CA7: Persons tortured for confessions must sue within SOL, not wait for others

Plaintiffs claiming they were tortured for a confession by an “infamous” Chicago cop and his “henchmen” who was later convicted of doing just that could not claim equitable tolling. They had to sue based on when it happened. The case also discusses the district court’s misapplication of the Heck bar. Moore v. Burge, 2014 U.S. App. LEXIS 21530 (7th Cir. November 13, 2014):

Multiple persons interrogated by the infamous Jon Burge and other officers he trained or influenced seek damages in this suit under 42 U.S.C. §1983. Between 1972 and 1991, while employed by Chicago’s police force, Burge regularly tortured people to extract statements. After the statute of limitations for prosecuting Burge about that misconduct expired, he was convicted of lying about his practices. United States v. Burge, 711 F.3d 803 (7th Cir. 2013). Our plaintiffs—Melvin Jones (who died early this year; his estate has been substituted), Alnoraindus Burton, Aubree Dungey, James Freeman, and Sherrod Tillis—all contend that Burge or his henchmen physically abused them during interrogations.

This suit began in June 2011 with Jones as the sole plaintiff. The other four plaintiffs were added in 2012. By then Burge had long since moved from the police force to the defendant’s dock. The last interrogation about which any of the five plaintiffs complains occurred in 2004, and the statute of limitations for §1983 actions in Illinois is only two years. …

. . .

Plaintiffs have not been diligent in pursuit of their rights. Jones took almost 30 years to sue, Burton took 23, Dungey 13, Tillis 10, and Freeman 8. All five plaintiffs knew from the day they were subjected to torture that they had been injured, and by whom. Failure to appreciate that an act is wrongful does not defer the claim’s accrual (that’s the holding of Kubrick); anyway, none of the plaintiffs could have been in doubt on that score. No one thinks that torture during interrogation is lawful.

Instead of contending that the traditional criteria for equitable tolling apply, plaintiffs maintain that delay should be excused because they are confident that, had they sued earlier, they would have lost. They assert that Burge and other officers would have committed perjury at trial and that jurors would have believed the defendants. Until Burge’s criminal conviction (June 28, 2010) litigation would have been pointless, plaintiffs maintain. That is questionable. Reports of Burge’s misconduct were circulating publicly by 1990. One opinion called this “common knowledge” by the mid-1990s. United States ex rel. Maxwell v. Gilmore, 37 F. Supp. 2d 1078, 1094 (N.D. Ill. 1999). Burge was suspended in 1991 after his supervisors concluded that he had tortured suspects. His name first appeared in this circuit’s opinions in 1993, the year the Police Department fired him, when we reported that a jury had found that he violated suspects’ rights. Wilson v. Chicago, 6 F.3d 1233 (7th Cir. 1993). In 2006 a Special State’s Attorney released a report stating that Burge and his colleagues had engaged in systematic torture of suspects. See People v. Wrice, 2012 IL 111860 ¶¶41-43 (S. Ct. Ill.) (recounting the report’s conclusions). And plaintiffs acknowledge that before Burge’s conviction at least 10 of his victims succeeded in obtaining damages, in amounts as high as $14.8 million.

Victims of injury are not entitled to decide for themselves that suit would be futile and to grant themselves extra years, if not decades, in which to pursue litigation. They must file suit and try. If the worst occurs—if the defendants commit perjury and pull the wool over the eyes of judges and jurors alike—then plaintiffs will lose. But the worst may not come to pass. As the preceding paragraph shows, judges and jurors have been onto Burge for some time. Suppose, however, that a dissembling defendant persuades jurors to find in his favor. If later developments show that the court has been deceived, a district judge has discretion to reopen the proceedings under Fed. R. Civ. P. 60(b)(3) if fraud on the court is uncovered within a year, or 60(b)(6) if information discovered later makes it inequitable to allow the judgment to stand. Indeed, Rule 60(d)(3) provides that every district court is entitled, independent of Rule 60(b), to “set aside a judgment for fraud on the court” no matter when the fraud comes to light. Although simple perjury does not allow relief under Rule 60(d)(3), see In re Golf 255, Inc., 652 F.3d 806, 809 (7th Cir. 2011), a cooperative endeavor by multiple police officers and their lawyers to suppress the truth might do so; that we need not decide.

Instead of trying, plaintiffs waited on the sidelines hoping that the acts of others would tarnish Burge’s reputation and make a suit easier to win. That is not the sort of diligence required to establish equitable tolling.