No Police Brady Liability Where Exculpatory Evidence Is Court‑Impounded and Accessible to the Prosecutor

Seventh Circuit Clarifies “Suppression” in § 1983 Claims

Introduction

In Bernard Mims v. City of Chicago, No. 24‑1564 (7th Cir. Oct. 21, 2025), the Seventh Circuit affirmed summary judgment against a wrongfully convicted plaintiff who alleged a Brady-based due process violation under 42 U.S.C. § 1983 by two Chicago police detectives. The case centers on whether officers can be liable for “suppressing” exculpatory evidence when the evidence—here, an audio recording from a court-authorized confidential overhear (“COH 013”)—was impounded with the state court clerk and known and accessible to the prosecuting attorney.

The opinion addresses the contours of police liability under Brady v. Maryland, 373 U.S. 83 (1963), in civil rights suits. Specifically, it resolves that where the prosecution knows of, and can access, exculpatory material from another known source (a court-impounded file), a plaintiff cannot establish the “suppression” element by pointing to police non-production alone absent evidence of intentional or reckless concealment from the prosecutor. The court also underscores that negligence does not suffice for a Due Process violation in the § 1983 context and that materiality is irrelevant if suppression is not shown.

Parties and posture: Plaintiff-appellant Bernard Mims sued the City of Chicago and several detectives, narrowing on appeal to Detectives Daniel McNally and Ted Przepiora. After the district court granted summary judgment to defendants on all remaining claims, Mims appealed only the Brady claim. The Seventh Circuit affirmed.

Summary of the Opinion

• The central fact: All five recordings generated by COH 013—including the recording of a conversation between Melvin Richardson and Michael Sardin that Mims characterizes as exculpatory—were, by court order, impounded with the Cook County Circuit Court Clerk in 2001, and the State’s Attorney’s Office was ordered to maintain copies.
• Prosecutor’s knowledge and access: Assistant State’s Attorney William Delaney knew of the confidential overhear authorizations (COHs 003, 007, and 013), produced affidavits and orders in discovery, provided two of the COH 013 recordings to the defense, and demonstrated an understanding of how to obtain sealed recordings from the court (indeed, he obtained a court order to access any sealed COH 003 and 007 recordings).
• Holding: Mims failed to produce evidence that Detectives McNally or Przepiora concealed or otherwise withheld the Richardson–Sardin recording from the prosecution. Because the prosecution knew about and could access the full set of COH 013 recordings through a known source (the court file), plaintiff could not show “suppression” by the police under Brady.
• Mental state: The court reiterated that, in § 1983 suits, due process liability cannot rest on negligence; a plaintiff must show intentional or at least reckless non-disclosure by officers. The record did not support such an inference, particularly as to McNally (who believed the State’s Attorney had the recordings and then the court impounded them) and Przepiora (no evidence he knew of the recording).
• Materiality and qualified immunity: The court did not reach materiality or the district court’s alternative qualified immunity ruling because the absence of suppression resolved the appeal.

Factual Background in Brief

• October 2000: Shooting at Chicago’s Rosenwald building kills Dwayne Baker.
• Early 2001: Detective McNally conducts a confidential overhear investigation; Judge Toomin authorizes COH 013, which yields five audio files. In March 2001, Judge Toomin orders that originals be impounded; the State’s Attorney’s Office must keep copies.
• 2004–2006: Cold Case Squad investigation leads to Mims’s arrest and prosecution. ASA Delaney leads; Mims opts for a bench trial before Judge Toomin and is convicted; sentenced to 95 years.
• 2016: Conviction Integrity Unit moves to vacate Mims’s conviction on grounds unrelated to the Brady theory here; Mims is released and receives a Certificate of Innocence.
• Federal civil suit: Mims alleges § 1983 due process violations including a Brady claim focused on the non-disclosure of the Richardson–Sardin recording from COH 013.

