In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1195

ALAN BEAMAN,

Plaintiff-Appellant,

v.

TIM FREESMEYER, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:10-cv-01019 — Joe Billy McDade, Judge.

____________________

ARGUED SEPTEMBER 29, 2014 — DECIDED JANUARY 13, 2015

____________________

Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. In 1995, Alan Beaman was convicted of the murder of his ex-girlfriend, Jennifer Lockmiller. 

Thirteen years later, the Illinois Supreme Court overturned 

his conviction, finding that the state violated his due process 

rights under Brady v. Maryland, 373 U.S. 83 (1963), for failure

to disclose material information about a viable alternative 

suspect. After release from prison, Beaman filed a 42 U.S.C. § 

1983 lawsuit against the police officers and prosecutors in-
2 No. 14-1195

volved in the investigation of the Lockmiller murder and his 

prosecution. He alleged that the defendants deliberately 

conspired to suppress materially exculpatory evidence during the pendency of his criminal case in violation of Brady. 

Although several defendants were dismissed for various 

reasons, the remaining defendants—Tim Freesmeyer, Dave 

Warner, and Frank Zayas, three former police officers in the 

Normal Police Department, as well as their former employer, 

the Town of Normal, Illinois—filed a motion for summary 

judgment on all counts. The motion was granted. On appeal, 

Beaman argues that the defendants should not have been 

granted summary judgment, but we disagree. Summary 

judgment was proper because Beaman did not present 

enough evidence from which a reasonable jury could infer 

the existence of a conspiracy to conceal the Brady material.

One piece of evidence—the report on alternative suspect 

Stacey Gates’s polygraph test—was not Brady material and

its non-disclosure could not form the basis of a complaint.

As to the other Brady material—the report on alternative 

suspect John Murray’s polygraph test—which the defendants did not turn over to the prosecution, the defendants 

were entitled to qualified immunity. Therefore, we affirm the 

district court’s decision. 

I. BACKGROUND

A. Murder Investigation and Beaman’s Conviction

On August 28, 1993, Jennifer Lockmiller, a 21-year-old 

college student at Illinois State University, was found dead 

in her apartment in Normal, Illinois. Her body was severely 

decomposed and partially unclothed. The electrical cord of 

her alarm clock was wrapped around her throat, and a pair 

of scissors was buried in her chest. An autopsy later revealed 
No. 14-1195 3

that Lockmiller died from ligature strangulation caused by 

the alarm clock cord. 

Lockmiller’s murder quickly became a high profile story 

in the twin college towns of Normal and Bloomington. Several police officers were involved in the investigation including Tim Freesmeyer, Rob Hospelhorn, Tony Daniels and 

Dave Warner, detectives in the City of Normal Police Department (“NPD”), Frank Zayas, a lieutenant in the NPD, 

and John Brown, a McLean County Deputy Sheriff. Prosecutors Charles Reynard, the McLean County State’s Attorney, 

and James Souk, an Assistant State’s Attorney, were also 

part of the investigative and prosecutorial team. 

Because there was no sign of forced entry and nothing 

was stolen, the investigation immediately focused on people 

Lockmiller knew and, particularly, men she had dated. The 

police questioned several of Lockmiller’s current and former 

boyfriends, including Alan Beaman, Michael Swaine, Stacey 

“Bubba” Gates, and Larbi John Murray. Swaine was 

Beaman’s roommate and Lockmiller’s boyfriend at the time 

of her murder. But Swaine was quickly eliminated as a suspect because he was working at his former high school’s 

bookstore in Elmhurst, Illinois, on the day the detectives 

identified as the day Lockmiller was killed.1 Gates, another 

former boyfriend, had recently moved to Peoria to be closer 

to Lockmiller, and he and Lockmiller had plans to get together the weekend after her murder. Because of Gates’s in1 Lockmiller’s body was not found until August 28, but it was obvious that she had been dead for some time. Based upon her class schedule 

and, Beaman contends, Beaman’s availability, the government determined that Lockmiller was killed on August 25. 

 
4 No. 14-1195

volvement with Lockmiller, he was asked to take a polygraph report. The report found that Gates gave erratic and 

inconsistent answers. Detective Warner received the report 

and turned it over to his supervisor Zayas, but Zayas never 

turned the report over to ASA Souk or Beaman’s defense 

counsel. Despite the ambiguous polygraph report, Gates was 

eliminated as a suspect because check-in logs from a Peoria

school showed that he was working as a teacher on August 

25. 

