In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1711
JEREMY D. CAIREL AND MARVIN JOHNSON,
Plaintiffs‐Appellants,
v.
JACOB ALDERDEN, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 1878 — John F. Grady, Judge.
____________________
ARGUED MAY 27, 2015 — DECIDED MAY 5, 2016
____________________
Before POSNER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal presents several is‐
sues concerning the scope of civil remedies available to peo‐
ple who are mistakenly arrested and charged with crimes. In
2007, plaintiffs Jeremy Cairel and Marvin Johnson were help‐
ing a friend repossess cars lawfully when they were stopped
for a traffic violation. The officers conducting the stop, aware
of a recent string of robberies in the area, grew suspicious and
called a robbery victim to the scene. The victim identified
2 No. 14‐1711
Cairel and Johnson as the men who had robbed him the night
before. The officers arrested them on the spot. When ques‐
tioned later by detectives, Cairel eventually confessed to sev‐
eral robberies and implicated Johnson in one.
Prosecutors filed charges against both Cairel and Johnson.
Johnson pled guilty in exchange for probation. Further inves‐
tigation, however, revealed that both Cairel and Johnson were
actually innocent. Over a year after the arrests, prosecutors
dismissed Cairel’s case and allowed Johnson to withdraw his
guilty plea. Neither Cairel nor Johnson was imprisoned;
Cairel was never convicted.
Plaintiffs Cairel and Johnson sued the defendant detec‐
tives under 42 U.S.C. § 1983 alleging three federal due process
claims: fabricating Johnson’s confession, failing to disclose a
potential alibi witness, and coercing Cairel’s confession. Plain‐
tiffs also alleged state‐law claims for malicious prosecution
and intentional infliction of emotional distress. The district
court granted summary judgment for defendants, and plain‐
tiffs appealed.
We affirm. First, summary judgment was properly
granted on plaintiffs’ federal due process claims. Plaintiffs’
fabrication claim is foreclosed because they were not deprived
of sufficient liberty to support their claim. Plaintiffs’ suppres‐
sion claim fails because they have no evidence that defend‐
ants concealed evidence unknown to plaintiffs supporting
their alibi or that any failure to disclose caused a deprivation
of liberty. Cairel’s substantive due process claim for coercion
fails because no reasonable jury could find that his interroga‐
tion “shocked the conscience.” Plaintiffs’ state‐law claims also
fail. Probable cause for the criminal charges defeats the claims
for malicious prosecution, and no reasonable jury could find
No. 14‐1711 3
that defendants’ conduct was so “extreme and outrageous” as
to prove intentional infliction of emotional distress.
I. Facts for Summary Judgment
A. The Traffic Stop
This suit arises out of the arrest and subsequent treatment
of the two plaintiffs in this case, Jeremy Cairel and Marvin
Johnson. In 2006, both spent some time repossessing cars for
a friend, Eric Moore, who worked for a car repossession com‐
pany. Neither plaintiff was actually employed by the com‐
pany. They helped Moore informally in return for cash.
Plaintiffs were arrested on the evening of January 24, 2007,
when they and Moore were out repossessing cars. Two police
officers stopped plaintiffs’ car after seeing several traffic vio‐
lations. Johnson told the officers that they were in the area to
repossess cars. Moore provided the officers with paperwork
showing that they were doing legitimate repossessions.
B. Evidence Supporting Probable Cause
The incident might not have aroused the officers’ suspi‐
cions, but they knew that in the weeks before the traffic stop,
the area had seen a string of robberies in which robbers had
impersonated police officers, pulled over cars, and robbed the
occupants. Just the night before the plaintiffs were stopped,
Joseph Micetich had been robbed in this way.
