                              In the
    United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-3614
SCOTT SORNBERGER and TERESA
SORNBERGER, individually and on
behalf of their children, CLAUDE
SHINALL and KAYLA BOWDEN,
                                              Plaintiffs-Appellants,
                                 v.

CITY OF KNOXVILLE, ILLINOIS, CITY
OF GALESBURG, RICK PESCI, et al.,
                                             Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
                 for the Central District of Illinois.
              No. 02 C 1224—Joe Billy McDade, Judge.
                          ____________
     ARGUED SEPTEMBER 23, 2005—DECIDED JANUARY 20, 2006
                          ____________


    Before, POSNER, RIPPLE and ROVNER, Circuit Judges.
  RIPPLE, Circuit Judge. Scott Sornberger (“Scott”) and his
wife Teresa Sornberger (“Teresa”)1 spent approximately
four months in jail while awaiting trial for their suspected


1
  We refer to the parties by their first names when necessary to
avoid ambiguity.
2                                                 No. 04-3614

involvement in the January 12, 2000 robbery of the First
Midwest Bank (“First Bank”). Eventually, a man admit-
ting to be the true bank robber came forward, and the
Sornbergers were released. They then brought this fed-
eral civil rights action, see 42 U.S.C. § 1983, against Rick
Pesci, the Knoxville, Illinois chief of police, the City of
Galesburg, Illinois and several Galesburg police officers.
The complaint alleged that the Sornbergers had been
arrested without probable cause in violation of the Fourth
Amendment, that Teresa had been coerced into confessing
in violation of her Fifth and Fourteenth Amendment
rights, and that the defendants unlawfully had concealed
evidence. The Sornbergers also brought claims on behalf of
their children for intentional infliction of emotional distress.
  At the close of discovery, the defendants moved for
summary judgment. Teresa cross-moved for partial sum-
mary judgment on her false arrest claim against Galesburg
police officer Dennis Sheppard. The district court granted in
full the defendants’ motion for summary judgment, and
correspondingly denied Teresa’s motion for partial sum-
mary judgment. The Sornbergers appealed. For the reasons
set forth in the following opinion, we affirm the judgment
of the district court with respect to the Sornbergers’ conceal-
ment of evidence claim and the children’s claims for
intentional infliction of emotional distress. With respect to
Scott’s claim for unlawful arrest, we affirm the district
court’s determination that Officers Sheppard and Riley
cannot be found liable, but we reverse the entry of summary
judgment in favor of Chief Pesci and Officer Clauge.
Regarding Teresa’s claim for false arrest, we affirm the
determination of the district court that neither Chief Pesci
nor Officer Clauge may be held liable, but we reverse and
remand with respect to Officers Sheppard and Riley. On
Teresa’s claims related to her involuntary confession, we
No. 04-3614                                                3

reverse the judgment of the district court and remand the
case for further proceedings consistent with this opinion.
We also reverse and remand the district court’s determina-
tion that Galesburg could not be found liable on a theory of
municipal liability for Teresa’s claims.


                             I
                     BACKGROUND
A. Facts
  On January 12, 2000, First Bank was robbed by a perpetra-
tor wearing a baseball cap. Only two First Bank employees
got a first-hand look at the robber, and only Tracy
Clevenger, the teller who handed money to the robber,
caught a glimpse of the robber’s face. Clevenger described
the perpetrator as male, 5'9", approximately 160 pounds,
dark complected, dark eyes, dark hair, clean shaven and
in his thirties. Knoxville, Illinois Chief of Police Rick
Pesci was the first law enforcement official to arrive at the
scene. He took the robber’s description from Clevenger and
called the FBI to assist in the investigation.
  Initially, no eyewitness nor any other First Bank employee
was able to identify the robber. Shortly after the robbery,
however, as three First Bank employees began reviewing
bank surveillance video, Brent Dugan, a First Bank em-
ployee, remarked that the robber “looked like” Scott
Sornberger, who was an acquaintance of Dugan and a
former customer of First Bank. First Bank employees Diane
Carter and Roger Schultz agreed that the perpetrator
captured on video bore some likeness to Scott. After watch-
ing the same footage from a different angle, however,
Dugan remarked that he was less sure of the likeness. Chief
Pesci, who was present intermittently while the employ-
4                                                No. 04-3614

ees viewed the surveillance tapes, heard at least one of these
comments on the resemblance of the robber to Scott.
  Acting on this information, Chief Pesci proceeded to
question the First Bank employees about Scott Sornberger.
Chief Pesci learned that Scott and Teresa had been custom-
ers of First Bank, but that their account had been closed
because of a zero or negative account balance. That evening,
Chief Pesci sent Knoxville police officers to Scott’s work-
place to bring him to the police station for questioning.
When the police found Scott, he stood 5'11", had blond hair,
blue eyes, a fair complexion and a mustache. Despite the
discrepancies between Scott’s appearance and the descrip-
tion of the bank robber, the police proceeded to question
Scott at the station house. They learned that the Sornbergers
had experienced recent financial difficulties. Scott also told
the officers that he had placed a call to Consumer Credit
Counseling earlier in the day. The same evening, Knoxville
officers brought Teresa to the police station for questioning.
They interviewed her outside of Scott’s presence. In the
course of questioning, both Sornbergers offered consistent
alibis: They were together at Scott’s parents’ home, using his
parents’ computer when the robbery occurred.
  To assist in the robbery investigation, Chief Pesci obtained
the services of City of Galesburg police officers Dennis
Sheppard, Anthony Riley and David Clauge. All of these
officers are named as defendants in this action. The day
after the robbery, Officer Clauge brought still photographs
from the bank’s surveillance cameras along with digital
photos of Scott to show Illinois State’s Attorney
Paul Mangieri. Mangieri declined to seek an arrest war-
rant for Scott, but successfully obtained a search warrant for
the computer in Scott’s parents’ house to allow Officer
Clauge to confirm Scott’s alibi. Later that day, Officer
No. 04-3614                                               5

Clauge met again with Mangieri, this time accompanied
by Chief Pesci and FBI agent Jeff Jackson. Officer Clauge
expressed to Mangieri his belief that the pictures of Scott
presented a close match to the ones taken of the robber by
the bank surveillance cameras. At the same meeting, Chief
Pesci told Mangieri about the Sornbergers’ financial prob-
lems and their closed account at First Bank. On the informa-
tion provided by Clauge and Pesci, Mangieri told the
officers that they had probable cause to arrest Scott
for armed robbery. The officers decided to make the arrest
during the execution of the search warrant for Scott’s
parents’ computer. The officers also decided that Officers
Sheppard and Riley would re-interview Teresa if she
could be found at Scott’s parents’ home.
  The day after the robbery, when Chief Pesci and Officers
Clauge, Riley and Sheppard arrived at Scott’s parents’
house to execute the search warrant, only Teresa was
present. The parties dispute whether the officers re-
quested or instructed Teresa to accompany them to the
Galesburg police station for questioning. In either case,
she complied and was transported to Galesburg in the
front seat of a police car, unrestrained by handcuffs. Chief
Pesci stayed behind at Scott’s parents’ home and arrested
Scott when he returned.
  After Officers Sheppard and Riley arrived at the Gales-
burg Public Safety Building with Teresa, they conducted her
to an interview room and began to question her. This
interview resulted in a verbal and eventually a written
confession from Teresa in which she admitted that she had
assisted her husband in robbing First Bank. Although the
existence of the statement is undisputed, exactly what
occurred during Teresa’s interview is the subject of intense
dispute between the parties. According to Teresa, she was
6                                                 No. 04-3614

told immediately after arriving in Galesburg that she was a
suspect in the robbery. Teresa claims that she was then
psychologically coerced into confessing by Officer Sheppard
who allegedly (1) falsely informed her that witnesses placed
her at the scene of the robbery; (2) “repeatedly told her to
think about her kids”; (3) “yelled at her and accused her of
lying”; (4) falsely promised her that, if she implicated her
husband, she would not be charged with any crime; (5)
“threatened to call the [D]epartment of Children and Family
[S]ervices” (“DCFS”) to take her children away if she
continued to maintain her innocence; and (6) “[r]efused to
honor her request to speak with an attorney.” R.122 ¶ 30.
Teresa also maintains that she did not receive Miranda
warnings until asked to repeat her oral confession to the
Galesburg police stenographer.
   According to the defendants’ version, Teresa required
little prodding before she voluntarily began to “tell her
‘story.’ ” R.110 ¶ 33. The officers claim that they told Teresa
that they believed that Scott had committed the rob-
bery, asked Teresa about a witness who had seen Teresa
at the bank on the day of the robbery and implored Teresa
to tell the truth and to think of her children rather than
protecting Scott. The defendants also maintain that Officer
Sheppard advised Teresa of her Miranda rights before
she orally confessed to the robbery.
  After hearing Teresa confess, Officer Sheppard brought
Chief Pesci into the interrogation room and asked Teresa
to repeat her statement. She resisted, and the officers
again suggested that she think of her children; this time,
they admittedly made threats to call DCFS. The officers then
presented Teresa with a transcribed version of her confes-
sion and asked her to sign it. Teresa complied.
No. 04-3614                                                 7

