Police sometimes cause significant damage while executing a search.1 If that damage is unreasonable, the property owner may bring a Fourth Amendment claim against the individual officers under 42 U.S.C. § 1983, which provides a cause of action for those whose constitutional rights are violated by a person acting in a governmental capacity.2 But if the owner cannot identify which officers caused the damage, her claim will fail,3 giving officers a way out of liability: prohibit the owner from witnessing the search.4 Recently, in Colbert v. City of Chicago,5 the Seventh Circuit upheld summary judgment for the defendant officers who allegedly caused unreasonable property damage during a search because the plaintiffs, who were prevented from witnessing the search, could not identify which officers damaged the property.6 The court, noting the tension between this fact scenario and the individual-responsibility requirement, proposed that Colbert could have alleged a “conspiracy of silence” among the officers.7 This commentary marks at least the third and the most explicit time the Seventh Circuit has made such a suggestion.8 However, there are reasons to expect that a conspiracy claim in this situation may not be as viable as the court’s repeated suggestions make it seem.
In March 2011, Jai Crutcher was discharged from prison and moved in with his brother, Christopher Colbert.9 Shortly thereafter, Chicago Police Department Officer Russell Willingham was tipped off that Crutcher was in possession of firearms, a violation of the terms of his supervisory release.10 Willingham and at least nine other officers went to Crutcher’s residence, and Crutcher consented to a search as part of his release terms.11 Both Colbert and Crutcher were handcuffed and prohibited from witnessing the search.12 The officers allegedly heavily damaged the apartment: “pull[ing] out insulation, put[ting] holes in the walls, ripp[ing] the couch open,”13 and damaging the kitchen countertop and shelves.14 The officers obtained Colbert’s key to his bedroom — Colbert asserted that they did so violently — and found an unregistered shotgun, ammunition, and a handgun case.15 The officers arrested both men.16 After a trial, Crutcher was found not guilty of unlawfully possessing a firearm and of being “an armed habitual criminal.”17 Colbert was charged under a municipal gun control ordinance, but these charges were later dismissed.18 Colbert and Crutcher sued four of the ten officers and the City of Chicago.19 Crutcher claimed that he had been falsely arrested and maliciously prosecuted under Illinois law.20 Colbert claimed that the officers violated his Fourth Amendment rights by causing unreasonable damage to his property.21 The defendants moved for summary judgment and the plaintiffs moved for partial summary judgment on the false arrest claim.22
The trial court granted the defendants’ motion for summary judgment on all claims.23 First, it found that the officers did not falsely arrest Crutcher because they had reasonable suspicion to believe that Crutcher was violating his parole.24 Further, it found that neither Willingham nor the City maliciously prosecuted Crutcher.25 On the property damage claim, the district court granted summary judgment for the officers because Colbert could not identify which officers damaged his property.26 The plaintiffs appealed.
The Seventh Circuit affirmed. Writing for the panel, Judge Flaum27 agreed with the district court’s ruling on Crutcher’s malicious prosecution claim.28 On Colbert’s property damage claim, the circuit court also found Colbert “unable to satisfy § 1983’s personal-responsibility requirement” as he could not identify which officer caused the alleged damage.29 The court recognized the evidentiary difficulties Colbert faced because he had not witnessed the search,30 but noted that the Seventh Circuit upheld summary judgment for officers in two similar cases.31 In both these cases and Colbert, the court suggested that the plaintiffs could allege that the officers participated in a conspiracy of silence to conceal their identities.32
Colbert proposed two alternatives. First, he argued that this fact pattern should trigger a burden shift — that, at summary judgment, individual officers should have the burden of production to show that they did not damage the property.33 The court rejected this proposal because it would rely on “collective punishment”34 and require the assumption that “one of the searching officers must have been responsible for the alleged misconduct.”35 Second, Colbert argued that, even if the defendant officers had not caused the property damage, they could be held personally responsible because of their failure to intervene.36 He relied on Miller v. Smith,37 where a plaintiff was unable to identify which of six officers present at his arrest allegedly beat him. Miller survived summary judgment because he identified which two of the six officers may have used excessive force.38 The Colbert court distinguished Miller because Colbert did not identify which officers caused the alleged damage and which failed to intervene.39
Judge Hamilton concurred in part and dissented in part.40 Regarding the property damage claim, he first asserted that Colbert did plead facts sufficient to show a conspiracy among the accused officers, and that to conclude otherwise would be to require a plaintiff to plead legal theories in her complaint, inconsistent with Seventh Circuit precedent.41 He next argued for the adoption of Colbert’s burden-shifting proposal, reasoning that this “procedural adjustment” meets § 1983’s individual-responsibility requirement while “prevent[ing] the unjust effect of allowing officers to sequester residents and then destroy a home with impunity.”42 Judge Hamilton then criticized the majority’s treatment of the failure-to-intervene argument and its distinction of Miller, explaining that the Miller court assumed that an officer not responsible for using excessive force was “standing by” and therefore failed to intervene.43 In contrast, the majority did not allow for a similar plausible assumption44 and instead refuted the argument because Colbert did not specify which officers failed to intervene and which damaged his property.45
Colbert marks at least the third time the Seventh Circuit has suggested that plaintiffs unable to individually identify officers who violated constitutional rights should allege that the officers were engaged in a “conspiracy of silence.”46 But what would such a claim look like? Because the plaintiff would not argue that the officers conspired to damage her property, she would need to identify an additional deprivation of a “right protected by federal law.”47 In this instance — where the alleged conspiracy hindered a plaintiff’s ability to proceed in court on a separate § 1983 claim — one likely candidate is the deprivation of the right to access the courts.48 However, the court’s conspiracy-of-silence proposal may not be an easy solution for future plaintiffs. First, and most obviously, there must have actually been a conspiracy actionable under § 1983 — a more nuanced requirement than might seem apparent. Second, the court has announced principles regarding group liability of police officers, including in Colbert itself, that are arguably in tension with an access-to-the-courts conspiracy claim.
