In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

REGET v. LA CROSSE (February 8, 2010)

John Reget has operated an auto restoration and body shop business in La Crosse, Wisconsin for several decades. For almost as long, he and the City have been at odds. In 1980, the City condemned his building and gave him the funds to relocate and remodel his current building. In the early 1990s, the City cited Reget a number of times for ordinance violations pertaining to junk dealers. All the citations were ultimately dismissed. In the mid-1990s, the City threatened to rezone the area of Reget's current building. The move would have forced Reget to relocate yet again. The City backed down -- but only after Reget promised to comply with the ordinances, build a fence, and limit his nighttime operations. Both sides claim the other failed to live up to its bargain. Reget filed a lawsuit alleging a violation of his Equal Protection rights as a result of the City's selective enforcement of its ordinances. The district court granted summary judgment to the City. Reget appeals.

In their opinion, Chief Judge Easterbrook and Judges Williams and Sykes affirmed. The Court noted that Reget's Equal Protection claim was of the class-of-one variety. For such a claim to prevail, a plaintiff must prove that he or she has been treated differently than others similarly situated and that no rational basis exists for such differentiation. The Court concluded that he failed to identify a similarly situated business with respect to any of his claims of discriminatory treatment.

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COVELL v. MENKIS (February 8, 2010)

The Illinois Deaf and Hard of Hearing Commission (the "Commission") was created several years ago to provide services for and advocate on behalf of the hard of hearing. Gerald Covell served as its Director from 1998 until 2003. In July of that year, the Commissioners terminated him. Covell filed suit under § 1983, alleging that defendants violated both his property and liberty interests. Specifically, he alleged that he was let go without any pre-or post-termination process in violation of a property interest. He also alleges that defendants circulated false information about him, without providing him an opportunity to clear his name, in violation of his liberty interest. The district court granted summary judgment to the defendants, concluding that Covell had no property interest in this position and that he failed to demonstrate that any particular defendant circulated negative information. Covell appeals.

In their opinion, Judges Bauer, Manion and Williams affirmed. The Court first addressed the existence of a property interest. Although a property interest can arise from state law, a person must identify a specific statute, rule, or contract that limits the ability of the state to terminate him. The rules governing Covell's position states that he "shall serve at the pleasure of the Commission." The Court rejected Covell's position that an inconsistent right was somehow incorporated into the regulation by its reference to the Personnel Code. Since he had no property interest, he had no right to due process. With respect to his liberty interest claim, the Court stated that the plaintiff must show that he was stigmatized by publicly disclosed information and that he suffered a tangible loss. Specifically, the plaintiff must show that a named defendant made the public disclosure. Here, Covell contends only that the disclosure was made by someone in the government. Without evidence that the disclosure was made by a named defendant, Covell's claim fails.

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PARISH v. CHICAGO (February 3, 2010)

Michael Parish was arrested in May of 2005 and held in custody until June of 2007, when he was acquitted of a murder charge. Parish brought suit against the City of Chicago and several police officers under § 1983, claiming malicious prosecution in violation of the Fourth Amendment. He alleged, among other findings, that the officers suppressed favorable evidence, prepared false reports, and fabricated evidence. Parish conceded in the district court that the prevailing Seventh Circuit precedent of Newsome precluded his claim. The district court dismissed. Parish appeals

In their opinion, Judges Coffey, Evans, and Williams affirmed. In Newsome, the Seventh Circuit held that the existence of a state law malicious prosecution claim precludes a constitutional tort under the due process clause. Parish concedes as much but seeks reconsideration of Newsome in light of a footnote in the Supreme Court's subsequent opinion in Wallace. In that footnote, the Supreme Court stated that it had never and was not evaluating a §1983 Fourth Amendment malicious prosecution claim. The Court noted that it had already once rejected an invitation to revisit Newsome in Johnson v. Saville. It saw no reason to do so now. However, as an aside, the Court stated that Newsome did not preclude a Brady-type due process claim. Given Parish's allegations, he may well have had such a claim after his acquittal.

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MIDWEST TITLE LOANS v. MILLS (January 28, 2010)

Midwest Title Loans is a "title lender." Title loans are high-cost, high-risk loans. Car owners, generally from the lower income segment of the population, pay triple digit interest rates to borrow against their car titles. Midwest is located in Illinois but loaned to Indiana residents. All the loans were made in-person in Illinois. Midwest did advertise in Indiana and, when necessary, executed repossessions in Indiana. The State of Indiana considered Midwest's practices predatory. In 2007, it amended its Uniform Consumer Credit Code to provide the a loan is deemed to occur in Indiana if an Indiana resident enters into such loan with an out-of-state company that advertised or solicited in Indiana. Once a loan is deemed to occur in Indiana, the lender is subject to the provisions of the code, including interest rate caps and license requirements. Indiana advised Midwest of this amendment in August of 2007. Midwest was not licensed in Indiana and its products exceeded the interest rate cap. Midwest brought suit under §1983, alleging that the amendment violated the commerce clause. The district court permanently enjoined application of the amendment. Indiana appeals.

In their opinion, Judges Posner and Flaum and District Judge Der-Yeghiayan affirmed. The Court noted that the commerce clause of the Constitution has been interpreted to preclude states from erecting barriers to interstate trade. The clause is frequently applied when a state legislates in favor of its in-state businesses. Although Indiana is not discriminating in favor of its local business, that does not end the inquiry. First, a non-discriminatory statute that protects a legitimate local interest will be upheld unless the effects on interstate commerce are clearly excessive as compared to the local benefits. But second, a non-discriminatory statute that actually regulates out-of-state activities will not be upheld regardless of the balancing of the local interest. The Court concluded that out-of-state regulation was present here. Every Midwest loan was made in Illinois by a check drawn on an Illinois Bank, title was transferred in Illinois, and payments were received in Illinois. The facts that the proceeds were probably spent in Indiana, that Midwest advertised in Indiana, and that the collateral was generally located in Indiana did not change the Court’s conclusion.

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GAYTON v. MCCOY (January 28, 2010)

India Taylor had a life-threatening heart condition. She took six different medications to treat the condition. The six drugs were not the only drugs Taylor took – she was also a heroin user. Taylor was arrested on four different occasions in the summer of 2003. As a result, personnel at the Peoria County Jail became very familiar with her condition and her medications. Both her medical history and her prescriptions became part of her file. She was arrested again in October. Because she complained of chest pain, she was taken for a medical examination. Nurse Radcliffe knew her history and medications and asked her brother to bring her medications to the jail. She also made a notation that Taylor should see the doctor the next day if her medications did not arrive. The next day, Taylor complained of nausea on multiple occasions. By mid-afternoon, she was vomiting violently. The guards called the nurse, and even collected her vomit in a bag. Nurse Hibbert suspected that Taylor was faking her symptoms in order to get drugs and refused to see her. Although her name was on the list to see the doctor the next day, she died during the night. Lester Gayton, her brother and administrator of her estate, brought a wrongful death action pursuant to §1983. He named the sheriff, the jail superintendent, the doctor, three nurses, and the outsourced health care provider at the jail. The district court excluded the testimony of the plaintiff's medical expert and granted summary judgment to the defendants. Gayton appeals.

In their opinion, Judges Flaum and Williams and District Judge Lawrence affirmed in part and reversed in part. The Court started with the district court’s exclusion of the medical expert, Dr. Weinstein. First, the Court concluded that the lower court erred in finding Weinstein unqualified to opine on the cause of death. In fact, Weinstein did not testify as to cause of death -- he simply adopted the other experts' conclusion that Taylor died of nonspecific heart failure. Next, the Court stated that the fact that Weinstein was not a cardiologist did not make him unqualified. Finally, with respect to the reliability of his specific conclusions, the Court considered each conclusion individually: a) the lower court properly barred the conclusion that Taylor might have lived had she been given her medication since he gave no basis for his opinion and claims no specific expertise regarding the medication, b) the court improperly barred his testimony that the combination of her vomiting and certain medications might have contributed to her heart failure since that opinion requires no specialized expertise, and c) although the court did not address it, Weinstein is an expert in prison healthcare and is qualified to give his opinion that prison medical personnel fell short of accepted standards of medical care.

The Court next addressed summary judgment. A cause of action for failure to provide adequate medical care requires a showing of a serious medical condition, deliberate indifference, and causation. The deliberate indifference element itself requires knowledge of the health risk and a disregarding of that risk. Given Taylor's serious heart condition, her complaints of chest pain and nausea, and her excessive vomiting, the Court had little difficulty in finding enough evidence of a serious medical condition to overcome summary judgment. On the issue of deliberate indifference, the Court analyzed each defendant separately: a) summary judgment was proper for the sheriff, the doctor, and the superintendent since they had no contact with Taylor and did not know of her request for medical attention, b) summary judgment was proper for the outsourced medical care organization since the plaintiff conceded that the medical policies were sufficient, thus precluding Monell liability, c) summary judgment was proper for two of the three nurses in that one acted reasonably and the other, although negligent, was not deliberately indifferent, and d) summary judgment in Nurse Hibbert’s favor was improper since a jury could find that her refusal to see Taylor despite strong indications that she was in need of medical treatment amounted to deliberate indifference. Finally, the Court also found sufficient evidence in the record on which a jury could find proximate causation between Nurse Hibbert’s conduct and a delay in treatment that exacerbated Taylor’s suffering.

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GILBERT v. ILLINOIS STATE BOARD OF EDUCATION (January 11, 2010)

For almost 20 years, Robert Gilbert was a high school social studies teacher -- and a highly regarded one at that. Apparently, he performed better as a teacher than as a colleague or employee. The school district eventually fired for insubordination. Gilbert contested his discharge administratively. After the district presented its evidence at the hearing, the hearing officer granted Gilbert's request to find in his favor. On review, the state appellate court reversed and remanded with instructions to reinstate the termination. Gilbert, concerned that the order would not allow him to reconvene the hearing and present his evidence, sought reconsideration in the appellate court and review in the state Supreme Court. He was unsuccessful. Gilbert then attempted, on remand to the circuit court, to get the state to reconvene the hearing. Again, he was unsuccessful. Instead of appealing that order, Gilbert filed suit in federal court. He asserted a due process claim and sought an injunction to reconvene the hearing and a declaration that his due process rights had been violated. The court dismissed the request for injunctive relief under the Rooker-Feldman doctrine, later (after a replacement of judge) dismissed the claim for declaratory relief for lack of standing, and denied several motions to amend. Gilbert appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court agreed that the claim for an injunction was barred by the Rooker-Feldman doctrine. That doctrine prevents a lower federal court from reviewing the decisions of a state court. Here, the Court concluded that granting Gilbert his requested relief would reverse the effect of the state court decision. Even Gilbert's argument that the state appellate court's decision did not preclude a reconvening of his hearing was presented to and rejected by the state court. With respect to the declaratory count, Gilbert did not contest the soundness of the ruling. He only argued that the second judge violated law-of-the-case principles when he dismissed the declaratory count after the first judge chose not to. The Court first noted that the law-of-the-case doctrine has no applicability on appeal. At the district court level, it is a deferential principal discouraging a later judge from reconsidering a prior judge’s ruling. On appeal, however, the Court simply decides whether the ultimate result was correct. As an aside, the Court also noted that the law-of-the-case principal has less applicability when a jurisdictional issue is involved and when the first judge never directly addressed the issue, both of which are present here. Because Gilbert did not even challenge the correctness of the dismissal of the declaratory count, the Court did not address the merits.

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BIVENS v. TRENT (January 6, 2010)
 

In his position as an officer in the Illinois State Police, Jimmy Bivens was responsible for the operations of an indoor firing range. He performed his job well. He greatly improved the conditions at the range and was commended for his work. After a few months of working at the range, however, Bivens began to feel quite ill. He was concerned that his symptoms were related to lead exposure at the range. Blood tests revealed highly elevated levels of lead. Bivens filed a union grievance, alleging unsafe working conditions. Within days, the range was tested and closed for remediation. Bivens' blood lead levels returned to normal within a few weeks and he returned to work. He only worked for one week, however, claiming that he continued to experience health problems. The State Police arranged for independent examinations by a neurologist and psychiatrist. Both found Bivens' health to be normal and approved his return to work. The State Police terminated Bivens' disability benefits. Bivens brought suit pursuant to §1983, alleging that his superiors violated the First Amendment by retaliating against him for filing the union grievance. The district court granted summary judgment to the defendants on the ground that his speech was not protected because it was part of his official duties. Bivens appeals.

In their opinion, Judges Posner, Manion and Evans affirmed. One of the several elements of Bivens' §1983 claim is that he engaged in speech protected by the Constitution. The Court agreed with the district court that Bivens had an obligation, as part of his job, to report his concerns about lead contamination. It also agreed that any such reports to his superiors would not be protected under the Supreme Court's Garcetti decision. Here, however, the speech was not through Bivens' chain of command but as a union grievance. The Court was unwilling to conclude, because of the availability of an alternative holding, that the union grievance could not be protected speech. To be protected, the speech must also address a matter of public concern. The Court looked to the content, the context and the form to determine whether the speech addressed a matter of public concern. The court concluded that the context -- Bivens' own illness -- and the form -- an internal union grievance -- were more consistent with the vindication of a private, rather than a public, interest. Although the content referenced a subject of potential public interest, the Court concluded that Bivens was not attempting, by his speech, to bring this safety issue into the open. Being purely private, the speech was not protected and retaliation claim fails. 

