### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 1195

A LAN B EAMAN , Plaintiff

- Appellant
,

v.

T IM F REESMEYER , 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
, Judg e

.

____________________

A RGUED S EPTEMBER 29, 2014

— D ECIDED J ANUARY 13, 2015

____________________

Before E ASTERBROOK , W ILLIAMS , and S YKES , Circuit Judges

. W ILLIAMS , Circuit Judge

. In 1995, Alan Beaman was co nvicted 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 of ficers and prosecutors i n-2 No. 14

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volved in the investigation of the Lockmiller murder and his prosecution. He al leged that the defendants deliberately conspired to suppress materially exculpatory evidence du ring the pen dency of his criminal case in violation of Br ady

. Although s everal defendants wer e dismissed for various reasons, t he remaining defendants

— T im Freesmeyer, Dave Warner, and Frank Zayas, three former police officers in the Normal Police Department, as well as their former employer
, th e 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 w e disagree. Summary judgment was proper because Beaman did not present

enou gh evidence from which a reasonable jury could infer the existence of a conspiracy to conceal the Brady material. O ne piece of evidence

— the report on alternative suspect Stacey Gates’s polygraph test

— was not Brady materi al and
its non

- disclosure could no t form the basis of a complaint. A s to the other Brady material

— the report on alternative suspect John Murray’s polygraph test

— which the defen dants did not turn over to the prosecu tion
, the defendants

were entitled to qualified immunity. Therefore, we affirm the district court’s decision.

I. BACKGROUND

A. Murder Investigation and Beaman’ s C onviction 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 revealedNo. 14

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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

. Se veral police of ficers were involved in the investigation inclu ding Tim Freesme yer, Rob Hospelhorn, Tony Daniels and Dave Warner, detectives in the City of Normal Police D epartment (“NPD”), Frank Zayas, a lieutenant in the NPD, and John Brown, a McLean County Deputy Sheriff. Prosec utors Charles Reynard, the McLean County State’s Atto rney, and James Souk, an Assistant Stat e’s Attorney, were also part of the investiga tive and prosecutorial team

. Because there was no sign of forced entry and nothing was stolen, the investigation immediately focused on people Lockmiller knew and
, particu larly, men she had d ated. The police questioned several of Lockmiller ’s current and former boyfriends, including Alan Beaman, Michae l Swaine, Stacey “Bubba” Gates , and Larbi John Murray

. Swaine was Bea man’s room mate and Lockmiller ’s boyfriend at the time of her murder. But Swaine was quickly eliminated as a su spect because h e 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 boy friend, had recently moved to Peoria to be clos er to Lockmiller
, and he and Lockmiller had plans to get t ogether the weekend after her murder. Because of Gates’s i n1 Lockmiller ’s body was not found until August 28, but it was obv ious that she had been dead for some time. Based upon her class schedule and, Beaman contends, Beaman’s availability, the government dete rmined that Lockmiller was killed on August 25.4 No. 14

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volvement with Lockmiller, he was asked to take a pol ygraph report. Th e report found that Ga tes gave er ratic 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 el iminated as a suspect because ch eck

- in logs from a Peoria school showed that he was working as a teacher on August
25. The most important al ternative suspect was Mur ray. Murray was Lockmiller ’s drug dealer and one of her lovers.
Detectives Hos pelhorn and Daniels interviewed Murray twice. He first told police that he left town on Au gust 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 li ved one

- and

- a

- half miles away from Lockmiller ’s apartment. He claimed to have been at home alone on A ugust 25 before 2 p.m. and thus could not provide any co rroboration for or pro of of his location. Murray also had some previous trouble with the law, r elated to his drug dealer pr ofession and his abuse of Mack oway

. Murray had charges pending against him for domestic violence and drug possession with intent to deliver at the
time Be aman eventually went to trial for Lockmiller ’s mu rder. 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. Bec ause of his relationship with Lockmiller , t he p o-No. 14

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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 a rrest record
, pending charges , and the ambiguous polygraph

re sults , the police and prosecutors decided to focus on
Beaman.