The police asked Micetich to come to the scene of plain‐
tiffs’ traffic stop. Defendants contend that, upon arriving, Mi‐
cetich identified Cairel and Johnson as the men who robbed
him. Plaintiffs offer evidence that Moore overheard Micetich
express uncertainty and that Micetich never actually affirma‐
tively identified plaintiffs at the scene. We assume that
4 No. 14‐1711
Moore’s account is true, but it is also undisputed that Micetich
later told police he was confident in his identification. Even
years later he said he was still “absolutely sure that Jeremy
Cairel and Marvin Johnson are the men who robbed me.” Fol‐
lowing this disputed identification, the police arrested Cairel
and Johnson and took them back to the station.
At that point, Detectives Jacob Alderden and Patrick John‐
son—both defendants in this case—became involved. First,
the detectives spoke with the arresting officers and then with
Micetich, who confirmed his identification of Cairel and John‐
son as the men who robbed him. This time, Micetich said he
was absolutely sure of his identifications. Second, the detec‐
tives compared Micetich’s descriptions of the robbers from the
night before to Cairel and Johnson. There were discrepancies.
Micetich, who viewed the robbers from his car while being
robbed, had previously described the robbers as a black man
who was five feet, six inches tall and a Hispanic man who was
six feet tall. Johnson is black and five feet, eight inches tall,
while Cairel is white and six feet, five inches tall. The detec‐
tives did not think these discrepancies were particularly great,
especially given Micetich’s certainty and the fact that the ini‐
tial observation occurred at night.
The detectives then questioned Cairel. He appeared upset
throughout the interrogation. Although Cairel initially de‐
nied having committed the robbery and later turned out to be
innocent, he eventually told the detectives that he, Moore, and
Johnson had actually robbed several people, including a man
who might have been Micetich.
To support their claims that the detectives took unfair ad‐
vantage of Cairel, plaintiffs emphasize that Cairel had been
diagnosed with an unspecified learning disability and had
No. 14‐1711 5
low IQ scores consistent with that diagnosis. A psychological
examination suggested that Cairel’s disability could cause
him to agree mistakenly with someone else’s statements. The
detectives have produced expert testimony suggesting that
they would not have been able to tell that Cairel lacked the
ability to comprehend the content and consequences of his
confession simply from talking to him. Plaintiffs have offered
evidence that Moore told the detectives that Cairel had been
in special education classes and had a learning disability.
The detectives then confronted Johnson with what Cairel
had said. Plaintiffs and defendants disagree about the events
that followed. According to defendants, Johnson corrobo‐
rated Cairel’s confession. Johnson denies that he ever con‐
fessed to the robberies. (He would later plead guilty in ex‐
change for probation.) For purposes of summary judgment,
we must assume that Johnson’s confession was fabricated by
the detectives.
Finally, Detective Alderden interviewed Moore. Moore
denied committing any robberies and provided an alibi for
the Micetich robbery. He made it clear that he, Cairel, and
Johnson had been transporting cars elsewhere. Other detec‐
tives, including Luis Otero, who is also a defendant in this
case, visited the repossession company the next day. The de‐
tectives confirmed that Moore worked for the company and
had repossessed cars on the day of the Micetich robbery. The
alibi was not airtight, though. Nothing in the records con‐
firmed the exact times when plaintiffs were repossessing the
cars that day.
The detectives then brought in Elias Arias, who had also
been robbed by men impersonating police officers. He identi‐
6 No. 14‐1711
fied Cairel in a line‐up as one of the robbers. Arias’s initial de‐
scription had suggested that he was robbed by one white male
who was in his forties and was five feet, two inches tall, and
another white male who was between five feet, eight inches
and ten inches tall. Even though these also differed consider‐
ably from Cairel, in Detective Alderden’s view these discrep‐
ancies did not exclude Cairel because witness estimates of
height and age are often imprecise and because Arias seemed
confident about his identification in the line‐up.
C. Plaintiffs Are Charged
At that point, Detective Alderden felt he had enough to
take Cairel’s case to Assistant State’s Attorney Elizabeth Ciac‐
cia. Cairel maintains that the detective told him that if he
helped out Ciaccia, he would be able to go home. Ciaccia ini‐
tially met with Cairel alone and asked him if he had been
treated well. Cairel said that he had been, and he confirmed
that he had not been threatened or promised anything. Cairel
told the prosecutor about the Arias and Micetich robberies.
