Carlton Hart v. Christine Mannina , 798 F.3d 578 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1347
CARLTON HART,
Plaintiff-Appellant,
v.
CHRISTINE MANNINA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10-CV-1691-WTL-DML — William T. Lawrence, Judge.
____________________
ARGUED DECEMBER 10, 2014 — DECIDED AUGUST 17, 2015
____________________
Before EASTERBROOK, SYKES, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Allowing a reality television
program to film an ongoing murder investigation is a recipe
for trouble. It is easy to imagine a detective with a looming
television deadline cutting a corner to ensure that a suspect
is arrested in time for the final episode. Without an arrest,
the show has no resolution to satisfy the audience.
2 No. 14-1347
The Indianapolis Metropolitan Police Department
(IMPD) participated in this sort of reality television program
called The Shift. The film crew followed a team of homicide
detectives as they investigated a deadly home invasion in
November 2008. Two victims were shot. One was killed; the
other survived. Police eventually arrested plaintiff Carlton
Hart, and his arrest was the centerpiece for the final episode
of the program’s first season. As it turned out, though, Hart
was the wrong man. After he had spent nearly two years in
jail awaiting trial, the charges were dismissed and Hart was
released. The audience of The Shift was none the wiser.
Hart filed this lawsuit under 42 U.S.C. § 1983 against sev-
eral detectives in their individual capacities and against the
City of Indianapolis alleging a variety of constitutional viola-
tions. The core of his complaint is that he was arrested with-
out probable cause and that the lead detective on the case
made false or misleading statements in her probable cause
affidavit for his arrest. The district court granted defendants’
motion for partial judgment on the pleadings on two claims
and, after discovery, defendants’ motion for summary judg-
ment on the remaining claims.
There are many troubling aspects of IMPD’s investiga-
tion, and this case should warn police departments about
having their detectives moonlight as television stars. But on
this record, we must affirm. Even the troubling aspects of the
investigation do not add up to evidence of a violation of
Hart’s constitutional rights. A reasonable trier of fact could
not find that police lacked probable cause to arrest him. Nor
could a reasonable jury find that the lead detective, defend-
ant Christine Mannina, made false or misleading statements
in her probable cause affidavit. Four surviving witnesses
No. 14-1347 3
from the home invasion separately identified Hart as one of
the men who attacked them. None of the police had any rea-
son to doubt these identifications when they arrested Hart.
I. Factual and Procedural Background
We review de novo the grant of summary judgment, ex-
amining the record in the light most favorable to the non-
moving party and drawing all reasonable inferences in his
favor. E.g., Carter v. Chicago State Univ., 778 F.3d 651, 657 (7th
Cir. 2015). Summary judgment is appropriate only where
there are no genuine issues of material fact and the moving
parties are entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
A. The Crimes
Plaintiff Carlton Hart was arrested and charged with
murder and related crimes stemming from a deadly home
invasion that took place on November 3, 2008. Five people
were at the home: Richard Miller, Duane Miller, Ricky
Bluiett, Tamela Daniels, and Kourtney Glasscock. Richard
and Duane were brothers, Bluiett was the Millers’ step-
brother, Daniels was Duane’s friend, and Glasscock was
Bluiett’s girlfriend.
According to statements from the surviving eyewitness-
es, three men were involved in the home invasion. When the
incident began, Glasscock and Bluiett were sitting in a car
parked in the driveway. Three armed men approached the
house. One man took Glasscock to the side of the house and
held her captive. The other two men entered the residence
with Bluiett at gunpoint. Inside the house, the two men en-
countered Richard in the foyer and Duane and Daniels in a
back bedroom. One gunman shot Richard. He died from his
4 No. 14-1347
wounds that evening. The other gunman shot Duane, but he
survived. Bluiett, Daniels, and Glasscock were left un-
harmed when the gunmen fled.
B. The Pre-Arrest Investigation
Defendant Detective Christine Mannina and several oth-
er detectives conducted interviews with the four surviving
eyewitnesses on November 3 and 4. During these initial in-
terviews, all four witnesses identified the perpetrators as
black men wearing dark hooded sweatshirts, but none of the
witnesses knew who the men were. The investigation made
little progress until November 13, 2008, when there was a
breakthrough.
Bluiett contacted Detective Mannina and told her that the
man who shot Richard looked like a man he had seen on the
social media website MySpace.com. He identified the man as
Samuel Swavely. Five days later, Duane called Mannina and
told her he recognized another man from a video on the in-
ternet as the person who shot him. Duane explained that af-
ter his mother had learned that Swavely was a possible sus-
pect in Richard’s murder, she looked at Swavely’s MySpace
page and came across a hyperlink to a music video. She
showed Duane the video, and he recognized the man who
shot him (who was not the same man Bluiett had identified
as the man who shot and killed Richard).
The next day, Detective Mannina visited Duane Miller
and watched the video herself. Duane repeated that the man
in the video was the man who shot him. Mannina took a pic-
ture of the man in the video with the hope of identifying him
later.
No. 14-1347 5
Three days later, on November 22, 2008, Mannina formal-
ly interviewed Duane Miller, Bluiett, Glasscock, and Daniels,
each for a second time. Mannina was the only police officer
present with the witnesses during the November 22 inter-
views. All of the interviews were conducted separately; the
witnesses did not discuss their interviews with one another
either beforehand or afterward.
Each witness identified Hart in the photo array as one of
the people involved in the home invasion. Bluiett identified
Hart as the man who pointed a gun at him and who shot
Duane. Glasscock identified Hart as the man who told an-
other attacker to shoot her if she moved while she was held
captive. Daniels identified Hart as the man who shot Duane.
And Duane himself identified Hart as the man who shot
him.
