### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1742

C HRISTOPHER C OLEMAN

, Plaintiff

‐ Appellant

,

v.

C ITY OF P EORIA

, I LLINOIS

, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:15

‐ cv

‐ 01100

‐ SLD

‐ TSH

— Sara Darrow

, Chief Judge

.

____________________

A RGUED F EBRUARY 22, 2019

— D ECIDED M AY 24, 2019

____________________

Before R IPPLE

, M ANION

, and B RENNAN

, Circuit Judges

.

B RENNAN

, Circuit Judge

. Almost twenty

‐ fi ve years ago, a

jury convicted Christopher Coleman of armed robbery, home

invasion, residential burglary, and aggravated sexual assault.

Three witnesses linked Coleman to the crimes, and their iden

‐

ti fi cations were the key evidence leading to his conviction.

The court sentenced Coleman to sixty years’ imprisonment.2 No. 18

‐ 1742

Fifteen years later, a group of men came forward claiming

they were responsible for the crimes. Based on this new evi

‐

dence, the Illinois Supreme Court ultimately vacated

Coleman’s convictions and remanded for retrial. People v.

Coleman

, 996 N.E.2d 617 (Ill. 2013). Rather than retry the case,

the prosecution decided to drop it. After nineteen years be

‐

hind bars, Coleman was released in 2013, and a later judicial

order certi fi ed his innocence.

Coleman has now sued the City of Peoria and four police

o ffi cers—Patrick Rabe, 1 Terry Pya tt

, Timothy Anderson, and

Michael Ford—accusing them of constitutional violations and

state torts. Speci fi cally, Coleman contends defendants elicited

a false statement from an alleged accomplice through coercive

interrogation techniques, employed improper and unduly

suggestive identi fi cation procedures, and suppressed im

‐ peachment evidence. After three years of civil litigation, the

district court granted defendants summary judgment on

Coleman’s federal claims and state law malicious prosecution

claim, and it relinquished supplemental jurisdiction over his

remaining state law claims.

We agree with the district court’s summary judgment de

‐

cision and a ffi rm. Coleman failed to present evidence

supporting a reasonable inference that defendants knowingly

fabricated false evidence, caused unreliable eyewitness iden

‐

ti fi cations to taint his criminal trial, withheld material evi

‐

dence, or arrested him without probable cause.

1 Rabe passed away after the filing of this lawsuit, and his estate was

substituted in his place.No. 18

‐ 1742 3

I. Background

The parties agree on many basic facts, but they vigor

‐ ously dispute a few key points and the inferences to be drawn

from undisputed evidence. Because this appeal comes to us

on summary judgment, we review all evidence in the light

most favorable to Coleman and give him the benefit of all rea

‐

sonable inferences. See Cairel v. Alderden

, 821 F.3d 823, 830 (7th

Cir. 2016).

A. The Home Invasions

During August 1994, the Peoria Police Department inves

‐ tigated a series of home invasions with a similar modus

operandi. The early morning hours of August 22 were espe

‐ cially busy.

At approximately 2:10 a.m., O ffi cer Douglas Theobald re

‐ sponded to a 911 call from Yolanda Buckley reporting a vio

‐

lent burglary. Buckley told the police that four men forced

their way into her house, placed a pillowcase over her head,

struck her with a gun, and ransacked her home, stealing

money, a bike, and a stereo. She also claimed to have over

‐

heard her a tt ackers discussing what to do next.

About thirty minutes later, a group of men broke into

Bertha Miller’s house, less than a half mile from Buckley’s.

Bertha lived with two of her sisters and her twin teenage

daughters, Tequilla Miller and Tekelia Miller. The burglars

entered via the kitchen window, wore bandanas over their

faces, demanded money and drugs, and tore up the home

looking for valuables to steal. They threatened the residents

with handguns drawn, repeatedly hi tt ing and kicking their

victims. One of the invaders dragged Tekelia into a bathroom

and raped her at gunpoint, within earshot of Bertha.4 No. 18

‐ 1742

Eventually, one of Bertha’s sisters reached a telephone

upstairs and dialed 911. The fi rst police o ffi cers arrived at

approximately 3:10 a.m. A pre

‐ teen boy acting as the crimi

‐

nals’ lookout alerted them to the o ffi cers’ arrival. Two men

raced out the front door with the boy, while the rest retreated

to the second story before jumping out a window one by one.

The police apprehended Robert Nixon inside the house and

James Coats after he jumped out the window, but the others

escaped the scene.

B. Police Investigation

Detective Patrick Rabe arrived shortly after the fi rst re

‐ sponding o ffi cers, at around 3:15 a.m. Rabe led the investiga

‐

tion into the Miller home invasion, which the police

conducted separately from the investigation into the Buckley

burglary.

While the events at the Miller home were unfolding, 2 Of

‐

fi cer Theobald drove to the Warner Homes, a public housing

development about fi ve blocks away known for drug and

gang

‐ related activity. There, he arrested Coleman in connec

‐

tion with the Buckley crimes. 3 Theobald failed to record

Coleman’s time of arrest in his report, contrary to department

protocol.

Rabe took the Millers to the police station shortly after

4:00 a.m. O ffi cers conducted witness interviews but did not

2 As discussed below, the parties disagree about the exact sequence.

3 Defendants claim the police arrested Coleman based on a Crime

Stoppers tip that reported “Chris Coleman” was carrying a stereo into the

Warner Homes. Coleman disputes the existence of the tip. The dispute is

not material to defendants’ summary judgment motion.No. 18

‐ 1742 5

show the victims any photographs or lineups during this

early morning visit. Tequilla Miller told o ffi cers she recog

‐

nized the perpetrators from her time living in the Warner

Homes.

As Tequilla exited the station to go home, o ffi cers were es

‐ corting Coleman and Nixon down the same hallway. Seeing

the two men (and in the presence of an unnamed o ffi cer),

Tequilla announced, “Well, there goes two of them dudes that

was at our house.” Rabe was not in the hallway during the

encounter, but Tequilla told him about it later that day.

