In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2395

Joseph Ienco,

Plaintiff-Appellant,

v.

City of Chicago, a municipal corporation,
P.O. Kenneth Angarone, individually
and in his official capacity as a member
of the Chicago Police Department, and
P.O. Thomas McGann, individually and
in his official capacity as a member
of the Chicago Police Department,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 3831--Ruben Castillo, Judge.

Argued February 13, 2002--Decided April 12, 2002


  Before Coffey, Manion, and Williams,
Circuit Judges.

  Williams, Circuit Judge. Joseph Ienco
was convicted of various federal weapons
and extortion charges in April 1995.
After raising several successful
constitutional challenges to the manner
of his arrest, his conviction was
overturned and the indictment was
dismissed. Seeking compensation for what
he believed to be a wrongful prosecution
caused by the actions of defendants City
of Chicago ("the City") and two City
police officers, Ienco brought an action
under 42 U.S.C. sec. 1983. The district
court, in granting summary judgment for
defendants, concluded that Ienco’s state
and federal malicious prosecution claims
failed on the merits as a matter of law,
because he could not prove that the
defendants denied his substantive due
process rights. Ienco appeals. During the
pendency of his appeal, we decided
Newsome v. McCabe, 256 F.3d 747 (7th Cir.
2001), which held that federal malicious
prosecution claims should not be examined
under a theory of substantive due
process, but must instead be analyzed
under the due process clause directly. In
light of Newsome, we reverse judgment as
to the individual officers but affirm
judgment as to the City.

I.   BACKGROUND

A.   Facts

  Joseph Ienco operated as a real estate
broker and rent collector, along with his
associate Gregory Iovine. On the side,
Ienco doubled as a debt collection
enforcer. In August 1994, Ienco and
Iovine were sent to collect payment from
a Chicago businessman, Jerome Greenberg,
who apparently owed a debt to Ienco’s
boss, a clothing importer. Ienco and
Iovine traveled to Chicago and secured a
hotel room and rental car. Shortly
thereafter, they paid a visit to
Greenberg at his Chicago office, where
they talked tough with Greenberg about
the money that he owed to Ienco’s boss.
Ienco and Iovine left, intending to
return to Greenberg’s office to engage in
more aggressively threatening behavior,
primarily with the aid of firearms and
explosives.

  When Ienco and Iovine returned to
Greenberg’s building, Greenberg saw them
and called the police. Defendant Chicago
police officers Kenneth Angarone and
Thomas McGann soon arrived at the scene.
What happened next is the source of much
dispute. In brief, Ienco claimed that the
officers conducted an unlawful search and
seizure. The officers claimed that they
received consent for all search and
seizure activity. What is not in dispute
is that the search and seizure of Ienco
and his associate began a chain of events
that led the officers to discover that
Ienco and Iovine’s rental vehicle
contained a variety of dangerous weapons.
Acting with Iovine’s tacit approval,
government agents also discovered more
incriminating evidence in Ienco and
Iovine’s hotel room.

B.   District Court Procedural History

  Ienco was charged with various federal
crimes regarding his cache of illegal
weapons and explosives and his attempts
at extortion. As one might expect, he
moved to suppress the physical evidence
seized following his arrest, arguing that
it was the product of an illegal search
and seizure. At trial, these issues were
initially discussed at length in a
suppression hearing before Judge Duff.
Judge Duff denied the motion to suppress,
finding that the testimony of Officer
Angarone was "complete, consistent,
informed, careful, [and] professional."
As a result of the denial of the motion
to suppress, Iovine became a witness
against Ienco--who was promptly convicted
at trial. Officer Angarone testified at
the suppression hearing and at trial.
Officer McGann offered a stipulation for
the suppression hearing and proffered
testimony that was not introduced at
trial. Ienco was sentenced to 425 months
in prison, and he appealed.

  In United States v. Ienco, 92 F.3d 564
(7th Cir. 1996) ("Ienco I"), we reversed
and remanded, finding that the district
court committed several prejudicial
errors, which required a new suppression
hearing and trial. Pursuant to Circuit
Rule 36, we assigned the matter to Judge
Coar.

  Judge Coar conducted a thorough review
of the record on the motion to suppress.
Both officers testified at the new
suppression hearing. After weighing all
available information, Judge Coar found
numerous inconsistencies in the officers’
stories, concluding that "[i]n short,
Angarone and McGann lied."/1
Appropriately, he suppressed the
evidence. The government appealed./2

  We affirmed. In United States v. Ienco,
182 F.3d 517 (7th Cir. 1999) ("Ienco
III"), we found that suppression of all
physical evidence was warranted, because
the officers lacked reasonable suspicion
for a Terry stop and also unlawfully
arrested Ienco. See, e.g., Terry v. Ohio,
392 U.S. 1, 21-22 (1968). We did not
extensively address Judge Coar’s factual
findings that the officers lied. However,
we did note that the government did not
appeal Judge Coar’s findings of fact as
to what actually occurred, effectively
conceding that the officers’ testimony
was not to be believed. See Ienco III,
182 F.3d at 524, n. 4.

