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Serrano v. Guevara

United States District Court, N.D. Illinois, Eastern Division

May 29, 2018

Armando Serrano, Plaintiff,
Reynaldo Guevara, et al., Defendants. and Jose Montanez, Plaintiff,
Reynaldo Guevara, et al., Defendants.



         Plaintiffs Armando Serrano and Jose Montanez each spent over two decades in prison for a murder they did not commit. Now, they both bring suit against the City of Chicago-and former police officers Reynaldo Guevara, Ernest Halvorsen, and Edward Mingey-as well as Cook County-and former prosecutors Matthew Coghlan and John Dillion. Their suits include claims for constitutional violations and torts they allege were committed during the investigation and prosecution of the case against them. The City and County defendants now move to dismiss portions of the complaints for the failure to state a claim. For the reasons stated below, defendants' motions are granted in part, denied in part.

         I. Legal Standards

         A complaint must contain factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). I must accept as true all of the facts alleged in the complaint and draw reasonable inferences from those facts in plaintiffs' favor, but I am not required to accept as true the complaint's legal conclusions. Id. at 678-79. In considering a motion to dismiss under Rule 12(b)(6), I review the complaint, exhibits attached to the complaint, and, if they are central to the claims, documents referenced by the complaint. Otis v. Demarasse, 886 F.3d 639, 647 n.33 (7th Cir. 2018).

         II. Facts[1]

         Plaintiffs Armando Serrano and Jose Montanez were wrongly convicted for the murder of Rodrigo Vargas.[2] In 1993, Vargas was shot to death in a van outside his home. Vargas's wife, Wilda, had no idea why anyone would kill her husband. One of Vargas's neighbors heard the gunshots, but she did not see anything. Another neighbor reported seeing an older, light-brown sedan, possibly with two doors, drive away. For four months, the police had no leads and the murder went unsolved. Then Detectives Guevara and Halvorsen took over.

         Wilda Vargas told the detectives about a trip that she and her husband took to the gas station the night before he was murdered. Wilda said that her husband had just gone to the bank, so he had a roll of cash on him when he went inside to pay. Cash was found on Vargas's dead body the next day. Wilda also remembered that her husband honked at three Latino men in a tan-colored car that blocked his way at the gas station. With this information, the detectives invented a theory in which Vargas's murder was an armed robbery gone wrong, and they decided to frame three Latino men with histories of armed robberies to close the case. They settled on Serrano, Montanez, and Jorge Pacheco. The detectives showed Wilda photos of the three men, telling her that they were the Latino men she remembered from the tan car. The detectives drove Wilda to Montanez's house to show her his car (which she agreed was similar to the tan one she saw), and the detectives told her lies about the car being linked to her husband's shooting by ballistics evidence and witness statements.

         Then the detectives decided to use a resource they had recently stumbled across-Francisco Vicente. Vicente was a heroin addict who was arrested and charged with several armed robberies, suffering in jail from the effects of heroin withdrawal and facing up to 97 or 100 years in prison for his pending charges. The detectives told two prosecutors-Assistant State's Attorneys Coghlan and Dillion- that “the street” was saying plaintiffs and Pacheco were responsible for the Vargas murder, but they needed more evidence to bring them in. So the detectives proposed that they use Vicente to drum up evidence against plaintiffs and Pacheco in addition to suspects in two other murders. The prosecutors agreed and arranged to transport Vicente to their offices. By the time Vicente met with the prosecutors and detectives to discuss the Vargas murder, the detectives had already used violence (including hitting him with a phonebook) to coerce Vicente into giving false testimony against a suspect in a different murder.[3]

         With the prosecutors and Halvorsen present, Guevara handed Vicente crime scene photos and fed him a narrative in which Vicente would say he was an eyewitness to plaintiffs' attempted robbery of Vargas. Everyone in the room knew that narrative was false. Vicente refused to say he was an eyewitness or that the suspects gave him the murder weapon, so Halvorsen suggested that Vicente say Montanez confessed to him and implicated Serrano and Pacheco along the way. The prosecutors promised Vicente they would protect him by getting him moved to special witness quarters at the jail and secure him a lower sentence. Vicente agreed to give the false testimony. After the meeting, the detectives prepared a supplemental police report stating that a confidential informant told them that Montanez confessed to his involvement in the Vargas murder and that Montanez had also implicated Serrano and Pacheco. The detectives used the false report as a basis to arrest Serrano. But after about 24 hours of physical and psychological abuse, Serrano refused to make an inculpatory statement and was released.

