Rivera v. Guevara (319 F. Supp. 3d 1004, 2018)

The fourth issue defendants raise is plaintiff's use of cross references. E.g. , Pl. SAF ¶¶ 11, 16, 19, 21, 50, 128. Local Rule 56.1 requires citations to the record evidence rather than cross reference to a reference to a citation; using a cross reference saves counsel time but offloads on the court the burden of identifying what is factually disputed and whether the dispute is material. Schlessinger v. Chicago Hous. Auth. , 130 F.Supp.3d 1226, 1228 (N.D. Ill. 2015) (Gottschall, J.) (finding response that cited statement of additional facts rather than record violated Local Rule 56.1 ). The court therefore disregards the portions of Plaintiff's Combined Statement of Additional Facts that cite other paragraphs of it. See id.

Fifth, defendants claim that several of plaintiff's additional facts are immaterial. A Local Rule "56.1(a) statement should be limited to material facts, that is, facts pertinent to the outcome of the issues identified in the summary judgment motion." Malec, supra , 191 F.R.D. at 583 (emphasis omitted). Rivera argues vociferously that his facts are material in the summary judgment sense, and the answer to that question, in the appropriate context, lies very much at the heart of the parties' dispute here. Rather than attempt to winnow the voluminous statements to only material paragraphs in the abstract, the court again deems addressing materiality questions as they pertain to particular issues to be the better course because it may obviate the need to analyze each disputed paragraph. Cf. Tarau v. Coltea , No. 15-CV-03545, 2017 WL 3521410, at *1 (N.D. Ill. Aug. 16, 2017) ("Because neither party contends these facts are material, the court need not resolve [a] dispute" about whether the facts should stricken. (citation omitted) ).

Finally, defendants point out that Rivera's response brief cites to an expert report not mentioned in his Combined Statement of Additional Facts. See Pl. Combined Resp. 34-36, ECF No. 321 (citing Report of Jennifer Dysart, Pl. Ex. 21). The court has searched Rivera's Combined Statement of Additional Facts but finds no reference to the expert by name or the cited exhibit. See ECF No. 317. Defendants therefore never had a procedurally proper opportunity, under L.R. 56.1, to test the report as a summary judgment exhibit, so the court disregards it, Pl. Ex. 21, at this stage. See Greene v. CCDN, LLC , 853 F.Supp.2d 739, 744 (N.D. Ill. 2011) ("[T]he Court disregards any additional statements of fact contained in a party's response brief but not in its L.R. 56.1(b)(3)(B) statement of additional facts." (citing Malec , 191 F.R.D. at 584 ) ).

Having addressed the procedural issues pertinent to the parties' Local Rule 56.1 statements, the court is ready to delve into the facts and exhibits in earnest.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Summary of Complaint

Rivera's complaint has eight counts. In Count I, he alleges that defendants violated the due process clause by withholding and suppressing exculpatory evidence. Compl. ¶¶ 51, 53, ECF No. 1. He alleges in Count II that the officer defendants conspired to violate his constitutional rights. In Count III, Rivera brings failure to intervene claims; that is, he claims one or more of the officer defendants stood by while other officers violated his constitutional rights. Compl. ¶ 64. Finally, in Count IV, Rivera seeks to hold the City liable under Monell for his damages on the theory that a City policy was the moving force behind the officer defendants' alleged violations. Compl. ¶ 68.

Counts V-VIII arise under Illinois law. In the order pleaded, they are: a malicious prosecution claim (Count V), a civil conspiracy claim (Count VI), a claim for intentional infliction of emotional distress (Count VII), and a respondeat superior claim (Count VIII).

B. Parties

In addition to the City, Rivera names twelve former Chicago police officers (all have retired) (actually the estate of two) as defendants ("officer defendants"). See Compl. ¶¶ 9-13, ECF No. 1; Resp. to Officers SMF ¶ 2. John Leonard and Gillian McLaughlin were the Chicago Police Department ("CPD") detectives initially assigned to the Valentin shooting. Resp. to Officers SMF ¶ 2 (noting substitution of Leonard's personal representative). McLaughlin is the only female defendant. Id. ¶ 32.

Guevara was a Gang Crimes Specialist (sometimes "GCS") as were defendants Daniel Noon, John Guzman, Joseph Sparks, Paul Zacharias, Steve Gawrys, and Joseph Fallon. Resp. to Officers SMF ¶ 2. They were assigned to the Gang Crimes Unit (not to be confused with Violent Crimes), sometimes referred to as "Gang Crimes North." Id.

Defendants Rocco Rinaldi (sued through his estate) and Russell Weingart were sergeants in Gang Crimes North; defendant Edward Mingey was a sergeant assigned to Gang Crimes North. Resp. to Officers SMF ¶ 2. Each approved one or more reports in the Valentin investigative file. Id. at ¶¶ 2, 65, 66, 72. For simplicity, the court refers to the officer defendants by their last names and elides the distinction between the estate of the two defendants who have died and the former CPD officer.

C. The Valentin Investigation and Trial

Rivera's bench trial began on April 5, 1990, and was continued to April 16, 1988, on which date rebuttal and surrebuttal witnesses testified and the court found Rivera guilty. See Resp. to SAF ¶ 90; Trial Tr. at 77:10-14, 80:4-9, Pl. Ex. 3, ECF No. 313-3. The state trial court imposed an 80-year sentence (the maximum allowed) on July 9, 1990. Trial Tr. at 114:21-115:1. Kenneth J. Wadas ("Wadas") represented Rivera through the trial and sentencing. The following individuals testified: the victim's father, Israel Valentin; Lopez; Guevara; Detective Craig Letrich ("Letrich"); Leonard by stipulation; the medical examiner, also by stipulation; Rivera's pastor, Fernando Rivas; and a friend of Rivera's named Guillermo Osorio. Resp. to SAF ¶ 90.

Israel Valentin identified the victim. Trial Tr. at 6:16-7:24. The medical examiner testified that Valentin died of a total of 11 gunshot-related wounds. See id. at 53:13-18.

1. Lopez's Trial Testimony

Lopez testified that at around 3:40 p.m., he left his home at 3320 W. Cortland Street to go to a store to buy candy. Trial Tr. at 18:5-19:11. He said he saw Valentin sitting in a red car parked in an alley on Cortland. See id. at 19:20-20:12. He saw someone standing about five feet away from the car and firing at Valentin (whom he knew as a friend of his sister's). See id. at 21:15-23. He testified that the man wore "all black" and that "his hair" was dyed "brown or gold," a color he associated with the Latin Kings gang. See id. at 21:24-23:10. The shooter had his back turned to Lopez. See id. at 21:10-12. Lopez ran to the store, asked the store's owner to call the police, but the store's owner did not want to do so, so Lopez returned to the alley and hid in an indentation. See id. at 23:11-20. The shooter looked around and then ran to a brown Chevy parked nearby. See id. at 26:7-14. Lopez told the court that he could see the shooter's face as he ran, and although he did not know the shooter's name, he recognized him as someone he had seen playing basketball "two or three times" in nearby Humboldt Park. Id. at 25:21-26:6, 26:15-27:18. The brown car drove away toward Spaulding. Id. at 28:6-12.

