### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 18-2211 & 18-2232

T YJUAN A NDERSON, et al. , Plaintiffs-Appellants ,

v.

C ITY OF R OCKFORD , et al. , Defendants-Appellees

.

____________________ Appeals from the United States District Court for the Northern District of Illinois, Western Division. Nos. 3:15-cv-50065 & 3:15-cv-50064 — Frederick J. Kapala

, Judge

.

____________________

A RGUED M AY 14, 2019

— D ECIDED J ULY 25, 2019

____________________

Before F LAUM, K ANNE , and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . Nowhere does the Constitution’s promise of due process mean more than in a criminal trial. This promise translates into an obligation when police and prosecutors fi nd themselves in possession of information that exculpates a criminal defendant. That is the corn erstone of the Supreme Court’s 1963 decision in Brady v. Maryland, and thiscase presents serious and unresolved questions whether certain detectives in Rockford, Illinois, failed to adhere to their2 Nos. 18-2211 & 18-2232

Bradyobligations when prosecutin g three men for the murder of eight-year-old Demarcus Hanson on April 14, 2002. One of those detectives has since admi tt ed—under oath no less—to engaging in serious misconduct during the investigation.

In 2013 an Illinois court found a Brady violation as part of vacating the murder convictions of Tyjuan Anderson, Lumont Johnson, and Anthony Ross after each man served more thana decade in prison. The case entered federal court when Anderson, Johnson, and Ross thenbrought claims for money damages under 42 U.S.C. § 1983 and state law against the City of Rockford and a score of individual defendants. The district court granted summary judgment on all claims in favor of alldefendants. We reverse. While the case entails many complexities, Anderson, Johnson, and Ross have brought forth su ffi

cient evidence to move forward against particular defendants on particular aspects of their a lleged due process violations.

I Demarcus Hanson was killed by shots fi red into his grandmother’s Rockford home. The State successfully prosecuted Tyjuan Anderson, Lumont Johns on, and Anthony Ross for the murder and each received a 50-year sentence. The men spent more than a decade in prison be fore an Illinois court ordered a new trial based on the delayed disclosure of Brady material—speci fi cally, the recorded jail calls of the prosecution’skey witness in which he contradicted his trial testimony. Anderson, Johnson, and Ross were retried and acqui tt ed. They then turned to federal court by fi ling this lawsuit against the City of Rockford and multiple Rockford police o ffi cers alleging that the defendant o ffi cers violated their rights under the U.S. Constitution and Illinois la w by not only withholding the recorded jail calls and other excu lpatory information, but alsoNos. 18-2211 & 18-2232 3

by fabricating evidence leading to their convictions for a crime they insist they did not commit.

A. The Murder and Investigation At approximately 2:51 a.m. on April 14, 2002, someone fi red shots into Estelle Dowthard’s home. One of the bullets struck and killed her eight-ye ar-old grandson Demarcus Hanson as he was sleeping in his bed. Responding o ffi cers from the Rockford Police Department soon learned that Estelle’s son, Alex Dowthard, was likely the shooter’s intended target.Dowthard would come to play a substantial role in the investigation and, ultimately, the plainti ff s’ trials and convictions.Detectives Doug Palmer and Joseph Stevens—both defendants in this case—led the investigation. Within hours of the shooting, Palmer and another detective, defendant James Randall, interviewed Dowthard, who denied any knowledge about his nephew’s murder. Dowthard told the detectivesthat, in the hours before the murder, he had a verbal altercation with Anderson, Johnson, and Ross near the M+M Market in Rockford and he shot at the trio as they drove in a white Suburban. Dowthard explained that he then drove to his mother’s home and hid his gun under a car parked outside. He insisted, however, that he was not present when shots were later fi red at his mother’s house and therefore did not know who killed his nephew. The police used Dowthard’s ad mission that he possessed a gun (and shot at the plainti ff s) to detain him on a parole violation. A few weeks later, on May 2, Detectives Palmer and Stevens again sought to speak wi th Dowthard, this time at Big Muddy River Correctional Center, where he was incarcerated on the parole violation. And Dowthard again denied any4 Nos. 18-2211 & 18-2232

knowledge about his nephew’s murder. During this visit, Detective Stevens also requested copies of Dowthard’s jail callsto assist with the investigation. Less than two weeks later, undoubtedly to increase the pressure on Dowthard to cooperate, the State resurrected an old set of forgery allegations (dating to February 2002) that had go ne uncharged. The new charges provided a second basis to revoke Dowthard’s parole. Rockford police met with Dowthard a third time on May 31, 2002. This time Dowthard, who was still incarcerated for the parole violation, agreed to talk, but only if detectives agreed to inform the parole board of his cooperation. He thenprovided Sergeant Gregory Lindmark and defendant Detective Theo Glover a wri tt en statement claiming, for the fi rst time, that he was present whenhis nephew was shot. Despitehis initial denials, Dowthard now claimed he saw three individuals—Anderson, Johnson, an d Ross—exit a red car with guns and then, as he was fl eeing, heard shots fi red toward hismother’s house. He told the police that he initially denied seeing the shooters because he thought he could handle the matter himself. Later that summer, Dowthard repeated this story before the grand jury, and on July 31, the State dismissed his forgery charge.

Detectives Stevens and Palmer also interviewed Lataurean Brown, who was with Dowthard in the hours before the murder. While Brown would eventually become an important prosecution witness, during his initial interview on April 24, he denied knowing who shot at the Dowthard home. But he admi tt ed to seeing Alex Dowthard fi re shots at the plainti ff s’ Suburban earlier that night. He also told police that he drove Dowthard to his mother’s house, where Dowthard hid his gun under a car. The two men then drove to the ConcordNos. 18-2211 & 18-2232 5

Commons, where Brown saw and spoke to his cousin Rickedda Young. A few weeks later, Detectives Stevens and Palmer interviewed Brown a second time. By the end of the ten-hour interview, Brown changed his account and signed a wri tt en statement claiming An derson, Johnson, and Ross were responsible for Hanson’s death. In April 2002, and following up on the information provided by Brown, the police spoke with Rickedda Young. Young told Detectives Stevens and Sco ttMastroinanni (also a defendant in this case) that she saw and spoke to Brown andDowthard at the Concord Commons during the early morning hours of April 14. She stat ed that Dowthard and Brown told her that someone had just fi red shots at them as they fl ed Dowthard’s mother’s house, bu t they did not know who. Neither Stevens nor Mastroinanni documented or disclosed this fact—that immediately after the shooting, the State’s key witnesses told a family member they did not see the shooter—in the subsequent prosecution of Anderson, Johnson, and Ross. The Rockford police also inve stigated but ultimately excluded two other possible suspects, Kefentse Taylor and Casel Montgomery, before arresting the three plainti ff s (Anderson, Johnson, and Ross) for Demarcus Hanson’s murder.

