In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3841
GARY GAUGER,
Plaintiff-Appellant,
v.
BEVERLY HENDLE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 99 C 50322—Philip G. Reinhard, Judge.
____________
ARGUED MAY 27, 2003—DECIDED OCTOBER 30, 2003
____________
Before BAUER, POSNER, and COFFEY, Circuit Judges.
POSNER, Circuit Judge. Gary Gauger appeals from the
grant of summary judgment to the defendants, three
McHenry County, Illinois, detectives whom he had sued
under 42 U.S.C. § 1983 charging them in effect with having
framed him. There are other defendants, but they needn’t be
discussed separately, as their lawyers do not argue that
there is any difference among their clients so far as liability
for the wrongs alleged by Gauger is concerned.
The facts are bizarre. In 1993, Gauger, a 40-year-old
divorced organic farmer, was living on the farm of his eld-
erly parents, with whom he had had various contretemps
2 No. 02-3841
because of his alcoholism (which had driven him to join
Alcoholics Anonymous) and his planting of marijuana.
Once, his father had been heard to say, Gauger had struck
his mother, leaving bruises on her arm and neck. And she
had told him that if he continued drinking he might have to
leave the farm. According to Gauger, he last saw his parents
alive at about 8:30 p.m. on Wednesday, April 7. He did not
see them at all the next day, even though he had not
expected them to be away from the farm. He had begun that
morning to suspect they had left, because he noticed Fluffy
the cat outside on a window ledge, wet and crabby, and
thought his parents would have let Fluffy in by now were
they at home. That night he noticed that his parents’ cars
were still in the barn where they were kept and he became
worried, but he went to bed without either searching the
farm or reporting his parents missing. The following
morning two customers of his father’s motorcycle shop
(which was on the farm property) came by, and Gauger en-
tered the shop with them and discovered his father’s dead
body. He called the police, and they searched and found the
mother’s dead body in another shop on the property, where
she had sold rugs. Both victims had had their throats cut.
Because there were no signs of forced entry into either
shop and also no signs of a struggle, the police suspected
Gauger of being the murderer. They took him to the police
station for questioning that continued, with bathroom and
food breaks, for 18 hours. Although the detectives who
conducted the interrogation did not handcuff, hit, or
threaten Gauger, they shouted at him a few times and they
lied to him, telling him falsely that they had found physical
evidence at the crime scene that implicated him and that he
had flunked the lie-detector test administered to him at his
request during the interrogation (the results of the test had
in fact been inconclusive). After the detectives showed him
photographs of his parents’ bodies with their throats cut,
No. 02-3841 3
Gauger said he would tell them how he would have mur-
dered his parents though he didn’t recall having done so.
He sketched the hypothetical murders and later gave a more
detailed account in which he explained how he had checked
the knife in his pocket, come up behind his mother in the
rug shop, cut her throat, “caught her [as she fell] because I
didn’t want her to get hurt,” “covered her with blankets
because I cared,” then went to the motorcycle shop, and saw
“my Dad . . . walking away from me . . . he wouldn’t have
heard me because he’s hard of hearing . . . I cut his throat
and let him fall.” But he refused to sign a confession because
he had “no memory of any of this.” At one point in the
interrogation he said to one of the detectives, “how can you
be nice to me? I don’t deserve it,” and another time he told
this detective flatly, “I killed my parents.” Eventually he
asked for a lawyer because he was worried that if his
statements “were taken out of context it might be consid-
ered a confession,” and at this point the questioning ceased.
By his own acknowledgment he had made several flippant
remarks during the interrogation, which struck the officers
as suspicious, given what had happened to his parents.
The foregoing summary of the interrogation is Gauger’s;
the detectives’ version differs in crucial respects. There was
no recording or transcript of the interrogation, and of course
no signed statement, and in their reports of the interrogation
that were forwarded to the McHenry County prosecutor the
detectives, while they did acknowledge Gauger’s having
told them that if he killed his parents he could not remem-
ber doing so, did not describe his account of the murders as
having been hypothetical in character. The combination of
his detailed account (with no suggestion of its being hypo-
thetical rather than actual) and his statement (which he
acknowledged) that “I killed my parents” created the
impression in the minds of the detectives that he had
confessed. We do not know which version of the interroga-
4 No. 02-3841
tion is the correct one but for purposes of this appeal, since
it is from the grant of summary judgment in favor of the
detectives, we assume that Gauger’s is.
