IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN FULTON, 

Plaintiff,

 v. 

ROBERT BARTIK, et al., 

Defendants. 

ANTHONY MITCHELL, 

Plaintiff,

 v. 

ROBERT BARTIK, et al.,

Defendants.

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Case Nos. 20 C 3118 

Judge Joan H. Lefkow 

Case Nos. 20 C 3119 

Judge Joan H. Lefkow 

OPINION AND ORDER

In these related actions, John Fulton and Anthony Mitchell filed substantially identical 

complaints against the same defendants, alleging constitutional violations brought under 42 

U.S.C. § 1983 and related state law claims.1

 The core factual allegation underpinning their suits 

is that they were deprived of their constitutional rights and wrongfully imprisoned because 

various Chicago police officers and Cook County Assistant State’s Attorneys coerced and 

fabricated false confessions and fabricated witness testimony and reports that led to their 

indictments and convictions. Before the court are three motions for summary judgment brought 

by the various defendants. For the reasons discussed below, the court grants in part and denies in 

1 The court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. Venue lies under 28 U.S.C. § 

1391(b). 

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part the County Defendants and the Police Officer Defendants’ motions (dkt. 197 and dkt. 202, 

respectively) and denies the City’s motion (dkt. 209). 

BACKGROUND

Before relating the relevant factual background, the court addresses the parties’ claims 

that the opposing party has violated Local Rule 56.1 in their factual submissions and responses. 

(See dkts. 230 at 2–3; 240 at 4–8; 245 at 1–3.) On summary judgment, the court relies on the 

factual assertions and objections thereto contained in the parties’ Local Rule 56.1 submissions, 

and it may enforce strict compliance with Local Rule 56.1 procedures. See Curtis v. Costco 

Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015); Stevo v. Frasor, 662 F.3d 880, 886–87 (7th 

Cir. 2011). Accounting for the parties’ objections, what follows are the relevant and properly 

supported factual assertions, based on the undisputed facts as admitted by the parties or, if an 

objection to an asserted fact was raised, based on the court’s review of the underlying evidence 

cited in support of or opposition to the fact. See Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 

F.3d 697, 704 (7th Cir. 2011). Thus, if a submitted fact is not included below, it is because it 

either was immaterial and provided no helpful context or was unsupported by the evidence. 

A. Factual Background2

At around 3:00 a.m. on March 10, 2003, Sid Taylor looked out his window into the alley 

behind his apartment building and saw something burning. (Dkt. 224 ¶ 5.)3 He called the police. 

2 Plaintiffs’ complaints named as defendants: the City of Chicago (“the City”); Cook County 

(“the County”), Assistant Cook County State’s Attorneys McRay Judge, Jacob Rubinstein, and Andrew 

Varga (collectively, the “Prosecutor Defendants”), and Cook County State’s Attorney’s Office 

investigator Eugene Shepherd (collectively, the “County Defendants”); and Chicago police officers 

Detective Aguirre, Robert Bartik, James Breen, Richard Cervenka, Stephen Franko, Robert Girardi, 

Michael Kennedy, Leonard Rolston, Michael Schmitz, Brian Skora, Joseph Struck, Edward Winstead, 

and John Zalatoris (collectively, the “Police Officer Defendants”). (Dkt. 1 ¶¶ 11, 14–15.) 

3

 The docket numbers for corresponding documents in 20 C 3118 and 20 C 3119 are not always 

the same between the dockets. Because the documents necessary to deciding these motions are, however, 

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(Dkt. 241 ¶ 1.) Responding officers Matthew Schmitz and Brian Skora found the body of 

Christopher Collazo covered in partially burned black plastic and lying on a partially charred 

cardboard box. (Dkt. 224 ¶¶ 6–7, 9.) Collazo’s hands, feet, waist, and mouth were duct-taped, 

and he had been gagged with a sock. (Id. ¶¶ 7, 9.) The body smelled of gasoline. (Id. ¶ 7.) A 

medical examiner would later determine that Collazo had died from a combination of multiple 

blunt force trauma injuries and asphyxiation before his body was set on fire. (Id. ¶ 8.)

Schmitz interviewed Taylor, who reported seeing two persons standing by the fire, “one 

wearing a red jacket and the other ... a black jacket.”4 (Id. ¶¶ 10–11.) After Schmitz notified the 

detective division that this was a homicide, Detectives Leonard Rolston, Edward Winstead, and 

Joseph Aguirre came out to the scene and again interviewed Taylor. (Id. ¶¶ 12–14.) 

That same day, Detectives John Zalatoris and James Breen were also assigned to the case. 

(Id. ¶ 15.) They began by interviewing Collazo’s mother, Madilen Mercado, who said that she 

had last seen Collazo at home with two friends at around 8:00 p.m. on March 9 and that Collazo 

had said he was going out that night. (Id. ¶¶ 15–16.) Mercado’s son Victor led Zalatoris and 

Breen to one of those two friends, Michael Rosas, who identified the other friend as Marcus 

Marinelli. (Id. ¶¶ 17–18.) At around 4:30 a.m. on March 11, Zalatoris and Breen went to 

Marinelli’s home, told Marinelli’s mother that Marinelli had “killed his friend,” handcuffed 

Marinelli, and took him to Area One for questioning. (Dkts. 224 ¶ 19; 241 ¶¶ 10–11.)

identical, citations to the docket should be interpreted to encompass both dockets. For simplicity’s sake, 

the court cites only the Fulton docket entries: the County Defendants’ Statement of Facts and Exhibits 

(dkt. 198), the Individual City Defendants’ Statement of Facts and Exhibits (dkt. 203), Plaintiffs’ Exhibits 

in Response to the Motions for Summary Judgment (dkt. 223), Plaintiffs’ Response to the Individual City 

Defendants’ Statement of Facts (dkt. 224), Plaintiffs’ Response to the County Defendants’ Statement of 

Facts (dkt. 226), Plaintiffs’ Statement of Additional Facts (dkt. 227), and Defendants’ Response to 

Plaintiffs’ Statement of Additional Facts and Exhibits (dkt. 241).

4 Defendants claim that Taylor specifically identified the two individuals as Black males, but 

plaintiffs dispute that Taylor ever provided such identifying details. (Dkt. 224 ¶ 11).

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At Area One, Marinelli was handcuffed to the wall of an interrogation room while 

Rolston and Winstead questioned him without reading him with his Miranda rights. (Dkts. 224 ¶ 

20; 241 ¶ 12.) Marinelli denied any involvement in the murder, saying that he had left Collazo’s 

home by 9:00 p.m. on March 9 to go to the apartment of Marisol Caldero to sell marijuana to 

Johnnitta Griffin. (Dkts. 226 ¶ 26; 241 ¶¶ 13, 16.) Marinelli also told Rolston and Winstead that, 

a few weeks earlier, Griffin had called Collazo to tell him about a friend of hers who wanted to 

buy a gun. (Dkts. 224 ¶ 20; 241 ¶ 14.) Collazo and Marinelli had lured Griffin’s friend, a Black 

male, into an apartment building by offering to sell him a gun for $300 and had then robbed him 

at gunpoint of $14. (Dkt. 224 ¶ 20.) Upset that the robbery had yielded far less than the $300 he 

had expected, Collazo accused Marinelli of cheating him. (Id.) When Collazo called the cell 

phone of the man they had robbed, the man laughed because they had “only got a few dollars 

from him.” (Id.) Marinelli then took a tour with Rolston and Winstead and showed them where 

these events had transpired. (Id. ¶ 21.)

Later that day, March 11, Rolston and Winstead interviewed Griffin, who was 17 years 

old. (Dkts. 224 ¶ 24; 241 ¶ 16.) Griffin denied any involvement in the murder, but she admitted 

that she had set up the gun deal between Collazo and her ex-boyfriend John, with whom she had 

last spoken on March 8. (Dkts. 224 ¶¶ 24–25; 241 ¶ 17.) Based on Griffin’s description of John’s 

car, Rolston and Winstead were able to identify Griffin’s ex-boyfriend as John Fulton. (Dkt. 224 

¶¶ 25–27.) At 11:00 p.m. on March 13, Rolston, Zalatoris, and Breen intercepted Griffin as she 

was returning home. (Dkts. 224 ¶ 28; 241 ¶ 20.) Griffin agreed to talk with them inside their car 

because it was cold outside. (Id.) Once Griffin was in the car, the officers took her to Area One, 

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where she was “interviewed” by Zalatoris and Breen.

5 (Id.) The circumstances of that interview, 

which lasted until 9:45 a.m. on March 14, are disputed, but it is not disputed that Griffin again 

recounted the events surrounding the gun deal and robbery and eventually told Assistant State’s 

Attorney Jacob Rubinstein, who had arrived at Area One around 7:30 a.m., that she had spoken 

with Fulton on March 9 and told him where he could find Collazo that night.

6 (Dkts. 224 ¶¶ 29–

30, 32; 241 ¶ 25.) Griffin also told Rubinstein about the gun deal and robbery and that Collazo 

had “taunted Fulton about the robbery.” (Dkt. 224 ¶ 34.) Rubinstein handwrote a summary of 

what Griffin told him, and Griffin signed each page after initialing corrections. (Id.)

Shortly thereafter, Winstead took Griffin to testify before a Grand Jury. (Id. ¶ 43.) There, 

Griffin related how she had dated Fulton and met his friend Anthony Mitchell. (Id. ¶¶ 45–46.) 

She told the Grand Jury about the gun deal and robbery and about Collazo taunting Fulton. (Id. 

¶¶ 48–50.) She also related that “Fulton was scared of Collazo” and had asked her about 

Collazo’s whereabouts on March 9. (Id. ¶¶ 50, 52.) After returning home, Griffin called Caldero 

and said that she had been coerced into making false statements against Fulton. (Dkt. 241 ¶ 29.)

At about 5:30 a.m. on March 18, Detectives Rolston and Robert Girardi arrested Fulton, 

who was 18 years old at the time, at the apartment building where he lived with his fiancée, 

Yolanda Henderson, and their son. (Dkts. 224 ¶¶ 59–61, 107; 241 ¶¶ 32, 35.) Sometime after the 

arrest, Winstead interviewed Henderson and then created a report claiming that Henderson had 

stated that she and Fulton had been at the University of Chicago Hospital in Hyde Park on the 

5 The parties dispute whether Griffin willingly went to Area One. Defendants claim that she 

“agreed” to go to Area One (dkt. 203 ¶ 28), but plaintiffs claim that the officers “sped off without 

[Griffin’s] consent and without telling her where she was going.” (Dkt. 227 ¶ 20).

6 Plaintiffs claim that, once at Area One, the officers threw Griffin into an interrogation room, 

yelled at her, threatened her, threw pictures of Collazo’s body around the room, and forced her to adopt 

the “fabricated story” that she had spoken with Fulton on March 9 and told him where he could find 

Collazo that evening. (Dkt. 227 ¶¶ 20–23.)

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night of the murder and that, when she and Fulton had returned home, Fulton did not come up to 

the apartment and she did not know whether he ever came home that night. (Id. ¶¶ 130–31.)

Rolston, Girardi, and Fulton arrived at Area One at about 6:00 a.m., and Fulton was 

placed in an interrogation room. (Dkt. 224 ¶¶ 61–62.) Around 7:00 a.m., Rolston and Girardi 

began questioning Fulton, who said he had nothing to do with the murder and provided the 

detectives with an alibi—that he had been at the University of Chicago Hospital in Hyde Park

with Henderson until very late on the night of March 9, had returned home, and had not gone out 

again. (Dkts. 224 ¶¶ 63, 105, 110; 241 ¶¶ 37, 40, 121–22.) Returning to the interrogation room

around 9:00 a.m., Girardi showed Fulton photographs of Collazo, Marinelli, and Griffin, and 

Fulton told Girardi about the gun deal and robbery. (Dkt. 224 ¶ 65.) 

At some point later that day, Zalatoris and Breen also interrogated Fulton. (Dkt. 224 ¶ 

74.) Fulton again denied having anything to do with the murder, reiterated his alibi, and asked to 

take a lie detector test to prove his innocence. (Dkts. 224 ¶¶ 74–75; 241 ¶¶ 41–42.) Zalatoris and 

Breen told him that they did not believe him. (Dkt. 241 ¶ 42.) Although further facts surrounding 

this interrogation are disputed (e.g., whether Zalatoris and Breen threatened Fulton and his 

family if he did not confess and whether Fulton confessed at this time), there is no dispute that 

Zalatoris and Breen then put Fulton in a car and drove him along the route that he and the other 

suspects allegedly took the night of the murder. (Dkts. 224 ¶ 89; 241 ¶ 45.) They also took 

Fulton to the alley where Collazo’s body was discovered and toured the route Collazo allegedly 

took before he was murdered. (Dkt. 241 ¶¶ 46–48.) Sometime late that evening, Zalatoris and 

Breen took Fulton to the polygraph unit, where Officer Robert Bartik administered a polygraph 

test. (Dkt. 224 ¶¶ 76–78.) Afterward, Bartik produced a report claiming that Fulton had 

confessed during a pre-test interview. (Id. ¶¶ 78–81.)

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Around 3:00 a.m. on March 19, Assistant State’s Attorney McRay Judge was called to 

Area One “to assist in the Collazo murder investigation.” (Dkts. 224 ¶ 91; 226 ¶ 18.) After 

speaking with Zalatoris and Breen about the case and reviewing the case file, Judge joined 

Zalatoris and Breen in the interrogation of Fulton shortly before 5:00 a.m. (Dkts. 224 ¶ 91–92; 

226 ¶ 21; 241 ¶ 50.) What transpired during that initial interrogation is disputed, but the parties 

agree that Fulton eventually gave an inculpatory statement in the presence of Zalatoris, Breen, 

and Judge, and that at some point Zalatoris and Breen left the interrogation room so that Judge 

and Fulton could speak alone. (Dkts. 224 ¶¶ 92, 94; 226 ¶¶ 23, 28; 241 ¶¶ 52, 54.) In a 

conversation that lasted between five to ten minutes, Fulton gave Judge his alibi and repeatedly 

said that the inculpatory statement he had just given was not to be credited.

7 (Dkts. 224 ¶¶ 94–

96; 226 ¶ 30; 241 ¶ 55.) 

Later that same day, after reading Fulton his Miranda rights, Rubinstein interrogated 

Fulton. (Dkt. 224 ¶ 102.) Fulton related the details of the gun deal and robbery and told 

Rubinstein that, after he was robbed, he returned to the car where Mitchell and another 

individual, Antonio Shaw, were waiting. (Id.) Fulton also told Rubinstein that Collazo called him 

several times in the days following the robbery to taunt Fulton, Mitchell, and Shaw. (Id. ¶ 103.) 

Fulton denied killing Collazo and again provided his alibi. (Id. ¶¶ 104–05.)

Around 5:15 p.m., Assistant State’s Attorney Andrew Varga arrived at Area One. (Dkt. 

226 ¶ 46.) After discussing the case with Rubinstein, Varga reviewed the paperwork, spoke with 

Winstead about Griffin’s statement, and learned that Fulton had made an inculpatory statement. 

(Id. ¶¶ 46, 49–50.) Varga also learned that Fulton had recanted. (Id. ¶ 50.)

7 Defendants claim that Fulton told Judge that his confession was “made up” while Fulton claims

that he told Judge that “he was told to falsely confess” by Zalatoris. (Dkt. 224 ¶ 95.)

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Later that night, at about 11:00 p.m., Zalatoris and Breen arrested Mitchell, who was 17 

years old, and brought him to Area One for questioning. (Dkts. 224 ¶ 128; 241 ¶ 74.) Mitchell 

denied any involvement in the murder. (Dkt. 224 ¶ 129.)

Around 2:00 p.m. on March 20, Rubinstein and Winstead again interrogated Fulton. (Id. 

¶ 111.) Fulton again denied any involvement in the murder and restated his alibi. (Id.) Shortly 

thereafter, Rubinstein and Rolston also interrogated Mitchell again. (Id. ¶ 134.) Mitchell said that 

he might have been at his cousin’s house on the night of the murder. (Id. ¶ 135.)

When Rubinstein and Girardi, as well as Detective Joseph Struck, returned to interrogate 

Fulton at 8:30 a.m. on March 21, Fulton retracted his alibi and gave an inculpatory statement. 

(Id. ¶¶ 113–14.) Rubinstein then wrote a memorandum summarizing his conversation with 

Fulton. (Dkts. 224 ¶ 115; 226 ¶ 37.) In broad strokes, Fulton’s inculpatory statement described 

how he had learned of Collazo’s whereabouts on the night of the murder from Griffin and how 

he, Mitchell, and Shaw had beaten Collazo with a bat, placed him in the trunk of their car, 

purchased a gas can and gasoline, driven to the alley where Collazo’s body was found, taped up 

Collazo’s hands, feet, and mouth, placed his body in a box, doused him with gasoline, and set 

him on fire. (Dkt. 224 ¶¶ 116–20.)

Returning to Mitchell, Zalatoris and Breen told Mitchell about Fulton’s statement 

implicating him in the murder and then drove Mitchell around in the same way that they had 

driven Fulton around, tracking the route Fulton, Mitchell, and Shaw allegedly took the night of 

the murder. (Id. ¶¶ 130, 132–33.) At 9:45 a.m., Rubinstein, Girardi, and Struck continued 

Mitchell’s interrogation, and Mitchell gave an inculpatory statement. (Id. ¶ 136.) At about 2:00 

p.m., that statement was videotaped. (Id. ¶¶ 145–46.) 

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That same afternoon, Breen and Zalatoris visited Fulton’s grandfather, looked in his 

garage, and found a gas can. (Id. ¶ 154.) They also arrested Shaw, who was 15 years old, and 

brought him to Area One for questioning. (Dkts. 224 ¶ 156; 241 ¶ 91.) Because of Shaw’s age, 

Youth Investigator Stephen Franko was brought in for Shaw’s interrogation. (Dkt. 224 ¶ 157.) 