  Criminal proceedings were instituted against the
Sornbergers for bank robbery by the State of Illinois.
Teresa’s confession was offered into evidence to support the
charges against both her and Scott. Teresa brought a pretrial
motion to suppress her confession, but the Knox County
Court denied the motion after a two-day hearing. Crediting
the officers’ testimony and finding no due process or self-
incrimination violation, the Knox County Court offered the
following rationale:
    Here, I think there is no question, the credibility of the
    defendant is—has been attacked successfully. . . . She
    had to be lying at one time or another, and she admits it
    here on the witness stand. . . . I have a tainted—clearly
    having told lies to police authorities and people in
    positions of authority in the past—type of defendant
    here. I have no attack successful or not on the police.
R.111, Ex.15 at 52-62.
  While the Sornbergers were imprisoned awaiting trial,
a man named Philip Pitcher committed a string of bank
robberies in Illinois and Indiana. Pitcher resembled Scott
Sornberger, prompting State’s Attorney Mangieri to ask the
FBI to conduct a more detailed comparison of Scott’s
facial features to the images taken by First Bank’s sur-
veillance equipment. The FBI compared Scott’s ear to the ear
of the perpetrator as pictured in the bank’s surveil-
lance photographs. The FBI comparison turned up physi-
cal differences between Scott and the bank robber that
eliminated Scott as a suspect. Charges against the
Sornbergers were dropped, and they were released from jail.
8                                                 No. 04-3614

                              II
                       DISCUSSION
A. Standard of Review
  We review the district court’s grant of summary judgment
de novo. Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir.
1991). In doing so, we must construe all facts and reasonable
inferences in the light most favorable to the Sornbergers, the
non-moving parties. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Chortek v. City of Milwaukee, 356 F.3d 740, 745
(7th Cir. 2004). Summary judgment is proper if “the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986).


B. The Sornbergers’ Arrests
  With respect to the Sornbergers’ claims for unlawful
arrest, the defendants have invoked the defense of qualified
immunity. We shall first set forth the legal framework and
then address each arrest.
   Government officials performing discretionary func-
tions enjoy qualified immunity from suit to the extent that
their conduct “could reasonably have been thought con-
sistent with the rights they are alleged to have violated.”
Anderson v. Creighton, 483 U.S. 635, 638-39 (1987); Leaf v.
Shelnutt, 400 F.3d 1070, 1079 (7th Cir. 2005). Because quali-
fied immunity protects the defendant not only from liability
but also from the burdens of standing trial, courts should
determine early in the proceedings whether qualified
No. 04-3614                                                    9

immunity exists. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
To determine whether defendants are entitled to this
defense, we follow a two-step analysis. We first ask whether
the plaintiff has asserted the violation of a federal constitu-
tional right. Id. at 200; Leaf, 400 F.3d at 1080. If such a
violation did occur, we then determine whether the right
was so clearly established at the time of the alleged violation
that a reasonable officer would know that his actions were
unconstitutional. Saucier, 533 U.S. at 202; Anderson, 483 U.S.
at 640.
  The constitutional right to be free from arrest without
probable cause indisputably was established at the time
Scott and Teresa were arrested. See, e.g., Beck v. Ohio, 379
U.S. 89, 91 (1964) (“Whether [the defendant’s] arrest was
constitutionally valid depends in turn upon whether,
at the moment the arrest was made, the officers had proba-
ble cause to make it . . . .”). It does not follow, however, that
any arrest made without probable cause necessarily de-
prives the officers of qualified immunity. The Supreme
Court has recognized “that it is inevitable that law enforce-
ment officials will in some cases reasonably but mistakenly
conclude that probable cause is present, and . . . in such
cases those officials—like other officials who act in ways
they reasonably believe to be lawful— should not be held
personally liable.” Anderson, 483 U.S. at 641. Instead, the
relevant question is whether “a reasonable officer could
have believed that probable cause existed” to make the
arrest. Hunter v. Bryant, 502 U.S. 224, 229 (1991) (holding
that officers are protected by qualified immunity where they
possessed trustworthy, but ultimately incorrect evidence,
that a suspect planned to assassinate the President). In this
manner, the doctrine of qualified immunity “gives ample
room for mistaken judgments by protecting all but the
plainly incompetent or those who knowingly violate the
10                                               No. 04-3614

law.” Id. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 341,
343 (1986)) (internal quotation marks omitted).


  1. Scott’s Arrest
  Scott contends that his arresting officers unreasonably
concluded that probable cause supported his arrest. Proba-
ble cause is a practical, common-sense determination.
Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir.
1993). The police ordinarily have probable cause when “the
facts and circumstances within their knowledge and of
which they [have] reasonably trustworthy information [are]
sufficient to warrant a prudent [person] in believing that the
[suspect] had committed or was committing an offense.”
Beck, 379 U.S. at 91. The question of probable cause is
typically “a proper issue for a jury if there is room for a
difference of opinion concerning the facts or the reasonable
inferences to be drawn from them.” Maxwell, 998 F.2d at 434.
   The district court decided, as an initial matter, that
Officers Clauge, Sheppard and Riley could be not be found
liable for Scott’s arrest because Chief Pesci was the only
arresting officer. As to Chief Pesci, the court concluded that
probable cause in the form of eyewitness testimony, surveil-
lance footage, and motive supported Scott’s arrest and
absolved Pesci of any liability. The district court therefore
awarded the defendants summary judgment, concluding
that no reasonable juror could find that the officers lacked
probable cause to arrest Scott. In the court’s view, the
following “undisputed facts” armed the officers with
probable cause for Scott’s arrest: “(1) an individual familiar
with Scott positively identified him as bearing a strong
resemblance to the robber; (2) pictures of Scott taken the
previous evening at the Galesburg police station objectively
No. 04-3614                                                11

resembled, to a high degree of certainty, still shots from the
surveillance camera; and (3) an admitted motive—financial
problems.” R.144 at 18.
   We respectfully disagree with the district court’s view
as to whether probable cause existed as a matter of law.
Arrayed against the indicators supporting probable
cause are other factors that weigh heavily against a determi-
nation that Scott was the bank robber. First, Scott did
not match—or even come close to matching—the physi-
cal description of the robber that was provided by the
only eyewitness who saw the robber’s face. Secondly,
Brent Dugin, the bank employee who knew Scott, told the
police that, at certain angles of the surveillance footage,
the suspect did not resemble Scott. See id. at 3. Third, the
camera footage itself lacked a clarity of resolution that made
it difficult to discern significant detail. The inconclusive
nature of this footage, in addition to the differences between
the specific description of the bank robber and the actual
appearance of Scott Sornberger, undermines substantially
the determination of probable cause in this instance.
Notably, all of these factors were known to the officers who
arrested Scott. Considering these facts, a reasonable jury
certainly could find that probable cause did not exist.
Accordingly, a determination of probable cause at the
summary judgment stage was improper.
  The defendants contend that we nevertheless must
affirm the district court because Scott’s arresting officers
enjoyed qualified immunity. As they correctly point out, the
qualified immunity issue—whether a reasonable offi-
cer could have believed that he had probable cause—
is usually decided by the court before trial. Hunter, 502
U.S. at 228. Moreover, we recognize that, even if probable
cause is lacking with respect to an arrest, the arresting
officer is entitled to immunity so long as his belief that
12                                                  No. 04-3614

he had probable cause was objectively reasonable. See id.
at 227; Edwards v. Cabrera, 58 F.3d 290, 293 (7th Cir. 1995).
However, the qualified immunity doctrine does not pro-
tect those who act unreasonably or “who knowingly vio-
late the law.” Hunter, 502 U.S. at 228. Qualified immunity is,
as the term implies, qualified. It contemplates instances in
which a public official’s actions are not protected because
the official knew or should have known he was violating an
individual’s constitutional rights. See Butz v. Economou, 438
U.S. 478, 506-07 (1978) (“[I]t is not unfair to hold liable the
official who knows or should know he is acting outside the
law, and that insisting on an awareness of clearly estab-
lished constitutional limits will not unduly interfere with
the exercise of official judgment.”).
  The present record does not necessarily support a conclu-
sion that Scott’s arresting officers decided, in an objectively
reasonable fashion, that they had probable cause to arrest
Scott. As we described in our analysis of probable cause, the
evidence implicating Scott in the robbery was exceedingly
thin. Scott bore a generic resemblance to the individual
captured on grainy surveillance video and had admittedly
poor finances. The bank employee who had noticed a
resemblance later modified that conclusion in the presence
of Chief Pesci.2 Scott’s physical appearance was inconsis