At his trial for murder he testified to his version of the in-
terrogation and the detectives presumably testified consis-
tently with the account in their reports, though this is un-
certain because, curiously, the transcript of the criminal trial
was not made a part of the record of this case. Gauger was
convicted and sentenced to death but the trial judge later
reduced his sentence to life imprisonment. That was in 1994.
Two years later the Illinois Appellate Court reversed
Gauger’s conviction and ordered a new trial on the ground
that the statements he had made during his interrogation
were inadmissible because they had been the fruit of an un-
lawful arrest, for when the police took him in for question-
ing they did not have probable cause to believe him guilty
of a crime. In the trial court he had also argued that the
statements were coerced, but he did not appeal the rejection
of that argument; nor does he attempt to resuscitate it here.
Indeed he is explicit in “not claim[ing] that the detectives
violated the Constitution by their conduct during the
interrogation” (emphasis his), and so we need not decide
whether his statements were coerced by the browbeating to
which he was subjected over a period of many hours, rather
than being voluntary. A mature person with a high school
degree and some college, Gauger does not fit the profile of
the type of suspect who can readily be coerced to make
incriminating statements without beating or threats. See,
e.g., Davis v. North Carolina, 384 U.S. 737, 742-52 (1966);
Gallegos v. Colorado, 370 U.S. 49, 52-54 (1962); Welsh S.
White, “False Confessions and the Constitution: Safeguards
Against Untrustworthy Confessions,” 32 Harv. Civ. Rts-Civ.
Liberties L. Rev. 105, 131 (1997).
Gauger was never retried. The charges against him were
No. 02-3841 5
dropped after members of the Outlaws motorcycle gang
admitted murdering Gauger’s parents; they were later con-
victed of a RICO offense in which the two murders were
among the predicate acts. Although the motorcycle gang-
sters did not implicate Gauger in the murders, the absence
of signs of forced entry or a struggle, together with Gauger’s
suspicious behavior and statements, the financial benefit to
him of his parents’ death (his share of their estate was
several hundred thousand dollars), and his acknowledg-
ment that members of the Outlaws motorcycle gang had
been occasional customers of his father’s motorcycle shop,
has left a lingering suspicion that he was somehow
complicit. But that suspicion plays no part in our consider-
ation of his appeal.
Gauger contends that the detectives perjured themselves
when they testified at his criminal trial, consistently we are
assuming with their reports, about what he had said during
the interrogation. But witnesses, including police officers
testifying for the prosecution in a criminal trial, have
absolute immunity from a damages suit based on their
testimony. Briscoe v. Lahue, 460 U.S. 325, 345-56 (1983). There
is an exception for “complaining witnesses”—the instigators
of the prosecution—and it might embrace police officers
who pushed aggressively for a prosecution, Malley v. Briggs,
475 U.S. 335, 340-41 (1986); Cervantes v. Jones, 188 F.3d 805,
809-10 (7th Cir. 1999), overruled on other grounds in
Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001); Curtis
v. Bembenek, 48 F.3d 281, 285-86 n. 5 (7th Cir. 1995); Vakilian
v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003); cf. Kalina v.