Zalatoris read Shaw his Miranda rights. (Id. ¶ 158.) In the early evening, Varga arrived at Area 

One and reviewed all available reports, as well as Mitchell’s videotaped statement. (Dkt. 226 ¶¶ 

56–57.) From about 8:15 p.m. to 9:15 p.m., Varga and Zalatoris interrogated Shaw with Franko 

present. (Dkts. 226 ¶ 58; 241 ¶ 93.) At about 10:00 p.m., Shaw provided Varga with an alibi: that 

he was at his aunt’s house on the night of the murder. (Dkts. 226 ¶ 64; 241 ¶ 103.) After a short 

break, Varga, Zalatoris, and Franko again questioned Shaw around 11:00 p.m. (Dkts. 226 ¶ 66; 

241 ¶ 105.) Shaw continued to deny any involvement in the murder. (Id.) Sometime thereafter, a 

relative8 of Shaw’s, Ronald Smith, arrived and spoke with Shaw alone. (Dkt. 224 ¶ 159.) Varga 

and Zalatoris then spoke with Shaw and Smith until about 12:30 a.m. on March 22. (Dkt. 226 ¶ 

68.) During this conversation, much of which is disputed, Shaw recanted his alibi and gave an 

inculpatory statement. (Dkts. 224 ¶ 158; 226 ¶¶ 69–70.) At about 1:25 a.m., after Shaw was 

given a break, Varga took Shaw’s handwritten statement. (Dkts. 224 ¶ 160; 226 ¶¶ 70–71.) 

Fulton, Mitchell, and Shaw were indicted for Collazo’s murder. (Dkt. 224 ¶¶ 155, 166.)

On May 13, 2003, Griffin recanted to Fulton’s criminal defense attorney. (Id. ¶ 170.) On October 

31, 2005, Shaw’s inculpatory statement was suppressed, and his case dismissed. (Id. ¶ 166.) In 

the fall of 2006, Fulton and Mitchell were tried at the same time before separate juries. (Id. ¶ 

202.) As relevant here, prosecutors theorized that Fulton’s alibi was not airtight because he could 

have left his apartment building undetected after dropping his fiancée off. (Dkt. 241 ¶ 141.) To

8 Defendants say Smith was Shaw’s uncle; plaintiffs say he was Shaw’s cousin. (Dkt. 224 ¶ 159.)

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support that theory, prosecutors sent Eugene Shepherd, an investigator in the State’s Attorney’s 

Office, to Fulton’s building to examine its entrances for security cameras. (Dkts. 226 ¶¶ 85, 89; 

241 ¶ 138.) Shepherd testified that there were no cameras in the rear of the building. (Dkt. 241 ¶ 

140.) Both Fulton and Mitchell were convicted of first-degree murder, aggravated kidnapping, 

and concealment of a homicidal death. (Dkt. 224 ¶ 202.) They were both sentenced to 31 years 

for Collazo’s murder, 25 years for his kidnapping, and 3 years for the concealment of his death, 

to run concurrently. (Id.) In December 2012, Fulton petitioned for post-conviction relief. (Id. ¶ 

204.) Mitchell did the same in November 2013. (Id.) They were granted a post-conviction 

hearing, which was held in 2018. (Id. ¶ 205.) In February 2019, the Circuit Court of Cook 

County granted them a new trial. (Id. ¶ 207.) Three months later, the State dismissed all charges. 

(Id. ¶ 208.) Shortly thereafter, Fulton and Mitchell petitioned for certificates of innocence. (Id. ¶ 

210.) Although their petitions were initially denied, the Illinois Appellate Court reversed and 

remanded for further proceedings, which remain pending. (Id. ¶ 212.)

B. Procedural History

In May 2020, Fulton and Mitchell initiated these suits, asserting eight constitutional 

claims and five state law claims. (Dkt. 1 at 29–43.) Defendants moved to dismiss the complaints, 

and the court granted the motions in part.9 Fulton v. Bartik, 547 F. Supp. 3d 799 (N.D. Ill. 2021).

At this stage of the litigation, plaintiffs continue to press seven constitutional claims:

• False confession in violation of the Fifth Amendment’s right against selfincrimination and the Fourteenth Amendment’s rights to due process and to a fair 

trial, against the Police Officer Defendants and Judge (Count I);

9 The court dismissed plaintiffs’ claim of involuntary servitude (Count V) with prejudice and 

dismissed without prejudice all claims against Defendant Rubinstein and two claims—failure to intervene 

(Count VI) and conspiracy (Count VII)—against Defendant Varga. Fulton, 547 F. Supp. 3d at 824.

Plaintiffs filed motions for reconsideration, which the court denied, dismissing Rubinstein with prejudice. 

(Dkt. 126 at 6.) Because plaintiffs did not amend or replead, the failure-to-intervene and conspiracy 

claims against Varga are likewise dismissed with prejudice. See Airborne Beepers & Video, Inc. v. AT&T 

Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007).

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• Fabrication of false witness statements in violation of the Fourteenth 

Amendment’s rights to due process and to a fair trial, against the Police Officer 

Defendants and the Prosecutor Defendants (Count II);

• Deprivation of liberty without probable cause in violation of the Fourth and 

Fourteenth Amendments, against the Police Officer Defendants and Shepherd

(Count III);

• Wrongful conviction and illegal confinement in violation of the Fourteenth 

Amendment’s rights to due process, to a fair trial, not to be wrongfully convicted, 

and to be free of involuntary confinement, against the Police Officer Defendants 

and Shepherd (Count IV);

• Failure to intervene to stop other constitutional deprivations, against the Police 

Officer Defendants and Judge and Shepherd (Count VI);

• Conspiracy to deprive plaintiffs of their constitutional rights, against the Police 

Officer Defendants and Shepherd (Count VII); and

• A Monell claim based on the underlying constitutional deprivations caused by the 

Police Officer Defendants as a result of the City of Chicago’s policies, practices, 

or customs, against the City under Monell v. New York Department of Social

Services, 436 U.S. 658 (1978) (Count VIII).

(Dkts. 1 at 29–39; 106; 126.) Plaintiffs also continue to press five state law claims:

• Malicious Prosecution, against the Police Officer Defendants and Shepherd 

(Count IX);

• Intentional Infliction of Emotional Distress, against the Police Officer 

Defendants and the individual County Defendants (Count X);

• Civil Conspiracy, against the Police Officer Defendants and Shepherd (Count 

XI);

• Respondeat Superior, against the City based on the actions of its employees, the 

Police Officer Defendants (Count XII);

• Indemnification, against the City with respect to the Police Officer Defendants 

and the County with respect to the individual County Defendants (Count XIII).

(Dkts. 1 at 39–43; 106; 126.) In May 2023, the court granted an agreed motion to bifurcate the 

Monell claim for summary judgment and trial. (Fulton dkt. 186; Mitchell dkt. 190.)

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 Before the court are now three motions for summary judgment. The County Defendants 

move for summary judgment on all claims (dkt. 197), the Police Officer Defendants move for 

partial summary judgment (dkt. 202), and the City moves for summary judgment on the 

respondeat superior and indemnification claims (dkt. 209). 

LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Lord v. Beahm, 952 F.3d 902, 903 (7th Cir. 2020) (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering whether “a fact 

cannot be or is genuinely disputed,” the court may consider, among other materials, depositions, 

affidavits, declarations, stipulations, admissions, and interrogatory answers. Fed. R. Civ. P. 

56(c)(1)(A). The court views all facts and draws all reasonable inferences in the light most 

favorable to the nonmovant. Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 812 (7th Cir. 

2017). The court “may not make credibility determinations, weigh the evidence, or decide which 

inferences to draw from the facts[.]” Reinebold v. Bruce, 18 F.4th 922, 927 (7th Cir. 2021) 

(quoting Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)).

ANALYSIS

Although plaintiffs contest the bulk of defendants’ arguments, plaintiffs do not oppose 

the dismissal of Defendants Aguirre, Cervenka, Kennedy, Schmitz, and Skora, as well as the 

“Unknown Chicago Police Officers” referenced in their complaints. (Dkt. 230 at 2 n.1, 37.) The 

court therefore dismisses these defendants. Plaintiffs likewise do not oppose granting summary 

judgment to Defendants Bartik, Rolston, and Winstead on Count I, to Rolston on Count II, to all 

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defendants except Shepherd on Count IV, and to Defendant Shepherd on Counts VI, VII, and XI. 

(Id.) The court therefore grants summary judgment to these defendants on these claims. 

In their motion, the County Defendants present, in addition to their merits arguments,

several theories of immunity. (Dkt. 199.) They argue that all individual County Defendants are 

shielded from suit by the doctrine of sovereign immunity, that they are all entitled to qualified 

immunity with respect to the federal claims, and that the Prosecutor Defendants enjoy absolute 

immunity with respect to all claims, both state and federal. (Id. at 8, 11–13.) The Police Officer 

Defendants likewise argue that they are entitled to qualified immunity with respect to Count III. 

(Dkt. 202 at 30–36.) They also argue that plaintiffs’ failure-to-intervene claim (Count VI) fails

because it is not actionable under Section 1983. (Id. at 50.) For their part, the County and the 

City seek summary judgment on plaintiffs’ theories of vicarious liability—respondeat superior 

(Count XII) and indemnification (Count XIII). (Dkts. 199 at 34–35; 209 at 4.)

Because both the County and Police Officer Defendants assert that they are variously 

entitled to absolute, qualified, and sovereign immunities, the court addresses those arguments 

before deciding whether summary judgment is appropriate on plaintiffs’ substantive claims.

I. Absolute Immunity

Prosecutors are “absolutely immune from suit for all actions and decisions undertaken in 

furtherance of [their] prosecutorial duties.” Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012) 

(“Fields I”). Put another way, absolute prosecutorial immunity encompasses prosecutorial 

conduct that is “intimately associated with the judicial phase of the criminal process.” Buckley v. 

Fitzsimmons, 509 U.S. 259, 270 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); 

see also Fields I, 672 F.3d at 510 (absolute immunity covers “any action directly relevant to a 

prosecutor’s ability to conduct a trial.”). But this immunity does not extend to “job 

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responsibilities that are not prosecutorial in nature.” Fields I, 672 F.3d at 511. In other words, the 

immunity’s reach recognizes “a difference between the advocate’s role in evaluating evidence 

and interviewing witnesses” while preparing for trial, “and the detective’s role in searching for 

the clues and corroboration that might give him probable cause to recommend that a suspect be 

arrested[.]” Buckley, 509 U.S. at 273. Thus, “the degree of immunity prosecutors are afforded 

depends on their activity in a particular case.” Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012) 

(quoting Anderson v. Simon, 217 F.3d 472, 475 (7th Cir. 2000)). 

“Whether an action” taken by a prosecutor “falls within the scope of his prosecutorial 

duties depends upon its function.” Fields I, 672 F.3d at 510. “The analysis hinges on whether the 

prosecutor is, at the time, acting as an officer of the court, as well as on his action’s relatedness 

to the judicial phase of the criminal process.” Id. The court may find it useful to consider 

whether the defendant prosecutor interacted with the plaintiff before “he had confessed and 

agreed to give a statement[;]” for where the prosecutor becomes involved only after those events, 

the prosecutor’s function may have been “merely to review, approve or disapprove, and issue the 

charges the police were seeking.” Hunt v. Jaglowski, 926 F.2d 689, 693 (7th Cir. 1991); see also 

Hill v. Coppleson, 627 F.3d 601, 605–06 (7th Cir. 2010). Where the “prosecutor performs the 

investigative functions normally performed by a detective or police officer,” absolute 

prosecutorial immunity is no shield to liability, although qualified immunity might be. Buckley, 

509 U.S. at 273.

Of particular relevance in this case, “a prosecutor does not enjoy absolute immunity 

before he has probable cause.” Whitlock v. Brueggemann, 682 F.3d 567, 579 (7th Cir. 2012).

Likewise, a plaintiff’s “showing that a prosecutor investigated and fabricated evidence against a 

target ... automatically defeat[s] absolute prosecutorial immunity, even if that target was later 

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brought to trial.” Lewis, 677 F.3d at 331; see also Whitlock, 682 F.3d at 579. When the question 

of absolute immunity turns on genuine factual disputes, summary judgment must be denied. See 

Whitlock, 682 F.3d at 579 (declining to resolve question of absolute immunity due to “factual 

dispute over the moment when probable cause developed”); Hill, 627 F.3d at 605 (denying

absolute immunity where “genuine issues of fact remained as to [prosecutor’s] involvement in 

the coercion of [plaintiff’s false] confession”).10

Defendants Judge and Varga argue that they are entitled to absolute immunity because 

their work on the case was “limited to their roles as prosecutors.” (Dkt. 199 at 10–11.) Plaintiffs 

rejoin that Judge and Varga were, in fact, “acting in an investigative capacity.” (Dkt. 230 at 39.)

A. Defendant Judge

As Judge frames them, the salient facts are (1) that he learned of the murder investigation 

only “when a felony review dispatcher called him in the early morning hours of March 19, 

2003,” (2) that he interviewed Fulton only “after he had already been arrested, [had been] 

interrogated by detectives, and had made an inculpatory statement to detectives Breen and 

Zalatoris,” (3) that he never interviewed Mitchell or Shaw, (4) that he did not approve the 

charges against plaintiffs, (5) that he “reported Fulton’s statement, recantation, and alibi to the 

police and his colleagues” and later “testified about Fulton’s statement, recantation, and alibi in 

court,” and (6) that, “significantly,” he “was not present when Fulton claims that detectives 

physically and/or mentally abused him, and there is no evidence to suggest that [he] was aware 

that this occurred.” (Dkt. 199 at 9.)

10 “[T]he Illinois and federal doctrines of prosecutorial immunity are coterminous,” Kitchen v. 

Burge, 781 F. Supp. 2d 721, 737 (N.D. Ill. 2011), so the court applies these federal principles to 

determine the Prosecutor Defendants’ entitlement to absolute immunity with respect to all claims.

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Plaintiffs do not dispute when Judge became aware of the investigation, but they present 

a different narrative. According to their view, (1) Fulton did not make an inculpatory statement 

before Judge interviewed him; (2) Judge did not report to his supervisors or document Fulton’s 

alibi or his claims that he was innocent and had been fed the facts of the case; and (3) Judge was 

present when Zalatoris and Breen “roughly grabbed Fulton and manhandled him to another room 

where [they] proceeded to beat” him. (Dkt. 230 at 40–41.)

As to probable cause, Judge acknowledges that the existence or lack of probable cause 

may govern the absolute-immunity analysis (dkt. 199 at 11), but he makes no explicit argument 

that probable cause existed at the time he became involved in the investigation. Instead, Judge 

focuses on his understanding of the case when he became involved, asserting that “the issue” is 

whether he believed “that Fulton had made an inculpatory statement before they met,” not

whether Fulton had in fact made such a statement. (Dkt. 245 at 3–4.) In other words, Judge 

argues that if he believed, even erroneously, that Fulton had already confessed when they first 

spoke, then he is entitled to absolute immunity. Without explicitly so doing, Judge seems to 

concede—at least for the purposes of this motion—that probable cause would have been lacking 

in the absence of Fulton’s confession.

At the threshold, there is at least a genuine dispute of material fact regarding when and to 

whom Fulton first gave an inculpatory statement. At deposition, Judge testified that he 

understood when he first arrived at Area One that Fulton “had admitted to participation in a 

murder.” (Dkt. 198-3 at 38, 45.) Fulton testified, however, that “the very first time” he gave an 

inculpatory statement was to Judge. (Dkt. 223-24 at 205–06.) Such a dispute, supported by 

competing depositions, cannot be resolved at summary judgment. See Waldridge v. Am. Hoechst 

Corp., 24 F.3d 918, 920 (7th Cir. 1994). 

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The same is true in terms of what Judge believed when he first interviewed Fulton. 

Although there is a genuine dispute as to whether Fulton had in fact confessed prior to Judge’s 

arrival, Judge suggests that the court may reasonably infer that Zalatoris and Breen told him that 

Fulton had confessed. (Dkt. 245 at 3–4.) This logic puts the cart before the horse. If Fulton 

confessed before Judge’s arrival at Area One, a jury may reasonably infer that Zalatoris and 

Breen told Judge so before he interviewed Fulton. But if a jury finds that Fulton did not confess 

prior to Judge’s arrival, the jury may reasonably infer that Zalatoris and Breen did not tell Judge 

otherwise. In any event, the predicate factual dispute of when Fulton first gave an inculpatory 

statement must be resolved before either inference may be drawn.

11 See Hill, 627 F.3d at 605–

06.

B. Defendant Varga

Varga argues that he is entitled to absolute prosecutorial immunity because (1) he learned 

about the Collazo investigation after Fulton was already in custody and had confessed, and (2) 

his “only involvement in the case was interviewing Shaw after Shaw had already been arrested 

and interrogated by detectives.”12 (Dkt. 199 at 10.) Like Judge, Varga makes no argument 

regarding probable cause.

11 Whether Fulton had confessed does not necessarily resolve, on its own, the question of 

probable cause, but since Judge has not argued that probable cause existed before he interviewed Fulton, 

and has instead focused solely on the confession, the court cannot accord Judge absolute immunity at this 

time. See Hurt v. Wise, 880 F.3d 831, 842 (7th Cir. 2018) (“a jury could reasonably conclude it was 

objectively unreasonable for an officer to have believed there was probable cause”), overruled in part on 

other grounds by Lewis v. City of Chi., 914 F.3d 472 (7th Cir. 2019); Whitlock, 682 F.3d at 579 (“dispute 

over the moment when probable cause developed” precludes summary judgment).

12 Varga also argues that he is entitled to absolute immunity because he “was not present during 

Shaw’s claims of being physically and/or mentally abused by detectives,” and he “never interviewed 

Fulton or Mitchell.” (Dkt. 199 at 10.) The court does not reach these arguments because they are not 

relevant to deciding the issue of absolute immunity.

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Plaintiffs offer several arguments as to why Varga is not entitled to absolute immunity, 

but the court need only discuss one: that Varga “interrogated Shaw three separate times where 

Shaw denied involvement” in the Collazo murder, and it “was not until the fourth interrogation 

[that] Shaw ... gave the false confession fed to him by” Zalatoris. (Dkt. 230 at 44.) This timeline 

is undisputed, and it is determinative at this stage of the litigation. Although defendants dispute 

many details surrounding Varga’s interactions with Shaw, they do not dispute that Varga 

interviewed Shaw repeatedly in the hours leading up to Shaw’s confession. (See dkts. 245 at 5; 

241 ¶¶ 93, 103, 105, 111.) Because “a determination” that a plaintiff “did not confess until his 

meeting” with the prosecutor indicates that the prosecutor “was likely acting in the role of an 

investigator searching for more evidence,” Hill, 627 F.3d at 605–06, the court concludes that 

Varga, like Judge, is not entitled to absolute immunity at this time.

