In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17‐1771 & 17‐1777
WILLIAM HURT, DEADRA HURT, and ANDREA HURT,
Plaintiffs‐Appellees,
v.
MATTHEW WISE, et al.,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:14‐cv‐00092 — Jane Magnus‐Stinson, Chief Judge.
____________________
ARGUED NOVEMBER 8, 2017 — DECIDED JANUARY 23, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐
cuit Judges.
WOOD, Chief Judge. Andrea, Deadra, and William Hurt
were all arrested after their uncle, Marcus Golike, was found
dead on the banks of the Ohio River. The arrests came after
Deadra and William “confessed” that they, with some help
from Andrea, murdered Golike. But one by one, each was ab‐
solved. Andrea was never criminally charged. The charges
against Deadra were dropped after four months. And while
2 Nos. 17‐1771 & 17‐1777
the state prosecuted William, he was not convicted on any
charge.
With the criminal proceedings behind them, Andrea,
Deadra, and William filed a civil suit against the officers and
detectives involved in their arrests and prosecutions. Their
claims focus on the interrogations of Deadra and William, the
decisions to arrest all three plaintiffs, and the alleged fabrica‐
tion of evidence by the police. All defendants filed motions
for summary judgment on the basis of qualified immunity.
For the most part, the district court denied the motions. The
defendants challenge those rulings in this interlocutory ap‐
peal. We conclude that with minor exceptions the district
court correctly assessed the situation.
I
A
In June 2012 a male body washed up on the Kentucky side
of the Ohio River. A state medical examiner’s autopsy re‐
vealed that the hyoid bone in the neck of the deceased, plus a
rib, had been fractured. There were no other visible injuries.
She concluded that the injuries were consistent with asphyxia
by strangulation.
Zachary Jones and Matthew Wise of the Kentucky State
Police (“KSP”) initially took the investigatory reins. They
found two items in the front pocket of the man’s pants: a
letter, enclosed in a plastic bag, from the Social Security
Administration addressed to Marcus Golike, and a folded
baseball cap. The police soon confirmed that the body was
indeed that of Golike, a resident of Evansville, Indiana. At
that point the Evansville Police Department (“EPD”) and EPD
Nos. 17‐1771 & 17‐1777 3
detective Jeff Vantlin assumed primary responsibility for the
investigation. Jones and Wise continued to assist.
The Evansville detectives learned that Golike had last
been seen at the home of Debbie Hurt, Golike’s foster sister
and Andrea’s, Deadra’s, and William’s mother. Vantlin went
to Debbie’s home, where he spoke separately with Debbie and
William. At the time, William was 18 years old.
Debbie told Vantlin that Golike had been at her house the
night before his body was found. She had made dinner for
him, but went to bed before he left. She recalled that it was a
Saturday night, and that William and Golike had stayed up
playing chess. Vantlin next spoke with William, who corrob‐
orated the basic facts, but at first said that the events Debbie
described had taken place a few days earlier, on Thursday.
When confronted with the discrepancy in dates, William
agreed that Debbie might have been correct. Vantlin also ob‐
served that William’s hand was swollen and freshly
scratched. William explained that the swelling was the result
of having punched a tree, and that he sustained the scratches
while scooping ice cream at work. Vantlin later visited the ice
cream store where William worked and verified the existence
of the exposed rods on which William said he had scraped his
hand.
A week later, Jones, Vantlin, and Wise returned to the
Hurts’ home, where Jones interviewed William. Jones sus‐
pected that William knew more about Golike’s death than he
was admitting, and so he accused William of not being forth‐
coming. When asked, William expressed doubts about his
ability to pass a polygraph, but he said that he was willing to
try.
4 Nos. 17‐1771 & 17‐1777
The same day, the officers visited Golike’s brother and in‐
formed him that Golike’s body had been found in the river.
The brother immediately asked, “Is it verified he was killed,
other than jumping off a bridge? Because he has been on that
bridge three times before threatening to kill himself.” Golike
had been diagnosed with paranoid schizophrenia and had
been released from prison just days before his death. In
prison, he had been on suicide watch. It is not clear when the
detectives learned of Golike’s full psychological history.
While the officers were interviewing Golike’s brother,
Debbie called Vantlin and said that Harley Wade, a foster son
who had moved in with her not long before, had recently
choked her to the point of nearly losing consciousness. She
wondered if Harley might be involved in Golike’s death. The
officers wanted to interrogate Harley, but they dropped that
idea when they learned that Harley was a ward of the state
and could not be questioned without an attorney present.
Instead, they switched their attention back to William and
asked Debbie to bring William to the station for questioning.
Debbie complied with this request. Once William was at
the station, Jones and Vantlin took him to an interrogation
room, where they read the Miranda warnings and William
signed a waiver of his rights. The two officers grilled him for
roughly four hours. The interrogation took place in two parts:
a one‐hour session, punctuated by a 40‐minute break, and
then a two‐and‐a‐half hour session. The entire interrogation
was video‐recorded.
During the first hour, William repeatedly gave a con‐
sistent account of what happened the Saturday night before
Golike’s death. He told the police that after he and Golike
played chess, Golike left the house and William never saw
Nos. 17‐1771 & 17‐1777 5
him again. But each time, Jones and Vantlin told William that
he was a liar. They insisted that they knew William was in‐
volved in Golike’s death, that they already had enough infor‐
mation to put him in jail, that William was not “telling [Jones
and Vantlin] what [they] need to hear,” and that his continu‐
ing to tell the same story could not change their minds. All the
while, Jones and Vantlin introduced details about the sus‐
pected crime. For example, they asked William about what
may have happened at the river, whether Golike was wearing
a hat, whether Golike had been tied up, whether Harley was
the primary culprit, and whether Golike had been choked.
