Ralph D. Armstrong v. Karen D. Daily

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-3424 and 13-3482
R ALPH D. A RMSTRONG,
Plaintiff-Appellee,
v.
K AREN D. DAILY , et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Western District of Wisconsin.
No. 12-cv-426-bbc—Barbara B. Crabb, Judge.
____________________
A RGUED S EPTEMBER 9, 2014 — DECIDED M AY 11, 2015
____________________
Before F LAUM , R OVNER , and HAMILTON , Circuit Judges.
HAMILTON , Circuit Judge. Plaintiff Ralph Armstrong was
imprisoned for 29 years for the rape and murder of Charise
Kamps—a crime that he maintains he did not commit. His
conviction was set aside in 2005, and in 2009 a Wisconsin
state judge dismissed the charges entirely because the prose-
cution had destroyed key exculpatory evidence, rendering a
fair trial impossible. Armstrong then brought this civil suit

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2 Nos. 13-3424 & 13-3482
under 42 U.S.C. § 1983 seeking damages from the prosecutor
and state crime laboratory technicians who he alleges de-
prived him of his liberty without due process of law by de-
stroying exculpatory evidence to frame him for Kamps’
murder. Defendants appeal from the denial of their motions
to dismiss this case under Federal Rule of Civil Procedure
12(b)(6) on grounds of qualified immunity. In this posture,
we have only the complaint before us and therefore must
treat Armstrong’s allegations as true.
Armstrong alleges a shocking course of prosecutorial
misconduct. According to the complaint, the prosecutor
quickly fixated on Armstrong as the murderer and sought to
build a case against him by any means necessary. Those
means included destroying potentially exculpatory evidence
from the crime scene, arranging for the highly suggestive
hypnosis of an eyewitness, contriving suggestive show-ups
for identification, and concealing a later confession from the
true killer that was relayed by a person with no apparent
motive to fabricate the report. Finally, the prosecutor enlisted
state lab technicians to perform an inconclusive DNA test
that consumed the last of a sample that could have proven
Armstrong’s innocence and pointed to the true killer. If these
allegations are true—and some are based on the state court’s
factual findings—the prosecution of Armstrong was a single-
minded pursuit of an innocent man that let the real killer to
go free.
A full explanation of these events will require fact-
finding in the district court. For now, only two claims are be-
fore us. First, Armstrong claims that prosecutor John Norset-
ter acted in bad faith by allowing the loss or destruction of
drug paraphernalia found at the crime scene—evidence that

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Nos. 13-3424 & 13-3482 3
would exculpate Armstrong and implicate the real killer.
This evidence was allegedly tossed in a plastic trash bag,
placed in an office storage locker, and lost before Arm-
strong’s trial in 1981.
Second, Armstrong claims that after the Wisconsin Su-
preme Court vacated his conviction and ordered a new trial
in 2005, two state lab technicians, Karen Daily and Daniel
Campbell, deliberately violated a state court order to pre-
serve evidence by destroying an exculpatory DNA sample in
2006. At the request or order of Norsetter, but without notice
to the court or the defense, Daily and Campbell performed
an inconclusive test that consumed all of a DNA sample ex-
tracted from a newly discovered semen stain on the victim’s
bathrobe belt. This test could not distinguish between Arm-
strong and his late brother, who Armstrong claims was the
true killer. (Armstrong’s brother had allegedly confessed to
an acquaintance, who in turn told prosecutor Norsetter in
1995.) The destruction of the DNA sample prevented Arm-
strong from performing other tests that could have distin-
guished between him and his brother. Armstrong spent three
more years in prison before a state court finally dismissed
the charges because of the destruction of the DNA sample.
We affirm the district court’s decision to allow both
claims to proceed. First, plaintiff’s federal due process claims
against all defendants based on the destruction or loss of ex-
culpatory evidence are not barred by the availability of state
tort remedies for the same wrongs. The doctrine of Parratt v.
Taylor, 451 U.S. 527 (1981), does not apply to the actions of
law enforcement officers that undermine the fairness of a
criminal trial. Second, at the time of the original investiga-
tion, it was clearly established under Killian v. United States,

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4 Nos. 13-3424 & 13-3482
368 U.S. 231 (1961), and then Brady v. Maryland, 373 U.S. 83
(1963), that bad-faith destruction or loss of exculpatory evi-
dence would violate a suspect’s due process rights. Brady
made clear that the police and prosecution could not suppress
exculpatory evidence. A reasonable police officer or prosecu-
tor would not have concluded that he could instead destroy
evidence to avoid disclosing it to the defense. Third, if plain-
tiff can show that the unconstitutional destruction of excul-
patory evidence in 2006 caused him to suffer a deprivation
of liberty, he can sue for that injury without having gone
through a second trial. Finally, while there is some dis-
agreement among courts about the conditions for obtaining
a civil remedy for destruction of exculpatory evidence, those
disagreements do not support a qualified immunity defense.
It was clearly established in 2006 that the defendants’ alleged
conduct of destroying the evidence would violate defendant’s
due process rights. That is sufficient to defeat the qualified
immunity defense.
I. Factual and Procedural Background
Because we are reviewing a decision on a motion to dis-
miss under Rule 12(b)(6), we accept the allegations of the
complaint as true and draw from those allegations all rea-
sonable inferences in favor of the plaintiff. Parish v. City of
Elkhart, 614 F.3d 677, 679 (7th Cir. 2010); Parish v. City of Chi-
cago, 594 F.3d 551, 552 (7th Cir. 2009). Whether Armstrong
can prove his allegations is not the issue now before us. We
must proceed on the premise that the defendants acted as
Armstrong has alleged and did so in bad faith.

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Nos. 13-3424 & 13-3482 5
A. The Crime Scene and Initial Investigation
Charise Kamps was raped and murdered in her home in
Madison, Wisconsin, on June 24, 1980. Defendant John
Norsetter, then an assistant district attorney for Dane Coun-
ty, arrived on the scene shortly after her body was discov-
ered. Norsetter advised and directed Madison police officers
on all aspects of the investigation, including collecting and
retaining evidence. The officers discovered two items of
physical evidence at the center of Armstrong’s claims: a
bathrobe belt used as the murder weapon and drug para-
phernalia that could have shown who had been in Kamps’
apartment the evening she was murdered.
The officers found the bathrobe belt draped over Kamps,
who was lying on her bed. The belt was not forensically ana-
lyzed in the initial investigation in 1980. However, semen
stains on the accompanying bathrobe were tested. Results
showed that the stains came from the same secretor type as
Armstrong, though Kamps’ boyfriend and 80 percent of the
population also fit that profile. More precise DNA analysis
was not available for the initial investigation in 1980.
The officers also found drug paraphernalia—a small mir-
ror, razor blade, and silver straw, all used to snort powder
cocaine—lying on the kitchen table, suggesting recent use.
The officers and Norsetter knew that this evidence could
show who was in Kamps’ home the night of her death. By
interviewing witnesses, including Armstrong, the police had
learned that Kamps had tried to buy cocaine on the night of
her murder. A person who used cocaine with Kamps that
night would have been an obvious suspect in the murder.
Witnesses accused Armstrong of selling cocaine to Kamps
and using it with her that night, but Armstrong denied it.

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6 Nos. 13-3424 & 13-3482
The drug paraphernalia evidence also could have corrobo-
rated Armstrong’s claim that he had not provided cocaine to
or used cocaine with Kamps that night. But the drug para-
phernalia was never examined for fingerprints or subjected
to any other forensic testing. Instead, it was tossed into a
large plastic trash bag and left in an office storage locker at
the police station, only to be lost.
The police also canvassed the neighborhood and found a
witness, Riccie Orebia, who saw a man suspiciously entering
and leaving Kamps’ apartment building the night of the
murder. Orebia described that person as roughly 5’6” tall
and weighing 165 pounds. The man she saw was also shirt-
less with no tattoos and had a mustache. Armstrong is 6’2”
tall and weighed at least 200 pounds. He had dark, noticea-
ble tattoos on his upper arms, and no mustache.1
Norsetter and the police had Orebia hypnotized. During
the hypnosis sessions, Armstrong alleges, Orebia was “al-
lowed to view” photographs of Armstrong and his car. After
the hypnosis, the police arranged a series of show-ups with
several different men, including Armstrong. All the men
were put through a reenactment near the scene of the crime
to assist Orebia in identifying the man she saw the night of
the murder. Orebia selected Armstrong. The full details of
the show-ups, which Orebia later described as rigged, are
recounted in Armstrong v. Young, 34 F.3d 421 (7th Cir. 1994),
in which this court affirmed the denial of federal habeas cor-
1 Orebia, described as a “male transvestite,” was referred to as a
woman by a prior decision of this court, Armstrong v. Young, 34 F.3d 421,
423 n.1 (7th Cir. 1994), and throughout Armstrong’s criminal trial, State
v. Armstrong, 329 N.W.2d 386, 389 n.3 (Wis. 1983). We use female pro-
nouns for consistency.

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Nos. 13-3424 & 13-3482 7
pus relief to Armstrong because, among other issues, the to-
tality of circumstances indicated that Orebia’s identification
was sufficiently reliable that its admission as evidence was
permissible.
Testimony from a hearing inquiring into the prosecu-
tion’s conduct in this case sheds further light on the initial
investigation. The complaint alleges that in that hearing,
Norsetter testified that his attitude and approach to the
Kamps investigation were that no matter what exculpatory
evidence might emerge, he would continue to believe that
Armstrong committed the crime and would act accordingly.
B. Armstrong’s Conviction and Subsequent Challenges
A jury convicted Armstrong of first-degree murder and
first-degree sexual assault in 1981. He was sentenced by the
trial court to life plus 16 years in prison. Armstrong sought
post-conviction relief on two principal grounds. Immediate-
ly after his conviction, he argued to state and federal courts
that the hypnosis and rigged show-ups were unduly sugges-
tive and violated his due process rights. As noted, that issue
was conclusively resolved against Armstrong by this court in
1994. Armstrong v. Young, 34 F.3d 421, 430–31 (7th Cir. 1994).
Armstrong later pursued another avenue for post-
conviction relief, arguing for a new trial because of newly
discovered evidence. The State had argued in the trial that
the physical evidence showed “conclusively and irrefutably”
that Armstrong was the murderer. State v. Armstrong, 700
N.W.2d 98, 101 (Wis. 2005). Armstrong then presented the
results of newly available DNA testing that excluded him as
a possible source of the semen stains on the victim’s bath-
robe. The State, despite its arguments at trial, responded by

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8 Nos. 13-3424 & 13-3482
minimizing the importance of the physical evidence. The
state trial court ruled against Armstrong because he failed to
prove that a different result would be reached in a new trial
with the new evidence. The Wisconsin Court of Appeals af-
firmed in an unpublished order. State v. Armstrong, No. 92-
0232-CR, 504 N.W.2d 873 (Wis. App. June 17, 1993) (Table).
Years later, Armstrong renewed his request for a new tri-
al in another petition to the state courts. He presented the
results of additional DNA testing. The results definitively
excluded him as the possible source of hair on the victim’s
bathrobe belt, which the State had asserted at trial belonged
to Armstrong. Armstrong also offered an expert’s analysis
that swabs and scrapings taken from Armstrong’s nails and
cuticles the day of the murder contained no blood at all, con-
trary to the State’s argument at trial that the victim’s blood
had been detected. Finally, Armstrong pointed out that DNA
analysis excluded him as the source of semen on Kamps’
bathrobe, which the State had linked to Armstrong at trial
through the crude test of secretor types.
The state trial and appellate courts again denied relief,
but the Supreme Court of Wisconsin reversed. It held that
the real controversy of identification was not fully tried be-
cause the jury never considered the newly discovered excul-
patory evidence and heard instead that the physical evi-
dence showed conclusively that Armstrong was guilty. State
v. Armstrong, 700 N.W.2d at 128–29. The court vacated Arm-
strong’s conviction and ordered a new trial. In the meantime,
however, Armstrong stayed in prison.