C. Carlton Hart’s Arrest
After the four surviving witnesses identified Hart as one
of the attackers, Mannina drafted a probable cause affidavit
for his arrest in which she swore to the underlying facts. She
met with prosecutor Denise Robinson to decide whether to
move forward. Robinson and Mannina reviewed the affida-
vit and the accompanying case file. Robinson then met sepa-
rately with Duane Miller, who confirmed that Hart was the
man who shot him.
After meeting with Mannina and Duane, Robinson con-
cluded there was sufficient evidence to arrest Hart for his
involvement in the home invasion. Robinson approved
Mannina’s affidavit of probable cause, and the arrest warrant
was sought and issued. Police arrested Hart on December 3,
6 No. 14-1347
2008. He was detained pending trial. Swavely was also ar-
rested and charged, but he is not a part of this civil case.
D. Ricky Bluiett’s December 11, 2009 Interview
In December 2009, a year after Hart’s arrest and a week
before Hart’s and Swavely’s trial was scheduled to start,
Bluiett contacted the prosecutor’s office and expressed reser-
vations about his earlier identifications of Hart and Swavely.
He said he was “pretty sure but not completely sure” Hart
and Swavely were involved in the home invasion. Defendant
Detectives Jeff Breedlove and Kevin Kelly re-interviewed
Bluiett on December 11, 2009.
The detectives asked Bluiett about his earlier identifica-
tions. At one point, they asked him whether he signed the
photo array with Swavely’s picture in it. Bluiett said yes, but
he explained: “Like I was pretty sure, but like I said, I’m not
completely sure. I can’t a hundred percent say that that’s the
guy.” He added: “I wasn’t reluctant. I kind of signed, but I
signed because I guess that’s what I was supposed to do, you
know?” The detectives asked Bluiett to explain, and he said:
“I mean, I thought signing it meant that I had made like an
identification. I didn’t know that signing it meant yes, a
hundred percent sure that that’s that person. That’s the man
but, you know?”
Breedlove and Kelly then asked Bluiett whether he had
ever told Mannina he was not completely sure of the identi-
fication. Bluiett said yes, explaining that he had told Manni-
na he was unsure about his identifications sometime earlier
in the investigation when Mannina came to his house to fol-
low-up on something. Critically, this conversation with
No. 14-1347 7
Mannina occurred after Hart and Swavely had already been
arrested. This is how Bluiett described that conversation:
Officer: Did you tell Detective [Mannina]
that you weren’t [completely sure]?
Bluiett: I did later. Yeah. I actually did. We—
she came to my house—she called
me and she came to my house and
she asked—she asked—we—we
talked about something and I told
her that I wasn’t completely sure that
these were the people. And we had a
long conversation about it. And she
was like, “This is—.” She was just
trying to convince me. And I told
her—
Officer: Can you tell me—can you tell me
how that conversation went?
Bluiett: She basically was—I mean—trying
to convince me that it was them. And
I was saying, “Well, you know, it’s—
it’s these people’s life that I have in
my hands right now and I can’t say
I’m a hundred percent sure when I’m
not a hundred percent sure.” And
she was just trying to convince me
that it was them and it was just
like—
Officer: Well, how did she—how did she try
to convince you?
8 No. 14-1347
Bluiett: She just kept [inaudible] like “These
are the guys. These are the guys,”
you know? “If they don’t go to jail,
they’re just gonna have a chip on
their shoulder and be out here and
think they’re invincible.” Stuff like
that. We talked for like two hours—
two and a half hours.
App. 349–50.
Three days later, on December 14, 2009, the state court
held a hearing in Swavely’s and Hart’s criminal case. Swave-
ly’s attorney summarized Bluiett’s most recent statement to
police. The prosecutor admitted that Bluiett had told prose-
cutor Robinson that he felt he “was being pressured to be a
hundred percent” certain about his identifications when in
fact he was only “pretty sure.” The court then heard testi-
mony from Bluiett, who said that although he did not feel he
was being “pressured,” Mannina had come by his house and
told him he needed to “be a hundred percent sure” about his
identifications. Bluiett clarified, however, that no one had
ever suggested whom to pick out during the photo array
presentations.
After hearing Bluiett’s testimony, the court asked the
prosecutor whether the State had any evidence against
Swavely or Hart apart from Bluiett’s identifications. The
prosecutor told the court that there was no other evidence
against Swavely, but he assured the court that three other
witnesses had separately identified Hart. The court dis-
missed the charges against Swavely but declined to dismiss
the charges against Hart.
No. 14-1347 9
E. Hart’s Release
Hart’s trial was continued several times over the follow-
ing months. During the prosecution’s preparation of its case,
the physical evidence that had been collected at the crime
scene was eventually processed. None of the physical evi-
dence (i.e., the fingerprints, blood samples, shell casings, or
DNA evidence) connected Hart to the home invasion. Dur-
ing this period, Hart also filed two notices of alibi and pro-
duced copies of his cell phone records showing that his
phone was at his recording studio at the time of the crimes.
Finally, on October 20, 2010 the State moved to dismiss the
charges against Hart, citing an “insufficient nexus” between
Hart and the crime. Hart had spent nearly two years in jail
pending trial.
F. The Reality Television Program The Shift
The investigation of the Miller home invasion was filmed
by Lucky Shift, Inc. for a reality television program called
The Shift. The Shift was a six-episode reality police drama that
followed the work of the homicide detectives on IMPD’s
“middle shift,” named for the detectives who worked be-
tween 2:00 and 10:30 p.m. Lucky Shift filmed IMPD’s homi-
cide investigations from July 2008 to November 2008. The
final episode of Season 1, “Brother’s Keeper,” focused on the
Miller home invasion and Hart’s arrest for murder. The epi-
sode aired on January 25, 2009, about two months after Hart
was arrested.
