In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2326

James Newsome,

Plaintiff-Appellee,

v.

John McCabe and Raymond McNally,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 7680--Paul E. Plunkett, Judge.

Argued September 25, 2000--Decided July 11, 2001


  Before Flaum, Chief Judge, and Easterbrook
and Diane P. Wood, Circuit Judges.

  Easterbrook, Circuit Judge. James Newsome
spent 15 years in prison for murder. The
killing and associated crimes (armed
robbery and armed violence) occurred in
October 1979. Newsome was arrested in
November 1979 when police, who were
holding him on other charges, noted his
resemblance to a composite sketch of the
person who in the course of a robbery
shot and killed Mickey Cohen. Newsome was
convicted of that crime in September
1980, see People v. Newsome, 110 Ill.
App. 3d 1043, 443 N.E.2d 634 (1st Dist.
1982); and his efforts to obtain
collateral relief were unavailing until
December 1994, when a state court vacated
his conviction. In 1995, after the
State’s Attorney declined to put Newsome
on trial a second time, the Governor of
Illinois concluded that Newsome is
innocent and pardoned him. Newsome then
filed this suit under 42 U.S.C. sec.1983
against five officers of the Chicago
Police Department. He could not seek
damages for wrongful arrest and
detention; that claim accrued in 1979, so
the statute of limitations expired in
1981. See Gonzalez v. Entress, 133 F.3d
551 (7th Cir. 1998). But a claim based on
wrongful conviction and imprisonment did
not accrue until the pardon, see Heck v.
Humphrey, 512 U.S. 477 (1994), and
Newsome tried to take advantage of the
newly opened window for suit. Absolute
immunity forecloses any action against
the prosecutors and judges, but Newsome
has tried to avoid that doctrine by suing
the investigating officers, arguing that
the police were complicit in a wrongful
prosecution. He calls this a claim of
"malicious prosecution" and contends that
the police must pay for failing to halt
the criminal prosecution. The defendants
responded by arguing that Newsome’s
theory is legally deficient and that, at
all events, qualified immunity prevents
an award of damages.

  The district judge granted summary
judgment in favor of James W. Eckner,
Bruce James, and David Dioguardi, ruling
that the evidence of record could not be
read to imply that they did anything
wrong. 2000 U.S. Dist. Lexis 5678 (N.D.
Ill. Apr. 25, 2000), reconsideration
denied, 2000 U.S. Dist. Lexis 6929 (May
16, 2000). But the court thought that the
evidence would allow a jury to find that
the other two defendants, John McCabe and
Raymond McNally, failed to alert the
prosecutors that Newsome’s fingerprints
did not match those they had obtained at
the scene of the crime. Moreover, a jury
could find that McCabe and McNally
encouraged two witnesses to select
Newsome from a lineup-- which the
witnesses did, forming a vital link in
the process that led to Newsome’s
conviction as Cohen’s killer--yet
withheld from the prosecutors information
about their coaching of the witnesses and
the fact that these witnesses earlier
selected pictures from a book of mug
shots that did not contain Newsome’s
photo. The judge concluded that these
events could support damages for
malicious prosecution, which the judge
viewed as a constitutional tort when:

(1) the requirements of a state law
cause of action for malicious
prosecution are satisfied; (2) a
state actor committed the malicious
prosecution; and (3) plaintiff was
deprived of liberty.

2000 U.S. Dist. Lexis 5678 at *31-32. The
judge thought that all three of these
ingredients have been satisfied because,
taking the facts in the light most
favorable to Newsome and disregarding all
testimony derived from the tainted
identifications, there was not even
probable cause to prosecute him for
Cohen’s murder. Id. at *35-36. Because
the evidence could support an inference
that McCabe and McNally suborned perjury
by the two eyewitnesses, the judge
concluded in his order denying
reconsideration that they are not
entitled to qualified immunity, for both
the right to be free of malicious
prosecution and the rule against
suborning perjury have been around a very
long time.