Lopez further testified that he told his sisters he knew who had committed the crime. See id. at 28:15-21. At some time later (his trial testimony is not entirely clear on this), he testified that he also told this story to police officers and reviewed two photo books of Latin Kings for "[a]n hour." Id. at 29:5-30:4. He did not pick out anyone from the first book but, according to his trial testimony, he recognized Rivera's photograph and he told "the police that was him." Id. at 30:14-31:5. He answered "like, three questions" more from the police, and "they left." Id. at 31:6-9.

Lopez's testimony then jumps an uncertain number of days ahead to the lineup that occurred on September 15, 1988, at Area Five Violent Crimes. See id. at 31:10-13. Lopez testified that he viewed a lineup on that day and that he picked Rivera out of the lineup. Id. at 31:16-32:7 (referring to People's Ex. 4). When presented with a photograph of the lineup he saw that day, Lopez put an X over Rivera's head indicating that he was the person identified at the lineup. Id. at 32:9-19; see also Lineup Photos, Pl. Ex. 52 at 1 (including "X" mark).

Lopez clarified on cross examination that he was interviewed "a few times" by police about the shooting. Id. at 46:2-4. It is unclear from the record when the alleged gang book identification occurred. See id. at 42:18-24 (testifying that it may have happened as late as Sept. 12, 1988, "a few days" before the Sept. 15, 1988, lineup).

Also on cross examination Wadas brought out the fact that Lopez's narrative was inconsistent with statements recorded in a police report (discussed under the next heading of "Leonard's Report"). See id. at 46:5-48:8. Lopez did not recall telling the police that the shooting started after, rather than before, he left the store. See id. at 48:1-4.

2. Letrich's Testimony and Leonard's Report Submitted August 29, 1988

Letrich testified that he and his partner visited Valentin at Cook County Hospital on August 30, 1988. Trial Tr. 56:2-5. According to his testimony, he and his partner left the hospital, retrieved an album of photographs of members of the Imperial Gangsters street gang, showed that book to Valentin, and he arrested Jose A. Rodriguez ("Rodriguez") the next day. See id. 56:13-58:2. Letrich did not say how Valentin reacted to the photo book or that Valentin picked anyone. See id. at 57:5-13.

Letrich further testified that Rodriguez was released either on August 31 or September 1, 1988. Id. at 58:23-59:1. Wadas questioned Letrich about whether he or any other Area Five police officers interviewed Valentin on August 29, 1988, but Letrich did not recall. Id. at 60:10-13. Earlier in the trial, Wadas asked Lopez about Rodriguez. Lopez did not recall telling the police that Rodriguez did not shoot Valentin. See id. at 49:3-5.

The parties stipulated that Leonard interviewed Lopez on an unspecified date and wrote a report about the interview. See id. at 64:17-65:22 (spelling Leonard's name phonetically as "Lehner"). The report bears a submission date of August 29, 1988. Pl. Ex. 4 at Wron 29-30, ECF No. 313-4. At Lopez's trial, a portion of the report was read into the record. A quote from the report follows. Only the portion before the asterisks was read into the record at trial.

The undersigned detectives, in continuation of the investigation of the above captioned incident; interviewed an eye-witness who stated in essence but not verbatim that on date and time of this incident; LOPEZ was coming from the store at corner of Kimball and Cortland. LOPEZ observed a copper colored GM-type car coming out of the alley, traveling northbound at approximately 3319 W. Cortland. The vehicle turned east-bound on Cortland and stopped at approximately 3311 W. Cortland. LOPEZ indicated that said vehicle contained 2 M/WH's one of whom exited from the passenger's side of the vehicle and began to walk toward 3320 W. Cortland where the victim was seated behind the wheel of his vehicle. Suddenly the M/WH began to run toward vehicle and LOPEZ noticed a gun in M/WH's hand. LOPEZ believed he heard three (3) shots but indicated that they were not very loud. LOPEZ indicated that LOPEZ saw the victim lean forward and to the right in the vehicle which victim had been seated.

LOPEZ informed R/D's that LOPEZ could identify the shooter because LOPEZ recognized the shooter as a M/WH who played baseball at Humboldt Park and LOPEZ had observed him there on a few occasions.

[* * *]

LOPEZ did not know shooters [sic] name but was aware that shooter was affiliated with the Latin Kings. LOPEZ then viewed books and made an identification of one RIOS, Jose (16-D Latin King Page 40-D) as the M/WH who exited the copper car and shot the victim. At this time there is no identification of the driver.

Id. at Wron 29-30.

3. Rivera's Testimony and Alibi

Rivera then took the stand. He testified that he was not a member of the Latin Kings in August 1988. Id. at 66:18-21. He stated that he lived with his common law wife and their five-month-old child when Valentin was shot. Id. at 66:22-24. He testified that his hair was not dyed at the time and that he last played basketball at Humboldt Park six or seven years prior to the shooting (making Lopez six years old at the oldest). See id. at 68:6-23. He stated that he spent Saturday, August 27, 1988, at home with his family. Id. at 70:12-16.

On cross examination, Rivera stated that he had been a member of the Latin Kings street gang six years prior to 1988 when he was in high school. Id. at 74:3-11. He recalled that he had been arrested at least once in or around 1982. See id. at 74:12-18.

4. Guevara's Rebuttal Testimony

Guevara testified in rebuttal on April 16, 1988. He stated that he knew Rivera "for quite a while prior to the arrest." Id. at 81:2-7. Guevara testified that when he arrested Rivera, Rivera's hair was unusual in that "[i]n the back it was gold, like a little pigtail died [sic] in gold." Id. at 82:8-16. Guevara also testified that he "play[ed] ball in Humboldt Park" and worked primarily in the area in the summer of 1988. Id. at 82:21-83:1. He stated that he saw Rivera in the park "numerous times" that summer. Id. at 83:6-9.

Wadas cross examined Guevara. In response to questioning about baseball (basketball was not mentioned), Guevara said that he had never seen Rivera playing baseball. Id. at 83:23-84:2. Wadas also had Guevara confirm that a photo depicted an accurate side view of a lineup in which Rivera participated and that Rivera looked the same as he did in the lineup when he was arrested. Id. at 84:12-16; see also Pl. Ex. 52 at CPD-105 (indeterminate black-and-white sidelong photographs).

5. Surrebuttal Witnesses: Rivas and Osorio

The trial concluded with two surrebuttal witnesses called by Rivera. The first, Rivas, described Rivera's hair style in August 1988 as "brown, kind of curly" and testified that he did not recall him ever dyeing his hair. See Trial Tr. at 87:3-22 (admitting Def. Ex. 1). Rivas also testified that Rivera separated from the Latin Kings in 1986. Id. at 88:16-20. Osorio testified that he knew Rivera well in 1988, that his wife cut Rivera's hair, and that Rivera never dyed his hair that year. See id. at 90:15-19, 91:2-12.