William became visibly upset during parts of the interroga‐
tion, crying and hitting himself on the head.
After the break, Jones and Vantlin asked William if he had
done any “soul‐searching.” William said that he had, and he
again offered the same account he already had provided sev‐
eral times. Jones and Vantlin brushed it aside, calling William
a liar and repeating that he was not telling them “what [they]
need to hear.” Jones told William that he needed to tell the
truth, and he made it clear what he meant by that: “we’re [i.e.,
Jones and Vantlin] the ones that determine if you’re lying or
not. So far, we’ve both determined you’re lying.” Jones added
that if William did not tell the “truth,” he faced a fate “worse
than prison.”
William eventually broke. He “confessed” that he,
Andrea, Deadra, and Harley were responsible for Golike’s
death. He told Jones and Vantlin that after the chess game, he
got in the family van with his siblings. As they drove along,
they spotted Golike by the roadside. They stopped and got
out of the car, and Harley started joking around with Golike.
But Harley got out of control (for unexplained reasons) and
6 Nos. 17‐1771 & 17‐1777
started punching and choking Golike. William said that he
got a few punches and kicks in as well. They then tied Golike
up in bed sheets and put him in the van. Deadra drove to
Dress Plaza, Evansville, where they dumped Golike’s body
into the Ohio River. On the way back from the river, they
stopped at the Kangaroo, a convenience store, to buy some
snacks using Golike’s debit card.
William’s “confession” was replete with easily verified
and contemporaneous evidence of inaccuracy and unreliabil‐
ity. When William offered any detail about the death, he pref‐
aced it with phrases such as “I’m drawing clues together,”
“the way you’re telling me,” “like you were saying,” or “from
what you’ve told me.” At other times, he responded to the
officers’ questions by guessing until they signified that they
were satisfied. Finally, at the conclusion of the interrogation,
William asked Jones, “Was I getting close to most of the facts
of what actually happened?” Jones said he did not know, and
William again asked, “Was I close to it?” Instead of following
up, Jones left the room.
Several critical “facts” that William offered were facially
impossible. For example, if William’s account of where he and
his siblings had dumped Golike’s body—Dress Plaza—was
true, the body would have had to float upstream four to six
miles to have arrived at the location where it was found.
There was no physical evidence that Golike had been beaten
or tied up, and it later turned out that Golike’s debit card was
not, and could not have been, used at the Kangaroo, because
there was only $0.08 in the account at the relevant time.
William provided only three facts that were even poten‐
tially original. Of the three, two could just as easily have been
common‐sense guesses: which pocket Golike’s hat was in
Nos. 17‐1771 & 17‐1777 7
when his body was found, and how Harley might have used
his thumbs to strangle Golike. The third “fact” is actually
nothing of the sort. William at one point said that Golike’s hat
had been “folded” in Golike’s pocket—evidently the right an‐
swer—but at other times he says it was “shoved” in the
pocket. (We wonder how many teenaged boys observe the
difference between folding and shoving.)
William was arrested following his interrogation. The only
source of probable cause to arrest him was the confession, and
so everything turns on it. Deadra, who was 19 at the time, was
also arrested following William’s “confession,” after Jones,
Vantlin, Wise, and a now‐deceased EPD detective interro‐
gated her the same night. She too was read the Miranda warn‐
ings and signed away her rights. Her interrogation lasted
nearly two hours and was also recorded.
Deadra’s interrogation followed the same script as Wil‐
liam’s. Sobbing for much of the time, Deadra denied involve‐
ment in Golike’s death. She was immediately accused of ly‐
ing. Wise told her that her story “ain’t gonna work.” Jones
added that William already had implicated her, and he fed
her the details of William’s “confession.” Jones told Deadra
that unless she talked, her whole family was going to jail. For
Deadra, he envisioned “at least 25 to 50” years “behind bars.”
He continued that the only way she was going to save anyone
in her family was to tell the truth. If she did not, Jones told
her, she was “going to hang.”
Deadra struggled to satisfy the officers. She said at one
point “I don’t know what I’m supposed to tell you.” On mul‐
tiple occasions Vantlin answered that question for her: tell the
same story that William did. Like William, Deadra eventually
repeated the facts that the detectives had fed her and guessed
8 Nos. 17‐1771 & 17‐1777
at answers until she placated them. She finally succeeded in
doing so, telling the officers that she drove the van that the
siblings used to take Golike to the river. Shortly after “con‐
fessing,” however, Deadra appeared ready to back‐track. At
that point, Jones abruptly ended the interrogation and said,
“Now you’re starting to recant your story, so what we’re go‐
ing to do is we’re going to stop. We’ve got enough. We’re just
going to stop the interview. Okay? Because now you’re trying
to recant your story, trying to add things into it.”
Based on William’s and Deadra’s interrogations, the de‐
tectives also arrested Andrea, who was 16 at the time. She was
interrogated, but because all defendants, some in the district
court and the rest on appeal, concede that she was arrested
prior to her interrogation, her experience is not decisive for
any of the issues on appeal. It appears that Harley was also
indicted, but the charges against him were dismissed at the
same time as those against Deadra. He is not a party to this
case.