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AVILA v. PAPPAS (January 4, 2010)

Maria Avila was already in trouble. Her employer, the Cook County Treasurer's Office, was about to conduct a disciplinary hearing. Avila made it worse when she told one of her coworkers that she might "go postal." Her coworker advised her superiors. They not only added a disciplinary count for the implied threat and fired her but alerted the authorities. Avila was criminally prosecuted. The prosecutor charged a felony, taking the position that one of the targets of Avila's threat was a public official. Avila was acquitted, the court holding that he was not a public official. Avila filed suit against her superiors pursuant to §1983, alleging both constitutional violations and state law malicious prosecution. Although the court dismissed the federal counts, it retained the state law claim under supplemental jurisdiction and resolved it on the merits in favor of the defendants. Avila appeals the judgment on the state law claim.

In their opinion, Chief Judge Easterbrook and Judges Wood and Tinder vacated and remanded with instructions to dismiss for want of jurisdiction. The Court first addressed its jurisdiction. Although Avila asserted four federal law theories, the Court emphasized that a federal claim must have substance to create a basis for federal jurisdiction. The Court concluded that the federal claims -- substantive due process, conspiracy, failure to train, and equal protection -- were frivolous. The Court principally relied on the Supreme Court's decision in Albright and the Court's own decision in Newsome, holding that malicious prosecution does not violate the Constitution if state law recognizes it as a tort (which Illinois does).

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WORLD OUTREACH CONFERENCE CENTER v. CITY OF CHICAGO (December 30, 2009)

In Chicago, the World Outreach Conference Center ("WOCC") operates a community center. It is a Christian organization, one of whose goals is to assist and provide relief to the needy and suffering. WOCC purchased the center in 2005 from the YMCA. Although the land was rezoned several years ago, YMCA's operations were a legal nonconforming use. WOCC wants to operate the building by renting out its many apartments – just as the YMCA did. The Center did need a single-room-occupancy (SRO) license to operate. Apparently because an alderman had wanted a financial backer to acquire the property, the City refused to grant the license. WOCC brought suit under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), challenging the City's refusal to grant the license. Although the City eventually did grant the license, the suit continued with its claim for damages. The court dismissed the complaint. WOCC appeals.

In Peoria, the Trinity Evangelical Lutheran Church purchased property adjacent to its church. It wanted to raze the building in order to build a family center. The City, in response to a neighborhood group’s application, designated the building a landmark and blocked the demolition. Trinity brought suit under RLUIPA, alleging that the landmark designation imposed a substantial burden on religious activities. The court granted summary judgment to Peoria. Trinity appeals. 

In their opinion (in these consolidated cases), Judges Cudahy, Posner and Rovner affirmed in part and reversed in part in Chicago and affirmed in Peoria. RLUIPA prohibits government land-use regulation that imposes a substantial burden on religious activities unless it is in support of a compelling government interest and is the least restrictive means to the end. It also prohibits non-equal or discriminatory treatment directed at a religious assembly through land-use regulation. The Court first addressed and rejected Chicago’s argument that RLUIPA exceeds Congress’ authority, relying on the enforcement clause of the Fourteenth Amendment as well as Congress’ power to regulate interstate commerce. On the merits in WOCC, the Court concluded that the dismissal of WOCC’s substantial-burden claim was erroneous. WOCC was entitled to operate without the special use permit demanded by the City and the City had no basis for refusing the SRO license. The burden was substantial and there was no compelling government interest. The Court also: a) affirmed the dismissal of the discrimination claim (WOCC was badly treated – but it had nothing to do with religion), b) reversed the dismissal of the equal protection claim (on a class-of-one theory), and c) affirmed the dismissal of the damages claim for violation of the Chicago Zoning Ordinance.On the merits in Peoria, the Court concluded that the burden imposed on Trinity did not reach “substantial.” The property had value and could be sold and there are suitable alternatives for the family center.

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KNIGHT v. WISEMAN (December 22, 2009)

Shortly before Rick Knight began serving a prison term, he had surgery on his shoulder. Although he had no medical work restrictions, he did advise prison personnel of the surgery and some lingering pain. Nevertheless, several months later, he was transferred to a work camp. Prison inmates at the work camp participate in the work gangs, typically trimming trees and picking up roadside logs. At the camp, Knight participated in several work details without complaint, although he was generally successful in finding the less-strenuous tasks. On February 16, Knight was assigned to a work gang with Officers Wiseman and Wiedau. Although Knight again selected easier tasks, the officers insisted he do more. They were unaware of his shoulder complaints. The result -- he re-injured his shoulder throwing a log. A third officer returned Knight to the camp, although he took a short detour to run an errand on the way. Knight was diagnosed with a torn rotator cuff. He brought suit against the two officers pursuant to § 1983, alleging violations of this Eighth and Fourteenth Amendment rights. The district court granted summary judgment to the officers, concluding that they did not act with deliberate indifference. Knight appeals.

In their opinion, Judges Flaum, Manion and Wood affirmed. Two elements are required to state a claim for an Eighth amendment violation. There must be a serious medical condition and the plaintiff must demonstrate deliberate indifference on the part of the prison official to that condition. Deliberate indifference requires a showing that the defendant was actually aware of the serious medical condition. Here, there is no evidence in the record that the officers were aware of Knight's condition when they first ordered him to work. Although one of the officers ordered Knight back to work after his first complaint of pain, he quickly retracted his order when he realized the seriousness of Knight's injury. Finally, the Court rejected Knight's argument that the few hour delay in receiving treatment, including the brief detour, amounted to deliberate indifference. Such a claim would require medical evidence that showed his condition deteriorated due to the delay, which does not exist here.

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PRO'S SPORTS BAR & GRILL v. CITY OF COUNTRY CLUB HILLS (December 16, 2009)

Pro's Sports Bar & Grill is located in Country Club Hills, Illinois. Pro's submitted an application for a liquor license. Pursuant to local procedure, the City Council considered an ordinance on November 26, 2007 for the granting of that license. There is significant dispute about what happened at the council meeting. At a minimum, there is confusion about the formalities undertaken. There certainly was discussion about granting a license with limited hours. In any event, at the end of the meeting, an ordinance granting the license was approved. A Class A license with regular hours was issued. Shortly thereafter, however, the license was reissued as a Class A-1 license (a category of license not even defined in the municipal code). The local police began enforcing the license as if it had the limited hours which were discussed in the earlier council meeting. In 2008, when Pro's applied for a reissuance of the license, it was issued with limited hours, even though the normal practice is to be issued a license on its original terms and conditions. Pro's filed suit pursuant to § 1983, alleging a violation of its procedural due process rights. The court granted a preliminary injunction prohibiting the enforcement of the limited hours. The City of Country Club Hills appeals.

In their opinion, Judges Flaum, Manion and Wood affirmed. The Court started with its two-part test for approaching a procedural due process claim. It first identifies whether there is a protected liberty or property interest and then asks whether a party was deprived of its interest without due process. The principal issue in dispute was whether the original license contained the limited hours. If it did, the renewal did not result in any deprivation. If it did not, the renewal restrictions would have resulted in a deprivation. The bare language of the original ordinance granted an unrestricted license. The Court found the language of the ordinance unambiguous and rejected the defendants' argument that it should be interpreted otherwise because of either the intent of the City Council or because it was a scrivener's error. Having found a deprivation of the property interest, there was little dispute about the City's failure to provide adequate process -- since it provided none. Finally, the Court found no error in the lower court's balancing of the preliminary injunction factors.
 

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MANN v. CALUMET CITY (December 7, 2009)

Calumet City passed an ordinance that requires a homeowner to conduct an inspection prior to the sale of the house to ensure its compliance with the building code. Several residents of the city brought an action challenging the constitutionality of the ordinance. The court dismissed the complaint for failure to state a claim. The residents appeal.

In their opinion, Judges Bauer, Posner and Sykes affirmed. The Court first noted that the residents challenged the ordinance as written, not relying on any particular facts regarding its application to them. The Court then reviewed the "reasonable" procedural provisions of the ordinance, concluding that the residents' challenges were frivolous.
 

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SRAIL v. VILLAGE OF LISLE (December 7, 2009)

The Oak View subdivision was built in the 1950s. Since its earliest days, a private utility company has provided its residents with water. The Village of Lisle developed its municipal water system in 1967. The municipal system has grown as developers have donated water mains serving new projects. Lisle also purchased a private water utility in 1980. Although both the municipal system and the Oak View system receive their water from the DuPage Water Commission, the Oak View system has insufficient pressure for firefighting. Residents of Oak View sued the Village, alleging that the Village violated the Equal Protection Clause by providing municipal water to some residents and not others. The court granted summary judgment to the Village. The residents appeal.

In their opinion, Judges Ripple, Kanne and Sykes affirmed. The Court first noted that the residents are not members of a suspect class and they do not allege an infringement of a fundamental right. Therefore, the Court's review is on the rational basis test. Although the Court identified issues with the plaintiffs' status as a "class of one" and with an illegitimate animus requirement, it found it unnecessary to reach either issue. Citing the Supreme Court's decision in Engquist, the Court stated that government activity which involves discretionary decision-making based on a number of objective criteria need not treat all persons equally. The Village's decisions over the years to build and extend its system were based on individual assessments made at those times. There is no clear standard that the Village used and that the Court could use to judge any departures therefrom. The Court concluded that it was doubtful that the residents' claim would survive the Engquist test. The Court went on, however, and concluded that the residents failed to establish an equal protection violation. First, they were unable to establish the existence of an appropriate comparator. Second, the cost of extending the system, the apparent lack of interest on the part of most residents, and the Village's desire to avoid competition with the private utility amounted to a rational basis for its conduct.

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MILWAUKEE DEPUTY SHERIFFS' ASSOCIATION v. CLARKE (December 4, 2009)

The Milwaukee County Sheriff, David Clarke, invited a religious group, the Fellowship of the Christian Centurions, to attend and speak at a department leadership conference. All deputies above the rank of sergeant were required to attend. At the conference, Clarke announced some upcoming promotions, distributed written material with quotations from the Bible, and described "people of faith" as one of the qualities he was looking for in a leader. One of the Centurions then spoke and distributed additional material. After the conference, representatives of the Centurions also made presentations and distributed flyers at a number of mandatory roll calls. Two deputies, and their union, brought suit under § 1983. They alleged a violation of the Establishment Clause and the Free Exercise Clause of the First Amendment. The court granted summary judgment to the plaintiffs on the Establishment Clause claim. The defendants appeal.

In their opinion, Judges Bauer, Cudahy and Williams affirmed. Under the Establishment Clause, government action may not: a) have a non-secular purpose, b) have the principal effect of advancing or inhibiting religion, or c) foster an excessive government entanglement with religion. Although the first prong requires an analysis of the government's actual purpose, the second does not. A violation can be established if a reasonable person would conclude that the government action amounted to an endorsement of religion. Here, very few outside organizations have the kind of access given to the Centurions -- and those that were were organizations that partnered with the department in some fashion. The Court concluded that a reasonable observer would interpret the Sheriff's actions as an endorsement, although it was careful to limit its conclusion to the facts presented. In its analysis, the Court also rejected the Sheriff's argument that the First Amendment compelled him to grant access to the Centurions. The Court reasoned that the Sheriff did not create a forum of any kind by having a department meeting or a roll call. The Centurions were not looking for a place to speak -- they were looking for a specific audience to speak to. The Sheriff was not required to give that access.

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RIVER OF LIFE KINGDOM MINISTRIES v. HAZEL CREST (October 27, 2009)

River of Life Kingdom Ministries ("Ministries") is a small religious organization that does not occupy its own facility. Instead, it shares space with two other religious organizations in a dirty warehouse. The Ministries decided to purchase a new facility where it could better promote its community goals. It purchased property in Hazel Crest, even though the village had zoned the area for economic redevelopment. The ordinances allowed general commercial and retail uses but did not allow religious services. After its application for a special-use exception was denied, the Ministries filed a complaint and motions for a temporary restraining order and preliminary injunction. The complaint alleged that the ordinance violated the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). While the motion for a preliminary injunction was pending, the village amended the ordinance to exclude meeting halls, public schools, community centers and other uses in an effort to ensure the ordinance's compliance with RLUIPA. The court denied the preliminary injunction. The Ministries appeal.

In their opinion, Judges Cudahy, Manion and Williams affirmed. The Court first stated the burden for obtaining a primary injunction: a reasonable likelihood of success on the merits, irreparable harm and a balancing of the harms based on the likelihood of success. With respect to its likelihood of success on the merits, the Court concluded that the Ministries was unlikely to succeed. The Equal Terms provision of the Act prohibits land-use regulations that treat religious assemblies on "less than equal terms" with non-religious assemblies. The Court discussed and critiqued the approaches of the Eleventh and Third Circuits. The Court preferred the Third Circuit approach, which allows a court to compare the effects of the allowed and disallowed uses on the local government's goals. Here, Hazel Crest's goal was to create a tax-generating commercial district. All of the "assemblies" that were allowed by the ordinance were commercial ventures. The Court concluded that the village's exclusion of non-commercial uses, including religious assemblies, was not likely to violate the RLUIPA. Although the Court then concluded that the relocation was instrumental to the Ministries' mission and could be considered irreparable harm, it did not believe that that harm significantly outweighed the harm to Hazel Crest.

