The Seventh Circuit reversed a district court decision denying the defendant officers’ motion for summary judgment based on qualified immunity. The Seventh Circuit held that there is no due process claim against a police officer for an unduly suggestive identification, even when that unduly suggestive identification was introduced at trial, and that the defendants were entitled to qualified immunity.

Background

Plaintiff Eric Blackmon was convicted of first-degree murder for the July 4, 2002 shooting death of Tony Cox based largely on the testimony of two eyewitnesses. Blackmon v. Williams, 823 F.3d 1088, 1092 (7th Cir. 2016). The eyewitnesses also identified Blackmon as the perpetrator at trial. In 2018, a federal district court granted his petition for a writ of habeas corpus because he had received ineffective assistance of counsel at trial, Blackmon v. Pfister, 2018 WL 741390, at *10 (N.D. Ill. Feb. 7, 2018), and Blackmon’s conviction was vacated. The state declined to retry Blackmon and dismissed the charges against him.

Blackmon then filed this lawsuit under 42 U.S.C. § 1983 against three of the police officers who investigated the crime. Blackmon alleged that the photo array and lineup were unconstitutionally suggestive because he was the only person who wore his hair in braids—and both eyewitnesses described braids as one of the shooter’s characteristics prior to the lineup. The defendant officers moved for summary judgment on Blackmon’s “unduly suggestive lineup” claim, on the ground of qualified immunity. The district court denied this motion after concluding that it is clearly established that the results of unduly suggestive photo arrays and lineups must not be used at trial. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Defendants immediately filed an interlocutory appeal.

Analysis on Appeal

In reviewing whether the trial court properly denied the officers’ qualified immunity argument, the Court looked at the issue using two frameworks: (1) the two-question analysis used by the Supreme Court to determine whether a § 1983 claim for damages can be brought against a police officer for violation of Miranda procedures during the elicitation of statements later introduced at trial in Vega v. Tekoh, 597 U.S. 134 (2022), and (2) whether it was clearly established in 2002, when the suggestive lineup was conducted, that investigating officers could be personally liable under § 1983 for conducting a suggestive lineup.

The Court first analyzed the question using the Vega analysis. The first question was whether the police violate a suspect’s constitutional rights by showing witnesses a suggestive photo array or conducting a suggestive lineup even when the lineup is not introduced at trial. The Court unequivocally held that they do not. The second question was whether the result changes if the result of the suggestive lineup is introduced at trial. The Court emphasized that the question before them was whether the police violate a defendant’s constitutional rights when a suggestive lineup is introduced at trial. The Court held that since an investigating officer is not responsible for the decisions of the prosecutor and the judge to introduce and admit evidence at trial, without which there is no problem under the Due Process Clause in this regard, damages against the police officers would not be appropriate. Additionally, because Blackmon was asserting that the officers violated his right to a fair trial, the Court concluded that the appropriate remedy would be the exclusion of the evidence at trial, not damages. The Court explained that the police could be liable for damages if there was proof that the police defrauded the prosecutor or otherwise manufactured evidence, but no claims of that kind were the subject of this appeal.

The Court then analyzed whether the right allegedly violated was clearly established at the time. The Court defined the right at issue as “whether, in 2002, when the police obtained these identifications, it was clearly established that investigating officers could be personally liable under § 1983.” The Court also concluded the answer was no. In doing so, the Court identified that no circuit court had held that an officer could be liable for suggestive identification procedure under § 1983 before 2002. The Court also identified that it was not clearly established in 2022 when Blackmon brought the suit, either. Ultimately, because neither Blackmon nor the Court could find any appellate decision holding police officers liable in damages when prosecutors introduce suggestive identifications into evidence, the Court concluded that right at issue was not clearly established and the defendants were entitled to qualified immunity.

Conclusion

In conclusion, police officers do not violate a suspect’s constitutional rights by showing witnesses a suggestive photo array or conducting a suggestive lineup, even when the results are introduced at the criminal trial by a prosecutor. In regard to qualified immunity specifically, the case emphasizes that in determining whether a right is clearly established, the critical question is whether there is existing precedent holding a police officer or other government employee liable for damages under § 1983 for a violation of the same, specific nature. Where no such precedent exists, a right is not clearly established and an officer will be entitled to qualified immunity.

Authored by:

not pictured: Michael Parille