Tequilla returned to the station around noon. Based on her

earlier statement that she recognized the perpetrators from

the Warner Homes, Rabe asked Sergeant Michael Ford and

O ffi cer Timothy Anderson for assistance. Ford and Anderson

both worked a beat around the Warner Homes, and they of

‐

fered names of possible suspects as Tequilla described the

burglars. Rabe then showed Tequilla pictures of over one hun

‐

dred possible o ff enders on a computer screen, as well as a

stack of photographs of juveniles who o ffi cers suspected

might have been the lookout she described. 4 Tequilla picked

4 Coleman’s assertion that officers showed “Tequilla a single photo

‐ graph of Plaintiff and no one else, not as a part of a lineup or book of mug

‐

shots,” Appellant’s Br. 9, Coleman v. City of Peoria

, No. 18

‐ 1742 (7th Cir.

Sept. 14, 2018), ECF No. 24, is misleading. Rabe testified he performed a

computerized “cold search” of photos of arrestees in Peoria County who

matched the age, weight, and height description Tequilla provided.

Tequilla said Rabe showed her more than one hundred such photos. Alt

‐ hough the photos were not arranged in an array, this is not a case where

police put a single photo in front of a witness and asked her to confirm

that person was the perpetrator.6 No. 18

‐ 1742

out Coleman as one of the burglars and identi fi ed a

12

‐ year

‐ old boy named Anthony Brooks as the lookout.

O ffi cers brought Brooks down to the station later that af

‐

ternoon, and Rabe questioned him without an a tt orney or par

‐

ent present. Brooks initially denied any involvement with the

Miller home invasion. Rabe told Brooks he did not believe

him, informed Brooks that a witness had already identi fi ed

him, showed him a photograph of Coleman, and told Brooks

he would spend the rest of his life in prison and never see his

family again if he did not incriminate Coleman. 5 Eventually,

Brooks confessed to commi tt ing the crimes with Coleman and

four other individuals.

Shortly thereafter, Tequilla Miller returned to the police

station for the third time that day, where she viewed a four

‐

person lineup. O ffi cers told Tequilla, “We are not going to tell

you who to pick.

... Go in there and just pick out whoever you

saw in the photos, you know, if those are the people.

... One

of these people is the person you picked out in the photo, the

rest are volunteers.

... Pick out the person that you think was

the one.” Coleman was in the lineup, as were three inmates

from the Peoria County Jail who each wore identical yellow

wristbands. Coleman did not wear such a wristband. Tequilla

identi fi ed Coleman as one of her assailants.

C. Grand Jury Testimony

On September 13, 1994, a grand jury convened to decide

whether to indict Coleman. Bertha Miller took the stand to

describe the crimes to the grand jury. When asked if she knew

5 Although Rabe denied Brooks’s description of the interrogation on

multiple occasions before his death, at this stage we take the facts in the

light most favorable to Coleman.No. 18

‐ 1742 7

any of the burglars, Bertha testi fi ed, “I know Chris Coleman

from a li tt le kid, but I didn’t know at the time that was him.”

Tequilla Miller stated she recognized one of the men, who she

named as “Robert Nickerson”—Tequilla did not mention

Coleman. Anthony Brooks did not testify before the grand

jury.

Rabe did testify, summarizing how Coleman was identi

‐

fi ed and arrested:

We later, through photographs and speaking

with other police o ffi cers who were familiar

with these guys, came up with the names of

Chris Coleman, Elbert Nickerson, one still at

large by the name of Roberson

..., and a juvenile

by the name of Anthony Brooks. What we did

was put together photograph line

‐ ups of these

subjects. We showed ‘em to the Millers, they

were identi fi ed.

We went out, we arrested them. We brought

them in and we placed them in an in

‐ person

line

‐ up with black males of similar age, height,

and weight. Coats, Nixon, Coleman, Nickerson,

were all positively identi fi ed in those line

‐ ups as

being the subjects who had broken into their

house and robbed them on that evening.

The grand jury indicted Coleman on all charged counts.

D. Pre

‐ Trial Proceedings

Two weeks later, Anthony Brooks returned to the police

station to recant, denying that he or Coleman had been at the

Millers’ house on August 22. Months later, Coleman’s fi ancée

reported that, on the night of the crimes, Coleman had been8 No. 18

‐ 1742

with her at a friend’s apartment continuously from 10:30 p.m.

until the time of his arrest.

O ffi cers photographed the members of the live lineup

shown to Tequilla Miller shortly after she identi fi ed Coleman.

The photo shows Coleman lacked a yellow wristband like the

others wore. The prosecution’s case fi le does not contain a

copy of that photo, and neither the assistant state’s a tt orney

nor Coleman’s defense counsel recalls seeing it before trial.

Years later, the photo was found in a case fi le on another home

burglary that police o ffi cers investigated around the same

time.

The day before Coleman’s criminal trial, defense counsel

moved to suppress Tequilla’s photo and lineup identi fi cations

based on the early morning hallway encounter. During the

suppression hearing, Tequilla identi fi ed Coleman as one of

the burglars. She testi fi ed she saw his face for a “good three

minutes” during the incident. Tequilla told the court she

made her earlier identi fi cations of Coleman because she rec

‐ ognized his face; she said o ffi cers never told her who to pick

out. The court denied Coleman’s motion to suppress.

E. Criminal Trial

Coleman’s three

‐ day criminal trial began on April 4, 1995.

Tequilla Miller, the prosecution’s fi rst key witness, testi fi ed

she awoke to noise in the early morning hours of August 22

and rushed into the living room, where she found men stand

‐ ing over her aunt with guns drawn. She told the jury how the

intruders threw her to the fl oor and unsuccessfully a tt empted

to cover her head with a pillowcase. Tequilla said two men

took o ff the bandanas covering their faces during the incident.

She claimed she recognized one as “Fats,” an acquaintanceNo. 18

‐ 1742 9

from when her family lived in the Warner Homes. 6 Tequilla

identi fi ed that man as Coleman and testi fi ed she observed

him for a “good three minutes” during the home invasion.

She noted that Coleman had sat in a chair next to a lamp

“most of the time” during the burglary and that she had no

problem seeing his “whole face.”

Tequilla testi fi ed Rabe showed her more than one hundred

photos of possible suspects when she went to the police

station around noon. As for the lineup, Tequilla acknowl

‐ edged police o ffi cers informed her that some of the men were

“volunteers” and others “were people that I named out [from

photos].” But Tequilla stated this had no in fl uence on her

lineup identi fi cation of Coleman. Tequilla explained she

picked Coleman because she “remember[ed] his face from

that night” and that she remembered his face because she

knew him previously.

