In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1195
NATHSON FIELDS,
Plaintiff‐Appellee,
v.
LAWRENCE WHARRIE and DAVID KELLEY,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 1168 — Matthew F. Kennelly, Judge.
____________________
ARGUED NOVEMBER 1, 2013 — DECIDED JANUARY 23, 2014
____________________
Before POSNER, FLAUM, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Before us are appeals by two Illi‐
nois prosecutors, Wharrie and Kelley, who claim absolute
immunity from being sued by Nathson Fields under 42
U.S.C. § 1983. Appeals from denial of immunity, though in‐
terlocutory because the case against them remains pending
in the district court, are immediately appealable provided
that, as in this case, the claim (in this case claims) of immuni‐
2 No. 13‐1195
ty depends on an issue of law rather than one of fact. Mitch‐
ell v. Forsyth, 472 U.S. 511, 527–30 (1985).
Fields’ suit charges the defendants with depriving him of
liberty in violation of the Fourteenth Amendment’s due pro‐
cess clause and committing torts of malicious prosecution,
intentional infliction of emotional distress, and conspiracy,
in violation of Illinois law. Specifically he accuses the de‐
fendants of having coerced witnesses to give testimony that
the defendants (as well as the witnesses) knew to be false,
resulting in Fields’ conviction of two murders and his im‐
prisonment for 17 years until he was acquitted in a retrial; he
later received a certificate of innocence from the court in
which he had been tried. 735 ILCS 5/2‐702.
This is the defendants’ second round of appeals. Our de‐
cision in round one sets forth the factual details relating to
Fields’ claims, 672 F.3d 505, 508–09 (7th Cir. 2012); we
needn’t repeat them. Fields accuses Wharrie of two separate
acts (one in 1985, the other in 1998) of coercing false testimo‐
ny from witnesses, and Kelley of similar coercion in 1998.
We should clarify the terminology used by Fields to describe
his claims. He uses “coerced,” “fabricated,” and “false” tes‐
timony interchangeably to mean testimony procured by a
prosecutor who knows it’s false. The use of the three terms
to denote the same conduct is confusing. For they mean
three different things. Coerced testimony is testimony that a
witness is forced by improper means to give; the testimony
may be true or false. Fabricated testimony is testimony that
is made up; it is invariably false. False testimony is the
equivalent; it is testimony known to be untrue by the wit‐
ness and by whoever cajoled or coerced the witness to give
No. 13‐1195 3
it. Much testimony is inaccurate, but not deliberately so and
therefore not false or fabricated as we are using these words.
Originally the district court had dismissed, on the
ground of absolute prosecutorial immunity, only the federal
claim against Wharrie that was based on his alleged miscon‐
duct in 1985. Fields did not appeal, but the prosecutors did,
challenging the district court’s refusal to dismiss the other
claims. Our decision in that first appellate round ordered the
dismissal of the remaining federal claims against both de‐
fendants on grounds of absolute prosecutorial immunity.
672 F.3d at 519. The state law claims, also a subject of the
prosecutors’ appeal, remained in the case. But we didn’t dis‐
cuss them, because we expected that with the federal claims
dismissed the district judge would relinquish jurisdiction
over the state law claims; for they were supplemental claims,
which normally are dismissed when the federal claims to
which they are supplemental drop out of the case before tri‐
al. See 28 U.S.C. § 1367(c)(3); Brazinski v. Amoco Petroleum
Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993); Musson Theat‐
rical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254–55 (6th
Cir. 1996); Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168,
1177 (1st Cir. 1995). Indeed we suggested he do that. 672
F.3d at 518–19.
So the case was still alive in the district court, if barely,
when unexpectedly the district judge granted the plaintiff’s
motion to reconsider the dismissal of one of his federal
claims—Wharrie’s alleged fabrication of testimony by a wit‐
ness during the investigation in 1985 that led to Fields’ in‐
dictment and trial—in light of our intervening decision in
Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012). The
judge also decided to retain supplemental jurisdiction of
4 No. 13‐1195
several of Fields’ state law claims. By thus partially stripping
the defendants of absolute prosecutorial immunity, the
judge’s rulings precipitated this, the defendants’ second ap‐
peal.
The claim that the district judge reinstated against Whar‐
rie is the one concerning Wharrie’s investigation of Fields in
1985. Prosecutors, like judges, enjoy absolute immunity from
federal tort liability, whether common law or constitutional,
because of “concern that harassment by unfounded litigation
would cause a deflection of the prosecutor’s energies from
his public duties, and the possibility that he would shade his
decisions instead of exercising the independence of judg‐
ment required by his public trust.” Imbler v. Pachtman, 424
U.S. 409, 423 (1976); see also Gregoire v. Biddle, 177 F.2d 579,
581 (2d Cir. 1949) (L. Hand, J.). But the absolute immunity is
only for acts they commit within the scope of their employ‐
ment as prosecutors. Buckley v. Fitzsimmons, 509 U.S. 259,
273–76 (1993); Thomas v. City of Peoria, 580 F.3d 633, 638–39
(7th Cir. 2009); Pinaud v. County of Suffolk, 52 F.3d 1139, 1147
(2d Cir. 1995). Often their employment duties go beyond the
strictly prosecutorial to include investigation, and when they
do nonprosecutorial work they lose their absolute immunity
and have only the immunity, called “qualified,” that other
investigators enjoy when engaged in such work. Buckley v.
Fitzsimmons, supra, 509 U.S. at 275–76. Qualified immunity
“protects government officials ‘from liability for civil dam‐
ages insofar as their conduct does not violate clearly estab‐
lished statutory or constitutional rights of which a reasona‐
ble person would have known.’ Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).” Messerschmidt v. Millender, 132 S. Ct. 1235, 1244
(2012).
No. 13‐1195 5
Fields was not arrested until June 1985. Wharrie’s alleged
procurement of false statements from a prospective witness
in Fields’ forthcoming trial had taken place a month earlier.