Defendants Mannina, Officer Lesia Moore, Breedlove,
Kelly, and the City of Indianapolis were all paid for their
participation in The Shift. Mannina was paid at least $14,500
for her participation, Moore at least $2,500, Breedlove at least
10 No. 14-1347
$2,750, and Kelly at least $3,000. The City received a contri-
bution of $1,000 for allowing access to its detectives and fa-
cilities. The television company also paid for window tinting
for the homicide detectives’ squad cars and new badges for
the detectives.
G. The Civil Lawsuit
After the criminal charges were dismissed, Hart filed suit
under 42 U.S.C. § 1983 bringing claims under the Fourth,
Sixth, and Fourteenth Amendments against Mannina and
several other detectives in their individual capacities and
against the City of Indianapolis. The district court granted
defendants’ motion for partial judgment on the pleadings on
Hart’s federal claims for malicious prosecution and abuse of
process under the Fourth and Fourteenth Amendments. Re-
lying on Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001),
the district court held that these claims failed as a matter of
law because Indiana tort remedies “knock out” federal
claims for malicious prosecution and abuse of process. In an
opinion issued after the district court’s decision, however, we
clarified that Indiana law does not bar these federal claims
because Indiana grants absolute immunity to state and local
officers on such state-law claims, rendering the state tort
remedies inadequate. See Julian v. Hanna, 732 F.3d 842, 846–
47 (7th Cir. 2013).
The district court later granted summary judgment to all
defendants on the remaining claims. Hart v. Mannina, 992 F.
Supp. 2d 896 (S.D. Ind. 2014). Count I asserted a claim for
making false or misleading statements in support of a prob-
able cause affidavit in violation of the Fourth and Fourteenth
Amendments. Count II asserted a claim for false arrest and
false imprisonment in violation of the Fourth and Fourteenth
No. 14-1347 11
Amendments. Count V asserted a claim for the denial of
Hart’s speedy trial right under the Sixth and Fourteenth
Amendments. Hart appeals as to all counts.
II. The Fourth Amendment Claims
We begin with Hart’s claims for false arrest, false impris-
onment, and malicious prosecution. If there was probable
cause to arrest, then all of these claims fail as a matter of law.
See Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006)
(“Probable cause to arrest is an absolute defense to any claim
under Section 1983 against police officers for wrongful ar-
rest, false imprisonment, or malicious prosecution.”). The
central issue in this appeal is whether police had probable
cause to arrest Hart. The undisputed facts show that they
did because four witnesses identified him as one of the
shooters. Hart’s efforts to undermine those identifications or
otherwise to avoid their decisive effect are not supported by
evidence.
A. Probable Cause to Arrest
Police officers have probable cause to arrest when the to-
tality of the facts and circumstances within their knowledge
at the time of the arrest would warrant a reasonable person
in believing the person has committed a crime. E.g., Abbott v.
Sangamon County, 705 F.3d 706, 714 (7th Cir. 2013). Probable
cause does not require certainty. It is a “fluid concept that
relies on the common-sense judgment of the officers based
on the totality of the circumstances.” United States v. Reed,
443 F.3d 600, 603 (7th Cir. 2006). In deciding this question on
a motion for summary judgment, “we must give the non-
moving party the benefit of conflicts in the evidence about
12 No. 14-1347
what the officers actually knew at the time.” Williams v. City
of Chicago, 733 F.3d 749, 756 (7th Cir. 2013).
Probable cause can be based on a single identification
from a credible eyewitness. E.g., Woods v. City of Chicago, 234
F.3d 979, 996 (7th Cir. 2000). In this case, there were four.
Bluiett, Glasscock, Daniels, and Duane Miller each identified
Hart in a photo array as one of the men who carried out the
deadly home invasion. Each witness made the identification
in a separate interview with Detective Mannina on Novem-
ber 22, 2008. There is no evidence that (1) any of the witness-
es discussed their identifications with the other witnesses
before or after their own identifications; (2) Mannina or any
other police officer signaled to witnesses whom to identify in
the photo array; (3) Mannina used an unduly suggestive
photo array; or (4) any of the officers knew or should have
known that the eyewitnesses were mistaken or lying.
Hart contends that a reasonable jury could find that
Mannina coached the witnesses to identify Hart. If she had
done so, their identifications would not have provided her
with probable cause. To supply probable cause, witness
identifications cannot be the product of coercion or manipu-
lation. Cf. Phillips v. Allen, 668 F.3d 912, 917 (7th Cir. 2012)
(“An officer who employs the forbidden technique in order
to manufacture an identification can’t complain when a court
provides a remedy.”). But Hart has no evidence of coaching.
Mannina denied that she coached any of the witnesses, and
all four witnesses testified that they were neither coached
nor otherwise led to identify Hart in the photo array. Hart
has not produced any evidence casting doubt on this evi-
dence. Instead, he relies on speculation, which is “insuffi-
No. 14-1347 13
cient to withstand summary judgment.” Morfin v. City of East
Chicago, 349 F.3d 989, 1002 (7th Cir. 2003).
Hart attempts to create a genuine issue of material fact
with evidence that Mannina failed to record the beginning of
each of the November 22 interviews. Before she turned on
the tape recorder to record the ensuing identifications, Man-
nina presented the photo array to each witness and asked if
the witness recognized anyone. Each witness said yes. Only
then did Mannina turn on the tape recorder.
Mannina’s interview procedure was flawed. Turning on
the tape recorder only after the witnesses said they recog-
nized someone in the photo array presents an incomplete
picture of the witnesses’ interaction with the police. See U.S.
