### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 1195

N ATHSON F IELDS

, Plaintiff

‐ Appellee

,

v.

L AWRENCE W HARRIE and D AVID K ELLEY

, Defendants

‐ Appellants

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 C 1168

— Matthew F. Kennelly

, Judge

.

____________________

A RGUED N OVEMBER 1, 2013

— D ECIDED J ANUARY 23, 2014

____________________

Before P OSNER

, F LAUM

, and S YKES

, Circuit Judges

.

P OSNER

, Circuit Judge

. Before us are appeals by two Illi

‐

nois prosecutors, Wharrie and Kelley, who claim absolute

immunity from being sued by Nathson Fields under 42

U.S.C. § 1983. Appeals from denial of immunity, though in

‐ terlocutory because the case against them remains pending

in the district court, are immediately appealable provided

that, as in this case, the claim (in this case claims) of immuni

‐2 No. 13

‐ 1195

ty depends on an issue of law rather than one of fact. Mitch

‐

ell v. Forsyth

, 472 U.S. 511, 527–30 (1985).

Fields’ suit charges the defendants with depriving him of

liberty in violation of the Fourteenth Amendment’s due pro

‐

cess clause and committing torts of malicious prosecution,

intentional infliction of emotional distress, and conspiracy,

in violation of Illinois law. Specifically he accuses the de

‐

fendants of having coerced witnesses to give testimony that

the defendants (as well as the witnesses) knew to be false,

resulting in Fields’ conviction of two murders and his im

‐ prisonment for 17 years until he was acquitted in a retrial; he

later received a certificate of innocence from the court in

which he had been tried. 735 ILCS 5/2

‐ 702.

This is the defendants’ second round of appeals. Our de

‐

cision in round one sets forth the factual details relating to

Fields’ claims, 672 F.3d 505, 508–09 (7th Cir. 2012); we

needn’t repeat them. Fields accuses Wharrie of two separate

acts (one in 1985, the other in 1998) of coercing false testimo

‐

ny from witnesses, and Kelley of similar coercion in 1998.

We should clarify the terminology used by Fields to describe

his claims. He uses “coerced,” “fabricated,” and “false” tes

‐ timony interchangeably to mean testimony procured by a

prosecutor who knows it’s false. The use of the three terms

to denote the same conduct is confusing. For they mean

three different things. Coerced testimony is testimony that a

witness is forced by improper means to give; the testimony

may be true or false. Fabricated testimony is testimony that

is made up; it is invariably false. False testimony is the

equivalent; it is testimony known to be untrue by the wit

‐

ness and by whoever cajoled or coerced the witness to giveNo. 13

‐ 1195 3

it. Much testimony is inaccurate, but not deliberately so and

therefore not false or fabricated as we are using these words.

Originally the district court had dismissed, on the

ground of absolute prosecutorial immunity, only the federal

claim against Wharrie that was based on his alleged miscon

‐

duct in 1985. Fields did not appeal, but the prosecutors did,

challenging the district court’s refusal to dismiss the other

claims. Our decision in that first appellate round ordered the

dismissal of the remaining federal claims against both de

‐

fendants on grounds of absolute prosecutorial immunity.

672 F.3d at 519. The state law claims, also a subject of the

prosecutors’ appeal, remained in the case. But we didn’t dis

‐

cuss them, because we expected that with the federal claims

dismissed the district judge would relinquish jurisdiction

over the state law claims; for they were supplemental claims,

which normally are dismissed when the federal claims to

which they are supplemental drop out of the case before tri

‐

al. See 28 U.S.C. § 1367(c)(3); Brazinski v. Amoco Petroleum

Additives Co.

, 6 F.3d 1176, 1182 (7th Cir. 1993); Musson Theat

‐

rical, Inc. v. Federal Express Corp.

, 89 F.3d 1244, 1254–55 (6th

Cir. 1996); Rodriguez v. Doral Mortgage Corp.

, 57 F.3d 1168,

1177 (1st Cir. 1995). Indeed we suggested he do that. 672

F.3d at 518–19.

So the case was still alive in the district court, if barely,

when unexpectedly the district judge granted the plaintiff’s

motion to reconsider the dismissal of one of his federal

claims—Wharrie’s alleged fabrication of testimony by a wit

‐

ness during the investigation in 1985 that led to Fields’ in

‐

dictment and trial—in light of our intervening decision in

Whitlock v. Brueggemann

, 682 F.3d 567 (7th Cir. 2012). The

judge also decided to retain supplemental jurisdiction of4 No. 13

‐ 1195

several of Fields’ state law claims. By thus partially stripping

the defendants of absolute prosecutorial immunity, the

judge’s rulings precipitated this, the defendants’ second ap

‐ peal.

The claim that the district judge reinstated against Whar

‐

rie is the one concerning Wharrie’s investigation of Fields in

1985. Prosecutors, like judges, enjoy absolute immunity from

federal tort liability, whether common law or constitutional,

because of “concern that harassment by unfounded litigation

would cause a deflection of the prosecutor’s energies from

his public duties, and the possibility that he would shade his

decisions instead of exercising the independence of judg

‐

ment required by his public trust.” Imbler v. Pachtman

, 424

U.S. 409, 423 (1976); see also Gregoire v. Biddle

, 177 F.2d 579,

581 (2d Cir. 1949) (L. Hand, J.). But the absolute immunity is

only for acts they commit within the scope of their employ

‐

ment as prosecutors. Buckley v. Fitzsimmons

, 509 U.S. 259,

273–76 (1993); Thomas v. City of Peoria

, 580 F.3d 633, 638–39

(7th Cir. 2009); Pinaud v. County of Suffolk

, 52 F.3d 1139, 1147

(2d Cir. 1995). Often their employment duties go beyond the

strictly prosecutorial to include investigation, and when they

do nonprosecutorial work they lose their absolute immunity

and have only the immunity, called “qualified,” that other

investigators enjoy when engaged in such work. Buckley v.

Fitzsimmons

, supra

, 509 U.S. at 275–76. Qualified immunity

“protects government officials ‘from liability for civil dam

‐

ages insofar as their conduct does not violate clearly estab

‐

lished statutory or constitutional rights of which a reasona

‐

ble person would have known.’ Pearson v. Callahan

, 555 U.S.

223, 231 (2009) (quoting Harlow v. Fitzgerald

, 457 U.S. 800, 818

(1982)).” Messerschmidt v. Millender

, 132 S. Ct. 1235, 1244

(2012).No. 13

‐ 1195 5

Fields was not arrested until June 1985. Wharrie’s alleged

procurement of false statements from a prospective witness

in Fields’ forthcoming trial had taken place a month earlier.

The trial (the first of Fields’ two trials) took place a year lat

‐

er. Wharrie was one of the prosecutors at that trial. Though

as we said a prosecutor’s absolute immunity is limited to the

performance of his prosecutorial duties, and not to other du

‐

ties to which he might be assigned by his superiors or per

‐

form on his own initiative, such as investigating a crime be

‐

fore an arrest or indictment, Wharrie argues that he is insu

‐

lated from liability for his investigative work by our decision

in Buckley v. Fitzsimmons

, 20 F.3d 789 (7th Cir. 1994). The

plaintiff in that case, which like this one was a malicious

prosecution suit against prosecutors, claimed that at the in

‐ vestigative stage of the criminal case against the plaintiff the

prosecutors had coerced witnesses to testify against him. We

held that he could not base a legal claim on those acts be

‐

cause until the evidence obtained by the improper acts was

introduced at his trial he had not been injured and therefore

no tort had been committed. “Events not themselves sup

‐ porting recovery under § 1983 do not become actionable be

‐

cause they lead to injurious acts for which the defendants

possess absolute immunity,” id

. at 796—namely presenting

the coerced evidence at trial. Presenting evidence at trial is a

core prosecutorial function, protected by absolute prosecuto

‐

rial immunity and therefore an insuperable bar to an award

of damages in a suit for malicious prosecution against the

prosecutor.