13

II. Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from liability for civil 

damages insofar as their conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 

231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity 

analysis turns on two inquiries: (1) “whether the facts, taken in the light most favorable to the 

party asserting the injury[,] show that the [government actor’s] conduct violated a constitutional 

right[,]” and (2) “whether the right at issue was ‘clearly established’ at the time of the ... alleged 

13 The cases defendants cite in support of their absolute-immunity defense (dkts. 199 at 9–10; 245 

at 5–6) simply miss the mark. In all of them, either police had obtained a confession before the prosecutor 

entered the picture or there was no dispute that the prosecutor believed as much. See Hunt, 926 F.2d at 

693–94 (plaintiff “had no contact with [prosecutor] until after he had confessed and agreed to give a 

statement”); Harris v. City of Chi., 330 F.R.D. 508, 516 (N.D. Ill. 2018) (prosecutor believed confession 

had already been procured); Andrews v. Burge, 660 F. Supp. 2d 868, 877 (N.D. Ill. 2009) (plaintiff agreed 

to confess before prosecutor entered interrogation room).

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misconduct.” Tousis v. Billiot, 84 F.4th 692, 697 (7th Cir. 2023) (quoting Pearson, 555 U.S. at 

232). Although resolving the first inquiry before turning to the second may benefit the 

development of our constitutional law, “courts may ‘exercise their sound discretion in deciding 

which of the two prongs of the qualified immunity analysis should be addressed first in light of 

the circumstances in the particular case at hand.’” Id. (quoting Pearson, 555 U.S. at 236). 

A right is “clearly established” if, at the time of the government actor’s conduct, “the law 

was sufficiently clear that every reasonable official would understand that what he is doing is 

unlawful.” Id. at 698; Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see also Anderson v. 

Creighton, 483 U.S. 635, 640 (1987). To be “sufficiently clear,” a right generally must either be 

“dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority.’” 

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting al-Kidd, 563 U.S. at 741–42); 

see also Wilson v. Layne, 526 U.S. 603, 617 (1999). At times, however, the right is clearly 

established because it is “obvious” that that the challenged conduct is unlawful. Wesby, 583 U.S. 

at 64 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)). Put another way, 

officials may be on notice that their conduct would work a constitutional deprivation because 

“decisional law [applies] with obvious clarity to the specific conduct in question, even though 

the very action in question has not previously been held unlawful.” Hope v. Pelzer, 536 U.S. 

730, 741 (2002) (cleaned up) (quoting United States v. Lanier, 520 U.S. 259, 270–71 (1997)); 

see also Taylor v. Riojas, 592 U.S. 7, 8–9 (2020) (per curiam); Prude v. Meli, 76 F.4th 648, 660 

(7th Cir. 2023) ( “[P]redetermining the outcome of a disciplinary hearing—no matter how that is 

accomplished—is [not] consistent with due process”). Put simply, “where the constitutional 

violation is patently obvious,” a plaintiff may not need to draw on factually similar controlling or 

persuasive authority to show that his rights were clearly established at the time of the alleged 

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violation. Denius v. Dunlap, 209 F.3d 944, 951 (7th Cir. 2000); see also Armstrong v. Daily, 786 

F.3d 529, 550 (7th Cir. 2015).

A. The County Defendants

The County Defendants assert that they are entitled to qualified immunity with respect to 

all federal claims, but they fail to develop any factual or legal arguments with respect to all but

one, plaintiffs’ failure-to-intervene claim.

14 (Dkt. 199 at 11–12.) They have therefore forfeited 

argument on qualified immunity with respect to all claims except those brought under Count VI. 

See McCottrell v. White, 933 F.3d 651, 670 n.12 (7th Cir. 2019) (perfunctory and undeveloped 

qualified-immunity argument waived); Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 687 

(7th Cir. 2001) (qualified-immunity analysis applies claim-by-claim).

15

14 The County Defendants’ memorandum briefly states the broad legal standards governing 

qualified immunity but then (rather incongruously) repeats the same arguments made with respect to 

absolute prosecutorial immunity (i.e., that they acted as prosecutors rather than as investigators). (Dkt. 

199 at 11–12.) Those absolute-immunity arguments have no bearing on either prong of the qualifiedimmunity analysis. Defendants’ argument with respect to Defendant Shepherd differs slightly in that they 

focus on his limited role in the case as an investigator (dkt. 199 at 12), but they nonetheless fail to develop 

an argument based on qualified immunity. Indeed, their only legal citation is to a district court decision 

ordering further briefing before ruling on questions of absolute and qualified immunity. See Buckley v. 

Cnty. of Dupage, No. 88 C 1939, 1996 WL 238905, at *4 (N.D. Ill. May 2, 1996).

15 Even if the defense were not forfeited with respect to plaintiffs’ other federal claims, the court 

is confident that plaintiffs’ rights were clearly established at the time of the alleged violations in 2003. 

Counts I, II, and III all flow from plaintiffs’ allegations that the County Defendants falsified evidence, 

whether in the form of coerced false confessions, fabricated false witness statements, or false 

investigative reports. The illegality of such falsification of evidence has long been established. See 

Armstrong, 786 F.3d at 550 (“[T]his court had ruled expressly in 1978 that destroying and falsifying 

evidence was unlawful[.]”) (emphasis added) (citing Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 

1978)). Likewise, Count III, which relies in part on defendants’ use of false evidence to establish probable 

cause, asserts a violation of a clearly established right. See Whitlock, 682 F.3d at 580–81 (stating that “the 

whole point of ... Buckley is that the police and investigating prosecutors are subject to the same 

constraints” and observing that the illegality of using “false evidence ... to deprive the defendant of her 

liberty in some way” flows ineluctably from the Supreme Court’s decisions in Mooney v. Holohan, 294 

U.S. 103 (1935), Pyle v. Kansas, 317 U.S. 213 (1942), and Napue v. Illinois, 360 U.S. 264 (1959)).

Finally, as to Count VII, the court has already explained that the law, though evolving and complex, was 

clearly established in 2003. Fulton, 547 F. Supp. 3d at 818; see also Jones v. City of Chi., 856 F.2d 985, 

992–93 (7th Cir. 1988); Pena v. Ortiz, 521 F. Supp. 3d 747, 751–52 (N.D. Ill. 2021).

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As to the failure-to-intervene claim, the County Defendants are incorrect that “in 2003 ... 

there was no clearly established constitutional obligation ... for a prosecutor to intervene in any 

alleged constitutional violations by a police officer.” (Dkt. 199 at 12.) Although the County 

Defendants fail to elaborate on this assertion, the court gleans from their citation to Serrano v. 

Guevara, 315 F. Supp. 3d 1026 (N.D. Ill. 2018), that their argument centers on whether the law 

was clearly established in 2003 that prosecutors, rather than police officers, have a duty to 

intervene to prevent constitutional violations. In other words, the County Defendants concede 

that it has been clearly established since 1972 that “a police officer may not ignore the duty 

imposed by his office and fail to stop other officers” from violating constitutional rights, id. at 

1038–39 (quoting Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)), but they imply that the law 

was murkier in 2003 when it came to prosecutors. Indeed, that is what the court in Serrano 

determined: “Plaintiffs rely on Whitlock [v. Brueggemann] to argue that prosecutors who act as 

investigators are subject to the same standards as officers, but Whitlock was not decided until 

2012, so it had no impact on the notice available to prosecutors in 1993.” Id. at 1039.

This court respectfully disagrees with Serrano’s analysis. Although Whitlock clarified

that “[a] prosecutor who manufactures evidence when acting in an investigatory role can cause a 

due process violation just as easily as a police officer[,]” the Seventh Circuit did not write on a 

blank slate, noting that its determination flowed directly from existing Supreme Court precedent: 

“[T]he whole point of the Supreme Court’s rule in Buckley is that the police and investigating 

prosecutors are subject to the same constraints.” Whitlock, 682 F.3d at 580–81 (emphasis added).

That assessment does not exaggerate. Buckley made clear that “[w]hen a prosecutor performs the 

investigative functions normally performed by a detective or police officer, it is ‘neither 

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appropriate nor justifiable that, for the same act, immunity should protect the one and not the 

other.’” 509 U.S. at 273 (quoting Hampton v. City of Chi., 484 F.2d 602, 608 (7th Cir. 1973)).

In short, the court concludes that Byrd’s requirement that “a police officer may not ignore 

the duty imposed by his office and fail to stop” the constitutional violations of other officers, 466 

F.2d at 11, has applied with equal force to prosecutors acting as investigators since (at least) the 

Supreme Court’s 1993 decision in Buckley. Accord Fields v. Wharrie, 740 F.3d 1107, 1114 (7th 

Cir. 2014) (“Fields II”) (“[I]t was established law by 1985 (indeed long before), when the 

fabrication is alleged to have occurred, that a government lawyer’s fabricating evidence against a 

criminal defendant was a violation of due process.”); Heidelberg v. Manias, 503 F. Supp. 3d 

758, 789–91 (C.D. Ill. 2020). Because the law was clearly established in 2003, and because there 

are genuine disputes of material fact with respect to plaintiffs’ failure-to-intervene claim, see 

infra Section VI.A, the County Defendants are not entitled to qualified immunity on Count VI.

B. The Police Officer Defendants

The Police Officer Defendants claim qualified immunity only with respect to Count III. 

(Dkt. 202 at 30–36.) They make one argument: that they had probable cause or, at the very least, 

“arguable probable cause” to initiate charges against plaintiffs. (Id. at 30.) “In other words,” they 

say, “it would have been reasonable—even if mistaken—for [them] to believe that there was 

probable cause to initiate charges against Plaintiffs based on the information they obtained from 

the witnesses they had at the time, Marinelli and Griffin.” (Id.)

“Probable cause exists to arrest a suspect ‘if at the time of arrest the facts and 

circumstances within the arresting officer’s knowledge and of which [he] has reasonably 

trustworthy information would warrant a prudent person in believing that the suspect had 

committed or was committing an offense.’” Gower v. Vercler, 377 F.3d 661, 668 (7th Cir. 2004) 

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(quoting Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999)). “Arguable probable cause exists 

when a reasonable officer could mistakenly have believed that he had probable cause to make the 

arrest.” McComas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012) (emphasis in original). Of 

particular relevance here, “[k]nowingly false statements ... cannot support a finding of probable 

cause,” Alexander v. United States, 721 F.3d 418, 423 (7th Cir. 2013), and officers who 

knowingly, or with reckless disregard for the truth, rely on such false statements “cannot be said 

to have acted in an objectively reasonable manner” unless there is also “accurate information 

sufficient to constitute probable cause [that] attended the false statements,” Lawson v. Veruchi, 

637 F.3d 699, 704 (7th Cir. 2011) (quoting Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985)).

In support of probable cause or arguable probable cause, the Police Officer Defendants

point to the following facts known to them on March 22, 2003:

1. “The sole eyewitness, Sid Taylor,” stated “that two people wearing a red [jacket] 

and a black [jacket] were running from the fire.”16

2. This fact was “corroborated later by Fulton, who claimed he owned a red hoodie 

and black hoodie.”

3. Fulton “corroborated the method of Collazo’s murder, including the use of duct 

tape to bind the victim’s hands, feet, and mouth, wrapping the victim in a plastic 

bag before he was set on fire, and a gas can used to douse the victim.”

4. “Duct tape and a gas can were later found at Fulton’s home and his grandfather’s 

home, respectively.”

5. “Fulton and Mitchell, and later Shaw, confirmed Marinelli’s and Griffin’s 

accounts of the gun deal and robbery, and also the threats and taunts made by 

Collazo to Fulton after the robbery.” 

16 The Police Officer Defendants refer to a red shirt and a black shirt. (Dkt. 202 at 30–31.) As 

plaintiffs correctly point out, the witness described a red jacket and a black jacket. (Dkt. 230 at 20 (citing 

dkt. 203 ¶ 11).) The court construes this discrepancy as a drafting error and has therefore corrected 

defendants’ description.

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6. “Fulton had given various ASAs and detectives statements detailing his 

conversations with Griffin the day prior to the murder about where Collazo could 

be found the night of March 9th.”

7. Those conversations “were corroborated by phone records that showed Griffin 

and Fulton had numerous calls the afternoon of March [8]th.”17

8. “Mitchell gave a fully detailed account of the murder.”

9. Mitchell’s account “dovetailed with the details Fulton was giving at about the 

same time to detectives and ASAs.”

(Dkt. 202 at 30–31.) 

Plaintiffs argue that, based on the summary judgment record, the Police Officer 

Defendants “cannot claim they were mistaken” about the existence of probable cause because 

they “fabricated Griffin’s statement” and “then used that fraudulent statement to falsely arrest 

Plaintiffs and coerce them to falsely confess.” (Dkt. 230 at 25.) Furthermore, when the remaining 

facts are considered, they fail to establish probable cause. (Id. at 20.)

i. Facts 1 & 2 – Red & Black Jackets

With respect to the fact of the red and black “jackets,” as well as Fulton’s 

“corroboration,” plaintiffs argue that (1) hoodies are not the same as jackets, (2) even if Fulton 

“had owned a black jacket and a red jacket,” that fact would not support probable cause “given 

the ubiquity of red and black jackets in Chicago during early March,” and (3) Fulton “was 

simply repeating the facts as told to him by the Defendants” when he “corroborated” the 

witness’s statement. (Id. at 20–21.) Defendants’ only response to these arguments is to assert that 

“whether Taylor described a jacket or a coat is irrelevant; ultimately, Taylor reported seeing two 

individuals with one wearing a red top garment and the other wearing a black top garment.” 

17 The Police Officer Defendants’ briefing accidently refers to these phone calls as taking place 

on March 9 when they in fact took place on March 8. (Dkt. 202 at 30–31). Since the parties do not dispute 

that the calls occurred on March 8, the court has corrected the error.

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(Dkt. 240 at 23 n.5.) They also obliquely argue that Fulton admitted that he “made up” these 

details (dkt. 202 at 31), implicitly rejecting plaintiffs’ argument that the Police Officer 

Defendants fed Fulton these facts.

The record shows that Taylor reported seeing two individuals, one “wearing a red jacket 

and the other ... a black jacket.” (Dkts. 203 ¶ 11; 203–6 at 2.) With that cleared up, the court 

agrees with plaintiffs that it matters whether the “top garments” were jackets or coats or hoodies 

or something else. To be sure, in the context of the totality-of-the-circumstances analysis, the 

kind of “top garment” is not dispositive, but the discrepancy between what the eyewitness 

described and what the suspect possessed makes it less likely—if marginally so—that probable 

cause exists. As to the ubiquity of red and black jackets in Chicago in March, because the Police 

Officer Defendants do not respond to this point, the court accepts it as true. Even if plaintiffs had 

not argued the point, the court would readily recognize, as any “reasonable officer” might, that

certain items, whether they be garments or other objects, are so common that their possession by 

a suspect can only slightly move the probable-cause needle.

The more important issue here, however, is whether Fulton truly corroborated Taylor’s 

description or only regurgitated facts fed to him by the officers. The first problem for the Police 

Officer Defendants is that they have not cited record evidence that supports their claim that 

Fulton himself “made up” these facts. They cite their statement of facts (dkt. 202 at 31 (citing 

dkt. 203 ¶¶ 10, 98–99)), but as plaintiffs point out (dkt. 224 ¶¶ 98–99), the record citations in 

paragraphs 98 and 99 do not support the factual assertions contained therein. That is, the 

citations neither support the suggestion that Fulton “made up” the red and black hoodies, nor do 

they support the contention that Fulton “owned a red hoodie and a black hoodie.”18 At the same 

18 Even if the cited record evidence supported Fulton’s ownership of a red and black hoodie, 

Fulton’s mere ownership of those items would not add much to the probable-cause determination.

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time, plaintiffs cite Fulton’s deposition testimony to support their contention that Zalatoris and 

Breen fed Fulton the details regarding the red and black jackets. (Dkt. 224 ¶¶ 98–99 (citing dkt. 

223-24).) At that deposition, Fulton testified that he knew about the red hoodie because Breen 

and Zalatoris had told him that the eyewitness “had identified someone with a red hoodie,” so 

“that’s why [Fulton] talked about the red hoodie involved in the crime.” (Dkt. 223-24 at 94–95.)

Thus, even if the Police Officer Defendants had cited admissible evidence to support their 

contention that Fulton “made up” these facts, Fulton’s deposition testimony would still create a 

genuine dispute of material fact on the issue.

To analyze probable cause, therefore, the court will only consider the fact of Taylor’s 

description of the red and black jackets, and not Fulton’s purported ownership of red and black 

hoodies and his purported corroboration of Taylor’s description.

ii. Fact 3 – Fulton’s Corroboration of Murder Method

Plaintiffs argue that Fulton’s inculpatory statements regarding the manner in which 

Collazo was murdered were fabricated and cannot, therefore, help the Police Officer Defendants 

establish probable cause or arguable probable cause. (Dkt. 230 at 22.) Defendants stipulate for 

purposes of summary judgment, that Fulton and Mitchell’s confessions were false, but they 

argue that there is no evidence that the officers “knowingly manufactured [plaintiffs’] false 

confessions.” (Dkt. 202 at 47.) Taking Fulton’s confession as false, the court cannot consider it 

to “support a finding of probable cause,” Alexander, 721 F.3d at 423, so the key question is 

whether there is a genuine dispute of material fact about what the Police Officer Defendants 

knew at the time, see Lawson, 637 F.3d at 704. The court concludes that there is such a dispute.

As with Fulton’s purported “corroboration” of the red and black jackets, the Police 

Officer Defendants fail to cite evidence to support this factual assertion. They cite their statement 

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of facts (dkt. 202 at 31 (citing dkt. 203 ¶¶ 121–22)), but there is nothing in the cited paragraphs

that supports the assertion. In contrast, plaintiffs rely on Fulton’s testimony, both in court and at 

deposition, to support their claim that detectives fed him details about the murder method. (Dkt. 

230 at 10 (citing dkt. 227 ¶¶ 45–50).) In the underlying criminal proceedings, Fulton testified 

that Zalatoris and Breen drove him around “to refresh [his] memory[,]” telling him where he and 

his co-defendants “supposedly ... abducted [Collazo] and beat him up” and how they “threw him 

in the trunk of [their] car,” “took him to some alley,” “stuffed a rag in his mouth,” “duct taped 

him up,” “placed him inside of a plastic bag,” and used gas to burn him. (Dkt. 223-26 at 24–28.)

In short, Fulton testified that he was “provided details” about the Collazo murder. (Id. at 28.)