Beaman and Lockmiller had dated off and on for a co uple of years unt il about a month before Lockmiller ’s death. While their relationship was tumultuous, especially consi dering Lockmiller ’s involvement with Beaman’s roommate
, Swaine, Beaman too had an alibi. H e wa s living with his parents in Rockford, two hours away from Normal. Howe ver, through a series of controversial time trials, the state e stablished its theory of the case : Beaman drove to Normal on August 25 after visiting a bank in Rockford at 10:11 a

. m ., ki lled Lockmiller at noon , and then drove back t o Rockford where h e 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 No rmal to kill Lockmiller

— becau se the bank was too far. I n the bank

- to

- home time trial
, though, Freesmeyer took the more trafficked route and fo llowed all speed limits.6 No. 14

- 1195

Despite the holes in the case, the state decided to pros ecute Beaman. At trial, th e state argued that Beaman was the only person with both the opportu nity 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 Norma l 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 evi dence of Lockmiller ’s relationships with men
, other than Beaman and Swaine

. At that time, Souk informed the court that Mu rray 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 specul ative. T he state had not turned over the report of Murray’s polygraph test or any of Murray’s arrest records , which i ncluded evidence of his steroid use and domestic violence. So
Be aman’s lawyer responded that he did not have any speci fic evidence showing that an other person committed the o ffense. So t he court then granted the motion in limine. During closing argument , Souk stated that the state had proved ev ery other suspect’s alibi, except for Beaman. But b ecause of the motion in limine, Murray was not mentioned at trial. In April 1995, the j ury convicted Beaman of Lockmiller ’s mu rder.No. 14

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B. Illinois Sup reme Court Overturns Beaman’s C onviction
After conviction, Beaman vigorously pursued post

con viction relief. And in 2008 the Illin ois Supreme Court r eversed 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 examinat ion; ( 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) Mu rray’s use of steroids had caused him to act erra tically (“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 po ssible involvement in the offense, to present Murray as an a lternative suspect. The court found that the undisclosed ev idence was clearly favorable to Beaman in establishing Mu rray as an alternative sus pect. Id. The state admitted that the Murray evidence had been suppressed. And the court fu rther found that the evidence was material because it cou ntered the state’s circumstantial evi dence against Beaman and rebutted the state’s argument that all other potential su spects 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 ev idence 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

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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 Ja nuary 2010, Beaman filed a 42 U.S.C. § 1983 co mplaint against five NPD police officers, two McLean County prosecutors, and two munic ipalities

. He alleged three federal claims: ( 1) that the defendants, acting individually , jointly, and in conspira cy, deprived Beaman of a fair trial by wit hholding material exculpatory evidence in violation of Brady (individual liability) ; ( 2) that the defendants conspired to deprive Beaman of material exculpatory evidence (conspir acy liability) ; and ( 3) that the defenda nts failed to intervene in preventing the violation of his rights (failure to intervene l iability)

. The complaint also in cluded state law claims for m alicious prosecu tion, civil conspiracy
, and intentional infli ction of emotional distress, and respondeat s uperior and i ndemnification claims against the municipalities. T he ev idence he claimed was Brady material included not only the Murray evidence, but also the report of Gate s’s polygraph test, another suspect’s criminal history, the unsolved nature of the c ase, 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 i mmunity. Later, Souk and Reynard were voluntarily di smissed from the suit because discovery revealed that all claims against them would be barred by absolute or qual ified immunity. The complaint was also dismissed against detectives Hospelhorn and Brown because discovery r evealed that they were not involved in the alleged suppr e s-No. 14

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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 the se 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 co nspiracy or of failure t o intervene liability; ( 3) some of the u ndisclosed evidence , including the report on Gates’s pol ygraph 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 defen dants, 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 de cision.

II. ANALYSIS On appeal, Beaman challenges the district court’s grant of summary judgment on three grounds

. H e 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 immuni ty for withholding the results of Murray’s polygraph test from the prosecution

. Because our decisions on Beaman’s second and third argumen ts narrow the scope of the alleged conspiracy,

w e address those issu es first

.10 No. 14

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A. No Brady Violation for Withho lding of Gates’s Polygraph Test

Beaman argues that the district court erred when it d etermined 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 no vo, including its finding that the withholding of evidence does not violate Brady

. Pe tty 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 i mpeaching; ( 2) the evidence m ust have been suppressed by the state, either willfully or inadvertently; and ( 3) the ev idence must have been material, meaning there is a reason able probability that the result of the proceeding would have been different. Carvajal v. Dominguez , 542 F.3d 5 61, 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

n eed only show that the new evidence undermines conf idence 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 unde rmined by the reasonable p robability 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 preven t-No. 14

