Emmanuel Mervilus v. Union County

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-3185
EMMANUEL MERVILUS,
Appellant
v.
UNION COUNTY; DANIEL VANISKA; CHIEF OF
POLICE RONALD SIMON; *PACE KAMINSKAS, as
Executor of the Estate of John Kaminskas; EDWARD
BENENATI; ROBERT PEREZ; MICHAEL BARROS;
JOHN DOE IDENTIFICATION OFFICERS
(*Amended per Court’s Order dated 1/05/2023)
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-14-cv-07470)
District Judge: Esther Salas
Argued on January 19, 2023

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Before: AMBRO*, PORTER, and FREEMAN, Circuit
Judges
(Opinion Filed: July 13, 2023)
David B. Shanies [Argued]
David B. Shanies Law Office
110 West 40th Street
New York, NY 10018
Steven J. Zweig
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellant
Steven H. Merman
Moshood Muftau [Argued]
Office of County Counsel
10 Elizabethtown Plaza
Union County Administration Building
Elizabeth, NJ 07207
*Judge Ambro assumed senior status on February 6,
2023.

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Peter H. Spaeth
Wolff Helies Duggan Spaeth & Lucas
Suite 201-202
2517 Highway 35
P. O. Box 320, Building K
Manasquan, NJ 08736
Edward J. Kologi
Michael S. Simitz [Argued]
Kologi & Simitz
500 N. Wood Avenue
Suite 4B
Linden, NJ 07036
Catherine M. Deappolonio
Robert F. Renaud
Renaud Colicchio
190 North Avenue E
3rd Floor
Cranford, NJ 07016
Robert F. Varady
LaCorte Bundy Varady & Kinsella
989 Bonel Court
Union, NJ 07083
Counsel for Appellees

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OPINION OF THE COURT
AMBRO, Circuit Judge
Emmanuel Mervilus sued Detective John Kaminskas
for fabricating polygraph evidence and Kaminskas’s
supervisors for failing to train or supervise his polygraph work.
We decide two principal questions. First, did Mervilus
introduce sufficient evidence to try his fabrication-of-evidence
claim against Kaminskas? We hold he did. Second, is his
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), claim
against Kaminskas’s employer, Union County, viable even if
Kaminskas did not fabricate evidence? We hold it is because
a jury might not render an inconsistent verdict if it found the
County liable but Kaminskas not culpable.
I. Background
In October 2006, Mervilus lived in New Jersey with his
mother, a cancer patient, and his two younger siblings. He
worked at a cooking oil company and, at age 22,
singlehandedly provided for his household. His life changed
drastically that month when he and a friend, Daniel Desire,
went for a late-night walk. During it, they watched a man, later
identified as Miguel Abreu, flag down a police car, reveal to
officers his stab wound, and accuse Mervilus and Desire of
robbing and stabbing him. Indignant, Mervilus stayed at the
scene and insisted that Abreu look closely at them to
understand he had identified the wrong men. But to no avail.

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Officers arrested Mervilus and charged him with first degree
robbery, N.J.S.A. § 2C:15–1, second degree aggravated
assault, N.J.S.A. § 2C:12–1b(1), third degree aggravated
assault, N.J.S.A. § 2C:12–1b(2), and third degree possession
of a weapon for an unlawful purpose, N.J.S.A.§ 2C:39–49d.
Eager to clear his name, Mervilus agreed to take a
polygraph examination. Earlier that year, officers dismissed
drug charges after a polygraph exam indicated he truthfully
denied responsibility. So Mervilus agreed to be tested again
because he “believed, at the time, [polygraphs] tell the truth.”
A567.
Polygraph science aspires to determine an examinee’s
truthfulness by measuring his or her physiological responses to
a series of questions. “Polygraph tests are psychological tests
that use physiological measures to make inferences about a
person’s psychological state when that person is asked a series
of questions to which he or she must respond with either a truth
or lie.” A416. Put simply, they are premised on the belief that
liars have certain “tells” that are detectable through sudden
changes to their blood pressure, pulse rate, perspiration, and
respiration.1
1 Polygraph examinations are the subject of much
criticism and “do not enjoy general acceptance from the
scientific community.” United States v. Laurent, 603 F. Supp.
3d 1247, 1257 (S.D. Fla. 2022). Thus, most states generally do
not permit their admission, while other states only admit such
evidence on the consent of both parties. See State v. A.O., 965
A.2d 152, 161–62 (N.J. 2009) (collecting cases). This case,
however, does not require us to scrutinize polygraphs
generally, and so we do not wade into that debate.

