PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-3185

EMMANUEL MERVILUS,

Appellant

v.

UNION COUNTY; DANIEL VANISKA; CHIEF OF 

POLICE RONALD SIMON; *PACE KAMINSKAS, as 

Executor of the Estate of John Kaminskas; EDWARD 

BENENATI; ROBERT PEREZ; MICHAEL BARROS; 

JOHN DOE IDENTIFICATION OFFICERS

(*Amended per Court’s Order dated 1/05/2023)

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-14-cv-07470)

District Judge: Esther Salas 

Argued on January 19, 2023
2

Before: AMBRO*, PORTER, and FREEMAN, Circuit 

Judges

(Opinion Filed: July 13, 2023)

David B. Shanies [Argued]

David B. Shanies Law Office

110 West 40th Street

New York, NY 10018

Steven J. Zweig

Office of Attorney General of New Jersey

Division of Law

25 Market Street

Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellant

Steven H. Merman

Moshood Muftau [Argued]

Office of County Counsel

10 Elizabethtown Plaza 

Union County Administration Building

Elizabeth, NJ 07207

*Judge Ambro assumed senior status on February 6, 

2023.
3

Peter H. Spaeth

Wolff Helies Duggan Spaeth & Lucas

Suite 201-202

2517 Highway 35

P. O. Box 320, Building K

Manasquan, NJ 08736

Edward J. Kologi

Michael S. Simitz [Argued]

Kologi & Simitz

500 N. Wood Avenue

Suite 4B

Linden, NJ 07036

Catherine M. Deappolonio

Robert F. Renaud

Renaud Colicchio

190 North Avenue E

3

rd Floor

Cranford, NJ 07016

Robert F. Varady

LaCorte Bundy Varady & Kinsella

989 Bonel Court

Union, NJ 07083 

Counsel for Appellees
4

OPINION OF THE COURT

AMBRO, Circuit Judge

Emmanuel Mervilus sued Detective John Kaminskas 

for fabricating polygraph evidence and Kaminskas’s

supervisors for failing to train or supervise his polygraph work. 

We decide two principal questions. First, did Mervilus

introduce sufficient evidence to try his fabrication-of-evidence 

claim against Kaminskas? We hold he did. Second, is his 

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

against Kaminskas’s employer, Union County, viable even if 

Kaminskas did not fabricate evidence? We hold it is because

a jury might not render an inconsistent verdict if it found the 

County liable but Kaminskas not culpable. 

I. Background

In October 2006, Mervilus lived in New Jersey with his 

mother, a cancer patient, and his two younger siblings. He 

worked at a cooking oil company and, at age 22, 

singlehandedly provided for his household. His life changed 

drastically that month when he and a friend, Daniel Desire, 

went for a late-night walk. During it, they watched a man, later 

identified as Miguel Abreu, flag down a police car, reveal to 

officers his stab wound, and accuse Mervilus and Desire of 

robbing and stabbing him. Indignant, Mervilus stayed at the 

scene and insisted that Abreu look closely at them to

understand he had identified the wrong men. But to no avail. 
5

Officers arrested Mervilus and charged him with first degree 

robbery, N.J.S.A. § 2C:15–1, second degree aggravated 

assault, N.J.S.A. § 2C:12–1b(1), third degree aggravated 

assault, N.J.S.A. § 2C:12–1b(2), and third degree possession 

of a weapon for an unlawful purpose, N.J.S.A.§ 2C:39–49d. 

Eager to clear his name, Mervilus agreed to take a 

polygraph examination. Earlier that year, officers dismissed 

drug charges after a polygraph exam indicated he truthfully 

denied responsibility. So Mervilus agreed to be tested again 

because he “believed, at the time, [polygraphs] tell the truth.” 

A567.

Polygraph science aspires to determine an examinee’s 

truthfulness by measuring his or her physiological responses to 

a series of questions. “Polygraph tests are psychological tests 

that use physiological measures to make inferences about a 

person’s psychological state when that person is asked a series 

of questions to which he or she must respond with either a truth 

or lie.” A416. Put simply, they are premised on the belief that 

liars have certain “tells” that are detectable through sudden 

changes to their blood pressure, pulse rate, perspiration, and 

respiration.1 

1 Polygraph examinations are the subject of much 

criticism and “do not enjoy general acceptance from the 

scientific community.” United States v. Laurent, 603 F. Supp. 

