Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 2430 -- Harry D. Leinenweber, Judge.
Posner, Manion, and Kanne, Circuit Judges.
George Jones was arrested, jailed, and charged with murder and other crimes. After these charges were dropped, Jones sued the City of Chicago and several Chicago police officers and a police lab technician under 42 U.S.C. § 1983 for false arrest, false imprisonment, intentional infliction of emotional distress, and malicious prosecution, as well as conspiracy to commit these wrongs. He alleged that the defendants' conduct had denied him due process of law under the Fourteenth Amendment and violated his rights under the common law of Illinois. A jury awarded him $801,000 in compensatory and punitive damages. Judgment was entered on the verdict, and the defendants appeal. They argue that there was insufficient evidence of conspiracy; that they are insulated from liability by the decision of the state's attorney to charge and later to prosecute Jones, or at least are immune from liability for damages because they acted in good faith; and that the City cannot be held liable. Jones has cross-appealed, questioning the district court's calculation of attorney's fees.
The defendants have, as we shall see, no meritorious objections to the jury instructions; and they make only minor objections, also meritless, to the judge's trial rulings. So we must construe the evidence in the light most favorable to Jones, and this perspective discloses a frightening abuse of power by members of the Chicago police force and unlawful conduct by the City itself.
Between 4 and 6 a.m. on the morning of May 4, 1981, 12-year-old Sheila Pointer was raped, and bludgeoned to death, and her 10-year-old brother Purvy beaten unconscious, in their home in a poor neighborhood of Chicago. A blood-stained pipe was found in an alley behind the Pointer home. A neighbor, Nancy Coleman, reported seeing a black teenager, clad in a dark knee-length coat and a hat and carrying a red tote bag, leaving the alley at about 6 a.m.
The police had no other clues. Their only hope for breaking the case lay, therefore, with Purvy -- who was in a coma. His doctors at the University of Chicago hospital told the police that it might be months before he could speak again, let alone remember anything about the assault. But Purvy's recovery proceeded more rapidly than expected. By May 11 he was able to speak (though only very hoarsely) and to respond to simple verbal cues. Police detectives Houtsma and Tosello -- who are defendants in this case, as are all the police officers named in this opinion except Laverty -- visited the hospital that day. Without first inquiring about Purvy's precarious mental state, they tried to interview him. Purvy found it difficult to speak, so the officers told him to signal "yes" or "no" by squeezing Houtsma's hand. After indicating in this manner that his parents (whom the police had briefly suspected) had not been the assailants, Purvy uttered the name "George." Through hand signals he conveyed the message that "George" was the assailant, and that George was a teenage gang member who lived near the Pointer home and had lighter skin than Purvy.
The detectives left the hospital and began looking for persons who lived near the Pointer home and fit the description of "George." They discovered that George Jones lived a block away. A senior at Fenger High School, and the editor of the school newspaper, the bespectacled Jones was called "Bookworm" by his classmates in grudging tribute to his studious character. He was the son of a Chicago policeman and planned to join the Air Force upon graduation from high school and afterward attend college.
The police obtained a photograph of George -- his graduation photograph, which showed him in a suit -- from his father, and gathered some other photos in order to prepare a photo line-up for Purvy. The other photos were mug shots.
Their shift ending, Houtsma and Tosello left the sheaf of photos for the detectives on the next shift, Kelly and Binkowsi, who that evening took the photos to show Purvy. Moments before the officers spoke to Purvy he had overheard a doctor ask a nurse, "Is that the boy whose sister is dead?" Upon thus learning that his sister was dead, Purvy became agitated. The officers knew this, but proceeded with the photo line-up. Officer Kelly displayed George Jones's picture first and asked Purvy whether he knew the person in it. He said yes, and Kelly then asked him whether this person was the assailant. Purvy did not respond. Kelly showed him the rest of the pictures but Purvy remained unresponsive. Eventually he started crying, and the officers left.