  After our decision in Ienco III, the
government dismissed the indictment.
Shortly thereafter, Ienco brought
thecurrent action. Although Ienco
initially alleged a host of
constitutional violations, he eventually
focused on a single issue: whether the
defendants were liable under a malicious
prosecution theory pursuant to Illinois
state and federal law.

  The district court, applying our
precedent, concluded on summary judgment
that the undisputed material facts in
this case did not permit Ienco to pursue
a malicious prosecution theory against
either the officers or the City. The
district court correctly found that Ienco
failed to prove that the proceedings were
terminated in a manner indicative of his
innocence, as required by state law. See
Joiner v. Benton Community Bank, 81
Ill.2d 40, 45 (1980). Since it was
settled that a valid state claim was a
necessary prerequisite for a Section 1983
claim of malicious prosecution, the
district court held that the resolution
of the state law claim resolved Ienco’s
federal claims as well. See Cervantes v.
Jones, 188 F.3d 805, 809 (7th Cir. 1999);
Washington v. Summerville, 127 F.3d 552,
557 (7th Cir. 1997). Because Ienco’s
Section 1983 claim was thus entirely
foreclosed, summary judgment was entered
for the defendants. This appeal followed.

II.   ANALYSIS

  We review the district court’s decision
granting summary judgment de novo. Grube
v. Lau Indus., Inc., 257 F.3d 723, 727
(7th Cir. 2001). As we must, we review
the evidence in the light most favorable
to Ienco as the nonmoving party, and we
make all reasonable and justifiable
inferences in his favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).

A. Newsome and Ienco’s Malicious
Prosecution Claim

  The standards for a successful Section
1983 action against local police officers
or a municipality are well known. To
prove the officers’ liability, Ienco must
show that (1) he was deprived of a
federal right and (2) that the
deprivation was imposed upon him by one
or more persons acting under color of
state law. See Gomez v. Toledo, 446 U.S.
635, 640 (1980). To establish liability
for the City of Chicago, Ienco must prove
that: (1) he suffered a deprivation of a
federal right; (2) as a result of either
an express municipal policy, widespread
custom, or deliberate act of a decision-
maker with final policy-making authority
for the City; which (3) was the proximate
cause of his injury. See Monell v. New
York City Department of Social Services,
436 U.S. 658, 690-91 (1978); Frake v.
City of Chicago, 210 F.3d 779, 781 (7th
Cir. 2000).

  At the outset, there is much agreement
about Ienco’s claims before us. First,
all parties agree that the state law
claims were properly decided by the
district court. This is clear, because
Ienco cannot meet his burden of proving
under Illinois law that the criminal
proceedings terminated in a manner
indicative of his innocence. Likewise,
the parties agree that our intervening
decision in Newsome v. McCabe, 256 F.3d
747 (7th Cir. 2001), discussed below, ef
fectively bars Ienco’s malicious
prosecution claim as presented to the
district court on summary judgment.
Therefore, the principal question
remaining is whether Ienco’s allegations,
coupled with our intervening decision in
Newsome, provide Ienco with opportunity
to pursue a constitutional remedy
sufficient to defeat summary judgment. As
we explain below, we conclude that such a
remedy exists. We must also address
whether, at this stage, the officers are
entitled to absolute or qualified
immunity. As we also explain below, we
find that they are not.

  The unique procedural posture of this
case requires some elaboration. As the
law existed at the time this case was
filed, the district court’s disposition
of the state law malicious prosecution
claim would have ended the analysis, and
summary judgment would have been properly
awarded to the defendants. However, after
the district court granted summary
judgment in favor of the officers, we
decided Newsome./3

  In Newsome, we withdrew dicta in four of
our previous opinions/4--which had each
been understood to permit Section 1983
malicious prosecution claims but bar
similar claims asserting that defendants’
actions violated due process rights.
Newsome clarified the proper analysis, by
holding that Section 1983 provides a
remedy for certain forms of trial-based
government misconduct based on violations
of due process--not claims of malicious
prosecution. Specifically, we held that
"claims of malicious prosecution should
be analyzed not under the substantive due
process approach [embodied by the
malicious prosecution formula], but under
the language of the Constitution itself."
Newsome, 256 F.3d at 751. Newsome teaches
that, under these circumstances, the
plaintiff must allege that the officers
withheld information or evidence
necessary for the fair and impartial
trial guaranteed by the U.S.
Constitution. Ultimately, we held that
Newsome’s constitutional claim of
malicious prosecution failed as a matter
of law. Nonetheless, we recognized that
Newsome did have a federal due process
claim--that taking the facts as alleged
"he did not receive a fair trial if the
prosecutors withheld material exculpatory
details." Newsome, 256 F.3d at 752.