3d 1247, 1257 (S.D. Fla. 2022). Thus, most states generally do 

not permit their admission, while other states only admit such 

evidence on the consent of both parties. See State v. A.O., 965 

A.2d 152, 161–62 (N.J. 2009) (collecting cases). This case, 

however, does not require us to scrutinize polygraphs 

generally, and so we do not wade into that debate.
6

When Mervilus sat for his exam, New Jersey permitted 

polygraph results to be admitted at trial if there was a 

“stipulation [that] is clear, unequivocal and complete, freely 

entered into with full knowledge of the right to refuse the test 

and the consequences involved in taking it.” State v. McDavitt, 

297 A.2d 849, 855 (N.J. 1972). The State also required 

examiners to be “qualified and the test administered in 

accordance with established polygraph techniques.” Id. Union 

County and Mervilus entered a stipulation reflecting those 

requirements. He consented to be tested, agreed the results 

would be admissible, and waived his “right to introduce 

another polygraph expert . . . in reference to the original 

polygraph expert’s testimony.” A1798–99. Further, Union 

County guaranteed the examiner would be “an expert in all 

phases of both administering polygraph examinations and in 

the analysis of polygraph chart recordings.” A1798. 

The Union County Police Department selected 

Kaminskas, its only certified polygraph examiner, to conduct 

the exam.2 When the Police Department bought a polygraph

in the mid-1990s, its Chief allowed Kaminskas to learn how to 

conduct examinations. He did so by attending the National 

Training Center, where he learned the “Arther Method” from

its founder, Richard Arther. 

2 Kaminskas died while this appeal was pending. We 

granted Mervilus’s motion to substitute in Kaminskas’ place 

the executor of his estate. See Order to Substitute Party, D.I. 

50 (Jan. 5, 2023).
7

The Arther Method is an outlier in the polygraph world. 

It is not accredited by the American Polygraph Association. 

An authoritative polygraph treatise published in 2002 never 

mentioned it. And a peer-reviewed list of validated polygraph 

techniques, published in 2006, also did not include it. See 

Donald J. Krapohl, Validated Polygraph Techniques, 35 

Polygraph 123, 149 (2006). Defendants’ expert, Dr. Palmatier, 

conceded it has not “been subjected to peer review.” A1197. 

And juxtaposing it with conventional polygraph methods 

explains why it was so poorly regarded within the field.

The Arther Method relies heavily on subjective 

observations to test whether an examinee is truthful, in contrast 

to conventional polygraph approaches that primarily use 

objective physiological data. Among the 24 non-physiological 

factors the Method treats as instructive are the following:

• If the examinee is local and arrives with a third 

party, he or she is probably lying.

• First-born children are usually more nervous and 

ambitious.

• The more thoroughly an examinee washes his or her

hands, the more likely he or she is telling the truth.

• “The sexier a lady is dressed, the more likely she is 

lying.” A750.

• Liars will either sleep too much or too little on the 

night before the examination. Sleeping too little is 

the mark of someone who drank too much the night 

prior, which liars tend to do. But sleeping too much, 

on the other hand, suggests the examinee is an 

escapist.
8

• The examiner should instruct the examinee to read a 

journal article before the examination. An examinee 

who reads that article is more likely to be truthful. 

The Arther Method also incorporates the physiological 

analysis used in conventional polygraph methods. However, 

although conventional methods consider the absence of 

physiological reactions to reveal truthfulness, this one teaches 

that “at least 85% of the non-reactors are LYING to the crime 

questions.” A1787 (emphasis in original). Indeed, the Method 

believes many liars’ physiological reactions are not detected 

because their identity or social standing permits them to lie 

without guilt, thus not triggering the typical physiological 

responses. For example, the Method teaches certain ethnic 

groups “do[] not experience any guilt feelings when [they] lie[] 

. . . because [they do] not consider lying to be socially 

unacceptable.” Id. And the same goes for those with low 

social standing, who will not care “what will happen if [they 

are] exposed as [] liar[s].” Id. Thus, though the Arther Method 

considers physiological responses in its analysis, it relies on 

prejudiced assumptions to dismiss what other methods deem 

an indicator of truthfulness.