The most important alternative suspect was Murray. 

Murray was Lockmiller’s drug dealer and one of her lovers. 

Detectives Hospelhorn and Daniels interviewed Murray 

twice. He first told police that he left town on August 24, the 

day before Lockmiller died, but his girlfriend Debbie 

Mackoway told the police that they did not leave until the 

afternoon of August 25. Murray later corrected his story to 

the police and said he left on the afternoon of August 25. 

Murray lived one-and-a-half miles away from Lockmiller’s 

apartment. He claimed to have been at home alone on August 25 before 2 p.m. and thus could not provide any corroboration for or proof of his location. 

Murray also had some previous trouble with the law, related to his drug dealer profession and his abuse of Mackoway. Murray had charges pending against him for domestic 

violence and drug possession with intent to deliver at the 

time Beaman eventually went to trial for Lockmiller’s murder. He had a history of steroid abuse which Mackoway told 

the police caused him to act erratically. His apartment had 

been searched by the police several times, both before and 

after Lockmiller was killed, and cocaine and steroids were 

found. Because of his relationship with Lockmiller, the po-
No. 14-1195 5

lice asked Murray to submit to a polygraph examination. 

The examiner was not able to start the test though, because 

Murray failed to follow instructions. The examiner later 

agreed that the refusal to follow instructions could have 

been intentional. Despite the hole in Murray’s alibi, his arrest record, pending charges, and the ambiguous polygraph 

results, the police and prosecutors decided to focus on 

Beaman. 

Beaman and Lockmiller had dated off and on for a couple of years until about a month before Lockmiller’s death.

While their relationship was tumultuous, especially considering Lockmiller’s involvement with Beaman’s roommate,

Swaine, Beaman too had an alibi. He was living with his 

parents in Rockford, two hours away from Normal. However, through a series of controversial time trials, the state established its theory of the case: Beaman drove to Normal on 

August 25 after visiting a bank in Rockford at 10:11 a.m., 

killed Lockmiller at noon, and then drove back to Rockford 

where he was observed by his mother in his room at 2:15 

p.m. Beaman’s whereabouts were accounted for in Rockford 

at all times on August 25 except between 10:11 a.m. and 2:15 

p.m. Freesmeyer was able to establish Beaman’s ability to 

drive to Normal and back during that time by driving over 

the speed limit throughout the trip. However, he also 

claimed that Beaman could not have driven from the bank to 

his parents’ home to place two phone calls at 10:37 a.m.—

phone calls which, if they had been placed by Beaman, 

proved he indisputably could not have also driven to Normal to kill Lockmiller—because the bank was too far. In the 

bank-to-home time trial, though, Freesmeyer took the more 

trafficked route and followed all speed limits. 
6 No. 14-1195

Despite the holes in the case, the state decided to prosecute Beaman. At trial, the state argued that Beaman was the 

only person with both the opportunity and motive to kill 

Lockmiller. The prosecution presented evidence of three

suspects, Beaman, Swaine, and Gates, and then argued that 

Beaman was the only one who did not have an alibi.

Freesmeyer testified regarding the time trials he conducted, 

in order to establish Beaman’s ability to drive to Normal and 

commit the murder, and Beaman’s inability to drive to his 

parents’ home in Rockford to place the phone calls (which 

would have negated his ability to drive to Normal). Before

trial, ASA Souk filed a motion in limine to exclude evidence 

of Lockmiller’s relationships with men, other than Beaman 

and Swaine. At that time, Souk informed the court that Murray had “nothing to do with this case.” Souk argued that 

Beaman should not be allowed to offer alternative suspect 

evidence unless he could establish that it was not speculative. The state had not turned over the report of Murray’s 

polygraph test or any of Murray’s arrest records, which included evidence of his steroid use and domestic violence. So 

Beaman’s lawyer responded that he did not have any specific evidence showing that another person committed the offense. So the court then granted the motion in limine. During 

closing argument, Souk stated that the state had proved every other suspect’s alibi, except for Beaman. But because of 

the motion in limine, Murray was not mentioned at trial. In 

April 1995, the jury convicted Beaman of Lockmiller’s murder. 
No. 14-1195 7

B. Illinois Supreme Court Overturns Beaman’s 

 Conviction

After conviction, Beaman vigorously pursued postconviction relief. And in 2008 the Illinois Supreme Court reversed the dismissal of his post-conviction petition. People v. 