The trial (the first of Fields’ two trials) took place a year lat‐
er. Wharrie was one of the prosecutors at that trial. Though
as we said a prosecutor’s absolute immunity is limited to the
performance of his prosecutorial duties, and not to other du‐
ties to which he might be assigned by his superiors or per‐
form on his own initiative, such as investigating a crime be‐
fore an arrest or indictment, Wharrie argues that he is insu‐
lated from liability for his investigative work by our decision
in Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994). The
plaintiff in that case, which like this one was a malicious
prosecution suit against prosecutors, claimed that at the in‐
vestigative stage of the criminal case against the plaintiff the
prosecutors had coerced witnesses to testify against him. We
held that he could not base a legal claim on those acts be‐
cause until the evidence obtained by the improper acts was
introduced at his trial he had not been injured and therefore
no tort had been committed. “Events not themselves sup‐
porting recovery under § 1983 do not become actionable be‐
cause they lead to injurious acts for which the defendants
possess absolute immunity,” id. at 796—namely presenting
the coerced evidence at trial. Presenting evidence at trial is a
core prosecutorial function, protected by absolute prosecuto‐
rial immunity and therefore an insuperable bar to an award
of damages in a suit for malicious prosecution against the
prosecutor.
The analysis in our Buckley decision thus rests on the
principle that there is no tort without an actionable injury
caused by the defendant’s wrongful act, 20 F.3d at 796. That
is indeed the law. See, e.g., Jackson v. Pollion, 733 F.3d 786,
6 No. 13‐1195
790 (7th Cir. 2013). But the act that causes an injury need not
be simultaneous with the injury (indeed it will never be ex‐
actly simultaneous) for the actor to be liable. Think of prod‐
ucts liability. The defect that caused a pipe to burst and flood
your home may have been present when the pipe was man‐
ufactured years earlier. The manufacturer would be liable
despite the lapse of time. The statute of limitations would
not have begun to run until the pipe burst and caused dam‐
age (though if there were a statute of repose, the deadline
created by that statute may have passed). It may seem diffi‐
cult to understand why a prosecutor who, acting in an inves‐
tigative role before judicial proceedings against a criminal
defendant began, coerced a witness or fabricated testimony,
intending that it be used against the defendant and knowing
that it would be used against him, should be excused from
liability just because the defendant was not harmed until the
witness testified and, as a result, the defendant was convict‐
ed and sentenced. He who creates the defect is responsible
for the injury that the defect foreseeably causes later. Nor is
the only harm that resulting from the conviction and the sen‐
tence. In the present case, as in our recent decision in Julian
v. Hanna, 732 F.3d 842, 847 (7th Cir. 2013), the fabrication of
evidence harmed the defendant before and not just during
the trial, because it was used to help indict him.
But consider a case in which a prosecutor, whom we’ll
call A, acting in a purely investigative role, fabricates evi‐
dence against a suspect, but the prosecution of the suspect is
handled by a different prosecutor, B, who though knowing
that the evidence was fabricated decides to use it. And sup‐
pose A has second thoughts about what he did, and tells B
not to use the evidence. But B goes ahead and uses it. It can
be argued that A should not be regarded as having caused
No. 13‐1195 7
the use of the evidence at trial. Cf. Whitlock v. Brueggemann,
supra, 682 F.3d at 583–84. B is protected from suit by his ab‐
solute prosecutorial immunity, thus leaving the victim of the
fabricated evidence without a complete damages remedy.
He would have a partial remedy, against A, if A’s fabrication
had inflicted harm against him before his trial, as by causing
him to be indicted, as in Julian v. Hanna, supra.
But this is not such a case because Wharrie, the alleged
fabricator of evidence against Fields, was also one of his
prosecutors at trial. Nevertheless both Whitlock and the pre‐
sent case differ from our Buckley decision in a respect that
the panel in Whitlock (which did not question the soundness
of Buckley) thought critical—namely that the misconduct of
the prosecutor (there was only one) in Whitlock consisted not
in coercing witnesses, as in Buckley, but in fabricating evi‐
dence. (So here is where the terminological distinctions sug‐
gested earlier in this opinion bite.) Whitlock observes that
“coercively interrogating witnesses, paying witnesses for
testimony, and witness‐shopping may be deplorable, and
these tactics may contribute to wrongful convictions, but
they do not necessarily add up to a constitutional violation
even when their fruits are introduced at trial,” because “evi‐
dence collected with these kinds of suspect technique, unlike
falsified evidence and perjured testimony, may turn out to be
true.” 682 F.3d at 584 (emphasis added). The prosecutor who
was sued in Whitlock was part of an investigative team that
told witnesses what to say knowing that what the team was
telling them was false. See id. at 571–72. This is different
from coercing a reluctant witness to say what may be true.
The point is not that coercion is legally irrelevant; far from
it—coercion (which in an extreme case could amount to tor‐
ture) may be an essential tool in “persuading” a witness to
8 No. 13‐1195
fabricate testimony. The point is only that coercion per se
does not make a prosecutor acting as an investigator liable
should the coerced evidence be used to obtain a conviction
of an innocent criminal defendant. If the evidence obtained
by coercion is sound and the defendant would have been
indicted, found guilty, and sentenced, without it (though in
fact he was innocent), the only victim of government mis‐
conduct is the witness who was coerced; and that is not
Fields.
In Buckley the plaintiff had alleged that the coerced evi‐
dence was not only coerced, but false. But our opinion de‐
scribed the primary victims, and the only ones with standing
to complain, as the coerced witnesses themselves. “Coercing
witnesses to speak,” we said, “rather than loosening their
tongues by promises of reward, is a genuine constitutional
wrong, but the persons aggrieved would be Cruz and Her‐
nandez [the allegedly coerced witnesses] rather than Buck‐
ley. Overbearing tactics violate the right of the person being
interrogated to be free from coercion. Buckley cannot com‐
plain that the prosecutors may have twisted Cruz’s arm, any
more than he can collect damages because they failed to read
Cruz Miranda warnings or searched Cruz’s house without a
warrant. Rights personal to their holders may not be en‐
forced by third parties.” 20 F.3d at 794–95 (citations omitted).
This is analogous to the rule that a criminal defendant will
not be heard to object to the admission against him of proba‐
tive evidence unlawfully seized from a third party. Minneso‐
ta v. Carter, 525 U.S. 83, 90–91 (1998); Rakas v. Illinois, 439 U.S.
128, 148–50 (1978).
This “tough luck” rule doesn’t apply when there is no
coerced witness but nevertheless fabricated evidence; the ev‐
No. 13‐1195 9
idence might be given by a paid police informant—a com‐
pensated witness, not a coerced one. That is the distinction
drawn in Whitlock, and Wharrie acknowledges that if Whit‐
lock is the law he loses his defense of absolute immunity be‐
cause he is accused of fabricating evidence before trial; and
so he asks us to overrule Whitlock as inconsistent with our
Buckley decision. Fabrication was alleged in Buckley as well,
but as the language we just quoted from that opinion re‐
veals, the focus was on coercion, and the primary victims,
and only victims held to have standing to sue, were the co‐
erced witnesses.