The prosecutor then put Cairel’s confession in writing, read‐
ing aloud each page while Cairel made changes as she went
along. Cairel said that he and Johnson had robbed Micetich
and that he and Moore had robbed Arias. Cairel admits that
he signed the documents and agreed to them at the time they
were written, but now it is clear that none of it was actually
correct. The prosecutor then interviewed Johnson, but he did
not admit to her any criminal activity.
Cairel was charged with armed robbery for the Arias rob‐
bery, aggravated robbery for the Micetich robbery, and two
counts of aggravated false “personation” of a peace officer.
See 720 ILCS 5/32‐5.2 (2007). Johnson was charged with ag‐
No. 14‐1711 7
gravated robbery of Micetich and aggravated false “persona‐
tion” of a peace officer. Moore was not charged. Johnson and
Cairel were released from Cook County Jail after a few days
in police custody when their families posted bond.
D. The Cases Collapse
Over the next several months, however, the cases against
Cairel and Johnson weakened and eventually collapsed. De‐
tective Alderden did not assume the cases were closed. He
took another look at the repossession orders and found that
some of the people Cairel claimed he had robbed had actually
had their cars repossessed lawfully. Detective Alderden made
sure to document these discrepancies in a report on April 14,
2007, which he passed on to the prosecutor handling the crim‐
inal cases.
The second development that shook Detective Alderden’s
confidence that Cairel was involved in robberies was that an‐
other man, Joseph Hatzell, was later arrested for a similar
“police impersonation job.” When Hatzell was brought in for
questioning, he said he was fairly certain that Arias was one
of the people he had robbed. Detective Alderden also brought
this to the attention of the prosecutors.
The State dropped the charges against Cairel in March
2008, over a year after the initial arrest. Cairel’s lawyer also
convinced the prosecutors to allow Johnson to vacate his
guilty plea—he had pled guilty so that he could avoid jail
time—after he had served one month of probation.
Plaintiffs then filed suit in federal court against Detectives
Alderden and Johnson, the City of Chicago, and several other
defendants, most of whom have since been dismissed from
8 No. 14‐1711
the case. Plaintiffs alleged federal due process violations, con‐
spiracy to violate constitutional rights, and state law claims
for malicious prosecution and intentional infliction of emo‐
tional distress. Defendants eventually moved for summary
judgment on all of plaintiffs’ claims, and the district court
granted the motion across the board.
II. Standard of Review
We review de novo a district court’s decision to grant a mo‐
tion for summary judgment. Miller v. Gonzalez, 761 F.3d 822,
826 (7th Cir. 2014). We review all evidence in the light most
favorable to the non‐moving parties—here, the plaintiffs—
and give them the benefit of all reasonable inferences from the
evidence in their favor. Id., citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropri‐
ate when no genuine dispute of material fact exists and the
moving parties are entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see also Carroll v. Lynch, 698 F.3d 561, 564
(7th Cir. 2012).
Before we address the merits of plaintiffs’ claims, we first
address their contention that the district court should not
have considered the defendants’ police reports—including
defendants’ own observations and those of eyewitnesses to
the robberies—on summary judgment. To be considered on
summary judgment, evidence must be admissible at trial,
though “the form produced at summary judgment need not
be admissible.” Wragg v. Village of Thornton, 604 F.3d 464, 466
(7th Cir. 2010). If the evidence is inadmissible hearsay, the
courts may not consider it. See Carlisle v. Deere & Co., 576 F.3d
649, 655 (7th Cir. 2009). And when a document contains mul‐
tiple layers of hearsay, as some parts of the police reports do,
each layer must be admissible. See Fed. R. Evid. 805.
No. 14‐1711 9
The district court properly considered the evidence here.