6. Closing Arguments

Wadas began his closing arguments with the point that the State did not call any police officers to describe the investigation. Id. at 93:10-19. He focused on the differences between Leonard's August 29 report and Lopez's trial testimony. See id. at 93:20-95:3. He also pointed out that if anything, Letrich's testimony implied that Valentin identified the shooter as a member of the Imperial Gangsters. See id. at 95:16-96:20. Wadas argued that a photo of Rivera introduced into evidence "shows long hair down his neck, and there's no dyed hair, which would be obvious in that photo." Id. at 97:13-21. The state disagreed with this characterization of the photograph. See id. at 99:5-13.

D. Lopez's Recantation

In 2010, Northwestern University's Center for Wrongful Convictions agreed to represent Rivera. Resp. to SAF ¶ 94. Two investigators interviewed Lopez at his Ohio home on February 28, 2010. Resp. to Officers SMF ¶ 54, ECF No. 316. That interview led to the production of an interview report, Lopez's affidavit, his eventual testimony in state court in 2011, and his deposition in this action.

1. The 2010 Interview

The notes of one of the interviewers, Cynthia Estes ("Estes"), Officer Defs. Tab 54, ECF No. 305-55, and her report, Officer Defs. Tab 55, ECF No. 305-56, prepared three or four days later, record Lopez's initial recantation. Lopez said he knew that Rivera was not the shooter in 1988 and in 1990, but because Lopez was then a "peewee" in another gang, he did not care about what happened to Rivera, whom he believed to be a member of the Latin Kings. Officer Defs. Tab 55 at 8. The report also states that Lopez "did try to tell [the police] it was not the real guy" in 1988, "but they kept saying to him, 'don't be afraid, we will protect you, we will keep you safe.' " Id.

According to notes Estes made during the interview and her report, see Resp. to Officers SMF ¶ 56, Lopez stated that the police took him to his home after the shooting and had him review Latin King photo books, Estes Report 9. The report further states that Lopez "just kind of got sick of looking at them so he picked out someone who looked similar to the real shooter." Estes Report 9; Officer Defs. Tab 54, Estes Notes at MJC 12.11.13 00012. Lopez saw the real shooter about a week later. See id. When confronted with his trial testimony, Lopez acknowledged that his testimony that he had recognized Rivera from Humboldt Park was false. Estes Report 13-14.

The report records Lopez' statement that he thought "he may have picked [Rivera] from a line-up a few days later," i.e., after the initial identification on August 27, 1988. Id. at 11. The report further states:

He thinks a few days after that they showed him more photos, and that is when he told them Rivera was not the guy, but the lady wouldn't listen. We asked which lady. He said she was not in a uniform, maybe she was a lawyer. She was older with blond hair and some white hair. Mr. Lopez pointed to my hair and said, "kind of like yours." Mr. Lopez said he thinks it was the third time he was brought back that he tried to tell them they had the wrong guy but by then no one wanted to hear it. He said they just kept saying to him he didn't need to be afraid. He said it seemed as if they really did not want to hear him.

Id. Finally, the following passage appears in Estes' report: "Mr. Lopez said he wants us to know that the cops did not coerce him into picking anybody out. They just didn't want to hear when he tried to make it right." Estes Report 12.

2. The Lopez Affidavit (2010)

After six rounds of draft affidavits and two more in person meetings, see Resp. to Officers SMF ¶ 58, Lopez signed an affidavit prepared by Rivera's counsel on June 12, 2010, ("the Lopez affidavit"), Pl. Ex 20, ECF No. 313-24. In it, Lopez averred that his testimony was false and that he "knew it at the time." Lopez Aff. ¶ 5. He described the shooter as having long hair "with a streak of light color running through it." Id. ¶ 9.

Explaining his identification on the night of the Valentin shooting, Lopez averred that he made the assumption that the shooters were members of the Latin Kings because the car in which they left turned right on Spalding into that gang's territory. Id. ¶ 10. He picked out a photo he later learned was Rivera's "[t]hat same evening," meaning August 27, 1988. Id. ¶ 11.

Lopez's affidavit then described a "first line-up of possible suspects." Lopez Aff. ¶ 12. The first lineup, states his affidavit, occurred "[w]ithin a few days of the shooting," and he "recall[ed] that [his] mother and sister ... accompanied [him] to the police station but were not present in the room during the lineup procedure." Id. The first lineup was not mentioned at trial or in prior proceedings.

The second lineup, which a jury could reasonably decide was the September 12, 1988, lineup, occurred "[a]bout two weeks after the shooting." Lopez Aff. ¶ 14. Lopez's affidavit describes what occurred at the second lineup as follows:

[T]he police asked me to come to the police station in order to view a second lineup. It was at this point that I told a non-uniformed police officer that Jacques Rivera was not the shooter, and that the real shooter was an Imperial Gangster and a neighborhood guy. I told the same thing to a woman who could have been a lawyer. No one wanted to hear what I had to say. The police officer and possible lawyer kept saying "don't be afraid, we will protect you, we will keep you safe." What the police officer and possible lawyer did not understand is that I was not afraid-I wanted to take back my identification of Jacques Rivera because I had made a mistake and Jacques Rivera was not the shooter.

At some point I made the decision that it was just easier to stick with my original identification of Jacques Rivera as the shooter. I then proceeded to identify Jacques Rivera in the second lineup knowing that he was not the killer.

Id. ¶¶ 14-15 (paragraph numbering omitted).

3. Lopez's 2011 Testimony at Rivera's Post-Conviction Hearing

Lopez was the lead witness at Rivera's 2011 post-conviction hearing held June 23, 2011. Post-Conviction Hr'g Tr. 38-96, Pl. Ex. 5, ECF No. 313-5. At one point, Lopez stated that the police pointed Rivera out to him. Id. at 93:13-18. This drew a question from the court. See id. at 93:19-20. Lopez clarified that when he pointed out Rivera's photograph, police officers asked him, "have you seen him anywhere else, at a park, playing you know, baseball, stuff like that, and [Lopez] said yes." Id. at 93:23-94:3.

Lopez testified about the first lineup, stating that it occurred "[a]t some point." Id. at 53:14-16. He testified a detective conducted the lineup, and gave a description generally matching Guevara's appearance at the time. Compare id. at 55:11-15, with Pl. Ex. 37 (photograph of Guevara). According to Lopez's testimony, he identified Rivera at the first lineup. Post-Conviction Hr'g Tr. at 55:22-56:2.

Lopez also testified that he saw the shooter on the street before the second lineup. See id. at 56:19-57:4. Lopez also described his efforts to recant at the second lineup. Id. at 58:24-62:6. He stated that the light-haired woman told him not to be afraid when he confessed as though she was "trying to ... console" him. Id. at 60:11-15; see also id. at 83:18-88:14 (attempting to clarify on cross examination the sequence of events at the second lineup). On cross examination Lopez testified that Guevara was present at the second lineup and further described the woman with whom he spoke as not dressed like a police officer and carrying a folder that might have been a Redweld. See id. at 83:2-17. He testified that neither "the police" nor "anyone else in authority at the station that night ... force[d] [him] to identify Jacques Rivera as the shooter ... during that second lineup." Id. 62:12-17; see also id. at 67:4-12, 89:9-19 (testifying that neither the police nor the prosecutor pressured him to testify falsely at trial). Lopez learned for the first time during his cross examination that Rivera was released after the first lineup. See id. at 79:1-6.