Beaman, 890 N.E.2d 500 (Ill. 2008). The Illinois Supreme 

Court found that four points of undisclosed evidence were 

withheld in violation of Brady: (1) Murray failed to complete 

the polygraph examination; (2) Murray was charged with 

domestic battery and possession of marijuana with intent to 

deliver prior to Beaman’s trial; (3) Murray had physically 

abused his girlfriend on numerous occasions; and (4) Murray’s use of steroids had caused him to act erratically (“the 

Murray evidence”). Id. at 511. Beaman’s essential claim was 

that he could have used the undisclosed evidence, along 

with the disclosed evidence tending to show Murray’s possible involvement in the offense, to present Murray as an alternative suspect. The court found that the undisclosed evidence was clearly favorable to Beaman in establishing Murray as an alternative suspect. Id. The state admitted that the 

Murray evidence had been suppressed. And the court further found that the evidence was material because it countered the state’s circumstantial evidence against Beaman and 

rebutted the state’s argument that all other potential suspects had established alibis. Id. at 514. It concluded that there 

was a reasonable probability that the result of the trial 

would have been different if Beaman had presented the evidence establishing Murray as an alternative suspect. Id.

Therefore, the state’s suppression of the Murray evidence 

violated Beaman’s constitutional right to due process under 

Brady. Id.
8 No. 14-1195

After Beaman’s conviction was vacated and remanded, 

the state declined to re-prosecute him and dismissed all 

charges. Beaman was released from prison in June 2008, and

in April 2013, the state of Illinois certified his innocence. 

C. Beaman’s Civil Suit

In January 2010, Beaman filed a 42 U.S.C. § 1983 complaint against five NPD police officers, two McLean County 

prosecutors, and two municipalities. He alleged three federal 

claims: (1) that the defendants, acting individually, jointly,

and in conspiracy, deprived Beaman of a fair trial by withholding material exculpatory evidence in violation of Brady

(individual liability); (2) that the defendants conspired to 

deprive Beaman of material exculpatory evidence (conspiracy liability); and (3) that the defendants failed to intervene in 

preventing the violation of his rights (failure to intervene liability). The complaint also included state law claims for malicious prosecution, civil conspiracy, and intentional infliction of emotional distress, and respondeat superior and indemnification claims against the municipalities. The evidence he claimed was Brady material included not only the 

Murray evidence, but also the report of Gates’s polygraph 

test, another suspect’s criminal history, the unsolved nature 

of the case, and the results of the different time trials. 

The district court dismissed Beaman’s due process claim 

against Souk and Reynard on the ground of absolute immunity. Later, Souk and Reynard were voluntarily dismissed from the suit because discovery revealed that all 

claims against them would be barred by absolute or qualified immunity. The complaint was also dismissed against

detectives Hospelhorn and Brown because discovery revealed that they were not involved in the alleged suppres-
No. 14-1195 9

sion of evidence. The remaining defendants are detectives

Freesmeyer, Warner, and Zayas, and their employer, the 

Town of Normal. 

The district court granted summary judgment in favor of

these remaining defendants because it found that the federal 

counts in the complaint failed for a variety of reasons: (1) 

most of the Brady material was given to the prosecutor, thus 

discharging the defendants’ individual liability under Brady; 

(2) Beaman had not provided sufficient evidence of a conspiracy or of failure to intervene liability; (3) some of the undisclosed evidence, including the report on Gates’s polygraph test, was not Brady material; and (4) the defendants 

were entitled to qualified immunity for their failure to turn 

over the Murray polygraph test to the prosecution. After 

dismissing the federal claims against the individual defendants, the district court also dismissed the state law claims 

against the Town of Normal due to lack of jurisdiction.

Beaman now appeals certain aspects of the district court’s 

decision. 

II. ANALYSIS

On appeal, Beaman challenges the district court’s grant of 

summary judgment on three grounds. He contends that the 

district court erred in finding that (1) he had not presented 

sufficient evidence of the existence of a conspiracy; (2) the 

report on Gates’s polygraph test was not Brady material; and 

(3) the defendants were entitled to qualified immunity for 

withholding the results of Murray’s polygraph test from the 

prosecution. Because our decisions on Beaman’s second and 

third arguments narrow the scope of the alleged conspiracy, 

we address those issues first.
10 No. 14-1195

A. No Brady Violation for Withholding of Gates’s 

Polygraph Test

Beaman argues that the district court erred when it determined that the report of Gates’s polygraph test was not 

Brady material, and its non-disclosure did not violate 

Beaman’s constitutional rights. We review the district court’s 

grant of summary judgment de novo, including its finding

that the withholding of evidence does not violate Brady. Petty v. City of Chicago, 754 F.3d 416, 421 (7th Cir. 2014). 