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ILLINOIS DUNESLAND PRESERVATION SOCIETY v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (October 14, 2009)

Illinois Beach State Park is located in northeastern Illinois on the shores of Lake Michigan. Various buildings in the park have display racks containing pamphlets on various topics. The Illinois Dunesland Preservation Society is a nonprofit corporation that supports the park. The Society created a pamphlet warning of the risk of asbestos at the park's beaches. When the park refused to display the pamphlet, the Society brought suit under § 1983 against the state officials involved in operating the park. The district court granted summary judgment to the officials. The Society appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court first recited some of the "forum analysis" of Supreme Court decisions but then questioned the value of that analysis to the question. Every public site, stated the Court, can be regulated to some extent depending on the circumstances and as long as the regulation is not used to stifle speech. Here, the materials displayed in the park's racks are meant to promote the park and state tourist facilities generally. The dire warning contained in the Society's pamphlet is hardly consistent with that purpose. The Court concluded that the park was not required to display, and thus tacitly endorse, the pamphlet containing the warnings. The Court added that there were other means, such as personal distribution, available to the Society to convey its message. The park's position was not an unreasonable barrier to speech.

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GUNVILLE v. WALKER (October 9, 2009)

Robert Gunville and Richard Oakley had both worked for the Illinois Department of Corrections for over twenty years, all during Republican administrations, when a Democratic governor was elected in 2003. Both were laid off within months of the new administration’s inauguration. Gunville was an active member of the Republican Party while Oakley had a record of voting in Republican primaries. Gunville and Oakley brought suit, alleging a violation of their First Amendment rights. They also allege a violation of their Fourteenth Amendment rights as a result of their placement on a reemployment list for only their last county of employment. The district court granted summary judgment to the defendants. Gunville and Oakley appeal.

In their opinion, Judges Manion, Rovner and Sykes affirmed. In first addressing their First Amendment claim, the Court noted that there was no dispute that their speech was constitutionally protected and that they suffered a deprivation. The issue on appeal was whether the layoff came as a result of their political affiliation. In order to establish the unlawful motivation, the plaintiffs must first establish that the defendants knew of their political affiliation. After concurring with the district court's hearsay ruling on one particular statement, the Court concluded that there was a complete absence of evidence that the persons deciding which jobs to eliminate knew of plaintiffs' political affiliations. The Court came to the same conclusion with respect to the Fourteenth Amendment claims. The due process clause does not provide an opportunity to challenge the meaning of a regulation, the relief plaintiffs sought. To the extent that plaintiffs assert political retaliation, the due process argument suffers from the same complete absence of evidence as the First Amendment claim.

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HUNTER v. AMIN (October 1, 2009)

Stanley Bell was sent to the St. Clair County Jail as a pretrial detainee. At the time, he was taking several medications, including an antidepressant and a sleep aid. The prison psychiatrist, Dr. Amin, met with Bell about a week later. Bell refused to speak with Amin with a jail officer present. Amin refused to meet with Bell without a jail officer present, a practice that was also required by state regulations. Bell became agitated -- Amin told him his medication would be discontinued without the examination -- Bell became more agitated and belligerent. Amin discontinued all of Bell's medications and planned to meet with him the following week. Bell committed suicide two days later. Bell's sister, Elisha Hunter, brought a claim pursuant to § 1983 against Amin, the County, and others. She also bought medical malpractice claims. The district court entered summary judgment in favor of all the defendants. Hunter appeals.

In their opinion, Judges Ripple and Sykes (dissenting) and District Judge Lawrence affirmed in part, reversed in part and remanded. The Court first considered the argument that the policy requiring the presence of a corrections officer was a violation of Dell's right to mental health treatment. In order for a municipality to be liable under these circumstances, its policy must violate constitutional rights. Here, the Court stated that the policy did not violate Bell's rights. Bell had a constitutional right to adequate mental health treatment but nothing in the County's policy affected that right. In fact, the Court noted that the fact that the communications would be privileged from disclosure supported their conclusion. With respect to the medical malpractice claim, however, the Court reversed. Although it is true that no physician duty arises if a patient refuses treatment, Bell did not refuse treatment -- he only refused to be examined. The Court found no evidence in the record supporting Amin's position that the examination was necessary in order for him to continue the prescription medications. The Court medical remanded the malpractice claim for further proceedings. Finally, given the affirmance on the only federal claim in the case, the Court instructed the district court to determine whether it should continue to exercise jurisdiction.

Judge Sykes dissented from the majority's reversal of the medical malpractice claim. Judge Sykes concluded that Bell's refusal to consent to the examination meant that Amin had no right to render any treatment. Amin testified that he needed the examination before any treatment. Judge Sykes noted the lack of support in the record for the majority's conclusion that the examination was required.

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SUAREZ v. TOWN OF OGDEN DUNES (September 11, 2009)

William Suarez hosted a high school graduation party on the beach behind his parents' home in Ogden Dunes, Indiana. Beer was served. Around 11:00 p.m., a local police officer happened by and noticed the activity. While warning one young man for his illegal parking, he was verbally abused by several others. Believing that the party was getting out of control, the officer left to get help. Meanwhile, Suarez ended the party, put out the bonfire and invited a small group of his friends inside to spend the night. Suarez' mother, concerned that the police may return, instructed the boys to remain upstairs. The officer returned with a bevy of squad cars. He saw that there were still several cars in the driveway, although no people were present. Suspicious that the underage drinking was continuing inside the house, the officer telephoned a local judge for a search warrant. He described the earlier scene of abuse and fairly raucous behavior. He added that there were bottles in the back yard, that a number of teenagers retreated into the house and that teenagers hiding behind couches were visible through a window of the house. He got his warrant -- they broke down the door -- they arrested Suarez and his mother. William was wrestled and pepper-sprayed during his arrest. Suarez and his mother brought this action under § 1983, alleging an unlawful search and an unlawful arrest. William also complained of excessive force. Most of the case was resolved with summary judgment in the defendants' favor. The excessive force claim against three of the officers was tried to a jury, resulting in a defense verdict. William and his mother appeal.

In their opinion, Judges Flaum, Williams and Tinder affirmed. The illegal search claim, stated the Court, depends on the existence of probable cause. Because the plaintiffs challenged the statements made by the officer to the judge, as opposed to the decision of the judge, they must show that the officer made false statements knowingly or with reckless disregard for the truth and that the statements were necessary for the determination of probable cause. The Court first considered the claim that he made false statements by implying that he actually saw the teenagers retreat into the house and by omitting the fact that almost an hour elapsed between the earlier raucous behavior and his return to the home. The Court concluded that these were not materially false statements. The officer's earlier observations combined with the fact that a number of cars were still at the house supported an inference that the party was still taking place. The Court also rejected the claim that the officer did not personally observe every fact reported to the judge. He was entitled to rely on the collective knowledge of the gathered officers. Probable cause therefore existed and the search was lawful. The existence of probable cause for the search disposes of William's unlawful arrest claim. As for his mother's, the officers had reason to believe that she was permitting minors to consume alcohol in her home, a violation of Indiana law. Her arrest, also, was lawful.

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NEW ALBANY DVD v. CITY OF NEW ALBANY (September 10, 2009)

New Albany DVD set out to operate an adult entertainment business in New Albany, Indiana. It purchased property, obtained licenses and renovated a building. Although the land was properly zoned, the City refused to conduct a final inspection, a requirement for occupancy. Instead, it imposed a moratorium on new adult businesses. During the moratorium, it changed the zoning rules to prohibit the operation of an adult business on the property selected by New Albany DVD. The new rules prohibit the operation of an adult business within 1000 feet of a church or any property zoned residential. The site is within 200 feet of both. New Albany DVD brought suit under § 1983, alleging a violation of the First Amendment. The district court held that the ordinance was likely unconstitutional and issued an injunction allowing New Albany DVD to open. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner remanded. The Court first disagreed with the lower court's rationale -- that the regulation was not narrowly tailored for its purpose -- for issuing the injunction. Although Alameda Books and other cases require narrow tailoring of regulations of adult businesses, the Court concluded that the dispersal regulation at issue had often been used and sustained after challenge. The Court went on, however, to agree with the court’s result under a different rationale. It noted that the studies relied on by the City focused on live-entertainment businesses. New Albany DVD offers take-home materials only. The City’s attempts to overcome this hurdle by offering anecdotal evidence of increased litter and theft was rejected as well. The Court agreed that the City might be able to use those justifications, but concluded that sufficient evidence did not exist in the record. Finally, the Court referred, as it did in its earlier Annex Books opinion (see post), to Justice Kennedy’s opinion in Alameda Books as a guide to the evidence required under the intermediate scrutiny standard.

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HARPER v. SHERIFF OF COOK COUNTY (September 8, 2009)

Robert Harper was arrested on September 29, 2005. The next afternoon, a judge found probable cause, set bond and remanded him to the custody of the sheriff. Apparently, Harper's wife was at the probable cause hearing and was willing and able to post a cash bond. She eventually posted it a few hours later but Harper was not released from custody until hours after that. During that time, he was in the custody of the sheriff undergoing pre-release processing. Harper brought an action against the Sheriff, alleging that the pre-release procedures are unconstitutional. The district court granted Harper's motion for class certification, although it found his class definition too broad and asked for a redefinition. The Sheriff appeals.

In their opinion, Judges Bauer, Sykes and Tinder vacated and remanded. The Court first clarified that it had jurisdiction, notwithstanding the lower court's request for a redefinition of the class. The open definition was of no consequence since the court certified the class. Before it addressed class certification, the Court first had to decipher the crux of the complaint. It noted that Harper complained of specific intake procedures as well as the general practice of holding detainees after bond had been posted. Relying specifically on representations at oral argument, the court focused on the latter of these two issues -- the post-bond detention. On the merits of that argument, however, the Court concluded that the reasonableness of the detention would depend on the specific facts and circumstances of each individual case. The Court cited a number of factors: time of day, number of detainees, collateral events, etc. The Court also addressed Harper's equal protection claim that persons with money or influence can avoid the detention. Without addressing the merits, the Court concluded that this claim, too, was not appropriate for class disposition.

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THOMAS v. CITY OF PEORIA (September 3, 2009)

A lawyer for the city of Peoria sought and obtained a warrant for the arrest of Joshua Thomas. Joshua’s crime -- nine unpaid parking tickets. Sometime later, Joseph Thomas was stopped for a traffic violation. Although the names and addresses of Joshua and Joseph did not match, the driver's license number on the arrest warrant for Joshua did match that of Joseph. Joseph was arrested. He was later released when it was determined that he was, indeed, not Joshua. Joseph brought an action under § 1983 against the City and the lawyer who obtained the warrant. He alleged a deprivation of his Fourth Amendment and due process rights. The court dismissed for failure to state a claim. He then denied class certification. Thomas appeals.

In their opinion, Judges Cudahy, Posner and Tinder affirmed. The Court first addressed "zone of interest" standing. The Court explained zone of interest standing as a requirement of federal common law that limits the class of persons entitled to sue. Remoteness of injury is one of those limitations. Here, for example, assuming state law does not authorize an arrest for unpaid parking tickets and that such an arrest would therefore violate the Constitution, Joshua Thomas is the one within the class of people the policy is designed to protect. Joseph’s interest is to remote to be recognized. Alternatively, the Court went on to conclude that Joseph would fare no better even if he was within the zone of interest. The Supreme Court held in Moore that a otherwise reasonable arrest (which this is) is not unconstitutional simply because it was for an offense that does not authorize arrest. The Court easily disposed of the due process argument. Finally, the Court added that the individual defendant would in any event have absolute immunity as a prosecutor performing a prosecutorial function.

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DARCHAK v. CITY OF CHICAGO BOARD OF EDUCATION (September 3, 2009)

Anna Darchak, a native of Poland, worked for several years in the Chicago public school system as a teacher of English as a Second Language. In 2005, she was hired as a full-time teacher at the Princeton Alternative Center on a one-year contract. It was not a good year. Almost immediately, Darchak complained that Hispanic students were being treated more favorably than Polish students. Darchak alleges that Princeton's principal made several disparaging remarks in reference to Darchak's heritage. Later in the year, the principal assigned Darchak to a classroom with a large number of Spanish speaking students. Darchak complained – and she received a negative evaluation. The principal chose not to renew Darchak's contract at the end of the year. Darchak filed suit, alleging retaliatory discharge, First Amendment retaliation under § 1983, and national origin discrimination under Title VII. The district court granted summary judgment to the defendants. Darchak appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed in part and reversed in part. The Court addressed each claim in turn. First, with respect to the state law claim of retaliatory discharge, the Court stated that Darchak had to demonstrate that she was discharged, that the discharge was retaliatory, and that the discharge violated a clear mandate of public policy. The Court concluded that the claim failed on both the first and third elements. First, Darchak was not discharged -- her one-year contract was not renewed. Second, the public policy relied on by Darchak -- equal education -- has never been recognized by Illinois courts as support for a retaliatory discharge claim. With respect to her First Amendment retaliation claim, the Court concluded that the Board of Education was not liable under Monell. Although Darchak alleged that the principal was a final policymaker, the Court stated that Illinois law makes the Board the final policymaker. The Court agreed that the Board's adoption of the principal's recommendation could be a basis for liability but only if they adopted the retaliatory basis as well. The Court found no evidence of that. Finally, with respect to the Title VII national origin discrimination claim, the Court noted that she put forth both a direct and an indirect case. The Court rejected her indirect method approach because she could not demonstrate pretext with respect to the Board's reasons for nonrenewal. On her direct method, however, the court found that Darchak presented sufficient circumstantial evidence to reach a jury. The evidence of derogatory remarks followed shortly by a disciplinary notice from the principal follow later by the nonrenewal establish a prima facie case. The fact that Darchak's testimony is uncorroborated and self-serving does not change that result, as the district court believed. The testimony is based on her first-hand experience and deserves to be considered. The Court concluded that the evidence raised a question of intent that had to go to the jury.