Fulton’s deposition testimony further supports this claim. (See, e.g., dkt. 223-24 at 50, 67.) 

Furthermore, Fulton testified in court that the detectives told him that they took him “to the scene 

of the crime ... to familiarize [him] with everything that was going on” so that Fulton “would 

know and be able to talk to” the prosecutor when he came to interview Fulton. (Dkt. 223-26 at 

29.) Indeed, Fulton further testified that he and Zalatoris “went over the story a couple of times, 

to get prepared[,] and Zalatoris told him that he “would have to tell [that] story to the Assistant 

State’s Attorney” and “make him believe” it. (Id. at 31.) Citing to Zalatoris’s deposition, the 

Police Officer Defendants dispute Fulton’s account. (Dkt. 241 ¶ 50.) Indeed, they admit that “the 

details surround Zalatoris’s conversation with Fulton are clearly disputed facts as Zalatoris 

denies rehearsing a story with Fulton.” (Id. (citing dkt. 223-35 at 186–91, 260).)

Consequently, even setting aside the Police Officer Defendants’ failure to support their 

claim of corroboration with citations to the record, there is a genuine dispute of fact, created by 

the conflicting testimonies of Zalatoris and Fulton as to whether Fulton was fed the details 

surrounding Collazo’s murder and whether detectives helped Fulton fabricate his false testimony.

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The court will therefore not consider Fulton’s purported corroboration of the murder method in 

determining whether probable cause existed.

iii. Fact 4 – Gas Can & Duct Tape

Regarding Fulton’s ownership of duct tape and his grandfather’s possession of a gas can, 

plaintiffs argue that these facts are “meaningless” and cannot help establish probable cause

because (1) detectives did not “match Mr. Fulton’s particular brand or color of duct tape to the 

crime scene” and (2) Fulton’s grandfather’s possession of a gas can does not make it “more 

likely that Plaintiffs committed murder.” (Dkt. 230 at 21.) Defendants’ respond only to the 

second argument, pointing to “uncontroverted evidence that Fulton’s grandfather told detectives 

that he did not own the gas can” found in his garage. (Dkt. 240 at 25 (citing dkt. 203 ¶ 154).)

At the threshold, duct tape and gas cans, like red and black jackets, are so commonplace 

that a suspect’s possession of them, without more, does very little to establish probable cause. 

This observation accords with plaintiffs’ points that there is no evidence that the police drew any 

particular connection between Fulton’s duct tape and the duct tape found at the murder scene and 

that the presence of duct tape and a gas can is essentially “meaningless.” As to whether Fulton’s 

grandfather’s possession of a gas can makes it more likely that Fulton participated in the murder, 

the court agrees with plaintiffs that, even if Fulton’s grandfather did not own the gas can found in 

his garage, that fact makes a connection between Fulton and the gas can only marginally less 

attenuated. In sum, while the court may consider the facts pertaining to duct tape and the gas can, 

those facts, though not meaningless, are not particularly significant.

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iv. Fact 5 – Fulton, Mitchell & and Shaw Confirm Marinelli & Griffin19

It is undisputed that Fulton “confirmed” certain details about the gun deal, the robbery, 

and Collazo’s subsequent “threats and taunts.” (Dkt. 224 ¶¶ 102–04, 116.) The evidence cited by 

the Police Officer Defendants does not, however, support their claim that Mitchell and Shaw 

confirmed the details Marinelli and Griffin provided. Defendants cite six paragraphs from their 

statement of facts (dkt. 202 at 31 (citing dkt. 203 ¶¶ 102–04, 116, 133, 168)), but none of these 

paragraphs shows that Mitchell and Shaw confirmed anything to do with the gun deal, robbery, 

or Collazo’s threats. In terms of confirmation, therefore, the court will only consider what Fulton 

confirmed in its probable-cause analysis.

As for the Marinelli and Griffin accounts, while plaintiffs contend that the Police Officer 

Defendants “fabricated Griffin’s statement inculpating Plaintiffs,” they do not dispute that 

Griffin gave detectives an account of the gun deal and robbery. (Dkt. 227 ¶ 18.) They also do not 

dispute that Marinelli told detectives Rolston and Winstead about these events, but they do 

dispute that Marinelli told the detectives that Collazo had taunted Fulton. (Dkt. 224 ¶¶ 19–20, 

56.) Indeed, reports by Winstead, Schmitz, and Skora did not indicate that Marinelli had related 

any threats or taunts Collazo had made toward Fulton. (See dkts. 223-13 at 5; 223-76 at 2.)

Again, the Police Officer Defendants have not cited any evidence to support their claim that 

Marinelli “repeatedly threatened to kill” Fulton. (Dkt. 202 at 14.) The court will therefore 

consider only Marinelli’s account of the gun deal and robbery in the probable-cause analysis.

19 Although Defendants do not expressly argue that Marinelli and Griffin’s “accounts of the gun 

deal and robbery,” as well as “the threats and taunts made by Collazo to Fulton after the robbery” should, 

in and of themselves, help support a finding of probable cause, or arguable probable cause, the court 

construes their argument as encompassing not just Fulton, Mitchell, and Shaw’s confirmations of those 

accounts, but also the Marinelli and Griffin accounts themselves.

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In sum, with respect to probable cause, the court will consider the Marinelli and Griffin 

accounts of the gun deal and robbery, Fulton’s “confirmation” of those accounts, and Fulton’s 

statements regarding Collazo’s threats and taunts levied at Fulton following the robbery.

v. Facts 6 & 7 – Phone Calls

The parties do not dispute that Griffin called Fulton nine times between 1:15 PM and 

1:53 PM on March 8, 2003. (See dkts. 224 ¶ 174; 230 at 22; 240 at 24.) According to plaintiffs, 

some of these calls lasted only one to five seconds, with the longest call running just under three 

minutes. (Dkt. 224 ¶ 174 (citing dkts. 223-22; 223-72).) The only question, therefore, is whether 

Fulton’s statements “detailing his conversations with Griffin ... about where Collazo could be 

found the night of March 9” may be considered in the probable-cause analysis. 

Plaintiffs argue that Fulton’s statements about his conversations with Griffin were false

and that the March 8 phone calls cannot be used to substantiate that Fulton knew where Collazo 

would be on the evening of March 9. (Dkt. 230 at 21–22.) In fact, plaintiffs see the phone records 

from March 8 as exculpatory in that “they constitute objective evidence contradicting the notion 

that ... Fulton learned that Collazo would be taking [a particular] bus on the evening of March 

9.” (Id. at 22.) Defendants counter that plaintiffs “cannot point to any evidence in the record that 

explains why Fulton and Griffin shared nine phone calls the night before Collazo was 

murdered.” (Dkt. 240 at 24.) Combined with Fulton’s “confession” about the phone calls, they

argue, the phone records help establish probable cause. (Id. (citing dkt. 203 ¶¶ 25, 79).)

At the threshold, the court reiterates that the Police Officer Defendants have stipulated, 

for purposes of summary judgment, that Fulton’s confession was false (dkt. 202 at 47), so 

whether Fulton’s statements about the phone calls can be considered in the probable cause 

inquiry turns on whether the Police Officer Defendants knew these statements were false. But 

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there is a predicate problem: plaintiffs dispute that Fulton ever made these statements about the 

phone calls with Griffin in the first place, and Fulton testified as much at deposition. (Dkt. 224 ¶ 

79 (citing dkt. 223-24 at 8, 52–53).) That deposition testimony directly conflicts with a report 

filed by Bartik on March 18, 2003, in which Bartik claimed that Fulton related the phone 

conversations and confessed to the murder. (Dkt. 203-36 at 4–6.) Naturally, this dispute over 

whether Fulton ever gave the statement creates a dispute over whether that statement was 

fabricated by Bartik. Because of these factual disputes, the court cannot consider Fulton’s 

purported statements in the probable-cause analysis. The court may only consider the phone 

records themselves, which indicate that Griffin called Fulton nine times early in the afternoon of 

March 8, the day before the murder.

vi. Facts 8 & 9 – Dovetailing Fulton & Mitchell Accounts of the Murder

The court has already determined that there are genuine factual disputes as to whether 

detectives fed Fulton the details surrounding Collazo’s murder and helped Fulton fabricate his 

false testimony, see supra Section II.B.ii, so the only remaining questions are whether detectives 

also fed Mitchell such details and participated in fabricating Mitchell’s account.

Plaintiffs contend that the Police Officer Defendants did just that. Although plaintiffs

point to several facts in support,20 the Police Officer Defendants do not respond to plaintiffs’ 

factual assertions, rejoining instead with three oblique arguments: first, Mitchell’s confession

20 Plaintiffs highlight: (1) that Mitchell repeatedly denied involvement; and that (2) Zalatoris and 

Breen showed him a statement attributed to Fulton that contained facts about the murder, (3) drove him

around the city while they related facts about the case and encouraged him to “repeat the statement they 

had previously shown him,” (4) told him that he needed to cooperate even though he was not involved

and (5) could go home if he “gave a statement repeating the facts” they had shown him, and (6) coached 

him about what facts to include in his confession. (Dkt. 230 at 11.) The cited evidence, including 

Mitchell’s testimony at a suppression hearing and at deposition, supports these factual contentions. (See 

dkts. 223-33 at 8–10, 13–14; 223-34 at 9–25.)

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included facts that Mitchell himself made up; second, Mitchell’s “calm and cool nature captured 

during his videotaped confession, coupled with his ability to recite from memory an alleged 

‘false narrative’ for 30 minutes straight without so much as a stutter, rebuts Plaintiffs’ contention 

that the detectives concocted a fictional murder story knowing that plaintiffs were going to fill 

in” the gaps; and third, their confessions were corroborated by other evidence, including the gas 

can found in Fulton’s grandfather’s garage and the fact that Shaw’s fingerprints were found on a 

spare tire cover in Fulton’s trunk.21 (Dkt. 240 at 16–17.)

As to the Police Officer Defendants’ first argument, the court rejects the notion that

Mitchell’s otherwise fabricated confession might become insufficiently fabricated by virtue of 

the factual details that Mitchell himself “made up.” This argument has no merit. Second, even if 

one views Mitchell’s demeanor during his videotaped confession as “calm and cool,” that gloss

merely adds to the already substantial fabrication dispute; it does not put an end to that dispute as 

a matter of law. The same is true of the Police Officer Defendants’ final argument, that other 

evidence corroborated plaintiffs’ confessions. Defendants do not explain how the gas can or 

fingerprints negates plaintiffs’ substantial evidentiary showing that the facts of Mitchell’s 

confession were fed to him by detectives. In any event, it is for a jury to decide this dispute.

In light of the genuine disputes of material fact regarding the purported fabrication of 

plaintiffs’ confessions, including their accounts of the murder method, neither Mitchell’s account 

nor the “dovetailing” of his account with Fulton’s can factor into the probable cause analysis.

21 The Police Officer Defendants do not dispute plaintiffs’ factual arguments in their reply brief, 

but they do dispute them in their responses (dkt. 241) to Plaintiffs’ Statement of Additional Facts (dkt. 

227). Regardless, there is at least a genuine dispute of material fact as to whether the Police Officer 

Defendants fed Mitchell the details of the case and thereby helped fabricate his confession.

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Based on the foregoing determinations, the court must consider whether the remaining

facts add up to probable cause, or arguable probable cause. See Lawson, 637 F.3d at 704. The 

remaining facts are:

1. Taylor reported seeing two individuals, one “wearing a red jacket and the other ... 

a black jacket.”

2. Duct tape and a gas can “were later found at Fulton’s home and his grandfather’s 

home, respectively.” 

3. Phone records show that Griffin called Fulton nine times in the early afternoon of

March 8, with calls lasting between one second and just under three minutes.

4. Marinelli and Griffin’s accounts of the gun deal and robbery.

5. Fulton’s confirmation of the details of the gun deal and robbery.

6. Fulton’s statements regarding Collazo’s threats and taunts after the robbery.

Most of these facts speak to Fulton’s potential motive for the murder. The Marinelli and 

Griffin accounts of the gun deal and robbery, Fulton’s “confirmation” of the details contained in 

those accounts, and Fulton’s statements regarding Collazo’s threats and taunts in the aftermath of 

the robbery all relate to Fulton’s potential motive. As Defendants frame this “strong motive,” the 

salient points are that (1) detectives “knew that Fulton was robbed at gunpoint by Collazo” and 

(2) “although Collazo only made off with approximately $14 or $15, Fulton testified that Collazo 

repeatedly called, taunted Fulton and threatened to kill him.” (Dkt. 202 at 32–33.) Plaintiffs 

concede that “there was a rift between Plaintiffs and Collazo” but emphasize that there is no 

evidence that they “took any steps” to cause Collazo harm. (Dkt. 230 at 21.)

To begin, the court doubts that a reasonable officer would think that these facts give rise 

to strong motive. To be sure, that Collazo robbed Fulton at gunpoint of $14 or $15 dollars allows 

a reasonable inference that Fulton would have motive to retaliate, but the court agrees with 

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plaintiffs that it “defies credible belief” that Fulton, Mitchell, and Shaw “chose to commit a 

horrifyingly brutal murder weeks after” Collazo robbed Fulton of such a small sum. (Id.) 

Regardless, however, of the strength of this possible motive, the Police Officer 

Defendants cannot establish probable cause, or even arguable probable cause, with evidence only 

of motive. See United States v. Klebig, No. 06 CR 64, 2006 WL 2038366, at *7 (E.D. Wis. July 

20, 2006) (“mere motive is insufficient.”), rev’d on other grounds, 228 F. App’x 613 (7th Cir. 

2007); Beaman v. Freesmeyer, 183 N.E.3d 767, 789–92 (Ill. 2021) (declining to find probable 

cause where “there may have been ... unidentified persons” other than defendant “who had the 

means, motive, and opportunity [who] were not explored during the investigation”).

Even viewed together with Fulton’s possible motive, the remaining undisputed facts do 

not add up to probable cause, or even arguable probable cause. First, that an eyewitness 

described seeing two persons, one “wearing a red jacket and the other ... a black jacket,” is 

meaningless absent facts matching Fulton and Mitchell to that description. The same is true with 

respect to the duct tape and gas can. Fulton’s grandfather may have denied owning the gas can, 

but that does not connect the gas can to Fulton. As for the duct tape—a commonplace, if not 

ubiquitous item—there is no evidence tying Fulton’s “particular brand or color of duct tape to 

the crime scene.” (Dkt. 230 at 21.) Finally, with respect to the phone calls between Fulton and 

Griffin on March 8, the most that can be gleaned from the phone records is that Fulton received 

nine phone calls from Griffin nearly a day and a half before Collazo was murdered. Nothing 

suggests that those calls had anything to do with the murder. Putting all this together, we have a 

suspect who (1) owns duct tape, (2) was robbed by the murder victim of (at most) $15 weeks 

before the murder, (3) repeatedly spoke with someone tied to the robbery the day before the 

murder, and (4) had been repeatedly threatened and taunted by the murder victim. While these 

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facts might add up to reasonable articulable suspicion, they do not establish probable cause, or 

even arguable probable cause, as a matter of law.

Because of the numerous genuine disputes of material fact surrounding the Police Officer 

Defendants’ purported basis for probable cause, they are not entitled to qualified immunity on 

Counts III and IX at this stage of the litigation. See Chelios v. Heavener, 520 F.3d 678, 686 (7th 

Cir. 2008) (“The probable cause determination must be made by a jury ‘if there is room for a 

difference of opinion concerning the facts or the reasonable inferences to be drawn from them.’”) 

(quoting Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993)).

III. Sovereign Immunity

Under Illinois law, the State may not be “made a defendant or party in any court.” 745 Ill. 

Comp. Stat. 5/1. The Illinois sovereign immunity statute “cannot be evaded by making an action 

nominally one against the servants or agents of the State when the real claim is against the State 

of Illinois itself and when the State of Illinois is the party vitally interested.” Murphy v. Smith, 

844 F.3d 653, 658 (7th Cir. 2016) (quoting Sass v. Kramer, 381 N.E.2d 975, 977 (Ill. 1978)). In 

a suit against a state agent or employee, sovereign immunity is triggered when there are “(1) no 

allegations that an agent or employee of the State acted beyond the scope of his authority through 

wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally 

independent of the fact of State employment; and (3) where the complained-of actions involve 

matters ordinarily within that employee’s normal and official functions of the State.” Id. (quoting 

Healy v. Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990)). Important here, if a plaintiff alleges that 

state actors violated “statutory or constitutional law,” then “sovereign immunity affords no 

protection.” Healy, 549 N.E.2d at 1247.

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The County Defendants argue that the “relevant question for purposes of sovereign 

immunity is whether” their acts “arose out of a breach of duty that was imposed on them by 

virtue of their state employment, or whether they are charged with a breach of duty independent 

of their state employment.” (Dkt. 199 at 14.) The prosecutors’ acts, including “investigating 

facts, evaluating evidence, and determining whether an offense has been committed,” they argue, 

“arose out of duties imposed on them by virtue of their employment as prosecutors, and they did 

not owe a separate duty to Fulton or Mitchell.” (Id. at 14–15.) Shepherd’s acts, they say, “arose 

from his role as an investigator for the State’s Attorney’s Office.” (Id. at 15.)

Plaintiffs correctly counter that the court need not even reach the question of duty 

because plaintiffs have alleged violations of statutory and constitutional law in excess of the 

County Defendants’ authority as state agents. (Dkt. 230 at 51.) Judge, they say, exceeded his 

authority by conspiring and participating in coercing Fulton’s testimony, fabricating evidence, 

failing to intervene, and intentionally inflicting emotional distress. (Id.) Varga did so by 

fabricating evidence and intentionally inflicting emotional distress. (Id.) And Shepherd, they 

argue, did so by depriving plaintiffs of liberty, violating their Due Process rights, continuing 

their prosecution, and intentionally inflicting emotional distress. (Id.) Because factual disputes 

material to these alleged violations must be decided by a jury, plaintiffs argue that the County 

Defendants cannot avail themselves of sovereign immunity’s protection. (Id.)