Fletcher, 522 U.S. 118, 129-31 (1997), but Gauger does not
argue that the exception is applicable. (Indeed, neither side
discusses either absolute immunity or the complaining-
witness exception.) No reported appellate case suggests that
police reports are entitled to a similar privilege (we cannot
find any reported appellate case on point, and only indirect
6 No. 02-3841
support in two appellate cases, Scott v. Hern, 216 F.3d 897,
911 (10th Cir. 2000), and Landrigan v. City of Warwick, 628
F.2d 736, 744-45 (1st Cir. 1980)), even when they are put into
evidence—as they were not, however, in this case. The
existence of such a privilege is implicitly rejected by the
many decisions which hold that if police falsify their reports
in a successful effort to persuade the prosecutors to prose-
cute a suspect, they have violated his civil rights and he can
sue the police without worrying about immunity. Mahoney
v. Kesery, 976 F.2d 1054, 1061 (7th Cir. 1992); Jones v. City of
Chicago, 856 F.2d 985, 993-94 (7th Cir. 1988); Ricciuti v.
N.Y.C. Transit Authority, 124 F.3d 123, 126, 129-30 (2d Cir.
1997); Sanders v. English, 950 F.2d 1152, 1162-64 (5th Cir.
1992); Robinson v. Maruffi, 895 F.2d 649, 655-56 (10th Cir.
1990). (The prosecutors cannot be sued; they have absolute
immunity.)
Insofar as these decisions rest, as they mainly do, on
treating malicious prosecution by state officers as a federal
constitutional tort, their authority has been undermined in
this circuit by the Newsome case, which we discuss later; but
Newsome does not undermine their implicit rejection of a
defense of privilege. Likewise a false-arrest claim, as distinct
from a malicious-prosecution claim, that is based on false
reports or testimony by the police does not encounter a
Newsome problem and is not blocked by privilege. See Kalina
v. Fletcher, supra, 522 U.S. at 129-31; Vakilian v. Shaw, supra,
335 F.3d at 516. This will become significant later.
The issue of privilege would be beside the point if Gauger
would have been prosecuted even on his own version of the
interrogation, for then there would be no causal relation
between the false police reports and the prosecution. We
think he probably would have been prosecuted anyway.
The evidence against him, though thin, was not negligible.
The absence of signs of forced entry or struggle, his history
No. 02-3841 7
of alcohol and drug abuse and altercations with his parents
that included a beating of his elderly mother, the value of
the farm and the personal property in it (he inherited
several hundred thousand dollars when the farm was later
sold, whereas his income from farming was negligible), the
delay in reporting his parents missing, and Gauger’s
statements at the interrogation that even if his recollection
of them was exact could well be interpreted to indicate
consciousness of guilt, taken all together provided a basis
for a prosecution. It is true that the statements he made at
his interrogation were later held to be inadmissible as the
fruit of a false arrest, but the prosecutors had not foreseen
this when they decided to prosecute him.
However all that may be, the lead prosecutor’s deposition
testimony that he didn’t think he would have taken the case
to the grand jury had he not thought (mistakenly) that
Gauger had confessed makes it uncertain whether Gauger
would have been prosecuted had it not been for the alleg-
edly false police reports.
All this might seem of no moment given our recent hold-
ing in Newsome v. McCabe, supra, that malicious prosecution
is not a constitutional tort unless the state provides no
remedy for malicious prosecution, which is not contended.
But all we held is that there is no constitutional tort of
malicious prosecution as such; we reserved the question
whether and in what circumstances a case such as this
(which is similar to Newsome) might be actionable under the
Fourth Amendment as an unreasonable seizure. 256 F.3d at
750-51. When a defendant is arrested and jailed on the basis
of probable cause to believe that he has committed a crime,
and only later does police fraud enter the picture with the
effect of perpetuating the seizure without good cause, there
is a question not as yet authoritatively resolved whether the
Fourth Amendment has been violated. Compare Albright v.
8 No. 02-3841
Oliver, 510 U.S. 266, 277-279 (1994) (Ginsburg, J., concur-
ring), and Wilson v. Spain, 209 F.3d 713, 715-16 (8th Cir.
2000), with Reed v. City of Chicago, 77 F.3d 1049, 1051-54 (7th
Cir. 1996); Wilkins v. May, 872 F.2d 190, 192-94 (7th Cir.
1989), and Riley v. Dorton, 115 F.3d 1159, 1161-64 (4th Cir.
