Newsome v. McCabe

• Citation: 256 F.3d 747
• Decision Date: 11 July 2001
• Docket Number: No. 00-2326,00-2326
• Parties: (7th Cir. 2001) James Newsome, Plaintiff-Appellee, v. John McCabe and Raymond McNally, Defendants-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 747

256 F.3d 747 (7th Cir. 2001)

James Newsome, Plaintiff-Appellee, v. John McCabe and Raymond McNally, Defendants-Appellants.

No. 00-2326

In the United States Court of Appeals For the Seventh Circuit

Argued September 25, 2000

Decided July 11, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 7680--Paul E. Plunkett, Judge.

Before Flaum, Chief Judge, and Easterbrook and Diane P. Wood, Circuit Judges.

Easterbrook, Circuit Judge.

James Newsome spent 15 years in prison for murder. The killing and associated crimes (armed robbery and armed violence) occurred in October 1979. Newsome was arrested in November 1979 when police, who were holding him on other charges, noted his resemblance to a composite sketch of the person who in the course of a robbery shot and killed Mickey Cohen. Newsome was convicted of that crime in September 1980, see People v. Newsome, 110 Ill. App. 3d 1043, 443 N.E.2d 634 (1st Dist. 1982); and his efforts to obtain collateral relief were unavailing until December 1994, when a state court vacated his conviction. In 1995, after the State's Attorney declined to put Newsome on trial a second time, the Governor of Illinois concluded that Newsome is innocent and pardoned him. Newsome then filed this suit under 42 U.S.C. sec.1983 against five officers of the Chicago Police Department. He could not seek damages for wrongful arrest and detention; that claim accrued in 1979, so the statute of limitations expired in 1981. See Gonzalez v. Entress, 133 F.3d 551 (7th Cir. 1998). But a claim based on wrongful conviction and imprisonment did not accrue until the pardon, see Heck v. Humphrey, 512 U.S. 477 (1994), and Newsome tried to take advantage of the newly opened window for suit. Absolute immunity forecloses any action against the prosecutors and judges, but Newsome has tried to avoid that doctrine by suing the investigating officers, arguing that the police were complicit in a wrongful prosecution. He calls this a claim of "malicious prosecution" and contends that the police must pay for failing to halt the criminal prosecution. The defendants responded by arguing that Newsome's theory is legally deficient and that, at all events, qualified immunity prevents an award of damages.

The district judge granted summary judgment in favor of James W. Eckner, Bruce James, and David Dioguardi, ruling that the evidence of record could not be read to imply that they did anything wrong. 2000 U.S. Dist. Lexis 5678 (N.D. Ill. Apr. 25, 2000), reconsideration denied, 2000 U.S. Dist. Lexis 6929 (May 16, 2000). But the court thought that the evidence would allow a jury to find that the other two defendants, John McCabe and Raymond McNally, failed to alert the prosecutors that Newsome's fingerprints did not match those they had obtained at the scene of the crime. Moreover, a jury could find that McCabe and McNally encouraged two witnesses to select Newsome from a lineup-- which the witnesses did, forming a vital link in the process that led to Newsome's conviction as Cohen's killer--yet withheld from the prosecutors information about their coaching of the witnesses and the fact that these witnesses earlier selected pictures from a book of mug shots that did not contain Newsome's photo. The judge concluded that these events could support damages for malicious prosecution, which the judge viewed as a constitutional tort when:

(1) the requirements of a state law cause of action for malicious prosecution are satisfied; (2) a state actor committed the malicious prosecution; and (3) plaintiff was deprived of liberty.

2000 U.S. Dist. Lexis 5678 at *31-32. The judge thought that all three of these ingredients have been satisfied because, taking the facts in the light most favorable to Newsome and disregarding all testimony derived from the tainted identifications, there was not even probable cause to prosecute him for Cohen's murder. Id. at 11. Because the evidence could support an inference that McCabe and McNally suborned perjury by the two eyewitnesses, the judge concluded in his order denying reconsideration that they are not entitled to qualified immunity, for both the right to be free of malicious prosecution and the rule against suborning perjury have been around a very long time.