Analysis

Precedents Cited and Their Role

• Brady v. Maryland, 373 U.S. 83 (1963): Establishes that due process is violated when the prosecution suppresses favorable, material evidence. The Seventh Circuit reiterates Brady’s core rule and its focus on prosecutions’ affirmative disclosure duties.
• Strickler v. Greene, 527 U.S. 263 (1999): Elaborates that prosecutors must learn of and disclose exculpatory evidence known to police; defines materiality as a “reasonable probability” of a different outcome. The court relies on Strickler for both the duty and materiality standards, though it ultimately does not reach materiality.
• Anderson v. City of Rockford, 932 F.3d 494 (7th Cir. 2019): Cited for the Brady duty extending to evidence known to police, reinforcing the prosecutorial learning-and-disclosure duty.
• Carvajal v. Dominguez, 542 F.3d 561 (7th Cir. 2008): Recognizes that police can be liable when they conceal exculpatory evidence from the prosecution. The Seventh Circuit acknowledges this pathway to police liability but finds no evidence of such concealment here.
• Jones v. York, 34 F.4th 550 (7th Cir. 2022): Sets elements for a police Brady claim: favorability, suppression by the officer, and prejudice. The court applies Jones’s framework and resolves the case on the second element—no suppression by the officers.
• Boss v. Pierce, 263 F.3d 734 (7th Cir. 2001): Defines “suppression” as non-disclosure of evidence known to the government before it’s too late for use, and not otherwise available through reasonable diligence. The opinion uses Boss to emphasize that evidence accessible through a known source (the court file) defeats a claim of suppression by police.
• Beaman v. Freesmeyer, 776 F.3d 500 (7th Cir. 2015): States that police generally discharge Brady obligations by turning exculpatory evidence over to the prosecutor, triggering the prosecutor’s duties. The court leans on this to place primary responsibility on the prosecution once it knows or can access the evidence.
• Moran v. Calumet City, 54 F.4th 483 (7th Cir. 2022): Emphasizes that the prosecutor’s duty is primary; a defendant cannot establish police suppression if the prosecutor knew of the evidence or obtained it from another source. Also clarifies that negligence is insufficient in § 1983 due process claims and discusses the mental-state requirement. The court uses Moran extensively to conclude that prosecutorial access defeats a suppression claim against police and to analogize officer intent/motive.
• Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018): Quoted for the principle that negligent conduct does not offend the Due Process Clause in § 1983 suits, underpinning the intent/recklessness threshold discussed here.
• Davis v. Rook, 107 F.4th 777 (7th Cir. 2024): Provides the summary judgment standard—independent review with inferences to the non-movant; plaintiff must produce evidence beyond speculation. The court invokes this to require concrete proof of suppression.
• Illinois statute, 725 ILCS 5/108A-7(b): Requires the judge to review COH recordings and provides for impoundment under seal. This procedural backdrop explains why the recordings were in the court file and why the State’s Attorney had a parallel set of copies.

Legal Reasoning

The court’s reasoning proceeds in three principal steps:

1. Suppression turns on prosecution knowledge/access and police concealment. The court underscores that Brady’s primary obligation rests with the prosecution. Police liability arises only if officers conceal exculpatory evidence from the prosecution. Here, Judge Toomin’s March 2001 order impounded the original COH 013 recordings with the Circuit Court Clerk and required the State’s Attorney’s Office to keep a set of copies. ASA Delaney knew of the COH authorizations, produced the underlying affidavits and orders in discovery, and demonstrated he could (and did) access sealed recordings by court order in related COHs. Therefore, the prosecution both knew about and could access the complete COH 013 recordings from a known source—the court file—before Mims’s 2006 trial.
2. No evidence of intentional or reckless concealment by the detectives. In the § 1983 context, negligence is not enough. As to Detective McNally, the record showed he listened to COH 013 in 2001, believed the State’s Attorney had the recordings and that they were later impounded by court order, and had no further role in the homicide investigation after early 2001. There was no evidence he misled the prosecutor or obstructed access; speculation that he once possessed copies is insufficient. The court found it “too speculative” to leap from his early listening to intentional or reckless concealment years later. As to Detective Przepiora, there was no evidence he even knew about the Richardson–Sardin recording. This evidentiary gap forecloses suppression as to him entirely.
3. Materiality and qualified immunity unnecessary to reach. While the district court alternatively found lack of materiality and qualified immunity, the Seventh Circuit resolved the appeal solely on the absence of suppression, rendering further analysis unnecessary. The court nevertheless noted that materiality matters only if suppression exists in the first place.