B. Criminal Trials Anderson and Johnson proceeded to trial in October 2002.The Thursday before trial was to begin, the prosecution received more than 40 hours of Alex Dowthard’s recorded jail calls from the Rockford police. The tapes, which were made available to the plainti ff s’ then-defense a tt orneys the following afternoon, included Dowthard’s conversations with fam-6 Nos. 18-2211 & 18-2232

ily and friends while he was incarcerated for the parole violation in May 2002. The conversations predated Dowthard’s May 31 wri tt en statement in which he fi rst implicated the plainti ff s. Given the length and poor quality of the recordings, the a tt orneys for the plainti ff s (then defendants) requested acontinuance for more time to listen to all of them and to determine whether they contained exculpatory or otherwise useful defense evidence. The trial court denied the request and proceeded with jury selection, a ff ording the a tt orneys for Anderson and Johnson only a couple of days to review the recordings. With no physical or forensic evidence connecting the plainti ff s to the crime, the prosecution’s case rested on the testimony of Alex Dowthard and Lautaurean Brown. Dowthard testi fi ed consistent with his May 31 wri tt en statement implicating the plainti ff s, though he o ffered a di ff erent explanation for his evolving account of the murder. Recall that in his written statement Dowthard claimed that he initially lied to the police (by denying knowledge of who shot Hanson) because he thought he could handle the situation himself. At trial, however, Dowthard testi fi ed that during his fi rst two interviews he told detectives he did not witness the murder because he was on parole and telling the police the true and full account of what happened duringthe early morning hours of April 14 would mean admi tt ing that he had a gun and thus admi tt ing to a parole violation. (This explanation made li tt le sense because Dowthard admi tt ed to possessing a gun during his fi rst interview with police just hours after the murder, which resulted in a parole violation.)

Dowthard further testi fi ed that he eventually cooperated with police without receivin g anything in return. DuringNos. 18-2211 & 18-2232 7

cross-examination, however, he conceded that following his testimony in the grand jury, the State dropped his unrelated forgery charge, sent a le tt er to the parole board relaying this information, and decided not to charge him for the shots he fi red at the plainti ff s just before Hanson’s murder. Neither party introduced or otherwise us ed any aspect of Dowthard’s jail calls at Anderson and Johnson’s trial.

Lautaurean Brown also testi fi ed for the prosecution and, like Dowthard, pointed the fi nger at the plainti ff s, though he denied seeing anyone carrying a gun. As for the defense case, Anderson and Johnson presentedalibi witnesses and argued that two other individuals, Kefentse Taylor and Casel Montgomery, were the actual shooters. The jury found Anderson and Johnson guilty of murder, andthe trial court later sentenced each of them to 50 years’ imprisonment. The third plainti ff , Anthony Ross, proceeded to trial in 2004. Brown and Dowthard again testi fi ed for the prosecution and echoed the accounts provided in the trial of Johnson and Anderson. The jury also heard from Ross’s cousin, Sonya White, who claimed she was wi th Ross when he tossed the murder weapon into a lake and confessed to killing Hanson. Ross then testi fi ed in his own defense and denied any involvement in the murder while also presenting an alibi witness. The jury returned a guilty verdic t, and, as with Johnson and Anderson, Ross received a sentence of 50 years.

C. Post-conviction Proceedings Following unsuccessful direct appeals, all three plainti ff s fi led petitions for post-conviction relief in which they asserted their innocence and alleged, as they do here, that the o ffi cers8 Nos. 18-2211 & 18-2232

investigating Demarcus Hanson’s murder commi tt ed numerous Bradyviolations. They also alleged that the defendant offi cers engaged in misconduct by coercing witnesses and fabricating evidence. In support of their claim, the plainti ff s submi tt ed an a ffi davit by Detective Palmer—the lead investigator—in which Palmer admi tt ed that he threatened witnesses, falsi fi ed witness statements, neutralized exculpatory evidence, and instructed witnesses to o ffer testimony he believed was false.

The trial court reacted to Dete ctive Palmer’s admissions ofmisconduct by holding an evidentiary hearing on the plainti ff s’ petitions for post-conviction relief. The court heard testimony from Palmer and appr oximately 34 other witnesses. Palmer’s testimony focused on three topics: the circumstancessurrounding his resignation from the Rockford Police Department in 2004, his own wrongdoing during the Hanson murder investigation, and his belief that Anderson, Johnson, and Ross did not commit the murder. We need focus only on the testimony regarding police misconduct.

Palmer admi tt ed at length and in substantial detail that hethreatened and coerced witnesses to give statements and encouraged witnesses to provid e false testimony during the plainti ff s’ criminal trials. He described, for example, how he had instructed the two key prosecution witnesses—Dowthard and Brown—to testify consistently with their written statements implicating the plainti ff s even though he believed those statements were fals e. He also explained how he falsi fi ed a statement from a man named Bryce Croft and then compelled Croft to sign the statement.Nos. 18-2211 & 18-2232 9