In asking us to overrule Whitlock, Wharrie ignores the al‐
ternative of overruling Buckley as being inconsistent with
(the newer) Whitlock. There’s no need to embrace either al‐
ternative. Because the cases are distinguishable and the pre‐
sent case falls on the Whitlock side of the line, we agree with
the district judge’s reinstatement of Fields’ claim against
Wharrie for the latter’s alleged fabrication of evidence in
1985, before Fields’ indictment and arrest.
Wharrie is asking us to bless a breathtaking injustice.
Prosecutor, acting pre‐prosecution as an investigator, fabri‐
cates evidence and introduces the fabricated evidence at tri‐
al. The innocent victim of the fabrication is prosecuted and
convicted and sent to prison for 17 years. On Wharrie’s in‐
terpretation of our decision in Buckley, the prosecutor is insu‐
lated from liability because his fabrication did not cause the
defendant’s conviction, and by the time that same prosecu‐
tor got around to violating the defendant’s right he was ab‐
solutely immunized. So: grave misconduct by the govern‐
ment’s lawyer at a time where he was not shielded by abso‐
lute immunity; no remedy whatsoever for the hapless vic‐
10 No. 13‐1195
tim. In Buckley, in contrast, two victims—the coerced wit‐
nesses—had a damages remedy, and the fact that there thus
were potential plaintiffs could be expected to have some de‐
terrent effect against future misconduct. To extend Buckley to
overrule Whitlock would leave a victim of graver misconduct
(because coercion does not always result in fabrication of ev‐
idence—even torture must often elicit truthful confessions)
completely unprotected.
That’s not only an offensive and indeed senseless result,
but it doesn’t jibe with the Supreme Court’s decision in Buck‐
ley, where we read that “the [fact that] prosecutors later
called a grand jury to consider the evidence this work pro‐
duced does not retroactively transform that work from the
administrative into the prosecutorial. A prosecutor may not
shield his investigative work with the aegis of absolute im‐
munity merely because, after a suspect is eventually arrest‐
ed, indicted, and tried, that work may be retrospectively de‐
scribed as ‘preparation’ for a possible trial; every prosecutor
might then shield himself from liability for any constitutional
wrong against innocent citizens by ensuring that they go to trial.”
Buckley v. Fitzsimmons, supra, 509 U.S. at 275–76 (emphasis
added, footnote omitted); see also Zahrey v. Coffey, 221 F.3d
342, 349, 354 (2d Cir. 2000); McGhee v. Pottawattamie County,
547 F.3d 922, 932–33 (8th Cir. 2008); Moore v. Valder, 65 F.3d
189, 194–95 (D.C. Cir. 1995). A prosecutor cannot retroactive‐
ly immunize himself from conduct by perfecting his wrong‐
doing through introducing the fabricated evidence at trial
and arguing that the tort was not completed until a time at
which he had acquired absolute immunity. That would cre‐
ate a “license to lawless conduct,” which the Supreme Court
has said that qualified immunity is not to do. Harlow v. Fitz‐
gerald, 457 U.S. 800, 819 (1982). Wharrie’s interpretation of
No. 13‐1195 11
our decision in Buckley would place that decision in conflict
with the Supreme Court’s Buckley decision, by giving abso‐
lute immunity to prosecutor‐investigators who having fabri‐
cated evidence make sure that the evidence is used to con‐
vict the innocent victim of the fabrication.
So Wharrie has not demonstrated an entitlement to abso‐
lute immunity—nor to qualified immunity for the fabrica‐
tion, either. For it was established law by 1985 (indeed long
before), when the fabrication is alleged to have occurred,
that a government lawyer’s fabricating evidence against a
criminal defendant was a violation of due process. See Napue
v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S.
213, 215–16 (1942); Mooney v. Holohan, 294 U.S. 103, 110, 112–
13 (1935) (per curiam). It is true that the cases we’ve just cit‐
ed involved not merely the fabrication, but the introduction
of the fabricated evidence at the criminal defendant’s trial.
For if the evidence hadn’t been used against the defendant,
he would not have been harmed by it, and without a harm
there is, as we noted earlier, no tort. But when the question is
whether to grant immunity to a public employee, the focus is
on his conduct, not on whether that conduct gave rise to a
tort in a particular case. As the Court said in Harlow v. Fitz‐
gerald, supra, 457 U.S. at 819, the test for qualified immunity
is “the objective legal reasonableness of an official’s acts.
Where an official could be expected to know that certain
conduct would violate statutory or constitutional rights, he
should be made to hesitate; and a person who suffers injury
caused by such conduct may have a cause of action” (emphasis
added)—or may not.
So notice the disjunction: the immunity depends on the
official’s acts; the existence of a cause of action depends on
12 No. 13‐1195
the illegality of those acts and on whether an injury results,
because, to repeat, no injury—no tort. Recall the earlier point
derived from the Supreme Court’s decision in Buckley that
without that distinction a prosecutor who in a pre‐
prosecution investigative role fabricates evidence obtains
immunity simply by turning over the fabricated evidence to
the prosecutor, or prosecuting the defendant himself, for in
neither case is he the direct cause of the defendant’s injury
(the wrongful conviction).
It remains to consider two of Fields’ state law claims. The
first arises from the same 1985 conduct alleged of Wharrie
that we’ve been discussing. The second is false testimony
allegedly coerced by defendant Kelley in 1998, while Fields
was awaiting the retrial of his murder case.
The district court held, and both parties agree, that the Il‐
linois rule of absolute prosecutorial immunity is the same as
the federal rule. Actually that’s not entirely clear. The last
time the Supreme Court of Illinois spoke to the issue it held
that all Illinois officials—including judges—enjoy immunity
only “from liability for error or mistake of judgment in the
exercise of their duty in the absence of corrupt or malicious mo‐
tives.” People ex rel. Schreiner v. Courtney, 43 N.E.2d 982, 986
(Ill. 1942) (emphasis added). That’s not absolute immunity.
But 71 years on, it is doubtful that this is still the law in Illi‐
nois. The Illinois Appellate Court seems not to think so. See,
e.g., Frank v. Garnati, 989 N.E.2d 319, 322 (Ill. App. 2013);
White v. City of Chicago, 861 N.E.2d 1083, 1087–88 (Ill. App.