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ANNEX BOOKS, INC. v. CITY OF INDIANAPOLIS (September 3, 2009)

The City of Indianapolis regulates “adult entertainment businesses”. The regulations include a license requirement, store lighting requirements, Sunday closings and restricted weekday hours. Prior to 2003, any retail establishment that received 50% of its revenue or devoted 50% of its space to adult materials was considered such a business. In 2003, Indianapolis reduced the 50% threshold to 25%. Four businesses that fell within that new definition brought suit, challenging both the licensing procedures and the definition. The district court rejected the challenges to both. The businesses appeal.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Rovner affirmed in part and reversed in part. The Court adopted the district court's opinion with respect to the licensing challenge. It went on to address the challenge to the definition. The Court noted that Indianapolis conceded that the law is subject to "intermediate" scrutiny in that the plaintiffs are booksellers. Indianapolis relies on the reduction of crime and other negative effects of adult businesses. The Court identified a problem, however. Indianapolis relied on studies accepted by the Supreme Court and on a study it conducted years earlier that associated higher crime with adult businesses. But the studies all dealt with the effect of regulations dispersing adult businesses. The Indianapolis ordinance does not deal with dispersal -- it deals with store hours and store conditions. The studies also dealt with businesses that offered live entertainment, unlike three of the four plaintiffs in the case. The Court concluded that an evidentiary hearing was required. At the hearing, the City must present relevant evidence supporting its restrictions on adult businesses that satisfies the intermediate standard of the Supreme Court's decision in Alameda Books. The Court referred to Justice Kennedy's opinion, reflecting the holding of Alameda Books, as instructive. In order to meet the constitutional challenge, said Justice Kennedy, an ordinance must suppress the secondary effects of the regulated business yet leave the availability and amount of speech "substantially intact."

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WATERS v. CITY OF CHICAGO (September 2, 2009)

Daniel Waters was a painter in the Chicago Department of Transportation (CDOT). In 2000, he refused a request by his supervisor to participate in a political campaign. At about the same time, he twice contacted local investigative journalists. On one occasion, he complained about a bridge that he thought was in such a state of disrepair that it was a danger to the public. On the other occasion, he complained that the City was making some improvements to a piece of property and that it did not own. Several of his superiors were unhappy with his conduct. He was transferred into a job working for a supervisor for whom he had worked before several times. Their relationship was strained, at best. Within a matter of weeks, Waters had several run-ins with his supervisor and was reported multiple times for violent behavior. A deputy commissioner recommended his firing. The department did not act on the recommendation. Department policy required that Waters be given an opportunity to respond to the charges of violence before any discipline was handed out. Waters provided his side of the story -- but the department ruled that his conduct amounted to violence in the workplace. The deputy commissioner resubmitted his recommendation. A pre-termination hearing was held. Commissioner Rice, who held the only authority to fire, terminated Waters. Waters sued the City under § 1983, alleging First Amendment retaliation. A jury awarded Waters $225,000 in damages and the court awarded more than $1 million in back pay, front pay and pension benefits. The City appeals.

In their opinion, Judges Manion, Rovner and Tinder vacated, reversed and remanded. The Court stated that, under Monell, a city can be liable for a constitutional deprivation but only if it resulted from a policy or practice, or that the injury was caused by someone with final policymaking authority. Waters relied on the latter prong. Final policymaking authority comes from state and local law, though. Here, said the Court, local law gives policymaking authority to the City Council, which has delegated it to the Commissioner of Human Resources. Although the Court recognized that department commissioners do have some authority to execute existing policy, they do not have policymaking authority. Since Commissioner Rice had no such authority, municipal liability cannot be based on her actions. The Court went on to note that Waters presented no evidence that Rice’s termination was in retaliation for his exercise of his First Amendment rights. Even if she had policymaking authority, the absence of that evidence would have defeated his claim.  

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FAIRLEY v. ANDREWS (August 20, 2009

Fairley and Gackowski were employed as guards at the Cook County Jail. Both complained about their fellow guards' mistreatment of prisoners. After one particularly brutal incident, the affected prisoners filed suit. Fairley and Gackowski infuriated some of the other guards by their willingness to testify truthfully about their knowledge of the incident. They were both harassed and taunted, verbally and physically. Ultimately, they both quit. Fairley testified in a deposition a few weeks before he quit. Gackowski gave a deposition after he quit. Both testified at the trial, which resulted in a defense verdict. Fairley and Gackowski brought an action under § 1983, alleging that the defendants violated their free speech rights by assaulting them as a result of their willingness to report the abuse of prisoners and to testify truthfully. Shortly before trial, the district court ordered the exclusion of all evidence of events that occurred prior to the plaintiffs’ depositions. The judge reasoned that anything that occurred prior to their speech could not be considered as retaliation or punishment for that speech. Without that evidence, the guards accepted a dismissal. Fairley and Gackowski appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed in part and reversed in part. The Court first clarified its jurisdiction, given the guards' acceptance of a dismissal after the court’s evidentiary ruling. The Court concluded that a party can decide that further pursuit of its case in the trial court is hopeless and accept a judgment against it in order to appeal. On the merits, the Court addressed both of plaintiffs' theories: that the defendants punished them for reporting defendants’ misconduct and that defendants taunted them to prevent their future testimony. On the first theory, the Court concluded that their claim was barred by Garcetti. Garcetti provides that the First Amendment does not protect speech that is part of one's job. Here, one guard’s report about another guard's conduct is part of the job. But Garcetti applies as against an employer - here, the defendants are coworkers. The Court concluded that it did not have to reach the coworker issue. The guards' Monell argument that the jail had a policy against reporting any guard misconduct linked the employer's liability and the coworker's liability. On the second theory of liability, however, the Court concluded that Garcetti did not control. The speech at issue in the second theory was the guards' testimony in the prisoners' trial. That speech is not part of the job. The Court concluded that Fairley and Gackowski could recover against a defendant who made threats that were designed to discourage their trial testimony.

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GONZALEZ v. CITY OF ELGIN (August 20, 2009)

A number of former high school classmates attended a wedding. Afterward, they gathered at the home of one of them. They visited late into the night and early morning. As the group was about to break up, one of them (who had left earlier to go to a local restaurant) returned to tell the others that his wife and brother were being assaulted outside the restaurant. Several members of the group went to the restaurant. The fight was over and the attackers were gone – but the police had arrived. Here, the testimony in the record supports two versions of a story. Several members of the group described a situation in which a number of police officers were out of control. They testified to beatings, kicks, and pepper-sprays. The police, on the other hand, described an unruly mob, disorderly conduct and resisting arrest. The police arrested several of the group. Most of the charges were dismissed. Six members of the group brought an action against the City and several police officers. They alleged violations of the Fourth Amendment, under § 1983, for unlawful arrest, excessive force, and failure to intervene. They also alleged state law malicious prosecution and a respondeat superior claim against the City. The district court granted summary judgment to the defendants and added that the defendants were also entitled to qualified immunity. Plaintiffs appeal.

In their opinion, Judges Posner, Flaum and Wood reversed and remanded. On the unlawful arrest claim, the Court noted that the plaintiffs had to show an arrest without probable cause. The Court reviewed the evidence in support of probable cause for the arrests for mob action, resisting arrest and battery. In each case, the Court concluded that the facts were contested. The plaintiffs’ version supported a conclusion that probable cause did not exist. On the excessive force claims, the Court again criticized the lower court for not viewing the facts in a light most favorable to plaintiffs. A reasonable jury could find that the police used greater force than necessary considering the totality of circumstances. For the same reason, the failure to intervene judgment was reversed. Next, the Court had little difficulty in rejecting the qualified immunity argument. The plaintiffs stated constitutional violations of an arrest without probable cause and the use of excessive force. Both constitutional rights are clearly established. Finally, the Court reversed with respect to the state law claims for much the same reason – there were genuine issues of material fact.

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BROOKS v. ROSS (August 20, 2009)

Victor Brooks served on the Illinois Prison Review Board ("PRB"). One of the functions of the PRB is to make certain parole decisions. In 2002, the parole request of inmate Harry Aleman came before the PRB. The hearing was unusual both because of Aleman's notoriety for murder and bribery and because a Department of Corrections employee provided a statement in support of his parole. Brooks cast the only vote in support of parole. Because of the high profile of the situation, the department began an investigation. The investigation resulted in several reports, some of which accused Brooks of accepting bribes to vote in favor of parole. Eventually, Brooks and the department employee were indicted for their conduct -- and later acquitted. Brooks filed suit under § 1983 and state law against numerous state officials, alleging claims of deprivation of due process, malicious prosecution, conspiracy and intentional infliction of emotional distress. The district court dismissed for failure to state a claim. Brooks appeals.

In their opinion, Judges Flaum, Wood and Tinder affirmed. The Court chose to address the claims under principles of timeliness, sovereign immunity and pleading requirements. First, a § 1983 claim borrows its statute of limitations from a state personal injury action. Here, that limitation is two years. Brooks' complaint was filed within two years of his acquittal, but more than two years after his indictment. The malicious prosecution and federal due process claims both require an allegation of acquittal and are therefore timely. The federal and state conspiracy claims and the intentional infliction of emotional distress claim complain of his prosecution. An acquittal is not a pleading element of any of them. Under Illinois law, the Court concluded that the indictment was a single overt act that triggered the statute of limitations for those claims. They are therefore time-barred. Second, Illinois law requires tort suits against the state to be brought in the Illinois Court of Claims. Although the Court recognized the exception if a state actor exceeds his authority, it concluded that the malicious prosecution claim did not fall within the exception and was therefore barred. Finally, the Court concluded that Brooks' due process claim did not meet the pleading requirements of the Supreme Court's recent opinions in Twombly, Erickson and Iqbal. Under those cases, a plaintiff is required to provide notice of his claim, a court must accept allegations as true unless they fail to provide sufficient notice, and the court need not accept conclusory or abstract allegations. Here, Brooks does provide many specific allegations, but the allegations describe conduct that is just as consistent with legal behavior as it is with illegal behavior. The only allegations that adequately describe illegal behavior merely recite the elements of the cause of action and do not put the defendants on notice of their specific conduct that is alleged to have violated the Constitution or law.

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HANES v. ZURICK (August 18, 2009)

Apparently, Stephen Hanes and his neighbors in Grayslake, Illinois have been unable to get along for quite some time. The feud has resulted in numerous complaints to the local police. According to Hanes' complaint that the Grayslake police officers denied him equal protection of the law, the police always blame Hanes and arrest him. He has been arrested at least eight times – and every charge was dropped. The officers moved to dismiss the complaint both for failure to state a claim and on qualified immunity grounds. The district court denied the officers' motion to dismiss for failure to state a claim, although it did not specifically mention qualified immunity. The officers appeal.

In their opinion, Judges Rovner, Wood and Williams affirmed. Because a ruling on the qualified immunity defense was a necessary basis for the Court's jurisdiction of the interlocutory appeal and because the district court did not specifically mention qualified immunity, the Court first addressed its jurisdiction. The qualified immunity issue was fully briefed below, the district court addressed both prongs of the qualified immunity inquiry, and the district court gave no indication that it intended not to rule on any issue presented. The Court was therefore satisfied that it had jurisdiction to consider the order rejecting a qualified immunity defense. On the merits, the Court first considered the constitutional violation prong. The Court started with its opinion in Hilton, which recognized a class-of-one equal protection claim for unequal police treatment. The Hilton plaintiffs did not survive summary judgment because they failed to show that the unequal treatment was the result of personal animus. Personal animus is alleged here. Although the Court concluded that a constitutional violation existed under Hilton, it did consider the officers' argument that the Supreme Court's decision in Engquist should prompt it to reconsider Hilton. In Engquist, the Supreme Court held that the class-of-one theory is not well-suited to the public employment context where government actors exercise "discretionary authority based on subjective, individualized determinations." The Court rejected the invitation to reconsider Hilton. It noted that although police officers enjoy broad discretion in their actions, their discretion is much more limited than that of a public employer. On the issue of whether the constitutional right was clearly established, the Court concluded that the officers were on notice as a result of Hilton.

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JUSTICE v. TOWN OF CICERO (August 14, 2009)

On the basis of an affidavit of a local building inspector asserting that John Justice was operating a business without a license and was likely illegally storing chemicals, a state judge issued a search warrant. During the search, the police discovered several unregistered guns. The town seized the guns and ticketed Justice for their possession. Justice responded with a lawsuit against the town and several individuals. Justice alleged a lack of probable cause for the search and challenged both the business license and firearm ordinance. He also asserted various antitrust claims arising out of the town's water supply charges. The district court dismissed the entire complaint for a failure to state a claim. Justice appeals.

In their opinion, Judges Bauer, Wood and Tinder affirmed. The Court took each of Justice's allegations in turn. With respect to his challenge of the business license ordinance, the Court noted that the town was a home-rule unit with the power to regulate and license. The Court agreed with the district court that the ordinance was a proper application of that power. The Court next rejected Justice's challenge to the search. The search was conducted pursuant to a properly issued warrant. With respect to the firearm ordinance, the Court noted the Supreme Court's recent decision in Heller, which struck down a District of Columbia handgun prohibition, and the Court's even more recent decision in City of Chicago, which concluded that the Second Amendment did not apply to the states. Justice has no case either because City of Chicago was decided correctly and the Second Amendment does not apply to the town, or, even if the Second Amendment does apply, the ordinance is consistent with Heller in that it only regulates – and does not prohibit - gun possession. Finally, the Court summarily affirmed the district court with respect to Justice's various claims with respect to the town's water supply practices. Water supply is a traditional government activity authorized by state law. The town is immune from both federal and state antitrust liability for its water supply activities.