The analysis in our Buckley decision thus rests on the

principle that there is no tort without an actionable injury

caused by the defendant’s wrongful act, 20 F.3d at 796. That

is indeed the law. See, e.g., Jackson v. Pollion

, 733 F.3d 786,6 No. 13

‐ 1195

790 (7th Cir. 2013). But the act that causes an injury need not

be simultaneous with the injury (indeed it will never be ex

‐ actly simultaneous) for the actor to be liable. Think of prod

‐

ucts liability. The defect that caused a pipe to burst and flood

your home may have been present when the pipe was man

‐

ufactured years earlier. The manufacturer would be liable

despite the lapse of time. The statute of limitations would

not have begun to run until the pipe burst and caused dam

‐

age (though if there were a statute of repose, the deadline

created by that statute may have passed). It may seem diffi

‐

cult to understand why a prosecutor who, acting in an inves

‐ tigative role before judicial proceedings against a criminal

defendant began, coerced a witness or fabricated testimony,

intending that it be used against the defendant and knowing

that it would be used against him, should be excused from

liability just because the defendant was not harmed until the

witness testified and, as a result, the defendant was convict

‐

ed and sentenced. He who creates the defect is responsible

for the injury that the defect foreseeably causes later. Nor is

the only harm that resulting from the conviction and the sen

‐

tence. In the present case, as in our recent decision in Julian

v. Hanna

, 732 F.3d 842, 847 (7th Cir. 2013), the fabrication of

evidence harmed the defendant before and not just during

the trial, because it was used to help indict him.

But consider a case in which a prosecutor, whom we’ll

call A, acting in a purely investigative role, fabricates evi

‐

dence against a suspect, but the prosecution of the suspect is

handled by a different prosecutor, B, who though knowing

that the evidence was fabricated decides to use it. And sup

‐

pose A has second thoughts about what he did, and tells B

not to use the evidence. But B goes ahead and uses it. It can

be argued that A should not be regarded as having causedNo. 13

‐ 1195 7

the use of the evidence at trial. Cf. Whitlock v. Brueggemann

,

supra

, 682 F.3d at 583–84. B is protected from suit by his ab

‐

solute prosecutorial immunity, thus leaving the victim of the

fabricated evidence without a complete damages remedy.

He would have a partial remedy, against A, if A’s fabrication

had inflicted harm against him before his trial, as by causing

him to be indicted, as in Julian v. Hanna

, supra

.

But this is not such a case because Wharrie, the alleged

fabricator of evidence against Fields, was also one of his

prosecutors at trial. Nevertheless both Whitlock and the pre

‐

sent case differ from our Buckley decision in a respect that

the panel in Whitlock (which did not question the soundness

of Buckley ) thought critical—namely that the misconduct of

the prosecutor (there was only one) in Whitlock consisted not

in coercing witnesses, as in Buckley

, but in fabricating evi

‐

dence. (So here is where the terminological distinctions sug

‐ gested earlier in this opinion bite.) Whitlock observes that

“coercively interrogating witnesses, paying witnesses for

testimony, and witness

‐ shopping may be deplorable, and

these tactics may contribute to wrongful convictions, but

they do not necessarily add up to a constitutional violation

even when their fruits are introduced at trial,” because “evi

‐

dence collected with these kinds of suspect technique, unlike

falsified evidence and perjured testimony

, may turn out to be

true.” 682 F.3d at 584 (emphasis added). The prosecutor who

was sued in Whitlock was part of an investigative team that

told witnesses what to say knowing that what the team was

telling them was false. See id

. at 571–72. This is different

from coercing a reluctant witness to say what may be true.

The point is not that coercion is legally irrelevant; far from

it—coercion (which in an extreme case could amount to tor

‐

ture) may be an essential tool in “persuading” a witness to8 No. 13

‐ 1195

fabricate testimony. The point is only that coercion per se

does not make a prosecutor acting as an investigator liable

should the coerced evidence be used to obtain a conviction

of an innocent criminal defendant. If the evidence obtained

by coercion is sound and the defendant would have been

indicted, found guilty, and sentenced, without it (though in

fact he was innocent), the only victim of government mis

‐

conduct is the witness who was coerced; and that is not

Fields.

In Buckley the plaintiff had alleged that the coerced evi

‐

dence was not only coerced, but false. But our opinion de

‐

scribed the primary victims, and the only ones with standing

to complain, as the coerced witnesses themselves. “Coercing

witnesses to speak,” we said, “rather than loosening their

tongues by promises of reward, is a genuine constitutional

wrong, but the persons aggrieved would be Cruz and Her

‐

nandez [the allegedly coerced witnesses] rather than Buck

‐ ley. Overbearing tactics violate the right of the person being

interrogated to be free from coercion. Buckley cannot com

‐ plain that the prosecutors may have twisted Cruz’s arm, any

more than he can collect damages because they failed to read

Cruz Miranda warnings or searched Cruz’s house without a

warrant. Rights personal to their holders may not be en

‐

forced by third parties.” 20 F.3d at 794–95 (citations omitted).

This is analogous to the rule that a criminal defendant will

not be heard to object to the admission against him of proba

‐

tive evidence unlawfully seized from a third party. Minneso

‐

ta v. Carter

, 525 U.S. 83, 90–91 (1998); Rakas v. Illinois

, 439 U.S.

128, 148–50 (1978).

This “tough luck” rule doesn’t apply when there is no

coerced witness but nevertheless fabricated evidence; the ev

‐No. 13

‐ 1195 9

idence might be given by a paid police informant—a com

‐ pensated witness, not a coerced one. That is the distinction

drawn in Whitlock

, and Wharrie acknowledges that if Whit

‐

lock is the law he loses his defense of absolute immunity be

‐

cause he is accused of fabricating evidence before trial; and

so he asks us to overrule Whitlock as inconsistent with our

Buckley decision. Fabrication was alleged in Buckley as well,

but as the language we just quoted from that opinion re

‐

veals, the focus was on coercion, and the primary victims,

and only victims held to have standing to sue, were the co

‐

erced witnesses.

In asking us to overrule Whitlock

, Wharrie ignores the al

‐

ternative of overruling Buckley as being inconsistent with

(the newer) Whitlock

. There’s no need to embrace either al

‐

ternative. Because the cases are distinguishable and the pre

‐

sent case falls on the Whitlock side of the line, we agree with

the district judge’s reinstatement of Fields’ claim against

Wharrie for the latter’s alleged fabrication of evidence in

1985, before Fields’ indictment and arrest.

Wharrie is asking us to bless a breathtaking injustice.

Prosecutor, acting pre

‐ prosecution as an investigator, fabri

‐

cates evidence and introduces the fabricated evidence at tri

‐

al. The innocent victim of the fabrication is prosecuted and

convicted and sent to prison for 17 years. On Wharrie’s in

‐ terpretation of our decision in Buckley

, the prosecutor is insu

‐

lated from liability because his fabrication did not cause the

defendant’s conviction, and by the time that same prosecu

‐

tor got around to violating the defendant’s right he was ab

‐ solutely immunized. So: grave misconduct by the govern

‐

ment’s lawyer at a time where he was not shielded by abso

‐

lute immunity; no remedy whatsoever for the hapless vic

‐10 No. 13

‐ 1195

tim. In Buckley

, in contrast, two victims—the coerced wit

‐

nesses—had a damages remedy, and the fact that there thus

were potential plaintiffs could be expected to have some de

‐

terrent effect against future misconduct. To extend Buckley to

overrule Whitlock would leave a victim of graver misconduct

(because coercion does not always result in fabrication of ev

‐

idence—even torture must often elicit truthful confessions)

completely unprotected.

That’s not only an offensive and indeed senseless result,

but it doesn’t jibe with the Supreme Court’s decision in Buck

‐ ley

, where we read that “the [fact that] prosecutors later

called a grand jury to consider the evidence this work pro

‐

duced does not retroactively transform that work from the

administrative into the prosecutorial. A prosecutor may not

shield his investigative work with the aegis of absolute im

‐ munity merely because, after a suspect is eventually arrest

‐

ed, indicted, and tried, that work may be retrospectively de

‐

scribed as ‘preparation’ for a possible trial; every prosecutor

might then shield himself from liability for any constitutional

wrong against innocent citizens by ensuring that they go to trial .”