1997) (en banc). The view of this court, expressed in Reed (as
interpreted in McCulloch v. Gadert, 344 F.3d 655, 660-61 (7th
Cir. 2003), and Lee v. City of Chicago, 330 F.3d 456, 463 n. 3
(7th Cir. 2003)) and Wilkins, is that the Fourth Amendment
is inapplicable. Reed and Wilkins were decided before
Newsome, however, and perhaps that decision will provoke
a reexamination of the issue—it is shocking to think that a
police frame-up which lands a person on death row is not a
constitutional tort, though every false arrest made without
probable cause is.
This case is different because the state court found that
there was no probable cause to arrest Gauger. His incarcera-
tion resulted from the combination of a false arrest with (if
his testimony is believed) a false account of his interroga-
tion. If his testimony is believed, therefore, the seizure of his
person was from the beginning to the end of his incarcera-
tion unreasonable, and shouldn’t that bring the allegedly
fraudulent account of his interrogation under the Fourth
Amendment? We need not decide, for instead of basing his
complaint about the police reports on the Fourth Amend-
ment, Gauger argues that Brady v. Maryland, 373 U.S. 83, 87
(1963), a due process case that entitles criminal defendants
to be shown any exculpatory evidence (including evidence
usable to impeach a prosecution witness) in the possession
of the prosecutors, required the detectives to give truthful
versions of Gauger’s statements at the interrogation to the
prosecutors to be forwarded to his counsel at his criminal
trial.
We find the proposed extension of Brady difficult even to
No. 02-3841 9
understand. 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. See Buie v. McAdory,
341 F.3d 623, 625-26 (7th Cir. 2003); Fullwood v. Lee, 290 F.3d
663, 685-86 (4th Cir. 2002); West v. Johnson, 92 F.3d 1385,
1399 (5th Cir. 1996); Felker v. Thomas, 52 F.3d 907, 910 (11th
Cir. 1995); United States v. Diaz, 922 F.2d 998, 1007 (2d Cir.
1990). The problem 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 state-
ment the prosecution deprived the defendant of Brady
material, that is, the correction itself.
Gauger has one more string to his bow, however. Had it
not been for his false arrest, he would not have made any
incriminating statements (maybe—but we’ll accept the con-
tention for the sake of argument) and so he probably (we’ll
also assume) would not have been prosecuted. But even if
he would have been prosecuted, a false arrest is an unrea-
sonable seizure, prohibited by the Fourth Amendment
(made applicable to state action by interpretation of the
Fourteenth Amendment) and actionable under 42 U.S.C.
§ 1983. The district judge, however, on the authority of
Booker v. Ward, 94 F.3d 1052 (7th Cir. 1996), held that
Gauger’s claim of false arrest was barred by the two-year
statute of limitations applicable to Fourth Amendment
complaints filed in Illinois. Ashafa v. Chicago, 146 F.3d 459,
461 (7th Cir. 1998). The judge was mistaken if Gauger’s
false-arrest claim did not arise until the charges against him
were dropped in 1996, for that was within the two-year
statute of limitations as extended by tolling agreements
between him and the defendants made in 1997 and 1998.
10 No. 02-3841
A constitutional claim that if vindicated would undermine
a state conviction cannot be filed until the conviction is
nullified, even if the claimant is not seeking to get the
conviction set aside. Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). But Booker holds that since a false arrest is not a
defense to criminal charges, e.g., Copus v. City of Edgerton,
151 F.3d 646, 648-49 (7th Cir. 1998), determining that an
arrest violated the Fourth Amendment does not undermine
the defendant’s conviction and therefore the claim arises,
and the statute of limitations begins to run, when the arrest
is made. E.g., Gonzalez v. Entress, 133 F.3d 551, 552-53 (7th
Cir. 1998); Beck v. City of Muskogee Police Dept., 195 F.3d 553,
558-59 (10th Cir. 1999); Montgomery v. De Simone, 159 F.3d
120, 126 n. 5 (3d Cir. 1998). But that is in general, not in
every case. See, besides the Okoro decisions discussed be-
low, Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239
F.3d 892, 899-900 (7th Cir. 2001); Perez v. Sifel, 57 F.3d 503,
505 (7th Cir. 1995) (per curiam); Cabrera v. City of Huntington
Park, 159 F.3d 374, 380 (9th Cir. 1998). Snodderly holds that
“claims resembling malicious prosecution do not accrue
until the prosecution has terminated in the plaintiff’s favor,
and . . . claims for unlawful arrests made on warrants are
really claims for malicious prosecution.” These are actually
one point rather than two. A warrant is legal process, and so
a complaint about conduct pursuant to it is a challenge to
legal process and thus resembles malicious prosecution.