  Because our decisions prior to Newsome
had been reasonably read to foreclose a
due process action under facts similar to
those in this case, we did not penalize
Newsome for failing to convincingly argue
such a cause of action at summary
judgment. Similarly, under the facts of
this case and the law at the time, Ienco
had only one valid constitutional claim
to pursue--malicious prosecution./5
After Newsome, Ienco still has only one
timely constitutional claim to pursue--
but it is for a violation of his due
process rights under the 14th Amendment.
Because Newsome was an intervening change
in the law that benefits Ienco, he is
entitled to take advantage of it on
remand. See, e.g., Molnar v. Booth, 229
F.3d 593, 599 (7th Cir. 2000). On remand,
Ienco should be permitted to amend his
complaint to include allegations relevant
to a viable due process claim under
Newsome.

B. Officers’ Defenses--Waiver and
Immunity

  Notwithstanding our disposition of
Ienco’s constitutional remedy, the
defendant officers contend that summary
judgment was appropriate for three
additional reasons, because: (1) Ienco
failed to present a due process argument
to the court below; (2) the officers are
entitled to absolute testimonial
immunity; and (3) the officers’ conduct
was not explicitly proscribed by our
previous opinions./6 We reject each of
these contentions in turn.

  1.   Waiver of due process claim

  Although the officers contend that Ienco
did not properly raise his due process
claim, we disagree. First, Ienco’s
complaint was sufficiently detailed to
put the defendants on notice of his due
process claim, and he explicitly alleged
that "the acts complained of deprived
plaintiff of his right . . . not to be
deprived of liberty without due process
of law." Complt. at 98. The defendants’
response and motion to dismiss explicitly
recognized Ienco’s due process claim,
because they responded that "plaintiff
cannot base his claim against City upon
allegations of a due process violation."
City resp. at 7.

  Further, as the district court
recognized in its detailed and thorough
opinion, it would have been a futile
effort for Ienco to seriously pursue a
due process claim prior to Newsome./7
To that end, after the initial stages of
this case were heard before the district
court, Ienco conceded that Smart v. Board
of Trustees v. Univ. of Illinois, 34 F.3d
432 (7th Cir. 1994) effectively
prohibited a malicious prosecution
claimant from proceeding under the due
process clause directly--a path that we
explicitly set out for the first time in
Newsome. See Smart, 34 F.3d at 434
(holding that a malicious prosecution
claimant’s "only constitutional remedy is
under the Fourth Amendment (as made
applicable to the states by the
Fourteenth) and not under the due process
clause directly"). Under these
circumstances, we decline to hold that
Ienco waived his due process claim.


  2.   Absolute Immunity

  Next, the officers claim that they are
entitled to absolute immunity because
their alleged perjury is protected as a
matter of law--both before and during
Ienco’s criminal trial proceedings. See
Briscoe v. LaHue, 460 U.S. 325 (1983).
Ienco contends that this view of the case
is too narrow: he alleges that the
officers actively withheld testimony and
evidence--thus placing their conduct
outside of the safety of trial-based
immunity. We agree with the officers’
general statement of law. Nonetheless, as
Ienco properly contends, our inquiry does
not end there.

  If Ienco were merely claiming damages
based upon the officers’ perjured
testimony, the officers would be entitled
to absolute immunity. See Curtis v.
Bembenek, 48 F.3d 281, 285 (7th Cir.
1995). However, Ienco’s claims are not
based upon the officers’ perjured
testimony. Instead, he argues that the
officers withheld exculpatory information
and lied to the federal prosecutors who
successfully indicted him. Neither the
withholding of exculpatory information
nor the initiation of constitutionally
infirm criminal proceedings is protected
by absolute immunity. See, e.g., Brady v.
Maryland, 373 U.S. 83 (1963); Jones v.
City of Chicago, 856 F.2d 985 (7th Cir.
1988)./8 Therefore, no absolute
testimonial immunity attaches to the
actions of the officers outside of trial,
and they are proper defendants in this
action./9

  3.   Qualified Immunity

  Finally, there is the familiar matter of
qualified immunity. To determine if
immunity attaches to the actions of the
officers, we undertake the two-part
qualified immunity test described most
recently in Saucier v. Katz, 533 U.S. 194
(2001). As Saucier teaches, first we ask
whether Ienco has made out a violation of
a constitutional right. Second, we ask
whether that right was clearly
established at the time that the disputed
conduct took place.

