Daryl Holloway v. City of Milwaukee

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3007
DARYL HOLLOWAY ,
Plaintiff-Appellant,
v.
C ITY OF M ILWAUKEE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 19-cv-1460 — Lynn Adelman, Judge.
____________________
A RGUED J UNE 1, 2022— DECIDED A UGUST 8, 2022
____________________
Before EASTERBROOK, WOOD, and S CUDDER , Circuit Judges.
WOOD, Circuit Judge. After serving 24 years in prison for
burglary and sexual-assault convictions, Daryl Holloway was
exonerated by DNA evidence and the State of Wisconsin va-
cated his convictions. Upon his release, Holloway filed a law-
suit under 42 U.S.C. § 1983 against the City of Milwaukee and
various police officers who investigated him at the time of the
assaults.

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2 No. 21-3007
Holloway alleged that the police and the City violated his
due-process rights in a variety of ways: the use of overly sug-
gestive identification procedures; the suppression of evidence
favorable to his defense in violation of Brady v. Maryland, 373
U.S. 83 (1963); an arrest without probable cause in violation of
the Fourth Amendment; a conspiracy to deprive him of his
constitutional rights; and, in the City’s case, the failure to en-
act policies that were essential to avoid constitutional viola-
tions. The district court granted summary judgment in de-
fendants’ favor on all claims.
For the most part, we agree with the district court’s assess-
ments of these arguments. But our reasoning differs in one
important respect. As we see the record, the officers’ identifi-
cation procedures may well have violated Holloway’s right to
due process. At minimum, that question was not properly re-
solved on summary judgment. Nevertheless, summary judg-
ment was appropriate for a different reason: the officers’ con-
duct was not “clearly established” as unlawful at the time,
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018), and so
the defendants were entitled to qualified immunity. Thus, we
affirm.
I
In the summer of 1992, there were five sexual assaults in
Milwaukee that shared some basic characteristics: White
women were robbed in their homes and sexually assaulted at
knifepoint by a Black man. Holloway was charged and con-
victed for the assaults of two of the five victims: M.G. and
G.D. M.G. indicated that her attacker was a Black man in his
mid-twenties, medium-to-muscular build, 5’7’’ to 5’8’’ in
height, and that he wore a bright handkerchief around his
face under his eyes. G.D. indicated that her attacker was a

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No. 21-3007 3
Black man, about 5’8” in height, “approximately 160, 170
pounds,” but that poor lighting in her room prevented her
from getting a good look at his face. All three additional vic-
tims—K.R., R.R., and A.K., for whom Holloway did not face
charges—offered similar descriptions of their attacker: a Black
man of roughly medium height and build. R.R. added that her
attacker had “a very strong odor of smoke, especially on his
clothes.”
Detective Daniel Ruzinski initiated the investigation into
G.D.’s complaint. Ruzinski spoke with one of G.D.’s room-
mates, Tonya Bartoletti, who told Ruzinski that she had been
followed home from the store the night before the assault by
a Black man known as “Al,” who tried to talk to her through-
out the walk. Ruzinski did not include information about Bar-
toletti’s interaction with Al in his official interview notes.
Thus, Holloway’s defense team did not learn about it until
one week before trial, when Assistant District Attorney Terry
Magowan disclosed the incident. Magowan himself learned
of it only three weeks or so before trial.
While investigating the assault of R.R., Detective Michael
Carlson contacted the Shorewood Police Department (“SPD”)
and inquired about any similar offenses in its jurisdiction.
(Milwaukee and Shorewood border one another.) An officer
with the SPD identified Holloway as a person of interest. He
related that Holloway had recently been stopped for prowl-
ing, that he was on parole for a 1985 sexual-assault conviction,
and that he was a Black man, approximately 5’10” in height,
who smoked cigarettes. Carlson dug further into the 1985 con-
viction and found that its underlying facts resembled those of
the recent sexual assaults in the area: Holloway apparently
had burglarized and sexually assaulted a woman in her home