After the interrogations, the detectives followed up in a
few minor ways. EPD detective Jack Spencer filed a report
four days after the sessions with Deadra and William; in it, he
claimed to have taken William to identify the location where
Golike’s body was dumped in the river. William denies that
this ever happened. Vantlin looked into Golike’s bank
statements and learned that the last charge on Golike’s debit
card was made two days prior to his disappearance. That was
when he learned that the balance in the account was a meager
$0.08. This information undermined William’s “confession”
insofar as it revealed that no one (including William) did or
even could have used Golike’s debit card to make any
purchases at the Kangaroo on the night in question. Vantlin
Nos. 17‐1771 & 17‐1777 9
also met with the clerk who was working at the store that
night. The police summary of the interview says that the clerk
confidently identified Andrea and Deadra in a photo array,
and that she said Harley and a fourth male (not William)
looked familiar. But that summary omitted the most
important details. In a declaration submitted to the district
court, the clerk said that she also told police that she did not
remember any of the identified people having come into the
store and that she may have recognized the faces from
watching the news. Several months later, EPD officers
William Arbaugh and Jason Pagett filed a police report
asserting that William had made incriminating statements to
them when he was being transported after his interrogation.
William says that this too was fabricated.
Andrea was held for seven days before being released
without charges. Deadra and William were both charged with
murder, among other crimes. Deadra remained in jail for four
months, at which point the state court granted a motion to
suppress her “confession” and charges against her were
dropped. William stayed in jail for eight months before his
trial. The jury did not convict him on a single count.
B
Following this series of events, Andrea, Deadra, and
William filed a 14‐count federal complaint alleging multiple
constitutional and state‐law violations. The complaint named
as defendants Jones and Wise (“the KSP Defendants”),
Arbaugh, Pagett, Spencer, and Vantlin (“the EPD
Defendants”), and the state medical examiner. Each set of
defendants filed a motion for summary judgment, seeking
qualified immunity or outright dismissal of the case. The
district court granted the state medical examiner’s motion in
10 Nos. 17‐1771 & 17‐1777
full, and it granted the other defendants’ motions on all state‐
law grounds. The district court also granted summary
judgment in favor of those of the individual EPD Defendants
and KSP Defendants who were not personally involved in the
allegedly unconstitutional conduct. Finally, it found that
material factual disputes precluded qualified immunity for
most of the Hurts’ federal claims. That left the following
claims:
Andrea’s, Deadra’s, and William’s Fourth Amendment
false arrest claims against Jones, Vantlin, and Wise.
Andrea’s, Deadra’s, and William’s claims that the KSP
and EPD Defendants failed to intervene to prevent the
unconstitutional conduct and conspired to violate their
constitutional rights.
Deadra’s and William’s claims against all the EPD
Defendants based on the allegedly fabricated evidence.
Deadra’s and William’s due‐process claims against
Jones, Vantlin, and Wise based on the allegedly co‐
erced confessions.
Each defendant appeals the denial of qualified immunity
from each claim still pending against him.
II
Before we can consider the merits of any of the defend‐
ants’ arguments, we must be assured of our jurisdiction to do
so. Ordinarily, interlocutory decisions such as the denial of
summary judgment are not subject to appellate review. 28
U.S.C. § 1291. Yet there is a limited exception for defendants
who were denied qualified immunity on summary judgment.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Review of such an
interlocutory decision is proper if, and only if, the defendant
Nos. 17‐1771 & 17‐1777 11
presents a purely legal question for this court to review. Id.
Any material factual point that is genuinely contested is out‐
side our jurisdiction. Johnson v. Jones, 515 U.S. 304, 313 (1995);
see also Whitlock v. Brueggemann, 682 F.3d 567, 573 (7th Cir.
2012) (“We have jurisdiction to consider the merits of these
appeals only to the extent that they turn on legal rather than
factual questions.”) (citations and internal quotation marks
omitted). The defendant may accept, for purposes of the qual‐
ified immunity inquiry, the facts and reasonable inferences fa‐
vorable to the opponent of immunity, and argue that those
facts fail to show a violation of clearly established law.
Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013).
The defendants here have tried to take the latter approach,
but they have not quite succeeded. Rather than fully accept‐
ing the facts in the light most favorable to the plaintiffs, the
EPD and KSP Defendants, relying on Scott v. Harris, 550 U.S.
372 (2007), have asked us to revisit the inferences that the dis‐
trict court found could reasonably be drawn from Deadra’s
and William’s recorded interrogation. That we cannot do
without going beyond our jurisdiction on this interlocutory
appeal. Nothing in Scott undermines this point.
In Scott the district and appellate courts, faced with a qual‐
ified immunity defense, had refused to take into account a
video and instead had accepted the plaintiff’s account of a car
chase. On that basis, they concluded that the defendant police
officer was not entitled to qualified immunity. 550 U.S. at 376.
After reviewing the video, however, the Supreme Court re‐
versed. Id. at 379–81. Uncontestable dashboard footage
showed that the fleeing driver was speeding, swerving
through lanes of traffic, and running red lights, all while pe‐
destrians looked on. Id. The Court ruled that if one account of
12 Nos. 17‐1771 & 17‐1777
the facts “is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.” Id. at 380. That aptly described the situ‐
ation in the case before it, and so the Court concluded that the
district court should have taken the video into account. Id. at
380–81.