2006); Weimann v. Kane County, 502 N.E.2d 373, 377 (Ill. App.
1986); People v. Patrick J. Gorman Consultants, Inc., 444 N.E.2d
776, 779 (Ill. App. 1982); Coleson v. Spomer, 334 N.E.2d 344,
347 (Ill. App. 1975). And the state’s supreme court has not
No. 13‐1195 13
called a halt to the trend in the intermediate appellate court.
E.g., Frank v. Garnati, 996 N.E.2d 12 (Ill. 2013) (denying ap‐
peal). Although some cases recite what sounds like the rule
from Courtney, in none was immunity denied on the ground
of bad faith. See, e.g., Aboufariss v. City of DeKalb, 713 N.E.2d
804, 812 (Ill. App. 1999).
Since, as just explained, Illinois may not even have abso‐
lute prosecutorial immunity, and since Wharrie does not
claim that if Illinois does have it, it is more absolute than the
federal rule, and since we’ve already held that Wharrie is not
entitled to absolute immunity from being sued on the federal
claims against him, there is no basis for giving him absolute
prosecutorial immunity from the state law claims for the
same conduct alleged as a violation of Illinois tort law.
Kelley’s alleged procurement of false testimony took
place in 1998, in preparation for Fields’ second trial and
therefore in the midst of his prosecution. Once prosecution
begins, bifurcating a prosecutor’s role between investigation
and prosecution is no longer feasible. If in the course of a tri‐
al a prosecutor were to urge one of his witnesses to lie, it
would be arbitrary to describe this as an investigative act
separate from prosecution; the prosecutor’s conduct would
have been “intimately associated with the judicial phase of
the criminal process,” and he would therefore be entitled to
absolute immunity. Imbler v. Pachtman, supra, 424 U.S. at 430;
see also Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003);
Warney v. Monroe County, 587 F.3d 113, 120–21 (2d Cir. 2009);
Genzler v. Longanbach, 410 F.3d 630, 638 (9th Cir. 2005) (inves‐
tigation “bound up with the judicial process”). It would be
unlike the case discussed in the Supreme Court’s Buckley de‐
cision of prosecutors held by the Court not to be entitled to
14 No. 13‐1195
absolute immunity for fabricating evidence “during the ear‐
ly stages of the investigation” when “police officers and as‐
sistant prosecutors were performing essentially the same in‐
vestigatory functions.” Buckley v. Fitzsimmons, supra, 509 U.S.
at 262–63.
The district judge ruled after our first decision and con‐
sistently with the analysis just presented that Wharrie had
absolute prosecutorial immunity under state as well as fed‐
eral law for his allegedly procuring false testimony in antici‐
pation of Fields’ retrial in 1998, and Fields has not appealed
that ruling. We cannot understand on what basis the district
judge distinguished the identical conduct alleged against
Kelley in the same stage of the same proceeding against
Fields, and so denied his motion to dismiss the claim against
him. True, Kelley may not yet have been “officially” part of
the trial team at Fields’ retrial, but he was already function‐
ing as part of the team and that’s all that matters, as we not‐
ed in our first opinion. See 672 F.3d at 511–12, 515–16; see
also Van de Kamp v. Goldstein, 555 U.S. 335, 343–45 (2009).
And so, to summarize, the denial of Wharrie’s motion to
dismiss the federal and state claims against him relating to
the fabrication of false statements from a witness during the
investigation in 1985 is affirmed, but the denial of Kelley’s
motion to dismiss the 1998 state law claims against him is
reversed with instructions that the district court reconsider
that denial in light of the analysis in this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
No. 13-1195 15
SYKES, Circuit Judge, concurring in part and dissenting in
part. I agree that Fields’s claims against Kelley are barred by
absolute immunity. See Majority op. at 12–14. In our earlier
opinion in this case, we held that Wharrie is absolutely
immune from suit on similar allegations of
misconduct—specifically, that Wharrie coerced Earl Hawkins
to falsely implicate Fields in the 1984 murders of Talman
Hickman and Jerome Smith during the interval between
Fields’s first and second trials, while his postconviction
proceedings were ongoing and in anticipation of retrial. See
Fields v. Wharrie (“Fields I”), 672 F.3d 505, 511–16 (7th Cir. 2012).
The allegations against Kelley are materially indistinguishable
from the allegations against Wharrie stemming from this time
period. The only difference is that Kelley is accused of induc-
ing another witness, Randy Langston, to make a false identifi-
cation of Fields. But this act, like Wharrie’s alleged coercion of
Hawkins, took place during the judicial phase of the criminal
process and was functionally prosecutorial. So Kelley, like
Wharrie, is absolutely immune from suit for this conduct. See
Van de Kamp v. Goldstein, 555 U.S. 335, 340–45 (2009); Imbler v.
Pachtman, 424 U.S. 409, 430–31 (1976); Fields I, 672 F.3d at
510–15.
Illinois apparently follows the federal law on absolute
immunity, see Frank v. Garnati, 989 N.E.2d 931, 934 (Ill. App. Ct.
2013); White v. City of Chicago, 861 N.E.2d 1083, 1088–94 (Ill.
App. Ct. 2006); the parties do not argue otherwise. Accord-
ingly, I join the majority opinion to the extent that it reverses
the district court’s order permitting the state-law claims
against Kelley to proceed. See Majority op. at 12–14.
Unlike my colleagues, however, I would also reverse the
district court’s decision to reinstate the § 1983 and state-law
claims against Wharrie for his conduct in 1985, before Fields
was charged. Fields alleges that during the investigation of the
16 No. 13-1195
Hickman and Smith murders, Wharrie coerced Anthony
Sumner, a fellow gang member, to falsely implicate him in the
crimes. Fields I, 672 F.3d at 508–09. As we explained in our
earlier opinion, Fields was convicted of killing Hickman and
Smith based in part on Sumner’s testimony, but he won a new
trial for unrelated reasons (the trial judge had been bribed),
was acquitted on retrial, and obtained a certificate of inno-
cence.1 Id. at 509. His complaint seeks damages under 42 U.S.C.
§ 1983 for violation of his right to due process; he also asserts
several state-law theories of liability for the wrongful convic-
tions.2
To the extent that the § 1983 and state-law claims against
Wharrie are based on his alleged coercion of the false state-
ment from Sumner, absolute immunity does not apply. That
act took place before there was probable cause to arrest
Fields—that is, before the judicial process began—and was not
functionally prosecutorial, so Wharrie cannot claim to be
absolutely immune from suit for damages. Buckley v.
