legally responsible for
the conduct of another person when, either before or during the commission of an offense, and
with the intent to promote or facilitate the commission of that offense, he knowingly solicits,
aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the
offense.” [125] at 25.
The jury found Plaintiff guilty of (1) attempted rape, deviate sexual assault, robbery, and
aggravated battery of Denise; (2) robbery and aggravated battery of Hugo; and (3) robbery and
aggravated battery of Martha. Plaintiff was found not guilty of attempted rape of Martha. See
[106] at 18. On November 18, 1982, Plaintiff was sentenced to concurrent sentences of 60 years
for deviate sexual assault, 15 years for attempted rape, 7 years for three counts of robbery, and 5
years for three counts of aggravated battery.

17

Plaintiff immediately filed a motion for new trial. The motion was denied. Plaintiff then
filed an appeal to the Illinois Appellate Court, First District, which affirmed his conviction. See
People v. Knight, 139 Ill. App. 3d 188 (Ill. App. 1985).
E.

Challenges in the 1980s to the City’s Use of “Street Files”

The City’s use of “street files” became the subject of litigation in the 1980s in at least two
federal cases in this district, Palmer (No. 82-cv-2349) and Evans (No. 04-cv-3570). In 1983,
Judge Shadur issued a preliminary injunction requiring police to preserve street files. See
Palmer v. City of Chicago, 755 F.2d 560 (7th Cir. 1985) (concluding that class of plaintiffs who
had been convicted of felonies in Cook County Circuit Court had alleged sufficient harm to
establish standing for their requested preliminary injunctive relief to preserve their “street files,”
and holding that injunction would issue to preserve the “street files” now in existence for persons
convicted of felonies and to allow those persons an opportunity to view content of files, upon the
filing of a properly drafted, specific subpoena); Evans v. City of Chicago, 2006 WL 463041, at
*14 (N.D. Ill. Jan. 6, 2006) (recognizing that “[t]here is . . . little question that maintaining nondisclosed ‘street files’ was the custom of the City [in 1976] and until Judge Shadur issued a
preliminary injunction in . . . Palmer v. City of Chicago, 562 F. Supp. 1067 (N.D. Ill. 1983)”).
In 1981, Stibich was the commander of Area 3, in which Duffin and Ptak worked.
Stibich testified in the Palmer litigation that in investigations of violent crimes in Area 3, there
was an “office file” and, in some cases (but not all cases), a “working file.” He testified that
there would not necessarily be a working file for rape, aggravated assault, or robbery cases.
According to Stibich, prior to entry of the temporary restraining order in Palmer, the practice in
Area 3 was to destroy the street file or return it to the detectives once a closing report was written

18

in a case. It was the Sergeant’s job to go through the working file to determine whether or not
the memos and reports were put in supplemental reports.
Sergeant Owens was deposed in this case about the City’s use of street files prior to the
Palmer litigation. He testified that at the end of an investigation, the street file would be
assembled and given to a secretary, who would pull out any duplicates and put anything that was
pertinent into the regular file, if it was not already there. The secretary would go to a sergeant or
lieutenant with any questions about whether or not something should be included in the regular
file.
The Superintendent is responsible for the management and control of the CPD. Chicago
Police Superintendent Richard Brzeczek testified in the Evans litigation that he did not know if
detectives purposefully withheld information in the street files as a matter of routine, but he
knew of “situations where, just based on human nature, there would be detectives who would not
turn over all information or exculpatory information.” [137] at 34. He also acknowledged that
some detectives did not memorialize all of their notes in official department reports. On April
19, 1982, Brzeczek issued Department Order 82-2, which provided: “Effective immediately, as a
result of a [TRO] issued by federal district court judge Thomas R. McMillen, the contents of all
police department investigative files known as office, unit, or working files and sometimes
referred to as ‘street or running’ files will be kept intact. No documents, materials, or notes shall
be removed from these files.” [137] at 37. On September 19, 1982, the Palmer plaintiffs filed a
motion to amend the temporary restraining order because they claimed that detectives were
violating its letter and spirit by maintaining investigative writings and files as their own personal
property to avoid the mandate of the TRO.

19

According to Duffin’s deposition testimony in this case, in 1981 Area 3 used “progress
files” for investigations that were followed from shift to shift. The progress files would include
notes and reports. The purpose of the progress file was to inform other detectives working on a
case what had been done and to give instructions on what needed to be done. Anyone working
on the file was supposed to document what he or she did on that day on the case.
F.

Plaintiff’s Post-Conviction Proceedings

In 1990, Plaintiff filed a pro se petition for post-conviction relief alleging that his
constitutional rights were violated because: (1) he was arrested without probable cause; (2) he
was subjected to a suggestive show-up and line-up identification; and (3) he was denied effective
assistance of appellate counsel due to appellate counsel’s failure to raise the first two issues. His
petition was dismissed.

The dismissal was affirmed by the Illinois Appellate Court, First

District. See People v. Hampton, 296 Ill. App. 3d 1065 (Ill. App. 1998).
In 1999, Plaintiff petitioned the federal district court for a writ of habeas corpus, arguing
that he received constitutionally ineffective assistance of counsel at trial and that his sentence
violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Judge Kennelly granted the writ on the
basis of ineffective assistance of trial counsel due to counsel’s failure to investigate and
interview exculpatory witnesses. See Hampton v. Leibach, 290 F. Supp. 2d 905, 922-23 (N.D.
Ill. 2001). The Seventh Circuit affirmed and remanded to the Cook County Circuit Court for a
new trial. See Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003).
The state initially indicated an intent to re-try Plaintiff on all counts. ASAs Maria
McCarthy (“McCarthy”) and Dan Groth (“Groth”) were in charge of the case. As they were
preparing to re-try Plaintiff, McCarthy and Groth met with Martha, Denise, Henrichs, and Hugo.
Martha could not remember the events at the Amphitheater back in 1981. Hugo had not

20

identified Plaintiff at that time. Henrichs’ story remained the same but McCarthy questioned the
strength of his testimony because he saw Plaintiff’s face for only four or five seconds on the
night of the attack and saw him for several minutes during the subsequent news coverage.
McCarthy also felt that there were some inconsistencies between the police report prepared from
Henrich’s interview and Henrich’s trial testimony.

According to a report that McCarthy

prepared, Denise was no longer sure that Plaintiff had physically done anything to her. Also
according to the report, Denise told McCarthy that when she was shown the photo array, Ptak
kept taking Plaintiff’s photo out and putting it back in the pile, asking questions to the effect of,
“does this look like the guy?” and “do you recognize him”? [124] at 3. According to the report,
McCarthy asked Denise if she felt pressured to make the identification of Plaintiff, and Denise
said yes, because she was young at the time and trusted the detectives. Further, according to the
report, Denise told ASA McCarthy that her line-up identification of Plaintiff was based on the
photograph and not on her own observation and that all of her subsequent identifications of
Plaintiff were based on the photograph.4
Ultimately, McCarthy and Groth decided not to re-try Plaintiff, concluding that the state
could not meet its burden of proof at trial. A nolle prosequi dismissal order was entered on
October 5, 2011.
G.

This Lawsuit

On July 18, 2012, Plaintiff filed his complaint in the instant lawsuit against the City,
Duffin, and Ptak. Plaintiff alleges that the City and the individual Defendants violated his due
process rights, in violation of 42 U.S.C. § 1983, by deliberately withholding exculpatory
evidence and fabricating false reports, false statements, and other evidence (Count I).
4

Defendants object on hearsay grounds to the introduction McCarthy’s report to the extent that it reflects
Denise’s statements to McCarthy. The Court addresses Defendants’ objections below in its discussion of
the deposition testimony that Denise provided in this lawsuit.

21

Specifically, Plaintiff alleges that Duffin and Ptak authored and signed police reports falsely
claiming that Powell had identified Plaintiff as one of the assailants and as a member of the
Third World Black Gangster Disciples. [1] ¶ 25. Plaintiff also alleges that Duffin and Ptak
manipulated and pressured Denise to identify Plaintiff as one of her attackers, by drawing her
attention to Plaintiff’s photograph, and falsely reported that Denise recognized Plaintiff based on
his facial features and clothing. [1] at ¶¶ 28, 31. Plaintiff alleges that this misconduct was a
result of the City’s deliberate indifference to its policies and widespread practices, including 1)
use of “street files”; 2) use of manipulated or fabricated evidence; and 3) the CPD’s “code of
silence.” Plaintiff also alleges claims against the individual Defendants for failure to intervene
(Count II), Section 1983 conspiracy (Count III), and state law claims for malicious prosecution
(Count IV), intentional infliction of emotional distress (Count V), and civil conspiracy (VI).
Finally, Plaintiff alleges claims against the City for respondeat superior (Count VII) and
indemnification (Count VIII).
A number of depositions were taken in this litigation.

The following deposition

testimony is identified by the parties as relevant to resolving Defendants’ motion for summary
judgment.
Plaintiff—Plaintiff testified that he snuck into the theater and did not enter through the
gates. During the concert, he saw a number of fights break out and, toward the end, saw a
commotion near the front by the stage that looked like a big fight. Then the lights were turned
on, security officers went into the crowd where there was a disturbance, and the concert ended.
Plaintiff and his friends left the Amphitheater and took the bus home. As they were leaving,
Plaintiff overheard someone say that two women and a man had been raped. On the bus ride

22

home, he heard Mallory brag that he “kicked the lady in her stuff.” He heard others bragging,
too, but did not recognize their voices.
Denise—Denise was asked about her viewing of photos with Ptak, during which she
made her first identification of Plaintiff. She was asked, “during that photo array . . . d[id]
Detective Ptak do anything to you during that process that leads you to believe today that you
were wrong when you picked out [Plaintiff]?” [142] at 19, p. 56:13-17. Denise responded, “Not
the way I think now, no,” but that she “[p]robably” had waivered in that belief when she spoke to
ASA McCarthy. Id., pp. 56:17-57:7.
Denise was also asked about the truthfulness and accuracy of testimony she provided at
Plaintiff’s suppression hearing.

