probable cause to cause an arrest or criminal prosecution).
Defendants argue that even if they are subject to § 1983 liability, their activity is entitled to qualified immunity. The question of whether Pochordo and Rotkvich's actions are protected by qualified immunity is a matter of law for the judge to determine. Whitt v. Smith, 832 F.2d 451, 453 (1987). The standard for granting qualified immunity is well-established. Broadly stated: government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).
As previously delineated, plaintiffs' claim here is that their constitutional rights were violated by the police who used suborned testimony to pursue their indictment, arrest and continued prosecution. During arrest an individual is protected by the fourth amendment of the U.S. Constitution and at some point after arrest his confinement or continued prosecution is protected by the due process clause of the fourteenth amendment. See Wilkins v. May, 872 F.2d 190, 192-93 (7th Cir. 1989); Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988). The case-law cited by plaintiffs to support the claim that their constitutional rights were violated by the actions of police pertains exclusively to fourth amendment claims. This is not, however, irrelevant to the fourteenth amendment protections plaintiffs are entitled to, as defendants would have, since the inquiry under the fourth and fourteenth amendments does not change. See Jones, 856 F.2d at 994 (whether "police officers have been instrumental in the plaintiff's continued confinement or prosecution, they cannot escape liability by pointing to the decision of prosecutors or grand jurors or magistrates to confine or prosecute him").
A § 1983 defendant is liable only for his or her own actions, and not for the actions of others. See Martin v. Tyson, 845 F.2d 1451, 1455 (7th Cir. 1988). Although Officers Rotkvich and Pochordo admittedly were involved in the investigation of plaintiffs for murder, they did not execute the warrant for Allen and Stokes' actual arrest. Although defendants were not the arresting officers, Pochordo did sign the complaint which caused the arrest warrant to be issued for Stokes which was followed by an indictment three weeks later.
Furthermore, the alleged actions by defendants, consisting of suborned testimony, bribes and false evidence, were the basis for the allegedly unconstitutional arrest. In these circumstances, at least Pochordo (and I think Rotkvich as well for his alleged role in suborning testimony) may still be liable for committing constitutional torts even if they did not make the arrest and defendants cite no authority to convince this court otherwise.
Defendants argue that, in any event, an arrest pursuant to a warrant is by definition based on probable cause, therefore, the arrest was necessarily reasonable and they cannot have violated plaintiffs' fourth amendment rights. This is an incorrect statement of the current law. In Malley v. Briggs, the Supreme Court specified that issuance of an arrest warrant only provides police officers with qualified immunity and qualified immunity does not protect from liability an officer who acts on warrant where that reliance is not objectively reasonable. 475 U.S. 335, 106 S. Ct. 1092, 1098, 89 L. Ed. 2d 271 (1986) ("a reasonably well-trained officer in [his] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant").
It is clearly established that the fourth amendment requires truthful factual showing sufficient to constitute probable cause. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 2681, 57 L. Ed. 2d 667 (1978) (information in a warrant affidavit must be truthful or appropriately accepted as truthful by the affiant). An officer who submits testimony that he has suborned in preparing a warrant, as well as to the grand jury for indictment, objectively and reasonably knows that the arrest and indictment are in violation of the fourth amendment and illegal.
Policing is a lofty calling, vital to the public weal, often heroic in action. The grace and worth of the work usually remains unseen and unappreciated by those it serves. In grime and squalor, facing danger and fury, bearing witness to what is worst in men and women -- even police officers sometimes lose sight of the dignity of their service. It is a profound insult to the dignity of the service when a police officer submits testimony which the officer knows to be false in order to secure a warrant or indictment. Using evidence known to be false violates a fundamental duty of the officer. From the duty rises the right to be free from its violation. Even in the absence of judicial decision and specific statutory enactment,
this right is clearly established, and any reasonable officer would know this. This is so because no reasonable argument can be found to support a rule permitting the use of testimony known by its user to be false. Thus, Rotkvich and Pochordo are not entitled to qualified immunity for acts they are expected to know were in violation of Stokes' constitutional rights.
Finally, defendants say under the doctrine of Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), plaintiffs' fourth amendment due process claims do not give rise to a § 1983 cause of action.
In Parratt and its progeny, the Supreme Court held that a deprivation of a constitutionally protected liberty or property interest caused by a state employee's random, unauthorized acts does not give rise to a § 1983 procedural due process claim, unless there is no adequate state post-deprivation remedy. The Supreme Court reasoned that where the State cannot predict, so as to prevent a deprivation, a post-deprivation remedy is all the process State can supply and that is constitutionally sufficient. Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990).
Section 1983, thus, provides a remedy for a constitutional deprivation only once the State fails to provide due process. Zinermon, 110 S. Ct. at 978. Defendants argue that plaintiffs were given pre-deprivation process before their arrest in the form of a hearing before grand jury and after their arrest by the motions to dismiss the indictment plaintiffs were permitted to file in state court. The hearing before the grand jury cannot provide an adequate remedy in this situation, its effect was tainted by Pochordo and Rotkvich's allegedly illegal actions in procuring testimony for plaintiffs' arrest and grand jury hearing.
In any event, Parratt does not control here for reasons similar to those in Zinermon. The conduct defendants engaged in, was not "unauthorized", in fact making arrests is specifically within the police officer's province, "the State delegated to them the power and authority to effect the very deprivation complained of here" and thus, at the same time defendants are under a duty to guard against unlawful arrest and confinement. Zinermon, 110 S. Ct. at 990. Parratt is not intended to enable state officials to escape § 1983 liability in every case where a deprivation is caused by an unauthorized departure from established practices, simply because the State has a post-deprivation remedy available. Id. 110 S. Ct. at 990 n. 20. Pochordo and Rotkvich cannot characterize their conduct as random and unauthorized activity which the state could not predict, and Parratt will not protect them from liability under § 1983.
Summary Judgment is granted in favor of defendants with respect to plaintiff Allen, he is collaterally estopped from relitigating his claims in this court. Summary judgment is denied in favor of both defendants Pochordo and Rotkvich with respect to the fourth and fourteenth amendment claims based on Stokes' arrest, indictment and criminal prosecution.