 

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BENTZ v. CITY OF KENDALLVILLE (August 14, 2009)

The local police arrived at the home of Dr. Bernard Leonelli, responding to reports of a domestic dispute. An officer observed a large fire on the front lawn and was told by bystanders that a fight was taking place inside the home. The officer approached Leonelli, who was standing on his front porch, and asked to speak with him. Instead, Leonelli walked into the house, where the officer observed him reaching for something. The officer entered the house, arrested Leonelli and searched the premises for a possible victim of domestic abuse. Leonelli brought an action against the city under § 1983, alleging that both the arrest and the search were unreasonable and unlawful. The district court granted summary judgment to the defendants. Leonelli appealed -- but died before the appeal was heard. His personal representative seeks to continue the appeal on his behalf.

In their opinion, Judges Cudahy, Posner and Kanne granted the defendants’ motion to dismiss the appeal. Section 1983 is silent on whether a claim survives death. Instead, the Court stated, the state’s survival statute applies. A court must first characterize the § 1983 claim and decide which state tort is most analogous. With respect to the arrest claim, the Court noted that the plaintiff had to establish the fact of a seizure and its unreasonableness. The Court concluded that the closest Indiana tort was false imprisonment, the elements of which are almost identical to those for false arrest. Since an Indiana tort of false imprisonment does not survive the death of the plaintiff, neither does Leonelli's false arrest claim. With respect to the unlawful entry and search, the Court stated that the facts of the case were closely analogous to both a state trespass claim, which does survive, and a state invasion of privacy claim, which does not survive. The proper analysis, however, focuses on the elements of the federal claim, not the specific facts of the case. Looking at it from that perspective, the Court concluded that an expectation of privacy is the core of the unreasonable search claim. The federal claim is more analogous to invasion of privacy than it is to trespass. The claim does not survive.

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SCHOR v. CITY OF CHICAGO (August 13, 2009)

The City of Chicago passed an ordinance that prohibits the use of a mobile phone while driving unless it is used in conjunction with a "hands-free" device. Three individuals who were ticketed for violating the ordinance filed an action against the City, alleging violations of the Fourth Amendment, the Equal Protection Clause and Illinois law. The district court dismissed the claims and refused to allow an amendment to the complaint. The plaintiffs appealed.

In their opinion, Judges Manion, Rovner and Wood affirmed. The Court rejected the Fourth Amendment claim. The officers making the stops observed each plaintiff violating the ordinance. Those observations provided probable cause for the stop – and thus no Fourth Amendment violation. The Equal Protection Clause claim was a "class of the one" claim. To succeed on that claim, the Court stated, the plaintiffs had to show that they were treated differently and that there was no rational basis for the difference in treatment. Here, the drivers were treated differently than other drivers who were not using mobile phones. The basis for the differential treatment, however, was the violation of an ordinance -- clearly a rational distinction. The Court rejected the plaintiffs' Monell claims as well. A direct claim against a municipality must be based on an underlying constitutional violation, which is not present here. Finally, the Court concluded that the district court's refusal to allow an amendment to the complaint was not an abuse of discretion. In the amendment, the plaintiffs sought to include a claims that the ordinance violated their fundamental right to travel and a claim that the ordinance was void for vagueness. The plaintiffs failed to indicate how the ordinance infringed any right to travel or how its terms were so vague that an ordinary person could not understand.

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BAIRD v. RENBARGER (August 3, 2009)

Joe Baird owned a body shop in Shelbyville, Indiana. After he purchased an antique automobile, he had his office call the police department to check the vehicle's motor number. Although an officer verified the number, he soon thereafter reported his suspicion to a prosecutor that the number was altered. He obtained a search warrant for the automobile and he and several other officers, including Officer Renbarger, executed the warrant. Officer Renbarger carried a 9 mm. submachine gun and rounded up a number of people in the surrounding shops and warehouses, including a group of Amish men. He held the individuals for almost two hours while the search was conducted. The officers located the car and concluded that the motor number had not been altered. Baird brought suit against the officers pursuant to 42 U.S.C § 1983. He alleged violations of the Fourth Amendment and state law claims for trespass, negligence and false imprisonment. The district court denied Renbarger's motion for summary judgment on the basis of qualified immunity. Renbarger appeals.

In their opinion, Judges Bauer, Flaum and Wood affirmed. The Court set out the two-step Saucier inquiry: whether a constitutional right has been violated and whether that right was clearly established at the time of the conduct. Whether the seizure was unreasonable is an objective test requiring an analysis of the severity of the alleged crime, the presence of an immediate threat and whether there is any resistance. Here, these factors all support the unreasonableness of the seizure. The only alleged crime concerned a vehicle motor number. No officer had any reason to believe there was any imminent threat. No one resisted the detention. The Court concluded that a jury could find that Renbarger violated Baird's rights. With respect to the second step of the inquiry, the Court concluded that it was clearly established that police officers are not entitled to point guns at citizens when there is no suggestion of any danger. The Court concurred with the district court's denial of qualified immunity.

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HOLLINS v. MILWAUKEE (July 31, 2009)

David Hollins is a freelance photographer. One June day in 2002, he was walking down a Milwaukee street. He came upon a scene where the Milwaukee Police were conducting a search of a home across the street. Hollins began taking pictures. A police officer noticed Hollins and asked him to move away from the area. Although he moved a short distance, Hollins eventually stopped and refused to move further. Police officers arrested Hollins and cited him for resisting an officer. The parties' versions of the events differ greatly with respect to the amount of force used by the officers and the attitude and language of the participants. Hollins was convicted and paid a fine. He later sued the city and the officers for violations of the First, Fourth and Fourteenth Amendments. He also brought a § 1983 claim against the City of Milwaukee for failure to train police officers properly. The court granted summary judgment to the defendants on the § 1983 claim and dismissed the free speech and due process claims as well. A jury found for the defendants on the unlawful arrest and excessive force claims. Hollins appeals.

In their opinion, Judges Bauer, Flaum and Evans affirmed. The Court first addressed the § 1983 claim for failure to properly train the police. The Court agreed that a failure to train police can lead to § 1983 liability if it amounts to a deliberate indifference of public rights. The Court further stated that Hollins had to present allegations of a specific pattern of incidents to prove that the constitutional deprivation resulted from an official policy or custom. Hollins, however, failed to offer any evidence that the city's failure to train amounted to the requisite deliberate indifference. The city, on the other hand, presented unrebutted evidence that it did offer significant training in the areas cited by Hollins. The Court also affirmed the dismissal of the free-speech claims, concluding that Hollins' allegations that he was arrested for taking pictures totally unsupported. With respect to the alleged trial errors, the Court concluded that the district court did not abuse its discretion when it: a) refused to ask a voir dire question on racial prejudice that had nothing to do with the law or facts, b) disallowed questioning on cross-examination that one of the defendants had been investigated for falsifying police reports when it had limited probative value, and c) refused to tender Hollins' jury instruction interpreting the ordinance under which he was cited when he offered no authority to support his interpretation and when the jury was not being asked to determine whether the ordinance had been violated.

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VALENTINO v. SOUTH CHICAGO HEIGHTS (July 30, 2009)

Sandra Valentino worked for the Village of South Chicago Heights for several years. In 2001, she became suspicious of Mayor David Owen's hiring practices. She was aware that the Village employed many of the mayor's friends and family members. She believed that many of these employees were on a “ghost payroll,” i.e., being paid for work they did not perform. She shared her concerns with William Bramanti, a former village employee who quit as a result of a dispute with the mayor. Bramanti submitted a FOIA request to the village for employee time records. At the same time, Valentino began to make copies of the daily employee sign-in sheets. In February of 2003, Bramanti accused the mayor publicly of ghost payrolling. The very next business day, the Village Administrator searched Valentino's desk, found the copies, and fired Valentino when she arrived for work. Valentino filed a § 1983 action against the Village, the mayor and others. She alleged retaliation in violation of her First Amendment rights. The district court granted summary judgment to the defendants. Valentino appeals.

In their opinion, Judges Rovner, Evans and Williams reversed and remanded. The Court first looked to whether Valentino's speech was constitutionally protected, i.e., whether she spoke as a private citizen on a matter of concern. The Court found it "well-established" that speech which protests government waste is entitled to constitutional protection. Although the Court recognized that Valentino had a private interest in determining whether she was receiving proper compensation, it concluded that her speech was protected since she was not motivated solely by those personal interests. The Court next addressed whether there was evidence that the protected speech was a motivating factor in her termination. The Court found the circumstantial evidence -- knowledge of her relationship with Bramanti, the search of her desk, the search and firing the day after Bramanti's public accusations, and a comment by the mayor threatening her employment -- sufficient to take that issue to a jury. That same evidence, as well as the fact that the sign-in sheets were on public display and were simply copied by Valentino, was enough for the Court to conclude that a jury could also find the village's stated reason for her termination pretextual. Thus, the Court reversed the summary judgment for the defendants. With respect to the Monell claim, the Court stated that the Village could be liable for the constitutional violation if it was caused by an individual with final policymaking authority. The question for the Court was whether Owens had final authority on matters of hiring and firing. The Court concluded that the evidence was conclusive that Mayor Owen made personnel decisions for the village without any meaningful oversight, and thus had final authority. The Court reversed the district court with respect to the village's liability under Monell. Finally, the Court rejected defendants' argument that the Illinois Tort Immunity Act immunized them. That Act immunizes village officials from certain discretionary policy decisions. The decision to fired Valentino was not a policy decision -- the defendants are not entitled to immunity.

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JOHNSON v. SAVILLE (July 29, 2009)

For several years, Larry Johnson worked in a youth correctional facility in Illinois. When a former female inmate alleged that she and Johnson had sexual relations while she was an inmate, the Illinois Department of Corrections began an investigation. Illinois State Police Officer Karl Saville was assigned to the case. Saville gathered substantial evidence of Johnson's guilt, including several statements by the witness implicating Johnson. Saville was not aware of a prior statement by the same witness denying any sexual relations with Johnson. The State decided to prosecute Johnson. He was found not guilty in a bench trial. He later brought a § 1983 action against Saville, alleging malicious prosecution under both state and federal law. The district court granted summary judgment to Saville. Johnson appeals.

In their opinion, Judges Evans, Williams and Tinder affirmed. With respect to the state malicious prosecution claim, the Court stated that one element of the claim is the absence of probable cause. The Court found probable cause: the victim stated that she and Johnson had sexual relations, several other inmates gave statements corroborating the victim’s story, Johnson had no alibi, and the facility's records showed that Johnson had access to the victim on the date in question. The Court recognized certain disputes regarding the facts and also appreciated that the victim had, on one occasion, denied having sexual relations with Johnson. Nevertheless, it concluded that the undisputed facts created probable cause to believe that Johnson was guilty. With respect to Johnson's federal Fourth Amendment malicious prosecution claim, the Court agreed that Johnson forfeited the claim by not developing it in the district court. It rejected, on several grounds, Johnson's pleas to overlook the forfeiture.

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CASNA v. CITY OF LOVES PARK (July 24, 2009)

From 1996 through 2003, Mary Casna worked for the City of Loves Park in two different positions. Though she had a serious hearing impairment, it did not interfere with her performance. In her second job, Casna and one of her superiors did not enjoy a good working relationship. The City transferred her to a temporary police clerk position for six months in order to evaluate her performance in a less volatile atmosphere. Casna's hearing impairment became an issue. In one particular episode, Casna explained to her supervisor, Kay Elliot, that she had not heard her make a request. Elliot snapped: "How can you work if you cannot hear?" Casna accused Elliot of being discriminatory. Elliot consulted with her supervisor and prepared a written performance evaluation, even though Casna was only two months into the job. At the police chief's request, and based on the negative evaluation, the Mayor fired Casna. Casna brought suit against the City, the Mayor and the Police Chief. She alleged that she was fired in retaliation for her complaints of discrimination. She also alleged that the City violated Due Process by discharging her without a hearing. The district court granted summary judgment to defendants. Casna appeals.

In their opinion, Judges Manion, Rovner and Sykes reversed and remanded. On the due process claim, the Court stated that Casna must establish a property interest that is guaranteed by the Constitution but found in Illinois law. Relying on Illinois’ civil service statute, the Court concluded that her first position was exempt but that her second job was not exempt (although the resolution appointing her said it was). Although the Court agreed that a temporary position (her third job) is normally exempt, the Court also concluded that the City could not transfer Casna out of a protected job into an unprotected job and then fire her without process. The Court also rejected the City’s reliance on the requirement that a protected employee obtain her job through the civil service process. Since it was the City that wrongfully tried to make the second position exempt, the Court held that it was estopped from relying on that requirement. Casna is entitled to prove her damages, if any, arising from the lack of process. The Court also reversed the lower court on the retaliation claim. It concluded that Casna’s single statement to Elliot complaining of discrimination, though informal, was sufficient to amount to “protected activity.” Finally, although the Court cautioned that suspicious timing is rarely enough to establish a triable issue on causation, it concluded that it did here, where the police chief recommended her termination the day after the protected activity.  

