IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 

JACQUES RIVERA, 

Plaintiff, 

v. 

REYNALDO GUEVARA, et al., 

 Defendants. 

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Case No. 12 C 4428 

Hon. Joan B. Gottschall, 

District Judge 

Hon. Mary M. Rowland, 

Magistrate Judge 

JURY TRIAL DEMANDED 

PLAINTIFF’S CONSOLIDATED RESPONSE IN 

OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTIONS 

 

Arthur Loevy Locke E. Bowman 

Jon Loevy Sheila Bedi 

Russell Ainsworth David Shapiro 

Anand Swaminathan Alexa Van Brunt 

Steve Art MACARTHUR JUSTICE CENTER 

LOEVY & LOEVY Northwestern University School of Law 

311 N. Aberdeen St., Third Floor 375 E. Chicago Ave., 8th Floor 

Chicago, IL 60607 Chicago, IL 60611 

(312) 243-5900 (312) 503-0844 

steve@loevy.com 

 J. Samuel Tenenbaum 

BLUHM LEGAL CLINIC 

Northwestern University School of Law 

375 E. Chicago Ave., 8th Floor 

Chicago, IL 60611 

(312) 503-8576

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TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

SUMMARY OF DISPUTED FACTS .............................................................................................3 

ARGUMENT ...................................................................................................................................6 

A. SUMMARY JUDGMENT IS UNAVAILABLE TO GUEVARA IN 

LIGHT OF HIS INVOCATION OF THE FIFTH AMENDMENT ....................................6 

B. A JURY MUST DECIDE RIVERA’S DUE PROCESS CLAIMS .....................................9 

1. A Reasonable Jury Could Conclude That Defendants Fabricated 

False Evidence .......................................................................................................10 

(a) Overwhelming Evidence Supports Rivera’s Fabrication 

Claim ..........................................................................................................10 

(b) Defendants’ Arguments for Judgment on the Fabrication 

Theories Fail ..............................................................................................15 

2. Independently, A Reasonable Jury Could Conclude That 

Defendants Suppressed Material Exculpatory and Impeachment 

Evidence .................................................................................................................18 

(a) Defendants Suppressed Exculpatory Evidence ..........................................20 

(b) Defendants Suppressed Exculpatory Police Files ......................................24 

(c) Defendants’ Reasonable Diligence Arguments Fail ..................................27 

3. Independently, A Reasonable Jury Could Conclude That 

Defendants Utilized Unduly Suggestive Lineup Procedures That 

Tainted Rivera’s Criminal Trial .............................................................................33 

(a) The Identification Procedures Were Unduly Suggestive ...........................34 

(b) Lopez’s Identifications of Rivera Were Not Reliable ................................35 

(c) The Identification Tainted Rivera’s Criminal Proceedings .......................36 

(d) Defendants’ Arguments for Summary Judgment on the 

Unduly Suggestive Lineup Theory Lack Merit .........................................38 

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TABLE OF CONTENTS (cont.) 

Page 

C. A JURY MUST DECIDE THE SECTION 1983 CONSPIRACY CLAIMS ....................38 

D. A JURY MUST DECIDE THE FAILURE-TO-INTERVENE CLAIMS .........................40 

E. DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY ........................41 

F. A JURY MUST DECIDE RIVERA’S MALICIOUS PROSECUTION 

CLAIMS ............................................................................................................................42 

1. Defendants Commenced and Continued A Criminal Proceeding ..........................43 

2. Defendants Lacked Probable Cause to Prosecute Rivera ......................................45 

G. A JURY MUST DECIDE RIVERA’S STATE-LAW CLAIM OF 

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS .......................................47 

H. A JURY MUST DECIDE RIVERA’S STATE-LAW CONSPIRACY 

CLAIMS ............................................................................................................................48 

I. DEFENDANTS RINALDI, WEINGART, MINGEY, NOON, GUZMAN, 

SPARKS, ZACHARIAS, AND FALLON PARTICIPATED IN THE 

MISCONDUCT AND ARE NOT ENTITLED TO SUMMARY 

JUDGMENT ......................................................................................................................48 

J. A JURY MUST DECIDE PLAINTIFFS’ MONELL CLAIMS ........................................50 

1. Defendants Do Not Argue for Judgment on All of Rivera’s Monell

Theories, and So A Monell Trial Is Necessary No Matter What ...........................51 

2. The City Is Estopped From Re-Litigating the Street Files Theory ........................53 

3. The City’s Request for Judgment on the Street Files Theory Is 

Frivolous ................................................................................................................54 

4. The City’s Request for Judgment on the Filler Lineup Theory 

Lacks Merit ............................................................................................................59 

5. A Trial Is Necessary on the Failure to Discipline Theory .....................................62 

K. THE DERIVATIVE CLAIMS SURVIVE SUMMARY JUDGMENT ............................69 

CONCLUSION ..............................................................................................................................69 

 

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TABLE OF AUTHORITIES 

Cases Page(s) 

Acceptance v. Bathalter, 705 F.2d 924 (7th Cir. 1983) ...................................................................8 

Alexander v. City of South Bend, 433 F.3d 550 (7th Cir. 2006) ........................................33, 37, 46 

Allen v. Berger, 784 N.E.2d 367 (Ill. App. Ct. 2002) ................................................................... 45 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................6 

Armstrong v. Daily, 786 F.3d 529 (7th Cir. 2015) ........................................................................ 42 

Avery v. City of Milwaukee, 847 F.3d 433 (7th Cir. 2017) ............................................... 10, 17, 27 

Avery v. Milwaukee, 2015 WL 247991 (E.D. Wis. Jan. 20, 2015) ................................................59 

Baxter v. Palmigiano, 425 U.S. 308 (1976) .....................................................................................7 

Beck v. Pittsburg, 89 F.3d 966 (3d. Cir. 1996) ..............................................................................65 

Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) ............................................................ 39 

Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir. 1989) ................................................................. 63 

Boss v. Pierce, 263 F.3d 734 (7th Cir. 2001) ...........................................................................29, 30 

Boyd v. City of Chicago, 225 F. Supp. 3d 708 (N.D. Ill. 2016) .................................................... 31 

Boyle v. Torres, 756 F. Supp. 2d 983 (N.D. Ill. Dec. 21, 2010) ..............................................44, 45

Branion v. Gramly, 855 F.2d 1256 (7th Cir. 1988) .......................................................................12

Briscoe v. LaHue, 460 U.S. 325 (1983) .........................................................................................17 

Brown v. Mississippi, 297 U.S. 278 (1936) ...................................................................................42 

Bryant v. Whalen, 759 F.Supp. 410 (N.D. Ill. 1991) .....................................................................46 

Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) ...................................................................................40 

Calhoun v. Ramsey, 408 F.3d 375 (7th Cir. 2005) ........................................................................51 

Calusinski v. Kruger, 24 F.3d 931 (7th Cir. 1994) ........................................................................65

Canton v. Harris, 489 U.S. 378 (1989)....................................................................................52, 62 

Carmichael v. Village of Palatine, 605 F.3d 451 (7th Cir. 2010)................................38, 47, 48, 52 

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TABLE OF AUTHORITIES (cont.) 

Cases Page(s) 

Cathedral of Joy Baptist Church v. Village of Hazel Crest, 

 22 F.3d 713 (7th Cir. 1994) .................................................................................................27 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................7 

Chicago Truck Drivers v. Century Motor Freight, 125 F.3d 526 (7th Cir. 1997) .........................54 

Collier v. City of Chicago, 2015 WL 50814408 (N.D. Ill. Aug. 26, 2015) ...................................46 

Connick v. Thompson, 563 U.S. 51 (2011) ....................................................................................68 

Cooper v. Chicago Heights, 2011 WL 2116394 (N.D. Ill. May 27, 2011) ...................................59 

Cosby v. Ward, 843 F.2d 967 (7th Cir. 1988) ................................................................................68 

Costello v. Grundon, 651 F.3d 614 (7th Cir. 2011) ...........................................................15, 47, 52

Cottrell v. Clemons, 2014 WL 3649185 (W.D. Ky. July 23, 2014) ..............................................27

Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999) ...............................................................................31 

Daniel v. Cook Cty, 833 F.3d 728 (7th Cir. 2016) .........................................................................55 

Davis v. Carter, 452 F.3d 686 (7th Cir. 2006) ...............................................................................52 

DiRico v. City of Quincy, 404 F.3d 464 (1st Cir. 2005) ................................................................62 

Dixon v. Cook County, 819 F.3d 343 (7th Cir. 2016) ....................................................................55 

Dominguez v. Hendley, 545 F.3d 585 (7th Cir. 2008) .............................................................18, 41 

Engel v. Buchan, 710 F.3d 698 (7th Cir. 2013) .............................................................................42 

Estate of Moreland v. Dieter, 395 F.3d 747 (7th Cir. 2005)....................................................55, 68 

Evans v. City of Chicago, 2006 WL 463041 (N.D. Ill. Jan. 6, 2006) ............................................52 

Ewing v. O’Brien, 60 F. Supp. 2d 813 (N.D. Ill. 1999) .................................................................44 

Fields v. City of Chicago, 2014 WL 477394 (N.D. Ill. Feb. 6, 2014) ...........................................24 

Fields v. City of Chicago, 2017 WL 3987356 (N.D. Ill. Sep. 11, 2017) ...................................3, 53

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TABLE OF AUTHORITIES (cont.) 

Cases Page(s) 

Fields v. Wharrie, 672 F.3d 505 (7th Cir. 2012) .....................................................................19, 20 

Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) .............................................................10, 17, 41 

Foley v. Lowell, 948 F.2d 10 (1st Cir. 1991) .................................................................................65 

Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010) ..................................................................................47 

Fox v. Peters, 2011 WL 6378826 (N.D. Ill. 2011) ........................................................................52 

Franks v. Delaware, 438 U.S. 154 (1978) ...............................................................................45, 46 

Freeman v. Brown, 2012 WL 3777074 (N.D. Ill. Aug. 29, 2012) .................................................44 

Freides v. Sani-Mode Mfg. Co., 211 N.E.2d 286 (Ill. 1965) .........................................................43

Gable v. City of Chicago, 296 F.3d 531 (7th Cir. 2002)................................................................68 

Garcia v. City of Chicago, 2003 WL 1715621 (N.D. Ill. Mar. 20, 2003) .....................................68 

Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003) .......................................................22, 23, 41

Giglio v. United States, 405 U.S. 150 (1972) ....................................................................19, 20, 32 

Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372 (7th Cir. 2017) ............................50, 51, 55 

Grandstaff v. Borger, 767 F.2d 161 (5th Cir. 1985) ......................................................................65 

Graves v. Thomas, 450 F.3d 1215 (10th Cir. 2006) ......................................................................62 

Hampton v. City of Chicago, 2017 WL 2985743 (N.D. Ill. July 13, 2017) .............................30, 33 

Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979) ...................................................................39 

Hart v. Mannina, 798 F.3d 578 (7th Cir. 2015) .............................................................................38 

Henry v. County of Shasta, 132 F.3d 512 (9th Cir. 1997) .............................................................63 

Henry v. Ramos, 1997 WL 610781 (N.D. Ill. Sept., 28, 1997)......................................................47

Hensley v. Carey, 818 F.2d 646 (7th Cir. 1987) ............................................................................42 

Holland v. City of Chicago, 643 F.3d 248 (7th Cir. 2011) ............................................................18 

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TABLE OF AUTHORITIES (cont.) 

Cases Page(s) 

Hollins v. City of Milwaukee, 574 F.3d 822 (7th Cir. 2009) .........................................................62 

J&J Sports Productions, Inc. v. Resendiz, 2009 WL 1953154 (N.D. Ill. July 2, 2009) ................41

Jackson v. Marion County, 66 F.3d 151 (7th Cir. 1995) ...............................................................52 

Jenkins v. Bartlett, 487 F.3d 482 (7th Cir. 2007) ..........................................................................52 

Jimenez v. City of Chicago, 830 F. Supp. 2d 432 (N.D. Ill. 2011) ....................................27, 30, 32 

Johnson v. Dossey, 878 F. Supp. 2d 905 (N.D. Ill. 2012) .............................................................21

Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988) ........................................................ passim 

Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013) ..............................................................................17 

Kadia v. Gonzales, 501 F.3d 817 (7th Cir. 2007) ..........................................................................12

Kindle v. City of Harvey, 2002 WL 230779 (N.D. Ill. Feb. 15, 2002) ..........................................69 

King v. Kramer, 680 F.3d 1013 (7th Cir. 2012) ............................................................................51 

Kluppelberg v. Burge, 2017 WL 3381717 (N.D. Ill. Aug. 7, 2017) ..........................................3, 53 

Kotarski v. Binks Mfg. Co., 837 F. Supp. 247 (N.D. Ill. 1992) .....................................................12

Kyles v. Whitley, 514 U.S. 419 (1995) ...............................................................................18, 19, 27 

Larez v. Los Angeles, 946 F.2d 630 (9th Cir. 1991) ......................................................................65 

LaSalle Bank Lake View v. Seguban, 54 F.3d 387 (7th Cir. 1995) ..............................................7, 8 

Lawson v. Veruchi, 637 F.3d 699 (7th Cir. 2011) ..........................................................................46 

LiButti v. United States, 178 F.3d 114 (2d Cir. 1999) .....................................................................7

Logan v. Caterpillar, 246 F.3d 912, (7th Cir. 2011) .........................................................42, 43, 44 

Logan v. City of Chicago, 891 F. Supp. 2d 897 (N.D. Ill. 2012) .....................................................9 

Lopez v. City of Chicago, 464 F.3d 711 (7th Cir. 2006) ................................................................47 

Manson v. Brathwaite, 432 U.S. 98 (1977) .............................................................................33, 42

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TABLE OF AUTHORITIES (cont.) 

Cases Page(s) 

Maxwell v. City of Indianapolis, 998 F.2d 431 (7th Cir. 1993) .....................................................46

Monaco v. City of Camden, 2008 WL 8738213 (D. N.J. Apr. 14, 2008) ......................................63 

Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978) ..................................................................50 

Mooney v. Holohan, 294 U.S. 103 (1935) ...............................................................................10, 41 

Moore v. City of Chicago, 2011 WL 1231318 (N.D. Ill. 2011) .....................................................47 

Myett v. Heerdt, 2017 WL 75738 (N.D. Ill. Jan. 9, 2017) .............................................................45 

Napue v. Illinois, 360 U.S. 264 (1959) ....................................................................................19, 41 

Neil v. Biggers, 409 U.S. 188 (1972) .............................................................................................42 

Nelson v. LaCrosse Cty, 301 F.3d 820 (7th Cir. 2002) ..................................................................52 

Newsome v. James, 2000 WL 528475 (N.D. Ill. Apr. 26, 2000) ...................................................12

Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) ................................................................18, 42 

Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003) ................................................................19, 20 

Obrycka v. Chicago, 2011 WL 2633783 (N.D. Ill. July 5, 2011)............................................59, 67 

Olson v. Tyler, 771 F.2d 277 (7th Cir. 1985) .................................................................................46 

Ott v. Milwaukee, 2015 WL 1219587 (E.D. Wis. Mar. 17, 2015) .................................................59 

Otto v. Variable Annuity Life Ins. Co., 134 F.3d 841 (7th Cir. 1998) ...........................................40 

Padilla v. City of Chicago, 2009 WL 4891943 (N.D. Ill. Dec. 14, 2009) .....................................65 

Padilla v. City of Chicago, 2013 WL 1208567 (N.D. Ill. Mar. 26, 2013) .....................................44 

Paine ex rel. Eilman v. Johnson, 2010 WL 785398 (N.D. Ill. Feb. 26, 2010) ..............................59 

People v. Arcos, 228 Ill App. 3d 870 (1st Dist. 1996) ...................................................................65

Perez v. Thorntons, 731 F.3d 699 (7th Cir. 2013) ...........................................................................6 

Petty v. City of Chicago, 754 F.3d 416 (7th Cir. 2014) .................................................................10 

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TABLE OF AUTHORITIES (cont.) 

Cases Page(s) 

Proffitt v. Ridgway, 279 F.3d 503 (7th Cir. 2002) .........................................................................39 

Purghoraishi v. Flying J, Inc., 449 F.3d 751 (7th Cir. 2006) ........................................................15

Pyle v. Kansas, 317 U.S. 213 (1942) .............................................................................................41 

Rehberg v. Paulk, 566 U.S. 356 (2012) .........................................................................................17 

Robinson v. City of Harvey, 2001 WL 138901 (N.D. Ill. Feb. 16, 2001) ......................................69 

Salvato v. Miley, 790 F.3d 1286 (11th Cir. 2015) ..........................................................................65

Sanders v. City of Chicago Heights, 2016 WL 1730608 (N.D. Ill. May 2, 2016) .........................62

SEC v. Graystone Nash, Inc., 25 F.3d 187 (3d Cir. 1994) ...............................................................8 

Sherrod v. Berry, 827 F.2d 827 F.2d 195 (7th Cir 1987) ..............................................................65 

Simon v. Northwestern Univ., 2016 WL 1237666 (N.D. Ill. Mar. 29, 2016) ................................45 

Smith v. Northeastern Ill. Univ., 388 F.3d 559, 569 (7th Cir. 2004) .............................................40 

Sornberger, 434 F.3d 1006, 1029-30 (7th Cir. 2006) ....................................................................52 

Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007) .............................................................................49

Steidl v. Gramley, 151 F.3d 739 (7th Cir. 1998) ............................................................................51 

Stichting Ter Behartiging Van de Belangen v. Schreiber, 

 407 F.3d 34 (2d Cir. 2005).................................................................................................7, 8

Stinson v. Gauger, Nos. 13-3343, 13-3346 & 13-3347 

 (7th Cir. Aug. 18, 2017) (en banc).......................................................................................17 

Streckenbach v. Vandensen, 2017 WL 3585074 (7th Cir. Aug. 21, 2017) ....................................53 

Sublett v. John Wiley & Sons, Inc., 463 F.3d 731 (7th Cir. 2006) ...........................................15, 52

Thomas v. Cook County, 604 F.3d 293 (7th Cir. 2010) ...........................................................55, 68

Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994) ..........................................................................52 

Thompson v. City of Chicago, 2009 WL 674353 (N.D. Ill. Mar. 12, 2009) ....................................9 

Titran v. Ackman, 893 F.2d 145 (7th Cir. 1990) ............................................................................52 

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TABLE OF AUTHORITIES (cont.) 

Cases Page(s) 

Turner v. City of Chicago, 2013 WL 4052607 (N.D. Ill. 2013) ....................................................44 

United States v. 4003-4005 5th Ave., 55 F.3d 78 (2d Cir. 1995) .....................................................8 

United States v. Agurs, 427 U.S. 97 (1976) ...................................................................................19 

United States v. Bagley, 473 U.S. 667 (1985) ...............................................................................20 

United States v. Jackson, 546 F.3d 801 (7th Cir. 2008) ................................................................40 

United States v. Morris, 80 F.3d 1151 (7th Cir. 1996) ..................................................................31 

United States v. Rylander, 460 U.S. 752 (1983) ..............................................................................9 

United States v. Useni, 516 F.3d 634 (7th Cir. 2008) ....................................................................47 

Valentino v. Village of S. Chicago Heights, 575 F.3d 664 (7th Cir. 2009) ...................................50 

Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011) ...............................................................51 

Wallace v. City of Zion, 2011 WL 3205495 (N.D. Ill. July 28, 2011) ...........................................44 

Wearry v. Cain, 136 S. Ct. 1002 (2016) ..................................................................................18, 19 

Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) ............................................10, 17, 18, 21 

Williams v. City of Chicago, 733 F.3d 749 (7th Cir. 2013) ...........................................................45 

Woodward v. CMS, 368 F.3d 917 (7th Cir. 2004) .........................................................................68 

Yang v. Hardin, 37 F.3d 282 (7th Cir. 1994) .................................................................................40 

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INTRODUCTION 

Jacques Rivera was wrongly convicted of the 1988 murder of Felix Valentin. His 

conviction was based entirely on false evidence fabricated by Defendants. For decades Rivera 

fought from prison to prove his innocence. In 2011, based on the revelation that false eyewitness 

evidence had been used against him, Rivera was granted post-conviction relief, and state 

prosecutors dropped the charges against him. The next year, Illinois courts awarded Rivera a 

certificate of innocence. Rivera has amassed overwhelming evidence that the Officer Defendants 

and the City of Chicago violated his rights protected by the U.S. Constitution and Illinois law. 

Rivera had nothing to do with Valentin’s shooting and Defendants knew it all along. In 

fact, shortly after the crime, while the victim was still alive, he identified two other men, Jose 

Rodriguez and Felipe Nieves, as the perpetrators. Instead of pursuing those suspects, Defendants 

determined on the first day of their investigation that they would frame Rivera, and they 

fabricated evidence to implicate him. That evidence included manufactured eyewitness 

identifications of Rivera from Valentin and from a 12-year-old boy named Orlando Lopez, who 

was the only other witness to the crime. 

At the same time, Defendants suppressed highly exculpatory evidence that would have 

shown that their identifications were fabricated and that Rivera was innocent. For example, they 

covered up that Lopez viewed a first live lineup early in the investigation and picked a filler 

instead of Rivera. In addition, pursuant to the widespread practice among Chicago Police 

Department (CPD) employees at the time, they suppressed police documents that contradicted 

their official version of the investigation in a secret “street file,” which they kept buried in the 

CPD’s files for years after Rivera’s wrongful conviction. 

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Rivera’s wrongful conviction was orchestrated by Defendant Reynaldo Guevara, a 

notorious Chicago policeman who is responsible for sending numerous young men on Chicago’s 

northwest side to prison for crimes they did not commit. Guevara moves for summary judgment 

despite the fact that he invoked his Fifth Amendment right not to incriminate himself in response 

to every question he was asked about his misconduct in this case. Given the foregoing, the 

Officer Defendants’ summary judgment motion is plainly inappropriate. 

