Moorer v. City of Chicago, The et al
Filing
177
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 12/20/2021: Defendants' motion for summary judgment, 153 , is granted. Enter judgment and terminate civil case. [For further detail see attached order.] Notices mailed. (psm, )
Case: 1:18-cv-03796 Document #: 177 Filed: 12/20/21 Page 1 of 46 PageID #:3965
UNITED STATES D ISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS MOORER,
Plaintiff,
No. 18 CV 3796
v.
Judge Manish S. Shah
JOHN VALKNER, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas Moorer spent almost seven years in pretrial detention,
accused of murdering Edward Ramos. A jury found him not guilty. He alleges that
officers of the Chicago Police Department didn’t have probable cause to detain him
for the murder. There are gaps in the record as to how Moorer became a suspect;
police officers lost the victim’s cellphone; other evidence suggested that Moorer didn’t
commit the crime; and CPD officers and the state’s attorneys relied on photo array
and in-person lineup identifications that Moorer alleges were unreliable. Moorer
brings claims for unlawful pretrial detention, false imprisonment, and spoliation of
evidence against CPD officers and the City of Chicago. Defendants move for summary
judgment. For the reasons that follow, their motion is granted.
I.
Legal Standards
Summary judgment is appropriate if the movants show that there is no
genuine dispute as to any material fact and that they are entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists
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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). I
construe all facts and draw all inferences in favor of Moorer, the nonmoving party.
Robertson v. Dep’t of Health Servs., 949 F.3d 371, 377–78 (7th Cir. 2020). I need only
consider the cited materials, but I may consider “other materials in the record.” Fed.
R. Civ. P. 56(c)(3).
II.
Facts
A.
The Shooting
Someone murdered Edward Ramos. [164] ¶¶ 30–33. 1 Around midnight on
August 27, 2010, Edward, his brother Edwin Ramos, and three of his cousins—Miguel
Velez, Walter Velez, and Eliezer Martinez—were at their shared basement
apartment on the northwest side of Chicago. Id. ¶¶ 8–10. 2 The five men were getting
ready to go to a club with three friends: Jacklyn Hernandez, Alina Kindelan, and
Delia Rivera. Id. ¶ 9. Hernandez, Kindelan, and Rivera pulled up at the apartment
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of citations
to depositions, which use the deposition transcript’s original page number. The facts are
largely taken from Moorer’s response to defendants’ joint Local Rule 56.1 statement, [164],
and defendants’ response to Moorer’s statement of additional facts, [174], where both the
asserted fact and the opposing party’s response are set forth in one document. Any fact not
properly controverted is admitted. N.D. Ill. Local R. 56.1(e)(3); see Cracco v. Vitran Exp., Inc.,
559 F.3d 625, 632 (7th Cir. 2009). I disregard legal arguments in the statements of facts, see
Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006), and ignore additional facts included
in response to the asserted fact that do not controvert the asserted fact. N.D. Ill. Local R.
56.1(e)(2). Both parties rely heavily on compound facts—combining multiple allegations—in
violation of Local Rule 56.1. See, e.g., [164] ¶¶ 99–100; [174] ¶ 61. Plaintiff also fails to
properly controvert many of defendants’ statements of facts, which are therefore admitted.
See [164] ¶¶ 13, 21, 55, 57, 68, 75–76, 85, 93–98, 106, 115.
1
For ease of reading, I refer to Edward Ramos, Edwin Ramos, Miguel Velez, and Walter
Velez by their first names.
2
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around 11:30 p.m. or just before midnight. Id. ¶ 10. Walter came outside to speak
with his girlfriend, Hernandez, who was still in the car. Id. ¶ 11. Rivera and Kindelan
began walking towards the apartment. Id. ¶ 12.
A man with the lower part of his face covered and dressed in black clothing
stepped out from the gangway to the building. [164] ¶ 13. He brandished a gun and
confronted Kindelan and Rivera. Id. ¶¶ 13–14. The two women backed away and the
man followed, coming into an area lit by streetlights. See id. ¶¶ 14–15. The parties
dispute whether the man removed his mask at this point, but agree that he told
Kindelan and Rivera to go away. Id. ¶ 15. The man then forced Walter to the
apartment door. Id. ¶¶ 16–17. Rivera and Kindelan got back in the car with
Hernandez. Id. ¶ 18. When they saw a second man emerge from the gangway, the
women drove away and Hernandez called 911. Id.
The first man held a gun to Walter’s head and told him to knock on the
apartment door. [164] ¶ 19. Two other men were also in the gangway. Id. Walter
banged on the door. Id. ¶ 20. Martinez and Edward, inside the apartment’s living
room, looked through the peep hole and then Edward opened the door. See id. ¶¶ 21,
24. The masked man rushed into the apartment and began shooting. Id. ¶ 22. There
was a struggle for the gun, and Edward and Martinez fell to the ground. Id. ¶¶ 22–
23. The man, whose face was now uncovered, fired several shots while standing,
hitting Martinez in the leg. Id. ¶ 23. Miguel had been ironing clothes in a bedroom.
Id. ¶ 24. After he heard the shots, Miguel looked into the living room, saw Edward
struggling with the man, and ran out the back door. Id. Edwin heard the struggle,
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saw a man on top of Edward and Martinez, and ran to assist. Id. ¶¶ 25–26. The man
hit Edwin in the head with the gun, but Edwin punched the assailant, causing the
man to drop the weapon. Id.
Disarmed, the man ran out of the apartment the way he’d come. [164] ¶ 28.
Edwin followed, but outside he saw a second man pointing a gun at him. Id. ¶ 29. The
first man told his accomplice to start shooting. Id. Edwin lunged backwards into the
doorway while Edward came past him, into the line of fire. Id. ¶ 30. Edward was shot
in the chest. See id. ¶ 32. The man and his two accomplices fled. Id. ¶ 31. Edwin,
Martinez, Miguel, and Walter carried Edward to a car, and Edwin drove his brother
and Martinez to a hospital. Id. ¶¶ 32–33. Edward died later that night. Id. ¶ 33.
B.
Initial Investigation and Photo Array
Officers of the Chicago Police Department arrived at the scene minutes after
the shooting. [164] ¶ 34. Detectives Timothy McDermott, Matthew Benigno, and
Steven Becker were assigned to the case. Id. ¶¶ 3, 37. They canvassed the area while
forensic investigators gathered physical evidence. Id. ¶¶ 37–47. At a police station,
other CPD officers—detectives Brian Tedeschi, John Valkner, Emiliano Leal,
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Nicholas Spanos,3 and Tracy Fanning4—began interviews with Edwin, Miguel,
Walter, Hernandez, Kindelan, and Rivera. Id. ¶¶ 3, 48. The witnesses were separated
and their interviews were conducted individually. Id. ¶ 49.5
In general,6 the six witnesses described the initial shooter as a Black man
wearing jeans, a mask of some sort on the lower half of his face, between twenty-five
To show individual liability under § 1983, Moorer must allege that each of the individual
defendants was personally involved in the constitutional deprivation. See Johnson v.
Rimmer, 936 F.3d 695, 710–11 (7th Cir. 2019) (citing Colbert v. City of Chicago, 851 F.3d 649,
657 (7th Cir. 2017)). Personal involvement means (1) participating directly in the alleged
violation; (2) knowing about the conduct; (3) facilitating the conduct; (4) approving the
conduct, condoning it, or turning a blind eye to it. Rasho v. Elyea, 856 F.3d 469, 478 (7th Cir.
2017) (citations omitted). Moorer concedes that defendants Benigno’s, Becker’s, and Spanos’s
involvement in any alleged wrongdoing was minimal and that they should be dismissed from
the case. [163] at 49. Based on that concession, and the failure to present evidence from which
a jury could reach a verdict in Moorer’s favor on any of his claims against Benigno, Becker,
and Spanos, those defendants are entitled to judgment as a matter of law.
3
Moorer argues that Fanning was personally involved in the violation of his rights because
Fanning interviewed a witness who had difficulty seeing the crime and minimally described
the offender, but Fanning didn’t question the witness’s reliability. See [163] at 48. But just
because the witness was inconsistent or unreliable doesn’t mean Fanning was required to
discredit her statements. See Woods v. City of Chicago, 234 F.3d 979, 997 (7th Cir. 2000). The
facts show that Fanning was minimally involved in the investigation and wasn’t personally
involved in the alleged wrongdoing. Summary judgment is granted to Fanning.
4
Plaintiff denies that the witnesses were separated at the police station, [164] ¶ 49, but the
portion of trial testimony Moorer cites in response to this fact does not support the proposition
that the witnesses spoke with one another at the police station before their initial interviews
with detectives. See [154-3] at 207–08. Defendants’ statement of fact isn’t fully supported
because deposition testimony from Hernandez, Kindelan, and Miguel indicates only that
their interviews were conducted separately, not that they didn’t discuss their interviews after
they took place. See [154-24] at 36–37, 70–71; [154-25] at 34–35; [154-26] at 42. The fact is
otherwise admitted.
5
Martinez gave a statement at the hospital at 1:10 a.m., and described the initial shooter as
being a dark-skinned Black man with the lower portion of his face covered, twenty-four to
twenty-six years old, five foot ten inches to five foot eleven inches tall, and 180-190 pounds.
[174] ¶¶ 3–4. Edwin spoke to detective Valkner at 1:30 a.m., and said that the first shooter
was a Black man in his thirties, six foot to six foot three inches tall, about 250 pounds, and
wore a dark shirt, blue jeans, tan boots, and that the lower portion of his face was covered by
a mask, bandana, or shirt that came off during the struggle. Id. ¶ 7. Hernandez gave a
statement to detective Tedeschi at the station at 1:30 a.m. Id. ¶ 13. She described the first
6
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and thirty-six years old, five foot ten to six foot three inches tall, and weighing
between 180 and 250 pounds. See [174] ¶¶ 3–4, 7, 13, 16, 19, 21, 23; [164] ¶ 50. 7 With
the exception of Kindelan’s interview with detective Leal, which wasn’t similarly
documented, the detectives summarized the witnesses’ interviews in general progress
reports. [164] ¶¶ 51–52.
At 1:30 in the morning on August 28, detective Valkner interviewed Edwin.