The officers have offered affidavits adopting the substance of
their observations in the police reports as their testimony, a
form that is certainly admissible on summary judgment. To
the extent the officers reported statements made by others—
the robbery victims—those statements were not hearsay be‐
cause they were not offered to prove that they were true. See
Fed. R. Evid. 801(c)(2). The statements by the victims were of‐
fered instead to show the officers had information giving
them probable cause to arrest plaintiffs, as well as to explain
how they perceived Cairel during the interrogation and to
show what information they passed on to prosecutors. See
Woods v. City of Chicago, 234 F.3d 979, 986–87 (7th Cir. 2000).
III. Federal Due Process Claims
We turn to the merits. Plaintiffs maintain that a reasonable
jury could find they were deprived of liberty without due pro‐
cess of law. Plaintiffs argue in essence that the facts known to
the officers and prosecution—including the allegedly coerced
and fabricated confessions—could not have supported their
arrests and the later decision to prosecute. Plaintiffs cannot,
however, bring false arrest claims for violation of their Fourth
Amendment rights. They filed suit well outside the two‐year
statute of limitations period for such claims. See Wallace v. City
of Chicago, 440 F.3d 421, 424–25 (7th Cir. 2006). Nor can they
assert federal constitutional claims for malicious prosecution
because Illinois tort law provides an adequate remedy. New‐
some v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001); see also Ray
v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011).
That leaves plaintiffs with three theories that defendants
deprived them of liberty without due process of law: (1) by
10 No. 14‐1711
fabricating evidence; (2) by withholding exculpatory evi‐
dence from the prosecutors and plaintiffs themselves; and (3)
by coercing a confession from a cognitively impaired person.
On this record, we conclude that the district court correctly
granted summary judgment on these claims.
A. Fabrication of Evidence
Plaintiffs first argue that defendants violated their rights
by fabricating Johnson’s confession and by tampering with or
fabricating the Arias and Micetich identifications. Plaintiffs
emphasize that Johnson has always maintained that he never
confessed and that defendants cannot point to any objective
evidence that he did. As to identifications by the robbery vic‐
tims, plaintiffs emphasize the discrepancies between their in‐
itial descriptions of the robbers and the plaintiffs’ actual ap‐
pearances. They also point to Moore’s affidavit saying that
Micetich was uncertain about his identifications at the scene
of the traffic stop.
Even assuming for the purposes of summary judgment
that defendants fabricated evidence, plaintiffs still could not
prevail on this claim. For such a claim, the plaintiff must have
suffered a deprivation of liberty. See Saunders‐El v. Rohde, 778
F.3d 556, 561 (7th Cir. 2015); see also Alexander v. McKinney,
692 F.3d 553, 557 (7th Cir. 2012). The need to appear in court
and attend trial does not constitute such a deprivation. Saun‐
ders‐El, 778 F.3d at 561, quoting Alexander, 692 F.3d at 557 n.2.
We held in Saunders‐El that a plaintiff who had been released
on bond following his arrest and who was later acquitted at
trial could not maintain a due process claim for fabrication of
evidence. Id. Plaintiffs’ evidence‐fabrication claims are fore‐
closed by our holding in Saunders‐El. Plaintiffs were quickly
released on bond following their arrests. Of course, they were
No. 14‐1711 11
never actually tried, but this, if anything, reduces any burden
plaintiffs may have faced.1
B. Withholding Exculpatory Evidence
Plaintiffs assert constitutional claims based on defendants’
alleged failure to disclose exculpatory evidence of their alibi
to the prosecution and to the plaintiffs themselves. See Brady
v. Maryland, 373 U.S. 83, 87–88 (1963) (state violates due pro‐
cess by failing to disclose material exculpatory evidence to de‐
fense in time for defendant to make use of it). A corollary of
the prosecution’s duty to disclose to the defense is that the po‐
lice must disclose exculpatory evidence to the prosecutors.
See Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007), citing
Newsome, 256 F.3d at 752. A police officer’s failure to disclose
exculpatory evidence to a prosecutor may foreseeably result
in a violation of the accused’s due process rights under Brady.
See Newsome, 256 F.3d at 752.