Buckley v. Fitzsimmons

, supra

, 509 U.S. at 275–76 (emphasis

added, footnote omitted); see also Zahrey v. Coffey, 221 F.3d

342, 349, 354 (2d Cir. 2000); McGhee v. Pottawattamie County

,

547 F.3d 922, 932–33 (8th Cir. 2008); Moore v. Valder

, 65 F.3d

189, 194–95 (D.C. Cir. 1995). A prosecutor cannot retroactive

‐ ly immunize himself from conduct by perfecting his wrong

‐ doing through introducing the fabricated evidence at trial

and arguing that the tort was not completed until a time at

which he had acquired absolute immunity. That would cre

‐

ate a “license to lawless conduct,” which the Supreme Court

has said that qualified immunity is not to do. Harlow v. Fitz

‐ gerald

, 457 U.S. 800, 819 (1982). Wharrie’s interpretation ofNo. 13

‐ 1195 11

our decision in Buckley would place that decision in conflict

with the Supreme Court’s Buckley decision, by giving abso

‐

lute immunity to prosecutor

‐ investigators who having fabri

‐

cated evidence make sure that the evidence is used to con

‐

vict the innocent victim of the fabrication.

So Wharrie has not demonstrated an entitlement to abso

‐

lute immunity—nor to qualified immunity for the fabrica

‐

tion, either. For it was established law by 1985 (indeed long

before), when the fabrication is alleged to have occurred,

that a government lawyer’s fabricating evidence against a

criminal defendant was a violation of due process. See Napue

v. Illinois

, 360 U.S. 264, 269 (1959); Pyle v. Kansas

, 317 U.S.

213, 215–16 (1942); Mooney v. Holohan

, 294 U.S. 103, 110, 112–

13 (1935) (per curiam). It is true that the cases we’ve just cit

‐

ed involved not merely the fabrication, but the introduction

of the fabricated evidence at the criminal defendant’s trial.

For if the evidence hadn’t been used against the defendant,

he would not have been harmed by it, and without a harm

there is, as we noted earlier, no tort. But when the question is

whether to grant immunity to a public employee, the focus is

on his conduct, not on whether that conduct gave rise to a

tort in a particular case. As the Court said in Harlow v. Fitz

‐ gerald

, supra

, 457 U.S. at 819, the test for qualified immunity

is “the objective legal reasonableness of an official’s acts.

Where an official could be expected to know that certain

conduct would violate statutory or constitutional rights, he

should be made to hesitate; and a person who suffers injury

caused by such conduct may have a cause of action ” (emphasis

added)—or may not.

So notice the disjunction: the immunity depends on the

official’s acts; the existence of a cause of action depends on12 No. 13

‐ 1195

the illegality of those acts and on whether an injury results,

because, to repeat, no injury—no tort. Recall the earlier point

derived from the Supreme Court’s decision in Buckley that

without that distinction a prosecutor who in a pre

‐ prosecution investigative role fabricates evidence obtains

immunity simply by turning over the fabricated evidence to

the prosecutor, or prosecuting the defendant himself, for in

neither case is he the direct cause of the defendant’s injury

(the wrongful conviction).

It remains to consider two of Fields’ state law claims. The

first arises from the same 1985 conduct alleged of Wharrie

that we’ve been discussing. The second is false testimony

allegedly coerced by defendant Kelley in 1998, while Fields

was awaiting the retrial of his murder case.

The district court held, and both parties agree, that the Il

‐

linois rule of absolute prosecutorial immunity is the same as

the federal rule. Actually that’s not entirely clear. The last

time the Supreme Court of Illinois spoke to the issue it held

that all Illinois officials—including judges—enjoy immunity

only “from liability for error or mistake of judgment in the

exercise of their duty in the absence of corrupt or malicious mo

‐

tives .” People ex rel. Schreiner v. Courtney

, 43 N.E.2d 982, 986

(Ill. 1942) (emphasis added). That’s not absolute immunity.

But 71 years on, it is doubtful that this is still the law in Illi

‐

nois. The Illinois Appellate Court seems not to think so. See,

e.g., Frank v. Garnati

, 989 N.E.2d 319, 322 (Ill. App. 2013);

White v. City of Chicago

, 861 N.E.2d 1083, 1087–88 (Ill. App.

2006); Weimann v. Kane County

, 502 N.E.2d 373, 377 (Ill. App.

1986); People v. Patrick J. Gorman Consultants, Inc.

, 444 N.E.2d

776, 779 (Ill. App. 1982); Coleson v. Spomer

, 334 N.E.2d 344,

347 (Ill. App. 1975). And the state’s supreme court has notNo. 13

‐ 1195 13

called a halt to the trend in the intermediate appellate court.

E.g., Frank v. Garnati

, 996 N.E.2d 12 (Ill. 2013) (denying ap

‐ peal). Although some cases recite what sounds like the rule

from Courtney

, in none was immunity denied on the ground

of bad faith. See, e.g., Aboufariss v. City of DeKalb

, 713 N.E.2d

804, 812 (Ill. App. 1999).

Since, as just explained, Illinois may not even have abso

‐

lute prosecutorial immunity, and since Wharrie does not

claim that if Illinois does have it, it is more absolute than the

federal rule, and since we’ve already held that Wharrie is not

entitled to absolute immunity from being sued on the federal

claims against him, there is no basis for giving him absolute

prosecutorial immunity from the state law claims for the

same conduct alleged as a violation of Illinois tort law.

Kelley’s alleged procurement of false testimony took

place in 1998, in preparation for Fields’ second trial and

therefore in the midst of his prosecution. Once prosecution

begins, bifurcating a prosecutor’s role between investigation

and prosecution is no longer feasible. If in the course of a tri

‐

al a prosecutor were to urge one of his witnesses to lie, it

would be arbitrary to describe this as an investigative act

separate from prosecution; the prosecutor’s conduct would

have been “intimately associated with the judicial phase of

the criminal process,” and he would therefore be entitled to

absolute immunity. Imbler v. Pachtman

, supra

, 424 U.S. at 430;

see also Smith v. Power

, 346 F.3d 740, 742 (7th Cir. 2003);

Warney v. Monroe County

, 587 F.3d 113, 120–21 (2d Cir. 2009);

Genzler v. Longanbach

, 410 F.3d 630, 638 (9th Cir. 2005) (inves

‐ tigation “bound up with the judicial process”). It would be

unlike the case discussed in the Supreme Court’s Buckley de

‐

cision of prosecutors held by the Court not to be entitled to14 No. 13

‐ 1195

absolute immunity for fabricating evidence “during the ear

‐ ly stages of the investigation” when “police officers and as

‐

sistant prosecutors were performing essentially the same in

‐ vestigatory functions.” Buckley v. Fitzsimmons

, supra

, 509 U.S.

at 262–63.

The district judge ruled after our first decision and con

‐ sistently with the analysis just presented that Wharrie had

absolute prosecutorial immunity under state as well as fed

‐

eral law for his allegedly procuring false testimony in antici

‐ pation of Fields’ retrial in 1998, and Fields has not appealed

that ruling. We cannot understand on what basis the district

judge distinguished the identical conduct alleged against

Kelley in the same stage of the same proceeding against

Fields, and so denied his motion to dismiss the claim against

him. True, Kelley may not yet have been “officially” part of

the trial team at Fields’ retrial, but he was already function

‐ ing as part of the team and that’s all that matters, as we not

‐

ed in our first opinion. See 672 F.3d at 511–12, 515–16; see

also Van de Kamp v. Goldstein

, 555 U.S. 335, 343–45 (2009).

And so, to summarize, the denial of Wharrie’s motion to

dismiss the federal and state claims against him relating to

the fabrication of false statements from a witness during the

investigation in 1985 is affirmed, but the denial of Kelley’s

motion to dismiss the 1998 state law claims against him is

reversed with instructions that the district court reconsider

that denial in light of the analysis in this opinion.