2
  The parties disagree as to whether Chief Pesci actually heard
the bank employee, Brent Dugan, make this later statement.
According to the deposition of Dugan, after seeing the video from
a different angle, which occurred within “a minute or two” of
viewing the footage from the original angle, he commented that
the view from the second angle did not resemble Scott. R.122,
Ex.23 at 39. Chief Pesci, although never asked whether he
heard Dugan’s second comment, testified to having been pres-
                                                    (continued...)
No. 04-3614                                                     13

tent with the eyewitness description of the bank robber in
almost every material respect. Nevertheless, federal and
state prosecutors were approached for an authorization to
arrest Scott. See R.136, Tab 7 at 47-48. The United States
Attorney, when approached by the FBI, refused to sanction
Scott’s arrest, citing the need for further investigation.3
Undeterred, Officer Clauge and Chief Pesci then consulted
state’s attorney Mangieri for his opinion on whether there
was probable cause to arrest Scott. The information that the



2
  (...continued)
ent while he and Dugan reviewed the surveillance footage
“several” consecutive times. R.136, Tab 1 at 77-80. A reasonable
inference from this testimony (and we must, in this proce-
dural context, draw all inferences in favor of Scott) is that Chief
Pesci heard both of Dugan’s statements.
3
  FBI agent Brian Sharkey, who was assisting in the investigation
of the First Bank robbery, testified at his deposition that
he consulted Assistant United States Attorney Dara Lynn
Kanauss regarding whether she wished to arrest Scott on fed-
eral charges. She declined to authorize Scott’s arrest. Agent
Sharkey then rejoined the Galesburg officers to inform them
of the federal prosecutor’s decision. This is how he described
the ensuing conversation:
    Basically, I told them that I told—that I had told Dara Lynn
    that I felt that there were a few leads that I wanted to track
    down further before we did any—before we filed any
    charges. She agreed. She thought that we should—we didn’t
    at that point, I didn’t feel that this guy was a risk of flight
    or that he was going to leave the area, speaking of Mr.
    Sornberger. And so we thought that we had time to maybe
    track down a few leads, so we were going to—she said
    that she was in agreement with me to do that.
R.136, Tab 6 at 55.
14                                                    No. 04-3614

officers presented to Mangieri, however, as far as the record
reveals, appears to have been incomplete and one-sided.
Officer Clauge told Mangieri that Scott was a suspect “based
upon a generalized description of [the] bank robber,” that
Scott had poor finances, and that one bank employee had
remarked that Scott resembled the perpetrator caught on
tape. R.122, Ex.29 at 32-33. Mangieri was also informed of
the Sornbergers’ alibi, and that a neighbor had seen an
individual running behind the Sornbergers’ home near the
time that the robbery was committed. Mangieri was then
shown still-frame photographs from the surveillance video
to compare with photos taken of Scott. Officer Clauge,
however, apparently did not reveal the additional facts that
undermined the likelihood that Scott was the perpetrator.
From the record before us, it appears that Mangieri was not
told that the one actual eyewitness to the crime gave a
description that did not match Scott’s physical appearance.
He apparently was not told that the bank employee who
originally had opined that Scott resembled the perpetrator
on the tape later modified that opinion. He was not shown
the actual tape. In short, the record is susceptible to the
reading that, having heard what the officers wanted him to
hear—and no more—Mangieri opined that probable cause
existed for Scott’s arrest.4


4
  In describing the set of information that the officers presented
to him, state’s attorney Mangieri gave the following account:
     The information that I had is that they had developed an
     investigatory lead based upon a generalized description of
     this bank robber, the viewing of the surveillance tape, one of
     the bank employees says, [“]It looks like Scott Sornberger,[”]
     and then an initial interview of Scott Sornberger and where
     he was during the time in question, and some additional
                                                      (continued...)
No. 04-3614                                                      15

  This record cannot establish that Officer Clauge and Chief
Pesci simply made a good-faith mistake as to the existence
of probable cause. We have held that, when an officer
presents his case in good-faith to a prosecutor and seeks that
official’s advice about the existence of probable cause, his
subsequent action, based on the prosecutor’s advice that
probable cause exists, is powerful evidence that the officer’s
reliance was in good faith and deserving of qualified
immunity. See Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th
Cir. 2004). Here, however, the record, as it comes to us,
hardly establishes such a good-faith seeking of legal advice.
Rather, the record is susceptible to the view that the officers
themselves realized the weakness of their case, and there-
fore manipulated the available evidence to mislead the state
prosecutor into authorizing Scott’s arrest.5 This conduct, as
alleged, creates serious factual issues as to whether the
officers reasonably relied on the prosecutor’s advice. On this



4
    (...continued)
       information from—that was called in from citizens of
       Knoxville that law enforcement had received.
R.136, Tab 5 at 32-33.
5
  These circumstances are similar in principle to our cases that
deny qualified immunity to officers who deliberately misrepre-
sent or omit facts in a warrant affidavit. In those cases, officers
will be held to have knowingly violated a plaintiff’s fourth
amendment rights if those officers, in the course of obtaining
a warrant, “had obvious reasons to doubt the accuracy of
the information [they] reported, or failed to inform the judi-
cial officer of facts they knew would negate probable cause.”
Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003);
Neiman v. Keane, 232 F.3d 577, 580 (7th Cir. 2000); cf. Franks v.
Delaware, 438 U.S. 154, 155-56 (1978).
16                                                 No. 04-3614

record, neither Chief Pesci nor Officer Clauge can be entitled
to qualified immunity.6
  “A police officer may not close her or his eyes to facts that
would help clarify the circumstances of an arrest.” BeVier v.
Hucal, 806 F.2d 123, 128 (7th Cir. 1986). As we have held,
“[r]easonable avenues of investigation must be pursued”
especially when, as here, it is unclear who committed the
crime. Id. In the present case, the officers had obtained a
warrant for the search of the Sornbergers’ parents’ com-
puter, which would have allowed the investigators to
confirm the couple’s alibi. Rather than waiting to obtain this
critical information, the officers arrested Scott while the
search of his parents’ home was taking place. On this
record, given that the lynchpin of a probable cause de-
termination was on the verge of being obtained, the officers’
arrest of Scott before reviewing the results of the computer
search appears to have been unreasonably premature.


    2. Teresa’s Arrest
  Teresa’s arrest presents a somewhat different situation.
The parties agree that no probable cause existed to arrest
Teresa until after she confessed to her involvement in the



6
   Officers Sheppard and Riley, by contrast, may not be found
liable for Scott’s arrest. There is nothing in the record to sug-
gest that either of these officers were present at the meeting
with state’s attorney Mangieri. Nor were the officers involved
in the actual arrest of Scott. They therefore lacked both the
knowledge of a false arrest and the opportunity to intervene. See
Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Accordingly,
we must affirm the district court’s determination that neither
of these officers could be held liable for Scott’s arrest.
No. 04-3614                                               17

bank robbery. Instead, the parties dispute whether Teresa
actually was arrested before she confessed. Teresa contends
that, when Officers Sheppard and Riley detained her at
Scott’s parents’ home and subsequently transported her to
the Galesburg police station, she was arrested without
probable cause in violation of the Fourth Amendment. The
defendants take the view that Teresa was not arrested
prior to her confession, and, therefore, probable cause
was not required.
   The district court agreed with the officers, rejecting
Teresa’s claim that her arrest occurred when she was
transported from Scott’s parents’ home to the Galesburg
police station. The court concluded that “Teresa was not
‘seized’ within the meaning of the Fourth Amendment at
any time at issue until she confessed, at which time probable
cause existed” to arrest her. R.144 at 27. The court also
determined that Teresa voluntarily consented to accompany
Officers Sheppard and Riley to Galesburg. Alternatively, the
court held that Officers Sheppard and Riley would be
protected by qualified immunity because a reasonable
officer in their position would not have been on notice that
his conduct violated clearly established law. The court also
held that neither Officer Clauge nor Chief Pesci could be
liable for Teresa’s arrest. The two officers had no role in
Teresa’s transportation to the Galesburg police station.
According to the court, they became involved in Teresa’s
detention only after she had confessed, at which point
probable cause supported a lawful arrest.


