Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 2958-James F. Holderman, Chief Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge
Before KANNE, WILLIAMS, and TINDER, Circuit Judges.
The plaintiff/appellee, Raul Carvajal, was prosecuted in the Southern District of Florida for money laundering and was acquitted at the conclusion of a jury trial. He then brought this civil suit in the Northern District of Illinois against defendant/appellant Drug Enforcement Administration ("DEA") Task Force Officer Louis Dominguez, Jr. for damages, alleging violations of his constitutional rights in connection with the criminal prosecution. The Illinois district court granted Dominguez's motion for summary judgment in part by dismissing several counts of Carvajal's amended complaint, but the court denied the motion with respect to a count which asserted a Bivens cause of action alleging a Brady violation. That decision also included a denial of qualified immunity for Dominguez. This appeal followed.
The relevant facts revolve around Officer Dominguez's identification of Carvajal in two undercover money pickups in Chicago. Chicago DEA Task Force Officer Wayne Hunter was assisting in an investigation (called "Operation Double Trouble") of a Miami-based money laundering operation in early April 2001. DEA Miami asked for assistance in arranging two undercover money pickups in Chicago. DEA Miami provided Hunter with a cell phone number and a code to be used to arrange the pickups. The first pickup was to occur on April 16, 2001. Hunter asked agent Dominguez to do the job. Dominguez used the cell number to arrange to meet two individuals; he later identified them as German Matos Ruiz and Raul Carvajal. Dominguez met with the men for about five minutes in the midafternoon inside a Coconuts music store, and he saw them in the parking lot where he spoke with the man identified as Ruiz for a few minutes and observed the man identified as Carvajal sitting in a vehicle. A second transaction took place on April 21, 2001. Dominguez again identified the men as Ruiz and Carvajal; a woman was also with them. This meeting took place in a Baker's Square restaurant. The meeting lasted about 15 minutes. During the meeting Dominguez initially sat next to the man identified as Carvajal with the man identified as Ruiz across the table; later the men switched, putting the supposed Carvajal across the table from Dominguez. This meeting also occurred in the midafter-noon.
It is unclear just when Hunter learned of Carvajal's name in connection with the money laundering investigation-he testified in a deposition in this civil action that he may have gotten the name from DEA Miami or from a Chicago field office intelligence analyst who traced the cell number to Carvajal's ex-wife. Either way, on April 9, 2001, an intelligence analyst in Chicago requested a photo of Carvajal from the Illinois Secretary of State. Hunter did not remember when he got the photo or whether he had it before April 16, the date of the first undercover pickup. Hunter said he knew Carvajal's name by April 15th and may have had the picture by the 16th.
Dominguez said that he did not see Carvajal's photo or have his name prior to the April 16th meeting. Dominguez claims that he first saw Carvajal's photo sometime between the first meeting on April 16 and May 14, 2001, the date of his written reports. He cannot recall whether he saw another photo at the same time he saw Carvajal's or not. He never saw a formal lineup. Hunter testified that he "possibly gave Carvajal's name and photographic image to Dominguez prior to the April 16, 2001, operation to make sure that Dominguez had all the information about the case and that Dominguez was not meeting with someone he already knew." It is agreed that Hunter would have provided whatever information he had to Dominguez, including the photo-doing so would have been his "normal practice."
A federal grand jury in Miami indicted Carvajal and 33 others in connection with a money laundering scheme; in a superceding indictment he was charged only with acting as a courier. Carvajal filed a motion to suppress Dominguez's identification of him as unduly suggestive in light of the "one-photo procedure used." The judge denied the motion after an evidentiary hearing at which Dominguez and another law enforcement officer (not Hunter) testified. The judge began his ruling with the assumption that the photo identification procedure used by Dominguez was unduly suggestive, but he found that "regardless of whether the procedure used was impermissibly suggestive, there was not a substantial likelihood of misidentification." He noted that Dominguez had an "excellent opportunity to view Carvajal at the time of the two money pick ups" and that there was no evidence that he was "pressured to select Carvajal's photograph." That judge also made a finding that during a separate undercover money pickup (in which Dominguez was not involved), a vehicle was seen that was registered to Carvajal's ex-wife. Later, in a trial with one co-defendant, who was found guilty, a jury acquitted Carvajal.
This brings us to the instant case in which Carvajal brought this civil suit in the Northern District of Illinois for damages against Dominguez. The district court granted Dominguez's motion for summary judgment on Count One, a claim for false arrest and unlawful search and seizure, and Count Two, a claim alleging a "deprivation of liberty." The court also granted the motion with respect to Count Four-a claim for perjury-noting police witnesses are entitled to absolute immunity from perjury claims for trials and pretrial proceedings and found no evidence supporting an application of the "complaining witness" exception to this rule. Count Three claimed that Dominguez withheld favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The amended complaint alleged that he "knowingly and falsely identified Carvajal as the perpetrator in a money laundering conspiracy and wrote false police reports about him." The district court denied Dominguez's motion for summary judgment with respect to this claim. In its decision, the court rejected the notion that an acquitted defendant, such as Carvajal, cannot have a Brady claim but noted that the question is an open one in this circuit and that the district court is split on the question. The court concluded that an acquittal "alone does not show that the police officers complied with Brady or that the defendant's trial was fair" and applied the Brady analysis "on a prospective basis."*fn1 Analyzing under Brady, the judge explained: "Carvajal identified as exculpatory Dominguez's alleged failure to tell the prosecutor that he was given Carvajal's name and photographic image before the first transaction on April 16, 2001." "This evidence would have impeached Dominguez's testimony at trial that he did not know Carvajal's name or see his photograph until after the April 16, 2001 transaction and undermined the credibility of Dominguez's post-April 16, 2001 identification of Carvajal." According to the district court, this was "material" because it "would have changed the outcome of the suppression hearing, and the withholding of evidence denied him a fair trial." The court also concluded that Dominguez was not entitled to qualified immunity explaining that "the boundaries of Brady as applied to this case have long been established."
II. Discussion & Analysis
This case comes to us from a denial of summary judgment-typically a case in such a posture is not immediately appealable to our court. We have jurisdiction, how-ever, under 28 U.S.C. § 1291 and the "collateral order" doctrine. An appeal of an order denying qualified immunity is a well-established application of this doctrine: "A district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law is an appealable final decision within the meaning of 18 U.S.C. § 1291, notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
The Supreme Court recently clarified that the scope of this doctrine includes jurisdiction over whether "to devise a new ...