[174] ¶ 7. Edwin said that he recognized the man who entered the apartment. [164]
¶ 53; [174] ¶¶ 7–8, 24. He said that his brother had sold drugs to the man, who went
by the nickname, “Boom,” and that a dispute had arisen over an unpaid debt. See
[164] ¶ 53; [174] ¶¶ 8, 24. Edwin said that he had seen Boom on two earlier occasions,
and that Boom made threatening phone calls to his brother during the week before
shooter as a Black man wearing black clothing. Id. Walter spoke with detective Valkner at
2:00 a.m., and described the first shooter as a Black man, thirty-five to thirty-six years old,
with a medium dark complexion, wearing a black shirt, jeans, and a mask on the lower half
of his face. [174] ¶ 16. Rivera was interviewed by detective Fanning at 2:00 a.m., and, while
indicating that she didn’t seem him very well, described the first shooter as a dark-skinned
Black man, twenty-five years old, fat, with short dreadlocks, a white t-shirt, dark pants, and
a mask on his face. Id. ¶ 19. Kindelan gave a statement at 2:10 a.m. to detectives Leal and
Spanos, describing the assailant as a Black man, twenty-five to thirty-five years old, six foot
tall, 250 pounds, wearing a black shirt over his face. Id. ¶ 21. Miguel spoke to detective
Tedeschi at 2:10 a.m., and described the first shooter as a Black man, five foot eleven inches
to six foot tall, and approximately 230 pounds. Id. ¶ 23.
Plaintiff’s statements of fact describe numerous inconsistencies between the eyewitnesses’
initial and subsequent descriptions of the shooter. See [174] ¶¶ 5, 13–23. Two subsequent
statements that Martinez gave differed from his initial statement to police officers. Id. ¶ 5.
In one, Martinez said he was able to see the offender’s face because the mask had come off.
Id. In a videotaped interview and later at trial, Hernandez said that she told the police that
the shooter was “big.” Id. ¶ 14. In a deposition, Hernandez said that she told officers she had
never seen the man’s unmasked face, which contradicted her trial testimony. Id. ¶ 15. Rivera
testified at trial that she told detectives that the shooter was tall, Black, and big. Id. ¶ 20. In
Kindelan’s videotaped statement, she described the shooter as dark, huge, big, and tall and
said that she did not see the man with a gun. Id. ¶ 22. Because this case is about whether
the officers had probable cause, I consider only the evidence that bears on what the officers
knew at the time they initiated Moorer’s detention.
7
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the shooting. [164] ¶ 54; [174] ¶ 8. Edwin told detectives that they could find Boom’s
contact information in Edward’s cell phone. [164] ¶ 54; see [174] ¶ 9.
A cell phone was recovered at the scene of the crime. [164] ¶ 42. A forensic
investigator collected and transported physical evidence to his office, id. ¶ 46, but
detective McDermott requested that the investigator turn over the cell phone to him
rather than inventory it. Id. ¶ 47; [174] ¶ 66. The investigator gave the phone to
McDermott. [164] ¶ 47; [174] ¶ 66. Having finished his work at the scene, McDermott
returned to the police headquarters at around 4:20 a.m. [164] ¶ 69. While McDermott
said that he or someone else should have documented and inventoried the phone, it
was never inventoried, and the record is silent as to what became of it after the
investigator gave the phone to McDermott. [174] ¶ 67; [164] ¶ 71.
But police reports show that Edwin identified a cell phone as belonging to his
brother, and that Edwin and Valkner searched the contacts of the phone and located
an entry for “Boom” associated with the number (773) 754-2075. [174] ¶ 9; [164] ¶ 70.
Later, however, Edwin said that he assumed his brother’s phone had been passwordprotected, couldn’t remember going through the contacts in Edward’s phone with
detectives, and didn’t know what happened to Edward’s cellphones after the
“incident.” [174] ¶ 10. Valkner couldn’t remember looking at a phone with Edwin or
who had given him the phone. [174] ¶¶ 11, 68.8
Moorer’s allegations turn both on how Moorer became a suspect and on the missing
cellphone. He claims that Edwin was coerced into identifying Moorer’s photograph, and that
the officers, knowing that Moorer wasn’t involved in the murder, destroyed Edward’s
cellphone. See [163]. Since Valkner conducted the pivotal interview with Edwin and may have
searched the missing cellphone, a jury could find that Valkner personally participated in the
alleged violations.
8
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A CPD officer ran a nickname search for “Boom” in a database. [164] ¶ 55; see
[174] ¶ 24. 9 Detective Gonzalez said that the database search turned up a photograph
of Thomas Moorer which was then put into a photo array, see [174] ¶ 24; [164] ¶¶ 55–
56; [165-15] at 10, but couldn’t remember which detective ran the search, how many
results the search returned, or how Moorer’s photograph was chosen from among the
results. [174] ¶ 25. Detectives McDermott, Cardo, and Valkner also couldn’t
remember which officer made the database search. Id. ¶ 28. When Moorer’s public
defenders made a search for Boom in the same database six years later, they turned
up nearly 200 results, including Moorer. Id. ¶ 26; see [165-16] at 3.
Detectives gave Edwin two books or “a bunch of papers” that included the
photographs of six people on each page. See [164] ¶ 56; [174] ¶ 31.10 Moorer’s
photograph was included. See [164] ¶ 56. When that picture was taken, Moorer
weighed between 235 and 245 pounds, which was significantly more than the 180
pounds that he weighed in August 2010. See [174] ¶ 1; [165-44] at 2. After looking at
the photographs for twenty to thirty minutes, Edwin identified Moorer as having been
involved in the shooting. See [164] ¶ 56.11 Detectives then stepped out of the room
The testimony cited by both parties supports the fact that a CPD officer searched the police
database for the name Boom, but does not mention how many results were generated by the
search. See [154-7] at 35–36; [154-17] at 72–76; [154-18] at 15–16; [165-15] at 11. Plaintiff
does not properly controvert the fact that the nickname search was performed by a CPD
officer. See [164] ¶ 55. That detectives did not recall personally searching the system and
couldn’t remember which particular officer had made the search does not controvert the fact
that the search was performed by a CPD officer. The fact is admitted.
9
The parties dispute the precise form of the initial mugshot printouts that Edwin viewed,
but that dispute is immaterial.
10
Moorer alleges that it’s not known how he came to be a suspect in the first place, see [174]
¶¶ 28, 93, but the record doesn’t fully support that allegation. After Edwin gave CPD the
11
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and returned with a printout including Moorer’s image. See [174] ¶ 32. The detectives
asked Edwin to confirm his identification, and had him circle the picture of Moorer
and sign his name under the image. See [174] ¶ 32.
An unknown CPD officer created a photo array of six photographs, including
Moorer’s. See [164] ¶¶ 58–59; [154-36]; [154-37]. Detective Tedeschi logged into the
CPD’s mug shot database, used to create photo arrays, and performed his first
command at 1:30 a.m. [164] ¶ 57. The computer system could create photo arrays in
several ways: based on a suspect’s mugshot, demographic information, or by inputting
a specific name or identifying number. [174] ¶¶ 34–35. It generally took ten to twenty
minutes to put together a photo array. Id. ¶ 42. Once created, a photo array could be
saved, but if it was not, there was no way to tell whether the system generated a
photo array. Id. ¶ 35. Tedeschi said that he didn’t believe he had made the array in
this case. Id. ¶ 42. No one saved the photo array including Moorer in the system, see
id. ¶ 36, but paper copies of the array were preserved. See id.; [164] ¶ 58; [154-36];
[154-37].
In the photo array, Moorer’s photograph appears in the middle position of the
bottom row, and the fillers appear to be the same race and sex as Moorer. [164] ¶ 59;
name Boom, a CPD officer ran a search in a database, someone produced photographs
associated with that search, and from those photographs Edwin identified Moorer as a person
involved in the shooting. See [164] ¶¶ 55–56; [174] ¶ 24; [165-15] at 10–11. That the computer
search and resulting printouts that Edwin saw weren’t saved, and that it’s not clear which
officer performed the search, does not mean that it’s unknown how Moorer came to be a
suspect.
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see [154-36]. 12 Moorer was not moved from that position in any photo array. [174]
¶ 88. Hernandez, Edwin, Kindelan, Rivera, and Miguel viewed the photo array that
included Moorer’s photograph: Hernandez viewed the array at 1:35 a.m.; Edwin at
2:00; Kindelan at 2:30; Rivera at 2:37; and Miguel at 3:30. [164] ¶ 67. Before seeing
the array, each witness separately signed an advisory form, which said that a suspect
wouldn’t necessarily be in the spread and that the witness wasn’t required to make
an identification. Id. ¶¶ 61–63. At no time were the witnesses told who to identify, or
where Moorer was in the array. Id. ¶ 65.13 Hernandez later said that officers told her
to “pick out who I seen.” [164] ¶ 64. All five witnesses positively identified Moorer as
being involved in the home invasion. Id. ¶ 68.14 Hernandez, Edwin, and Miguel
confirmed with detective Tedeschi that they were 100 percent certain in their
identifications. Id. After Kindelan identified Moorer, detective Leal circled Moorer’s
Plaintiff disputes whether the fillers were the same weight as Moorer, and whether they
shared the same hair style. [164] ¶ 59. I discuss the array in more detail below.
12
As noted above, after Edwin initially identified Moorer’s photograph, he was asked to
confirm his identification on a separate print out. See [174] ¶ 32. It’s not clear whether Edwin
also viewed a separate photo array or if the separate print out was the photo array itself.
13
Plaintiff doesn’t properly controvert defendants’ compound fact that Hernandez, Edwin,
Miguel, Rivera, and Kindelan identified Moorer as being involved in the crime, and so that
fact is undisputed and admitted. See [164] ¶ 68. Moorer’s response includes numerous
additional facts that speak to the unreliability and inconsistency of the witnesses’
identifications, but a response to an asserted fact may not set forth new facts that aren’t
fairly responsive to the asserted fact. N.D. Ill. Local R. 56.1(e)(2). That the witnesses’
identifications were inconsistent with their earlier or subsequent statements does not
controvert the fact that the witnesses made the identifications, and so I ignore Moorer’s
additional, unresponsive facts about what the witnesses said they could see or had seen on
the night of the murder.
14
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photograph on Kindelan’s copy of the array in order to verify Kindelan’s
identification. See [164] ¶ 66; [154-15] at 32–33. 15
After returning to the station at 4:20 a.m., detective McDermott called
Assistant State’s Attorney Maria Augustus. [164] ¶¶ 69, 72. Augustus came to the
station where she was briefed on the investigation, reviewed police reports, and
reinterviewed witnesses with McDermott. Id. ¶ 73. After the interviews, at 7:50 a.m.,
McDermott and Augustus mutually agreed to issue an investigative alert with
probable cause to arrest Thomas Moorer. Id. ¶¶ 75–76; [174] ¶ 43. McDermott didn’t
pressure Augustus to issue the alert or recommend charges. [164] ¶ 76.
C.