To prevail on a civil Brady claim against an officer, an ac‐
cused must show that (1) the evidence is favorable to him; (2)
the evidence was concealed by the officer; and (3) the con‐
cealed evidence resulted in prejudice. Harris, 486 F.3d at
1014.2 Prejudice requires proof that the failure to disclose
1 Johnson served one month on probation following his guilty plea. He
has not argued in the district court or on appeal that his probation im‐
posed such a restraint upon his liberty as to support a due process claim.
2 The Brady constitutional standard in a criminal case applies to both will‐
ful and negligent failures to disclose exculpatory evidence. See Strickler v.
Greene, 527 U.S. 263, 281–82 (1999). For civil claims for due process viola‐
tions, though, the general rule is that the defendant must have acted in‐
tentionally or at least recklessly. See generally Daniels v. Williams, 474 U.S.
327 (1986). We can decide this appeal without deciding the required state
of mind here.
12 No. 14‐1711
caused a deprivation of the accused’s liberty. See Armstrong v.
Daily, 786 F.3d 529, 551–52 (7th Cir. 2015) (affirming denial of
dismissal where destruction of exculpatory evidence caused
accused to spend three additional years in prison pending re‐
trial until charges were dismissed). Plaintiffs’ civil Brady
claims fail on summary judgment for three separate reasons.
First, plaintiffs’ Brady theory that the defendant detectives
failed to disclose the alibi evidence to prosecutors fails on the
evidence. While prosecutor Ciaccia said at her deposition that
she did not remember if she was told about Moore and the
alibi he offered, there is no dispute that the police reports
were sent to the prosecution and contained detailed descrip‐
tions of the alibi and the investigation at the repossession cen‐
ter. These undisputed facts show that exculpatory evidence
was not concealed by the detectives as required to establish a
civil Brady claim against them. See Mosley v. City of Chicago,
614 F.3d 391, 397–98 (7th Cir. 2010) (civil Brady claim failed
without evidence that officers withheld any favorable evi‐
dence); cf. Jones v. City of Chicago, 856 F.2d 985, 995–96 (7th Cir.
1988) (civil Brady claim was viable where the prosecutor did
not have access to law enforcement files that “would have
given any prosecutor pause” about whether to proceed to
trial).
Second, the record also could not support plaintiffs’ claim
that defendants concealed evidence of the alibi from the plain‐
tiffs. Plaintiffs themselves were working with Moore during
the times of the alleged robberies and at the time of their ar‐
rest. They were well aware that Moore could provide an alibi
and that records from the repossession company might cor‐
roborate that alibi. The government did not prevent plaintiffs
from speaking with Moore or otherwise conceal the evidence
No. 14‐1711 13
of plaintiffs’ alibi from plaintiffs themselves. The plaintiffs
cannot establish that defendants concealed exculpatory evi‐
dence that was unknown to them as the accused. See Harris,
486 F.3d at 1015, quoting United States v. Lee, 399 F.3d 864, 865
(7th Cir. 2005).
Plaintiffs’ civil Brady claims fail for a third reason, which
is that they also cannot demonstrate a deprivation of liberty
as a result of any alleged failure to disclose the alibi evidence.
See Armstrong, 786 F.3d at 552 (“The prosecution may fulfill
its Brady obligation through disclosure in the time leading up
to or sometimes even during trial.”). Both plaintiffs were re‐
leased after their arrest, and Cairel was never convicted. We
assume that civil Brady claims will be viable most often when
a defendant has been wrongfully convicted and imprisoned
as a result of the Brady violation. See, e.g., Bianchi v. McQueen,
No. 14‐1635, — F.3d — , 2016 WL 1213270, at *8 (7th Cir. March
29, 2016). As we explained in Armstrong, however, the key to
a civil Brady claim is not a conviction or acquittal but a depri‐
vation of liberty. Armstrong, 786 F.3d at 553–55. Under other
circumstances, such as where an accused is held in pretrial
custody before acquittal or dismissal, a failure to disclose ex‐
culpatory evidence may cause the type of deprivation of lib‐
erty required for a Brady claim even if the case ends without a
trial or conviction. Id. at 553 (allowing such a claim for pro‐
longed pretrial detention caused by destruction of exculpa‐
tory evidence).3
3 Because the exculpatory information was available to Johnson before he
pled guilty, we need not decide whether his Brady claim survives his de‐
cision to plead guilty. See McCann v. Mangialardi, 337 F.3d 782, 787–88 (7th
Cir. 2003) (suggesting, but not deciding due to lack of evidence, that a
14 No. 14‐1711
C. Interrogation of Cairel
Plaintiff Cairel’s final federal claim is that defendants vio‐
lated his substantive due process rights when they interro‐
gated him. Cairel argues that because he is cognitively im‐
paired, defendants’ interrogation of him “shocked the con‐
science” and violated the substantive due process guarantees
of the Fourteenth Amendment. A plaintiff may sue under
§ 1983 for police behavior that “shocks the conscience,” in‐
cluding “conscience‐shocking interrogation tactics.” Fox v.