At the suppression hearing, Denise answered “No” to the

question, “Prior to viewing any of the lineups, did any of the members of the [CPD] or the office
of the State’s Attorney cause you to pick anyone out by any suggestions, comments, critiques?”;
at the deposition she said this testimony was “true because that’s what I believed back then to be
true[, a]nd I still do.” [142] at 17, pp. 48:19-49:5. At the suppression hearing, Denise testified
that she identified Plaintiff from his photo “by [his] face” and because she “noticed [he] was
wearing the same coat[]”; at the deposition, she stated that this testimony was “what I believed
back then [a]nd now.” Id. at 18, p. 52:12-23.
Denise was further questioned about her conversation with ASA McCarthy and the
contents of ASA McCarthy’s report. When asked whether she was “truthful” when she “talked
to Maria McCarthy in 2011,” she answered “Yes, if—yes.” [142] at 20, p. 60:10-12. Denise
explained that when she told McCarthy that she felt “pressured during th[e] process of looking
through . . . photographs” with Ptak, she “didn’t feel pressured like he was telling me to pick
somebody out,” but “just felt pressured like I didn’t want to be in that situation” and did not

23

mean to convey to McCarthy “that Detective Ptak pressured [her] to make an identification of
[Plaintiff].” Id. at 19, pp. 55:14-56:3. Denise was asked if she “t[old] Maria McCarthy that
[Plaintiff’s] photograph was reinserted into the group of photographs several times” when she
viewed them with Ptak. Id. at 20, p.60:18-20. She responded, “You know, I believe I saw that
that was down there [in the memo], but I do not recall telling her that. My memory right now
does not recall telling her that.” Id., p. 60:21-24. When asked, “[a]nd do you have any
recollection right now one way or another of whether you viewed [Plaintiff’s] photograph more
than one time when you looked at that group of pictures,” she responded, “No, I don’t have a
recollection of that.” Id., p. 61:1-5. Likewise, she testified that she “d[id]n’t remember” if
Plaintiff’s photo was reinserted into the group of photos more than once by Ptak. Id., p. 61:1823. When asked if she told McCarthy that “Ptak said something like ‘How about this guy?’ or
“Do you recognize this one’?” when she got to Plaintiff’s photo in the array, Denise responded,
“If I did say that to her, than that should be true that I said that at that time, yes”; but Denise
further stated that she did not “remember that now.” Id. at 20-21, pp. 61:24-62:11. Finally,
when asked whether she told McCarthy that she “w[as] not sure if [Plaintiff] actually did
anything physically” to her, Denise said “[i]f it’s down there [in the memo], then I said it,” and
“that would be my memory today.” Id. at 21, p. 64:3-10.
Defendants object to Plaintiff’s use of McCarthy’s report or testimony to avoid summary
judgment. Defendants argue that the report and testimony concerning what Denise said are
hearsay and not admissible under any exceptions to the hearsay rule. Plaintiffs respond that
McCarthy’s report is admissible as substantive evidence on at least three grounds.
First, Plaintiff argues that the statements attributed to her by ASA McCarthy are not
hearsay as defined in Federal Rule of Evidence 801(c) because Denise acknowledged under oath

24

at her deposition that the statements were true.

If Denise denies at trial that her statements to

McCarthy were true, Plaintiff argues, then the deposition testimony admitting the truthfulness of
those statement is admissible as a prior inconsistent statement under Rule 801(d)(1)(A). Plaintiff
further argues that “[i]f Denise denies any recollection, her deposition testimony that the contents
of McCarthy’s report are true would be admissible as former testimony under Rule 804(b)(1).”
[142] at 4. Defendants deny that Plaintiff affirmed the accuracy of McCarthy’s report in her
deposition; instead, they assert that Denise merely testified that she had told McCarthy the truth
when the two spoke (during which time Denise was not under oath).
Both parties’ are somewhat inaccurate in their characterization of Denise’s deposition
testimony. Denise testified that she was truthful when she spoke to McCarthy, but she did not
affirm the accuracy of McCarthy’s entire report.

She also did not subscribe to or adopt

McCarthy’s statements about what Denise allegedly told her about Ptak reinserting Plaintiff’s
picture into the photo array or speaking to her during the photo array; instead, she testified that
she could not remember what she told McCarthy or what actually happened during the photo
array over thirty years earlier. But Denise did affirm certain discrete portions of McCarthy’s
report. In particular, in response to the question, “did you tell her, . . . you were not sure if he
[Plaintiff] actually did anything physically,” Denise testified, “If it’s down there [in the report],
then I said it. And that would be my memory today.” [142] at 21, p. 64:3-10. This small part of
the report qualifies as a prior statement of Denise, and is not hearsay under Rule 801(c), because
she testified that it is true. See United States v. Schoenborn, 4 F.3d 1424, 1427 (7th Cir. 1993)
(“A third party’s characterization of a witness’s statement does not constitute a prior statement of
that witness unless the witness has subscribed to that characterization.” (quotation marks and
citation omitted)). Certainly, this part of the report calls into question the basis for Denise’s

25

identification of Plaintiff as one of her assailants. But it does not attribute Denise’s uncertainty
to anything that Ptak (or Duffin) did, such as reinserting Plaintiff’s photo into the array.
Contrary to Plaintiff’s argument, the part of McCarthy’s report that claims that Denise
admitted that Ptak reinserted Plaintiff’s photo into the array and that this influenced her
identification would not be admissible at trial as a prior inconsistent statement under Rule
801(d)(1)(A), because Denise did not testify at her deposition that that part of McCarthy’s report
was true, and because Denise’s statement to McCarthy was not “given under penalty of perjury
at a trial, hearing, or other proceeding or in a deposition.” Fed. R. Evid. 801(d)(1)(A). And if
Denise testifies at trial that she did not remember telling McCarthy that Ptak reinserted Plaintiff’s
photo into the array, the contents of McCarthy’s report on this topic would not be admissible as
former testimony under Rule 804(b)(1), because Denise’s conversation with McCarthy was not
“given as a witness at a trial, hearing, or lawful deposition.” Fed. R. Evid. 804(b)(1)(A).
Plaintiff’s second argument in favor of admitting McCarthy’s report is that Denise’s
statements were declarations against her interest and therefore excepted from the hearsay rule
under Federal Rule of Evidence 804(b)(3). Plaintiff argues that Denise’s statement to McCarthy
about Ptak’s use of suggestive techniques and their influence on her exposed Denise to potential
perjury charges. Defendants respond that this concern is baseless, because Denise’s deposition
testimony does not reflect any concern that she gave perjured testimony in 1982 and ASA
McCarthy has never testified or implied that she has contemplated perjury charges against
Denise.
In cases where the declarant is unavailable, Rule 804(b)(3) excepts from the hearsay rule
“[a] statement that: (A) a reasonable person in the declarant’s position would have made only if
the person believed it to be true because, when made, it was so contrary to the declarant’s

26

proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim
against someone else or to expose the declarant to civil or criminal liability; and (B) is supported
by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the declarant to criminal liability.” Fed. R. Evid.
804(b)(3). “In assessing whether to admit evidence under Rule 804(b)(3), courts look to three
factors: (1) whether the declarant is ‘unavailable’ to testify at trial; (2) whether the statement at
issue was against the declarant’s penal or pecuniary interest; and (3) whether corroborating
circumstances exist that bolster the statement’s trustworthiness.” United States v. Hawkins, 2013
WL 11322824, at *2 (N.D. Ill. Nov. 6, 2013), aff’d, 803 F.3d 900 (7th Cir. 2015). Plaintiff, as
the proponent of the evidence, has the burden of showing that all three factors have been
satisfied. See United States v. Jackson, 540 F.3d 578, 588 (7th Cir. 2008).
In this case, the first factor is satisfied. A declarant is “unavailable” for purposes of this
rule if she “testifies to not remembering the subject matter.” Fed. R. Evid. 804(a)(3). Denise
testified at her deposition that she did not remember telling McCarthy that Ptak used suggestive
techniques during the photo array or what actually occurred at the photo array.
The second factor presents a closer call. The key question is whether Denise’s alleged
statements to McCarthy had a great tendency to expose her to civil or criminal liability, such that
a reasonable person in her position would have made the statements only if they believed them to
be true. Denise would be immune from civil liability for alleged perjured testimony provided
during Plaintiff’s criminal trial or in a deposition. See Manning v. Miller, 355 F.3d 1028, 1034
(7th Cir. 2004); Mayes v. City of Hammond, 442 F. Supp. 2d 587 (N.D. Ind. 2006) (a witness
who commits perjury is granted absolute immunity from civil liability for trial and deposition
testimony). But Denise hypothetically could have been exposed to criminal perjury charges after

27

giving her statement to McCarthy. Under Illinois law, perjury committed with a person “under
oath or affirmation . . . makes a false statement, material to the issue or point in question,
knowing the statement is false.” 720 ILCS 5/32-2(a). While Denise’s statement to McCarthy
was not made under oath, her testimony at Plaintiff’s criminal trial and suppression hearings was.
At the trial and suppression hearing, Denise positively identified Plaintiff as one of her
assailants. (She also testified at the suppression hearing that Ptak did not say anything to her
during the photo array.) This testimony was clearly material to a key issue in question at the
trial: who assaulted Denise? According to McCarthy’s report, Denise told McCarthy that she
was not sure that Plaintiff did anything to her physically, and also explained how she nonetheless
came to identify Plaintiff as one of her assailants—through Ptak’s repeated insertion of
Plaintiff’s photo into the array and questions during her viewing. Denise already admitted at her
deposition that McCarthy’s report was true to the extent that it said Denise was not sure Plaintiff
did anything to her physically; this admission calls into question how Denise was then able to
identify Plaintiff in a photo array. If Denise in fact told McCarthy that Ptak repeatedly inserted
Plaintiff’s photo into the array and talked to her during the array, and that this influenced her
identification, those statements suggest that Denise’s identification testimony at trial was
knowingly false and made to ensure that Plaintiff was convicted.5
The final question is whether there are corroborating circumstances that bolster the
trustworthiness of Denise’s alleged statements to McCarthy. The Seventh Circuit has identified
three non-exclusive “factors for district courts to consider when determining whether
5

To be sure, the likelihood that any prosecutor would seriously contemplate perjury charges against
Denise given the facts of this case appears extremely remote. There is no dispute that Denise was the
victim of a vicious attack in 1981. Any changes in her recollection of that traumatic event three decades
later might be attributable to a number of factors—i.e., confusion, mistake, lapse of memory, passage of
time, even PTSD—and the notion of bringing criminal charges on account of such discrepancies seems
far-fetched. There is no suggestion in the record that the prosecutors assigned to retry Plaintiff in this
case ever contemplated any such charges.

28

corroborating circumstances exist for Rule 804(b)(3) purposes: (1) the relationship between the
declarant and the exculpated party; (2) whether the statement was voluntary and given after
Miranda warnings; and (3) whether there is any evidence the statement was made to curry favor
with authorities.” United States v. Jackson, 540 F.3d 578, 589 (7th Cir. 2008). In this case,
Plaintiff was convicted of brutally assaulting Denise. According to her deposition testimony,
Denise continues to believe that Plaintiff was one of her attackers and was upset when she
learned that Plaintiff was granted post-conviction relief. She had no apparent incentive for
helping Plaintiff avoid re-prosecution by calling into question her earlier identification
testimony. Denise provided her statement to McCarthy voluntarily, and there is no evidence that
Denise made her statement to curry favor with the State. Neither party suggests, for instance,
that McCarthy was trying to get Denise to undermine the strength of the State’s case to avoid
having to re-try the case. Instead, the State initially elected to re-try Plaintiff on all charges, and
dropped the charges only after interviewing witnesses and determining that they did not have a
strong enough case. Another piece of corroborating evidence is Hugo’s deposition testimony
(discussed in more detail below) concerning his conversation with Denise shortly after she was
released from the hospital. Hugo’s testimony that Denise told him that Ptak kept reinserting
certain photos into the photo array and that she thought all of the subjects looked alike, [137] at
7, is consistent with McCarthy’s report. Hugo, like Denise, had no apparent incentive to help
Plaintiff avoid re-prosecution.
For these reasons, the Court concludes that Plaintiff has met his burden of showing that
Denise’s statements to McCarthy may be admissible at trial under Rule 804(b)(3), and therefore
Defendants cannot show that McCarthy’s report and her testimony concerning the same would
be inadmissible for any purpose during the trial. The Court will consider McCarthy’s report for