In May 2007, Kaminskas tested Mervilus to determine 

whether he stabbed and robbed Abreu. In line with the 

Method’s teachings, Kaminskas first asked Mervilus a series 

of personal questions. Among them: Was Mervilus the firstborn children of his parents?; Who raised him?; Was he 

married?; Was he a high school graduate? After Kaminskas 

recorded his own observations, he tested Mervilus’s 

physiological reactions to a series of eight questions. Of them, 

four were relevant questions pertaining to the crime at issue 

and four were control questions. 
9

The four relevant questions were:

R3K: Do you know for sure who robbed and 

stabbed someone on 10/19/06 in Elizabeth?

R5: Did you rob someone of their backpack on 

10/19/06 in Elizabeth?

R8: Is the person who was robbed and stabbed 

wrong when he said you held him and took his 

backpack?

R9: Were you holding someone when Daniel 

Desire stabbed them on 10/19/06 in Elizabeth?

Mervilus denied any responsibility for the crime and 

therefore answered the latter three questions with a “no.” But 

Kaminskas’s first question, R3K, did not ask whether he 

committed the crime. Instead, it asked whether he knew “for 

sure” who did. He answered with a “yes,” explaining that 

someone told him who committed the crime. But Kaminskas 

pushed back, telling Mervilus he could not answer he knew 

“for sure” who committed the crime based on hearsay. 

Kaminskas then re-asked the question and Mervilus answered 

it the same way. But Kaminskas again insisted that he could 

not truthfully answer the question in the affirmative based on 

what he heard secondhand. So when Kaminskas asked the 

question again, Mervilus finally relented by changing his 

answer to a “no.” 

Ultimately, Kaminskas concluded Mervilus was being 

deceptive when he denied responsibility for the crime. 

Kaminskas partly relied on a software program to analyze 

Mervilus’s polygraph recordings, and that program indicated

“probable deception.” However, the only relevant question 

where Mervilus’s physiological responses signaled deception 
10

was for R3K—the question for which Kaminskas insisted 

Mervilus change his answer. 

Kaminskas operated his polygraph practice with no 

oversight from the Police Department. When he examined 

Mervilus, the Department had no policies or procedures related 

to polygraph tests. The Department’s then-Chief, Daniel 

Vaniska, conceded he had only a “basic understanding” of 

polygraphs at the time of Mervilus’s examination. A1304–05. 

Kaminskas’s examinations were never peer-reviewed by 

Police Department personnel or others in the field. And he had 

sole discretion on where he received continuing education. 

Thus, Kaminskas relayed to the prosecution his conclusion that 

Mervilus was lying without anyone checking his work. 

Mervilus stood trial in 2008. At it, Abreu failed to 

identify him, pointing instead to a different Black man. But in 

line with Mervilus and Union County’s stipulation, the Court 

admitted the polygraph exam done by Kaminskas and 

permitted him to testify. He stated that “innocent” examinees 

will react differently to certain questions than “a person [who] 

actually did the crime,” A1509–12, and those who “react more 

to [r]elevant [q]uestions on a test” are lying. A1511. He 

further asserted he never had a confirmed mistake on a test. 

Because the stipulation provided that Kaminskas would 

be the only polygraph expert to testify, Mervilus was not able 

to challenge that testimony meaningfully. Ultimately, the jury 

found him guilty of first-degree robbery, second-degree 

aggravated assault with intent to cause serious bodily injury, 

and third-degree aggravated assault with a deadly weapon. 

The Court sentenced him to eleven years in prison. 
11

However, after several years’ imprisonment, Mervilus 

successfully overturned his conviction. State v. Mervilus, 12 

A.3d 258 (N.J. Super. Ct. App. Div. 2011). The New Jersey 

Superior Court, Appellate Division, held Kaminskas’s 

testimony was improper and prejudicial. Id. at 262–64. It 

remanded the case for a new trial, requiring the State to 

establish the polygraph evidence’s reliability prior to 

introducing it at trial. Id. at 264. That didn’t occur because,

when the State re-tried Mervilus, it did not seek to admit the 

polygraph evidence or have Kaminskas testify. Again, the 

victim did not identify Mervilus. And after a mere thirty 

minutes of deliberation, the jury acquitted him. 