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Nos. 13-3424 & 13-3482 9
C. Handling the Evidence on Remand
Armstrong was never retried. In 2009, after he had served
29 years in prison for Kamps’ murder, the state trial court
dismissed the charges because the State had acted in bad
faith in destroying critical physical evidence.
The contested physical evidence was governed by two
court orders. A court order issued in December 2005—after
the state lost the appeal in the state supreme court—required
the prosecution to inform the defense of future tests and to
allow the defense to be present for any handling of the evi-
dence. Also, a court order from as far back as March 2000 re-
quired that the results of any testing be forwarded to the de-
fense.
In 2006, after the remand, Armstrong discovered that the
prosecution had violated both court orders by destroying
key exculpatory evidence: a newly discovered semen stain
on the victim’s bathrobe belt, which was the murder weapon.
The man who was the source of the semen stain would be an
obvious suspect. Armstrong alleges that this evidence was
“the most critical and probative physical evidence remaining
in the case.” The prosecution knew the semen stain on the
belt could be exculpatory. State lab technician Karen Daily
wrote in a report dated April 10, 2006 that Armstrong was
“eliminated as the source” for all DNA samples she had test-
ed, including the semen stains on the bathrobe and the belt.
Despite these exculpatory results, the prosecution an-
nounced a month later that it would retry Armstrong. Just a
few weeks after the announcement, prosecutor Norsetter or-
dered further testing of the bathrobe belt during a call with
Daily. The testing was plainly aimed at finding inculpatory

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10 Nos. 13-3424 & 13-3482
evidence to resuscitate the prosecution’s case. Armstrong’s
attorneys had announced that they intended to test the new-
ly discovered semen stains to identify the true killer. Arm-
strong’s attorneys were neither provided notice of the State’s
testing before it was done nor given the results afterward.
That violated both court orders governing access to the
physical evidence.
Daily and defendant Daniel Campbell, another state lab
technician, performed a test that consumed the entire DNA
sample but provided only inconclusive results that could not
confirm or eliminate Armstrong as a possible source of the
stain. This test, a “single tandem repeat” on the Y chromo-
some, or Y-STR, looks only at the Y chromosome and there-
fore cannot distinguish between men with the same father.
The Y-STR test matched Armstrong’s DNA to the DNA ex-
tracted from the semen stain on the bathrobe belt.
This result was dangerously misleading because Ralph
Armstrong’s brother, Stephen Armstrong, who died in 2005,
may well have been the true killer. In 1995, an acquaintance
of Stephen Armstrong called Norsetter to report that Ste-
phen had confessed to her that he had killed Kamps. The ac-
quaintance had no apparent motive to fabricate Stephen’s
confession. If Stephen Armstrong was the source of the new-
ly discovered semen, then a Y-STR test of the semen stain
would show a match with plaintiff Ralph Armstrong’s Y
chromosome, though a more discriminating test could have
differentiated between the brothers and therefore exculpated
Ralph. Norsetter never disclosed the call relating Stephen’s
confession to Ralph Armstrong or his attorneys, nor, appar-
ently, did he tell the state lab technicians that Stephen might
be a suspect.

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Nos. 13-3424 & 13-3482 11
The Y-STR test consumed the entire sample, which was
contaminated in the process. As a result, Armstrong alleges,
he is unable to prove conclusively that he was not the source
of the semen, nor can he conduct further testing to attempt
to identify the true killer.
After Armstrong’s attorneys discovered that the prosecu-
tion’s secret testing had destroyed the evidence, they moved
to dismiss the charges against Armstrong in December 2006.
The state court held an evidentiary hearing in 2009. When
Norsetter was asked about the failure to inform the defense
of the planned testing, he said that he “just forgot” about the
December 2005 court order governing the evidence.
The state court found that the stain on the bathrobe belt
had both potential and apparent exculpatory value and that
the prosecution had destroyed that evidence in bad faith.
The court dismissed the charges against Armstrong because
the destruction of that evidence had irreparably compro-
mised his right to a fair trial. Armstrong had remained in
prison for the three years between the destruction of the evi-
dence in 2006 and the court’s dismissal in 2009.
D. This Federal Civil Case
In 2012, Armstrong filed this civil suit for damages under
42 U.S.C. § 1983, which provides a federal remedy for state
and local officials’ violations of federal constitutional rights.
His pro se second amended complaint—the one before us—
asserts four claims: (1) prosecutor Norsetter and unnamed
police officers acted in bad faith to destroy potentially ex-
culpatory evidence, the drug paraphernalia found in Kamps’
apartment; (2) Norsetter and other state defendants violated
Armstrong’s due process rights by introducing the testimony

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12 Nos. 13-3424 & 13-3482
of Orebia, which was tainted by the unduly suggestive hyp-
nosis session and rigged show-ups; (3) Norsetter, Daily, and
Campbell violated Armstrong’s due process rights by mis-
handling physical evidence in the court’s custody and con-
suming the semen sample on the bathrobe belt; (4) Norsetter
and another state defendant suppressed evidence of a con-
fession by Stephen Armstrong, the true killer, that was re-
layed to Norsetter.
The district court dismissed the second and fourth claims
at screening. See 28 U.S.C. § 1915A(b). The court found the
second claim was barred by res judicata; state and federal
courts had previously adjudicated that claim and found no
due process violation. The fourth claim was barred by abso-
lute immunity because Norsetter was acting as a prosecutor
in 1995 in dealing with the evidence of Stephen Armstrong’s
confession relayed by the acquaintance. The district court
found, however, that Armstrong could proceed on the first
and third claims: that Norsetter destroyed the drug para-
phernalia evidence (when acting as an investigator rather
than as a prosecutor) and that Norsetter, Daily, Campbell,
and other state defendants destroyed the bathrobe belt se-
men evidence. The district court also granted Armstrong’s
request to recruit counsel for him. Since then he has been
represented by counsel.
Norsetter, Daily, and Campbell then filed motions to
dismiss these remaining claims. Norsetter moved to dismiss
the first claim, for destroying the drug paraphernalia evi-
dence, claiming both qualified immunity and absolute pros-
ecutorial immunity. Norsetter, Daily, and Campbell moved
to dismiss the third claim of destroying the bathrobe belt
semen stain evidence. Daily and Campbell claimed qualified

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Nos. 13-3424 & 13-3482 13
immunity, and Norsetter claimed both qualified immunity
and absolute prosecutorial immunity. Armstrong opposed
these motions and also sought leave to amend his complaint
to add a claim for federal malicious prosecution.
The district court denied Norsetter’s motion to dismiss
the first claim because, looking only at the allegations of the
complaint, it was not clear that he enjoyed qualified immuni-
ty for his actions. Norsetter is entitled to absolute immunity
for his actions as a prosecutor but not for his actions as an
investigator. The court granted the motion to dismiss
Norsetter from the third claim. His acts and omissions in as-
sisting the State to prepare for retrial in 2006 were “intimate-
ly related to the judicial phase of the criminal process,” Fields
v. Wharrie, 672 F.3d 505, 513 (7th Cir. 2012), so he is entitled
to absolute immunity. Daily and Campbell were not dis-
missed from the third claim based on their involvement in
the destruction of the bathrobe belt semen stain. Finally, the
district court denied Armstrong leave to amend his com-
plaint because the new allegations were too vague to state
claims upon which relief could be granted. Norsetter, Daily,
and Campbell took these interlocutory appeals from the dis-
trict court’s denial of their motions to dismiss these two
claims for qualified immunity.
II. Analysis
A. The Scope of Appellate Jurisdiction
An appeal from a denial of an official defendant’s motion
to dismiss or for summary judgment based on the defense of
qualified immunity is permitted as an appeal from a collat-
eral order because qualified immunity is “immunity from suit
rather than a mere defense to liability,” and is “effectively

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14 Nos. 13-3424 & 13-3482
lost if a case is erroneously permitted to go to trial.” Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985); see also Behrens v. Pelletier,
516 U.S. 299, 307 (1996) (relying on Mitchell to hold that “an
order rejecting the defense of qualified immunity at either the
dismissal stage or the summary judgment stage is a ‘final’
judgment subject to immediate appeal”). The appeal is lim-
ited in scope for the same reason it is permitted: the question
of qualified immunity is “conceptually distinct from the
merits of the plaintiff’s claim that his rights have been violat-
ed.” Mitchell, 472 U.S. at 527–28. In this posture, we “need
not consider the correctness of the plaintiff’s version of the
facts.” Id. at 528. The qualified immunity defense requires us
to consider only two limited questions at this stage: first,
whether plaintiff has alleged a violation of his constitutional
rights, and second, whether the violation was clearly estab-
lished in the law at the time of the defendant’s conduct. Pear-
son v. Callahan, 555 U.S. 223, 232 (2009).
We must decline plaintiff Armstrong’s invitation to re-
view the separate issue posed by the district court’s denial of
leave to amend the complaint to add a federal constitutional
claim for malicious prosecution. Whatever the merits of the
argument, we lack jurisdiction to consider it in these appeals
for several reasons. First, it was not the subject of an appeal-
able order. Second, Armstrong did not file a cross-appeal,
which is necessary if an appellee seeks to modify a judgment
in his favor. E.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S.
473, 479 (1999). Finally, this is not the sort of closely related
issue that warrants the exercise of pendent appellate juris-
diction—“a narrow doctrine that allows an appellate court
‘to review an otherwise unappealable interlocutory order if
it is inextricably intertwined with an appealable one.’”
Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir. 2012), quoting