29

purposes of summary judgment. This decision is without prejudice to the reconsideration of the
issue prior to trial based on any motions in limine that the parties may file.
Plaintiff advances one more hearsay exception in support of admitting McCarthy’s
statement—Rule 807’s residual hearsay clause. “The purpose of Rule 807 is to make sure that
reliable, material hearsay evidence is admitted, regardless of whether it fits neatly into one of the
exceptions enumerated in the Rules of Evidence.” United States v. Moore, 824 F.3d 620, 624
(7th Cir. 2016). Under Rule 807, a “hearsay statement is not excluded by the rule against
hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or
804” if:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of
justice.
Fed. R. Evid. 807(a). A statement is admissible under the residual hearsay rule “only if, before
the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer
the statement and its particulars, . . . so that the party has a fair opportunity to meet it.” Fed. R.
Evid. 807(b). The person who provided the statement must be unavailable in order for the
residual hearsay exception to apply. Moore, 824 F.3d at 623. In general, the Seventh Circuit has
“warned against the liberal admission of evidence under Rule 807,” lest this exception become
“‘the exception that swallows the hearsay rule.’” Id. at 624 (quoting Akrabawi v. Carnes Co.,
152 F.3d 688, 697 (7th Cir. 1998)).
Defendants argue that Rule 807 does not apply to the statements ascribed to Denise in
McCarthy’s report, because those statements lack sufficient guarantees of trustworthiness.
(Defendants do not contest that the other requirements of Rule 807 are met.) Defendants assert

30

that Plaintiff cannot overcome the presumption that hearsay statements are unreliable because
Denise’s statements were made in relation to a traumatic events that occurred over thirty years
ago; they were not corroborated by her under oath at her deposition or in the criminal
proceeding; they were not recorded; and Denise testified at her deposition that she felt pressured
by McCarthy and frightened when she heard of Plaintiff’s release. See [147] at 15.
The Seventh Circuit has identified a number of nonexclusive, nonexhaustive factors for
the district courts to consider when evaluating the trustworthiness of a hearsay statement under
Rule 807. See Moore, 824 F.3d at 623. These factors include “(1) the probable motivation of
the declarant in making the statement; (2) the circumstances under which it was made; and (3)
the knowledge and qualifications of the declarant.” United States v. Hall, 165 F.3d 1095, 1110
(7th Cir. 1999) (quoting Cook v. Hoppin, 783 F.2d 684, 690–91 (7th Cir.1986) (internal
quotation marks omitted)). They also include “the character of the witness for truthfulness and
honesty, and the availability of evidence on the issue; whether the testimony was given
voluntarily, under oath, subject to cross-examination and a penalty for perjury; the witness’
relationship with both the defendant and the government and his motivation to testify . . . ; the
extent to which the witness’ testimony reflects his personal knowledge; whether the witness ever
recanted his testimony; the existence of corroborating evidence; and, the reasons for the witness’
unavailability.” Moore, 824 F.3d at 622–23.
In this case, Denise would be “unavailable” to the extent that she denies (as she did at her
deposition) having any memory of whether Ptak used suggestive techniques during the photo
array or what she told McCarthy about that topic. Briefly considering the Rule 807 factors that
Defendants do not dispute, evidence of Ptak’s alleged use of suggestive techniques with Denise
is evidence of a material fact and goes to the accuracy of Denise’s identification of Plaintiff as

31

her attacker. The report is more probative than any other evidence that Plaintiff could obtain
through reasonable efforts, because it is the only evidence specifically addressing whether Ptak
re-inserted photos into the array that he showed Denise. The transcripts from the criminal trial
and suppression hearing do not address this exact issue, and Denise denied at her more recent
deposition having any knowledge of the issue. It may also serve the interests of justice to admit
the report and to provide the jury with the full scope of relevant evidence on the issues that bear
on Plaintiff’s due process claims, which stem from his alleged wrongful conviction and decadeslong incarceration.
The Court now turns to circumstantial trustworthiness of the McCarthy report under Rule
807. Denise’s probable motivation does not appear to have been to help Plaintiff avoid reprosecution. It seems more likely that her motivation was to truthfully answer McCarthy’s
questions. Defendants assert that Denise felt pressured by McCarthy at her deposition and
frightened when she heard of Plaintiff’s release from prison. But Defendants do not explain how
this would motivate Denise to say that Ptak used suggestive techniques, if that was not really
Denise’s memory. Looking to other factors identified by the Seventh Circuit, Denise is the most
knowledgeable person about what happened at the photo array with Ptak over thirty years ago
(Ptak is now deceased), although the age of that incident may call into question the accuracy of
Denise’s memory. Denise gave her statement to McCarthy voluntarily, but was not under oath.
At her subsequent deposition, she did not recant what she allegedly told McCarthy, but instead
denied having any current memory of the discussion with McCarthy or the underlying photo
identification procedure. Hugo’s deposition testimony that Denise told him in 1982 that all the
photos looked the same and that Ptak kept reinserting Plaintiff’s photo into the array is consistent
with and corroborates McCarthy’s report (though Hugo’s deposition testimony is subject to its

32

own hearsay problems, which are discussed below). Considering the record as a whole, the
Court concludes that it contains circumstantial guarantees of the trustworthiness of McCarthy’s
statement documenting what Denise told her about Ptak’s use of suggestive techniques and their
effect on her identifications. Therefore, the Court will not exclude these parts of McCarthy’s
report from its summary judgment analysis. Again, the Court’s decision is without prejudice to
its ability to reconsider the issue prior to trial when the parties brief motions in limine.
Hugo—Hugo testified that Denise told him shortly after she was released from the
hospital that she was not sure about her witness identifications and that “they [the men in the
photos] all look alike.” [137] at 7. Defendants object on hearsay grounds to Plaintiff’s use of
Hugo’s testimony concerning his conversations with Denise. In response, Plaintiff argues that
Denise’s January 1982 statements to Hugo will be admissible at trial as a prior consistent
statement.

Specifically, Plaintiff argues that Denise will first testify consistent with her

deposition that the statements in McCarthy’s memo regarding Ptak’s actions during the photo
array and their influence on her were true. Second, Defendants will cross-examine Denise with
her criminal court testimony that Ptak was silent during the photo array and did not influence her
decision. Third, Plaintiff will then bring in Denise’s statements to Hugo either 1) to rehabilitate
her credibility under Rule 801(d)(1)(B)(ii), or 2) to rebut an express or implied charge of recent
fabrication or improper influence or motive under Rule 801. Plaintiff’s argument fails at the
outset because at her deposition, Denise did not affirm the accuracy of McCarthy’s memo to the
extent that it recorded that Denise said Ptak used suggestive techniques during the photo array.
Plaintiff also argues that Hugo’s testimony concerning what Denise told him is
admissible under Rule 804(b)(3) as a statement against interest and Rule 807, the residual
hearsay clause. But Defendants have not demonstrated that Denise is unavailable for purposes of

33

Hugo’s statement. Denise was not questioned about Hugo’s statement at her deposition and
there is no evidence that she cannot remember what she told Hugo. Also, as to Rule 804(b)(3), it
is unclear how Denise’s statement to Hugo, which was made immediately after she was released
from the hospital following the attack, could have possibly been against her interest in the sense
of exposing her to potential civil or criminal liability.
Turning back to Hugo’s deposition, Hugo testified that he viewed a photo array before
seeing the line-up. According to Hugo, while he was viewing the photo arrays, Duffin and Ptak
kept reinserting certain photos into the pile and referring back to them. Hugo further testified
that during the line-up, the detectives kept coming back to certain numbers and asking questions
like, “are you sure it wasn’t three”? [137] at 8. Defendants object to Plaintiff’s use of this
testimony based on Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1169
(7th Cir. 1996), and Adelman-Tremblay v. Jewel Companies, Inc., 859 F.2d 517 (7th Cir. 1988).
In Bank of Illinois, the Seventh Circuit held that a party cannot avoid summary judgment by
creating a “sham” issue of fact by using later testimony from the party that directly contradicts
the party’s unambiguous prior statement made under oath. In Adelman-Tremblay, the Seventh
Circuit extended the “sham” affidavit rule beyond parties to “the testimony and affidavit of the
plaintiff’s sole expert witness,” reasoning that “[t]he purpose of summary judgment motions—to
weed out unfounded claims, specious denials, and sham defenses—is served by a rule that
prevents a party from creating issues of credibility by allowing one of its witnesses to contradict
his own prior testimony.” 859 F.2d at 521.
Defendants argue that Hugo’s testimony that he viewed the photo array before viewing
the line-up is contradicted by his earlier testimony that he viewed the line-up before being shown
photos, and thus barred by the “sham affidavit” rule. [136-1] at 105-108, 11. Defendants also

34

argue that Hugo’s testimony that Duffin and Ptak kept reinserting certain photos into the pile and
referring back to them is contradicted by his earlier testimony that Duffin and Ptak simply
handed him the stack of photos, he looked through them, and he handed one to the detectives.
[136-1] at 109-110. They further argue that Hugo’s testimony that the detectives asked him
questions during the line-up is contradicted by his earlier testimony that the officers did not tell
him anything when he viewed the line-up. [136-1] at 116.
Defendants also object to the admission of Hugo’s deposition testimony that he told
Duffin and Ptak during his interview that toward the end of the beating, a woman was kicking
him in the back, but that he “lost focus of that . . . when they started showing as all of the
pictures of all of these guys, and [he] just focused on the guys.” [137] at 14. Defendants argue
that this testimony is directly contradicted by the following testimony Hugo provided in the
criminal proceeding: “Q: Could you tell us how many people were around you? A: There were a
whole bunch of people. Q: Male or female? A: All males.” [122-6] at 99-100. Hugo also
testified that the person kicking him in the back was a “guy with a white coat,” not a woman.
[122-6] at 103.
The Court declines to apply the “sham affidavit” rule to bar Plaintiff’s use of Hugo’s
deposition testimony in his response to the motion for summary judgment. Although the sham
affidavit rule has been applied to parties and their own non-party witnesses, Hugo is not “one of
[Plaintiff’s] witnesses.” Adelman-Tremblay, 859 F.2d at 521. Defendants have not identified,
nor is the Court aware of, any cases in which the Seventh Circuit has applied the sham affidavit
rule to disinterested witnesses, or to witnesses who are (or at least at one time were) aligned with
the party who is seeking to take advantage of the rule. The Court agrees with the court’s
observation in Newsome v. James, 2000 WL 528475, at *2 (N.D. Ill. Apr. 26, 2000), that the

