Lovelace v. Gibson

• Decision Date: 22 December 2021
• Docket Number: No. 20-3254, No. 20-3255,20-3254
• Citation: 21 F.4th 481
• Parties: Curtis LOVELACE, et al., Plaintiffs-Appellees, v. Adam GIBSON, et al., Defendants-Appellants. Curtis Lovelace, et al., Plaintiffs-Appellees, v. James Keller, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

21 F.4th 481

Curtis LOVELACE, et al., Plaintiffs-Appellees,

v.Adam GIBSON, et al., Defendants-Appellants.

Curtis Lovelace, et al., Plaintiffs-Appellees,

v.James Keller, Defendant-Appellant.

No. 20-3254

No. 20-3255

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2021

Decided December 22, 2021

Jon C. Loevy, Attorney, Loevy & Loevy, Chicago, IL, for Plaintiffs-Appellees.

Thomas G. DiCianni, Attorney, Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, Chicago, IL, James L. Palmer, Attorney, Scholz, Loos, Palmer, Siebers & Duesterhaus, Quincy, IL, for Defendants-Appellants in Docket No. 20-3254.

James A. Hansen, Attorney, Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, IL, for Defendant - AppellantJames Keller in Docket No. 20-3255.

Before Kanne, Wood, and Hamilton, Circuit Judges.

Wood, Circuit Judge

Cory Lovelace died in her bed one morning in February 2006.Cory was not in good health, and nobody at the time suspected foul play.But seven years later, while browsing through old photographs, Detective Adam Gibson hatched a theory: that Cory's husband, Curt Lovelace, had suffocated her with a pillow.Gibson, along with Coroner James Keller and several other local officials, launched a relentless investigation, leading to Curt's arrest and prosecution for murder.In the end, Curt was acquitted by a jury, but only after he endured a mistrial, a series of evidentiary irregularities, and more than two years' detention.After Curt was vindicated at trial, he sued Gibson, Keller, and the other officials, alleging numerous violations of his constitutional rights.At summary judgment, the officials asserted qualified immunity from some of Curt's claims.The district court denied their motions.

The officials now seek to take an appeal, again in pursuit of qualified immunity from Curt's Fourth and Fourteenth Amendment theories.We lack appellate jurisdiction over the Fourth Amendment theory underpinning Curt's Count II, however, and so we dismiss that portion of the appeal.As for the Fourteenth Amendment theory underpinning Count I, Curt concedes that circuit precedent now forecloses it, and so we reverse on the basis of his withdrawal of that argument.

I

In reaching its decision, the district court properly construed all genuine disputes of material fact, along with reasonable inferences from those facts, in favor of Curt, the nonmovant.SeeGutierrez v. Kermon , 722 F.3d 1003, 1005(7th Cir.2013).We do the same.

A

Because Cory was relatively young when she died, the City of Quincy police, along with several Adams County officials, conducted a thorough investigation of her demise.All the physical evidence pointed toward a natural cause of death.It turned out that Cory was severely alcoholic, bulimic, and had been sick with flu-like symptoms for several days before she died.An autopsy revealed that Cory had been suffering from "marked steatosis of the liver."Severe steatosis—significant fat throughout the liver—can cause the liver to become inflamed and riddled with scar tissue; at that point the person has cirrhosis of the liver, which can lead to liver failure and death.See, e.g. , Cleveland Clinic, Fatty Liver Disease, https://my.clevelandclinic.org/health/diseases/15831-fatty-liver-disease (last visited Dec. 15, 2021).This evidence could not establish a single, indisputable cause of death, but it was more than enough to suggest an array of plausible natural explanations—chronic alcoholism, when combined with other medical conditions, can itself be fatal.Moreover, Cory's body bore no signs of violent trauma.She had a small patch of redness under her nose, but it was more consistent with a cold or acne than with violence.And she had a small cut inside her mouth, but because it was already healing when Cory died, it was determined to have predated her death.

Investigators also verified Curt's account of the morning in question by comparing his story to the physical evidence indicating time of death.Curt recounted that Cory was supposed to take their three school-aged children to school that day, as Curt was scheduled to teach a class at a local university.But Cory was still unwell when she woke up.They decided that Curt would cancel his class and take their children to school instead.At one point Cory came downstairs to help get the children ready, but she was feeling very weak, and so Curt helped her back upstairs and into bed.Curt then took the children to school at around 8:15 am.He was back at the house by 8:35 am, but he did not go upstairs until around 9 am, when he discovered that Cory had died.The police interviewed Curt's three oldest children; all three corroborated this timeline.In particular, all three confirmed that they had seen their mother alive and moving about on the morning in question.

