Holloway v. City of Milwaukee

• Citation: 43 F.4th 760
• Decision Date: 08 August 2022
• Docket Number: 21-3007
• Parties: Daryl HOLLOWAY, Plaintiff-Appellant, v. CITY OF MILWAUKEE, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

43 F.4th 760

Daryl HOLLOWAY, Plaintiff-Appellant,

v.CITY OF MILWAUKEE, et al., Defendants-Appellees.

No. 21-3007

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2022

Decided August 8, 2022

Nathaniel Cade, Jr., Annalisa Pusick, Attorneys, Cade Law Group LLC, Milwaukee, WI, for Plaintiff-Appellant.

Yolanda Y. McGowan, Attorney, City of Milwaukee, Milwaukee, WI, Stacy Jane Miller, Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.

Before Easterbrook, Wood, and Scudder, Circuit Judges.

Wood, Circuit Judge.

After serving 24 years in prison for burglary and sexual-assault convictions, Daryl Holloway was exonerated by DNA evidence and the State of Wisconsin vacated his convictions. Upon his release, Holloway filed a law-suit under 42 U.S.C. § 1983 against the City of Milwaukee and various police officers who investigated him at the time of the assaults.

Holloway alleged that the police and the City violated his due-process rights in a variety of ways: the use of overly suggestive identification procedures; the suppression of evidence favorable to his defense in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; an arrest without probable cause in violation of the Fourth Amendment; a conspiracy to deprive him of his constitutional rights; and, in the City's case, the failure to enact policies that were essential to avoid constitutional violations. The district court granted summary judgment in defendants' favor on all claims.

For the most part, we agree with the district court's assessments of these arguments. But our reasoning differs in one important respect. As we see the record, the officers' identification procedures may well have violated Holloway's right to due process. At minimum, that question was not properly resolved on summary judgment. Nevertheless, summary judgment was appropriate for a different reason: the officers' conduct was not "clearly established" as unlawful at the time, District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018), and so the defendants were entitled to qualified immunity. Thus, we affirm.

I

In the summer of 1992, there were five sexual assaults in Milwaukee that shared some basic characteristics: White women were robbed in their homes and sexually assaulted at knifepoint by a Black man. Holloway was charged and convicted for the assaults of two of the five victims: M.G. and G.D. M.G. indicated that her attacker was a Black man in his mid-twenties, medium-to-muscular build, 5'7'' to 5'8'' in height, and that he wore a bright handkerchief around his face under his eyes. G.D. indicated that her attacker was a Black man, about 5'8" in height, "approximately 160, 170 pounds," but that poor lighting in her room prevented her from getting a good look at his face. All three additional victims—K.R., R.R., and A.K., for whom Holloway did not face charges—offered similar descriptions of their attacker: a Black man of roughly medium height and build. R.R. added that her attacker had "a very strong odor of smoke, especially on his clothes."

Detective Daniel Ruzinski initiated the investigation into G.D.'s complaint. Ruzinski spoke with one of G.D.'s roommates, Tonya Bartoletti, who told Ruzinski that she had been followed home from the store the night before the assault by a Black man known as "Al," who tried to talk to her throughout the walk. Ruzinski did not include information about Bartoletti's interaction with Al in his official interview notes. Thus, Holloway's defense team did not learn about it until one week before trial, when Assistant District Attorney Terry Magowan disclosed the incident. Magowan himself learned of it only three weeks or so before trial.

While investigating the assault of R.R., Detective Michael Carlson contacted the Shorewood Police Department ("SPD") and inquired about any similar offenses in its jurisdiction. (Milwaukee and Shorewood border one another.) An officer with the SPD identified Holloway as a person of interest. He related that Holloway had recently been stopped for prowling, that he was on parole for a 1985 sexual-assault conviction, and that he was a Black man, approximately 5'10" in height, who smoked cigarettes. Carlson dug further into the 1985 conviction and found that its underlying facts resembled those of the recent sexual assaults in the area: Holloway apparently had burglarized and sexually assaulted a woman in her home while threatening to kill her. Carlson identified Holloway as a suspect, obtained a booking photo of him, placed the photo in an array, and showed the photo array to R.R. and G.D.