The details ma tt er. According to Palmer, in the summer of 2002 and before the plainti ff s’ trials, Bryce Croft, then an inmate at Winnebago County Jail, requested to see him and,during the meeting that followed, provided detailed information implicating an alternative suspect, Casel Montgomery, in Hanson’s murder. Palmer testi fi ed that instead of pursuing this lead against Montgome ry, he took a deliberate step to prevent Croft’s statement fr om being of any use to the plainti ff s during their criminal trials. He told the court that he did so at the direction of his su pervisor, testifying that “Sergeant Lindmark told me to ma ke a liar out of Bryce Croft.” Palmer explained that, upon rece iving this instruction, he met a second time with Croft and, during that meeting, forced Croft to sign a pre-wri tt en and false statement recanting his original statement. The plainti ff s went to trial knowing none of the circumstances surroundingCroft’s second statement or that his recantation was false. Croft, too, testi fi ed at the evidentiary hearing and corroborated much of Detective Palmer ’s account. He explained that he met with Palmer in July 2002 to provide information about Casel Montgomery’s role in the murder. After doing so, though, Palmer returned a few mo nths later and, as Croft recounted, threatened him with perjury charges if he did not recant his original statement implicating Montgomery. Croft recalled that Palmer brought with him a pre-wri tt en statement and, as part of leveling a threat of prosecution, demanded Croft sign it. Croft explained that he signed the second statement—even though he knew it was false—because of Palmer’s threats.10 Nos. 18-2211 & 18-2232

The plainti ff s also called Alex Dowthard as a witness, buthe asserted his Fifth Amendment privilege against self-incrimination and did not testify. As part of assessing the plainti ff s’ Brady claims, the trialcourt also considered statements Dowthard made during telephone calls from jail in May 2002. It was undisputed that these recorded conversations, which totaled approximately 40 hours, were not made available to the a tt orneys for Anderson, Johnson, and Ross until Friday, October 18, and Anderson and Johnson’s joint trial was to begin the following Monday, October 21. Contrary to his testimony at the plainti ff s’ criminal trials, during several conversations with family, Dowthard denied being present when his nephew was shot and killed. These conversations took place shortl y after Dowthard’s incarceration for the parole violation and, importantly, at the time the police were visiting him and pr essing for information on theHanson murder. On May 2, for example, the same day Detectives Palmer and Stevens visited Dowthard at Big Muddy, Dowthard told his mother that“he told them the truth,” a clear reference to telling the police that he did not know who shot the young boy. And again, on May 11, Dowthard told his cousin Antowan Lambert that, atthe time of the murder, he “wasn’t no mother f* * * ing where around, you know what I’m saying.” The jail calls further revealed that Lambert, who o ffi cers were also pressing for inform ation about Hanson’s murder,coached Dowthard on what to tell the police about the murder and fed him information about what Lautaurean Brown had told the police—all in an e ff ort to enable Dowthard to align his account with Brown’s. For example, on May 16, twoNos. 18-2211 & 18-2232 11

weeks before Dowthard gave po lice a statement incriminating the plainti ff s, Lambert told Dowthard to memorize what he was telling him so that Dowthard ’s statement “w[ould] coincide” with what Brown had already told police. In other calls from jail, Dowthard told friends and family that the police were pressuring him to cooperate. In early May, for instance, he told his mother that “[the police] talkin’ about bringin’ me up on some federal charges or whatever.” On May 13, Dowthard learned he was being charged with an unrelated forgery that would impact his parole status. On May 20, Dowthard told someone named Maria that the police were “playin’ with me, hurtin’ me until I’m da mn near at the point man, you just don’t know.” In this same call, Dowthard added “[Detective] Palmer man got—hi tt in’ me all upside my head and everything, man tellin’ my sister what to—put his hands on me.”Following the hearing, the court rejected any claims of police misconduct, emphasizing that it did not fi nd DetectivePalmer’s testimony credible. While recognizing the extraordinary nature of Palmer’s admissions, the court concluded that “through his words, actions and timing of his ‘disclosures,’” the former detective had “cast a pall over the credibility of his la tt er day revelations.” Our review of the record suggests that the court’s credibility fi nding may have been driven in large part by the circumstances surro unding Palmer’s resignation from the Rockford Police Department. Those circumstances are not relevant here. Turning to the plainti ff s’ arguments regarding Dowthard’s jail calls, the court awarded each plainti ffa newtrial, concluding that the State impermissibly delayed disclosure of the recordings. The calls , the court explained, included12 Nos. 18-2211 & 18-2232

“outright denials of knowledge about the facts of the case” aswell as “potential coaching” and “potential incentive” to implicate the plainti ff s—and without timely access to the recordings, the plainti ff s were “denied an essential tool in testing the credibility of Alex Dowthard.” The delayed disclosure was particularly concerning, the court emphasized, because thiswas “essentially a one-eyewitness case,” and the key impeachment material was turned over “on the virtual eve of trial,” making it impossible for the a tt orneys to “meaningfullylisten to [the tapes] and evaluate them.” Due process demanded a new trial, the court co ncluded, because it could not be su ffi ciently assured that the outcome of the trial would have been the same had Dowthard been cross-examined with his statements on the tapes. The State unsuccessfully appealed the trial court’s award of post-conviction relief. See People v. Johnson , 2014 IL App (2d) 130368-U. The Illinois appellate court did not upset the trial court’s fi nding that Anderson and Johnson established

a Bradyviolation. But the court reached a di fferent conclusion as to Ross. Because Ross’s tria l took place in 2004—more than a year after the prosecution turned over the Dowthard tapes—the court determined that he was not prejudiced by the delayed disclosure of the reco rdings. Instead, the court affi rmed the grant of post-convict ion relief as to Ross on alternative grounds, holding that Ross’s counsel was ine ffective for failing to impeach Dowthard with the statements from his recorded jail calls.

D. Criminal Retrial

In 2015 the defendants were retried for the Hanson murder in a bench trial. This time Alex Dowthard invoked hisNos. 18-2211 & 18-2232 13

Fifth Amendment privilege against self-incrimination and refused to testify. Lautaurean Brown initially did the same but then ultimately took the stand an d stated that he “couldn’t see [the shooting] ‘cause I pulled o ff .” Finally, Sonya White, who testi fi ed at Ross’s original trial th at Ross confessed to the murder, recanted her prior testimony and stated that she did not know who was responsible for Hanson’s death. The court acqui tt ed all three men of murder.