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Nos. 13-3424 & 13-3482 15
Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626
F.3d 973, 977 (7th Cir. 2010); see generally Swint v. Chambers
County Comm’n, 514 U.S. 35, 43–51 (1995) (restricting pen-
dent appellate jurisdiction). For now, we have jurisdiction
over only the questions of law presented by the district
court’s denial of qualified immunity to the state defendants
on the first and third claims.
B. Legal Standard for Qualified Immunity
We review de novo the district court’s denial of the motion
to dismiss for qualified immunity. Alvarado v. Litscher, 267
F.3d 648, 651 (7th Cir. 2001). Qualified immunity “protects
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” Pearson, 555 U.S. at 231, quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
For qualified immunity, the appropriate focus is “on the
objective legal reasonableness of an official’s acts. Where an
official could be expected to know that certain conduct
would violate statutory or constitutional rights, he should be
made to hesitate; and a person who suffers injury caused by
such conduct may have a cause of action.” Harlow, 457 U.S.
at 819. Harlow “purged qualified immunity doctrine of its
subjective components,” meaning that the defendants’ actual
state of mind or knowledge of the law is irrelevant to wheth-
er the asserted conduct would have been legally reasonable.
Mitchell, 472 U.S. at 517; see also Crawford-El v. Britton, 523
U.S. 574, 598 (1998) (rejecting heightened standard of proof
for constitutional claims involving improper motive and di-
recting district courts to “determine whether, assuming the

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16 Nos. 13-3424 & 13-3482
truth of the plaintiff’s allegations, the official’s conduct vio-
lated clearly established law”).
To determine if the defendants are entitled to qualified
immunity, we ask two questions: (1) whether “the facts al-
leged show the officer’s conduct violated a constitutional
right,” and (2) whether “it would be clear to a reasonable of-
ficer that his conduct was unlawful in the situation he con-
fronted.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001), modified
on other grounds by Pearson, 555 U.S. at 236 (allowing courts
discretion to conduct two-step inquiry in sequence better
suited to particular case); accord, Whitlock v. Brueggemann,
682 F.3d 567, 580 (7th Cir. 2012). With this standard in mind,
we turn to defendants’ arguments.
C. The Parratt Defense Based on State Tort Remedies
Armstrong alleges that all three defendants deprived him
of his liberty without due process of law by acting in bad
faith to cause the loss or destruction of exculpatory evidence.
All three defendants argue that Armstrong has failed to al-
lege a violation of his federal constitutional rights. They ar-
gue that a state tort action could have provided him a reme-
dy sufficient to satisfy federal due process requirements. The
argument is based on Parratt v. Taylor, 451 U.S. 527 (1981).
That case held that state officials did not violate a prisoner’s
procedural due process rights by negligently losing his per-
sonal property because their actions could be remedied
through a state tort suit—all the process constitutionally due
for the officials’ “random and unauthorized” acts. 451 U.S. at
541, 543–44.2
2 On grounds not relevant here, Parratt was overruled in part by
Daniels v. Williams, 474 U.S. 327, 330–331 (1986), which held that purely

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Nos. 13-3424 & 13-3482 17
Hudson v. Palmer extended this reasoning to intentional
deprivations of property. 468 U.S. 517, 533 (1984). And in
Zinermon v. Burch, the Court concluded that the Par-
ratt/Hudson rationale also extends to “random and unauthor-
ized” deprivations of liberty. 494 U.S. 113, 132 (1990). As de-
fendants read these cases and frame the question, Armstrong
has alleged wrongdoing by defendants that (a) would have
been “random and unauthorized” and (b) could have been
the subject of a tort claim under Wisconsin law, so any dep-
rivation of liberty would not have been without due process
of law.
We reject this argument, which we view as profoundly
mistaken. The defendants read the Parratt doctrine much too
broadly. First, the Parratt doctrine does not apply to claims
alleging that wrongful conduct corrupted fair fact-finding in
the criminal justice system. No court has suggested as much.
Armstrong’s claims seek to vindicate rights of fundamental
fairness and thus differ in kind from procedural due process
claims governed by Parratt, which seek only notice and a
hearing before a deprivation occurs. Second, the defendants’
broad reading of Parratt cannot stand in light of later limit-
ing cases. Those cases have made clear that Parratt is limited
to a narrow category of due process cases where the plaintiff
claims he was denied a meaningful pre-deprivation hearing,
but under circumstances where the very notion of a pre-
deprivation hearing would be impractical and even nonsen-
sical, and where the deprivation was not carried out through
established state procedures. See, e.g., Zinermon, 494 U.S. at
128, 138. The fact that the alleged wrongdoing also violated
negligent conduct could not deprive an individual of life, liberty, or
property in violation of the Fourteenth Amendment.

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18 Nos. 13-3424 & 13-3482
state law and could support a tort claim is not sufficient to
invoke the Parratt doctrine. Third, when the Parratt doctrine
is understood properly, the differences between those cases
and this one become clear and decisive.
1. Parratt and Violations of Fundamental Fairness in
Criminal Proceedings
The defendants argue that Armstrong’s claims based on
the loss or destruction of exculpatory evidence are proce-
dural due process claims, and procedural due process claims
are governed by Parratt. See Zinermon, 494 U.S. at 125 (hold-
ing that the existence of state remedies is relevant to proce-
dural due process claims but not claims based on substan-
tive due process or other specific protections in the Bill of
Rights). But no court has applied Parratt to claims that the
government violated a defendant’s right of access to exculpa-
tory evidence. Armstrong’s claims do not seek notice and a
hearing—like the procedural due process claims addressed
in Parratt and its progeny—but rather seek to vindicate
rights of fundamental fairness in criminal proceedings.
We find support for this distinction in Justice Kennedy’s
concurring opinion in Albright v. Oliver, 510 U.S. 266, 281–86
(1994), which we have treated as controlling. See Newsome v.
McCabe, 256 F.3d 747, 750–51 (7th Cir. 2001). The claim in Al-
bright was only that the plaintiff had been prosecuted with-
out probable cause. Unlike this case, there was no claim that
a law enforcement official had acted in bad faith to under-
mine the reliability of a trial, such as by manufacturing false
evidence, arranging for perjured testimony, or destroying
exculpatory evidence.

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Nos. 13-3424 & 13-3482 19
For a claim limited to prosecution without probable
cause, Justice Kennedy, joined by Justice Thomas, urged ap-
plication of Parratt but emphasized that such a claim
differs in kind from In re Winship, 397 U.S. 358
(1970), and the other criminal cases where we
have recognized due process requirements not
specified in the Bill of Rights. The constitution-
al requirements we enforced in those cases en-
sured fundamental fairness in the determina-
tion of guilt at trial. See, e.g., Mooney v. Holohan,
294 U.S. 103, 112 (1935) (due process prohibits
“deliberate deception of court and jury” by
prosecution’s knowing use of perjured testi-
mony).
510 U.S. at 283 (citation omitted). In this passage, Justice
Kennedy recognized that certain rights essential to the fun-
damental fairness of a criminal trial—such as the right in
Mooney to a trial free of deliberately perjured testimony—are
beyond the reach of Parratt.
Armstrong’s claims are based on one of these rights es-
sential to fundamental fairness that are beyond the reach of
Parratt. As we explain below, the right not to have exculpato-
ry evidence deliberately destroyed stems directly from the
right to disclosure of exculpatory evidence identified in
Brady v. Maryland—which was itself “an extension of
Mooney,” Brady, 373 U.S. at 86, cited in Justice Kennedy’s Al-
bright concurrence. These rights are all grounded in the due
process guarantee of fundamental fairness in criminal prose-
cutions. A criminal defendant’s right not to have exculpatory
evidence destroyed deliberately, like other fundamental fair-
ness rights of criminal defendants, “safeguard[s] the liberty

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20 Nos. 13-3424 & 13-3482
of the citizen against deprivation through the action of the
state” and “cannot be deemed to be satisfied by mere notice
and hearing.” See Mooney, 294 U.S. at 112.
So it comes as no surprise that Parratt’s application has
been rejected in the rare wrongful conviction cases where
defendants have raised it. In Castellano v. Fragozo, 352 F.3d
939 (5th Cir. 2003) (en banc), the plaintiff proved at trial that
a police officer had manufactured evidence and arranged for
perjured testimony, leading to the wrongful conviction. On
appeal, the defendants relied on Parratt to argue there had
been no due process violation. The en banc Fifth Circuit re-
jected the Parratt argument. The plaintiff had not claimed
merely that he was prosecuted without probable cause or
that the result of his trial was wrong. He had instead shown
that a defendant had manufactured and perjured evidence
that had violated fundamental constitutional rights and had
undermined his right to a fair determination of guilt or inno-
cence at his trial. Id. at 957–58. Armstrong has alleged paral-
lel violations: that Norsetter’s destruction of exculpatory ev-
idence prevented him from having a fair trial to determine
guilt or innocence, and that the other defendants’ destruction
of exculpatory evidence made it impossible for him to have a
fair trial but also kept him in prison for three extra years.
In Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), we
drew essentially the same line that the Fifth Circuit did.
Newsome is cited most often for its rejection of a constitution-
al tort of malicious prosecution where a state provides a
meaningful tort remedy for malicious prosecution. That rea-
soning relied on Justice Kennedy’s concurring opinion as the
controlling view in Albright v. Oliver, 510 U.S. 266, 281–86.
See Newsome, 256 F.3d at 750–51. And that reasoning applied

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Nos. 13-3424 & 13-3482 21
in both Albright and Newsome to hold that there is no stand-
alone federal constitutional right not to be prosecuted with-
out probable cause, at least if a state-law remedy is available.
But Newsome also held that the same argument based on
Parratt did not bar a claim that police officers had withheld
exculpatory evidence from the prosecutor and thus the de-
fense. Id. at 752–53 (affirming denial of qualified immunity
for claim based on this theory). The plaintiff in Newsome was
allowed to proceed on that theory, despite Parratt, and that
part of Newsome provides the closest parallel to Armstrong’s
claims for destruction of exculpatory evidence. See also Cas-
tellano, 352 F.3d at 962 (Jones, J., concurring in relevant part)
(agreeing that Parratt did not bar the plaintiff’s due process
claim based on manufactured evidence and perjured testi-
mony and citing opinions from several circuits that allowed
such claims to go forward).3
No court has accepted the defendants’ argument that the
Parratt analysis applies when the plaintiff is alleging that
wrongful conduct corrupted fair fact-finding in the criminal
justice system. We will not be the first. We will, however, ex-
plain further our reasoning for rejecting Parratt as an obsta-
cle to Armstrong’s claims. When Parratt and its progeny are
understood properly, it becomes clear that Armstrong can
proceed on his claim because the defendants’ actions were
not “random and unauthorized” within the meaning of Par-
3 Defendants find some support for their reading of Parratt and Hud-
son in Judge Barksdale’s partial dissent in Castellano, 352 F.3d at 967–72,
which read both cases broadly as applying essentially to any claim for
deprivation of procedural due process. Like the Fifth Circuit majority,
though, we disagree with that reading for the reasons explained above.