  McCabe and McNally have filed this
interlocutory appeal to argue for
immunity, as they are entitled to do, see
Behrens v. Pelletier, 516 U.S. 299
(1996), but the first question on the
table is whether Newsome has made out a
violation of constitutional rights--for
we cannot call a constitutional right
"clearly established" when the defendants
acted (here in 1979 and 1980) if it has
never been established at all. See Wilson
v. Layne, 526 U.S. 603, 609 (1999); Conn
v. Gabbert, 526 U.S. 286, 290 (1999).
Defendants make a strong pitch regarding
point (1) of the district court’s list.
They insist that Newsome has not made out
"the requirements of a state law cause of
action for malicious prosecution" because
neither McCabe nor McNally prosecuted
Newsome or was a party to the case. The
People of the State of Illinois (through
the State’s Attorney), not police
officers, brought the criminal
prosecution. This contention has led to a
complex debate about the extent to which,
under Illinois law, a complaining witness
can be deemed a party for purposes of the
tort of malicious prosecution. Our
opinion in Logan v. Caterpillar, Inc.,
246 F.3d 912, 921-26 (7th Cir. 2001),
explores some of these subtleties. But
the answer doesn’t matter unless there is
a constitutional tort called "malicious
prosecution," a subject not fully
resolved in Albright v. Oliver, 510 U.S.
266 (1994), and this constitutional tort
applies to state actors the same rules
state courts apply to private actors,
thus using the Constitution to enforce
state law. Recall the district judge’s
formulation: the plaintiff must show all
requirements of a tort claim under state
law, plus a deprivation of liberty, plus
the defendant’s status as a state actor
(this last ingredient found in sec.1983
itself). Whatever scope malicious
prosecution may have as a constitutional
tort after Albright, it does not depend
on state law in this way. To the
contrary, the existence of a tort claim
under state law knocks out any
constitutional theory of malicious
prosecution.

  Whether there is a constitutional right
not to be prosecuted without probable
cause--the question that the district
court saw through the lens of malicious
prosecution--was addressed and answered
in the negative by seven Justices in
Albright. The problem is that they did
not agree on the reason. Four Justices
concluded that probable cause is the
exclusive domain of the fourth amendment,
and that unless the plaintiff can
establish that his arrest was unlawful
there is no further constitutional claim.
510 U.S. at 268-75 (Rehnquist, C.J.,
joined by O’Connor, Scalia & Ginsburg,
JJ.). See also Baker v. McCollan, 443
U.S. 137 (1979) (if probable cause exists
at the time of arrest, then the police
cannot be held liable for ensuing
custody, even if mistaken). Newsome had a
potential fourth amendment claim, but as
we mentioned at the outset the time to
pursue it expired almost 20 years ago.
One Justice preferred to analyze the
subject in terms of substantive due
process, an approach that could leave
room for Newsome’s claim but doomed
Albright’s because he did not argue that
the police engaged in egregious
misconduct. 510 U.S. at 286-91 (Souter,
J.). Two more Justices believed that the
right approach lies in due process
without substantive coloration--whether
the person seized by the state had an
adequate opportunity to defend himself in
the criminal prosecution and, if not, an
adequate opportunity to obtain
compensation in state court. 510 U.S. at
281-86 (Kennedy, J., joined by Thomas,
J.). A jury might conclude that McCabe
and McNally deprived Newsome of an
adequate chance to defend himself in the
criminal prosecution. But Justices
Kennedy and Thomas concluded that in such
circumstances the federal Constitution
still does not supply a damages remedy,
unless the state courts refuse to do so.
Their approach relies on Parratt v.
Taylor, 451 U.S. 527, 535-44 (1981),
which holds that the opportunity to sue
in state courts usually supplies all the
process that is due to redress
unauthorized activities of state
employees. Justices Kennedy and Thomas
concluded that remedies available to
Albright under state law for wrongful
prosecution provided him with due process
of law. States differ in their
willingness to provide such remedies--but
the state in question in Albright was
Illinois, and remedies available to
Albright are (or were) available to
Newsome too. What this means is that
satisfying the elements of the state-law
tort of malicious prosecution, far from
being the foundation of a constitutional
tort as the district judge believed,
knocks out any constitutional tort of
malicious prosecution, because, when a
state-law remedy exists, Justices Kennedy
and Thomas conclude that due process of
law is afforded by the opportunity to
pursue a claim in state court, and four
other Justices do not think that the due
process clause applies in the first
place.