Scott does not treat video footage as a distinct type of evi‐
dence that is not subject to the normal summary judgment
strictures. It holds only that a factual account should not be
credited when the record contains evidence that is flatly con‐
tradictory to that account. If the question is whether someone
was driving recklessly, video evidence showing a high rate of
speed, use of the oncoming traffic’s lane, and running red
lights is plainly relevant. If instead the question is what a per‐
son meant in a videotaped interview, we are back in the land
of inferences that must be taken favorably to the opponent.
Courts applying Scott have understood this distinction. See,
e.g., Williams v. Brooks, 809 F.3d 936, 942 (7th Cir. 2016) (relying
on video from a dashboard camera rather than the non‐mov‐
ing party’s account because it clearly depicted the physical
confrontation in question); Rivera v. Jimenez, 556 F. App’x 505,
507 (7th Cir. 2014) (relying on prison video of a scuffle rather
than non‐moving party’s account because it “discredit[ed] the
plaintiff’s version of events”). Scott did not create a per se rule
that video evidence is always subject to an appellate court’s
independent assessment.
Indeed, nothing about video evidence justifies placing it
in such a privileged position. See Stinson v. Gauger, 868 F.3d
516, 523 (7th Cir. 2017) (en banc) (noting that Scott did not
overrule Johnson and characterizing the issue in Scott as about
Nos. 17‐1771 & 17‐1777 13
officer conduct in light of depicted facts). And not all disputes
are about what events transpired. Sometimes the availability
of qualified immunity turns on the inferences that are permis‐
sible in light of the historical facts. See, e.g., Maxwell v. City of
Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993) (observing that
different conclusions can be reached about the existence of
probable cause based on either “the facts or the reasonable in‐
ferences to be drawn from them”). Where the parties disagree
about inferences, the fact that evidence is found in a video is
not important—the purpose of the evidence is what matters.
The video evidence of William’s and Deadra’s interroga‐
tions does not portray the kind of uncontestable facts that
were before the Court in Scott. It is no more and no less than
a record of an interrogation, and so we review it just as we
would have if the interviews had been audiotaped, recorded
by a stenographer, or reduced to affidavits. We therefore turn
to the defendants’ qualified immunity motions using the facts
and reasonable inferences in the light most favorable to the
Hurts. We leave the final resolution of these issues to the trier
of fact, should the case get that far.
III
Once a defendant asserts qualified immunity, the plaintiff
can proceed only if she can show two things: first, that the
“facts, taken in the light most favorable to the plaintiff, make
out a violation of a constitutional right,” Allin v. City of
Springfield, 845 F.3d 858, 862 (7th Cir. 2017), and second, that
the right was “clearly established at the time of the alleged
violation,” id. Moreover, the plaintiff cannot rest on glittering
generalities: her showing must be grounded in the particular
context in which the problem arises. We review de novo the
14 Nos. 17‐1771 & 17‐1777
district court’s denial of qualified immunity. Green v. Newport,
868 F.3d 629, 632 (7th Cir. 2017).
A
We begin with the false arrest claims. A claim of false ar‐
rest is an allegation that a plaintiff was arrested without prob‐
able cause, in violation of the Fourth Amendment. Gutierrez,
722 F.3d at 1007–08. Probable cause is an absolute defense to
such a claim. Id. Whether probable cause existed at the time
of the arrest depends on the totality of the circumstances. Id.
at 1008. Even if, in hindsight, it appears that probable cause
was lacking, qualified immunity is still available if the arrest‐
ing officers “reasonabl[y] … could have believed the arrest to
be lawful, in light of clearly established law and the infor‐
mation the arresting officers possessed.” Id. (citations and in‐
ternal quotation marks omitted). This is often called arguable
probable cause.
The district court found that Jones, Vantlin, and Wise were
not entitled to qualified immunity from the false arrest claims
because there were material factual disputes bearing on the
question of arguable probable cause. For example, the court
noted, a jury might conclude that Golike committed suicide
(since he had threatened suicide before, and he had targeted
the bridge near which he was found), that Deadra’s and
William’s “confessions” are unreliable (because almost all of
the facts were either fed to them or the result of guesswork),
that some of the evidence against the Hurts was fabricated
(William’s supposed identification of the drop‐off spot and
his alleged incriminating remarks), and that physical
evidence conclusively undermined William’s “confession”
(since Golike’s body was found upstream of the alleged drop‐
off spot, and inert objects would drift downstream, not
Nos. 17‐1771 & 17‐1777 15
upstream). Assuming that the disputes over those facts were
resolved in the Hurts’ favor, the case for even arguable
probable cause to arrest any of the three Hurts falls apart.
Jones, Vantlin, and Wise push back with three arguments.
First, they insist that there was at least arguable probable
cause to arrest the three based on Deadra’s and William’s
“confessions” because neither of those confessions was co‐
erced. We will say more about coercion when we discuss the
Fifth Amendment issue presented in this case. For now, how‐
ever, we note that this argument is misplaced with respect to
a Fourth Amendment false‐arrest claim. Reliability, not coer‐
cion, is the gravamen of probable cause. See Illinois v. Gates,
462 U.S. 213, 230 (1983) (listing “veracity,” “reliability,” and
“basis of knowledge” as highly relevant in determining the
value of a witness’s statement); Beck v. Ohio, 379 U.S. 89, 91
(1964) (probable cause ordinarily exists when there is “reason‐
ably trustworthy information” that a suspect committed a
crime). A confession may have been cajoled out of a suspect
in a non‐coercive way, yet still be “worthless as evidence, and
as a premise for an arrest.” Aleman v. Village of Hanover Park,
662 F.3d 897, 906–07 (7th Cir. 2011). This rule makes sense. An
officer could sit in a room with a cooperative suspect and
could politely ask that person to repeat everything the officer
says. The suspect could oblige, even if the story he has been
asked to parrot is a confession to a crime. Nothing about the
witness’s statement has been coerced, but by the same token
nothing qualifies it as a reliable confession. That is not to say
that coercion is completely irrelevant: to the contrary, the ex‐
istence of coercion informs reliability even though it is not de‐
terminative. But the key inquiry for the Fourth Amendment
remains reliability, not coercion.