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22 Nos. 13-3424 & 13-3482
ratt and that state tort law does not provide an adequate
remedy.
2. The Rationale for and Scope of Parratt and Hudson
We start with the rationale for Parratt and Hudson, as ex-
plained in those opinions and later cases. In Parratt, prison
staff negligently lost some personal property (“hobby mate-
rials”) that a prisoner had purchased. The prisoner sued un-
der 42 U.S.C. § 1983 for deprivation of his property without
due process of law, arguing that he was entitled to a hearing
before a state actor permanently deprived him of his proper-
ty. In a pragmatic decision, the Supreme Court held that the
prisoner had failed to state a claim for relief under the Due
Process Clause of the Fourteenth Amendment. Parratt, 451
U.S. at 539–40. A pre-deprivation hearing was not possible,
id. at 541, so a meaningful post-deprivation tort remedy pro-
vided all the process that could be expected and thus all the
process that was due. Id. at 543. Also important for present
purposes, “the deprivation did not occur as a result of some
established state procedure. Indeed, the deprivation oc-
curred as a result of the unauthorized failure of agents of the
State to follow established state procedure.” Id.
In Hudson v. Palmer, 468 U.S. 517 (1984), the Court ex-
tended the reasoning of Parratt from a claim based on negli-
gence to a claim that a guard had intentionally destroyed a
prisoner’s property (including legal papers) in a “shake-
down” search of his cell. The Court explained that a pre-
deprivation hearing would be no more practical for a “ran-
dom and unauthorized” deprivation of property that was
intentional than for one that was negligent. Id. at 533. The
prisoner in Hudson was also left to his state-law remedies.

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Nos. 13-3424 & 13-3482 23
It is possible to read these two cases broadly, as defend-
ants do, in a way that would bar virtually all § 1983 due pro-
cess claims so long as state law offers some post-deprivation
remedy. That reading would conflict with decades of prece-
dent establishing that violations of due process are in most
instances federal claims based on federal rights and are ac-
tionable under § 1983. As we explained in Tavarez v.
O’Malley, 826 F.2d 671, 675 (7th Cir. 1987), for example, un-
der a broad reading of Parratt, “even such classic constitu-
tional-tort cases as that of the policeman who kills a suspect
in order to bypass the cumbersome procedures of the crimi-
nal justice system would not be actionable, provided the kill-
ing was a tort under state law.” Or consider the body of due
process law protecting tenured public employees from being
fired without prior notice and an opportunity to be heard.
See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985); Board of Regents of State Colleges v. Roth, 408 U.S.
564 (1972), and their progeny. If a post-deprivation tort rem-
edy were sufficient to cure any due process problem, as de-
fendants argue here, Parratt and Hudson would have erased
that body of law.
An expansive reading of Parratt might even jeopardize
Goldberg v. Kelly, 397 U.S. 254 (1970), which held that recipi-
ents of welfare benefits had a right to a hearing before their
benefits could be terminated, even if later awards of retroac-
tive benefits might compensate for erroneous termination. If
defendants’ argument were correct here and a post-
deprivation remedy cured any failure to provide a fair pre-
deprivation hearing, then these and other fields of due pro-
cess law would be undermined.

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24 Nos. 13-3424 & 13-3482
Moreover, it is well established that the fact that a public
official violates state law does not mean that the federal
Constitution has not also been violated or that relief is not
available under § 1983. See Monroe v. Pape, 365 U.S. 167, 183
(1961) (plaintiff could seek relief under § 1983 for police of-
ficers’ violation of his Fourth Amendment rights even if po-
lice also violated state law).4 A broad reading of Parratt is in
tension with the Court’s holding that the federal remedy un-
der § 1983 “is supplementary to the state remedy, and the
latter need not be first sought and refused before the federal
one is invoked.” Id. Accordingly, Parratt cannot apply simply
because the defendant official’s actions were prohibited by
state law and subject to a tort remedy.
A closer reading of Parratt, Hudson, and later cases shows
that the Supreme Court never intended Parratt to reach as
broadly as the defendants argue. The Court’s decisions make
clear that Parratt is limited in three ways: first, “random and
unauthorized” conduct means unforeseeable misconduct
that cannot practicably be preceded by a hearing; second,
misconduct that is legally enabled by a state’s broad delega-
tion of power is not “random and unauthorized”; and third,
an official’s subversion of established state procedures is not
“random and unauthorized” misconduct.
First, to count as “random and unauthorized,” miscon-
duct must be misconduct of state officials that the State can-
not foresee and that cannot be the subject of a meaningful
4 On grounds not relevant here, Monroe was overruled in part by
Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978), which
held that municipalities are suable “persons” under § 1983.

-- 24 of 57 --

Nos. 13-3424 & 13-3482 25
pre-deprivation procedure. Parratt, 451 U.S. at 541. This
point is illustrated by Zinermon v. Burch, 494 U.S. 113 (1990),
in which the Court allowed a due process claim despite a
Parratt argument based on adequate state remedies because
the misconduct that resulted in the deprivation was predict-
able and could have been prevented by a pre-deprivation
hearing.
The plaintiff in Zinermon had requested voluntary admis-
sion to a state mental hospital. His specific claim was that
state officials had deprived him of his liberty without due
process of law by allowing him to commit himself without
first ensuring that he was competent to give informed con-
sent. The Court found that the danger of such deprivations
was foreseeable and preventable through pre-deprivation
procedures: “It is hardly unforeseeable that a person re-
questing treatment for mental illness might be incapable of
informed consent ….” 494 U.S. at 136.
Second, the Court further explained that an official’s ex-
ercise of broad delegated power is not within the limited
meaning of “random and unauthorized” acts under Parratt.
Zinermon held that the conduct was not unauthorized even
though it violated state law because the state’s broad delega-
tion of authority to a state official enabled the deprivation of
liberty. Speaking of the officials who admitted Burch without
ensuring that he was competent to consent, the Court said:
“The State delegated to them the power and authority to ef-
fect the very deprivation complained of here … and also del-
egated to them the concomitant duty to initiate the proce-
dural safeguards set up by state law to guard against unlaw-
ful confinement.” Id. at 138. Therefore, the Court concluded,
the “deprivation here is ‘unauthorized’ only in the sense that

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26 Nos. 13-3424 & 13-3482
it was not an act sanctioned by state law, but, instead, was a
‘depriv[ation] of constitutional rights … by an official’s
abuse of his position.’” Id. (alteration in original), quoting
Monroe, 365 U.S. at 172. See also Daily Services, LLC v. Valenti-
no, 756 F.3d 893, 910 (6th Cir. 2014) (Moore, J., concurring in
part and dissenting in part) (explaining that Zinermon rea-
soned that the conduct of state officials in failing to follow
state-mandated procedures was authorized because they
were legally empowered to effect the deprivation). Thus, the
fact that a public official has used his power to deprive a
person of property or liberty in a way that also violates state
law does not necessarily defeat a federal due process claim.
Third, the Court held in Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982), a case decided in the immediate wake of
Parratt, that an official’s mistaken subversion of established
state procedures is not “unauthorized” conduct. In Logan the
Court considered a claim that the plaintiff was deprived of
property because a state officer mistakenly subverted the
prescribed state procedures. Logan had asserted a state-law
claim for disability discrimination in employment. He was
required to bring his claim through a state agency, and the
agency made a mistake in scheduling a required conference.
The state courts ruled that the agency’s mistake required
dismissal of Logan’s claim.
The Logan Court found that the feature of state law re-
quiring dismissal of a presumably valid claim because a
state actor had made a mistake deprived the plaintiff of
property without due process of law. 455 U.S. at 436. The
Court rejected a defense argument based on Parratt. The
Court explained that the tortious loss of property in Parratt
had been the result of “‘a random and unauthorized act by a

-- 26 of 57 --

Nos. 13-3424 & 13-3482 27
state employee … not a result of some established state pro-
cedure.’” Id. at 435–36 (omission in original), quoting Parratt,
451 U.S. at 541. In Logan, by contrast, “it is the state system
itself that destroys a complainant’s property interest, by op-
eration of law, whenever the Commission fails to convene a
timely conference—whether the Commission’s action is tak-
en through negligence, maliciousness, or otherwise. Parratt
was not designed to reach such a situation,” where the loss oc-
curred through “established state procedure,” even where a
mistake had been made in carrying out that procedure. Id. at
436 (emphasis added).
To support their much broader reading of Parratt, which
fails to recognize these three limitations, defendants here
quote Hood v. City of Chicago, where we said that Parratt
meant that “‘a victim of a property or liberty deprivation
who has recourse to an adequate state remedy has not been
denied due process of law.’” 927 F.2d 312, 314 (7th Cir. 1991),
quoting Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.
1984) (some internal quotations marks omitted). The quoted
language is an incomplete and overly broad statement of the
Parratt doctrine.
Our later cases have recognized more accurately that the
Parratt doctrine applies only to conduct that is “random and
unauthorized” in the sense that the state could not predict
the conduct causing the deprivation, could not provide a
pre-deprivation hearing as a practical matter, and did not
enable the deprivation through established state procedures
and a broad delegation of power. See Veterans Legal Defense
Fund v. Schwartz, 330 F.3d 937, 940 (7th Cir. 2003) (“Parratt
essentially stands for the rule that when predeprivation
hearings are impractical because the actions of the state of-

-- 27 of 57 --

28 Nos. 13-3424 & 13-3482
ficers were ‘random and unauthorized’ the state is only re-
sponsible for providing postdeprivation remedies.”); Cush-
ing v. City of Chicago, 3 F.3d 1156, 1165 (7th Cir. 1993) (ac-
knowledging that “‘Zinermon narrowed the scope of Parratt’s
application in certain factual circumstances’” and emphasiz-
ing the relevance of the predictability of the deprivation),
quoting Easter House v. Felder, 910 F.2d 1387, 1400 (7th Cir.
1990) (en banc); Easter House, 910 F.2d at 1400 (interpreting
Zinermon to counsel a narrow reading of potentially broad
language in Parratt: “the dispositive factor in determining
whether Parratt will indeed apply in a given situation is still
whether the state actor’s conduct is ‘random and unauthor-
ized’ or, as the Court has rephrased it, whether the state ac-
tor’s conduct is ‘predictable and authorized’”).
To sum up, the Parratt doctrine responded to a practical
problem in a narrow subset of procedural due process cases,
where a plaintiff contends that the state must provide notice
and a hearing before carrying out a deprivation of liberty or
property, but where a pre-deprivation hearing simply is not
practical. In both Parratt and Hudson, the plaintiffs com-
plained they had been deprived of property with no process
at all, so they sought to vindicate their right to notice and an
opportunity to be heard through § 1983. The Court respond-
ed in Parratt with a special application of the Mathews v. El-
dridge, 424 U.S. 319, 335 (1976), balancing test: “Parratt and
Hudson represent a special case of the general Mathews v. El-
dridge analysis, in which postdeprivation tort remedies are
all the process that is due, simply because they are the only
remedies the State could be expected to provide.” Zinermon,
494 U.S. at 128.