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When Mervilus sat for his exam, New Jersey permitted
polygraph results to be admitted at trial if there was a
“stipulation [that] is clear, unequivocal and complete, freely
entered into with full knowledge of the right to refuse the test
and the consequences involved in taking it.” State v. McDavitt,
297 A.2d 849, 855 (N.J. 1972). The State also required
examiners to be “qualified and the test administered in
accordance with established polygraph techniques.” Id. Union
County and Mervilus entered a stipulation reflecting those
requirements. He consented to be tested, agreed the results
would be admissible, and waived his “right to introduce
another polygraph expert . . . in reference to the original
polygraph expert’s testimony.” A1798–99. Further, Union
County guaranteed the examiner would be “an expert in all
phases of both administering polygraph examinations and in
the analysis of polygraph chart recordings.” A1798.
The Union County Police Department selected
Kaminskas, its only certified polygraph examiner, to conduct
the exam.2 When the Police Department bought a polygraph
in the mid-1990s, its Chief allowed Kaminskas to learn how to
conduct examinations. He did so by attending the National
Training Center, where he learned the “Arther Method” from
its founder, Richard Arther.
2 Kaminskas died while this appeal was pending. We
granted Mervilus’s motion to substitute in Kaminskas’ place
the executor of his estate. See Order to Substitute Party, D.I.
50 (Jan. 5, 2023).

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The Arther Method is an outlier in the polygraph world.
It is not accredited by the American Polygraph Association.
An authoritative polygraph treatise published in 2002 never
mentioned it. And a peer-reviewed list of validated polygraph
techniques, published in 2006, also did not include it. See
Donald J. Krapohl, Validated Polygraph Techniques, 35
Polygraph 123, 149 (2006). Defendants’ expert, Dr. Palmatier,
conceded it has not “been subjected to peer review.” A1197.
And juxtaposing it with conventional polygraph methods
explains why it was so poorly regarded within the field.
The Arther Method relies heavily on subjective
observations to test whether an examinee is truthful, in contrast
to conventional polygraph approaches that primarily use
objective physiological data. Among the 24 non-physiological
factors the Method treats as instructive are the following:
• If the examinee is local and arrives with a third
party, he or she is probably lying.
• First-born children are usually more nervous and
ambitious.
• The more thoroughly an examinee washes his or her
hands, the more likely he or she is telling the truth.
• “The sexier a lady is dressed, the more likely she is
lying.” A750.
• Liars will either sleep too much or too little on the
night before the examination. Sleeping too little is
the mark of someone who drank too much the night
prior, which liars tend to do. But sleeping too much,
on the other hand, suggests the examinee is an
escapist.

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• The examiner should instruct the examinee to read a
journal article before the examination. An examinee
who reads that article is more likely to be truthful.
The Arther Method also incorporates the physiological
analysis used in conventional polygraph methods. However,
although conventional methods consider the absence of
physiological reactions to reveal truthfulness, this one teaches
that “at least 85% of the non-reactors are LYING to the crime
questions.” A1787 (emphasis in original). Indeed, the Method
believes many liars’ physiological reactions are not detected
because their identity or social standing permits them to lie
without guilt, thus not triggering the typical physiological
responses. For example, the Method teaches certain ethnic
groups “do[] not experience any guilt feelings when [they] lie[]
. . . because [they do] not consider lying to be socially
unacceptable.” Id. And the same goes for those with low
social standing, who will not care “what will happen if [they
are] exposed as [] liar[s].” Id. Thus, though the Arther Method
considers physiological responses in its analysis, it relies on
prejudiced assumptions to dismiss what other methods deem
an indicator of truthfulness.
In May 2007, Kaminskas tested Mervilus to determine
whether he stabbed and robbed Abreu. In line with the
Method’s teachings, Kaminskas first asked Mervilus a series
of personal questions. Among them: Was Mervilus the first-
born children of his parents?; Who raised him?; Was he
married?; Was he a high school graduate? After Kaminskas
recorded his own observations, he tested Mervilus’s
physiological reactions to a series of eight questions. Of them,
four were relevant questions pertaining to the crime at issue
and four were control questions.

