In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 13‐1195

NATHSON FIELDS,

Plaintiff‐Appellee,

v.

LAWRENCE WHARRIE and DAVID KELLEY,

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.

____________________

ARGUED NOVEMBER 1, 2013 — DECIDED JANUARY 23, 2014

____________________

Before POSNER, FLAUM, and SYKES, Circuit Judges.

POSNER, 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 give
No. 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 of
4 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 caused
No. 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 to
8 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 of
No. 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 on
12 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 not
No. 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 to
14 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.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
No. 13-1195 15

SYKES, Circuit Judge, concurring in part and dissenting in

part. I agree that Fields’s claims against Kelley are barred by

absolute immunity. See Majority op. at 12–14. In our earlier

opinion in this case, we held that Wharrie is absolutely

immune from suit on similar allegations of

misconduct—specifically, that Wharrie coerced Earl Hawkins

to falsely implicate Fields in the 1984 murders of Talman

Hickman and Jerome Smith during the interval between

Fields’s first and second trials, while his postconviction

proceedings were ongoing and in anticipation of retrial. See

Fields v. Wharrie(“Fields I”), 672 F.3d 505, 511–16 (7th Cir. 2012).

The allegations against Kelley are materially indistinguishable

from the allegations against Wharrie stemming from this time

period. The only difference is that Kelley is accused of inducing another witness, Randy Langston, to make a false identification of Fields. But this act, like Wharrie’s alleged coercion of

Hawkins, took place during the judicial phase of the criminal

process and was functionally prosecutorial. So Kelley, like

Wharrie, is absolutely immune from suit for this conduct. See

Van de Kamp v. Goldstein, 555 U.S. 335, 340–45 (2009); Imbler v.

Pachtman, 424 U.S. 409, 430–31 (1976); Fields I, 672 F.3d at

510–15.

Illinois apparently follows the federal law on absolute

immunity, 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 do not argue otherwise. Accordingly, I join the majority opinion to the extent that it reverses

the district court’s order permitting the state-law claims

against Kelley to proceed. See Majority op. at 12–14.

Unlike my colleagues, however, I would also reverse the

district court’s decision to reinstate the § 1983 and state-law

claims against Wharrie for his conduct in 1985, before Fields

was charged. Fields alleges that during the investigation of the
16 No. 13-1195

Hickman and Smith murders, Wharrie coerced Anthony

Sumner, a fellow gang member, to falsely implicate him in the

crimes. Fields I, 672 F.3d at 508–09. As we explained in our

earlier opinion, Fields was convicted of killing Hickman and

Smith based in part on Sumner’s testimony, but he won a new

trial for unrelated reasons (the trial judge had been bribed),

was acquitted on retrial, and obtained a certificate of innocence. Id. at 509. His complaint seeks damages under 42 U.S.C. 1

§ 1983 for violation of his right to due process; he also asserts

several state-law theories of liability for the wrongful convictions.

2

To the extent that the § 1983 and state-law claims against

Wharrie are based on his alleged coercion of the false statement from Sumner, absolute immunity does not apply. That

act took place before there was probable cause to arrest

Fields—that is, before the judicial process began—and was not

functionally prosecutorial, so Wharrie cannot claim to be

absolutely immune from suit for damages. Buckley v.

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

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

But Wharrie remains protected by qualified immunity, see

Buckley, 509 U.S. at 275–76, which “is available unless the acts

violated ‘clearly established’ constitutional norms,” Buckley,

Sumner recanted his testimony after Fields’s first trial. See Fields v. Wharrie 1

(“Fields I”), 672 F.3d 505, 517 (7th Cir. 2012). The status of Fields’s certificate

of innocence is in flux. The Illinois Appellate Court reversed the circuit

court’s issuance of it, see People v. Fields, 959 N.E.2d 1162, 1163 (Ill. App. Ct.

2011), and as far as I can tell, proceedings on remand remain pending in

Cook County Circuit Court.