A plaintiff must show three elements in order to prove a 

Brady violation: (1) the evidence at issue was favorable to the 

accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by 

the state, either willfully or inadvertently; and (3) the evidence must have been material, meaning there is a reasonable probability that the result of the proceeding would have 

been different. Carvajal v. Dominguez, 542 F.3d 561, 566–67 

(7th Cir. 2008). This last element is often referred to as “prejudice.” Id. at 566. “The reasonable probability standard for 

materiality of suppressed evidence is less rigorous than a 

preponderance of the evidence standard in that a petitioner 

need only show that the new evidence undermines confidence in the verdict.” Goudy v. Basinger, 604 F.3d 394, 399

(7th Cir. 2010) (citing Kyles v. Whitney, 514 U.S. 419, 434 

(1995)). If confidence in the outcome of the trial is undermined by the reasonable probability of a different outcome, 

the evidence is material and the criminal defendant suffered 

prejudice. Kyles, 514 U.S. at 434. 

Here, the district court found that the report on Gates’s 

polygraph test was favorable. The report indicated that 

Gates gave erratic and inconsistent answers which prevent-
No. 14-1195 11

ed the examiner from rendering an opinion as to whether he 

was telling the truth. The district court also found that the 

report was “suppressed.” Under NPD procedures in place at 

the time, detective Warner would have received the report, 

but it was never turned over to the prosecutors or to 

Beaman’s defense counsel. However the district court found 

that the report was not material. We agree.

Beaman argues that Gates’s polygraph report is material 

because Gates was passionately in love with Lockmiller, so 

much so that he moved from Wisconsin to Peoria to be closer to her, but he learned shortly before her death that she did 

not want to get back together with him. Therefore, Gates had 

a motive to kill Lockmiller. Beaman contends that Gates’s 

alibi—that he was working in a school on the day of the 

murder—was no more convincing than Beaman’s and a jury 

could have concluded that it was less so. But Beaman stipulated at trial that Gates had been working at the school on 

the day of the murder. Because Beaman did not address this 

stipulation in front of the district court, the district court 

constructed the argument that if Beaman had known about 

the report, he would not have agreed to the stipulation. He 

may have tried to persuade the trial court to allow in evidence that Gates committed the murder, or his defense team 

could have investigated further to see if Gates left the school 

on the day of the murder. 

However, Beaman’s hypothetical argument fails because 

he has not shown a reasonable probability that the result of 

his criminal trial would have been different if Gates’s polygraph had been disclosed. The report itself would not have 

been admissible under Illinois evidentiary rules. See People v. 

Jefferson, 705 N.E. 2d 56, 60 (Ill. 1998). Beaman does not ex-
12 No. 14-1195

plain what other evidence he would have presented that 

would point to Gates as the murderer, even if the trial court 

had allowed him to do so. It is highly unlikely that the trial 

court would have allowed evidence showing that Gates was 

the actual murderer given his solid alibi, and, as it stands, 

Beaman has presented no evidence to debunk Gates’s alibi. 

Beaman has not presented any evidence that Gates actually 

did leave the school on August 25. He has not interviewed 

any witnesses who can testify that Gates left or provided any 

other evidence that would suggest Gates did not remain at 

school the entire day. At the time of the investigation, detective Freesmeyer interviewed the school’s principal who provided the check-in logs and, according to Freesmeyer’s police report, verified that Gates was present at the school from 

8 a.m. to 4 p.m. Regardless of the polygraph report’s ability 

to establish Gates’s motive or suspiciousness, without some 

means of establishing opportunity, the report is not material

because Gates has not shown a reasonable probability that 

the result of his criminal trial would have been different if it 

had been disclosed. 