The same is true for the City’s motion. The misconduct at issue was undertaken pursuant 

to the City’s official policies. Among other things, the City failed to discipline officers like 

Guevara, who engaged in egregious and repeated acts of misconduct that violated the rights of 

citizens. In addition, the City’s written policies and practices caused routine false reporting of the 

results of lineup identification procedures, and systematic suppression of police investigative 

materials in clandestine street files. These policies and practices contributed to Rivera’s wrongful 

conviction and the violation of his constitutional rights. 

Reading Defendants’ briefs, one would think that the undisputed record shows that 

Defendants were simply duped by Lopez’s false identification of Rivera and did nothing wrong. 

But Defendants’ skewed version is fully dependent on construing facts and drawing inferences in 

their own favor. As Defendants know full well, each of the facts they call undisputed in their 

briefs is in fact hotly disputed and contested by a substantial volume of evidence. 

In fact, with respect to most material issues, it is Defendants who cannot point to 

anything in the record supporting their position. Guevara, for example, has no hope for summary 

judgment, considering that he has asserted his Fifth Amendment right to silence on all issues 

material to the case—on the grounds that if he told the truth, he risked subjecting himself to 

criminal liability. Similarly, the City asks the Court to grant it judgment on policy and practice 

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theories despite having lost a recent trial, Fields v. City of Chicago, 2017 WL 3987356, at *3-4 

(N.D. Ill. Sep. 11, 2017), on the very same theories on which they move for summary judgment. 

Not only did Judge Kennelly conclude in Fields that the existence of the City’s street files 

practice was a proper issue to be decided by a jury, but the jury rejected the City’s denials and 

evidence regarding that practice. Given the jury’s verdict in Fields, Judge Lefkow recently 

concluded in Kluppelberg v. Burge, 2017 WL 3381717 (N.D. Ill. Aug. 7, 2017), that the City 

was estopped from denying the existence of the street files practice. This demonstrates the folly 

of the City’s present attempt to win summary judgment on the ground that there is supposedly no 

evidence to support Rivera’s claim. This Court should deny the motions in their entirety. 

SUMMARY OF DISPUTED FACTS 

Rivera has prepared an extensive account of the facts relevant to summary judgment in 

his Local Rule 56.1 statements. Given space constraints, the number of Defendants’ arguments, 

and the vast record, Rivera summarizes the factual disputes rather than repeating all of the facts 

here. Where appropriate, additional facts are discussed below within the argument. 

Defendants’ motions are based on a version of facts where Orlando Lopez supposedly 

made an unprompted identification of Rivera in a photo mugbook on the day Valentin was shot, 

confirmed that identification three weeks later in a legitimate live lineup procedure, and then 

testified consistent with those identifications at trial, leading to Rivera’s conviction. Defendants 

now apparently concede that Lopez’s identifications of Rivera were false, but they contend they 

did not know he was lying. Defendants’ facts are contradicted by ample evidence. 

Properly viewing the record in Rivera’s favor, as the Court must at this stage, the 

Defendants caused Rivera to be arrested, charged, indicted, prosecuted, and convicted by 

knowingly fabricating false evidence and by suppressing material evidence, in violation of 

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Rivera’s constitutional rights and Illinois law. AS ¶¶ 22-79, 80-85, 90-93.1

 Rivera had nothing to 

do with the murder whatsoever. AS ¶¶ 96-97. Evidence buried in a clandestine street file 

throughout Rivera’s wrongful conviction now shows that Defendants selected Rivera as their 

suspect on August 27, 1988, the day Valentin was shot, before any identification procedure had 

taken place. AS ¶¶ 22-24. Two days later, on August 29, the Defendants instructed the 12-yearold eyewitness Lopez to identify Rivera in a book of mugshots, pointing out Rivera’s photograph 

to Lopez, and fabricating a story for Lopez to tell about recognizing Rivera as someone he had 

seen playing baseball in Humboldt Park. AS ¶¶ 25-28. 

Defendants then put Rivera in a live lineup on August 31. AS ¶¶ 29-38. To Rivera’s 

knowledge at the time, he was simply acting as a filler in a line-up for an unknown crime. 

Plaintiff has since discovered that it was actually a lineup in the Valentin investigation, Lopez 

viewed it, failed to pick Rivera, and instead picked one of the non-suspect fillers. AS ¶¶ 39-41. 

Because Lopez’s selection of a filler would have burned their eyewitness, the Defendants 

responded by suppressing all evidence that the lineup had ever occurred and by falsely reporting 

that Lopez had not viewed a lineup on August 31. AS ¶¶ 36, 43-44, 67-68, 76-77.2

Valentin succumbed to his wounds and died on September 14, and the next day the 

Defendants brought young Lopez in for a second live lineup. AS ¶¶ 7, 51. Before that second 

lineup, Lopez told Guevara and McLaughlin that Rivera was not the person he had seen shoot 

Valentin. AS ¶¶ 50-53. Defendants buried that statement as well. AS ¶¶ 57-60, 65. They 

instructed Lopez to continue with the second lineup, and they manipulated him into falsely 

identifying Rivera. AS ¶¶ 58-60. 

 1

 Rivera’s affirmative statement of facts is cited as “AS ¶ XXX,” his response to the City’s statement as 

“RCS ¶ XXX,” and his response to the Officer Defendants’ statement as “ROS ¶ XXX.” 2

 At every deposition in the case, Defendants strenuously denied this problematic lineup ever occurred, but 

for summary judgment purposes they have now properly conceded that it did. Officer Br. at 2 & n.3. 

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5 

To seal the deal, Defendants then wrote a false report, saying for the first time that the 

victim Valentin, four days before his death, on September 10, had identified Rivera as the 

shooter in a photo identification procedure performed at his bedside in Cook County Hospital. 

AS ¶¶ 65-66. This identification was both impossible and a complete fabrication. AS ¶¶ 5-6, 45-

47, 65-66. Valentin was in a medically-induced coma on September 10 and was totally unable to 

respond, let alone identify anyone. AS ¶¶ 4-5, 46. Defendants also reported falsely that, 

following the second lineup, Lopez had been shown photos of the alternative perpetrators 

Rodriguez and Nieves and had excluded them as suspects. AS ¶¶ 48-49, 65. Such an 

identification procedure never occurred. AS ¶¶ 48-49. 

After their investigation was complete, Defendants took every document they had created 

during their investigation that could have been used to prove they had framed Rivera, and they 

suppressed those documents in a street file. AS ¶¶ 72-77. That street file was never shared with 

prosecutors, Rivera, or his attorneys. AS ¶¶ 86-88. It came to light during this litigation. AS ¶ 79. 

Finally, to solidify Lopez’s identification of Rivera as the shooter at trial, the Defendants 

fabricated an additional false story. They told Lopez to lie at trial and say that Valentin’s shooter 

had worn a distinctive gold ponytail. AS ¶¶ 61-63. When Guevara took the stand at trial, he lied, 

too, saying that he noticed that Rivera had dyed gold hair at the time of his arrest. AS ¶¶ 64, 92. 

That was false—Rivera had never dyed his hair. AS ¶ 63. 

The record construed in Rivera’s favor unambiguously supports the conclusion that 

Defendants’ fabricated evidence caused Rivera to be charged, prosecuted, and convicted of 

Valentin’s murder, and that Defendants hid from Rivera and his attorneys all of the exculpatory 

evidence that would have avoided this gross injustice. A similar volume of evidence, discussed 

below, supports Rivera’s claim that this misconduct occurred because of the policies and 

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6 

practices of the City. All material facts are disputed and Defendants’ legal arguments lack merit. 

This Court should deny their motions.3

ARGUMENT 

This Court examines all evidence in the light most favorable to Rivera and draws all 

inferences in his favor. Perez v. Thorntons, 731 F.3d 699 (7th Cir. 2013). Summary judgment is 

warranted only if Defendants show that there is no genuine issue of fact on any of Rivera’s 

claims and that they are entitled to judgment as a matter of law. Id. “Credibility determinations, 

the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury 

functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

A. SUMMARY JUDGMENT IS UNAVAILABLE TO GUEVARA IN LIGHT OF HIS 

INVOCATION OF THE FIFTH AMENDMENT 

At the outset, Guevara cannot shift the burden at summary judgment because he asserted 

his Fifth Amendment right not to incriminate himself in response to hundreds of questions about 

his misconduct during the Valentin investigation and Rivera’s arrest, prosecution, and 

conviction. See, e.g., AS ¶¶ 22, 26-27, 29, 40-41, 46, 49, 52, 61, 65. Guevara did the same in 

response to Rivera’s written discovery requests. AS ¶¶ 46, 65, 79. In total, Guevara pleaded the 

Fifth in response to questions about making Rivera a suspect on the day of the crime (before any 

identification of Rivera had purportedly been made), fabricating Lopez’s mugbook identification, 

suppressing the first lineup and Lopez’s selection of a filler, fabricating Lopez’s identification of 

Rivera at the second lineup, suppressing Lopez’s statement that Rivera was not the perpetrator, 

fabricating Valentin’s identification of Rivera, creating false police reports, providing false 

reports and information to prosecutors, falsely arresting Rivera, securing false charges against 

 3

 The Officer Defendants correctly point out that Rivera has never asserted a claim that he was compelled 

to involuntarily incriminate himself, in violation of the Fifth and Fourteenth Amendments. Officer Br. at 4. Rivera 

has never confessed involvement in the Valentin murder. 

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Rivera, testifying falsely, preparing Lopez’s false testimony for Rivera’s trial (including false 

testimony about Rivera’s hair color), destroying and suppressing evidence of Rivera’s innocence, 

maintaining street files in the case, and suppressing the investigation of Rodriguez and Nieves. 

AS ¶¶ 22, 26-27, 29, 40-41, 46, 49, 52, 59, 61, 65, 79, 85. Because Guevara exercised his right to 

remain silent on every question material to Rivera’s claims, he cannot seek summary judgment. 

Where a defendant moving for summary judgment asserts his Fifth Amendment rights 

rather than denying the alleged misconduct, summary judgment is almost never appropriate. This 

is because a party who seeks summary judgment bears the burden of showing that no material 

fact is disputed, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and a party who asserts the 

Fifth Amendment on material facts cannot meet that burden. That result is dictated by Rule 56 

standards and Supreme Court precedent. 

In a civil case, juries are expressly instructed that they may draw adverse inferences 

against the person asserting the Fifth Amendment, and the decision about whether or not to draw 

adverse inferences is by definition a question for the jury. Baxter v. Palmigiano, 425 U.S. 308, 

318 (1976); LaSalle Bank Lake View v. Seguban, 54 F.3d 387 (7th Cir. 1995); see also LiButti v. 

United States, 178 F.3d 114, 120 (2d Cir. 1999) (An “adverse inference may be given significant 

weight because silence when one would be expected to speak is a powerful persuader”). A court 

at summary judgment cannot resolve this factual question, but instead, as Rule 56 commands, 

must draw the inference in favor of the non-moving party. Accordingly, where a defendant 

asserts his Fifth Amendment rights on material facts and then moves for summary judgment, the 

Court must draw an inference against the defendant on those facts, the defendant cannot meet his 

Rule 56 burden, and summary judgment must be denied. See Stichting Ter Behartiging Van de 

Belangen v. Schreiber, 407 F.3d 34, 55 (2d Cir. 2005) (noting that while “a jury might draw” an 

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8 

inference from the assertion of privilege, “we [the court] are required at summary judgment to 

draw all reasonable inference in favor of the non-moving party”). 

Rivera acknowledges that courts may not enter judgment based solely on an invocation of 

the Fifth Amendment, for the invocation alone is not an admission of guilt. Adhering to this rule, 

courts have refused to grant summary judgment where the non-moving party invoked the Fifth 

Amendment, e.g., Seguban, 54 F.3d at 391, and they have refused to grant judgment on the 

pleadings where a complaint is answered with an invocation of the privilege, National 

Acceptance v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983). These cases stand for the proposition 

that automatic judgment for a plaintiff when a defendant asserts the Fifth Amendment is too high 

a cost for the invocation. They do not, however, undermine the proposition stated above that a 

party cannot both invoke the Fifth Amendment and win at summary judgment. The fact that a 

jury may draw an inference against a defendant who invokes the Fifth Amendment on material 

facts means that a court can neither grant that defendant summary judgment nor enter a judgment 

as a matter of law in favor of the plaintiff. 

 The law imposes costs on parties who invoke the Fifth Amendment in civil proceedings. 

See Graystone Nash, Inc., 25 F.3d 187, 191 (3d Cir. 1994) (“The principle that the invocation of 

the privilege may be too ‘costly’ does not mean that it must be ‘costless.’”). A party who invokes 

this privilege deprives the opponent of an essential source of information, obstructs discovery 

and proceedings, and hinders the search for the truth. See Seguban, 54 F.3d at 390 n.4 (7th Cir. 

1995); SEC v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994); United States v. 4003-4005 

5th Ave., 55 F.3d 78, 84 (2d Cir. 1995). Consistent with the established notion that the Fifth 

Amendment cannot be wielded as a sword by the invoking party to free that party of its burdens 

in a proceeding, one of the costs to invoking the Fifth Amendment is that summary judgment is 

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not available. See United States v. Rylander, 460 U.S. 752, 758 (1983) (noting that the privilege 

“has never been thought to be in itself a substitute for evidence that would assist in meeting a 

burden of production” and that deciding otherwise would “convert the privilege from the shield 

against compulsory self-incrimination which it was intended to be into a sword whereby a 

claimant asserting the privilege would be freed from adducing proof in support of a burden 

which would otherwise have been his”). 

 Properly construed, Supreme Court and Seventh Circuit precedents and Rule 56 dictate 

that Guevara cannot meet his summary judgment burden. Rivera acknowledges, however, that 

some district courts require more, and hold that where a moving party asserts the Fifth 

Amendment, the non-movant must still present “some evidence,” independent of the invocation, 

to survive summary judgment. Logan v. City of Chicago, 891 F. Supp. 2d 897, 901 (N.D. Ill. 

2012); Thompson v. City of Chicago, 2009 WL 674353, at *3 (N.D. Ill. Mar. 12, 2009). These 

courts regard this “some evidence” standard as something less than the normal summary 

judgment burden. Logan, 891 F. Supp. 2d at 903. Regardless whether this court applies Rivera’s 

reasoning set out above, these courts’ “some evidence” standard, or normal summary judgment 

principles (ignoring Guevara’s Fifth Amendment invocation entirely), there is sufficient 

evidence to deny summary judgment to Guevara on each of Rivera’s claims. 

B. A JURY MUST DECIDE RIVERA’S DUE PROCESS CLAIMS 

Defendants move for summary judgment on Rivera’s due process claims. But the 

evidence in the record supports Rivera’s due process claim on each of three, independent 

theories—fabrication of evidence, suppression of evidence, and unduly suggestive identification 

procedures. Rivera discusses each theory in turn. 

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1. A Reasonable Jury Could Conclude That Defendants Fabricated False Evidence 

The Supreme Court and Seventh Circuit “‘have consistently held that a police officer 

who manufactures false evidence against a criminal defendant violates due process if that 

evidence is later used to deprive the defendant of [his] liberty in some way.’” Avery v. City of 

Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017) (citing Mooney v. Holohan, 294 U.S. 103, 112 

(1935); Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012)). This due process theory is 

entirely distinct from the due process theory based on suppression of evidence, which is 

discussed below. Petty v. City of Chicago, 754 F.3d 416, 421-24 (7th Cir. 2014). Applying this 

law, the Court need look no further than Defendants’ fabrication of Lopez’s identification of 

Rivera to deny summary judgment. 

 Where a due process violation concerns witness testimony, the Seventh Circuit has been 

careful to distinguish between coerced testimony and fabricated testimony. Police coercion of 

witnesses that produces truthful testimony does not by itself violate due process, absent a 

violation of the Brady duty to disclose facts about the police coercion that was used to obtain the 

testimony. Avery, 847 F.3d at 439 (citing Fields v. Wharrie, 740 F.3d 1107, 1123 (7th Cir. 2014) 

(Fields II)). Police fabrication of witness testimony that the officers know to be false, however, 

violates due process without need for further analysis. Id. at 439-40 (citing Petty, 754 F.3d at 

423. There is no question this case concerns false witness testimony—Defendants concede that 

Lopez’s identification was a lie, they just argue that they did not know that it was false. 

(a) Overwhelming Evidence Supports Rivera’s Fabrication Claim 

Defendants’ assertion that they did not knowingly fabricate Lopez’s identification of 

Rivera is the most self-serving version of the factual record possible, and it is flatly contradicted 

by the evidence. AS ¶¶ 22-28, 52, 58-60. Viewed in Rivera’s favor, the record shows that the 

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Defendants settled on Rivera as a suspect before any identification of him took place. AS ¶¶ 22-

24. On August 27, Rivera’s rap sheet was requested, it was stamped by central records, it was 

provided to Defendants, and it was placed in their investigative file. AS ¶¶ 22, 76-77. August 27 

was two days before the August 29 mugbook identification procedure with Lopez. AS ¶¶ 22-24.4

In short, rather than follow where the evidence led them, Defendants decided Rivera was their 

perpetrator first, and then made up evidence implicating him as their suspect. Id.

On August 29, according to Defendants’ own police reports and testimony, Guevara, 

Gawrys, McLaughlin, Leonard, Noon, Guzman, Sparks, and Zacharias were all involved in the 

mugbook procedure with Lopez. AS ¶¶ 23-25.5

 During that mugbook procedure, according to 

Lopez, these Defendants “pointed him [Rivera] out,” and Lopez selected the photo of Rivera, 

who, as stated, was already Defendants’ suspect at the time. AS ¶¶ 22, 26. 

After the photo selection, to make Lopez’s identification of Rivera credible, these 

Defendants created a false story, suggesting to Lopez that he previously had seen Rivera playing 

baseball in Humboldt Park. AS ¶ 27. Lopez adopted this story to explain how he could have 

identified Rivera’s photo from among hundreds of others, despite seeing the shooter only for a 

moment during the shooting. AS ¶¶ 19(g), 27, 69. These Defendants, along with Rinaldi and 

Mingey, then wrote and approved police reports, which stated falsely that Lopez had picked 

Rivera in the mugbook of his own accord. AS ¶ 69. This mugbook identification, as reported by 

Defendants, was used to procure Lopez’s later false identification of Rivera, criminal charges 

against Rivera, a grand jury indictment, and Rivera’s conviction. AS ¶¶ 59, 80-81, 84, 91-94. 

 4

 Defendants will likely dispute that this mugbook procedure took place on August 29 at trial, but they will 

have to explain why every one of their reports reflects that it in fact occurred on August 29. AS ¶¶ 23-25. 5

 Defendants argue that only Sparks, Zacharias, Guevara and Gawrys were involved in this identification 

procedure, Officer Br. at 12 n.4, but that fact is disputed by the Defendants’ own reports, AS ¶¶ 25, 28, 69. 

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Over the next two days, Guevara, Zacharias, Sparks, Fallon, McLaughlin, Leonard, and 

Rinaldi arrested Rivera, held him overnight, and placed him in a live lineup, which Lopez 

viewed. AS ¶¶ 29-38. Lopez picked a filler from the lineup and Rivera was released. AS ¶¶ 33, 

39-40.6

 In response, these Defendants worked to bury that the first lineup had ever occurred, 

writing false reports stating that they had attempted to perform a lineup, had not found Lopez, 

and had instead made a photo array that they tried to show to Valentin at Cook County Hospital. 

AS ¶¶ 36-37, 67-68. It is important to point out that Defendants’ concession at summary 

judgment that the first lineup did in fact occur has a significant consequence: it means that 

Defendants’ August 31 report covering up the first lineup is admittedly false. 

On September 15, again according to their own reports, Guevara and Gawrys arrested 

Rivera and conducted a second lineup. AS ¶¶ 51, 59. Lopez testified that before that lineup 

began he told Guevara and McLaughlin that Rivera was not the perpetrator he had seen shoot 

Valentin. Nonetheless, these Defendants instructed Lopez to proceed with his identification of 

Rivera. AS ¶¶ 50-60. When asked at his deposition, “Isn’t it true that you coerced Orlando Lopez 

to identify Jacques Rivera in the second line-up even though he had just told you that Jacques 

 6

 Defendants argue that Rivera is attempting to draw selectively from Lopez’s testimony, crediting some 

aspects and denying others. Officer Br. at 7-8. There is nothing wrong with that approach. With Defendants trying to 

dispose of the case on summary judgment, Rivera is entitled to the benefit of all doubts, and need not adopt all of 

any witness’s testimony wholesale. Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (noting that the judicial 

system could not function if it adopted the discredited doctrine that a witness who testifies incorrectly about one 

thing must be disbelieved on all things); Branion v. Gramly, 855 F.2d 1256 (7th Cir. 1988) (“Selective disbelief . . . 

is an ordinary incident of trial[.]”); Kotarski v. Binks Mfg. Co., 837 F. Supp. 247, 252 (N.D. Ill. 1992) (“[F]or 

purposes of summary judgment, ambiguities in a witness’ testimony must be resolved against the moving party.”); 

see also Newsome v. James, 2000 WL 528475, at *2 (N.D. Ill. Apr. 26, 2000) (“Variations in the testimony of 

disinterested witnesses, as our court of appeals has noted, raise questions about credibility that must be answered by 

a jury, not by the Court.”). A jury will be entitled to disbelieve witnesses’ testimony to the extent that their 

testimony does not square with other facts. There is nothing about summary judgment that requires Rivera to accept 

all of a witness’s testimony as correct if he accepts that some of that testimony is correct. 

With respect to Lopez, Rivera accepts nearly everything that Lopez now says, with the exception of his 

testimony that it was Rivera who Lopez picked in the first lineup. Rivera has no doubt that Lopez was brought into 

the police station and made a selection from the first lineup, but it contradicts too much other evidence to credit that 

he picked Rivera from that first lineup. Lopez knows that he picked someone, and while he mistakenly believes (to 

this day) that it was Rivera, drawing inferences in Rivera’s favor, it could not have been. Indeed, if he had picked 

Rivera, then Rivera would have been arrested right away, he would never have been released, and there would have 

been no need for a second lineup two weeks later. AS ¶ 33. 