Fields sued several Chicago police officers in addition to the two

2

prosecutors, but this interlocutoryappeal,like the earlier one, concerns only

the prosecutors’ claims of absolute and qualified immunity. 
No. 13-1195 17

20 F.3d at 794. The Supreme Court’s decision in Buckley

addressed only absolute prosecutorial immunity;theCourtdid

not have occasion to decide the qualified-immunity question.

That is, the Court did not decide whether coercing or otherwise

inducing a witness to give a false statement during a criminal

investigation violates clearly established constitutional rights.

But we decided that very question when the Supreme Court

returned Buckley to this court for further proceedings.

In our decision on remand in Buckley, we held that coercing

or otherwise soliciting a witness to falsely incriminate a suspect

during a criminal investigation does not violate any established

constitutional rights—except perhaps the rights of the witness

who is coerced. Id. at 794–97. If the suspect is charged, then

failing to disclose the false statement’s corrupt origins at trial

violates his due-process right to a fair trial under the rule of

Brady v. Maryland, 373 U.S. 83 (1963), and knowingly using

perjured testimony to convict him is a more general violation

of his due-process right to a fair trial. See Buckley, 20 F.3d at

794–95; see also Albright v. Oliver, 510 U.S. 266, 273 n.6 (1994)

(plurality opinion); Napue v. Illinois, 360 U.S. 264, 269 (1959);

Mooney v. Holohan, 294 U.S. 103, 112 (1935); Serino v. Hensley,

735 F.3d 588, 592 (7th Cir. 2013); Newsome v.McCabe, 256 F.3d

747, 750–52 (7th Cir. 2001). But a prosecutor who commits

these acts or omissions at trial is functioning quintessentially

as a prosecutor, so under well-established immunity law, he is

absolutely immune from suit for damages under § 1983. Van de

Kamp, 555 U.S. at 340–45; Imbler, 424 U.S. at 430–31; Fields I,

672 F.3d at 510–15; Buckley, 20 F.3d at 794–96. 

In contrast, a prosecutor who coerces or otherwise procures

a false statement from a witness during an investigation, before

probable cause exists and the judicial process has begun, is not

protected by absolute immunity, but he is entitled to qualified

immunity because his conduct does not violate clearly estab-
18 No. 13-1195

lished constitutional rights. Buckley, 20 F.3d at 794–98. Dueprocess rights are not implicated at this stage; they arise later,

when judicial proceedings are instituted. Id. Accordingly,

extracting a false statement from a witness during a criminal

investigation is not independently actionable as a constitutional violation, and Buckley holds that “events not themselves

supporting recovery [against prosecutors] under § 1983 do not

become actionable because they lead to injurious acts for which

[the prosecutors] possess absolute immunity.” Id. at 796.

In our earlier opinion in this case, we relied on this

qualified-immunity holding from Buckley as an alternative

basis for finding Wharrie and Kelley immune from suit under

§ 1983 for their solicitation of false statements from Hawkins

and Langston. Fields I, 672 F.3d at 516–18. Citing Buckley, we

noted that “fabricating evidence, including in the form of

testimony, is not an actionable constitutional wrong. ... The

constitutional violation occurs when the means by which the

testimony was acquired are not disclosed at trial—or when

other information that impeach[es] the testimony’s reliability

is not shared with the defense.” Id. at 516–17. Our alternative

holding in Fields I followed the rule, established in Buckley,that

even if a prosecutor participates in securing a false statement

from a witness during a criminal investigation, his “absolutely

immunized prosecutorial decision to proceed to trial and

introduce the [witness’s] testimony” forecloses suit against

him; there is no independently cognizable due-process claim

for his investigative misconduct. Id. at 517 (discussing 3

Wharrie’s qualified immunity); see also id. at 517–18 (discussing

Kelley’s qualified immunity). 

There might be an actionable Fourth Amendment claim for false arrest, but 3

Fields has not made that claim here.
No. 13-1195 19

Three months after we issued our opinion in Fields I, a new

decision of this court, Whitlock v. Brueggemann, 682 F.3d 567

(7th Cir. 2012), unsettled Buckley (and by extension, unsettled

Fields I as well), which led the district court to do an about-face

on remand in this case. Wharrie’s new appeal requires us to

decide whether Whitlock and Buckley can be reconciled. I think

the answer is plainly “no.”