Moorer’s Arrest and the In-Person Lineups
McDermott’s shift ended, and detectives Cardo and Gonzalez took over the
investigation. [164] ¶ 77. The detectives went to Moorer’s last known address and set
up surveillance. Id. ¶ 79. At about 3:25 p.m. on August 28, Moorer left his house and
got into a car. Id. ¶ 80; [174] ¶ 45. Police officers stopped the vehicle, and Moorer was
taken into custody and brought to the police station. [164] ¶ 80; [174] ¶ 45. Moorer
agreed to speak with detectives. [164] ¶ 81; [174] ¶¶ 53, 55. He denied being involved
in the crime and said that he had been home the day of the shooting with his sisters
and his sisters’ children. [164] ¶ 82; [174] ¶¶ 53, 55.
Plaintiff argues that Leal was personally involved in the violation of his Fourth
Amendment rights because Leal circled Moorer’s picture in the photo array after Kindelan
identified Moorer. [163] at 48. But it’s not reasonable to infer from the fact that Leal circled
Moorer’s picture after Kindelan identified Moorer that Leal coached the witness into making
an identification, and the undisputed facts show that Leal was minimally involved in the
investigation and wasn’t personally involved in the alleged constitutional deprivation. See
Johnson v. Rimmer, 936 F.3d 695, 710–11 (7th Cir. 2019). Leal is entitled to summary
judgment on Moorer’s § 1983 claim.
15
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Cardo and Gonzalez learned that Moorer’s nickname was “Boomer,” rather
than Boom. [174] ¶ 48. The detectives didn’t see any injuries on Moorer’s body or
blood on his clothing or his person, see id. ¶ 52, officers tracked the phone associated
with Boom at locations that were different from where Moorer’s vehicle and home
were, id. ¶¶ 44, 46, and Moorer’s car didn’t match the description of the vehicle seen
leaving the crime scene. Id. ¶ 54. Moorer didn’t own a cell phone, didn’t have one in
his possession when he was arrested, and police officers never found a connection
between Moorer and the number for Boom. Id. ¶ 47. Officers never secured a search
warrant or asked to search Moorer’s home. Id. ¶ 95.
Cardo and Gonzalez called Edwin, Miguel, Walter, Kindelan, Hernandez, and
Rivera, and asked them to return to the station to view an in-person lineup. [164]
¶ 83. Some of the witnesses sat together at the police station before viewing the inperson lineup. See [174] ¶ 89. Cardo and Gonzalez assembled the lineup, including
Moorer and four other individuals selected from lockups in the area. [164] ¶¶ 84–85;
see [154-38]. Moorer was the only person in the photo array and the live lineup, and
was not placed in different positions during the lineup. [174] ¶ 88. All of the lineup
participants appeared to be Black men. [164] ¶ 85.16 The lineup participants wore
civilian clothes, and Moorer wore clothing different from that which the shooter was
wearing at the time of the home invasion. Id. ¶ 86. Before viewing the lineup,
The testimony defendants cite does not show that the lineup participants had
approximately the same height, weight, and age. The testimony is that the detectives
attempted to secure a lineup with those characteristics. See [164] ¶ 85; see [154-17] at 94;
[154-18] at 69.
16
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Gonzalez met separately with each witness and asked them to read and sign an
advisory form. Id. ¶ 87. The witnesses read and signed the forms, id. ¶ 88, and then
viewed the lineup independently of one another and waited in separate rooms until
all of the witnesses had finished viewing the lineup. Id. ¶¶ 89–90.
Walter viewed the lineup first, identified Moorer, but was only eighty percent
certain. [164] ¶ 92. Detective Gonzalez treated his lack of confidence as a negative
identification. Id. Rivera went next and identified Moorer as the person she had seen
with a gun. Id. ¶ 93. Edwin identified Moorer right away. Id. ¶ 94. Edwin also thought
that another man present at the attack was in the lineup, but detectives told him to
ignore that other man and focus only on the man who entered the apartment. Id.;
[154-22] at 41. Hernandez and Kindelan identified Moorer as the person they had
seen in the gangway. [164] ¶¶ 95–96. Miguel viewed the lineup later on the evening
of August 28th, and positively identified Moorer as the man whom he seen wrestling
with Edward. Id. ¶ 97. 17 According to Gonzalez, with the exception of Walter, none of
the other witnesses expressed any doubt in their identifications of Moorer. Id. ¶ 98.
In response to the in-person lineup identifications by Rivera, Hernandez, Kindelan, and
Miguel, plaintiff offers additional facts about the reliability and consistency of their
identifications, but those facts don’t controvert the identifications themselves. See [164]
¶¶ 93–97. Moorer notes that Rivera described the shooter as having dreadlocks, even though
Moorer didn’t at the time she viewed the lineup. Id. ¶ 93. Hernandez said that she had never
seen the lower part of the shooter’s face but still identified Moorer. Id. ¶ 95. Kindelan said
she didn’t see anyone holding a gun, but identified Moorer as having held one during the
crime. Id. ¶ 96. Miguel said that he hadn’t seen the shooting but identified Moorer as having
shot a gun. Id. ¶ 97. Miguel also said when detectives called him into the station to view the
lineup, they told Miguel that a suspect was in custody, and they had arrested the person he
had identified from the photo array. Id. ¶ 88 These facts don’t respond to the identifications
themselves: they cast doubt on the reliability and consistency of the witnesses’ perception,
but do not controvert the facts that the identifications were made. See N.D. Ill. Local R.
56.1(e)(2). There is no dispute that the witnesses selected Moorer. The facts are admitted.
17
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Assistant State’s Attorney Augustus reinterviewed Edwin, Miguel, Walter,
Hernandez, Kindelan, and Rivera. [164] ¶ 99. The six witnesses gave videotaped
statements of their accounts of what happened during the home invasion. Id. The
witnesses confirmed that they had read and understood the lineup advisory forms
and that they had positively identified Moorer in the photo array, physical lineup, or
both. Id. ¶ 100.18 The witnesses said that officers had not threatened them or made
promises, and that they gave their statements freely and voluntarily. Id. ¶ 101.
On August 29, Martinez was released from the hospital and came to the police
station to view a physical lineup. [164] ¶ 102. He had not viewed the photo array. See
[164] ¶¶ 67–68, 102; [174] ¶ 88. Detectives Cardo and Gonzalez assembled another
physical lineup, including Moorer and four “fillers.” Id. ¶ 103. Moorer was placed in
a different position in this lineup than he had been in the previous one. [174] ¶ 88.
The parties agree that all of the subjects in the lineup appeared to be Black men of
approximately Moorer’s age, but dispute whether they were the same approximate
height and weight. [164] ¶ 104. Martinez read and signed the advisory form before
viewing the lineup. Id. ¶ 105. Martinez viewed the lineup and identified Moorer as
the person who struggled with Edward and subsequently shot and killed him. Id.
¶ 106. 19
The records cited by defendants in this compound fact do not support the idea that the
witnesses’ statements were consistent with their earlier statements, since defendants only
cite one statement by each witness. See [164] ¶ 100. Moorer’s response doesn’t controvert the
fact that the witnesses read and signed the advisory forms and confirmed their
identifications, and so that fact is admitted.
18
Moorer disputes that Martinez viewed the lineup and identified Moorer, but plaintiff’s
response doesn’t controvert the asserted fact. See [164] ¶ 106. That Martinez said Moorer had
19
14
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That night, detectives investigated Moorer’s claim that he had been home
during the time of the shooting. [164] ¶ 107; [174] ¶ 57. In his initial interview with
detectives, Moorer told Gonzalez to call a woman who would confirm his whereabouts,
and it’s reasonable to infer that Moorer meant police officers should speak to his
girlfriend. See [174] ¶ 56. 20 Detectives McDermott and Folino went to Moorer’s
residence. [174] ¶ 57; [164] ¶ 107. Moorer’s girlfriend, Lakisha Shorter, answered the
door, but the detectives didn’t interview her. [174] ¶ 57. In depositions taken later,
Shorter and Tierra Moorer said that Moorer was with them at the party at the time
of the murder. [174] ¶ 62.
At Moorer’s home, McDermott and Folino spoke to Vaneglen Moorer and
Jeanetta Nobles. [174] ¶ 58; [164] ¶¶ 107–110. 21 Vaneglen said that she was with
Moorer on the day of the shooting, and that he attended a party that was on the first
floor of their home. See [164] ¶ 108; [174] ¶ 58. But Vaneglen said that she had
periodically left the party to be with her sleeping children, and that there were times
that night when she didn’t see Moorer. [164] ¶ 109; [174] ¶ 58. Nobles said that she
was upstairs but heard several people playing music downstairs. [164] ¶ 110. Nobles
an injury to one his arms that wasn’t in the photographs of Moorer at the time of his arrest
doesn’t controvert the identification itself. The fact is admitted.
The cited portions of Moorer’s interview with detectives don’t show that Moorer told officers
to speak to his girlfriend, merely to an unnamed woman who would confirm his whereabouts
on the night of the shooting. See [154-33] at 36. But Moorer referred to his girlfriend earlier
in his interview, see id. at 34, and it’s reasonable to infer that Moorer wanted police officers
to speak to her to confirm his alibi.
20
For ease of reading I refer to Vaneglen Moorer by her first name and plaintiff Thomas
Moorer by his last.
21
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was asleep from 10 p.m. on August 27 to 2 a.m. on August 28, and didn’t see Moorer
during that period. Id. ¶ 110. 22
At some point after their interviews at Moorer’s residence, Vaneglen and
Nobles were taken to the police station. [164] ¶ 111; see [174] ¶ 60. The parties
dispute whether Vaneglen had a choice to go to the police station or not. See [174]
¶ 61; [164] ¶ 113. 23 Vaneglen and Nobles spoke to ASA Augustus, and detective
Frank Szwedo was also present. [164] ¶ 111; see [174] ¶ 60. Early in the morning on
August 30, Vaneglen and Nobles signed written statements at the station. [164]
¶ 112; [174] ¶ 60. Their statements largely agreed with what they told detectives the
day before. See [164] ¶ 112; [174] ¶ 61; [165-40] at 3. Vaneglen and Nobles were not
promised anything in exchange for cooperating with the investigation. [164] ¶ 113. 24
Plaintiff argues that detective Folino was personally involved in the deprivation of his
rights because Folino was present at the interviews of Vaneglen and Nobles but didn’t speak
to other witnesses about Moorer’s whereabouts at the time of the shooting. See [163] at 48.
But while an officer can’t ignore conclusive evidence of an alibi, the Fourth Amendment
doesn’t require officers to investigate the validity of an affirmative defense. See Dollard v.
Whisenand, 946 F.3d 342, 355 (7th Cir. 2019). Here, there wasn’t conclusive evidence of
Moorer’s alibi: defendants weren’t required to take Moorer’s word for it, and Folino had no
duty to talk to every person in Moorer’s house in order to verify plaintiff’s whereabouts. The
facts show that Folino’s involvement in the investigation was minimal, and Moorer hasn’t
shown that Folino was personally involved in the deprivation of his constitutional rights. See
Johnson v. Rimmer, 936 F.3d 695, 710–11 (7th Cir. 2019). Folino is entitled to summary
judgment on the § 1983 claim.
