Newsome v. McCabe

• Decision Date: 10 February 2003
• Docket Number: No. 02-2260.,No. 02-1920.,No. 02-2357.,No. 02-2356.,02-1920.,02-2260.,02-2356.,02-2357.
• Citation: 319 F.3d 301
• Parties: James NEWSOME, Plaintiff-Appellee, v. Helen MCCABE (as personal representative of the estate of John McCabe), Raymond McNally, and City of Chicago, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

319 F.3d 301

James NEWSOME, Plaintiff-Appellee, v. Helen MCCABE (as personal representative of the estate of John McCabe), Raymond McNally, and City of Chicago, Defendants-Appellants.

No. 02-1920.

No. 02-2260.

No. 02-2356.

No. 02-2357.

United States Court of Appeals, Seventh Circuit.

Argued January 8, 2003.

Decided February 10, 2003.

David Odom, Chicago, IL, Sean W. Gallagher (argued), Bartlit, Beck, Herman, Palenchar & Scott, Chicago, IL, for James Newsome.

Lawrence Rosenthal (argued), Jane E. Notz, Office of Corp. Counsel, Appeals Div., Chicago, IL, for Raymond McNally, John McCabe, Helen McCabe and City of Chicago.

Before FLAUM, Chief Judge, and EASTERBROOK and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Fifteen years after his conviction for killing Edward Cohen, James Newsome was pardoned on the ground of innocence: fingerprints and other information strongly imply that Dennis Emerson committed the crime. Newsome filed this suit under 42 U.S.C. § 1983, seeking damages from police officers who, he contends, induced three witnesses to identify him as the killer. Two years ago we held that officers McCabe and McNally are not entitled to qualified immunity if, as Newsome alleges, they not only induced witnesses to accuse him falsely but also concealed their improper activities. Newsome v. McCabe, 256 F.3d 747, rehearing denied, 260 F.3d 824 (7th Cir.2001). On remand the City of Chicago, which has a financial stake in the outcome as a potential indemnitor of the officers, intervened to protect its interests. A jury found that, by concealing evidence favorable to the defense, McCabe and McNally had violated Newsome's constitutional right to due process of law and awarded him $15 million in damages, to which the district judge (after denying all post-trial motions) added some $850,000 in attorneys' fees and costs. See 2002 WL 548725, 2002 U.S. Dist. LEXIS 6345 (April 4, 2002), 2002 WL 1008472, 2002 U.S. Dist. LEXIS 8793 (May 17, 2002). In this appeal Chicago does not dispute the legal accuracy of the jury charge, does not contend that the evidence was inadequate to support the verdict, and does not argue that the financial awards are excessive. Instead it asserts official immunity, and it also contests some of the district judge's evidentiary decisions at trial.

Many of Chicago's contentions are variations (or recapitulations) of arguments that we found unconvincing the last time around. Chicago thus has preserved them for presentation to a higher court, but in this tribunal they are barred by the law of the case. Chicago's presentation effectively asks us to use a claim of immunity to resolve the case de novo on appeal, discarding the rule that a jury's verdict must be sustained if the evidence (and reasonable inferences), when viewed in the light most favorable to the prevailing party, would permit a reasonable juror to find in that party's favor. According to Chicago, two legal propositions call for independent appellate review: first, a claim of immunity presents a question of law for the court, see Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.1988) (en banc); second, as part of the immunity inquiry, a court considers whether a constitutional violation occurred. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Anthony Rounds, Josie Nash, and John Williams supplied the principal evidence at Newsome's criminal trial. Rounds and Nash, who had been in Cohen's grocery store when the murder occurred, positively identified Newsome as the killer; Williams, who had been outside, testified that he saw Newsome flee. By the time of the civil trial more than 20 years later, Nash had died and Williams could not be found, but Rounds denounced his earlier testimony as the result of insistence by McCabe and McNally that he select No. 3 (Newsome) in a lineup; and Newsome testified that he saw the officers coach the witnesses during the lineups. The officers admitted (as Williams had testified during a suppression hearing) that they improperly displayed photos before the lineup occurred to improve the chance that Williams would pick Newsome. Chicago wants us to disbelieve the testimony Rounds gave at the civil trial, or at least give an innocent reading to his testimony that the officers threatened him with imprisonment if he told the prosecutors what actually happened at the lineup. According to the City, all McCabe and McNally meant is that Rounds faced criminal investigation unless he told the whole truth—a standard warning to witnesses who spin out inconsistent tales.

Claims of qualified immunity neither require nor authorize de novo appellate review of the evidence. The Supreme Court made this clear: "A court required to rule upon the qualified immunity issue must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (emphasis added). This question is for bench rather than jury, and the court of appeals does not defer to the district judge's resolution of it—but just as with motions for summary judgment under Fed.R.Civ.P. 56, or for judgment as a matter of law under Fed.R.Civ.P. 50, what the court decides is whether the record could support a finding of unconstitutional conduct. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). To say that a motion for judgment as a matter of law under Rule 50 is addressed to the court does not imply that the court resolves factual disputes; just so with claims of official immunity. Saucier made the existence of a constitutional tort the initial inquiry because it's pointless to decide whether the impropriety of a public actor's conduct was clearly established at the time the conduct occurred, if the conduct was not improper at all. In other words, unless the plaintiff's complaint rests on a good legal theory, and the record presents a triable issue under that theory, the defendant is entitled to prevail expeditiously. When the legal theory is sound, however, and there is a material dispute about the strength of the evidence, then the case must be tried, and the jury's resolution is conclusive. If an interlocutory review tests only the sufficiency of the complaint, a later review may be required to test the sufficiency of the evidence, see Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)—but, as with any other appellate review under Rules 50 or 56, the prevailing party receives the benefit of all reasonable credibility determinations and inferences.

This jury heard Rounds. It knew that he was contradicting testimony given at Newsome's criminal trial; it knew that Rounds is not the most savory character. But just as many a criminal defendant goes to prison on the testimony of former partners in crime who say that they have at last gone straight, so a jury could believe these witnesses when they decided to sing in a new key. And Rounds' testimony about the warning, taken in the light most favorable to the verdict, permitted the jury to find that McCabe and McNally not only manipulated the identifications (something that would not by itself support an award of damages, as our opinion denying rehearing in 2001 explained) but also obstructed the ability of the prosecutors and defense counsel to get at the truth in the criminal trial—which does support the jury's verdict.

Seeking a way around our decision that the officers are not entitled to qualified immunity, Chicago now contends that they should have received absolute immunity. The theory is that Newsome effectively accuses the officers of suborning perjury. Witnesses enjoy absolute immunity from civil liability on account of their testimony, see Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), and that immunity also covers preparation. "It would be a hollow immunity if the aggrieved party could turn around and say, in effect: `True, your delivery of bad testimony is immunized, but preparing to deliver that testimony is not, so I can litigate the substance of your testimony.' Substance is exactly what Briscoe puts off limits." Buckley v. Fitzsimmons, 919 F.2d 1230, 1245 (7th Cir.1990) (emphasis in original), reversed in part on other grounds (after an intermediate remand), 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Now Chicago contends that testimonial immunity should be extended to non-witnesses who assisted in the testimony's preparation. We rejected that extension in Ienco v. Chicago, 286 F.3d 994, 1000 (7th Cir.2002), and see no reason to revisit that issue because Newsome's case does not present it. McCabe and McNally were not held liable for conspiring with the eyewitnesses to commit perjury; their liability is under the due...