As my colleagues have noted, Whitlock drew a distinction,

for qualified-immunity purposes, between a prosecutor who

coercively interrogates witnesses and a prosecutor who

fabricates evidence. See Majority op. at 7–9. Whitlock observed

that coercion and unsavory tactics like paying for testimony

and witness shopping “may be deplorable, and ... 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] [e]vidence collected with these

kinds of suspect techniques, unlike falsified evidence and

perjured testimony, may turn out to be true.” 682 F.3d at 584.

This proposed distinction between “coerced” and “fabricated”

evidence was the linchpin for distinguishing Buckley and

permitting the claim against the prosecutor in Whitlock to

proceed. The Whitlock panel thought the prosecutors in Buckley

had been accused of coercing witnesses and using other

suspect tactics but were not alleged to have fabricated evidence, and on that basis distinguished the case. Id. at 584–85.

Regrettably, that was a mistake. In fact, both Buckley and

Whitlock involved allegations that prosecutors had coerced,

cajoled, paid for, or otherwise solicited falsified statements from

witnesses—in other words, they fabricated evidence. Indeed,

Buckley repeatedly refers to allegations that prosecutors

coercively obtained “false inculpatory statements” from

witnesses and “fabricated” or “manufactured” testimony and
20 No. 13-1195

evidence from an expert. 20 F.3d at 794–95. So regardless of 4

whether Whitlock’s proposed distinction between “coerced”

and “fabricated” witness statements is valid in theory—and

makes a difference in the constitutional analysis—it simply

was not present as a factual matter and therefore cannot

provide a basis on which to distinguish Buckley from Whitlock.

5

More specifically, Stephen Buckley alleged that prosecutors coerced two 4

witnesses to falsely implicate him during a murder investigation. See

Buckley v. Fitzsimmons, 20 F.3d 789, 794–96 (7th Cir. 1994). He also alleged

that the prosecutors paid an expert witness for forensic evidence—a

bootprint identification—that they knew was false. Id. at 795–96. The

prosecutors indicted and tried Buckley for murder; the jury deadlocked,

and while Buckley was awaiting retrial, someone else confessed to the

crime. See Buckley v. Fitzsimmons, 509 U.S. 259, 264 (1993). We held that the

prosecutors were entitled to qualified immunity for their pre-charging

misconduct because the solicitation of false evidence—by whatever device

(whether coercion or payment)—does not violate clearly established

constitutional rights; the use of the false evidence at trial may have violated

Buckley’s due-process right to a fair trial, but the prosecutors were

absolutely immune for that misconduct. Buckley, 20 F.3d at 794–97.

The facts of Whitlock were materially identical. There, the plaintiffs

alleged that a witness had been coerced to give a false statement implicating

them in a double murder and that another witness falsely incriminated

them after being plied with money and alcohol. See Whitlock v. Brueggemann,

682 F.3d 567, 572 (7th Cir. 2013). They were convicted based in part on the

false testimony of these witnesses, and after their convictions were

overturned (based on Brady violations), they sued the police officers and the

prosecutor who were involved in the investigation and prosecution. As I

have noted, in rejecting the prosecutor’s claim of qualified immunity, the

Whitlock panel distinguished Buckley by drawing a distinction between

coerced and fabricated evidence, apparently overlooking the fact that both

cases involved allegations of coercion and fabrication.

Judge Kennelly, who is handling this case in the trial court, saw the 5

problem immediately. Although he followed Whitlock because it is the laterdecided case, hepointedly notedthat “[b]oth the defendants in Whitlock and

the defendants in Buckley[] were alleged to have coerced false inculpatory

(continued...)
No. 13-1195 21

Yet my colleagues perpetuate the distinction here. See

Majority Op. at 2–3, 7–9. I appreciate the force of stare decisis;

we should try to harmonize the two cases if we can. With

respect, however, harmonization is impossible. Whitlock and

Buckley are factually indistinguishable and legally irreconcilable. They cannot both be the law. We must decide which one

is correct.6

 (...continued) 5

statements from witnesses. ... Thus there is no apparent factual distinction

between the underlying fabricatory conduct in Whitlock and that in

Buckley[].” Fields v. City of Chicago, No. 10 C 1168, 2012 WL 6705790, at *5

(N.D. Ill. Dec. 26, 2012).