McCabe and McNally have filed this interlocutory appeal to argue for immunity, as they are entitled to do, see Behrens v. Pelletier, 516 U.S. 299 (1996), but the first question on the table is whether Newsome has made out a violation of constitutional rights--for we cannot call a constitutional right "clearly established" when the defendants acted (here in 1979 and 1980) if it has never been established at all. See Wilson v. Layne, 526 U.S. 603, 609 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999). Defendants make a strong pitch regarding point (1) of the district court's list. They insist that Newsome has not made out "the requirements of a state law cause of action for malicious prosecution" because neither McCabe nor McNally prosecuted Newsome or was a party to the case. The People of the State of Illinois (through the State's Attorney), not police officers, brought the criminal prosecution. This contention has led to a complex debate about the extent to which, under Illinois law, a complaining witness can be deemed a party for purposes of the tort of malicious prosecution. Our opinion in Logan v. Caterpillar, Inc., 246 F.3d 912, 921-26 (7th Cir. 2001), explores some of these subtleties. But the answer doesn't matter unless there is a constitutional tort called "malicious prosecution," a subject not fully resolved in Albright v. Oliver, 510 U.S. 266 (1994), and this constitutional tort applies to state actors the same rules state courts apply to private actors, thus using the Constitution to enforce state law. Recall the district judge's formulation: the plaintiff must show all requirements of a tort claim under state law, plus a deprivation of liberty, plus the defendant's status as a state actor (this last ingredient found in sec.1983 itself). Whatever scope malicious prosecution may have as a constitutional tort after Albright, it does not depend on state law in this way. To the contrary, the existence of a tort claim under state law knocks out any constitutional theory of malicious prosecution.

Whether there is a constitutional right not to be prosecuted without probable cause--the question that the district court saw through the lens of malicious prosecution--was addressed and answered in the negative by seven Justices in Albright. The problem is that they did not agree on the reason. Four Justices concluded that probable cause is the exclusive domain of the fourth amendment, and that unless the plaintiff can establish that his arrest was unlawful there is no further constitutional claim. 510 U.S. at 268-75 (Rehnquist, C.J., joined by O'Connor, Scalia & Ginsburg, JJ.). See also Baker v. McCollan, 443 U.S. 137 (1979) (if probable cause exists at the time of arrest, then the police cannot be held liable for ensuing custody, even if mistaken). Newsome had a potential fourth amendment claim, but as we mentioned at the outset the time to pursue it expired almost 20 years ago. One Justice preferred to analyze the subject in terms of substantive due process, an approach that could leave room for Newsome's claim but doomed Albright's because he did not argue that the police engaged in egregious misconduct. 510 U.S. at 286-91 (Souter, J.). Two more Justices believed that the right approach lies in due process without substantive coloration--whether the person seized by the state had an adequate opportunity to defend himself in the criminal prosecution and, if not, an adequate opportunity to obtain compensation in state court. 510 U.S. at 281-86 (Kennedy, J., joined by Thomas, J.). A jury might conclude that McCabe and McNally deprived Newsome of an adequate chance to defend himself in the criminal prosecution. But Justices Kennedy and Thomas concluded that in such circumstances the federal Constitution still does not supply a damages remedy, unless the state courts refuse to do so. Their approach relies on Parratt v. Taylor, 451 U.S. 527, 535-44 (1981), which holds that the opportunity to sue in state courts usually supplies all the process that is due to redress unauthorized activities of state employees. Justices Kennedy and Thomas concluded that remedies available to Albright under state law for wrongful prosecution provided him with due process of law. States differ in their willingness to provide such remedies--but the state in question in Albright was Illinois, and remedies available to Albright are (or were) available to Newsome too. What this means is that satisfying the elements of the state-law tort of malicious prosecution, far from being the foundation of a constitutional tort as the district judge believed, knocks out any constitutional tort of malicious prosecution, because, when a state-law remedy exists, Justices Kennedy and Thomas conclude that due process of law is afforded by the opportunity to pursue a claim in state court, and four other Justices do not think that the due process clause applies in the first place.

The district judge is hardly to be faulted for using a tripartite formula for a constitutional tort of malicious prosecution. This court has articulated it at least four times since Albright. See Cervantes v. Jones, 188 F.3d 805, 809 (7th Cir. 1999); Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998); Washington v. Summerville, 127 F.3d 552, 558-59 (7th Cir. 1997); Reed v. Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). But in none of these cases did anything turn on the precise formulation, and none of our opinions dealt with reconciling this formulation with the position that Justices Kennedy and Thomas took in Albright, which, as the narrowest ground of decision, constitutes the effective holding...