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.

On Petition for Rehearing

Decided August 14, 2001

 Before Flaum, Chief Judge, and Easterbrook

and Diane P. Wood, Circuit Judges.

 Per Curiam. Defendants’ petition for

rehearing contends that it was not

clearly established, when they acted,

that the state’s constitutional duty to

avoid concealing materially exculpatory

evidence ever imposed any obligations on

police, as opposed to prosecutors. That

proposition is incompatible with Jones v.

Chicago, 856 F.2d 985 (7th Cir. 1988),

which dealt with police conduct at about

the same time as Newsome’s trial, and

with Jean v. Collins, 221 F.3d 656 (4th

Cir. 2000) (en banc), which holds that

police who deliberately withhold

exculpatory evidence, and thus prevent

the prosecutors from complying with the

obligations articulated in Brady, violate

the due process clause.

 We agree with defendants that police

need not spontaneously reveal to

prosecutors every tidbit that with the

benefit of hindsight (and the context of

other evidence) could be said to assist

defendants. That is one reason why duties

often depend on a defendant’s request.

Just as prosecutors need not

automatically open their files to

defendants, so police need not

automatically engage in debriefing

sessions with prosecutors. This was why

our opinion went out of its way to agree

with the defendants’ contention 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." If all the plaintiff

can prove at trial is that these officers

failed to take the initiative in

providing the prosecutors with

information that would have come out as

soon as the prosecutors asked (or as soon

as defense counsel interviewed the police

or questioned them on the stand), then no

due process violation by the police has

been established. But if the right

characterization of the defendants’

conduct is that they deliberately

withheld information, seeking to

misdirect or mislead the prosecutors and

the defense, then there is a genuine

constitutional problem.

 Johnson v. Jones, 515 U.S. 304 (1995),

requires us to assume that plaintiff can

prove a deliberate withholding of

information. Such proof would demonstrate

that defendants violated clearly

established rights--for the due process

clause imposes obligations on all state

actors, and not just on prosecutors.

Different state actors play different

roles in the prosecutorial process, but

as Jones and Jean show it is possible for

police no less than prosecutors to

violate the due process clause by

withholding exculpatory information.

Whether the police did this here is a

disputed question of fact that precludes

summary judgment. It may be necessary, as

Saucier v. Katz, 121 S. Ct. 2151, 2158

(2001), holds, to take another look at

the immunity question once the facts are

known, for until then it may be

impossible to determine whether the legal

rule was sufficiently clear in relation

to the facts. While the facts remain in

doubt, however, it is premature to

attempt this analysis.

 The petition for rehearing is denied. No

judge in regular active service has

requested a vote on the petition for

rehearing en banc, which therefore also

is denied.