16 Nos. 17‐1771 & 17‐1777
The EPD Defendants also confuse these concepts when
they argue that Deadra and Andrea do not have standing to
challenge the reliability of William’s “confession.” Neither
Andrea nor Deadra is asserting a constitutional right on
William’s behalf when each argues that William’s
interrogation did not give the police reliable evidence that she
was involved in Golike’s death. Each makes the
straightforward assertion that the police used flimsy
information to arrest her.
Both sets of defendants also take issue with the legal
standard they understand the district court to have applied.
By their reading, the district court found that the disputed
facts revealed an absence of probable cause, but not neces‐
sarily the absence of arguable probable cause. This argument
is meritless. Defendants fixate on one line in which the district
court wrote “if the jury credits evidence Defendants cite, it
could reasonably conclude … that it was objectively reasona‐
ble for officers to believe probable cause to arrest [William]
existed.” If that belief is objectively reasonable, they urge,
then there must have been at least arguable probable cause.
But all the district court was saying was that it would be ob‐
jectively reasonable to believe probable cause existed if the ev‐
idence is viewed in the defendants’ favor. At this stage, that
is the wrong perspective. Taking the inferences in the Hurts’
favor, a jury could reasonably conclude it was objectively un‐
reasonable for an officer to have believed there was probable
cause. The district court included an explicit discussion of ar‐
guable probable cause in its opinion, and it went on to apply
that standard faithfully.
Nos. 17‐1771 & 17‐1777 17
Essentially, all of the defendants are asking us to reweigh
the evidence available to the Hurts, including the filmed in‐
terrogations, and to come to an independent conclusion about
the existence of arguable probable cause. That is plainly inap‐
propriate: we do not sit to resolve disputed issues of fact, nor
do we have appellate jurisdiction over those issues.
B
Another theory the Hurts advance is that the defendants
failed to intervene against violations of their constitutional
rights and conspired to violate those rights. Both of these the‐
ories require plaintiffs to show an underlying constitutional
violation. Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir.
2017). The failure‐to‐intervene claim also requires them to
prove that the defendant knew of the constitutional violation
and that he realistically could have prevented it. Id. For the
conspiracy claim, plaintiffs must also demonstrate that the
defendants agreed to inflict the constitutional harm. Sow v.
Fortville Police Dep’t, 636 F.3d 293, 304–05 (7th Cir. 2011).
The district court denied the defendants’ motions for
summary judgment on both of these theories. It ruled that,
taking the disputed facts favorably to the plaintiffs, there
were possible constitutional violations. It added that the
presence of an agreement between defendants could be
inferred because they extracted and used unreliable
confessions to arrest Andrea, Deadra, and William, and
fabricated evidence against them despite the evidence
pointing to suicide as the cause of death. Each defendant
individually took part in the interrogations or fabrication of
evidence. All were thus aware of the constitutional violations,
yet none intervened.
18 Nos. 17‐1771 & 17‐1777
Only the EPD Defendants appeal the denial of qualified
immunity from these claims. They argue that the failure‐to‐
intervene and conspiracy claims fail because no plaintiff was
deprived of a constitutional right. We find no merit in this po‐
sition. As we already have pointed out, a trier of fact could
conclude that Andrea, Deadra, and William were arrested
without even arguable probable cause, and thus in violation
of the Fourth Amendment.
The EPD Defendants also urge that there was no evidence
that any officer had an opportunity to prevent the constitu‐
tional violations. They contend that defendants Arbaugh,
Pagett, and Spencer could not have stopped the false arrests
because none was present at the moment of arrest. Perhaps
this position would have had some merit before the Supreme
Court decided Manuel v. City of Joliet, 137 S. Ct. 911 (2017), but
it no longer does. Manuel held that the Fourth Amendment
protects not only against an initial arrest without probable
cause, but also continued detention in its absence. Id. at 918–
19. It is plausible to infer from each defendant’s creation of
false evidence that he was aware that the continuing incarcer‐
ations were unsupported and could have done something to
stop them. The EPD Defendants would also like to argue that
none of them knew that they were fabricating evidence and
that the confessions were riddled with problems. But those
arguments must await trial, as they turn on disputed facts.
With respect to the conspiracy theory, the EPD Defendants
take the position that no trier of fact could find, on this record,
that there was an agreement to violate the Hurts’ constitu‐
tional rights. They stress that the Hurts “admitted” in their
depositions that they have no affirmative evidence of such an
agreement. But there is competent circumstantial evidence of
Nos. 17‐1771 & 17‐1777 19
an agreement, and there is nothing wrong with circumstantial
evidence. At this stage, we have no authority to decide whose
evidence of agreement is more persuasive.