22
The record cited by plaintiff doesn’t support the allegation that Vaneglen was told she had
to go to the police station, but Vaneglen did testify to that effect elsewhere. See [165-46] at
119.
23
Moorer argues that Szwedo was personally involved in the violation of his rights because
Szwedo was present when Vaneglen and Nobles were interviewed at the station and knew of
other alibi witnesses but failed to interview them. See [163] at 48. But Szwedo’s failure to
interview alibi witnesses didn’t violate Moorer’s rights, see Jackson v. City of Peoria, Illinois,
825 F.3d 328, 330 (7th Cir. 2016) (citations omitted), and his involvement in the case began
and ended with the interviews of Vaneglen and Nobles. Szwedo wasn’t personally involved
24
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D.
The Grand Jury, Pretrial Detention, and Acquittal
At 12:15 a.m. on August 30, Augustus approved three felony charges against
Moorer: first degree murder, attempted murder, and aggravated battery with a
firearm. [164] ¶ 114; [174] ¶ 59. McDermott, Gonzalez, and Cardo said that they
didn’t pressure or lie to Augustus in order to coerce her into approving the charges.
[164] ¶ 115.
In September 2010, a grand jury heard testimony from Vaneglen and Nobles,
along with Edwin, Miguel, Rivera, Kindelan, and Hernandez. Id. ¶¶ 116–19. The
state introduced the advisory forms and photo arrays documenting the witness
identifications of Moorer. Id. ¶ 119. The grand jury returned a 135-count indictment
charging Moorer with first-degree murder, among other crimes. Id. ¶ 120.
As part of its pretrial preparations, the state conducted testing on the physical
evidence from the crime and studied the phone records of the number associated with
Boom. [164] ¶¶ 121–22. Investigators compared Moorer’s DNA to samples found at
the crime scene. Id. ¶ 121; [174] ¶ 65. A brown hat found at the scene had DNA from
two profiles, but neither matched Moorer. [174] ¶ 65. Similarly, Moorer was excluded
as a match for DNA found on two pieces of black cloth, a portion of a collar, and a tshirt. Id. The state subpoenaed phone records for the number associated with Boom
and hired an expert to analyze cell tower information to determine the phone’s
location at the time of the shooting. [164] ¶ 122. The expert was unable to determine
in the alleged violation of Moorer’s rights, and so he is entitled to summary judgment on the
§ 1983 claim.
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where the phone had been located during the shooting because it had been turned off.
Id. ¶ 123. The expert was able to determine that the records were inconsistent with
the phone being used near Moorer’s home on August 27 or 28, 2010. Id. The phone
number associated with Boom continued to be used after Moorer was arrested. See
[174] ¶ 12. One of the prosecutors in Moorer’s trial later said that the cell phone could
have contained exculpatory evidence. Id. ¶ 92.
Four years after Moorer’s arrest, the city fired detective McDermott because
he appeared with another CPD officer in a photograph with an African American
man, posing as if McDermott were a hunter and the man was his prey. [174] ¶ 105. 25
The Police Board determined that McDermott impeded CPD’s efforts to achieve its
policy and goals, discredited the department, and disrespected the unidentified
African American man in the photograph. Id.
Moorer’s criminal trial was held in July 2017, almost seven years after his
pretrial detention started. [164] ¶ 127. Edwin, Martinez, Miguel, Hernandez, Rivera,
and Kindelan testified for the prosecution and reaffirmed their identifications of
Moorer as one of the shooters. Id. ¶ 128. A professor of psychology testified for the
The circumstances of McDermott’s termination may bear on his character for truthfulness
because they suggest a potential bias. See Fed. R. Evid. 608. That said, this fact can’t help
Moorer at this stage of the case because credibility is not assessed at summary judgment,
and none of the undisputed facts depend on McDermott’s credibility. See Lisle v. Welborn,
933 F.3d 705, 716 (7th Cir. 2019) (citing Palmer v. Franz, 928 F.3d 560, 565 (7th Cir. 2019)).
Plaintiff also offers facts about two other lawsuits involving McDermott and detective Folino,
see [174] ¶¶ 103–104, but those allegations are inadmissible character evidence because they
are relevant only insofar as they make it more likely that the officers acted similarly in this
case. See Fed. R. Evid. 404(b); United States v. Gomez, 763 F.3d 845, 855 (7th Cir. 2014).
25
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defense that the photo array and live lineups including Moorer weren’t reliable. Id.
¶¶ 130–31. 26
The jury found Moorer not guilty on all counts. [164] ¶ 134. Ten months later,
Moorer filed this lawsuit. [1].
III.
Analysis
A.
Fourth Amendment: Unlawful Detention
The Fourth Amendment to the Constitution protects “[t]he right of the people
to be secure in their persons ... against unreasonable searches and seizures.” U.S.
Const. amend. IV. A seizure, including pretrial detention, is reasonable only if it was
based on probable cause to believe the detainee had committed a crime. See Lewis v.
City of Chicago, 914 F.3d 472, 476 (7th Cir. 2019) (citation omitted). The Fourth
Amendment governs both detentions that happen before legal process and pretrial
detentions that occur after legal process. See Manuel v. City of Joliet, Ill., 137 S. Ct.
911, 919 (2017); see also Kuri v. City of Chicago, 990 F.3d 573, 575 (7th Cir. 2021).
Moorer alleges a series of facts drawn from a report prepared by this same expert, see [174]
¶¶ 70–80; from a report by a second witness, a lawyer and retired police officer, see id. ¶¶ 81–
96; and from deposition testimony of a third expert, another professor of psychology. See id.
¶¶ 97–102. These experts cast doubt on the reliability of the identifications in the case, note
the non-identification evidence that pointed away from Moorer, opine that the missing cell
phone was possibly exculpatory, and conclude that defendants didn’t follow proper
procedures in various ways. See [174] ¶¶ 70–102. The experts’ opinions are more than a
“bottom line,” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (quoting Mid-State
Fertilizer Co. v. Exch. Nat’l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989)), and are at least
minimally relevant here because they address flaws in the investigation that could
undermine defendants’ probable cause to detain Moorer. See Williamson v. Curran, 714 F.3d
432, 444 (7th Cir. 2013). However, that expert witnesses found the identifications in this case
to be unreliable or suggestive is not conclusive because whether probable cause existed based
on the undisputed facts at summary judgment is a question of law. See United States v. Ellis,
499 F.3d 686, 688 (7th Cir. 2007) (quoting Smith v. Lamz, 321 F.3d 680, 684 (7th Cir. 2003)).
26
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Unlawful pretrial detention occurs when either “the police hold someone without any
reason before the formal onset of a criminal proceeding,” or when “legal process itself
goes wrong—when, for example, a judge’s probable-cause determination is predicated
solely on a police officer’s false statements.” Manuel, 137 S. Ct. at 918.
Probable cause is an absolute bar to a claim for unlawful detention. See Burritt
v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (quoting Mustafa v. City of Chicago,
442 F.3d 544, 547 (7th Cir. 2006)). Probable cause exists if the facts and
circumstances within the arresting officer’s knowledge would allow a prudent person
to believe that the suspect had committed or was committing an offense. Camm v.
Faith, 937 F.3d 1096, 1105 (7th Cir. 2019) (quoting Gower v. Vercler, 377 F.3d 661,
668 (7th Cir. 2004)). Probable cause is assessed objectively, based on the conclusions
that the arresting officer reasonably might have drawn from information known to
him. Young v. City of Chicago, 987 F.3d 641, 644 (7th Cir. 2021) (citations omitted).
A grand jury indicted Moorer, [164] ¶ 120, and that’s prima facie evidence of
probable cause. Coleman v. City of Peoria, Illinois, 925 F.3d 336, 351 (7th Cir. 2019)
(citing Wade v. Collier, 783 F.3d 1081, 1085 (7th Cir. 2015)). The presumption of
probable cause after a grand jury has indicted a defendant can be rebutted by
“evidence that law enforcement obtained the indictment through improper or
fraudulent means.” Id. (citations omitted). In other words, Moorer must show that
defendants knew that there was no probable cause to seize him or intentionally or
recklessly provided false information to the grand jury. See id. (citing Williamson v.
Curran, 714 F.3d 432, 444 (7th Cir. 2013)); Olson v. Champaign County, Ill., 784 F.3d
20
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1093, 1100 (7th Cir. 2015) (citations omitted) (officers act unreasonably if they
intentionally or recklessly provide false information).
A single identification from a credible eyewitness is sufficient for probable
cause. Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015) (citing Woods v. City of
Chicago, 234 F.3d 979, 996 (7th Cir. 2000)); Phillips v. Allen, 668 F.3d 912, 915 (7th
Cir. 2012) (citations omitted) (“Identification by a single eyewitness who lacks an
apparent grudge against the accused person supplies probable cause for arrest.”). But
to establish probable cause, police officers can’t rely on identifications that are the
product of “coercion or manipulation.” Hart, 798 F.3d at 587 (citing Phillips, 688 F.3d
at 917). Moorer wants the eyewitness identifications in his case to be assessed using
the two-step process used in the Due Process context, see [163] at 36, but that is not
the test for probable cause under the Fourth Amendment. See Phillips, 688 F.3d at
915; Coleman v. City of Peoria, Illinois, 925 F.3d 336, 347–48 (7th Cir. 2019). Instead,
to show that officers lacked probable cause to detain him on the basis of a coerced or
manipulated identification, Moorer must show that defendants used a forbidden
technique “to trick a person into making an unreliable identification.” Phillips, 688
F.3d at 917. Or, Moorer must show that a jury could infer that the officers did not
believe that the identifications were truthful. See Robertson v. Dep’t of Health Servs.,
949 F.3d 371, 377–78 (7th Cir. 2020).
Moorer argues that the identifications in his case were unreliable, overly
suggestive, and that—because of gaps in the record about how he became a suspect,
missing evidence, unfollowed leads, and evidence that pointed away from him—
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defendants knew that the eyewitnesses were mistaken or lying when they identified
him as being involved in the murder. See [163] at 36–45. 27 But the undisputed facts
don’t support these arguments, and no jury could find that defendants coerced or
manipulated the witness identifications or otherwise had reason to know that Moorer
wasn’t involved in the murder or that the identifications were false.
1.