  The district judge is hardly to be
faulted for using a tripartite formula
for a constitutional tort of malicious
prosecution. This court has articulated
it at least four times since Albright.
See Cervantes v. Jones, 188 F.3d 805, 809
(7th Cir. 1999); Sneed v. Rybicki, 146
F.3d 478, 480 (7th Cir. 1998); Washington
v. Summerville, 127 F.3d 552, 558-59 (7th
Cir. 1997); Reed v. Chicago, 77 F.3d
1049, 1051 (7th Cir. 1996). But in none
of these cases did anything turn on the
precise formulation, and none of our
opinions dealt with reconciling this
formulation with the position that
Justices Kennedy and Thomas took in
Albright, which, as the narrowest ground
of decision, constitutes the effective
holding of the Court. See Marks v. United
States, 430 U.S. 188, 193 (1977). The
formula appears to be dictum developed
from pre-Albright opinions, unexamined in
our more recent decisions because the
parties to Cervantes, Sneed, Washington,
and Reed did not seek to have this court
reexamine the issue in the light of
intervening developments. In other recent
decisions we have recognized that
Albright scotches any constitutional tort
of malicious prosecution when state
courts are open. See, e.g., Mays v. East
St. Louis, 123 F.3d 999, 1002-03 (7th
Cir. 1997); Spiegel v. Rabinovitz, 121
F.3d 251, 254-57 (7th Cir. 1997); Smart
v. Board of Trustees, 34 F.3d 432, 434-35
(7th Cir. 1994) (suggesting the
possibility of a claim based on the first
amendment if the prosecution is used to
punish speech). See also Snodderly v.
R.U.F.F. Drug Enforcement Task Force, 239
F.3d 892, 901 (7th Cir. 2001); Williams
v. Heavener, 217 F.3d 529, 531-32 (7th
Cir. 2000). These opinions do not address
the tripartite formula of Cervantes,
Sneed, Washington, and Reed. Having given
the matter some thought, we now withdraw
the dicta in those four opinions. Claims
of malicious prosecution should be
analyzed not under the substantive due
process approach implied by this formula
but under the language of the
Constitution itself and, if state law
withholds a remedy, under the approach of
Parratt adopted by Justices Kennedy and
Thomas in Albright. Relabeling a fourth-
amendment claim as "malicious
prosecution" would not extend the statute
of limitations (Reed so holds), and if a
plaintiff can establish a violation of
the fourth (or any other) amendment there
is nothing but confusion to be gained by
calling the legal theory "malicious
prosecution."

  Where does this leave Newsome? Certainly
not with a constitutional claim founded
on malicious prosecution. Nor does he
have a viable fourth amendment claim, for
the statute of limitations expired long
ago. But he does have a due process claim
in the original sense of that phrase--he
did not receive a fair trial if the
prosecutors withheld material exculpatory
details. See Brady v. Maryland, 373 U.S.
83 (1963). Although the State’s Attorney
did not have in his file details about
the fingerprints and the means McCabe and
McNally used to influence the
identification, a prosecutor is
responsible for learning of and
disclosing all exculpatory evidence known
to the police. See Kyles v. Whitley, 514
U.S. 419, 437-38 (1995). Defendants
recognize that a claim along these lines
states a genuine constitutional tort. See
Jones v. Chicago, 856 F.2d 985 (7th Cir.
1988); Jean v. Collins, 221 F.3d 656 (4th
Cir. 2000) (en banc) (all 12 judges
concluded that police who deliberately
withhold exculpatory evidence, and thus
prevent the prosecutors from complying
with Brady, violate the due process
clause). Such a violation occurred at
trial (for Brady identifies a trial
right) and therefore the due process
claim’s accrual was postponed by Heck
until the pardon. Nonetheless, defendants
contend, if the claim is recast in this
fashion then they prevail because they
did not withhold evidence; the prosecutor
did so (even if they were to blame).
Because injury depended on the action of
the prosecutor they either are not
substantively liable or possess a
derivative form of immunity, the line of
argument concludes.