In reply, the County Defendants ignore plaintiffs’ arguments and simply reiterate their 

“breach of duty” argument. (Dkt. 245 at 7–8.) Their failure to respond to plaintiffs’ arguments 

amounts to waiver, see Bradley v. Vill. of Univ. Park, 59 F.4th 887, 897 (7th Cir. 2023), and the 

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cases on which defendants rely do not support their narrow focus on the question of duty.22 For 

these reasons, the court cannot afford them the protection of sovereign immunity at this time.23

IV. False Evidence

“The essence” of a false-evidence claim “is that the accused was convicted and 

imprisoned based on knowingly falsified evidence, violating his right to a fair trial and thus 

depriving him of liberty without due process.” Patrick v. City of Chi., 974 F.3d 824, 835 (7th 

Cir. 2020). “[A] police officer who manufactures false evidence against a criminal defendant 

violates due process if that evidence is later used to deprive the defendant of [his] liberty in some 

way.” Anderson v. City of Rockford, 932 F.3d 494, 510 (7th Cir. 2019) (quoting Whitlock, 682 

F.3d at 580). Establishing such a constitutional violation requires that plaintiffs demonstrate that

22 In Welch v. Illinois Supreme Court, the Illinois Appellate Court did not, as defendants suggest, 

establish that the only relevant question is the source of the duty; rather, after reiterating Healy’s threepart (conjunctive) inquiry, Welch addressed arguments on all three issues. 751 N.E.2d 1187, 1193–94 (Ill. 

App. Ct. 2001). The court’s statement that the “correct inquiry is whether the charged acts ... arose out of 

[a] breach of a duty that is imposed ... solely by virtue of ... State employment or ... arose independently 

of ... State employment[,]” id. at 1194 (emphasis in original), was made only in the context of a more 

general discussion of duty and a rejection of the argument that sovereign immunity depends on the 

existence of “a binding employment contract.” Id. The court was certainly not overruling Healy in favor 

of a duty-only test. Watkins v. Office of State Appellate Defender, 976 N.E.2d 387 (Ill. App. Ct. 2012), 

likewise does nothing to undermine Healy or otherwise suggest that the question of duty alone is 

determinative. Indeed, Watkins never addressed duty, resolving instead the question of whether an 

exception to immunity applies where the plaintiff makes no claim that the state agent was acting outside 

the scope of employment. Id. at 400. 

23 Even if the County Defendants had not waived argument on the constitutional violation 

exception to sovereign immunity, the court would conclude that the exception applies here. Plaintiffs’ 

claims that the County Defendants coerced false confessions, fabricated false testimony, deprived 

plaintiffs of liberty without probable cause, failed to intervene in other constitutional violations, and 

conspired to commit some of those constitutional violations, if proven, would show constitutional 

violations that would deprive the County Defendants of sovereign immunity. See Healy, 549 N.E.2d at 

1247. Furthermore, the resolution of sovereign immunity from the state law claims is bound up with the 

resolution of the federal constitutional claims. See Murphy, 844 F.3d at 659 (sovereign immunity not 

applicable where state-law claims are “dependent on the alleged constitutional violation”) (quoting 

Richman v. Sheahan, 270 F.3d 430, 442 (7th Cir. 2001)). At the heart of both plaintiffs’ deprivation-ofliberty and malicious prosecution claims lies the question of probable cause. And whether the County 

Defendants are implicated in plaintiffs’ false evidence claims may very well determine whether they are 

liable for intentional infliction of emotional distress. 

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(1) the police officers “created evidence that they knew to be false,” Petty v. City of Chi., 754 

F.3d 416, 423 (7th Cir. 2014), and (2) the evidence was subsequently used to deprive plaintiffs of 

their liberty “in some way[,]” Whitlock, 682 F.3d at 580. The same standard applies whether a 

plaintiff alleges a false confession, see Avery v. City of Milwaukee, 847 F.3d 433, 439–40 (7th 

Cir. 2017), or the fabrication of a false witness statement, see Whitlock, 682 F.3d at 575–76. As 

the court has already noted, the same standard applies to plaintiffs’ wrongful conviction and 

illegal confinement claims (Count IV). See Fulton, 547 F. Supp. 3d at 812–14.

A. False Confession (Count I)

Plaintiffs’ remaining claims in Count I are against Police Officer Defendants Breen, 

Franko, Girardi, Struck, and Zalatoris and Defendant Judge. Count I really asserts two distinct 

legal theories as grounds for recovery. Plaintiffs seek to hold Defendants liable for violations of 

both procedural and substantive due process.

When presented with a procedural due process claim based on coerced confession, a 

court considers whether “in the totality of the circumstances,” the “statements to authorities were 

voluntary.” United States v. Outland, 993 F.3d 1017, 1021 (7th Cir. 2021). “A confession will be 

deemed involuntary” if authorities “obtained the statement through coercive means that 

overcame the defendant’s free will.” Id. Put another way, “a confession is voluntary if, in the 

totality of circumstances, it is the product of rational intellect and free will and not the result of 

physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome 

the defendant’s free will.” United States v. Sturdivant, 796 F.3d 690, 695 (7th Cir. 2015) 

(quoting United States v. Gillaum, 372 F.3d 848, 856 (7th Cir. 2004)). The court must consider 

“both the characteristics of the accused and the details of the interrogation[.]” Gilbert v. 

Merchant, 488 F.3d 780, 791 (7th Cir. 2007) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 

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226 (1973)), and “analyze coercion from the perspective of a reasonable person in the position of 

the suspect[.]” Sturdivant, 796 F.3d at 695 (quoting United States v. Huerta, 239 F.3d 865, 871 

(7th Cir. 2001)). Relevant factors include the interrogated person’s “age, education, intelligence 

level, and mental state; the length of the ... detention; the nature of the interrogations; the 

inclusion of advice about constitutional rights; and the use of physical punishment, including 

deprivation of food or sleep.” Huerta, 239 F.3d at 871.

In contrast, when the claim alleges a substantive due process violation, the core inquiry is 

whether the alleged interrogation tactic “shocks the conscience.” Cairel v. Alderden, 821 F.3d 

823, 833 (7th Cir. 2016) (“substantive due process guarantees of the Fourteenth Amendment” 

protect against “‘conscience-shocking interrogation tactics’”) (quoting Fox v. Hayes, 600 F.3d 

819, 841 (7th Cir. 2010)). “Determining what constitutes such behavior can be difficult; the 

ultimate question is ‘whether the conduct is too close to the rack and the screw.’” Id. (cleaned 

up) (quoting Fox, 600 F.3d at 841); see also Rochin v. California, 342 U.S. 165, 172 (1952). 

Lies, threats, and insults do not shock the conscience. Cairel, 821 F.3d at 833. What is most 

likely to rise to the conscience-shocking level is conduct intended to injure in some way 

unjustifiable by any government interest. Chavez v. Martinez, 538 U.S. 760, 775 (2003).

i. The Police Officer Defendants

Defendants Breen, Girardi, Struck, and Zalatoris do not seek summary judgment on 

Count I (dkt. 202 at 38–42), so the court is only concerned with Defendant Franko. Defendants 

argue that Franko was simply not involved in plaintiffs’ confessions (dkt. 202 at 38 n.7), and 

plaintiffs make no argument to the contrary. The court therefore grants Franko summary 

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judgment on Count I. Plaintiffs’ claims against Breen, Girardi, Struck, and Zalatoris may 

proceed to trial.24

ii. Defendant Judge

Plaintiffs have abandoned their substantive due process claims against Judge,25 so the 

only question is whether he is entitled to summary judgment on their procedural due process 

claims.26 Judge essentially contends that summary judgment is proper because he was not 

involved in any allegedly coercive conduct, and there is no “meaningful evidence” that he knew 

of the officers’ allegedly coercive conduct. (Dkt. 245 at 8.) The question, therefore, is whether 

there are genuine factual disputes on the voluntariness of Fulton’s false confession.

According to the County Defendants, the relevant facts are that (1) Judge interviewed 

Fulton in the presence of detectives, (2) Fulton told Judge of his involvement in the Collazo 

murder, (3) after “Judge asked the detectives to leave the room, Fulton recanted his confession” 

because he believed “Judge to be a neutral and respectful figure,” (4) Judge listened to the

24 In their reply brief, defendants (obliquely) argue for the first time that only Zalatoris and Breen 

were involved in plaintiffs’ false confessions. (Dkt. 240 at 15.) Not only is this perfunctory argument

directed toward Count IV, not Count I (id. at 12–15), it also comes too late. See Bradley, 59 F.4th at 897.

25 In their response brief, plaintiffs implicitly abandon their substantive due process claim against 

Judge by failing to respond to his substantive due process arguments. (Dkt. 230 at 52–57.) See Bonte v. 

U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument ... results in 

waiver.”); Mach v. Will Cnty. Sheriff, 580 F.3d 495, 501–02 (7th Cir. 2009).

26 In their opening brief, the County Defendants argue only in terms of substantive due process. 

(Dkt. 199 at 16–18.) Specifically, they argue that there is no evidence that (1) Judge’s conduct “shocked 

the conscience,” (2) he “did anything to coerce Fulton,” or (3) he “was present for, or had any knowledge 

of, any alleged physical or mental abuse suffered by Fulton.” (Id. at 17–18.) Liberally construed, these 

arguments might seem to address both plaintiffs’ substantive and procedural due process claims, but the 

County Defendants proceed to develop an argument concerned only with substantive due process. (Id. at 

16–18.) Their failure to develop a procedural due process argument in their opening brief might have 

amounted to waiver, see Bradley, 59 F.4th at 897 (party waives argument by failing to make it in opening 

brief), but in their response brief, plaintiffs fail to assert waiver and, instead, make extensive procedural 

due process arguments (dkt. 230 at 52–57), so plaintiffs have waived waiver and opened the door to the 

procedural due process arguments the County Defendants make in reply. See Bradley, 59 F.4th at 896 n.2 

(“waiver argument can be waived by party it would help”).

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recantation, shared it with detectives, and suggested they investigate Fulton’s alibi, (5) Judge 

further “shared Fulton’s statements with his colleagues and testified in various criminal 

proceedings about Fulton’s inculpatory statement,” recantation, and alibi, and (6) Fulton 

“admitted that Judge did not pressure him to make a statement,” and never told Judge “that the 

police physically abused him.” (Dkt. 199 at 17.)

Plaintiffs’ view of the relevant facts rolls the clock back to Fulton’s arrest. When Fulton 

was “first arrested and brought in for questioning,” plaintiffs point out, he was “only 18 years 

old, and still in high school.” (Dkt. 230 at 54.) After his arrest at 5:30 a.m., Fulton was 

“continuously interrogated, coached, and threatened by detectives.” (Id.) For nearly 24 hours, he 

was deprived of food and sleep. (Id.) The Police Officer Defendants “falsely promised Fulton 

that he would be able to go home after he gave a fabricated confession,” lied to him about having 

incriminating evidence against him, “including a matching car description, a witness who 

described seeing two Black males near Collazo’s body, an uninterested witness pointing the 

finger at him (Marinelli), and a voluntary statement” from Griffin implicating him, and 

threatened him “that he would lose his family if he did not confess.” (Id. at 54–55.)

It is “against this backdrop,” plaintiffs argue, that Judge arrived at Area One. (Id. at 56.) 

There, Judge spent one to two hours talking with Zalatoris and Breen, reviewing documents, and 

catching up “on the circumstances of [the Police Officer Defendants’] treatment of Fulton.” (Id.) 

On those facts, plaintiffs argue, it is reasonable to infer that Zalatoris and Breen brought Judge 

up to speed on their coercive interrogation tactics. (Id.) “Rather than take any steps whatsoever 

to address the coercive nature of Fulton’s interrogation,” however, “Judge added to the coercion 

to elicit a coerced confession from Fulton.” (Id.) During Judge’s first interrogation of Fulton,

conducted alongside Zalatoris and Breen, he “considered the inculpatory statements Fulton made 

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but completely discounted the exculpatory ones or facts that did not line up with the physical 

evidence.” (Id.) Fulton “had to ask” Judge “if they could speak alone.” (Id.) When Fulton told 

Judge that “the story he had given was fabricated by the detectives,” Judge ignored him, failed to 

“document [his] alibi anywhere, in any format,” and buried other potentially exculpatory 

evidence. (Id.) Judge did not notify his supervisors about Fulton’s recantation or about “the 

coercive nature of the forced confession.” (Id.) Finally, Judge “was present when the detectives 

came back in and roughly grabbed Fulton by the shirt and forced him into another room where 

they proceeded to beat him,” but Judge not only did not document this treatment, but “left Fulton 

to the mercy of the detectives,” thereby “actively contributing to ... the coercive environment” 

designed to elicit Fulton’s false confession. (Id. at 57.)

Judge does not argue that the officers’ conduct was not coercive, so the court assumes for 

purposes of summary judgment that the relevant officers coerced an involuntary and false 

confession from Fulton. There are thus two questions whose resolution might entitle Judge to 

summary judgment: first, whether Judge may be implicated in the coercive interrogation because 

Zalatoris and Breen brought Judge up to speed “on the circumstances of [their] treatment of 

Fulton,” and second, whether Judge’s participation in Fulton’s interrogation directly implicates 

him in the coercion of the involuntary and false confession (Dkt. 230 at 56–57).

Plaintiffs do not point to any evidence that directly speaks to Judge’s knowledge of the 

officers’ coercive tactics; instead, they argue that it is reasonable to infer that Zalatoris and Breen

brought Judge up to speed in that respect. (Id. at 56.) Judge does not point to any record evidence 

that would defeat this inference, simply arguing that there “is absolutely nothing in the record to 

support” the inference and that the inference is unreasonable because “it appears to be solely 

based on the amount of time that passed between Judge’s arrival” at Area One “and his first 

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conversation with Fulton.” (Dkt. 245 at 9.) The record does not bear out this argument. At 

deposition, Judge testified that he did not “recall specifically having that conversation” with 

Breen and Zalatoris, but learning “about the circumstances of John Fulton making an inculpatory 

statement ... would have been part of the conversation I had with them, in getting up to speed on 

the status of ... the investigation.” (Dkt. 198-3 at 46.) Drawing all reasonable inferences in 

plaintiffs’ favor, the court must conclude that there is at least a genuine dispute of fact as to 

whether Judge learned of the Police Officer Defendants’ coercive tactics when they spoke with 

him. This dispute, however, does not necessarily mean that Judge is not entitled to summary 

judgment on Count I. If Judge was aware that Zalatoris and Breen had been deploying 

unconstitutionally coercive tactics to induce Fulton to falsely confess, then that fact might 

support plaintiffs’ failure-to-intervene and conspiracy claims, but it would not, on its own, 

directly implicate Judge in Fulton’s false confession. 

As noted above, however, supra Section I.A., there are also genuine disputes of fact 

regarding when and to whom Fulton first confessed and whether Judge believed that Fulton had 

already confessed when he arrived at Area One. These disputes are relevant here because they 

speak to whether Judge entered the picture after the Police Officer Defendants had already 

coerced an involuntary and false confession from Fulton or during an ongoing coercive 

interrogation. On one hand, if Fulton had already confessed, or at the very least if Judge believed 

that Fulton had already confessed, then Judge cannot be directly implicated in the coercive 

interrogation. On the other hand, if Judge had no reason to believe that Fulton had confessed, and 

Judge was simultaneously aware of the coercive circumstances surrounding Fulton’s 

interrogation, then Judge may have become an active participant in the officers’ coercive 

interrogation. Until these predicate disputes are resolved, it is impossible to categorize Judge’s 

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interactions with Fulton. In other words, what Judge knew or believed when he began 

interviewing Fulton must be determined before any analysis of the coerciveness of his conduct. 

For these reasons, Judge is not entitled to summary judgment on Count I.

B. Fabrication of False Witness Statements (Count II)

i. The Police Officer Defendants

The Police Officer Defendants argue that there is no evidence that any of the officers 

“knowingly fabricated any witness statement” or “knowingly encouraged any witness to provide 

false information.” (Dkt. 202 at 42.) Furthermore, they argue, there is no evidence “that these 

alleged fabricated statements were used against Plaintiffs at their criminal trials.” (Id.)

To state a due process violation based on fabricated evidence, a plaintiff must show that 

the fabricated evidence was used against him at his criminal trial. In Patrick v. City of Chicago, 

the Seventh Circuit opined that a jury instruction stating that the jury must find that “evidence 

was used to deprive Plaintiff of his liberty in some way” was “incomplete in that it failed to 

explain that [the plaintiff] had the burden to prove that the fabricated evidence was used against 

him at his criminal trial and was material.” 974 F.3d 824, 835 (7th Cir. 2020) (emphases added).

Plaintiffs’ resistance to Patrick’s clarity is understandable, for nothing in Patrick diminishes the 

general principle that false evidence claims require only that the evidence was used to deprive a 

plaintiff of his liberty “in some way.” Whitlock, 682 F.3d at 580. But when a plaintiff brings a 

fabricated evidence claim under the Fifth and Fourteenth Amendments, Patrick requires that the 

evidence have been used at trial.27 Accord Brown v. City of Chi., 633 F. Supp. 3d 1122, 1156 

n.35 (N.D. Ill. 2022).

27 Plaintiffs cite several cases they believe show that the Seventh Circuit has “rejected the 

argument that evidence needs to be admitted in a proceeding to state a due process fabrication claim.” 

(Dkt. 230 at 13, 59.) But these cases were decided before Patrick, see, e.g., Fields II, 740 F.3d 1107 (7th 

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Turning to the question of fabrication, plaintiffs claim that the Police Officer Defendants 

knowingly fabricated five distinct pieces of evidence: (1) Griffin’s statement, (2) Fulton’s 

confession, (3) Mitchell’s confession, (4) Shaw’s confession, and (5) Henderson’s statement. (Dkt. 

230 at 8–18.) The court need not determine that there are genuine disputes with respect to every 

piece of allegedly fabricated evidence to advance plaintiffs’ fabrication claims to trial. See Camm 

v. Faith, 937 F.3d 1096, 1108–09 (7th Cir. 2019) (a single claim can be supported by several 

“baskets of evidence”); Goudy v. Cummings, 922 F.3d 834, 838 (7th Cir. 2019) (disparate 

“allegations do not give rise to separate claims”) (emphasis in original). At the same time, the court 

must still evaluate whether each individual defendant is implicated in plaintiffs’ fabrication claim. 

See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983).

a. Defendants Breen and Zalatoris

The court has already determined, supra Section II.B, that there are genuine disputes of 

material fact about whether Zalatoris and Breen fed facts to Fulton and Mitchell, and there is no 

dispute that Fulton’s confession was used at his criminal trial. (Dkts. 224 ¶ 200; 230 at 52 n.11.) 