35

concerns underlying the rule—”that parties or witnesses aligned with them can defeat summary
judgment on meritless claims by recanting prior sworn statements—is absent in the case of
disinterested witnesses.” Instead, “[v]ariations in the testimony of disinterested witnesses . . .
raise questions about credibility” that are properly “answered by a jury, not by the Court.” Id.
(citing Bank of Illinois, 75 F.3d at 1170). In this case, Defendants do not argue that Hugo has
any interest in Plaintiff prevailing in this suit, such that he might have had a motive to lie in his
deposition to help Plaintiff defeat summary judgment. To the contrary, Hugo was himself a
victim of the Amphitheater attacks and at the criminal trial he testified as a witness for the
Government.
The Court also finds persuasive Judge Kennelly’s reasoning in Rodriguez v. Woodall,
2004 WL 2583883 (N.D. Ill. Nov. 12, 2004), that it would be inappropriate to apply the sham
affidavit rule to a Brady claim to “preclude the Court, on summary judgment, or a jury, at trial,
from considering a prosecution witness’s testimony that he was coerced or convinced by the
police to lie.” Id. at *4. Application of the rule in such a case could risk “immuniz[ing] from
liability, or even scrutiny, dishonest law enforcement officers who coerce or otherwise fabricate
evidence to frame an accused.” Id. Given this risk, it is not surprising that Defendants have not
cited, and the Court has not found, any cases in which the sham affidavit rule has been applied to
bar a witness who testified in a criminal trial from later recanting his testimony. By contrast,
Plaintiff cites to a number of cases in which Brady claims have been supported by statements
from witnesses recanting their prior testimony. See [157] at 1-2; see also, e.g., Whitlock v.
Brueggemann, 682 F.3d 567, 575-76 (7th Cir. 2012) (recognizing that, once admitted, statements
of witnesses recanting their prior testimony that falsely implicated plaintiff in murder would
preclude summary judgment for police defendants on plaintiff’s Brady claim); Taylor v. City of

36

Chicago, 80 F. Supp. 3d 817, 821–22 (N.D. Ill. 2015) (denying motion to dismiss due process
and Brady claims brought by plaintiff who was wrongfully convicted of murder and related
crimes, where complaint alleged, among other things, that the defendant police officers framed
plaintiff for the murder by coercing a witness to provide false incriminating testimony through
threats and promises of leniency on unrelated charges and that the witness “later recant[ed] this
statement”). For these reasons, the Court will consider Hugo’s deposition testimony (except the
portion in which he recounts what Denise allegedly told him after viewing the lineup) in ruling
on Defendants’ motion for summary judgment.
Martha—Martha testified that she never provided detectives with a facial, physical, or
clothing description of her attackers. [137] at 13.
Powell—Powell testified that he never told police that Plaintiff was involved in the
attacks at the Amphitheater. According to Powell, he “associated Patrick Hampton as somebody
who I know who was at the concert who may or may not know Ricky Knight,” [124-12] at 9, but
that “all [he] said [to detectives] was Ricky Knight doing something,” id. at 10. He testified:
“From the people I described were the only people I knew from my building. If you notice,
everybody I knew was from my building. They took that and turned it around to be Ricky
Knight’s associates. How they did that, I don’t know. But these were only supposed to be
people that I identified whose names that I knew.” Id. at 11.
Defendants argue that that Court should apply the sham affidavit rule to bar Plaintiff from
using Powell’s testimony to defeat summary judgment. See id. at 18. Although Powell’s
deposition testimony does contradict his testimony at the criminal trial that Plaintiff was one of
the men who Powell saw going down the aisle at the Amphitheater with Ricky Knight making
gang signs and chanting gang slogans, the Court declines to apply the “sham affidavit” rule to

37

Powell’s deposition testimony. Powell, like Hugo, is a disinterested witness with no apparent
incentive to lie to help Plaintiff defeat summary judgment. Indeed, Powell made clear at his
deposition that he did not want to be involved in this lawsuit and wanted to “move on with [his]
life.” [157] at 4.
Powell further testified that he told the detectives the names of friends that he was with at
the concert: Clinton Williams, Farod Poole, Lentin McGee, Freddie Fizer, and Kevin Powell (his
older brother). These names are not contained in any CPD reports and Poole and Fizer were
never questioned about the events at the Amphitheater.
Duffin—Duffin testified that as a matter of practice detectives would not want to show
photos of the persons in custody to the victims or witness before the line-ups because it would
influence their identification and “taint the lineup.” [137] at 9-10. Duffin also testified that there
can be “existential circumstances” that would permit the use of photo of a person in custody
before a line up, such as when a victim is in the hospital and unable to view the line-up. [137] at
10. He further testified he understood in 1981 his duty to include exculpatory evidence in case
reports.
Currently before the Court is Defendants’ motion for summary judgment.
II.

Summary Judgment Standard
Summary judgment is proper where “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). A genuine issue of

38

material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party
seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court “must construe
all facts and draw all reasonable inferences in the light most favorable to the nonmoving party.”
Majors v. Gen. Elec. Co., 714 F.3d 527, 532-33 (7th Cir. 2013) (citation omitted).
To avoid summary judgment, the nonmoving party must go beyond the pleadings and
“set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S.
at 250. Summary judgment is proper if the nonmoving party “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 646 (7th Cir.
2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the “mere existence
of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477
U.S. at 252.
III.

Analysis
A.

Claims Against Duffin
1.

Due Process
a.

Withholding of Exculpatory Evidence

To demonstrate a potential Brady violation based on the alleged withholding of potential
exculpatory or impeachment evidence, “a defendant must point to specific evidence that was (1)
favorable to the defense; (2) suppressed by the government; and (3) ‘material to an issue at

39

trial.’” United States v. Lawson, 810 F.3d 1032, 1042 (7th Cir. 2016) (quoting United States v.
Shields, 789 F.3d 733, 746 (7th Cir. 2015)). Under the first prong, “[e]vidence is favorable to
the defense when it is either exculpatory or could be used for purposes of impeachment.”
Lawson, 810 F.3d at 1042 (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). Under the
second prong, “[e]vidence is suppressed when ‘the prosecution fail[s] to disclose the evidence in
time for the defendant to make use of it’ and ‘the evidence was not otherwise available to the
defendant through the exercise of reasonable diligence.’” Lawson, 810 F.3d at 1043 (quoting
Shields, 789 F.3d at 746–47). “Although the Government has an affirmative duty to learn of and
to disclose any favorable evidence, the defendant bears the burden of establishing a Brady
violation by offering more than mere speculation or unsupported assertions that the Government
suppressed evidence.” Shields, 789 F.3d at 747 (citing United States v. Jumah, 599 F.3d 799,
808–09 (7th Cir. 2010)). Under the third prong, for evidence to be considered material, “there
must be ‘a reasonable probability that the suppressed evidence would have produced a different
verdict.’” United States v. Morales, 746 F.3d 310, 314 (7th Cir. 2014) (quoting Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)).
Plaintiff argues that Duffin violated his right to due process by withholding the following
exculpatory or impeachment evidence from Plaintiff during the criminal trial: 1) notes from the
detectives’ interview with Powell; 2) notes from the detectives’ initial interview with Martha; 3)
Hugo’s alleged statement to Duffin and Ptak that a female perpetrator kicked him in the back; 4)
statements of the woman from Cicero and of witnesses who were too scared to intervene in the
Amphitheater attacks, as reported in the Sun Times; 5) the “street file” for the investigation, as a
whole; and 6) the unduly suggestive techniques that Duffin and Ptak used unsuccessfully with
Hugo and that Ptak used successfully with Denise to obtain an identification of Plaintiff. The

40

Court will consider each item of evidence in turn, and also will consider the cumulative effect of
the alleged withholding of that evidence to determine whether Plaintiff’s due process claim
survives summary judgment. See Kyles, 514 U.S. at 421 (“the state’s obligation under Brady . . .
to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence
suppressed by the government”).
i.

Notes from Powell’s interview

There is evidence that the notes from Powell’s interview with Duffin and Ptak were
suppressed, namely Ptak’s admission at the suppression hearing in the criminal trial that he
watched Duffin tear the notes in half and throw them away. There is also evidence that these
notes may have contained information that was favorable to the defense. Powell testified at his
deposition in this case that he told Duffin and Ptak only that he saw Plaintiff at the concert and
that Plaintiff may have known Knight, but not that Plaintiff was one of Knight’s associates or a
participant in the attacks.
However, to the extent that the official report documenting Powell’s statement to police
was inaccurate—in particular the statement that Powell identified Plaintiff as an “offender” who
was part of the group of “people [Powell] knew” who he saw participate in the Amphitheater
attack—this was disclosed and fully explored during trial through Rodgon’s “exercise of
reasonable diligence.” Lawson, 810 F.3d at 1043; cf. Holland v. City of Chicago, 643 F.3d 248,
256 (7th Cir. 2011) (“A defendant in a criminal case that actually goes to trial has the
‘responsibility to probe the witnesses and investigate their versions of the relevant events.’”
(quoting Carvajal v. Dominguez, 542 F.3d 561, 567 (7th Cir. 2008))). Specifically, the transcript
from the criminal trial shows that Rodgon elicited testimony from Powell acknowledging that he
did not see Plaintiff participate in the physical attack of the victims or hear Plaintiff make any

41

admissions regarding the attack on the bus ride home. See [136] at 10-11. Judge Strayhorn
nonetheless allowed the testimony to go in against Plaintiff on the theory of accountability
because “[t]his is a group that [Powell] has identified the three Defendants as being a part of.”
[136] at 11. Plaintiff does not challenge the correctness of this ruling or the use of the jury
instruction on accountability, which provides that “[a] person is legally responsible for the
conduct of another person when, either before or during the commission of an offense, and with
the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids,
abets, agrees to aid, or attempts to aid the other person in the planning or commission of the
offense.” [125] at 25. The fact that the detectives’ notes from their interview with Plaintiff were
destroyed was also exposed at trial during the cross-examination of Duffin.
Indeed, Plaintiff acknowledges that “Defendants’ tactics and misconduct with regard to
Powell’s identification were exposed, to a certain extent, during the trial” and therefore “standing
alone, the fabricated Powell report would not likely constitute an actionable due process claim.”
[127-1] at 27. Plaintiff argues, nonetheless, that this case is exceptional because Powell’s
identification gave the detectives justification to put Plaintiff in the photo array and line-ups,
which witnesses used to implicate him. But Plaintiff has offered no evidence that the detectives’
alleged “fabrications” were necessary for the detectives to investigate Plaintiff. In his more
recent deposition, Powell acknowledged that he told the detectives that he saw Plaintiff at the
event and he may be an associate of Knight, who Powell saw attacking the victims. This alone
would lead the detectives to investigate Plaintiff further.
ii.

Notes from the initial interview with Martha

Plaintiff has not presented any evidence that there were notes taken during the detectives’
initial interview with Martha or that such notes might contain exculpatory or impeachment

42

evidence that was not already included in the evidence that the Government turned over to
Plaintiff’s criminal attorney. The evidence suggests the opposite. At Plaintiff’s criminal trial
and in her deposition, Martha denied giving the detectives any physical description of her
attackers, other than that they were black males, before she viewed Plaintiff’s line-up. Plaintiff
cannot avoid summary judgment on his due process claim based on “mere speculation [and]
unsupported assertions” that exculpatory or impeachment evidence was suppressed. Shields, 789
F.3d at 747; see also Jumah, 599 F.3d at 811 (“unsupported assertions that the Government has
suppressed evidence are insufficient to make out a Brady or Giglio violation”).
iii.

Hugo’s alleged
perpetrator

statement

regarding

a

female

Plaintiff argues based on Hugo’s 2013 deposition testimony that Duffin failed to disclose
Hugo’s alleged statement to Duffin and Ptak that a female perpetrator repeatedly kicked him in
the back during the Amphitheater attack. The Court concludes that the impeachment value of
Hugo’s alleged statement is too speculative to support a Brady violation. Plaintiff argues that he
could have used this evidence to impeach Denise’s testimony concerning the identification of her
attackers. But Hugo testified only that the female perpetrator was kicking him in the back during
the attack, not that she was kicking or otherwise attacking Denise. Further, the undisputed
evidence is that Denise was on the ground being attacked and sexually assaulted by several men
while this was occurring. It is not plausible to expect her to have observed the gender of one of
Hugo’s assailants in the midst of her own violent attack.
iv.