Department of Justice, Technical Working Group for Eyewit-
ness Evidence, Eyewitness Evidence: A Guide for Law Enforce-
ment 23–24 (October 1999); International Ass’n for Chiefs of
Police, Model Policy on Eyewitness Identification 2 (September
2010). Recording the entire interview preserves the integrity
of the evidence and minimizes the risk that erroneous (or
coerced) eyewitness identifications go undetected. Manni-
na’s procedure failed to do either. But such criticism of police
methods does not by itself establish a constitutional viola-
tion. On this record, there is simply no evidence of coercion
or manipulation, and no evidence that any witness said any-
thing helpful to Hart in the unrecorded moments of those
interviews.1
1 Another problem with Mannina’s interview technique is that it
could have led to the loss of Brady material. Whether recorded or not,
any time a witness is presented with a photo array, is asked to identify a
suspect, and then fails to identify the suspect, if anyone in the photo ar-
ray is later prosecuted, he will be entitled under Brady v. Maryland, 373
14 No. 14-1347
Hart argues in the alternative that we should reverse
summary judgment on his claims as a sanction for what he
calls IMPD’s “spoliation” of evidence. Lucky Shift vide-
otaped the entirety of each November 22 interview, includ-
ing the part of the interviews that Detective Mannina failed
to record. This raw video footage was destroyed in March
2009, a little more than a month after the final episode aired.
Hart argues that IMPD had a duty to preserve this evidence
and that a reasonable jury could find that it was responsible
for its destruction. We disagree with Hart on both points.
A police officer’s duty to preserve evidence applies when
the officer either knows the evidence is exculpatory or de-
stroys the evidence in bad faith. See Arizona v. Youngblood,
488 U.S. 51, 58 (1988) (destruction of potentially exculpatory
evidence is denial of due process only when done in bad
faith); California v. Trombetta, 467 U.S. 479, 488–89 (1984)
U.S. 83 (1963), to know about the non-identification. Mannina’s interview
technique failed to preserve such evidence.
A further problem is that this procedure avoided the preferred
“double-blind” method of administering identification procedures, in
which the administering officer does not know who is and is not a sus-
pect. Without the double-blind procedure, there is an avoidable risk that
the administering officer will inadvertently provide cues to the witness
before, during, or after the viewing. See, e.g., State v. Lawson, 291 P.3d
673, 686, 705–06 (Or. 2012); State v. Henderson, 27 A.3d 872, 896–97 (N.J.
2011); International Ass’n of Chiefs of Police, Model Policy on Eyewitness
Identification, at 1–2 (2006); Amy Klobuchar et al., Improving Eyewitness
Identification: Hennepin County’s Blind Sequential Lineup Pilot Project, 4
Cardozo Pub. L. Policy & Ethics J. 381 (2006); State of Wisconsin, Office
of the Attorney General, Model Policy and Procedure for Eyewitness Identifi-
cation (2009); Gary L. Wells, et al., Eyewitness Identification Procedures: Rec-
ommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603
(1998).
No. 14-1347 15
(good-faith failure to preserve evidence with no apparent
exculpatory value did not violate due process). Because the
record establishes beyond reasonable dispute that the initial
moments of each interview merely involved the witness tell-
ing Mannina that he or she recognized someone in the photo
array, there is no evidence that Lucky Shift’s raw footage was
exculpatory to Hart. Cf. Armstrong v. Daily, 786 F.3d 529, 547
(7th Cir. 2015) (plaintiff plausibly alleged that potential ex-
culpatory value of drug paraphernalia used the night of vic-
tim’s murder in her home was apparent to investigators and
that loss or destruction was in bad faith or at least reckless).
Nor is there evidence that the raw video footage was de-
stroyed in bad faith. Hart makes much of the fact that Lucky
Shift destroyed the footage three days after co-defendant
Swavely’s attorney filed a discovery motion in the criminal
case seeking “all contracts and/or agreements between the
Indianapolis Metropolitan Police Department and/or the
City of Indianapolis and Investigation Discovery/Discovery
Channel/Discovery Communications, Inc. relating to the re-
cording and production of the television program ‘The
Shift.’” Even if Swavely’s discovery request for “contracts
and/or agreements” could be extended to cover the raw
footage itself, which would be a stretch, there is no evidence
connecting the filing of that discovery motion to Lucky
Shift’s decision to destroy the videotapes.
Lucky Shift’s president testified that the company typical-
ly sent its raw footage to an independent shredding compa-
ny roughly thirty days after the episode aired. She explained
that the company followed that process here, sending the
footage to be destroyed approximately thirty-nine days after
the episode aired. Hart has offered no evidence casting
16 No. 14-1347
doubt on this explanation. Nor is there evidence that Manni-
na or anyone else at IMPD knew of Swavely’s request or
communicated with Lucky Shift about the footage or partic-
ipated in its destruction.
Hart’s final argument on this claim is that a reasonable
trier of fact could infer that Mannina coached or otherwise
led the four eyewitnesses to identify Hart based on evidence
that Mannina pressured a fifth person, Adrian Rockett, to
implicate Hart in the Miller home invasion three months af-
ter Hart’s arrest and also pressured Bluiett to maintain his
identification of Hart when they spoke at Bluiett’s house,
again well after Hart’s arrest.
In March 2009, Detectives Mannina and Lesia Moore in-
terviewed Adrian Rockett, a suspect in another case, who
told police that he had information about the Miller shoot-
ings. Detective Jeff Breedlove was initially scheduled to in-
terview Rockett, but he was called away for something and
told Moore and Mannina to interview him. Breedlove
watched the interview live on a direct feed to his computer.
During the interview, Mannina presented a photo array
to Rockett. He identified Hart as involved in the Miller home
invasion. Mannina’s interview technique bothered Breed-
love. He approached Mannina after the interview and ex-
pressed his concern that her technique had been unduly
suggestive. He noted that Rockett seemed “a little wishy-
washy” in his identification and that it looked as if Mannina
had encouraged Rockett to sign the photo array after he ini-
tially hesitated. Breedlove did not believe Mannina had giv-
en Rockett any indication about whom to pick out in the
photo array, but he thought she crossed a line when she en-
couraged him to sign the photo array.