4. Lopez's 2013 Deposition

On May 29, 2013, Lopez sat for a deposition during discovery in this case. Pl. Ex. 6A, ECF No. 313-6. Lopez testified that he had not seen the shooter before August 27, 1988, and that he participated in two lineups during the Valentin investigation. See Lopez Dep. 18:3-19, 58:21-59:3, cited in Resp. to SAF ¶ 27. He again testified that he picked Rivera at the first lineup. Lopez Dep. 82:9-16.

Drawing inferences favorable to Rivera, Lopez recalled interacting with Guevara but no other officers after the night of the shooting. See Lopez Dep. 75:19-77:24, cited in Resp. to SAF ¶ 41. He recounted a materially similar version of seeing the real shooter about a week later. See Lopez Dep. 87:24-90:16. He also testified again that that he told Guevara and a woman with white, yellow, or blond hair carrying a "binder full of papers" that he had identified the wrong person, but they assured him that "everything was going to be fine." Lopez Dep. 95:1-97:18 ("They assumed that I was afraid and that I wanted to change my story, because I was afraid, but that was not the case."); see also Resp. to Pl. SAF ¶ 53.

E. Documentary Evidence

1. Recordkeeping in the CPD

Some background on recordkeeping helps to understand the evidence on what documents were produced before Rivera's trial. By 1988 each case referred to the CPD's detective area received a sequentially assigned Records Division ("RD") number. Resp. to City SMF ¶ 20. Separately maintained in the records division, where applicable, each page of an RD for crimes like murder for which there is no statute of limitations was stamped "permanent retention file," but the documents were not always stamped immediately. See Resp. to City SMF ¶ 21; Hickey Dep. 189:12-190:9, City Tab 25, ECF No. 307-2. At a minimum, the permanent retention file maintained by the Chicago Police Department's Records Division (also called the "RD file"), included the initial case incident report opening the case and formal supplementary reports (sometimes "SR's"). Resp. to City SMF ¶ 21. But the City has evidence that the RD file was not intended to include every document created during an investigation. City SMF ¶ 22. It is undisputed that after 1982, "RD Files, or permanent retention files, did not contain general progress reports, notes or any other investigative material from an investigation other than the supplementary reports." Resp. to City SMF ¶ 22 (undisputed fact but disputing that practices were uniform). Other "miscellaneous police reports" including General Progress Reports ("GPRs") were generally kept, if at all, in the headquarters of the CPD area to which the case is assigned. Hickey Dep. 192:2-22 Pl. Ex. 39A.

Between 1982 and 1986, the CPD issued four directives and orders aimed at regularizing the practice of creating RD files, on the one hand, and separate, noncentralized investigative files on the other. See Resp. to City SMF ¶¶ 22-30. Effective February 3, 1983, Special Order 83-1, which applied to "Detective Division field units," for the first time mandated the use of GPRs "by all detectives assigned to violent crime field investigations. This document is designed to standardize the recording of handwritten notes and memoranda .... normally generated by investigating detectives during the course of a violent crime field investigation." Pl. Ex. 60 at 1, 3, ECF No. 313-73, rescinded by Special Order 83-2, City Tab 30 (eff. May 2, 1983). The order and it successors required all documents to be placed in the file and logged on a separate inventory sheet. Id. at 3; accord CPD Detective Div. Special Order 86-3, Pl. Ex. 54, ECF No. 313-67 (May 19, 1986, eff. May 29, 1986). The orders further required the inventory sheet to be forwarded to the Records Division for inclusion in the permanent retention file and required all documents, even those not included in the RD file, to be maintained in what the order defined as the "investigative file," a folder kept by the investigating unit. Special Order 86-3 at RFC 019365; see also id. at RFC 019363 (defining "investigative file").

Special Order 83-2 added a requirement that two copies of the inventory sheet be forwarded either to the CPD's Office of Legal Affairs or the State's Attorney, as appropriate, "[w]henever a subpoena or discovery motion is received in any case." City Tab 30 at 4, ECF No. 307-3. Special Order 86-3, which superseded Special Order 83-2, contained no comparable language. See Brasfield Report 29, Pl. Ex 12, ECF No. 313-15. Investigative files for "Cleared/Closed Homicide Cases," as the Valentin shooting then was, had to be forwarded to the "Records Division for postconviction retention" after final court disposition. Id. at RFC 019365; see also id. (establishing periodic, unannounced inspections of files to ensure compliance); Resp. to City SMF ¶ 30.

Rivera points to evidence tending to show that these written policies were not always followed. See Pl. SAF ¶¶ 112-14.

2. Wadas File

In 2002, Wadas produced a copy of his file for the Rivera case to the Bluhm Legal Clinic at Northwestern University, but this copy was lost. Resp. to City SMF ¶ 40. An index of the papers in the 2002 version of Wadas file survived, however. Pl. Ex. 16 at RFC 808. Wadas produced his litigation file during discovery in this case in 2013. Pl. Ex. 16, ECF No. 313-19.

The 2013 version of Wadas' file contained 341 pages. Adding the page counts on the index of the 2002 version of the Wadas file yields a total of 328 pages. See Pl. Ex. 16 at RFC 808.

Early in this litigation defendants produced the RD file for the Valentin investigation. Resp. to City SMF ¶ 41. Rivera attached the RD file, which he labels the street file, produced by the City to his summary judgment response and marked it as Exhibit 4. The exhibit consists of 63 pages excluding copies of folder covers and inventory sheets.

The following table compares the 2013 Wadas file and plaintiff's Exhibit 4.