In 2014, Mervilus sued Kaminskas, Chief Vaniska in 

his personal capacity, Union County, and other now-dismissed 

defendants under 42 U.S.C. § 1983 and the New Jersey Civil 

Rights Act, N.J.S.A § 10:6-1. Mervilus claimed Kaminskas 

fabricated the polygraph evidence and falsely testified at trial, 

Vaniska and the County failed to train and supervise 

Kaminskas, and the County had a policy, practice, or custom 

of conducting polygraphs in a manner that caused an 

unreasonable risk of Fourth and Fourteenth Amendment 

deprivations.

3

 

The United States District Court for the District of New 

Jersey granted summary judgment for Kaminskas, Vaniska, 

and the County. Mervilus v. Union Cnty., No. 14-cv-7470, 

2021 WL 4963293 (D.N.J. Oct. 26, 2021). Looking first to the 

claim against Kaminskas, the Court concluded the evidence 

3 The District Court previously dismissed additional 

claims in the complaint, and Mervilus does not appeal those 

dismissals.
12

suggested only that his polygraph methods were flawed and 

results incorrect, not that he acted in bad faith—an element of 

the fabrication claim. Id. at *5–10. After holding the evidence 

failed to support the claim against Kaminskas, the Court 

granted Vaniska and Union County’s motion without 

analyzing the merits of the claims against them. In its view, 

because Mervilus did not show “evidence to establish that 

Kaminskas committed a constitutional violation, [his] Monell

claims against the Union County Defendants must fail.” Id. at 

*11. The Court did not analyze the individual claims against 

Vaniska. This appeal followed.

II. Jurisdiction & Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 

1331 and 1367 because, for the former, Mervilus brought 

claims under 42 U.S.C. § 1983 and, for the latter, the pendent 

state law claims falling under the district courts’ supplemental 

jurisdiction. We have appellate jurisdiction under 28 U.S.C. § 

1291.

We give a fresh review to a district court’s entry of 

summary judgment. Ellis v. Westinghouse Elec. Co., LLC, 11 

F.4th 221, 229 (3d Cir. 2021). We must “view the record and 

draw inferences in a light most favorable to the non-moving 

party,” In re IKON Office Solutions, Inc., 277 F.3d 658, 666 

(3d Cir. 2002), and ask if “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving 

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). For us to affirm, we must conclude that “there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
13

III. Analysis

We turn to the merits. First, is the evidence sufficient 

for Mervilus to try his fabrication claim against Kaminskas? 

In answering this question, we clarify the state of mind

necessary to sustain that claim. Second, we decide if 

Mervilus’s Monell claims against Union County are viable if 

Kaminskas is ultimately found not liable.

4

A. A Reasonable Jury Could Find Kaminskas 

Fabricated Evidence.

“[I]f a defendant has been convicted at a trial at which 

the prosecution has used fabricated evidence, the defendant has 

a stand-alone claim under section 1983 based on the Fourteenth 

Amendment.” Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 

2014). That Amendment is the constitutional source of a 

fabrication claim for two reasons. First, its due process 

guarantee ensures criminal defendants a fair trial. See Black v. 

Montgomery Cnty., 835 F.3d 358, 370 (3d Cir. 2016) 

(“Fabricated evidence is an affront to due process of law, and 

state actors seeking to frame citizens undermine fundamental 

fairness and are responsible for ‘corruption of the truth-seeking 

4 The New Jersey Civil Rights Act is “interpreted 

analogously to § 1983,” so Mervilus’s claims under that statute 

rise and fall with his parallel § 1983 claims. Est. of Roman v. 