Beaman argues that the materiality of the Gates polygraph is manifest when evaluated alongside the suppressed 

evidence against Murray. It is clear that the cumulative effect 

of all suppressed information should be considered, Goudy, 

604 F.3d at 399, and an omission is “evaluated in the context 

of the entire record,” United States v. Agurs, 427 U.S. 97, 112 

(1976). However, the cumulative effect of the other suppressed evidence—that is, the Murray evidence—does not 

help Beaman in establishing that Gates’s polygraph was material. Evidence inculpating Murray does nothing to establish 

Gates as a viable alternative suspect. As the Illinois Supreme 

Court found, the Murray evidence, considered cumulatively, 
No. 14-1195 13

was material because the evidence would have presented 

Murray as a viable alternative suspect without an alibi to 

counter the state’s argument that all other suspects had established alibis. But Gates’s polygraph is not material because it does not negate Gates’s alibi. Beaman has presented 

no evidence that Gates was not actually at the school where 

check-in logs show he was working on the day of the murder or that he left the school at any point. Gates’s report 

adds little to a finding that Gates was a viable alternative 

suspect without some evidence that Gates had the opportunity to commit the murder. The trial court may have been 

persuaded to admit evidence about Murray if presented 

with all of the withheld Murray evidence, but it is improbable that the evidence inculpating Murray would have persuaded the judge to admit evidence inculpating Gates, or 

vice versa. 

Therefore, we find that the report on Gates’s polygraph 

test was not Brady material. Its non-disclosure cannot form 

the basis of liability, whether individually or in conspiracy,

for any of the defendants. 

B. Defendants Are Entitled to Qualified Immunity for 

Non-disclosure of Murray Polygraph Test

Beaman also argues that the district court erred in finding that the individual defendants were entitled to qualified 

immunity for their failure to turn over the Murray polygraph report to the prosecution. We review a district court’s 

grant of summary judgment on qualified immunity grounds 

de novo. Carvajal, 542 F.3d at 566.

An official is entitled to qualified immunity for conduct 

that does not violate clearly established statutory or constitu-
14 No. 14-1195

tional rights of which a reasonable person would have 

known. Whitlock v. Brueggeman, 682 F.3d 567, 580 (7th Cir. 

2012). Two questions must be answered when determining 

whether an official is entitled to qualified immunity: first, 

whether the plaintiff has alleged a deprivation of a constitutional right at all, and second, whether the right at issue was 

clearly established at the time and under the circumstances 

presented. Id.

The Illinois Supreme Court and the district court found 

that Beaman’s constitutional rights were violated by the nondisclosure of the results of Murray’s polygraph test. The circumstances of the exam indicated that Murray may have intentionally avoided the test. He did not comply with the 

polygraph examiner’s instructions during the first attempt 

and he did not cooperate in scheduling a second attempt. 

The polygraph test, combined with the other suppressed 

Murray evidence including his arrest record and the domestic abuse allegations, could have been used to persuade the 

trial judge to admit evidence indicating that Murray committed the murder. We agree with this analysis. So the first 

question is satisfied.

The second question in the qualified immunity analysis is

whether the right at issue was clearly established at the time 

and under the circumstances presented. A plaintiff can show 

that a right is “clearly established” by statute or constitution 

in at least two ways: (1) he can point to a clearly analogous 

case establishing the right to be free from the conduct at issue; or (2) he can show that the conduct was “so egregious 

that no reasonable person could have believed that it would 

not violate established rights.” Smith v. City of Chicago, 242 

F.3d 737, 742 (7th Cir. 2001). Even if factual circumstances 
No. 14-1195 15

are novel, a right can still be clearly established so long as 

the state of the law at the time gave the defendants fair 

warning that their conduct was unconstitutional. Hope v. 

Pelzer, 536 U.S. 730, 741 (2002). “A constitutional right is 

clearly established when ‘it would be clear to a reasonable 

officer that his conduct was unlawful in the situation he confronted.’” Estate of Escobedo v. Martin, 702 F.3d 388, 404 (7th 

Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). 

Beaman argues that Brady “has been on the books since 

1963 and easily qualifies as clearly established law.” Steidl v. 

Fermon, 494 F.3d 623, 628 (7th Cir. 2007). The withholding of 

materially exculpatory evidence violates the Due Process 

Clause. Id. He contends that the novelty of the factual circumstance cannot excuse the Brady violation where it is wellestablished that investigators who withhold exculpatory evidence violate the defendant’s constitutional due process 

right. While it is true that the idea that police officers must 

turn over materially exculpatory evidence has been on the 

books since 1963, it certainly has not been on the books since 

1963 that polygraph reports are materially exculpatory evidence. That is because in most states, polygraph reports are 

inadmissible at trial. See e.g., Jefferson, 705 N.E. 2d at 60 

(“[T]he general rule in Illinois is to preclude introduction of 

evidence regarding polygraph examinations and the results 

of those tests.”). 