Defense counsel never objected to Tequilla’s in

‐ court iden

‐

ti fi cation of Coleman. Cross

‐ examination, however, high

‐ lighted that Tequilla had not told the grand jury that she

recognized Coleman and that she had retracted her identi fi

‐

cation of Elbert Nickerson (the one man she told the grand

jury she had recognized). On redirect, Tequilla testi fi ed she

was “positive” she saw Coleman’s face during the a tt ack.

After Tequilla’s testimony, Bertha Miller took the stand.

Despite admi tt ing she could not see Coleman’s face during

the burglary, Bertha identi fi ed him as one of the perpetrators

by his voice and “crooked” limp. She explained that she had

been friends with Coleman’s mother when he was a child, that

6 Later in the trial, Coleman acknowledged he recognized Tequilla

from the Warner Homes.10 No. 18

‐ 1742

he had visited her home regularly back then, and that she had

known him for “[a]bout 19 or 20 years.”

On cross, Bertha vociferously rea ffi rmed her identi fi cation

of Coleman:

I’m saying the person that I know was Chris

Coleman—You understand me, [defense coun

‐ sel], he was there. Do you understand what I am

saying? I know him. Can nobody doubt me that

I would know him. Thank you, sir. I know that

he was there.

... He was there in the dining

room, there to my bedroom door, there while I

had my face turned this way, and when they

started beat, and when they started kicked, and

went on, and Chris Coleman was standing there

giving orders. Do you understand me, sir?

... I

know that from his voice, and I know that from

his walk. I was not blind.

... I know his voice

from being an individual; I know his voice from

being an adult, too. I seen Chris Coleman a lot

of time. I don’t associate with him because I

have no right. He’s a kid to me, but I know Chris

Coleman. Don’t I, Chris? I know. 7

Next, the prosecution called its third identi fi cation wit

‐

ness, Anthony Brooks. Brooks provided confusing—and

seemingly contradictory—testimony on whether Coleman

7 Coleman later admitted he knew Bertha from the Warner Homes,

but he disputed her portrayal of their relationship.No. 18

‐ 1742 11

participated in the Miller home invasion. 8 When asked on

direct, Brooks testi fi ed Coleman was at the Millers’ home dur

‐ ing the early morning hours of August 22. But when probed

on cross, Brooks said Coleman was not there and the only rea

‐

son he ever identi fi ed Coleman was Rabe’s threat that he

would never see his family again.

The defense called Robert Nixon, who was apprehended

at the scene and pleaded guilty. Nixon stated Coleman did

not participate in the crimes. He identi fi ed fi ve other men as

his accomplices.

Coleman testi fi ed on his own behalf, claiming he had been

at the apartment in the Warner Homes all night before his

arrest and denying any involvement with the Miller home in

‐

vasion. Coleman’s fi ancée and a friend both corroborated his

alibi.

Following closing arguments, the jury found Coleman

guilty on all four counts.

F. Post

‐ Conviction Proceedings

Coleman moved for a new trial, which the trial court de

‐

nied. The Illinois Appellate Court a ffi rmed his conviction,

8 Much of the confusion involved Brooks’s testimony that Coleman

shared the nickname “Fats” with one of the other alleged perpetrators:

“Q: At that time, did you or did you not tell Detective Pat Rabe that Chris

‐ topher Coleman was with you on the morning of August 22, 1994?

A: There was two Fats on that day when [Rabe] showed me [photo

‐ graphs]. Q: Pardon me? A: They had two dudes. Both of them name was

Fats on that paper, a light skin one and a dark skin one. Q: Which Fats did

you tell him that was with you on the morning of August 22, 1994? A: Told

both of them. Q: Both of them. Well, who is the dark skin Fats that you

told Officer Rabe that was with you? A: But it was the light skin one.”12 No. 18

‐ 1742

People v. Coleman

, 718 N.E.2d 1095 (Ill. App. Ct. 1997) (un

‐ published table decision), and the Illinois Supreme Court de

‐

nied further review. People v. Coleman

, 690 N.E.2d 1383 (Ill.

1998) (unpublished table decision).

Coleman then fi led a petition for post

‐ conviction relief, al

‐ leging ine ff ective assistance by his appellate counsel in failing

to challenge the admission of Tequilla Miller’s photo and

lineup identi fi cations. The Illinois Appellate Court denied

Coleman’s petition, noting “Tequilla Miller’s credibility was

thoroughly tested at trial, and the jury apparently believed

her.” Order 4, People v. Coleman

, No. 3

‐ 99

‐ 0414 (Ill. App. Ct.

Mar. 16, 2001).

Eight years later (about 14 years after Coleman’s convic

‐

tion), Coleman fi led a motion for leave to pursue a successive

petition for post

‐ conviction relief on the basis of actual

innocence. In support, Coleman submi tt ed a ffi davits and tes

‐ timony from several individuals, including all six men identi

‐

fi ed as the perpetrators by Robert Nixon at Coleman’s trial.

Five of the men claimed personal responsibility for the crimes,

and all six stated Coleman was not involved.

The trial court denied Coleman’s petition, and the Illinois

Appellate Court a ffi rmed that decision. People v. Coleman

,

No. 3

‐ 10

‐ 0419, 2011 WL 10468157 (Ill. App. Ct. Aug. 25, 2011).

But the Illinois Supreme Court reversed, granting Coleman’s

post

‐ conviction petition based on this new evidence, vacating

Coleman’s convictions, and remanding for another trial.

People v. Coleman

, 996 N.E.2d 617, 621, 641 (Ill. 2013)

(“Weighed against the State’s evidence, the defendant’s new

evidence is conclusive enough that another trier of fact would

probably reach a di ff erent result.”).No. 18

‐ 1742 13

Approximately six months later, rather than retry the case,

the prosecution moved to dismiss it. The state’s a tt orney’s of

‐

fi ce later said it did so because of Bertha Miller’s death in the

intervening years, which made “proof beyond a reasonable

doubt di ffi cult,” and because Coleman had already served “as

much time incarcerated as other perpetrators of the applicable

crimes.”

Coleman was released from prison after the criminal pros

‐

ecution was dropped, and he fi led a petition for a certi fi cate

of innocence. 9 The circuit court for Peoria County granted

Coleman a certi fi cate of innocence in 2015.