A FFIRMED IN P ART

, R EVERSED IN P ART

, AND R EMANDED

.No. 13-1195 15

S Y K E S

, C i r cui t Judge

, concu rr i ng i n part and di ssen tin g i n

part. I agr ee that F ie lds’s clai ms again st Kelley are barred by

absolute i mmu ni ty

. See Maj or i ty op. a t 1 2

– 1 4. In our earlier

opin i on i n this ca se

, w e held that Wharrie i s absolutely

i m m u n e f r o m s u i t o n s i m i l a r a l l e g a t i o n s o f

mi scondu ct—speci fi cally , that Whar rie coerced Earl Hawkin s

to falsely i mpli cate Fields i n the 1984 murders of T alman

Hi ckman and Jerome Smi th duri ng the i nterv al betw een

Fields’s fi rst and second tr i als, whi le hi s postconvic tion

proceedings w e r e ongo i ng and i n anti ci pation of ret rial. See

Fiel ds v

. Wharrie (“ Fiel ds I ”), 672 F .3d 505, 511–16 (7th Ci r

. 2012).

The allegations again st Kelley are materially i ndi sti ngui shab le

from the allegations again st Wharrie stemmi ng from thi s tim e

period. The only di fference is that Kelley i s accus ed of i nduc

i ng another wi tness, Randy Langston, to make a false i denti fi

cati on of Fields

. But thi s act, li ke Wharrie’s alleged coerci on of

Hawki ns, took place du ring t he judi ci al phase of t he cri mi nal

process and w as func tionall y p ro secu tor i al. So Kelley

, li ke

Wharrie, i s absolutely i mmu ne from sui t for thi s conduct. See

V an de Kamp v

. Goldstei n

, 5 5 5 U.S

. 335, 340–45 (2009); Imbler v

. Pachtman

, 424 U.S. 409, 430–31 (1976); Fiel ds I

, 6 7 2 F .3d at

510–15.

Illi no is a p parently follows the federal law on absolute

i mmu ni ty

, see Frank v

. Garnati

, 989 N.E.2d 931, 934 (Ill. App. Ct.

2013); White v

. City of Chicago

, 861 N.E.2d 1083, 1088–94 (Ill.

App. Ct. 2006); the parties d o not arg ue other wi se. Accordi ngly

, I jo i n the major i ty opin i on to the ext ent that i t rev erses

the di stric t court’s or der permi tting the state-law clai ms

again st Kelley t o pro ceed. See Maj or i ty o p. at 12–14.

Unlik e my colleagues, how ev er

, I w ould also rev erse the

di stric t court’s deci si on to reins ta te the § 1983 and state-law

clai ms against Wharrie for hi s conduc t i n 1985, before Fields

w as charged. Fields alleges that duri ng the i nv esti gation of the16 No. 13-1195

Hi ckman and Smi th murders, Wharrie coerced Anthony

Sumner

, a fellow gang member

, to falsely i mpli cate hi m i n the

cri mes. Fiel ds I

, 672 F .3d at 508–09

. As w e explain ed i n our

earlier opin i on, Fields w as convic ted of kill i ng Hic k ma n and

Smi th based i n part on Sumner’s testim ony

, but he w on a new

tr i al for unrelated reasons (the tr i al judge had been bri bed),

w as acqui tte d on ret rial, and obtained a certifi cate of i nnocenc e. Id. at 509. Hi s complai nt seeks damages under 42 U.S.C.

1

§ 1983 for violati on of hi s ri ght t o due pro cess ; he also assert s

sev eral state-law t heories o f liabi li ty for the wrongful convic

tions

. 2

T o the ext ent that the § 1 9 8 3 a nd state-law clai ms again st

Wharrie are based on hi s alleged coerci on of the false statement fr o m Sumner

, absolute i mmu ni ty does not apply

. That

act too k place before ther e w as probable caus e to arr est

Fields —that i s, before the judi ci al process began—and w as not

func tionally prosecutor i al, so Wharrie cannot cl a i m to be

abs o l ut ely i mmu ne from sui t for damages. Buckley v

.

Fitzsimmons

, 509 U.S. 259, 273–76 (1993); Buckley v

. Fitz simmons

,

20 F .3d 789, 794 (7th Ci r . 1994).

But Wharrie r emai ns pro tected by quali fi ed i mmu ni ty

, see

Buckley

, 509 U.S. at 275–76, whi ch “i s av ai lable un less the ac ts

violated ‘clearly establi shed’ consti tutional norms,” Buckley

,

Sumner recanted his testimo ny after Fie l ds’s fi rst tri al. See Fields v

. Wharrie 1

(“ Fields I ”)

, 67 2 F .3d 50 5, 51 7 (7 th Ci r

. 20 12 ). The statu s of Fie l ds’s certi fi cate

of i nnocence i s i n fl ux

. The I l l i no i s Appe l l ate Co urt rev ersed the ci rcui t

cour t’s i ssua nce of i t, see People v

. Fields

, 95 9 N.E.2 d 11 62

, 11 63 (Il l

. App. Ct.

20 11 ), and as far as I can tel l

, pro ceed i ngs on remand remain pendi ng i n

Co ok C ounty Ci rcui t Co urt.

Fie l ds sued sev eral Chic ago pol i ce of fi cers i n add i t i o n t o the tw o 2

pro secutor s, b ut this i nterl ocutor y a p p ea l, like the earli er one, conce rns onl y

the pro secutor s’ cl aims of ab sol ute and qua l i fi ed i mmun i ty

.No. 13-1195 17

20 F .3d at 794. The Supreme Court ’s deci si on i n Buckley

a d d re s sed only absolute prosecutor i al i m m u n i ty ; th e C ou rt d i d

not hav e occasi on to decide the quali fi ed-i mmu ni ty questi on.

That i s, the Court di d not deci de w h ether coerci ng or other wi se

i nduc i ng a wi tness to gi v e a false statement du ring a cri mi nal

i nv esti gation violates clearly establi shed consti tutional rights.

But w e deci ded that v ery questi on when the Supreme Court

ret urned Buckley to t hi s court for furt her pro ceedi ngs.

In our deci si on on remand i n Buckley

, w e held that coerci ng

or other wi se soli ci tin g a wi tn e s s to falsely i ncri mi nate a sus pect

duri ng a cri mi nal i n v e s ti gation does not violate any establi shed

consti tutional rights—except perhaps the rights of the wi tness

who i s coerced. Id. at 794–97. If t he suspect i s charged, then

fai li ng to di scl ose the false statem ent’s corr upt or i gin s at tr i al

violates hi s due-process right to a fai r t rial under the rule of

Brady v

. Maryla nd

, 373 U.S. 83 (1963), and knowi ngly usi ng

perj ured testimony to conv i ct hi m i s a more gener al violati on

of hi s due-process right to a fai r tr i al. See Buckley

, 20 F .3d at

794–95; see also Albright v

. Oliver

, 510 U.S. 266, 273 n. 6 (1994)

(plurali ty opin i on); Napue v

. Illinois

, 360 U.S. 264, 269 (1 959);

Moo ney v

. Holohan

, 294 U.S. 103, 1 12 (1935); Serin o v

. Hensl ey

,

735 F .3d 588, 592 (7th Cir

. 2013); Newsome v .McCabe

, 256 F .3d

747, 750–52 (7th Ci r

. 2001). But a prosecutor who co mmi ts

these acts or omi ssi ons at tr i al is func tioni ng qui ntessenti ally

as a prosecutor

, so under w ell-establi shed i mmu ni ty law

, he i s

absolutely i mmu ne from sui t for damages under § 1983. V an de

Kamp

, 555 U.S

. at 3 4 0

– 4 5 ; Imbler

, 424 U.S. at 430–31; Fiel ds I,

672 F .3d at 510–15; Buckley

, 20 F .3d at 794–96.