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The four relevant questions were:
R3K: Do you know for sure who robbed and
stabbed someone on 10/19/06 in Elizabeth?
R5: Did you rob someone of their backpack on
10/19/06 in Elizabeth?
R8: Is the person who was robbed and stabbed
wrong when he said you held him and took his
backpack?
R9: Were you holding someone when Daniel
Desire stabbed them on 10/19/06 in Elizabeth?
Mervilus denied any responsibility for the crime and
therefore answered the latter three questions with a “no.” But
Kaminskas’s first question, R3K, did not ask whether he
committed the crime. Instead, it asked whether he knew “for
sure” who did. He answered with a “yes,” explaining that
someone told him who committed the crime. But Kaminskas
pushed back, telling Mervilus he could not answer he knew
“for sure” who committed the crime based on hearsay.
Kaminskas then re-asked the question and Mervilus answered
it the same way. But Kaminskas again insisted that he could
not truthfully answer the question in the affirmative based on
what he heard secondhand. So when Kaminskas asked the
question again, Mervilus finally relented by changing his
answer to a “no.”
Ultimately, Kaminskas concluded Mervilus was being
deceptive when he denied responsibility for the crime.
Kaminskas partly relied on a software program to analyze
Mervilus’s polygraph recordings, and that program indicated
“probable deception.” However, the only relevant question
where Mervilus’s physiological responses signaled deception

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was for R3K—the question for which Kaminskas insisted
Mervilus change his answer.
Kaminskas operated his polygraph practice with no
oversight from the Police Department. When he examined
Mervilus, the Department had no policies or procedures related
to polygraph tests. The Department’s then-Chief, Daniel
Vaniska, conceded he had only a “basic understanding” of
polygraphs at the time of Mervilus’s examination. A1304–05.
Kaminskas’s examinations were never peer-reviewed by
Police Department personnel or others in the field. And he had
sole discretion on where he received continuing education.
Thus, Kaminskas relayed to the prosecution his conclusion that
Mervilus was lying without anyone checking his work.
Mervilus stood trial in 2008. At it, Abreu failed to
identify him, pointing instead to a different Black man. But in
line with Mervilus and Union County’s stipulation, the Court
admitted the polygraph exam done by Kaminskas and
permitted him to testify. He stated that “innocent” examinees
will react differently to certain questions than “a person [who]
actually did the crime,” A1509–12, and those who “react more
to [r]elevant [q]uestions on a test” are lying. A1511. He
further asserted he never had a confirmed mistake on a test.
Because the stipulation provided that Kaminskas would
be the only polygraph expert to testify, Mervilus was not able
to challenge that testimony meaningfully. Ultimately, the jury
found him guilty of first-degree robbery, second-degree
aggravated assault with intent to cause serious bodily injury,
and third-degree aggravated assault with a deadly weapon.
The Court sentenced him to eleven years in prison.