G. This Litigation

Coleman fi led this lawsuit in federal court fi ve days later.

His operative complaint alleges nine counts. The fi rst four are

brought under 42 U.S.C. § 1983: violation of his due process

right to a fair trial under the Fourteenth Amendment, conspir

‐

acy to deprive him of his constitutional rights, failure to inter

‐

vene, and violation of his Fourth Amendment rights through

detention without probable cause. The last fi ve counts are

related state law claims: malicious prosecution, intentional

in fl iction of emotional distress, civil conspiracy, respondeat

superior, and indemni fi cation.

Defendants eventually moved for summary judgment.

The district court granted the motion, entering a judgment on

9 If an Illinois conviction is reversed or vacated, the previously con

‐

victed individual may petition for a “certificate of innocence.” 735 I LL

.

C OMP

. S TAT

. 5/2

‐ 702(b) (2014). If granted, such a certificate constitutes a

judicial “finding that the petitioner was innocent of all offenses for which

he or she was incarcerated” and sets in motion a process to expunge the

matter from the petitioner’s record. 735 I LL

. C OMP

. S TAT

. 5/2

‐ 702(h) (2014).14 No. 18

‐ 1742

the merits with respect to Coleman’s § 1983 and malicious

prosecution claims, while declining supplemental jurisdiction

over his remaining state law claims and dismissing them

without prejudice. Coleman now appeals that decision.

II. Discussion

A. Due Process Claim

We begin with Coleman’s claim that defendants violated

the Fourteenth Amendment’s Due Process Clause by depriv

‐ ing him of a fair trial. Coleman presents three distinct theories

for this claim: (1) defendants fabricated evidence by coercing

a false statement from Brooks; (2) defendants used unduly

suggestive procedures that tainted Tequilla’s identi fi cations;

and (3) defendants violated their Brady obligations by with

‐ holding the lineup photo.

As explained below, the summary judgment record does

not present a genuine issue of material fact on any of Cole

‐

man’s due process theories, and defendants are entitled to

judgment as a ma tt er of law on each.

1. The evidence is insu ffi cient to reasonably infer

that defendants fabricated Brooks’s statement.

Coleman’s primary contention is that Rabe fabricated

Brooks’s incriminating statement. Obviously, law enforce

‐

ment o ffi cers “may not knowingly use false evidence, includ

‐ ing false testimony, to obtain a tainted conviction.” Napue v.

Illinois

, 360 U.S. 264, 269 (1959). Using false evidence to con

‐

vict violates a defendant’s right to a fair trial guaranteed by

the Fourteenth Amendment’s Due Process Clause. Mooney v.

Holohan

, 294 U.S. 103, 112 (1935); see also Whitlock v.

Brueggemann

, 682 F.3d 567, 580 (7th Cir. 2012).No. 18

‐ 1742 15

This is a high bar to clear. Coleman must prove not only

that Brooks’s statement was false but that Rabe “manufac

‐

tured” it. Whitlock

, 682 F.3d at 580. That requires proof that

Rabe caused Brooks to provide him with a statement that

Rabe knew—with certainty—was false. Fields v. Wharrie

, 740

F.3d 1107, 1112 (7th Cir. 2014) (investigators fabricate evi

‐

dence when they tell “witnesses what to say knowing that

what the team [is] telling them [is] false”). Evidence that

merely impeaches aspects of Brooks’s statement or suggests

Rabe had reason to doubt Brooks’s veracity is insu ffi cient.

Coleman raises three arguments to prove Rabe knew

Brooks’s statement was false, each depending on inferences

from circumstantial evidence. Although Coleman is entitled

to have all reasonable inferences drawn in his favor at this

stage, “inferences that are supported by only speculation or

conjecture will not defeat a summary judgment motion.”

Carmody v. Bd. of Tr. of Univ. of Ill.

, 893 F.3d 397, 401 (7th Cir.

2018).

First, Coleman points out that Rabe led the investigation

into the Miller home invasion. From that undisputed fact,

Coleman contends a jury could reasonably infer that Rabe

knew the speci fi c time of Coleman’s initial arrest. And from

there, Coleman suggests the jury could divine that Rabe knew

it was impossible for Coleman to have been involved in the

Miller home invasion because he was already in police

custody. Coleman starts with the simple fact that Rabe led an

investigation, and he ends up with a conclusion that Rabe

must have known Coleman had a slam dunk alibi but manu

‐

factured false evidence to prosecute him anyway.16 No. 18

‐ 1742

Such an inference is entirely speculative. No testimony

suggests Rabe knew the time of Coleman’s arrest. 10 Police of

‐

fi cers initially arrested Coleman in connection with the

Buckley home invasion; Rabe was not responsible for investi

‐ gating that separate crime. And the lack of a time of arrest in

O ffi cer Theobald’s police report does not establish Rabe knew

exactly when Coleman was arrested. It was Coleman’s obliga

‐

tion to present evidence of Rabe’s knowledge, not defendants’

burden to disprove Coleman’s hypotheses. McAllister v. Price

,

615 F.3d 877, 881 (7th Cir. 2010) (noting it is a § 1983 plainti ff ’s

burden to establish the underlying constitutional depriva

‐

tion). 11

10 Coleman points to testimony from two responding officers

acknowledging they discussed the basic fact that two home invasions oc

‐

curred on the same night, arguing this demonstrates Rabe would have

learned about Coleman’s time of arrest from the Buckley investigators. But

the officers’ testimony does not support the conclusion that the police

teams shared specific details about developments in the separate investi

‐ gations. Nothing in the record suggests officers discussed the exact time

of Coleman’s arrest, let alone that such information was conveyed to Rabe.

