Defendants base their argument in favor of dismissal of Count
III, the conspiracy count, on the alleged inadequacy of Count I.
However, as Count I stands, so stands Count III. Mr. Kidd has
stated a claim that the defendants violated his constitutional
rights. The defendants fail to show why his accusation that the
defendants conspired to do so should be treated differently.

Finally, the defendants argue that the qualified immunity
defense bars Counts I and III. In order to overcome a defense of
qualified immunity, a plaintiff must show that the defendant
government officials violated “clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Newsome is
directly on point; the opinion expressly states that it was
“clearly established” in 1980 that “police officers could not
withhold from prosecutors exculpatory information.” Newsome, 256
F.3d at 752. As the events in dispute in this case took place in

2000, this language disposes of the qualified immunity issue.

trial since he was acquitted, although knowing failure to provide
prosecutors with evidence that would likely have led them not to
prosecute would be material. Defendants did not raise the lack of
allegations of materiality in their motion to dismiss and cannot
raise that issue in a reply brief, where they briefly address the
need for materiality. In this case, moreover, it appears that the
principal allegation is that defendants fabricated testimony, both
before and at trial. If true, this at least would be a denial of
due process.


*31 (N.D. Ill. Mar. 14, 2002) (Pallmeyer, J.). Two recent decisions
have involved allegations similar to those in Mr. Kidd’s complaint.
In Corbett v. White, No. 00 C 4661, 2001 U.S. Dist. LEXIS 13803, at
*15-16 (N.D. Ill. Sep. 5, 2001), Judge Gottschall permitted an
acquitted defendant like Mr. Kidd to pursue a § 1983 suit against
police officers who allegedly hid the truth from prosecutors.
Similarly, in Carroccia v. Anderson, 249 F. Supp. 2d 1016, 1017
(N.D. Ill. 2003), Judge Kennelly declined to dismiss such a claim.
Both Judge Gottschall and Judge Kennelly relied heavily on the
Newsome court’s explanation of the policy motive behind its
decision. That court noted:

Pressure must be brought to bear. Prosecutors kept in the dark

by police ... won't improve their performance with or without
legal liability for their conduct. Requiring culpable officers

to pay damages to the victims of their actions ... holds out
promise of both deterring and remediating violations of the
Constitution.

Newsome, 256 F.3d at 752. This deterrent argument applies equally
to police who successfully and unsuccessfully attempt to frame
innocent defendants. As Judge Kennelly put it, “A trial is not
rendered fair simply because it ultimately results in acquittal.”
Carroccia, 249 F. Supp. 2d at 1023. In other words, the Fourteenth
Amendment guarantees due process, not due results. I agree with

Judges Gottschall and Kennelly and decline to dismiss Count I.?

1 Mr. Kidd’s complaint does not state what the alleged
exculpatory evidence might be that was allegedly withheld. To be
actionable, Mr. Kidd would have to prove that the withheld evidence
was material, which would be difficult to prove in the context of

3


The motion to dismiss is DENIED.

Dated:

September 25+ 2003

ENTER ORDER:

‘our C Buhl

Elaine E. Bucklo
United States District Judge


‘sinate OnderFor (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Elaine E. Bucklo

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C 9534 DATE 9/25/2003
CASE Kidd vs. City of Chicago, et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.e., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

(1)

denied. Enter Memorandum Opinion and Order.

[For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer brief due___

4) Oo Ruling/Hearing on ___set for at

(5) a Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) a Trial[set for/re-set for} on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) ClLocal Rule 41.1 COFRCP4I(a\(1) CG FRCP41(a)(2).

do) [Other docket entry] | Defendants’ motion to dismiss counts I and III of the complaint (12-1) is

No notices required,

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mait notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

MP)

No notices required, advised in open court.

4YN09 Lod is
Yue

reth Ud

Datestimgtygeivgdiin Os d
central Clerk's Office J - (| ci

date mniled notice

Document:
> Number
_sumber ofnfices an
SEP 26 200
date dockered
4
9725/2003

MPy

mailing deputy inicals



IN THE UNITED STATES DISTRICT COURT ere en

FOR THE NORTHERN DISTRICT OF ILLINOIS Ce ge i ‘a
EASTERN DIVISION .

SEP 2.52003

DARESSE KIDD,
Plaintiff,

v.
No. 02 C 9534
CITY OF CHICAGO, OFFICER D. HARRIS,
OFFICER E. LEE, and other as yet
unknown Chicago police officers,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Daresse Kidd is a 23-year-old citizen of Illinois.
On or about March 5, 2000, Mr. Kidd was entering his family’s
apartment building on Chicago’s South Side when he says he was
accosted by several police officers demanding information. The
officers allegedly handcuffed, searched, and beat Mr. Kidd to the
point that he lost consciousness and required medical treatment.
Mr. Kidd was subsequently charged with possession of a controlled
substance and battery to a police officer. According to Mr. Kidd’s
complaint, the officers conspired to and did conceal exculpatory
evidence from prosecutors and fabricated incriminating evidence
against Mr. Kidd. In May 2002, Mr. Kidd was tried and acquitted of
the charges against him.

Mr. Kidd now brings a six-count complaint against the City of
Chicago, Officer D. Harris, Officer E. Lee, and other as yet

unknown police officers. The defendants move to dismiss Count I,

25



“a

which alleges a claim under § 1983 for violation of Mr. Kidd’s due
process rights, and Count III, which alleges a claim under § 1983
for conspiracy to violate Mr. Kidd’s constitutional rights. I deny
the motion.

Dismissal of a complaint, or of a portion of a complaint, is
proper only when it is clear beyond a doubt that the plaintiff can
prove no set of facts to support his allegations. First Ins.
Funding Corp. v. Federal Ins. Co., 284 F.3d 648, 651 (7th Cir.
2002). For purposes of the motion to dismiss, I accept the well-
pleaded allegations of the complaint as true. Thompson v. Illinois
Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002).

The defendants argue that Count I should be dismissed because
Mr. Kidd fails to state a claim for violation of due process. They
assert that because Mr. Kidd was acquitted, he cannot claim that he
was denied a fair trial.

It has long been established that prosecutors must share
relevant exculpatory evidence with a criminal defendant, and that
their failure to do so may render a trial unfair. Brady v.
Maryland, 373 U.S. 83 (1963). Police officers who withhold
exculpatory evidence from prosecutors or fabricate inculpatory
evidence similarly violate the due process clause and are subject
to suit under § 1983. Newsome v. McCabe, 256 F.3d 747, 753 (7th
Cir. 2001); Jones v. City of Chicago, 856 F.2d 985 (7* Cir. 1988);

see Castillo v. Zuniga, No. 01-C616, 2002 U.S. Dist. LEXIS 4261, at