The court therefore denies Defendants Zalatoris and Breen summary judgment on Count II.

b. Defendant Bartik

Bartik’s involvement under Count II centers on the inculpatory statement he purportedly 

received from Fulton during a polygraph test on March 18, 2003. (See dkt. 203 ¶¶ 76–80.) 

Plaintiffs claim that Bartik fabricated this inculpatory statement “out of thin air.” (Dkt. 230 at 

10–11.) Because Fulton “never made an inculpatory statement to Defendant Bartik,” plaintiffs 

argue, Bartik “cannot claim that he had any basis to believe that the statement he wrote was 

true.” (Id. at 11.) Bartik replies only that “there are details in Fulton’s statement to Bartik that 

Cir. 2014), Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), and Hurt v. Wise, 880 F.3d 831 (7th Cir. 2018)

was explicitly overruled by Lewis, 914 F.3d 472 (7th Cir. 2019). 

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match the evidence in the record, most importantly ... that Fulton told Bartik that he spoke with 

Griffin on March 8th about Collazo, and Griffin’s phone records detail nine telephone 

conversations she exchanged with Fulton” that same day. (Dkt. 240 at 17.) 

Setting aside the obvious logical problem with Bartik’s argument—that evidentiary 

support for details in Fulton’s statement somehow cleanses that statement of fabrication—there 

is a genuine dispute of material fact that precludes granting Bartik summary judgment on Count 

II. On one hand, Bartik claims that Fulton confessed to his participation in the murder during the 

pre-polygraph-test interview. (Dkt. 203 ¶¶ 76–81.) On the other hand, Fulton testified at 

deposition that he never gave that inculpatory statement to Bartik. (Dkt. 227 ¶ 72 (citing 223-24 

at 8).) Such a dispute cannot be resolved at summary judgment.28

c. Defendants Girardi and Struck

Plaintiffs view Defendants Girardi and Struck as implicated in the fabrication of Fulton’s 

confession because, when Girardi and Struck interviewed Fulton shortly before he falsely 

confessed to Rubinstein, they told Fulton that he needed to “stick to the story” and tell it “like it 

were true” to convince Rubinstein to let him go. (Dkt. 230 at 17–18.) The Police Officer 

Defendants object to this view of the facts, asserting that “Fulton never said Struck and Girardi 

told him to ‘stick to the story.’” (Dkt. 240 at 17.) At deposition, Fulton referred, rather, to 

“unknown detectives when making these claims.” (Id.)

While defendants are half right with respect to Fulton’s deposition testimony in that 

Fulton named Struck but could not recall who the other detective was (dkt. 223-24 at 61), 

Fulton’s uncertainty at deposition is not determinative on this issue. In their Statement of 

Additional Facts, plaintiffs assert that the “other detective ... was undoubtedly Robert Girardi, 

28 There is no dispute that the statement was used at Fulton’s criminal trial. (Dkt. 203-35 at 12.)

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who was Struck’s partner and had interviewed Fulton along with Struck the night before and 

who sat in on the Rubinstein interview along with Struck the morning of March 21.” (Dkt. 227 ¶ 

63.) In response, defendants state that they “do not dispute that the ‘other detective’ working 

with Struck on the morning of March 21, 2003 was Robert Girardi.” (Dkt. 241 ¶ 63.) It is 

therefore undisputed for the purposes of deciding this motion that Struck and Girardi were the 

officers involved. Furthermore, Fulton’s deposition testimony creates a genuine dispute of 

material fact as to whether Struck and Girardi told him that he “need[ed] to go along with the 

story,” to tell the story “like it’s true, like you believe it,” and to “stick to the story.” (Dkt. 223-

24 at 61–64.) Girardi and Struck are thus not entitled to summary judgment on Count II.

d. Defendant Winstead

Plaintiffs contend that Defendant Winstead can be held liable under Count II because he 

“fabricated a false report that Henderson said Fulton did not come inside with her when she 

arrived home the night of the murder and may not have come home at all that night.” (Dkt. 230 

at 18.) “Henderson maintains that she never made these statements” to Winstead. (Id.)

Winstead does not contest plaintiffs’ evidence, but he does object to their attempt to hold 

him liable under Count II because, he argues, plaintiffs fail to allege in their complaints that 

“Winstead fabricated Henderson’s statement to him.” (Dkt. 240 at 20–21.) In other words, 

plaintiffs failed to put Winstead on notice that he could be implicated in their fabrication claim. 

Winstead demands too much of plaintiffs’ complaints. It is true that those complaints do 

not specifically refer to Winstead’s report of Henderson’s statements, but they do allege that “the 

Police Officer Defendants” deprived plaintiffs of their rights “to a fair trial and due process by 

fabricating witness statements ... from Griffin, [plaintiffs], Shaw, and other witnesses.” (Fulton 

dkt. 1 ¶¶ 146–47; Mitchell dkt. 1 ¶¶ 146–47) (emphasis added). These allegations were sufficient

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to alert Winstead to his potential liability under Count II. Because Henderson denies giving the 

statement supporting Winstead’s report, there is, at the very least, a genuine dispute of material 

fact regarding the alleged fabrication of that report. Winstead is therefore not entitled to 

summary judgment on Count II.29

To summarize, there are genuine disputes of material fact regarding: (1) the alleged 

fabrication of Fulton’s confession, which implicates Breen, Girardi, Struck, and Zalatoris, (2) the 

alleged fabrication of Mitchell’s confession, which implicates Breen and Zalatoris; (3) the 

alleged fabrication of Fulton’s polygraph statement, which implicates Bartik; and (4) the alleged 

fabrication of Winstead’s report on Henderson’s statements, which implicates Winstead. The 

court therefore denies summary judgment on Count II to Defendants Bartik, Breen, Girardi, 

Struck, Winstead, and Zalatoris. Because plaintiffs make no argument that Defendant Franko 

participated in the fabrication of any evidence (see dkt. 230 at 17–18), the court grants Franko 

summary judgment on Count II.

ii. The Prosecutor Defendants

a. Defendant Judge

Judge argues that he is entitled to summary judgment on Count II because there is no 

evidence that he “physically abused or coerced Fulton” or that he fabricated “anything at all.” 

(Dkt. 199 at 19.) Whether Judge “physically abused or coerced Fulton” is not, however, relevant 

to the fabrication inquiry.30 The key inquiry is, rather, whether Judge “knowingly falsified

evidence.” See Patrick, 974 F.3d at 835. On this issue, Judge merely asserts that he did not

“fabricate anything at all.” (Dkt. 199 at 19.) 

29 It is undisputed that Winstead’s report was used against plaintiffs at trial. (Dkt. 241 ¶¶ 131–32.)

30 Even if coercion were relevant, the court has already determined, supra Section IV.A.ii, that 

there are genuine disputes of fact regarding Judge’s involvement in the coercive interrogation of Fulton.

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Plaintiffs counter that there is “ample evidence” that Judge did just that. (Dkt. 230 at 58.) 

In support, they point to the fact that Fulton told Judge (1) that Zalatoris “had coached him on 

the entire story and had threatened him into giving a false confession” and (2) about the Police 

Officer Defendants’ “false promises of leniency.” (Id.) Based on those facts, plaintiffs argue, a 

reasonable inference is that “Judge chose not to take a formal statement” right away “because 

Fulton was still in the process of being coached and was not yet clean enough” to provide “a full 

documented confession.” (Id.) In his reply brief, Judge does not address plaintiffs’ arguments, 

merely repeating his broad assertion that he did not fabricate any evidence against Fulton. (Dkt. 

245 at 10.)

As already discussed, supra Sections I.A, II.B, IV.A.ii, there are genuine disputes of 

material fact regarding (1) when and to whom Fulton first gave an inculpatory statement, (2) 

what Judge believed regarding Fulton’s inculpatory statements before he interviewed Fulton, (3) 

whether Breen and Zalatoris fed Fulton facts integral to his confession, and (4) whether Judge 

was aware of the coercive interrogation tactics the Police Officer Defendants were using when he 

joined the interrogation of Fulton. The resolutions of these factual disputes are inextricably 

intertwined with the question here: whether Judge participated in knowingly fabricating Fulton’s 

false confession. If, for example, Fulton had already confessed before Judge entered the picture, 

it is hard to imagine how Judge could be implicated in fabricating that confession. On the other 

hand, if Fulton had not confessed, and Judge had no reason to believe that he had, then whether 

Judge participated in eliciting a fabricated confession hinges on what Zalatoris and Breen told 

him when they brought him “up to speed on ... the investigation.” (Dkt. 198-3 at 46.) 

Just as there is a genuine dispute of fact about whether the detectives made Judge aware 

of their coercive interrogation tactics, so too must there be a genuine dispute about whether they 

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informed Judge that they had fed Fulton the facts necessary to give a credible confession. As 

plaintiffs point out, Fulton told Judge when they were alone that “the story that [Fulton] gave 

him was the story that” Breen and Zalatoris had given him. (Dkt. 223-24 at 95–96.) Because 

Judge has not responded to plaintiffs’ argument, the court accepts that it is reasonable to infer 

that “Judge chose not to take a formal statement” right away “because Fulton was still in the 

process of being coached and was not yet clean enough” to provide “a full documented 

confession.” (Dkt. 230 at 58.) If it is true that Judge, aware of the detectives’ coaching, delayed 

taking a statement until Fulton could regurgitate seamlessly the facts he had been fed, then Judge 

could be found to have participated in the fabrication of Fulton’s false confession. For these 

reasons, and because there is no dispute that Fulton’s confession was used at his criminal trial, 

Judge is not entitled to summary judgment on Count II.

b. Defendant Varga

Regardless of whether Varga knowingly fabricated Shaw’s inculpatory statement, Varga 

is entitled to summary judgment on Count II because Shaw’s statement was suppressed and not 

used at any of the underlying criminal trials. (Dkts. 199 at 22; 230 at 16; 245 at 10–12.) Plaintiffs 

try to evade the effect of the statement’s suppression by arguing that the fabricated statement 

might have been used to impeach Shaw had he testified at plaintiffs’ trial (dkt. 230 at 17), but 

Patrick does not allow fabrication claims based on evidence that could have been used. Patrick 

requires, rather, that the evidence was actually used. Because there is no dispute that Shaw’s 

statement was not used at plaintiffs’ trial, the court grants Varga summary judgment on Count II.

C. Wrongful Conviction & Illegal Confinement (Count IV)

As noted above, plaintiffs bring Count IV only against Defendant Shepherd. Plaintiffs’ 

theory is that Shepherd deprived plaintiffs of their rights to a fair trial, not to be wrongfully 

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convicted, and to be free of involuntary confinement by deliberately withholding exculpatory 

evidence from plaintiffs and state prosecutors, fabricating and manufacturing evidence, falsely 

implicating plaintiffs in the crime, obtaining convictions using false evidence, and failing to 

disavow fabricated evidence Shepherd knew to be false when it was used against plaintiffs 

during their criminal trial. (Dkt. 1 ¶¶ 160–62.) The factual basis for this claim flows from 

Shepherd’s investigation at “Fulton’s apartment building at the request of the trial prosecutors” 

to determine “whether the front and rear doors of the apartment building had security cameras.” 

(Dkt. 230 at 68.) Shepherd testified in the State’s rebuttal cases at plaintiffs’ criminal trials (id. at 

67–68) that there were security cameras only at the front of Fulton’s building. (Dkt. 198-20 at 3). 

Shepherd argues that there is no dispute regarding the lack of cameras in the back area of 

Fulton’s apartment building, so he cannot be held to have falsified evidence or otherwise 

engaged in misconduct. (Dkt. 199 at 26–27.) In support, Shepherd points to two facts: first, that 

“Fulton’s criminal defense attorney confirmed ... Shepherd’s findings when he investigated the 

same area for cameras and found none” and, second, that Michael Sanfratello, the person who 

installed the building’s security system, testified that in 2002 he installed “a camera system at the 

front of the building and none in the back.” (Id.)

Plaintiffs claim, however, that Fulton’s “building did have security cameras at the back 

doors” and that a jury could therefore reasonably infer “that Shepherd did see a camera at the 

back door and fabricated a false narrative to the contrary.” (Dkt. 230 at 68.) In support, plaintiffs 

point to Sanfratello’s testimony and an affidavit provided by Tamala Boyette, who has been the 

property manager at Fulton’s building since February 2003. (Dkt. 227 ¶¶ 135–37.)

Fulton’s criminal trial counsel, Elliot Zinger, testified at deposition that prior to plaintiffs’ 

trial, he visited Fulton’s building, “went to the back of the building and did not see a camera[,]” 

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and talked with “a person of management” at the building, a man, who told him that there were 

no “cameras back there[.]” (Dkt. 198-22 at 79–81.) Sanfratello’s testimony is more complicated. 

In 2002, Sanfratello was “a principal of Advance Wiring Systems,” which installed “an entry 

system” and “a camera system” at Fulton’s building. (Dkt. 198-21 at 2–3.) He testified that his 

company did not “install a security camera that would capture movement in and out of the rear 

doors[.]” (Id. at 7.) What is more, Sanfratello testified that the building rejected his company’s 

proposal to install a camera on the back door. (Id. at 9.) At the same time, Sanfratello testified to 

the existence of a security camera mounted on the rear door that his company did not mount, but 

which, he also testified, did not exist at the time his company was “working with the building 

management” at Fulton’s building. (Id. at 9–10.) Complicating that last statement, Sanfratello 

could not recollect whether his company was still working at Fulton’s building in early 2003. (Id. 

at 10–11.) That last fact creates a timeline problem, for Boyette’s affidavit states that she has

been property manager at Fulton’s building since February 2003, that there is a security camera 

located “by the back door” in the lobby of Fulton’s building, and that a resident could not exit 

the building without being recorded by either that camera or the cameras in the lobby. (Dkt. 223-

59 ¶¶ 1–3, 6.)

The evidence suggests both that there could have been a camera at the back of the 

building in March 2003 and that there might not have been. Even if Sanfratello could recall 

whether his company still worked with Fulton’s building in March 2003, implying that there was 

no security camera in the back area at that time, his recollection would clash with Boyette’s 

claim that such a camera existed at that time. Complicating matters still further is that Shepherd 

and Zinger went to the building during trial, which took place in the fall of 2006. A jury must 

resolve this dispute, so the court denies Shepherd summary judgment on Count IV.

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V. Deprivation of Liberty Without Probable Cause (Count III)

A. The Police Officer Defendants

The Police Officer Defendants argue that they are entitled to summary judgment on 

Count III because they “had probable cause to initiate charges” against plaintiffs. (Dkt. 202 at 

30.) As the court has already determined, however, supra Section II.B, the Police Officer 

Defendants cannot establish probable cause as a matter of law.

31 They are therefore not entitled 

to summary judgment on Count III. See Chelios, 520 F.3d at 686.

B. Defendant Shepherd 

Defendant Shepherd argues that he is entitled to summary judgment on Count III because 

“his investigation was not the proximate cause of Plaintiffs’ injuries.” (Dkt. 199 at 25.) 

Proximate cause “encompasses both cause in fact and legal cause.” Blood v. VH-1 Music First, 

668 F.3d 543, 546 (7th Cir. 2012). Shepherd argues only in terms of legal cause, which focuses 

on foreseeability. See id. When legal cause is at issue, the court must decide “whether the injury 

is of a type that a reasonable person would see as a likely result of his or her conduct[.]” Id. 

(quoting First Springfield Bank & Trust v. Galman, 720 N.E.2d 1068, 1073 (Ill. 1999)).

“Ordinarily, proximate cause is a question for the trier of fact, but proximate cause may be found 

as a matter of law ‘when the facts are not only undisputed but are also such that there can be no 

31 The Police Officer Defendants point out that “in cases where a court has already determined 

that probable cause exists that finding ‘is normally entitled to a presumption of validity.’” (Dkt. 202 at 30 

(quoting Lewis, 914 F.3d at 477).) While this is true, the Police Officer Defendants conveniently excise 

what Lewis says next: “A judicial determination of probable cause is normally entitled to a presumption 

of validity, but ‘this presumption is premised on an ‘assumption ... that there will be a truthful showing’ 

of probable cause.’” 914 F.3d at 477 (quoting Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010) 

(quoting Franks v. Delaware, 438 U.S. 154, 164–65 (1978))). Because the disputes of fact in this case 

specifically implicate the truthfulness of the probable-cause showing made in plaintiffs’ criminal cases, 

the presumption of validity is not relevant to the court’s analysis.

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difference in the judgment of reasonable men as to the inferences to be drawn from them[.]’” Id. 

(quoting Merlo v. Pub. Serv. Co. of N. Ill., 45 N.E.2d 665, 675 (Ill. 1942)) (citations omitted).

Shepherd argues that the consequences of his investigation “were not foreseeable because 

facts surrounding the entire case were not shared with him,” so he “could not have predicted how 

the location of any cameras would affect the investigation.” (Dkt. 199 at 25.) According to 

Shepherd, he “was only given instructions to investigate the location of every surveillance 

camera” at Fulton’s building. (Id.) Plaintiffs counter that Shepherd’s argument “requires 

accepting that [he] knew nothing about Fulton’s alibi, which is disputed.” (Dkt. 230 at 69.)

Shepherd’s trial testimony supports plaintiffs’ position. At trial, Shepherd was asked 

whether he had “a conversation with [the prosecutor] about the nature of this investigation and 

what specifically she wanted [him] to look for[.]” (Dkt. 198-20 at 6.) Shepherd testified that the 

prosecutor “didn’t tell me much about the investigation just what she wanted me to do.” (Id.) 

This testimony does not resolve the issue one way or the other. On one hand, by stating that the 

prosecutor “didn’t tell me much,” Shepherd suggested that he was told something about the 

investigation. On the other hand, by following that statement up with “just what she wanted me 

to do,” Shepherd indicated that he was only given instructions. The evidence supports either 

inference (or both). The question of proximate cause must therefore be decided by a jury, so 

Shepherd is not entitled to summary judgment on Count III. 