         So the detectives turned to Timothy Rankins, a 19-year-old facing charges for robbery. Rankins had experience serving as an informant for the detectives' supervisor, Sergeant Edward Mingey. The officers (Mingey, Guevara, and Halvorsen) knew that Rankins did not know anything about the Vargas murder, but they told Rankins that they wanted him to say he was an eyewitness. When Rankins initially refused, Guevara beat him, including by putting a phonebook against his head and striking it. Guevara showed Rankins photos of plaintiffs and Pacheco while feeding him the narrative he wanted Rankins to give. After more abuse, Rankins agreed to say that he saw plaintiffs and Pacheco shoot and kill Vargas and signed a statement saying so. Now armed with (faulty) probable cause, the detectives immediately arrested Serrano and, sometime later, Montanez and Pacheco.

         Not long after the officers met with Rankins, the prosecutors brought Vicente back to their offices to sign his false witness statement. The statement, written by Halvorsen, said that Vicente was hanging out on a street corner when plaintiffs and Pacheco drove up in a tan car. The statement went on to say that Montanez told Vicente that he, Serrano, and Pacheco saw a Mexican man at a gas station with a wad of cash, attempted to rob him, and then shot him. Vicente signed the statement in the presence of a different prosecutor (one who was not present for the previous discussions with Vicente).

         A grand jury was convened. Both Rankins and Vicente testified consistent with their written statements, and the grand jury returned an indictment against plaintiffs and Pacheco. Nine months later, Rankins recanted his testimony and fled Chicago. Vicente was transferred to the special witness quarters he was promised and received other benefits, like cash, drugs, and conjugal visits. Vicente continued to be shuttled to the prosecutors' offices to be coached by the prosecutors on his testimony for the three murder prosecutions he was a witness in, including plaintiffs' prosecution.

         About two years later, in 1995, plaintiffs were convicted in a bench trial. Their co-defendant, Pacheco, was acquitted. Guevara and Halvorsen testified for the prosecution, and so did Vicente, who largely kept to his written statement and grand jury testimony. The prosecutors, who had helped form Vicente's false testimony, knew it was a lie. Before trial, the prosecutors had helped get Vicente additional pre-trial custody credit to reduce his sentence, a fact that was not disclosed to plaintiffs' lawyers. Wilda could not credibly testify that plaintiffs were the men in the tan car at the gas station, so her identification testimony was rejected. Plaintiffs were each sentenced to 55 years in prison.

         At post-conviction evidentiary hearings over a decade later, plaintiffs presented an affidavit from Vicente, admitting that his entire testimony was false. Although relief was initially denied, the Illinois Appellate Court reversed those decisions.[4] The state moved to vacate plaintiffs' convictions and dismiss the murder charges. In 2016, plaintiffs were released from the Illinois Department of Corrections. Both were issued certificates of innocence. Before plaintiffs' exoneration, the City also commissioned an independent investigation into plaintiffs' case (and others), which concluded that plaintiffs were more likely innocent than not.

         III. Analysis

         A. The Prosecutors

         Prosecutors are absolutely immune from federal tort liability for actions they take as prosecutors carrying out their prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409, 427 (1976); Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014) (“Fields II”). This includes “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (“Buckley III”). But prosecutors do not enjoy absolute immunity when they act as investigators. See id. Instead, prosecutors who act as investigators are afforded the same immunity extended to other investigators-qualified immunity. Id.

         Qualified immunity protects officials from civil liability if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted). To determine whether qualified immunity applies, courts consider (1) whether plaintiffs have adequately alleged the violation of a constitutional right and (2) whether the right in question was “clearly established” at the time of the alleged misconduct. Id. at 232. “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (citation omitted). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The Supreme Court has often cautioned courts “not to define clearly established law at a high level of generality” but rather to focus on “whether the violative nature of particular conduct is clearly established.” Mullenix, 136 S.Ct. at 308 (emphasis in original) (citation omitted). Although dismissal on a Rule 12(b)(6) motion on qualified immunity grounds is often premature, qualified immunity issues should be resolved as soon as possible, which is sometimes at the pleadings stage. See Doe v. Vill. of Arlington Heights, 782 F.3d 911, 915-16 (7th Cir. 2015).