In contrast, a prosecutor who coerces or ot h erwi se procures

a false statement from a wi tness duri ng an i nv esti gati on

, b e f or e

probable caus e exis ts and the judi ci al process has begun, i s not

prot ected by absolute i mmu ni ty

, but he is entitled to quali fi ed

i mmu ni ty becau se his conduc t does not violate clearly estab-18 No. 13-1195

li shed consti tutional rights. Buckley

, 20 F .3d at 7 9 4–98. Dueprocess rights are not i mpli cated at thi s stage; they ari se later

,

when judi cial proceedings are i nsti tuted. Id. Accordi ngly

,

ext r a cti ng a false statement from a wi tness duri ng a cri mi nal

i nv e sti gation i s not i ndependently acti onable as a consti tutional violati on, and Buckley holds that “ev ents not themselv es

supp or tin g recov ery [agai nst prosecutor s] under § 1983 do not

beco m e a cti onable becau se they lead to i njurious acts for whi ch

[the prosecutor s] poss ess ab solute i mmu ni ty .” Id. at 796.

In our earlier opin i on i n thi s case, w e r e l ied on thi s

quali fi ed-i mmu ni ty holdi ng from Buckley as an alter nati v e

basi s for fi ndi ng Wharrie and Kelley i mmu ne from sui t under

§ 1983 for their soli ci tation of fa l se st atements from Hawki ns

and Langston. Fiel ds I

, 672 F .3d at 516–18. C it ing Buckley

, w e

noted that “fabri cati ng evidenc e, i nclu di ng in the form of

testim ony

, i s not an acti onable consti tutional wrong.

... The

co ns t it uti onal violati on occurs when the means by whi ch the

testim on y w a s acqui red are not di scl osed at tr i al—or when

other i nformation t hat i mpeach [es ] the testim ony’s reliab i li ty

i s not shared wi th the d e fe nse.” Id. at 516–17. Our alter nati v e

holdi ng i n Fiel ds I follow ed the rule, establi shed i n Buckley

, that

ev en i f a prosecutor partici pates i n sec ur ing a false statement

from a wi tness duri ng a cri mi nal i nv esti gation, hi s “absolutely

imm unized prosecutor i al deci si on to proceed to tr i al and

i ntro duce the [wi tness’s] testim on y ” fo recloses sui t again st

hi m; there i s no i ndependent l y cogni zable due-process clai m

for hi s i nv esti ga t iv e mi scondu ct. Id. at 517 (di scu ssi ng 3

Wharrie’s quali fi ed i mmu ni ty); see also id. at 517–18 (di scu ssi ng

Kelley’ s quali fi ed i mmu ni ty).

There might b e an actio nab l e Fourth Amendment cl aim fo r false arrest, b ut 3

Fie l ds has not made that claim her e.No. 13-1195 19

Three months after w e i ssu ed our opin i on i n Fiel ds I

, a new

deci si on of thi s court, Whitlock v

. Brue g g e m an n

, 682 F .3d 567

(7th Ci r

. 2012), unsettled Buckley (and by ex tensi on, uns ett led

Fiel ds I as w ell), whi ch led the di stric t court to do an about-face

on remand i n thi s case. Wharrie’s new appeal requires us to

deci de whether Whitlock and Buckley can be reconci led. I thi nk

the answ er is plai nly “no.”

As my colleagues hav e noted, Whitlock drew a di sti ncti on,

for quali fi ed-i mmu ni ty purposes, betw een a prosecutor who

co erci v ely i nterr ogat es wi tnesses and a prosecutor wh o

fabri cates evidenc e. See Maj or i ty op. at 7–9. Whitlock observ ed

that coerci on and uns av or y tactics li ke payin g for testim ony

and wi tness shoppi ng “may be d e plorable, and

... may

contribu te to wrongful convic tions

, but they do not necess arily

add up to a consti tutional violati on ev en when their frui ts are

i ntro duced at tr i al

... [bec ause] [e]vi dence collected wi th these

kin ds of sus pect techniq ues, unli ke falsi fi ed evidenc e and

perj ured testim ony

, may t ur n o ut to be t rue.” 682 F .3d at 584.

Thi s propo sed di sti ncti on betw een “coerced” and “fabri cated”

evidenc e w as the li nchp in fo r di sti ngui shi ng Buckley and

permi tting the clai m again st the pro se cu tor i n Whitlock to

proceed. The Whitlock panel thought the prosecutor s i n Buckley

had been accused of coerci ng wi tnesses and usi ng other

sus pect tactic s but w ere not alleged to hav e fabri cated evidence, and on that basi s di sti ngui shed the cas e. Id. at 584–85.

Regr ett ably

, that w as a mi stake. In fact, both Buckley and

Whitlock i nv olv ed allegations that p r osecutors had coerced,

cajoled, pai d for

, or ot h e rw i se soli ci ted falsified statements from

wi tnesse s—in other w or ds, they fabricated evidenc e. Indeed,

Buckley repea t edly refer s to allegations that prosecutor s

coerci v ely obtained “false i ncu lpator y stat e me nts” from

wi tnesses and “fabri cated” or “manuf actured” testim ony and20 No. 13-1195

evidenc e from an exper t. 20 F .3d at 794–95. So reg ardless of 4

whether Whitlock ’s propo sed di sti ncti on betw een “coerced”

and “fabrica t e d” wi tness statements i s v ali d i n theor y—and

makes a di fference i n the consti tutiona l analysi s—i t si mply

w as not present as a factual matter and there fore cannot

prov i de a basi s on whi ch to di sti ngui sh Buckley from Whitlock

. 5

Mo re speci fi call y

, S tephen Buckl ey all eged tha t pro secutor s co erce d two 4

witnesses to falsel y i mpli cate him duri ng a murde r i nv esti gation. See

Buckley v

. Fitzsimmo ns

, 20 F .3d 78 9, 79 4– 96 (7 th Ci r

. 19 94 ). He also all eged

tha t the pro secutor s paid an expert wi t ne ss fo r fo rensic evidence—a

b oo tpri nt i denti fi catio n—tha t they kne w w as false. Id

. at 79 5– 96

. The

pro secutor s i ndic ted and tri ed Buckl e y f o r murder; the jury deadl ocke d,

and whil e Buckl ey w as aw aiti ng retri al, someo ne el se c o nfessed to the

cri me. See Buckley v

. Fitzsimmo ns

, 50 9 U.S

. 25 9, 26 4 (1 99 3)

. W e held tha t the

pro se c u t o r s w ere entitl ed to qua l i fi ed i mmun i ty fo r their pre- charging

misco nduct b ecause the solicitation o f f alse e v i dence—by wha tev er device

(whether coe r c i o n or paymen t)—do es not v i ol ate cl early estab l i shed

consti tutio nal ri ghts; the use of the false evidence at tri al may hav e v i ol ated

Buckl ey’s due- pro cess ri ght to a fair tri al, b ut the pro secutor s w ere

ab sol utel y i mmun e f or that misconduc t. Buckley , 2 0 F .3d at 79 4– 97

.

The facts of Whitlock w ere mat eri all y i denti cal. There, the pl aintif fs

all eged tha t a witness had b een coe rced to giv e a false statem ent i mpli cating

them i n a do ub l e murder and tha t another witness falsel y i ncri minated

them after b ei ng pl i ed with money and alco hol

. See Whitlock v

. Brueggema nn

,

68 2 F .3d 56 7, 57 2 (7th Cir . 201 3) . They w ere convicted b ased i n part on the

false testimo ny of these witnesses, and after their convicti ons w ere

ov erturned (ba sed on Brady v i ol atio ns), they sued the pol i ce of fi cers and the

pro secutor who we re i nv ol v ed i n the i nv esti gation and pro secuti on. As I

hav e noted

, i n rej ecti ng the p r o secutor ’s cl aim of qua l i fi ed i mmun i ty

, the

Whitlock panel di stingui shed Buckley b y drawing a di stinc t i o n b etw een

coe rced and fab ri cated evidence, apparently ov erl oo king the fact tha t b oth

cases inv ol v ed al l egatio ns of coe rci on and fabricatio n.

