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.

On Petition for Rehearing

Decided August 14, 2001


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

  Per Curiam. Defendants’ petition for
rehearing contends that it was not
clearly established, when they acted,
that the state’s constitutional duty to
avoid concealing materially exculpatory
evidence ever imposed any obligations on
police, as opposed to prosecutors. That
proposition is incompatible with Jones v.
Chicago, 856 F.2d 985 (7th Cir. 1988),
which dealt with police conduct at about
the same time as Newsome’s trial, and
with Jean v. Collins, 221 F.3d 656 (4th
Cir. 2000) (en banc), which holds that
police who deliberately withhold
exculpatory evidence, and thus prevent
the prosecutors from complying with the
obligations articulated in Brady, violate
the due process clause.

  We agree with defendants that police
need not spontaneously reveal to
prosecutors every tidbit that with the
benefit of hindsight (and the context of
other evidence) could be said to assist
defendants. That is one reason why duties
often depend on a defendant’s request.
Just as prosecutors need not
automatically open their files to
defendants, so police need not
automatically engage in debriefing
sessions with prosecutors. This was why
our opinion went out of its way to agree
with the defendants’ contention 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." If all the plaintiff
can prove at trial is that these officers
failed to take the initiative in
providing the prosecutors with
information that would have come out as
soon as the prosecutors asked (or as soon
as defense counsel interviewed the police
or questioned them on the stand), then no
due process violation by the police has
been established. But if the right
characterization of the defendants’
conduct is that they deliberately
withheld information, seeking to
misdirect or mislead the prosecutors and
the defense, then there is a genuine
constitutional problem.

  Johnson v. Jones, 515 U.S. 304 (1995),
requires us to assume that plaintiff can
prove a deliberate withholding of
information. Such proof would demonstrate
that defendants violated clearly
established rights--for the due process
clause imposes obligations on all state
actors, and not just on prosecutors.
Different state actors play different
roles in the prosecutorial process, but
as Jones and Jean show it is possible for
police no less than prosecutors to
violate the due process clause by
withholding exculpatory information.
Whether the police did this here is a
disputed question of fact that precludes
summary judgment. It may be necessary, as
Saucier v. Katz, 121 S. Ct. 2151, 2158
(2001), holds, to take another look at
the immunity question once the facts are
known, for until then it may be
impossible to determine whether the legal
rule was sufficiently clear in relation
to the facts. While the facts remain in
doubt, however, it is premature to
attempt this analysis.

  The petition for rehearing is denied. No
judge in regular active service has
requested a vote on the petition for
rehearing en banc, which therefore also
is denied.