Mycolleagues have acknowledged that both Whitlock and Buckley involved 6

prosecutors who were alleged to have fabricated evidence during an

investigation. See Majority op. at 8. They maintain that the cases can still be

distinguished because “the focus [in Buckley] was on coercion, and the

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

coerced witnesses.” Id. at 9. They read Whitlock as holding that Buckley’s

“ ‘tough luck’ rule doesn’t apply when there is no coerced witness but

nevertheless fabricated evidence; the evidence might be given by a paid

police informant—a compensated witness, not a coerced one.” Id. at 8–9.

There are several problems with this analysis. First, our decision in

Buckley had nothing to do with the standing of the coerced witnesses; we

mentioned this point only to explain that although the witnesses might

have a claim for violation of their constitutional rights during the investigation, Buckley—the only plaintiff in the case—did not. See Buckley, 20 F.3d at

794–97. Second, in straining to maintain Whitlock’s distinction between

coerced and fabricated evidence, my colleagues continue to disregard the

material factual identity between Buckley and Whitlock—bothcases involved

allegations of pre-charging fabrication of evidence, some of which was

allegedly coerced. See supra n.4. Finally, my colleagues do not explain the

constitutional basis for the coercion/fabrication distinction. It’s not clear

why it makes a difference in the qualified-immunity analysis, which asks

whether the pre-charging misconduct violates established constitutional

rights.
22 No. 13-1195

For my part, I think Buckley is correct and Whitlock should

be reconsidered. Because mine is the minority view here, any

reconsideration of Whitlock must await a petition for rehearing

en banc, which Wharrie may choose to pursue or forego. For

the record, I’ll briefly sketch the conceptual difficulty Whitlock

has introduced, which I believe warrants the full court’s

attention.

I have already described Buckley’s qualified-immunity

holding, which was and remains sound. Whitlock rejected

qualifiedimmunity for a similarly situated prosecutor byusing

common-law causation principles to find an actionable

constitutional violation where one did not otherwise exist. I do

not agree with this development in our circuit’s law.

As I’ve explained, Buckley contains two important principles of immunity law that apply in suits alleging prosecutorial

misconduct: (1) a prosecutor’s use of fabricated evidence at

trial may be actionable as a violation of the defendant’s right

to due process—under the rubric of Brady or perhaps more

generally as a violation of the right to a fair trial—but the

prosecutor is absolutely immune from suit under Imbler and

related cases, see 20 F.3d at 794–95; and (2) a prosecutor’s

fabrication of evidence against a suspect during an investigation is covered by qualified immunity because it doesn’t

violate clearly established constitutional rights, see id. at

794–98. Whitlock’s innovation is to use common-law causation

analysis to eliminate the effect of both forms of immunity. The

panel held that “[t]he actions of an official who fabricates

evidence that lateris used to deprive someone of liberty can be

both a but-for and proximate cause of the due process violation.” Whitlock, 682 F.3d at 583. 7

Although it’s not entirely clear, the due-process violation to which 7

(continued...)
No. 13-1195 23

As applied to a prosecutor, this reasoning circumvents both

qualified and absolute immunity. Both immunities are well

established and important. See Van de Kamp, 555 U.S. at 341–43

(absolute immunity); Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982) (qualifiedimmunity);Imbler, 424 U.S. at 424–26 (absolute

immunity). Absolute immunity can sometimes produce harsh

results, but it has long been thought necessary to encourage

and protect the vigorous performance of the prosecutorial

function. See Van de Kamp, 555 U.S. at 341–43; Imbler, 424 U.S.

at 424–26.

In a shorthand version, the rule announced in Whitlock is

basically this: A prosecutor who falsifies evidence during an

investigation violates no clearly established constitutional

rights and thus has qualified immunity from suit (see Buckley),

but his conduct is nonetheless actionable as a non-immune

subsidiary “cause” (both but-for and proximate) of a dueprocess violation that occurs later, when the prosecutor

introduces the falsified evidence at trial—even though the

prosecutor is absolutely immune from suit for the due-process

violation. In other words, the only conduct that can possibly

 (...continued) 7

Whitlock refers can only be a violation of the procedural right to a fair trial.