Statements of the woman from Cicero and witnesses
who were too scared to intervene

Plaintiff argues, based on information published in the Chicago Sun Times shortly after
the Amphitheater attacks, that Duffin must have obtained and was required to disclose statements

43

from a woman in Cicero who filed a complaint about being robbed at the Amphitheater and from
individuals who reportedly were witnesses to the attack but too scared to intervene. Plaintiff
argues that “[t]he statements by these witnesses, any identifications that they made—or, more
importantly for [Plaintiff], did not make—were Brady evidence that should have been turned
over.”

[127-1] at 41.

However, there is no testimony or evidence supporting Plaintiff’s

speculation that a statement by the woman from Cicero was given in the investigation or put in a
street file, or that statements were even taken from other concertgoers mentioned in the articles.
Moreover, beyond arguing that those witnesses may not have identified Plaintiff, Plaintiff
does not explain how this would demonstrate that he was not involved in the attack. There were
hundreds, if not thousands, of people at the Amphitheater that night and dozens involved in the
melee near the front of the stage. The Seventh Circuit has made clear that “a Brady violation
does not arise due to nothing more than a possibility that the undisclosed item might have helped
the defense,” and that is all that Plaintiff has shown here. United States v. Hamilton, 107 F.3d
499, 510 (7th Cir. 1997); see also Holland, 643 F.3d at 256 (“The mere possibility that an item of
evidence may have helped a defendant during his trial on criminal charges does not establish
materiality.”).
In addition, the existence of these other potential witnesses was public knowledge due to
the Sun Times reports, and Plaintiff’s counsel could through the exercise of reasonable diligence
have sought discovery about these witnesses or impeached the detectives’ investigation at trial
on the basis that they did not explore potential leads with these witnesses. Lawson, 810 F.3d at
1043. While Plaintiff argues that Rodgon was diligent by asking for the “street files” for the
case, they fail to offer any evidence that, once Rodgon was informed that there was no street file,
he took any further steps to try to identify such witnesses, such as serving specific discovery on

44

the government or making an independent investigation. Indeed, the district court and Seventh
Circuit both found in Plaintiff’s habeas case that Rodgon provided ineffective assistance of
counsel based on his failure to investigate and interview exculpatory witnesses. See Hampton
290 F. Supp. 2d 905, 922-23, aff’d, 347 F.3d 219.
v.

The “street file” generally

Plaintiff argues that “the ‘street file,’ as a whole, contained exculpatory and impeachment
evidence,” including: “eyewitnesses who were or ‘would have been’ interviewed; alibi witnesses
who would have been interviewed; named suspects in the attacks who would [have] been
investigated; and leads that Detective Duffin testified would have been followed.” [127-1] at 42.
Plaintiff posits that if he had been provided access to the street file, it would have either: (1)
“depict[ed] the kind of ‘slovenly’ investigation that is ample grounds for impeachment is a
criminal case,” or (2) revealed that “pertinent” information was destroyed by the detectives.
[127-1].
Neither theory is persuasive. Plaintiff’s counsel had an opportunity to explore the first
theory during trial by cross-examining Duffin and Ptak about why their official reports contained
no mention of interviewing alibi witnesses or following particular leads. As to the second
theory, Plaintiff does not explain how any of these allegedly “undisclosed item[s] might have
helped the defense,” and therefore cannot survive summary judgment on his Brady claim.
Hamilton, 107 F.3d at 510.
vi.

Evidence of suggestive witness identification procedures

Plaintiff argues that Duffin violated his due process rights by withholding evidence
concerning his and Ptak’s alleged use of unduly suggestive identification techniques with Denise
and Hugo. Plaintiff points to ASA McCarthy’s memoranda detailing her interview with Denise

45

as evidence that Ptak used suggestive techniques to obtain Denise’s initial identification of
Plaintiff. In her deposition, ASA McCarthy testified that Denise told her that Ptak “ke[pt] taking
[Plaintiff’s] photo out and putting it back in and asking words to the effect of do you recognize
him? Does this look like him? That type of thing.” [124-12] at 26. McCarthy also testified that
Denise said “Yes” when asked if “she felt pressured to identify” Plaintiff. Id. at 26. McCarthy
further testified that Denise told her that her identification of Plaintiff in the subsequent line-up
was based on her identification from the photo array, rather than from her own observation.” Id.
Plaintiff also relies on Hugo’s deposition testimony. Hugo testified that he viewed a
photo array with Duffin and Ptak before seeing the line-up of suspects. See [124-11] at 16.
According to Hugo, when he viewed the photos, Duffin and Ptak kept reinserting certain photos
into the pile and referring back to them. Also according to Hugo, during the line-up the
detectives kept coming back to certain numbers and asking questions like, “are you sure it wasn’t
three”? [137] at 8.
Assuming that Denise told McCarthy what the report claims she said, that evidence
clearly would have been favorable to the defense in the criminal trial, satisfying the first Brady
prong. The case against Plaintiff was solely based on identifications, not physical evidence, and
as a victim, Denise’s identification was likely given great weight by the jury. Hugo’s testimony
about Ptak and Duffin’s alleged use of suggestive techniques with him is of less direct relevance
and importance to the defense, because Hugo ultimately did not identify Plaintiff as one of his or
Denise’s attackers. However, evidence of the use of suggestive techniques with Hugo might
have been “used for purposes of impeachment” more generally to call into question the
detectives’ techniques for making photo identifications. Lawson, 810 F.3d at 1042. Such
evidence may also have been used by defense counsel to probe more deeply into Denise’s

46

identification of Plaintiff and potentially obtain useful admissions.

Therefore the Court

concludes that, if disclosed, the “cumulative effect” of evidence that the detectives used the same
suggestive technique with Denise and Hugo would have been favorable to the defense. Kyles,
514 U.S. at 421.
Under the second Brady prong, there is no question that evidence of the Detectives’
alleged use of suggestive techniques was suppressed in the criminal prosecution.

The

Government did not disclose in any notes, documents, or testimony that Ptak or Duffin used
suggestive techniques with Denise or Hugo in order to obtain an identification of Plaintiff.
Further, the Government has not demonstrated that the Detectives’ alleged use of suggestive
techniques with Denise or Hugo was available to Plaintiff through the exercise of reasonable
diligence or exposed during trial. Lawson, 810 F.3d at 1043. Although Plaintiff’s criminal
attorney moved to suppress the identifications and he and the other criminal defendants’
attorneys questioned how the victims arrived at their identifications, if the victims were not fully
truthful in their testimony, the Court cannot say that this evidence was reasonably available.
There is some evidence in the record suggesting that Denise and Hugo may not have been
fully truthful and forthcoming in their testimony during the criminal prosecution. Denise’s
testimony at the suppression hearing might have led a listener to believe that Ptak simply handed
her photos to look through, which she did until she identified Plaintiff and another suspect,
without the listener comprehending that Ptak re-inserted the same photos back into the stack
(which McCarthy reported Denise as saying). In response to questioning from one of Plaintiff’s
co-defendant’s attorneys, Brownfield, Denise testified that Ptak “said to look at the pictures and
see if I recognized anybody,” [136-1] at 10, and that she looked at the photos “by hand,” “one at
a time” (rather than looking at all of the photos spread out on the table), id. at 12. Similarly,

47

Hugo testified at the suppression hearing that Duffin and Ptak handed him “[a] stack” of about
twenty photographs to look through, that he went through them, and that he picked out Knight’s
photo and handed it to the officers. Id. at 108-110. Hugo only testified at his later deposition
that Duffin and Ptak kept reinserting Plaintiff’s photo into the stack and directing him to it. In
addition, Denise testified at the suppression hearing (contrary to what she allegedly told
McCarthy) that Ptak did not say anything to her during her viewing of the photo array.
The transcript of the suppression hearing also suggests that Judge Strayhorn limited
Rodgon’s attempts to further explore with Denise how the photo array was conducted. For
instance, Judge Strayhorn sustained the government’s objection to Rodgon’s question, “How
many pictures did you go through before you picked out the first person?” [136-1] at 23. More
generally, Judge Strayhorn told Rodgon, “I’m not going to let you repeat the same thing Mr.
Brownfield went over. She [Denise] said when Brownfield asked her the question, ‘He gave me
the pictures and asked me to look through them and see if I could identify anyone in them.’” Id.
at 22.
Under these circumstances, the Court is unable to conclude that Rodgon could have,
through the exercise of reasonable diligence, exposed Duffin or Ptak’s alleged use of suggestive
witness identification techniques with Denise or Hugo. Lawson, 810 F.3d at 1043. The Seventh
Circuit “regard[s] as untenable a broad rule that any information possessed by a defense witness
must be considered available to the defense for Brady purposes.” Boss v. Pierce, 263 F.3d 734,
740 (7th Cir. 2001). According to the court, “it is simply not true that a reasonably diligent
defense counsel will always be able to extract all the favorable evidence a defense witness
possesses.” Id. For instance, “a defense witness may be uncooperative or reluctant,” or “the
defense witness may have forgotten or inadvertently omitted some important piece of evidence

48

previously related to the prosecution or law enforcement.” Id. These concerns have even more
weight in a case, like this one, involving information possessed by a prosecution witness. The
Court finds instructive the following observations from Judge Kennelly in Jimenez v. City of
Chicago, 830 F. Supp. 2d 432, 444–45 (N.D. Ill. 2011):
Defendants’ argument seems to assume the existence of a Perry Mason-like world
in which prosecution witnesses readily give up impeaching information when
interviewed or questioned by defense counsel. Real life does not work that way,
or at least the governing legal rule cannot realistically be premised on the
assumption that it always works that way. Witnesses coerced or persuaded to
testify in a particular way often tend to identify with, and to ally themselves with,
their persuaders. A legal rule that assumes that such a witness will readily
describe the circumstances of the coercion or persuasion simply because the other
side’s lawyer asks the witness the right question would defy common sense.
Defendants contend that this case is more like Patrick v. City of Chicago, 103 F. Supp. 3d
907, 915 (N.D. Ill. 2015), in which the court dismissed a Brady claim in part based on a finding
that the plaintiff could with reasonable diligence have obtained exculpatory testimony from his
former co-defendants, since he knew that he and his co-defendants were innocent and the
plaintiff “d[id] not allege that his co-defendants . . . were impossible for his defense counsel to
interview or would have lied had Plaintiff questioned them.” But this case is not like Patrick,
because the evidence that was allegedly withheld was in the minds of the prosecution witnesses,
not Plaintiff’s former co-defendants, and there is some evidence that the prosecution witnesses
provided misleading information about the detectives’ use of suggestive identification techniques
with them. Therefore, drawing all “reasonable inferences in [Plaintiff’s] favor as required on
summary judgment, a reasonable jury could find that [Rodgon] could not have obtained the
circumstances of [Denise and Hugo’s witness identifications] through reasonable diligence.”
Jimenez, 830 F. Supp. 2d at 445.