Hayes, 600 F.3d 819, 841 (7th Cir. 2010), citing Rochin v. Califor‐
nia, 342 U.S. 165 (1952), and Wallace v. City of Chicago, 440 F.3d
421, 429 (7th Cir. 2006). Determining what constitutes such be‐
havior can be difficult; the ultimate question is “whether the
conduct is ‘too close to the rack and the screw.’” Id., quoting
Rochin, 342 U.S. at 172. “[L]ying to, threatening, or insulting a
suspect” does not shock the conscience. See id., citing Tinker v.
Beasley, 429 F.3d 1324, 1329 (11th Cir. 2005). And the “official
conduct ‘most likely to rise to the conscience‐shocking level’
is the ‘conduct intended to injure in some way unjustifiable
by any government interest.’” Chavez v. Martinez, 538 U.S. 760,
775 (2003), quoting County of Sacramento v. Lewis, 523 U.S. 833,
849 (1998).
No reasonable juror could find that the tactics the police
used with Cairel shock the conscience. They used ordinary in‐
terrogation tactics. They may have been particularly insistent,
and may have even falsely promised relief if he cooperated,
“Brady‐type disclosure might be required” where “the government pos‐
sesses evidence that would exonerate the defendant of any criminal
wrongdoing but fails to disclose such evidence during plea negotiations
or before the entry of the plea”).
No. 14‐1711 15
but those tactics do not shock the conscience. See Fox, 600 F.3d
at 841.
Plaintiffs contend that interrogation techniques acceptable
in most cases should shock the conscience here because Cairel
has a learning disability. Moore said in his affidavit that he
told defendants that Cairel had a learning disability. That’s
enough for us to assume for purposes of summary judgment
that defendants were aware of Cairel’s disability and knew
that he might not have been fully able to understand what
was going on. Nonetheless, the undisputed facts show that
Cairel appeared to participate fully in the interrogation, cor‐
rected errors in the written confession as needed, and said he
was treated well by the police. The district court correctly
granted summary judgment to defendants on all federal‐law
claims.4
IV. State‐Law Claims
Plaintiffs also assert two state‐law tort claims: malicious
prosecution and intentional infliction of emotional distress.
The district court properly granted summary judgment on
these claims, as well.
A. Malicious Prosecution
To establish a claim for malicious prosecution under Illi‐
nois law, plaintiffs must establish five elements: (1) com‐
mencement or continuation of an original proceeding; (2) ter‐
mination of the proceeding in favor of the plaintiff; (3) the ab‐
sence of probable cause; (4) malice; and (5) damages. Sang Ken
4 Because the district court correctly found no genuine issue on the merits,
we need not address the district court’s other holding that this claim was
time‐barred.
16 No. 14‐1711
Kim v. City of Chicago, 858 N.E.2d 569, 574 (Ill. App. 2006). The
failure to establish any one element bars recovery. Fabiano v.