And a few months after Beaman’s trial concluded, the 

Supreme Court decided Wood v. Bartholomew, 516 U.S. 1 

(1995). In Wood, the Court held that because polygraph results were not admissible at trial, the state’s failure to disclose the fact that a witness failed a polygraph test did not 

deprive a defendant of “material” evidence under Brady, ab-
16 No. 14-1195

sent a reasonable likelihood that disclosure of the polygraph 

test could have had a direct effect on the outcome of the trial. 

Id. at 8. Beaman seeks to distinguish Wood by saying that in 

his case, the Illinois Supreme Court specifically held that the 

Murray polygraph report could have been used as part of a 

larger argument that Murray was a viable suspect. Beaman, 

890 N.E. 2d at 511–12. He argues that the district court 

should have been bound by the Illinois Supreme Court’s determination that the evidence was Brady material in Illinois. 

Even if the relevant inquiry was what the Illinois Supreme Court decided, that court’s determination in 2008 that 

the polygraph test could have affected the trial does not answer the question of whether, in 1995, it was clearly established that the officers needed to turn over inadmissible polygraph reports.2 Beaman points to no cases pre-1995 where 

the Illinois Supreme Court, or any Illinois court for that matter, found that inadmissible polygraph tests, or any other 

type of inadmissible evidence, could constitute Brady material. Without such a case, it cannot be said that it was clearly 

established in 1995 that inadmissible polygraph reports were 

Brady material in Illinois.3

2 Importantly, the Illinois Supreme Court did not determine that the 

polygraph test would have been admissible. It just found that the polygraph could have been used as part of a broader argument that Murray 

was a viable suspect in convincing the judge to admit other evidence 

tending to inculpate Murray.

3 Prior to Beaman’s trial, several Illinois Supreme Court cases established that polygraph tests were inadmissible at trial, subject to a couple 

exceptions that are inapplicable here. People v. Gard, 632 N.E. 2d 1026 (Ill. 

1994) (finding plain error in the introduction of testimony regarding the 

polygraph testing of a prosecution witness); People v. Baynes, 430 N.E. 2d 

1070 (Ill. 1981) (finding error in the introduction at trial of the results of a 

 
No. 14-1195 17

Beaman also argues that it was clearly established in 1995 

that evidence inculpating another suspect was Brady material. While that is true as a general matter, Beaman forms the 

question too broadly. In its broadest form, the relevant inquiry is whether inadmissible information inculpating another suspect could be Brady material. Again, Beaman points to 

no pre-1995 case from Illinois or the Supreme Court, and we 

are unable to find one, establishing that inadmissible evidence inculpating another suspect (to frame it broadly) or 

polygraph tests (to frame it narrowly) is Brady material. 

During the relevant time period, it was not clearly established that the results of a polygraph test, inadmissible at 

trial, constituted Brady material. Arguably, it was not until 

Wood—decided three months after Beaman’s trial concluded—that it became clearly established that inadmissible polygraph tests stood any chance of ever being Brady material. 

The question of whether and when inadmissible evidence 

can be Brady material remains an open question in many jurisdictions today. See United States v. Morales, 746 F.3d 310 

(7th Cir. 2014). Therefore we find that the defendants are entitled to qualified immunity for their failure to turn over the 

Murray polygraph report to the prosecution and Beaman’s 

defense counsel. Like Gates’s polygraph, its non-disclosure 

cannot form the basis for individual or conspiracy liability.

polygraph examination taken by a criminal defendant, even though the 

prosecution agreed to the admission of the evidence). 

 
18 No. 14-1195

C. Summary Judgment Was Proper on Brady Conspiracy Claim

Finally, we address Beaman’s argument that the defendants conspired with each other and Souk to violate his due 

process right to a fair trial by withholding materially exculpatory evidence, in violation of Brady. He alleges that a reasonable jury could infer the existence of a conspiracy based 

on the evidence he presented. We review the district court’s 

grant of summary judgment de novo, construing the facts in 

the light most favorable to Beaman. Mercatus Group, L.L.C. v. 