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Nos. 13-3424 & 13-3482 29
The familiar test weighs three factors to determine what
process is due: first, the private interest at stake; second, the
degree to which more process will make a difference in the
risk of wrongful deprivation; and third, the cost to the gov-
ernment of providing more procedural protection. Mathews,
424 U.S. at 335. Parratt and Hudson held that in cases where
the deprivation is unpredictable, no pre-deprivation hearing
is required because it would be utterly impractical. Viewed
through the lens of Mathews, more process is unlikely to
make a difference in the risk of deprivation when the depri-
vation is caused by random and unpredictable acts and not
through established state procedures.
3. The Differences Between the Parratt Doctrine and This
Case
When Parratt and its progeny are read carefully, then,
and are read against the broader sweep of due process juris-
prudence, they do not bar Armstrong’s claims based on dep-
rivation of his liberty through deliberate destruction of ex-
culpatory evidence. More specifically, Parratt does not bar
Armstrong’s claims because the defendants’ conduct was not
“random and unauthorized” and the available state reme-
dies are not adequate.
First, the alleged conduct here was not “random and un-
authorized” as the phrase is used in the Parratt doctrine. It is
foreseeable that law enforcement officers will, on occasion,
act overzealously to pursue conviction of the wrong person.
See Zinermon, 494 U.S. at 136 (holding that foreseeable con-
duct is not “random and unauthorized”). Prosecutor Norset-
ter was acting within the broad delegation of power he had
been given, see id. at 138 (holding that a deprivation by an
official’s abuse of position is not unauthorized), and Arm-

-- 29 of 57 --

30 Nos. 13-3424 & 13-3482
strong was deprived of his liberty through established state
procedures, in the form of his criminal trial, see Logan, 455
U.S. at 435–36 (holding that a deprivation resulting from a
mistake in established state procedures is not “random and
unauthorized”).
This is not a case where a pre-deprivation hearing would
have been utterly impractical, as was the case in both Parratt
and Hudson. Armstrong was not deprived of his liberty until
after he had gone through the most elaborate pre-
deprivation procedural protections known to American law:
a criminal trial. Instead, Armstrong’s claim is that the proce-
dure he was due—a fair criminal trial—was rendered unfair
by Norsetter’s deliberate wrongdoing. The same reasoning
applies to Armstrong’s claim against lab technicians Daily
and Campbell since he alleges that their actions caused him
to spend an additional three years in prison, which were also
the product of established state procedures.
Second, even if we ignored the other limits to Parratt and
Hudson, the state tort of malicious prosecution simply does
not provide an adequate remedy for the deprivations that
Armstrong has alleged. At the most fundamental level, it is
an absurd notion that a state-law tort remedy is an adequate
and meaningful remedy in this situation and thus that there
is no violation of the federal constitutional guarantee of due
process of law. A person in Armstrong’s position loses his
liberty upon conviction at trial. He is deprived of his liberty
unless and until he can win reversal of his conviction. Only
then, years or even decades later, could he possibly pursue a
damages remedy. An award of money damages decades lat-
er is of course better than nothing, whether in state court or
federal court. At that point, it’s all the civil legal system can

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Nos. 13-3424 & 13-3482 31
offer. But by no stretch of the legal imagination can it be
deemed an adequate or meaningful remedy for years of
wrongful imprisonment such that one can say there was no
constitutional violation in the first place. For the claims
against Daily and Campbell, we discuss the causation issue
in more detail below. Suffice it to say for now that the same
reasoning applies to the last three years that Armstrong
spent in prison.
For all of these reasons, the fact that state law might pro-
vide a tort remedy for the alleged wrongdoing by the de-
fendants in this case does not bar Armstrong’s claims.
D. Prosecutor Norsetter’s Arguments
We now turn to arguments specific to prosecutor Norset-
ter and the alleged destruction of the potentially exculpatory
drug paraphernalia that the police collected from Kamps’
apartment. Armstrong alleges that Norsetter acted in bad
faith and was intent on prosecuting him for this crime from
the beginning, regardless of the evidence. Armstrong never
had the opportunity to present this potentially exculpatory
evidence at his 1981 trial ending with his conviction for
murder and sexual assault. He served 26 years of his life sen-
tence before that conviction was overturned and another
three years before the charges were dismissed.
The district court found the factual allegations in Arm-
strong’s complaint sufficient to state a due process claim.
Norsetter maintains that Armstrong’s claim must be dis-
missed because the allegations of the complaint show he is
entitled to qualified immunity. On appeal, Norsetter repeats
two arguments that failed to persuade the district court: (1)
the destruction of the evidence did not violate Armstrong’s

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32 Nos. 13-3424 & 13-3482
right to procedural due process; and (2) Norsetter’s alleged
actions in 1980 violated no law clearly established at that
time.
1. Violation of a Constitutional Right
To show that Norsetter’s actions in causing the loss or de-
struction of the drug paraphernalia evidence violated his
constitutional right to due process of law, Armstrong relies
on Arizona v. Youngblood, 488 U.S. 51, 58 (1988), where the
Supreme Court held that the destruction of potentially ex-
culpatory evidence is not a denial of due process of law un-
less it is done in bad faith. See also California v. Trombetta, 467
U.S. 479, 488–89 (1984) (good faith failure to preserve evi-
dence with no apparent exculpatory value did not violate
due process). Norsetter argues that Armstrong’s “allegations
of bad faith are inherently contradictory,” that the drug par-
aphernalia evidence “did not have ‘apparent’ potentially ex-
culpatory value,” and that this evidence was not particularly
important because the alleged cocaine user would likely
have left other prints in the apartment.
Whatever weight these argument may have at a later
stage of the case, they cannot prevail in this appeal from a
denial of a motion to dismiss on the pleadings. We must ac-
cept the facts pled in the complaint as true and draw all rea-
sonable inferences in Armstrong’s favor. In that light, Arm-
strong has sufficiently alleged facts that Norsetter knew the
evidence had significant exculpatory value and acted in bad
faith.
Armstrong alleges that Norsetter acted “with bad faith
from the very beginning of the investigation.” And this is no
bare legal conclusion. Rule 9(b) allows states of mind to be

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Nos. 13-3424 & 13-3482 33
alleged generally. Even if it did not, the facts alleged here
certainly permit a reasonable inference that Norsetter was
acting in bad faith. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The complaint states that Norsetter admitted under oath in a
2009 state court hearing on prosecutorial misconduct that
“from the beginning he believed the Plaintiff guilty of the
rape and murder of Charise Kamps, and would never be-
lieve otherwise no matter what exculpatory evidence exon-
erated the Plaintiff or pointed to another suspect.” The com-
plaint also contains other allegations that paint Norsetter as
pursuing Armstrong through any means necessary, includ-
ing violating court orders on access to evidence and sup-
pressing the post-conviction report that Stephen Armstrong
had confessed to Kamps’ murder. These allegations are more
than sufficient to allow the inference that Norsetter was act-
ing in bad faith.5
Armstrong also alleges detailed facts to support his con-
tention that the drug paraphernalia evidence was, “even to
the most cursory consideration, plainly probative to both
general motive for the crime” and Armstrong’s innocence.
The drug paraphernalia was lying on the kitchen table in
Kamps’ home and was likely used recently. It could show
who last saw her the night of the murder. Armstrong also
5 Norsetter objects that the court may not consider later events be-
cause he is entitled to absolute prosecutorial immunity for his actions
after he charged Armstrong. While Norsetter receives absolute immunity
from suit arising out of his truly prosecutorial tasks, e.g., Imbler v. Pacht-
man, 424 U.S. 409 (1976), we do not see why that rule should prohibit the
use of later prosecutorial actions as evidence that sheds light on the
prosecutor’s state of mind in earlier, non-immune actions.

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34 Nos. 13-3424 & 13-3482
alleges that Norsetter and the investigating detectives knew
that he denied using cocaine with the victim, so the para-
phernalia could corroborate his denial and point to another
suspect. These allegations fairly support the inferences—
which must be drawn in Armstrong’s favor at this stage—
both that the evidence could have exculpatory value and
that Norsetter must have known that.
Armstrong’s allegations are sufficient to state a constitu-
tional violation. In Youngblood the Supreme Court took for
granted that the destruction of such evidence amounted to a
denial of due process of law if done in bad faith, though the
Court found no constitutional violation where the police
were merely negligent. 488 U.S. at 58 (“We therefore hold
that unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evi-
dence does not constitute a denial of due process of law”).
Armstrong has alleged facts that permit the reasonable in-
ference that Norsetter acted in bad faith to cause the loss of
this potentially exculpatory evidence. Norsetter may dispute
these allegations and the inferences one could draw in later
stages of litigation, but they suffice for now, on the plead-
ings.6
6 Judge Flaum concludes that Armstrong has not alleged sufficiently
that Norsetter acted in bad faith in 1980 when the drug evidence disap-
peared. We respectfully disagree on both substantive and procedural
grounds. Substantively, Armstrong has alleged a decades-long course of
events in which Norsetter tried to frame him for the rape and murder of
Charise Kamps and then to keep him in prison as exculpatory evidence
accumulated over the years. While it is certainly possible that the loss of
the drug evidence was merely negligent, as Judge Flaum concludes, as
we consider the pleadings we must give plaintiff, not defendant, the
benefit of reasonable inferences from his well-pled allegations. Parish v.

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Nos. 13-3424 & 13-3482 35
2. Clearly Established Law in 1980
Youngblood was of course decided in 1988, eight years af-
ter the events in question here. Norsetter argues that even if
Armstrong has stated a claim against him under Youngblood,
his conduct was not clearly unlawful in 1980. He first asserts
that he violated no clearly established law because the drug
paraphernalia evidence was only potentially exculpatory.
The drug paraphernalia could have aided Armstrong only if
it were tested and only if testing revealed someone else’s fin-
gerprints, which he says is all speculation because the evi-
dence is gone. Even if the evidence had shown someone
else’s fingerprints, Norsetter argues, that would merely have
pointed to an additional suspect without exonerating Arm-
strong. Norsetter suggests the Supreme Court did not estab-
lish a legal duty to preserve potentially exculpatory evidence
until Youngblood in 1988.
We disagree. This argument is refuted by both Killian v.
United States, 368 U.S. 231 (1961), and Brady v. Maryland, 373
U.S. 83 (1963).
City of Elkhart, 614 F.3d at 679 (wrongful conviction case); see also Fed. R.
Civ. P. 9(b) (allowing states of mind to be alleged generally). Arm-
strong’s allegation of bad faith is at least plausible.
In terms of procedure, recall that Norsetter has appealed from the
denial of his motion to dismiss on qualified immunity. If an appellate
court finds insufficient detail in a complaint that the district court found
sufficient, the remedy should be a remand to the district court with an
opportunity to amend the complaint, not a dismissal with prejudice as
sought by Norsetter. See Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009)
(after remand of Iqbal by Supreme Court, remanding to district court to
allow amendment of complaint).