49

The Court now turns to the third Brady prong. Viewing the evidence and drawing all
inferences in favor of Plaintiff, a reasonable jury could conclude that the failure to disclose
Ptak’s and Duffin’s alleged use of suggestive techniques was material. The key identifications
of Plaintiff were made by Denise, Martha, and Henrichs. Plaintiff has raised a number of
concerns about the accuracy of Martha’s and Henrichs’ identifications. When Martha viewed the
line-up, she identified Plaintiff as one of the men who pulled her clothing off; only later at trial
did she identify Plaintiff as the man who tried to put his hand in her vagina. Martha also blacked
out for some time during the attack and told medical personnel following the attack that she did
not know if she had been sexually assaulted. Martha also did not provide any testimony
concerning what Plaintiff did to Denise or Hugo. Henrichs came forward as a witness only after
police identified and contacted him, even though he was a security guard and Cook County
Sheriff’s Deputy. By the time Henrichs came forward, he had already seen Plaintiff and three of
the other suspects on television and knew that they had been arrested and were in custody. One
inference that could be drawn from these facts is that Henrichs crafted his testimony to fit with
the narrative already being developed that Plaintiff was involved in the attacks. Given the
arguable weakness of these identifications, a reasonable jury might find that the criminal jury
would have acquitted Plaintiff if it had known about Ptak’s use of suggestive identification
techniques to obtain Denise’s identification and Ptak’s and Duffin’s unsuccessful use of the same
techniques with Hugo. Morales, 746 F.3d at 314.
b.

Use of Allegedly Unduly Suggestive Identification Techniques

“The Constitution does not require that police lineups, photo arrays, and witness
interviews meet a particular standard of quality.” Alexander v. City of S. Bend, 433 F.3d 550,
555 (7th Cir. 2006) (citing Hensley v. Carey, 818 F.2d 646, 648, 650 (7th Cir. 1987)). “It does,

50

however, guarantee the right to a fair trial[,] and that right is violated if unduly suggestive
identification techniques are allowed to taint the trial.” Id. Under Seventh Circuit precedent, “a
‘witness’s identification violates a defendant’s right to due process when the identification
procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.’” Lee v. Foster, 750 F.3d 687, 691 (quoting United States v.
Recendiz, 557 F.3d 511, 524 (7th Cir. 2009)).
The Court engages in a “two-pronged analysis” to determine whether an identification
procedure reaches “this substantial threshold.” Lee, 750 F.3d at 691. First, the Court determines
whether the identification procedure was “suggestive and unnecessary.” Id. (citing United States
v. Sandersi, 708 F.3d 976, 983 (7th Cir. 2013)). According to the Seventh Circuit, “scientific
sources should generally accompany an argument that a particular procedure was unnecessarily
suggestive.” United States v. Sanders, 708 F.3d 976, 985 (7th Cir. 2013). “Lawyers’ assertions
that the effects of a photo spread are ‘clear’ or ‘obvious’ are no substitute for evidence.” United
States v. Acox, 595 F.3d 729, 730 (7th Cir. 2010). Second, the Court determines “under the
totality of the circumstances whether the procedure was nonetheless reliable.” Lee, 750 F.3d at
691. “Both suggestiveness and reliability are evaluated by reference to the totality of the
circumstances.” Alexander, 433 F.3d at 555.
Ultimately, to prevail on his Section 1983 due process claim, Plaintiff must show that the
use of unduly suggestive identification techniques “made his trial unfair.” Alexander, 433 F.3d
at 555. An illustrative list of the questions the Court may consider in making this determination
include: “What identification evidence was actually admitted at trial? What did the victims,
eyewitnesses, and police officers say? Were they cross-examined? Were the circumstances
surrounding the identification and the police procedures put before the jury? What exhibits were

51

admitted on this issue? Was any objection or motion to suppress the identification evidence
made? What other evidence tended to link the defendant to the crime?” Id.
Construing all facts and making all inferences in Plaintiff’s favor, the Court concludes
that there are disputed questions of material fact concerning whether the identification
procedures that Ptak used with Denise were suggestive and unnecessary, and whether they were
nonetheless reliable. Lee, 750 F.3d at 691. ASA McCarthy’s report concerning her conversation
with Denise supports Plaintiff’s theory that Ptak’s use of suggestive techniques caused Denise to
identify Plaintiff when she otherwise would have been unable to do so. According to McCarthy,
Denise admitted that Ptak suggested to her who to identify in the photo array by “taking
[Plaintiff’s] photo out and putting it back in and asking words to the effect of do you recognize
him? Does this look like the guy?” [124-12] at 26. According to McCarthy, Denise admitted
that her subsequent identification of Plaintiff in the line-up was “based on her identification from
the photo array,” rather than “on her own observations.” Id. Further, according to McCarthy,
Denise told her that she was “not sure” at the time she viewed the photo array “whether
[Plaintiff] had actually done anything to her physically.” Id. at 27.
Further, the Court concludes that there are disputed questions of fact concerning whether
Ptak’s use of suggestive techniques with Denise made Plaintiff’s trial unfair, Alexander, 433
F.3d at 555, for the same reasons that the Court discussed above in concluding that the
nondisclosure of Ptak’s use of suggestive techniques with Denise may have been material to the
outcome of Plaintiff’s trial.
As to Ptak’s and Duffin’s alleged use of suggestive identification techniques with Hugo,
there is no evidence that this made Plaintiff’s trial unfair because Hugo did not identify Plaintiff
as one of the perpetrators of the Amphitheater attacks.

52

Ptak is not a defendant in this case, and Duffin did not participate in Ptak’s interview
with Denise and therefore cannot be held directly liable for Ptak’s alleged due process violation.
The Court therefore must consider whether Duffin can be held liable for Ptak’s alleged violation
of Plaintiff’s due process rights based on a theory of failure to intervene or conspiracy, to which
the Court now turns.
c.

Duffin’s Liability for Ptak’s Alleged Violations of Plaintiff’s
Constitutional Rights
i.

Failure to Intervene

In order to impose liability under Section 1983, “a plaintiff must establish a defendant’s
personal responsibility for any claimed deprivation of a constitutional right”; however, “a
defendant’s direct participation in the deprivation is not required.” Miller v. Smith, 220 F.3d
491, 495 (7th Cir. 2000). “[I]n some circumstances, a state actor’s failure to intervene in a
violation of an another’s constitutional rights can serve as a basis for § 1983 liability.” Hobbs v.
Cappelluti, 899 F. Supp. 2d 738, 754 (N.D. Ill. 2012). In order to impose liability on a police
officer for failure to intervene, the plaintiff must demonstrate that (1) a “‘constitutional violation
has been committed by a law enforcement official,’” and (2) the defendant “‘had a realistic
opportunity to intervene to prevent the harm from occurring.’” Id. (quoting Yang v. Hardin, 37
F.3d 282, 285 (7th Cir. 1994)).
In this case, the Court concludes that Duffin cannot be held liable for Ptak’s use of
suggestive identification techniques with Denise because Plaintiff has come forward with no
competent evidence that Duffin had knowledge of Ptak’s actions or a reasonable opportunity to
intervene. Plaintiff’s primary argument for inferring knowledge on Duffin’s part is that Duffin
and Ptak used the same suggestive techniques with Hugo the day before Ptak used them with
Denise. Plaintiff cites to Morfin v. City of E. Chicago, 349 F.3d 989, 1001 (7th Cir. 2003), for

53

the proposition that Duffin should be held responsible for turning a “blind eye” to Ptak’s actions.
Morfin, unlike this case, involved a supervisor’s responsibility for the actions of his subordinate
officers. Duffin was not Ptak’s supervisor. Moreover, in Morfin, the court recognized that in
order to hold the police chief liable for constitutional violations of his officers, the plaintiff
would have to show that the chief “had knowledge of facts that would cause him to believe” that
his officers were going to act in an unconstitutional manner but “failed to use his authority to
stop the violation.” 349 F.3d at 1001 (emphasis added). As in Morfin, the Court does not
believe that “the record, even when read in the light most favorable to [Plaintiff], can support a
conclusion” that Duffin knew that Ptak was using improperly suggestive identification
techniques in violation of Plaintiff’s constitutional rights or that Duffin had any opportunity to
intervene during Ptak’s interaction with Denise. Therefore, Defendants are entitled to summary
judgment on Plaintiff’s claim for failure to intervene.
ii.

Section 1983 Conspiracy

“Under Section 1983, a conspiracy is ‘a combination of two or more persons acting in
concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal
element of which is an agreement between the parties to inflict a wrong against or injury upon
another, and an overt act that results in damage.’” Moore v. Morales, 445 F. Supp. 2d 1000,
1012 (N.D. Ill. 2006) (quoting Scherer v. Balkema, 840 F.2d 437, 441 (7th Cir. 1988)). To
establish a prima facie case of conspiracy, a plaintiff must show (1) “‘an express or implied
agreement among defendants to deprive a plaintiff of his or her constitutional rights,’” and (2)
“the ‘actual deprivation of those rights in the form of overt acts in furtherance of the
agreement.’” Id. (quoting Scherer, 840 F.2d at 442).

54

An agreement may be demonstrated by “establishing that the defendant officers
‘underst[ood] the general objectives of the scheme, accept[ed] them, and agree[d], either
explicitly or implicitly, to do [their] part to further them.’” Spalding v. City of Chicago, 186 F.
Supp. 3d 884, 913 (N.D. Ill. 2016) (quoting McCann v. Mangialardi, 337 F.3d 782, 789–90 (7th
Cir. 2003)). A conspirator “need not have agreed on the details of the conspiratorial scheme,”
Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988), and can be held liable for
conspiracy “‘even though he was incapable of committing the substantive offense’ himself,”
Ocasio v. United States, 136 S. Ct. 1423, 1430 (quoting Salinas v. United States, 522 U.S. 52, 64
(1997)). Further, “[b]ecause conspiracies are often carried out clandestinely and direct evidence
is rarely available, plaintiffs can use circumstantial evidence to establish a conspiracy, but such
evidence cannot be speculative.” Beaman v. Freesmeyer, 776 F.3d 500, 511 (7th Cir. 2015).
In this case, Plaintiff points to the following evidence of an agreement between Duffin
and Ptak to violate Plaintiff’s right to due process by influencing victim identifications: (1)
“Duffin worked with Ptak to use the very same suggestive techniques with Hugo as Ptak did with
Denise in an investigation where they were jointly responsible,” [127-1] at 35; (2) Duffin ripped
up the notes from the Powell interview; (3) Duffin and Ptak wrote a false police report
implicating Plaintiff as an offender and gang member; and (4) Duffin and Ptak were lead
detectives responsible for the investigation of the Amphitheater attacks.
Taken as a whole, these facts are sufficient to allow Plaintiff’s Section 1983 conspiracy
claim against Duffin to survive summary judgment. Taking Plaintiff’s version of the facts as
true, Duffin and Ptak worked together using coercive techniques to attempt (without success) to
get Hugo to identify Plaintiff as one of the perpetrators of the Amphitheater attacks. They did so
only one day before Ptak allegedly used the same techniques (this time successfully) to persuade

55

Denise to identify Plaintiff as one of her attackers. Duffin and Ptak also allegedly (falsely) stated
in their official report that Powell told them that he saw Plaintiff (and the rest of the group that
Powell identified) participate in the Amphitheater attacks and heard Plaintiff (and the rest of the
group that Powell identified) brag about the attacks on the bus ride home that night. Cf. Jones,
856 F.2d at 993 (evidence was sufficient to enable jury to infer that supervisory police officer
approved of unlawful concealment of exculpatory evidence by subordinates to obtain conviction
of defendant on charges of murder and rape, where supervisor signed a deceitful report for use
by the prosecution); Rainey v. City of Chicago, 2013 WL 941968, at *10 (N.D. Ill. Mar. 11,
2013) (at summary judgment, plaintiff provided sufficient evidence of agreement among officers
to conspire to cover up their use of excessive force against plaintiff by preparing police reports
and misdemeanor complaints that contained allegedly “misleading, incomplete, and inaccurate
information” to conceal the identities of officers). Duffin and Ptak then tore up their notes from
their interview with Powell, which prevented Plaintiff’s defense counsel from seeing any
exculpatory evidence they might contain. Although the Court already found that the withholding
of the Powell interview notes was not, by itself, sufficient to rise to the level of a due process
violation, these acts may nonetheless serve as circumstantial evidence that Duffin and Ptak had
an agreement to make sure that Plaintiff was identified as a suspect, regardless of the true facts
developed during the investigation.
2.