Lake Forest Hosp., 641 F.3d 834, 839 (7th Cir. 2011).

A civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means.” Scherer v. Balkema, 840 

F.2d 437, 441 (7th Cir. 1988). To establish conspiracy liability 

in a § 1983 claim, the plaintiff must show that (1) the individuals reached an agreement to deprive him of his constitutional rights, and (2) overt acts in furtherance actually deprived him of those rights. Id. at 442. In Brady, the Supreme 

Court held that the due process right to a fair trial requires 

that the government turn over to the defense all potentially 

exculpatory evidence. 373 U.S. at 87; Harris v. Kuba, 486 F.3d 

1010, 1014 (7th Cir. 2007). We agree with the Illinois Supreme 

Court and the district court that the withholding of the Murray evidence violated Beaman’s rights under Brady, so the 

overt acts requirement is met. At issue here is whether

Beaman has shown that the defendants reached an agreement to withhold the Murray evidence.4

4 Beaman also claims that the withholding of the Gates polygraph 

report violated Brady and argues that the defendants conspired to with-

 
No. 14-1195 19

Summary judgment should not be granted if there is evidence from which a reasonable jury could infer the existence 

of a conspiracy. See Cooney v. Casady, 735 F.3d 514, 518 (7th 

Cir. 2013). Because conspiracies are often carried out clandestinely and direct evidence is rarely available, plaintiffs 

can use circumstantial evidence to establish a conspiracy, but 

such evidence cannot be speculative. Williams v. Seniff, 342 

F.3d 774, 785 (7th Cir. 2003). Our task then is to determine 

whether Beaman’s circumstantial evidence shows that the 

defendants agreed with Souk that Souk would not turn over 

the Murray evidence to the defense.

Beaman argues that when officials conspire to violate 

Brady, the most telling circumstantial proof that a conspiracy 

existed is joint activity that violated Brady, with each defendant playing a different role and contributing a different 

part. His theory is that the defendants operated a two-track 

conspiracy. On the first track, officers Warner and Zayas 

suppressed evidence about other suspects, namely the Gates 

and Murray polygraph reports. These reports were not 

turned over to the prosecution or Beaman’s defense counsel. 

On this track, they were assisted by ASA Souk. How? Because by withholding the polygraphs (Warner and Zayas), 

interfering with the charging process to shield Murray’s 

credibility from attack (Souk), lying to the court and counsel 

about the evidence (Souk), misleading the jury (Souk), and 

presenting a false and deceptive closing argument (Souk), 

the defendants and Souk reveal a single plan to deflect the 

hold it. However, because we determined that the Gates polygraph report was not Brady material (whether considered alone or in combination 

with the Murray evidence), his allegations that the defendants conspired 

to withhold it are moot. 

 
20 No. 14-1195

jury’s attention away from Murray and Gates. On the second 

track, officer Freesmeyer prepared deceptive police reports

and misled the jury about the time Beaman would have 

needed to travel between the bank and his home, and Normal and his home. Again, Souk assisted on the second track 

by lying to the court and jury about the non-existence of alternative suspects. 

Beaman advances seven pieces of the puzzle from which, 

he contends, the conspiracy can be inferred. First, on the first 

day of the Lockmiller murder investigation, Freesmeyer and 

Souk thought that Beaman killed her. Second, while Gates 

and Murray were both alternative suspects, their polygraph 

reports were not turned over to the prosecution (despite the 

disclosure of other polygraph tests). Third, Freesmeyer told 

the grand jury that there were no other suspects with a motive to kill Lockmiller, despite, Beaman claims, knowing that 

this statement was not true. Fourth, Souk told another prosecutor not to prosecute Murray for his recent drug arrest in 

order to avoid revealing Murray’s criminal history (at the 

time, Murray was on the government’s witness list). At the 

same time, Freesmeyer signed the police reports for Murray’s arrests. Fifth, Souk told the court and the jury that there 

were no alternative suspects. Based on this representation, 

the court excluded all reference to other suspects. Sixth, 

Souk told the jury that all other suspects had been eliminated, so the jury never learned about the existence of Murray. 

Seventh, throughout the investigation and trial, there was 

close contact between the police and the prosecutors. 