11 Even assuming Coleman presented evidence supporting this initial

inference that Rabe knew when Coleman was arrested, Coleman lacks any

evidence for his secondary inference that Rabe must have connected all

the dots and realized that—based on the time of arrest—Coleman could

not have been involved with the Miller home invasion and Brooks’s

statement was certainly false. Tequilla Miller testified that two offenders

escaped with the lookout before officers broke up the burglary. Officer

Theobald arrested Coleman just five blocks away. Under Coleman’s own

reconstructed timeline, it would have been possible for him to have en

‐ gaged in the crimes, fled the scene to the Warner Homes, and have arrived

in time to be arrested by Officer Theobald. That Coleman’s own

reconstructed timeline allows for this possibility defeats any reasonable

inference that Rabe must have ruled it out with certainty that day.No. 18

‐ 1742 17

Second, Coleman notes that a report Rabe prepared

indicates he “arrested” Coleman (who was already in police

custody) for the Miller home invasion at 1:10 p.m., about three

hours before he interrogated Brooks. Coleman claims this

supports a reasonable inference that Rabe decided to frame

Coleman for the crime fi rst and then went to work manufac

‐ turing evidence to convict. This overlooks that Tequilla Miller

identi fi ed Coleman by his photo before 1:00 p.m. It is not rea

‐

sonable to infer Rabe must have falsi fi ed Brooks’s statement

to justify Coleman’s arrest when he already possessed an eye

‐

witness identi fi cation. Cf. Hart v. Mannina

, 798 F.3d 578, 587

(7th Cir. 2015) (an identi fi cation by a single eyewitness can

support probable cause for arrest).

Third, Coleman argues Rabe must have known Brooks’s

statement was false because he coerced Brooks and supplied

him with details about the crime in his questioning. But the

fact Rabe applied coercive interrogation techniques is insu ffi‐

cient to fi nd fabrication of evidence. Avery v. City of Milwaukee

,

847 F.3d 433, 439 (7th Cir. 2017) (“[A] claim that an o ffi cer co

‐

erced a witness to give incriminating evidence does not, at

least standing alone, violate the wrongly convicted person’s

due

‐ process rights.”). Coerced testimony is not necessarily

fabricated. A reluctant witness or co

‐ conspirator whose testi

‐

mony an o ffi cer must pry out through aggressive interroga

‐

tion techniques may be telling the truth despite the measures

used. Fabricated testimony, meanwhile, is invariably false

because it is made up by the o ffi cer, who knows he is making

it up. Fields

, 740 F.3d at 1110.

We explained this distinction in Whitlock :

Coercively interrogating witnesses, paying wit

‐

nesses for testimony, and witness

‐ shopping18 No. 18

‐ 1742

may be deplorable, and these tactics may con

‐

tribute to wrongful convictions, but they do not

necessarily add up to a constitutional violation

even when their fruits are introduced at trial.

Evidence collected with these kinds of suspect

techniques, unlike falsi fi ed evidence and per

‐ jured testimony, may turn out to be true.

682 F.3d at 584. We rea ffi rmed that point in Pe tt y v. City of

Chicago

, 754 F.3d 416, 422 (7th Cir. 2014) (“[F]abricating

evidence that [the o ffi cer] knows to be false is di ff erent than

ge tt ing ‘a reluctant witness to say what may be true.’”) (quot

‐ ing Fields

, 740 F.3d at 1112).

Although Coleman characterizes Brooks’s interrogation as

Rabe supplying 100 percent of the inculpatory material, the

record does not support that characterization. Brooks’s depo

‐

sition testimony indicates Rabe confronted him with facts

provided by the victims and the police’s theory of the crime.

There is nothing unconstitutional about a law enforcement

o ffi cer confronting a suspect with direct questions about

information supplied by others—such interrogation tech

‐ niques are standard. 12 Coleman cannot save a claim based on

coercive interrogation techniques via speculation that defend

‐

ants were knowingly fabricating evidence. Pe tt y

, 754 F.3d at

12 See

, e.g

., F RED E. I NBAU

, ET AL

., C RIMINAL I NTERROGATION AND

C ONFESSIONS 111 (4th ed. 2001) (“[D]irect questions force a deceptive sus

‐

pect to either offer incriminating evidence or lie.”); F EDERAL B UREAU OF

I NVESTIGATION

, H IGH

‐ V ALUE I NTERROGATION G ROUP

, I NTERROGATION

B EST P RACTICES 4–5 (Aug. 26, 2016), https://www.fbi.gov/file

‐ reposi

‐ tory/hig

‐ report

‐ august

‐ 2016.pdf/view (describing how an interrogator

should confront suspect with additional evidence contradicting the sus

‐ pect’s previous denial).No. 18

‐ 1742 19

423 (“‘Manufactured false evidence’ and ‘false identi fi cation’

are not magic talismans that will transform a coercion case

into an evidence fabrication case and give rise to a cognizable

claim where one does not exist.”).

In sum, Coleman has highlighted a variety of arguments

a tt acking the credibility of Brooks’s incriminating statement.

But that is not evidence defendants knew Brooks was lying.

At his criminal trial, Coleman was entitled to impeach

Brooks’s statement with the coercive elements of Rabe’s inter

‐ rogation. Avery

, 847 F.3d at 439. His defense counsel did ex

‐ actly that when cross

‐ examining Brooks. 13 The record in this

case does not support a reasonable conclusion that

defendants knowingly fabricated false evidence to convict

Coleman.

2. Tequilla Miller’s identi fi cations were su ffi‐

ciently reliable for defendants to rely on them.

Coleman’s next due process theory is that defendants used

unduly suggestive procedures to manipulate Tequilla Miller’s

identi fi cations.

The U.S. Constitution does not mandate that photo arrays

and lineups meet a certain standard of quality. Alexander v.

City of South Bend

, 433 F.3d 550, 555 (7th Cir. 2006). For exam

‐ ple, it does not include an equivalent to F ED R. E VID

. 702’s

13 Trial Transcript at 47, People v. Coleman

, No. 94

‐ CF

‐ 764 (Ill. Cir. Ct.

Apr. 5, 1994), ECF No. 109

‐ 2 (“Q: When Detective Rabe showed you,

showed you the picture of the dark skinned Fats, did you pick the picture

out, or did he show it to you? How did that come about? A: He showed it

to me. Q: And did he say something to you?

... A: He said if I don’t tell

him, I ain’t never going to see my family no more. Q: So that is what you

told him?

... A: Yup.”).20 No. 18

‐ 1742

expert opinion standard for eyewitness identi fi cations. See

Perry v. New Hampshire

, 565 U.S. 228, 240 (2012) (rejecting “a

rule requiring trial judges to prescreen eyewitness evidence

for reliability any time an identi fi cation is made under sug

‐ gestive circumstances”). But the Fourteenth Amendment’s

Due Process Clause requires the exclusion of an eyewitness

identi fi cation if the unduly suggestive circumstances are so

egregious as to taint the entire trial. Id. at 232; see

, e.g.