Judge Kennell y

, who i s han dl i ng t hi s case i n the tri al cour t, saw the 5

pro b l em i mmediatel y

. Al though he fo l l owed Whitlock b ecause i t i s the l ater

deci ded case, he poi ntedl y n ot ed tha t “[ b ]o th the def endants i n Whitlock and

the def endants in Buckley [] w ere all eged to ha v e coerc ed false incul patory

(co ntinued. ..)No. 13-1195 21

Y et my colleagues perpet uat e the di sti ncti on here. See

Maj or i ty Op. at 2–3, 7–9. I appreci ate the force of stare deci si s;

w e should tr y to harmoni ze the tw o cases i f w e ca n. W i th

respect, how ev er

, harmoni zation i s i mpo ss i ble. Whitlock and

Buckley are factually i ndi sti ngui shab le and l e gally i rr econci lable. They cannot both b e the law

. W e mus t dec i de whi ch one

i s correct. 6

(. ..co ntinued) 5

statem ents fro m witnesses.

... Thus there i s no apparent factual di stincti on

b etw een the underl ying fab ri catory conduc t i n Whitlo c k and tha t i n

Buckley []. ” Fields v

. Ci t y o f Chicag o

, No. 10 C 11 68

, 20 12 WL 67 05 79 0, at *5

(N.D. Il l . Dec. 26 , 2 01 2)

.

My col l eagues hav e acknowled ged tha t b oth Whitlock and Buckley in v olv ed 6

pr o se cutor s who w ere all eged to hav e fab ri cated evidence duri ng an

i nv esti gation. See Majo ri ty op. at 8. They maintain tha t the cases can stil l b e

di stingui shed b eca u se “the fo cus [i n Buckley ] w as on coe rci on, and the

pri mary v i cti ms, and onl y v i cti ms held to hav e stan di ng to sue, we re the

coe rced witnesses.” Id

. at 9. They read Wh i t l o c k as hol di ng tha t Buckley’ s

“ ‘ tough l uck’ rul e do esn’t apply when there i s no coe rced witness b ut

nev erthel ess fab ri cated evidence; the e vi d e nc e might b e giv en b y a paid

pol i ce i nfor man t—a compensated wi tness, not a co erce d o ne.” Id

. at 8– 9.

There are sev eral pro b l ems with this ana l ysi s. Fir st, our deci sio n i n

Buckley had nothi ng to do with the stan di ng of the coe rced witnesses; w e

mentio ned this poi nt onl y to explain tha t although the witnesses might

hav e a cl aim fo r v i ol atio n of their consti tutio nal ri ghts duri ng the i nv esti gatio n, Buckl ey—the onl y pl aintif f i n the case—did not. See Buckley

, 20 F .3d at

79 4– 97

. Seco nd

, i n straini ng to maintain Whitlock ’s di stincti on b etw een

coe rced and fab ri cated evid ence, my c ol l eagues conti nue to di sregard the

mat eri al factual i denti ty b etw een Buckley and Whitlock

— b ot h c a s es in v olv ed

all egatio ns o f p r e

- charging fab ri catio n of evidence, some of which w as

all egedl y coe rced

. See supra n.4. Finall y

, my c o l l eagues do not explain the

consti tutio nal b asis fo r the coe rci on/f ab ri catio n di stincti o n. I t’s not cl ear

why i t mak es a d i ff e r e nce i n the qua l i fi ed- i mmun i ty ana l ysis, which ask s

whether the p re-c harging misco nduct v i ol ates estab l i shed consti tutio nal

ri ghts.22 No. 13-1195

For my part , I think Buckley i s correct and Whitlock should

be r econsi dered. Becaus e mi ne i s t he mi nority v i ew here, any

reconsi derat i on of Whitlock mus t aw ai t a petiti on for rehear i ng

en banc

, whi ch Wharrie may ch o o se to pursue or foreg o. For

the recor d, I’ll bri efly sketch the conceptual di ffi culty Whitlock

has int ro duced, whi ch I beli ev e w arr ants the full court’s

atte nti on.

I hav e already described Buckley’ s quali fi ed-i mmu ni ty

holdi ng, whi ch w a s and remain s sound. Whitlock rej ected

quali fi e d i m m u ni ty for a si mi larly si tuated prosecutor by usi ng

common-law caus ation prin ci ples to fi nd an acti onable

consti tutional violati on where one di d not other wi se exis t. I do

not ag ree with thi s dev elopment inour ci rcui t’s law

.

As I’v e explain e d

, Buckley contai ns tw o i mport ant prin ci

ples of i mmu ni ty law that apply i n sui ts allegin g prosecutor i al

mi scondu ct: (1) a p r o se cutor’s use of fabri cated evidenc e at

tr i al may be acti onable as a violati on of the defen d a nt ’s right

to due process—und er the rubric o f B r ady or perhaps more

gener ally as a violati on of the right t o a fai r tr i al—but the

prosecutor i s absolutely i mmu ne from sui t under Imbler and

relat ed cases

, see 20 F .3d a t 7 9 4

– 9 5; and (2) a prosecutor ’s

fabri cati on of evidenc e again st a sus pect duri ng an inv esti gation i s cov ered by quali fi ed imm uni ty becau se i t doesn’t

violate clearly establi shed consti tutio na l rights, see id. at

794–98. Whitlock ’s i nnov ation i s to use common-law caus ation

analysi s to eli mi nate the effect of both forms of i mmu ni ty

. The

panel held that “[t]he acti ons of an offi ci al who fabri cates

evidenc e that later i s used to depriv e someone of li berty can be

both a but-for and p r o x i mate caus e of the due process violation.” Whitlock

, 682 F .3d at 583. 7

Al though i t’s not entir el y cl ear

, t he due- pro cess v i ol atio n to which 7

(co ntinued. ..)No. 13-1195 23

As appli ed to a prosecutor

, thi s reasonin g ci rcumv ents both

quali fi ed and absolute i mmu ni ty

. Both i mmu ni ties are w ell

establi shed and i mport ant. See V an de Kamp

, 555 U.S. at 341–43

(abs olute i mmu ni ty); Harlow v

. Fitzgerald

, 457 U.S

. 8 00, 818

(1982) (quali f i e d i m m u n i ty ) ; I mb ler

, 424 U.S. at 424–26 (abs olute

i mmu ni ty). Absolute i mmu ni ty can someti mes produce harsh

results, but i t has long been th o ug ht ne cess ary to encourage

and prot ect the vigoro us perfor manc e of the p ro secu tor i al

func tion. Se e V

an d e Kamp

, 555 U.S. at 341–43; Imbler

, 424 U.S.

at 424–26.

In a shorthand v er sio n, the rule announc ed i n Whitlock i s

basi cally thi s: A prosecuto r who falsi fi es evidenc e duri ng an

i nv esti gation violates no clearly establi shed co nsti tutional

rights and thus has quali fi ed i mmu ni ty from sui t ( see Buckley ),

but his conduc t i s nonetheless acti onable as a non-i mmu ne

sub si di ary “caus e” (both bu t-for and prox i mate) of a dueprocess violat io n t hat occurs later

, when the prosecutor

i ntro duces the falsi fi ed evidenc e at tr ia l—ev en though the

prosecutor i s absolutely i mmu ne from sui t for the due-process

v io l a t i on. In other w or ds, the only conduc t that can possi bly

(. ..co ntinued) 7

Whitlock refe rs can onl y b e a v i ol atio n of the pro cedur al ri ght to a fair tri al.

That much i s i mpli ci t i n the context of the case and the content of the

opi nio n, which do es not address the more compl i cated and unsettled

questio n whether the Due Proc ess Cl ause pro v i des a sub stan tiv e ground of

pro tecti on aga i nst mali ci ous pro secuti on. See Albright v

. Oliver

, 51 0 U.S

. 26 6,

27 1– 74 (1 99 4) (“ Where a part ic u l ar Amendment pro v i des an expli ci t textua l

source of consti tutio nal pro tecti on aga i nst a particul ar sort of gov ernment

b ehav i or

, tha t Amendment, not the more generali zed noti on of ‘sub stan tiv e

due pro cess,’ must b e the guid e f o r ana l yzing these cl aims.” (pl urali ty

opi nio n) (i nternal quotatio n marks omi tted)) ; see also id. at 27 5– 76 (Sc ali a, J.,

concur ri ng); id. at 28 3– 86 (Kennedy

, J., concur ri ng); Serin o v

. Hensley

,

7 3 5 F

. 3 d 58 8, 59 2– 94 (7 th Ci r

. 20 13 ); Julian v

. Hanna

, 73 2 F .3d 84 2, 84 5– 48

(7 th Ci r . 2 01 3) ; Newsome v . McCabe , 2 56 F .3d 74 7, 75 0– 53 (7 th Ci r . 2 00 1)

.24 No. 13-1195

form the basi s of a consti tutional clai m—the prosecutor ’s tr i al

conduc t—is fully prot ected by absolute i mmu ni ty

, but the

prosecutor can be sued anyw ay

, based on t he ca usal li nk

betw een his nonactionable i nv esti gativ e conduc t and hi s

immu nized tr i al conduc t.

