In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3357
KEITH HARRIS,
Plaintiff-Appellant,
v.
DENNIS KUBA and EDWARD MUZZEY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 238—David R. Herndon, Judge.
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ARGUED DECEMBER 1, 2006—DECIDED MAY 18, 2007
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
MANION, Circuit Judges.
MANION, Circuit Judge. In 1979, a jury convicted Keith
Harris of armed robbery and attempted murder, and an
Illinois judge sentenced him to fifty years in prison. After
spending more than twenty years in prison, then-Governor
George Ryan granted Harris a full pardon based on
innocence and expunged the conviction on January 10,
2003. Harris claims that he was falsely convicted based
on the actions of two police officers, and he sued those
officers under 42 U.S.C. § 1983, alleging that they vio-
2 No. 05-3357
lated his constitutional right to due process by not turning
over three pieces of evidence to the prosecutors before trial
and by making false statements to the prosecutor during
post-trial motions. The district court granted summary
judgment to the officers, Harris appeals, and we affirm.
I.
In the early morning hours of December 4, 1978, Mark
Resmann was tinkering with his car at the Caseyville Shell
Station where he worked. Two men entered the store, one
with a rifle and one with a handgun. They demanded
money, and Resmann turned over about forty dollars from
his pocket. The man with the rifle then directed Resmann
to the back office of the store to search for more money.
Resmann gave them about $150 from an envelope in the
back room. The man with the handgun took the money,
while the man with the rifle instructed Resmann to lie
down on the floor. The man then took aim with his rifle
and shot Resmann about six times. The two men then
started to leave, and Resmann tried to get up. The man
with the rifle returned to the back room, ordered Resmann
to lie down, and shot Resmann again. The pair then
departed and somehow Resmann managed to call the
police.
Resmann described his assailants to the officer who
found him in the back room. Relevant here, he described
the individual with the rifle as a dark-skinned black male,
5’10", approximately 25-30 years old, and having a deep
voice. He also gave a description of his clothes. Later in
the day, he elaborated on the description to an officer at
the hospital, stating that the man with the rifle had a
thin build, and was 20-30 years old. Officer Dennis Kuba
No. 05-3357 3
also came to the hospital and showed Resmann a set of
photographs. In the first set, Resmann did not identify any
individual as his assailant. A few days later, Officer Kuba
returned with additional photographs, and Resmann
picked out two photographs of individuals who looked
similar to his assailants, but he did not make any identifica-
tions from those photographs. Almost a month after the
shooting, another officer presented Resmann with a set of
photographs, one of which was a photograph of plaintiff
Harris. Resmann identified another photograph as the
assailant with the pistol, but did not pick out Harris’s
photograph, or identify any individual as the assailant
with the rifle. On February 1, 1979, Resmann went to the
police station to view a line-up where each of the partici-
pants was required to speak. At the time of the line-up,
Harris was eighteen years old, 5’9", and weighed 149
pounds. Resmann identified Harris as the assailant with
the rifle.
Harris subsequently faced trial for attempted murder
and armed robbery along with Bryan Lawrence. The
prosecution relied solely on Resmann’s identification of the
assailants as evidence of guilt. By the time of trial, police
officers had yet to recover the gun, fingerprints, clothing,
or other evidence linking Harris to the crime. Harris’s
defense at trial relied solely on mistaken identity. He
argued that he was light-skinned, not dark-skinned as
Resmann had originally stated, and that his features
became familiar to Resmann because his photograph
was shown to Resmann before the line-up, even though
Resmann did not initially identify him. Additionally,
Harris had a twin brother who testified at trial that he was
Harris’s twin, a fact defense counsel argued cast doubt on
Harris’s identity as the perpetrator. Resmann testified at
4 No. 05-3357
trial and repeated his identification in court, and explained
that he “knew [Harris’s] face, and as soon as he turned
around, and I recognized the voice, the voice hit me . . . it
rang something in my head, just right off the bat.” A jury
found Harris guilty of armed robbery and attempted
murder, and on June 8, 1979, the court sentenced him to
fifty years’ imprisonment.
The shooting at the Caseyville Shell Station, however,
may not have been an isolated crime. Ballistics testing on
the bullets recovered from the Shell Station shooting
linked the shooting to two other local crimes, a shooting
and robbery at the Perfect Circle Donut Shop about an
hour before the Shell Station crime, and a robbery and
murder at the Mexico City Café about three weeks later.