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Rivera was not the perpetrator?” Guevara refused to answer, citing his constitutional privilege to 

avoid incriminating himself. AS ¶ 59. Defendants’ position that they did not tell Lopez who to 

pick and that Lopez lied without their input is fatally contradicted by evidence that they 

conducted the lineup after being told by Lopez that Rivera was not the perpetrator. AS ¶¶ 50-52.7

After the lineup, Guevara, Gawrys, Mingey, and Weingart (as well as Dorsch and Boyle, who are 

not Defendants) wrote and approved false reports saying that Lopez selected Rivera in a 

legitimate lineup. AS ¶ 60. 

These identifications were not the only false evidence that the Defendants created. At 

midnight on September 15-16, Guevara and Gawrys wrote, and Mingey approved, a false report 

(the “September 16 report”) saying that Valentin—who had died a day earlier—had identified 

Rivera from a mugbook on September 10. AS ¶¶ 65-66. Of course, there was no 

contemporaneous record of that identification, and it could not be verified, given that Valentin 

 7

 In attempt to avoid this result, Defendants argue there is not sufficient evidence to conclude that Guevara 

and McLaughlin are the officers with whom Lopez interacted during the second lineup. Officer Br. at 8-10. But 

there is ample evidence from which jury could reasonably conclude that Lopez was talking to Guevara and 

McLaughlin, and it is unclear what more evidence Rivera could muster short of Lopez remembering 20+ years later 

the name of the police officers with whom he interacted. 

Among other things, reports reflect that Guevara and Gawrys conducted this lineup. AS ¶ 65. Lopez 

describes the officer to whom he spoke as one that was familiar to him with a “‘fro, mustache, and glasses.” AS ¶ 

53. Guevara is the only officer on the investigative team fitting that description, as his photographs produced in this 

case show. AS ¶ 56. 

For her part, McLaughlin was the detective in charge of the investigation. AS ¶¶ 9, 54. She was present at 

the photobook and first lineup with Lopez. AS ¶¶ 25, 32, 36, 67-69. In addition, she was the only woman on the 

investigative team and the only woman with reason to participate in a conversation or lineup procedure with Lopez 

on September 15. AS ¶¶ 54-55. Moreover, Lopez testified that the woman to whom he spoke before the lineup was a 

blonde or white-haired, older woman, and McLaughlin fits that description. AS ¶ 54. The only other woman present 

on the evening of September 15, ASA Rosner, had brown hair and did not arrive until after the lineup. AS ¶ 55. This 

evidence is more than sufficient at summary judgment to support the inference that Guevara and McLaughlin were 

the detectives to whom Lopez spoke. 

Were there any doubt, Guevara had every opportunity to set the record straight. When he was asked at his 

deposition in this case, “Isn’t it true that Orlando Lopez told you and Detective Gillian McLaughlin that Jacques 

Rivera was innocent before you conducted the second line-up—the second live in-person line-up in this case?” 

Guevara answered by invoking the Fifth Amendment. AS ¶¶ 52-56 (citing Guevara Dep. at 23:3-11). Disputed facts 

prevent Guevara and McLaughlin from claiming they were not the officers with whom Lopez spoke. 

Along the same lines, Defendants make a nonsensical argument that, even if they did speak with Lopez 

before the second lineup, they did not properly understand the significance of what Lopez was saying to them. 

Officer Br. at 10-11. The notion that Defendants are entitled to an inference that they misheard a statement from the 

sole eyewitness that their suspect Rivera was not the perpetrator is at best a weak defense for trial—it is not 

remotely an argument for summary judgment. 

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had just died. AS ¶¶ 45, 65-66. Nor did Guevara, Gawrys, or Mingey give any reason for why, if 

Valentin identified Rivera as the shooter on September 10, they waited days to arrest him. AS ¶¶ 

47. Most importantly, it turned out that on September 10, Valentin was in a coma such that the 

fabricated identification would have been impossible. AS ¶¶ 5-6, 46. These Defendants have 

provided no explanation of how they extracted an identification from someone who was in a 

vegetative state. AS ¶¶ 46-47, 66. The boldness of this fabrication is staggering, and it puts to 

rest any argument Defendants make that their framing of Rivera was a mistake. 

The fabrication in Guevara, Garwys, and Mingey’s September 16 report did not stop 

there. They also reported falsely that after the manufactured identification of Rivera in the 

second lineup, Lopez viewed photos of Rodriguez and Nieves, and he said that they were not the 

perpetrators. AS ¶ 48. Again, this purported photo exclusion never occurred. AS ¶ 49. 

Finally, in advance of trial, Guevara fabricated false witness testimony for Lopez to 

provide at trial. AS ¶¶ 61-64. Specifically, Guevara invented a story that the shooter had long 

hair dyed gold and that Rivera had a similar hairstyle at the time of the shooting. AS ¶ 1. There 

was not a single mention of gold hair in any of the police reports or witness descriptions. AS ¶ 

62. Yet at trial, Lopez testified that he had told the police all along that the shooter had long gold 

hair. AS ¶ 91. After that, Guevara took the stand and stated falsely that Rivera had gold hair at 

the time of his arrest. AS ¶ 92. That, of course, was not true. AS ¶ 63. Asked at his deposition 

why he provided this false testimony, Guevara took the Fifth. AS ¶ 64. Given this evidence and 

the other fabrications described above, Rivera is entitled to the inference at summary judgment 

that before trial Guevara fabricated this false testimony about gold hair for him and Lopez to 

provide, in order to further bolster Lopez’s false identification. 

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Through these sequential acts of fabrication, each and every one of the Defendants helped 

to construct an entirely false story, in which the eyewitness Lopez had purportedly seen a man he 

recognized from Humboldt Park shoot Valentin, after which he picked a photo of Rivera from a 

mugbook without any help, and then confirmed that identification of Rivera in a legitimate live 

lineup three weeks later. The false story continued that the victim, Valentin, who earlier in the 

investigation had identified Rodriguez and Nieves from a photobook, had later identified Rivera 

as the perpetrator as well. At the same time, Lopez excluded Rodriguez and Nieves after being 

shown photos of them. The criminal justice system could be sure that Lopez’s identification was 

accurate, the false story concluded, because he had seen a shooter with a distinctive gold pony 

tail, and Guevara had noticed the same pony tail at the time of Rivera’s arrest. 

This false evidence was presented to prosecutors and others in the criminal justice 

system, and it caused Rivera to be charged, prosecuted, and convicted. AS ¶¶ 80-85, 90-93. A 

jury could find each Defendant liable on this theory, and summary judgment must be denied. 

(b) Defendants’ Arguments for Judgment on the Fabrication Theories Fail 

Defendants offer little in the way of argument for summary judgment on Rivera’s 

fabrication theories.8

 Defendants assert that summary judgment is warranted because, in their 

view, their fabricated evidence—more specifically, their actual police report—was not used at 

Rivera’s trial. Officer Br. at 14-16. This argument fails as a factual matter, because construing 

 8

 In fact, they provide no counterargument at all to Rivera’s contention that Defendants fabricated Rivera as 

a suspect in the first place, before any identification, or to the theory that Defendants fabricated Lopez’s initial 

mugbook identification. There is a direct causal link between these fabrications and Rivera’s arrest, prosecution, and 

conviction, and the Defendants cannot hope for summary judgment on Rivera’s fabrication claims having failed to 

even address those theories. Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006) (“[I]f the moving 

party does not raise an issue in support of its motion for summary judgment, the nonmoving party is not required to 

present evidence on that point, and the district court should not rely on that ground in its decision.”); Purghoraishi v. 

Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006) (same). It will obviously be too late for Defendants to raise these 

arguments in their reply. Costello v. Grundon, 651 F.3d 614, 635 (7th Cir. 2011) (reversing summary judgment 

granted on issue first raised in a reply). 

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the record in Rivera’s favor, the evidence fabricated by Defendants was absolutely introduced at 

trial. AS ¶¶ 90-93. Indeed, it was the only thing that led to Rivera’s conviction. AS ¶¶ 90-93, 95. 

The in-court identifications provided by Lopez and Guevara at trial were precisely the 

fabricated story just discussed, which was manufactured by the Defendants and set out in their 

false reports. AS ¶¶ 60, 65-69, 91-92. The false story about having seen the shooter previously in 

Humboldt Park, the fabricated mugbook identification, the false identification of Rivera at the 

second lineup, and the invented story about the shooter and Rivera having gold hair were all 

explicitly introduced at trial through the testimony of Lopez, Leonard (by stipulation), and 

Guevara. AS ¶¶ 91-93. The photograph of the second lineup was introduced into evidence, it was 

authenticated by Guevara, and Lopez placed an “X” over Rivera’s head on the exhibit during his 

testimony. AS ¶¶ 91, 92. Moreover, the testimony of Lopez and Guevara followed the script of 

pretending as though the first lineup had never occurred. Id. 

Defendants’ fabricated evidence was used before trial as well to deprive Rivera of his 

liberty—it was given to prosecutors to support charges and it formed the basis, through 

Guevara’s testimony, for the indictment. AS ¶¶ 80-84. Rivera is entitled to the inference at 

summary judgment that, immediately following the second lineup, Guevara, Gawrys, and 

McLaughlin spoke with prosecutors and provided them the same false information included in 

their reports to bring about the charges. AS ¶¶ 81-82. At the grand jury, Guevara presented the 

false story that an “eyewitness”—either Lopez or Valentin—had implicated Rivera as the killer, 

and that was the only evidence presented during that proceeding. AS ¶ 84. 

Defendants’ argument that their police reports did not get introduced as evidence at the 

criminal trial fundamentally misunderstands the principles of causation that govern fabrication 

claims. When the police fabricate evidence, they are liable if that fabrication causes any 

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deprivation of liberty, whatever form the fabricated evidence takes, and whether it is presented at 

trial or is used to bring charges or to help indict. See Avery, 847 F.3d at 441-42 (due process 

violated when fabricated confession introduced at trial through police testimony); Stinson v. 

Gauger, Nos. 13-3343, 13-3346 & 13-3347 (7th Cir. Aug. 18, 2017) (en banc) (slip opinion 

attached as Ex. 150) (due process violated when fabricated expert opinion introduced at trial by 

testimony); Whitlock, 682 F.3d at 582-84 (due process violated when witness testimony 

fabricated by police introduced at trial by an immune prosecutor at trial); Fields II, 740 F.3d at 

1112 (noting that a where a fabrication was used to support charges it “harmed the defendant 

before and not just during trial, because it was used to help indict him”); Julian v. Hanna, 732 

F.3d 842, 847 (7th Cir. 2013) (fabrications of evidence affect liberty interests both before and 

after conviction). Thus there is no support for Defendants’ position that they can be liable only if 

particular false police reports are actually introduced as evidence. 

Finally, Guevara argues that he is not liable for his fabrications because witnesses are 

immune for the testimony they give at trial or to the grand jury. Guevara is correct that Briscoe v. 

LaHue, 460 U.S. 325, 332-33 (1983), and Rehberg v. Paulk, 566 U.S. 356, 368-69 (2012), 

respectively, establish that testimonial immunity. But as the Supreme Court and Seventh Circuit 

have said repeatedly, testimonial immunity does not extend to pre-trial acts of fabrication that are 

then presented by way of testimony at trial. Rehberg, 566 U.S. at 370 n.1; Stinson, Ex. 150, slip 

op. at 22-23 (pretrial acts of fabricating false testimony violate due process even if witness is 

immune for later testimony at trial); Avery, 847 F.3d at 441-42 (an officer cannot immunize 

himself simply by testifying about his false evidence at trial and noting that “[i]f an officer who 

fabricates evidence can immunize himself from liability by authenticating falsified documentary 

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18 

or physical evidence and then repeating the false ‘facts’ in his trial testimony, wrongfulconviction claims premised on evidence fabrication would be a dead letter.”). 

Under this case law, Rivera does not seek to hold Guevara liable for his lies at the grand 

jury and trial. Instead, Guevara is liable for fabricating evidence before those proceedings—a 

false identification from Valentin and false identifications and testimony from Lopez—that was 

used to secure charges, obtain an indictment, and cause a conviction at trial, when the false 

evidence was introduced through testimony and exhibits. AS ¶¶ 90-93; see also 22-28, 29-41, 

45-46, 48-49, 50-60, 61-64, 65-69. This is precisely the type of fabrication claim recently blessed 

by the Seventh Circuit in Avery, 847 F.3d at 441-42. 

In summary, all of the evidence that implicated Rivera in the Valentin shooting was 

created by the Defendants. To the extent that the Defendants disagree, it is because there are 

genuine disputes of fact. Summary judgment on Rivera’s fabrication theories should be denied. 

2. Independently, A Reasonable Jury Could Conclude That Defendants Suppressed 

Material Exculpatory and Impeachment Evidence 

Brady requires that exculpatory and impeachment evidence material to the criminal case 

be disclosed to the defense, “[a]nd police officers can be held liable under Brady and its progeny 

when they withhold exculpatory evidence from prosecutors[.]” Holland v. City of Chicago, 643 

F.3d 248, 255 (7th Cir. 2011); see also Kyles v. Whitley, 514 U.S. 419, 438 (1995). The Seventh 

Circuit has long recognized that section 1983 due process claims may be brought against police 

who withhold exculpatory and impeachment evidence, causing wrongful convictions. Whitlock, 

682 F.3d at 572; Dominguez v. Hendley, 545 F.3d 585 (7th Cir. 2008); Newsome v. McCabe, 256 

F.3d 747, 752 (7th Cir. 2001); Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988). 

The Supreme Court recently reaffirmed that “[e]vidence qualifies as material when there 

is ‘“any reasonable likelihood”’ it could have ‘“affected the judgment of the jury.”’” Wearry v. 

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Cain, 136 S. Ct. 1002, 1006 (2016) (quoting Giglio v. United States, 405 U.S. 150, 154 (1972); 

Napue v. Illinois, 360 U.S. 264, 271 (1959)). A litigant “need not show that he ‘more likely than 

not’ would have been acquitted had the new evidence been admitted. . . . He must show only that 

the new evidence is sufficient to ‘undermine confidence’ in the verdict.” Id. (citing Smith v. 

Cain, 132 S. Ct. 627, 629-31 (2012)); see also Kyles, 514 U.S. at 434. 

The question as to whether suppressed evidence was material must be answered 

considering all of the suppressed evidence together in the aggregate, and not by assessing 

evidence piece by piece. Wearry, 136 S. Ct. at 1007. Whether evidence is material also depends 

on the strength of other evidence used in the criminal proceedings—it might take only a little 

evidence to disturb an already-weak conviction. United States v. Agurs, 427 U.S. 97, 113 (1976). 

Importantly, it is firmly established that evidence that would impeach a key eyewitness is 

material. Giglio, 405 U.S. at 153-54; see also Smith, 565 U.S. at 75 (impeachment evidence 

regarding eyewitness material when eyewitness was the only evidence connecting defendant to 

the crime); Fields v. Wharrie, 672 F.3d 505, 517 (7th Cir. 2012) (Fields I) (“The constitutional 

violation occurs when the means by which the testimony was acquired are not disclosed at 

trial—or when other information that impeach the testimony’s reliability are not shared with the 

defense.”); Newsome v. McCabe, 319 F.3d 301, 302-05 (7th Cir. 2003) (holding that “the details 

about how [the police] induced the witnesses to finger Newsome” was “information vital to 

probe whether manipulation occurred”). 

The case against Rivera was exceedingly thin and based on fabricated evidence. Any one 

of the pieces of exculpatory evidence suppressed by Defendants would have undermined 

confidence in his conviction. When the suppressed evidence is considered as a whole, there is no 

chance Defendants are entitled to summary judgment on the suppression claim. 

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(a) Defendants Suppressed Exculpatory Evidence 

1. Defendants Suppressed Their Fabrications. At the outset, it is worth noting that 

Defendants suppressed that they had fabricated the false evidence discussed above. Specifically, 

Defendants did not disclose to state prosecutors, to Rivera, or to his criminal defense attorney, 

now-Judge Kenneth Wadas that they had pointed out Rivera in the mugbook when they showed 

it to Lopez, or that they had fed Lopez a story about recognizing Rivera from the baseball fields 

in Humboldt Park. AS ¶¶ 25-28, 69, 87, 89. They also suppressed that they told Lopez to pick 

Rivera from the second lineup, that they invented an identification from Valentin at a time when 

he was in a coma, and that they had fabricated the story about the perpetrator having gold hair. 

AS ¶¶ 45-46, 57-60, 61-62, 65-69, 73-77. Had the Defendants disclosed any of this information, 

it would have immediately halted the criminal prosecution and conclusively shown Rivera’s 

innocence. Even if it had not, this suppressed evidence is the sort of impeachment evidence that 

is conclusively material, within the meaning of United States v. Bagley, 473 U.S. 667, 676 

(1985), and Giglio, 405 U.S. at 154-55. It could have been used to cross-examine Lopez and 

Guevara in a manner that would have left the state without good evidence. Smith, 565 U.S. at 75; 

Fields I, 672 F.3d at 517; Newsome, 319 F.3d at 302-05. As a result, Defendants’ suppression of 

their own fabrications is enough for Rivera’s suppression claims to survive summary judgment.

2. Defendants Suppressed Lopez’s Exculpatory Statement. Rivera’s claim here is not 

based solely on the suppression of Defendants’ fabrications, because Defendants suppressed 

other material evidence as well. As discussed, before the second lineup, Lopez told Guevara and 

McLaughlin that Rivera was not the shooter. AS ¶¶ 50-56. It is hard to imagine more powerful 

impeaching evidence than a prior statement from the state’s star eyewitness that the person he 

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identified in a mugbook, in a lineup, and at trial was in fact not the perpetrator he had seen.9

 This 

evidence was, without question, material. Jones, 856 F.2d 985 (affirming a due process verdict in 

a case with almost precisely the same fact pattern); Whitlock, 682 F.3d at 574 (affirming denial 

of summary judgment in the same circumstances).

3. Defendants Suppressed the First Lineup. The same is true of Defendants’ suppression 

of the first lineup on August 31. Again, Defendants concede, as they must under Rule 56, that the 

lineup occurred. AS ¶¶ 29-38. If it did, Defendants also must concede that they falsely reported

to prosecutors, Rivera, and his criminal defense attorneys that no such lineup ever occurred. AS 

¶¶ 36, 43, 67-68. Rivera stood in that lineup, Lopez viewed it, and Lopez picked a filler. AS ¶¶ 

39-40. Again, information that Lopez viewed a lineup and picked someone other than Rivera 

would have been powerful impeachment of his other identifications. AS ¶ 83. Indeed, proof that 

a first lineup with Lopez occurred would have been material evidence impeaching Lopez’s trial 

identification, even if one construes the facts in Defendants’ favor and assumes that Lopez did 

not pick a filler. AS ¶¶ 29-38. Rivera and his attorney could have impeached Lopez’s and 

Guevara’s testimony at trial that Lopez identified Rivera in an unbroken sequence of 

identification procedures—first the mugbook and then the September 15 lineup—with evidence 

that Lopez had viewed a lineup in which Rivera stood, after which Rivera was released without 

charge. AS ¶¶ 83, 90-93. In many scenarios the first lineup was material exculpatory evidence.

 9

 Rivera has already explained the reasons that Defendants’ factual arguments—that Lopez did not tell 

them this, or that if he did they did not understand—are inappropriate for summary judgment. 

Defendants also argue they cannot be held accountable for failing to appreciate the ramifications of the 

evidence that they did not produce, and they cite to this Court’s decision in Johnson v. Dossey, 878 F. Supp. 2d 905, 

921 (N.D. Ill. 2012), in support. Officer Br. at 10-11. Johnson does not support Defendants. In Johnson, the record 

showed (at best) that the trial prosecutor and police conspired together to suppress evidence, and the issue was 

whether there was evidence that the police had failed to disclose a particular piece of exculpatory evidence to the 

prosecutor. Id. at 920-21. The Court concluded that there was no evidence in the record that the police had failed to 

do so. Id. Johnson has no application here, where the evidence shows that police learned from the eyewitness that 

their suspect was not the perpetrator, that the police never disclosed that information to prosecutors, and that they 

instead told prosecutors that the witness had identified their suspect. AS ¶¶ 52, 57, 60, 65, 80-83. 

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Defendants’ argument that the first lineup was not suppressed because Rivera and his 

attorney, Wadas, knew about it is riddled with errors. Of course Rivera was always suspicious 

that the first lineup he stood in a couple of weeks before he was charged with Valentin’s murder 

was related to the case—he told Wadas as much, and Wadas attempted to investigate it. AS ¶¶ 

42, 87. But Rivera (and Wadas, and state prosecutors) had no way of proving that the first lineup 

Rivera stood in was related to the Valentin case. AS ¶¶ 42-43, 87. That is because Guevara told 

Rivera when he was arrested that he was going to be a filler in a lineup, Defendants wrote false 

reports stating that the lineup had not occurred, and they suppressed other reports that could have 

been used to show that in fact the lineup had occurred and was related to the Valentin case. AS 

¶¶ 36-37, 42, 67-68, 76-77. Moreover, Rivera certainly had no way, standing in the lineup, to 

know that Lopez had viewed the lineup, much less that he had picked a filler. AS ¶¶ 42-44. 

Defendants refer the Court to Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003), a 

case that stands generally for the proposition that evidence is not suppressed within the meaning 

of Brady if it is already known to the criminal defendant. Because Rivera was in the first lineup, 

Defendants’ argument goes, exculpatory evidence was not suppressed. Precisely this 

misapplication of Gauger was expressly rejected by the Seventh Circuit earlier this year in 

Avery, 847 F.3d at 443-44. 