E. Civil Litigation In March 2015 the plainti ff s fi led this lawsuit, raising many of the same issues that formed the basis of their state post-conviction petitions. Intwo separate complaints, the plainti ff s asserted nine claims ag ainst the City of Rockford and multiple Rockford police o ffi cers pursuant to 42 U.S.C. § 1983: violation of their due proce ss right to a fair trial under the Fourteenth Amendment, conspiracy to deprive them of a right to a fair trial, failure to intervene, supervisory liability,and malicious prosecution. Each claim alleged that the defendant o ffi cers engaged in gross misconduct while investigating Demarcus Hanson’s murder. The plainti ff s further alleged that the o ffi cers’ misconduct was undertaken pursuant to a policy and practice of the Rockford Police Department. They also advanced four separat e claims under Illinois law: malicious prosecution, intentional in fl iction of emotional distress, respondeat superior, and indemni fi cation based on the same underlying conduct as alle ged in their federal claims. The case proceeded to discovery. What is most relevant for purposes of appeal is that duri ng the depositions of Detective Palmer and Alex Dowthard, bo th individuals invoked their14 Nos. 18-2211 & 18-2232

protection under the Fifth Ame ndment and declined to testify.The district court entered summary judgment for all defendants on all claims. Beginning with the plainti ff s’ § 1983 due process claim, the court concluded the plainti ff s failed to identify su ffi cient evidence to demonstrate that any of the defendant police o ffi cers commi tt ed any of the alleged Brady violations or instances of evidence fabrication. Because each of the remaining claims allege the same underlying conduct, this conclusion led directly to the entry of summary judgment in the defendants’ favor on every other claim. The plainti ff s now appeal.

II We begin with the plainti ff s’ contention that the defendant police o ffi cers deprived them of a fair trial in violation of their rights under the FourteenthAmendment’s Due Process Clause. The plainti ff s root their claim in two di fferent theories: the defendant o ffi cers both withheld exculpatory evidence in violation of their Brady obligations and fabricatedfalse witness statements. While we agree that summary judgment was proper on the fabrication allegations (with one limited exception), we conclude that the plainti ff s presented enough evidence to move forward on four particular grounds supporting their due process claim based on alleged Bradyviolations.

A. Due Process Claim: BradyViolations

The district court concluded that the record showed no genuine dispute as to whether the defendant police o ffi cers suppressed exculpatory evidence. In reaching this conclusion, however, the court failed to view the evidence in the lightNos. 18-2211 & 18-2232 15

most favorable to the plainti ff s and adhere to the fundamental principle that “at the summaryjudgment stage the judge ʹ s function is not himself to weigh the evidence and determine the truth of the ma tt er but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 249 (1986). The teachings of Brady are clear. In Brady itself the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused...violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Subsequent decisions make plain that this precept translates into an a ffi rmative duty to disclose to defendants all potentially exculpatory evidence, including impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Because Bradymaterial also “encompasses evidence ‘known only to police investigators and not to the prosecutor,’” prosecutors have an a ffi rmative duty “to learn of any favorable evidence known to the others acting on the government ʹ s behalf in [a] case, including the police.” Strickler v. Greene, 527 U.S. 263, 280–81 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 437–38 (1995)). This “ Brady rule,” theCourt has explained, is not intended “to displace the adversary system as the primary me ans by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.” Bagley, 473 U.S. at 675. “While most commonly viewed as a prosecutor’s duty to disclose to the defense,” it is se tt led that the duty imposed by Brady“extends to the police and re quires that they similarlyturn over exculpatory/impeaching evidence to the prosecutor.” Carvajal v. Dominguez , 542 F.3d 561, 566 (7th Cir. 2008);16 Nos. 18-2211 & 18-2232

see also Coleman v. City of Peoria, Illinois , 925 F.3d 336, 349 (7th Cir. 2019). To prevail on a civil Brady -based due process claim against a police o ffi cer, a plainti ff must demonstrate that the evidence in question was favorable to hi m, the police “suppressed” thefavorable evidence, and prejudice ensued because the suppressed evidence was material. See Carvajal , 542 F.3d at 566– 67; see also Cairel v. Alderden , 821 F.3d 823, 832 & n.2 (7th Cir. 2016). Evidence is suppressed for Brady purposes if the “prosecution failed to disclose evidence that it or law enforcement was aware of before it was too late for the defendant to make use of the evidence” and “the evidence was not otherwise available to the defendant through the exercise of reasonable diligence.” Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001). To satisfy Brady’ s prejudice prong, a civil plainti ff mustdemonstrate that the withheld evidence was material, meaning “there is a ‘reasonable prob ability’ that the result would have been di fferent had the suppressed evidence been put before the jury.” Goudy v. Cummings , 922 F.3d 834, 842 (7th Cir. 2019) (quoting Kyles , 514 U.S. at 422). The Supreme Court has made clear that Brady ’s “reasonable probability” standard is less onerous than the traditional preponderance standard. See Kyles , 514 U.S. at 434. Indeed, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence , but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of con fi dence.” Id. To make this determination, courts must assess the cumulative e ffect of all the suppressed evidence “in the context of the entire record.” United States v. Agurs , 427 U.S. 97, 112 (1976); see also Kyles , 514 U.S. at 460.Nos. 18-2211 & 18-2232 17

Turning to the merits, the plainti ff s argue that the defendant o ffi cers failed to adhere to Brady ’s mandate—and violated their due process rights—by:

 Failing to disclose impeachment evidence offered by Rickedda Young;

 Failing to disclose the circumstances surrounding Bryce Croft’s second statement;

 Failing to disclose the improper police tactics that produced Lautaurean Brown’s May 9, 2002 statement;

 Failing to disclose the improper police tactics that produced Alex Do wthard’s May 31, 2002statement and, relatedly, failing to timely disclose Dowthard’s jail calls; and