Fitzsimmons, 509 U.S. 259, 273–76 (1993); Buckley v. Fitzsimmons,
20 F.3d 789, 794 (7th Cir. 1994).
But Wharrie remains protected by qualified immunity, see
Buckley, 509 U.S. at 275–76, which “is available unless the acts
violated ‘clearly established’ constitutional norms,” Buckley,
1
Sumner recanted his testimony after Fields’s first trial. See Fields v. Wharrie
(“Fields I”), 672 F.3d 505, 517 (7th Cir. 2012). The status of Fields’s certificate
of innocence is in flux. The Illinois Appellate Court reversed the circuit
court’s issuance of it, see People v. Fields, 959 N.E.2d 1162, 1163 (Ill. App. Ct.
2011), and as far as I can tell, proceedings on remand remain pending in
Cook County Circuit Court.
2
Fields sued several Chicago police officers in addition to the two
prosecutors, but this interlocutory appeal, like the earlier one, concerns only
the prosecutors’ claims of absolute and qualified immunity.
No. 13-1195 17
20 F.3d at 794. The Supreme Court’s decision in Buckley
addressed only absolute prosecutorial immunity; the Court did
not have occasion to decide the qualified-immunity question.
That is, the Court did not decide whether coercing or otherwise
inducing a witness to give a false statement during a criminal
investigation violates clearly established constitutional rights.
But we decided that very question when the Supreme Court
returned Buckley to this court for further proceedings.
In our decision on remand in Buckley, we held that coercing
or otherwise soliciting a witness to falsely incriminate a suspect
during a criminal investigation does not violate any established
constitutional rights—except perhaps the rights of the witness
who is coerced. Id. at 794–97. If the suspect is charged, then
failing to disclose the false statement’s corrupt origins at trial
violates his due-process right to a fair trial under the rule of
Brady v. Maryland, 373 U.S. 83 (1963), and knowingly using
perjured testimony to convict him is a more general violation
of his due-process right to a fair trial. See Buckley, 20 F.3d at
794–95; see also Albright v. Oliver, 510 U.S. 266, 273 n.6 (1994)
(plurality opinion); Napue v. Illinois, 360 U.S. 264, 269 (1959);
Mooney v. Holohan, 294 U.S. 103, 112 (1935); Serino v. Hensley,
735 F.3d 588, 592 (7th Cir. 2013); Newsome v.McCabe, 256 F.3d
747, 750–52 (7th Cir. 2001). But a prosecutor who commits
these acts or omissions at trial is functioning quintessentially
as a prosecutor, so under well-established immunity law, he is
absolutely immune from suit for damages under § 1983. Van de
Kamp, 555 U.S. at 340–45; Imbler, 424 U.S. at 430–31; Fields I,
672 F.3d at 510–15; Buckley, 20 F.3d at 794–96.
In contrast, a prosecutor who coerces or otherwise procures
a false statement from a witness during an investigation, before
probable cause exists and the judicial process has begun, is not
protected by absolute immunity, but he is entitled to qualified
immunity because his conduct does not violate clearly estab-
18 No. 13-1195
lished constitutional rights. Buckley, 20 F.3d at 794–98. Due-
process rights are not implicated at this stage; they arise later,
when judicial proceedings are instituted. Id. Accordingly,
extracting a false statement from a witness during a criminal
investigation is not independently actionable as a constitu-
tional violation, and Buckley holds that “events not themselves
supporting recovery [against prosecutors] under § 1983 do not
become actionable because they lead to injurious acts for which
[the prosecutors] possess absolute immunity.” Id. at 796.
In our earlier opinion in this case, we relied on this
qualified-immunity holding from Buckley as an alternative
basis for finding Wharrie and Kelley immune from suit under
§ 1983 for their solicitation of false statements from Hawkins
and Langston. Fields I, 672 F.3d at 516–18. Citing Buckley, we
noted that “fabricating evidence, including in the form of
testimony, is not an actionable constitutional wrong. … The
constitutional violation occurs when the means by which the
testimony was acquired are not disclosed at trial—or when
other information that impeach[es] the testimony’s reliability
is not shared with the defense.” Id. at 516–17. Our alternative
holding in Fields I followed the rule, established in Buckley, that
even if a prosecutor participates in securing a false statement
from a witness during a criminal investigation, his “absolutely
immunized prosecutorial decision to proceed to trial and
introduce the [witness’s] testimony” forecloses suit against
him; there is no independently cognizable due-process claim
for his investigative misconduct.3 Id. at 517 (discussing
Wharrie’s qualified immunity); see also id. at 517–18 (discussing
Kelley’s qualified immunity).
3
There might be an actionable Fourth Amendment claim for false arrest, but
Fields has not made that claim here.
No. 13-1195 19
Three months after we issued our opinion in Fields I, a new
decision of this court, Whitlock v. Brueggemann, 682 F.3d 567
(7th Cir. 2012), unsettled Buckley (and by extension, unsettled
Fields I as well), which led the district court to do an about-face
on remand in this case. Wharrie’s new appeal requires us to
decide whether Whitlock and Buckley can be reconciled. I think
the answer is plainly “no.”
As my colleagues have noted, Whitlock drew a distinction,
for qualified-immunity purposes, between a prosecutor who
coercively interrogates witnesses and a prosecutor who
fabricates evidence. See Majority op. at 7–9. Whitlock observed
that coercion and unsavory tactics like paying for testimony
and witness shopping “may be deplorable, and … may
contribute to wrongful convictions, but they do not necessarily
add up to a constitutional violation even when their fruits are
introduced at trial … [because] [e]vidence collected with these
kinds of suspect techniques, unlike falsified evidence and
perjured testimony, may turn out to be true.” 682 F.3d at 584.
This proposed distinction between “coerced” and “fabricated”
evidence was the linchpin for distinguishing Buckley and
permitting the claim against the prosecutor in Whitlock to
proceed. The Whitlock panel thought the prosecutors in Buckley
had been accused of coercing witnesses and using other
suspect tactics but were not alleged to have fabricated evi-
dence, and on that basis distinguished the case. Id. at 584–85.