City of Newark, 914 F.3d 789, 796 n.5 (3d Cir. 2019). Thus,

the District Court did not analyze those claims separate from 

the § 1983 claims, and we do the same. 
14

function of the trial process.’” (quoting United States v. Agurs, 

427 U.S. 97, 104 (1976))). Second, it guards against unlawful 

seizures post-conviction. See Halsey, 750 F.3d at 291 

(explaining that the Fourth Amendment protects liberty 

interests only until trial, and the Fourteenth Amendment 

protects against unlawful seizures “through and after trial.”).

For Mervilus to withstand Kaminskas’s motion for 

summary judgment, he must bring “persuasive evidence 

supporting a conclusion that [Kaminskas was] aware that 

evidence is incorrect or that [it was] offered in bad faith.” 

Black, 835 F.3d at 372 (quoting Halsey, 750 F.3d at 295

(internal quotation marks omitted)). Evidence is not fabricated 

if it “is incorrect or simply disputed.” Halsey, 750 F.3d. at 295. 

Were it otherwise, every acquittal could spawn a fabrication 

claim. Because this intent requirement is stringent, “it will be 

an unusual case in which a police officer cannot obtain a 

summary judgment in a civil action charging him with having 

fabricated evidence.” Id.

1. “Bad Faith” Includes Willful, 

Knowing, and Reckless Fabrication.

We have yet to clarify the scope of “bad faith” in the 

fabrication context. Obviously it encompasses the knowing or 

willful submission of false evidence. See Fabricate, MERRIAM 

WEBSTER’S THIRD NEW INT’L DICTIONARY (1993) (“3a: 

Invent, Formulate: Create; 3b(1): to make up with intent to 

deceive (2): Forge.”); Fabricate, BLACK’S LAW DICTIONARY

(11th ed. 2019) (“4. To invent, forge, or devise falsely.”). But 

does it include recklessly submitting that evidence?
15

Recall that the fabrication claim stems from the 

Fourteenth Amendment’s guarantee of due process, which 

ensures individuals are not unlawfully deprived of liberty after 

a fundamentally unfair trial. In other contexts where the law 

protects those interests, recklessness is enough. Consider, for 

example, claims by persons alleging they were unlawfully 

seized based on a warrant obtained through the affiant’s false 

statements. A plaintiff bringing this claim must show “(1) that 

the [affiant] ‘knowingly and deliberately, or with a reckless 

disregard for the truth, made false statements or omissions that 

create a falsehood in applying for a warrant’; and (2) that ‘such 

statements or omissions are material, or necessary, to the 

finding of probable cause.’” Wilson v. Russo, 212 F.3d 781, 

786–87 (3d Cir. 2000) (emphasis added) (quoting Sherwood v. 

Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)). The same 

standard applies to a malicious-prosecution claim, which 

requires the plaintiff to prove he, among other things, suffered 

a deprivation of liberty from a prosecution brought with a 

reckless disregard for the truth in determining probable cause. 

See Geness v. Cox, 902 F.3d 344, 356–57 (3d Cir. 2018). 

It would be anomalous to treat recklessness as sufficient 

in those contexts, but not here. An individual who furnishes 

inculpatory evidence while consciously disregarding a 

substantial risk it is false behaves culpably, heightens the risk 

of a wrongful conviction, and “offends some principle of 

justice so rooted in the traditions and conscience of our people 

to be ranked as fundamental.” Medina v. California, 505 U.S. 

437, 446 (1992) (cleaned up). So we rule that Mervilus’s 

fabrication-of-evidence claim requires persuasive evidence 

Kaminskas formulated or submitted false evidence willfully, 

knowingly, or with a reckless disregard for its truth.
16

2. There is Sufficient Evidence 

Kaminskas Acted in Bad Faith.

Having clarified the state of mind necessary to make out 

a fabrication claim, we now review whether Mervilus 

submitted enough evidence for a jury to find the standard met. 

We begin by noting evidence Kaminskas adhered to the Arther

method despite red flags as to its validity and reliability. By 

the time he conducted Mervilus’s examination, Kaminskas had 

read a National Academy of Science report concluding

polygraph science was neither valid nor reliable. A reasonable 

polygraphist might then attempt to ensure the method he or she 

employs is sound. But Kaminskas admitted he never saw any 

support for many of the Method’s teachings. Indeed, he did 

not follow some of what it taught. From this a jury could 

conclude he knew that polygraph science was generally 

suspect, and his approach especially so. Yet he proceeded with 

it anyway.