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MILWAUKEE DEPUTY SHERIFF'S ASSOCIATION v. CLARKE, JR. (July 21, 2009)

In mid-2005, possibly in response to public criticism of his use of police officers as escorts, Milwaukee County Sheriff Clarke posted a message on the department bulletin board: "If you are afraid or have lost your courage, you may go home, otherwise you will ruin the morale of others." Michael Schuh, a veteran police officer, was offended. He submitted a statement to the union newsletter: "If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you're out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office)." A few days later, Sheriff Clarke assigned Schuh to a newly-created patrol in the most dangerous part of the town -- in full uniform, without a partner, and without a car. At about the same time, Sheriff Clarke issued a revised departmental confidentiality policy. The policy required employees to keep "official agency business" confidential and not to speak on behalf of the department. Officer Schuh and the union brought suit, alleging violations of state law as well as First Amendment retaliation under § 1983. The suit also challenged the confidentiality policy as an unlawful prior restraint. The district court granted summary judgment to Sheriff Clarke on the federal claims. Schuh and the union appeal.

In their opinion, Judges Kanne, Rovner and Evans affirmed. The Court applied the three-step First Amendment retaliation analysis. The only step in dispute was whether Schuh's speech was constitutionally protected. To be protected, the speech must be of public concern. The Court considered the content, form and context of Schuh's statement. The Court noted that the form, a union newsletter, and the content, the Sheriff's abuse of department resources, could weigh in favor of constitutional protection. The context of the statement, however, led the Court in a different direction. The Court concluded that the context of the speech showed that it was a purely private matter. It did not focus on the fiscal repercussions of the Sheriff's conduct but rather on the personal impact of his original statement. Since the speech is not protected, Schuh's retaliation claim fails. With respect to the prior restraint claim, the Court first looked to whether the confidentiality policy applied to protected speech – i.e., the speech of a citizen on a matter of public concern. Since the policy on its face applied only to "official agency business," the Court concluded that it must apply only to speech related to an employee's professional duties. Since it did not regulate protected speech, it was not an unlawful prior restraint.

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CATLIN v. CITY OF WHEATON (July 21, 2009)

Police officers from the City of Wheaton and several neighboring jurisdictions conducted a major law enforcement operation targeting a drug conspiracy in August of 2003. Several Wheaton police officers were given the task of arresting Robert Ptak. Ptak was considered armed and dangerous and had a history of resisting arrest. The officers were dispatched to a local motel where Ptak was believed to be staying. They had a photograph and a physical description and had been told that he was seen riding a yellow sport motorcycle. The officers located an individual that met Ptak’s physical description on a yellow sport motorcycle in the vicinity of the motel. Unbeknownst to the officers, however, the individual was not Ptak. It was Jonathan Catlin. According to Catlin, the officers jumped out of their vehicle while they were stopped at a traffic light and ran toward him. They grabbed him, threw him down, and eventually handcuffed him. They did not identify themselves as police officers until after the arrest. They soon realized their mistake and released Catlin within 20 minutes. Catlin brought an action for false arrest and excessive force under § 1983. The district court found that the defendants were entitled to qualified immunity and granted summary judgment. Catlin appeals.

In their opinion, Judges Cudahy, Posner and Kanne affirmed. The Court stated that Catlin had to show a violation of a constitutional right and that the right was clearly established at the time. With respect to the false arrest claim, the Court found no constitutional violation. The officers had a reasonable belief that the person they arrested was Ptak. The fact that they might have taken additional steps to be more certain does not affect the reasonableness of their belief. With respect to the excessive force claim, the Court stated that the reasonableness of force depends on the circumstances of the case. The Court conceded that summary judgment is frequently not appropriate in excessive force cases because of factual disputes. Here, given the absence of any factual dispute and the particular circumstances of who the police thought they were dealing with, the Court concluded that the presence of excessive force was a question of law. The Court was troubled by the officers' failure to identify themselves until after the arrest. Earlier identification might have reduced the need for the amount of force used. Even accepting it as a close question, however, the Court concluded that the right, if it existed, was not "clearly established." The Court was unaware of any court of appeals decision holding that police officers have a constitutional obligation to identify themselves when carrying out a public arrest. Qualified immunity therefore attached.

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ZBARAZ v. MADIGAN (July 14, 2009)

A lawsuit was filed in 1984 challenging an Illinois statute requiring parental notice of an abortion of a minor. The Court affirmed a district court order that held the act unconstitutional because it failed to provide for anonymity and an expedited appeal. The district court later concluded that an Illinois Supreme Court Rule did not cure the defect and continued an injunction in force. In 1995, the Illinois General Assembly repealed the act and replaced it with the Illinois Parental Notice of Abortion Act of 1995 (the "Act"). The Act requires a doctor to provide 48 hours notice to an adult family member of his or her intention to perform an abortion on a minor or incompetent person. In a judicial bypass procedure, a court can order notice waived if it determines by a preponderance of the evidence that a) the petitioner is sufficiently mature to intelligently decide whether to have an abortion, or b) that notification would not be in the best interest of the petitioner. The parties agreed to continue the injunction until the Supreme Court promulgated rules relating to the Act’s bypass procedure. The Supreme Court did so -- 10 years later, in 2006. On the defendants’ motion to dissolve the injunction, the district court concluded that the Act was unconstitutional because the bypass procedure failed to provide a mechanism for consent for a petitioner who failed to establish the requisite maturity level but who successfully established that it was in her best interest to waive notice. The defendants appeal.

In their opinion, Judges Cudahy, Kanne and Tinder reversed and dissolved the injunction. The Court began by noting that the applicable legal framework was not in dispute. It is that: a) minors have a right to an abortion, b) the Supreme Court has upheld certain limitations on that right, including with respect to parental involvement, and c) parental consent requirements must have an alternative for sufficiently mature minors and for those whose interests are not best served by requiring consent. Applying those principles to this facial challenge to the Act, the Court found it to be constitutional. It rejected for several reasons the district court's conclusion that the Act authorized a court to waive parental notice in a "best interest" situation but lacked language authorizing a method of consent. The lower court reasoned that a bypass court would only reach the best interest issue if it found the minor too immature to make the decision. Even if it found for the minor on the best interest inquiry, its order would include a finding of immaturity. At that point, concluded the court, the "immature" minor would be legally prohibited from giving her consent to an abortion. The Court rejected the argument and held: a) the Act did contain an implicit provision authorizing consent, b) the Act does not require a bypass court to consider maturity before best interests, c) the Act does not require findings on both maturity and best interests, d) even without the explicit power, a bypass court has the inherent power to issue an order authorizing consent as an order in aid of its judgment, and e) the lower court's interpretation of the Act cannot stand when it leads to the absurd result of disallowing best interest abortions, when one of the purposes of the Act is to provide a mechanism to allow them. Finally, the Court emphasized that it was ruling on a facial challenge and expressed no view with respect to any future "as-applied" challenge by a minor who finds the actual proceedings deficient.

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WIESMUELLER v. KOSOBUCKI (July 9, 2009)

The State of Wisconsin hosts two law schools, at Marquette University and at the University of Wisconsin. Graduates of these schools have a “diploma privilege.” That is, they are admitted to practice law in the State of Wisconsin without taking the bar exam. A graduate of any other law school in the United States must take the bar exam before being admitted to practice in Wisconsin. A group of those out-of-state graduates sued the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, alleging a violation of the Commerce Clause. The district court granted the defendants' motion to dismiss. The class appeals.

In their opinion, Judges Posner, Ripple and Wood reversed and remanded. The Court first addressed defendants' argument that the plaintiffs lacked standing because they challenged only that part of the Supreme Court Rule granting admission to graduates of state law schools without contending that they met a second requirement of the rule that their law school credits primarily focused on Wisconsin law. The Court concluded that the rule did not impose the latter requirement and that every class member could meet the actual requirements of the rule, as it read it. The Court next addressed the standing argument that Wisconsin could comply with an injunction by requiring all law school graduates to take the bar. This would certainly correct the problem but it would provide no relief to plaintiffs. But the Court reasoned that that was not the only outcome of such an injunction. There were numerous outcomes that would provide relief to the plaintiffs. Since the Court was unable to say that the plaintiffs have nothing to gain, they recognized their standing. On the merits, the Court conceded a state's right to regulate admission to its bar, even if the result impedes commerce. When it does, however, the regulation must be minimally reasonable. Here, the Court concluded that the record did not support any justification. It allowed the plaintiffs an opportunity on remand to establish the absence of a minimally reasonable justification.

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NARDUCCI v. MOORE (July 9, 2009)

Many years ago, the Bellwood, Illinois comptroller became concerned that some finance department employees were making personal phone calls on village time and also were subjected to harassing phone calls from irate village residents. The village approved a proposal to begin recording department phone calls. Nicholas Narducci took over as controller several years later. When he learned about the recording, he advised village trustees that it was illegal, he alerted the FBI and he directed the Chief of Police to discontinue the activity. In 2001, he brought an action against the village, the mayor, and the police chief on behalf of a class of finance department employees whose calls were recorded. He brought a Fourth Amendment claim under § 1983 and an illegal wiretapping claim under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as well as state law claims. The mayor and the police chief moved for summary judgment on qualified immunity grounds. The district court denied the motion with respect to the § 1983 claims and some of the Title III claims. The mayor and the police chief appeal.

In their opinion, Judges Flaum, Williams and Lawrence affirmed. The issue on appeal, whether the defendants were entitled to qualified immunity, required the Court to examine whether there had been a violation of a constitutional right and, if so, whether it was "well-established." With respect to the Fourth Amendment violation, the Court looked to the totality of the circumstances. It first found, drawing all reasonable inferences in Narducci's favor, that he had demonstrated a reasonable expectation of privacy. The Court next concluded that Narducci presented enough evidence to survive summary judgment, given that the recording lasted more than six years with no notice to the employees. Although the Court realized that no Supreme Court or prior Seventh Circuit decision squarely addressed the issue, it concluded based on decisions of other circuits that the right was sufficiently clear to preclude qualified immunity. Lastly, the Court rejected the defendants' qualified immunity defense to the Title III claims. The Court concluded that the lower court did not err in holding that defendants waived the argument by not presenting it in their opening brief. 

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STAINBACK v. DIXON (June 30, 2009)

Several police officers, after a report of his involvement in a minor disturbance, arrested Charles Stainback. They asked Stainback to put his hands behind his back. Instead of doing so, he asked that he not be handcuffed. All he said was that he thought it would hurt. The officers handcuffed him anyway. Stainback was handcuffed in a police vehicle for approximately 20 minutes. During that time, he complained that the handcuffs were hurting him and asked for them to be removed. Stainback alleges that he required medical treatment as a result of the episode. He sued the officers, alleging the use of excessive force. The lower court concluded that the officers were entitled to qualified immunity because the amount of force was reasonable under the circumstances. The court granted summary judgment to the police officers. Stainback appeals.

In their opinion, Judges Flaum, Ripple and Sykes affirmed. The Court stated that whether force is reasonable depends on the circumstances surrounding the arrest. The circumstances must be viewed as they would have been by a reasonable officer on the scene. Here, the officers used an amount of force that would not have harmed a typical arrestee. Given that the officers were not aware that Stainback suffered from any particular condition or injury, the Court concluded that their actions were reasonable.

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MATRISCIANO v. RANDLE (June 26, 2009)

Ron Matrisciano worked for the Illinois Department of Corrections (IDOC) for over 20 years. By 2002, he had risen to the level of Assistant Deputy Director. Over the course of his employment with IDOC, he had become acquainted with a particularly notorious inmate, Harry Aleman. Aleman was serving a 100-300 year sentence for murder. Ten years into his sentence, when Aleman was about to be afforded a parole board hearing, his family asked Matrisciano if he would speak at the hearing. Matrisciano advised his superiors that he planned to testify at a parole board hearing, although he apparently did not advise them that Aleman was the subject of the hearing. Matrisciano took a personal day on the day of the hearing and testified in favor of Aleman's release. The fact that a relatively senior official of IDOC testified in favor of the release of a particularly notorious inmate generated significant media inquiry. IDOC officials reassigned Matrisciano to a new position within the department. Matrisciano filed suit, alleging that the transfer violated his First Amendment rights. The district court granted summary judgment against Matrisciano. Matrisciano appeals.

In their opinion, Judges Ripple, Williams and Sykes affirmed. The Court addressed the issue in the context of qualified immunity. The defendant government officials are entitled to qualified immunity if their conduct did not violate "clearly established" constitutional rights of which a reasonable person would be aware. The Court noted the Supreme Court's recent retreat from the mandatory two-step sequence of Saucier and used its discretion to address the "clearly established" prong first. The elements of a case of First Amendment retaliation are constitutionally protected speech, a deprivation likely to deter speech, and speech being a motivating factor for the adverse action. The defendants did not contest the second element and the Court easily found sufficient evidence of the third element on which a jury could rely. Therefore, the Court addressed whether the speech was constitutionally protected. First, the Court found or assumed that Matrisciano was speaking as a "citizen" and was speaking on a matter of public concern. The Court next rejected the "policy-maker" exception, under which a policy-making employee may be discharged for engaging in speech that is critical of his superiors or their policies. Although the Court found that Matrisciano was a policy-making employee, it found that his speech was too remote from the policies of the department to trigger the exception. Finally, the court moved to the Pickering balancing of the speech interests of the employee and the public service interests of the employer. Under that balancing, the Court considered several factors: whether the speech would create discipline problems, whether the employee’s position is one in which loyalty and competence are necessary, whether the speech affected the employee’s ability to perform, the time and place and manner and context of the speech, whether the subject of the speech was vital, and whether the speaker would be considered a member of the general public. In engaging in that balancing, the Court identified a number of factors on each side of the analysis: on the one hand, there was no policy prohibiting the testimony, Matrisciano advised and got permission for the testimony, IDOC employees frequently have relevant information helpful for parole determinations – on the other hand, Matrisciano had only minimal contact with the prisoner, Matrisciano was a high ranking employee, Matrisciano spoke voluntarily, and Matrisciano testified beyond his personal observations and actually requested the prisoner's release. Having found considerations on both sides of the equation, the Court was not inclined to decide whether Matrisciano's First Amendment rights were violated. Having decided that, it was not difficult to conclude that the law was such that reasonable officials would not know that their transfer of Matrisciano was unlawful. The defendants were entitled to qualified immunity. 