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36 Nos. 13-3424 & 13-3482
Killian addressed law enforcement’s duty to preserve po-
tentially exculpatory evidence. Killian was convicted of giv-
ing false testimony for lying about his involvement in the
Communist Party. Killian, 368 U.S. at 235. A witness working
for the government testified he had seen Killian participate
in party meetings. Id. at 237. The witness, Ondrejka, was re-
imbursed for party membership fees and travel expenses by
orally reporting his expenses to an FBI agent, who took notes
and saw that Ondrejka was paid. Id. at 238. Killian wanted
the government to produce the FBI agents’ notes of the re-
imbursement payments. Id. at 238–39. The government re-
fused but offered a summary of payments showing the date,
amount, and reason for each payment. Id. at 238.
When the case reached the Supreme Court, the Solicitor
General represented that the FBI had destroyed the original
notes “in accord with normal practice” before Killian’s trial.
368 U.S. at 241. The Solicitor General argued that there was
no harm from the destruction of the notes because all rele-
vant information from them was incorporated into the
summary report or contained in Ondrejka’s narrative state-
ments, both of which were given to the defense. Id. at 240–41.
But Killian still asserted a violation of statutory and constitu-
tional due process rights because the government “admits
the destruction of evidence that may have been helpful.” Id.
at 241.
The Court found no statutory or constitutional violation,
but only on the assumption that the Solicitor General was
correct and the government acted in good faith: “If the
agents’ notes of Ondrejka’s oral reports of expenses were
made only for the purpose of transferring the data thereon to
the receipts to be signed by Ondrejka, and if, after having

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Nos. 13-3424 & 13-3482 37
served that purpose, they were destroyed by the agents in
good faith and in accord with their normal practice, it would
be clear that their destruction did not constitute an imper-
missible destruction of evidence nor deprive petitioner of
any right.” 368 U.S. at 242. The Court then remanded to the
district court with specific directions: “If … the District
Court finds that the Solicitor General’s representations are
untrue in any material respect, it shall grant petitioner a new
trial.” Id. at 244.
Norsetter argues that the Killian remand order was lim-
ited to determining whether the non-disclosure of two other
documents was harmless error. This interpretation is unten-
able in light of the Court’s order that the petitioner be grant-
ed a new trial if “the Solicitor General’s representations are
untrue in any material respect,” 368 U.S. at 244, and the
plainly conditional ruling on the destruction of the notes, id.
at 242.
Based on Killian, then, law enforcement officials were on
notice long before 1980 that the duty to preserve was not
limited to obviously exculpatory evidence. In fact, the con-
nection between evidence in question in Killian and guilt or
innocence of the charged crime was much more attenuated
than the connection here between the drug paraphernalia
and Armstrong’s guilt or innocence. It is not entirely clear
under what theory Killian thought the FBI agents’ notes
would be relevant, only that he insisted he had the right to
inspect them free from bad-faith government interference. In
this case, by contrast, Armstrong has advanced a straight-
forward theory for the relevance of the drug paraphernalia:
if tested, it probably would have revealed the fingerprints or
other evidence of the real killer.

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38 Nos. 13-3424 & 13-3482
The Supreme Court acknowledged the significance of
Killian when it faced the question of the duty to preserve ev-
idence decades later in California v. Trombetta, 467 U.S. 479
(1984). The Trombetta Court said “the instant case is reminis-
cent of Killian,” a case “in which we have discussed due pro-
cess constraints on the Government’s failure to preserve po-
tentially exculpatory evidence.” Id. at 487. And our col-
leagues in other circuits have consistently interpreted Killian
in this manner. See United States v. Sullivan, 919 F.2d 1403,
1427 & n.37 (10th Cir. 1990); United States v. Arra, 630 F.2d
836, 848–49 (1st Cir. 1980) (relying in part on Killian in an-
nouncing a three-pronged inquiry—materiality, prejudice,
and good or bad faith—for due process claims for destruc-
tion of evidence); United States v. Moore, 453 F.2d 601, 603–04
(3rd Cir. 1971) (citing Killian but finding no error because FBI
agent’s notes “were destroyed in good faith”).
Norsetter also asserts that a prosecutor had no clearly es-
tablished legal duty to refrain from destroying evidence of
any kind in 1980. While he acknowledges that Brady v. Mary-
land established a duty to disclose material evidence to the
defense, 373 U.S. at 86, he says there was no non-disclosure
here because Armstrong was aware that the evidence was
destroyed before trial.
This second argument fails in light of Killian, but it also
strains Brady to the point of absurdity. Though Brady did not
announce a duty to preserve evidence, a duty to refrain from
bad-faith destruction flows necessarily, and obviously, from
its familiar holding that suppression of material exculpatory
evidence violates due process. Brady, 373 U.S. at 86. Brady
would mean nothing if, as Norsetter argues, a prosecutor
could comply with its command by deliberately destroying

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Nos. 13-3424 & 13-3482 39
exculpatory evidence and then disclosing the fact of destruc-
tion to the defense.
Under Norsetter’s argument, a reasonable police investi-
gator could have believed in 1980 that if he possessed excul-
patory evidence, he had an obligation to disclose it to the de-
fense unless he deliberately destroyed it first. No reasonable po-
lice officer or prosecutor could have believed that in 1980.
That is not a reasonable interpretation of Brady, and neither
Norsetter nor the partial dissenting opinion has directed us
to any courts that have adopted it. Under the law in 1980,
including at least Killian and Brady, prosecutors had a clearly
established legal duty not to act in bad faith to destroy evi-
dence, which if suppressed or destroyed, “creates a reasona-
ble doubt that did not otherwise exist.” See United States v.
Agurs, 427 U.S. 97, 112–13 (1976) (defining material evidence
that must be disclosed under Brady).
The Supreme Court wrote in Trombetta that it had “never
squarely addressed the government’s duty to take affirma-
tive steps to preserve evidence on behalf of criminal defend-
ants.” 467 U.S. at 486. In light of both Killian and Brady, that
comment is best understood as meaning that the Court had
never addressed a duty to preserve evidence above and be-
yond the duty to act in good faith under Killian and the duty
to disclose material evidence under Brady. The question in
Trombetta was whether the duty to preserve extended to cas-
es where the government did not act in bad faith. The Court
was assuming that bad-faith destruction of evidence was al-
ready unlawful because of Killian and Brady, though it did
not dwell on this point because there was no allegation of
bad faith in Trombetta. Id. at 489.

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40 Nos. 13-3424 & 13-3482
Killian and Brady thus gave sufficient notice to defeat
Norsetter’s claim of qualified immunity on this ground. See
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (denying qualified
immunity where “a general constitutional rule already iden-
tified in the decisional law may apply with obvious clarity to
the specific conduct in question, even though the very action
in question has not previously been held unlawful”) (cita-
tions and internal quotations omitted). And even if all this
were not enough, this court had ruled expressly in 1978 that
destroying and falsifying evidence was unlawful, further
supporting that this rule was uncontroverted by 1980. Hei-
delberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978). The Hei-
delberg opinion on the point was terse, but that only empha-
sizes the strength of Brady in this regard.
The district court properly rejected Norsetter’s qualified
immunity defense at this stage. Discovery or evidence at trial
may show that Armstrong’s allegations of bad faith are not
true or that Norsetter was not responsible for the loss of the
drug paraphernalia evidence. In holding that the complaint
alleges a violation of clearly established constitutional law,
we express no opinion on the propriety of qualified immuni-
ty at a later stage of litigation.
E. Daily and Campbell’s Arguments
Armstrong’s claim against the two state lab technicians,
Daily and Campbell, stems from their handling of evidence
after his conviction was vacated and the case was remanded
for a new trial. Armstrong alleges that Daily and Campbell
violated his rights by performing testing that consumed a
critical piece of evidence—the newly discovered semen stain

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Nos. 13-3424 & 13-3482 41
on the victim’s bathrobe belt. That final test, the Y-STR anal-
ysis, examined only the Y chromosome and could not distin-
guish between men with the same father. The choice of the
Y-STR test may have been especially devious because, if the
real killer was Armstrong’s brother Stephen, consistent with
the confession reported to Norsetter back in 1995, then the Y-
STR test would seem to implicate plaintiff Ralph Armstrong
while also depriving him of the ability to clear his name
through tests that could have distinguished between him
and Stephen.
Armstrong presents two legal theories for his claim
against the state lab technicians. First, he argues the exculpa-
tory value of the semen sample was apparent to Daily and
Campbell so that its destruction was plainly unlawful under
Trombetta, 467 U.S. at 488–89. In the alternative, he argues
that even if the semen sample was only potentially exculpa-
tory, Daily and Campbell acted unlawfully because they de-
stroyed it in bad faith. See Youngblood, 488 U.S. at 58. Both
theories are sufficient to assert a violation of Armstrong’s
right to due process of law.
Daily and Campbell offer two arguments to support the
defense of qualified immunity. First, they argue that the de-
struction of the semen sample violated no constitutional
right because Armstrong was not retried and trial is an es-
sential element of this constitutional claim. Second, they ar-
gue that even if their alleged actions violated a constitutional
right, that right was not clearly established in 2006. We ad-
dress these arguments in turn.

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42 Nos. 13-3424 & 13-3482
1. Is a Trial Needed for a Constitutional Violation?
Daily and Campbell’s argument on the first prong of the
qualified immunity defense is that Armstrong asserts a due
process right to a fair trial, so the fact that he was not retried
on remand defeats his claim. (Recall that a state judge or-
dered dismissal of the charges against Armstrong because
the evidence destruction had made a fair trial impossible.)
We reject this argument. We first explain the basis of Arm-
strong’s claim and then turn to the defense argument.
The constitutional violation that Armstrong asserts is the
deprivation of his liberty without due process of law, as the
result of the destruction of evidence by a state actor. See
Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000) (defining the
right at issue as “the right not to be deprived of liberty as a
result of the fabrication of evidence by a government officer
acting in an investigating capacity”). Though the most com-
mon liberty deprivation cases are based on post-trial incar-
ceration after a wrongful conviction, the essential elements
of this constitutional claim are more general and not limited
to wrongful convictions. See Fields v. Wharrie, 740 F.3d 1107,
1112 (7th Cir. 2014) (“[T]he fabrication of evidence harmed
the defendant before and not just during the trial, because it
was used to help indict him.”), citing Julian v. Hanna, 732
F.3d 842, 847 (7th Cir. 2013).
Armstrong’s claim therefore has two essential elements:
(1) the defendant destroyed exculpatory evidence in bad
faith or engaged in other misconduct (2) that caused a depri-
vation of the plaintiff’s liberty. Even assuming for the sake of
argument that Armstrong needed to allege in his pro se
complaint facts that permit the inference that defendants
acted with improper motive, his complaint clearly satisfies