No. 14-1347 17
We recognize the possibility that circumstantial evidence
concerning a later interview may be so compelling as to
permit a reasonable inference that the police used an im-
proper technique during an earlier interview. But that is not
this case. There is no evidence that Mannina actually sug-
gested to Rockett that he should select Hart from the photo
array. Breedlove criticized Mannina’s technique, but he also
testified—and there is no evidence to the contrary—that
Mannina did not signal to Rockett whom to identify in the
photo array. From this evidence, a jury could not reasonably
infer that Mannina had improperly coached other witnesses
four months earlier, all of whom deny they were coached.
The same is true about the conversation Bluiett and
Mannina had when she came by Bluiett’s house. (This was
the conversation recounted during Bluiett’s December 11,
2009 interview with Detectives Breedlove and Kelly.) If this
conversation had occurred before Hart had been arrested,
this would be a different case at summary judgment because
it would provide at least some evidence that Mannina pres-
sured one of the eyewitnesses to maintain an otherwise
shaky identification. But here the conversation occurred well
after Hart had been arrested, and Bluiett did not ever say he
had been pressured before Hart’s arrest. Again, he denied be-
ing tipped off, coerced, or otherwise manipulated during the
crucial photo array presentation that laid the foundation for
the probable cause determination.
Even viewing the record in the light most favorable to
Hart, a reasonable jury could not find that police lacked
probable cause to arrest him. Because probable cause is a
complete defense to false arrest, false imprisonment, and
18 No. 14-1347
malicious prosecution, defendants were entitled to summary
judgment on those claims.
B. The Probable Cause Affidavit
We next turn to Hart’s claim that Detective Mannina
made false or misleading statements in her probable cause
affidavit for his arrest. The probable cause affidavit relied on
the four November 22, 2008 identifications to establish prob-
able cause. As we have explained, these four identifications,
if taken at face value, were more than sufficient to establish
probable cause. But Hart argues that the identifications
should not be taken at face value because the affidavit was
false and misleading in two respects: (1) Mannina knew or
should have known that the eyewitness identifications were
unreliable, and (2) Mannina omitted exculpatory infor-
mation that would, if included, have led the judge to deny
her request for an arrest warrant.
A “warrant request violates the Fourth Amendment if the
requesting officer knowingly, intentionally, or with reckless
disregard for the truth, makes false statements in requesting
the warrant and the false statements were necessary to the
determination that a warrant should issue.” Knox v. Smith,
342 F.3d 651, 658 (7th Cir. 2003); see also, e.g., Olson v. Cham-
paign County, 784 F.3d 1093, 1100 (7th Cir. 2015) (police not
entitled to qualified immunity for providing false infor-
mation in probable cause affidavit for arrest). A “‘reckless
disregard for the truth’ can be shown by demonstrating that
the officer ‘entertained serious doubts as to the truth’ of the
statements, had ‘obvious reasons to doubt their accuracy,’ or
failed to disclose facts that he or she ‘knew would negate
probable cause.’” Betker v. Gomez, 692 F.3d 854, 860 (7th Cir.
No. 14-1347 19
2012), quoting Beauchamp v. City of Noblesville, 320 F.3d 733,
743 (7th Cir. 2003).
We agree with the district court that no reasonable trier
of fact could find on this record that Mannina’s probable
cause affidavit was false or misleading. There is no evidence
that she knew or should have known that the November 22
identifications were unreliable. Hart relies on two facts: (1)
all four witnesses said in their initial statements to police on
November 3 and 4 that they did not see the attackers’ faces
clearly, and (2) one of the witnesses (Glasscock) expressed
uncertainty about whether she would be able to identify
anyone involved in the crime. Neither fact makes the wit-
nesses’ later identifications of a photograph so unreliable
that the police could not rely on them to seek an arrest war-
rant.
A police officer is permitted to rely on information pro-
vided by an eyewitness as long as the officer reasonably be-
lieves the witness is telling the truth. See Matthews v. City of
East St. Louis, 675 F.3d 703, 706 (7th Cir. 2012); Pasiewicz v.
Lake County Forest Preserve Dist., 270 F.3d 520, 524 (7th Cir.
2001); Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998). In
real-world investigations, police often confront the limits of
human memory and facial recognition. A witness who ini-
tially expresses doubt about being able to identify a suspect
but then later tells police she recognizes a familiar face need
not be considered mistaken or dishonest. Nor do minor in-
consistencies among witnesses’ statements necessarily imply
that they are mistaken or dishonest. See Askew v. City of Chi-
cago, 440 F.3d 894, 896–97 (7th Cir. 2006) (minor inconsisten-
cies across eyewitness statements are “normal” and “do not
disentitle police to rely on eyewitness statements”). The
20 No. 14-1347
question under the Fourth Amendment is whether the of-
ficer reasonably believed the witness was telling the truth.
Here, nothing in the witnesses’ first statements would
have made it unreasonable for police to rely on their later
identifications of a photograph of a suspect. Each witness
had close contact with the attackers and had an opportunity
to view the man each later identified as Hart. In their first
statements to the police, all of the witnesses provided specif-
ic descriptions of that man. The descriptions included details
about what the man was wearing and his apparent age, race,
height, and build. To be sure, the witnesses did not have a
perfect view of Duane’s shooter because he was wearing a
hooded sweatshirt pulled up over his head. But nothing else
obscured his face. All four witnesses told police in their first
statements that the gunman wore glasses or sunglasses.