State Law Civil Conspiracy

Plaintiff’s complaint also includes a claim against Duffin for civil conspiracy under
Illinois law. Defendants argue that, pursuant to the Illinois Tort Immunity Act, Duffin cannot be
held liable for any state law claims for an injury caused by the act or omission of another person,
such as Ptak’s use of unduly suggestive identification techniques with Denise or concealment of

56

the use of those techniques. See [111] at 11 (citing 756 ILCS 10/2-204). Plaintiff does not
respond to this argument or Defendant’s other arguments for summary judgment on Plaintiff’s
state law civil conspiracy claim. Therefore, the Court concludes that Plaintiff has forfeited his
claim for civil conspiracy and Defendants are entitled to summary judgment on this claim. See,
e.g., Salas v. Wisconsin Dept. of Corrections, 493 F.3d 913, 924 (7th Cir. 2007) (“a party forfeits
any argument it fails to raise in a brief opposing summary judgment” (citing Witte v. Wis. Dep’t
of Corrs., 434 F.3d 1031, 1038 (7th Cir. 2006))); Boogaard v. Natl. Hockey League, 126 F.
Supp. 3d 1010, 1026-27 (N.D. Ill. 2015) (personal representative of estate of former professional
hockey player forfeited any argument that hybrid contract/duty-of-fair-representation claims
were timely under applicable statute of limitations by failing to make such argument in either
response brief or surreply brief).
3.

Malicious Prosecution

“In order to establish a claim of malicious prosecution, a plaintiff must demonstrate: (1)
the commencement or continuance of an original criminal or civil judicial proceeding by the
defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of
probable cause; (4) malice; and (5) damages.” Szczesniak v. CJC Auto Parts, Inc., 21 N.E.3d
486, 490 (Ill. App. 2015).
Defendants argue that they are entitled to summary judgment on Plaintiff’s claim for
malicious prosecution because “Duffin had an objectively reasonable belief that Plaintiff robbed
and sexually assaulted the victims as well as attempted to rape Denise.” [111] at 20. Since they
had probable cause to charge Plaintiff, Defendants argue, no malice can be inferred, either.
There must be probable cause for each criminal charge brought against a defendant. See
Holmes v. Village of Hoffman Est., 511 F.3d 673 (7th Cir. 2007) (probable cause to believe an

57

individual committed one crime, and even his conviction of that crime, does not foreclose a
malicious prosecution claim for additionally prosecuting the individual on a separate charge). As
the Seventh Circuit has explained, “[i]n this respect, a malicious prosecution claim is treated
differently from one for false arrest: whereas 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, . . . probable cause as to
one charge will nor bar a malicious prosecution claim based on a second, distinct charge as to
which probable cause was lacking.” Id. at 682 (citing Devenpeck v. Alford, 543 U.S. 146, 153
(2004)). “Probable cause is a state of facts that would lead a person of ordinary care and
prudence to believe or to entertain an honest and sound suspicion that the accused committed the
offense charged.” Fabiano v. City of Palos Hills, 784 N.E.2d 258, 266 (Ill. App. 2002). It is
important to recognize that “there is a difference between evidence of the kind that negates proof
beyond a reasonable doubt and that which is so significant as to undo the existence of probable
cause.” Purvis v. Oest, 614 F.3d 713, 723 (7th Cir. 2010). “[T]he evidence required to establish
probable cause is considerably less than that required to sustain a criminal conviction.” Id.
(citing Braun v. Baldwin, 346 F.3d 761, 766 (7th Cir. 2003). Thus, there may have been
probable cause to charge a defendant even when the defendant is acquitted. See id. (officer had
probable cause to arrest plaintiff, even though plaintiff was acquitted following a bench trial).
The existence of probable cause is “a complete defense to a malicious prosecution claim.”
Logan v. Caterpillar, Inc., 246 F.3d 912, 926 (7th Cir. 2001).
The Court concludes that Defendants had probable cause to charge Defendant with all of
the charges that went to trial: attempted rape, deviate sexual assault, robbery, and aggravated

58

battery of Denise; robbery and aggravated battery of Hugo; and attempted rape, robbery, and
aggravated battery of Martha.
In evaluating whether there was probable cause of the charges brought against Plaintiff, it
is necessary to keep in mind that the Government relied, and Judge Strayhorn allowed the case
against Plaintiff to proceed, on a group theory of accountability. The jury was instructed that
“[a] person is legally responsible for the conduct of another person when, either before or during
the commission of an offense, and with the intent to promote or facilitate the commission of that
offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the
planning or commission of the offense.” [125] at 25. Plaintiff does not challenge this theory of
accountability or Judge Strayhorn’s use of this instruction. Thus, in order to charge Plaintiff, the
Government did not need evidence that Plaintiff himself engaged in all of the crimes for which
he was charged, so long as it had evidence that Plaintiff intended to promote or facilitate the
commission of those crimes by other persons.

Defendants

have

come

forward

with

evidence—beyond the allegedly tainted identification of Plaintiff by Denise—that Plaintiff
directly participated in the commission of at least some of the crimes for which he was charged,
including the eyewitness identifications of Martha and Henrichs. “The complaint of a single
witness or putative victim alone generally is sufficient to establish probable cause to arrest unless
the complaint would lead a reasonable officer to be suspicious, in which case the officer has a
further duty to investigate.” Beauchamp v. City of Noblesville, Ind., 320 F.3d 733, 743 (7th Cir.
2003).
When Martha viewed a line-up on December 31, 1981, she identified Plaintiff as one of
the offenders who pulled off her clothing. Plaintiff asserts that the officers should not have
relied on Martha’s identification because it was tainted by the use of unduly suggestive

59

identification techniques with the other victims. However, this is pure speculation, and therefore
insufficient to show that the detectives should not have believed Martha. Martha viewed the
line-up without viewing any photos, and (unlike Denise) there is no evidence that Martha’s
identification of Plaintiff was tainted in any way. Plaintiff also argues that the detectives should
not have relied on Martha’s identification because she admitted to blacking out for a time in the
middle of the attack. Plaintiff does not explain, however, why it would have been impossible for
Martha to see some of her attackers before she blacked out, at least to an extent sufficient to
provide the Government with an “honest and sound suspicion” that Plaintiff was one of the men
involved in the attack. Fabiano, 784 N.E.2d at 266.
In addition, when Henrichs viewed the photo array, he identified Plaintiff as the person
he saw violating Denise with a foreign object. Plaintiff argues that Henrich’s statement does not
support a finding of probable cause because “ASA McCarthy did not consider his testimony to
be reliable evidence on which to base a prosecution.”

[127-1] at 49.

But this argument

improperly conflates the standards for obtaining a conviction (beyond a reasonable doubt) with
the much lower standard for charging a defendant (probable cause). The Court is also not
convinced that “the totality of the circumstances calls the identification by . . . Henrichs into
serious question” to such an extent that his identification could not form the basis for probable
cause. [127-1] at 49. Plaintiff has come forward with no evidence that Henrich’s statement was
tainted by misconduct of the police. While Henrichs saw Plaintiff’s photo on television before
he identified Plaintiff in the photo array, there is no evidence that the television report contained
the same level of detail that Henrichs provided in his alleged eye witness account. More
specifically, Plaintiff has come forward with no evidence that Henrich could have known, except
through personal observation, that one of the attackers put a foreign object into Denise’s vagina.

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Therefore, the Court concludes that Henrichs’ statement, in conjunction with Martha’s consistent
statement, were sufficient to provide Defendants with probable cause to bring all the charges
against Plaintiff.6
4.

Intentional Infliction of Emotional Distress

Defendants argue that Duffin is entitled to summary judgment on Plaintiff’s claim for
intentional infliction of emotional distress because Plaintiff failed to bring the claim within one
year of his alleged injury, as required by 745 ILCS 10/8-101. Plaintiff offers no response to this
argument, and therefore forfeits his claim for intentional infliction of emotional distress. See
Salas, 493 F.3d at 924; Boogaard, 126 F. Supp. 3d at 1026-27.
5.

Qualified Immunity

“‘Qualified immunity protects officers performing discretionary functions from civil
liability so long as their conduct does not violate clearly established statutory or constitutional
rights that a reasonable person would know about.’” Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th
Cir. 2015) (quoting Mustafa v. City of Chicago, 442 F.3d 544, 548 (7th Cir. 2006)). “It protects
‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). Once a defendant raises qualified immunity as a defense, “the
plaintiff has the burden of establishing that his or her rights were violated and that the law
concerning the proffered right ‘was clearly established at the time the challenged conduct
6

It is unnecessary for the Court to reach the last issue raised by the parties—whether the entry of an order
of nolle prosequi is considered to be the termination of the criminal proceeding in Plaintiff’s favor. The
Court nonetheless notes that, under Illinois law, [f]or a nolle prosequi dismissal to satisfy the favorable
termination element, ‘[t]he circumstances surrounding the abandonment of the criminal proceedings must
compel an inference that there existed a lack of reasonable grounds to pursue the criminal prosecution.’”
Starks v. City of Waukegan, 946 F. Supp. 2d 780, 794 (N.D. Ill. 2013) (quoting Swick v. Liautaud, 662
N.E.2d 1238, 1243 (Ill. 1996)) (emphasis added); see also Logan v. Caterpillar, Inc., 246 F.3d 912, 925
(7th Cir. 2001)). In this case, ASA McCarthy ultimately decided not to re-try Plaintiff based on her
conclusion that the state would be unable to meet its burden of proof at trial, which would at least tend to
suggest that the nolle prosequi dismissal in this case should qualify as a termination of the criminal
proceeding in Plaintiff’s favor.