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Nos. 13-3424 & 13-3482 43
the first element. He has alleged (plausibly) that Daily and
Campbell acted in bad faith to destroy exculpatory evidence.
He has also alleged the second element, that defendants’ ac-
tions caused him to suffer a deprivation of liberty. Taking
Armstrong’s allegations as true, and giving him the benefit
of favorable inferences, we must assume that Daily and
Campbell’s actions caused Armstrong to suffer a loss of lib-
erty as he languished in prison for three more years after
Daily said he was excluded by the earlier DNA tests and af-
ter the last sample had been destroyed in the Y-STR test of
the newly discovered stain.
Most of defendants’ support for the proposition that the
plaintiff must have been tried before he can sue is drawn
from cases applying the Brady obligation to disclose exculpa-
tory evidence. See Ray v. City of Chicago, 629 F.3d 660, 664
(7th Cir. 2011) (expressing doubt whether a plaintiff has a
civil claim for a Brady violation “when the individual is
merely charged with a crime, but never fully prosecuted”);
Taylor v. Waters, 81 F.3d 429, 435–36 (4th Cir. 1996) (rejecting
a due process claim for failure to disclose exculpatory evi-
dence to a pretrial detainee).
In this respect, the Brady cases involving failures to dis-
close evidence are plainly distinguishable from this case in-
volving destruction of evidence. We have often observed
that “Brady does not require pretrial disclosure.” United
States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001); Buckley v.
Fitzsimmons, 20 F.3d 789, 797 (7th Cir. 1994); see also Whitlock,
682 F.3d at 588 (explaining Brady as imposing an obligation
on state actors to disclose “exculpatory evidence that is dis-
covered before or during trial”). The prosecution may fulfill
its Brady obligation through disclosure in the time leading

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44 Nos. 13-3424 & 13-3482
up to or sometimes even during trial. The critical question
under Brady is whether the exculpatory evidence is “dis-
closed in time for the defendant to make use of it.” Grintjes,
237 F.3d at 880. We therefore have been hesitant to recognize
a § 1983 cause of action for the withholding of exculpatory
evidence before trial because the constitutional violation is
not even ripe if the prosecution can still meet its Brady obli-
gation by disclosing the evidence in time for the defendant
to use it.
In this respect, Armstrong’s claim for destruction of ex-
culpatory evidence is different. Under the reasoning of Killi-
an and Youngblood, bad-faith destruction of exculpatory evi-
dence is an immediate constitutional violation. It may or
may not eventually cause harm, but harm is a separate issue.
Destruction is not easy to remedy. Deliberate destruction of
evidence with potential or apparent exculpatory value can
make it impossible for the accused to receive due process of
law, regardless of the procedural posture of the criminal case
at the time of the destruction. See Trombetta, 467 U.S. at 482–
83 (considering claims on merits but rejecting claims where
evidence had no apparent exculpatory value and was de-
stroyed in good faith); Youngblood, 488 U.S. at 58 (reviewing
reversal of conviction on direct appeal and holding that “un-
less a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law”). The out-
right destruction of exculpatory evidence raises immediate
constitutional concern because the resulting prejudice to the
defense is permanent. Whatever unfairness results from the
destruction will infect all future proceedings because the ex-
culpatory evidence will continue to be unavailable.

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Nos. 13-3424 & 13-3482 45
We assume that the most common cases involving de-
struction of evidence are those where a defendant was
wrongly convicted and imprisoned after a trial. But this case
illustrates why the claim should not be limited to its most
common version by a too-narrow requirement that the ac-
cused have been tried and convicted.
The only reason Armstrong did not face retrial after 2005
is that the defendants’ conduct was so outrageous and harm-
ful that a judge prohibited the prosecution from proceeding
any further, even with crimes as serious as the brutal murder
and rape of Ms. Kamps. Wisconsin courts evaluating the
State’s actions in this case found bad faith. One judge found
that “a series of conscious decisions” “seriously prejudice[d]
the defense.” After finding alternative evidentiary remedies
“insufficient,” that judge dismissed the criminal case against
Armstrong because his “due process right to a fair trial has
been irreparably compromised.” Yet now the civil defend-
ants argue that the judge’s dismissal of the case immunized
them from civil liability for the constitutional violation of
intentionally destroying the evidence that Armstrong need-
ed to prove his innocence and regain his liberty.
Under these circumstances, requiring a plaintiff to un-
dergo a second trial and conviction to pursue a civil claim
under § 1983 would work an obvious injustice. It would de-
ny victims of the most egregious evidence destruction—for
whom dismissal is appropriate because a fair trial is impos-
sible—a civil remedy for their loss of liberty. We have previ-
ously rejected drawing lines in § 1983 law that “would leave
a victim of graver misconduct … completely unprotected.”
Fields, 740 F.3d at 1113.

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46 Nos. 13-3424 & 13-3482
Of course, to say that the improper destruction of excul-
patory evidence violates due process is not to say that every
criminal defendant may bring a § 1983 suit whenever any
piece of exculpatory evidence is lost or destroyed. A plaintiff
must still establish “one of the necessary elements of a con-
stitutional tort: that the officer’s act … caused any injury.”
Whitlock, 682 F.3d at 582, citing McCree v. Grissom, 657 F.3d
623, 624 (7th Cir. 2011). For “there is no tort without an ac-
tionable injury caused by the defendant’s wrongful act.”
Fields, 740 F.3d at 1111, citing Buckley, 20 F.3d at 796. We have
observed, for example, that an accused has no claim against
an officer who fabricates evidence and puts the evidence in a
drawer, never to be used. Whitlock, 682 F.3d at 582, citing
Buckley, 20 F.3d at 795. Similarly, if a state officer destroys
evidence that would exculpate a person who is never prose-
cuted, there would be no injury and thus no constitutional
tort actionable under § 1983.
That is not what Armstrong has alleged, however. His al-
legations permit the reasonable inference that the defend-
ants’ destruction of evidence was both a cause-in-fact and a
proximate cause of Armstrong’s last three years in prison.
Our circuit’s approach to Brady claims is instructive on this
point. Though we have not yet recognized a Brady claim un-
der § 1983 absent a trial resulting in conviction, we have said
that we may do so if the plaintiff shows “that if all parties
had known of some piece of exculpatory evidence, the pros-
ecution would not have moved forward with charges, the
grand jury would not have indicted [the plaintiff], or the tri-
al court would have granted a motion to dismiss the indict-
ment.” Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir.
2010).

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Nos. 13-3424 & 13-3482 47
Armstrong’s allegations support the inference that a rea-
sonable prosecutor in these circumstances would not have
moved forward with the charges in 2006 and kept Arm-
strong in prison if the semen stain had not been destroyed
and the evidence had been provided to the defense for fur-
ther testing.7 Much of the physical evidence—which the
prosecution repeatedly and erroneously portrayed in the
1981 trial as conclusively establishing Armstrong’s guilt—
had already been thrown into doubt by new DNA analysis
and other laboratory findings that led the Wisconsin Su-
preme Court to conclude that the real controversy of identi-
fication was not fully tried. Armstrong, 700 N.W.2d at 129.
And Daily had concluded from earlier testing of the bath-
robe and the belt that Armstrong was excluded as the source
of the semen. The destroyed stain on the murder weapon
was therefore “the most critical and probative physical evi-
dence remaining in the case,” as Armstrong alleges. Its de-
struction, and especially the potentially false positive gener-
ated by the defendants’ choice of the Y-STR test, plausibly
caused the case to proceed, with Armstrong still in prison,
even though the testing of other evidence tended to excul-
pate Armstrong.
It is also a plausible inference from the complaint that
Armstrong’s continued imprisonment was reasonably fore-
seeable to Daily and Campbell at the time they destroyed the
semen sample. Again, the results of Daily’s first analysis of
7 Of course, it would be no defense that Norsetter himself would
have prosecuted Armstrong regardless of the exculpatory evidence. The
appropriate counterfactual to consider is whether a reasonable prosecu-
tor under these circumstances would have moved forward with the
charges.

-- 47 of 57 --

48 Nos. 13-3424 & 13-3482
the bathrobe and the belt had eliminated Armstrong as a
possible source of any of the semen stains, including the
newly discovered one on the belt. When the crucial sample
was destroyed, Daily and Campbell were retesting the stain
in an attempt to find inculpatory evidence. In fact, it is rea-
sonable to infer from the allegations not only that Arm-
strong’s continued imprisonment was reasonably foreseea-
ble, but also that continued imprisonment was Daily and
Campbell’s goal in consuming the last of the stain to perform
the Y-STR test, which would be so misleading under these
circumstances. The factual allegations in the complaint
therefore add up to a viable claim that Daily and Campbell
violated Armstrong’s constitutional rights by destroying ex-
culpatory evidence under both Youngblood and Trombetta,
and that the destruction caused Armstrong to be deprived of
liberty.
Our conclusion that Armstrong has alleged a constitu-
tional violation actionable against Daily and Campbell under
§ 1983 causes us to disagree with some of the Tenth Circuit’s
broad language in Morgan v. Gertz, 166 F.3d 1307 (10th Cir.
1999), but not necessarily with its holding. In Morgan, the
plaintiff had been prosecuted for molesting his young step-
daughter. When police first questioned the girl in a recorded
interview, she gave no indication she had been a victim of
sexual abuse. When additional information surfaced, the po-
lice interviewed her again and she said her stepfather had
sexually assaulted her. The second interview was recorded
using the same tape and thus erased the recording of the
first, exculpatory interview. The prosecutor disclosed to the
defense the fact that the first interview had been exculpatory.
At the end of the criminal trial, the jury convicted the stepfa-
ther, but the trial court ordered dismissal of the charges be-

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Nos. 13-3424 & 13-3482 49
cause of the deliberate destruction of exculpatory evidence.
The accused stepfather later sued the detective and case-
worker who had destroyed the evidence.
The Tenth Circuit affirmed summary judgment for the
defendants. It wrote broadly: “Regardless of any misconduct
by government agents before or during trial, a defendant
who is acquitted cannot be said to have been deprived of the
right to a fair trial.” Morgan, 166 F.3d at 1310. The court ex-
plained that § 1983 claims based on rights of access to evi-
dence “fall into two distinct categories.” Id. In the first cate-
gory, where “all criminal charges were dismissed prior to
trial,” the Tenth Circuit observed, “courts have held univer-
sally that the right to a fair trial is not implicated, and, there-
fore, no cause of action exists under § 1983.” Id. In the sec-
ond category, where the defendant was convicted but is ex-
onerated in collateral proceedings, courts have permitted
§ 1983 claims to proceed. Id.
The two categories of cases discussed in Morgan simply
did not address the situation we face here. Morgan did not
consider the possibility that a defendant could be impris-
oned before (re)trial because of the deliberate destruction of
exculpatory evidence. And the cases cited in Morgan to sup-
port the conclusion that courts have “universally” rejected
pre-conviction § 1983 claims for destruction of evidence are
simply not comparable. None concerned a pretrial depriva-
tion of liberty resulting from the bad-faith destruction of ev-
idence. See Rogala v. District of Columbia, 161 F.3d 44, 55–56
(D.C. Cir. 1988) (plaintiff was never prosecuted, let alone
imprisoned); Taylor, 81 F.3d at 435–36 & n.5 (plaintiff claimed
only failure to disclose evidence, not destruction of evi-
dence); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th