C
Deadra and William are also pursuing claims that they
characterize as based on “malicious prosecution.” For this
purpose they are suing only the EPD Defendants. We said in
Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), that there is
no free‐standing constitutional tort of malicious prosecution,
though there are other constitutional rights (e.g., such as those
under the Due Process Clause and the Fourth Amendment)
that protect people against abusive arrests, fabrication of
evidence, etc. While Manuel rejected some aspects of
Newsome’s holding, nothing in Manuel changed the general
rule that the federal constitution does not codify state tort law.
But in this case, the fact that the plaintiffs have used the
terminology “malicious prosecution” is of no moment. What
matters is whether they have identified the constitutional
right at issue, and they have done so. The Fourteenth
Amendment’s Due Process Clause is the relevant
constitutional source; it forbids the state from depriving a
person of liberty (including by pre‐trial detention) based on
manufactured evidence. Avery v. City of Milwaukee, 847 F.3d
433, 439 (7th Cir. 2017); see also Alexander v. McKinney, 692
F.3d 553, 557 (7th Cir. 2012) (distinguishing pre‐trial release
on bond, which is not a deprivation of liberty, from pre‐trial
confinement, which is); Zahrey v. Coffey, 221 F.3d 342, 348 (2d
Cir. 2000) (eight months of pre‐trial detention was a
deprivation of liberty). As the EPD Defendants conceded in
their reply brief, this type of due process claim can be based
on false police reports. See Whitlock, 682 F.3d at 580 (using
20 Nos. 17‐1771 & 17‐1777
false evidence to deprive a defendant of liberty “in some way”
violates the Due Process Clause).
The EPD defendants urge us to reverse the district court’s
denial of qualified immunity from these claims because the
false police reports did not cause the deprivation of either
William’s or Deadra’s liberty. But if William and Deadra can
show that the fabricated police reports furthered the prosecu‐
tion, they have done enough. See Alexander v. United States,
721 F.3d 418, 423 (7th Cir. 2013) (including as evidence of cau‐
sation for the constitutional violation “actions the agents took
after Alexander’s arrest to further the prosecution, which in‐
cluded testifying in depositions and at trial and intimidating
a potential defense witness”).
With respect to William, all of the EPD Defendants accuse
the district court of misjudging the facts that relate to causa‐
tion. They note, accurately, that the reports were not used for
the arrests or at William’s trial. From that, they reason that the
reports also contributed nothing to William’s pre‐trial deten‐
tion. That conclusion, however, does not follow from the
premise. The police went to some trouble to create the falsi‐
fied reports. Had they not done so, it is reasonable to assume
that William would have been released promptly. Though the
“confession” may have been the focal point of the case against
William, the prosecution might have ended sooner if the state
knew that most of the seemingly inculpatory information at
its disposal was fabricated or impossible.
Deadra’s claim against EPD Defendants Spencer and
Vantlin tracks William’s, but her claim against defendants
Arbaugh and Pagett is different. Deadra alleges that the latter
two defendants fabricated a report on February 14, 2013. At
that time, William was still in custody, but Deadra was not:
Nos. 17‐1771 & 17‐1777 21
she had been released on October 30, 2012. She raises no other
allegations against Arbaugh and Pagett about anything they
might have done to deprive her of liberty. We thus conclude
that they are entitled to qualified immunity from Deadra’s
claim based on fabricated evidence.
D
Last, we address Deadra’s and William’s Fifth Amend‐
ment claims against Jones, Vantlin, and Wise. The district
court denied qualified immunity with respect to both their
procedural claim based on the use of an involuntary confes‐
sion in a criminal proceeding and their substantive due pro‐
cess claim based on conscience‐shocking interrogation tactics.
We can be brief about the substantive due process argu‐
ment: it should have been winnowed from the case. The bar
for “conscience‐shocking” is very high; these interviews may
have been abusive, but nothing extreme enough to invoke
substantive due process occurred. We note as well that this
theory adds little to the case. When there is an alleged viola‐
tion of a specific constitutional provision, that provision
should guide the court’s analysis. See City of Sacramento v.
Lewis, 523 U.S. 833, 842 (1998).
That leaves the Hurts’ procedural challenge to the use of
their involuntary confessions. Introducing an involuntary
confession in a criminal prosecution violates the protection
against compelled self‐incrimination. Miller v. Fenton, 474 U.S.
104, 109–10 (1985). Vantlin raises two preliminary legal argu‐
ments, which if accepted would entitle all three defendants to
qualified immunity. First, he argues that Deadra’s confession
was never introduced against her in a criminal trial, and so
she was never compelled to testify against herself. We have
22 Nos. 17‐1771 & 17‐1777
already rejected such a cramped understanding of what it
means to “use” a confession against someone in a criminal
case. See Sornberger v. City of Knoxville, 434 F.3d 1006, 1026–27
(7th Cir. 2006) (finding that a confession is used in a criminal
case if it is introduced at a probable cause hearing, a bail hear‐
ing, or an arraignment). It is enough that the statement was
used against Deadra in a probable cause affidavit and in a pre‐
trial hearing.
Vantlin also argues that William voluntarily came to the
police station for his interrogation and was not formally
arrested until after the interrogation. This means, Vantlin
says, that William’s interrogation was not custodial and the
Fifth Amendment does not apply. That argument jumps over
too many steps. Custody and coercion are two separate
things. It is true that custodial interrogation is presumptively
coercive and requires that the suspect be given adequate
procedural safeguards—that is the genesis of the Miranda
warnings. Miranda v. Arizona, 384 U.S. 436, 478–79 (1966). But
a confession can be involuntary even if the suspect is not in
custody.
