In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2326

James Newsome,

Plaintiff-Appellee,

v.

John McCabe and Raymond McNally,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 7680--Paul E. Plunkett, Judge.

Argued September 25, 2000--Decided July 11, 2001

 Before Flaum, Chief Judge, and Easterbrook

and Diane P. Wood, Circuit Judges.

 Easterbrook, Circuit Judge. James Newsome

spent 15 years in prison for murder. The

killing and associated crimes (armed

robbery and armed violence) occurred in

October 1979. Newsome was arrested in

November 1979 when police, who were

holding him on other charges, noted his

resemblance to a composite sketch of the

person who in the course of a robbery

shot and killed Mickey Cohen. Newsome was

convicted of that crime in September

1980, see People v. Newsome, 110 Ill.

App. 3d 1043, 443 N.E.2d 634 (1st Dist.

1982); and his efforts to obtain

collateral relief were unavailing until

December 1994, when a state court vacated

his conviction. In 1995, after the

State’s Attorney declined to put Newsome

on trial a second time, the Governor of

Illinois concluded that Newsome is

innocent and pardoned him. Newsome then

filed this suit under 42 U.S.C. sec.1983

against five officers of the Chicago

Police Department. He could not seek

damages for wrongful arrest and

detention; that claim accrued in 1979, so

the statute of limitations expired in

1981. See Gonzalez v. Entress, 133 F.3d

551 (7th Cir. 1998). But a claim based on

wrongful conviction and imprisonment did

not accrue until the pardon, see Heck v.

Humphrey, 512 U.S. 477 (1994), and

Newsome tried to take advantage of the
newly opened window for suit. Absolute

immunity forecloses any action against

the prosecutors and judges, but Newsome

has tried to avoid that doctrine by suing

the investigating officers, arguing that

the police were complicit in a wrongful

prosecution. He calls this a claim of

"malicious prosecution" and contends that

the police must pay for failing to halt

the criminal prosecution. The defendants

responded by arguing that Newsome’s

theory is legally deficient and that, at

all events, qualified immunity prevents

an award of damages.

 The district judge granted summary

judgment in favor of James W. Eckner,

Bruce James, and David Dioguardi, ruling

that the evidence of record could not be

read to imply that they did anything

wrong. 2000 U.S. Dist. Lexis 5678 (N.D.

Ill. Apr. 25, 2000), reconsideration

denied, 2000 U.S. Dist. Lexis 6929 (May

16, 2000). But the court thought that the

evidence would allow a jury to find that

the other two defendants, John McCabe and

Raymond McNally, failed to alert the

prosecutors that Newsome’s fingerprints

did not match those they had obtained at

the scene of the crime. Moreover, a jury

could find that McCabe and McNally

encouraged two witnesses to select

Newsome from a lineup-- which the

witnesses did, forming a vital link in

the process that led to Newsome’s

conviction as Cohen’s killer--yet

withheld from the prosecutors information

about their coaching of the witnesses and

the fact that these witnesses earlier

selected pictures from a book of mug

shots that did not contain Newsome’s

photo. The judge concluded that these

events could support damages for

malicious prosecution, which the judge

viewed as a constitutional tort when:

(1) the requirements of a state law

cause of action for malicious

prosecution are satisfied; (2) a

state actor committed the malicious

prosecution; and (3) plaintiff was

deprived of liberty.

2000 U.S. Dist. Lexis 5678 at *31-32. The

judge thought that all three of these

ingredients have been satisfied because,

taking the facts in the light most

favorable to Newsome and disregarding all

testimony derived from the tainted

identifications, there was not even
probable cause to prosecute him for

Cohen’s murder. Id. at *35-36. Because

the evidence could support an inference

that McCabe and McNally suborned perjury

by the two eyewitnesses, the judge

concluded in his order denying

reconsideration that they are not

entitled to qualified immunity, for both

the right to be free of malicious

prosecution and the rule against

suborning perjury have been around a very

long time.