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4 No. 21-3007
while threatening to kill her. Carlson identified Holloway as
a suspect, obtained a booking photo of him, placed the photo
in an array, and showed the photo array to R.R. and G.D.
G.D. was unable to identify Holloway. R.R. stated that the
man in the photo resembled her attacker but that she was not
certain and needed to see him in person to make a positive
identification. Based on R.R.’s statement and Holloway’s 1985
conviction, officers arrested Holloway at Carlson’s request.
After being advised of his Miranda rights, Holloway denied
any involvement in the assaults, volunteered to stand in a
lineup, and offered alibi information for the relevant dates.
Holloway was placed in a lineup alongside four other men of
similar height, size, features, hairstyles, and skin color. (For
ease of reference, we have included a photograph of the
lineup in the Appendix to this opinion.) All five wore identical
coveralls, although Holloway was one of only two men who
did not wear white sneakers. At 5’ 10’’, Holloway was the
shortest man in the lineup. He was only marginally shorter
than one of the suspects, but he was noticeably shorter than
the rest. The lineup also involved a voice identification.
Based on his voice and general body shape, G.D. identified
Holloway as her attacker, indicating that she was “absolutely
sure” and that on a scale of 1 to 10, her identification was a 10.
M.G. also identified Holloway as the person who sexually as-
saulted her, indicating that she was “positive” and that he
looked “exactly like” her attacker. On the other hand, R.R.,
A.K., and A.K.’s roommate were unable to identify Holloway.
Holloway moved to suppress the lineup as tainted and overly
suggestive, but his motion was denied. Holloway was con-
victed after a jury trial of the charges related to the assaults of
M.G. and G.D. and received four consecutive 30-year

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No. 21-3007 5
sentences. The Wisconsin appellate court affirmed his convic-
tions. State v. Holloway, 195 Wis.2d 85 (unpublished); No. 94-
1257-CR, 1995 WL 321942 (Wis. Ct. App. 1995).
At the time of Holloway’s investigation and trial, the Wis-
consin State Crime Lab had not yet begun conducting DNA
analysis; it did not begin to do so with any regularity until the
mid-1990s. Holloway’s post-conviction counsel eventually
reached an agreement with the district attorney’s office to
have DNA testing performed by the State Crime Lab. This
testing showed that someone other than Holloway may have
been the source of seminal fluid. A subsequent round of tests
by a private lab produced a report that Holloway and the
State agreed was exculpatory. In 2016, 24 years after the as-
saults, Holloway’s convictions were vacated and his charges
dismissed with prejudice.
Holloway then brought a suit under 42 U.S.C. § 1983
against the City of Milwaukee and several officers with the
Milwaukee Police Department. He now appeals the district
court’s decision to grant summary judgment in the defend-
ants’ favor.
II
We assess a district court’s grant of summary judgment de
novo. See Stevens v. United States Dep’t of State, 20 F.4th 337, 342
(7th Cir. 2021). Summary judgment is appropriate only when
“there is no genuine issue as to any material fact and the mov-
ing party is entitled to judgment as a matter of law.” F ED. R.
C IV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). We view the facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in that