The Police Officers Were Not Required to Discount the Witnesses’
Identifications
By pointing out inconsistencies between the witnesses’ identifications of
Moorer and their earlier and later statements to detectives, see [163] at 16–18, 26–
29, 40–41, Moorer challenges the eyewitnesses’ credibility. See Coleman v. City of
Peoria, Illinois, 925 F.3d 336, 351 (7th Cir. 2019). It’s true that some of the witnesses’
identifications don’t line up with how they otherwise described the shooting and the
suspect. For instance, Moorer had facial hair at the time of his arrest, see [154-42],
but in their initial statements none of the witnesses described the first shooter as
having a mustache. See [174] ¶¶ 3–4, 13, 16, 19, 21, 23; [164] ¶ 50. 28 The
circumstances of the crime may also have made it hard for witnesses to see the
suspect clearly: it was dark, see [164] ¶¶ 13–15, and the suspect had a mask on for
Defendants Fanning, Leal, Spanos, Becker, Folino, Benigno, and Szwedo were not
personally involved in the alleged violation of Moorer’s rights, and summary judgment is
entered in their favor on that basis. See notes 3, 4, 15, 22, and 24 above. Defendants Valkner,
Tedeschi, Gonzalez, Cardo, McDermott, and the City of Chicago remain at issue for the
Fourth Amendment claim.
27
Other inconsistencies include: (1) Rivera described the masked shooter as having
dreadlocks, even though Moorer didn’t at the time she viewed the lineup, [164] ¶ 93, and (2)
Kindelan said she didn’t see anyone holding a gun, but identified Moorer as having held one
during the crime. Id. ¶ 96.
28
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much of the encounter. See id. ¶¶ 13, 22.29 But these inconsistencies and challenges
to perception didn’t make the witnesses so unreliable that the officers could not
believe them. See Hart v. Mannina, 798 F.3d 578, 591 (7th Cir. 2015) (“In real-world
investigations, police often confront the limits of human memory and facial
recognition.”); Woods v. City of Chicago, 234 F.3d 979, 997 (7th Cir. 2000) (facts that
diminished the credibility of a criminal complaint weren’t enough to render that
report incredible as a matter of law); Johnson v. Acevedo, 572 F.3d 398, 405 (7th Cir.
2009) (citation omitted) (eyewitness failure to include facial hair in an initial
description was minor discrepancy affecting credibility but not destroying validity of
identification testimony). It’s undisputed that the eyewitnesses were at the scene of
the crime, saw a man committing crimes, and personally identified Moorer as that
man. There’s no evidence that the witnesses had a grudge against Moorer, and their
accounts were not incredible as a matter of law. See Coleman, 925 F.3d at 351 (citing
Cairel v. Alderden, 821 F.3d 823, 835 (7th Cir. 2016)).
2.
There Is No Evidence that the Identifications Were Coerced or
Manipulated
Moorer offers a long list of reasons why both the in-person and photo array
lineups in his case were overly suggestive or unreliable, and therefore not a suitable
basis for probable cause. See [163] at 36–45.
Moorer’s expert witness noted that poor viewing conditions would have made it difficult for
the eyewitnesses to see the suspect, the gun and stress would have distracted the witnesses
from the appearance of the offender, the eyewitnesses’ attention was divided among multiple
offenders, the event took place in a short period of time, and cross-racial identification may
have made accurate identification more difficult. [174] ¶¶ 72–76.
29
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First, Moorer argues that the fillers in both the array and lineups didn’t match
the described weight of the offender. See [163] at 38. Some of the witnesses said the
suspect was between 180-250 pounds, see [174] ¶¶ 3–4, 7, 21, 23, but not all of the
witnesses estimated the masked man’s weight. See id. ¶¶ 13, 16, 19. The
demographics of the fillers in the in-person lineups weren’t recorded, see [164] ¶ 85,
but it’s reasonable to infer that they were smaller than the 250-pound estimate given
by some of the eyewitnesses. See [154-38]; [154-42]. The fillers in the photo array all
weighed between 175-195 pounds, see [154-36], and were therefore lighter than the
description given by three of the eyewitnesses, but fit the lower end of the description.
See [174] ¶¶ 3, 7, 21, 23.
An examination of the photographs and the demographics of the photo array
fillers shows lineups of men reasonably similar in weight to the suspect witnesses
described. See [154-36]; [154-38]; [154-42]. In other words, the discrepancies in size
between the fillers in both the array and in-person lineups and the description given
by some of the eyewitnesses wasn’t so great as to make the array and lineups overly
suggestive. See United States v. Curry, 187 F.3d 762, 769 (7th Cir. 1999) (quoting
United States v. Funches, 84 F.3d 249, 253 (7th Cir. 1996)) (participants in a lineup
must have “descriptive features within a reasonable range of similarity to each
other”). 30 Similarly, the deviation from the eyewitness descriptions does not support
Police best practices suggest that defendants should have selected fillers who “generally fit
the witness[es’] description of the perpetrator,” but that “when the description of the
perpetrator differs significantly from the appearance of the suspect, fillers should resemble
the suspect in significant features.” U.S. Department of Justice, Technical Working Group
for Eyewitness Evidence, Eyewitness Evidence: A Guide for Law Enforcement 29 (October
1999).
30
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an inference that the officers chose the fillers in an intentional effort to produce an
identification they knew to be incorrect.
Moorer’s related argument that the photo array isn’t a reliable source of
probable cause because he appeared to be the largest person also fails. See [163] at
37–38; United States v. Traeger, 289 F.3d 461, 474 (7th Cir. 2002) (citing United
States v. Moore, 115 F.3d 1348, 1361 (7th Cir. 1997)) (police officers conducting
lineups are required to make “reasonable efforts under the circumstances to conduct
a fair and balanced presentation,” not “search for identical twins in age, height,
weight, or facial features”). It’s debatable whether Moorer appears to be the largest
person in the photo array. See [154-36]. His height and weight according to the array
demographics was close to that of the fillers, see id., but he actually weighed
significantly more—235–245 pounds—at the time the photograph was taken. See
[174] at 1. 31 If Moorer did appear larger than the other participants in the photo
array, however, the difference between Moorer and the fillers was not so great as to
create an overly suggestive lineup under due process standards. See Traeger, 289 F.3d
at 474 (lineup wasn’t suggestive where suspect was larger than other participants);
Funches, 84 F.3d at 253 (lineup wasn’t unduly suggestive where suspect was threeto-five inches shorter and twenty-to-forty-five pounds lighter than other lineup
participants). And even at this stage of the case where inferences are drawn in
Moorer’s favor, the weight or size differential is not evidence from which a jury could
Moorer hasn’t offered any evidence that police officers were aware of Moorer’s actual weight
at the time the photograph was taken. See [174] ¶ 1.
31
25
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conclude that the officers designed the lineup to trick the eyewitnesses into picking
Moorer or that the officers knew he was not reasonably suspected of the crime. See
also below at 32–38.
Moorer next argues that the photo array can’t be relied on because the top
three fillers appeared bald even though no witness described the offender that way.
See [163] at 38. While the photograph of one of the men in the array is so light as to
make identifying facial features impossible, the five other men in the array (including
Moorer) have either short hair or none at all. See [154-36]; [154-37]. Given that only
one of the witnesses had described the perpetrator’s hairstyle, [174] ¶ 19, which didn’t
match Moorer’s hair or that of any of the fillers, it wasn’t suggestive to include bald
men in the array because most of the witnesses hadn’t identified any particular hair
style for the suspect. See United States v. Galati, 230 F.3d 254, 260 (7th Cir. 2000)
(finding that insubstantial differences in hair style did not make an array overly
suggestive where the men pictured “all fit the general descriptions” offered by the
witnesses); United States v. Gonzalez, 863 F.3d 576, 585 (7th Cir. 2017) (photo array
was suggestive where only a suspect and one other man in the array matched the
witness’s description of a particular hairstyle).
That Moorer wore a dark shirt didn’t make the in-person lineups an unreliable
source for probable cause, either. See [163] at 37. In general, identifications aren’t
overly suggestive where a suspect wears an article of clothing associated with the
description given by witnesses. See, e.g., Coleman v. Alabama, 399 U.S. 1, 6 (1970);
United States v. Williams, 522 F.3d 809, 810–11 (7th Cir. 2008). Here, Moorer wasn’t
26
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the only person wearing a dark shirt in the initial in-person lineup, seen by five of
the witnesses. See [154-38]. Only some of the witnesses described the attacker as
having worn a black shirt, see [174] ¶¶ 3–4, 7, 13, 16, 19, 21, 23, and Moorer wore a
shirt with lettering on it for the lineups, see [154-38]; [154-42], which isn’t how any of
the witnesses described the suspect. None of the witnesses who identified Moorer in
the in-person lineups said they did so because of what he was wearing. [164] ¶¶ 60,
68.
Moorer also argues that the in-person lineups were unreliable because he was
the only person who appeared in both the photo array and the in-person lineups
(conducted within days of the photo array). See [163] at 37–38; [164] ¶¶ 68, 92–97.
The problem for Moorer here is that, although suggestive, this is not a forbidden
practice. So the photo array could still be considered when evaluating probable cause.
See United States v. Sanders, 708 F.3d 976, 989 (7th Cir. 2013) (quoting United States
v. Griffin, 493 F.3d 856, 865 (7th Cir. 2007)) (“[T]here is nothing per se impermissible
about placing the same suspect in two different identification procedures.”). Absent
some evidence to suggest that Moorer’s repeated appearance in different
identification procedures was designed to have him selected or that the officers did
not genuinely suspect him, the lineup identifications could support probable cause in
his case.
On that front, Moorer does challenge the identifications on the basis of
allegedly coercive or manipulative conduct by some of the CPD defendants. See [163]
at 37–39. If a police officer coaches a witness by leading them to identify a particular
27
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person, that identification cannot provide probable cause. See Hart v. Mannina, 798
F.3d 578, 588 (7th Cir. 2015); Phillips v. Allen, 668 F.3d 912, 917 (7th Cir. 2012). On
this basis, Moorer challenges photo array identifications made by Edwin and
Kindelan, and the in-person identification made by Miguel. See [163] at 38–39.
Before the identifications, each of the witnesses was presented with and signed
an advisory form explaining that a suspect wouldn’t necessarily be in the array or
lineup and that the witness wasn’t required to make an identification. See [164]
¶¶ 61–63, 87–88. And the witnesses weren’t told who to identify or where Moorer was
in the array or lineup. Id. ¶¶ 65, 91.