A jury might also find that, in examining Mervilus,

Kaminskas failed to adhere to accepted practices in the field of 

polygraphy that are instituted to avoid bias against innocent 

suspects. Recall he instructed Mervilus to change his answer 

for a single question, R3K, the one that triggered physiological 

reactions purportedly indicating deception. Mervilus’s expert, 

Dr. Honts, stated this technique “was highly likely to cause Mr. 

Mervilus to have large physiological reactions,” and the 

question “posed a substantial risk of skewing the examination 

results against an actually innocent subject.” A425. 

Kaminskas’s expert, Dr. Palmatier, did not address this point. 
17

So the notion that Kaminskas neglected standard practices 

designed to avoid false positives stands unrebutted and may 

prove persuasive to a jury.

In addition, a jury could conclude Kaminskas acted in 

bad faith when he reported Mervilus was lying because neither 

expert concurred with Kaminskas’s conclusion that the data 

from Mervilus’s exam suggested deception. Dr. Honts 

explained the physiological data strongly indicated Mervilus 

was being truthful in asserting his innocence. Dr. Palmatier, 

on the other hand, asserted the results supported a conclusion 

of “Deception Indicated” or “Inconclusive.” Critically, an 

“inconclusive” result would not have been admissible evidence 

under the stipulation. See A1799 (“[I]nconclusive results shall 

not be introduced into evidence.”). Thus, neither expert fully 

adopted Kaminskas’s conclusion that the physiological data 

proved Mervilus was lying.

Considering the evidence holistically, we hold Mervilus 

brought sufficient evidence that Kaminskas fabricated his 

polygraph examination. This is so because, viewing the 

evidence in the light most favorable to Mervilus, Kaminskas

had reason to doubt his method’s validity and reliability, used 

biased techniques to examine Mervilus, and rendered a

conclusion not compelled by the data. So we disagree with the 

District Court’s observation that the evidence merely “suggests 

that Kaminskas knew superior polygraph methods may have 

existed.” A22–30. Although knowingly employing an inferior 

method does not per se amount to a constitutional violation, we 

do not perceive Mervilus’s argument to be that Kaminskas

behaved culpably for not using some other, superior method. 

We thus vacate the District Court’s summary judgment for 

Kaminskas and remand for further proceedings consistent with 

this opinion.
18

3. Kaminskas Does Not Have Qualified 

Immunity.

After holding Mervilus’s claim against Kaminskas 

failed, the District Court did not address qualified immunity. 

Because the record is sufficiently developed, we do so now. 

See Beers-Capitol v. Whetzel, 256 F.3d 120, 126 n.1 (3d Cir. 

2001) (reaching qualified immunity on appeal from a decision 

that did not reach the issue); Est. of Smith v. Marasco, 318 F.3d 

497, 511 (3d Cir. 2003) (refusing to reach qualified immunity 

“in recognition that the record is unclear as to the relationship 

between each defendant’s specific conduct and the rights at 

issue”).

The right at issue is the due process protection against 

criminal investigators’ fabrication of inculpatory evidence 

against a defendant. Prior to the events in question, that right 

had long been recognized by the Supreme Court and Courts of 

Appeal, including this one. Pyle v. Kansas, 317 U.S. 213, 216 

(1942); Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam); 

Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014); U.S. ex 

rel. Moore v. Koelzer, 457 F.2d 892, 893 (3d Cir. 1972); 

Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001); 

Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000); Ricciuti v. 

NYC Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); Geter v. 

Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988); Anthony v. 

Baker, 767 F.2d 657, 662 (10th Cir. 1985). Thus, because a 

jury may find that Kaminskas fabricated the polygraph 

evidence, we cannot conclude he is immune from suit.
19

B. Union County May Be Liable Even if Kaminskas 

Did Not Fabricate Evidence. 

Mervilus claims his wrongful conviction stems from 

two Union County policies, practices, or customs. First, he 

asserts the County was deliberately indifferent to his 

constitutional rights by failing to train or supervise Kaminskas. 