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6 No. 21-3007
party’s favor. Miller v. Chicago Transit Auth., 20 F.4th 1148,
1155 (7th Cir. 2021).
Holloway raised seven constitutional claims against the
defendants, but only six are before us. The district court
deemed Holloway’s malicious-prosecution claim waived at
the summary-judgment stage, and Holloway has not con-
tested that determination in this court. We address the six re-
maining claims below.
A
Holloway’s first claim is his strongest. He argues that the
defendants violated his due-process right to a fair trial by us-
ing unduly suggestive identification procedures. The right to
a fair trial, guaranteed by the Due Process Clause of the Four-
teenth Amendment, is “violated if unduly suggestive identi-
fication techniques are allowed to taint the trial.” Alexander v.
City of South Bend, 433 F.3d 550, 555 (7th Cir. 2006).
To determine whether such a violation has occurred, we
conduct a two-step inquiry. United States v. Sanders, 708 F.3d
976, 983–84 (7th Cir. 2013). The first question is whether the
“identification procedure used by law enforcement was ‘both
suggestive and unnecessary.’” Id. If so, we then decide, based
on the totality of the circumstances, whether the identification
was sufficiently reliable to outweigh the effect of the tainted
procedure. Id.
1
Before we undertake this analysis, we take a moment to
consider the nature of the right at issue in light of the Supreme
Court’s recent decision in Vega v. Tekoh, 142 S. Ct. 2095 (2022).
The question presented in Tekoh was “whether a violation of
the Miranda rules provides a basis for a claim under § 1983.”

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No. 21-3007 7
Id. at 2101. The Supreme Court held that it does not. Id. It rea-
soned that the right conferred by Miranda is only a trial right,
not a free-standing constitutional right; defendants may thus
seek to suppress evidence obtained in violation of their Mi-
randa rights at their criminal trials, but they may not sue offi-
cials under section 1983 for that violation. See id.
This case is not about Miranda. But at oral argument, while
the Court’s decision in Tekoh was pending, we asked the par-
ties whether the protection against unduly suggestive identi-
fication procedures is, like Miranda, only a trial right, or
whether it is more broadly enforceable, through either a suit
under section 1983 or otherwise. This is an important ques-
tion, but we conclude that it need not be resolved in this opin-
ion. The parties paid no heed to it until we raised the issue at
oral argument. And there are at least two plausible answers:
perhaps the right to be free from suggestive identification pro-
cedures is a substantive right that flows from the Due Process
Clauses; or perhaps, even though a constitutional right, it is
just a trial right that is not violated unless there is a tainted
identification at trial. As we explain below, the outcome of
Holloway’s case does not turn on these distinctions. We thus
flag the issue and save it for another day.
2
We turn now to the substance of Holloway’s argument.
Holloway contends that “the defendant officer’s lineup was
unduly suggestive because … (1) Holloway was the shortest
participant in the lineup, and (2) GD was primed with a photo
array one day prior to the … lineup with Holloway’s booking
photograph.” In granting summary judgment in defendants’
favor, the district court concluded as a matter of law that the
officers’ identification procedures did not violate Holloway’s

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8 No. 21-3007
constitutional rights. We are not persuaded: in our view, there
is at least a genuine dispute over the suggestiveness of the
identification procedures.
G.D. was shown a photograph of Holloway only 32 hours
prior to the lineup. This may have caused G.D. mistakenly to
identify Holloway, believing that she recognized him from
the day of the assault when really she recognized him from
the photograph she saw the day before. In social-science par-
lance, this well-documented psychological phenomenon is
known as “unconscious transference.” See Kenneth A. Def-
fenbacher, Brian H. Bornstein & Steven D. Penrod, Mugshot
Exposure Effects: Retroactive Interference, Mugshot Commitment,
Source Confusion, and Unconscious Transference, 30 LAW AND
HUM . BEHAV. 287, 299–306 (2006) (discussing unconscious
transference); see also Reyes v. Nurse, --- F.4th ---, No. 20-1432,
2020 WL 2338573, at *6 (7th Cir. 2022) (same).
The district court dismissed this concern, observing that it
was “undisputed … that G.D. identified Holloway based on
his voice and general body shape,” not his face. “This indi-
cates,” the court reasoned, “that G.D. was not, in fact, affected
by the photo array. The photo array contained headshots, not
full body photographs or voice samples. If the photo array
primed G.D., she would have based her identification on Hol-
loway’s facial features.”
This is too much of a leap at the summary-judgment stage.
It may be undisputed that G.D. said that her identification was
based on Holloway’s voice and general body shape. But a jury
could well have concluded that G.D. was subconsciously in-
fluenced by having seen Holloway’s face only 32 hours ear-
lier. This is precisely why the phenomenon of unconscious
transference presents such a vexing problem: it operates at the