           a. defendants Sheppard and Riley
  An arrest occurs when “a reasonable person in the
suspect’s position would have understood the situation to
18                                                No. 04-3614

constitute a restraint on freedom of movement of the degree
which the law associates with formal arrest.” United States
v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999) (internal quotation
marks omitted). As the Supreme Court has explained:
     There is no doubt that at some point in the investigative
     process, police procedures can qualitatively and quanti-
     tatively be so intrusive with respect to a suspect’s
     freedom of movement and privacy interests as to trigger
     the full protection of the Fourth and Fourteenth Amend-
     ments. And our view continues to be that the line is
     crossed when the police, without probable cause or a
     warrant, forcibly remove a person from his home or
     other place in which he is entitled to be and transport
     him to the police station, where he is detained, although
     briefly, for investigative purposes. We adhere to the
     view that such seizures, at least where not under
     judicial supervision, are sufficiently like arrests to
     invoke the traditional rule that arrests may constitution-
     ally be made only on probable cause.
Hayes v. Florida, 470 U.S. 811, 815-16 (1985) (citations
omitted).
  Here, a key factual dispute exists as to whether Officer
Sheppard told Teresa that she “needed” to accompany him
to the Galesburg police station or whether she went volun-
tarily. We do not believe that the district court should have
resolved this factual issue in favor of Officer Sheppard.
Although Teresa responded “Yeah” when asked at a
deposition whether she voluntarily left with the officers,
Officer Sheppard also admitted that he may have told
Teresa that she “needed” to accompany him. Appellants’ Br.
at 40. Resolving inferences in favor of Teresa, as is required
at this stage, a reasonable juror could indeed find that a
No. 04-3614                                                       19

person in Teresa’s position would believe, based on Officer
Sheppard’s need-to-go statement, that she was under arrest.7
See Gardenhire v. Schubert, 205 F.3d 303, 314 (6th Cir. 2000)
(“A police officer’s statement that ‘you need to go’ some-
where carries substantial authoritative weight. We think
very few people could hear such a directive from a police
officer and still think they were free to act otherwise. Once
the police removed the [defendants] from their home to the
police station, the encounter took on an arrest-like nature.”)
(citing Hayes, 470 U.S. at 816).8
  Apart from Teresa’s alleged willingness to accompany the
officers, the district court based its finding that no arrest
occurred primarily on the lack of any threat of force by the
officers. However, physical force is not the hallmark of an
arrest. See Dunaway v. New York, 442 U.S. 200, 212 (1979).
The pertinent facts in Dunaway that led to a finding of arrest
were “that (1) the defendant was taken from a private
dwelling; (2) he was transported unwillingly to the police
station; and (3) he was subjected to custodial interrogation
resulting in a confession.” United States v. Sharpe, 470 U.S.
675, 684 n.4 (1985) (discussing Dunaway, 442 U.S. at 212).
Resolving inferences in favor of Teresa, we conclude that the
circumstances of her arrest implicate all three Dunaway
factors.



7
  Ascertaining the reasonableness of the suspect’s belief that
she is under arrest is typically a question of fact for the jury. See
Posr v. Doherty, 944 F.2d 91, 99 (2d Cir. 1991).
8
  The existence of a triable issue with respect to whether Officers
Sheppard and Riley requested or demanded that
Teresa accompany him also precludes summary judgment on the
district court’s alternative holding that Teresa consented to her
seizure.
20                                              No. 04-3614

  The district court also relied on Teresa’s deposition
testimony that “reveals that she was never accused of a
crime, nor considered a suspect in the robbery.” R.144 at 36.
This characterization ignores, however, Teresa’s deposition
statement that Officer Sheppard told her she was suspected
of a crime prior to her confession. Id. Second, the district
court’s conclusion relied on inferences improperly drawn
from the fact that Sheppard’s questions to Teresa focused on
Scott’s involvement in the robbery. According to the district
court, “Sheppard and Riley’s questioning indicated their
belief that [Teresa] had some knowledge about the robbery
because they believed that Scott was the perpetrator, but
that there is no indication that either Sheppard or Riley
suspected Teresa of participation.” Id. This conclusion
resolved facts in the defendants’ favor that easily could
produce opposite inferences in light of Teresa’s testimony
that Officer Sheppard (1) had questioned her about her
whereabouts during the robbery, and (2) had informed her
that witnesses placed her around the bank. Both factors
would permit a reasonable person to conclude that she was
suspected of a crime.
  Finally, the district court concluded that Teresa did not
become a suspect until she verbally confessed. Yet, at the
hearing on the motion to suppress her confession, the
officers claimed that Teresa received her Miranda warn-
ings before verbally confessing. The administration of
Miranda warnings gave clear indication to Teresa that
she was considered a suspect and was likely under arrest
before probable cause was established. See United States
v. Obasa, 15 F.3d 603, 608 (6th Cir. 1994) (holding that
“[a]lthough giving Miranda warnings to a detainee may
not automatically convert a Terry stop into an arrest, it is
evidence that the nature of the detention has grown more
serious”). The officers cannot claim, on one hand, that
No. 04-3614                                                21

Teresa’s confession was not tainted by a lack of Miranda
warnings and then argue, on the other, that those same
Miranda warnings are not evidence that Teresa was con-
sidered a suspect. The contradiction creates a triable
issue that prevents summary judgment.
   We must conclude, therefore, that genuine issues of fact
preclude summary judgment on the issue of whether Teresa
was under arrest before confessing. There remains a dispute
as to: (1) whether Sheppard told Teresa she “needed” to
accompany the officers; and (2) whether the officers read
Teresa her Miranda rights before she confessed. Assuming,
as we must in the procedural context in which this case
comes to us, that Teresa’s version of the events is accurate,
it cannot be maintained that a person, after being told she
must accompany officers to a police station, then having her
Miranda rights read to her, would “have thought [she] was
sitting in the interview room as a matter of choice, free to
change [her] mind and go home to bed.” Kaupp v. Texas, 538
U.S. 626, 632 (2003).
   Those same triable issues also preclude a determination
that Officers Sheppard and Riley are entitled to qualified
immunity as a matter of law. See White v. City of Markham,
310 F.3d 989, 993 (7th Cir. 2002) (“The threshold inquiry in a
qualified immunity analysis is whether the plain-
tiff’s allegations, if true, establish a constitutional viola-
tion.”). Viewing the disputed facts in a light most favor-
able to Teresa, a reasonable officer would not have be-
lieved that Teresa’s detention and interrogation were
consensual and that their actions were within the bounds of
the Fourth Amendment. Accordingly, the district court
erred in concluding that Officers Sheppard and Riley
were entitled to qualified immunity.
22                                                No. 04-3614

             b. defendants Pesci and Clauge
  Neither Chief Pesci nor Officer Clauge were directly
involved in Teresa’s transportation to the Galesburg
police station. For liability to attach to an officer’s failure
to intervene, that officer must have (1) had reason to
know that a citizen was unjustifiably arrested, and (2) had
a realistic opportunity to intervene to prevent that harm
from occurring. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.
1994).
  Teresa’s brief admits that “Clauge, who was Sheppard
and Riley’s supervisor, emphasized to them that they
should request that Ms. Sornberger come to the police
station voluntarily and that they should take her from the
house only if she agreed.” Appellants’ Br. at 12. Clauge’s
instruction cannot be read as authorizing an arrest. He
therefore had no reason to know that Teresa would ever
be arrested without probable cause. On this record, Chief
Pesci had even less involvement in Teresa’s arrest and
virtually no opportunity to intervene. He had remained
outside of Scott’s parents’ home while the search for the
computer was being executed. Chief Pesci’s only interaction
with Teresa came once Teresa had given her oral confession
at the station house, when, as far as Pesci could tell, she was
under lawful arrest. The district court therefore properly
held that, on the record before it, Chief Pesci and Officer
Clauge could not be found liable for Teresa’s false arrest.


C. Teresa’s Confession
  The district court held that Teresa was collaterally
estopped from bringing a claim based on her confession in
this § 1983 action because the Knox County Court had
determined, at a suppression hearing in the criminal action,
No. 04-3614                                                23

that her confession was voluntary. The district court held
inapplicable the conventional bar on using collateral
estoppel when appeal is impossible in the initial proceeding;
it reasoned that, because the state court’s decision rested on
credibility determinations, the decision had little chance of
being reversed on appeal. Principles of issue preclusion,
therefore, prevented Teresa from relitigating the voluntari-
ness of her confession in this civil suit.
   In order to evaluate the correctness of this ruling, we
first examine the circumstances surrounding the ruling
in the state trial court. At the conclusion of two days of
testimony from Teresa and from Officers Riley and
Sheppard, the Knox County Circuit Court denied Teresa’s
motion to suppress her confession. The court noted, as a
preliminary matter, that Teresa’s suppression motion
came down to a question of credibility. Over the two days
of testimony, Teresa and the officers had presented dramati-
cally different accounts of what had occurred in the inter-
view room at the Galesburg Public Safety Building. The
Knox County Court ultimately refused to credit Teresa’s
testimony. The court reasoned that, by alleging that her
coerced confession was false, Teresa had proved herself
untrustworthy, and having lied once, Teresa could not be
believed when testifying at the suppression hearing.
  Having made this threshold credibility finding, the
Knox County Court resolved the Miranda issue; it stated
simply: “I believe the officers. I do not believe the defen-
dant.” R.111, Ex.15 at 55. The more subtle question of
whether Teresa’s confession was voluntary for purposes of
due process gave the court greater difficulty. The court
found most troubling the consistent testimony that the
officers made certain statements to Teresa regarding her
children’s future. Nevertheless, the court eventually
24                                                   No. 04-3614

found that the statements made before Teresa’s initial,
verbal confession consisted only of permissible appeals to
Teresa’s “priorities” and “system of values.” Id. at 60. In the
court’s view, the threatening references to Teresa’s children
being taken away were not made, if at all, until after she had
verbally confessed. On the issue of whether the later threats
tainted Teresa’s written confession, the court stated simply,
“I am letting in the written statement because the attack is
not sufficient.” Id. at 62.