Avery considered whether police officers could be liable for failing to disclose 

impeachment evidence regarding their interrogations of three jailhouse informants, who testified 

falsely at a criminal defendant’s trial that the criminal defendant had confessed the murder to 

them. Id. at 436-37, 443-44. The district court, relying on Gauger, concluded that because the 

criminal defendant had himself participated in conversations with the jailhouse informants, he 

knew that they were lying when they implicated him, and therefore the police had no Brady

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obligation to disclose information about the informants when the criminal defendant could have 

impeached the informants himself. Id. at 443-44. Rejecting the same argument Defendants raise 

here, the Seventh Circuit held that the district court “correctly stated the Gauger rule but 

misapplied it to this case,” and it held that where the police have knowledge of impeaching facts 

that will help to prove that a witness’s statements are false, they must disclosed that 

impeachment evidence under Brady. Id. 

Rivera knew he was in a lineup and suspected it was related to this case, but he was 

deprived of all of the proof in Defendants’ possession with which he could have impeached 

Lopez at trial—the fact that the lineup was tied to the Valentin investigation, the fact that Lopez 

viewed the lineup, and the fact that he picked a filler. AS ¶¶ 42-44. All of that would have been 

powerful impeachment evidence, and all of it was suppressed by Defendants. Worse yet, they 

replaced this impeachment evidence with false evidence. Gauger does not apply to this situation, 

Avery does. Defendants are not entitled to summary judgment. 

4. Defendants Suppressed That Rivera Was Their Suspect on Day One. Last but certainly 

not least, Defendants suppressed the fact that Rivera was their suspect on the day the crime 

occurred, before any witness had identified him. AS ¶¶ 22-24. This is perhaps the most profound 

fact withheld in the case. Defendants requested Rivera’s rap sheet on the day Valentin was shot, 

that rap sheet was produced by central records with an August 27 date stamp, and the Defendants 

put the rap sheet in their file. AS ¶¶ 22, 76-77. The rap sheet was therefore produced two days 

before Lopez made his August 29 mugbook identification of Rivera. AS ¶¶ 22-24. Rivera is fully 

entitled to the inference at this stage of the case that this sequence of events demonstrates that 

Defendants decided he was a suspect first and created evidence to implicate him second. That 

inference is strengthened by the fact that the rap sheet itself was hidden in the street file and was 

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never turned over to prosecutors, Rivera, or his defense attorneys. AS ¶¶ 76-77, 87. If it had been 

disclosed, it too would have been powerful impeachment evidence at trial.

(b) Defendants Suppressed Exculpatory Police Files 

The summary judgment record also amply supports Rivera’s claim that Defendants 

violated his right to due process by suppressing investigative documents generated during the 

Valentin investigation in a street file—a clandestine parallel file that was not produced to 

prosecutors, to Rivera, or to his attorneys.10 The documents Defendants suppressed in the street 

file were additional material exculpatory and impeachment evidence that were withheld from 

Rivera, in violation of his right to due process. See Jones, 856 F.2d 985 (noting that suppression 

of exculpatory evidence in clandestine street files violates due process); see also Fields v. City of 

Chicago, 2014 WL 477394, at *6-7 (N.D. Ill. Feb. 6, 2014) (denying summary judgment on a 

similar street files claims). 

The City and Officer Defendants argue that there was no street file in this case. Their 

argument boils down to a word game—one that they lost in both Fields and Kluppelberg—where 

they define the many types of parallel investigative files kept within the Chicago Police 

Department, pronounce that the usual type of investigative files were kept during the Valentin 

investigation, and conclude that, as a result, there was no street file withheld from Rivera. To the 

extent that files were not turned over to Rivera, Defendants continue, that must have been the 

fault of state prosecutors or Rivera’s attorneys. The Defendants’ self-serving characterization of 

the types of files that they kept during the Valentin investigation and their conclusion that they 

 10 Rivera explains the history of the street files practice in his Local Rule 56.1 statement, AS ¶¶ 98-109, and 

in greater detail below. What is important to bear in mind about the street files practice for present purposes is that 

investigative materials generated during police investigations were kept by officers in a series of parallel files. When 

an investigation concluded, certain reports were made part of the official file routinely produced to the criminal 

justice system and others were not. At the end of the day, information in the parallel investigative files was 

systematical suppressed and was not handed over to prosecutors or to criminal defendants. The parallel investigative 

files for any given case that were not turned over are referred to as street files throughout this brief. 

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did not cause the police file suppression in this case depend entirely on a version of the facts in 

which every inference is drawn against Rivera. That is impermissible at summary judgment, and 

Defendants’ assertion that the record shows they did not suppress documents in a clandestine 

street file must be rejected. 

To be clear, Defendants produced a street file in this litigation they had never produced 

before. AS ¶¶ 70(a), 79. That street file is attached as Exhibit 4 to Rivera’s brief. AS ¶¶ 79, 76-

77.11 A number of the police reports in the street file were made part of the official permanent 

retention file kept by the Chicago Police Department at the time of Rivera’s criminal 

prosecution. AS ¶¶ 70(b), 73-75. The permanent retention file is attached as Exhibit 42 to 

Rivera’s brief. AS ¶¶ 70(b). Other police documents generated by Defendants during the 

Valentin investigation, however, were not put in the permanent retention file and instead were 

kept only in the street file. AS ¶¶ 70(a)-(b), 75-77.12 

In response to requests from prosecutors and Rivera’s attorneys in the lead-up to Rivera’s 

criminal case, Defendants turned over the permanent retention file, but they did not turn over the 

street file. AS ¶ 75. The police documents that were produced by Defendants to the criminal 

justice system in Rivera’s criminal case are in the case file of Rivera’s criminal defense attorney, 

Wadas. AS ¶¶ 72-75. Wadas’s file is attached as Exhibit 16 to Rivera’s brief. AS ¶¶ 72-75.13 

 11 Defendants argue that this file is a color copy of another file produced at the beginning of this civil 

litigation. City Br. at 2. That is not so. The police files produced by Defendants at the beginning of this case were an 

amalgamation of various police documents, from different sources, apparently assembled by defense counsel—they 

were not an actual copy of the street file. RCS ¶¶ 41-42, the key point here is not that the complete copy of the street 

file showed up for the first time after substantial discovery in this case, it is that the complete street file—whether in 

color or black and white—was never produced at all until this civil litigation. AS ¶ 79. 12 Defendants argue that the fact that the file is in an 8.5 x 11” folder, has an index, and contains general 

progress reports shows that it is not a street file. City Br. at 11-12. This argument not only construes the evidence in 

the light most favorable to Defendants, it also does not make sense. The evidence that this is a street file is that it 

was never turned over to prosecutors or defense attorneys, not the size of the file folder. AS ¶¶ 72-77, 79, 87-88. 13 Defendants spend significant space arguing that it is not clear what files prosecutors received from the 

CPD and which files Wadas received from prosecutors. City Br. at 12-14. These arguments depend on an incredible 

obfuscation of the record. Indeed, the City in its brief recognizes that there are disputes of fact on these questions. 

See id. at 13 (“[T]here is a dispute as to whether the documents Wadas disclosed . . . constitute his entire file[.]”). 

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Contrary to the City’s cursory argument otherwise, City Br. at 14, investigative 

documents included in the street file and not produced to the criminal justice system included 

plainly exculpatory evidence. For example, the rap sheet bearing the August 27 date stamp, 

showing that Rivera was a suspect before he was first “identified” by Lopez, was hidden in the 

street file. AS ¶¶ 76-77. While Defendants produced other rap sheets as part of criminal 

discovery, they suppressed the rap sheet with the date stamp. Id. 

Perhaps more importantly, every scrap of paper from the investigation that suggested that 

a first lineup had been conducted in the Valentin investigation—every document that would have 

allowed Rivera or Wadas to connect the first lineup Rivera stood in to the Valentin shooting—

was suppressed. AS ¶ 77. In other words, after writing their false report about the August 31 

lineup, Defendants put all other documents suggesting that there had been an August 31 lineup in 

the street file, and those documents stayed hidden from Rivera during his entire wrongful 

conviction. AS ¶¶ 76-77, 79.14 

 

Put simply, now-Judge Wadas testified that the file that he produced to the parties in this litigation was his complete 

file from the criminal case, which included all of the police documents that he received in discovery. AS ¶¶ 72-74. 

Further, Wadas testified that he always received all of the police reports in the State’s Attorney’s Office’s 

possession on the cases that he defended. AS ¶¶ 74, 87. The trial Assistant State’s Attorney Victorson, who 

prosecuted Rivera, similarly testified adamantly that he provided Wadas all of the police documents that he had 

received from the CPD. AS ¶ 74. Nothing in the record casts any doubt, particularly for purposes of summary 

judgment, on the conclusion that Wadas’s file produced in this case accurate reflects what state prosecutors, Rivera, 

and Wadas had at the time of Rivera’s criminal prosecution. 

Moreover, Defendants’ contention that Wadas never asked for the file is obviously contradicted by the 

record. City Br. at 12-13. Rivera’s attorney sent a subpoena to the CPD’s keeper of records asking for the 

investigative files before Rivera’s trial, but they were not produced. AS ¶¶ 71, 76-77, 79. Wadas made normal 

discovery requests to prosecutors, and prosecutors provided all police materials they had in response. AS ¶¶ 73-74, 

86. Those records appeared to be a complete record as far as Wadas and state prosecutors could tell. AS ¶¶ 87-88. 

Despite these efforts, the street file was not produced. AS ¶ 79. Defendants’ arguments that there was no street file 

or that Rivera and his attorneys did not ask for it are at best fact disputes for trial. 14 Defendants argue there is no evidence that they ever wrote an accurate report recording the August 31 

lineup, and therefore that there is no report of that first lineup that was suppressed. Officer Br. at 13 & n.6. Rivera is 

not arguing about the suppression of some hypothetical report. He is arguing that the Defendants hid in the street file 

things like hold forms, release forms, and general progress reports that demonstrated that the Defendants had held a 

live lineup on August 31. AS ¶ 77. 

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These documents in the street file were documentary evidence Rivera and Wadas could 

have used to investigate the case, impeach witnesses, and prove Rivera’s innocence, as discussed 

above. Defendants’ suppression of the street file violated Rivera’s right to due process.15

(c) Defendants’ Reasonable Diligence Arguments Fail 

Defendants’ arguments that the evidence they suppressed was available to Rivera through 

the exercise of reasonable diligence is without legal support, and it once again depends on a 

version of the facts skewed impermissibly in Defendants’ favor. See Officer Br. at 11-13. This 

argument must be rejected at summary judgment.16

As in Jimenez v. City of Chicago, “[w]hat was available through reasonable diligence . . . 

is very much in dispute.” 830 F. Supp. 2d 432 (N.D. Ill. 2011); see also Cottrell v. Clemons, 

2014 WL 3649185, at *2 (W.D. Ky. July 23, 2014) (whether defense counsel exercised 

reasonable diligence is a question for the jury); cf. Cathedral of Joy Baptist Church v. Village of 

Hazel Crest, 22 F.3d 713, 719 (7th Cir. 1994) (issue of diligence in discovering an injury is a 

question of fact for the jury unless “the relevant facts are undisputed and only one conclusion 

may be drawn from them”). Defendants contend that if Rivera’s attorney Wadas had worked 

harder, he might have uncovered the first lineup that they had covered up, Lopez’s unreported 

statement before the fabricated second lineup that Rivera was not the perpetrator, and their secret 

street file. Officer Br. 6-7, 11-13. The record categorically does not permit Defendants to 

establish that the evidence they suppressed was available to Rivera and his attorneys. 

 15 In a single sentence, the Officer Defendants argue that they were not responsible for transmitting their 

file to prosecutors. Officer Br. at 13-14. It is unclear what they mean. There can be no doubt that due process 

required the Officer Defendants to transmit the exculpatory reports in their file to prosecutors. Kyles, 514 U.S. at 

438; Avery, 847 F.3d at 443-44. To the extent the Officer Defendants mean that they had no control over the process 

that the CPD uses to transmit investigative files to the criminal justice system, that is at best an argument that a jury 

should decide if the City’s policies and practices are responsible for the due process violation (an issue discussed 

below), it is not an argument that undisputed facts justify summary judgment for the officers. 16 Defendants’ reasonable diligence argument has no impact at all on Rivera’s fabrication and unduly 

suggestive lineup due process theories, neither of which requires suppression as an element. 

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It is important to note that each item of exculpatory evidence that Defendants contend 

was available through reasonable diligence is evidence they fabricated or actively took steps to 

cover up: After the first lineup, Defendants wrote a false report stating that it did not happen and 

hid documents discussing it in their street file, AS ¶¶ 36, 67-68, 77; at the second lineup, 

Defendants had Lopez identify Rivera after he said Rivera was not the perpetrator and falsely 

reported that the lineup was legitimate, AS ¶¶ 52, 57-60; and Defendants buried their street file 

so that neither police or prosecutors had access to it, AS ¶¶ 74-75, 79. Defendants cannot 

contend that Rivera’s attorneys could have discovered what Defendants intentionally hid. 

Moreover, the contention that Rivera could have learned Lopez’s true story or the 

circumstances of the first lineup are themselves disputed facts. Wadas testified that he attempted 

to investigate the first lineup after Rivera told him that he thought one had occurred—Wadas 

made multiple requests to prosecutors for reports of the first lineup and also requested 

photographs—but he hit a dead end when he was told that there were no such documents and 

that there was no first lineup. AS ¶¶ 43-44, 86-87. The reason he hit a dead end is that 

Defendants hid the evidence, from Wadas and from the prosecutors. AS ¶¶ 43-44, 74-75, 86-87. 

In addition, Wadas had no access to Lopez because he was controlled by Defendants, 

who were fabricating false evidence with him while preparing him for trial, and because he was a 

minor whom Wadas could not have talked to, even absent Defendants’ misconduct. AS ¶¶ 85, 

89. At summary judgment, Rivera is entitled to the inference, based on this evidence, that Lopez 

was not available to Wadas for an interview. At the same time, there is a vigorous dispute of fact 

about whether an interview of Lopez would have yielded anything but the false story that 

Defendants had concocted. AS ¶¶ 20(a), 21(a). Indeed, Lopez was asked under oath for his 

honest testimony, and he repeated Defendants’ false story. AS ¶¶ 20(a)-(b), 21(c), 91. 

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Finally, disputes of fact preclude any suggestion that Wadas did not work hard enough to 

discover Defendants’ street file. This was not an open file system. RCS ¶ 31; AS ¶ 73. By 

definition, a street file is a clandestine file not turned over to the criminal justice system. AS ¶ 

103. Before Rivera’s trial, one of his attorneys sent a subpoena to the Chicago Police Department 

keeper of records for the investigative files in the case, Wadas made discovery requests, and 

prosecutors provided everything in their possession. AS ¶ 71. Those records they received 

appeared to be complete per Wadas’s experience and as far as prosecutors knew. AS ¶ 88; see 

also id. ¶ 74. The street file was not produced in response. AS ¶¶ 75-77. Indeed, even after his 

conviction Rivera made FOIA requests for the police files in the case without success. AS ¶¶ 78-

79. It is implausible, based on the record construed in Rivera’s favor, to suggest that reasonable 

diligence would have led to discovery of the street file. These factual disputes preclude judgment 

as a matter of law without need for further analysis. 

It is also important to point out that Defendants’ “argument rests on far too expansive an 

understanding of what sort of evidence should be considered available to a defendant through the 

exercise of reasonable diligence.” Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001). Reasonable 

diligence does not require defense attorneys to seek evidence they “had no reason to believe 

existed,” and the Seventh Circuit regards “as untenable a broad rule that any information 

possessed by a defense witness must be considered available to the defense for Brady purposes.” 

Id. at 740, 743 (emphasis added). The Court observed that such defense witnesses “may be 

uncooperative or reluctant,” it can be difficult to “extract all the favorable evidence a defense 

witness possesses,” and “the defense may have forgotten or inadvertently omitted some 

important piece of evidence[.]” Id. Importantly, this is the view of the Seventh Circuit in the case 

of a witness controlled by the defense. “These concerns have even more weight in a case, like 

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this one, involving information possessed by a prosecution witness.” Hampton v. City of 

Chicago, 2017 WL 2985743, at *22 (N.D. Ill. July 13, 2017). 

Not only was Lopez a prosecution witness, he was a witness for whom Defendants had 

fabricated identifications and an entirely false story—a story that Lopez stuck with throughout 

Rivera’s trial. As Judge Kennelly observed in Jimenez, reasonable diligence would not be a 

tenable legal rule if courts determined that fabricated stories in the minds of prosecution 

witnesses were discoverable through the exercise of reasonable diligence: 

Defendants’ argument seems to assume the existence of a Perry Mason-like world in which 

prosecution witnesses readily give up impeaching information when interviewed or questioned by 

defense counsel. Real life does not work that way, or at least the governing legal rule cannot 

realistically be premised on the assumption that it always works that way. Witnesses coerced or 

persuaded to testify in a particular way often tend to identify with, and to ally themselves with, 

their persuaders. A legal rule that assumes that such a witness will readily describe the 

circumstances of the coercion or persuasion simply because the other side’s lawyer asks the 

witness the right question would defy common sense. 

830 F. Supp. 2d at 444-45. As Judge Dow observed recently in Hampton, in cases where “the 

evidence that was allegedly withheld was in the minds of the prosecution witnesses, . . . and 

there is some evidence that the prosecution witnesses provided misleading information about the 

detectives’ use of suggestive identifications with them,” summary judgment should not be 

granted on reasonable diligence grounds. 2017 WL 2985743, at *22. 

More generally, the Seventh Circuit has made clear that the reasonable-diligence doctrine 

does not extend to information in the heads of witnesses the same way that it does to information 

in accessible documents. Boss observed that “[i]n the typical reasonable diligence case, the 

question is whether defense counsel had access to the documents containing the Brady material, 

through an open file policy,” and not “whether defense counsel had access to Brady material 

contained in a witness’s head.” 263 F.3d at 741. The Court continued: “In cases like the present 

one, the question is whether defense counsel had access to Brady material contained in a 

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witness’s head. . . . Because mind-reading is beyond the abilities of even the most diligent 

attorney, such material simply cannot be considered available in the same way as a document.” 

Id. (citation omitted). At the same time, the Court has concluded that information may be 

deemed unavailable if the defense has less of an opportunity to obtain it, e.g., United States v. 

Morris, 80 F.3d 1151, 1168 (7th Cir. 1996) (focusing on whether “defendants had been given the 

same opportunity as the government to discover the identified documents”); or where there is 

evidence that a witness would have lied about it, e.g., Crivens v. Roth, 172 F.3d 991, 996-97 (7th 

Cir. 1999) (holding that evidence in a prosecution witness’s head not discoverable through the 

exercise of reasonable diligence where there was evidence that the witness would have lied about 

that evidence). Here there is no support in the record for a conclusion that Rivera’s attorney 

could have discovered the truth from a lying prosecution witness conspiring with Defendants. 

Defendants contend that this case is similar to Boyd v. City of Chicago, 225 F. Supp. 3d 

708 (N.D. Ill. 2016), but there are critical differences between the eyewitness discussed in Boyd

and Lopez in this case: the eyewitness in Boyd (a woman named Bonanno) did not testify at the 

plaintiff’s criminal trial, she was accessible to the plaintiff’s defense attorneys, and there was no 

evidence whatsoever that she was provided a false story to tell by the police defendants in the 

case. Id. at 721-23. Specifically, Bonanno viewed a lineup and told the police that the plaintiff 

was not the perpetrator. Id. She was then disclosed as a witness, was not interviewed by the 

plaintiff’s criminal defense attorneys, and was not called at the plaintiff’s criminal trial. Id. at 

713, 721-23. The court concluded that there was no basis in the record to conclude that Bonanno 

would not have simply told plaintiff’s defense attorneys what she had told the police detectives if 

they had interviewed her, and therefore that the police defendants could not be held liable for 

suppressing evidence. Id. at 721-23. 

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Here, by contrast, the Defendants told Lopez to fabricate a false identification of Rivera 

directly after he told them Rivera was not the perpetrator, and they continued to control him and 

fabricated additional false testimony for him at all points between that moment and Lopez’s 

ultimate false testimony at Rivera’s criminal trial. AS ¶¶ 52, 58-60, 61-64, 91. Even if the record 

allowed an inference that Wadas had some opportunity to access and interview Lopez (which he 

did not for the reasons discussed already), there is nothing in record that entitles Defendants to 

the inference that Lopez, in the midst of Defendants’ fabrication of evidence, would have 

suddenly come clean. AS ¶¶ 20(a), 21(a). That proof problem is fatal to Defendants’ motion as 

movants—if it was undisputed that Lopez would have told Wadas the truth had he been asked, 

Defendants should have provided admissible testimony from Lopez to that effect. As it stands, 

Defendants seek an inference in their favor on this point, which is obviously improper. 

The combination of Defendant’s control of Lopez, their fabrication of his false testimony, 

and his presentation of that false evidence at trial renders any argument that suppressed evidence 

was available to a diligent attorney utterly inconsistent with the law governing these claims.17

Adopting Defendants’ position “would effectively render Brady and its progeny, including 

Giglio v. United States, 405 U.S. 150 (1972), a dead letter: if the governing rule is predicated on 

the assumption that a prosecution witness will, if interviewed by the defense, disclose 

impeaching information, then the prosecution effectively is relieved of the legal responsibility 

under Brady and Giglio to disclose that information.” Jimenez, 830 F. Supp. 2d at 445. The law 

and disputes of fact preclude summary judgment on this basis. 

 17 These factors also distinguish this case from Patrick v. City of Chicago, 103 F. Supp. 3d 907, 915 (N.D. 

Ill. 2015), in which the suppressed evidence was known to co-defendants to whom defense attorneys had access, and 

from Mosley v. City of Chicago, 2009 WL 3097211, at *5-7 (N.D. Ill. Sep. 22, 2009), in which the police defendants 

never suggested that the eyewitness had identified the plaintiff in a lineup, the eyewitness testified at the grand jury 

that he did not see the plaintiff commit the crime, and the defense attorney had access to the witness and the grand 

jury testimony. 