Beaman’s argument seems to be that because the defendants all did things that helped to convict him, they must 

have all been involved in the suppression of the Brady mate-
No. 14-1195 21

rial. At least two problems exist with this theory. First, most

of the actions the defendants took to convict Beaman that he 

claims are evidence of the conspiracy were not at all Brady

violations themselves. For example, according to Beaman, 

Freesmeyer’s role was to prepare a “deceptive” police report 

about the time trials and mislead the jury about how long it 

would take Beaman to travel to Normal and commit the 

murder. But, Freesmeyer did not lie about the speeds at 

which he drove, and he was subject to cross-examination at 

trial about the speeds and alternative routes. The time trial 

evidence was a legitimate attempt to show Beaman’s ability 

to commit the crime and is not an indication of an illegitimate conspiracy to withhold other evidence. This is the type 

of behavior that will be present in every criminal prosecution—valid pursuit of a conviction. Second, detectives Warner’s and Zayas’s involvement is limited to the withholding of 

polygraph reports from the prosecution. Recall that on the 

first track of the conspiracy, according to Beaman, Warner 

and Zayas were assisted by ASA Souk. Even assuming that 

the withholding of the polygraphs violated Brady, Beaman 

does not explain how Warner and Zayas were assisted by

Souk in withholding information from Souk. Additionally, it 

is unclear how their actions with respect to the polygraph 

reports—the non-disclosure of which cannot form the basis 

of liability, as determined previously—shows their involvement in the suppression of, or even their knowledge of,

Murray’s arrest records and domestic violence disputes. 

More difficult for Beaman’s argument than the weakness 

in plausibility, though, is the implication of his theory of liability. Usually, a police officer’s Brady obligations are discharged by disclosing material exculpatory evidence to the 

prosecutor, for it is the prosecutor’s responsibility to turn the 
22 No. 14-1195

evidence over to defense counsel. See Carvajal, 542 F.3d at

566. Here, it is conceded that the defendants turned over the 

Murray evidence, except Murray’s polygraph report, to 

Souk. Beaman’s theory is that the defendants agreed with 

Souk to withhold the Murray evidence, and so they should 

be held liable for Souk’s failure to disclose the evidence to 

Beaman’s defense counsel. Beaman wants to use our discussion in Whitlock and its companion case, Steidl. He argues 

that a police officer’s duty to disclose exculpatory evidence is 

not discharged by disclosure to a prosecutor conspiring with 

the police officers to fabricate evidence, citing to our statement in Whitlock that “It is not likely that the police may take 

shelter behind a prosecutor who is conspiring with them to 

fabricate false evidence against innocent suspects.” 682 F.3d 

at 576 (citation omitted). There is no allegation here, however, that the defendants conspired to fabricate evidence.5 The 

defendants did not falsify any physical evidence or use any 

knowingly false testimony at trial. Cf. id. at 575. Beaman’s 

conspiracy allegations amount to a claim that the defendants 

are culpable solely for the prosecutor’s decision not to disclose exculpatory evidence to Beaman’s attorneys. But our 

case law has established that the police generally discharge 

their Brady duty by turning over exculpatory evidence to the 

prosecutor, thereby triggering the prosecutor’s disclosure

obligation. See Carvajal, 542 F.3d at 566.

We agree with the defendants that Beaman’s theory of

conspiracy liability is novel and, on these facts, cannot stand. 

His theory would allow police officers to be held liable any 

5 At times, Beaman refers to the time trial reports as “fabrication,” 

but again, those reports contained no false information and Freesmeyer 

did not testify falsely at trial. 

 
No. 14-1195 23

time a prosecutor fails to disclose Brady material simply by 

alleging that the police and prosecutor agreed that the prosecutor would not turn over the evidence, and using the 

prosecutor’s non-disclosure as evidence of the agreement. It 

is clear that Beaman’s primary quarrel is with Souk. Souk

possessed (most of) the Murray evidence, failed to turn it 

over, and told the court and jury that there were no alternative suspects. Unfortunately for Beaman, Souk is protected 

by absolute immunity. While this ruling results in a situation 

where Beaman cannot hold anyone accountable for the government’s failure to turn over Brady evidence, the solution 

should not be to punish the police officers—who did turn 

over the evidence to the prosecutor—for the prosecutor’s 

failure in judgment. 

Because Beaman failed to produce sufficient evidence 

from which a reasonable jury could infer an agreement between the defendants to withhold the Murray evidence, the 

defendants were entitled to summary judgment on the Brady

conspiracy claim. 

III. CONCLUSION

We AFFIRM the judgment of the district court.