Asi de from destabi li zi ng i mmu ni ty law

, thi s chai n of

reasonin g ov erlo oks some basi c di fferences betw een commonl aw and consti tutional tor ts. Common-law c a u s a ti on ru l e s f l ow

from the nature of duty and breach i n tor t law

. Ever y one has

a ge ne r a l t or t duty to refrain from doin g an act or omi tting a

precauti on that creates a fo reseeable, unreasonable ris k of

harm to other persons or proper ty

. See gen erally R E S T

A T E M E N T

(S E C O N D ) O F T O R

T S § 282 (1965) (defi ni ng negli gence). The duty

i s broad and undi fferentiated and i s ow ed to ev ery one at all

tim es, and any one who breaches i t i s li able for harms factually

and prox i mately caused.

Constituti on a l rights—and the corr espondi ng duti es

i mposed on governmental actor s—are not li ke the gener ali zed

rights and duti es i mposed by negli gence law

. They a re

i mpli cated at speci fi c tim es a nd i n speci fi c ci rcums tances. As

relev ant h ere, Fi elds’s due-process rights came i nto play after

he w as charged ; t he B rady di scl osure duty i s an aspect of the

right to a fai r tr i al, as is the broader right not to hav e the tr i al

process sub v ert ed by the k nowi ng i ntro ducti on of falsi fi ed

ev ide nc e

. See Serin o

, 735 F .3d at 592; Newsome

, 256 F .3d at

751–52; Buckley , 20 F .3d at 796–97. So Wharrie’s act of ext racti ng a false statemen t from Sumner duri ng the i nv esti gativ e

phase of the case di d not violate Fields ’s due-process rights. A

prosecutor who commi ts thi s kin d of mi scondu ct has behav ed

deplorably but has breached no consti tutional duty and thus

commi tte d no consti tutional w ro ng.

Common-law ca us ation analysi s cannot be used to tr ansform an act that does not violate the Constituti on i nto one thatNo. 13-1195 25

does. That, in e ss e nce, i s the effect of Whitlock

. It turns the

prosecutor ’s nonacti onable i nv esti gativ e mi scondu ct i nto an

acti onable consti tutional wrong by recharacter i zi ng i t as a

sub si di ary “caus e” of a due-process violati on that occurs later

at tr i al but i s abs olutely imm uni zed.

T o help ex plai n and justif y Whitlock

, my colleagues analogize to product-li abi li ty caus ation r ules. See Maj or i ty o p. at 6.

I thi nk the analogy exposes a key co nceptual problem i n the

analysi s. The pi pe maker who negli gently manuf actures a pi pe

breaches hi s gener al tor t duty to refrain from acts that create an

unreasonable ri sk of harm to persons or proper ty

. The breach

may not caus e harm unti l the pi p e bur sts, and the statute of

li mi tations does not begi n to run unti l the harm occurs. But the

br e a ch of duty occurs at the poin t of negli gent manuf acture,

and the manuf acturer wi ll be li able for harm that flows

caus ally from that breach. (In the law of stric t product li abi li ty

,

the manuf acturer’ s sale of the defecti v e pi pe start s the caus al

chai n, but t he basi c poin t about the or der of analysi s—

duty/breach/caus e—remain s the same.)

Section 1983 does no t i mpose an analogo us gener ali zed

duty on governmental agents to refrain from puttin g people at

an unreasonable ris k of harm. Rather

, § 1983 creates a caus e of

acti on f or damages again st state and local offi ci als who i nfli ct

speci fi c depriv ations of federal right s. S e e 42 U.S.C. § 1983

(creatin g a caus e of acti on again st any offi ci al who, under color

of state law

, “sub jects, or caus es to be sub jected, any ci tizen of

the Uni te d St a te s or ot her person wi thi n the jurisdi cti on there of

to the depriv ation of any rights, privi leges, or imm un it i es

secu red by the Constituti on and laws”). It i s w ell understood

that § 1983 “ ‘i s no t it se lf a source of sub stanti v e rights,’ but

merely prov i des ‘a method for vind i ca t ing federal rights

el se wh ere conferred.’ ” Albright

, 510 U.S. at 811 (plurali ty

opin i on) (quo tin g Bak er v

. McCollan

, 443 U.S. 137, 144 n.326 No. 13-1195

(1979))

. In other w or ds, the Constituti on supp li es the rights

and duti es and other wi se fi lls i n the c ontent of a § 1983 clai m.

So “[t]he first ste p i n any suc h clai m is to i denti fy the speci fi c

consti tutional ri ght alleg edly in fri nged.” Id

.

Here, the right allegedly i nfri nged i s the due-process right

to a fai r tr i al, but under t he rationale of Whitlock

, the asserted

act of i nfri ngement occurred befor e any fai r -trial duty aro se. T o

put the problem colloqui ally

, Whitlock puts the caus ation cart

before the duty horse. A prosecutor who coe rces a wi tness t o

fals e ly i ncri mi nate a sus pect duri ng a cri mi nal i nv esti gation

breaches no consti tution a l duty ow ed to the sus pect. If the

sus pect i s charged, then sub or ni ng perj ury again st hi m at tr i al

w ould violate hi s due-process rights—so too w ould wi thholdi ng evidenc e about the coerci on of the wi tness. But t he se are

tr i al rights, and a prosecutor ’s v i olation o f t hem is absolutely

i mmu ni zed. The prosecutor ’s i nv esti gativ e mi scondu ct cannot

i ndependently supp or t a due-process clai m; t hat conduc t

violates no due-process duty

.

I t is t r ue, as my colleagues hav e noted, that the Supreme

Court sai d the followi ng i n Buckley :

A prosecutor may no t shi eld hi s i nv esti gativ e

w or k wi th th e aegis of absolute i mmu ni ty

merely becau se, after a sus pect i s ev entually

arr ested, i ndi cted, and tr i ed, t hat w or k may be

ret ro specti v ely descri

bed as ‘prepar at i on’ for a

possi ble tr i al; ev e ry prosecutor mi ght then shi eld

hi mself from l iabi li ty for any consti tutional

wrong again st i nnocent ci tizens by ensuri ng that

they g o to tr i al.

Buckley

, 509 U.S. at 276. Th is pass age i n the Court ’s opin i on

si mply driv es home t he poin t that prosecutor s are not protected by absolute i mmu ni ty for their p r e-chargi ng mi scon-No. 13-1195 27

duct. That muc h i s clear from the v ery next sente nce: “When

the func tions of prose cu t o r s and detectiv es are the same, as

they w ere here, the i mmu ni ty that prot ects them i s also the

same.” Id. That’s an obvious refer ence to quali fi ed i mmu ni ty

.

It’ s w or th repeat i ng that the Court sent Buckley back t o us

to d e c i d e th e qu a l i fi ed-i mmu ni ty questi on. W e unamb i guously

h e l d— in 1994 —that falsi fyi ng e vi d e n c e d u ri n g a n i n v e s ti ga ti on

does not violate establi shed c onsti tutional r i ghts, and “ev ents

not th e mselv es supp or tin g recov ery [agai nst prosecutor s]

under § 1983 d o not become acti onable becau se they lead to

i njurious acts for whi ch [the prosecutor s] possess absolute

i mmu ni ty

.” Buckley

, 20 F .3d at 796.