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However, after several years’ imprisonment, Mervilus
successfully overturned his conviction. State v. Mervilus, 12
A.3d 258 (N.J. Super. Ct. App. Div. 2011). The New Jersey
Superior Court, Appellate Division, held Kaminskas’s
testimony was improper and prejudicial. Id. at 262–64. It
remanded the case for a new trial, requiring the State to
establish the polygraph evidence’s reliability prior to
introducing it at trial. Id. at 264. That didn’t occur because,
when the State re-tried Mervilus, it did not seek to admit the
polygraph evidence or have Kaminskas testify. Again, the
victim did not identify Mervilus. And after a mere thirty
minutes of deliberation, the jury acquitted him.
In 2014, Mervilus sued Kaminskas, Chief Vaniska in
his personal capacity, Union County, and other now-dismissed
defendants under 42 U.S.C. § 1983 and the New Jersey Civil
Rights Act, N.J.S.A § 10:6-1. Mervilus claimed Kaminskas
fabricated the polygraph evidence and falsely testified at trial,
Vaniska and the County failed to train and supervise
Kaminskas, and the County had a policy, practice, or custom
of conducting polygraphs in a manner that caused an
unreasonable risk of Fourth and Fourteenth Amendment
deprivations.3
The United States District Court for the District of New
Jersey granted summary judgment for Kaminskas, Vaniska,
and the County. Mervilus v. Union Cnty., No. 14-cv-7470,
2021 WL 4963293 (D.N.J. Oct. 26, 2021). Looking first to the
claim against Kaminskas, the Court concluded the evidence
3 The District Court previously dismissed additional
claims in the complaint, and Mervilus does not appeal those
dismissals.

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suggested only that his polygraph methods were flawed and
results incorrect, not that he acted in bad faith—an element of
the fabrication claim. Id. at *5–10. After holding the evidence
failed to support the claim against Kaminskas, the Court
granted Vaniska and Union County’s motion without
analyzing the merits of the claims against them. In its view,
because Mervilus did not show “evidence to establish that
Kaminskas committed a constitutional violation, [his] Monell
claims against the Union County Defendants must fail.” Id. at
*11. The Court did not analyze the individual claims against
Vaniska. This appeal followed.
II. Jurisdiction & Standard of Review
The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1367 because, for the former, Mervilus brought
claims under 42 U.S.C. § 1983 and, for the latter, the pendent
state law claims falling under the district courts’ supplemental
jurisdiction. We have appellate jurisdiction under 28 U.S.C. §
1291.
We give a fresh review to a district court’s entry of
summary judgment. Ellis v. Westinghouse Elec. Co., LLC, 11
F.4th 221, 229 (3d Cir. 2021). We must “view the record and
draw inferences in a light most favorable to the non-moving
party,” In re IKON Office Solutions, Inc., 277 F.3d 658, 666
(3d Cir. 2002), and ask if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). For us to affirm, we must conclude that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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III. Analysis
We turn to the merits. First, is the evidence sufficient
for Mervilus to try his fabrication claim against Kaminskas?
In answering this question, we clarify the state of mind
necessary to sustain that claim. Second, we decide if
Mervilus’s Monell claims against Union County are viable if
Kaminskas is ultimately found not liable.4
A. A Reasonable Jury Could Find Kaminskas
Fabricated Evidence.
“[I]f a defendant has been convicted at a trial at which
the prosecution has used fabricated evidence, the defendant has
a stand-alone claim under section 1983 based on the Fourteenth
Amendment.” Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir.
2014). That Amendment is the constitutional source of a
fabrication claim for two reasons. First, its due process
guarantee ensures criminal defendants a fair trial. See Black v.
Montgomery Cnty., 835 F.3d 358, 370 (3d Cir. 2016)
(“Fabricated evidence is an affront to due process of law, and
state actors seeking to frame citizens undermine fundamental
fairness and are responsible for ‘corruption of the truth-seeking
4 The New Jersey Civil Rights Act is “interpreted
analogously to § 1983,” so Mervilus’s claims under that statute
rise and fall with his parallel § 1983 claims. Est. of Roman v.
City of Newark, 914 F.3d 789, 796 n.5 (3d Cir. 2019). Thus,
the District Court did not analyze those claims separate from
the § 1983 claims, and we do the same.