-- 49 of 57 --

50 Nos. 13-3424 & 13-3482
Cir. 1988) (same). And Morgan itself is distinguishable—the
plaintiff did not allege or argue any pretrial deprivation of
his liberty.
Daily and Campbell also attempt to recast Armstrong’s
claim as a garden-variety complaint of prolonged pretrial
detention. That claim would be foreclosed in this circuit be-
cause we have already rejected a plaintiff’s due process chal-
lenge to the length of his pretrial detention after the prosecu-
tor discovered strong exculpatory evidence. Garcia v. City of
Chicago, 24 F.3d 966, 971–72 (7th Cir. 1994). We said the
length of detention did not violate due process, though we
identified other constitutional limitations on the prosecution,
such as the Brady right to disclosure before trial and the Sixth
Amendment speedy trial right. Id.
That principle is correct, but it poses no barrier to Arm-
strong’s claim, which is based on the defendants’ destruction
of exculpatory evidence, not prolonged pretrial detention.
The three years of prolonged imprisonment that he suffered
show he was injured—an essential element of a constitution-
al tort—but that injury is actionable only if Armstrong can
prove that it was caused by the unconstitutional act. He may
pursue damages for that injury without running afoul of our
holding in Garcia that prolonged pretrial detention is not in-
dependently actionable.
2. Clearly Established Law in 2006—Conduct v. Reme-
dies
Armstrong has satisfied the first prong needed to defeat
qualified immunity because he has alleged that Daily and
Campbell violated his constitutional rights by destroying ex-
culpatory evidence under Youngblood or Trombetta. We now

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Nos. 13-3424 & 13-3482 51
turn to the second prong, whether it was clearly established
in 2006 that such conduct violated the Constitution.
Daily and Campbell argue that even if Armstrong has a
valid claim, the right he asserts was not clearly established
by any controlling authority. See Wilson v. Layne, 526 U.S.
603, 617–18 (1999) (affirming that government officials were
entitled to qualified immunity where no “controlling author-
ity in their jurisdiction” clearly established the rule on which
the petitioners sought to rely). To support this argument,
they point to ambiguity in this circuit’s precedent and cases
from other circuits that doubt whether withholding exculpa-
tory evidence supports a due process claim by a criminal de-
fendant who has not been tried and convicted. This debate
or uncertainty, they argue, shows that reasonable judges and
public officials could disagree. See, e.g., Upton v. Thompson,
930 F.2d 1209, 1217 (7th Cir. 1991) (circuit split indicated the
rights at issue were “currently unsettled as a matter of con-
stitutional law and therefore were not ‘clearly established’”).
Defendants argue that reasonable officials would not be
aware that they violated a constitutional right in these cir-
cumstances—destroying evidence that would or could ex-
culpate a criminal defendant detained in preparation for re-
trial.
This argument is built on a basic misunderstanding
about qualified immunity. The issue is not whether issues
concerning the availability of a remedy are settled. The quali-
fied immunity defense focuses instead on whether the offi-
cial defendant’s conduct violated a clearly established consti-
tutional right. As we said in Fields, “when the question is
whether to grant immunity to a public employee, the focus is

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52 Nos. 13-3424 & 13-3482
on his conduct, not on whether that conduct gave rise to a
tort in a particular case.” 740 F.3d at 1114.
In Fields, we considered whether Wharrie, the prosecutor,
was entitled to qualified immunity for fabricating evidence
before the trial. (Wharrie had absolute immunity as a prose-
cutor for his later introduction of the evidence at trial.) Fields
relied on cases where a state official fabricated evidence and
then introduced it at trial to conclude that Wharrie was not
entitled to qualified immunity because fabricating evidence
clearly violated due process. 740 F.3d at 1114. “[T]he immun-
ity depends on the official’s acts; the existence of a cause of
action depends on the illegality of those acts and on whether
an injury results, because, to repeat, no injury—no tort.” Id.
In other words, Wharrie lost his qualified immunity when he
committed acts that were obviously unlawful, regardless of
whether those acts caused the later injury needed for the
claim to ripen into a constitutional tort.
This point is consistent with the way the Supreme Court
has repeatedly described the defense of qualified immunity,
in terms of whether the defendant official’s “actions” or
“conduct” violated clearly established law, not in terms of
whether a defendant should have realized he would be held
civilly liable for his actions or conduct. E.g., Pearson v. Calla-
han, 555 U.S. 223, 231 (2009) (“conduct”); Behrens v. Pelletier,
516 U.S. 299, 305 (1996) (“conduct”); Anderson v. Creighton,
483 U.S. 635, 638 (1987) (“actions”); Mitchell v. Forsyth, 472
U.S. 511, 528 (1985) (“actions”); Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (“conduct”).
On the merits here, Youngblood and Trombetta had been
the law of the land for more than a decade when Daily and
Campbell destroyed the critical evidence. Those cases made

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Nos. 13-3424 & 13-3482 53
clear that the bad-faith destruction of potentially exculpatory
evidence—or destruction of evidence with apparent exculpa-
tory value, even without bad faith—violated a criminal de-
fendant’s right to due process of law. And at this stage of the
case, we must accept Armstrong’s allegations that Daily and
Campbell destroyed this evidence in bad faith and knowing
of its exculpatory value.
Debate about the need for a trial or conviction goes to the
question of injury, which is essential to proving liability but
not relevant to qualified immunity. Focusing on the defend-
ants’ conduct—destroying a semen stain that had previously
tested negative for Armstrong’s DNA—it is clear that they
had fair warning that this exculpatory evidence had to be
preserved. Their alleged actions were objectively unreason-
able in defying that command. The fact that their actions
were so egregious as to cause dismissal of the charges before
a retrial does not protect them from liability for injuries they
caused. The district court correctly denied their motion to
dismiss on the ground of qualified immunity.
We AFFIRM the decision of the district court denying de-
fendants’ motions to dismiss on the defense of qualified im-
munity.

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54 Nos. 13-3424 & 13-3482
F LAUM , Circuit Judge, concurring in part and dissenting in
part.
While I join the majority’s conclusion regarding the via-
bility of Armstrong’s claims against lab technicians Karen
Daily and Daniel Campbell, I disagree with the conclusion
that Armstrong’s claim against prosecutor John Norsetter
regarding the preservation of drug paraphernalia evidence is
sufficient to remove the shield of qualified immunity. For
this reason, I concur in part and respectfully dissent in part.
The facts of Ralph Armstrong’s case are indeed troubling.
All told, Armstrong spent 29 years in prison for a crime that
he still claims he did not commit. After DNA evidence called
into question the identity of Charise Kamps’ killer—and
Armstrong’s conviction—Norsetter and his team resolved to
re-try Armstrong in 2005. While preparing for re-trial,
Norsetter directed lab technicians Daily and Campbell to
perform a DNA test on a critical semen stain from the vic-
tim’s bathrobe using a less-than-precise method. This testing
occurred in violation of a trial court order, and also de-
stroyed the stain, rendering it unusable for further testing.
But regardless of what actions Norsetter took or directed in
2005, Armstrong’s claim against Norsetter regarding evi-
dence preservation concerns actions taken in 1980 and 1981.
Specifically, Armstrong alleges in his complaint that Norset-
ter, while acting in an investigatory capacity, “intentional[ly]
mishandl[ed] and/or los[t]…probative crime scene evidence
in violation of known departmental investigative protocols.”
(The “probative crime scene evidence” to which Armstrong
refers is the drug paraphernalia found at Kamps’ apart-
ment.) Armstrong claims that the paraphernalia evidence—
which could have contained DNA evidence or perhaps fin-

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Nos. 13-3424 & 13-3482 55
gerprints of Kamps’ killer—was dumped into a garbage bag,
never tested, and lost prior to Armstrong’s trial in 1981; all
this, Armstrong alleges, was done in bad faith in an effort to
deprive him of evidence which may have demonstrated his
innocence. Armstrong argues—and the majority agrees—
that in 1980 and 1981 a reasonable prosecutor was aware that
he or she could not, in bad faith, fail to preserve potentially
exculpatory evidence. I disagree.
In assessing the applicability of qualified immunity, we
determine whether an official violated clearly established
law through his or her conduct. Ashcroft v. al-Kidd, 131 S.Ct.
2074, 2083 (2011). To determine what conduct was clearly
established as unconstitutional at a particular point in time,
the Supreme Court does “not require a case directly on
point, but existing precedent must have placed the statutory
or constitutional question beyond debate.” Id. In this case,
the Supreme Court’s position on the prosecutorial duty to
preserve evidence was not clarified until several years after
1980. As the majority notes, the cases of California v. Trombet-
ta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51
(1988) expound significantly on this topic. In 1984, the Su-
preme Court stated, “We have…never squarely addressed
the government’s duty to take affirmative steps to preserve
evidence on behalf of criminal defendants.” Trombetta, 467
U.S. at 486. While the Court’s decision in Trombetta did not
draw a bright line indicating when prosecutors must pre-
serve evidence, four years later the Court stated more explic-
itly, “We therefore hold that unless a criminal defendant can
show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of
due process of law.” Youngblood, 488 U.S. at 58. Thus, I ques-
tion whether a prosecutor’s affirmative duty to preserve po-

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56 Nos. 13-3424 & 13-3482
tentially exculpatory evidence was clearly established prior
to the Supreme Court’s pronouncements in 1984 and 1988.
But assuming that, as the majority contends, Killian v.
United States, 368 U.S. 231 (1961), and Brady v. Maryland, 373
U.S. 83 (1963), clearly established well before 1980 that a
prosecutor’s bad faith failure to preserve evidence was a con-
stitutional violation sufficient to override qualified immuni-
ty, I conclude that Armstrong has pleaded insufficient facts
to support his allegation of bad faith. Armstrong alleges that
someone—possibly the police, possibly Norsetter himself—
placed the drug paraphernalia from the victim’s apartment
in a trash bag in 1980, and that by the time of Armstrong’s
trial in 1981, the evidence was lost. Even viewing the facts in
the light most favorable to Armstrong, I believe that these
allegations suggest actions akin to negligence rather than
bad faith. And simply because Armstrong employs the key
phrase “in bad faith,” to describe these events does not, in
my opinion, change the analysis. Armstrong fails to plead
any facts demonstrating bad faith during the time period
that the alleged evidence mishandling took place. In fact, in
examining Armstrong’s claim of bad faith, the majority pri-
marily considers Norsetter’s actions and statements over a
quarter of a century after the prosecutor and his team alleg-
edly failed to preserve certain drug paraphernalia evidence.
I cannot conclude that examining statements and actions so
far removed from the alleged unconstitutional conduct pro-
vides us with sufficient factual allegations plausibly suggest-
ing bad faith. Nor do I believe that an appropriate remedy
would be to remand and allow Armstrong to amend his
complaint. Armstrong believes that the evidence which is
central to his claim was placed into a garbage bag and sub-
sequently discarded by unknown persons and at an un-

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Nos. 13-3424 & 13-3482 57
known time; this reflects an information base inadequate to
support a claim of bad faith, and further amendment would
not cure that deficiency. Thus, it is my view that Armstrong’s
pleadings are insufficient to remove Norsetter’s protection of
qualified immunity. For these reasons, I concur in part and
respectfully dissent in part.

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