Di rectly contradic tin g that clear holdi ng of Buckley

, my

colleagues now conclu de that “i t w as establi shed law by 1985

,

when the fabri cati on is alleged to hav e occurred, that a

government lawy er’s fabri cati ng evid ence again st a cri mi nal

defendant w as a v io l a t i on of due pr ocess.” Maj or i ty op. at 11

(e mphas i s added). For thi s propo si tion they ci te Napue v

. Illinois

, 360 U.S. 264 (1959); Pyle v

. Kansas

, 317 U.S. 213 (1942);

and Moo ney v . Holohan

, 294 U.S. 103 (1935), but these cas es do

not hold that fabri cati ng evidenc e violates due process. Rather

, they hold that the use of falsi fi ed evidenc e or perj ured testimony at tr i al violates the d e fendant’ s due-process right to a

fai r tr i al a nd i s gr ounds for habeas or other postconvic tion

relief. See Napue

, 360 U.S. at 269; Pyle

, 317 U.S. a t 2 1 5 –16;

Moo ney

, 294 U.S. at 112–13. As my colleagues hav e noted, the

quali fi ed-i mmu ni ty inqui ry asks wh ether a reasonable publi c

offi ci al could be expected to know that the conduc t i n questi on

violates consti tutional rights. See Maj or i ty op. at 11 (ci tin g

Harlow

, 457 U.S. at 819). The speci fi c conduc t i n questi on

here—ind uci ng a wi tness to tell a li e duri ng an i nv esti gatio n— is clear ly wrong, but i t does not violate any consti tutional ri ghts.28 No. 13-1195

So although my colleagues hav e fo r mally left Buckley i n

place, the core of the opin i on—i ts quali fi ed-i mmu ni ty

holdi ng—i s eff ecti v ely overruled.

Fin ally

, a bri ef comment on my colleagues’ assert io n t hat

adherin g to Buckley w ould w or k a “breatht akin g i njusti ce” and

produce “an offensi v e and i ndeed sens eless result.” Id. at 9, 10. 8

These are stro ng w or ds. No one doubts that wrongful convic

tions are unjust; a person who i s convic ted and puni shed for a

cri me he di d not commi t has a se r io us moral clai m to a

compens ator y remedy

. Usually the law pr ov i des one, commonly i n the form of a B r ady clai m again st the offi cers who

w ere i nv olv ed i n supp ressi ng exculpator y evidenc e duri ng the

prosecuti on. It’ s possi ble that i n some cases the effect of

absol ut e i mmu ni ty—o r the combi ned effect of absolute and

quali fi ed i mmu ni ty—might leav e a wrongly convic ted person

wi thout an acti onable damages clai m again st any of the

wrongdo ers. I could be wrong, but I don’t thi nk that happens

ver y often. Prosecutors do not w or k alone, and i f the po l ice

offi cers w or kin g wi th them wi thhold exculpator y i nformation

about coerced or fabri cated evidenc e, the aggr i ev ed defendant

wi ll hav e a goo d § 1983 clai m again st the offi cers for violati on

of Brady

. The Brady dut y is w e ll establi shed, and the clai m

again st the offi cers i s av ai lable reg a r d l e ss of whether the

prosecutor partici pated i n the “creation” of the fabricate d

evidenc e or the cov er -up at tr i al o r bo t h. That basi cally

describes thi s cas e. 9

Actuall y they refe r to the “breatht aking i njustic e” of accepti ng Wharrie’s 8

“co ncepti on” of Buckley

, Majo ri ty op. at 9, b ut the real objecti on seems to b e

with Buckley i tsel f

.

Mo reo v er

, the wrongl y convicted need not w or ry tha t of fi cers who v i ol ate 9

Brady wil l b e judgment pro of b ecause Il l i noi s requir es muni ci pali tie s to

(co ntinued. ..)No. 13-1195 29

My colleagues also percei v e a need to authorize a damages

remedy a s a deter rent again st ro gue prosecutor s. Id. at 10.

That’s a v ali d concern, but i t doesn’t justif y fi ndi ng a cogni zable consti tutional violati on where one does not exis t. The

poli cy justif i cati on for absolute i mmu ni ty accepts that deter

ren ce can be achi ev ed i n other w ays. Although a compli ci t

prosecutor escapes ci vil li abi li ty for damages, he remain s

sub ject to cri mi nal prosecuti on and professi onal di sci pli ne for

hi s mi sdeeds; he i s not i mmu ne from these consequen ces for

hi s mi scondu ct

. S e e Imbler

, 424 U.S. at 429. The prospect of

cri mi nal li abi li ty and dis barment are po w erful deter rents. See

id. (“Thes e [cri mi nal and professi onal] checks undermi ne the

arg ument that the i mposi tion of ci vil li abi l it y is the only w ay

to i nsu re t hat prosecutor s are mi ndfu l of the consti tutional

rights of persons acc used of c rim e.”).

I n the end, the poli cy behi nd absolute prosecutor ia l

i mmu ni ty “reflects ‘a balanc e’ of ‘evils’ ” based on a judgment

that i t i s “ ‘bette r ... to leav e unredressed the w ro ngs done b y

di shonest offi cers than to sub ject those who tr y to do their duty

to the constant dread of ret ali ation.’ ” V an de Kamp

, 555 U.S. at

340 (quoti ng Gr egoir e v . Biddle

, 177 F .2d 579, 581 (2d Cir . 1949)

(Hand, J.))

. Mor eov er

, as w e sai d i n Buckley

, “[q]u alified

immuni ty does not permi t us to recog ni ze

... [new cons t it u-

(. ..co ntinued) 9

i ndemnif y their po l i ce o ffi cers. See 74 5 I LL

. C OM P

. S T A T

. 10 /9 -1 02 (“ A l ocal

publi c entity i s em p owered and di rected to pay any tor t judgment or

settle ment fo r compe nsa tor y dama ges

... fo r which i t or an empl oyee whil e

acting wi thin the sco pe o f his empl oyment i s l i ab l e

... .”)

. P eo pl e who are

wrongl y convicted i n Il l i noi s can also seek a certi fi cate of i nno cence,

entitl i ng them to a monetary aw ard fro m the Il l i noi s Co urt of Cl aims of up

to $ 19 9,1 50

. See 70 4 I LL

. C OM P

. S T A T

. 50 5/ 8( c). Fie l ds i niti all y obtained a

certi fi cate of i nnocence, and a compe nsa tio n check w as i ssued to him b y the

Co urt o f Cl aims, but the Ill i noi s Appe l l ate Co urt rev ersed and remanded.

See People v . Fields , 9 59 N.E. 2d at 116 3– 66

.30 No. 13-1195

tional] right[s] i n thi s li tigati on.” Buckley

, 20 F

. 3 d a t 797.

Although Wharrie’s alleged wrongdo i ng may go unredressed

via a federal damages remedy again st hi m, Fields has an

ongo i ng § 1983 clai m again st the poli ce offi cers who w ere

allegedly compl i c i t i n w i thh oldi ng exculpator y evidenc e about

the ci rcums tances s urro undi ng Sumner’s false statement.

In s u m

, a p plyi ng Buckley requires a conclu si on that W h a rr i e

i s ent i tled to quali fi ed i mmu ni ty for his i nv esti gativ e mi sconduct; hi s act of soli ci tin g Sumner’s false stateme nt d id not

violate clearly establis hed consti tutional ri ghts and does “not

become acti ona bl e because [i t led to] i njurious acts for whi ch

[the prosecutor ] possess [es] abso l ute i mmu ni ty .” Id. at 796.

Applyin g Whitlock

, my colleagues conclu de that Wharrie’s

i nv esti gativ e mi scondu ct i s acti onable as a non-im mu ne

sub si di ary “caus e” of hi s absolutely i mmu ni z e d d ue-process

violati on at trial. I w ould reconsi der Whitlock , resto re Buckley

,

and rev erse wi th i nstructi ons to di smi ss the § 1 9 8 3 clai m

again st Wharrie. W i th n o federal clai m remain i ng, the di stric t

court or di naril y sh o uld relinqu i sh jurisdi cti on ov er the statelaw c lai ms agai nst hi m. See F ields I

, 672 F .3d at 518–19.

For the foreg oin g reasons, I respectfully concu r i n part and

di ssen t in part.