  As to the first prong of Saucier, we
note that Judge Coar’s meticulous and
unchallenged factual findings demonstrate
that the officers engaged in conduct that
violated the Fourth Amendment and could
also have violated Ienco’s 14th Amendment
due process rights. See Jones v. City of
Chicago, 856 F.2d at 994 (noting "at some
point after a person is arrested, the
question whether his continued
confinement or prosecution is
unconstitutional passes over from the
Fourth Amendment to the due process
clause"). Ienco’s Fourth Amendment claims
expired two years after his arrest. See
Newsome, 256 F.3d at 749. Accordingly,
his due process claims are limited to the
officers’ actions (or non-actions) that
occurred following his arrest and only to
those actions that were not protected by
testimonial immunity. As to Saucier’s
second prong, if Ienco’s allegations are
proved, the officers’ conduct violated
clearly established federal law which was
known or should have been known by a
reasonable officer in 1995. See, e.g.,
Jones v. City of Chicago, 856 F.2d at
992. Therefore, in order to determine if
the officers are entitled to qualified
immunity, we remand this fact-intensive
issue to the district court to determine
if the officers engaged in conduct that
violated Ienco’s due process rights.

C.   City’s Liability

  Given our reversal of summary judgment
as to the officers, Ienco contends that
we must similarly reverse the district
court’s judgment in favor of the City. He
is mistaken. In order to establish
municipal liability under Section 1983,
the plaintiff must prove that a "custom
or policy of the City was a cause of the
plaintiff’s injury." Jones v. City of
Chicago, 856 F.2d at 995; see also
Cornfield by Lewis v. Consolidated High
School Dist. No. 230, 991 F.2d 1316 (7th
Cir. 1993).

  True, Ienco’s complaint made bare-bones
allegations about the City’s customs and
policies--in general. However, Ienco
introduced no material evidence at
summary judgment that Officers Angarone
or McGann were acting pursuant to an
official custom or policy of the City of
Chicago. We also note that nowhere has
Ienco suggested that the actions of
Officers Angarone or McGann extended
beyond their role in his particular case.
See Williams v. Heavener, 217 F.3d 529,
532 (7th Cir. 2000) ("Ordinarily, one
incident is not sufficient to establish a
custom that can give rise to Monell
liability.") Therefore, we affirm
judgment as to the City.

III.   CONCLUSION

  For the foregoing reasons, we AFFIRM the
judgment of the district court as to the
City of Chicago, and REVERSE the judgment
of the district court as to Officers
Angarone and McGann and REMAND the case
for further proceedings.

FOOTNOTES
/1 In the criminal case, the City chose not to
dispute Judge Coar’s findings of fact on appeal.
Likewise, in this case, the government’s admis-
sions, both for summary judgment and at oral
argument, leave us with no doubt that at least
some portion of the officers’ testimony was
fabricated.

/2 Although we entered an intervening opinion on
certain evidentiary matters, United States v.
Ienco, 126 F.3d 1016 (7th Cir. 1997) ("Ienco
II"), those matters were ultimately resolved by
the final appeal.

/3 Newsome explicitly rejected portions of four of
our recent opinions. As such, the District Court
should not be faulted for following the law as we
had previously explained it. See Reed v. City of
Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996)
(noting that the question of which constitutional
amendment was implicated in a Section 1983 mali-
cious prosecution claim was still "somewhat
unclear").

/4 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). Our decisions in
each of those cases attempted to decipher the
Supreme Court’s opinion in Albright v. Oliver,
510 U.S. 266 (1994), a subject addressed at
length in Newsome, 256 F.3d at 750-51.

/5 Our district courts consistently interpreted our
opinions prior to Newsome in accordance with
Ienco’s strategy in the district court below.
See, e.g., Ewing v. O’Brien, 60 F.Supp.2d 813,
817 (N.D. Ill. 1999) ("no court has yet agreed
with the notion that reconciling Albright with
Seventh Circuit precedent forecloses a malicious
prosecution claim under sec.1983").

/6 It is not seriously disputed that Ienco’s due
process claim arose only when proceedings were
terminated in his favor. As such, the timeliness
of his claim is not at issue. See Sneed v.
Rybicki, 146 F.3d 478 (7th Cir. 1998).

/7 See Memorandum of Summary Judgment, fn. 1.

/8 Contrary to counsel’s argument before us, the
concerns raised in Buckley v. Fitzsimmons, 20
F.3d 789 (7th Cir. 1994), are not implicated
here. Unlike the facts in Buckley, Ienco alleges
that the officers misled Ienco as well as the
prosecutors and the Federal Bureau of Investiga-
tion. Such conduct is not protected by absolute
immunity.
/9 Because plaintiff’s claims ultimately rest in
part on conduct that occurred before and after
trial, we need not decide at this point whether
and to what extent the complaining witness excep-
tion applies. The district court is best equipped
to handle this fact-intensive issue. See Cervan-
tes v. Jones, 188 F.3d 805, 809-10 (7th Cir.
1999) (discussing police officer immunity when
officers act as complaining witnesses at trial).