 Failing to disclose the circumstances surrounding Sonya White’s statement implicating Ross in the murder. With the exception of the allegations involving Sonya White, which lack support in the record, and the allegations involving the improper police tactics used on Dowthard, which lack admissible evidence in the record, we conclude that the plainti ff s have come forward with enough evidence to move forward with each of their alleged Brady violations against particular defendants. Rickedda Young Testimony. The plainti ff s contend that two of the defendants, Detectives Joseph Stevens and Sco tt Mastroianni, commi tt ed a Brady violation by failing to disclose that Rickedda Young informed them that she saw Brown and Dowthard immediately follo wing the murder and they18 Nos. 18-2211 & 18-2232

told her they did not see who shot at Dowthard’s mother’s house and killed Hanson. For purposes of summary judgment, the defendants do not dispute that this evidence was favorable to the plainti ff s and that Stevens and Mastroiannisuppressed it by not including it in their police reports or otherwise disclosing it to the prosecutors or plainti ff s. The defendants nonetheless urge us to view the evidence as falling short of Brady ’s materiality threshold. Because the evidence allows a contrary inference, we decline this invitation.As the district court saw it, Young’s statement was immaterial—and therefore its omissiondid not prejudice the plainti ff s—because “it merely echoed the fact that [Alex] Dowthard and [Lautaurean] Brown had initially indicated that they did not know who [ fi red] shot[s] [at] Dowthard’s mother’s house.” The district court, in short, saw Young’s statement as cumulative of information the jury heard and knew. But this perspective re fl ects too narrow a view of the evidence, divorced from favorable and indeed exculpatory inferences available to the plainti ff s on these facts. The district court correctly observed that the jurors learned that both Brown and Dowthard initially told police they did not see theshooters—in direct contradiction to their ultimate trial testimony. What the court did not account for, though, was thetestimony explaining these inconsistencies. Dowthard, for example, testi fi ed that he told police he did not know who killed his nephew because he was onparole and was not supposed to have a gun. Young’s statement—that immediately after the shooting, Brown and Dowthard told her, a family member, that they did not know who had just shot at them—would have directly impeached Dowthard’s explanation for why hisNos. 18-2211 & 18-2232 19

story changed. And the impeachment was on a point of substantial signi fi cance. Had the trial testimony included Young’s statement, the jury could have concluded that Dowthard in fact did not see who fi red the shots into his mother’s house. Put di fferently, the jury could have concluded that Dowthard’s and Brown’s statements to Young immediately following the murder were true—that, in fact, they did not know who shot into Dowthard’s mother’s house— and that their trial testimony (a nd Dowthard’s explanation of his original statement to police) was false. Suppressed impeachment evidence “may not be material if the State’s other evidence is strong enough to sustain con fi

dence in the verdict.” Smith v. Cain , 565 U.S. 73, 76 (2012). But suppressed evidence takes on particular signi fi cance—and is “plainly material”—where the pr osecution’s case rests solely on the credibility of an eyewitness. Id

. That is the case here. No physical or forensic evidence linked the plainti ff s to the Hanson murder. Rather, the State’s case hinged on the reliability of what the prosecution insisted was eyewitness testimony from Brown and Dowthard. Rickedda Young’s suppressed evidence would have directly impeached Brown and Dowthard’s testimony that they saw the plainti ff s commit the murder—the central issue at trial. Young’s statement also would have lent credibility to the plainti ff s’ argument that Dowthard, the State’s key witness,initially told the police the truth (that he did not see the shooting) but later lied during his tria l testimony to garner personal favor with the State. Based on these inferences, reasonably available from the record, the plainti ff s came forward with enough evidence to survive summary judgement on their the-20 Nos. 18-2211 & 18-2232

ory that the defendant o ffi cers (in particular, Detectives Stevens and Mastroianni) violated Brady by withholding Young’s statement. The district court erred in concluding otherwise. Bryce Croft Evidence. What the record shows regarding Bryce Croft is most troubling. In the summer of 2002—before the plainti ff s’ criminal trials—Croft provided Detective Palmer with fi rsthand information that someone other than the plainti ff s commi tt ed the murder. This development, Palmer has admi tt ed, later led him to prepare a false statement on behalf of Bryce Croft, which he then forced Croft to sign. The statement was signi fi cant because it recanted the information Croft previously provided police about the alternative suspect (Casel Montgomery). Palmer did so—he has stated under oath—not only kn owing the statement was false, but also for the sole purpose of neutralizing a witness who had a meaningful chance of undermining the prosecution’s case against the plainti ff s. The district court accepted that the plainti ff s knew nothing of Detective Palmer’s misconduct before their criminal trials or that Croft’s recantation was false. But it nonetheless concluded that “the concealment of the coercion and fabrication of Croft’s second statemen t did not prevent plainti ff s from calling him as a witness at their trials” because “[e]ither sidecould have called Croft and allowed the adversarial trial process to fl esh out the truth.”

This conclusion too discounts the evidence, especially at summary judgment. Nothing we see in the record shows that, at the time of their criminal trials, the plainti ff s had any idea that Croft’s recantation was the product of police coercion or fabrication. And, without Detective Palmer’s admission, the plainti ff s had no way to prove the recantation was false.Nos. 18-2211 & 18-2232 21

Due process entitled the plainti ff s to learn before their trial what went on with Bryce Croft. See Avery v. City of Milwaukee, 847 F.3d 433, 443 (7th Cir. 2017) (expl aining that the right to a fair trial is implicated if the St ate fails to disclose “facts about the coercive tactics used to ob tain” a witness’s statement). Remember that Croft was not a fringe player for the plainti ff s’ defense. To the contrary, he was a witness the plainti ff s very well may have called to assign responsibility for the Hanson murder to someone else. Croft had given an initial statement to the police saying that he had fi rsthand knowledge that Casel Montgomery—not the plainti ff s—was responsible for the murder. But there was no way the plainti ff s would have run the risk of calling Croft as a witness at their criminal trials inthe wake of his statement recanting that Montgomery was responsible for the murder. And that simple observation—as Detective Palmer has since admi tt ed—is precisely why he falsi fi ed the recantation and then fo rced Croft to sign it. The whole point was to neutralize Croft without the plainti ff s ever knowing that Croft’s about-face was the fruit of police misconduct. The plainti ff s have brought forth plenty here to move forward on this alleged Bradyviolation.