Document Authors Number of Bates No. (Pl's Bates No. (Pl's pages Ex. 4 - `street Ex. 16 - file') `Wadas file') SR dated 9/16/88 Gawrys, Guevara 2 Wron 9-10 RFC 516-17 SR dated 9/29/88 Leonard 1 Wron 11 Hospitalization Lettrich, Elliott 1 Wron 12 Case Report dated 9/15/88 Prelim. Fired illegible 1 Wron 13 Evidence Report dated 9/22/88 (day uncertain) SR dated 9/16/88 Lazar 3 Wron 15-17 RC 523-25 Property Inventory Thomas 1 Wron 18-19 sheet dated 9/16/88 Facsimile dated 6 (which Wron 20-25 6/7/12 from M. encompasses the Majka to C/O Area report which North follows) Wron 20-21 cover sheet and request are 2 pages Case Report dated Crawford, 4 Wron 22-25 RFC 532-35 8/27/88 Machain SR dated 9/15/88 Dorsch, Boyle 3 Wron 26-28 RFC 518-20 SR dated 8/29/88 McLaughlin, 2 Wron 29-30 RFC 513-14 Leonard SR dated 8/27/88 McLaughlin, 3 Wron 31-33 RFC 507-09 Leonard SR dated 9/1/88 McLaughlin, 3 Wron 34-36 RFC 510-12 Leonard Polaroid Photo of n/a 2 (photocopy of Wron 37-38 Rivera - unlabeled, front and back, undated presumably same photo) SR dated 8/31/88 Letrich, Moriarty 1 Wron 39 RFC 515 SR dated 9/16/88 Gawrys, Guevara 2 Wron 40-41 see RFC 516-17 (duplicate version of SR at Wron 9-10, but this one does not bear the signature of the supervisor approving) Piece of paper on unknown 1 Wron 42 which is written: "A/5 VC Det. Dorsch" - otherwise blank Case Report dated Crawford, 2 Wron 43-44 8/27/88 (appears to Machain be prior draft of the case report attached to the fax listed above, in that it lacks signatures of approving officers and is not stamped permanent retention file) Evidence Report Boyle 2 Wron 45-46 dated 9/15/88 (investigating officer) Criminal Complaint signed Dorsch 1 Wron 47 RFC 476 dated 9/16/88 Felony Minute Unsigned 1 Wron 48 Sheet SR dated 9/15/88 - Boyle, Dorsch 2 Wron 49-50 RFC 521-22 Lineup report Arrest Report Guevara Wron 51 RFC 527 9/16/88 3 Release of person in signed by 1 Wron 52 custody dated Leonard 8/31/88 GPR dated 8/27/88 McLaughlin, 1 Wron 53 Leonard GPR dated 8/27/88 Leonard 1 Wron 54 Criminal history of unknown 1 Wron 55 Rivera stamped "Issued on Inquiry Aug 27 1988 By Name Check Only" Arrest Report dated Guevara 1 Wron 56 8/30/88 Hold papers dated Leonard 1 Wron 57 8/30/18 (Rivera) Arrest Report dated Letrich 1 Wron 58 8/31/88 Hold papers dated Boyle, 1 Wron 59 8/31/88 (Rodriguez) Tapkowski Property Inventory Leonard, Keating 1 Wron 60 dated 8/28/88 Evidence Report McDonald, 1 Wrong 61 dated 8/28/88 Keating Property Inventory unknown 1 Wron 62 sheet dated 8/31/88 Release of person in Leonard, 1 Wron 63 custody dated illegible 8/31/18 GPR dated 8/31/88 Leonard 1 Wron 64 Preliminary Fired Firearms 1 Wron 65 Evidence Report examiner (but also signed by McLaughlin) Piece of paper on unknown 1 Wron 66 which is written: "A5VC" - otherwise blank Criminal History of unknown 1 Wron 67 RFC 526 Rivera (unstamped version) GPRs dated 8/27/88 McLaughlin, 2 Wron 68-69 Leonard

Compare Pl. Ex. 4 with Pl. Ex. 16.

A material fact dispute exists over whether the police reports and other investigative material not present in the 2013 Wadas file were disclosed before Rivera's trial. Although the cumulative page count from the index of the 2013 Wadas file exceeds the page count of the 2002 Wadas index by 13 pages, the index also shows that the 2002 file contained 29 pages of "police reports." Pl. Ex. 16 at RFC 808.

The 2013 Wadas file includes 29 pages of material that can arguably be characterized as police reports. See table supra. No party argues that additional pages of the 2013 Wadas could be fairly characterized as police reports, and the court's own review of the 2013 Wadas file has turned up none. Thus, based on the matching page counts, a reasonable jury could conclude that the 13 pages not accounted for were not police reports or other police material created or gathered during the Valentin investigation. Three of these pages may be accounted for by the index and the photocopies of the front and back of the file folder.

F. Facts at Summary Judgment

While Rivera advances three distinct due process theories and related federal and state law claims, they all revolve around a closely related body of summary judgment evidence. Defendants challenge the sufficiency of the summary judgment record to support several of Rivera's key factual positions on what happened during the Valentin investigation through trial. The court considers many of those challenges in the following paragraphs to establish what the jury could reasonably find on this record viewed in the light most favorable to Rivera.

1. Rivera Was Pre-Selected as the Investigation's Target

First, a reasonable jury could find that Rivera was selected as the investigation's target before the police interviewed Lopez. Whether this dispute is genuine largely depends on exactly when Lopez was first interviewed and picked Rivera from a book of suspected gang members. The RD file, but not Wadas' file, includes a copy of Rivera's criminal history report stamped as "issued on inquiry" the day Valentin was shot ("August 27 criminal history report"). Pl. Ex. 4 at Wron 55. If Lopez initially identified Rivera on the day of the Valentin shooting, the criminal inquiry might be explainable as the product of Lopez's identification earlier that day, but if the police had no suspects yet, the jury could reasonably view the report as marking the first step in framing Rivera.

Though defendants point to evidence that Lopez was first interviewed on the night of the shooting, e.g. , Pl. Ex. 4 at Wron 53, a report submitted by Guevara and Gawrys summarizing the Valentin investigation ("the September 16 report") states that Lopez was interviewed and picked Rivera from a gang book two days later on August 29, 1988. Id. at Wron 9-10. With inferences favorable to Rivera, another report, this one prepared by Leonard and McLaughlin on August 29, 1988, corroborates the date of Lopez's first interview and gang book identification as two days after the Valentin shooting. See Pl. Ex. 4 at Wron 29-30 (recounting investigation conducted since August 27 and transitioning to description of Lopez's gang book identification by stating "in continuation of the investigation of the above captioned incident," which can be reasonably read as implying a break between August 27 and Lopez's interview and gang book identifications). To be sure, the timeline just described conflicts with other evidence in the record, including some of Lopez's post-recantation testimony, but defendants point to no evidence explaining the dates given in the two reports just discussed. See Resp. to SAF ¶ 23 and material cited therein. Because the jury could believe Rivera or the defendants' timeline, the dispute here must be deemed genuine, and Rivera's version receives credence at summary judgment.

2. Valentin Never Identified a Photo of Rivera, and the Police Report Stating that He Did is False

A reasonable jury could also find that, despite statements of police reports to the contrary, e.g. , Pl. Ex. 4 at Wron 10, Valentin, the victim, never identified Rivera as the shooter from a photograph. Defendants point to evidence that on the day of the shooting, Valentin, while in the hospital, told police officers that the person who shot him was a 16-18-year-old Hispanic male believed to be a member of the Latin Kings. Officers SMF ¶ 6; see also Resp. to Officers SMF ¶ 6 (citing McLaughlin Dep. 167:5-19, Pl. Ex. 9A) (testimony that by the 5 o'clock hour, when Leonard and McLaughlin responded to the hospital, Valentin was able only to respond to yes-or-no questions by nodding).

Three days later, on August 30, 1988, Valentin apparently changed this story, and Letrich and Moriarity visited Valentin in the hospital and showed him a book of photos of suspected members of another gang, the Imperial Gangsters. Resp. to Officers SMF ¶ 12 (responding by pointing to evidence that Valentin stated that a member of the Imperial Gangsters shot him). Valentin identified Jose Rodriguez ("Rodriguez") and Felipe Nieves respectively as the shooter and driver. Id. As will be discussed shortly, the police arrested Rodriguez in the early morning of August 31, 1988. Id. ¶ 13. A reasonable jury could find that the next two Valentin identifications never happened.