, Foster

v. California

, 394 U.S. 440, 442 (1969). Even where undisput

‐ edly suggestive circumstances surround an identi fi cation, the

Fourteenth Amendment test looks at the totality of the cir

‐

cumstances to determine whether the identi fi cation remains

su ffi ciently reliable to still be admi tt ed. Manson v. Brathwaite

,

432 U.S. 98, 113–14 (1977); see also Neil v. Biggers

, 409 U.S. 188,

199–200 (1972) (detailing factors bearing on admissibility of

eyewitness identi fi cations); Killebrew v. Endico tt

, 992 F.2d 660,

664 (7th Cir. 1993) (describing the two

‐ step process for as

‐ sessing the admissibility of identi fi cations allegedly tainted

by suggestive procedures).

These principles address the admissibility of eyewitness

identi fi cations at trial, not § 1983 liability. In his criminal case,

Coleman moved to suppress Tequilla’s photo and lineup

identi fi cations as tainted by the early morning hallway

encounter. The trial court examined those arguments at a

suppression hearing but denied the motion. Coleman did not

object to Tequilla’s in

‐ court identi fi cation, and he did not

address the suppression ruling in his criminal appeal. De

‐

fendants in this case cannot be held liable for depriving

Coleman of his constitutional rights simply because the trial

court rejected Coleman’s legal arguments, or because he for

‐

feited them.No. 18

‐ 1742 21

Even if a court had later found Tequilla’s identi fi cations

inadmissible under the Brathwaite/Biggers framework, an

o ffi cer is not automatically liable for violating a suspect’s con

‐

stitutional rights whenever a judge later deems a witness’s

identi fi cation inadmissible. Phillips v. Allen

, 668 F.3d 912, 915

(7th Cir. 2012) (refusing to extend the Biggers framework

“from trials to arrests, and from a rule of evidence to a rule of

damages”). Our decision in Phillips notes a proviso for situa

‐

tions where an o ffi cer uses a speci fi c interrogation technique

clearly proscribed by existing law. Id. at 917 (explaining an

o ffi cer may not use judicially forbidden measures “to trick a

person into making an unreliable identi fi cation”). For exam

‐ ple, an interrogator’s use of physical violence to extract an

identi fi cation out of an eyewitness surely violates due pro

‐

cess. Cf. Brown v. Mississippi

, 297 U.S. 278, 285–86 (1936) (“The

rack and torture chamber may not be substituted for the wit

‐

ness stand.”).

Although Coleman describes the early morning hallway

encounter at the police station as a “show up,” 14 no evidence

suggests it was anything other than happenstance. Even

assuming the encounter (and Tequilla’s spontaneous identi fi

‐

cation) in fl uenced Tequilla’s subsequent identi fi cations, none

of that would be a tt ributable to any misconduct by defend

‐

ants. See Perry

, 565 U.S at 241 (holding the due process check

on eyewitness identi fi cations “comes into play only after the

defendant establishes improper police conduct”); see also

14 A showup has been defined as a “police procedure in which a sus

‐

pect is shown singly to a witness for identification, rather than as part of

a lineup.” Showup

, B LACK ’ S L AW D ICTIONARY (10th ed. 2014).22 No. 18

‐ 1742

Biggers

, 409 U.S. at 200–01 (a ffi rming admission of eyewitness

identi fi cation following a show up).

Rabe’s “cold search” for photos of possible suspects may

not have followed best practices, but it was not so suggestive

as to deprive Coleman of a fair trial. Alexander

, 433 F.3d at 555.

Neither was Coleman’s lack of a yellow wristband. No evi

‐

dence indicates Tequilla noticed the wristbands, much less

that they in fl uenced her identi fi cation. Compare with Coleman

v. Alabama

, 399 U.S. 1, 6 (1970) (identi fi cation not fatally

tainted by the fact only the defendant wore a hat, even though

one of the assailants had worn a hat); United States v. Traeger

,

289 F.3d 461, 474–75 (7th Cir. 2002) (identi fi cation not unduly

suggestive despite the fact only the defendant wore a visible

ankle restraint); United States v. Williams

, 522 F.3d 809, 812 (7th

Cir. 2008) (a ffi rming decision to admit identi fi cation, despite

the fact the defendant was the only participant wearing white

shoes).

Taking these allegedly suggestive elements together,

Tequilla’s identi fi cation still bore enough indicia of reliability

to warrant defendants’ reliance. She testi fi ed at the suppres

‐

sion hearing and at trial that she saw Coleman’s face for “a

good three minutes” under nearby lamp light, that she recog

‐

nized him from her years living in the Warner Homes, and

that she was “positive” in her identi fi cation. Compare with

Biggers

, 409 U.S. at 200 (identi fi cation admissible because vic

‐

tim spent up to thirty minutes with her assailant and testi fi ed

she had “no doubt” the defendant was her assailant);

Brathwaite

, 432 U.S. at 114–15 (due process not violated be

‐

cause witness viewed the defendant for several minutes and

expressed certainty in his identi fi cation two days later);

Killebrew

, 992 F.2d at 664 (ruling an identi fi cation admissibleNo. 18

‐ 1742 23

because eyewitness testi fi ed she made it based on her inde

‐ pendent recollection of the incident and her observation of the

perpetrator for “between thirty seconds and three minutes”);

United States v. Curry

, 187 F.3d 762, 769 (7th Cir. 1999) (identi

‐

fi cation admissible when eyewitness looked the perpetrator

“straight in the face” at a short distance, albeit for only a short

time); United States v. Funches

, 84 F.3d 249, 255 (7th Cir. 1996)

(eyewitness’s identi fi cation reliable based on her testimony

that she had a clear view of the robber’s entire face as he

walked by 20 feet away). There is no evidence suggesting de

‐

fendants knew Tequilla’s identi fi cations were tainted. Phillips

,

668 F.3d at 915–16.

As with Brooks, Coleman’s appellate briefs develop a

solid cross

‐ examination outline for Tequilla’s identi fi cations.