Lautaurean Brown’s Statement. We next consider the plainti ff s’ contention that Detectiv es Palmer and Stevens violated Brady by failing to disclose the co ercive tactics used to extract Lautaurean Brown’s statement implicating them in Hanson’s murder. The district court accepted that, when viewed in the light most favorable to the plainti ff s, the evidence showed that Brown’s May 9, 2002 statement (and his corresponding trial testimony) implicating the plainti ff s was the product of Palmer’s threat that he would go to jail if he did not give a wri tt en statement incriminating the plainti ff s. But from there the court concluded that the plainti ff s failed to22 Nos. 18-2211 & 18-2232

identify adequate evidence to satisfy Brady ’s prejudice element because, during the plainti ff s’ retrial in 2015, Brown testi fi ed that the threat did not impact the accuracy of his statement. We cannot agree. The district court’s reasoning e ff ectively required the plainti ff s to accept that Brown’s testimony in 2002 and 2004 was true because he later said so. The proper Bradyanalysis works a di fferent way. Regardless of whether Brown’s statement (and resulting testim ony) was true or false, Brady imposed a disclosure obligation: due process required disclosure to the plainti ff s of the coercive tactics used to obtain Brown’s statement. See Avery, 847 F.3d at 439. Armed with that information, the plainti ff s could have contended, in their cross examinations of Brown and during closing arguments, that Brown’s testimony implicating the plainti ff s in the Hanson murder was false—the fruit of police coercion. Put most simply, a criminal defendant ha s a due process right to information that may materially impe ach the testimony of a state’switness. Indeed, that is the very promise—the essential protection—of Brady. Because it is undisputed that the defendants failed to disclose the coercive tactics used to obtainBrown’s statement, the district court erred by granting summary judgment on this alleged Brady violation. Alex Dowthard’s Jail Calls. Finally, the district court compounded these errors by rejecting the plainti ff s’ contention that an interrelated Bradyviolation occurred with the delayed disclosure of the recordings of Alex Dowthard’s telephone calls from Big Muddy River Co rrectional Center. Recall that the tapes contain 40 hours of conversations Dowthard had with his family and friends in May 2002, following his incarceration on a parole violation. In the recorded conversations,Nos. 18-2211 & 18-2232 23

Dowthard told his family and friends that he was not present when his nephew was shot; he was threatened with additional charges if he failed to cooperate; he was physically threatened by police; and he wa s coached on what to say to police. Without question this evidence is both favorable and material to the plainti ff s. The only issue, then, is whether the tapes were suppressed within the meaning of Brady. The plainti ff s have come forward with enough at summary judgment showing the answer may well be yes. To establish that the tapes were suppressed, the plainti ff s must show that the State “fa iled to disclose known evidence before it was too late for [them] to make use of the evidence” at their criminal trials. Collier v. Davis , 301 F.3d 843, 850 (7th Cir. 2002). “The relevant inquiry,” we have emphasized, “is not whether the [State] disclosed the potentially exculpatory information at all, but whether [the criminal defendant] had

su ffi cient time to use any exculpatory information revealed to him during trial.” Pe tty v. City of Chicago , 754 F.3d 416, 423 (7th Cir. 2014). The record shows that the prosecution received the Dowthard recordings from Rockford police on October 17, 2002—the Thursday before Anderson and Johnson’s trial. The State produced the tapes to the plainti ff s’ (then defendants’)

a tt orneys the next day, a period that two Illinois courts concluded was insu ffi cient to allow for meaningful review and use of the tapes at trial. The plainti ff s contend, however, that Detective Stevens—not the prosecutors—suppressed thetapes by willfully withholding them from the prosecution until the eve of trial. In most circumstances “a police o ffi cer’s Bradyobligations are discharged by disclosing material exculpatory evidence to24 Nos. 18-2211 & 18-2232

the prosecutor, [because] it is the prosecutor’s responsibility to turn the evidence over to defense counsel.” Beaman v. Freesmeyer, 776 F.3d 500, 512 (7th Cir. 2015). Here, though, the facts as they presently stand permit a di fferent conclusion. The record shows that Detective Stevens requested Dowthard’s jail calls on May 2, 2002. He testi fi ed that the jail sent him the recorded calls piecemeal on 20 di fferent tapes, and he then listened to each of them. Though we are unable to discern with precision when Stevens actually received or listened to each of the tapes, there are indications in the record that he received them in May and June. In a supplemental police report dated September 9, 2002, for example, Stevens described his work on the Hansoncase in May 2002, noting that“[w]hile Dowthard was in prison, [Stevens] received packages of casse tt e tapes which had recorded phone calls AlexDowthard made while incarcerated at Big Muddy River Correctional Center.” Dowthard testi fi ed that he was released from custody at the end of June 2002, permi tt ing the inference that Detective Stevens possessed th e jail tapes for at least three months before Anderson and Johnson’s criminal trial yet waited to disclose them until the Thursday before trial, while also assuring the lead prosec utor that the calls contained nothing relevant to the Hanson case.

When we view the evidence in the light most favorable to the plainti ff s—as we must on summary judgment—the record allows the inference that, af ter receiving the tapes in May and June 2002, Detective Stevens withheld the calls, waited until the eve of trial to turn them over (when it was already too late for the plainti ff s to use them), and may well have compounded the delay by inaccurately describing their content and signi fi cance when he eventually turned them over to the prosecution. On this record, we conclude that there is enoughNos. 18-2211 & 18-2232 25

here to infer that Stevens suppressed the Dowthard tapes within the meaning of Brady. Of course, the ultimate facts may come out di ff erently at trial and fully absolve Detective Stevens. Our conclusion is limited to observing that the record, as it now stands, allows the plainti ff s to survive summary judgment on this alleged Brady violation. For the sake of completeness, we brie fl y address an evidentiary ma tt er the parties have raised with respect to the Dowthard tapes. The parties devote considerable a tt ention tothe admissibility of the recordings. The district court concluded that Dowthard’s calls could not be used as evidence in opposition to summary judgmentbecause they contain inadmissible hearsay. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (“[A] court may consider only admissible evidence in assessing a motion for summa ry judgment.”). To the extent that the plainti ff s seek to admit Dowthard ’s statements on the calls for their truth, we agree. But observing that the statements made on the recorded calls may not be admissible for their truth under one or another exception to the hearsay rule does not mean the evidence is not relevant and admissible for another purpose. The alternative purpose here is to establish the existence of a Brady violation based on Detectives St evens’s failure to disclose the impeachment material contained on the tapes. To succeed on this aspect of their due process claim, Anderson and Johnson must show not that Dowthard was telling the truth during his phone conversations with family and friends, but rather that the plainti ff s could have used his statements for impeachmentpurposes during their criminal trial—to undermine the credibility of testimony o ff ered by Dowthard. See 28 Wright & Gold, Federal Practice and Procedure § 6206 at 593 (2012)26 Nos. 18-2211 & 18-2232