Not surprisingly, there are some minor differences
among these initial descriptions. For example, Glasscock
said the man was in his late twenties to early thirties while
Bluiett said he was between eighteen and twenty-five years
old. But none of these discrepancies detract from the fact
that all four descriptions are largely consistent with one an-
other and with Hart’s actual appearance. The witnesses’ en-
counters with the attackers were brief and stressful, but no
evidence suggests that they could not offer reliable identifi-
cations. Cf. Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (rel-
evant factors for determining reliability of eyewitness identi-
fication include the witness’s opportunity to view the crimi-
nal at time of crime and the accuracy of his prior description
of the criminal); Neil v. Biggers, 409 U.S. 188, 199–200 (1972)
(same); see also Perry v. New Hampshire, 565 U.S. —, 132 S. Ct.
716, 721 (2012) (“When no improper law enforcement activi-
No. 14-1347 21
ty is involved, … it suffices to test reliability through the
rights and opportunities generally designed for that pur-
pose, notably, the presence of counsel at postindictment
lineups, vigorous cross-examination, protective rules of evi-
dence, and jury instructions on both the fallibility of eyewit-
ness identification and the requirement that guilt be proven
beyond a reasonable doubt.”). Nothing about the witnesses’
first statements to police made later identifications of Hart’s
photograph so untrustworthy that police could not rely on
them to seek Hart’s arrest.
Hart also argues that Mannina should have known that
the November 22 identifications were unreliable because
there was evidence that the MySpace video was circulating
among members of the Miller family. According to Hart, this
evidence should have alerted Mannina to the possibility that
the four witnesses were colluding to identify Hart—that they
had been exposed to the MySpace video and knew Hart was
a suspect in the crime before they were presented with the
photo array.
This is plausible in theory, but the record does not sup-
port it. Although there is evidence that the video circulated
within the Miller family, there is no evidence of collusion
among the witnesses, only two of whom were actually
members of the Miller family. Duane Miller of course saw
the MySpace video before he saw the photo array, but there
is no evidence that he told the other witnesses of the video’s
existence. To the contrary, he told Mannina during his No-
vember 22 interview that he never showed the MySpace vid-
eo to Bluiett, Glasscock, or Daniels. Bluiett, Glasscock, and
Daniels all testified that they had never seen the MySpace
22 No. 14-1347
video before identifying Hart in the photo array on Novem-
ber 22. Hart cannot rebut that testimony with speculation.
Hart also argues that Mannina omitted material exculpa-
tory information from the probable cause affidavit. “The ma-
teriality of an omitted … fact depends on its relative im-
portance to the evaluation of probable cause; an omitted fact
is material if its inclusion would have negated probable
cause.” Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir. 2010). If
the omitted fact would not have negated probable cause, its
omission was immaterial and there was no Fourth Amend-
ment violation. See Franks v. Delaware, 438 U.S. 154, 171–72
(1978); accord, United States v. Williams, 737 F.2d 594, 604 (7th
Cir. 1984) (applying Franks to omissions). To assess materiali-
ty, “we examine whether a hypothetical affidavit that in-
cluded the omitted material would still establish probable
cause.” United States v. Robinson, 546 F.3d 884, 888 (7th Cir.
2008).
Hart identifies two sets of omissions. First, he lists a slew
of facts about the witnesses’ initial descriptions from No-
vember 3 and 4 that were not included in the probable cause
affidavit—for example, it was dark during the incident and
the witnesses had only a limited time to view Duane’s shoot-
er. None of these facts, if included, would have negated the
probable cause determination, which was based on the wit-
nesses’ November 22 identifications of Hart’s photograph,
not their initial descriptions.
The second set of omissions relate to the later identifica-
tions. Detective Mannina did not disclose that she failed to
record the first part of each of the November 22 interviews.
She also failed to disclose that Bluiett told her he was only
“pretty sure” that Hart was the person who was involved in
No. 14-1347 23
the home invasion. Neither of these omitted facts would
have negated probable cause if they had been included.
As noted above, there is no evidence that any of the wit-
nesses said anything to Mannina during the unrecorded part
of each interview that would have exculpated Hart or un-
dermined the credibility of the witnesses or their identifica-
tions of Hart. The record establishes beyond reasonable dis-
pute that during the unrecorded parts of the interviews, the
witnesses merely confirmed that they recognized someone
in the photo array. Adding to the affidavit the fact that Man-
nina had failed to record her initial exchanges with each
witness would not have negated probable cause.
The same is true for Mannina’s failure to include Bluiett’s
“pretty sure” qualification. Although we believe she should
have included this qualification in the affidavit, in the end its
omission was not material. Three other witnesses identified
Hart, and none of them expressed such uncertainty. Adding
Bluiett’s qualification would not have negated probable
cause. See Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir.
2000) (“Applying this standard, we have consistently held
that an identification or a report from a single, credible vic-
tim or eyewitness can provide the basis for probable
cause.”).
In sum, the summary judgment record would not permit
a reasonable trier of fact to find that Mannina made false or
misleading statements that were necessary to the probable
cause determination. Defendants were entitled to summary
judgment on Count I.
24 No. 14-1347
C. Abuse of Process
Hart also asserts what he calls a constitutional claim for
abuse of process. He assumes, without explaining, that this
claim is cognizable under § 1983, citing both the Fourth and
Fourteenth Amendments. The only authority he cites for this
proposition is Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013),
which dealt only with a malicious prosecution claim.
Assuming abuse of process is cognizable under § 1983,
we would look to state law to determine the elements of the
claim, as we do with malicious prosecution claims. Cf. Wash-
ington v. Summerville, 127 F.3d 552, 558–59 (7th Cir. 1997). In
Indiana, the elements of abuse of process are “(1) an ulterior
purpose, and (2) a willful act in the use of the process not
proper in the regular conduct of the proceeding.” Lindsay v.