Second, Mervilus alleges it maintained a policy of convincing 

suspects to stipulate to polygraph exams, conducting those 

exams in a biased way, and then using the skewed results to 

convict them wrongfully. 

After holding that no reasonable jury could find 

Kaminskas liable on the evidence Mervilus presented, the 

District Court rejected his Monell claims without reviewing the 

merits. In its view, “[b]ecause [he] has not adduced evidence 

to establish that Kaminskas committed a constitutional 

violation, his Monell claims . . . must fail.” A35. We disagree.

“[A] municipality can be held liable under Monell, even 

when its officers are not, unless such a finding would create an 

inconsistent verdict.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 

604 F.3d 293, 305 (7th Cir. 2010) (emphasis in original). 

Where it is possible for the Monell defendant to cause 

constitutional harm without any individual defendant violating 

the plaintiff’s rights, it is not inconsistent for a jury to find only 

the Monell defendant liable. See Speer v. City of Wynne, 276 

F.3d 980, 985–86 (8th Cir. 2002) (“[S]ituations may arise 

where the combined actions of multiple officials or employees 

may give rise to a constitutional violation, supporting 

municipal liability, but where no one individual’s actions are 

sufficient to establish personal liability for the violation.”); 
20

Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) (“If a 

plaintiff establishes he suffered a constitutional injury by the

City, the fact that individual officers are exonerated is 

immaterial to liability under § 1983.” (emphasis in original)); 

Barrett v. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 

350 (2d Cir. 1999) (“[U]nder Monell[,] municipal liability for 

constitutional injuries may be found to exist even in the 

absence of individual liability, at least so long as the injuries 

complained of are not solely attributable to the actions of 

named individual defendants.”). But where a finding for the 

individual defendant necessarily means the plaintiff suffered 

no constitutional deprivation, there is no basis for a Monell 

claim, and thus it too must fall. See Mulholland v. Gov’t Cnty. 

of Berks, Pa., 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is 

well-settled that, if there is no violation in the first place, there 

can be no derivative municipal claim.”) (emphasis added).

Here, it would be consistent for the jury to find 

Kaminskas not liable because he lacked bad faith in conducting 

the exam, while simultaneously holding the County liable for 

failing to train or supervise him. Cf. Fagan v. City of Vineland, 

22 F.3d 1283, 1292 (3d Cir. 1994) (“It is easy to imagine a 

situation where an improperly trained police officer may be 

ignorant of the danger created by his actions and inflicts 

injury.”). Thus, Mervilus may ultimately prevail on his failure 

to train and supervise theory against Union County even if 

Kaminskas avoids liability. On the other hand, Mervilus’s 

second Monell theory— that the County customarily fabricated 

exams—depends on Kaminskas being complicit in that 

scheme, and thus would be untenable if the jury finds for 

Kaminskas.
21

To be clear, our analysis is limited to determining 

whether either of Mervilus’s Monell theories depends on his 

claim against Kaminskas. We express no view on whether his 

claims based on these theories are triable. The result is a

remand for the District Court to decide in the first instance as 

to Union County. 

* * *

A reasonable jury could find Kaminskas fabricated the 

polygraph exam. We therefore vacate and remand the District 

Court’s summary judgment for him. We also vacate and 

remand its summary judgment for Union County on the Monell 

claims. 5

5 For the District Court’s benefit on remand, we clear up 

additional points of confusion. Mervilus brought counts 2, 3, 

5, and 6—each alleging unconstitutional polygraph policies, 

practices, or customs and the failure to train and supervise 

Kaminskas—against Vaniska and Union County. But only 

counts 2 and 5 are styled as Monell actions. This matters for 

two reasons. First, Mervilus sued Vaniska in his personal 

capacity, and thus he is an improper Monell defendant. We 

therefore affirm the District Court’s summary judgment for 

Vaniska on counts 2 and 5 only; we vacate and remand on 

counts 3 and 6 with no view expressed on the merits. Second, 

because a Monell claim is the way to sue municipalities, we 

affirm the summary judgment for Union County on counts 3

and 6, which, to repeat, are not Monell claims.