IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

ALAN BEAMAN, )

)

Plaintiff, ) Case No. 10 CV 1019

)

v. ) The Hon. Joe Billy McDade

) Magistrate Judge Byron G. Cudmore

JAMES SOUK, et al. )

)

Defendants. )

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S RULING

DISMISSING COUNT I AGAINST DEFENDANTS SOUK AND REYNARD

BASED ON INTERVENING SEVENTH CIRCUIT PRECEDENT

Plaintiff Alan Beaman, by his undersigned attorneys, respectfully moves this Court,

pursuant to Fed. R. Civ. P. 54(b), to reconsider the portion of its ruling on Defendants‟ motions

to dismiss that held that former McLean County State‟s Attorney Charles Reynard and former

Assistant State‟s Attorney James Souk are entitled to qualified immunity as to the federal claim

alleged in Count I of the Complaint. In support, Plaintiff states:

1. On March 3, 2011, this Court dismissed Plaintiff‟s federal due process claim

against former McLean County State‟s Attorney Charles Reynard and former Assistant State‟s

Attorney James Souk on the grounds that Reynard and Souk were entitled to absolute immunity

and qualified immunity. See 3/3/11 District Court Opinion and Order (Doc. No. 48). Specifically,

the Court held that (1) Souk and Reynard were entitled to absolute immunity for their role in

concealing exculpatory evidence pertaining to alternative suspect John Doe at Plaintiff‟s trial,

and (2) the Defendants were also entitled to qualified immunity for their role in concealing this

exculpatory evidence during the investigative phase of the case. In finding Souk and Reynard

entitled to qualified immunity on the investigative misconduct claims, the Court reasoned that

E-FILED Thursday, 28 June, 2012 02:45:06 PM

Clerk, U.S. District Court, ILCD

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the Defendants “could not logically be liable for withholding information from themselves as

prosecutors.” Id. at 19.

2. The controlling law on which the Court‟s decision rested has been fundamentally

altered as a result of the Seventh Circuit‟s May 30, 2012 decision in Whitlock v. Brueggemann,

__F.3d __, 2012 WL 1939906 (7th Cir. May 30, 2012) (opinion attached as Ex. A). Whitlock

affirmed the denial of qualified immunity for an assistant state‟s attorney who fabricated

evidence during an investigation and then went on to prosecute the case using the very evidence

that he himself had fabricated. The reasoning in Whitlock bears directly on this Court‟s decision

as to whether Souk and Reynard should be afforded qualified immunity for their participation in

the suppression of exculpatory evidence during the Lockmiller murder investigation, and

requires reconsideration of the Court‟s earlier dismissal of the federal due process claim against

those prosecutors arising out of that suppression.

3. This Court dismissed Plaintiff‟s federal due process claim against Souk and

Reynard in light of the Seventh Circuit‟s earlier decision in Buckley v. Fitzsimmons, 20 F.3d 789,

795 (7th Cir. 1994) (Buckley IV) (on remand from Buckley v. Fitzsimmons, 509 U.S. 259 (1993)

(Buckley III)).1 In Buckley IV, the plaintiff alleged that prosecutors, acting as investigators,

violated his due process rights by paying for and coercing inculpatory statements from witnesses,

and seeking out and hiring an expert witness with a reputation for fabricating testimony. Id. at

794-795. The court held that the prosecutors were entitled to qualified immunity with respect to

these investigatory actions for two reasons. First, these activities, without more, did not amount

to constitutional violations with respect to the plaintiff. Id. Second, even if the alleged

1 While the Court‟s opinion did not explicitly cite Buckley IV, the Court‟s reasoning—that prosecutors

cannot be liable for withholding evidence from themselves—tracked the reasoning in the Buckley IV

decision, as well as the arguments set forth in Souk‟s and Reynard‟s motion to dismiss (Doc. No. 19),

which did cite Buckley IV.

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misconduct eventually did give rise to due process violations, they would not be cognizable until

trial, at which point the prosecutors were immune.2 Id.

4. The approach of Buckley IV was criticized within the federal courts, and two

circuits declined to follow it—the Second in Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), and

the Eighth in McGhee v. Pottawattamie County, Iowa, 514 F.3d 739 (8th Cir. 2008).3 However,

Buckley IV was the controlling precedent in this Circuit when this Court decided Souk and

Reynard‟s motion to dismiss. And under this precedent, because Plaintiff‟s constitutional injury

stemming from the prosecutor‟s concealment of evidence during the criminal investigation did

not occur until trial, the prosecutor Defendants were entitled to qualified immunity.