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function of the trial process.’” (quoting United States v. Agurs,
427 U.S. 97, 104 (1976))). Second, it guards against unlawful
seizures post-conviction. See Halsey, 750 F.3d at 291
(explaining that the Fourth Amendment protects liberty
interests only until trial, and the Fourteenth Amendment
protects against unlawful seizures “through and after trial.”).
For Mervilus to withstand Kaminskas’s motion for
summary judgment, he must bring “persuasive evidence
supporting a conclusion that [Kaminskas was] aware that
evidence is incorrect or that [it was] offered in bad faith.”
Black, 835 F.3d at 372 (quoting Halsey, 750 F.3d at 295
(internal quotation marks omitted)). Evidence is not fabricated
if it “is incorrect or simply disputed.” Halsey, 750 F.3d. at 295.
Were it otherwise, every acquittal could spawn a fabrication
claim. Because this intent requirement is stringent, “it will be
an unusual case in which a police officer cannot obtain a
summary judgment in a civil action charging him with having
fabricated evidence.” Id.
1. “Bad Faith” Includes Willful,
Knowing, and Reckless Fabrication.
We have yet to clarify the scope of “bad faith” in the
fabrication context. Obviously it encompasses the knowing or
willful submission of false evidence. See Fabricate, MERRIAM
WEBSTER’S THIRD NEW INT’L DICTIONARY (1993) (“3a:
Invent, Formulate: Create; 3b(1): to make up with intent to
deceive (2): Forge.”); Fabricate, BLACK’S LAW DICTIONARY
(11th ed. 2019) (“4. To invent, forge, or devise falsely.”). But
does it include recklessly submitting that evidence?

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Recall that the fabrication claim stems from the
Fourteenth Amendment’s guarantee of due process, which
ensures individuals are not unlawfully deprived of liberty after
a fundamentally unfair trial. In other contexts where the law
protects those interests, recklessness is enough. Consider, for
example, claims by persons alleging they were unlawfully
seized based on a warrant obtained through the affiant’s false
statements. A plaintiff bringing this claim must show “(1) that
the [affiant] ‘knowingly and deliberately, or with a reckless
disregard for the truth, made false statements or omissions that
create a falsehood in applying for a warrant’; and (2) that ‘such
statements or omissions are material, or necessary, to the
finding of probable cause.’” Wilson v. Russo, 212 F.3d 781,
786–87 (3d Cir. 2000) (emphasis added) (quoting Sherwood v.
Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)). The same
standard applies to a malicious-prosecution claim, which
requires the plaintiff to prove he, among other things, suffered
a deprivation of liberty from a prosecution brought with a
reckless disregard for the truth in determining probable cause.
See Geness v. Cox, 902 F.3d 344, 356–57 (3d Cir. 2018).
It would be anomalous to treat recklessness as sufficient
in those contexts, but not here. An individual who furnishes
inculpatory evidence while consciously disregarding a
substantial risk it is false behaves culpably, heightens the risk
of a wrongful conviction, and “offends some principle of
justice so rooted in the traditions and conscience of our people
to be ranked as fundamental.” Medina v. California, 505 U.S.
437, 446 (1992) (cleaned up). So we rule that Mervilus’s
fabrication-of-evidence claim requires persuasive evidence
Kaminskas formulated or submitted false evidence willfully,
knowingly, or with a reckless disregard for its truth.

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2. There is Sufficient Evidence
Kaminskas Acted in Bad Faith.
Having clarified the state of mind necessary to make out
a fabrication claim, we now review whether Mervilus
submitted enough evidence for a jury to find the standard met.
We begin by noting evidence Kaminskas adhered to the Arther
method despite red flags as to its validity and reliability. By
the time he conducted Mervilus’s examination, Kaminskas had
read a National Academy of Science report concluding
polygraph science was neither valid nor reliable. A reasonable
polygraphist might then attempt to ensure the method he or she
employs is sound. But Kaminskas admitted he never saw any
support for many of the Method’s teachings. Indeed, he did
not follow some of what it taught. From this a jury could
conclude he knew that polygraph science was generally
suspect, and his approach especially so. Yet he proceeded with
it anyway.
A jury might also find that, in examining Mervilus,
Kaminskas failed to adhere to accepted practices in the field of
polygraphy that are instituted to avoid bias against innocent
suspects. Recall he instructed Mervilus to change his answer
for a single question, R3K, the one that triggered physiological
reactions purportedly indicating deception. Mervilus’s expert,
Dr. Honts, stated this technique “was highly likely to cause Mr.
Mervilus to have large physiological reactions,” and the
question “posed a substantial risk of skewing the examination
results against an actually innocent subject.” A425.
Kaminskas’s expert, Dr. Palmatier, did not address this point.