61

occurred.’” Id. (quoting Mustafa, 442 F.3d at 548). The Court must then determine “whether a
reasonably competent official would know that the conduct was unlawful in the situation he
confronted.” Mustafa, 442 F.3d at 548.
“‘In determining qualified immunity at the summary judgment stage, the court asks 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.’” Kristofek v. Village of Orland Hills, 832 F.3d
785, 798 (7th Cir. 2016) (quoting Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 648 (7th Cir.
2013)). In conducting the second step of this analysis, the Court’s “first task is to consider
controlling Supreme Court and Seventh Circuit precedent.” Werner v. Wall, 836 F.3d 751, 762
(7th Cir. 2016). Courts typically conduct this analysis “by focusing on the ‘specific context in
the case,’ rather than on a ‘broad general proposition.’” Kristofek, 832 F.3d at 798 (quoting
McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004)). Nonetheless, “general statements of the
law are not inherently incapable of giving fair and clear warning, and in [certain] instances a
general constitutional rule already identified in the decisional law may apply with obvious clarity
to the specific conduct in question.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also Figgs v.
Dawson, 829 F.3d 895, 906 (7th Cir. 2016) (“While, to be clearly established, a right must be
specific to the relevant factual context of a cited case and not generalized with respect to the
Amendment that is the basis of the claim, the very action in question need not have previously
been held unlawful for a public official to have reasonable notice of the illegality of some
action.” (internal citations and quotation marks omitted)). In addition, “[w]hen allegations
revolve around whether police officers failed to disclose Brady evidence, the qualified immunity
question focuses on whether it was clearly established that the information that [the plaintiff]

62

contends the Defendants failed to disclose had to be turned over as exculpatory or impeaching.”
Grayson v. City of Aurora, 157 F. Supp. 3d 725, 743 (N.D. Ill. 2016) (citing Carvajal, 542 F.3d
at 569).
As explained above, the Court has already determined that the facts, taken in the light
most favorable to Plaintiff, make out a due process violation against Duffin based on his alleged
conspiracy with Ptak to use suggestive techniques to obtain Denise’s witness identification and
the withholding of the use of suggestive techniques with Denise and Hugo from Plaintiff’s
criminal defense counsel. The next question is whether these alleged constitutional violations
were clearly established at the time they occurred, in late 1981 and early 1982.
To determine whether qualified immunity applies to a conspiracy claim, the Court must
determine “whether those who allegedly performed the acts in furtherance of the conspiracy are
themselves shielded from liability for those acts.”

Atkins v. Hasan, 2015 WL 3862724, at *5

(N.D. Ill. June 22, 2015). In Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), abrogated on
other grounds by Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (U.S. 2017)—which Plaintiff cites
but Defendants fail to address—the Seventh Circuit held that it was “clearly established in 1979
and 1980 that police could not withhold from prosecutors exculpatory information about . . . the
conduct of a lineup.” Id. at 752; see also Newsome v. McCabe, 319 F.3d 301, 302 (7th Cir.
2003) (“Two years ago we held that officers McCabe and McNally are not entitled to qualified
immunity if, as Newsome alleges, they not only induced witnesses to accuse him falsely but also
concealed their improper activities.”); Ott v. City of Milwaukee, 48 F. Supp. 3d 1197, 1207 (E.D.
Wis. 2014) (“Newsome held it was clearly established in 1979 and 1980 ‘that police could not
withhold from prosecutors exculpatory information about . . . the conduct of a lineup.’” (quoting
Newsome, 256 F.3d at 752)). Further, the Supreme Court recognized long before 1981 that “the

63

conduct of identification procedures may be ‘so unnecessarily suggestive and conducive to
irreparable mistaken identification’ as to be a denial of due process of law.”

Foster v.

California, 394 U.S. 440, 442 (1969).
While Newsome and Foster involved a suspect line-up, rather than a photo array
containing the suspect’s photos, the Court concludes that Newsome was sufficiently on point to
put a police officer on reasonable notice that it would violate due process to signal to a witness
during the viewing of a photo array the identity of the suspected offender.
In addition, the Seventh Circuit also recognized before 1981 that “a conspiracy may be
used as the legal mechanism through which to impose liability on each and all the defendants
without regard to the person doing the particular act.” Hostrop v. Bd. of Jr. College Dist. No.
515, Cook and Will Ctys. and State of Ill., 523 F.2d 569, 576 (7th Cir. 1975). Defendants argue,
nonetheless, that Duffin is entitled to qualified immunity because he was “entitled to rely upon
information furnished to him by other officers”—specifically, information provided by Ptak
regarding Denise’s identification of Plaintiff—pursuant to the theory of “collective knowledge.”
[136] at 33.

The cases cited by Defendants, however, require an officer’s reliance on

information obtained from another officer to be “objectively reasonable” and “in good faith.”
See Wilbon v. Plovanich, 67 F. Supp. 3d 927, 940 (N.D. Ill. 2014) (“In a civil case for an arrest
without probable cause, the collective knowledge doctrine means a defendant is entitled to
qualified immunity if he relied in objective good faith on another officer as to the justification for
the arrest.” (internal citation and quotation marks omitted)); Bibart v. Stachowiak, 888 F. Supp.
864, 867 (N.D. Ill. 1995) (arresting officers who reasonably relied upon information obtained
from another law enforcement official regarding outstanding arrest warrant are entitled to
qualified immunity from suit if it subsequently appears that information that arresting officers

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received was erroneous); Hardiman v. Ford, 41 F.3d 1510, 1994 WL 585409, at *2 (7th Cir. Oct.
25, 1994) (explaining that “[s]o long as the officer’s reliance on the ‘collective knowledge’ is
objectively reasonable, he will be accorded qualified immunity” from suit arising from arrest
without probable cause). Construing the facts in the light most favorable to Plaintiff, Ptak and
Duffin may have engaged in a conspiracy to identify Plaintiff as a suspect regardless of what the
evidence actually showed, in which case it was not objectively reasonable, or in good faith, for
Duffin to rely on any statements that Ptak made concerning Denise’s identification of Plaintiff in
the photo array and line-up. Therefore, the Court concludes that Duffin is not entitled to the
protections of qualified immunity.
B.

Claims Against The City
1.

Monell

Pursuant to Monell v. Dept. of Soc. Services of City of New York, 436 U.S. 658 (1978),
“[a] local governing body may be liable for monetary damages under § 1983 if the
unconstitutional act complained of is caused by: (1) an official policy adopted and promulgated
by its officers; (2) a governmental practice or custom that, although not officially authorized, is
widespread and well settled; or (3) an official with final policy-making authority.” Thomas v.
Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010). Under this standard, “[t]he
governmental body’s policies must be the moving force behind the constitutional violation before
we can impose liability.” Id. at 306. In addition, “[i]f the plaintiff fails to prove a violation of
his constitutional rights in his claim against the individual defendants, there will be no viable
Monell claim based on the same allegations.” Swanigan v. City of Chicago, 775 F.3d 953, 962
(7th Cir. 2015).

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Plaintiff’s Monell claim is based on the City’s alleged widespread practice of withholding
exculpatory materials contained in “street files” in felony criminal investigations during the time
period involved in Plaintiff’s criminal prosecution, 1981 to 1982. Plaintiff argues that the City
should incur Monell liability based on Duffin and Ptak’s alleged failure to disclose that they used
improperly suggestive identification techniques when showing the photo array to Denise.
However, Plaintiff has offered no evidence that the City’s practice of withholding street files was
the driving force behind that alleged constitutional violation.
As an initial matter, Plaintiff has not offered any evidence, beyond speculation, that a
street file existed for Plaintiff’s criminal case. More to the point, Plaintiff does not argue or offer
any evidence that suggestive techniques used in a photo array would be the type of “evidence”
that one would expect to be included in the street file, if one did exist. Indeed, Plaintiff states in
his supplemental brief, [157] at 21, that he is “not proceed[ing] on a Monell theory for a
widespread practice of suggestive witness identification techniques and has not submitted that
evidence here.” Instead, Plaintiff points to four other types of evidence that, he argues, would
have been in the street file: (1) a witness statement from the woman from Cicero; (2) notes from
Powell’s interview; (3) Hugo’s description of a female offender; and (4) Martha’s initial witness
statement. The closest Plaintiff comes to asserting a link between the withholding of information
concerning the use of suggestive techniques and his injury is his argument that “[t]he evidence
supports a finding that, since [CPD] authorized and condoned detectives to withhold exculpatory
witness statements, the Detectives also felt unfettered to also withhold the information of how
they obtained the false identifications.” [127-1] at 65 (emphasis added). This is insufficient to
establish causation under this Circuit’s case law, which Plaintiff fails to discuss. There must be
“a direct causal connection between the policy or practice and [the plaintiff’s] injury.” Rice ex

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rel. Rice v. Correctional Med. Services, 675 F.3d 650, 675 (7th Cir. 2012). And while the
Seventh Circuit has not “adopt[ed] any bright-line rules defining a ‘widespread custom or
practice,’” the plaintiff “must demonstrate that there is a policy at issue rather than a random
event.” Thomas, 604 F.3d at 303; see also Williams v. Heavener, 217 F.3d 529, 532 (7th Cir.
2000) (“Ordinarily, one incident is not sufficient to establish a custom that can give rise to
Monell liability.”). Without any evidence that the City has a widespread practice of failing to
disclose its use of unduly suggestive techniques with witnesses, Plaintiff cannot show that
Defendants’ alleged withholding of suggestive techniques in this case was anything more than a
“random event.” Id. Therefore, Plaintiff cannot establish a causal link between his injuries and
the city’s policies or practices and the City is entitled to summary judgment on Plaintiff’s Monell
claim.
2.

Respondeat Superior

Defendants’ motion for summary judgment does not address Plaintiff’s respondeat
superior claim. Plaintiff argues only that, “[u]nder respondeat superior, the City may also
[li]able for [Ptak’s] actions, within the scope of his employment, in the malicious prosecution
claim.” [127-1] at 24, n.2. Since Defendants are entitled to summary judgment on the malicious
prosecution claim for the reasons explained above, the Court concludes that the City is also
entitled to summary judgment on Plaintiff’s claim for respondeat superior.
3.

Indemnification

None of the parties address Plaintiff’s indemnification claim in their summary judgment
briefs. In his complaint, Plaintiff states that “Illinois law provides that public entities are
directed to pay any tort judgment for compensatory damages for which employees are liable
within the scope of their employment activities.” [1] at 18. Since the Court is allowing Plaintiff

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to proceed on his Section 1983 due process claim—a constitutional tort—against Duffin, the
Court concludes that the City is not entitled to summary judgment on Plaintiff’s claim for
indemnification. See generally 745 ILCS 10/9-102; Grayson, 157 F. Supp. 3d at 748 (Section
1983 judgment qualifies as “tort judgment” within meaning of Illinois’ indemnification statute so
long as employee was acting within scope of his employment).
IV.

Conclusion
For the reasons explained above, the Court grants in part and denies in part Defendants’

motion for summary judgment [104].

The Court enters summary judgment in favor of

Defendants and against Plaintiff on Plaintiff’s Monell claim against the City of Chicago for
violation of his right to Due Process (Count I) and on Plaintiff’s claims for Failure to Intervene
(Count II), Malicious Prosecution (Count IV), Intentional Infliction of Emotional Distress (Count
V), Civil Conspiracy (Count VI), and Respondeat Superior (Count VII). Defendants’ motion for
summary judgment is denied as to Plaintiff’s Section 1983 claim against Defendant Duffin for
violation of Plaintiff’s right to Due Process (Count I), Plaintiff’s Section 1983 claim for
Conspiracy (Count III), and Plaintiff’s claim for Indemnification (Count VIII). This case is set
for status hearing on July 26, 2017 at 9:30 a.m.

Dated: July 13, 2017
____________________________
Robert M. Dow, Jr.
United States District Judge

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