 McCabe and McNally have filed this

interlocutory appeal to argue for

immunity, as they are entitled to do, see

Behrens v. Pelletier, 516 U.S. 299

(1996), but the first question on the

table is whether Newsome has made out a

violation of constitutional rights--for

we cannot call a constitutional right

"clearly established" when the defendants

acted (here in 1979 and 1980) if it has

never been established at all. See Wilson

v. Layne, 526 U.S. 603, 609 (1999); Conn

v. Gabbert, 526 U.S. 286, 290 (1999).

Defendants make a strong pitch regarding

point (1) of the district court’s list.

They insist that Newsome has not made out

"the requirements of a state law cause of

action for malicious prosecution" because

neither McCabe nor McNally prosecuted

Newsome or was a party to the case. The

People of the State of Illinois (through

the State’s Attorney), not police

officers, brought the criminal

prosecution. This contention has led to a

complex debate about the extent to which,

under Illinois law, a complaining witness

can be deemed a party for purposes of the

tort of malicious prosecution. Our

opinion in Logan v. Caterpillar, Inc.,

246 F.3d 912, 921-26 (7th Cir. 2001),

explores some of these subtleties. But

the answer doesn’t matter unless there is

a constitutional tort called "malicious

prosecution," a subject not fully

resolved in Albright v. Oliver, 510 U.S.

266 (1994), and this constitutional tort

applies to state actors the same rules

state courts apply to private actors,

thus using the Constitution to enforce

state law. Recall the district judge’s

formulation: the plaintiff must show all

requirements of a tort claim under state

law, plus a deprivation of liberty, plus

the defendant’s status as a state actor

(this last ingredient found in sec.1983

itself). Whatever scope malicious

prosecution may have as a constitutional
tort after Albright, it does not depend

on state law in this way. To the

contrary, the existence of a tort claim

under state law knocks out any

constitutional theory of malicious

prosecution.

 Whether there is a constitutional right

not to be prosecuted without probable

cause--the question that the district

court saw through the lens of malicious

prosecution--was addressed and answered

in the negative by seven Justices in

Albright. The problem is that they did

not agree on the reason. Four Justices

concluded that probable cause is the

exclusive domain of the fourth amendment,

and that unless the plaintiff can

establish that his arrest was unlawful

there is no further constitutional claim.

510 U.S. at 268-75 (Rehnquist, C.J.,

joined by O’Connor, Scalia & Ginsburg,

JJ.). See also Baker v. McCollan, 443

U.S. 137 (1979) (if probable cause exists

at the time of arrest, then the police

cannot be held liable for ensuing

custody, even if mistaken). Newsome had a

potential fourth amendment claim, but as

we mentioned at the outset the time to

pursue it expired almost 20 years ago.

One Justice preferred to analyze the

subject in terms of substantive due

process, an approach that could leave

room for Newsome’s claim but doomed

Albright’s because he did not argue that

the police engaged in egregious

misconduct. 510 U.S. at 286-91 (Souter,

J.). Two more Justices believed that the

right approach lies in due process

without substantive coloration--whether

the person seized by the state had an

adequate opportunity to defend himself in

the criminal prosecution and, if not, an

adequate opportunity to obtain

compensation in state court. 510 U.S. at

281-86 (Kennedy, J., joined by Thomas,

J.). A jury might conclude that McCabe

and McNally deprived Newsome of an

adequate chance to defend himself in the

criminal prosecution. But Justices

Kennedy and Thomas concluded that in such

circumstances the federal Constitution

still does not supply a damages remedy,

unless the state courts refuse to do so.

Their approach relies on Parratt v.