That much is implicit in the context of the case and the content of the

opinion, which does not address the more complicated and unsettled

question whether the Due Process Clause provides a substantive ground of

protection against malicious prosecution. See Albright v. Oliver, 510 U.S. 266,

271–74 (1994)(“Where a particular Amendment provides an explicit textual

source of constitutional protection against a particular sort of government

behavior, that Amendment, not the more generalized notion of ‘substantive

due process,’ must be the guide for analyzing these claims.” (plurality

opinion) (internal quotation marks omitted)); see also id. at 275–76 (Scalia, J.,

concurring); id. at 283–86 (Kennedy, J., concurring); Serino v. Hensley,

735 F.3d 588, 592–94 (7th Cir. 2013); Julian v. Hanna, 732 F.3d 842, 845–48

(7th Cir. 2013); Newsome v. McCabe, 256 F.3d 747, 750–53 (7th Cir. 2001).
24 No. 13-1195

form the basis of a constitutional claim—the prosecutor’s trial

conduct—is fully protected by absolute immunity, but the

prosecutor can be sued anyway, based on the causal link

between his nonactionable investigative conduct and his

immunized trial conduct.

Aside from destabilizing immunity law, this chain of

reasoning overlooks some basic differences between commonlaw and constitutional torts. Common-lawcausationrules flow

from the nature of duty and breach in tort law. Everyone has

a general tort duty to refrain from doing an act or omitting a

precaution that creates a foreseeable, unreasonable risk of

harm to other persons or property. See generally RESTATEMENT

(SECOND)OFTORTS§ 282 (1965) (defining negligence). The duty

is broad and undifferentiated and is owed to everyone at all

times, and anyone who breaches it is liable for harms factually

and proximately caused.

Constitutional rights—and the corresponding duties

imposed on governmental actors—are not like the generalized

rights and duties imposed by negligence law. They are

implicated at specific times and in specific circumstances. As

relevant here, Fields’s due-process rights came into play after

he was charged; the Brady disclosure duty is an aspect of the

right to a fair trial, as is the broader right not to have the trial

process subverted by the knowing introduction of falsified

evidence. See Serino, 735 F.3d at 592; Newsome, 256 F.3d at

751–52; Buckley, 20 F.3d at 796–97. So Wharrie’s act of extracting a false statement from Sumner during the investigative

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

prosecutor who commits this kind of misconduct has behaved

deplorably but has breached no constitutional duty and thus

committed no constitutional wrong.

Common-law causation analysis cannot be used to transform an act that does not violate the Constitution into one that
No. 13-1195 25

does. That, in essence, is the effect of Whitlock. It turns the

prosecutor’s nonactionable investigative misconduct into an

actionable constitutional wrong by recharacterizing it as a

subsidiary “cause” of a due-process violation that occurs later

at trial but is absolutely immunized.

To help explain and justify Whitlock, my colleagues analogize to product-liability causation rules. See Majority op. at 6.

I think the analogy exposes a key conceptual problem in the

analysis. The pipe maker who negligently manufactures a pipe

breaches his general tort duty to refrain from acts that create an

unreasonable risk of harm to persons or property. The breach

may not cause harm until the pipe bursts, and the statute of

limitations does not begin to run until the harm occurs. But the

breach of duty occurs at the point of negligent manufacture,

and the manufacturer will be liable for harm that flows

causally from that breach. (In the law of strict product liability,

the manufacturer’s sale of the defective pipe starts the causal

chain, but the basic point about the order of analysis—

duty/breach/cause—remains the same.)