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No. 21-3007 9
level of the subconscious, and so even a sincere and well-in-
tentioned witness can unwittingly identify the wrong person.
We note as well that the Supreme Court has never barred
the use of photographs as a means of identification. See Sim-
mons v. United States, 390 U.S. 377, 384 (1968). Simmons was a
case, not unlike this one, in which “[a] serious felony had been
committed,” “[t]he perpetrators were still at large,” and some
admittedly “inconclusive clues” pointed to Simmons. Taking
all the circumstances into account, the Court refused to find a
due process violation or an occasion for the use of its supervi-
sory authority. Id. at 385–96.
Granted, there were more facts in Simmons pointing to the
defendant than we have here. But that does not help the ulti-
mate disposition of Holloway’s section 1983 action, however,
because summary judgment was appropriate on different
grounds. “[O]fficers are entitled to qualified immunity under
§ 1983 unless (1) they violated a federal statutory or constitu-
tional right, and (2) the unlawfulness of their conduct was
clearly established at the time.” District of Columbia v. Wesby,
138 S. Ct. 577, 589 (2018) (quotation marks omitted). A party
seeking to defeat qualified immunity must show both ele-
ments; on the other hand, the defendant obtains qualified im-
munity by blocking either part. Here, even if the defendants
violated Holloway’s constitutional rights, Holloway cannot
show that the unlawfulness of their conduct was “clearly es-
tablished at the time.” Id.
“The unlawfulness of challenged conduct is ‘clearly estab-
lished’ … only if it is ‘dictated by controlling authority or a
robust consensus of cases of persuasive authority,’ such that
it would be ‘clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’” Estate of Davis v.

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10 No. 21-3007
Ortiz, 987 F.3d 635, 638 (7th Cir. 2021). “It is essential to eval-
uate the public official’s conduct at the correct level of granu-
larity.” Id. Because Holloway can point to no controlling or
persuasive authority that clearly established that it was im-
permissible for the police to use a photo array only a day or
so before the physical lineup, defendants are entitled to qual-
ified immunity as a matter of law.
B
Holloway next makes a series of Brady arguments. “[T]he
suppression by the prosecution of evidence favorable to an
accused … violates due process where the evidence is mate-
rial either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373
U.S. 83, 87 (1963). The prosecutor thus has an obligation to
“turn over to the defense all potentially exculpatory evi-
dence.” Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007).
“That obligation extends to police officers, insofar as they
must turn over potentially exculpatory evidence when they
turn over investigative files to the prosecution.” Id. “To pre-
vail on a civil Brady-based due process claim against a police
officer, a plaintiff must demonstrate that the evidence in ques-
tion was favorable to him, the police ‘suppressed’ the favora-
ble evidence, and prejudice ensued because the suppressed
evidence was material.” Anderson v. City of Rockford, 932 F.3d
494, 504 (7th Cir. 2019).
Holloway’s first contention is that Carlson failed to dis-
close in his official report that R.R.’s attacker smelled like cig-
arette smoke. We agree with defendants that summary judg-
ment was appropriate, because this information was neither
exculpatory nor useful to Holloway for impeachment.