5. Whitlock now demands a different result. In Whitlock, two plaintiffs brought

§ 1983 claims against police officers and an assistant state‟s attorney, alleging that they coerced

two witnesses to give false evidence during the criminal investigation. Michael McFatridge, the

prosecuting attorney, argued that, under Buckley IV, he was entitled to qualified immunity for his

investigatory misconduct because coercing witnesses, without more, did not violate the

plaintiffs‟ rights. Specifically, he argued that the plaintiffs‟ rights were not violated “until the

perjured testimony was introduced at trial,” at which point he was absolutely immune. Whitlock,

2012 WL 1939906, at *11.

2 Under Buckley IV, a police officer would violate a defendant‟s due process rights by concealing

exculpatory evidence from a prosecutor, and a prosecutor who concealed exculpatory evidence from

another prosecutor would also violate the defendant‟s same due process rights. See Buckley, 20 F.3d at

797 n.2. However, Buckley IV still afforded immunity to a prosecutor who participated in the concealment

of exculpatory evidence during the investigation of a case and then compounded the violation by failing

to turn over the evidence during the trial. Simply put, if a prosecutor acting as an investigator engaged in

wrongful conduct which did not result in a completed constitutional violation until trial, then that

prosecutor would escape liability.

3 The Supreme Court granted certiorari, see Pottawattamie County, Iowa v. McGhee, 129 S. Ct. 2002

(2009), but the case settled before a decision was reached. See Deal in Case of Prosecutor Immunity, N.Y.

TIMES, Jan. 5, 2010, at A12, available at http://www.nytimes.com/2010/01/05/us/05scotus.html.

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6. The Seventh Circuit rejected this reasoning. In so doing, it looked to basic

principles of tort liability, emphasizing that the fabrication of evidence prior to trial can be both

the “but-for” and proximate cause of a cognizable due process violation. Id. at *13. Thus, the tort

may be considered “complete” before the evidence is introduced at trial (and before the

prosecutor is entitled to absolute immunity). The Seventh Circuit distinguished this finding from

that of Buckley IV by reference to the nature of the alleged violations. The Court reasoned that

the types of misconduct alleged in Buckley IV (i.e., coercing testimony, paying witnesses for

testimony, and shopping for favorable expert witnesses) “do not necessarily add up to

constitutional violations even when their fruits are introduced at trial” since “[e]vidence collected

with these kinds of suspect techniques, unlike falsified evidence and perjured testimony, may

turn out to be true.” Id. at *15. In contrast, when the alleged violation concerns the fabrication of

evidence during an investigation, “the only reasonable explanation for this act [is] to make that

evidence available for use in later proceedings.” Id. Thus, the very act of fabrication, committed

in the investigative phase of a criminal proceeding, is in and of itself a cognizable tort.

7. Whitlock also relied upon the accepted principle that police officers who fabricate

evidence that is later introduced at trial are subject to constitutional liability, and in so doing,

affirmed its corollary—that this same liability attaches to all investigators, whether police officer

or prosecutor. Id. at 11 (“A prosecutor who manufactures evidence when acting in an

investigatory role can cause a due process violation just as easily as a police officer.”). The Court

held that it would be “„incongruous‟ to hold a police officer liable for fabricating evidence but

hold that the prosecutor has not committed any violation for taking the same action in the same

capacity.” Id. at *11 (citing Burns v. Reed, 500 U.S. 478, 495 (1991)). Thus, though a prosecutor

is entitled to absolute immunity for the act of introducing fabricated evidence at trial, he cannot

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take cover under the doctrine of qualified immunity if his actions as investigator proximately

caused that constitutional violation. See id. at 14.

8. This is also because, using bedrock tort analysis, the state‟s attorney‟s actions as

prosecutor do not constitute a “supervening” cause sufficient to overcome liability stemming

from his participation in the investigation. Id. at 14 (“One's own conduct cannot be an

intervening cause sufficient to defeat a finding of causation.”). Applying this analysis to

McFatridge, Whitlock held that there was no break in the causal chain between the state‟s

attorney‟s fabrication and the constitutional violation: “The fact that McFatridge eventually

proceeded with this prosecution does not wipe away his involvement in the investigation at its

earliest stages.” Id. at *9.

9. Whitlock‟s reasoning marks a crucial departure from Buckley IV in that the

location of the constitutional injury is no longer dispositive of the prosecutorial immunity

question. Under Whitlock, a prosecutor—like a police officer—may be held liable for

investigatory misconduct if his actions proximately cause a constitutional violation that arises at

trial. Whitlock compels the conclusion that Souk and Reynard are not entitled to qualified

immunity for the alleged due process violations committed during their investigation of Jennifer

Lockmiller‟s homicide.