Just before the interview, Mrs. Pointer had told Kelly that Purvy had been murmuring a name that sounded like "George Anderson," "George Henderson," or "George Harrison" -- and, sure enough, during the interview Kelly and Binkowski heard Purvy repeat a name that sounded like "Anderson." So when they left the hospital they tried to find an "Anderson" in the Pointer neighborhood, but they were unsuccessful. They returned to the police station and wrote a memorandum accurately describing their interview with Purvy. Kelly gave copies of this memorandum to the other police officers investigating the case and to his sergeant (Palmer). He placed the remaining copy not in the police department's regular files but in its "street files." These were files that the police did not turn over to the state's attorney's office as they did with their regular investigative files. As a result, the street files were not available to defense counsel even if they contained exculpatory material. We use the past tense because the practice was discontinued following a class-action suit (inspired by the disclosure, in the criminal trial of George Jones, of the existence of the street files) to enjoin the practice. That suit is Palmer v. City of Chicago, the essential orders in which are reported at 562 F. Supp 1067 (N.D. Ill. 1983), 755 F.2d 560 (7th Cir. 1985), and 806 F.2d 1316 (7th Cir. 1986). It ended without a formal ruling on the lawfulness of the practice.
The next morning (May 12), Houtsma, accompanied by Detective McGuire, went to the hospital and repeated the photo line-up. Houtsma showed Purvy the pictures one at a time, starting with George Jones's picture. Purvy made no response to it but upon seeing one of the subsequent pictures cried out "Yep, yep, that's the one who did it to me." Houtsma asked Purvy whether he knew the person's name; he made no response. He also made no response when Houtsma asked him whether he knew the person's nickname and whether it was "Bookworm."
Houtsma and McGuire left the hospital. Accompanied by officers McCabe and McNally, they went directly to Jones's high school, entered his classroom, and arrested him. They searched his locker but did not find the clothes or bag matching Nancy Coleman's description. They took him to the police station, where they questioned him and threatened him with the electric chair if he didn't confess. He denied having anything to do with the crime and was packed off to Cook County Jail.
McCabe and McNally took George's graduation photo to Nancy Coleman, who at first was uncertain but after covering up part of the face with strips of paper said he was indeed the "clean looking" person she had seen emerging from the alley on the morning of the crime.
An assistant state's attorney suggested that an attempt be made to get Purvy to identify Jones in person as the assailant. Accompanied by two assistant state's attorneys, Houtsma and McCabe brought George Jones to Purvy's hospital room, ordered him to stand about three and a half feet from the bed, and asked Purvy whether this was the person who had hit him over the head. Speaking calmly, Purvy answered, "No, that's not the man, that's not the man, no, no, no." Houtsma ordered Jones to take off his glasses and stand within two feet of Purvy. Houtsma turned up the lights, then repeated the question. "No," said Purvy -- then, "Yes, that's him, yes"; then, "Yes, no, yes, no" over and over. Someone asked Purvy whether he was sure (of what?) and Purvy answered with another string of yes-nos. One of the assistant state's attorneys present, Schultz, testified in this case that Purvy's identification of George Jones was the best identification he had ever seen. Such testimony could not have helped the defendants' credibility with the jury.
The morning after this "identification," a grand jury indicted George Jones for murder, rape, attempted murder, armed violence, burglary, and home invasion. On the same day (May 13), Sergeant Palmer signed the official arrest report. A document intended for use by prosecutors, this report had been compiled the previous day by Tosello, Houtsma, McCabe, McGuire, and McNally, and signed by the first two. The report was full of falsehoods, such as that Nancy Coleman had picked out Jones's picture from a group of seven (his picture was the only one she had been shown), that Jones's father had not seen him on the morning of May 4 (in fact his father had told the investigating officers that he had seen George at home that morning), and that Purvy had said that his assailant attended Fenger High School (Purvy had said no such thing). The report did not mention that Purvy had described his assailant as a gang member (George Jones was not a gang member), as being a lighter-skinned ...