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No. 21-3007 11
(Favorable evidence includes both exculpatory and impeach-
ment evidence. United States v. Bagley, 473 U.S. 667, 676
(1985).)
Holloway argues that had he known R.R.’s attacker
smelled like cigarette smoke, he could have cross-examined
G.D. and M.G. about whether their attacker also smelled like
cigarette smoke. If either or both said “no” on the stand, he
suggests, their testimony would have been exculpatory since
Holloway, a regular smoker at the time, would likely have
smelled like cigarette smoke. This argument is a nonstarter.
For one thing, it effectively concedes that the information
about R.R.’s attacker was not, itself, exculpatory. At best, the
argument suggests that the information was somehow neces-
sary to obtain other information that was exculpatory. But it
was not necessary. Nothing prevented Holloway from at-
tempting to elicit such testimony from G.D. or M.G.; he could
have done so whether or not he knew what R.R.’s attacker
smelled like.
The information would similarly not have been useful for
impeachment purposes. Neither G.D. nor M.G. ever testified
about whether their attacker smelled like cigarette smoke, let
alone whether R.R.’s attacker did, and R.R. never testified at
all. Thus, even if Holloway had known that R.R.’s attacker
reeked of cigarette smoke, there would have been no one for
him to impeach on that ground. Because the information
could neither exculpate nor impeach, the district court was
correct to conclude as a matter of law that Carlson’s failure to
disclose it was not a Brady violation.
Holloway next argues that the defendants violated his
Brady rights because they did not disclose Bartoletti’s account
of being followed by Al until one week before trial.

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12 No. 21-3007
Defendants respond that summary judgment was appropri-
ate because the information was not suppressed. Evidence is
suppressed if “(1) the State failed to disclose known evidence
before it was too late for him to make use of the evidence; and
(2) the evidence was not otherwise available to him through
the exercise of reasonable diligence.” Collier v. Davis, 301 F.3d
843, 850 (7th Cir. 2002).
We appreciate that one week is not a lot of time to inter-
view and prepare a witness. But it was far from “too late for
[Holloway] to make use of [it].” Id. If nothing else, it was long
enough for Holloway to seek a continuance, which he did not
do. Under these circumstances, we agree with the district
court that this information was not suppressed as a matter of
law.
Finally, Holloway contends that the defendants failed to
turn over lab reports regarding K.R.’s assault. But Holloway
brought forth no evidence establishing that such reports even
existed. In any event, Holloway was not tried for K.R.’s as-
sault, and no one testified at trial regarding K.R.’s assault.
Thus, a K.R. report, if one existed, could neither exculpate nor
impeach. There was no Brady violation on this basis.
C
We address Holloway’s unlawful-detention and failure-
to-intervene claims in tandem because they both fail for the
same reason. Holloway argues that Carlson lacked probable
cause to arrest Holloway when he directed other officers to do
so, and in that way he violated Holloway’s right to be free
from unreasonable seizures. U.S. Const. amend. IV. He also
contends that certain defendants are liable for failing to inter-
vene when Carlson directed officers to arrest Holloway

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No. 21-3007 13
without probable cause. See Yang v. Hardin, 37 F.3d 282, 285
(7th Cir. 1994) (discussing failure-to-intervene claims).
Both claims fail because, despite his ultimate exoneration,
the officers had probable cause to arrest Holloway. A police
officer has probable cause to arrest a person when “the facts
available to the officers at the moment of the arrest would
‘warrant a man of reasonable caution in the belief’ that an of-
fense has been committed.” Beck v. Ohio, 379 U.S. 89, 96 (1964).
“If the underlying facts supporting the probable cause deter-
mination are not in dispute,” as is the case here, “the court can
decide whether probable cause exists.” Maxwell v. City of Indi-
anapolis, 998 F.2d 431, 434 (7th Cir. 1993).
At the time that Carlson directed other officers to arrest
Holloway, Carlson knew the following: Holloway matched
the physical descriptions of the attacker offered by the five
victims; Holloway had recently been cited for prowling in a
nearby area where several home intrusions had occurred;
Holloway had a prior conviction for sexual assault and bur-
glary, whose underlying facts closely resembled those of the
assaults under investigation; and R.R. identified Holloway in
the photo array, albeit tentatively. Taken together, these facts
establish probable cause, notwithstanding the tentative na-
ture of R.R.’s identification. See McDaniel v. Polley, 847 F.3d
887, 895 n.5 (7th Cir. 2017) (a single witness’s identification
from a photo array, even if tentative, can establish probable
cause).
D
Holloway next broadly argues that defendants conspired
to frame him for a crime he did not commit. “To establish con-
spiracy liability in a § 1983 claim, the plaintiff must show that