10. It is unquestioned that Plaintiff has alleged an adequate due process violation

based on Souk‟s and Reynard‟s participation in the concealment of material and exculpatory

evidence. In its March 2011 opinion, this Court acknowledged as much, stating that “there

appears to be no question or argument that the material withheld, the evidence regarding John

Doe, was significant enough such that the government was obligated to turn over the material

without a specific request.” 3/3/11 Opinion and Order at 11 (“the government violates a

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defendant‟s right to a fair trial by knowingly introducing perjured testimony, failing to turn over

requested exculpatory evidence, or failing to „volunteer exculpatory evidence [of sufficient

significance] never requested, or requested only in a general way.‟”) (quoting Kyles v. Whitley,

514 U.S. 419, 433 (1995)).

11. However, this Court found that Souk and Reynard were ultimately protected from

liability on the basis of the timing of the alleged violation, finding that “no rule of constitutional

law holds that exculpatory evidence must immediately be turned over to a suspect in a criminal

investigation,” and thus, that Souk and Reynard could not be held liable for the suppression of

evidence committed during the investigation phase of the criminal case. 3/3/11 Opinion and

Order at 12.

12. Whitlock has altered the constitutional landscape in regard to the analysis of this

particular constitutional injury. While it is well-established that a police officer can be held liable

for failing to turn over material exculpatory evidence to a prosecutor during a criminal

investigation, see, e.g., Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), under Whitlock, a

prosecutor who engages in this same misconduct by concealing material and exculpatory

evidence gathered during an investigation is equally liable. As with evidence fabrication, “the

only reasonable explanation” for the act of concealment is to prevent the defendant from making

use of the exculpatory evidence in later criminal proceedings. Whitlock, 2012 WL 1939906, at

*15. Thus, a prosecutor who conceals evidence during an investigation—like one who fabricates

evidence—is a proximate cause of the ensuing constitutional violation. He is not entitled to claim

the benefits of qualified immunity for such misconduct.

13. Similarly, Defendants Souk and Reynard remain liable for their own acts of

concealment, which were a direct and proximate cause of Plaintiff‟s wrongful conviction. And as

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in Whitlock, there is no intervening act that relieves these Defendants of liability. Souk‟s and

Reynard‟s participation in Plaintiff‟s criminal trial cannot break the causal chain of constitutional

injury caused by their concealment of evidence during the investigation. In other words, the fact

that Souk and Reynard eventually prosecuted Plaintiff “does not wipe away” their involvement

in the prior investigative misconduct. Whitlock, 2012 WL 1939906, at *9. It is sufficient for

purposes of § 1983 liability that the injury Plaintiff suffered at trial can be directly “traced back”

to the investigative misconduct of Souk and Reynard. Id. at *15.

14. Consequently, under the Seventh Circuit‟s most recent formulation of

prosecutorial liability, Souk and Reynard are not entitled to qualified immunity for violating

Plaintiff‟s federal due process rights during the Lockmiller homicide investigation. This Court

should therefore reconsider the dismissal of that claim and should reinstate the claim as to those

defendants.

WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiff‟s motion to

reconsider its ruling dismissing Plaintiff‟s Count I claim against Defendants Souk and Reynard

on the grounds of qualified immunity.

Respectfully submitted,

ALAN BEAMAN

By: /s/ Alexa Van Brunt

One of his attorneys

Locke E. Bowman

Alexa Van Brunt

Roderick MacArthur Justice Center

Northwestern University School of Law

375 East Chicago Avenue

Chicago, Illinois 60611

(312) 503-0844

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Jeffrey Urdangen

Bluhm Legal Clinic

Northwestern University School of Law

375 East Chicago Avenue

Chicago, Illinois 60611

(312) 503-7413

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CERTIFICATE OF SERVICE

The undersigned, an attorney, certifies that she electronically filed the foregoing

document using the Court‟s CM/ECF system, which automatically served copies upon all parties

listed on the attached Service List on June 28, 2012.

/s/ Alexa Van Brunt _

One of his attorneys

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SERVICE LIST

Beaman v. Souk et al.

No. 10 CV 1019

Jeffrey Urdangen

Bluhm Legal Clinic

Northwestern University School of Law

375 East Chicago Avenue

Chicago, Illinois 60611

(312) 503-7413; (312) 503-2704 (Fax)

Attorney for Plaintiff

James G. Sotos

Elizabeth A. Ekl

Elizabeth K. Barton

James G. Sotos & Associates, Ltd.

550 East Devon, Suite 150

Itasca, Illinois 60143

(630) 735-3300; (630) 773-0980 (Fax)

Attorneys for Defendants James Souk, Charles Reynard, John Brown, and County of

McLean, Illinois

Thomas G. DiCianni

Lucy B. Fadel

Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.

140 South Dearborn Street, Suite 600

Chicago, Illinois 60603

(312) 782-7606; (312) 782-0943 (Fax)

Attorneys for Defendants Tim Freesmeyer, Rob Hospelhorn, Dave Warner, Frank Zayas, and

Town of Normal, Illinois

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