    1. Collateral Estoppel
  With this background, we now turn to the ruling of the
district court. As we noted earlier, the court determined that
the decision of the Knox County Court on Teresa’s suppres-
sion motion collaterally estopped her from relitigating
whether her confession was Miranda-infirm or involuntary.
The doctrine of collateral estoppel generally bars relitigation
of issues that were litigated fully and decided with finality
in a previous proceeding. Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981); Lee v. City of Peoria, 685 F.2d
196, 199-202 (7th Cir. 1982) (applying Illinois law). Illinois
law,9 however, provides that collateral estoppel is unavail-
able when: (1) “additional evidence” is discovered after the
prior decision; or (2) the party against whom preclusion is
sought was unable to appeal the judgment in the initial
action. Teresa argues that both exceptions apply to her case
and deprive the suppression ruling of preclusive effect. In
this case, we believe that the unavailability of an appeal is
determinative.


9
   Illinois law determines the preclusive effect, if any, of a
judgment rendered by an Illinois court. See 28 U.S.C. § 1738; Rekhi
v. Wildwood Indus., 61 F.3d 1313, 1317 (7th Cir. 1995).
No. 04-3614                                                25

  Teresa relies on People v. Mordican, 356 N.E.2d 71, 73 (Ill.
1976), in which the Supreme Court of Illinois held that
collateral estoppel cannot be asserted against a criminal
defendant who “had no opportunity to obtain a review of
the correctness of the ruling made in his earlier [proceed-
ing].” In Mordican, a criminal defendant was unable to
appeal the denial of his motion to suppress evidence in a
prior trial because the trial had ended in an acquittal. When
the defendant was subsequently tried on a separate criminal
charge stemming from the same events, he again sought to
suppress the same evidence. The trial court denied the
defendant’s motion on the grounds that the issue had been
adjudicated during the first criminal proceeding. The
defendant ultimately was convicted of the charges brought
against him at the second trial. On appeal, the Supreme
Court of Illinois held that acquittal of a criminal defendant
forecloses the application of collateral estoppel in subse-
quent proceedings. Id. at 74. The court reasoned that a
defendant who is acquitted has no opportunity to obtain
appellate review of rulings made by the trial judge during
the course of the trial. Id. Because of this “peculiar circum-
stance,” rulings by the trial judge cannot bind an acquitted
defendant in later proceedings through the doctrine of
collateral estoppel. Id. Recent Illinois decisions demonstrate
the continued vitality of this rule. See, e.g., People v.
Weilmuenster, 670 N.E.2d 802, 808-09 (Ill. App. 1996).
   Whether Mordican applies in the civil context, however,
has not yet been decided by Illinois courts. Language in
Mordican indicates that its holding may indeed be confined
to the criminal context. See id. (“The extent to which the
doctrine of collateral estoppel may be used against a
defendant in a criminal case is, of course, severely lim-
ited.”). Subsequent Illinois cases, however, have hinted in
dicta that the Mordican rule applies with equal force in the
26                                                 No. 04-3614

civil context and bars a civil litigant from using collateral
estoppel against a party who had no chance to appeal. See,
e.g., Morris B. Chapman & Assocs., Ltd. v. Kitzman, 739 N.E.2d
1263 (Ill. 2000) (applying Missouri law); Cirro Wrecking Co.
v. Roppolo, 605 N.E.2d 544, 553 (Ill. 1992) (citing Restatement
(Second) of Judgments § 28(1), which “recognizes an
exception to the application of collateral estoppel where the
party against whom preclusion is sought was unable, as a
matter of law, to appeal the judgment in the initial action”).
  Recognizing its duty to predict how Illinois’ highest
court would decide this case, the district court held that,
“if the Illinois Supreme Court were to consider the facts of
this case, they would not find [that] the inability to appeal
barred application of collateral estoppel principles.” R.144
at 47. In reaching this conclusion, the district court relied
heavily on the Northern District of Illinois’ decision in
Thompson v. Mueller, 976 F. Supp. 762 (N.D. Ill. 1997).
  Thompson held that the absence of appellate review of a
state-court decision finding probable cause to arrest a
defendant was insufficient to prevent the application of
collateral estoppel in the defendant’s subsequent § 1983
action against the arresting officers. In Thompson, the district
court cabined Mordican to the criminal context, and relied
upon the acknowledgment of the United States Supreme
Court that “the availability of appellate review is not always
an essential predicate of collateral estoppel.” Id. at 766
(citing Standefer v. United States, 447 U.S. 10, 23 n.18 (1980)).
Mindful that the doctrine of collateral estoppel is concerned
primarily with whether “the result achieved in the initial
action was substantially correct,” the court in Thompson
focused its inquiry on, whether, under the particular facts of
the case before it, application of collateral estoppel would be
unfair or unjust. Id. The court concluded that Thompson’s
No. 04-3614                                                  27

inability to appeal did not bar the use of collateral estoppel
“because (1) the issue of probable cause was litigated
thoroughly in the state court; (2) the judge’s decision rested
on the credibility determinations of several witnesses; and
(3) the possibility of the decision being reversed on appeal
was, at best, extremely low.” Id.
  Here, the district court considered that the relevant facts
are “practically identical” to the facts in Thompson. R.144
at 51. Reasoning that, because the Knox County Court’s
decision on Teresa’s suppression motion rested on cred-
ibility determinations that are virtually never overturned on
appeal, the result in the initial action was “substantially
correct.” Thompson, 976 F. Supp. at 766. Accordingly, the
district court held that Teresa’s inability to appeal did
not preclude application of collateral estoppel.
   We respectfully decline to adopt the reasoning of the
district court. In our view, the court erred, both in refusing
to extend Mordican to the § 1983 context, and in its applica-
tion of the principles from Thompson. Mordican cited approv-
ingly language from People v. Hopkins, 284 N.E.2d 283, 284
(Ill. 1972), which stressed the limited applicability of
collateral estoppel against a criminal defendant. The
rationale for this limitation, Hopkins explained, is that
    a defendant, unlike the prosecution, is not allowed an
    immediate appeal from an adverse ruling upon a
    motion to suppress. He cannot review that ruling
    until after he has been convicted and sentenced. And for
    a variety of reasons he might not wish to appeal, or as
    in the case of an acquittal at the first trial, he might not
    be able to do so.
Id. As this language indicates, the concerns that limit
application of collateral estoppel in the criminal context
28                                                    No. 04-3614

arise out of problems of appealability for criminal defen-
dants, rather than the nature of subsequent proceedings.
  The situation in Teresa’s case certainly is no different. She
was, at the time of the suppression hearing, a crim-
inal defendant like the defendants in Mordican and Hopkins.
Teresa similarly was limited in her ability to test the correct-
ness of the trial court’s ruling through appellate review.
Because the problem in Mordican was that the criminal
defendant could not appeal the initial ruling, we see no
reason why Mordican would not extend to a criminal
defendant, similarly unable to appeal, merely because she
protests the use of collateral estoppel against her in a
subsequent § 1983 action instead of in a subsequent criminal
proceeding. Therefore, it appears highly likely that the
Supreme Court of Illinois would extend the rule in Mordican
to cover situations like Teresa’s.10
  Collateral estoppel is an equitable doctrine. Jones v. City of
Alton, 757 F.2d 878, 885 (7th Cir. 1985); Talarico v. Dunlap,
685 N.E.2d 325, 328 (Ill. 1997). Even when the technical



10
   Such an extension would bring Illinois into conformity
with other courts that have addressed this issue. Each applied the
approach of the Restatement and refused to allow col-
lateral estoppel in a subsequent civil trial against a criminal
defendant who had been unable to appeal the initial ruling. See,
e.g., Looney v. City of Wilmington, 723 F. Supp. 1025, 1033 (D. Del.
1989) (applying Delaware law); Lombardi v. City of El Cajon, 117
F.3d 1117, 1121-22 (9th Cir. 1997) (applying California law);
AKAK, Corp. v. Commonwealth, 567 S.E.2d 589, 639-40 (Va. App.
2002); see also Restatement (Second) of Judgments § 28(1) (allow-
ing relitigation of an issue if “the party against whom preclusion
is sought could not, as a matter of law, have obtained review of
the judgment in the initial action”).
No. 04-3614                                                 29

conditions of the doctrine are met, collateral estoppel
must not be applied to preclude an issue “unless it is
clear that no unfairness results to the party being estopped.”
Talarico, 685 N.E.2d at 328. True, the Knox County Court’s
suppression ruling relied in large part on credibility deter-
minations. These credibility findings flow, however, from a
line of circular reasoning. The Knox County Court decided
that, because Teresa claimed she was coerced into a false
confession, she established a record of lying to public
officials and therefore could not be trusted to testify truth-
fully at the suppression hearing. This logic unfairly counts
against a defendant an untruth that the defendant now
contends was made because of physical or psychological
threats. Indeed, the Knox County Court’s reasoning would
prohibit, as a practical matter, any involuntary confession
from ever being suppressed on the testimony of the defen-
dant, no matter how strong that testimony otherwise might
be. If a defendant could not be credited at a suppression
hearing due to the admitted falsity of her confession, the
officers’ version of the events would invariably carry the
day. As the Knox County Court pointed out, suppression
motions often turn on whether the court believes the
officers’ or the defendant’s account of the events leading to
confession. The court, however, set up a credibility analysis
that decided the issue before hearing any testimony. In these
circumstances, it would be extremely unfair to hold Teresa
to the unappealable judgment of a court that used unsound
reasoning to resolve credibility. Collateral estoppel therefore
cannot bar relitigation of the voluntariness of Teresa’s
confession.
30                                                   No. 04-3614