Another problem with Vantlin’s argument is that the
district court never said that William was not in custody
during his interrogation. It said only that William came to the
station voluntarily. That says nothing of the circumstances
surrounding his interrogation. Whether a person is in custody
depends on the objective surrounding circumstances.
Stansbury v. California, 511 U.S. 318, 323 (1994). A suspect does
not have to be arrested formally to be in custody. Id. at 322–
23. Here, after William voluntarily came to the police station,
he was taken by himself into a small room in the station, read
the Miranda warnings, and was not free to go during his four‐
Nos. 17‐1771 & 17‐1777 23
hour interrogation, during which Jones and Vantlin accused
him of murder. The district court was well within its rights to
consider this as a custodial interrogation. See Sprosty v.
Buchler, 79 F.3d 635, 641 (7th Cir. 1996) (listing factors
indicative of custody).
Jones, Vantlin, and Wise’s more serious defense is that
they had no reason to think that the confessions were not vol‐
untary. The voluntariness of a confession depends on the to‐
tality of circumstances, including both the characteristics of
the accused and the nature of the interrogation. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973). If those circumstances re‐
veal that the interrogated person’s will was overborne, admit‐
ting the resulting confession violates the Fifth Amendment.
Miller, 474 U.S. at 116.
Police coercion is a prerequisite to finding any confession
to be involuntary. Colorado v. Connelly, 479 U.S. 157, 164
(1986). Physical abuse may be the ultimate coercion, but the
Supreme Court has long acknowledged the potency of psy‐
chological coercion as well. See, e.g., Arizona v. Fulminante, 499
U.S. 279, 287 (1991) (“[C]oercion can be mental as well as
physical, and … the blood of the accused is not the only hall‐
mark of an unconstitutional inquisition.” (quoting Blackburn
v. Alabama, 361 U.S. 199, 206 (1960)); Miller, 474 U.S. at 109
(confessions procured by either physical or psychological tor‐
ture can be “revolting to the sense of justice” and thus inad‐
missible); Miranda, 384 U.S. at 448 (“[W]e stress that the mod‐
ern practice of in‐custody interrogation is psychologically ra‐
ther than physically oriented”).
Often psychological coercion is the consequence of the
cumulative effect of subtle tactics. Other times, coercion is
obvious. For example, it is clearly established that police
24 Nos. 17‐1771 & 17‐1777
threats against the suspect or the suspect’s family are a form
of psychological coercion that renders a confession
involuntary. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534
(1963) (confession was involuntary because it came after
police threatened to cut off aid that the suspect used to care
for her child); Rogers v. Richmond, 365 U.S. 534, 543–45 (1961)
(a confession was unconstitutionally obtained because it came
after police threatened to arrest the suspect’s wife); Sornberger,
434 F.3d at 1023 (an allegation that police threatened to call
the Department of Children and Family Services and
recommend removing the suspect’s children if she
maintained her innocence created a material dispute about
whether a confession was voluntary).
Whether police have employed sufficiently coercive tac‐
tics to render a confession involuntary is a legal question.
United States v. D.F., 115 F.3d 413, 417–19 (7th Cir. 1997). But
the answer depends on underlying historical facts. Miller, 474
U.S. at 112. Here, had the defendants accepted all historical
facts favorably to the Hurts and argued that those facts did
not show that either Deadra’s or William’s confession was in‐
voluntary, we would be in a position to answer the ultimate
legal question. But once again, they have not. The relevant
factual background is what distinguishes the present case
from Dassey v. Dittmann, 877 F.3d 297 (7th Cir. 2017) (en banc).
In Dassey, the facts were firmly established by the state courts,
and our only role was to decide whether the state courts had
strayed so far from a rational conclusion that habeas corpus
relief was warranted. We ruled that the demanding standard
set by 28 U.S.C. § 2254(d) had not been met. Id. at 312–18. The
present case, a civil one under 42 U.S.C. § 1983, involves no
Nos. 17‐1771 & 17‐1777 25
such deference to the state defendants’ position; to the con‐
trary, at this stage we must give the plaintiffs the benefit of
the doubt.
Despite intimating at times that the question whether a
confession is voluntary is one of fact, the district court in the
end properly treated it as a legal issue informed by a series of
historical facts. It relied on a number of critical facts to
support its conclusion that Jones, Vantlin, and Wise were not
entitled to qualified immunity. Key among them was the fact
that the interrogators had threatened both Deadra and
William.
For Deadra, the district court found evidence of three pos‐
sible threats. She was told that if she did not tell the truth she
was going to spend 25–50 years behind bars. Later, the stakes
increased and she was told she was “going to hang” if she did
not tell the truth. She was also told that if she did not talk, her
whole family, including her uninvolved mother, would go to
jail. Jones even counted everyone out for her, saying, “There’s
one, two, three, four, five of you, all of you’s [sic] going to jail
for murder.”
Similarly, William was told that he faced a “fate worse
than prison.” No defendant concedes that Deadra and
William may have heard these statements as threats. Instead,
they ask that we disregard the district court’s recognition that
these statements either could have been or were understood
as threats. But we cannot do that. A trier of fact could find
coercion in the face of such grave threats, and that is enough
to preclude immunity at this stage.