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ed the exami ner 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 wou ld 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 pa ssionately in love with Lockmiller , so much so that he moved from Wisconsin to Peoria to be clo ser 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 stip ulated at trial that Gates had been working at the school o n 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 t o persuade the trial court to allow in ev idence 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 pol ygraph 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 e x-12 No. 14

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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 t rial court would have allowed evidence sho wing that Gates was the actual murderer giv en his solid alibi, and, a s 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 no t 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, dete ctive Freesmeyer interviewed the school’s principal who pr ovided the check

- in logs and, according to Freesmeyer’s p olice 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 opportu nity, 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 pol ygraph is manifest when ev aluated 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 su ppressed evidence

— that is, the Murray evidence

— does not help Beaman in establishing that Gates’s polygraph was m aterial. Evidence inculpating Murray does nothing to establish G ates as a viable alternative suspect. As the Illinois Supreme Court found, the Murray evidence, considered cumulatively,No. 14

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was material because the evidence would have presented Murray as a viable alternative suspect without an alibi to counter the state’s a rgument that all other suspects had e stablished alibis. But Gates’s polygraph is not material b ecause 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 th e day of the mu rder 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 oppo rtunity to commit the murder. The trial court may have been
persua ded to admit evidence about Murray if presented with all of the withheld Murray evidence, but it is improb able that the evidence inculpating Murray would have pe rsuaded 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. I ts 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 fin ding that the individual defendants were entitled to qualified immunity for their failure to turn over the Murray pol ygraph report to the prosecution. We review a district cour t’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 constit u-14 No. 14

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tional rights of which a reasonable per son 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 constit ution al 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 non

disc losure of the results of Murray’s polygraph test. The ci rcumstances of the exam indicated that Murray may have i ntentionally 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 dome stic abuse allegations, could have been used to persuade the trial judge to admit evidence indicating that Murray c o mmitted 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 plaintif f 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 i ssue; or (2) he can show that the conduct was “so egregiou s 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 circumstancesNo. 14

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are novel, a right can still be clearly established so long as the sta te 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 wa s unlawful in the situation he co nfronted.’” 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 es tablished 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 ci rcumstance cannot excuse the Brady violation where it is well

established that investigators who withhold exculpatory e vidence 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 sin ce 1963, it certainly has not been on the books since 1963 that polygraph reports are materially exculpatory ev idence. 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 r esults were not admissible at trial, the state’s failure to di sclose the fact that a witness failed a polygraph test did not deprive a defendant of “material” evidence under Brady , a b-16 No. 14

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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 d etermination that the evidence was Brady material in Illinois.

E ven if the relevant inquiry was wha t the Illinois S upreme Court decided, that court’s determination in 2008 that the polygraph test could have affected the trial does not a nswer the question of whether, in 1995, it was clearly esta blished that the officers needed to turn over inadmissible po lygraph reports. 2 Beaman points to no cases pre

- 1995 where the Illinois Supreme Court, or any Illinois court for that ma tter, found that inadmissible polygraph tests, or any other type of inadmissible evidence, could constitute Br ady mat erial. 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 Illino is Supreme Court did not determine that the polygraph test would have been admissible. I t just found that the pol ygraph could have been used as part of a broader argument that Murray was a viable suspect in convincing the judge to admit other evidence tend ing to inculpate Murray.

3 P rior to Beaman’s trial, several Illinois Supreme Court cases esta blished 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) (f inding 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 aNo. 14

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Beaman also argues that it was clearly established in 1995 that evidence inculpating another suspect was Brady mater ial. While that is true as a general matter, Beaman forms the question too broadly. In its broadest form, the relevant i nquiry is whether inadmissible information inculpating anot her suspect could be Brady material. Again, Beaman po ints to
no pre

- 1995 case from Illinois or the Supreme Court, and we are unable to find one, establishing that inadmissible ev idence inculpating another suspect (to frame it broadly) or polygraph tests (to frame it narrowly) is Brady material. During the r elevant time period, it was not clearly esta blished 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 conclu ded

— that it became clearly establis hed that inadmissible po lygraph 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 j urisdictions today. See United States v. Morales , 746 F.3d 3 10 (7th Cir. 2014). Therefore we find that the defendants are e ntitled 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, i ts non

- disclosure cannot form the basis for individual or conspiracy liability.

polygraph examination taken by a c riminal defendant, even though the prosecution agreed to the admission of the evidence).18 No. 14