     2.     The Merits of Teresa’s Fifth and Fourteenth
            Amendment Claims
  The facts in the record before us certainly do not establish,
as a matter of law, that Teresa’s confession was free of police
coercion. Threats to a suspect’s family or children, even if
implicit, certainly may render confessions involuntary for
purposes of due process. See, e.g., Lynumn v. Illinois, 372 U.S.
528, 533 (1963) (confession coerced when police told a
female suspect that she was in jeopardy of losing welfare
benefits and custody of her children); Rogers v. Richmond,
365 U.S. 534, 543 (1961) (confession coerced when police
threatened to take suspect’s wife into custody if he did not
confess); Spano v. New York, 360 U.S. 315, 323 (1959) (confes-
sion coerced when officer, a close friend of defendant, told
defendant that officer would get in trouble if defendant did
not confess). Moreover, the parties vehemently dispute
which threats Officers Sheppard and Riley actually made to
Teresa and when the officers made those threats. These
issues of fact preclude summary judgment.
   There are similar issues of fact regarding whether Teresa
received Miranda warnings before she confessed. The
defendants contend, nevertheless, that we must affirm the
district court’s Miranda ruling because of Chavez v. Martinez,
538 U.S. 760 (2003), in which the Supreme Court narrowed
the availability of the Fifth Amendment as a basis for civil
liability.11 In Chavez, the § 1983 plaintiff Martinez had made


11
  Chavez left open the possibility that a plaintiff could pursue a
claim for violation of substantive due process in the event of
genuine physical or mental coercion surrounding her confession:
          [A]ny argument for a damages remedy in this case must
          depend not on its Fifth Amendment feature but upon the
                                                    (continued...)
No. 04-3614                                                        31

incriminating statements while in police custody without
receiving Miranda warnings. He never was prosecuted, but
filed a § 1983 action against Chavez, the officer who had
questioned him. In that action, Martinez alleged that Chavez
violated his Fifth Amendment right to be free from self-
incrimination as well as his Fourteenth Amendment sub-
stantive due process right to be free from coercive question-
ing. The Supreme Court, in a plurality opinion, held that the
police officer’s questioning of Martinez without Miranda
warnings did not violate his rights under the Self-Incrimina-
tion Clause of the Fifth Amendment because his compelled
statements had not been used against him in a criminal case.
The plurality reasoned that Miranda “created prophylactic
rules designed to safeguard the core constitutional right
protected by the Self-Incrimination Clause,” id. at 770,
namely that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself,” id. at 766
(citing, with added emphasis, U.S. Const. amend. V). The
phrase “criminal case,” as it is employed in the Self-Incrimi-
nation Clause, requires, at the very least, the initiation of a
legal proceeding, rather than mere police questioning,
before a suspect’s self-incrimination rights are implicated.
Id. at 767 (“Statements compelled by police interrogations of


11
     (...continued)
        particular charge of outrageous conduct by the police,
        extending from their initial encounter with Martinez through
        the questioning by Chavez. That claim, however, if it is to be
        recognized as a constitutional one that may be raised in an
        action under § 1983, must sound in substantive due process.
Chavez v. Martinez, 538 U.S. 760, 779-80 (2003) (Souter, J., joined
by Stevens, Kennedy, Ginsburg & Breyer, JJ.). Teresa’s claim
that her confession was the result of psychological coercion
is therefore unaffected by Chavez.
32                                                     No. 04-3614

course may not be used against a defendant at trial, . . . but
it is not until their use in a criminal case that a violation of
the Self-Incrimination Clause occurs.”).12 Martinez never
was prosecuted. Consequently, the absence of a criminal
case “in which Martinez was compelled to be a ‘witness’
against himself” defeated his claim for damages based on
the Self-Incrimination Clause. Id. at 773.
  After Chavez, therefore, violation of the Miranda safe-
guards cannot provide the basis for § 1983 liability without
use of a suspect’s statements against him in a “criminal


12
    Two other Justices also rejected the self-incrimination claim,
but did so in less absolute terms. They noted a cause of action
based on the Miranda protections may be available, but only if the
Fifth Amendment’s “core guarantee, or the judicial capacity to
protect it, would be placed at some risk in the absence of such
complementary protection.” Chavez v. Martinez, 538 U.S. 760, 778
(2003) (Souter, J., joined by Breyer, J., concurring). They added
that the plaintiff had not made the requisite “powerful showing”
needed to come within this exception, especially since he
“offer[ed] no limiting principle or reason to foresee a stopping
place short of liability in all . . . cases” where Miranda was
violated. Id. at 779. The remaining members of the Court con-
tended, in dissent, that the Self- Incrimination Clause “provides
both assurance that a person will not be compelled to testify
against himself in a criminal proceeding and a continuing right
against government conduct intended to bring about
self-incrimination. . . . The principle extends to forbid policies
which exert official compulsion that might induce a person into
forfeiting his rights under the Clause. . . .” Id. at 791-92 (Kennedy,
J., joined by Stevens & Ginsburg, JJ., dissenting). According to the
dissenters, “[t]he conclusion that the Self-Incrimination Clause is
not violated until the government seeks to use a statement in
some later criminal proceeding strips the Clause of an essential
part of its force and meaning.” Id. at 793.
No. 04-3614                                                   33

case.” The plurality in Chavez declined to define “the precise
moment when a ‘criminal case’ commences.” Id. at 766 (“[I]t
is enough to say that police questioning does not constitute
a ‘case.’ ”). At the very least, Chavez requires “the initiation
of a legal proceeding.” Id. In the paradigmatic Miranda case,
the Fifth Amendment is violated when a criminal defen-
dant’s Miranda-infirm statements are admitted as evidence
against him in the prosecution’s case-in-chief at criminal
trial. Teresa’s self-incrimination claim falls short of this
paradigm; charges were dropped before her case went to
trial. Yet, her “criminal case” advanced significantly farther
than did that of the Chavez plaintiff, who never had criminal
charges filed against him at all. Teresa’s statement, by
contrast, allowed police to develop probable cause sufficient
to charge her and initiate a criminal prosecution. In this
fashion, her allegedly un-warned statements were used
against her in a way perhaps contemplated by the Self-
Incrimination Clause. Teresa’s situation, thus, raises the
intermediate question left unanswered by Chavez: whether
a suspect suffers a violation of her right to be free from self-
incrimination when her un-warned confession is used to
initiate a criminal prosecution against her, but charges are
dropped before that confession can ever be introduced at
trial.13
  This court has not directly addressed this issue, and has
given mixed indication on the scope of the Chavez hold-
ing. In Allison v. Synder, 332 F.3d 1076, 1080 (7th Cir. 2003),
we held that, under Chavez, inmates who make un-


13
  As Justice Souter noted in concurrence, “[t]he question whether
the absence of Miranda warnings may be the basis for a § 1983
action under any circumstances is not before the Court.” Chavez,
538 U.S. at 779 (Souter, J., concurring).
34                                                 No. 04-3614

warned incriminating statements in the course of sex
offender group therapy programs have no damages remedy
available without evidence that those statements were used
against them in a criminal proceeding. In Allison, we made
no attempt to define the manner in which statements must
be used for the self-incrimination right to attach. That the
prisoners, like the Chavez plaintiff, were never prosecuted
based on the un-warned statements was sufficient to deny
relief. This court, in another post-Chavez opinion, recently
noted in dicta:
     We also place little weight on earlier court conclu-
     sions that a failure to give Miranda warnings cannot
     support a claim under § 1983. E.g., Giuffre v. Bissell, 31
     F.3d 1241, 1256 (3d Cir. 1994); Warren v. City of Lincoln,
     864 F.2d 1436, 1442 (8th Cir. 1989). The latter cases were
     decided before the Supreme Court determined in
     Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326,
     147 L. Ed. 2d 405 (2000), that the Miranda warnings
     themselves have constitutional status. Although a
     plurality of the Court expressed the opinion that civil
     remedies continue to be unavailable for Miranda viola-
     tions in Chavez v. Martinez, 538 U.S. 760, 123 S. Ct. 1994,
     155 L. Ed. 2d 984 (2003), the full Court has never taken
     that step.
Jogi v. Voges, 425 F.3d 367, 385 (7th Cir. 2005). This leaves
us with little guidance from our own circuit on whether
Teresa has stated a valid claim for damages based on the
Self-Incrimination Clause.
  There are only two post-Chavez cases from other courts
of appeals that are closely, but not directly, on point. See
Burrell v. Virginia, 395 F.3d 508 (4th Cir. 2005); Renda v. King,
347 F.3d 550 (3d Cir. 2003). In Renda, the police failed to
warn a suspect of his Miranda rights in the course of custo-
No. 04-3614                                                35