After Edwin initially identified Moorer’s photograph from the results of the
nickname search, detectives asked him if a separate photograph of Moorer was “the
person that you picked,” and then had Edwin sign that printout. See [174] ¶ 32. It’s
reasonable to infer, as plaintiff suggests, that the second printout of Moorer’s
photograph was, in fact, the photo array. See id.; [164] ¶¶ 56, 67; [154-37] at 4. CPD
officers appear to have used the photo array to confirm Edwin’s initial identification,
which he made minutes before from among the results of the nickname search.32
Asking Edwin to confirm his identification wasn’t a separate, coercive identification,
While that initial identification from among database results may not have followed best
practices, police officers didn’t use an already forbidden identification technique by showing
Edwin the results of the nickname search. See Coleman v. City of Peoria, Illinois, 925 F.3d
336, 348 (7th Cir. 2019) (citation omitted) (an officer’s “cold search” on a database that led to
photographs of a plaintiff along with more than 100 other possible suspects “may not have
followed best practices” but wasn’t suggestive under the Due Process Clause); United States
v. Jones, 454 F.3d 642, 649 (7th Cir. 2006) (citation omitted) (“For the most part ... suggestive
procedures involve the repeated presentation of only one suspect by the police to a witness,
or a lineup in which the suspect is clearly distinguishable.”).
32
28
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and no one told Edwin who to identify among the many initial photographs that he
was given. See [164] ¶ 56; [174] ¶ 31; Phillips, 668 F.3d at 917 (indicating that
presenting a witness just one photograph and asking him to identify the culprit is
impermissible).33 Even if Edwin’s viewing of the photo array as instructed by
detectives was a separate, coerced identification, the use of the forbidden technique
of telling Edwin who to identify doesn’t taint all the other identifications in the case;
it just means that police officers weren’t entitled to rely on Edwin’s photo array
identification to establish probable cause. Edwin still identified Moorer from the
larger group of photos, before he was prompted to confirm the identification, and
other eyewitnesses identified Moorer independently of Edwin. See Hart, 798 F.3d at
590 (finding that circumstantial evidence concerning one coerced identification would
need to be “compelling” in order to permit a reasonable inference that other
identifications were also coached or manipulated).
Defendants didn’t coerce Kindelan’s photo array identification by documenting
her choice, either. After Kindelan identified Moorer, detective Leal circled Moorer’s
photograph on Kindelan’s copy of the array in order to verify her identification. [164]
¶ 66. The officers didn’t coach or manipulate Kindelan because Leal documented an
identification that the witness had already made; he didn’t tell Kindelan who to pick
out. See id.
A proper documentation for that initial identification, as Moorer argues, would have
required defendants to also preserve the database results that Edwin viewed. See [163] at 41.
33
29
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Miguel said that detectives, calling him into the station to view the in-person
lineup, told him that a suspect had been arrested and that it was the person he had
identified in the photo array. See [164] ¶ 88. Conducting the lineup after priming the
witness in this way was suggestive, because telling Miguel that the person he had
previously identified had been arrested was likely to push the witness into identifying
that person in a subsequent lineup. See United States v. Jones, 454 F.3d 642, 649 (7th
Cir. 2006) (citing Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003); United
States v. Traeger, 289 F.3d 461, 473–74 (7th Cir. 2002)) (suggestive procedures are
those “that have been orchestrated to yield the identification of one particular
suspect”). The suggestiveness of Miguel’s in-person lineup identification meant that
it couldn’t contribute to probable cause; but Miguel’s earlier photo array identification
could. See [164] ¶ 68. And there’s no basis from which to infer that the other
identifications in this case were similarly tainted. See Hart, 798 F.3d at 590. In other
words, that Miguel’s in-person identification was suggestive isn’t a basis for liability
under the Fourth Amendment, which depends on the existence of probable cause. See
Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 919 (2017); Phillips, 668 F.3d at 917.
The techniques and procedures officers used during the array and lineups fell
below the standards prescribed by police best practices. Department of Justice
guidelines suggest moving a suspect’s position in each lineup, see U.S. Department of
Justice, Technical Working Group for Eyewitness Evidence, Eyewitness Evidence: A
Guide for Law Enforcement 30 (October 1999), but the CPD defendants placed Moorer
in the same position in the photo array given to all of the witnesses and in all but one
30
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of the in-person lineups. [174] ¶ 88. It is reasonable to infer that the officers involved
in the investigation also participated in the identifications, so they did not use a
“double-blind” method wherein “the administering officer does not know who is and
is not a suspect.” Hart v. Mannina, 798 F.3d 578, 588 n.1 (7th Cir. 2015) (citations
omitted). 34 Police officers conducting lineups should “[a]void saying anything to the
witness that may influence the witness’ selection,” U.S. Department of Justice,
Technical Working Group for Eyewitness Evidence, Eyewitness Evidence: A Guide for
Law Enforcement 33–35 (October 1999), but that didn’t always happen in this case.35
However, procedural flaws like these do not necessarily establish police coercion or
manipulation. See Hart, 798 F.3d at 588 (“[C]riticism of police methods does not by
itself establish a constitutional violation.”); Askew v. City of Chicago, 440 F.3d 894,
896 (7th Cir. 2006). 36
Plaintiff also argues that the lineups were defective because officers didn’t record how
confident the witnesses were in their identifications, see [163] at 16, 31, but doesn’t cite any
evidence showing that defendants failed in this way. See [174] ¶ 98. Moorer claims that the
independence of the identifications was tainted because some of the witnesses sat together
at the police station before viewing the in-person lineup. See [163] at 30–31; [174] 89. But the
witnesses viewed the lineup independently of one another and waited in separate rooms until
all of the other witnesses had finished. [164] ¶¶ 89–90.
34
Before viewing the photo array, Hernandez said that police officers told her to “pick out
who I seen.” [164] ¶ 64. And during Edwin’s viewing of the in-person lineup, he indicated that
a second person involved in the shooting might be in the lineup, but officers told him to focus
only on the man he knew as Boom. Id. ¶ 94. Neither of these instructions made the
subsequent identifications unreliable as a source of probable cause because officers didn’t tell
the witnesses which individual to choose. See Phillips v. Allen, 668 F.3d 912, 917 (7th Cir.
2012).
35
Plaintiff’s citations to Sanders v. City of Chicago Heights, Case No. 13 C 0221, 2016 WL
2866097 (N.D. Ill. May 17, 2016) aren’t helpful because that case, centering on the Due
Process Clause, didn’t involve a Fourth Amendment claim or identify a specific forbidden
identification technique. Kuri v. Folino, 409 F.Supp.3d 626 (N.D. Ill. 2019) is distinguishable
because that decision involved post-trial motions under Rules 50, 59, and 60, not Rule 56. In
36
31
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Moorer hasn’t pointed to any constitutionally forbidden technique that
defendants used in order to coerce or manipulate every eyewitness into identifying
him, and the bulk of the identifications were not so tainted, suggestive, or unreliable
that they couldn’t support the probable cause defendants needed to detain Moorer.
See Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012); Hart, 798 F.3d at 587.
3.
Other Procedural Problems, Missing Evidence, and Exculpatory
Evidence
Although imperfect or even shoddy as an evidence-gathering technique, the
identification procedures used here did not require the officers to eliminate Edwin’s
initial identification or Martinez’s lineup pick of Moorer from the probable cause
assessment; and at a minimum, separately and as corroboration of each other, those
two identifications established probable cause to believe Moorer committed a crime.
But if defendants nonetheless knew or should have known that Moorer wasn’t guilty,
the officers couldn’t rely on otherwise valid identifications. See Hart v. Mannina, 798
F.3d 578, 591 (7th Cir. 2015) (citations omitted) (“A police officer is permitted to rely
on information provided by an eyewitness as long as the officer reasonably believes
the witness is telling the truth.”); Reynolds v. Jamison, 488 F.3d 756, 765 (7th Cir.
2007) (citations omitted) (an officer can rely on the complaint of a single witness to
establish probable cause “unless the officer has a reason to question the witness’
account”). Citing gaps in the record as to how he became a suspect, the loss of the
that case, evidence suggested that officers manipulated or fabricated identifications, and
without the identifications, the court found that a jury’s verdict that defendant officers lacked
probable cause was not against the manifest weight of the evidence. Id. at 647.
32
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victim’s cell phone, exculpatory evidence, and failure to follow leads, Moorer claims
that’s what happened here: defendants knew or should have known that he was
innocent and so they had reason to doubt the identifications. See [163] at 41–45. 37
Moorer is right that it’s not entirely clear how he became a suspect. Edwin
played the central role in first identifying Moorer,38 but it’s unclear which CPD officer
ran the nickname search, how many results that search turned up, or why Moorer’s
photograph in particular was included in the images shown to Edwin. See [164] ¶ 55;
[174] ¶¶ 24–26, 28. Police officers failed to save the nickname search that turned up
Moorer’s image, and also failed to preserve records of the initial photo array that
Edwin viewed. See [174] ¶¶ 28, 36. The timeline of events leading up to the photo
array identifications doesn’t make sense, either. Edwin’s interview with detective
Valkner (where it appears that he viewed the results of the nickname search for
twenty to thirty minutes and then identified Moorer) is timestamped 1:30 a.m., and
it generally took officers ten to twenty minutes to put together a photo array. See
[174] ¶¶ 7, 30; [164] ¶¶ 53–55. But at 1:35 a.m., just five minutes later, Hernandez
identified Moorer in a photo array. [164] ¶ 67.
Moorer also argues that detective McDermott’s racial bias undermines his credibility, but
as noted above, none of the undisputed facts depend on McDermott’s credibility and the
objective evaluation of probable cause does not depend on the subjective reasons that
McDermott (or any defendant) actually detained Moorer. See Young v. City of Chicago, 987
F.3d 641, 644 (7th Cir. 2021) (citations omitted).
37
Edwin told detectives that the man who entered his apartment was named Boom and that
Edwin had seen him before. [164] ¶ 53; [174] ¶¶ 7–8, 24. The name Boom led to a nickname
search in a police database. [174] ¶ 24; [164] ¶¶ 55–56; [165-15] at 10–11. Detectives gave
Edwin papers that included a picture of Thomas Moorer, along with photographs of other
people. See [164] ¶ 56; [174] ¶ 31. After looking at the photographs for twenty to thirty
minutes, Edwin identified Moorer as the assailant. [164] ¶ 56.
38
33
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From these holes and discrepancies in the record, Moorer implies that a jury
could fill the gaps with an inference that defendants set him up. But flawed
policework is not a sufficient basis from which to draw that inference. See Askew v.
City of Chicago, 440 F.3d 894, 896 (7th Cir. 2006) (police failure to follow correct
procedures is a normal occurrence not “sufficient to permit second-guessing and
damages”); Coleman v. City of Peoria, Illinois, 925 F.3d 336, 348 (7th Cir. 2019)
(describing a similar “cold search” for suspects in a database as police not following
best practices). The initial array that Edwin viewed appears rushed, it was poorly
documented, and police records don’t explain the precise order of operations that
night, but it’s not reasonable to infer from those procedural flaws that detectives
knew Moorer was innocent. See Askew, 440 F.3d at 896; Hart, 798 F.3d at 588 (finding
no Fourth Amendment liability where police officers failed to follow correct
procedures but there was no evidence that procedural flaws led to a constitutional
violation). There’s no evidence that the detectives were aware of Moorer until after
Edwin identified him, and they didn’t just hand Moorer’s photograph to Edwin: they
asked him to look through a series of mugshots, with Moorer’s being one among many.