VI. Failure to Intervene (Count VI)

To succeed on their failure-to-intervene claims, plaintiffs must demonstrate that 

defendants (1) “knew that a constitutional violation was committed” and (2) “had a realistic 

opportunity to prevent it.” Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017).32

32 The Police Officer Defendants argue that plaintiffs’ failure-to-intervene claim fails as a matter 

of law because such a claim is not “viable” under Section 1983. (Dkt. 202 at 50–51.) In support, they 

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A. Defendant Judge

Judge argues that he is entitled to summary judgment on Count VI because he enjoys 

either absolute or qualified immunity and he “was not aware of any alleged rights violations that 

were taking place.” (Dkt. 199 at 27–28.) As the court has already determined, however, supra 

Sections I.A, II.A, Judge is not entitled to absolute or qualified immunity as a matter of law. Also 

as already discussed, supra Section IV.A.ii, genuine disputes of material fact exist surrounding 

Judge’s awareness of the coercive interrogation tactics the Police Officer Defendants employed 

to elicit Fulton’s involuntary and false inculpatory statement. Those disputes preclude granting 

Judge summary judgment on Count VI.

B. The Police Officer Defendants

Of those Police Officer Defendants not already dismissed from the case, only Defendants

Bartik, Franko, and Winstead seek summary judgment on Count VI. (Dkt. 202 at 50.) These

officers argue that there is “no evidence” that they “directly violated” plaintiffs’ constitutional 

rights. (Id. at 51.) Bartik and Winstead add that, since they “were not present for the interviews 

of Griffin, Shaw, Fulton, or Mitchell,” they had “no opportunity to intervene in the alleged 

violations that occurred in the interview rooms.” (Id.)

As to the first argument, plaintiffs respond that their constitutional rights were violated

and do not address which officers were “directly” involved. (Dkt. 230 at 35.) As to the second, 

plaintiffs eschew the officers’ narrow focus on the interview rooms, arguing instead that “Bartik, 

point to a recent Seventh Circuit concurrence that they say “questioned” whether such a claim “should be 

considered more in the realm of ‘forbidden vicarious liability,’” rather than the direct liability authorized 

by Section 1983. (Id. (quoting Mwangangi v. Nielsen, 48 F.4th 816, 834 (7th Cir. 2022) (Easterbrook, J., 

concurring)).) Concurrences, however, are not law. See Hertz v. Woodman, 218 U.S. 205, 213–14 (1910)

(explaining that where “the principles of law involved” have not “been agreed upon by a majority of the 

court[,]” the decision cannot serve as “an authority for the determination of other cases, either in [the 

Supreme Court] or in inferior courts”). Unless and until the Seventh Circuit alters course, failure to 

intervene remains a viable theory of liability under Section 1983.

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Winstead, and Franko could have prevented Plaintiffs’ rights from being violated by alerting 

others that the evidence against them was fabricated ... at any point during [the] prosecution, 

from their arrest in March 2003 to their trial in 2006.”33 (Dkt. 230 at 35.)

The Police Officer Defendants do not reply to plaintiffs’ arguments; they simply reiterate 

that they cannot be held liable for constitutional violations in which they did not participate and 

that neither Bartik nor Winstead was present for any interviews.34 (Dkt. 240 at 35.) 

Defendants’ argument on the first element is mystifying. Although they cite the correct 

legal standard for a failure-to-intervene claim, they proceed from the false premise that they each

must have “directly violated” plaintiffs’ constitutional rights for plaintiffs’ failure-to-intervene 

claim to succeed. This is not the law. The first element requires only that an officer “knew that a 

constitutional violation was committed,” Gill, 850 F.3d at 342 (emphasis added), not that the 

officer himself committed the violation. More to the point, an officer need not be present to know 

of a violation. The officers’ failure meaningfully to address the first element results in waiver.

See Bradley, 59 F.4th at 897. For the purposes of deciding this motion, the court therefore 

assumes that the officers were aware of at least some of the many alleged constitutional 

violations that must proceed to trial.35

33 Plaintiffs also argue that the Police Officer Defendants have forfeited argument on the 

opportunity prong by failing to argue the point in their opening brief. (Dkt. 230 at 35.) As already noted, 

Bartik and Winstead explicitly make this argument, so it is not forfeited.

34 In their reply brief, the Police Officer Defendants incorrectly assert that they argued in their 

opening brief that Defendant Franko, too, lacked an opportunity to intervene. (Dkt. 240 at 34–35.) 

Franko’s failure to argue the point in his opening brief results in waiver. See Bradley, 59 F.4th at 897.

35 In their reply brief, the Police Officer Defendants—perhaps realizing that they failed to argue 

the first element in their opening brief—briefly suggest that they lacked awareness of any alleged 

constitutional violations: “Defendants Bartik, Winstead, and Franko cannot fail to intervene [sic] to 

alleged violations they were not privy to.” (Dkt. 240 at 35.) To the extent this could be construed as an 

argument, it comes too late. See Bradley, 59 F.4th at 897.

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As to the second prong, the court agrees with plaintiffs that the officers’ opportunity to 

intervene was not limited to the interviews. (Dkt. 240 at 35.) To be sure, with some constitutional 

violations—excessive force, for example—the opportunity to intervene may be temporally 

limited. Here, that might be the case with respect to isolated acts of coercion. But many 

constitutional violations may be stopped, or their injurious effects diminished, long after the 

initially violative conduct has passed. In this case, for example, any officer who was aware that a 

confession, statement, or report was false or the product of fabrication or coercion (or both) 

could have intervened at least until plaintiffs’ criminal proceedings concluded. Accord 

Heidelberg v. Manias, 1:18-cv-01161-SLD-JEH, 2019 WL 4862069, at *19 (C.D. Ill. Mar. 26, 

2019) (defendant officer who was “aware [plaintiff] was being detained and prosecuted 

unlawfully and did nothing to prevent it” could be liable for failure to intervene); Hicks v. Cook 

Cnty. Sheriff’s Office, 15 C 06852, 2018 WL 1561738, at *5 (N.D. Ill. Mar. 30, 2018) (defendant 

could have intervened “[a]t any time” during alleged extortion conspiracy). 

Turning to the question of opportunity, the court concludes that none of the Police 

Officer Defendants is entitled to summary judgment on Count VI. First, Defendant Franko has 

waived the issue. As to Defendants Bartik and Winstead, because the court concludes that they 

may have been involved in a conspiracy to deprive plaintiffs of their constitutional rights, see 

infra Sections VII, the court cannot conclude that they lacked an opportunity to intervene to 

prevent the deprivation of those rights.

For these reasons, the court denies Bartik, Franko, and Winstead summary judgment on 

Count VI.36

36 Because Breen, Girardi, Rolston, Struck, and Zalatoris do not seek summary judgment on 

Count VI (dkt. 202 at 50–51), plaintiffs’ claims against those defendants may proceed to trial.

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VII. Federal and Civil Conspiracy (Counts VII and XI)

To succeed on a federal conspiracy claim (Count VII), a plaintiff must show that (1) 

“individuals reached an agreement to deprive him of his constitutional rights” and (2) “overt acts 

in furtherance [of that agreement] actually deprived him of those rights.” Daugherty v. Page, 906 

F.3d 606, 612 (7th Cir. 2018) (quoting Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 

2015)). A plaintiff must show that each “particular defendant joined the conspiracy and knew of 

its scope.” Bank of Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). A defendant “need 

not have agreed on the details of the conspiratorial scheme or even know who the other 

conspirators are.” Jones, 856 F.2d at 992. Rather, it suffices for a defendant to “understand the 

general objectives of the scheme, accept them, and agree, either explicitly or implicitly, to do 

[his] part to further them.” Id. Each conspirator then becomes “responsible for others’ acts within 

the scope of the agreement[.]” Knight, 725 F.3d at 818.

Similarly, under Illinois law, civil conspiracy (Count XI) requires “(1) the existence of an 

agreement between two or more persons (2) to participate in an unlawful act or a lawful act in an 

unlawful manner, (3) that an overt act was performed by one of the parties pursuant to and in 

furtherance of a common scheme, and (4) an injury caused by the unlawful overt act.” Lewis v. 

Lead Indus. Ass’n, 178 N.E.3d 1046, 1053–54 (Ill. 2020).

The federal and state legal standards are essentially the same except that the federal 

conspiracy claim speaks only to constitutional violations and each defendant must have joined 

the conspiracy and known of its scope.

A. Defendant Judge

Whether Judge is entitled to summary judgment on plaintiffs’ conspiracy claims is not 

before the court, for, as plaintiffs point out, Judge has not sought summary judgment on these 

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claims. (Dkt. 230 at 64.) In his reply brief, Judge counters that there would be no reason for him 

to seek summary judgment on the conspiracy claims because plaintiffs’ complaints did not name 

him as a defendant under Counts VII and XI. (Dkt. 245 at 14.) There are two problems with 

Judge’s assumption.

The first problem springs from federal pleading standards. “Federal practice uses a 

notice-pleading system, not a code-pleading system.” Hoskins v. Poelstra, 320 F.3d 761, 764 

(7th Cir. 2003). In keeping with that principle, federal plaintiffs “need not plead legal theories[.]” 

Hess v. Garcia, 72 F.4th 753, 757 (7th Cir. 2023). Rather, a complaint need only “contain a 

‘short and plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. 

Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The point is to “give the 

defendant fair notice of what the ... claim is and the grounds upon which it rests[.]” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 554 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 

(1957)). So while “a court may require that allegations be grouped into logical counts for claims 

that are ‘founded on’ separate transactions or occurrences,” Alioto v. Town of Lisbon, 651 F.3d 

715, 721 (7th Cir. 2011) (emphasis added) (quoting Fed. R. Civ. P. 10(b)), the Northern District 

of Illinois does not require plaintiffs to enumerate separate counts, even if it is common practice. 

As enumerated counts are unnecessary, associating specific defendants with those counts is 

likewise unnecessary. In fact, to plead a conspiracy, it suffices “merely to indicate the parties, 

general purpose, and approximate date, so that the defendant has notice of what he is charged

with.” Hoskins, 320 F.3d at 764 (quoting Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 

2002)). Here, plaintiffs’ complaints satisfied this standard: 

At all times relevant to the events described in this Complaint, Defendants Judge, 

Rubinstein, and Varga ... conspired with the Police Officer Defendants, prior to 

the existence of probable cause to believe Plaintiffs had committed a crime, and 

while acting in an investigatory capacity, to conceal and fabricate evidence, 

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manipulate witness testimony, coerce false confessions, and maliciously prosecute 

Plaintiff for Christopher Collazo’s murder.

The Police Officer Defendants arranged for and conspired with Defendants ... 

Judge and Rubinstein to coerce [Fulton’s] false confession and false statements 

implicating Mitchell and Shaw, and then to document falsely that the statements 

had come from Fulton as a result of legitimate police interrogation tactics. 

Additionally, to carry out this plot, Defendant Judge deliberately failed to 

document Plaintiff’s statement that his confession was false and had been coerced 

from him in his report.

(Dkts. 1 ¶¶ 14, 46.) These paragraphs, expressly incorporated into Counts VII and XI, put Judge 

on notice that he was implicated in plaintiffs’ conspiracy claims. (Id. ¶¶ 77, 136–38, 177, 205.)

The second problem with Judge’s argument is that the court’s ruling on defendants’ 

motion to dismiss plaintiffs’ complaints specifically discussed the factual allegations implicating 

Judge in the conspiracy underpinning Counts VII and XI: “Plaintiffs also allege that Judge, 

Rubinstein, and Varga ‘arranged for and conspired with’ Police Officer Defendants to fabricate 

evidence and suppress misconduct; to that end, ... Judge was involved in Fulton’s false 

statement.” Fulton, 547 F. Supp. 3d at 817 (citing dkt. 1 ¶ 46). What is more, the court 

addressed, in that same opinion, the problem Judge now identifies: 

Plaintiffs’ conspiracy claims are not a model of clarity. Their specific mention of 

Shepherd and ‘other co-conspirators, known and unknown,’ agreeing to commit a 

deprivation with no specific mention under count VII of Judge, Rubinstein, and 

Varga by name, coupled with the inclusion of several specific factual allegations 

elsewhere that the three prosecutors ‘arranged for and conspired with’ Police 

Officer Defendants[,] creates uncertainty as to whether plaintiffs intended to bring 

conspiracy claims against Judge, Rubinstein, and Varga and the precise scope of 

that conspiracy. But plaintiffs’ imprecise drafting is not fatal at this stage. Saved 

by favorable inferences and general incorporation of all allegations under each 

count, the court will assume that ‘other co-conspirators’ includes Judge and Varga 

because there are references elsewhere to their participation in a conspiracy.

Id. at 819 (citations omitted). The court concluded that plaintiffs had provided “a tenable basis 

for [the Count VII conspiracy claims] against Judge,” and that basis also sustained plaintiffs’ 

state-law conspiracy claims under Count XI. Id. at 819, 823. This conclusion is the “law of the 

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case, see Flynn v. FCA US LLC, 39 F.4th 946, 953 (7th Cir. 2022), and Judge’s failure to seek 

summary judgment on Counts VII and XI results in waiver, see Bradley, 59 F.4th at 897. These 

claims against Judge may proceed to trial.

B. The Police Officer Defendants

The Police Officer Defendants seek summary judgment on the conspiracy counts on the 

grounds that (1) “there is no direct proof within the record that establishes that [they] had a 

‘meeting of the minds’ to violate” plaintiffs’ rights, (2) there are no underlying constitutional 

violations or torts, and (3) plaintiffs “cannot point to any overt acts ... that demonstrate a 

conspiracy to coerce [their] confessions.” (Dkt. 202 at 52–53.)

Plaintiffs counter that none of these arguments has merit because (1) “direct proof” is not 

necessary to sustain a conspiracy claim and “circumstantial evidence abounds” that defendants 

conspired to violate their rights and (2) each of these individual Police Officer Defendants “took 

overt actions demonstrating their common purpose” of framing plaintiffs. (Dkt. 230 at 31–32.) 

At the threshold, the Police Officer Defendants’ argument that there are no underlying 

constitutional violations or torts fails given the many claims on which the court denies summary 

judgment. As to overt acts, the court has already concluded that there are genuine disputes of 

material fact regarding whether Defendants Zalatoris, Breen, Bartik, Struck, and Winstead 

fabricated plaintiffs’ confessions. Supra Section IV.B.i.a–d. While there are other disputes about

other overt acts allegedly committed by the remaining Police Officer Defendants, plaintiffs need 

only point to a single overt act by one of the defendants to satisfy this element of their conspiracy 

claims. See Lewis, 178 N.E.3d at 1053–54; Knight, 725 F.3d at 818.

The only real remaining issue, therefore, is whether there is evidence of an agreement

among the Police Officer Defendants to frame plaintiffs for murder. Plaintiffs are correct that the 

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evidence need not be “direct,” for circumstantial evidence is often all that is available to prove 

up a conspiracy claim. See Beaman, 776 F.3d at 511 (“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.”). Still, there must be sufficient 

circumstantial evidence to create at least a genuine dispute of material fact that each individual 

defendant “joined the conspiracy and knew of its scope.” Knight, 725 F.3d at 818.

The disputed conduct of Zalatoris and Breen provides the clearest starting point for 

assessing whether plaintiffs can show an agreement via circumstantial evidence. As already 

discussed, supra Sections II.B, IV.B.i.a, when the disputed facts are viewed in plaintiffs’ favor, 

Zalatoris and Breen could easily be said to have been working together to feed facts to both 

Fulton and Mitchell and to coerce false confessions from them. Likewise, there are genuine 

disputes of fact that Bartik and Struck fabricated confessions from Fulton. Supra Sections II.B.v, 

IV.B.i.b–c. Winstead has contested plaintiffs’ claim that he fabricated Henderson’s witness 

statement only on a procedural basis, supra Section IV.B.i.d, meaning that the court must 

assume, for purposes of deciding this motion, that there are at least genuine disputes of material 

fact as to whether Winstead fabricated that statement. Similarly, Zalatoris, Breen, Girardi, and 

Struck do not seek summary judgment on plaintiffs’ false-confession claims, supra Section

IV.A.i, so the court must also assume that there are genuine disputes of fact that those officers 

coerced false confessions. Likewise, because Zalatoris, Breen, Girardi, Rolston, and Struck do 

not seek summary judgment on the failure-to-intervene claims, supra Section VI.B, the court 

must assume that there are genuine disputes of fact that those officers were aware of, or had 

opportunity to prevent, constitutional violations relating to either false evidence or a lack of 

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probable cause. The court must make the same assumption with respect to Franko, who has 

waived argument on the failure-to-intervene claims. Id. 

With all these disputes in play, in order to conclude that these officers were not working 

together to frame plaintiffs, the court would have to infer (in the Police Officer Defendants’ 

favor no less) that Zalatoris, Breen, Struck, Bartik, and Winstead each independently fabricated 

false evidence, that Zalatoris, Breen, Girardi, and Struck were all acting independently when 

coercing the allegedly false confessions, and that Rolston and Franko did not tacitly support 

these violations by failing to intervene to stop them. Although theoretically possible, the 

evidence permits the opposite inference: that these officers agreed, “explicitly or implicitly,” 

Jones, 856 F.2d at 992, to deprive plaintiffs of their constitutional rights by framing them for 

Collazo’s murder. Thus, even if the Police Officer Defendants’ suggested inferences were

reasonable, they are not inferences the court may make at summary judgment. See Beaman, 776 

F.3d at 510–11 (“Summary judgment should not be granted if there is evidence from which a 

reasonable jury could infer the existence of a conspiracy.”).

For these reasons, the court denies the Police Officer Defendants summary judgment on 

Counts VII and XI.

VIII. Malicious Prosecution (Count IX)

Under Illinois law, a claim for malicious prosecution requires a plaintiff to establish five 

elements: “(1) the commencement or continuance of an original criminal or civil judicial 

proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) 

the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages 

resulting to the plaintiff.” Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996) (quoting Joiner 

v. Benton Cmty. Bank, 411 N.E.2d 229, 232 (Ill. 1980)). The “existence of probable cause forms 

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a complete defense to a malicious prosecution claim.” Wade v. Collier, 783 F.3d 1081, 1085 (7th 

Cir. 2015). To satisfy the first element, a defendant need not have formally initiated or sustained 

proceedings; rather, it is enough that the defendant have “played a significant role in causing the 

prosecution of the plaintiff[.]” Beaman v. Freesmeyer, 131 N.E.3d 488, 499 (Ill. 2019) (quoting 

Frye v. O’Neill, 520 N.E.2d 1233, 1240 (Ill. App. Ct. 1988)). Police officers or investigators play 

such a role if they “deliberately supplied misleading information that influenced the [prosecutor 

or grand jury’s] decision.” Jones, 856 F.2d at 994. As to the second element, “a criminal 

proceeding has been terminated in favor of the accused when a prosecutor formally abandons the 

proceeding via a nolle prosequi, unless the abandonment is for reasons not indicative of the 

innocence of the accused.” Swick, 662 N.E.2d at 1242–43 (citing Restatement (Second) of Torts 

§§ 659, 660, 661 (1977)). “The abandonment of the proceedings is not indicative of the 

innocence of the accused when the nolle prosequi is the result of an agreement or compromise 

with the accused, misconduct on the part of the accused for the purpose of preventing trial, 

mercy requested or accepted by the accused, the institution of new criminal proceedings, or the 

impossibility or impracticability of bringing the accused to trial.” Id. at 1243 (citing Restatement 

(Second) of Torts §§ 660, 661). Rather, the “circumstances surrounding the abandonment of the 

criminal proceedings must compel an inference that there existed a lack of reasonable grounds to 

pursue the criminal prosecution.” Id. 