         1. Evidence Fabrication

         Plaintiffs allege that the prosecutors, along with Officers Guevara and Halvorsen, fabricated evidence by coercing Vicente to falsely implicate plaintiffs in the Vargas murder. The County argues that the prosecutors are protected by absolute immunity because their interview of Vicente was within the scope of their prosecutorial responsibilities. The County is right that interviewing witnesses to decide whether charges should be filed can be protected by absolute immunity under some circumstances, see, e.g., Bianchi v. McQueen, 917 F.Supp.2d 822, 832 (N.D. Ill. 2013), but not where the prosecutors act before there is any probable cause to arrest anyone. See Buckley III, 509 U.S. at 274 (“A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.”). The complaints allege that the prosecutors met with Vicente (and the defendant officers) before any evidence pointed to plaintiffs as suspects, and plaintiffs were not charged until after the initial Vicente interview.[5] As plaintiffs put it, prior to the interview “not a shred of evidence suggested that Plaintiffs were involved in the murder of Vargas.” [71] at 8. The County apparently does not contest this conclusion, because it does not point to any facts suggesting that probable cause did exist at the time of the first Vicente interview. “There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.” Buckley III, 509 U.S. at 273. Plaintiffs have sufficiently alleged that the prosecutors were in the latter role, so the prosecutors are not entitled to absolute immunity on the fabrication claim.

         The County also argues that “no evidence was actually procured at this alleged meeting that resulted in an arrest for a charge for murder” and that by the time Vicente signed his sworn statement, Rankins had provided the authorities with independent probable cause. [60] at 17. I take the County's point to be that the evidence used to prosecute plaintiffs came after probable cause and after the prosecutors' immunity attached. But Vicente's testimony was the evidence that convicted plaintiffs, see S. Compl. ¶ 64; M. Compl. ¶ 1, and that testimony derived from the fabricated evidence that the prosecutors obtained as investigators. They are not absolutely immune from the deprivation of liberty caused by that fabricated evidence. See Avery v. City of Milwaukee, 847 F.3d 433, 441-42 (7th Cir. 2017).

         Nor does qualified immunity protect the prosecutors from the evidence fabrication claims. The County asserts that the complaints only allege that the prosecutors “promised to protect Vicente and give him special privileges in exchange for his testimony, ” which the County says constitutes coercion, not fabrication. [60] at 19. But this characterization ignores the context of the prosecutors' conduct. Plaintiffs allege that the prosecutors were sitting in a room with Detectives Guevara and Halvorsen as they proposed multiple false narratives to Vicente until one stuck. See S. Compl. ¶¶ 41-43; S. Compl. ¶¶ 38-42. So the prosecutors did not just offer Vicente protection and rewards to coerce him to testify-they offered those things to coerce him to testify to what they knew were falsehoods. That conduct is not just coercion; it is also fabrication. See Fields II, 740 F.3d at 1110 (“Coerced testimony is testimony that a witness is forced by improper means to give; the testimony may be true or false. Fabricated testimony is testimony that is made up; it is invariably false. False testimony is the equivalent; it is testimony known to be untrue by the witness and by whoever cajoled or coerced the witness to give it.”). And by 1993, when the initial Vicente interview occurred, it was long established “that a government lawyer's fabricating evidence against a criminal defendant was a violation of due process.” Id. at 1114.

         The County relies on Buckley IV to argue that the prosecutors' coercion of Vicente may have violated his rights, but it did not violate plaintiffs' rights as third parties. Buckley IV does acknowledge that coercion of a witness only violates that witness's rights, 20 F.3d 789, 794-95 (7th Cir. 1994), and “[f]abrication was alleged in Buckley as well, but . . . the focus was on coercion.” Fields II, 740 F.3d at 1113. Fabrication is different-coercing a witness in order to fabricate evidence against someone else not only violates the witness's rights, it also violates those of the accused. See Avery, 847 F.3d at 439 (“[C]onvictions premised on deliberately ...

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