The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Nathson Fields sued a number of Chicago police officers and two former Cook County prosecutors, Larry Wharrie and David Kelley, under 42 U.S.C. § 1983 and state law, in connection with his wrongful conviction for a double murder. Fields alleged that Wharrie, who was the prosecutor at his first trial on these charges, coerced a witness named Anthony Sumner to falsely implicate him in criminal activity and that this directly resulted in his wrongful incarceration. Fields alleged that while his conviction was on appeal, Wharrie also procured false statements from Earl Hawkins for use at a possible retrial. Fields also alleged that Kelley, who was the prosecutor at his retrial, coerced a witness named Randy Langston to falsely implicate him at that trial. Finally, Fields alleged that both Wharrie and Kelley concealed this and other exculpatory evidence from him in connection with the two trials.
In April 2011, the Court dismissed all of Fields' federal constitutional claims against Wharrie except the claim relating to Hawkins and also dismissed all of his federal constitutional claims against Kelley. See Fields v. City of Chicago, 805 F. Supp. 2d 536 (N.D. Ill. 2011). Fields has moved for reconsideration of the dismissal of his claims against Wharrie to the extent those claims are based on Wharrie's alleged role in fabricated inculpatory statements by Sumner. The motion requires the Court to discuss the basis for its April 2011 dismissal of the claims against Wharrie; the Seventh Circuit's ruling on an interlocutory appeal; and the Seventh Circuit's decision several months later in another case.
In addition, the Court addresses in this decision the issue of prosecutorial immunity as it applies to Fields' state law claims against Wharrie and Kelley.
1. This Court's dismissal of Fields' federal claims against Wharrie
In addressing Fields' federal claims regarding Wharrie's alleged coercion of
Sumner before charges were filed and Kelley's alleged coercion of Langston before the retrial, the Court assumed for purposes of discussion that this was investigative conduct for which Wharrie and Kelley were not entitled to absolute prosecutorial immunity. The Court concluded that Fields' federal claims against Wharrie and Kelley involving this conduct were barred by Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994) ("Buckley IV"). Specifically, the Court concluded that under Buckley IV, the coercion of a false statement is not actionable; rather, only use of such a statement in court is actionable, and a prosecutor has absolute immunity from liability for using the statement in court. Fields, 805 F. Supp. 2d at 547 (citing Buckley IV, 20 F.3d at 794).
The Court overruled Wharrie's absolute immunity and qualified immunity defenses, however, regarding Fields' contention that Wharrie had solicited Hawkins' false testimony prior to the retrial. The Court based its decision on Seventh Circuit law as it existed at the time, namely Houston v. Partee, 978 F.2d 362 (7th Cir. 1992). The basis of Houston was that if a prosecutor is no longer part of a trial team at the time of challenged misconduct, he is not entitled to absolute immunity.
2. The interlocutory appeal
Wharrie and Kelley filed an interlocutory appeal. Wharrie appealed from the Court's rejection of absolute immunity on Fields' claim concerning Hawkins' testimony. See Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012). Kelley appealed from the Court's failure to accord him absolute immunity on Fields' claim regarding Langston. See id. The Seventh Circuit did not consider the claim against Wharrie relating to his alleged coercion of a false inculpatory statement from Sumner.
The Seventh Circuit decided the appeal February 28, 2012. In addressing the Hawkins claim, the Seventh Circuit concluded that the aspect of Houston upon which this Court had relied had been effectively overruled by Van de Kamp v. Goldstein, 555 U.S. 335 (2009). After further analysis, the court concluded that Wharrie was entitled to absolute immunity from suit for his Hawkins-related conduct because he was still acting as a prosecutor even if he was not on the trial team. Fields, 672 F.3d at 514-16.
In an alternative holding, the court concluded that even if Wharrie had not been acting as a prosecutor when he obtained Hawkins' incriminating statements against Fields prior to the retrial, "Fields did not suffer a constitutional harm with respect to [the witness's] new, incriminating version of events until [another prosecutor] introduced the testimony at retrial." Id. at 516. The court reaffirmed its determination in Buckley IV that "fabricating evidence, including in the form of testimony, is not an actionable constitutional wrong. The constitutional violation occurs when the means by which the testimony was acquired are not disclosed at trial -- or when other information that impeach[es] the testimony's reliability [is] not shared with the defense." Id. at 516-17. Thus any constitutional wrong occurred when Kelley introduced the alleged false testimony at the retrial. Id. at 517. The court said that if Wharrie had handled the retrial himself, his violation of Hawkins' due process rights would be subject to absolute immunity. But because Kelley had conducted the retrial, Wharrie was subject to liability "only if Kelley did not know that he had asked Hawkins to lie and would not have retried the case had he been aware of that information." Id. The court said that Fields "suggests . . . that Kelley knew Hawkins' testimony was false and retried the case regardless. . . . Although he does not explicitly state that Kelley knew that Wharrie asked Hawkins to lie, he strongly implies that [Kelley] did." Id. For this reason, the constitutional injury to Fields resulted from Kelley's prosecutorial decision to use the testimony. Id. As a result, the court said, "Fields has not . . . stated a claim against Wharrie based upon his soliciting [the witness's] false testimony." Id. The court rejected Fields' claim against Kelley regarding Langston on the same basis -- he was aware, in his capacity as a prosecutor, of the alleged coercion of Langston that he had previously conducted. Id. at 517-18.
3. Whitlock v. Brueggemann
About three months after it decided the interlocutory appeal in this case, the Seventh Circuit decided Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012). Judge Flaum, the author of the decision in Fields' ...