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14 No. 21-3007
(1) the individuals reached an agreement to deprive him of
his constitutional rights, and (2) overt acts in furtherance ac-
tually deprived him of those rights.” Beaman v. Freesmeyer, 776
F.3d 500, 510 (7th Cir. 2015).
As we have discussed, all but one of Holloway’s claims
cannot survive summary judgment because Holloway cannot
show a deprivation of his constitutional rights. Even if he
could move past the first step of the conspiracy inquiry, those
claims would fail as a matter of law on the second. The one
exception is the claim based on the officers’ identification pro-
cedures, which would survive step two on a summary-judg-
ment posture. But it has other problems. Holloway has not
pointed to evidence that would allow a trier of fact to con-
clude that the officers reached an agreement to deprive him
of his due-process rights. Holloway’s purported evidence of
such an agreement consists of the following observations:
these assaults were highly publicized; the police were under
great pressure to solve the crimes; and upon identifying Hol-
loway as a suspect, the police were shoddy in their investiga-
tion of other leads. This is far too conjectural to create a genu-
ine dispute over the question whether the officers agreed to
deprive Holloway of his rights.
E
Finally, we briefly address Holloway’s arguments against
the City of Milwaukee under Monell v. Dep't of Soc. Servs., 436
U.S. 658 (1978). A municipality is liable in a section 1983 claim
under Monell if the constitutional violation was caused by:
“(1) an express municipal policy; (2) a widespread, though
unwritten, custom or practice; or (3) a decision by a municipal
agent with ‘final policymaking authority.’” Milestone v. City of
Monroe, 665 F.3d 774, 780 (7th Cir. 2011).

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No. 21-3007 15
The typical case involves an affirmative policy or custom-
and-practice. But Holloway argues that the absence of certain
policies renders the City liable here. He complains that the
City: (1) lacked a policy regarding officer investigatory notes;
(2) had an inadequate policy regarding lineups and photo ar-
rays; and (3) lacked a policy regarding the police use of DNA
testing.
The Supreme Court has recognized that omissions, such
as failures to act or to train, may provide a basis for Monell
liability. See Connick v. Thompson, 563 U.S. 51, 61–62 (2011); Bd.
of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 410 (1997);
City of Canton v. Harris, 489 U.S. 378, 390 (1989); see also Glis-
son v. Indiana Dep’t of Corrs., 849 F.3d 372, 382 (7th Cir. 2017)
(“[T]he failure to make policy itself may be actionable.”). But
to be liable for its inaction, a municipality must have notice of
the risk of a constitutional violation and fail to act even in the
face of such notice. See Connick, 563 U.S. at 61–62; see also
J.K.J. v. Polk County, 960 F.3d 367, 379–80 (7th Cir. 2020).
Plaintiffs may show such notice in one of two ways:
“Sometimes the notice will come from a pattern of past similar
violations; other times it will come from evidence of a risk so
obvious that it compels municipal action.” J.K.J., 960 F.3d at
381. Holloway has adduced no evidence of a pattern of prior
violations that would have put the City on notice of the risk
of the violations he alleges. And as troubled as we are by the
overly suggestive identification procedures, we do not believe
a reasonable jury could conclude that the risk of the alleged
violations was so obvious as to place this case in the narrow
set where “obvious[ness] … compels municipal action.” Id.
Thus, summary judgment was also appropriate on Hol-
loway’s Monell claims.

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16 No. 21-3007
III
We AFFIRM the district court’s grant of summary judgment
in defendants’ favor.

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No. 21-3007 17
APPENDIX: THE LINEUP
(Holloway is in Position 2.)

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