Section 1983 does not impose an analogous generalized

duty on governmental agents to refrain from putting people at

an unreasonable risk of harm. Rather, § 1983 creates a cause of

action for damages against state and local officials who inflict

specific deprivations of federal rights. See 42 U.S.C. § 1983

(creating a cause of action against any official who, under color

of state law, “subjects, or causes to be subjected, any citizen of

the UnitedStatesorother person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws”). It is well understood

that § 1983 “ ‘is not itself a source of substantive rights,’ but

merely provides ‘a method for vindicating federal rights

elsewhere conferred.’ ” Albright, 510 U.S. at 811 (plurality

opinion) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
26 No. 13-1195

(1979)). In other words, the Constitution supplies the rights

and duties and otherwise fills in the content of a § 1983 claim.

So “[t]he first step in any such claim is to identify the specific

constitutional right allegedly infringed.” Id.

Here, the right allegedly infringed is the due-process right

to a fair trial, but under the rationale of Whitlock, the asserted

act of infringement occurred before any fair-trial duty arose. To

put the problem colloquially, Whitlock puts the causation cart

before the duty horse. A prosecutor who coerces a witness to

falsely incriminate a suspect during a criminal investigation

breaches no constitutional duty owed to the suspect. If the

suspect is charged, then suborning perjury against him at trial

would violate his due-process rights—so too would withholding evidence about the coercion of the witness. But these are

trial rights, and a prosecutor’s violation of them is absolutely

immunized. The prosecutor’s investigative misconduct cannot

independently support a due-process claim; that conduct

violates no due-process duty.

It is true, as my colleagues have noted, that the Supreme

Court said the following in Buckley:

A prosecutor may not shield his investigative

work with the aegis of absolute immunity

merely because, after a suspect is eventually

arrested, indicted, and tried, that work may be

retrospectively described as ‘preparation’ for a

possible trial; everyprosecutor might then shield

himself from liability for any constitutional

wrong against innocent citizens by ensuring that

they go to trial. 

Buckley, 509 U.S. at 276. This passage in the Court’s opinion

simply drives home the point that prosecutors are not protected by absolute immunity for their pre-charging miscon-
No. 13-1195 27

duct. That much is clear from the very next sentence: “When

the functions of prosecutors and detectives are the same, as

they were here, the immunity that protects them is also the

same.” Id. That’s an obvious reference to qualified immunity. 

It’s worth repeating that the Court sent Buckley back to us

to decide thequalified-immunity question. We unambiguously

held—in 1994—that falsifying evidenceduring aninvestigation

does not violate established constitutional rights, and “events

not themselves supporting recovery [against prosecutors]

under § 1983 do not become actionable because they lead to

injurious acts for which [the prosecutors] possess absolute

immunity.” Buckley, 20 F.3d at 796.

Directly contradicting that clear holding of Buckley, my

colleagues now conclude that “it was established law by 1985,

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.” Majority op. at 11

(emphasis added). For this proposition they cite Napue v.

Illinois, 360 U.S. 264 (1959); Pyle v. Kansas, 317 U.S. 213 (1942);

and Mooney v. Holohan, 294 U.S. 103 (1935), but these cases do

not hold that fabricating evidence violates due process. Rather,

they hold that the use of falsified evidence or perjured testimony at trial violates the defendant’s due-process right to a

fair trial and is grounds for habeas or other postconviction

relief. See Napue, 360 U.S. at 269; Pyle, 317 U.S. at 215–16;

Mooney, 294 U.S. at 112–13. As my colleagues have noted, the

qualified-immunity inquiry asks whether a reasonable public

official could be expected to know that the conduct in question

violates constitutional rights. See Majority op. at 11 (citing

Harlow, 457 U.S. at 819). The specific conduct in question

here—inducing a witness to tell a lie during an investigation—is clearly wrong, but it does not violate any constitutional rights. 
28 No. 13-1195

So although my colleagues have formally left Buckley in

place, the core of the opinion—its qualified-immunity

holding—is effectively overruled.