Harris’s counsel received this ballistics evidence before
trial. A victim of the Mexico City Café shooting had also
identified Harris as the assailant from a photograph. Police,
however, determined by visiting Harris’s employer that he
had an alibi for the Mexico City Café shooting because
he had been at work during that shooting. This alibi
evidence for the Mexico City Café shooting was not given
to defense counsel. Harris was never charged in the other
two crimes. Another individual, Randolph Chamberlain,
supposedly confessed to the Mexico City Café shootings.
Adding a further complication, three other individuals
confessed to the Caseyville Shell Station shooting after
Harris and Lawrence were convicted. On September 9,
1979, Girvies Davis confessed to committing the crime (in
addition to the shootings at the donut shop and café, as
well as others) along with Ricky Holman. A few days later,
Holman likewise confessed to committing the crime (also
in addition to the shootings at the donut shop, café, and
others). Davis was able to lead officers to an individual
No. 05-3357 5
who had sold the rifle used in the shooting, and the
police recovered the weapon. Fred Tiller also admitted to
a prison guard that he committed the crime, but when
interviewed by police, he terminated the interview. Nota-
bly, Harris, Davis, and Tiller were all incarcerated in the
same prison and cell block at the same time. Officers Kuba
and Muzzey, who were investigating the crimes, theorized
that Harris and Lawrence had convinced these others to
confess, since the others were already facing multiple
murder charges.
Harris was released from prison in 2001, and in 2003
Governor George Ryan ultimately granted Harris a par-
don and expungement of his record based on innocence.
Harris received $154,000 from the State of Illinois as
compensation, but this compensation did not settle any
potential claims against Officers Kuba and Muzzey. Harris
subsequently brought suit against the officers, claiming
that they failed to turn over exculpatory evidence to the
prosecutor and made false statements to the prosecutor
regarding the case. Specifically, Harris points to three
pieces of information that he claims Officer Kuba allegedly
should have given to the prosecution, and in turn to
defense counsel: (1) the fact that Harris had an alibi for the
Mexico City Café shooting, (2) that a victim of the Mexico
City Café shooting identified Harris as the perpetrator, and
(3) that Chamberlain allegedly confessed to the Mexico
City Café shooting. Harris also claims that while his
motions for post-trial relief were pending, Officers Kuba
and Muzzey told the prosecutors that Harris associated
with and knew Davis, knowing this to be false. The district
court granted summary judgment to the officers. Harris
appeals.
6 No. 05-3357
II.
Harris’s claim arises from 42 U.S.C. § 1983, which
creates a cause of action against “[e]very person, who,
under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Colum-
bia, 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.” 42
U.S.C. § 1983. The Supreme Court has “ ‘repeatedly noted
that 42 U.S.C. § 1983 creates a species of tort liability.’ ”
Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quoting Mem-
phis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)
(internal quotation omitted)). This liability “cannot be
founded on negligence.” Loubser v. Thacker, 440 F.3d 439,
442 (7th Cir. 2006) (citing, inter alia, Daniels v. Williams, 474
U.S. 327, 330 (1986)). To satisfy section 1983, Harris must
demonstrate not only that Officers Kuba or Muzzey vio-
lated his constitutional rights, but also that the violation
caused Harris injury or damages. See Berman v. Young,
291 F.3d 976, 982 (7th Cir. 2002) (noting that plaintiff
must “produce evidence that she sustained actual injury
and that her injuries had a causal connection with the
alleged due process violation” (citations omitted)).
Harris claims that Officers Kuba and Muzzey violated his
constitutional rights under Brady v. Maryland and are
therefore liable under section 1983. In Brady v. Maryland,
373 U.S. 83, 87 (1963), the Supreme Court held that the
right to due process and a fair trial requires that the
prosecutor turn over to the defense all potentially ex-
culpatory evidence. That obligation extends to police offi-
cers, insofar as they must turn over potentially exculpa-
tory evidence when they turn over investigative files to the
No. 05-3357 7
prosecution. See Newsome v. McCabe, 256 F.3d 747, 752 (7th
Cir. 2001) (“If officers are not candid with prosecutors, then
the prosecutors’ decisions—although vital to the causal
chain in a but-for sense—are not the important locus of
action. Pressure must be brought to bear elsewhere. . . .
Requiring culpable officers to pay damages to the victims
of their actions, however, holds out promise of both
deterring and remediating violations of the Constitution.”).
In this case, Harris alleges that Officer Kuba is liable under
section 1983 for violating Brady by failing to turn over
evidence to the prosecutor, and that both Officers Kuba
and Muzzey are liable under section 1983 for violating
Brady because they made false statements to the prosecutor.