G.D. was unable to identify Holloway. R.R. stated that the man in the photo resembled her attacker but that she was not certain and needed to see him in person to make a positive identification. Based on R.R.'s statement and Holloway's 1985 conviction, officers arrested Holloway at Carlson's request. After being advised of his Miranda rights, Holloway denied any involvement in the assaults, volunteered to stand in a lineup, and offered alibi information for the relevant dates. Holloway was placed in a lineup alongside four other men of similar height, size, features, hairstyles, and skin color. (For ease of reference, we have included a photograph of the lineup in the Appendix to this opinion.) All five wore identical coveralls, although Holloway was one of only two men who did not wear white sneakers. At 5' 10'', Holloway was the shortest man in the lineup. He was only marginally shorter than one of the suspects, but he was noticeably shorter than the rest. The lineup also involved a voice identification.

Based on his voice and general body shape, G.D. identified Holloway as her attacker, indicating that she was "absolutely sure" and that on a scale of 1 to 10, her identification was a 10. M.G. also identified Holloway as the person who sexually assaulted her, indicating that she was "positive" and that he looked "exactly like" her attacker. On the other hand, R.R., A.K., and A.K.'s roommate were unable to identify Holloway. Holloway moved to suppress the lineup as tainted and overly suggestive, but his motion was denied. Holloway was convicted after a jury trial of the charges related to the assaults of M.G. and G.D. and received four consecutive 30-year sentences. The Wisconsin appellate court affirmed his convictions. State v. Holloway , 195 Wis.2d 85, 537 N.W.2d 148 (unpublished); No. 94-1257-CR, 1995 WL 321942 (Wis. Ct. App. 1995).

At the time of Holloway's investigation and trial, the Wisconsin State Crime Lab had not yet begun conducting DNA analysis; it did not begin to do so with any regularity until the mid-1990s. Holloway's post-conviction counsel eventually reached an agreement with the district attorney's office to have DNA testing performed by the State Crime Lab. This testing showed that someone other than Holloway may have been the source of seminal fluid. A subsequent round of tests by a private lab produced a report that Holloway and the State agreed was exculpatory. In 2016, 24 years after the assaults, Holloway's convictions were vacated and his charges dismissed with prejudice.

Holloway then brought a suit under 42 U.S.C. § 1983 against the City of Milwaukee and several officers with the Milwaukee Police Department. He now appeals the district court's decision to grant summary judgment in the defendants' favor.

II

We assess a district court's grant of summary judgment de novo. See Stevens v. United States Dep't of State , 20 F.4th 337, 342 (7th Cir. 2021). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Miller v. Chicago Transit Auth. , 20 F.4th 1148, 1155 (7th Cir. 2021).

Holloway raised seven constitutional claims against the defendants, but only six are before us. The district court deemed Holloway's malicious-prosecution claim waived at the summary-judgment stage, and Holloway has not contested that determination in this court. We address the six remaining claims below.

A

Holloway's first claim is his strongest. He argues that the defendants violated his due-process right to a fair trial by using unduly suggestive identification procedures. The right to a fair trial, guaranteed by the Due Process Clause of the Fourteenth Amendment, is "violated if unduly suggestive identification techniques are allowed to taint the trial." Alexander v. City of South Bend , 433 F.3d 550, 555 (7th Cir. 2006).

To determine whether such a violation has occurred, we conduct a two-step inquiry. United States v. Sanders , 708 F.3d 976, 983–84 (7th Cir. 2013). The first question is whether the "identification procedure used by law enforcement was ‘both suggestive and unnecessary.’ " Id. If so, we then decide, based on the totality of the circumstances, whether the identification was sufficiently reliable to outweigh the effect of the tainted procedure. Id.

Before we undertake this analysis, we take a moment to consider the nature of the right at issue in light of the Supreme Court's recent decision in Vega v. Tekoh , ––– U.S. ––––, 142 S. Ct. 2095, ––– L.Ed.2d –––– (2022). The question presented in Tekoh was "whether a violation of the Miranda rules provides a basis for a claim under § 1983." Id. at 2101. The Supreme Court held that it does not. Id. It reasoned that the right conferred by Miranda is only a trial right, not a free-standing constitutional right; defendants may thus seek to suppress evidence obtained in violation of their Miranda rights at their criminal trials, but they may not sue officials under section 1983 for that violation. See id.

This case is not about Miranda. But at oral...