(“Where a prior inconsistent statement is o ff ered only to impeach, it is not hearsay since it merely shows the witness is unreliable and says nothing abou t the truth of the facts asserted in the statement.”). To the extent that the parties debate the authenticity of the Dowthard tapes, we note only that, as best we can tell, no one questions whether the tapes came from the State and re fl ect Dowthard’s voice and telephon e discussions while incarcerated at Big Muddy. And what we see in the summary judgment record are certi fi ed transcripts of the recorded calls (just as a deposition transcript would be certi fi ed), and there too nobody seems to say the certi fi cation is false. We have no reason, in short, to question that the plainti ff s have su ffi ciently authenticated the tapes and transcripts to allow us to consider their impeachment value for purposes of assessing this aspect of their Brady claim.

B. Due Process Claim: Fabricated Evidence In their amended complaint, the plainti ff s also alleged that the o ffi cers fabricated a laundry list of evidence. Those allegations extend to Alex Dowthard’s and Lautaurean Brown’s statements (and subsequent tr ial testimony) implicating the plainti ff s in Hanson’s murder as well as Bryce Croft’s recantation. While we agree that the plainti ff s brought forward evidence of coercion, we see no error with the district court disallowing the due process claim to go forward on a theory of fabricated evidence with one limited exception as it pertains to Detective Palmer. It is well-established that “a police o ffi cer who manufactures false evidence against a cr iminal defendant violates due process if that evidence is later used to deprive the defendantNos. 18-2211 & 18-2232 27

of [his] liberty in some way.” Whitlock v. Brueggemann , 682 F.3d 567, 580 (7th Cir. 2012). To es tablish such a violation, the plainti ff s must demonstrate not only that the defendant o ffi cers “created evidence that they knew to be false,” Pe tty, 754 F.3d at 423, but also that the ev idence was used “in some way” to deprive them of liberty, Whitlock , 682 F.3d at 580. The plainti ff s’ primary contention is that the defendant offi cers coerced the prosecution’s two key witnesses, Dowthard and Brown, to give statements implicating the plainti ff s that the defendants knew were false, with the statements then being used to convict the plainti ff s of the Hanson murder. Beginning with Brown, the plainti ff s assert that DetectivesPalmer and Stevens secured a false statement blaming Anderson, Johnson, and Ross for Hanson’s murder by threatening Brown with jail time if he failed to cooperate and detaining him for more than ten hours. Th ey also contend that Palmer and Stevens, along with Detective Theo Glover, coerced Dowthard into falsely implicating the plainti ff s, this time through physical force and bythreatening him with additional charges if he failed to cooperate. And, with respective to both Dowthard and Brown, the plainti ff s maintain that Detective Palmer instructed both witnesses to testify consistently with their statements, even th ough he knew those statements were false.

As a threshold ma tt er, we agree that the record shows agenuine and unresolved dispute about whether the police coerced Brown and Dowthard to provide statements blaming the plainti ff s for Hanson’s murder. But coercion and fabrication are not synonyms, and we ha ve stressed that “[an allegation] that an o ffi cer coerced a witness to give incriminating evidence does not, at least stan ding alone, violate the wrongly28 Nos. 18-2211 & 18-2232

convicted person’s due-process rights.” Avery, 847 F.3d at 439. Even more speci fi cally, we have drawn a line between coerced testimony—“testimony that a wi tness is forced by impropermeans to give... [it] may be true or false”—and fabricated testimony—which is “invariably false.” Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014). Only the la tt er supports a due process claim, and even then, only if the record shows that the

o ffi cers “created evidence they knew to be false .” Avery, 847 F.3d at 439; see also Whitlock , 682 F.3d at 584 (explaining that “[c]oercively 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 “[e]videncecollected with these kinds of suspect techniques, unlike falsifi ed evidence and perjured testimony, may turn out to be true”). The plainti ff s have not brought forth enough evidence to create a genuine material dispute as to whether Detectives Stevens or Glover knew that Brown and Dowthard’s statements implicating the plainti ff s were false as required tomaintain a due process claim premised on a theory of evidence fabrication. But we reach a di ff erent conclusion with respect to Detective Palmer. The plainti ff s insist that the record shows more than mere coercion because Detective Palmer admi tt ed that he knew thatBrown and Dowthard’s statements were false and nonetheless instructed them to testify consistent with these false statements at the plainti ff s’ criminal trials. See Fields, 740 F.3d at 1112 (explaining that investigator s fabricated evidence whenNos. 18-2211 & 18-2232 29

they “told witnesses what to sa y knowing that what the [witness] was telling them was false”). Indeed during the state post-conviction proceedings, Palmer repeatedly shared hisbelief that Anderson, Johnson, and Ross did not shoot Demarcus Hanson—and that Dowthard’s claim that he witnessed the plainti ff s shoot at his mother’s house was not true. And, perhaps most critical to our analysis, Palmer testi fi ed that, despite this belief, he instructed Dowthard and Brown to testify consistent with their wri tt en statements implicating the plainti ff s. Against the backdrop of Palmer’s admissions of wrongdoing—not an everyday occurrence—it is very di ffi cult to conclude that the plainti ff s have not done enough to survive summary judgment on this dimension of their due process claim.