Regrettably, that was a mistake. In fact, both Buckley and
Whitlock involved allegations that prosecutors had coerced,
cajoled, paid for, or otherwise solicited falsified statements from
witnesses—in other words, they fabricated evidence. Indeed,
Buckley repeatedly refers to allegations that prosecutors
coercively obtained “false inculpatory statements” from
witnesses and “fabricated” or “manufactured” testimony and
20 No. 13-1195
evidence from an expert.4 20 F.3d at 794–95. So regardless of
whether Whitlock’s proposed distinction between “coerced”
and “fabricated” witness statements is valid in theory—and
makes a difference in the constitutional analysis—it simply
was not present as a factual matter and therefore cannot
provide a basis on which to distinguish Buckley from Whitlock.5
4
More specifically, Stephen Buckley alleged that prosecutors coerced two
witnesses to falsely implicate him during a murder investigation. See
Buckley v. Fitzsimmons, 20 F.3d 789, 794–96 (7th Cir. 1994). He also alleged
that the prosecutors paid an expert witness for forensic evidence—a
bootprint identification—that they knew was false. Id. at 795–96. The
prosecutors indicted and tried Buckley for murder; the jury deadlocked,
and while Buckley was awaiting retrial, someone else confessed to the
crime. See Buckley v. Fitzsimmons, 509 U.S. 259, 264 (1993). We held that the
prosecutors were entitled to qualified immunity for their pre-charging
misconduct because the solicitation of false evidence—by whatever device
(whether coercion or payment)—does not violate clearly established
constitutional rights; the use of the false evidence at trial may have violated
Buckley’s due-process right to a fair trial, but the prosecutors were
absolutely immune for that misconduct. Buckley, 20 F.3d at 794–97.
The facts of Whitlock were materially identical. There, the plaintiffs
alleged that a witness had been coerced to give a false statement implicating
them in a double murder and that another witness falsely incriminated
them after being plied with money and alcohol. See Whitlock v. Brueggemann,
682 F.3d 567, 572 (7th Cir. 2013). They were convicted based in part on the
false testimony of these witnesses, and after their convictions were
overturned (based on Brady violations), they sued the police officers and the
prosecutor who were involved in the investigation and prosecution. As I
have noted, in rejecting the prosecutor’s claim of qualified immunity, the
Whitlock panel distinguished Buckley by drawing a distinction between
coerced and fabricated evidence, apparently overlooking the fact that both
cases involved allegations of coercion and fabrication.
5
Judge Kennelly, who is handling this case in the trial court, saw the
problem immediately. Although he followed Whitlock because it is the later-
decided case, he pointedly noted that “[b]oth the defendants in Whitlock and
the defendants in Buckley[] were alleged to have coerced false inculpatory
(continued...)
No. 13-1195 21
Yet my colleagues perpetuate the distinction here. See
Majority Op. at 2–3, 7–9. I appreciate the force of stare decisis;
we should try to harmonize the two cases if we can. With
respect, however, harmonization is impossible. Whitlock and
Buckley are factually indistinguishable and legally irreconcil-
able. They cannot both be the law. We must decide which one
is correct.6
5
(...continued)
statements from witnesses. … Thus there is no apparent factual distinction
between the underlying fabricatory conduct in Whitlock and that in
Buckley[].” Fields v. City of Chicago, No. 10 C 1168, 2012 WL 6705790, at *5
(N.D. Ill. Dec. 26, 2012).
6
My colleagues have acknowledged that both Whitlock and Buckley involved
prosecutors who were alleged to have fabricated evidence during an
investigation. See Majority op. at 8. They maintain that the cases can still be
distinguished because “the focus [in Buckley] was on coercion, and the
primary victims, and only victims held to have standing to sue, were the
coerced witnesses.” Id. at 9. They read Whitlock as holding that Buckley’s
“ ‘tough luck’ rule doesn’t apply when there is no coerced witness but
nevertheless fabricated evidence; the evidence might be given by a paid
police informant—a compensated witness, not a coerced one.” Id. at 8–9.
There are several problems with this analysis. First, our decision in
Buckley had nothing to do with the standing of the coerced witnesses; we
mentioned this point only to explain that although the witnesses might
have a claim for violation of their constitutional rights during the investiga-
tion, Buckley—the only plaintiff in the case—did not. See Buckley, 20 F.3d at
794–97. Second, in straining to maintain Whitlock’s distinction between
coerced and fabricated evidence, my colleagues continue to disregard the
material factual identity between Buckley and Whitlock—both cases involved
allegations of pre-charging fabrication of evidence, some of which was
allegedly coerced. See supra n.4. Finally, my colleagues do not explain the
constitutional basis for the coercion/fabrication distinction. It’s not clear
why it makes a difference in the qualified-immunity analysis, which asks
whether the pre-charging misconduct violates established constitutional
rights.
22 No. 13-1195
For my part, I think Buckley is correct and Whitlock should
be reconsidered. Because mine is the minority view here, any
reconsideration of Whitlock must await a petition for rehearing
en banc, which Wharrie may choose to pursue or forego. For
the record, I’ll briefly sketch the conceptual difficulty Whitlock
has introduced, which I believe warrants the full court’s
attention.
I have already described Buckley’s qualified-immunity
holding, which was and remains sound. Whitlock rejected
qualified immunity for a similarly situated prosecutor by using
common-law causation principles to find an actionable
constitutional violation where one did not otherwise exist. I do
not agree with this development in our circuit’s law.
As I’ve explained, Buckley contains two important princi-
ples of immunity law that apply in suits alleging prosecutorial
misconduct: (1) a prosecutor’s use of fabricated evidence at
trial may be actionable as a violation of the defendant’s right
to due process—under the rubric of Brady or perhaps more
generally as a violation of the right to a fair trial—but the
prosecutor is absolutely immune from suit under Imbler and
related cases, see 20 F.3d at 794–95; and (2) a prosecutor’s
fabrication of evidence against a suspect during an investiga-
tion is covered by qualified immunity because it doesn’t
violate clearly established constitutional rights, see id. at
794–98. Whitlock’s innovation is to use common-law causation
analysis to eliminate the effect of both forms of immunity. The
panel held that “[t]he actions of an official who fabricates
evidence that later is used to deprive someone of liberty can be
both a but-for and proximate cause of the due process viola-
tion.”7 Whitlock, 682 F.3d at 583.
7
Although it’s not entirely clear, the due-process violation to which
(continued...)
No. 13-1195 23
As applied to a prosecutor, this reasoning circumvents both
qualified and absolute immunity. Both immunities are well
established and important. See Van de Kamp, 555 U.S. at 341–43
(absolute immunity); Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982) (qualified immunity); Imbler, 424 U.S. at 424–26 (absolute
immunity). Absolute immunity can sometimes produce harsh
results, but it has long been thought necessary to encourage
and protect the vigorous performance of the prosecutorial
function. See Van de Kamp, 555 U.S. at 341–43; Imbler, 424 U.S.
at 424–26.