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So the notion that Kaminskas neglected standard practices
designed to avoid false positives stands unrebutted and may
prove persuasive to a jury.
In addition, a jury could conclude Kaminskas acted in
bad faith when he reported Mervilus was lying because neither
expert concurred with Kaminskas’s conclusion that the data
from Mervilus’s exam suggested deception. Dr. Honts
explained the physiological data strongly indicated Mervilus
was being truthful in asserting his innocence. Dr. Palmatier,
on the other hand, asserted the results supported a conclusion
of “Deception Indicated” or “Inconclusive.” Critically, an
“inconclusive” result would not have been admissible evidence
under the stipulation. See A1799 (“[I]nconclusive results shall
not be introduced into evidence.”). Thus, neither expert fully
adopted Kaminskas’s conclusion that the physiological data
proved Mervilus was lying.
Considering the evidence holistically, we hold Mervilus
brought sufficient evidence that Kaminskas fabricated his
polygraph examination. This is so because, viewing the
evidence in the light most favorable to Mervilus, Kaminskas
had reason to doubt his method’s validity and reliability, used
biased techniques to examine Mervilus, and rendered a
conclusion not compelled by the data. So we disagree with the
District Court’s observation that the evidence merely “suggests
that Kaminskas knew superior polygraph methods may have
existed.” A22–30. Although knowingly employing an inferior
method does not per se amount to a constitutional violation, we
do not perceive Mervilus’s argument to be that Kaminskas
behaved culpably for not using some other, superior method.
We thus vacate the District Court’s summary judgment for
Kaminskas and remand for further proceedings consistent with
this opinion.

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3. Kaminskas Does Not Have Qualified
Immunity.
After holding Mervilus’s claim against Kaminskas
failed, the District Court did not address qualified immunity.
Because the record is sufficiently developed, we do so now.
See Beers-Capitol v. Whetzel, 256 F.3d 120, 126 n.1 (3d Cir.
2001) (reaching qualified immunity on appeal from a decision
that did not reach the issue); Est. of Smith v. Marasco, 318 F.3d
497, 511 (3d Cir. 2003) (refusing to reach qualified immunity
“in recognition that the record is unclear as to the relationship
between each defendant’s specific conduct and the rights at
issue”).
The right at issue is the due process protection against
criminal investigators’ fabrication of inculpatory evidence
against a defendant. Prior to the events in question, that right
had long been recognized by the Supreme Court and Courts of
Appeal, including this one. Pyle v. Kansas, 317 U.S. 213, 216
(1942); Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam);
Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014); U.S. ex
rel. Moore v. Koelzer, 457 F.2d 892, 893 (3d Cir. 1972);
Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001);
Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000); Ricciuti v.
NYC Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); Geter v.
Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988); Anthony v.
Baker, 767 F.2d 657, 662 (10th Cir. 1985). Thus, because a
jury may find that Kaminskas fabricated the polygraph
evidence, we cannot conclude he is immune from suit.