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 Given the blatant Brady violations above, Defendants’ only defense is to deny they ever 

occurred. That defense must be mounted at trial and not in a motion for summary judgment. 

3. Independently, A Reasonable Jury Could Conclude That Defendants Utilized 

Unduly Suggestive Lineup Procedures That Tainted Rivera’s Criminal Trial 

Disputed facts also preclude summary judgment on Rivera’s claim that Defendants 

conducted unduly suggestive identification techniques that violated Rivera’s right to due process 

when the identifications were used in his criminal proceedings. Police violate due process when 

they employ unduly suggestive lineup techniques that taint a criminal case. Manson v. 

Brathwaite, 432 U.S. 98 (1977); Alexander v. City of South Bend, 433 F.3d 550, 555 (7th Cir. 

2006); Hensley v. Carey, 818 F.2d 646, 648-50 (7th Cir. 1987). Section 1983 liability does not 

attach simply because an unduly suggestive lineup procedure is employed. Instead, the improper 

lineup must have had a prejudicial impact on the criminal proceedings. Alexander, 433 F.3d at 

555-56 (“A plaintiff with this kind of [section 1983] claim must demonstrate, by reference to the 

Brathwaite standard, that unduly suggestive identification procedures led to an unreliable 

identification that undermined the fairness of his trial.”). The assessment of whether 

identification procedures were so unduly suggestive that they gave rise to a misidentification 

turns on two questions: (1) whether the procedures were unnecessarily suggestive; and (2) 

whether there is evidence that the identifications were nonetheless reliable. Hampton, 2017 WL 

2985743, at *23 (citing Lee v. Foster, 750 F.3d 687, 691 (7th Cir. 2014)). If the identification 

techniques were unduly suggestive, the question is whether they rendered the criminal 

proceeding unfair. Id. (citing Alexander, 433 F.3d at 555). Each of these questions must be 

resolved in Rivera’s favor at summary judgment. 

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(a) The Identification Procedures Were Unduly Suggestive 

As discussed above, Defendants decided on Rivera as their suspect at the outset, directed 

Lopez to pick him from the photobook, and then told Lopez (who, remember, was just 12 years 

old) to select him again at the second lineup, after Lopez had told the Defendants that Rivera was 

not the perpetrator. That is enough at summary judgment to demonstrate that the identification 

procedures were unduly suggestive. 

But even if that misconduct were not in the record, there is still sufficient evidence to 

show that the lineup procedures Defendants used were unduly suggestive. Rivera’s expert, Dr. 

Jennifer Dysart, explains in detail the peer-reviewed research on eyewitness identifications that 

supports Rivera’s contention that the identification procedures in this case were unduly 

suggestive and resulted in an unreliable identification. Ex. 21. 

For starters, Dr. Dysart opines that the fact that Lopez was just 12 rendered him 

especially susceptible to police suggestion and influence. Id. at 9. Dr. Dysart also points to 

various “system variables”—investigative circumstances in the Defendants’ control—that 

rendered the identification procedures used on Lopez unduly suggestive, including: (1) requiring 

Lopez to search through hundreds of mug shots in photobooks, which increased the risk of false 

identifications because of commitment effects and unconscious transference effects produced by 

mugbook searching, id. at 9-10; (2) only two of fillers in the first lineup and two of the fillers in 

the second lineup had the ponytail that Lopez later testified was worn by the perpetrator, 

meaning that the fillers did not all match the witness’s description of the suspect, which in turn 

increased the chances that Rivera would be wrongly selected, id. at 10; (3) Lopez was told before 

the identification procedures that he was looking at photo and live lineups that included the 

suspect, which dramatically increased the chance of false identifications, id. at 11; (4) the use of 

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non-blind simultaneous lineups (where Defendants knew the identity of their suspect and all 

lineup subjects were viewed together), instead double-blind sequential lineups (where the 

administrator does not know the identity of the suspect and subjects are viewed one at a time), 

increased the probability that Lopez’s selection would be influenced, id. at 13; (5) postidentification confirmation from Defendants that Lopez had selected the “right” person from the 

lineup increased the chances of erroneous identifications, id. at 15; (6) repeated identification 

procedures in which Rivera was the only common subject increased the chances of Lopez 

selecting Rivera incorrectly, id. at 15-16. 

At minimum, this evidence shows a robust dispute about whether the identification 

procedures used with Lopez were unduly suggestive, even setting aside the evidence that 

Defendants fabricated the identifications out of whole cloth. A reasonable jury could find Dr. 

Dysart’s opinions credible, thereby rendering summary judgment inappropriate. 

(b) Lopez’s Identifications of Rivera Were Not Reliable 

Lopez’s identification was also undeniably unreliable. Most importantly, the record 

viewed in Rivera’s favor shows that Lopez identified Rivera as the Valentin shooter even though 

Rivera had nothing to do with the crime and was not at the scene. AS ¶¶ 20(d), 21(e), 50, 52, 96-

97. Indeed, there is nothing in the Defendants’ summary judgment filing that even hints that 

Lopez accurately identified Rivera as the shooter—their story is that he lied. Moreover (and not 

to beat a dead horse), the Defendants’ instruction to Lopez that he should pick Rivera, even after 

Lopez had picked a filler and told the Defendants that Rivera was the wrong guy, conclusively 

renders the identification unreliable for purposes of summary judgment. 

Again, additional evidence supports this view. The reported initial descriptions of the 

perpetrators—whether from Valentin or Lopez—lack any detail that might suggest that Rivera 

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was one of the perpetrators. AS ¶¶ 8, 10-11. Valentin for example described a 16- to 18-year-old 

boy as the shooter, but Rivera at the time was 23 years old. AS ¶ 8. As Dr. Dysart notes, the 

initial descriptions are devoid of details about the distinctive long hair, dyed gold, which Lopez 

and Guevara later attributed to Rivera at trial. Ex. 21 at 8-9. These emergent details suggest the 

invention of new and inaccurate memories. Id. In short, the initial descriptions on their face 

provide strong proof that Lopez could not identify the perpetrator at all, let alone accurately 

identify Rivera. AS ¶¶ 8, 10-11. This conclusion is strengthened by the considerable variation in 

Lopez’s stories about the shooting, which suggest he did not see anything with sufficient clarity 

to make an identification. AS ¶¶ 17-19(a)-(h), 21(b), 61-62. 

In addition, Dr. Dysart identifies various “estimator variables”—environmental 

circumstances not in Defendants’ control—that demonstrate that Lopez’s identifications were 

unreliable, including: (1) Lopez’s limited exposure to the shooter, which reduced the chances of 

an accurate identifications, Ex. 21 at 6-8; (2) Lopez’s focus on the weapon, which drew attention 

from the perpetrator’s face and reduced accuracy, id. at 8; and (3) the stress caused by the 

incident, which would have had a similar effect, id. at 8. Finally, Dr. Dysart opines that Lopez’s 

non-identification of Rivera in the first lineup is strongly indicative of Rivera’s innocence. Id. at 

16. No evidence in the record suggests Lopez’s identifications of Rivera were reliable. 

(c) The Identification Tainted Rivera’s Criminal Proceedings 

The final factor necessary to support this due process theory is whether the unduly 

suggestive and inaccurate identifications rendered Rivera’s criminal case unfair. Based on this 

record, the question must be answered in the affirmative. 

Under Seventh Circuit case law, whether unduly suggestive identifications made criminal 

proceedings unfair is answered by reference to the following questions: “What identification 

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evidence was actually admitted at trial? What did the victims, eyewitnesses, and police officers 

say? Were they cross-examined? Were the circumstances surrounding the identification and the 

police procedures put before the jury? What exhibits were admitted on this issue? Was any 

objection or motion to suppress the identification evidence made? What other evidence tended to 

link the defendant to the crime?” Alexander, 433 F.3d at 555. 

At trial, Lopez and Guevara implicated Rivera as the perpetrator from the stand—based 

on the identification procedures that Defendants utilized before trial. AS ¶¶ 91-92. Lopez and 

Leonard testified about the mugbook identification Lopez made of Rivera. AS ¶¶ 91, 93. Both 

Lopez and Guevara testified about the identification of Rivera at the second live lineup. AS ¶¶ 

91-92. And a photograph of the second lineup was introduced as evidence at trial, at which time 

Lopez placed an “X” above Rivera’s head on the photo. Id. 

Though Wadas attempted to cross examine these witnesses, Defendants’ suppression of 

the true circumstances of these identification procedures—the fact that Rivera was a suspect 

before any identification, the fact that they told Lopez who to pick from the mugbook, the fact 

that Lopez picked a filler from the first lineup, and the fact that Lopez said before the second 

lineup that Rivera was not the perpetrator—rendered cross examination effectively impossible.18 

The identifications were used to convict Rivera at trial. Other than the evidence 

fabricated by the Defendants discussed above, nothing else even implied Rivera was guilty. The 

record shows that the unduly suggestive false identifications made Rivera’s trial unfair. 

 18 Defendants argue that Wadas should have done a better job cross examining at trial or should have filed a 

motion to suppress Lopez’s identifications. Officer Br. at 18. But they tied Wadas’s hands behind his back, hiding 

the evidence that would have allowed Wadas to undermine the identifications. 

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(d) Defendants’ Arguments for Summary Judgment on the Unduly 

Suggestive Lineup Theory Lack Merit 

Defendants’ remaining arguments for summary judgment on this due process theory have 

been addressed already. Defendants again argue that Lopez’s identification of Rivera at trial was 

“his own intentional lie, not the result of police manipulation.” Officer Br. at 16-18. But there is 

ample evidence that, after selecting Rivera as the suspect, Defendants told Lopez who to pick in 

multiple lineups, including after Lopez said Rivera was not the perpetrator, supra at 9-18, as well 

as the evidence just discussed that Defendants’ identification procedures were unnecessarily 

suggestive, even ignoring the fabrication, supra at 33-37. Defendants’ citation to Hart v. 

Mannina, 798 F.3d 578, 587-88 (7th Cir. 2015), a case involving four eyewitness identifications 

and no evidence of manipulation, does not help Defendants given the facts of this case. Rivera’s 

evidence of manipulation is not thin or speculative. On the contrary, it is largely uncontroverted. 

This Court should deny summary judgment on the unduly suggestive lineup due process theory. 

C. A JURY MUST DECIDE THE SECTION 1983 CONSPIRACY CLAIMS 

In cursory fashion, Defendants argue for summary judgment on Rivera’s section 1983 

conspiracy claims, asserting that these claims are derivative of his due process claims and 

unsupported by evidence. Officer Br. at 18-19. To the extent Defendants’ argument is based on a 

purported deficiency in Rivera’s due process claims, that argument is rebutted by the discussion 

above of the reasons that the due process claims survive. Supra at 9-33. Moreover, Defendants’ 

bald assertion that there is no evidence of conspiracy is insufficient to shift the summary 

judgment burden. Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010) (“The 

defendants, the moving party on the summary judgment motion, never fulfilled the obligation of 

setting forth the basic facts and law which, in their view, warranted summary judgment on this 

claim.”). Regardless, there is ample evidence supporting Rivera’s conspiracy claims. 

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To prove a section 1983 or civil conspiracy, Rivera must point to evidence from which a 

jury could infer an agreement among two or more people acting in concert to commit an 

unlawful act, or a lawful act by unlawful means. Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 

1979), rev’d in part, 446 U.S. 754. The Seventh Circuit has explained that 

[t]o be liable as a conspirator you must be a voluntary participant in a common venture, although 

you need not have agreed on the details of the conspiratorial scheme or even know who the other 

conspirators are. It is enough if you understand the general objectives of the scheme, accept them, 

and agree, either explicitly or implicitly, to do your part to further them. 

Jones, 856 F.2d at 992. Conspirators are liable “for the wrongful acts of the other conspirators 

committed within the scope of the conspiracy.” Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir. 

2002). “Rarely in a conspiracy case will there be direct evidence of an express agreement among 

all the conspirators to conspire,” and so “circumstantial evidence may provide adequate proof of 

conspiracy.” Bell v. City of Milwaukee, 746 F.2d 1205, 1256 (7th Cir. 1984); see also Hampton, 

600 F.2d at 621 (“The question whether an agreement exists should not be taken from the jury in 

a civil conspiracy case so long as there is a possibility that the jury can infer from the 

circumstances (that the alleged conspirators) had a meeting of the minds and thus reached an 

understanding to achieve the conspiracy’s objectives.”). 

 There is ample evidence of agreement between the Defendants, and Rivera’s conspiracy 

claims against each of them should proceed to trial. The facts viewed in Rivera’s favor show 

Defendants settling on Rivera as a suspect before he was ever identified, and working from there 

to fabricate evidence implicating him in the crime, because there was no evidence to speak of 

otherwise. AS ¶¶ 22-24, 90-93. Where evidence contradicted Defendants’ official version, it was 

hidden from sight. AS ¶¶ 36-37, 40, 57-60, 76-77. As discussed above, each of Defendants 

participated in fabricating Lopez’s mugbook identification, arresting Rivera, and orchestrating 

and then covering up the first lineup. AS ¶¶ 22, 25, 32, 36, 40; ROS ¶¶ 65-72. Even before the 

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second lineup and the fabricated identifications from Lopez and Valentin, which no doubt 

involved fewer of the Defendants directly, each of them had engaged in a scheme to fabricate 

evidence and Rivera for a crime that they had no evidence he had committed. Id.; see Jones, 856 

F.2d at 992 (“We cannot say that the jury acted unreasonably in finding that all of the individual 

defendants were voluntary participants in a common venture to railroad [the plaintiff].”). 

The conspiracy continued after Valentin’s death, but its object and scope remained the 

same. See United States v. Jackson, 546 F.3d 801, 815-16 (7th Cir. 2008) (“[C]o-schemers are 

jointly responsible for one another’s acts in furtherance in the scheme,” and a “participant in 

conspiracy is liable for foreseeable acts of his co-conspirators in furtherance of the 

conspiracy[.]”). A reasonable jury could find for Rivera on his conspiracy claims. 

D. A JURY MUST DECIDE THE FAILURE-TO-INTERVENE CLAIMS 

The Officer Defendants also state in a sentence of their brief that there is no evidence 

supporting Rivera’s failure-to-intervene claim because there is no evidence that any of them 

knew of unconstitutional conduct by any other. This argument, too, is not developed in a way 

that permits a response and is therefore forfeited. See Smith v. Northeastern Ill. Univ., 388 F.3d 

559, 569 (7th Cir. 2004) (holding that an undeveloped argument is forfeited); Otto v. Variable 

Annuity Life Ins. Co., 134 F.3d 841, 854 (7th Cir. 1998) (refusing to consider unsupported or 

cursory arguments). 

It also lacks merit. A defendant who has a realistic opportunity to step forward and 

prevent a fellow officer from violating the constitutional rights of another but who fails to do so 

is liable. Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); Yang v. Hardin, 37 F.3d 282, 285 (7th 

Cir. 1994). The discussion of Rivera’s conspiracy and due process claims, above, demonstrates 

that a reasonable jury could find that each of Defendants had the opportunity to intervene to 

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prevent the fabrication and suppression of evidence that caused Rivera’s 20-year wrongful 

incarceration. See supra at 9-33. Indeed, Defendants had decades to so intervene and did not. 

Summary judgment is not appropriate on this claim either. 

E. DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY 

The Officer Defendants assert as an afterthought that they are entitled to qualified 

immunity on Rivera’s due process claims. Officer Br. at 21-22.19 To the extent that Defendants 

are arguing in this section that they did not violate Rivera’s constitutional rights, material 

disputes of fact foreclose those arguments, as discussed above.20 To the extent Defendants are 

actually arguing that the law governing Rivera’s claims was not clearly established in 1988, that 

is plainly incorrect—the illegality of the Defendants’ conduct was established long before the 

events at issue in this case. 

With respect to fabrication, “it was established law by 1985 (indeed long before)” that 

fabricating evidence for use against a criminal defendant violated due process. Fields II, 740 

F.3d at 1114 (citing Napue, 360 U.S. at 269, Pyle v. Kansas, 317 U.S. 213, 215-16 (1942), and 

Mooney, 294 U.S. at 110-13); see also Dominguez, 545 F.3d at 589 (“There was and is no 

disputing that such conduct [fabricating evidence in 1989] violates clearly established 

 19 Defendants do not argue they are entitled to qualified immunity on Rivera’s other constitutional claims, 

and so they have now forfeited any argument for immunity on those claims, J&J Sports Productions, Inc. v. 

Resendiz, 2009 WL 1953154 (N.D. Ill. July 2, 2009).

20 In fact, most of this section of Defendants’ brief in fact repeats arguments already addressed above about 

whether Defendants violated Rivera’s rights, but here Defendants have dressed them up as arguments about the 

contours of clearly established law. 

For example, Defendants argue that the law was not clearly established that they had to disclose evidence 

about a first lineup that Rivera knew about. Officer Br. at 21. That is not an argument about the state of clearly 

established law, it is an argument that they did not suppress evidence because, in their view, Rivera knew about it. 

That misplaced Gauger argument about Rivera’s Brady claims is disposed of above—Rivera did not know the facts 

impeachment evidence about the first lineup hidden from him. 

Defendants similarly state that the law did not require them to disclose every “tidbit” of evidence helpful to 

Rivera. Officer Br. at 21-22. Whether that is correct or not, that argument, too, is disposed of above—the suppressed 

evidence was profoundly material and easily would have shown Rivera’s innocence. 

Finally, Defendants’ argument that the law was not clearly established that fabricated evidence violates the 

Constitution when it is not used in criminal proceedings is nothing more than an reassertion of the flawed factual 

argument that evidence fabricated by Defendants was not used in criminal proceedings. 

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constitutional rights”). Indeed, more than 80 years ago, the Supreme Court held in Brown v. 

Mississippi that the use of fabricated witness statements in criminal proceedings violated due 

process, even where the police actually disclosed all of the circumstances of their coercion of 

those witnesses. 297 U.S. 278, 283-86 (1936). 

The Brady obligation and the application of those due process principles to police were 

equally well established before the Valentin investigation. See Newsome, 256 F.3d at 752-53 

(concluding that it was clearly established in 1979 that police could not suppress information 

about the conduct of a lineup, and noting that “[t]he Brady principle was announced in 1963, and 

we applied it in Jones to affirm a hefty award of damages against officers who withheld 

exculpatory information in 1981”); see Engel v. Buchan, 710 F.3d 698, 708-09 (7th Cir. 2013) 

(“It is beyond dispute that the Brady right was well established [by 1984]”); Armstrong v. Daily, 

786 F.3d 529, 549-50 (7th Cir. 2015) (holding that it was clearly established by 1980 that police 

could not destroy exculpatory evidence). 

Finally, it has been the law since at least 1977 that subjecting a criminal defendant to 

unduly suggestive identification procedures that taint a criminal proceedings violates due 

process. Manson v. Brathwaite, 432 U.S. 98 (1977); see also Neil v. Biggers, 409 U.S. 188 

(1972). It was clear in the Seventh Circuit that police officers could be held liable for this 

misconduct at latest the year before the Valentin investigation. Hensley, 818 F.2d at 648-50. 

Defendants are not entitled to qualified immunity on Rivera’s due process claims. 

F. A JURY MUST DECIDE RIVERA’S MALICIOUS PROSECUTION CLAIM 

Rivera also brings a state-law claim for malicious prosecution. To succeed, Rivera must 

show (1) initiation or continuation of criminal proceedings, (2) without probable cause, (3) with 

malice, (4) terminating in the plaintiff’s favor. Logan v. Caterpillar, 246 F.3d 912, 921-22 (7th 

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Cir. 2011). Defendants claim they are entitled to summary judgment on the first two of these 

elements. Officer Br. at 22-24. Neither argument has merit. 

1. Defendants Commenced and Continued A Criminal Proceeding 

 Defendants’ argument that they did not commence or continue criminal proceedings 

against Rivera is based entirely on the assertion that they did not talk with prosecutors, sign the 

criminal complaint against Rivera, or influence the grand jury. Those are all disputed facts. 

Rivera is entitled to the inference at summary judgment that at least Guevara, Gawrys, and 

McLaughlin provided the fabricated September 15 Lopez identification directly to ASA Rosner, 

who immediately approved charges. AS ¶¶ 51-56, 65, 80-82. These Defendants were present for 

the lineup, Rosner was called in immediately to approve charges, and she talked with Lopez 

about the identification procedure that these Defendants performed. Id.

While Guevara did not sign the criminal complaint on September 15, he signed an arrest 

report under oath that day supporting the charges, which falsely reported the results of the lineup 

and noted that ASA Rosner was approving the charges. AS ¶ 80. Consistent with Guevara’s 

sworn report, the felony minute sheet by which ASA Rosner approved charges lists Guevara and 

Gawrys as “prosecuting witnesses.” AS ¶ 81. Finally, Guevara lied to the grand jury when he 

testified that an eyewitness had seen Rivera kill Valentin, consistent with his fabricated evidence 

that Lopez and Valentin had both identified Rivera. AS ¶ 84 (JR 1932).21 The record construed in 

Rivera’s favor shows direct influence by Defendants over the decision to prosecute Rivera. 

 21 Guevara’s contention that he did not lie to the grand jury when he testified that an eyewitness identified 

Rivera ignores one of the most fundamental factual disputes in the case—Rivera contends that Guevara’s testimony 

about fabricated eyewitness identifications was all lies. Indeed, when asked at his deposition whether he lied under 

oath during Rivera’s criminal case, Guevara invoked the Fifth. AS ¶ 85. 

So while Defendants are correct that a grand jury indictment can break the chain of causation or establish a 

prima facie case of probable cause in some malicious prosecution cases, those effects are “rebutted by other 

evidence such as proof that the indictment was obtained by false or fraudulent testimony before the grand jury, or by 

failing to make a full or complete statement of facts, or by other improper or fraudulent means.” Freides v. SaniMode Mfg. Co., 211 N.E.2d 286, 289 (Ill. 1965); see also Jones, 856 F.2d at 994 (“[A] prosecutor’s decision to 

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But such a showing is not even necessary under Illinois law. A defendant who is liable 

for malicious prosecution “must have initiated the criminal proceeding or his participation in it 

must have been of so active and positive a character as to amount to advice and cooperation.” 