Jenkins, 574 N.E.2d 324, 326 (Ind. App. 1991); see also Golden
Years Homestead, Inc. v. Buckland, 557 F.3d 457, 464 (7th Cir.
2009) (Indiana law). We have questions about the constitu-
tional foundation for Hart’s claim, though.
Abuse of process, unlike malicious prosecution, typically
focuses on the actions of those prosecuting the case after le-
gal process has been initiated (i.e., after probable cause has
been established). See Nightingale Home Healthcare, Inc. v. An-
odyne Therapy, LLC, 626 F.3d 958, 963 (7th Cir. 2010) (explain-
ing difference between malicious prosecution and abuse of
process); see also Dan B. Dobbs et al., The Law of Torts § 594
(2d ed. 2015) (“[T]he abuse of process claim permits the
plaintiff to recover without showing the traditional want of
probable cause for the original suit and without showing
termination of that suit.”); Restatement (Second) of Torts
§ 682, cmt. a (1977) (“The gravamen of the misconduct … is
not the wrongful procurement of legal process or the wrong-
No. 14-1347 25
ful initiation of criminal or civil proceedings; it is the misuse
of process, no matter how properly obtained, for any pur-
pose other than that which it was designed to accomplish.”).
It is not clear to us that abuse of process is cognizable as a
Fourth Amendment claim. Abuse of process is an awkward
fit for the Fourth Amendment for two reasons. First, the pro-
tections of the Fourth Amendment drop out of the picture
after the detainee has received legal process, typically an ar-
raignment. See Llovet v. City of Chicago, 761 F.3d 759, 763 (7th
Cir. 2014) (“Heck [v. Humphrey, 512 U.S. 477, 484 (1994)] and
Wallace [v. Kato, 549 U.S. 384, 389 (2007)] imply that once de-
tention by reason of arrest turns into detention by reason of
arraignment—once police action gives way to legal pro-
cess—the Fourth Amendment falls out of the picture and the
detainee’s claim that the detention is improper becomes a
claim of malicious prosecution violative of due process.”).
We also question whether Hart has sued the right defend-
ants on this theory. After he was arraigned, it was the prose-
cutors, not the police officers, who controlled the prosecu-
tion and decided to press forward, and prosecutors are enti-
tled to absolute civil immunity for such decisions. See gener-
ally Kalina v. Fletcher, 522 U.S. 118, 125 (1997).
Second, we do not normally scrutinize the subjective mo-
tivations of law enforcement officials under the Fourth
Amendment. Cf. Brigham City v. Stuart, 547 U.S. 398, 404–05
(2006) (reasonableness of warrantless entry into home under
exigent circumstances exception does not depend on actual
motivations of the officers involved); Whren v. United States,
517 U.S. 806, 812–13 (1996) (reasonableness of traffic stops
does not depend on actual motivations of the officers in-
volved); Scherr v. City of Chicago, 757 F.3d 593, 597 (7th Cir.
26 No. 14-1347
2014) (no violation of Fourth Amendment where search or
seizure is supported by probable cause, even if police acted
for improper reasons). Yet that is what we would have to do
to determine whether any of the defendants had an “ulterior
purpose” in participating in the criminal case against Hart.2
Hart’s other potential constitutional basis for his federal
abuse of process claim is the Due Process Clause of the Four-
teenth Amendment. That theory is closer to the theory rec-
ognized in Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), and
appears to be embraced by several other circuits. See Erikson
v. Pawnee County Bd. of County Comm’rs, 263 F.3d 1151, 1155
n.5 (10th Cir. 2001) (recognizing claim for abuse of process
under § 1983); Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)
(same); Rose v. Bartle, 871 F.2d 331, 350 & n.17 (3d Cir. 1989)
(same). But Hart’s allegations in this case are substantively
identical to those supporting his claims for false arrest and
malicious prosecution. The only willful act identified in the
complaint is the detectives’ “making false, misleading, or in-
2 There is language in Smart v. Board of Trustees of the University of Il-
linois, 34 F.3d 432, 434 (7th Cir. 1994), decided before Newsome v. McCabe,
256 F.3d 747 (7th Cir. 2001), and Julian v. Hanna, 732 F.3d 842 (7th Cir.
2013), suggesting that a claim for abuse of process could be cognizable
under the Fourth Amendment: “If malicious prosecution or abuse of
process is committed by state actors and results in the arrest or other sei-
zure of the defendant, there is an infringement of liberty, but we now
know that the defendant’s only constitutional remedy is under the
Fourth Amendment (as made applicable to the states by the Fourteenth),
and not under the due process clause directly.” 34 F.3d at 434. But the
underlying claim in Smart was based on the First Amendment, and the
opinion did not grapple with the problems we have identified in recog-
nizing the claim under the Fourth Amendment. Smart did not establish
that a claim for abuse of process is cognizable under the Fourth
Amendment.
No. 14-1347 27
complete statements to judicial officers and suppressing evi-
dence.” On appeal, Hart does not address this allegation and
fails to designate any evidence supporting it. He relies in-
stead on the arguments we have already rejected about the
existence of probable cause and the adequacy of the proba-
ble cause affidavit.
In any event then, and assuming for purposes of argu-
ment that a claim for abuse of process might be cognizable
under § 1983—either under the Fourth Amendment as ap-
plied to the states under the Fourteenth Amendment or di-
rectly under the Due Process Clause of the Fourteenth
Amendment—Hart has failed to present a genuine issue of
material fact on this claim. Defendants were entitled to
summary judgment on Count IV.3
3 There was a harmless error in the disposition of Counts III and IV.
The district court dismissed these counts on the pleadings. The reason it
gave turned out to be incorrect in light of our later decision in Julian v.