Impact and Prospective Significance

The opinion meaningfully clarifies “suppression” in civil Brady claims against police in the Seventh Circuit:

• Prosecutorial access defeats police suppression: When exculpatory evidence resides in a court-impounded file (or other known repository) and the prosecutor knows of and can access it, a plaintiff cannot attribute non-disclosure to the police absent evidence that officers intentionally or recklessly concealed the evidence from the prosecutor or affirmatively misled or obstructed the prosecutor’s access.
• Elevated proof burden in § 1983: Plaintiffs must marshal concrete evidence tying officers to concealment from the prosecution. Mere non-production to the defense, or the prosecutor’s incomplete production, will not carry the day if the prosecution knew of and could obtain the evidence elsewhere. Speculation about who “must have had the file” is insufficient at summary judgment.
• Prosecutors’ primary duty reaffirmed: The ruling reinforces that prosecutors bear the affirmative obligation to learn of and disclose potentially exculpatory evidence, including by retrieving or reviewing materials held by the court or other agencies that the prosecutor knows exist. This may amplify the internal imperative within prosecutors’ offices to audit completeness—especially when judicial orders require the office to maintain copies.
• Law enforcement guidance: Officers can reduce risk by ensuring that materials are lodged with the prosecutor (or a court repository) and by clearly documenting transfer and impoundment. But the opinion also signals that liability remains possible where officers hide, misdirect, or otherwise impede prosecutorial access.
• Defense practice implications: Defense counsel should not rely exclusively on the prosecutor’s selected productions when judicial orders or discovery indicate that additional impounded materials exist. Proactive motions to unseal and access court-held recordings can be pivotal both at trial and in preserving later claims.
• Wrongful conviction litigation: This decision underscores that vacatur and certificates of innocence—while powerful acknowledgments of injustice—do not automatically establish § 1983 Brady liability against police. Plaintiffs must prove suppression by officers (and the requisite mental state), not merely non-production to the defense.
• Doctrinal contour: The Seventh Circuit again leaves open whether recklessness, as opposed to intentionality, suffices for § 1983 Brady suppression. The court assumed without deciding that recklessness would suffice and still found the record wanting—signaling that, in practice, proving recklessness will require specific evidence, not inference from gaps.

Complex Concepts Simplified

• Brady obligation: The prosecution must disclose evidence favorable to the accused that is material to guilt or punishment. This includes evidence known to police, but the duty to disclose to the defense is the prosecutor’s.
• Suppression vs. access: “Suppression” means the government failed to disclose evidence in time for the defendant to use it, and the evidence was not otherwise available through reasonable diligence. If the prosecutor knows of and can access the evidence from a known source (e.g., a court file), courts typically find no suppression by police.
• Materiality: Evidence is “material” if there is a reasonable probability the outcome would have differed had the evidence been disclosed. Courts reach materiality only if there was suppression in the first place.
• Mental state in § 1983 Brady suits: Negligence is not enough. Plaintiffs must show at least reckless, and likely intentional, concealment by police to establish a due process violation.
• Confidential Overhear (COH): In Illinois, a judge can authorize recording of conversations (e.g., an informant wearing a wire). By statute, the judge must review the recordings and can order them impounded under seal, with the State’s Attorney often required to keep copies. Those orders also create a roadmap for how to locate and access recordings.
• Bench trial: A trial conducted by a judge without a jury. Here, the same judge who authorized the COHs presided over Mims’s bench trial.

Key Takeaways

• New clarifying rule: Police cannot be held liable under § 1983 for Brady “suppression” where the exculpatory evidence is court-impounded and known and accessible to the prosecutor, absent proof that officers intentionally or recklessly concealed it from the prosecution or impeded prosecutorial access.
• Prosecutorial primacy: Once the prosecutor knows of the evidence or its repository, the duty to gather and disclose to the defense squarely rests with the prosecution.
• Evidence, not speculation: To survive summary judgment, plaintiffs must present concrete evidence linking officers to concealment from the prosecution; mere gaps in the prosecutor’s productions will not suffice.
• Unreached issues: The Seventh Circuit did not decide materiality, qualified immunity, or whether recklessness definitively suffices for § 1983 liability—leaving those doctrinal issues for future cases when necessary.

Conclusion

Bernard Mims v. City of Chicago refines the application of Brady in § 1983 suits against police by drawing a clear line: when the prosecution knows of and can access exculpatory materials from a court-impounded file, a plaintiff cannot attribute non-disclosure to the police without evidence that officers concealed the evidence from the prosecutor. The case reiterates the prosecutor’s primary disclosure duty, the elevated mental-state requirement for due process claims in the civil context, and the imperative for litigants to ground suppression theories in concrete evidence rather than inference.

For future litigation in the Seventh Circuit, the opinion signals that plaintiffs must focus sharply on proof of affirmative concealment or obstruction by officers. Prosecutors, for their part, are reminded that their Brady obligations extend to materials they know (or should know) are held by the court or other agencies. The decision thus promotes clarity about institutional roles while preserving avenues to hold police accountable where genuine concealment from the prosecution can be shown.