See [164] ¶ 56. No jury could infer from that process that defendants knew Moorer
wasn’t the murderer.
Officers mishandled evidence, too. But the fact that defendants lost or
destroyed Edward’s cellphone doesn’t show that they knew Moorer was innocent.39
Plaintiff also claims that one of the reports documenting a witness statement is “missing.”
See [102] ¶ 23. Moorer is probably referring to Kindelan’s interview with detective Leal,
which wasn’t recorded. See [174] ¶ 21; [164] ¶¶ 51–52. Moorer hasn’t alleged anything to
39
34
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Because the phone number associated with Boom continued to be used after Moorer
was arrested, see [174] ¶ 12, it’s reasonable to infer that Edward’s missing phone
contained evidence that could have supported Moorer’s case (e.g., other evidence that
could identify Boom as someone other than Moorer). But McDermott needed to
preserve evidence that he knew was exculpatory, and he had a duty to not destroy
exculpatory evidence in bad faith. See Hart, 798 F.3d at 589 (citing Arizona v.
Youngblood, 488 U.S. 51, 58 (1998)). Plaintiff does not point to any evidence that
McDermott knew the phone contained information that would exculpate Moorer,40 or
that McDermott destroyed it in bad faith, and the loss of the phone doesn’t show that
defendants knew Moorer was innocent. See Hart, 798 F.3d at 589 (rejecting an
argument that the spoliation of evidence by police officers was a basis for liability
under the Fourth Amendment where officers didn’t destroy evidence recklessly or in
bad faith).
Finally, Moorer argues that defendants had reason to doubt the identifications
because evidence pointed away from him and defendants failed to adequately follow
leads that would have shown he didn’t commit the crime. See [163] at 42–44. The
indicate that the contents of that interview (which was documented in a separate scene
report) should have shown officers that he was innocent, or suggested that it was destroyed
in bad faith. See [163] at 9, 11–12.
Plaintiff argues that the phone had known exculpatory value because (1) the phone referred
to Boom, not Moorer’s true nickname, Boomer; (2) the location of the phone associated with
Boom didn’t match up with Moorer’s activities; and (3) because Edwin said that Boom had
called or texted his brother prior to the murder. [163] at 50. It’s reasonable to infer that
McDermott knew the phone contained this evidence, but Plaintiff hasn’t shown that this
evidence was lost or concealed. It is not reasonable to infer that the phone had other
undisclosed exculpatory evidence. And what was known about the phone was not so
compelling that a jury could infer that McDermott did not genuinely believe the eyewitness
after eyewitness who identified Moorer.
40
35
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evidence that pointed away from Moorer at the time he was charged included: (1)
Moorer’s nickname was Boomer, not Boom, as indicated by a tattoo on Moorer’s arm,
[174] ¶ 48; (2) he didn’t weigh as much at the time of his arrest as the man some of
the witnesses had described, see id. ¶ 1; (3) detectives didn’t find injuries on Moorer
or blood on his clothing, see id. ¶ 52; (4) the phone number associated with Boom was
known to be pinging at locations different from where Moorer lived or where his car
was, see id. ¶¶ 46; and (5) Moorer’s car didn’t match the description of the offenders’
vehicle. Id. ¶ 54. 41 Considering all of the facts and circumstances the officers were
aware of, there was evidence that Moorer didn’t commit the murder. But that
evidence did not undermine defendants’ probable cause to detain Moorer, which was
based on identifications by seven different eyewitnesses. See Coleman, 925 F.3d at
351 (citation omitted) (“Where a reasonable person would have a sound reason to
believe the suspect committed a crime, the police may arrest and allow the criminal
justice system to determine guilt or innocence.”); Bridewell v. Eberle, 730 F.3d 672,
676 (7th Cir. 2013) (citations omitted) (police officers determining whether probable
cause exists aren’t required to draw inferences in favor of a suspect); Askew, 440 F.3d
at 896 (the Constitution “permits [police officers] to initiate the criminal process and
leave the sifting of competing claims and inferences” to the judicial system).
Moorer also argues that DNA evidence proved his innocence, see [163] at 18–20, 43–44, but
that evidence was tested well after Moorer had been charged by the state’s attorney, see [174]
¶ 65; [164] ¶¶ 121–22, and so the DNA analysis couldn’t have undermined defendants’
probable cause at the time Moorer was detained.
41
36
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Moorer argues that defendants didn’t thoroughly investigate his case. See [163]
at 42–43. He claims defendants should have conducted a gun-shot residue test,
searched his home and car, investigated a second shooter, and interviewed alibi
witnesses,42 but the officers weren’t required to do any of those things. See BeVier v.
Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (officers are required to pursue “reasonable
avenues of investigation” and cannot ignore “facts that would help clarify the
situation,” but they are permitted to end their investigation once probable cause has
been established). 43 Once the eyewitnesses in this case identified Moorer, defendants
were entitled to rely on those identifications and were free to end their investigation.
See Williamson v. Curran, 714 F.3d 432, 441 (7th Cir. 2013) (citations omitted) (“So
long as an officer reasonably believes the putative victim of or eyewitness to a crime
is telling the truth, he may rely on [that witness’s statements] in deciding to make an
arrest, without having to conduct an independent investigation into their accounts.”);
Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 624 (7th Cir. 2010) (citation
omitted) (“While an officer may not close his or her eyes to clearly exculpatory facts,
Plaintiff also argues that police officers manipulated reports to better fit Moorer’s
description, rather than the suspect’s description as given by witnesses, see [163] at 8–9, 13,
but no evidence supports that allegation. See [165-4] at 3; [165-6] at 3; [165-39] at 2.
42
An officer “may not ignore conclusively established evidence of the existence of an
affirmative defense,” but the Fourth Amendment doesn’t require police officers to investigate
the validity of a defense. Dollard v. Whisenand, 946 F.3d 342, 355 (7th Cir. 2019) (quoting
McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009)). There was no conclusive evidence that
Moorer wasn’t at the scene of the shooting: officers weren’t required to take Moorer’s word
for it, and they had no duty to talk to every person in Moorer’s house in order to verify his
whereabouts. Unlike BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986), where officers had
to continue to investigate because they lacked information on an essential element of a crime,
defendants in this case had established probable cause on every element of the crime. See id.
(citing Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437–442 (7th Cir. 1986)).
43
37
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the Fourth Amendment does not require an officer with probable cause to arrest to
wait while pursuing further investigation.”).
Defendants needed only a single eyewitness identification to supply probable
cause. Coleman v. City of Peoria, Illinois, 925 F.3d 336, 346 (7th Cir. 2019) (citing
Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015)). They had seven. See [164] ¶¶ 56,
68, 92–97, 106. Moorer has marshaled evidence to suggest that his detention was the
product of subpar policework, but a jury could not conclude that defendants had
reason to doubt the identifications, or to know that Moorer wasn’t the murderer. The
bulk of the identifications were a reliable source of probable cause, and defendants
didn’t know that Moorer was innocent. Defendants had probable cause to detain
Moorer for murder.
4.
Proximate Cause
Even if defendants lacked probable cause to detain Moorer, his Fourth
Amendment claim would still face another challenge. To hold defendants liable under
§ 1983, Moorer needs to prove that defendants were the ones who caused a violation
of his rights. See Hoffman v. Knoebel, 894 F.3d 836, 841 (7th Cir. 2018). He can’t, and
so his § 1983 claim fails for a lack of causation as well.
Section 1983 creates a form of tort liability for the deprivation of constitutional
rights, privileges, or immunities. Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916
(2017) (citing Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). But liability under
§ 1983 depends on a showing that the defendant’s act was both “the cause-in-fact of
the injury and its proximate cause.” Hoffman, 894 F.3d at 841 (citing Whitlock v.
38
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Brueggemann, 682 F.3d 567, 582 (7th Cir. 2012)). An indictment generally breaks the
chain of causation between an unlawful arrest and § 1983 tort liability. See Colbert
v. City of Chicago, 851 F.3d 649, 655 (7th Cir. 2017) (quoting Reed v. City of Chicago,
77 F.3d 1049, 1053 (7th Cir. 1996)) (“[T]he State’s Attorney, not the police, prosecutes
a criminal action ... [T]he chain of causation [between a wrongful arrest and postindictment tort liability] is broken by an indictment, absent an allegation of pressure
or influence exerted by the police officers, or knowing misstatements by the officers
to the prosecutor.”). To succeed on a § 1983 claim for unlawful pretrial detention
against an arresting officer, Moorer must show “some postarrest action which
influenced the prosecutor’s decision to indict.” Id. (quoting Snodderly v. R.U.F.F.
Drug Enf’t Task Force, 239 F.3d 892, 902 (7th Cir. 2001)); see Young v. City of Chicago,
987 F.3d 641, 645 (7th Cir. 2021) (allegations of police misconduct can undermine
probable cause and support Fourth Amendment liability for unlawful pretrial
detention); Coleman v. City of Peoria, Illinois, 925 F.3d 336, 351 (7th Cir. 2019)
(citations omitted) (finding that the presumption of probable cause resulting from an
indictment can be rebutted by “evidence that law enforcement obtained the
indictment through improper or fraudulent means”).
Moorer argues that defendants failed to tell the prosecuting attorney all of the
relevant facts after the arrest, and that defendants revealed the timeline of the
interviews and certain witness statements in supplemental reports only after charges
had been brought. See [163] at 46–47. But the reports submitted after charges had
been brought don’t reveal anything about what the attorneys knew at the time of the
39
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indictment. See [165-3]; [165-4]. And there’s no evidence that the state’s attorneys
weren’t aware of the procedures during the identifications, the timeline of
identifications, the missing cellphone, the continued use of the phone number after
Moorer was arrested, Moorer’s lack of injuries, or the inconsistencies between
Moorer’s appearance and the descriptions given by the witnesses. See [164] ¶ 115.
The undisputed facts show that after the photo array identifications, the state’s
attorney came to the police station where she was updated on the investigation,
reviewed police reports, and reinterviewed witnesses. Id. ¶ 73. After the in-person
identifications, the state’s attorney interviewed the six eyewitnesses who identified
Moorer and two of Moorer’s alibi witnesses, Vaneglen and Nobles. Id. ¶¶ 99, 111.
Detectives Cardo, Gonzalez, and McDermott all testified that they never pressured
the state’s attorney or otherwise coerced her into approving the charges against
Moorer. Id. ¶ 115.