This conclusion fi nds additional support in the record. When deposed in this ma tt er, for example, Detective Palmerexercised his Fifth Amendment right against self-incrimination when asked whether he told Brown and Dowthard to testify consistent with their stat ements “even though [he] believe[d] their statements [were] not truthful.” The Fifth Amendment permits an adverse inference against parties incivil actions when they refuse to testify in response to probative evidence against them. See Baxter v. Palmigiano , 425 U.S.308, 318 (1976). Based on the record before us, and upon combining the weight of Palmer’s admissions during the statepost-conviction proceedings with this adverse factual inference, we conclude that the plainti ff s have carried their summary judgment burden on their allegation that Detective Palmer fabricated Brown and Dowthard’s statements. Palmerdid so by coercing the witnesses to give statements he believed were false—and this evidence was used to deprive the plainti ff s of their liberty when Palmer then instructed Brown30 Nos. 18-2211 & 18-2232

and Dowthard to testify consistent with these allegedly false

statements. We turn next to the allegations involving Bryce Croft. Again, the plainti ff s maintain that Detective Palmer drafted astatement for Croft to sign which falsely recanted the information he previously provided about Casel Montgomery’s involvement in the murder. Pa lmer’s actions, the plainti ff scontend, prohibited them from presenting evidence of an alternate suspect through Croft because, if called as a witness, he would have been impeached by his false recantation. While this description of events fi nds support in the record, the plainti ff s cannot show that the prosecution used Croft’s second statement (the one prepar ed by Palmer) to convict any of the plainti ff s. Summary judgment, therefore, was appropriate as it pertains to the plainti ff s’ evidence fabrication theory.

III The plainti ff s’ amended complaints are expansive—naming nine defendants and advancing nine separate claims. Onappeal, their arguments are equally sprawling, advancing numerous claims against numerous parties and raising multiple legal issues. Based upon our th orough review of the record and the parties’ briefs, we have focused only on those issues we believe warrant discussion and on those aspects of the plainti ff s’ claims that survive summary judgment. We havedone so in part to aid and sharpen the focus of the proceedings as the case returns to the district court.

In furtherance of this e ff ort, we conclude by recapping which of the plainti ff s’ claims (or aspects of claims) may proceed against which defendants on remand.Nos. 18-2211 & 18-2232 31

Beginning with Count I, we a ffi rm the entry of summary judgment for the defendants on the plainti ff s’ evidence fabrication allegations with respect to all defendants except Detective Doug Palmer, and only then as it pertains to the testimony of Brown and Dowthard. Onthis same count, the plainti ff s may proceed with a due process claim rooted in each of following alleged Brady violations:

 Failure to disclose impeachment evidence offered by Rickedda Young: defendants Joseph Stevens and Sco ttMastroianni;

 Failure to disclose the circumstances surrounding Bryce Croft’s statement: defendant Doug Palmer;

 Failure to disclose the improper police tactics that produced Lautaurean Brown’s statement: defendants Joseph Stevens and Doug Palmer; and

 Failure to timely disclose the recordings of AlexDowthard’s jailhouse telephone calls: defendant Joseph Stevens.As for the remaining defendants named in Count I (on either theory), we a ffi rm the entry of summary judgment in favor of defendants Theo Glover, Dominic Iasparro, James Randall, and Torrey Regez because the plainti ff s have failed to set forth any arguments or identify any evidence that any of these

o ffi cers engaged in any of the al leged due process violations.Turning to Count II (failure to intervene), Count III (conspiracy), and Count VII (supervisor liability), the district court concluded that the defendants necessarily were entitled to summary judgment owing to it s determination that plainti ff s32 Nos. 18-2211 & 18-2232

failed to bring forth enough evidence to support their Bradyand fabrication allegations. In these circumstances, and especially given the expanse and complexity of the factual record, remand is appropriate to allow the district court to consider each of these claims in the fi rst instance—and to determine whether they may proceed and, if so, against which defendants. The district court also g ranted summary judgment onCount VIII (§ 1983 malicious prosecution) and Count IX (Illinois malicious prosecution). We a ffi rm this aspect of the district court’s judgment. Beginning with the § 1983 claim, the plainti ff s’ amended complaint alleges that the defendant offi cers violated their rights under the Fourth and FourteenthAmendments by improperly subjecting them to judicial proceedings without probable cause. But “[t]here is no such thingas a constitutional right not to be prosecuted without probable cause.” Manuel v. City of Joliet, Illinois , 903 F.3d 667, 670 (7th Cir. 2018) (quoting Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013)). There is, however, “a co nstitutional right not to be held in custody without probable cause,” id ., and the Supreme Court has “ma[de] clear that the Fourth Amendment, not the Due Process Clause, governs a cl aim for wrongful pretrial detention,” Lewis v. City of Chicago , 914 F.3d 472, 475 (7th Cir. 2019) (citing Manuel v. City of Joliet, Illinois , 137 S. Ct. 911 (2017)). The plainti ff s do not assert they were subjected to pretrial detention (though evidence inthe record suggests theywere)—but even if they had, their claim would still fail because it hinges upon showing the absence of probable cause to support their arrests and con fi nement. The record supportsNos. 18-2211 & 18-2232 33

the district court’s conclusion th at at least some of the defendant o ffi cers reasonably believed that the plainti ff s were guilty of murder based on the accounts given by Dowthard and Brown. And it cannot reasonab ly be disputed that the wri tt en statements of Dowthard and Brown provided probable causeto support the arrests. Summary judgment, therefore, was appropriate on the plainti ff s’ federal claim. Because an Illinois claim for malicious prosecution likewise requires the absenceof probable cause, the district court properly granted summary judgment on this claim as well. See Johnson v. Saville, 575F.3d 656, 659 (7th Cir. 2009) (identifying the elements of a malicious prosecution claim under Illinois law).Finally, the district court concluded that the City of Rockford was entitled to summary judgment on Count XI (respondeat superior) and Count XII (indemni fi cation) because the plainti ff s failed to maintain a claim against any defendant police o ffi cer. In light of our conclusion regarding the potential liability of certain individual o ffi cers, the entry of summary judgment on these claims was likewise premature. We leave it to the district court to evaluate these claims on the merits in the fi rst instance on remand. For the sake of completeness, however, we note that the district court rejected the plainti ff s’ claims against the City premised on a Monell theory of liability. Because the plainti ff s failed to challenge this aspect of the district court’s ru ling, we consider this argument waived and the plainti ff s may not seek to revive this aspect of their claims on remand. For all of these reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.