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HALLINAN v. FRATERNAL ORDER OF POLICE OF CHICAGO LODGE NO. 7 (June 25, 2009)

Shawn Hallinan and Wayne Harej were Chicago police officers and members of the police union, the Fraternal Order of Police of Chicago Lodge No. 7 (the Union). They led an effort to unseat the Union’s president and his organization in early 2005. During the course of the campaign, they discovered that the president had underreported his income. They reported the matter to the Attorney General and discussed it publicly. The president was, nevertheless, reelected. The Union soon suspended, and then expelled, the two men from the Union. At the Union's request, the City of Chicago converted the two men into "fair-share payers." Fair-share payers are those members of the Police Department who are not Union members and do not pay Union membership dues but who contribute a "fair-share" for the Union's continued representation of them in matters concerning their wages, hours and working conditions. Hallinan and Harej brought an action against the Union under section 1983 alleging violations of the First and Fourteenth Amendments. The court dismissed the action for plaintiffs’ failure to plead state action. Plaintiffs appeal.

In their opinion, Judges Rovner, Wood and Sykes affirmed. The allegations of constitutional violations in the complaint, noted the Court, are actionable only against conduct of the government -- not against private conduct. Unions, of course, are not government actors. A deprivation of a constitutional right may be actionable against a private actor in certain limited circumstances. The Court noted several examples: when the state compels the action, when the private actor is only nominally private, when the state delegates its function to a private actor, etc. Here, the state action alleged is that the Union is the sole collective bargaining unit for the Chicago Police. However, the acts complained of were not taken in concert or in agreement with the City. They were exclusively internal actions. The Court concluded that there was not enough evidence of entanglement by the City to give rise to state action. Although the Court agreed with the district court that the claim should be dismissed for failure to allege state action, it corrected the district court’s categorization of it as a lack of subject matter jurisdiction. An absence of a proper allegation of state action is simply a failure to plead an essential element of the claim.

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NATIONAL RIFLE ASSOCIATION OF AMERICA v. CITY OF CHICAGO (June 2, 2009)
 

The City of Chicago and the Village of Oak Park, Illinois both ban the possession of most handguns. The Supreme Court decided District of Columbia v. Heller in 2008, holding that the Second Amendment prohibited the District of Columbia from banning the possession of handguns for self protection. The National Rifle Association then sued the municipalities. The district court dismissed the suits against Chicago and Oak Park because Heller dealt with the authority of the District of Columbia. In other, older cases the Supreme Court has refused to apply the Second Amendment to the states. The NRA appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Posner affirmed. The Court conceded that the Supreme Court, in Cruikshank, Presser and Miller, was presented with arguments based on the privileges and immunities clause. The NRA argues that the Second Amendment should be applied to the states under the "selective incorporation" approach that was not argued in those cases. The Court rejected that argument, stating that it is bound to follow the Supreme Court precedent if it has "direct application" to the case, even if a different argument is presented and even if the original reasoning has been brought into question over time. The Second Amendment precedent does have direct application as is evident from the Supreme Court's footnote 23 in Heller itself. There, the Supreme Court specifically commented that the continuing vitality of that precedent was not before it. The Court concluded that it is up to the Supreme Court to revisit the issue, even if the current legal theory is not the one addressed by the precedent. The Court added its own view that it is not convinced, as some others are, that the Supreme Court will change its approach to the Second Amendment when afforded the opportunity.

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ASKEW v. SHERIFF OF COOK COUNTY (May 18, 2009)

Carl Askew alleges that he was the victim of excessive force at the hands of Officer Lopez while a pretrial detainee in the Cook County Jail. He filed a lawsuit naming Lopez and the Sheriff. He included two theories of relief under a 42 U.S.C. § 1983 -- that Lopez used excessive force and that Lopez was deliberately indifferent to his safety. The district court dismissed his complaint on the grounds that he failed to name Cook County as a defendant. Askew appeals.

In their opinion, Judges Flaum, Rovner and Wood vacated and remanded. The Court concluded that the district court misapplied Rule 19. Rule 19 draws a distinction between joinder of parties when it is feasible and joinder of parties when it is not feasible -- because it would defeat jurisdiction or the party is beyond the personal jurisdiction of the court or the party could make an objection to the venue. Rule 19 (a)(1) addresses a "required party" whose joinder is feasible. Once such a party is identified, Rule 19 (a)(2) requires a court to order that the person be made a party. Here, the Court concluded that the lower court was correct in finding that Cook County was a required party, at least part of it. It correctly read Carver II for the proposition that an Illinois county is a necessary party in any suit seeking damages from its sheriff. Ironically, Askew waived his claim against the Sheriff in his appellate brief. Although he did so under the mistaken impression that the lower court was correct in dismissing the claim against the Sheriff, he is bound by his waiver. The case may still proceed against Lopez, however. The county is not an indispensable party in the case against Lopez. Any judgment entered against Lopez would be entered against him in his individual capacity notwithstanding any right on his part to recover the judgment from the county.

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GUZMAN v. CITY OF CHICAGO (May 13, 2009)

Sgt. Bonnstetter of the Chicago Police Department met with an ex-convict who wanted to share information regarding gang activity with the police. The informant provided valuable information and identified pictures of known gang members. He specifically advised Sergeant Bonnstetter that he was aware of the location of gang member Ruben Estrada. He told Bonnstetter that Estrada lived with his family in a single-family residence at an address on the west side of Chicago. He advised that he had seen Estrada at the residence with a handgun. He even drove by the house with an FBI agent and confirmed the location. Although there was a small sign in the front window, the agent assumed that it was a single family residence. Based on this information, Bonnstetter obtain an affidavit to search the premises and Estrada's person. When the officers arrived to execute the search warrant, they realized there was a separate door leading to a business and another door leading to a stairway to the second floor. At some point, it became clear that the building contained a first floor office, a first floor apartment, and a second floor apartment. The officers broke into the second-floor apartment and encountered Maira Guzman. With guns drawn, the officers searched the apartment -- but found nothing. Guzman brought a lawsuit against the City and several officers under 42 U.S.C § 1983, alleging that the search was unreasonable and a violation of her constitutional rights. The district court granted summary judgment to the City. Guzman appeals.

In their opinion, Judges Kanne, Rovner and Evans reversed and remanded. The Court identified the two different ways of evaluating an alleged violation of the Fourth Amendment. A court must look at both the issuance of a warrant and the execution of the warrant. Here, with respect to its issuance, the Court determined that there was sufficient indicia of reliability with respect to the informant to support probable cause. The informant provided information known to the police and identified a number of known gang members. With respect to the execution of the warrant, however, the Court disagreed with the district court. The Court specifically noted the "not uncommon" problems that arise with multiple living units. In executing the warrant in this case, the Court concluded that the officers were aware early in their search that the building was not a single-family residence, as expected and as described in the warrant. The proper course at that stage was to have called off the search. By continuing the execution of the warrant, the police violated Guzman's constitutional rights.

Judge Rovner wrote separately and concurred in the holding and reasoning. She did not join in that part of Judge Evans’ opinion in which, in dicta, he discussed Fourth Amendment rights in the context of civil actions as opposed to criminal suppression motions.

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GCIU -- Employer Retirement Fund v. The Goldfarb Corporation (May 11, 2009)
 

The Goldfarb Corporation, a Canadian company, does not maintain a place of business or employees inside the United States. In 1995, Goldfarb purchased 60% of Fleming Packaging Corporation, a Delaware corporation. Between 1995 and 2003, Goldfarb was actively involved in the financial affairs of Fleming but did not directly control its activities. Members of the Goldfarb family were on the Fleming board and were corporate officers. In February of 2003, the Goldfarbs and Bank One negotiated an amendment to a loan agreement, pursuant to which the lenders agreed to a delay in exercising their rights of default and the Goldfarb agreed to relinquish control of the company (which they did). One of the reasons for the amendment was to allow Fleming to complete a sale of its operations as a going concern. Fleming filed for bankruptcy in May of 2003. Plaintiff, a multi-employer pension plan, filed an action in 2007 to collect Fleming’s withdrawal liability payments from Goldfarb. The district court dismissed the action, concluding that Goldfarb had insufficient contacts with the United States to sustain jurisdiction. The court also denied a request for further discovery. Plaintiff appeals.

In their opinion, Judges Bauer, Flaum and Kapala affirmed. The Court addressed the requirements for specific jurisdiction (plaintiff did not challenge the absence of general jurisdiction). The specific jurisdiction analysis consists of three steps: a) identify the contacts, b) determine whether the minimum constitutional threshold is met, and c) determine whether the contacts are related to the cause of action. The sole issue before the Court was whether Goldfarb's contacts in the United States were related to the plaintiff's cause of action. The Court examined Goldfarb's involvement with Fleming's lenders as they compared to the elements of plaintiff's cause of action. Fleming's withdrawal liability arose out of its withdrawal from the fund. The liability exists because of the nature of the sale of the business and its failure to comply with ERISA’s “safe harbor” provisions. All of Goldfarb's contacts occurred prior to February of 2003, when it surrendered all of its interest in Fleming. The Court found that these contacts were too attenuated to support specific jurisdiction. Finally, the Court concluded that the district court did not abuse its discretion in refusing to allow further discovery.

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BOWENS v. QUINN (April 2, 2009)

The Illinois Constitution allows the governor of the state to grant reprieves, commutations and pardons "on such terms as he thinks proper." An Illinois statute provides the procedural framework for the exercise of the governor's power. Twelve people who had filed petitions for clemency brought an action against the governor, alleging a violation of their due process rights under the 14th Amendment because of the governor's failure to act on their petitions within a reasonable time. While a motion to dismiss was pending, the governor acted on the petitions of nine of the plaintiffs, granting one and denying eight. The lower court denied the governor's motion to dismiss. The governor brought this interlocutory appeal.

In their opinion, Judges Posner, Kanne and Wood reversed. The Court first addressed the issue of mootness with regard to the plaintiffs whose petitions had been processed. With respect to those plaintiffs whose petitions were denied, the Court determined that the claims were not moot on the grounds that they met the "capable of repetition, yet evading review" standard of Roe v. Wade. The claim of the plaintiff whose application was granted was, on the other hand, moot. On the merits, the Court concluded that there was no ground for the denial of due process claim. The 14th Amendment does not create a property or liberty interest in obtaining a pardon. The fact that the plaintiffs are not claiming an entitlement to a pardon, but merely an entitlement to a reasonably prompt decision, does not change the result.

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RUJAWITZ v. MARTIN (April 2, 2009)

Mark Rujawitz was an at-will employee of theIllinois Department of Transportation (IDOT) for thirteen years. When he violated an injunction requiring him to keep his distance from his ex-girlfriend, IDOT fired him. A disciplinary panel reviewed the discharge and recommended a lesser level of discipline. Rujawitz was reinstated and his discipline was changed to a suspension without pay. Rujawitz brought a § 1983 action against the secretary of IDOT, alleging that he was denied his substantive due process rights. The district court dismissed the complaint on the ground that Rujawitz had no property right in continued employment. Rujawitz appeals

In their opinion, Judges Bauer, Posner and Rovner affirmed. In order to establish a due process claim, the court stated, Rujawitz had to demonstrate a constitutionally protected property interest. The Court looked to state law for that determination. The Court could locate no ordinance, law or employment agreement that changed Rujawitz's status from an at-will employee to one with an expectation of continued employment. The Court rejected Rujawitz 's position that the presence and use of the disciplinary procedures established a property interest protectable under the Fourteenth Amendment.

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CHAKLOS v. STEVENS (March 30, 2009)

Richard Chaklos and Andrew Wist were employees of the Illinois State Police ("ISP"). Their job was to train forensic scientists. Chaklos and Wist also owned Midwest Forensic Services ("MFS"). In 2004, Illinois allocated funds to process a back load of DNA evidence from rape victims. The ISP received some of the money in order to hire and train additional forensic scientists. The ISP decided to retain a Florida company for those services. When Chaklos and Wist learned of this decision, they sent a protest letter to the ISP on MFS letterhead. The letter criticized the ISP for its use of a no-bid process, it criticized the Florida company, and it indicated that MFS could provide the same training at a lower cost. Upon receipt of the letter, the ISP suspended Chaklos and Wist for violating its policy regarding secondary employment. Chaklos and Wist filed a § 1983 action, alleging retaliation for their exercise of First Amendment rights. The district court found that the letter was protected speech but granted summary judgment to defendants on the grounds they were entitled to qualified immunity. Chaklos and Wist appeal.