  Buckley v. Fitzsimmons, 20 F.3d 789 (7th
Cir. 1994), provides the principal
support for this contention. It holds
that responsibility rests on the
prosecutor, rather than the police, when
there would have been no injury but for a
prosecutorial decision that is protected
by absolute immunity. Buckley finds
company in Michaels v. McGrath, 222 F.3d
118 (3d Cir. 2000), but two circuits have
reached contrary conclusions. See Zahrey
v. Coffey, 221 F.3d 342 (2d Cir. 2000);
Clanton v. Cooper, 129 F.3d 1147 (10th
Cir. 1997). One Justice has expressed the
view that Buckley was decided
incorrectly. See Michaels v. McGrath, 121
S. Ct. 873 (2001) (Thomas, J., dissenting
from the denial of certiorari). But
Newsome’s suit does not present the
Buckley issue, and defendants’ reliance
on that decision is unavailing, for a
fundamental reason: Buckley supposed that
the police had been forthcoming with the
prosecutors, so that injury really could
be traced to prosecutorial decisions. We
distinguished what occurred in Jones,
where the police had fabricated some
evidence and concealed much exculpatory
information. If officers are not candid
with prosecutors, then the prosecutors’
decisions--although vital to the causal
chain in a but-for sense--are not the
important locus of action. Pressure must
be brought to bear elsewhere. Prosecutors
kept in the dark by the police (and not
negligent in failing to hire other
persons to investigate the police) won’t
improve their performance with or without
legal liability for their conduct.
Requiring culpable officers to pay
damages to the victims of their actions,
however, holds out promise of both
deterring and remediating violations of
the Constitution.

  Putting Buckley and all problems of
establishing causation to one side, we
make the normal immunity inquiry: was it
clearly established in 1979 and 1980 that
police could not withhold from
prosecutors exculpatory information about
fingerprints and the conduct of a lineup?
See Wilson, 526 U.S. at 614-18; Anderson
v. Creighton, 483 U.S. 635, 639 (1987);
Saucier v. Katz, No. 99-1977 (U.S. June
18, 2001). The answer is yes: The Brady
principle was announced in 1963, and we
applied it in Jones to affirm a hefty
award of damages against officers who
withheld exculpatory information in 1981.
This is not to say that McCabe or McNally
did anything wrong; like the district
judge we have taken the evidence and all
reasonable inferences in Newsome’s favor,
as the summary-judgment standard
requires. No one would quarrel with the
assertion in defendants’ reply brief that
"in 1979 [and today], the detectives
could have reasonably believed that it
should be up to the prosecutors, and
ultimately the court, to determine if an
eyewitness identification is sufficiently
reliable for use at trial." Newsome has
made a more serious claim that the
defendants withheld information important
to that prosecutorial (and judicial)
decision, and on this interlocutory
appeal we cannot resolve disputes about
the record. See Johnson v. Jones, 515
U.S. 304 (1995). If Newsome can prove
what he alleges, then under the approach
of Brady and Jones v. Chicago he will
establish a violation of the due process
clause, a kind of violation for which
officers McCabe and McNally do not have
immunity. This is not the basis of the
district court’s order, nor is it
Newsome’s preferred theory--malicious
prosecution is not tenable as an
independent constitutional theory--but we
may affirm a decision on any ground that
the record supports. The decision of the
district court rejecting defendants’
affirmative defense of qualified immunity
is accordingly

affirmed.