Some police records and other evidence state that Leonard and McLaughlin attempted to show Valentin photos of Rodriguez and Rivera the next day (August 31, 1988). See id. ¶ 16; see also Officer Defs. Tab 29 (six photographs used). According to defendants' evidence, Valentin's eyes were tearing, he could not focus because was heavily medicated, and Leonard and McLaughlin left. See Resp. to Officers SOF ¶ 17. But Rivera also points to Leonard's deposition testimony that he recalled meeting only once with Valentin on August 27, 1988, and the testimony of three of the people who participated in the first lineup that, viewed favorably to Rivera, no photos were taken. See id. at ¶ 16 (citing Leonard Dep. 54:13-15, Pl. Ex. 26) (citations to other depositions omitted). For summary judgment purposes, drawing the most favorable inferences in Rivera's favor compels the finding that the documented August 31, 1988, photo array shown to Valentin never happened.

It is also undisputed that a portion of the September 16, 1988, report prepared by Gawrys and Guevara is false. See Resp. to SAF ¶ 46. The report states that Valentin identified Lopez in what could be a third photo review on September 10, 1988. Pl. Ex. 4 at Wron 10. Defendants do not dispute that by September 9, 1988, "Valentin was in effect in a comatose condition-among other things, he could not breathe on his own and was fully intubated ...." Resp. to Pl. SAF ¶ 46. Valentin could not have reviewed a photo album or spoken to another person, so the September 16 report's statement that Valentin identified Rivera is false. Id.

3. Lopez Picked a Filler at the First Lineup

The jury could also reasonably find that Lopez picked a filler at the first lineup on August 31, 1988. Three basic narratives of the first lineup emerge from the summary judgment record. The first derives from Lopez's testimony that he picked Rivera at the first lineup. See Officers SMF ¶ 24 (citing Lopez's post-conviction hearing and deposition testimony).

In the second, no lineup occurred. This version comes from police reports and forms in the RD file. They confirm that Rivera and Rodriguez were arrested on August 30, 1988, for a lineup, but they say the lineup ultimately never happened because Lopez could not be located and because Valentin was unable to view a photo array. See Resp. to Officers SMF ¶¶ 11, 13, 21. The documents state that Lopez could not be located or, more specifically, was asleep when police officers went to his home in the early morning of August 31, 1988, and Lopez's family told the officers to return later. But later that day, the documents say, Lopez could not be located (family members told police officers that Lopez might be at his father's home), so Rivera and Rodriguez had to be released.

The third, the one of which Rivera is a proponent, derives from most of the same evidence and inferences from how the investigation later unfolded. Again, it is undisputed that Rivera was released after the first lineup. Resp. to Officers SMF ¶ 25. Rivera submits that Lopez's testimony that the first lineup occurred should be credited, but Lopez does not accurately remember who he picked. See Officers SMF ¶ 26 (citing Lopez's deposition testimony that he saw the real shooter about a week after the shooting and realized he identified the wrong person).

Defendants argue that Rivera cannot pick and choose from Lopez's testimony about the August 31, 1988, lineup; it is all or nothing. Officers Mem. Supp. Mot. Summ. J. 7-8 (no citation for proposition). But the jury will be free to believe all, some, or none of Lopez's and the other witnesses' testimony, so Rivera may select as much of Lopez's testimony as he wishes to be regarded as true at summary judgment. See Kadia v. Gonzales , 501 F.3d 817, 821 (7th Cir. 2007) (faulting fact finder for "the discredited doctrine of falsus in uno , falsus in omnibus (false in one thing, false in all things), which Wigmore called 'primitive psychology' " (citations and quotation omitted) ); Allen v. Chicago Transit Auth. , 317 F.3d 696, 703 (7th Cir. 2003) ("[T]here are cases, perhaps the majority, in which a witness's testimony is a compound of truth and falsity. Perjury is a circumstance to be weighed by the jury in determining a witness's credibility rather than a ground for removing the issue of credibility from the jury by treating the witness's entire testimony as unworthy of belief."); Branion v. Gramly , 855 F.2d 1256, 1263 (7th Cir. 1988) ("A trier of fact may disbelieve or reject any evidence; ... [s]elective disbelief, however, is an ordinary incident of trial...."). The jury's prerogative partially to disbelieve Lopez's testimony that he picked Rivera at the first lineup does not by itself furnish a basis for the jury to find that Lopez picked a filler, however; it just leaves a hole in the proof. Rivera must still fill that hole at summary judgment by pointing to other evidence from which the jury could find that Lopez picked a filler. See Branion , 855 F.2d at 1263 ("Disbelief is not evidence of the opposite of the thing discredited, however." (citing Anderson, supra , 477 U.S. at 256-57, 106 S.Ct. 2505, and LHLC Corp. v. Cluett , Peabody & Co. , 842 F.2d 928, 934-36 (7th Cir. 1988) ) ).

Rivera has identified enough evidence other than Lopez's testimony to survive summary judgment. He points to the undisputed fact that Rivera was released after August 31, 1988, Resp. to Officers SMF ¶ 25, and not rearrested until the second lineup fifteen days later. See Pl. SAF ¶¶ 39-41. To reiterate, that the first lineup occurred must be accepted as true at summary judgment; the question is who Lopez picked. If Lopez picked Rivera, why not arrest him within twenty-four hours as happened on September 15, 1988? And if Lopez picked Rivera at the first lineup, falsifying a police report saying Valentin identified Rivera could reasonably be seen by the jury as taking an unnecessary risk. Seen favorably to Rivera, his release and the two-week delay in rearresting him for the second lineup can be reasonably explained by Lopez's selection of a filler. Indeed, once the fact that the first lineup occurred is deemed true, the second lineup seems unnecessary unless the first one resulted in something other than Rivera's selection. Defendants point to testimony that not every positive identification leads immediately to arrest. That may be so, but the jury could reasonably wonder why approving charges would take two weeks and why someone thought a second lineup was a good idea. Again, the jury could decide that the answer can be found in Lopez picking a filler on August 31, 1988.

4. Lopez Told Guevara and Leonard that Rivera Was the "Wrong Guy"

Rivera relies on Lopez's post-recantation testimony to establish that he tried, but failed, to recant to a man and woman conducting the September 15, 1988, lineup. See Pl. SAF ¶¶ 52-53. Nothing in the RD file or Wadas' file suggests that Lopez tried to recant on September 15, 1988. Defendants argue that, other than Guevara's Fifth Amendment invocation, which is insufficient on its own, the evidence Rivera cites piles speculative inferences too high to create a genuine issue for trial. Officers Mem. Supp. Mot. Summ. J. 9-10; see also Consolino v. Towne , 872 F.3d 825, 830 (7th Cir. 2017) ("[S]peculation is not enough to create a genuine issue of fact for the purposes of summary judgment." (citing Harper v. C.R. England, Inc. , 687 F.3d 297, 306 (7th Cir. 2012) ) ); LaSalle Bank Lake View v. Seguban , 54 F.3d 387, 390 (7th Cir. 1995) (explaining that invoking Fifth Amendment privilege cannot by itself be a basis for imposing civil liability). Defendants do not dispute that Lopez told two people at the police station on September 15, 1988, that Rivera was the "wrong guy." See Resp. to SAF ¶¶ 52-53 (citing, e.g. , Lopez Aff. ¶ 14). Defendants say, however, that there is not enough evidence to conclude that the two people were Guevara and McLaughlin or that either understood that Lopez really meant what he said. See Officers Mem. Supp. Mot. Summ. J. 9-10. Both questions must be decided by a jury. See Hedberg v. Ind. Bell Tel. Co. , 47 F.3d 928, 932 (7th Cir. 1995) (substantially same on speculation at summary judgment).