City of Palos Hills, 784 N.E.2d 258, 265 (Ill. App. 2002). On sum‐
mary judgment, defendants can prevail on such a claim if they
demonstrate that no reasonable jury could find an absence of
probable cause to initiate the charges. Probable cause is de‐
fined as “a state of facts that would lead a person of ordinary
care and prudence to believe or to entertain an honest and
sound suspicion that the accused committed the offense
charged.” Id. at 266. For a malicious prosecution claim, prob‐
able cause is determined based upon the facts known to the
prosecution at the time of filing, “not the actual facts of the
case or the guilt or innocence of the accused.” Sang Ken Kim,
858 N.E.2d at 574.
Plaintiffs argue there was no probable cause for two pri‐
mary reasons. Plaintiffs argue that the confessions of Cairel
and Johnson cannot support probable cause because they co‐
erced Cairel’s confession and fabricated Johnson’s confession.
Plaintiffs also contend that disparities and hesitation in the
robbery victims’ identifications mean they also cannot sup‐
port probable cause. The undisputed facts show, however,
that the defendants had probable cause to arrest and charge
Cairel and Johnson.
When Cairel was first charged, nothing about his confes‐
sion undermined probable cause to believe that his confession
was true, that two victims had identified him as a robber, and
that he had committed the crimes to which he confessed.
Johnson presents a different problem. We must assume on
summary judgment that he did not in fact confess and that the
detectives fabricated the reported confession. We could not
affirm summary judgment on the theory that his confession
No. 14‐1711 17
provided probable cause. Cf. Washington v. Amatore, 781 F.
Supp. 2d 718, 720 (N.D. Ill. 2011) (holding, in malicious pros‐
ecution case, that genuine issue of material fact about proba‐
ble cause based upon marijuana found in car precluded sum‐
mary judgment where plaintiff alleged that marijuana was
planted by defendant officer).
The problem for plaintiffs is that probable cause against
Johnson was also based on both Cairel’s confession and the
identification by Micetich of Cairel and Johnson as the men
who robbed him. See Aleman v. Village of Hanover Park, 662 F.3d
897, 907 (7th Cir. 2011) (“Villanueva cannot be said to have
lacked probable cause in preparing the charge of aggravated
battery merely because he based the charge in part on the
worthless ‘confession’ that he … had extracted from Ale‐
man.”); Nugent v. Hayes, 88 F. Supp. 2d 862, 869 (N.D. Ill. 2000)
(“Even excluding all of the evidence Mr. Nugent claims is
tainted or concocted and including all of the evidence that Mr.
Nugent believes is exculpatory, the remaining evidence and
testimony establishes probable cause to believe that Mr.
Nugent [committed murder].”); Sang Ken Kim, 858 N.E.2d at
578–79 (affirming summary judgment because probable cause
existed at time of arrest despite later recantation of accusation
and allegedly coercive interrogation).
Plaintiffs have offered evidence that Micetich expressed
some hesitation during his initial identifications and that the
identifications did not match his earlier descriptions very
well. However, it is undisputed that Micetich did in fact iden‐
tify Cairel and Johnson as the men who robbed him the night
before and that Micetich remained confident in his identifica‐
tion after that. Micetich and Arias’s eyewitness identifications
were sufficient to establish probable cause. See Askew v. City
18 No. 14‐1711
of Chicago, 440 F.3d 894, 896–97 (7th Cir. 2006) (“the sort of in‐
consistencies and glitches that characterize real investigations
do not disentitle police to rely on eyewitness statements”);
People v. Smith, 630 N.E.2d 1068, 1080 (Ill. App. 1994) (“Infor‐
mation leading to the arrest of the defendant has been consid‐
ered reliable where that information was supplied by the vic‐
tim of the crime or an eyewitness to it.”). Because defendants
had probable cause when the criminal complaint was filed,
plaintiffs’ malicious prosecution claim cannot survive sum‐
mary judgment. See Fabiano, 784 N.E.2d at 265.