To establish a Brady violation, Harris must show three
elements: “(1) the evidence at issue is favorable to the
accused because it is either exculpatory or impeaching; (2)
the evidence has been suppressed by the government,
either willfully or inadvertently; and (3) the suppressed
evidence resulted in prejudice.” United States v. O’Hara,
301 F.3d 563, 569 (7th Cir. 2002) (citation omitted). Preju-
dice exists if there is “a reasonable probability that the
suppressed evidence would have produced a different
verdict.” Id. (citation and internal quotation omitted). A
Brady violation further requires “materiality” of the
evidence withheld, which “in the Brady context is the same
thing as prejudice.” United States v. Wilson, 481 F.3d 475,
480 (7th Cir. 2007). This court stated,
The [Supreme] Court has further explained that “there
is never a real ‘Brady violation’ unless the nondis-
closure was so serious that there is a reasonable proba-
bility that the suppressed evidence would have pro-
duced a different verdict.” We have described this
inquiry as “materiality,” and stated that the demonstra-
8 No. 05-3357
tion of materiality is the key to obtaining a new trial
where a defendant alleges a Brady violation.
United States v. Baker, 453 F.3d 419, 422 (7th Cir. 2006)
(quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)) (cita-
tion omitted).
Harris first claims that Officer Kuba, who was in
charge of the Caseyville Shell Station investigation, failed
to turn over three pieces of evidence to the prosecutors,
and thus to Harris: (1) Harris’s alibi for the Mexico City
Café shooting, (2) a victim’s identification of Harris as the
perpetrator of the Mexico City Café shooting, and (3)
Chamberlain’s confession to the Mexico City Café shooting.
As discussed below, we conclude that this evidence was
not suppressed and has limited, if any, favorability.
Therefore, there is no Brady violation that could support a
section 1983 claim. As the evidence does not meet these
two requirements, we need not address its prejudice or
materiality.
First of all, Harris was not charged in the Mexico City
Café shooting and no evidence in the charged Caseyville
Shell Station crime was suppressed. Evidence is sup-
pressed “if (1) the prosecution failed to disclose the evi-
dence before it was too late for the defendant to make use
of the evidence, and [relevant here] (2) the evidence
was not otherwise available to the defendant through the
exercise of reasonable diligence.” O’Hara, 301 F.3d at 569
(citation omitted). The fact that Harris had an alibi for
the Mexico City Café shooting was “otherwise available”
to Harris. Id. The file turned over to Harris’s counsel
contained a ballistics report indicating that the Mexico City
Café shooting occurred in December 1978. With minimal
research, Harris’s attorney could have ascertained the date
of the Mexico City Café crime and could have checked
No. 05-3357 9
Harris’s employment record or inquired of Harris wheth-
er he had an alibi on that date. Since Harris knew where
he was (and was not) at the time, counsel surely would
have done so had Harris been charged in the Mexico City
Café incident. But Harris was not charged with that crime,
so there was no reason for the government to disclose
(what Harris already knew) that he was at his workplace
at the time. See United States v. White, 970 F.2d 328, 337
(7th Cir. 1992) (“ ‘While the Supreme Court in Brady held
that the government may not properly conceal exculpatory
evidence from a defendant, it does not place any bur-
den upon the government to conduct a defendant’s in-
vestigation or assist in the presentation of the defense’s
case.’ ” (quoting United States v. Marrero, 904 F.2d 251, 261
(5th Cir. 1990)). In United States v. Lee, 399 F.3d 864 (7th Cir.
2005), we addressed a defendant’s claim that the prosecu-
tor violated Brady by failing to produce a pair of pants that
the defendant had worn and in which a firearm was
recovered. In finding this claim to be without merit, we
emphasized that “Brady v. Maryland, 373 U.S. 83 (1963),
deals with the concealment of exculpatory evidence
unknown to the defendant.” Lee, 399 F.3d at 865. Since “Lee
was aware of his own pants,” the claim was not properly
one under Brady. Id. Harris’s own alibi was not concealed
from him and is therefore not properly a claim under
Brady.
Similarly, the defense had evidence that the same
weapon was used in the three crimes. Harris’s attorney
could have sought information about those other crimes to
show that Harris did not commit those crimes, and there-
fore was not guilty of this crime. The evidence of the
Mexico City Café victim’s identification of Harris and
Chamberlain’s confession were therefore available to
10 No. 05-3357
Harris and his counsel with minimal research or discovery
through the exercise of reasonable diligence. United States
v. Senn, 129 F.3d 886, 893 (7th Cir. 1997) (“[T]he govern-
ment did not suppress the evidence because the defendants
could have obtained it before trial through the exercise of
reasonable diligence”). Without demonstrating suppres-
sion, there was no Brady violation and therefore Harris’s
section 1983 claim fails.