Finally, a brief comment on my colleagues’ assertion that

adhering to Buckley would work a “breathtaking injustice” and

produce “an offensive and indeed senseless result.” Id. at 9, 10. 8

These are strong words. No one doubts that wrongful convictions are unjust; a person who is convicted and punished for a

crime he did not commit has a serious moral claim to a

compensatory remedy. Usually the law provides one, commonly in the form of a Brady claim against the officers who

were involved in suppressing exculpatory evidence during the

prosecution. It’s possible that in some cases the effect of

absolute immunity—or the combined effect of absolute and

qualified immunity—might leave a wrongly convicted person

without an actionable damages claim against any of the

wrongdoers. I could be wrong, but I don’t think that happens

very often. Prosecutors do not work alone, and if the police

officers working with them withhold exculpatory information

about coerced orfabricated evidence, the aggrieved defendant

will have a good § 1983 claim against the officers for violation

of Brady. The Brady duty is well established, and the claim

against the officers is available regardless of whether the

prosecutor participated in the “creation” of the fabricated

evidence or the cover-up at trial or both. That basically

describes this case.9

 Actually they refer to the “breathtaking injustice” of accepting Wharrie’s 8

“conception” of Buckley, Majority op. at 9, but the real objection seems to be

with Buckley itself.

Moreover, the wrongly convicted need not worry that officers who violate 9

Brady will be judgment proof because Illinois requires municipalities to

(continued...)
No. 13-1195 29

My colleagues also perceive a need to authorize a damages

remedy as a deterrent against rogue prosecutors. Id. at 10.

That’s a valid concern, but it doesn’t justify finding a cognizable constitutional violation where one does not exist. The

policy justification for absolute immunity accepts that deterrence can be achieved in other ways. Although a complicit

prosecutor escapes civil liability for damages, he remains

subject to criminal prosecution and professional discipline for

his misdeeds; he is not immune from these consequences for

his misconduct. See Imbler, 424 U.S. at 429. The prospect of

criminal liability and disbarment are powerful deterrents. See

id. (“These [criminal and professional] checks undermine the

argument that the imposition of civil liability is the only way

to insure that prosecutors are mindful of the constitutional

rights of persons accused of crime.”).

In the end, the policy behind absolute prosecutorial

immunity “reflects ‘a balance’ of ‘evils’ ” based on a judgment

that it is “ ‘better ... to leave unredressed the wrongs done by

dishonest officers than to subject those who try to do their duty

to the constant dread of retaliation.’ ” Van de Kamp, 555 U.S. at

340 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)

(Hand, J.)). Moreover, as we said in Buckley, “[q]ualified

immunity does not permit us to recognize ... [new constitu-

 (...continued) 9

indemnify their police officers. See 745 ILL. COMP. STAT. 10/9-102 (“A local

public entity is empowered and directed to pay any tort judgment or

settlement for compensatory damages ... for which it or an employee while

acting within the scope of his employment is liable ... .”). People who are

wrongly convicted in Illinois can also seek a certificate of innocence,

entitling them to a monetary award from the Illinois Court of Claims of up

to $199,150. See 704 ILL. COMP. STAT. 505/8(c). Fields initially obtained a

certificate of innocence, and a compensation check was issued to him by the

Court of Claims, but the Illinois Appellate Court reversed and remanded.

See People v. Fields, 959 N.E.2d at 1163–66.
30 No. 13-1195

tional] right[s] in this litigation.” Buckley, 20 F.3d at 797.

Although Wharrie’s alleged wrongdoing may go unredressed

via a federal damages remedy against him, Fields has an

ongoing § 1983 claim against the police officers who were

allegedly complicit inwithholding exculpatory evidence about

the circumstances surrounding Sumner’s false statement.

Insum, applying Buckley requires a conclusion thatWharrie

is entitled to qualified immunity for his investigative misconduct; his act of soliciting Sumner’s false statement did not

violate clearly established constitutional rights and does “not

become actionable because [it led to] injurious acts for which

[the prosecutor] possess[es] absolute immunity.” Id. at 796.

Applying Whitlock, my colleagues conclude that Wharrie’s

investigative misconduct is actionable as a non-immune

subsidiary “cause” of his absolutely immunized due-process

violation at trial. I would reconsider Whitlock, restore Buckley,

and reverse with instructions to dismiss the § 1983 claim

against Wharrie. With no federal claim remaining, the district

court ordinarily should relinquish jurisdiction over the statelaw claims against him. See Fields I, 672 F.3d at 518–19.

For the foregoing reasons, I respectfully concur in part and

dissent in part.