Taylor, 451 U.S. 527, 535-44 (1981),

which holds that the opportunity to sue

in state courts usually supplies all the

process that is due to redress

unauthorized activities of state
employees. Justices Kennedy and Thomas

concluded that remedies available to

Albright under state law for wrongful

prosecution provided him with due process

of law. States differ in their

willingness to provide such remedies--but

the state in question in Albright was

Illinois, and remedies available to

Albright are (or were) available to

Newsome too. What this means is that

satisfying the elements of the state-law

tort of malicious prosecution, far from

being the foundation of a constitutional

tort as the district judge believed,

knocks out any constitutional tort of

malicious prosecution, because, when a

state-law remedy exists, Justices Kennedy

and Thomas conclude that due process of

law is afforded by the opportunity to

pursue a claim in state court, and four

other Justices do not think that the due

process clause applies in the first

place.

 The district judge is hardly to be

faulted for using a tripartite formula

for a constitutional tort of malicious

prosecution. This court has articulated

it at least four times since Albright.

See Cervantes v. Jones, 188 F.3d 805, 809

(7th Cir. 1999); Sneed v. Rybicki, 146

F.3d 478, 480 (7th Cir. 1998); Washington

v. Summerville, 127 F.3d 552, 558-59 (7th

Cir. 1997); Reed v. Chicago, 77 F.3d

1049, 1051 (7th Cir. 1996). But in none

of these cases did anything turn on the

precise formulation, and none of our

opinions dealt with reconciling this

formulation with the position that

Justices Kennedy and Thomas took in

Albright, which, as the narrowest ground

of decision, constitutes the effective

holding of the Court. See Marks v. United

States, 430 U.S. 188, 193 (1977). The

formula appears to be dictum developed

from pre-Albright opinions, unexamined in

our more recent decisions because the

parties to Cervantes, Sneed, Washington,

and Reed did not seek to have this court

reexamine the issue in the light of

intervening developments. In other recent

decisions we have recognized that

Albright scotches any constitutional tort

of malicious prosecution when state

courts are open. See, e.g., Mays v. East

St. Louis, 123 F.3d 999, 1002-03 (7th

Cir. 1997); Spiegel v. Rabinovitz, 121

F.3d 251, 254-57 (7th Cir. 1997); Smart

v. Board of Trustees, 34 F.3d 432, 434-35

(7th Cir. 1994) (suggesting the
possibility of a claim based on the first

amendment if the prosecution is used to

punish speech). See also Snodderly v.

R.U.F.F. Drug Enforcement Task Force, 239

F.3d 892, 901 (7th Cir. 2001); Williams

v. Heavener, 217 F.3d 529, 531-32 (7th

Cir. 2000). These opinions do not address

the tripartite formula of Cervantes,

Sneed, Washington, and Reed. Having given

the matter some thought, we now withdraw

the dicta in those four opinions. Claims

of malicious prosecution should be

analyzed not under the substantive due

process approach implied by this formula

but under the language of the

Constitution itself and, if state law

withholds a remedy, under the approach of

Parratt adopted by Justices Kennedy and

Thomas in Albright. Relabeling a fourthamendment claim as "malicious

prosecution" would not extend the statute

of limitations (Reed so holds), and if a

plaintiff can establish a violation of

the fourth (or any other) amendment there

is nothing but confusion to be gained by

calling the legal theory "malicious

prosecution."

 Where does this leave Newsome? Certainly

not with a constitutional claim founded

on malicious prosecution. Nor does he

have a viable fourth amendment claim, for

the statute of limitations expired long

ago. But he does have a due process claim

in the original sense of that phrase--he

did not receive a fair trial if the

prosecutors withheld material exculpatory

details. See Brady v. Maryland, 373 U.S.

83 (1963). Although the State’s Attorney

did not have in his file details about

the fingerprints and the means McCabe and

McNally used to influence the

identification, a prosecutor is

responsible for learning of and

disclosing all exculpatory evidence known

to the police. See Kyles v. Whitley, 514

U.S. 419, 437-38 (1995). Defendants

recognize that a claim along these lines

states a genuine constitutional tort. See

Jones v. Chicago, 856 F.2d 985 (7th Cir.