It is true that some cases say that “in all cases” of false
arrest the plaintiff’s claim can go forward before the con-
viction is nullified. E.g., Copus v. City of Edgerton, supra, 151
F.3d at 648 (emphasis added). Yet these dicta, which misled
the Ninth Circuit in Harvey v. Waldron, 210 F.3d 1008,
1015 (9th Cir. 2000), into believing that our court never
allows the filing of a false-arrest charge to be deferred until
the plaintiff’s conviction falls, are in tension with such
No. 02-3841 11
statements in the same opinions as that “we cannot say with
certainty that success on Copus’ § 1983 claim ‘necessarily’
would impugn the validity of his conviction.” Copus v. City
of Edgerton, supra, 151 F.3d at 650 (emphasis added). The
implication is that not always but sometimes a successful
challenge to a false arrest can indeed impugn the validity of
the plaintiff’s conviction. What we have rejected is a rule
that false-arrest and other Fourth Amendment claims are
always premature while the plaintiff still faces criminal
punishment. Gonzalez v. Entress, supra, 133 F.3d at 553-54.
Gauger made incriminating statements during the inter-
rogation that followed his arrest. The Supreme Court held
in Wong Sun v. United States, 371 U.S. 471, 484-86 (1963), that
statements that are the fruit of a false arrest are inadmissi-
ble, see also Taylor v. Alabama, 457 U.S. 687, 689-93 (1982);
Brown v. Illinois, 422 U.S. 590, 601-05 (1975), just as the
Illinois Appellate Court determined when it held that
Gauger had been arrested without probable cause and that
therefore the statements he made in his interrogation could
not be used in evidence against him. For Gauger to mount
an attack based on 42 U.S.C. § 1983 on his arrest was im-
plicitly to challenge the legality of his conviction, which
rested crucially on the statements that he made to the police
when he was questioned after being arrested. Earlier we
said that he might well have been prosecuted even if his
version of the interrogation had been accepted, because his
version was incriminating though not as much so as the
prosecutors’ version. With no statement at all in evidence,
however, he could not have been convicted of guilt of his
parents’ murder beyond a reasonable doubt; the other evi-
dence—the lack of forced entry or signs of struggle, for
example—was probative merely as corroboration of his
statements construed as a confession or at least as damaging
admissions. So when he showed that the statements were
the product of a false arrest and hence were inadmissible at
12 No. 02-3841
his criminal trial, he successfully impugned the validity of
his conviction, as the state implicitly conceded when it
dropped the charges against him following the reversal of
his conviction. And so until Gauger’s conviction was
nullified (as it was in effect when the charges against him
were dropped), he could not file his false-arrest claim, and
so that claim not time-barred.
This conclusion is bolstered by our twin Okoro cases,
Okoro v. Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999), and
Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003). Okoro was
convicted of a drug offense on the basis of heroin found
during a search of his home. The conviction was never
reversed or otherwise nullified. Claiming that the police had
stolen jewelry belonging to him during the search, he
brought a federal civil rights suit. We held that the suit was
barred by Heck because he insisted not only that the police
had stolen his jewels but that they had lied in testifying that
he had heroin. Thus, if he was believed, he should not have
been convicted, because the heroin was essential to the
conviction; and so his Fourth Amendment suit for the
allegedly stolen jewelry was barred. See also Covington v.