In a shorthand version, the rule announced in Whitlock is
basically this: A prosecutor who falsifies evidence during an
investigation violates no clearly established constitutional
rights and thus has qualified immunity from suit (see Buckley),
but his conduct is nonetheless actionable as a non-immune
subsidiary “cause” (both but-for and proximate) of a due-
process violation that occurs later, when the prosecutor
introduces the falsified evidence at trial—even though the
prosecutor is absolutely immune from suit for the due-process
violation. In other words, the only conduct that can possibly
7
(...continued)
Whitlock refers can only be a violation of the procedural right to a fair trial.
That much is implicit in the context of the case and the content of the
opinion, which does not address the more complicated and unsettled
question whether the Due Process Clause provides a substantive ground of
protection against malicious prosecution. See Albright v. Oliver, 510 U.S. 266,
271–74 (1994) (“Where a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of ‘substantive
due process,’ must be the guide for analyzing these claims.” (plurality
opinion) (internal quotation marks omitted)); see also id. at 275–76 (Scalia, J.,
concurring); id. at 283–86 (Kennedy, J., concurring); Serino v. Hensley,
735 F.3d 588, 592–94 (7th Cir. 2013); Julian v. Hanna, 732 F.3d 842, 845–48
(7th Cir. 2013); Newsome v. McCabe, 256 F.3d 747, 750–53 (7th Cir. 2001).
24 No. 13-1195
form the basis of a constitutional claim—the prosecutor’s trial
conduct—is fully protected by absolute immunity, but the
prosecutor can be sued anyway, based on the causal link
between his nonactionable investigative conduct and his
immunized trial conduct.
Aside from destabilizing immunity law, this chain of
reasoning overlooks some basic differences between common-
law and constitutional torts. Common-law causation rules flow
from the nature of duty and breach in tort law. Everyone has
a general tort duty to refrain from doing an act or omitting a
precaution that creates a foreseeable, unreasonable risk of
harm to other persons or property. See generally RESTATEMENT
(SECOND) OF TORTS § 282 (1965) (defining negligence). The duty
is broad and undifferentiated and is owed to everyone at all
times, and anyone who breaches it is liable for harms factually
and proximately caused.
Constitutional rights—and the corresponding duties
imposed on governmental actors—are not like the generalized
rights and duties imposed by negligence law. They are
implicated at specific times and in specific circumstances. As
relevant here, Fields’s due-process rights came into play after
he was charged; the Brady disclosure duty is an aspect of the
right to a fair trial, as is the broader right not to have the trial
process subverted by the knowing introduction of falsified
evidence. See Serino, 735 F.3d at 592; Newsome, 256 F.3d at
751–52; Buckley, 20 F.3d at 796–97. So Wharrie’s act of extract-
ing a false statement from Sumner during the investigative
phase of the case did not violate Fields’s due-process rights. A
prosecutor who commits this kind of misconduct has behaved
deplorably but has breached no constitutional duty and thus
committed no constitutional wrong.
Common-law causation analysis cannot be used to trans-
form an act that does not violate the Constitution into one that
No. 13-1195 25
does. That, in essence, is the effect of Whitlock. It turns the
prosecutor’s nonactionable investigative misconduct into an
actionable constitutional wrong by recharacterizing it as a
subsidiary “cause” of a due-process violation that occurs later
at trial but is absolutely immunized.
To help explain and justify Whitlock, my colleagues analo-
gize to product-liability causation rules. See Majority op. at 6.
I think the analogy exposes a key conceptual problem in the
analysis. The pipe maker who negligently manufactures a pipe
breaches his general tort duty to refrain from acts that create an
unreasonable risk of harm to persons or property. The breach
may not cause harm until the pipe bursts, and the statute of
limitations does not begin to run until the harm occurs. But the
breach of duty occurs at the point of negligent manufacture,
and the manufacturer will be liable for harm that flows
causally from that breach. (In the law of strict product liability,
the manufacturer’s sale of the defective pipe starts the causal
chain, but the basic point about the order of analysis—
duty/breach/cause—remains the same.)
Section 1983 does not impose an analogous generalized
duty on governmental agents to refrain from putting people at
an unreasonable risk of harm. Rather, § 1983 creates a cause of
action for damages against state and local officials who inflict
specific deprivations of federal rights. See 42 U.S.C. § 1983
(creating a cause of action against any official who, under color
of state law, “subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws”). It is well understood
that § 1983 “ ‘is not itself a source of substantive rights,’ but
merely provides ‘a method for vindicating federal rights
elsewhere conferred.’ ” Albright, 510 U.S. at 811 (plurality
opinion) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
26 No. 13-1195
(1979)). In other words, the Constitution supplies the rights
and duties and otherwise fills in the content of a § 1983 claim.
So “[t]he first step in any such claim is to identify the specific
constitutional right allegedly infringed.” Id.
Here, the right allegedly infringed is the due-process right
to a fair trial, but under the rationale of Whitlock, the asserted
act of infringement occurred before any fair-trial duty arose. To
put the problem colloquially, Whitlock puts the causation cart
before the duty horse. A prosecutor who coerces a witness to
falsely incriminate a suspect during a criminal investigation
breaches no constitutional duty owed to the suspect. If the
suspect is charged, then suborning perjury against him at trial
would violate his due-process rights—so too would withhold-
ing evidence about the coercion of the witness. But these are
trial rights, and a prosecutor’s violation of them is absolutely
immunized. The prosecutor’s investigative misconduct cannot
independently support a due-process claim; that conduct
violates no due-process duty.
It is true, as my colleagues have noted, that the Supreme
Court said the following in Buckley:
A prosecutor may not shield his investigative
work with the aegis of absolute immunity
merely because, after a suspect is eventually
arrested, indicted, and tried, that work may be
retrospectively described as ‘preparation’ for a
possible trial; every prosecutor might then shield
himself from liability for any constitutional
wrong against innocent citizens by ensuring that
they go to trial.
Buckley, 509 U.S. at 276. This passage in the Court’s opinion
simply drives home the point that prosecutors are not pro-
tected by absolute immunity for their pre-charging miscon-
No. 13-1195 27
duct. That much is clear from the very next sentence: “When
the functions of prosecutors and detectives are the same, as
they were here, the immunity that protects them is also the
same.” Id. That’s an obvious reference to qualified immunity.