B. Intentional Infliction of Emotional Distress
Plaintiffs also assert a state law claim for intentional inflic‐
tion of emotional distress based on the defendants’ interroga‐
tion tactics. An intentional infliction of emotional distress
claim under Illinois law requires proof of three elements:
“First, the conduct involved must be truly extreme and outra‐
geous. Second, the actor must either intend that his con‐
duct inflict severe emotional distress, or know that there is at
least a high probability that his conduct will cause se‐
vere emotional distress. Third, the conduct must in fact
cause severe emotional distress.” Feltmeier v. Feltmeier, 798
N.E.2d 75, 80 (Ill. 2003) (emphasis omitted), quoting McGrath
v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). “Extreme and outra‐
geous” conduct does not include “‘mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.’
Instead, the conduct must go beyond all bounds of decency
and be considered intolerable in a civilized community.” Ho‐
naker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001), quoting
McGrath, 533 N.E.2d at 809.
No. 14‐1711 19
Illinois courts generally consider three non‐exclusive fac‐
tors to decide whether conduct is objectively extreme and out‐
rageous in particular cases. See id. at 490–92 (collecting cases).
First, courts examine the degree of power or authority the de‐
fendant holds over the plaintiff. Id. at 490–91. This factor car‐
ries greater weight where an encounter is atypically severe for
the situation, such as where a police officer berates a sexual
assault victim instead of assisting the victim and the victim’s
endangered children. E.g., Doe v. Calumet City, 641 N.E.2d 498,
507–08 (Ill. 1994), implicit overruling on other grounds recog‐
nized by DeSmet ex rel. Estate of Hays v. County of Rock Island,
848 N.E.2d 1030, 1043 (Ill. 2006). Second, courts consider
whether the defendant knew the plaintiff was particularly
susceptible to emotional distress and acted inappropriately
despite that knowledge. Honaker, 256 F.3d at 492. Third, courts
consider “whether the defendant reasonably believed that his
objective was legitimate; greater latitude is given to a defend‐
ant pursuing a reasonable objective even if that pursuit results
in some amount of distress for a plaintiff.” Id. at 491, citing
McGrath, 533 N.E.2d at 810. Police officers, for example, are
entitled to perform their law enforcement responsibilities as‐
sertively. See id.
Plaintiffs argue that defendants’ positions of power and
Cairel’s emotional susceptibility combined to render their
conduct outrageous. Defendants’ positions of power as law
enforcement would be a problem, however, only if their ac‐
tions were far out of bounds for an interrogation of a lawfully
arrested suspect. Plaintiffs do not claim that defendants used
anything other than ordinary interrogation tactics.
Cairel’s cognitive impairment also did not render defend‐
ants’ actions extreme and outrageous. Again assuming on
20 No. 14‐1711
summary judgment that the officers were told that Cairel had
a learning disability and took special education classes, the
officers did not act inappropriately. A learning disability does
not necessarily mean a person is unusually susceptible to
emotional distress or unable to participate in an investigation.
At any rate, Cairel appeared to the officers to participate fully
in the interrogation. He even told the prosecutor that the po‐
lice had treated him well throughout the interrogation. Taken
together, this evidence undermines the claim that defendants
acted outrageously despite knowing of his disability.
Finally, defendants had legitimate law enforcement objec‐
tives in interrogating plaintiffs. The defendants were attempt‐
ing to stop a series of robberies by police impersonators, and
they lawfully arrested several men who they believed were
responsible. The defendants were entitled to try to solve the
crimes by investigating and interrogating the plaintiffs.
“[A]n average member of the community” would not “ex‐
claim, ‘Outrageous!’” upon learning of defendants’ actions in
this case. Doe, 641 N.E.2d at 507 (internal quotation marks
omitted), quoting Restatement (Second) of Torts § 46 cmt. d.
Defendants’ interrogations did not depart from reasonable
and ordinary police practices and thus cannot be said to be
“beyond all bounds of decency” as required for outrageous
and extreme conduct under Illinois law. Honaker, 256 F.3d at
490. As with plaintiffs’ federal claims, neither of plaintiffs’
5
state‐law claims can survive summary judgment.
The judgment of the district court is AFFIRMED.
5 We need not address the district court’s finding that the claim was barred
by the statute of limitations.