Logan, 246 F.3d at 922. The cases stress that this standard does not depend on who made the 

decision to prosecute (by definition the prosecutor, not the officer), who signed the criminal 

complaint, who testified at the grand jury, or who led the investigation. Instead, “liability extends 

to all persons who played a significant role in causing the prosecution of plaintiff.” Turner v. 

City of Chicago, 2013 WL 4052607 (N.D. Ill. 2013); see also Alexander v. United States, 721 

F.3d 418, 423 (7th Cir. 2013) (noting that a defendant “causes” an action to be commenced 

“even if that person does not conduct the prosecution personally”). As discussed already, the 

Defendants each fabricated evidence that was presented to prosecutors and suppressed other 

evidence, causing Rivera’s wrongful criminal prosecution and conviction. That alone is enough 

to demonstrate that they commenced and continued Rivera’s criminal proceedings. 

 Moreover, police who engage together in misconduct to deceive other actors in the 

criminal justice system are routinely found to have commenced and continued criminal 

prosecutions. E.g., Padilla v. City of Chicago, 2013 WL 1208567, at *16 (N.D. Ill. Mar. 26, 

2013) (police who engage in misconduct cannot blame others involved in the prosecution); 

Freeman v. Brown, 2012 WL 3777074, at *6 (N.D. Ill. Aug. 29, 2012); Ewing v. O’Brien, 60 F. 

Supp. 2d 813, 818 (N.D. Ill. 1999). Indeed, a material false statement to a prosecuting authority 

supports a finding that the commencement element is satisfied. Wallace v. City of Zion, 2011 WL 

3205495, at *5 (N.D. Ill. July 28, 2011); Boyle v. Torres, 756 F. Supp. 2d 983, 1000 (N.D. Ill. 

 

charge, a grand jury’s decision to indict, a prosecutor’s decision not to drop charges but to proceed to trial—none of 

these decisions will shield a police officer who deliberately supplied misleading information that influenced the 

decision[.]”). That is precisely what the evidence, construed in Rivera’s favor, shows here. The grand jury 

indictment therefore has no effect on the analysis. 

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Dec. 21, 2010); Allen v. Berger, 784 N.E.2d 367, 370 (Ill. App. Ct. 2002) (“[W]hen a person 

makes a knowingly false report to a prosecuting officer, the resulting prosecution is attributable 

to that person.”). In short, what prosecutors did and whether police interacted with them matters 

little when the police fabricate false evidence. Myett v. Heerdt, 2017 WL 75738, at *16 (N.D. Ill. 

Jan. 9, 2017) (deciding that where police provided prosecutors with false reports, they could not 

hide behind prosecutorial decisions to charge); Simon v. Northwestern Univ., 2016 WL 1237666, 

at *7 (N.D. Ill. Mar. 29, 2016) (holding that investigators who supply false information to 

prosecutors may be liable for malicious prosecution even if prosecutors investigate 

independently). Defendants each commenced and continued the criminal case against Rivera, 

within the meaning of Illinois law. 

2. Defendants Lacked Probable Cause to Prosecute Rivera 

Defendants also argue that there is no genuine dispute about whether there was probable 

cause to suspect that Rivera killed Valentin. Officer Br. at 23-24.22 Defendants assert that they 

believed at the time that Lopez accurately and truthfully identified Rivera, and they cite a case 

that says that probable cause can be based on a single eyewitness identification. Again, 

Defendants’ argument is founded on utterly disputed facts and inapplicable case law. 

“In a malicious prosecution case, probable cause is defined as a state of facts that would 

lead a person of ordinary care and prudence to believe or to entertain an honest and sound 

suspicion that the accused committed the offense charged.” Williams v. City of Chicago, 733 

F.3d 749, 759 (7th Cir. 2013). It is established that knowingly fabricated evidence and false 

statements never support probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); 

 22 Defendants suggest in this section of their argument that Rivera bears the burden at this stage to 

demonstrate a lack of probable cause. That is not the case. While Plaintiff can and will be required to prove an 

absence of probable cause at trial, he is only required at this stage to show that there is a dispute of fact over whether 

Defendants had probable cause to commence or continue his prosecution. 

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Alexander, 721 F.3d at 423; Lawson v. Veruchi, 637 F.3d 699 (7th Cir. 2011) (reversing grant of 

summary judgment where false statements precluded finding probable cause); Olson v. Tyler, 

771 F.2d 277, 281 & n.5 (7th Cir. 1985) (holding that when officer includes false facts or omits 

facts in the probable cause analysis, “he cannot be said to have acted in an objectively reasonable 

manner”). Along the same lines, police cannot manufacture their own probable cause. Collier v. 

City of Chicago, 2015 WL 50814408, *4 (N.D. Ill. Aug. 26, 2015). 

Moreover, probable cause is a quintessential question of fact. The Seventh Circuit holds 

that a court cannot decide the probable cause question “if there is room for a difference of 

opinion concerning the facts or the reasonable inferences to be drawn from them.” Maxwell v. 

City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993); see also Bryant v. Whalen, 759 F.Supp. 

410, 417 (N.D. Ill. 1991). “Accordingly, a conclusion that probable cause existed as a matter of 

law is appropriate only when no reasonable jury could find that the officers did not have 

probable cause[.]” Maxwell, 998 F.2d at 434. 

As discussed at length already, there is a huge difference of opinion about whether 

Defendants had any evidence whatsoever to entertain an “honest and sound” suspicion that 

Rivera had killed Valentin. Viewed in Rivera’s favor, the record demonstrates that Defendants 

wholly fabricated the evidence against Rivera, including Lopez’s and Valentin’s identifications. 

See supra at 9-33. There is similarly strong evidence that Defendants hid evidence demonstrating 

that Rivera was innocent. See id. There is nothing that the Defendants can point to that 

establishes probable cause. See, e.g., AS ¶ 83. This dispute of fact precludes summary judgment 

on the malicious prosecution claim. 

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G. A JURY MUST DECIDE RIVERA’S STATE-LAW CLAIM OF INTENTIONAL 

INFLICTION OF EMOTIONAL DISTRESS 

In a one-sentence argument, Defendants assert that Rivera’s state-law claim of intentional 

infliction of emotional distress fails because there is no genuine dispute of fact about whether 

Defendants engaged in extreme or outrageous conduct. Officer Br. at 24. This bald assertion is 

insufficient to shift the burden at summary judgment. Carmichael, 605 F.3d at 460; United States 

v. Useni, 516 F.3d 634, 658 (7th Cir. 2008) (“We have repeatedly warned that perfunctory and 

undeveloped arguments, and arguments that are unsupported by pertinent authority, are 

waived[.]”). Additional arguments on this point are now forfeited. Costello v. Grundon, 651 F.3d 

614, 635 (7th Cir. 2011) (reversing summary judgment granted on issue first raised in a reply). 

Even if they were not, Defendants manufactured evidence to prosecute and convict 

Rivera of a murder he did not commit, and they withheld other evidence that would have allowed 

Rivera to defend himself against the false charges. See supra at 9-33. As a result, Rivera spent 

more than 20 years in prison. “For conduct to be extreme and outrageous it must go ‘beyond all 

bounds of decency’ and be ‘considered intolerable in a civilized community.’” Fox v. Hayes, 600 

F.3d 819, 842 (7th Cir. 2010) (quoting Lopez v. City of Chicago, 464 F.3d 711, 721 (7th Cir. 

2006)). An important factor in deciding whether conduct is “extreme and outrageous” is whether 

“a defendant abused a position of authority.” Fox, 600 F.3d at 842. Rivera’s allegations fit this 

tort perfectly, and disputes of fact prevent summary judgment for Defendants on this claim. See 

Henry v. Ramos, 1997 WL 610781, at *2 (N.D. Ill. Sept., 28, 1997) (“An average member in the 

community would consider it outrageous for police officers to falsely frame, arrest and imprison 

an innocent citizen.”); Moore v. City of Chicago, 2011 WL 1231318, at *4 (N.D. Ill. 2011). 

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H. A JURY MUST DECIDE RIVERA’S STATE-LAW CONSPIRACY CLAIM 

The Officer Defendants make an additional perfunctory argument for summary judgment 

on Rivera’s state-law conspiracy claims. Officer Br. at 24. Again, these arguments are 

insufficient to require a response at summary judgment. Carmichael, 605 F.3d at 460; Useni, 516 

F.3d at 658. Regardless, Defendants’ argument that they are entitled to summary judgment on 

the state-law conspiracy claims fails for the same reasons that their argument for summary 

judgment on the section 1983 conspiracy claim failed. See supra at 38-40. Their argument that 

there is no evidence of any tortious activity by Defendants is put to rest by the ample evidence in 

the record of the federal and state torts discussed above. Finally, Defendants’ argument that the 

Illinois Tort Immunity Act renders them immune for the misconduct of others is inapposite given 

that they are being sued for the own misconduct and not anyone else’s. 

I. DEFENDANTS RINALDI, WEINGART, MINGEY, NOON, GUZMAN, SPARKS, 

ZACHARIAS, AND FALLON PARTICIPATED IN THE MISCONDUCT AND 

ARE NOT ENTITLED TO SUMMARY JUDGMENT 

All of the Officer Defendants but Guevara, Gawrys, McLaughlin, and Leonard separately 

assert that they are entitled to summary judgment because, in their view, they had minimal 

personal involvement in the Valentin investigation. Officer Br. at 19-20. But these Defendants 

were each intimately involved in the misconduct described above. None of them is entitled to 

summary judgment due to lack of personal involvement.23

Defendants argue that Rinaldi, Weingart, and Mingey were simply supervisors who 

signed reports. There are a number of problems with this argument. First, supervisors who 

approve police reports are not passive rubber stampers who sign whatever crosses their desks—

 23 It is strange that a subset of Defendants argue in a separate section of their brief that they are entitled to 

summary judgment on the ground that the records show they were not involved in misconduct. Of course, each of 

the Defendants must show that they undisputedly were not involved in misconduct to achieve summary judgment. 

The fact that a subset of the Officer Defendants argue separately that they were not involved in the constitutional 

violations and torts asserted is tantamount to an admission that there is no hope of summary judgment for Guevara, 

Gawrys, McLaughlin, and Leonard. 

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they are in fact leaders of the team, responsible for oversight of investigative tasks and 

verification of results. The record supports the conclusion at summary judgment that these 

Defendants were involved in misconduct that occurred in the investigation they oversaw. 

Rinaldi oversaw Defendants’ suppression of the first lineup and approved the false police 

reports of August 29, regarding the fabricated mugbook identification, and the false September 1 

report, concealing the first lineup. ROS ¶ 65. Weingart was Guevara’s supervising sergeant and 

at summary judgment Rivera is entitled to an inference that Weingart was told by Guevara that 

Lopez had said Rivera was not the shooter before the second lineup. ROS ¶¶ 66. In addition, 

Weingart signed off on the false police report dated September 15, which reported Lopez’s 

fabricated identification of Rivera in the second lineup. Id. Mingey approved Guevara and 

Gawrys’s false report of September 16, which falsely reported that Lopez had selected Rivera 

from the second lineup, that Valentin had selected Rivera from a photo identification procedure 

on September 10, and that Lopez had excluded Rodriguez and Nieves as suspects. ROS ¶ 72. 

Moreover, as supervisors, these Defendants can be liable “for their subordinates’ 

violation of others’ constitutional rights when they ‘know about the conduct and facilitate it, 

approve it, condone it, or turn a blind eye for fear of what they might see.” Steidl v. Fermon, 494 

F.3d 623, 631-32 (7th Cir. 2007). Defendants Rinaldi, Weingart, and Mingey were the direct 

supervisors of the other Officer Defendants, had direct knowledge of their investigation, made 

assignments, and approved reports, thereby ratifying the misconduct contained in those reports. 

ROS ¶¶ 65-66, 72. Their participation as supervisors was essential to the scheme. Id. They are 

liable on that basis as well. 

Finally, the arguments of Noon, Guzman, Sparks, Zacharias, and Fallon ignore 

substantial disputes of fact. Noon argues that he got a copy of the first police report and 

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“perhaps” looked for Lopez; Guzman says that he searched for Rivera and Lopez; Sparks 

suggests that he performed a legitimate mugbook identification with Lopez; and Fallon submits 

that he does not recall the case. When the record is construed in Rivera’s favor, however, there is 

evidence that Noon, Sparks, Zacharias, and Guzman participated in fabricating Lopez’s 

mugbook identification of Rivera, and in feeding Lopez the false story about seeing the shooter 

previously in Humboldt Park. AS ¶¶ 25, 28; ROS ¶¶ 67-71. In addition, Sparks, Zacharias and 

Fallon, along with McLaughlin, Leonard, and Guevara, participated in the first lineup and the 

suppression of that lineup. AS ¶¶ 32. They are not entitled to summary judgment. 

J. A JURY MUST DECIDE PLAINTIFFS’ MONELL CLAIMS 

Under familiar principles, the City can be liable under section 1983 for constitutional 

violations caused by (1) an express policy, (2) a widespread custom or practice, or (3) a decision 

made by a final policymaker. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Glisson 

v. Indiana Dep’t of Corrections, 849 F.3d 372, 379 (7th Cir. 2017) (en banc); Valentino v. 

Village of S. Chicago Heights, 575 F.3d 664, 674 (7th Cir. 2009). 

The City seeks judgment on three widespread practice Monell theories: (1) the City’s 

practice of systemically suppressing investigative materials in street files (the “street files” 

theory); (2) its practice of suppressing lineup identification procedures where fillers are selected 

(the “filler lineup” theory), and its failure to discipline police officers. The City does not address 

any of Rivera’s other Monell theories in the case, and so a Monell trial against the City will be 

necessary no matter how the Court resolves the City’s motion. Moreover, as explained below, 

the City is estopped from re-litigating the street files theory, given the recent verdict in Fields v. 

City of Chicago, No. 10 C 1168 (N.D. Ill.), in which a jury found against the City on precisely 

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that theory. Overwhelming evidence supports Rivera’s Monell theories, and the City’s motion 

should be denied as well. 

1. Defendants Do Not Argue for Judgment on All of Rivera’s Monell Theories, 

and So A Monell Trial Is Necessary No Matter What 

The City’s brief states without explanation that the only Monell theories Rivera is 

pursuing relate to the City’s widespread practices regarding street files, filler lineups, and failure 

to discipline officers. City Br. at 1. That is not so. Rivera’s additional Monell theories are not 

addressed by the City. These include but are not limited to: 

(1) the theory that the Chicago Police Department’s express written policies governing the 

creation, maintenance, and production of investigative files were deficient (or non-existent) and 

caused the suppression of exculpatory investigative materials in this case, AS ¶¶ 98-131,24

e.g.,

Glisson, 849 F.3d at 379-80 (holding that a conscious municipal decision not to adopt or to omit 

needed policies creates liability under the express policy framework of Monell); Calhoun v. 

Ramsey, 408 F.3d 375, 379-80 (7th Cir. 2005) (holding that a single application of a deficient 

express policy resulting in a constitutional violation is enough to establish liability); 

(2) the theory that the City’s final policymakers, who admittedly were on notice of the problem of 

systemic suppression of investigative materials, chose not to adopt obviously needed policies to 

ensure transmission of police files, and in so doing made a decision that caused suppression of 

exculpatory materials in Rivera’s case, AS ¶¶ 98-131, e.g., Vodak v. City of Chicago, 639 F.3d 

738, 747-48 (7th Cir. 2011) (policymakers’ decision about how to implement policy gives rise to 

liability when it violates constitutional right); King v. Kramer, 680 F.3d 1013, 1021 (7th Cir. 

2012) (where municipality has “actual or constructive knowledge that its agents will probably 

violate constitutional rights, it may not adopt a policy of inaction”); Steidl v. Gramley, 151 F.3d 

739, 741 (7th Cir. 1998) (final policymaker who is aware of a systematic lapse in policy and who 

fails to correct it renders municipality liable); 

(3) the theory that the City is liable for its failure to adequately train its officers: (a) to retain 

investigative materials, maintain investigative files, and produce those materials to the criminal 

justice system; (b) to properly conduct identification procedures and to accurately record the 

results of those identification procedures; and (c) to write accurate police reports documenting 

their investigation regardless of the path the investigation takes, AS ¶¶ 98-131, e.g., Canton v. 

Harris, 489 U.S. 378, 390 (1989) (deliberate indifference exists if the “need for more or different 

training” was “obvious”); Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007) (municipality 

liable “when the inadequacy in training amounts to deliberate indifference to the rights of the 

individuals with whom the officers come into contact”); 

 24 Among other things, the City’s express policies authorized individual police investigators to subjectively 

determine what materials to maintain and turn over, they mandated a system of parallel investigative files in 

homicide investigations, they were devoid of any requirements governing the CPD’s transmission of investigative 

files to prosecutors and others in the criminal justice system, and they included no rules binding the CPD’s subpoena 

service unit, which was charged with responding to requests for documents and subpoenas. 

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(4) the theory that the City is liable for failing to adequately supervise or discipline employees to 

ensure disclosure of investigative files, given: (a) the lack of policies on supervision of file 

production; (b) the lack of any effort to audit the City’s file-production procedures promulgated 

after Jones and Palmer; and (c) the lack of any training or policies governing the subpoena 

service unit, among other things, AS ¶¶ 98-131, Sornberger, 434 F.3d 1006, 1029-30 (7th Cir. 

2006) (holding that municipalities are liable if they knew more supervision was needed); and 

(5) the theory that the City had notice of and was deliberately indifferent to a widespread practice 

among its police officers of fabricating false evidence, primarily through witness coercion and 

corrupt identification procedures, for use in criminal cases, which resulted in violations of due 

process and numerous wrongful convictions, AS ¶¶ 98-131, e.g., Jackson v. Marion County, 66 

F.3d 151, 156 (7th Cir. 1995); Davis v. Carter, 452 F.3d 686, 694 (7th Cir. 2006); Evans v. City 

of Chicago, 2006 WL 463041, at *13 (N.D. Ill. Jan. 6, 2006).25 

The fact that the City has not moved for summary judgment on these Monell theories 

means that they must be tried. See, e.g., Carmichael, 605 F.3d at 460 (“The burden of defeating 

summary judgment did not shift to the plaintiffs on this issue simply because, without citation to 

relevant facts or authority . . . defendants sought summary judgment on all claims against all 

parties.”); Sublett, 463 F.3d at 736 (“As a general matter, if the moving party does not raise an 

issue in support of its motion for summary judgment, the nonmoving party is not required to 

present evidence on that point, and the district court should not rely on that ground in its 

decision.”); Titran v. Ackman, 893 F.2d 145, 148 (7th Cir. 1990) (“When a party moves for 

summary judgment on ground A, the opposing party need not address grounds B, C, and so on; 

the number of potential grounds for (and arguments against) summary judgment may be large, 

and litigation is costly enough without requiring parties to respond to issues that have not been 

raised[.]”). Any arguments that the City might have made regarding these theories are now 

forfeited, Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994); Fox v. Peters, 2011 WL 

6378826, at *8 (N.D. Ill. 2011), and it will be too late for the City to raise them for the first time 

in reply, Costello, 651 F.3d at 635; Nelson v. LaCrosse Cty, 301 F.3d 820, 836 (7th Cir. 2002). 

 25 Part of the extensive evidence supporting this theory is set out in the discussion of the City’s failure to 

Guevara, below. But this theory is distinct from that one, and it is not addressed by the City. 

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To the extent the City tries to suggest in reply that it was not on notice of these Monell

theories, that contention is without merit. These theories have been litigated exhaustively 

throughout this case, Rivera has explained them in detail in response to discovery requests, RCS 

¶¶ 13, 15, they are discussed in the parties’ expert reports, AS ¶¶ 119-131, and the City just had 

an extensive trial that involved Rivera’s counsel on all of these theories and it briefed them posttrial in Fields v. City of Chicago, No. 10 C 1168, Ex. 66, Doc. No. 1184 (Post-Trial Motion) at 

12-25 (explaining each of these theories). The City cites to Rivera’s complaint in its brief, but the 

Seventh Circuit has repeatedly reminded that legal theories need not be spelled out in a 

complaint, and the limitation of theories in a complaint is not relevant at summary judgment. 

Streckenbach v. Vandensen, 2017 WL 3585074, at *1 (7th Cir. Aug. 21, 2017). A trial is 

necessary on these Monell theories. 

 2. The City Is Estopped From Re-Litigating the Street Files Theory 

 With respect to the street files theory, the City is estopped from re-litigating that issue in 

this case, given that it just lost a jury trial on the issue in Fields v. City of Chicago, 2017 WL 

3987356 (N.D. Ill. Sep. 11, 2017) (denying the City’s post-trial motion); see also Kluppelberg v. 

Burge, 2017 WL 3381717, at *1 (N.D. Ill. Aug. 7, 2017) (concluding in another street files case 

that the Fields jury verdict estops the City from “arguing that it did not have a policy of 

concealing material exculpatory and/or impeachment evidence contained in so-called ‘street 

files’ in the late 1980s”); see also Ex. 151 (Kluppelberg, No. 13 C 3963, Doc. No. 586, Motion 

to Apply Collateral Estoppel), which Rivera incorporates here by reference. 

Fields concerned the suppression of exculpatory police documents in a street file during a 

1984-1985 investigation of a double homicide, which resulted in the wrongful conviction and 

decades-long incarceration of Nathson Fields. See 2017 WL 3987356. Like Rivera, Fields 

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claimed that the files were suppressed pursuant to the City’s widespread practice of suppressing 

street files. Id. at *3-4. The case was tried in late 2016, and a jury found for Fields on his Monell

claim and awarded more than $22 million in damages. Id. at *1. 