It’s worth repeating that the Court sent Buckley back to us
to decide the qualified-immunity question. We unambiguously
held—in 1994—that falsifying evidence during an investigation
does not violate established constitutional rights, and “events
not themselves supporting recovery [against prosecutors]
under § 1983 do not become actionable because they lead to
injurious acts for which [the prosecutors] possess absolute
immunity.” Buckley, 20 F.3d at 796.
Directly contradicting that clear holding of Buckley, my
colleagues now conclude that “it was established law by 1985,
when the fabrication is alleged to have occurred, that a
government lawyer’s fabricating evidence against a criminal
defendant was a violation of due process.” Majority op. at 11
(emphasis added). For this proposition they cite Napue v.
Illinois, 360 U.S. 264 (1959); Pyle v. Kansas, 317 U.S. 213 (1942);
and Mooney v. Holohan, 294 U.S. 103 (1935), but these cases do
not hold that fabricating evidence violates due process. Rather,
they hold that the use of falsified evidence or perjured testi-
mony at trial violates the defendant’s due-process right to a
fair trial and is grounds for habeas or other postconviction
relief. See Napue, 360 U.S. at 269; Pyle, 317 U.S. at 215–16;
Mooney, 294 U.S. at 112–13. As my colleagues have noted, the
qualified-immunity inquiry asks whether a reasonable public
official could be expected to know that the conduct in question
violates constitutional rights. See Majority op. at 11 (citing
Harlow, 457 U.S. at 819). The specific conduct in question
here—inducing a witness to tell a lie during an investiga-
tion—is clearly wrong, but it does not violate any constitu-
tional rights.
28 No. 13-1195
So although my colleagues have formally left Buckley in
place, the core of the opinion—its qualified-immunity
holding—is effectively overruled.
Finally, a brief comment on my colleagues’ assertion that
adhering to Buckley would work a “breathtaking injustice” and
produce “an offensive and indeed senseless result.”8 Id. at 9, 10.
These are strong words. No one doubts that wrongful convic-
tions are unjust; a person who is convicted and punished for a
crime he did not commit has a serious moral claim to a
compensatory remedy. Usually the law provides one, com-
monly in the form of a Brady claim against the officers who
were involved in suppressing exculpatory evidence during the
prosecution. It’s possible that in some cases the effect of
absolute immunity—or the combined effect of absolute and
qualified immunity—might leave a wrongly convicted person
without an actionable damages claim against any of the
wrongdoers. I could be wrong, but I don’t think that happens
very often. Prosecutors do not work alone, and if the police
officers working with them withhold exculpatory information
about coerced or fabricated evidence, the aggrieved defendant
will have a good § 1983 claim against the officers for violation
of Brady. The Brady duty is well established, and the claim
against the officers is available regardless of whether the
prosecutor participated in the “creation” of the fabricated
evidence or the cover-up at trial or both. That basically
describes this case.9
8
Actually they refer to the “breathtaking injustice” of accepting Wharrie’s
“conception” of Buckley, Majority op. at 9, but the real objection seems to be
with Buckley itself.
9
Moreover, the wrongly convicted need not worry that officers who violate
Brady will be judgment proof because Illinois requires municipalities to
(continued...)
No. 13-1195 29
My colleagues also perceive a need to authorize a damages
remedy as a deterrent against rogue prosecutors. Id. at 10.
That’s a valid concern, but it doesn’t justify finding a cogniza-
ble constitutional violation where one does not exist. The
policy justification for absolute immunity accepts that deter-
rence can be achieved in other ways. Although a complicit
prosecutor escapes civil liability for damages, he remains
subject to criminal prosecution and professional discipline for
his misdeeds; he is not immune from these consequences for
his misconduct. See Imbler, 424 U.S. at 429. The prospect of
criminal liability and disbarment are powerful deterrents. See
id. (“These [criminal and professional] checks undermine the
argument that the imposition of civil liability is the only way
to insure that prosecutors are mindful of the constitutional
rights of persons accused of crime.”).
In the end, the policy behind absolute prosecutorial
immunity “reflects ‘a balance’ of ‘evils’ ” based on a judgment
that it is “ ‘better … to leave unredressed the wrongs done by
dishonest officers than to subject those who try to do their duty
to the constant dread of retaliation.’ ” Van de Kamp, 555 U.S. at
340 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)
(Hand, J.)). Moreover, as we said in Buckley, “[q]ualified
immunity does not permit us to recognize … [new constitu-
9
(...continued)
indemnify their police officers. See 745 ILL. COMP. STAT. 10/9-102 (“A local
public entity is empowered and directed to pay any tort judgment or
settlement for compensatory damages … for which it or an employee while
acting within the scope of his employment is liable … .”). People who are
wrongly convicted in Illinois can also seek a certificate of innocence,
entitling them to a monetary award from the Illinois Court of Claims of up
to $199,150. See 704 ILL. COMP. STAT. 505/8(c). Fields initially obtained a
certificate of innocence, and a compensation check was issued to him by the
Court of Claims, but the Illinois Appellate Court reversed and remanded.
See People v. Fields, 959 N.E.2d at 1163–66.
30 No. 13-1195
tional] right[s] in this litigation.” Buckley, 20 F.3d at 797.
Although Wharrie’s alleged wrongdoing may go unredressed
via a federal damages remedy against him, Fields has an
ongoing § 1983 claim against the police officers who were
allegedly complicit in withholding exculpatory evidence about
the circumstances surrounding Sumner’s false statement.
In sum, applying Buckley requires a conclusion that Wharrie
is entitled to qualified immunity for his investigative miscon-
duct; his act of soliciting Sumner’s false statement did not
violate clearly established constitutional rights and does “not
become actionable because [it led to] injurious acts for which
[the prosecutor] possess[es] absolute immunity.” Id. at 796.
Applying Whitlock, my colleagues conclude that Wharrie’s
investigative misconduct is actionable as a non-immune
subsidiary “cause” of his absolutely immunized due-process
violation at trial. I would reconsider Whitlock, restore Buckley,
and reverse with instructions to dismiss the § 1983 claim
against Wharrie. With no federal claim remaining, the district
court ordinarily should relinquish jurisdiction over the state-
law claims against him. See Fields I, 672 F.3d at 518–19.
For the foregoing reasons, I respectfully concur in part and
dissent in part.