City of New York, 171 F.3d 117, 119-29 (2d Cir. 1999); Hudson
v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996); Woods v. Candela,
47 F.3d 545, 546 (2d Cir. 1995) (per curiam). Likewise here,
if Gauger was falsely arrested and therefore the statements
he made were inadmissible, there isn’t enough other evi-
dence to support the conviction.
It might be argued that Gauger could have sued right
after his arrest, even if he might also have waited until his
criminal conviction was thrown out. But we do not think
that such a conclusion would be consistent with Heck. For he
could not knock out the arrest without also (by virtue of
Wong Sun) invalidating the use in evidence of his admis-
sions, without which, as we have said, he could not be con-
No. 02-3841 13
victed. Heck, to repeat, says that a criminal defendant can’t
sue for damages for violation of his civil rights, if the
ground of his suit is inconsistent with his conviction having
been constitutional, until he gets the conviction thrown out.
We think that in these circumstances Gauger’s false-arrest
claim did not accrue until his conviction was reversed, and
so it was not untimely; therefore this part of the judgment
for the defendants must be vacated and the case remanded.
Prudence dictates that we also vacate the dismissal of
Gauger’s supplemental state-law claim for false arrest and
remand it for reconsideration; though it appears that the
applicable statute of limitations for that claim is only one
year, see 745 ILCS 10/8-101; Luciano v. Waubonsee Commu-
nity College, 614 N.E.2d 904, 910 (Ill. App. 1993); Henderson
v. Bolanda, 253 F.3d 928, 932 (7th Cir. 2001), that issue has
not been briefed and we do not even know whether Illinois
would apply the Heck doctrine as we would—or at all; for it
is not bound to apply Heck to claims under Illinois law.
For guidance on remand, we consider briefly what dam-
ages Gauger can seek if he prevails on his false-arrest claim.
It might seem as a matter of first principles that they would
not be limited to the damages he sustained before he was
formally charged, even though he has failed to make a case
that his prosecution and ensuing imprisonment violated his
federal rights. A successful tort plaintiff is entitled to all
damages that are a foreseeable consequence of the tort, and
we have said that this principle is equally applicable to
constitutional torts, including false arrest. Herzog v. Village
of Winnetka, 309 F.3d 1041, 1044 (7th Cir. 2002). So one might
think that Gauger’s damages would include the damages
that resulted from the incarceration that ensued from the
train of events set in motion by the arrest. In Heck, however,
the Supreme Court quoted W. Page Keeton et al., Prosser and
Keeton on the Law of Torts, § 119, p. 888 (5th ed. 1984),
14 No. 02-3841
favorably for the proposition that “if there is a false arrest
claim, damages for that claim cover the time of detention up
until issuance of process or arraignment, but not more.” 512
U.S. at 484. As explained in subsequent cases, notably Hector
v. Watt, 235 F.3d 154, 157-61 (3d Cir. 2000), and Townes v.
City of New York, 176 F.3d 138, 145-48 (2d Cir. 1999), the
interest in not being prosecuted groundlessly is not an
interest that the Fourth Amendment protects.
A basic principle of tort law, invoked by us most recently
in Carter v. United States, 333 F.3d 791, 797 (7th Cir. 2003), is
that liability is limited to the harm that the statute or
common law doctrine that created the liability was intended
to deter. That is why the plaintiff lost in Gorris v. Scott,
(1873-74) L.R. 9 Ex. 125, 1874 WL 16154 (1874), the hardy
perennial that we cited in Carter. The plaintiff’s animals,
while being transported on the defendant’s ship, were
washed overboard and drowned when a storm struck it.
The ship was not equipped with pens required by a statute
to prevent the spread of disease among the animals. Had
there been pens, the animals would have been saved. The
suit for their loss was based on the violation of the statute
but failed anyway because the statute was not aimed at pre-
venting animals from being washed overboard. It is the
same here: the Fourth Amendment is aimed at deterring
unreasonable searches and seizures, not malicious prosecu-
tions. Therefore Gauger’s damages will be limited to the
harm that he incurred from the false arrest before he was
charged.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
A true Copy:
Teste:
No. 02-3841 15
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-03