 As Judge Lefkow later found in Kluppelberg, 2017 WL 3381717, the elements of 

collateral estoppel (issue preclusion), see generally Chicago Truck Drivers v. Century Motor 

Freight, 125 F.3d 526, 530 (7th Cir. 1997), are all satisfied here as far as the street files Monell

theory is concerned: (1) the issue the City seeks to litigate here is the same as that in Fields;

26 (2) 

that issue was actually litigated in Fields;

27 (3) the determination of the issue was essential to the 

final judgment in Fields;

28 and (4) the City had a full and fair opportunity to litigate the issue in 

the Fields.

29 The City should not be able to litigate this issue again in this case.30 

3. The City’s Request for Judgment on the Street Files Theory Is Frivolous 

Even if the City were not precluded from re-litigating the street files issue, it has no 

colorable argument for summary judgment. A jury just entered a verdict against the City on 

precisely this theory—a verdict that has been upheld on post-trial motions, Fields, 2017 WL 

3987356—after considering much of the same evidence that the jury in this case will hear. The 

only difference is that here Rivera, building on the prior cases, has marshalled even more 

 26 The issue in the cases is precisely the same. Though Fields involved a homicide investigation in 1984 

and 1985 and a wrongful conviction lasting until 2009, and this case involves a homicide investigation in 1988 and a 

wrongful conviction lasting until 2011, both cases were governed by the same written policies, and the City 

concedes there was no change it its policies and procedures in that time frame. AS ¶¶ 135-136. 27 A full trial on the merits is the “situation most clearly contemplated by the ‘actually litigated’ standard.” 

In re Tapper, 123 B.R. 594, 601 (Bankr. N.D. Ill. 1991). 28 The jury in Fields was instructed that, to find against the City on the policy claim, Fields had to prove, 

among other things, that “[a]t the time of the concealment, it was the policy of the City of Chicago to conceal 

material exculpatory and/or impeachment evidence.” No. 10 C 1168, Doc. No. 1169 (Jury Instructions) at 14. 

29 In the five-week trial in Fields, the City presented testimony from its experts Jeffrey Noble and Bernard 

Murray, who contested Fields’s expert Brasfield, and from James Hickey, its Rule 30(b)(6) designee. Precisely the 

same witnesses are offered by the City in the present case, and they evaluate precisely the same evidence. RCS ¶¶ 

20-26, 57-60, 76. 30 Rivera acknowledges that the City will still be able at trial to argue that its policies were not the cause of 

Rivera’s injuries, by attempting to demonstrate that there was no file withheld from Rivera or that it had no 

exculpatory value, theories on which Defendants not entitled to summary judgment, as discussed above. 

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evidence in support of his claim than was presented in Fields. Under these circumstances, the 

City’s position that undisputed facts support judgment in its favor is a nonstarter. 

The City is liable for widespread practices to the extent that City policymakers were on 

notice of the risk of harm presented by those practices and disregarded that risk. Glisson 849 

F.3d at 381-82 (reminding that it is the risk of harm that policymakers must be on notice of and 

ignore). To prove such a claim, Rivera can show that either a repeating pattern of constitutional 

violations or a repeated pattern of behavior gave the City notice of a risk of harm to which the 

City did not respond. Daniel v. Cook Cty, 833 F.3d 728, 734 (7th Cir. 2016) (custom and notice 

shown by “evidence tending to show a general pattern of repeated behavior,” without “evidence 

that . . . systemic failings affected other[s]”).31 The City’s argument that Rivera has “adduced no 

evidence of a ‘street file’ practice,” City Br. at 14-17, depends on two assertions: (1) that 

Michael Brasfield’s expert report is the only evidence supporting Rivera’s Monell theory, and (2) 

that Mr. Brasfield’s methodology is deficient. Both premises are wrong. 

Ignoring Mr. Brasfield’s report completely, there is a huge volume of evidence in the 

record supporting Rivera’s street files theory, including but not limited to: 

 The litigation in Palmer and Jones, which demonstrate that City policymakers had notice in the early 

1980s that police officers were engaging in an unconstitutional pattern of suppressing investigative 

materials in street files, AS ¶¶ 98-100;32 

 31 Dixon v. Cook County, 819 F.3d 343, 348-49 (7th Cir. 2016) (notice of a systemic deficiency and 

inaction establishes liability); Thomas v. Cook County, 604 F.3d 293, 303 (7th Cir. 2010) (policymakers “must have 

been aware of the risk created by the custom” of delayed responses to medical requests); Davis, 452 F.3d at 694-95 

(rejecting same arguments City makes here); Estate of Moreland v. Dieter, 395 F.3d 747, 760-61 (7th Cir. 2005) 

(“[T]he plaintiff need not show that the policy, practice, or custom resulted in past deprivations of rights.”). 

The City asserts that Rivera must identify a pattern of constitutional violations caused by the City’s street 

files practice and has failed to do so. City Br. at 17. The same argument was made and rejected in Fields, where 

Judge Kennelly correctly observed that evidence of widespread underproduction of police documents is sufficient 

proof of a systemic failing to support a Monell verdict under the established law just cited. 2017 WL 3987356, at *3-

4. That said, the City is wrong on the facts as well—Rivera does have evidence of repeating constitutional violations 

caused by the street files practice, as outlined below. 32 The City engages in a long, largely revisionist history regarding the Jones and Palmer litigation. City Br. 

at 6-9. This discussion is largely irrelevant to the disputes between the parties at summary judgment. To the extent, 

however, that the City is suggesting that the Jones and Palmer cases are themselves ultimately not evidence of a 

widespread practice of file suppression, that is not correct. Jones involved the suppression of critical exculpatory 

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 James Hickey, the City’s designated Rule 30(b)(6) witness on this topic, who testified, among other 

things, that (a) in light of Palmer and Jones, City policymakers knew that they had a street file 

problem, (b) that he reviewed file disclosure practices across the department prior to 1983 and 

determined that the problem as citywide, (c) that the problem stemmed from a citywide practice of 

using a “decentralized” file system for homicide investigations, whereby investigative steps were 

being documented in informal notes and internal to-from memoranda between investigators, all of 

which were treated as the personal property of the investigators and were stored in parallel files; and 

(d) entire branches of an investigation, including investigation into alternate suspects, were not 

getting documented in official reports, and were instead sitting in memos and notes that were not 

disclosed and eventually destroyed, AS ¶¶ 102-103; 

 City officials were aware both of substantial resistance within the Police Department to changing the 

street files practice of keeping parallel, “personal” files not available to the criminal justice system, 

and of the risk of wrongful prosecutions and convictions if the street file problem was not solved, AS 

¶¶ 101, 104; 

 Special Orders 83-1, 83-2, and 86-3, put in place in an attempt to solve the problem, required that 

notes and memoranda were to be taken in a new official form called a “General Progress Report” and 

preserved (rather than destroyed) in a new “Investigative File” kept in the Detective Area, but the new 

policies had obvious, facial deficiencies, including (a) the absence of any express instruction to 

disclose to prosecutors and criminal defendants all police documents in newly-created “Investigative 

Files”; and (b) a lack of training, instructions or directives to subpoena service unit staff responsible 

for producing records to prosecutors and criminal defendants to ensure the production of all General 

Progress Reports and other documents kept in the Investigative Files at the Area, AS ¶¶ 105-109; 

 A total absence of auditing, or any other efforts to monitor compliance to the new policies, AS ¶ 111; 

 The Defendant officers in this case testified almost uniformly to having no knowledge of the 

requirements in the new Special Orders, to receiving no training on the Special Orders, or the 

obligation to preserve notes or disclose exculpatory information, and further testified to continuing to 

keep unofficial, personal notes that they destroyed, AS ¶¶ 113, 114; 

 The street file kept and suppressed in this case, which contained exculpatory evidence, as discussed 

above, supra at 9-18; AS ¶¶ 70-79; 

 The street file kept and suppressed from Nathson Fields, who was convicted of the 1984 double 

murder and eventually re-tried and acquitted in 2009, a case in which civil discovery revealed a street 

file—sitting among hundreds of other files in a file cabinet at Area Central—of over a hundred pages 

of handwritten notes, memos, and other documents identifying multiple alternate suspects and 

potential leads demonstrating that Fields was innocent, AS ¶ 115, 117, 118; 

 The ample evidence presented during the December 2016 Fields trial, in which a jury found that the 

failure to disclose the street file to Fields was the result of a pattern and practice of the Chicago Police 

Department and awarded Mr. Fields compensatory damages of $22 million, including (a) dozens of 

other street files in the Area Central basement, including the cases of Jon Fulton, Timothy Malone, 

and James Crockett, (b) the testimony of Defendant officers in that case about the continued use of 

informal notes and memoranda and a lack of training on the new Special Orders, and (c) the 

testimony of the City’s defense experts, the same ones here, supporting the conclusion that the street 

files practice continued, AS ¶¶ 118(a)-(b); and 

 

information and resulted in a large damages verdict approved by the Seventh Circuit. 856 F.2d 985. Palmer caused 

numerous City policymakers to take notice of a widespread problem of file suppression, according to the testimony 

of those City policymakers themselves, AS ¶¶ 98-104, and the City’s pronouncement that none of the Palmer files 

revealed exculpatory information is undermined by the fact that those files were never analyzed in a systematic 

fashion, Ex. 155 (affidavit of Haas). As the Seventh Circuit noted in Jones, the Palmer litigation was resolved 

“without a formal ruling on the lawfulness of the practice,” thought the Court in Jones concluded that the record 

supported that the practice was in place and that “[t]he City sensibly does not attempt to defend such behavior in this 

court.” Jones, 856 F.3d at 995-96. 

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 The street file kept and suppressed from James Kluppelberg, who was convicted for a 1984 fire that 

killed six people and later exonerated, a case in which civil discovery in 2014 revealed a newlydiscovered file from the original investigation that contained numerous handwritten notes and 

memoranda, including a memo between detectives about an alternate suspect who had started a fire in 

a building nearby just hours before the fire for which Kluppelberg was convicted and was intoxicated 

at the time, AS ¶ 115, 116. 

In addition to this evidence, Rivera will present Mr. Brasfield’s expert testimony in 

support of the street files theory. Mr. Brasfield, who testified over the City’s objection in Fields, 

provides an abundance of evidence supporting the street file theory, including but not limited to: 

 The written policies put in place were deficient on their face to solve the street files problem because 

the policies (a) allowed for the continued use of a decentralized, parallel file system in which 

investigative material was kept in different places, creating the risk that material would not be 

gathered from all of those locations; (b) failed to cover gang crimes officers, despite their significant 

role as investigators in homicide cases, like this one; (c) left too much discretion to detectives about 

what to record in the official files; and (d) did nothing ensure that the subpoena service unit, detective 

division, or anyone else produced all of the parallel files created for an investigation, AS ¶ 121; 

 The Chicago Police Department’s efforts to implement the new Special Orders were woefully 

inadequate, including a failure to provide proper training and oversight to ensure compliance with the 

Special Orders, AS ¶ 122; 

 His analysis and findings from the review of 190 homicide files from Area 5 for the period 1985-1991 

(the three-year period surrounding the Valentin homicide), as well as criminal defense files 

corresponding to 44 of the homicide files, and Chicago Police Department permanent retention files 

corresponding to 132 of the homicide files were also obtained in discovery in this case, AS ¶ 123-24; 

 Those findings included an assessment of the homicide files themselves, which showed that the street 

files practice as it existed prior to the new Special Orders continued unabated, and more specifically, 

that 61% of homicide files contained notes not taken on general progress reports; and 20% of files 

contained to-from memos not on official police forms, overall 100% of the homicide files contained 

evidence that the Special Orders were not being followed, AS ¶ 125; 

 His assessment of permanent retention files themselves, which are intended to be a repository of all 

typed up, official police reports containing pertinent information, from which he concluded that, 

while in most police departments around the country the official reports contain multiple storylines, 

CPD official reports only tell one storyline, leading to the suspect charged, AS ¶ 126; 

 His comparison of the homicide files to criminal defense files , showing that over 90% of the criminal 

defense files were missing documents contained in the corresponding homicide files, AS ¶ 128; 

 And his finding that in a number of specific cases investigative material of potentially significant 

exculpatory value withheld from criminal defendants was also missing from State’s Attorneys’ Office 

files, including in the cases of (a) criminal defendants David Quinones, Bruce Andras, Marc 

Johnson); (2) Miguel Borrotto; (3) Samuel Slack, (4) Jesse Swanigan, (5) Curtis Kirkland, and (6) 

Tomas Nieves, AS ¶ 129; and 

 Finally, in further support of his conclusions, he relied on and incorporated his findings from the 

review of hundreds of homicide files in the cases of James Kluppelberg and Nathson Fields, AS ¶¶ 

130-31. 

The record supports the street files Monell theory and summary judgment should be denied. 

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Moreover, even if Mr. Brasfield’s report was the only evidence supporting the theory 

(which is hardly the case), the argument that his methodology is flawed lacks merit. City Br. at 

15-16. The City contends that Mr. Brasfield’s file-comparison was so unreliable that his opinions 

should all be excluded.33 Judge Kennelly persuasively rejected this exact argument in Fields, 

concluding that the City’s criticisms went to the weight of the evidence and not to its 

admissibility. 2017 WL 3987356, at *3 n.8; see also Ex. 152 (Fields, Doc. No. 1076) at 1-6. 

Among many other pieces of evidence, Mr. Brasfield reviewed hundreds of police 

investigative files in this case, and in Fields and Kluppelberg, and he compared those files to 

criminal defense files in order to see what police documents criminal defendants received in their 

cases. AS ¶¶ 121-131. That permitted him to draw the conclusion that the CPD systematically 

suppressed police files. AS ¶¶ 125-131. The City contends that Mr. Brasfield conducted too few 

comparisons of police investigative files to their corresponding criminal defense files;34 that the 

criminal defense files that Mr. Brasfield reviewed might have been incomplete;35 and that Mr. 

Brasfield should have looked at a greater number of corresponding files from the Cook County 

State’s Attorney’s Office (CCSAO), to determine whether the State’s Attorney was responsible 

for the suppression of police files that he observed.36 Those views have little merit given the 

evidence, but at best they are points to be made on cross or at trial. Ex. 152 at 3. 

 33 The City’s argument is not sufficiently developed to require a response. For example, the City does not 

identify any errors in Brasfield’s analysis. Nor does it explain why if Brasfield’s file-comparison methodology is 

flawed (which it is not), every one of Brasfield’s opinions unrelated to that comparison should be excluded. 34 The argument is factually incorrect, considering that Brasfield relied on analyses and comparisons of 

hundreds of case files in arriving at his opinions. AS ¶ 125 (190 files). Moreover, the City stipulated that the file set 

Brasfield reviewed in this case was representative of its policies and practices for Monell purposes. AS ¶¶ 135-36. 35 This is raw speculation, and it is another argument rejected by the Fields jury. There is no evidence that 

the City points to that shows any criminal defense file reviewed by Brasfield to be incomplete. It is undisputed at 

summary judgment that the criminal defense files are the best evidence of what the criminal defendant in a particular 

case had at the time of trial. RCS ¶ 59. 36 It is notable on this point that the City’s brief states only that analysis of the CCSAO files might have 

shown that the fault for non-production of police files lay with the CCSAO and not the CPD. City The City does not 

cite to a single piece of evidence supporting that hypothesis. That is because there is no such evidence. 

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Mr. Brasfield’s opinions are the type routinely provided by police practices experts on 

both sides of cases in this District and others. E.g., Obrycka v. Chicago, 2011 WL 2633783, at *4 

(N.D. Ill. July 5, 2011); Cooper v. Chicago Heights, 2011 WL 2116394, at *6 (N.D. Ill. May 27, 

2011); Paine ex rel. Eilman v. Johnson, 2010 WL 785398, at *4 (N.D. Ill. Feb. 26, 2010); Ott v. 

Milwaukee, 2015 WL 1219587, at *13 (E.D. Wis. Mar. 17, 2015); Avery v. Milwaukee, 2015 WL 

247991, at *2 (E.D. Wis. Jan. 20, 2015). There is no reason to exclude Mr. Brasfield’s 

testimony.37 Summary judgment on the street files theory must be denied. 

4. The City’s Request for Judgment on the Filler Lineup Theory Lacks Merit 

 The City also argues there is no evidence supporting Rivera’s Monell theory that the City 

systemically suppressed the results of lineups in which witnesses identified fillers. City Br. at 18-

21. On the contrary, there is no evidence supporting the City’s view of the facts. If anything, it is 

Rivera who should be moving for summary judgment on this claim. In response to Rivera’s 

overwhelming evidence that the City engaged in this practice, the City has not produced a single 

item of evidence contradicting the theory. In fact, the City has not identified a single instance 

ever where a member of the CPD recorded in a lineup report that a witness selected a filler from 

a lineup. The City’s arguments that the undisputed facts show that it did not engage in such a 

practice is meritless and summary judgment should be denied. 

 Rivera’s evidence of the practice is comprehensive and unrebutted. After discovering that 

he in fact had been placed in a first lineup, in which Lopez selected a filler,38 Rivera asked the 

City to produce a sample of homicide files for the five years surrounding the Valentin 

investigation, so that the parties could determine whether police officers routinely failed to 

 37 Given space constraints, it is difficult to provide a detailed response here to the City’s perfunctory motion 

to exclude Brasfield under Rule 702. Because the record precludes summary judgment on this Monell theory with or 

without Brasfield’s testimony, this Court need not decide the expert admissibility issue in this context. To the extent 

that the Court is interested in additional briefing on that question, Rivera would of course provide it. 38 The disputes on the questions of whether Rivera stood in a first lineup (now conceded by Defendants) 

and whether Lopez selected a filler from that lineup (still disputed) have been addressed exhaustively already. 

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document filler identifications.39 The City stipulated that the files were reflective of its policies 

and practices citywide during the relevant timeframe. AS ¶¶ 135-136. 

 Of the files produced by the City, 138 involved either live or photo lineup procedures. 

Official lineup reports and ancillary police reports in those files reported a total of 386 different 

lineup procedures, and in many of these lineup procedures, multiple witnesses viewed multiple 

suspects, so that there were a total of 980 “possible identifications” (the number of witnesses 

viewing each lineup multiplied by number of suspects in each lineup) reflected in these files. AS 

¶¶ 141, 147, 149. Rivera’s counsel reviewed the entirety of every file involving a lineup and 

coded each lineup report, noting for each possible identification whether it was reported that the 

witness made a positive identification, a tentative positive identification, no identification, or a 

filler identification. AS ¶¶ 139, 145, 147, 149. Remarkably, there was not a single example in the 

set of files where a police officer reported the identification of a filler. AS ¶¶ 140, 147, 149. The 

stipulated data thus show an absence of filler identifications in the reports of the CPD. 

 Needless to say, that is statistically impossible. People who do not recognize an offender 

but nonetheless guess have a strong chance of selecting a filler. There had to be at least some 

unrecorded filler identifications. 

 To demonstrate that this was so, and that the City’s non-recording of filler identifications 

was the result of policy, Rivera retained the services of renowned eyewitness identification 

expert Dr. Gary Wells to perform statistical analysis of the data and compare the findings in the 

CPD’s files to those reported in existing field studies. AS ¶ 138. Dr. Wells opines that published 

 39 A filler is a non-suspect participant who is placed in the lineup with the suspect. The selection of a filler 

by a witness during a lineup has obviously detrimental effect on the prosecution’s ability to use that witness in a 

criminal proceeding. AS ¶ 132. In short, a witness who has picked a filler cannot later come to trial and testify 

credibly that the suspect was the perpetrator, at least not without facing the damning impeachment that the witness 

viewed a lineup before trial and concluded that a random filler looked more like the perpetrator than the suspect did. 

Id. Accordingly, a filler selection in a lineup is tremendously exculpatory evidence. Id. In cases where the police 

have an interest in ensuring that witnesses can later testify at trial and that suspects are inculpated, there is a strong 

incentive against recording filler identifications. Id.

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peer-reviewed field studies examining the rates at which witnesses identify suspects, fillers, or 

no one in lineups demonstrate that fillers are identified in lineups approximately 24% of the time. 

AS ¶¶ 144-145. Considering all of the field studies, Dr. Wells concluded that one would expect 

to see between 232 and 321 instances of filler identifications in the 980 lineup procedures 

reported in the files produced by the City. AS ¶ 151. Instead there were zero. AS ¶¶ 140, 147, 

149. Applying commonly-accepted statistical analysis, Dr. Wells concluded that this could not 

be explained by chance, and further, that the only possible explanation was that the City had a 

practice of not reporting filler identifications. AS ¶¶ 148, 150. In response, the City disclosed its 

own eyewitness identification expert, who did not review the files and produced no evidence to 

rebut Dr. Wells’s data.40 Even if there were a battle of the experts, it would be a battle for trial. 

 Dr. Wells’s conclusions are consistent with the raw data discussed above and with other 

evidence in this case. The City was asked to identify a single file—from anywhere at any time—

in which a lineup report reflected the identification of a filler. AS ¶ 137. The City responded that 

it would identify such a file if it found it, and it never updated that response with reference to any 

such file. Id. Contrary to the City’s representation, its written policy governing lineup procedures 

during the relevant time period provided zero guidance on what had to be reported when a filler 

was selected during lineup procedures. AS ¶ 133. Moreover, the City’s own Rule 30(b)(6) 

witness, James Hickey, testified in his deposition that if a filler was identified in a lineup, there 

would be no documentation of the fact that the witness had identified anyone. AS ¶¶ 134. 

 40 The City asserts in its brief that these statistics are explained by the fact that filler lineups were being 

recorded as non-identifications. It suggests that there is no difference between these results in a lineup. First, there is 

a difference. The situation where a witness does not make an identification at a lineup can be explained away if that 

witness later identifies the suspect in court, but the situation where the witness is recorded as having positively 

identified a different person from a lineup that included the suspect is exculpatory evidence of a different kind. AS ¶ 

132. Second, contrary to the City’s argument, the records do not support a conclusion that filler identifications were 

recorded as non-identifications. There are two few reported non-identifications for that to be the explanation for zero 

filler identifications. In any event, the City’s argument is at best one for the jury. 