Dr. Jessica Bowman, who performed the autopsy, had some preliminary concerns about whether that timeline could be squared with the degree of rigor mortis the body evinced later that morning.But the first responders—including a paramedic, two detectives, and Gary Hamilton, who was then the Coroner of Adams County—all reported that when they had examined the body at around 10 am, it was still warm, fairly pliable, and showed only mild, unset lividity (lividity is the discoloration of the skin that results from the settling of blood following death).Indeed, EMT Ballard was able without trouble to move Cory's arms from a position on her body to a point above her heart, so that he could attach a probe there in an attempt to revive her.As the arms continued to stiffen, they remained in the position in which Ballard had left them.Based on all the evidence, Dr. Bowman indicated that the cause of death was inconclusive.At no point did she suggest foul play.The police, too, deemed the death a tragedy but not a crime, and so closed the file.

B

There the story should have ended.But seven years later, Detective Gibson set in motion a second act.Formerly one of the Quincy police department's canine officers, Gibson had been reassigned to elder services after his dog retired.But the new role did not keep him busy, it seems, and so to pass the time he made a habit of reviewing files from old cases.One photo of Cory's body in the Lovelace file caught Gibson's attention in November 2013.In it, her arms were raised in what appeared to Gibson to be an unnatural position.He concluded that Curt had suffocated Cory with a pillow the evening before her death was reported, that rigor had set in overnight, and that her arms had stayed put when the pillow was removed sometime the next morning.This was, as we already have noted, wild speculation; Gibson was simply looking at photos that were taken after Ballard repositioned Cory's arms.

But Gibson was convinced that he was on to something.With approval from his supervisors, he launched a full-blown murder investigation.It was not long before Coroner Keller joined Gibson's effort, in December 2013, and provided a critical evidentiary boost.Keller had been at the scene for a few minutes to help move the body (he ran a local funeral home at the time), and so he passed for an eyewitness.He claimed, apparently without notes or other corroboration, to recall that Cory's body had been in full , not partial, rigor, and that the room had smelled bad, as if her body had already begun to decompose.Those claims, if true, would have supported Gibson's alternate timeline and contradicted Curt's account.But no other eyewitness, including several who had spent far more time on the scene than Keller, had reported a similar degree of rigor or mentioned any strong odor.Moreover, Keller made no effort to explain how someone could have moved Cory's arms if Keller was correct.

Gibson and Keller next began to shop around for a forensic expert who would bolster the case against Curt.They started in early January 2014 with Dr. Derrick Pounder.But after hearing Gibson's theory, Dr. Pounder explained in an email that "rigor is not a reliable method of estimating time of death."And he advised Gibson that Cory could have spoken to her children that morning, just as Curt claimed, and then been dead with her arms at some stage of rigor 90 minutes later.Gibson did not write up a report memorializing Dr. Pounder's conclusions.

In late January, Gibson and Keller consulted Dr. Scott Denton.Like the original investigators, Dr. Denton quickly dismissed the redness above the lip and small cut in the mouth as irrelevant.And he, too, homed in on the liver as the most likely cause of death.In February, Gibson met with Dr. Denton in person, but again he made no record of Dr. Denton's opinions.Nor did Dr. Denton himself submit any report at the time.(He did file one eventually, but it came almost 300 days after Curt was arrested and so had nothing to do with probable cause for the arrest.)

Gibson and Keller then returned their attention to Dr. Bowman, who had performed the original 2006 autopsy.But she refused to change the official cause of death from "undetermined" to suffocation, even in the face of Gibson's intensive lobbying in the form of numerous phone calls and several multi-hour meetings.Gibson, yet again, made no report memorializing Dr. Bowman's skepticism.But he did later assert, apparently without any factual basis, that Bowman "felt during the initial autopsy that suffocation was the cause of death."

For a fourth opinion, in March, Gibson turned to Dr. Shaku Teas.But she, too, concluded that the condition of the liver and other evidence of chronic alcoholism made a natural death most likely.And Dr. Teas saw no reason to believe Gibson's murder-by-suffocation hypothesis.Gibson instructed Dr. Teas not to prepare a report, but she was troubled by his approach to the case and did so anyway.She later testified as a witness for Curt's defense.

Gibson and Keller's fifth and final attempt to secure a favorable expert opinion took place in April and May, when they presented ...