There were flaws in the investigation, but it’s not reasonable to infer from those
flaws that the state’s attorneys didn’t know about aspects of the investigation or that
a reasonable attorney in their position would have dropped the charges had they been
aware. See Armstrong v. Daily, 786 F.3d 529, 553 (7th Cir. 2015) (discussing § 1983’s
causation requirement for a Due Process claim based on the destruction of
exculpatory evidence). The state’s attorneys knew about the progress of the
investigation, interviewed the identifying and alibi witnesses, and weren’t pressured
or promised anything by police officers in exchange for indicting Moorer. See [164]
40
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¶¶ 73, 99, 111, 115. Moorer hasn’t offered any evidence that defendants influenced
the attorneys’ decision to indict. See [163] at 46–47.
Defendants had probable cause to detain Moorer before his trial. Alternatively,
the grand jury’s indictment severed the causal link between defendants’ actions and
Moorer’s alleged injury.44 Summary judgment is granted to defendants on the Fourth
Amendment claim.
B.
False Imprisonment
That defendants had probable cause to detain Moorer also defeats his statelaw claim for false imprisonment. See Poris v. Lake Holiday Prop. Owners Ass’n, 368
Ill.Dec. 189, 203 (2013) (citing Martel Enters. v. City of Chicago, 223 Ill.App.3d 1028,
1034 (1st Dist. 1991)) (“Probable cause is an absolute bar to a claim for false
imprisonment.”).45
The false imprisonment claim also fails because it is time-barred. Illinois law
requires that actions against “a local entity or any of its employees for any injury” be
brought “within one year from the date that the injury was received or the cause of
action accrued.” 745 ILCS 10/8-101. A false imprisonment claim accrues when a
Because the case can be decided on these grounds, I do not address the individual
defendants’ argument that they are entitled to qualified immunity on Moorer’s Fourth
Amendment claim. See [155] at 22.
44
Having resolved the only federal claim, a district court ought to relinquish jurisdiction over
supplemental state-law claims. Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015); see 28
U.S.C. § 1367(c). But the balance of judicial economy, convenience, fairness, and comity
weighs in favor of a merits decision on state-law false imprisonment claim. See Wright v.
Associated Ins. Companies Inc., 29 F.3d 1244, 1251 (7th Cir. 1994). The finding of probable
cause for the detention makes it clear how Moorer’s false imprisonment claim must be
decided, and the statute of limitations has also run.
45
41
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plaintiff is held pursuant to a warrant or other judicial process. See Nat’l Cas. Co. v.
McFatridge, 604 F.3d 335, 344 (7th Cir. 2010) (citing Mercado v. Vill. of Addison, 385
Ill.App.3d 1006 (2d Dist. 2008); Smith v. Boudreau, 366 Ill.App.3d 958 (1st Dist.
2006)); Kitchen v. Burge, 781 F.Supp.2d 721, 738 (N.D. Ill. 2011). Here, Moorer was
indicted by the grand jury in September 2010, see [164] ¶¶ 116–120, and so he had
until September 2011 to file his state-law false imprisonment claim. But his original
complaint was filed on May 30, 2018, [1], which makes this claim untimely.46
Summary judgment is granted to defendants on the false imprisonment claim.
C.
Spoliation of Evidence
Negligent spoliation of evidence is a type of negligence, not an independent
tort. See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 509–510 (7th Cir.
2007); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 192–193 (1995). 47 To show negligent
spoliation, a plaintiff must prove that a defendant owed him a duty to preserve the
evidence in question; a breach of that duty; an injury proximately caused by the
breach; and actual damages. See Borsellino, 477 F.3d at 510; Boyd, 166 Ill.2d at 194–
Moorer failed to make any arguments as to why his state-law false imprisonment claim
wasn’t barred by the statute of limitations. See [163]. He has forfeited any arguments in
opposition to the statute of limitations defense. See Salas v. Wisconsin Dep’t of Corr., 493
F.3d 913, 924 (7th Cir. 2007) (citing Witte v. Wisconsin Dep’t of Corr., 434 F.3d 1031, 1038
(7th Cir. 2006)) (a nonmovant forfeits arguments it fails to raise in a brief opposing summary
judgment).
46
Considering the factors of 28 U.S.C. § 1367(c), it makes sense to retain jurisdiction over
this state-law claim as well. The district court and the parties have already expended
substantial judicial resources: litigation began more than three years ago, and the parties
have completed discovery. See Hansen v. Bd. of Trustees of Hamilton Se. Sch. Corp., 551 F.3d
599, 608 (7th Cir. 2008). This claim is based on McDermott’s conduct during the investigation
and is intertwined with the federal claim. The correct disposition is clear, and it serves
judicial economy to decide the spoliation claim now.
47
42
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195. Here, Moorer alleges that detective McDermott negligently destroyed evidence
when he failed to preserve Edward Ramos’s cellphone and a general progress report.
See [102] ¶¶ 58–63; [163] at 49–51. 48
There is no general duty to preserve evidence under Illinois law, but one may
arise if the parties are sufficiently related and it was foreseeable that the evidence
would be used in future litigation. See Schaefer v. Universal Scaffolding & Equip.,
LLC, 839 F.3d 599, 609 (7th Cir. 2016). Moorer argues that McDermott owed him a
duty to preserve evidence because proper police practices required detectives to
document and inventory evidence, [163] at 49, but standard police practices aren’t
enough to show a duty under Illinois law. See Schaefer, 839 F.3d at 609; Boyd, 166
Ill.2d at 195. Moorer’s lawyers never asked McDermott to preserve the evidence and
McDermott didn’t segregate the evidence for Moorer’s benefit. See Boyd, 166 Ill.2d at
195; Martin v. Keeley & Sons, Inc., 365 Ill.Dec. 656, 665 (2012). McDermott never
voluntarily undertook a duty to preserve the evidence for Moorer, either. See Martin,
Moorer also brought his spoliation claim against “other unknown defendants.” [102] at 10.
Moorer failed to identify those defendants during discovery, however, and so the unknown
defendants are dismissed from the case. See Williams v. Rodriguez, 509 F.3d 392, 402 (7th
Cir. 2007); Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time, on just
terms, add or drop a party.”). Defendants argue that Moorer’s spoliation claim is time-barred.
[155] at 44–45. Under Illinois law, Moorer had one year from the date that his cause of action
accrued to file suit. See 745 ILCS 10/8-101(a). For most torts, the cause of action accrues
when the plaintiff suffers injury, but the discovery rule delays commencement of the relevant
statute of limitations until the plaintiff knows or reasonably should know that he has been
injured and that his injury was wrongfully caused. Hermitage Corp. v. Contractors
Adjustment Co., 166 Ill.2d 72, 77–78 (1995) (quoting Jackson Jordan, Inc. v. Leydig, Voit &
Mayer, 158 Ill.2d 240, 249 (1994)). When Moorer should have discovered the missing evidence
in this case is generally a question of fact, see Jackson, 158 Ill.2d at 250 (citation omitted),
and it’s not clear that he should have learned about the missing phone during his criminal
trial. Moorer’s spoliation claim isn’t clearly time-barred, and so summary judgment on the
basis of the statute of limitations isn’t appropriate.
48
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365 Ill.Dec. at 662 (finding that a showing of voluntary undertaking requires that a
plaintiff demonstrate “affirmative conduct by [defendant] showing [his] intent to
voluntarily undertake a duty” to the plaintiff). The law—the Due Process Clause of
the Fourteenth Amendment—does impose a duty on police officers to preserve some
evidence, but officers breach that duty only in a narrow set of circumstances. See
United States v. Cherry, 920 F.3d 1126, 1140 (7th Cir. 2019) (quoting United States
v. Fletcher, 634 F.3d 395, 407 (7th Cir. 2011)).
Assuming that the Due Process Clause can support a duty to preserve evidence
under Illinois law, Moorer’s claim fails because he hasn’t shown a breach. Moorer
agrees that the standard of care applicable to McDermott is that for an Illinois police
officer solely engaged in law enforcement, see [163] at 49, and McDermott is liable
only if he lost or destroyed the evidence in a willful and wanton way. 745 ILCS 10/2202; Fitzpatrick v. City of Chicago, 112 Ill.2d 211, 214 (1986). Willful and wanton
conduct “means a course of action which shows an actual or deliberate intention to
cause harm or which, if not intentional, shows an utter indifference to or conscious
disregard for the safety of others or their property.” 745 ILCS 10/1-210; see McDowell
v. Vill. of Lansing, 763 F.3d 762, 768 (7th Cir. 2014) (quoting Geimer v. Chicago Park
Dist., 272 Ill.App.3d 629 (1st Dist. 1995)) ([willful] and wanton conduct “means more
than mere inadvertence, incompetence, or unskillfulness”).
It’s not clear which general progress report Moorer alleges that McDermott
lost, see [102] ¶¶ 23, 59, but it seems likely Moorer means the report from an initial
interview with Kindelan. See [163] at 11. Moorer doesn’t allege any connection
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between McDermott’s conduct and the absence of that report, and the parties agree
that Leal never made a report summarizing that interview. See [164] ¶ 52. Because
there was no report to preserve and McDermott wasn’t involved in the interview,
McDermott didn’t breach any duty to Moorer involving that general progress report.
As for the cellphone, McDermott requested that the forensic investigator turn
over Edward Ramos’s phone to him, rather than inventory it, and the investigator
gave McDermott the phone. [164] ¶ 47; [174] ¶ 66. After that, the cellphone
disappears from the record. [174] ¶ 67; [164] ¶ 71. McDermott said that he or someone
else should have documented and inventoried it, [174] ¶ 67, but there’s no evidence
that McDermott intentionally lost or destroyed the evidence or acted with conscious
disregard for Moorer’s safety. While it’s reasonable to infer that Edward’s missing
phone contained evidence that could have supported Moorer’s case, that doesn’t mean
that McDermott destroyed the phone in a willful or wanton way. At most, the
undisputed facts show that McDermott was inadvertent or incompetent in his
handling of the evidence, and that’s not enough to show negligent spoliation under
Illinois law. See 745 ILCS 10/1-210; McDowell, 763 F.3d at 768.
Summary judgment is granted to defendant McDermott on the spoliation
claim.
IV.
Conclusion
Thomas Moorer spent years in pretrial detention based on eyewitness
identifications that were of questionable reliability. He was acquitted at trial. Moorer
understandably seeks recompense for his pretrial detention, but because probable
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cause is a low bar, the Fourth Amendment did not prohibit the officers from relying
on the identifications and letting the lawyers, judge, and jurors resolve Moorer’s guilt.
Without any evidence to suggest that defendants knew the identifications were wrong
or that the officers were the legal cause for detention after the prosecutor, grand jury,
and court weighed in, a civil lawsuit under the Fourth Amendment simply does not
lie.
Defendants’ motion for summary judgment, [153], is granted. Enter judgment
and terminate civil case.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: December 20, 2021
46
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