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 The City makes a half-hearted attempt to suggest Dr. Wells’s methodology is unsound. 

Leaving aside that the record is amply sufficient without his testimony, Dr. Wells’s statistical 

analysis is very sound—indeed it is straightforward. The fact that Rivera’s counsel’s law firm 

analyzed all of the data in the files—a method that experts and litigants, including the City, 

routinely use in litigation—does not undermine any of the conclusions above. Sanders v. City of 

Chicago Heights, 2016 WL 1730608, at *6 (N.D. Ill. May 2, 2016 (“[A]n expert may rely on his 

client’s version of the facts when forming his opinions.”). Indeed, the City in its brief does not 

point to a single error in that data analysis. Any complaint that the City has about Dr. Wells’s 

methodology is an argument about the weight of the evidence for trial. 

 At the end of the day, all of the evidence in the record supports Rivera’s filler lineup 

Monell theory. The City has nothing to offer in response. Summary judgment should be denied. 

5. A Trial Is Necessary on the Failure to Discipline Theory 

 Independently, the record also amply supports Rivera’s theory that the City is liable for 

failing to discipline officers. The City’s motion focuses solely on Rivera’s contention that it 

failed to discipline Guevara, permitted him to engage in repeated acts of misconduct, including 

Rivera’s wrongful conviction, City Br. at 21-24, and so that is the only failure-to-discipline 

theory Rivera will addresses in this brief. A failure to discipline officers provides a basis for 

municipal liability when the failure amounts to deliberate indifference to the citizens whom the 

officers encounter. See City of Canton v. Harris, 489 U.S. 378, 388 (1989); Hollins v. City of 

Milwaukee, 574 F.3d 822, 827 (7th Cir. 2009); Graves v. Thomas, 450 F.3d 1215, 1218 (10th 

Cir. 2006); DiRico v. City of Quincy, 404 F.3d 464, 469 n.12 (1st Cir. 2005). Factual disputes 

preclude judgment for the City on the theory that it was deliberately indifferent in its failure to 

discipline Guevara. 

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 First, Guevara’s misconduct in this case is strong evidence supporting this Monell theory. 

The City repeats the assertion that Rivera’s rights were not violated, City Br. at 22, but for the 

reasons discussed exhaustively already there is no question the evidence supports that Guevara 

fabricated and suppressed evidence, in violation of Rivera’s rights. What happened in this case 

and the City’s failure to impose any discipline as a result can itself “shed some light on what 

policies existed in the city on the date of an alleged deprivation of a constitutional right.” 

Bordanaro v. McLeod, 871 F.2d 1151, 1166-67 (1st Cir. 1989). As the Ninth Circuit has put it, 

such “evidence is not only admissible for purposes of proving the existence of a municipal 

defendant’s policy or custom, but is highly probative with respect to that inquiry.” Henry v. 

County of Shasta, 132 F.3d 512, 519 (9th Cir. 1997). As such, “a jury could look to the City’s 

inaction in the face of Rivera’s own allegations of serious police misconduct as evidence of the 

custom that existed prior to the . . . incident.” Monaco v. City of Camden, 2008 WL 8738213, at 

*8 (D. N.J. Apr. 14, 2008). 

 Guevara’s invocation of the Fifth Amendment in response to all questions about the 

City’s failure to discipline him after he repeatedly violated individuals’ constitutional rights 

provides additional support for the conclusion that City policymakers were on notice of and 

indifferent to Guevara’s pattern of framing innocent individuals. See Exhibit 24 (Guevara Dep.) 

at 36:1-5 (pleading Fifth when asked whether he “framed Jacques Rivera pursuant to an official 

policy or practice whereby members of the Chicago Police Department were never disciplined 

for this type of misconduct, creating an environment of lawlessness”); id. at 37-38 (same when 

asked whether he engaged in misconduct repeatedly because he was never disciplined); id. at 397 

(same when asked whether he was promoted despite misconduct); id. at 530 (same when asked 

whether the City refused to discipline him in the face of admitted misconduct). 

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 Moreover, there is substantial evidence of incidents of Guevara’s misconduct before 

Rivera’s wrongful conviction for which the City imposed no discipline, including: 

 In 1982, Guevara physically assaulted Annie Turner by hitting her across the face with a metal 

bracelet and called her a “n**** bitch,” among other misconduct. AS ¶ 160. Although Ms. Turner 

complained using the City’s disciplinary mechanisms, no discipline was imposed, id.; 

 In 1982, Guevara broke through Almarie Lloyd’s locked front door and conducted a warrantless 

search of her home. AS ¶ 160. Ms. Lloyd complained using the City’s disciplinary mechanisms, but 

again no discipline was imposed on Guevara, id.; 

 In 1983, Guevara and others beat Leshurn Hunt until he confessed to murder. AS ¶ 160. Mr. Hunt 

complained using the City’s disciplinary mechanisms and sued Guevara, but no discipline was 

imposed, AS ¶ 160; 

 In 1984, Guevara physically assaulted Graciela Flores, AS ¶ 160; 

 In 1985, Guevara used threats and violence to attempt to coerce a false identification from Reynaldo 

Munoz, AS ¶ 160; 

 In 1986, Guevara beat Rafael Garcia, and the City’s disciplinary body found that Guevara had lied 

about the incident and recommended that Guevara be suspended for two days, AS ¶ 160; 

 In 1986, Guevara coerced a confession from Daniel Pena by beating him, AS ¶ 160; 

 In 1986, Guevara called Melvin Warren a “n***** dog” and beat him, and the City’s disciplinary 

body initially sustained Warren’s allegations and recommended five-day suspension, only to later 

overturn the suspension and impose a reprimand for calling a citizen “n*****,” AS ¶ 160; 

 In 1989, Guevara coerced a false confession from Victor Vera, AS ¶ 160; 

 In 1989, Guevara coerced Virgilio Muniz into falsely implicating Manuel Rivera, AS ¶ 160; 

 In 1989, Guevara threatened Virgilio Calderon Muniz (unrelated to the Virgilio Muniz referenced 

above) into making a false identification, AS ¶ 160; 

 According to Dorsch, a few months before Guevara was promoted in 1990, Dorsch witnessed 

Guevara tell a witness to select a particular suspect from a photo array. Although Guevara’s superiors 

knew about that misconduct, Guevara was promoted rather than disciplined, AS ¶ 154; and 

 In 1989, Guevara framed Juan Johnson for murder by showing Sam Perez a photo of Johnson before 

an identification procedure and by telling Perez that he wanted Johnson to take the blame for the 

murder. Johnson was exonerated and sued Guevara in Johnson v. Guevara, No. 05 C 1042 (N.D. 

Ill.), eventually obtaining a $21 million verdict against him, AS ¶ 153. 

A reasonable jury could easily conclude based on the evidence referenced about that Guevara 

engaged in repeated police misconduct prior to Rivera’s wrongful conviction and that the City 

did next to nothing in response. 

There is additional evidence of the City’s indifference. Incidents of Guevara’s 

misconduct post-dating Rivera’s conviction went undisciplined by the City as well and are 

evidence of the City’s policies and its indifference. To be sure, firing Guevara for misconduct 

that occurred after Rivera was wrongly convicted likely would not have undone the harm to 

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Rivera, see City. Br. at 24, but that does not render this evidence irrelevant. As the Seventh 

Circuit and numerous courts have recognized, incidents that post-date a particular case are 

probative of the policies and practices that were in place at the time of the case, and they are 

evidence of City policymakers’ deliberate indifference. Sherrod v. Berry, 827 F.2d 827 F.2d 195, 

205 (7th Cir 1987), vacated on other grounds, 835 F.2d 1222 (7th Cir. 1988) (“[S]ubsequent 

conduct by a municipal policymaker may be used to prove preexisting disposition and 

policy[.]”); Padilla v. City of Chicago, 2009 WL 4891943 at *7 (N.D. Ill. Dec. 14, 2009).41 

Guevara’s pattern of wrongful misconduct is truly staggering. It may be no exaggeration 

to say that he is the single worst offender in the history of the Chicago Police Department in 

terms of framing innocent people, even considering Jon Burge.42 There is a pervasive pattern of 

Guevara’s misconduct and the City’s indifference to that misconduct continuing after Rivera’s 

conviction, including but not limited to: 

 In 1991, Guevara coerced Wilfredo Rosario into falsely identifying Xavier Arcos, AS ¶ 160;43

 In 1991, Guevara coerced David Rivera into falsely confessing to murder, AS ¶ 160; 

 In 1991, Guevara coerced a false confession from Daniel Rodriguez, AS ¶ 160; 

 In 1991, Guevara physically coerced sixteen year-old David Velazquez into falsely implicating 

Daniel Rodriguez in a murder, AS ¶ 160; 

 In 1991, Guevara told Efrain and Julio Sanchez to pick David Colon out of a lineup, AS ¶ 160; 

 In 1992, Guevara obtained an involuntary confession from 15 year-old Jacqueline Montanez, AS ¶ 

160; 

 In 1993, Guevara coerced Francisco Vicente to falsely implicate Armando Serrano and Jose 

Montanez in a murder. The City of Chicago has since determined that Montanez and Serrano were 

wrongfully convicted. In 2016, both men were exonerated and received certificates of innocence. 

Guevara has taken the Fifth in regard to all allegations regarding Montanez and Serrano, AS ¶ 160; 

 In 1993, Guevara tried to coerce 15 year-old Eliezar Cruzado into implicating himself in a murder, 

AS ¶ 160; 

 41 See also Salvato v. Miley, 790 F.3d 1286, 1297 (11th Cir. 2015); Beck v. Pittsburg, 89 F.3d 966, 972 (3d. 

Cir. 1996); Foley v. Lowell, 948 F.2d 10, 14 (1st Cir. 1991); Larez v. Los Angeles, 946 F.2d 630, 644 (9th Cir. 

1991); Grandstaff v. Borger, 767 F.2d 161, 171 (5th Cir. 1985). The City’s contrary position (see City. Br. at 24) is 

not supported by its citation to a dictum in Calusinski v. Kruger, 24 F.3d 931, 936 (7th Cir. 1994), in which the 

Court concluded that a lower court had properly excluded a single instance of later alleged misconduct. See Padilla, 

2009 WL 4891943, at *7. 42 Additional background information on Guevara is available here: 

https://www.buzzfeed.com/melissasegura/detective-guevaras-witnesses?utm_term=.ma2n6JRBn#.uvpVZAv0V 43 Mr. Arcos was convicted based on the false evidence, but the appellate court overturned his conviction 

based on a lack of evidence. See People v. Arcos, 228 Ill App. 3d 870, 876 (1st Dist. 1996). 

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 In 1993, Detective Guevara manipulated the results of the line-up in which Mr. Bouto was identified. 

Ultimately, the City of Chicago concluded that Mr. Bouto is more likely than not innocent. Guevara 

has taken the Fifth in regard to all allegations regarding Bouto’s case, AS ¶ 160; 

 In 1993, Guevara used physical force and threats to coerce a false confession from Adolfo FriasMunoz, AS ¶ 160; 

 In 1994, Guevara framed Roberto Almodovar and William Negron. The City of Chicago has 

determined that Almodovar was wrongfully convicted. In that case, Guevara framed Almodovar for a 

murder he did not commit by surreptitiously showing his photograph to witnesses before they viewed 

a lineup and then falsifying reports to make it seem as if the witnesses had picked Almodovar out of a 

lineup without any influence by Guevara. Almodovar, and his co-defendant Negron, have both since 

been exonerated. Guevara has taken the Fifth in regard to all allegations regarding the case against 

Almodovar and Negron, AS ¶ 157; 

 In 1994, Guevara used violence to coerce a confession from Adrian Duta, AS ¶ 160; 

 In 1995, Guevara and others coerced an involuntary confession from Santos Flores, AS ¶ 160; 

 In 1995, Guevara coerced Evelyn Diaz into falsely identifying Luis Serrano, AS ¶ 160; 

 In 1995, Guevara told Luis Figueroa to falsely identify Angel Diaz, AS ¶ 160; 

 In 1995, Guevara coerced Gloria Ortiz Bordoy into falsely implicating Santos Flores, AS ¶ 160; 

 In 1995, Guevara coerced Rodolfo Zaragoza into falsely identifying Ricardo Rodriguez, AS ¶ 160; 

 In 1995, Guevara told Jose Melendez to falsely identify Thomas Sierra, framing him for murder, AS ¶ 

160; 

 In 1996, Guevara coerced Maria Rivera into falsely identifying Angel Gaya and all charges were later 

dropped in the case, AS ¶ 160; 

 In 1997, Guevara coerced Robert Ruiz into falsely identifying Freddy and Concepcion Santiago as the 

murders of Guevara’s nephew, AS ¶ 160; 

 In 1997, Guevara falsely reported that witness Ruth Antonetty implicated Ariel Gomez in a murder, 

when she had not, AS ¶ 160; 

 In 1997, Guevara coerced a false confession from Voytek Dembski by beating him while chained to a 

wall in a locked interrogation room, AS ¶ 160; 

 In 1998, Guevara used violence against Rosauro Mejia in an attempt to coerce a confession from him, 

AS ¶ 160; 

 In 1998, Guevara used violence against Adriana Mejia during her interrogation, AS ¶ 160; 

 In 1998, Guevara repeatedly beat Gabriel Solache into giving a false confession, causing Solache to 

sustain permanent hearing loss. In the same investigation, Guevara repeatedly threatened and beat 

Arturo Reyes to coerce Reyes into falsely implicating himself. The City subsequently determined that 

Solache and Reyes were abused during their interrogations and that their convictions should not 

stand. Guevara has taken the Fifth in regard to all allegations regarding Solache and Reyes, AS ¶ 158; 

and 

 Finally, the FBI authored a 302 report detailing the criminal activity of CPD Officer Joseph 

Miedzianowski and Guevara in the 1980s and 1990s. The report explains that Guevara would 

apprehend drug and gun dealers and then allow them to “buy their way out of trouble,” that and he 

would take bribes to alter the results of lineups. The FBI report also states that Guevara would receive 

cash in exchange for the dismissal of murder cases he investigated. Guevara has taken the Fifth in 

regard to all allegations regarding the topics covered in the 302, AS ¶ 159.44

 44 All of the above incidents in which Guevara framed innocent men for crimes they did not commit and 

committed other misconduct are evidence Rivera will use in support of his other widespread practice theories, 

discussed above, which the City does not challenge in its motion for summary judgment.. 

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That the City made no effort to investigate, discipline, or terminate Guevara in light of this 

repeated misconduct is far more than sufficient evidence to survive summary judgment. Indeed, 

it was not until after this civil lawsuit was filed, when the City hired Sidley Austin to review 

Guevara cases that it took any steps to investigate him. The City has been utterly indifferent to 

Guevara’s misconduct and has failed to discipline him at all relevant times. 

 Finally, Mr. Brasfield provides additional support for the Monell theory that the City 

failed to discipline Guevara. He explains professional standards when it comes to supervision 

and discipline of police officer misconduct, and the cultural issues that develop when there is lax 

oversight on the part of police administrators. Ex. 12 (Brasfield Report) at 23-24. Mr. Brasfield 

concludes based on his review of Guevara cases that for years internal affairs and direct 

supervisors failed to meaningfully investigate and discipline a pattern of gross misconduct. Id. at 

24. Reviewing the City’s designated Rule 30(b)(6) testimony, Mr. Brasfield notes that the 

sustained complaint rate in the Chicago police department is extremely low. Id. at 25 n.3. Mr. 

Brasfield also opines that Guevara’s multiple confirmed cases of framing innocence civilians 

represents “a complete failure of supervision and that fellow officers turned a blind eye or 

condoned the misconduct.” Id. at 27. Finally, as Mr. Brasfield notes, id. at 29, a federal jury 

found that the Chicago had a code of silence and a culture of turning a blind eye to officer 

misconduct as of 2007, Obrycka v. City of Chicago, 913 F. Supp. 2d 598, 603-04 (N.D. Ill. 

2012). The persistent pattern of Guevara’s misconduct is evidence that this lack of oversight was 

continuous between 1988 and 2007. Ex. 12 (Brasfield Report) at 29. 

 None of the City’s remaining arguments for summary judgment have any merit, and so 

Rivera addresses them only briefly. The City argues, without citing authority supporting its 

position, that it cannot be liable because of the misconduct of a single officer, City Br. at 22-23, 

Case: 1:12-cv-04428 Document #: 321 Filed: 09/22/17 Page 77 of 80 PageID #:24160
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but what the cases actually say is that municipal liability is rarely based on a single incident of 

misconduct, not that it cannot be based on an single officer who engages in a long pattern of 

misconduct, especially one as extraordinary and obvious as Guevara’s.45 The City’s citation to 

cases that refuse to impose Monell liability based on a single incident of misconduct are 

inapposite given the pattern just discussed. See City Br. at 21-22.46 Finally, the City’s contention 

that Brasfield’s opinion is the only evidence Rivera has of the City’s failure to discipline 

Guevara is obviously not accurate, given the evidence above. Id. 

In Thomas v. Cook County, the Seventh Circuit concluded, “We do not adopt any brightline rules defining ‘widespread custom or practice,’” and “there is no clear consensus as to how 

frequently such conduct must occur to impose Monell liability, ‘except that it must be more than 

one instance,’ . . . or even three[.]” 604 F.3d 293, 303 (7th Cir. 2010) (quoting Cosby v. Ward, 

843 F.2d 967, 983 (7th Cir. 1988); Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002)); 

but see Estate of Moreland v. Dieter, 395 F.3d 747, 760-61 (7th Cir. 2005) (“[T]he plaintiff need 

not show that the policy, practice, or custom resulted in past deprivations of rights.”); Woodward 

v. CMS, 368 F.3d 917, 929 (7th Cir. 2004) (no “one free suicide” pass). Rivera must identify 

evidence that the City’s failure to discipline was a policy and not a random event. Thomas, 604 

F.3d at 303. There is ample evidence to support that conclusion, and the Court should deny 

summary judgment. Garcia v. City of Chicago, 2003 WL 1715621, *6-7 (N.D. Ill. Mar. 20, 

2003) (denying summary judgment to City given evidence of indifference to a pattern of abuse 

 45 Indeed, to the extent that a single officer engaged in repeated acts of misconduct that go unanswered by 

City officials, that evidence is perhaps even more powerful evidence than a general failure of disciplinary systems 

across a wider group of officers—it shows a failure to discipline the most prolific and frequent offenders. 46 For example, the City’s citation to Connick v. Thompson, 563 U.S. 51, 61 (2011), does not support its 

position. Instead, that case holds that liability for a failure-to-train Monell claim cannot be “based on a single Brady 

violation.” Id. at 54. In Thompson, the plaintiff conceded that he had put no evidence in the record of any other 

instances of misconduct. The case has nothing to say about whether the repeated misconduct used to prove a Monell

claim must be committed by a single officer, multiple officers, or either. 

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by its officers); Kindle v. City of Harvey, 2002 WL 230779, *4-5 (N.D. Ill. Feb. 15, 2002) 

(same); Robinson v. City of Harvey, 2001 WL 138901, at *7 (N.D. Ill. Feb. 16, 2001) (same). 

K. THE DERIVATIVE CLAIMS SURVIVE SUMMARY JUDGMENT 

Finally, the City asserts they it is entitled to judgment on Rivera’s respondeat superior

and indemnification claims, arguing these claims are derivative of others. Rivera’s underlying 

claims survive, and so should these derivate claims. 

CONCLUSION 

For all of these reasons, Defendants’ motions for summary judgment should be denied. 

 RESPECTFULLY SUBMITTED, 

 JACQUES RIVERA 

 By: /s/ Steve Art 

 One of Plaintiff’s Attorneys 

Arthur Loevy Locke E. Bowman 

Jon Loevy Sheila Bedi 

Russell Ainsworth David Shapiro 

Anand Swaminathan Alexa Van Brunt 

Steve Art MACARTHUR JUSTICE CENTER 

LOEVY & LOEVY Northwestern University School of Law 

311 N. Aberdeen St., Third Floor 375 E. Chicago Ave., 8th Floor 

Chicago, IL 60607 Chicago, IL 60611 

(312) 243-5900 (312) 503-0844 

steve@loevy.com 

 J. Samuel Tenenbaum 

BLUHM LEGAL CLINIC 

Northwestern University School of Law 

375 E. Chicago Ave., 8th Floor 

Chicago, IL 60611 

(312) 503-8576

Case: 1:12-cv-04428 Document #: 321 Filed: 09/22/17 Page 79 of 80 PageID #:24162
70 

CERTIFICATE OF SERVICE 

I, Steve Art, an attorney, hereby certify that, on September 22, 2017, I filed the 

foregoing PLAINTIFF’S CONSOLIDATED RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUMMARY JUDGMENT MOTIONS using the Court’s CM/ECF system, 

which effected service on all counsel of record. 

 /s/ Steve Art 

One of Plaintiff’s Attorneys 

Arthur Loevy Locke E. Bowman 

Jon Loevy Sheila Bedi 

Russell Ainsworth David Shapiro 

Anand Swaminathan Alexa Van Brunt 

Steve Art MACARTHUR JUSTICE CENTER 

LOEVY & LOEVY Northwestern University School of Law 

311 N. Aberdeen St., Third Floor 375 E. Chicago Ave., 8th Floor 

Chicago, IL 60607 Chicago, IL 60611 

(312) 243-5900 (312) 503-0844

steve@loevy.com

J. Samuel Tenenbaum

BLUHM LEGAL CLINIC

Northwestern University School of Law

375 E. Chicago Ave., 8th Floor

Chicago, IL 60611

(312) 503-8576

Case: 1:12-cv-04428 Document #: 321 Filed: 09/22/17 Page 80 of 80 PageID #:24163