A. The Police Officer Defendants

As with Count III, the Police Officer Defendants argue that they are entitled to summary 

judgment on the malicious prosecution claim because “probable cause existed to initiate criminal 

proceedings.” (Dkt. 202 at 36.) As the court has already determined, however, supra Section 

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II.B, the Police Officer Defendants cannot establish probable cause as a matter of law. They are 

therefore not entitled to summary judgment on Count IX on this basis.

The Police Officer Defendants also argue that the malicious prosecution claim must fail 

because plaintiffs cannot carry their burden to show that their criminal cases were terminated via 

nolle prosequi “for reasons consistent with [plaintiffs’] innocence.” (Id. at 37.) Plaintiffs, on the 

other hand, argue that the termination of their criminal cases was consistent with their innocence 

because “the State chose to nolle prosequi the criminal charges ... explicitly because of 

insufficient evidence.” (Dkt. 230 at 27.)

The State offered the following reasons for seeking nolle prosequi: “based on the age of 

the case and the status of our witnesses, some [of whom] we were unable to locate, [and] others 

we are having difficulty with, ... at this time, based on those factors, we are unable to meet our 

burden of proof.” (Dkt. 224 ¶ 209.) The Police Officer Defendants emphasize that the State 

“never mentioned terminating the proceedings because Plaintiffs were innocent”37 (dkt. 202 at 

37 The Police Officer Defendants also devote significant briefing to the reasons why plaintiffs’ 

petitions for certificates of innocence were initially denied (dkt. 202 at 37–38), but as plaintiffs correctly 

point out, the proper focus is on those reasons given by the State when dropping the charges, not those 

given by the judge who denied their petitions (dkt. 230 at 30). While certificates of innocence may be 

“directly relevant” to the favorable-termination inquiry, see Patrick, 974 F.3d at 832 (affirming district 

judge’s decision to admit certificate of innocence at trial on malicious prosecution claim), but whether 

they are granted or denied cannot determine whether a plaintiff has shown that proceedings terminated in 

a favorable manner. 

Nonetheless, in their reply brief (dkt. 240 at 30), the County Defendants seize upon a drafting 

error in this court’s ruling on their motions to dismiss that they construe as supporting the position that a 

plaintiff’s failure to obtain a certificate of innocence makes it impossible for the plaintiff to show that the 

criminal proceedings were terminated in his favor: “the state court found that plaintiffs failed to meet their 

burden to show ‘actual innocence’ for purposes of obtaining certificates of innocence, a finding that does 

preclude a fact finder in this proceeding from finding that plaintiffs’ criminal proceedings were 

terminated in a manner that was indicative of their innocence.” Fulton, 547 F. Supp. 3d at 822 (emphasis 

added). To accord with Illinois law, the italicized text should have read “does not preclude.” Indeed, 

although Defendants discussed plaintiffs’ then-failure to obtain those certificates in their briefing in 

support of the motion to dismiss (dkt. 70 at 25–26), they cited no legal authority to support their 

argument. Plaintiffs pointed this out in their response brief (dkt. 84 at 29–30 n.4), but Defendants failed to 

reply with any legal authority (dkt. 88). As near as the court can tell, no such authority exists. 

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37), but the law does not require such a thing. More important, an inability to “meet [the] burden 

of proof” falls within those reasons Illinois courts recognize as favorable to the accused: “a lack 

of reasonable grounds to pursue the criminal prosecution.” Swick, 662 N.E.2d at 1243.

Insufficient evidence constitutes “a lack of reasonable grounds.”

The Police Officer Defendants resist this natural conclusion by arguing that the State’s 

reference to missing or difficult witnesses shows that the State viewed prosecution as

“impracticable.” (Dkt. 240 at 27.) Illinois case law suggests otherwise. In Kincaid v. Ames 

Department Stores, Inc., for example, the Illinois Appellate Court rejected the argument that the

resolution of an underlying criminal proceeding was not indicative of innocence where, “on 

review of the available witnesses, the prosecutor found the evidence insufficient to justify 

proceeding.” 670 N.E.2d 1103, 1110 (Ill. App. Ct. 1996). For a federal district court striving to 

apply Illinois law, Kincaid’s conclusion is all but controlling. See Green Plains Trade Grp., LLC 

v. Archer Daniels Midland Co., 90 F.4th 919, 927–28 (7th Cir. 2024) (“[I]n the absence of 

persuasive reasons to the contrary,” federal courts “will follow a holding of the state’s 

intermediate appellate court.”) (emphasis omitted).

The Restatement (Second) of Torts, on which Swick relied in formulating the favorabletermination requirement, only reinforces the conclusion that the termination of criminal 

proceedings here was due not due to impracticability. According to the comments to Section 661, 

In context, the court’s misstatement should have been plain to the parties. The court had just said 

that “[t]he consequences” of the statement issued by the court that vacated plaintiffs’ convictions was 

“certainly subject to ‘reasonable dispute,’ and thus not a proper judicially noticeable fact that dooms 

plaintiffs’ malicious prosecution claims. And the same is true for the transcript ... of the state court’s 

denial of plaintiffs’ requests for certificates of innocence.” Fulton, 547 F. Supp. 3d at 821–22 (citations 

omitted) (emphases added). In any event, the court now makes clear that this was error. And, regardless, 

the denial of plaintiffs’ petitions has since been reversed by the Illinois Appellate Court and the case 

remanded for further proceedings (dkt. 224 ¶¶ 211–12), so the original petition proceedings have no 

bearing on the court’s analysis in deciding these motions for summary judgment.

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“the impossibility or impracticability of bringing the accused to trial” most commonly applies 

when the accused “is absen[t] from the jurisdiction” and “extradition is so difficult as to be 

impracticable.” Restatement (Second) of Torts § 661 (1977). 

For these reasons, the court denies the Police Officer Defendants’ motion for summary 

judgment on Count IX.

B. Defendant Shepherd

Defendant Shepherd takes a different approach, focusing on the continuation-ofproceedings and malice elements rather than probable cause and favorable termination.38 (Dkt. 

199 at 32.) Shepherd argues that there is no evidence that he exerted any influence to initiate, 

continue, or perpetuate the criminal proceedings, and (in similarly summary fashion) Shepherd 

argues that there is no “evidence of malice.” (Id.)

Plaintiffs counter that a jury must decide whether Shepherd’s “‘no camera’ narrative was 

critical to the prosecution continuing its criminal case,” for that narrative “pierced” Fulton’s alibi 

by allowing “prosecutors to argue that Fulton could have snuck out the back door to murder 

Collazo.” (Dkt. 230 at 69.) Likewise, plaintiffs argue that a jury might reasonably infer that 

“Shepherd acted with malice when he fabricated a false story to knowingly help break Fulton’s 

alibi.” (Id.)

Shepherd calls these contentions “entirely” speculative: “Plaintiffs speculate, without any 

supporting evidence, that Shepherd saw a camera at the back door, fabricated evidence to the 

contrary, shared his fabricated evidence with the prosecutors before he testified, so that the 

38 Shepherd also briefly references a lack of probable cause (dkt. 199 at 32), but even if this 

argument were more fully developed, it would fail because the court has already determined that, based 

on the undisputed facts, probable cause cannot be established as a matter of law, supra Section II.B.

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prosecutors knew he would testify about the absence of a backdoor camera, which led him to be 

called to the witness stand, to testify about his fabricated evidence.” (Dkt. 245 at 16–17.) 

Whether Shepherd “deliberately supplied misleading information” that continued the 

criminal proceedings, see Jones, 856 F.2d at 994, presents a genuine dispute of material fact. As 

discussed above, supra Section IV.C, whether there was a camera—either one that Shepherd 

missed or intentionally ignored—is a dispute that must go to a jury. If a finds that a camera was 

at the rear exit on March 13, 2003, it might also reasonably infer that Shepherd told prosecutors 

that there was no backdoor camera before he testified. In short, while plaintiffs’ narrative 

involves two factual disputes and requires a reasonable inference, it is not speculative.

A jury may likewise reasonably infer that Shepherd acted with malice. If a jury concludes 

that Shepherd knew of Fulton’s alibi prior to investigating for cameras and that there was a 

backdoor camera that Shepherd did not report, it would not be unreasonable to infer that 

Shepherd acted maliciously by fabricating evidence in order to erode the power of Fulton’s alibi.

For these reasons, Shepherd is denied summary judgment on Count IX.

IX. Intentional Infliction of Emotional Distress (Count X)

To succeed on a claim for intentional infliction of emotional distress, a plaintiff must 

establish: “(1) that the defendant’s conduct was extreme and outrageous; (2) that the defendant 

knew that there was a high probability that his conduct would cause severe emotional distress;

and (3) that the conduct in fact caused severe emotional distress.” Kolegas v. Heftel Broad.

Corp., 607 N.E.2d 201, 211 (Ill. 1992). The tort imposes liability only for conduct “calculated to 

cause severe emotional distress to a person of ordinary sensibilities.” Honaker v. Smith, 256 F.3d 

477, 490 (7th Cir. 2001) (quoting Knierim v. Izzo, 174 N.E.2d 157, 164 (Ill. 1961)). Inapplicable 

to “‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities[,]’” 

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intentional infliction of emotional distress encompasses only conduct that goes “beyond all 

bounds of decency and [is] considered intolerable in a civilized community.” Id. (quoting 

McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988)). One of the factors that may inform the 

analysis is the defendant’s “degree of power or authority” over the plaintiff. Id. (quoting 

McGrath, 533 N.E.2d at 809–10). In other words, an “abuse of power” magnifies the extreme 

and outrageous nature of the conduct. Id. at 491. Another factor considers whether the defendant 

“believed that his objective was legitimate[.]” Id. Of particular relevance here, the fabrication of 

evidence and the concealment of exculpatory evidence in order to falsely and maliciously arrest, 

detain, and charge an individual, without probable cause, is “sufficiently extreme as to go 

beyond all possible bounds of decency, and to be regarded as intolerable in a civilized 

community.” Bianchi v. McQueen, 58 N.E.3d 680, 700 (Ill. App. Ct. 2016).

A. The Cook County Defendants

The County Defendants argue that “there is no evidence that [they] engaged in coercion, 

fabrication, and suppression of evidence, or that they were present during these events to be able 

to stop them from occurring, or even had knowledge of their occurrence.” (Dkt. 199 at 33.) They

do not argue that engaging in these acts would be anything less than “extreme and outrageous.” 

The court has already determined that there are genuine disputes of material fact as to

whether Judge participated in coercing and fabricating Fulton’s false confession, supra Sections

IV.A.ii, IV.B.ii.a, and whether Shepherd manufactured false evidence, supra Section IV.C. Such 

conduct has been found to satisfy the outrageousness requirement. Bianchi, 58 N.E.3d at 700. 

The court cannot conclude as a matter of law, therefore, that Judge and Shepherd’s conduct was 

not extreme and outrageous. Whether the conduct in this case rises to that level is for a jury to 

decide, so the court must deny Judge and Shepherd summary judgment on Count X.

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The same is true with respect to Varga’s involvement in procuring Shaw’s inculpatory 

statement. In their opening brief, the County Defendants argue that Varga cannot be liable for 

fabrication because (1) he was not present for, involved in, or aware of any “physical and mental 

coercion suffered by Shaw,” (2) Shaw admits that he gave a signed and initialed inculpatory 

statement to Varga, (3) the statement was “taken in the presence of Shaw’s uncle,” and (4) “a 

fabricated statement is one that is entirely made up” and Shaw admits giving the statement. (Dkt. 

199 at 20–21.) None of these arguments shows that there is no genuine dispute of material fact 

on the critical issue: whether Varga knowingly fabricated Shaw’s false inculpatory statement.39

In addition, plaintiffs provide a list of facts from which a jury could find that Varga knew 

that Shaw’s statement was false. (Dkt. 230 at 58.) They point out that (1) “Varga interrogated 

Shaw three separate times,” (2) Shaw maintained his innocence “despite heavy coaching, threats, 

and false promises of leniency,” (3) “Varga told Shaw he did not believe his denials and 

continued to come back to see if his story had changed,” and (4) Shaw told Varga that Zalatoris 

was pressuring him to give a fabricated story. (Id. at 59.)

In his reply brief, Varga does not respond at all to plaintiffs’ factual arguments. He has 

therefore waived the issue, see Bradley, 59 F.4th at 897, and the court assumes for purposes of 

39 Whether Varga participated in or witnessed any physical or mental coercion is simply not 

relevant to plaintiffs’ fabrication claim. Likewise, that Shaw’s uncle was present during the taking of the 

statement and that Shaw initialed and signed the statement are facts that speak little (if at all) to whether 

Varga knew the statement was false. As for Varga’s final point, that he “did not fabricate Shaw’s 

statement because a fabricated statement is one that is entirely made up,” the court cannot discern any 

legal basis for this argument. Varga cites Fields II in support, but all that Fields II states is that fabricated 

testimony is “testimony that is made up” and “invariably false.” 740 F.3d at 1110. Neither Fields II nor 

any other decision of which the court is aware suggests that an allegedly fabricated statement must be 

entirely false. Indeed, as plaintiffs point out, if the presence of a single true fact in a suspect’s statement 

meant that “the entire statement is per se not fabricated,” it would “destroy the essence of fabrication 

jurisprudence.” (Dkt. 230 at 59.)

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deciding this motion that there are genuine factual disputes as to whether Varga knowingly 

assisted in fabricating Shaw’s false statement.40

The court therefore denies all County Defendants summary judgment on Count X.

B. The Police Officer Defendants

In perfunctory fashion, the Police Officer Defendants argue that none of their conduct in 

this case was sufficiently outrageous to sustain plaintiffs’ claims of intentional infliction of 

emotional distress. (Dkt. 202 at 54.) 

As with the County Defendants, genuine disputes of material fact bar the court from 

granting the Police Officer Defendants summary judgment on these grounds. These disputes 

include whether: (1) Zalatoris and Breen coerced and fabricated plaintiffs’ false confessions, 

supra Sections II.B, IV.B.i.a, (2) Bartik and Struck fabricated confessions from Fulton, supra 

Sections II.B.v, IV.B.i.b–c, (3) Winstead fabricated Henderson’s witness statement, supra 

Section IV.B.i.d, (4) Zalatoris, Breen, Girardi, and Struck coerced plaintiffs’ false confessions, 

supra Section IV.A.i, and (5) Bartik, Zalatoris, Breen, Girardi, Rolston, Struck, Winstead and 

Franko failed to intervene to stop these constitutional violations, supra Section VI.B. While there 

are numerous other allegations of misconduct (which the court need not address in resolving 

these motions), these five disputes suffice to deny the Police Officer Defendants summary 

judgment on Count X.

40 Even if Varga had not waived the argument, after reviewing the evidence cited by plaintiffs, the 

court concludes that there are such genuine disputes. Although many of the facts plaintiffs highlight might 

support an inference that Varga knew Shaw’s statement was false, it is enough that Shaw testified at 

deposition that he explained to Varga before signing the inculpatory statement that he was innocent and 

only repeating back what detectives told him: “I told him that I didn’t do any of this. This [is] what the 

police are saying that I did.” (Dkt. 223-37 at 27.) Again, Varga does not argue otherwise.

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X. Vicarious Liability (Counts XII and XIII)

Plaintiffs seek to hold the City liable for torts committed by the Police Officer 

Defendants via two theories of vicarious liability: respondeat superior (Count XII) and 

indemnification (Count XIII). Plaintiffs similarly seek to hold the County liable for torts 

committed by the individual County Defendants via indemnification. Both the City and County 

argue that they are entitled to summary judgment only if the Police Officer Defendants and the 

individual County Defendants, respectively, are granted summary judgment on the underlying 

tort claims. (Dkts. 199 at 34–35; 209 ¶¶ 5, 7.) Because many of those underlying claims may 

proceed to trial, neither the City nor the County is entitled to summary judgment. 

CONCLUSION AND ORDER

For the foregoing reasons, the County Defendants’ motion for summary judgment (dkt. 

197) and the Police Officer Defendants’ motion for partial summary judgment (dkt. 202) are 

granted in part and denied in part and the City’s motion for summary judgment (dkt. 209) is 

denied. Defendants Aguirre, Cervenka, Kennedy, Schmitz, and Skora, as well as the “Unknown 

Chicago Police Officers” referenced in plaintiffs’ complaints, are dismissed from the case. On 

Count I, the court grants summary judgment to Defendants Bartik, Rolston, Winstead, and 

Franko and denies summary judgment to Defendant Judge and the remaining Police Officer 

Defendants. On Count II, the court grants summary judgment to Defendants Rolston, Franko, 

and Varga and denies summary judgment to Defendants Judge, Zalatoris, Breen, Bartik, Girardi, 

Struck, and Winstead. On Count III, the court denies summary judgment to Defendant Shepherd 

and the Police Officer Defendants. On Count IV, summary judgment is granted to all defendants 

except Defendant Shepherd. On Count VI, the court grants summary judgment to Defendant 

Shepherd and denies summary judgment to Defendants Judge, Bartik, Franko, and Winstead. On 

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Count VII, the court grants summary judgment to Defendant Shepherd and denies summary 

judgment to the Police Officer Defendants. On Count IX, the court denies summary judgment to 

Defendant Shepherd and the Police Officer Defendants. On Count X, the court denies summary 

judgment to all Defendants. On Count XI, the court grants summary judgment to Defendant 

Shepherd and denies summary judgment to the Police Officer Defendants. Finally, the court 

denies the City’s motion for summary judgment on Counts XII and XIII and denies Cook 

County’s motion for summary judgment on Count XIII.

Date: March 22, 2024 _______________________________

U.S. District Judge Joan H. Lefkow

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