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C. Summary Judgment Was Proper on Brady Co n spi r acy Claim Finally , we address Beaman’s argument that the defen dants conspired with each other and Souk to violate his due process right to a fair tri al by withholding materially excu lpatory evidence, in violation of Brady

. He alleges that a re asonable jury could infer the exist ence of a conspiracy based on the evidence he presented

. We review the district court’s grant of summary judgment de novo, constr uing 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 pe rsons acting in concert to commit an unlawful act, or to co mmit 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 ind ividuals reached an agreement to deprive him of his constit utional rights
, and ( 2) overt acts in furtherance actually d eprived 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

ex culpatory evidence. 37 3 U.S. at 87 ; Harris v. Kuba , 486 F.3d 1010, 1014 (7th Cir. 2007). We agree with the Illinois Supreme Co urt and the district court that the withholding of the Mu rray evidence violated Beaman’s rights under Brady
, so the overt acts requirement is met. At is sue here is whether Beaman has shown that the defendants reached an agre ement 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 wit h-No. 14

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Summary judgment should not be granted if there is ev idence 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 cla ndestinely and direct evidence is rarely available, plaintiffs

can use circumstantial evidence to establish a conspiracy, but such evidence cannot be speculative. W illiams 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 whe n officials conspire to violate Brady , the most telling circumstantial proof that a conspiracy existed is joint activity that violated Brady , with each d efendant 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 Gate s and Murray polygraph reports. These reports were not turned over to the prosecution or Beaman’s defense counsel. On th is track, they were assisted by ASA Souk. How? B ecause 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 r eport 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

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jury’s attention away from Murray and Gates. On the sec ond track, officer Freesmeyer prepared deceptive po lice report s and misled the jury about the time Beaman would have needed to travel between the bank and his home , and No rmal and his home

. Again, Souk assisted on the second track by lying to the court and jury about the non

- existence of a lternative suspec ts.

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 m otive to kill Lockmiller, despite , Beaman claims, knowing that this statement was not true. Fourth, Souk told another pros ecutor not to prosecute Murray for his recent dr ug 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 Mu rray’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, So uk told the jury that all other suspects had been elimina ted, 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 seem s to be that because the defen dants all did things that helped to convict him, they must have all been involved in the suppression of the Brady mat e-No. 14

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rial. At least t wo p roblems exist with this theory . First, most of the actions the defendants took to con vic t 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 Nor mal 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 illegit imate conspiracy to withhold other evi dence. T his is the type of behavior that will be present in every criminal prosec ution

— valid pursuit of a convic tio n. Second
, detectives War ner ’s and Zayas’ s involvement is limited to the withholding of polygraph reports from the prosecution

. Re call 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 involv ement in the suppression of, or even th eir knowledge of,
Mur ray’ s arrest records and domestic violence disputes

. More difficult for Beaman’s argument than the weakness
in plausibility
, though
, is the implica tion of hi s theory of li ability. Usually, a police officer’s Brady obligations are di scharged by disclosing mat erial exculpatory evidence to the prosecutor, for it is the prosecutor’s responsibility to turn the22 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 p olygraph report, to Souk. Beaman’s theory is that the de fendants agreed with Souk to withhold th e 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 discu ssion 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 stat ement in Whitl ock 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). T here is no allegation here , howe ver, that the defendant s conspired to fabricate evidence. 5 The d efendants did not falsify any physical evidence or use any knowingly false testimo ny at trial. Cf. id. at 575

. Beaman’s conspiracy allegations amount to a claim that the defendants are culpable solely for the prosec utor’s decision not to di sclose 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 conspira cy liability is novel and, on these facts, canno t stand. His theory would allow police officers to be held liable any

5 At times, Beaman refers to the time trial rep orts as “fabrication,” but again, those reports contained no false information and Freesmeyer did not testify falsely at trial.No. 14

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time a prosecutor fails to disclose Brady material simply by alleging that the police and prosecutor agreed that the pro secutor would not turn over the evidence, and usi ng 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 w ere no altern ative suspects. U nfortunately for Beaman, Souk is protected by absolute immunity. While this ruling results in a situation where Beaman cannot hold anyone accountable for the go vernment’s fail ure to turn over Brady evidence, the solution should not be to punish the police offic ers

— 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 reasonab le jury could infer an agreement b etween the defendants to withhold the Murray evidence , the defendants were entitled to summary judgment on the Brady conspiracy claim.

III. CONCLUSION

We A FFIRM the judgment of the district court.