But such arguments do not establish a constitutional viola

‐

tion. After all, “the validity of an eyewitness identi fi cation is

for the jury.” Id. at 916. Due process is not o ff ended by the

introduction of a questionable eyewitness identi fi cation; the

jury may observe the witness, assess any alleged suggestive

circumstances, and make its own determination about what

weight, if any, to give it. Brathwaite

, 432 U.S. at 116 (“[E]vi

‐

dence with some element of untrustworthiness is customary

grist for the jury mill. Juries are not so susceptible that they

cannot measure intelligently the weight of identi fi cation testi

‐

mony that has some questionable feature.”). Tequilla’s identi

‐

fi cations were not so clearly tainted as to deny Coleman a fair

trial.

3. Defendants are entitled to summary judgment

on Coleman’s Brady theory.

Coleman’s last due process theory also concerns Tequilla

Miller’s identi fi cations. He contends defendants suppressed24 No. 18

‐ 1742

favorable impeachment evidence by failing to turn over the

photo of the lineup shown to Tequilla.

Police o ffi cers must provide exculpatory and/or impeach

‐

ment evidence to prosecuting a tt orneys—a corollary to the

prosecutor’s obligation to disclose such evidence to defense

counsel under Brady v. Maryland

, 373 U.S. 83 (1963). Cairel v.

Alderden

, 821 F.3d 823, 832 (7th Cir. 2016); see also United States

v. Bagley

, 473 U.S. 667, 676 (1985) (“Impeachment evidence,

however, as well as exculpatory evidence, falls within the

Brady rule.”). To succeed on a civil claim against a police

o ffi cer for an alleged failure to disclose such evidence, a

plainti ff must prove: (1) the evidence at issue is favorable to

his defense; (2) the o ffi cer concealed the evidence; and (3) the

concealment prejudiced him. Strickler v. Greene

, 527 U.S. 263,

281–82 (1999); see also Goudy v. Cummings

, No. 17

‐ 3665, 2019

WL 1930509, at *3 (7th Cir. May 1, 2019).

The third element, prejudice, is demonstrated by proving

the “materiality” of the evidence withheld, which requires “a

reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

di ff erent.” Carvajal v. Dominguez

, 542 F.3d 561, 566–67 (7th Cir.

2008); see also Goudy

, 2019 WL 1930509, at *7. A “reasonable

probability” is one that is “su ffi cient to undermine con fi dence

in the outcome.” Bagley

, 473 U.S. at 682.

The district court ruled Coleman failed to demonstrate the

lineup photo’s materiality. It reasoned that because Tequilla’s

identi fi cation was su ffi ciently reliable to have been admi tt ed

regardless of the wristband discrepancy, “evidence of an ad

‐

ditional suggestive aspect of the identi fi cation procedures

would not be material.” Order at 24, Coleman v. City of Peoria

,

No. 1:15

‐ cv

‐ 01100

‐ SLD

‐ TSH (C.D. Ill. Mar. 9, 2018), ECFNo. 18

‐ 1742 25

No. 121. But just because a witness’s testimony is su ffi ciently

reliable to put before a jury does not render all possible

impeachment evidence immaterial for Brady purposes. For ex

‐ ample, a prosecutor’s assurance of a reward to a testifying

witness may not render that witness’s identi fi cation automat

‐ ically inadmissible, but disclosure of that fact may be material

if its marginal impeachment value is great enough to call into

question the outcome of the verdict. See Bagley

, 473 U.S. at 684.

Despite disagreeing with the district court’s rationale, we

agree with its conclusion based on the facts in this case. Noth

‐ ing in the record suggests Tequilla noticed the wristbands,

much less that they played a role in her selection of Coleman

from the lineup. Rather, Tequilla testi fi ed repeatedly that she

based her identi fi cations on her recognition of Coleman’s

face. As noted above, she explained she viewed his face for “a

good three minutes” during the burglary and that it stuck out

to her because she recognized him from her time in the

Warner Homes. Tequilla’s testimony was then reinforced by

an adamant identi fi cation made by Bertha Miller.

Another recent case from our court provides a useful con

‐

trast. Goudy v. Cummings

, No. 17

‐ 3665, 2019 WL 1930509 (7th

Cir. May 1, 2019). In Goudy

, the suppressed impeachment

evidence consisted of videotapes showing that three of the

prosecution’s fi ve identi fi cation witnesses initially identi fi ed

another man as the perpetrator, as well as police reports in

which the prosecution’s star witness gave a statement directly

contradicting his trial testimony. Id. at *7–8. On summary

judgment, this court held such evidence could reasonably be

considered material. Id. at *8. We have nothing analogous

here. Rather than a video of key witnesses identifying another

man as the perpetrator (thus impeaching their courtroom26 No. 18

‐ 1742

identi fi cations), Coleman points to a photo showing a dis

‐

crepancy in the a tt ire of lineup participants. Coleman lacks

any evidence that Tequilla Miller noticed the discrepancy or

assigned it any signi fi cance, much less that her multiple, con

‐

sistent identi fi cations were in fl uenced by it.

Coleman contends the materiality of this evidence is a fact

question for the jury. But the Supreme Court has ruled on

Brady materiality as a ma tt er of law, see

, e.g.

, Strickler

, 527 U.S.

at 296, as has this court. See

, e.g.

, Carvajal

, 542 F.3d at 568–69.

Because the record does not support a reasonable possibility

that the criminal jury’s verdict would have been di ff erent had

the lineup photo been disclosed to Coleman’s defense coun

‐

sel, Coleman’s Brady theory fails. See Strickler

, 527 U.S. at 381

(“[S]trictly speaking, there is never a real ‘Brady violation’ un

‐

less the nondisclosure was so serious that there is a reasonable

probability that the suppressed evidence would have pro

‐

duced a di ff erent verdict.”).

The record does not present a genuine issue of material

fact on any of Coleman’s three due process theories, so the

district court did not err in awarding defendants summary

judgment on this claim.

B. Fourth Amendment and Malicious Prosecution

Claims

Count IV alleges defendants violated Coleman’s Fourth

Amendment rights by detaining him without probable cause

for arrest. Similarly, Count V is a state law tort claim for ma

‐

licious prosecution. Although one is a federal constitutional

claim and the other is a state tort, the existence of probable

cause defeats both. See Fleming v. Livingston Cty.