Lopez has testified to a physical description of the man and woman with whom he spoke, "an older woman with white or blonde hair, and a Latino man with mustache, glasses, and an afro." Resp. to SAF ¶ 53 (undisputed fact). The description of the man matches the photograph of Guevara in the record closely enough to allow the jury to find that they were the same person, see Pl. Ex. 37; see also supra note 5, and even if it did not, Lopez testified that at his deposition in this case the man, he thought, was the same one with whom he had interacted previously, see Lopez Dep. at 95:23-96:7, Pl. Ex. 6A. The woman in the photo of McLaughlin in the record, Officer Defs. Tab 38, ECF No. 305-39, has brown hair, but it was taken at a certain time in or around 1988 (the photo was taken indoors). People sometimes change their hair color within the same year, and Gawrys testified at his deposition that he thought McLaughlin had blond hair in 1988, Gawrys Dep. 174:9-15, Pl. Ex. 25A. Especially in view of the fact that no other investigator assigned to the case was a woman, Resp. to Pl. SAF ¶ 55, this evidence suffices to allow the jury to identify McLaughlin as the woman to whom Lopez said Rivera was the "wrong guy" on September 15, 1988.

Defendants also maintain that Lopez has been unwavering in his testimony that Guevara and McLaughlin believed that he was afraid of reprisal and so did not take his "wrong guy" protestations seriously. Officers Mem. Supp. Mot. Summ. J. 10. They correctly characterize the summary judgment record. See, e.g. , Lopez Aff. ¶ 14; Lopez Dep. 95:23-97:18. But Lopez can only speculate about what Guevara and McLaughlin thought his motives were, which is no more probative than a plaintiff submitting a conclusory affidavit speculating about what someone else knew, see Consolino, supra , 872 F.3d at 830 ; speculating about an employer's motives in firing the plaintiff, Jackson v. E.J. Brach Corp. , 176 F.3d 971, 984-85 (7th Cir. 1999) ; or averring in conclusory fashion that another witness lied about something said to the plaintiff, Parvati Corp. v. City of Oak Forest , No 08 C 0702, 2012 WL 957479, at *11 n.3 (N.D. Ill. Mar. 20, 2012) (St. Eve, J.) (citing Delapaz v. Richardson , 634 F.3d 895, 901 (7th Cir. 2011) ). Weighed with Guevara's Fifth Amendment invocation on this subject, the jury can reasonably decide based on Lopez's testimony that Guevara and McLaughlin feigned incomprehension. And even if Guevara and McLaughlin earnestly held a good faith belief at the time that Lopez was scared of what might happen if he fingered Rivera (defendants claim he already had), they could not suppress Lopez's statements that Rivera was the "wrong guy" for that reason because, as discussed more fully below, those statements would have been objectively material. See Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that material evidence must be given to the defense "irrespective of the good faith or bad faith of the prosecution"). In short, Guevara and McLaughlin's good faith is immaterial in the summary judgment sense, id. , and a reasonable jury could conclude that they suppressed the conversation before the September 15, 1988, lineup in which Lopez told them that Rivera was the "wrong guy."

5. Rivera's Photo Was Pointed Out to Lopez, and Lopez Was Fed Identification Details

To understand the final strand of Rivera's factual position on the Valentin investigation and trial, rewind to Lopez's initial identification of Rivera from a gang book, which, for summary judgment purposes, occurred two days after the shooting on August 29, 1988. The evidence, Rivera argues, creates a genuine dispute over whether Guevara and several other officer defendants coaxed Lopez to pick Rivera. See Pl. SAF ¶¶ 25-26. Then, in an effort to make Lopez's identification stick at trial, Guevara and McLaughlin concocted the details that Lopez had seen Rivera playing baseball in Humboldt Park and that the shooter had a gold streak in his hair; those details were then fed to Lopez to be repeated in his trial testimony and corroborated in part by Guevara. See id. ¶¶ 85, 91, 92.

Defendants analogize this record to the summary judgment record in a Fourth Amendment false arrest case, Hart v. Mannina , 798 F.3d 578 (7th Cir. 2015). Officers Mem. Supp. Mot. Summ. J. 17, ECF No. 304. After expressing some initial reluctance, four eyewitnesses identified the plaintiff in Hart from a photo array. See Hart , 798 F.3d at 584. The plaintiff claimed that coaching occurred, but the Seventh Circuit upheld the entry of summary judgment for the defendants because "[o]n this record, there is simply no evidence of coercion or manipulation...." Id. at 588. The officer "denied that she coached any of the witnesses, and all four witnesses testified that they were neither coached nor otherwise led to identify" the plaintiff. Id. Although the investigating officer had the opportunity to coach in unrecorded portions of interviews and one-on-one meetings, that possibility was too speculative to deny summary judgment. Id.

Since he first recanted in 2010, Lopez has maintained that he was not coached. See Officers SOF ¶¶ 40, 41, 75 and material cited therein. To show that there is an issue for trial, Rivera cites one passage from Lopez's testimony at the 2011 post-conviction hearing. See Pl. SAF ¶¶ 25, 26. The quoted material seems to support his position directly, but in light of the back-and-forth that follows, it turns out to be a slip of the tongue:

Q. Why did you testify at the time of trial that you had seen the shooter play baseball at Humboldt Park?

A. Because, you know, what happened was the cops were like, when they pointed him out, they were asking me have you seen him playing baseball or have you seen him anywhere else; and I said, yes, that was the reason why I said that I seen him playing baseball at a park.

The court: Just a minute, did you say when they pointed him out?

The witness: Who me?

The court: Yes.

The witness: No, they didn't point it out to me. When I pointed him out, they were asking have you seen him anywhere else, at a park, playing, you know, baseball, stuff like that and I said yes.

The court: Okay, go ahead.

Post-Conviction H'rg Tr. at 93:10-94:4, Pl. Ex. 5. Lopez's clarification, even viewed in the light most favorable to Rivera, does not create a genuine fact dispute. Lopez's immediate clarification in response to the state court's inquiry cannot be ignored. See Malin v. Hospira, Inc. , 762 F.3d 552, 564 (7th Cir. 2014) (chastising party who "cherry-picked" from deposition and providing examples from deposition showing that "[w]hen the [cited] testimony is read in context, ... it becomes clear that [the person testifying] made no such admissions"); Maxtech Consumer Prods., Ltd. v. Robert Bosch Tool Corp. , 255 F.Supp.3d 833, 840 (N.D. Ill. 2017) (reading testimony at summary judgment "sensibly and in context" despite requirement that all reasonable inferences be drawn in nonmovant's favor); De Marco v. Pals Express, Inc. , No. 96 C 6817, 1997 WL 619829, at *2 (N.D. Ill. Sept. 30, 1997) ("Taken in isolation, De Marco's answer of 'No' to one question at his deposition seems inconsistent with [other evidence]. Reading De Marco's deposition testimony in context, however, no inconsistency is apparent." (internal citation omitted) ).