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B. Union County May Be Liable Even if Kaminskas
Did Not Fabricate Evidence.
Mervilus claims his wrongful conviction stems from
two Union County policies, practices, or customs. First, he
asserts the County was deliberately indifferent to his
constitutional rights by failing to train or supervise Kaminskas.
Second, Mervilus alleges it maintained a policy of convincing
suspects to stipulate to polygraph exams, conducting those
exams in a biased way, and then using the skewed results to
convict them wrongfully.
After holding that no reasonable jury could find
Kaminskas liable on the evidence Mervilus presented, the
District Court rejected his Monell claims without reviewing the
merits. In its view, “[b]ecause [he] has not adduced evidence
to establish that Kaminskas committed a constitutional
violation, his Monell claims . . . must fail.” A35. We disagree.
“[A] municipality can be held liable under Monell, even
when its officers are not, unless such a finding would create an
inconsistent verdict.” Thomas v. Cook Cnty. Sheriff’s Dep’t,
604 F.3d 293, 305 (7th Cir. 2010) (emphasis in original).
Where it is possible for the Monell defendant to cause
constitutional harm without any individual defendant violating
the plaintiff’s rights, it is not inconsistent for a jury to find only
the Monell defendant liable. See Speer v. City of Wynne, 276
F.3d 980, 985–86 (8th Cir. 2002) (“[S]ituations may arise
where the combined actions of multiple officials or employees
may give rise to a constitutional violation, supporting
municipal liability, but where no one individual’s actions are
sufficient to establish personal liability for the violation.”);

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Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) (“If a
plaintiff establishes he suffered a constitutional injury by the
City, the fact that individual officers are exonerated is
immaterial to liability under § 1983.” (emphasis in original));
Barrett v. Orange Cty. Human Rights Comm’n, 194 F.3d 341,
350 (2d Cir. 1999) (“[U]nder Monell[,] municipal liability for
constitutional injuries may be found to exist even in the
absence of individual liability, at least so long as the injuries
complained of are not solely attributable to the actions of
named individual defendants.”). But where a finding for the
individual defendant necessarily means the plaintiff suffered
no constitutional deprivation, there is no basis for a Monell
claim, and thus it too must fall. See Mulholland v. Gov’t Cnty.
of Berks, Pa., 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is
well-settled that, if there is no violation in the first place, there
can be no derivative municipal claim.”) (emphasis added).
Here, it would be consistent for the jury to find
Kaminskas not liable because he lacked bad faith in conducting
the exam, while simultaneously holding the County liable for
failing to train or supervise him. Cf. Fagan v. City of Vineland,
22 F.3d 1283, 1292 (3d Cir. 1994) (“It is easy to imagine a
situation where an improperly trained police officer may be
ignorant of the danger created by his actions and inflicts
injury.”). Thus, Mervilus may ultimately prevail on his failure
to train and supervise theory against Union County even if
Kaminskas avoids liability. On the other hand, Mervilus’s
second Monell theory— that the County customarily fabricated
exams—depends on Kaminskas being complicit in that
scheme, and thus would be untenable if the jury finds for
Kaminskas.

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To be clear, our analysis is limited to determining
whether either of Mervilus’s Monell theories depends on his
claim against Kaminskas. We express no view on whether his
claims based on these theories are triable. The result is a
remand for the District Court to decide in the first instance as
to Union County.
* * *
A reasonable jury could find Kaminskas fabricated the
polygraph exam. We therefore vacate and remand the District
Court’s summary judgment for him. We also vacate and
remand its summary judgment for Union County on the Monell
claims. 5
5 For the District Court’s benefit on remand, we clear up
additional points of confusion. Mervilus brought counts 2, 3,
5, and 6—each alleging unconstitutional polygraph policies,
practices, or customs and the failure to train and supervise
Kaminskas—against Vaniska and Union County. But only
counts 2 and 5 are styled as Monell actions. This matters for
two reasons. First, Mervilus sued Vaniska in his personal
capacity, and thus he is an improper Monell defendant. We
therefore affirm the District Court’s summary judgment for
Vaniska on counts 2 and 5 only; we vacate and remand on
counts 3 and 6 with no view expressed on the merits. Second,
because a Monell claim is the way to sue municipalities, we
affirm the summary judgment for Union County on counts 3
and 6, which, to repeat, are not Monell claims.

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