Furthermore, the pieces of evidence he cites are hardly
favorable. To be favorable, evidence must be either excul-
patory or impeaching. Strickler, 527 U.S. at 281-82. None
of the pieces of evidence that Harris points to, when
considered at face value, is exculpatory of Harris with
respect to the Caseyville Shell Station shooting or im-
peaches Resmann’s identification of Harris. Rather, the
evidence is arguably favorable only after several inferences
are made. For example, the fact that a victim identified
Harris in a photo array as the perpetrator of the Mexico
City Café shooting was favorable only to the extent that his
workplace alibi kept him from being charged in that
incident. The fact that ballistics evidence indicated that the
same gun was used at the Mexico City Café and the
Caseyville Shell Station does not help Harris. At best, a
photograph of him looked like the person who used the
same gun at Mexico City Café that later was used at the
Caseyville Shell Station where the victim, Resmann,
testified that he watched Harris shoot him six times at
point-blank range. The facts that Chamberlain confessed
to the Mexico City Café shooting and that Harris had an
alibi for that shooting are not relevant to the charged
Caseyville Shell Station shooting. Those facts do not
directly bear on Harris’s guilt for the Caseyville Shell
Station shooting, and are therefore not exculpatory or
No. 05-3357 11
impeaching. Harris tries to connect these pieces of infor-
mation to craft a defense theory, as follows: Harris must
look like Chamberlain, and since Chamberlain confessed
to the related Mexico City Café shooting, Chamberlain
must be guilty of both shootings and Harris must be
innocent of both. This stretches the meaning of “favorable”
beyond that of Brady; as noted above, it is not the responsi-
bility of the police or prosecutors to craft a defense theory.
White, 970 F.2d at 337. None of these pieces of evidence is
exculpatory for Harris regarding the crime for which he
was charged, the Caseyville Shell Station shooting. Even
in the face of the victim’s eye-witness account and identifi-
cation, defense counsel could have crafted this defense
theory from the investigatory file that was turned over; the
ballistics evidence connecting the shootings was disclosed,
and with further research, counsel could have made this
argument. Brady does not require that police officers or
prosecutors explore multiple potential inferences to discern
whether evidence that is not favorable to a defendant
could become favorable. See United States v. Tadros, 310 F.3d
999, 1005 (7th Cir. 2002) (“This court has held many times
that Brady does not require the government to gather
information or conduct an investigation on the defendant’s
behalf.” (citation omitted)). Such is the work for defense
counsel, not the officers or prosecutors. Since the evidence
Harris points to was neither suppressed by Officer Kuba
nor favorable to Harris’s defense, his Brady claim must
fail, and we need not reach whether prejudice resulted.
Finally, Harris claims that both Officers Kuba and
Muzzey lied to the prosecutors to preserve the conviction
by telling the prosecutors that Davis and Harris associated
on the street and that this must be the basis for the
false confession. The prosecutors apparently defended the
12 No. 05-3357
conviction on this basis. Although Harris characterizes this
claim as a Brady violation creating section 1983 liability,
Brady does not apply. Harris essentially seeks an extension
of Brady to provide relief if a police officer makes a false
statement to a prosecutor by arguing that an officer is
“suppressing” evidence of the truth by making the false
statement. This court has already foreclosed this extension.
As we stated in Sornberger v. City of Knoxville, 434 F.3d 1006,
1029 (7th Cir. 2006) (citation omitted):
Nor can Brady serve as the basis of a cause of action
against the officers for failing to disclose these circum-
stances [a coerced confession] to the prosecutor. . . .
The Constitution does not require that police testify
truthfully; rather “the constitutional rule is that the
defendant is entitled to a trial that will enable jurors
to determine where the truth lies.”
Furthermore, in Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir.
2003) (internal citations omitted) overruled in part on other
grounds by Wallace v. City of Chicago, 440 F.3d 421, 423 (7th
Cir. 2006), we noted that:
We find the proposed extension of Brady [to require
the police to render truthful records of interrogations
to the prosecutors] difficult even to 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. 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-
No. 05-3357 13
ment the prosecution deprived the defendant of Brady
material, that is, the correction itself.
Like Gauger, Harris knew about his relationship, or lack
thereof, with Davis. He was fully capable of challenging
the officers’ and prosecutors’ contention to the contrary.
Accordingly, Harris’s theory does not constitute a viable
claim under Brady, the only form of constitutional claim he
propounds, and therefore his section 1983 claim is with-
out merit.
III.
Because the evidence pointed to by Harris was neither
favorable nor suppressed, and because there is no relief
available under Brady for an officer’s false statement,
Harris is not entitled to relief and we AFFIRM the judg-
ment of the district court.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-18-07