Hanna, 732 F.3d 842, 846–47 (7th Cir. 2013) (federal claims based on
wrongful arrest and malicious prosecution survived because Indiana tort
remedies are inadequate). But Hart had a full opportunity to develop the
record on the existence of probable cause. See Loeb Industries, Inc. v. Sumi-
tomo Corp., 306 F.3d 469, 479–80 (7th Cir. 2002) (where non-moving party
had “full opportunity to bring all material factual disputes to the court’s
attention,” court reviewed Rule 12(b)(6) dismissal under the standard for
summary judgment); see also, e.g., Gibb v. Scott, 958 F.2d 814, 816 (8th
Cir. 1992) (“A failure of this type is harmless if the nonmoving party had
an adequate opportunity to respond to the motion and material facts
were neither disputed nor missing from the record.”).
28 No. 14-1347
III. The Sixth Amendment Claim
We now turn to Hart’s claim that the nearly two-year de-
lay between his arrest and the dismissal of the charges vio-
lated his right to a speedy trial under the Sixth Amendment.
We doubt that any of the defendant police officers could be
proper defendants for such a claim, but that issue has not
been presented. The district court held that Hart’s claim
failed for two reasons: (1) Hart’s right to a speedy trial was
not violated, and (2) even if there was a violation, Hart could
not win money damages under § 1983 because dismissal of
the charges would be the only proper remedy. We agree on
the first point and do not address the second.4
The Sixth Amendment provides that in “all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial.” The speedy trial right attaches when a de-
fendant is “indicted, arrested, or otherwise officially ac-
cused.” United States v. MacDonald, 456 U.S. 1, 6 (1982), citing
United States v. Marion, 404 U.S. 307, 313 (1971). Hart’s
speedy trial right attached when he was arrested on Decem-
ber 3, 2008. The charges were dismissed on October 20, 2010.
This nearly two-year delay is long enough to trigger analysis
under the four-factor framework of Barker v. Wingo, 407 U.S.
514, 530 (1972). See United States v. Arceo, 535 F.3d 679, 684
(7th Cir. 2008) (a delay approaching one year is presumptive-
4In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court said that
dismissal of the charges was the “only possible remedy,” but it said this
in a direct criminal appeal where the prosecutor had argued that less
drastic remedies such as applying the exclusionary rule to certain evi-
dence or granting a new trial would be more appropriate than outright
dismissal. See id. at 522–23. The Court had no occasion to consider
whether damages are available in a civil case under § 1983.
No. 14-1347 29
ly prejudicial); United States v. Oriedo, 498 F.3d 593, 597 (7th
Cir. 2007) (same).
Under the Barker framework, whether a defendant’s right
to a speedy trial has been violated depends on four factors:
(1) the length of the delay, (2) the reasons for the delay, (3)
whether the defendant asserted his right to a speedy trial,
and (4) any prejudice the defendant suffered by the delay.
Barker, 407 U.S. at 530; see also Doggett v. United States, 505
U.S. 647, 651 (1992).
Even construing the record in the light most favorable to
Hart, the second and third factors weigh decisively against
him. Hart moved for five separate continuances and joined
in two other motions filed by the prosecution, and he never
asserted his right to a speedy trial. Hart counters that these
continuances should not count against him because they
were caused by the prosecution’s misconduct during discov-
ery. In his reply brief, for example, he claims that the contin-
uances were necessary because IMPD “destroyed, concealed,
and manufactured” evidence, putting him in the impossible
position of demanding a speedy trial and risking that
IMPD’s “misconduct” would result in a wrongful conviction.
But this conclusory assertion and others like it throughout
his briefing do not persuade us. Hart fails to identify specific
instances of discovery misconduct supported by competent
evidence. Defendants were entitled to summary judgment
on Count V.
IV. The Supervisory Liability and Monell Claims
Because the district court properly dismissed Hart’s
claims against Detective Mannina and the other police offic-
ers who participated directly in the investigation leading to
30 No. 14-1347
Hart’s arrest, Hart’s claims against several supervisory de-
fendants and against the City of Indianapolis also fail. See
Los Angeles v. Heller, 475 U.S. 796 (1986); Matthews v. City of
East St. Louis, 675 F.3d 703, 708–09 (7th Cir. 2012); Jenkins v.
Bartlett, 487 F.3d 482, 492 (7th Cir. 2007).
V. Hart’s Motion to Compel Discovery
Finally, Hart challenges a discovery ruling by the district
court. On October 2, 2012 Hart sent a letter to defendants
identifying various categories of discovery responses he
found inadequate. Defense counsel promised to respond to
the letter by November 30, 2012 but failed to do so. Then, in
June 2013, defense counsel orally told Hart’s counsel that
there were no deficiencies in defendants’ discovery respons-
es and promised to draft a formal, written response to the
letter. When the formal response was not forthcoming, Hart
moved for an order compelling the defendants “to produce
documents and provide information as requested in [his]
October 2, 2012 discovery dispute letter.” The district court
denied the motion.
We review that ruling for an abuse of discretion. E.g.,
Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir.
2001). We will not reverse the district court’s ruling “absent a
clear showing that the denial of discovery resulted in actual
and substantial prejudice” to Hart. Id.
We find no abuse of discretion here. In a thorough writ-
ten order, the district court explained that Hart’s motion fo-
cused on the failure by defense counsel to respond to the Oc-
tober 2012 deficiency letter in writing but did not explain
adequately the substance of the parties’ continuing discovery
dispute. By the time Hart actually filed the motion in July
No. 14-1347 31
2013 (seven months after the letter was sent), defendants had
diligently provided discovery and answered Hart’s numer-
ous written discovery requests. The court also found that
Hart had failed to specify the discovery items that were still
outstanding at the time the motion was filed. Hart has
demonstrated neither an abuse of discretion nor actual and
substantial prejudice.
The judgment of the district court is AFFIRMED.