26 Nos. 17‐1771 & 17‐1777
E
False confessions are a real problem, as both the majority
and dissenting opinions in Dassey recognized. See 877 F.3d
317–18 (majority opinion); 877 F.3d at 331–32 (Rovner, J.,
dissenting). Even though William and Deadra “confessed,” if
a trier of fact could conclude that the officers knew that the
confessions were false, then the officers are not entitled to
qualified immunity for their actions.
We acknowledge, as we did in Dassey, that “[t]he Supreme
Court’s many cases applying the voluntariness test have not
distilled the doctrine into a comprehensive set of hard rules.”
Id. at 303. Nonetheless, when the facts must be taken in the
light most favorable to the plaintiffs, and when an interroga‐
tion is infected with numerous problems, a full trial may be
necessary before a final characterization of the process is pos‐
sible.
This is not the place for an in‐depth look at psychological
coercion and false confessions, because we are not charged
with making the final decision on the admissibility of
William’s and Deadra’s statements. We must decide only
whether, taking the facts and inferences favorably to the
plaintiffs, any reasonable officer would have known that he
was applying impermissible pressure. The district court
concluded that the answer to this more limited question is
yes, and we agree with it. We first offer a few examples from
William’s interrogation, which was permeated with coercive
tactics and fact‐feeding, even as all of his attempts to tell the
truth were brushed aside:
Jones: You’re lying, you’re—you know, you’re lying
about something. That’s why we keep grilling you
Nos. 17‐1771 & 17‐1777 27
about it, to get if off your chest, to make you feel better,
to help our investigation, you know. We’ll deal with
whatever later. But right now, we’re dealing with this
and what we’re dealing with is your lying, your incon‐
sistent stories. And there’s only one way to solve it … .
At the same time as William’s account was being dis‐
missed as a lie, he was being told that if he had given the
“right” story all along, the interrogation would have ended
much sooner:
Jones: Now, if I had asked you right off the bat every‐
thing that you had and you told us verbatim, every‐
thing else, you know, and all the right stories … . We’d
have been done a long time ago. But we’ve not heard
the truth yet. Not yet.
Jones made it clear to William that he and Vantlin were the
ones who would decide if William told the “right” story:
Jones: I mean, all that you need to do is tell the truth,
exactly the truth, and we’re the ones that determine if
you’re lying or not. So far, we’ve both determined
you’re lying.
It was bad enough for the officers to threaten William that
if he did not change his story that he was “an evil son of a
bitch” or looking at a “fate worse than prison.” Worse, Jones
told William that none of the pain was “going to go away until
you tell me the truth” and that William had “not felt pain yet.”
Jones warned that he could “keep turning the pain on, [] keep
turning it on, [] keep turning it on.” When William told Jones
that he was struggling to breathe, Jones responded: “You’re
having a hard time breathing … . You’re doing this to your‐
28 Nos. 17‐1771 & 17‐1777
self … . I don’t have a—you know, a lighter sitting here burn‐
ing you, but you’re feeling like you’re on fire. You know what
we want to hear. We don’t want to hear all that other stuff.
You know what we want to hear.”
All the while, Jones and Vantlin basically drafted the en‐
tire confession by feeding William every critical fact through
suggestive questioning. The following example is illustrative:
Jones: Where did he choke him at and where did this
take place at? Come on, man, you—I know you re‐
member.
William: It had to have been down by my house.
Jones: Yeah.
William: You said that we had the van. So it wasn’t that
far away from my house.
Jones: Did Mark leave and then you guys got in the van
and chased him down or what?
William: When he left, I went downstairs and I laid
down. Then, I don’t know what else happened.
Jones: You do. You’ve already told me what’s hap‐
pened. Where did you guys beat up Mark at?
William: Was it on Boeke and Riverside?
Jones: Not—No, don’t ask me. Where did you beat up
Mark at?
William: The Kangaroo?
Jones: Was it at the Kangaroo?
William: You said you had my face on a videotape. You
said that if—
Nos. 17‐1771 & 17‐1777 29
Jones: Where did you beat up Mark at?
William: It had to be by the—by my house because we
couldn’t have—he couldn’t have gotten that far by the
time I had gone downstairs.
Deadra’s interrogation follows the same pattern. From the
start, the officers called Deadra a liar each time she denied her
involvement, and they told her that she could help herself
only if she stopped lying. For her, the risk of holding her
ground was that she was “going to hang” and that her whole
family was “going to jail for murder.” The defendants also
told her that no matter what she said, she was going to be
charged with murder. Simultaneously, they minimized her
moral guilt. Wise said things such as “I’m not saying that
you—you ended his life” and “I’m not saying you’re a killer,
I’m just saying that you—you drove the van.” This was de‐
signed to prime Deadra to confess. The officers also told her
what William had supposedly confessed to, and insisted that
she repeat the same story for them. She had trouble doing
that, but they never let up.
On the basis of this record, a trier of fact could find that
the officers deliberately coerced confessions from William
and Deadra. The rule forbidding such conduct has been es‐
tablished for decades. Perhaps, as the officers argue in their
briefs, a trier of fact might come to the opposite conclusion
and think that they were pushing, but doing nothing that
crossed a constitutional line. It is not for us to resolve that
question. It must await further proceedings.
30 Nos. 17‐1771 & 17‐1777
IV
The district court’s summary judgment ruling is REVERSED
with respect to Deadra’s malicious prosecution claim against
defendants Arbaugh and Pagett. We also conclude that the
district court should have eliminated the substantive‐due‐
process theory. In all other respects, insofar as we have juris‐
diction to act here, we AFFIRM the order of the district court
denying qualified immunity to the defendants.