, 674 F.3d 874,

878 (7th Cir. 2012) (Fourth Amendment claim); Swick v.No. 18

‐ 1742 27

Liautaud

, 662 N.E.2d 1238, 1242 (Ill. 1996) (Illinois malicious

prosecution claim). Probable cause exists where the police of

‐

fi cer is aware of facts and circumstances “su ffi cient to warrant

a prudent man in believing that the petitioner had commi tt ed

or was commi tt ing an o ff ense.” Beck v. Ohio

, 379 U.S. 89, 91

(1964); see also Poris v. Lake Holiday Prop. Owners Ass’n

, 983

N.E.2d 993, 1007–08 (Ill. 2013) (similar).

The basis for Coleman’s Fourth Amendment and mali

‐

cious prosecution claims overlaps with his due process argu

‐

ments. He asserts defendants knew they lacked probable

cause to arrest him because they knew Brooks’s statement was

false and Tequilla’s identi fi cations were tainted.

Notably, an Illinois grand jury indicted Coleman on all

four charged felonies, and such an indictment is prima facie

evidence of probable cause. Wade v. Collier

, 783 F.3d 1081, 1085

(7th Cir. 2015). Coleman points out that this presumption may

be rebu tt ed by evidence that law enforcement obtained the

indictment through improper or fraudulent means. Id. at

1085–86; Lewis v. City of Chicago

, 914 F.3d 472, 477 (7th Cir.

2019); Freides v. Sani

‐ Mode Mfg. Co.

, 211 N.E.2d 286, 289 (Ill.

1965). Coleman must demonstrate defendants knew they

lacked probable cause to arrest him. Williamson v. Curran

, 714

F.3d 432, 444 (7th Cir. 2013).

Rabe and the other o ffi cers may have known that Brooks

was reluctant to testify against Coleman, and that Brooks later

recanted his original incriminating statement. But that does

not mean the o ffi cers knew Brooks’s statement was false. Po

‐

lice o ffi cers are constantly faced with reluctant witnesses and

recanted confessions. Yet they are not required “to use the

rules for summary judgment and draw inferences in favor of

the suspects.” Bridewell v. Eberle

, 730 F.3d 672, 676 (7th Cir.28 No. 18

‐ 1742

2013). Where a reasonable person would have a sound reason

to believe the suspect commi tt ed a crime, the police may

arrest and allow the criminal justice system to determine guilt

or innocence. Askew v. City of Chicago

, 440 F.3d 894, 895 (7th

Cir. 2006).

Similarly, even assuming defendants subjectively doubted

Tequilla’s identi fi cations, it is for the judge and jury to weigh

her evidence. Cf. Hart v. Mannina

, 798 F.3d 578, 591 (7th Cir.

2015) (“In real

‐ world investigations, police often confront the

limits of human memory and facial recognition.”). Tequilla’s

identi fi cations, even if questionable, were enough to give de

‐

fendants probable cause to arrest. See Cairel

, 821 F.3d at 835

(eyewitness identi fi cation gave defendants probable cause to

arrest plainti ff

, despite witness’s hesitancy and inconsisten

‐

cies with earlier descriptions).

The undisputed facts show defendants had probable

cause to arrest Coleman. This defeats Coleman’s Fourth

Amendment claim and his state law malicious prosecution

claim. 15

C. Remaining Claims

Coleman’s conspiracy, failure to intervene, and municipal

liability claims each depend on proof of an underlying consti

‐

tutional violation. Daugherty v. Page

, 906 F.3d 606, 612 (7th Cir.

2018) (conspiracy); Gill v. City of Milwaukee

, 850 F.3d 335, 342

(7th Cir. 2017) (failure to intervene); Pe tt y

, 754 F.3d at 424

(municipal liability). Because Coleman has failed to present

evidence supporting an underlying violation, defendants are

15 As a result, we need not reach the parties’ alternative arguments

about whether the criminal proceedings in Illinois state court terminated

in Coleman’s favor and the timeliness of his Fourth Amendment claim.No. 18

‐ 1742 29

entitled to summary judgment on Coleman’s derivative

claims as well.

After disposing of Coleman’s § 1983 claims on their mer

‐

its, the district court declined supplemental jurisdiction over

four of Coleman’s state law claims and dismissed them with

‐

out prejudice. 28 U.S.C. § 1367(c)(3) (“The district courts may

decline to exercise supplemental jurisdiction over a claim

under subsection (a) if

... the district court has dismissed all

claims over which it has original jurisdiction.”). The court ex

‐ plained it retained jurisdiction over the malicious prosecution

claim because its probable cause determination was disposi

‐

tive for that claim. 13D C HARLES A LAN W RIGHT

, ET AL

.,

F EDERAL P RACTICE AND P ROCEDURE § 3567.3 (3d ed. Apr. 2019

supp.) (“[A]lthough it is unusual, it is permissible for the fed

‐

eral court to decide one supplemental claim on the merits

while declining to hear another supplemental claim.”).

A federal court’s decision to exercise supplemental juris

‐

diction over state law claims is discretionary. United Mine

Workers of Am. v. Gibbs

, 383 U.S. 715, 726 (1966); see also Dargis

v. Sheahan

, 526 F.3d 981, 990 (7th Cir. 2008). Absent unusual

circumstances, district courts relinquish supplemental juris

‐

diction over pendent state law claims if all claims within the

court’s original jurisdiction have been resolved before trial.

Dargis

, 526 F.3d at 990; see also Sharp Elec. Corp. v. Metro. Life

Ins. Co.

, 578 F.3d 505, 514 (7th Cir. 2009). We see no abuse of

discretion in the district court following that typical approach

in this case. See Capeheart v. Terrell

, 695 F.3d 681, 686 (7th Cir.

2012) (noting that a district court’s decision to relinquish sup

‐ plemental jurisdiction will be reversed only in extraordinary

circumstances).30 No. 18

‐ 1742

III. Conclusion

Erroneous convictions are unquestionably human trage

‐

dies. Yet a vacated criminal conviction does not automatically

establish that an individual’s constitutional rights were vio

‐

lated, or that police officers and prosecutors are necessarily

liable under § 1983.

Here, Coleman failed to present sufficient evidence to sup

‐

port his claims that defendants violated his constitutional

rights. Because the record does not present a genuine issue of

material fact for trial, we A FFIRM the district court’s decision

to award defendants summary judgment on Coleman’s

§ 1983 claims and Illinois state law malicious prosecution

claim, as well as its decision to dismiss Coleman’s remaining

state law claims without prejudice.