In alleging a conspiracy of silence, a plaintiff in Colbert’s position is likely to ground her claim in a denial of the right of access to the courts. Any § 1983 conspiracy claim does not itself state an independent cause of action and instead requires an underlying deprivation of rights.49 Therefore, Colbert would have had to allege a conspiracy of silence that violated a right. The court did not suggest what that right could be, though it did indicate that Colbert could have alleged that “officers colluded, or conspired, to conceal the identities of those responsible for the damage.”50 This frustration of Colbert’s ability to make his Fourth Amendment property damage claim points to a conspiracy to deny access to the courts, a common claim associated with alleged police cover-ups.51 For example, in Bell v. City of Milwaukee,52 the plaintiffs succeeded in their access-to-the-courts conspiracy claim after police officers shot the victim, placed a knife in his hand, falsified police reports to indicate that he was the attacker, and originally settled with his family for relatively little.53 The constitutional right to access the courts is lost where, as in Bell, “police officials shield from the [plaintiffs] key facts which would form the basis of the . . . claims for redress.”54
While grounding the conspiracy claim in an underlying right is necessary for establishing the cause of action, it’s not sufficient: a conspiracy must have indeed existed. For numerous reasons, conspiracy doctrine under § 1983 is nuanced. First, although plaintiffs can prove conspiracies using circumstantial evidence,55 defendants must have formed an agreement,56 such as, in this conspiracy-of-silence context, to conceal the identities of the officers. The officers in Colbert claimed that they did not recall details from the search.57 It is entirely plausible that, even if the officers intended to conceal the identities of those officers who damaged the property, they would have made this decision independently of each other. As the court noted, Colbert “pointed to no evidence to support [allegations of conspiratorial] misconduct.”58 Moreover, general allegations of a departmental “code of silence” are typically not successful in claims against individual officers as such allegations do not show a specific agreement among defendants.59
Second, even if Colbert were able to demonstrate that officers had formed an agreement, he still may not have stated a claim because not all conspiratorial acts involved in a cover-up are actionable under § 1983. Sanders v. City of Indianapolis60 both offers a framework for Colbert’s potential conspiracy claim and provides insight into obstacles the claim may have faced. Sanders claimed that police officers used excessive force when arresting him and then formed a conspiracy to conceal the identities of those involved in the beating, thereby denying him access to the courts.61 Although the jury found for Sanders on his excessive force and conspiracy claims, the court then directed a verdict for the officers on the conspiracy claim.62 The court noted that Sanders did not present evidence such as “non-responsive affidavits, interrogatories, or depositions” or “evidence that the defendants fabricated or concealed” relevant facts.63 Therefore, his conspiracy claim “was simply that the police officers conspired to commit perjury,”64 for which there is no § 1983 liability — even for police officers.65 Similarly, the Colbert court suggested that Colbert could have alleged that the officers conspired “to conceal the identities of those responsible for the damage.”66 Nothing in Colbert indicates that officers falsified evidence or refused to comply with discovery.67 Moreover, successful access-to-the-courts conspiracy claims grounded in police cover-ups often involve extensive action, such as in Bell.68 While there is not a clear threshold for when cover-ups can become access-to-the-courts conspiracy claims, the precedent discussed suggests that officers’ mere refusal to disclose the identity of those who violated a plaintiff’s rights may be insufficient.
In addition to raising concerns regarding whether an actionable conspiracy is likely to exist, a conspiracy-of-silence claim is arguably in tension with principles the court used to refute Colbert’s burden-shift proposal. The court rejected this proposal in part because it would require the court to “assum[e] one of the searching officers must have been responsible for the alleged misconduct” and rely on “the pure principle of collective punishment.”69 However, the Seventh Circuit has also likened conspiracy-of-silence claims to collective punishment. In Hessel v. O’Hearn,70 the plaintiffs alleged that some of the fourteen officers who searched their property stole their belongings, but they did not identify which individual officers did so.71 The Hessel court also hinted that the plaintiffs might have fared better had they alleged a conspiracy of silence.72 In doing so, however, it did not indicate whether it would accept such a claim, cautioning that a conspiracy of silence is “so redolent of collective punishment.”73 Hessel gives rise to the question of whether a court faced squarely with a conspiracy-of-silence claim based in facts similar to Colbert’s would have the same collective-punishment concerns.
Further, in rejecting the plaintiff’s conspiracy claim, the Sanders court rebuffed the idea of holding an officer liable for conspiracy due to her mere presence at the scene of the alleged constitutional deprivation.74 The court explained that the claim requires the “untenable” assumption that the officers present “‘must’ have seen something, and . . . ‘must’ have conspired to conceal what they saw.”75 Similarly, the Colbert court rejected the burden-shifting proposal in part because it would require the court to “assum[e] one of the searching officers must have been responsible for the alleged misconduct.”76 This tension may suggest either further vulnerabilities in the court’s conspiracy solution or a weakness in its refutation of Colbert’s burden-shift proposal.
The Colbert court recognized the “tension between § 1983’s individual-responsibility requirement and factual scenarios” similar to Colbert’s.77 Or, as the dissent bluntly stated, the potential “unjust effect of allowing officers to sequester residents and then destroy a home with impunity.”78 Perhaps out of a desire to avoid such an effect, the court felt compelled to suggest for the third time a solution for future plaintiffs. While not entirely implausible, Colbert may overstate the likelihood that its conspiracy-of-silence solution would succeed.