dial interrogation. The resulting statements were then used
as a basis for filing criminal charges, which were later
dropped. In the ensuing civil rights action, the Third Circuit
affirmed summary judgment for the officer defendants,
holding that Renda’s constitutional right to be free from
self-incrimination was not violated. The court recognized
that Chavez did not compel this conclusion, as it “leaves
open the issue of when a statement is used at a criminal
proceeding.” Renda, 347 F.3d at 559. The Third Circuit found
itself bound, however, by its pre-Chavez holding in Giuffre v.
Bissell, 31 F.3d 1241 (3d Cir. 1994), which, on materially
identical facts, held that an alleged Miranda violation is not
actionable under § 1983 if the suspect’s statements were
never introduced against him at trial.
   Burrell, from the Fourth Circuit, involved a § 1983 claim
by a motorist who, at the scene of a car accident, was
asked by police to produce documentation of automobile
liability insurance for his vehicle. When Burrell refused,
citing his Fifth Amendment right against self-incrimination,
the police served him with a summons for obstruction of
justice. On appeal from the district court’s dismissal of the
action, the Fourth Circuit held that Burrell’s § 1983 suit was
precluded by Chavez v. Martinez, “regardless of whether the
Fifth Amendment would bar admission in court of insur-
ance information produced under compulsion.” Burrell, 395
F.3d at 512. The court acknowledged that, “[u]nlike in
Chavez, criminal charges were ultimately brought against
Burrell.” Id. (emphasis in original). This distinction did not
change the analysis, however. The court read the Chavez
plurality and Justice Souter’s concurrence as limiting the
self-incrimination protection to the “courtroom use of a
criminal defendant’s compelled, self-incriminating testi-
mony.” Id. (citing, with added emphasis, Chavez, 538 U.S. at
777 (Souter, J., concurring)). Therefore, Burrell holds that a
36                                                  No. 04-3614

§ 1983 suit cannot proceed if the compelled testimony was
never admitted into evidence in court.
  On the facts of Teresa’s case, we are satisfied that her un-
warned statements were used against her in a “criminal
case” and in a manner that implicates the Self-Incrimination
Clause. Before charges against Teresa and her husband
eventually were dropped, a preliminary hearing was held to
determine whether probable cause existed to allow the case
against her to go to trial.14 Teresa’s confession was offered
by the prosecution to support a determination of probable
cause. Her confession was then used to set the amount of
bail for Teresa and Scott. See R.122 ¶ 132. At a subsequent
arraignment on charges stemming from the First Bank
robbery, Teresa’s confession was once again admitted before
she was called upon to plead guilty or not guilty. See id. ¶
134-35; see generally 725 ILCS 5/113-1 (describing procedure
at arraignment). Chavez, of course, did not determine
whether pre-trial proceedings such as these fall within the
scope of a “criminal case” for purposes of the Self-Incrimi-
nation Clause. We know only that, under Chavez, a criminal
prosecution must at least be initiated to implicate a suspect’s
right against self-incrimination. We are also conscious of
language in Chavez suggesting that the Fifth Amendment is,
at bottom, a trial protection. Yet, where, as here, a suspect’s
criminal prosecution was not only initiated, but was



14
   Illinois law requires a probable cause determination to be made
in every felony case before the accused felon may be brought to
trial. That probable cause determination may be made either by
a judge conducting a preliminary hearing or by a grand jury. See
725 ILCS 5/109-3 (preliminary hearing); 725 ILCS 5/112-4 (grand
jury); see generally People v. Mennenga, 551 N.E.2d 1386, 1390-91
(Ill. App. 1990).
No. 04-3614                                                          37

commenced because of her allegedly un-warned confession,
the “criminal case” contemplated by the Self-Incrimination
Clause has begun. That Teresa’s confession was then
introduced as evidence of her guilt at a probable cause
hearing, a bail hearing and an arraignment proceeding
further persuades us that Teresa was “compelled in [a]
criminal case to be a witness against [her]self.” U.S. Const.
amend. V.15 This use of Teresa’s confession, if the confession
is indeed found to have been elicited without Miranda
warnings, allows a suit for damages under § 1983.16


15
   Other Supreme Court precedent confirms that the right to
be free from self-incrimination may attach at pre-trial stages of
the criminal prosecution. See, e.g., Michigan v. Tucker, 417 U.S. 433,
440 (1974) (“Although the constitutional language in which the
privilege is cast might be construed to apply only to situations in
which the prosecution seeks to call a defendant to testify against
himself at his criminal trial, its application has not been so
limited.”); Kastigar v. United States, 406 U.S. 441, 453 (1972)
(noting that the Fifth Amendment privilege’s “sole concern is to
afford protection against being forced to give testimony leading
to the infliction of penalties affixed to . . . criminal acts”); see also
Lefkowitz v. Turley, 414 U.S. 70, 84 (1973) (stating that the Fifth
Amendment privilege allows one “not to answer official ques-
tions put to him in any other proceeding, civil or criminal, formal
or informal, where the answers might incriminate him in future
criminal proceedings”) (emphasis added). We, therefore, refuse
to hold that the right against self-incrimination cannot be violated
unless a confession is introduced in the prosecution’s case-in-
chief at trial before the ultimate finder of fact.
16
  Additionally, we note that Teresa’s confession was used against
her in a second criminal proceeding after the charges of bank
robbery were dropped. On the day that the Sornbergers were
released from jail, state’s attorney Mangieri charged Teresa with
                                                    (continued...)
38                                                   No. 04-3614

  We do not see conflict between our holding today and that
of our sister circuit in Burrell. There, Burrell claimed that his
constitutional rights were violated when the police issued
him an obstruction of justice summons for invoking his
right to remain silent. The Fourth Circuit held that the
issuance of a summons was not a “courtroom use of a
criminal defendant’s compelled, self-incriminat-
ing testimony,” and therefore Burrell failed to state a
claim under § 1983 for violation of his right against self-
incrimination. Burrell, 395 F.3d at 513 (emphasis in original).
Here, by contrast, Teresa’s confession was used at a prelimi-
nary hearing to find probable cause to indict, to arraign and
to set her bail. More than the mere issuance of a summons,
failure to administer Teresa Miranda warnings led to three
distinct “courtroom uses” of her un-warned statements.
Assuming the predicate Miranda violation, she has been
compelled to bear witness against herself.


D. Concealment of Exculpatory Evidence
  The Sornbergers’ complaint further alleged that the
defendants violated the Sornbergers’ rights to due pro-


16
  (...continued)
obstruction of justice for making a false confession. Mangieri
threatened to try Teresa on the bank robbery charge unless she
pleaded guilty to obstruction. Teresa complied and was sen-
tenced to time served; she had already spent 118 days in jail
awaiting trial for bank robbery. Although this plea and sentence
were later vacated, the proceeding in which Teresa entered her
guilty plea certainly qualifies as a use of her allegedly coerced
confession in a criminal case. Accordingly, this alternative use of
Teresa’s confession supports a claim for damages under the Fifth
Amendment.
No. 04-3614                                                 39

cess by generating a police report that falsely described the
circumstances surrounding Teresa’s confession, by lying
to the state prosecutor about the confession, and by perjur-
ing themselves at the suppression hearing. The complaint
also alleged that the officers violated Scott’s right to due
process by withholding facts from the state’s attorney that
cast doubt on the probability that Scott committed the
robbery.
   The district court held that this claim failed because (1)
Teresa’s confession was deemed voluntary by the Knox
County Court; and (2) the facts supporting Scott’s inno-
cence, even if disclosed, would not have disturbed the
finding of probable cause. Thus, in the district court’s
view, the alleged violations lacked any causal relation-
ship to the Sornbergers’ prolonged detention. We shall
now examine this claim in more detail. The Sornbergers’
complaint alleged that Officers Sheppard and Riley failed to
disclose the coercive circumstances surrounding Teresa’s
confession, both in the police report filed by the officers and
in their testimony at the suppression hearing. Considering
itself bound by the facts established by the Knox County
suppression proceeding, the district court determined that
the officers’ police report and testimony could not be false.
Accordingly, in the district court’s view, the evidence did
not establish the causation element necessary to proving the
constitutional torts alleged by Teresa. As we already have
concluded, the findings of the Knox County court are not
entitled to preclusive effect, and the circumstances sur-
rounding Teresa’s confession may indeed have violated
her Fifth and Fourteenth Amendment rights. We must
address, therefore, whether Teresa has stated an other-
wise valid claim of unconstitutional concealment.
  Because the allegations involve active concealment and
failure to disclose on the part of Officers Sheppard and
40                                                   No. 04-3614

Riley, we must treat Teresa’s due process claim as one
predicated on Brady v. Maryland, 373 U.S. 83, 87 (1963).17
Such a claim is viable when the prosecution or police fails to
disclose exculpatory evidence to a criminal defendant before
trial. See Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003).
  The failure of Officers Sheppard and Riley to disclose
the coercive circumstances of Teresa’s confession does
not, however, state a viable Brady claim. Our decision in
Gauger controls such a situation. In that case, Gauger sued
three detectives under § 1983 for allegedly giving the
prosecution a false account of Gauger’s interrogation. The
court found Gauger’s “proposed extension of Brady difficult
even to understand.” Id. The court explained:



17
  In the Sornbergers’ summary judgment briefing, they term
the officers’ concealment of evidence a due process violation. The
Sornbergers do not further articulate the specific due process
right being invoked. Nor does the Sornbergers’ appellate brief
provide any illumination, as it focuses on showing why
the district court was wrong to dismiss the predicate coerced
confession claim. The Sornbergers’ complaint also alleged that the
officers perjured themselves at the suppression hearing. Of
course, were Teresa claiming damages solely based upon the
officers’ perjured testimony, the officers would be entitled to
absolute immunity. See Briscoe v. LaHue, 460 U.S. 325 (1983);
Buckley v. Fitzsimons, 20 F.3d 789 (7th Cir. 1994). However, Teresa
also argues that the officers withheld exculpatory information
and lied to the prosecutor who successfully indicted her and
Scott. “Neither the withholding of exculpatory information nor
the initiation of constitutionally infirm proceedings is protected
by absolute immunity.” Ineco v. City of Chicago, 286 F.3d 994, 1000
(7th Cir. 2002). The fact that Teresa also complained of perjury
does not foreclose her Brady claim.
No. 04-3614                                                    41

      It implies that the state has a duty not merely to
    disclose but also to create truthful exculpatory evidence.
    Indeed the duty to disclose falls out, because Gauger
    knew what he had said at the interrogation. The prob-
    lem was not that evidence useful to him was being
    concealed; the problem was that the detectives were
    giving false evidence. Gauger wants to make every false
    statement by a prosecution witness the basis for a civil
    rights suit, on the theory that by failing to correct the
    statement the prosecution deprived the defendant of
    Brady material, that is, the correction itself.
Id. (citations omitted). Here, Teresa complains that Offi-
cers Sheppard and Riley failed to disclose the circumstances
of her interrogation. However, Teresa already was quite
familiar with those circumstances. Teresa knew herself what
occurred during the interrogation, and the police were
under no Brady obligation to tell her again that they coerced
her into confessing.
  Nor can Brady serve as the basis of a cause of action
against the officers for failing to disclose these circum-
stances to the prosecutor. Brady rights run to the criminal
defendant, not to the prosecution. The Constitution does not
require that police testify truthfully; rather “the constitu-
tional rule is that the defendant is entitled to a trial that will
enable jurors to determine where the truth lies.” Buie v.
McAdory, 341 F.3d 623, 625-26 (7th Cir. 2003). Teresa was not
deprived of evidence held by the police or prosecutor that
would have helped her question the officers’ version of the
events in court. She therefore has not stated a valid Brady
claim.
42                                               No. 04-3614

E. Municipal Liability
  The district court dismissed the City of Galesburg as a
defendant. It held that the City could not be liable under a
theory of respondeat superior, absent a predicate con-
stitutional violation by one of its agents. Because we
have determined that Officers Sheppard and Riley may
be found liable for Teresa’s unlawful arrest and coerced
confession, we must determine whether the City of Gales-
burg is subject to municipal liability for the conduct of its
officers.
  Under Monell v. Department of Social Services, 436 U.S. 658,
690 (1978), municipalities and other local government units
are “among those persons to whom § 1983 applies.” Monell,
however, places a substantial limitation on this liability. A
municipality “cannot be held liable solely because it em-
ploys a tortfeasor—or, in other words, a municipality cannot
be held liable under § 1983 on a respondeat superior
theory.” Id. at 691. Rather, municipal governments may be
sued only when their officers inflict an injury in the execu-
tion of the government’s policy or custom, “whether made
by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy.” Id. at 694.
  The Sornbergers do not point to any express Galesburg
policy that Sheppard and Riley were enforcing when they
violated Teresa’s constitutional rights. Instead, the Sorn-
bergers attempt to show that Sheppard and Riley’s actions
were part of a “wide-spread practice that although not
authorized by written law and express policy, is so per-
manent and well-settled as to constitute a custom or usage
with the force of law.” Calhoun v. Ramsey, 408 F.3d 375,
379 (7th Cir. 2005) (internal quotation marks omitted).
  Establishing Monell liability based on evidence of inad-
equate training or supervision requires proof of “deliberate
No. 04-3614                                                      43

indifference” on the part of the local government. City of
Canton v. Harris, 489 U.S. 378, 388 (1989); Robles v. City of
Fort Wayne, 113 F.3d 732, 735 (7th Cir. 1997) (requiring
deliberate indifference for a finding of municipal liability
under § 1983). This proof can take the form of either (1)
failure to provide adequate training in light of foresee-
able consequences; or (2) failure to act in response to re-
peated complaints of constitutional violations by its officers.
Id. at 390 & n.10; see also, e.g., Robles, 113 F.3d at 735 (indicat-
ing that failure to act after learning of pattern of violations
would be deliberately indifferent).
  Here, Teresa’s proferred evidence suffices to create triable
issues with respect to both forms of deliberate indifference.
Teresa first cites evidence that Galesburg had a policy of
coercing confessions out of female suspects by threatening
to have DCFS take away their children. For support, Teresa
offers the deposition testimony of criminologist Paul
Palumbo, who “reviewed the [Galesburg Police Depart-
ment’s] practices and policies and created an expert report.”
R.122 ¶ 152. Palumbo concluded, based on his review of
complaints lodged against Galesburg, that the Galesburg
Police Department “has been deliberately indifferent to a
pattern of use of coercive threats, including threats to
misuse DCFS, by its officers.” Id. ¶ 155.F. Teresa also relies
upon the deposition testimony of Officer Riley in which he
admits that, in his understanding, telling a person in
Teresa’s situation, “you need to come with me to the police
department” is consistent with “policies and practices of the
Galesburg police department.” Id., Ex.38 at 141. This
evidence gives rise to triable issues with respect to
Galesburg’s municipal liability on theories of both failure to
train and refusing to correct complained-of behavior. On
this record, summary judgment dismissing the City of
Galesburg was therefore improper.
44                                                  No. 04-3614

F. The Sornbergers’ Children’s Claims of Intentional
   Infliction of Emotional Distress
  The district court dismissed the Sornbergers’ pendant
state law claim for intentional infliction of emotional
distress brought on behalf of their children. The court
held that the Sornbergers had not offered any evidence
that the children suffered the “severe emotional distress”
needed to make out their claim under Illinois law. The
district court considered the affidavits from family, educa-
tors and the children themselves, and concluded that the
“drop in grades and poor attitude” described in those
affidavits could not amount to severe emotional distress.
R.144 at 55.
   The tort of intentional infliction of emotional distress
requires proof of four elements: (1) extreme and outrageous
conduct; (2) intent or recklessness to cause emotional
distress; (3) severe or extreme emotional distress suffered by
the plaintiff; and (4) actual and proximate causation of the
emotional distress by defendant’s outrageous conduct. See
Pub. Fin. Corp. v. Davis, 360 N.E.2d 765, 767-68 (Ill. 1976).
This case does not present an occasion to explore all of these
requirements in depth. It is sufficient to note that, in Illinois,
“emotional distress alone is not sufficient to give rise to a
cause of action. The emotional distress must be severe.” Id.
at 767. Although perhaps caused by their parents’ wrongful
incarceration, the Sornbergers’ children’s drop in grades and
attitude problems are not evidence of the type of severe
distress, unendurable by a reasonable person, that is
actionable under Illinois law. See Kleidon v. Rizza Chevrolet,
Inc., 527 N.E.2d 374, 377 (Ill. App. Ct. 1988) (“Although
fright, horror, grief, shame, humiliation, worry, etc. may fall
within the ambit of the term ‘emotional distress,’ these
mental conditions alone are not actionable.”).
No. 04-3614                                                 45

  We therefore see no infirmity in the judgment of the
district court. Its decision granting summary judgment
on the children’s claims was correct.


                         Conclusion
  For the foregoing reasons, we affirm in part and reverse
and remand in part the judgment of the district court. We
affirm the judgment of the district court with respect to
the Sornbergers’ concealment of evidence claim and the
children’s claims for intentional infliction of emotional
distress. With respect to Scott’s claim for unlawful arrest, we
affirm the district court’s determination that Officers
Sheppard and Riley cannot be found liable, but we reverse
the entry of summary judgment in favor of Chief Pesci and
Officer Clauge. Regarding Teresa’s claim for false arrest, we
affirm the determination of the district court that neither
Chief Pesci nor Officer Clauge may be held liable, but we
reverse and remand with respect to Officers Sheppard and
Riley. On Teresa’s claims related to her involuntary confes-
sion, we reverse the judgment of the district court and
remand the case for further proceedings consistent with this
opinion. We also reverse and remand the district court’s
determination that Galesburg could not be found liable on
a theory of municipal liability for Teresa’s claims. We also
direct that on remand this case be reassigned to a different
judge. See 7th Cir. R. 36. The parties shall bear their own
costs in this court.
                                        AFFIRMED in part,
                           REVERSED and REMANDED in part
46                                           No. 04-3614

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—1-20-06