Rivera also cites the deposition of Jennifer Linzer ("Linzer"), Pl. Ex. 46. Pl. SAF ¶ 85. In this testimony, Linzer stated that, based on her notes from a telephone call with Lopez on March 2, 2010, shortly after he first recanted, he may have said that he thought he was coached. See Linzer Dep. (Pl. Ex. 46, pg. 64:5-65:14, 113:4-7). Defendants object on double hearsay grounds. Resp. to Pl. SAF ¶ 85.

Examples of cases resolving hearsay objections raised in responses to Local Rule 56.1 statements can be readily found. E.g. , Spalding v. City of Chicago , 186 F.Supp.3d 884, 893-94 (N.D. Ill. 2016) ; De v. City of Chicago , 912 F.Supp.2d 709, 714 (N.D. Ill. 2012) ; Gondeck v. A Clear Title & Escrow Exchange, LLC , No. 11 C 6341, 2013 WL 4564994, at *3 (N.D. Ill. Aug. 28, 2013) ; see also Rogers v. City of Chicago , 320 F.3d 748, 751 (7th Cir. 2003), overruled on other grounds by Hill v. Tangherlini , 724 F.3d 965 (7th Cir. 2013), (affirming exclusion of affidavit at summary judgment on hearsay, among other, grounds). The court has no quarrel with this practice, which has been blessed by the Seventh Circuit. At least on nontrivial issues, a motion to strike may still be preferable. Because the nonmoving party has no opportunity to reply to objections in Local Rule 56.1 responses, the court can sometimes be left without input from the evidence's proponent on the party's theory of admissibility in the form it is presented at summary judgment and, failing that, how it might be presented in an admissible form at trial. See Fed. R. Civ. P. 56(c)(2) (permitting objection at summary judgment that "the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence"); Olson v. Morgan , 750 F.3d 708, 714 (7th Cir. 2014) ("[T]he Federal Rules of Civil Procedure allow parties to oppose summary judgment with materials that would be inadmissible at trial so long as facts therein could later be presented in an admissible form." (citing Fed. R. Civ. P. 56(c)(2)-(4) ) ). Filing a separate motion to strike ensures an opportunity to develop both issues fully through adversary presentation.

Defendants' hearsay objection to the cited portions of Linzer's deposition is nevertheless well taken. Each level of hearsay must fall into an exception to the rule against hearsay. Fed. R. Evid. 805. Neither Lopez's statement on the phone nor Linzer's notes can be admitted for the truth of the matter asserted as prior inconsistent statements because Lopez's statement on the phone (the innermost kernel of hearsay), and Linzer's notes (the next layer), were not "given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition." Fed. R. Evid. 801(d)(1)(A) ; see also , e.g. , United States v. Dietrich , 854 F.2d 1056, 1061-62 (7th Cir. 1988). There would be no barrier to using these statements to impeach Lopez at trial, Fed. R. Evid. 613(b), but it cannot be used as substantive evidence that Lopez was coached. See Dietrich , 854 F.2d at 1061. But "fodder for impeachment ... is not alone enough to avoid summary judgment." Dugan v. Smerwick Sewerage Co. , 142 F.3d 398, 406 (7th Cir. 1998) (citing Giannopoulos v. Brach & Brock Confections, Inc. , 109 F.3d 406, 411 (7th Cir. 1997) ) (holding inconsistent, unsworn statement which could be used only to impeach did not create genuine factual dispute); accord Outlaw v. Newkirk , 259 F.3d 833, 841 (7th Cir. 2001) (citations omitted).

Without any direct or hearsay testimony from Lopez admissible to prove that he was coached, only inferential theories remain. Rivera correctly observes that the story of the shooter's gold hair first surfaced at Rivera's trial; it does not appear in police reports. See Resp. to Pl. SAF ¶¶ 61, 62. But just as using a flawed process for recording interviews is too speculative to support an inference of coaching, Hart, supra , 798 F.3d at 588, so too is the omission of the shooter's distinctive gold hairstyle from the investigative file. Were it otherwise, every detail that surfaced at a criminal trial would require a trial in a § 1983 suit if it could not be found in police records. See id.

Nonetheless, what sets this record apart is the presence of evidence from which the jury could find that the officers selected Rivera before Lopez picked him from the gang book. See supra , Part II. F. Viewed in the light most favorable to Rivera, that fact casts substantial doubt on Lopez's testimony that he happened to select the very person the police were targeting more or less at random from the photo book. See In re High Fructose Corn Syrup Antitrust Litig. , 295 F.3d 651, 663 (7th Cir. 2002) (whether "pure coincidence" explained actions had to be decided by jury); Elder Care Providers of Ind., Inc. v. Home Instead, Inc. , No. 1:14-cv-01894-SEB-MJD, 2017 WL 1106093, at *14 (S.D. Ind. Mar. 24, 2017) (efforts to explain evidence at summary judgment as an " 'unfortunate coincidence' raise red flags signaling a genuine issue of material fact to be left to a jury's determination"). Add to that improbable coincidence the conspicuous absence of the detail about the distinctive gold streak in the shooter's hair from the investigative record, Pl. SAF ¶ 62; Guevara's invocation of his Fifth Amendment privilege when asked whether he manipulated, coached, and coerced Lopez, see Guevara Dep. at 18:17-19:11, 21:8-13, 158:15-23, 181:6-15, 182:10-19, 184:15-24, Pl. Ex. 24A; and Linzer's impeachment fodder, and a genuine dispute for trial on Rivera's theories of manipulation, coercion, and coaching emerges. See Finwall v. City of Chicago , 490 F.Supp.2d 918, 924 (N.D. Ill. 2007). Wrapping up, the core facts supporting Rivera's narrative of the Valentin investigation and trial must be treated as established at summary judgment. Against this factual backdrop, the court considers Rivera's claims in turn.

III. THE EFFECT OF GUEVARA'S EXERCISE OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT

At his deposition in this case and in his answers to written discovery, Guevara invoked his Fifth Amendment right not to be compelled to be a witness against himself hundreds of times. Together, the questions Guevara exercised his right not to answer cover virtually every aspect of the Valentin investigation, prosecution, and trial, and if the adverse inference that they would be answered in a way admitting culpability were to be drawn, those answers implicate Guevara and many, if not all, of the other officer defendants in egregious violations of Rivera's constitutional rights at every stage of the Valentin investigation and prosecution. See, e.g. , Pl. SAF ¶¶ 22, 26-27, 40-41, 46, 52, 61, 65, 79. No matter how damning the adverse inferences are, liability in a civil case cannot be based exclusively on a party's privileged decision to remain silent, so the court cannot deny summary judgment exclusively on that basis.

Guevara's silence may be properly considered at summary judgment. In a criminal case, the jury cannot draw an adverse inference from the defendant's invocation of his Fifth Amendment right not to be compelled to be a witness against himself. Griffin v. California , 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The rule against adverse inferences does not hold in a civil case, however. The Supreme Court held in Baxter v. Palmigiano , 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), that "the Fifth Amen