1988); Jean v. Collins, 221 F.3d 656 (4th

Cir. 2000) (en banc) (all 12 judges

concluded that police who deliberately

withhold exculpatory evidence, and thus

prevent the prosecutors from complying

with Brady, violate the due process

clause). Such a violation occurred at

trial (for Brady identifies a trial

right) and therefore the due process

claim’s accrual was postponed by Heck
until the pardon. Nonetheless, defendants

contend, if the claim is recast in this

fashion then they prevail because they

did not withhold evidence; the prosecutor

did so (even if they were to blame).

Because injury depended on the action of

the prosecutor they either are not

substantively liable or possess a

derivative form of immunity, the line of

argument concludes.

 Buckley v. Fitzsimmons, 20 F.3d 789 (7th

Cir. 1994), provides the principal

support for this contention. It holds

that responsibility rests on the

prosecutor, rather than the police, when

there would have been no injury but for a

prosecutorial decision that is protected

by absolute immunity. Buckley finds

company in Michaels v. McGrath, 222 F.3d

118 (3d Cir. 2000), but two circuits have

reached contrary conclusions. See Zahrey

v. Coffey, 221 F.3d 342 (2d Cir. 2000);

Clanton v. Cooper, 129 F.3d 1147 (10th

Cir. 1997). One Justice has expressed the

view that Buckley was decided

incorrectly. See Michaels v. McGrath, 121

S. Ct. 873 (2001) (Thomas, J., dissenting

from the denial of certiorari). But

Newsome’s suit does not present the

Buckley issue, and defendants’ reliance

on that decision is unavailing, for a

fundamental reason: Buckley supposed that

the police had been forthcoming with the

prosecutors, so that injury really could

be traced to prosecutorial decisions. We

distinguished what occurred in Jones,

where the police had fabricated some

evidence and concealed much exculpatory

information. If officers are not candid

with prosecutors, then the prosecutors’

decisions--although vital to the causal

chain in a but-for sense--are not the

important locus of action. Pressure must

be brought to bear elsewhere. Prosecutors

kept in the dark by the police (and not

negligent in failing to hire other

persons to investigate the police) won’t

improve their performance with or without

legal liability for their conduct.

Requiring culpable officers to pay

damages to the victims of their actions,

however, holds out promise of both

deterring and remediating violations of

the Constitution.

 Putting Buckley and all problems of

establishing causation to one side, we

make the normal immunity inquiry: was it

clearly established in 1979 and 1980 that
police could not withhold from

prosecutors exculpatory information about

fingerprints and the conduct of a lineup?

See Wilson, 526 U.S. at 614-18; Anderson

v. Creighton, 483 U.S. 635, 639 (1987);

Saucier v. Katz, No. 99-1977 (U.S. June

18, 2001). The answer is yes: The 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.

This is not to say that McCabe or McNally

did anything wrong; like the district

judge we have taken the evidence and all

reasonable inferences in Newsome’s favor,

as the summary-judgment standard

requires. No one would quarrel with the

assertion in defendants’ reply brief that

"in 1979 [and today], the detectives

could have reasonably believed that it

should be up to the prosecutors, and

ultimately the court, to determine if an

eyewitness identification is sufficiently

reliable for use at trial." Newsome has

made a more serious claim that the

defendants withheld information important

to that prosecutorial (and judicial)

decision, and on this interlocutory

appeal we cannot resolve disputes about

the record. See Johnson v. Jones, 515

U.S. 304 (1995). If Newsome can prove

what he alleges, then under the approach

of Brady and Jones v. Chicago he will

establish a violation of the due process

clause, a kind of violation for which

officers McCabe and McNally do not have

immunity. This is not the basis of the

district court’s order, nor is it

Newsome’s preferred theory--malicious

prosecution is not tenable as an

independent constitutional theory--but we

may affirm a decision on any ground that

the record supports. The decision of the

district court rejecting defendants’

affirmative defense of qualified immunity

is accordingly

affirmed.