In their opinion, Chief Judge Easterbrook and Judges Rovner and Williams affirmed. The Court noted that the law with respect to qualified immunity had changed since the case was argued. At the time of argument, Saucier required courts to first determine whether a plaintiff had been deprived of a constitutional right and then determine whether that particular right was "clearly established." In Pearson, the Supreme Court recently concluded that lower courts could use their discretion in deciding which prong to address first. In addressing the First Amendment issue, the Court concluded that: a) plaintiffs were not speaking pursuant to their official duties under Garcetti, and b) looking at the content of the speech as a whole, it addressed a matter of public concern and was not motivated solely by personal interests. These conclusions led the Court to a balancing of the interests of the plaintiffs and their government employer. The Court noted the lack of disruption caused by the letter, the ISP's policy allowing secondary employment, the ISP's erratic enforcement of its secondary employment policy, and the dual purpose of the letter. Based on the closeness of this balancing, the Court determined that it was unnecessary to decide whether the letter was constitutionally protected. Instead, the Court concluded that it was not sufficiently clear to a government official that the conduct complained of would violate a constitutional right. The right was therefore not “clearly established." Defendants were entitled to qualified immunity.

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CAMPION, BARROW AND ASSOCIATES, INC. v. CITY OF SPRINGFIELD (March 24, 2009)

Dr. Michael Campion, through his firm, provided psychological evaluations. His clients included the City of Springfield. The services were provided pursuant to a contract executed in 2000 and automatically renewed annually. Timothy Davlin became mayor in 2003. Davlin was quite vocal in his criticism of psychological evaluations but continued the services on the advice of a city attorney. Beginning in mid-2004, several articles in the local newspaper criticized Dr. Campion for his involvement with a conservative group and his failure to disclose that involvement on his resume. An alderman reacted to the articles by pressuring Davlin to replace Dr. Campion. In mid-2005, the City Council unanimously approved a contract with a different psychologist. Although the city did not terminate the contract with Dr. Campion, it began referring all evaluations to the new psychologist. Dr. Campion brought an action against the city pursuant to § 1983, alleging that the city violated his First Amendment rights. The district court granted summary judgment to the city, concluding that Campion had not demonstrated that his speech was a motivating factor in the city's decision. Campion appeals

In their opinion, Judges Manion, Wood and Williams affirmed. The Court noted that the only issue before it was whether Campion produced enough evidence that his protected activity was a factor in the city's decision. The Court rejected Campion's argument that it was the mayor, not the City Council, that actually had the power to act. Illinois law authorizes only the City Council to enter into contracts. The evidence here supports the fact that it was the Council that acted. The Court concluded that there was a lack of evidence indicating that the City Council was retaliating against Campion because of his speech or associations.

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MARION v. THE CITY OF CORYDON (March 23, 2009)

Having been caught shoplifting, Trent Marion fled from police, scuffled with police, fled again, and led police on a high-speed chase down a divided highway. For miles, Marion eluded the police and their attempts to stop him. Even with three deflated tires, Marion refused to stop. Eventually, Marion swerved into the median and drove toward the other side of the highway. The police surrounded and fired shots at the vehicle. Marion continued to rev his engine and shift from forward to reverse. The police continued firing at the vehicle until Marion stopped. Marion suffered serious gunshot wounds. He filed suit under §1983, claiming that the police violated his Fourth Amendment rights. The district court granted summary judgment to the defendants. Although Marion opposed the motion, he did not file an affidavit. He did submit an affidavit with a motion to reconsider. The court denied the motion. Marion appeals.

In their opinion, Judges Flaum, Williams and Kapala affirmed. The Court first concluded that it would not consider Marion's affidavit. The Court could consider it only if it consisted of newly discovered evidence, which it did not. On the merits of Marion's Fourth Amendment excessive force claim, the Court stated that it would apply an objective reasonableness standard and consider the totality of the circumstances. The Court concluded that it was reasonable for the police officers to believe that Marion posed a threat to their safety and the safety of nearby motorists while he was in the median. The amount of force they employed was therefore reasonable.

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CLANCY v. OFFICE OF FOREIGN ASSETS CONTROL (March 11, 2009)

Ryan Clancy, an American citizen, traveled to Iraq in January 2003. Clancy's purpose was to protest the United States’ involvement in Iraq by acting as a “human shield.” Upon his return to the United States, Clancy admitted to a customs official the reason for his trip. The Office of Foreign Assets Control ("OFAC") issued a Pre-penalty Notice ("PPN"), charging Clancy with providing services to Iraq by shielding facilities from possible military action. OFAC relied on regulations, promulgated post-September 11, restricting trade and transactions with Iraq. OFAC advised Clancy that he could be assessed a penalty of up to $250,000. It offered him the opportunity to make a written response. Clancy submitted a response in which he challenged the validity of the regulations. He did not dispute the factual basis of the charges. OFAC assessed a final civil penalty of $8,000. Clancy filed suit. The district court granted summary judgment against Clancy on all of his claims. Clancy appeals.

In their opinion, Judges Bauer, Kanne and Williams affirmed. The Court first addressed Clancy's procedural due process argument. The relevant inquiry, it said, is whether the procedures afforded presented an unreasonable risk of an erroneous deprivation of a protected interest. The Court concluded that the procedures afforded to Clancy -- the pre-penalty notice, a statement of the underlying facts, an opportunity to respond -- were constitutionally sufficient. The Court then addressed Clancy's challenge to the validity of the regulations. It rejected each of Clancy's arguments. It concluded: a) that the regulations were a proper exercise of OFAC's authority, b) that the travel restrictions were justified by national foreign-policy considerations, c) that Clancy's travel was not "inherently expressive" so as to invoke rights under the First Amendment, and d) that Clancy's actions in Iraq attempted to confer a benefit on the country and therefore met the definition of "services" as that term is used in the regulation.

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AKANDE v. GROUNDS (February 9, 2009)

Adetunji Akande was employed by the Illinois Department of Corrections. He served as a clinical casework supervisor in the clinical services division at the Robinson Correctional Facility (“RCF”). His job was subject to the Illinois Personnel Code. The Code provided that he could not be fired or demoted except for cause. The division was responsible for counseling and disciplinary activity at RCF. The division was run by a clinical services supervisor. The casework supervisors were intermediate managers. Their responsibilities included: resolving and reporting on serious disciplinary matters, supervising the delivery of services by the correctional counselors, evaluating correctional counselors, and performing other like duties. As of late 2003, Akande was the only supervisor. A new warden, Randall Grounds, arrived in early 2004. He came to doubt Akande’s job performance, particularly as it related to inputting disciplinary reports. He instructed Akande to personally input all data at the end of each day. Akande delegated the task. Grounds repeated his instructions. Akande continued to delegate the task. Ground referred Akande for discipline. His position that he was allowed to delegate the assigned tasks notwithstanding Grounds’ instructions was rejected. He received oral and written reprimands and a three-day suspension. In early 2004, Grounds removed Akande’s supervisory responsibilities. Shortly thereafter, Grounds presented Akande with a formal memorandum of responsibilities stating that all data entry for serious discipline was the supervisor’s responsibility. Akande left RCF with a “headache,” went on disability and never returned. Akande brought this action, alleging that he was effectively eliminated from his position, in which he had a property interest. The court granted summary judgment to defendants, holding that they were entitled to qualified immunity. Akande appealed.

In their opinion, Judges Flaum, Wood and Williams affirmed. The Court identified the threshold question as whether Akande has been deprived of a constitutionally protected property interest. The Court agreed that state law gave Akande a property right not to be removed from his job or demoted without cause. Under the Illinois Code, “demotion” is defined as the assignment of an employee to a job of a lower grade because of the employee’s performance in the higher grade job. Here, Akande was not terminated, not told to leave, not assigned to a different job – his duties were simply altered. Therefore, he was not deprived of a property interest. Since he failed to show the deprivation of a property interest, the Court did not need to the “clearly established” prong of the qualified immunity test.

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IDRIS v. CITY OF CHICAGO (January 5, 2009)

The City of Chicago (the City”) has installed cameras at intersections since 2003. They are used to identify drivers who fail to obey red lights. The ordinance makes the owner (or, in the case of a leased vehicle, the lessee) of the vehicle liable for the fine – regardless of who was driving at the time. A group of car owners brought suit. Each had been fined for a traffic violation. In each case, however, someone other than the car’s owner was driving the car at the time of the violation. The plaintiffs allege that the ordinance violates due process and equal protection. The court granted summary judgment for the City. Plaintiffs appeal.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner affirmed. The Court quickly disposed of plaintiffs’ substantive due process argument. It noted the absence of a fundamental liberty interest – a prerequisite for substantive due process. The Court then considered the enforcement system under the rational-basis doctrine. Again, it seemed to have little difficulty in finding the ordinance rational. The owner-liable system reduces the cost of enforcing the law and improves compliance with the law. The facts that it raises revenue and adopts a system different from the state system do not make it irrational. The distinction between owners and lessors is not discriminatory – it is, in fact, the rational approach. Finally, the Court rejected the plaintiffs’ procedural due process arguments. Defenses and objections must be made at a hearing and reviewed in state court before they can be the subject of a federal court proceeding.

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BIELANSKI v. COUNTY OF KANE (December 18, 2008)

Kane County set up a Child Advocacy Center (“Center”) to coordinate the investigation and prosecution of child sexual abuse. The Child Advocacy Advisory Board (“Board”) is responsible for drafting the policies and procedures for those investigations and prosecutions. Kathryn Berg and David Byrne were a child protection investigator and police officer, respectively, assigned to the Center. [The facts that follow, given the posture of the appeal from a motion to dismiss, are taken from the complaint.] In mid-2001, Berg and Byrne interviewed a six-year old boy and his parents. The boy claimed he had been sexually abused by “Lorri.” Berg and Byrne failed to follow accepted techniques used in child victim interviews. They did not use techniques to identify the perpetrator and did not even ask the boy to describe her. Within days, Lorri Bielanski, a fifteen-year-old neighbor of the boy, was notified that credible evidence existed that she had sexually assaulted the boy. Sometime shortly after Berg and Byrne’s interview of the boy, they learned that: a) he was taking medication for Attention Deficit Hyperactivity Disorder, b) he was in special education classes, c) he was known, on two occasions, to have undressed with others and tried to get others to undress, d) his parents confronted him about the undressing incidents and punished him, and e) his parents suggested to him that he may have been sexually abused. Berg and Byrne did not disclose this information to the prosecutors or Bielanski. The county filed a Petition for Adjudication of Wardship, alleging the commission of two sexual assault felonies. As a result, Bielanski was forced to attend court hearings and an interview with a probation officer and was not allowed to travel out of the state without court permission. Bielanski was eventually acquitted of all charges and was successful in getting her record expunged. She filed a complaint against the County, the Center, the Board, Berg, and Byrne. Based on § 1983, she alleged: a) that the defendants violated her Fourth Amendment rights by compelling her to attend the court hearings and restricting her movement, and b) that Byrne and Berg violated her rights to a fair trial and due process by withholding the information they had about the boy. The district court granted defendants’ motion to dismiss. Bielanski appeals.

In their opinion, Judges Posner, Kanne and Rovner affirmed. The Court began with Bielanski’s Fourth Amendment claim. In order to make out such a claim, the plaintiff must allege a seizure and that it was unreasonable. Since Bielanski was not seized in the normal sense of an arrest, the Court reviewed Justice Ginsburg’s “continuing seizure” concurrence in Albright and other circuits’ approaches in similar situations. In Albright, Justice Ginsburg supported a Fourth Amendment analysis whereby a defendant who was arrested, released, and then summoned back to court based on the misleading testimony of a police officer could state a claim for unlawful seizure. No other Justice has adopted the analysis. The Court concluded that a summons, even when combined with travel restrictions and a forced probation officer interview, is an insufficient restraint on freedom to constitute a seizure. The Court then addressed the fair trial claim. The elements of that claim are that: a) the evidence is favorable to the accused, b) that it was suppressed by the government, and c) that it was material. The Court noted that materiality was the only element in dispute and that the Supreme Court had not addressed a case in which evidence was withheld and the defendant was later acquitted. Several other circuits have concluded that a Brady claim cannot survive an acquittal or dismissal of charges. The Court concluded that Bielanski had no Brady claim since earlier disclosure of the evidence would not have resulted in a dismissal of the charges.

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FLYING J INC. v. CITY OF NEW HAVEN (December 5, 2008)

Flying J develops and operates travel plazas for truck drivers and other travelers. It purchased 50+ acres in New Haven, Indiana (the “City”) to develop a new travel plaza. The City opposed the development and took the position that it was not allowed under the then-current zoning. Flying J ultimately prevailed in the Indiana state courts on its challenge to the City’s position. Undaunted, the City amended its zoning ordinance to limit developments of this type to two acres. The Flying J development was the only parcel affected by this limitation. The City held several public meetings on the amendment but never gave Flying J specific notice of them. In August of 2007, the City advised Flying J that its development must comply with the two acre rule. Flying J filed suit in September, alleging violations of its rights under the U.S. and Indiana Constitutions. The district court dismissed for failure to state a claim. Flying J appeals.

In their opinion, Judges Bauer, Flaum and Williams affirmed. The Court first addressed the City’s position that the Court lacked jurisdiction under the principles of Williamson County. The Supreme Court in Williamson County held that takings claims in land use cases are not ripe until the local authority has reached a final decision, including a decision on a variance application and compensation. Courts have applied the doctrine to takings claims even when they are labeled as due process or equal protection claims. The Court noted that it has created an exception for claims alleging the malicious conduct of a government agent unrelated to a legitimate state objective. Flying J’s allegations of the City’s protracted litigation, its covert amendment to the ordinance, the ordinance’s application only to Flying J, and the potential conflicts of interest of several commission members fit its claim within that exception.

The Court next addressed whether Flying J stated a claim. Relying on its precedent in Wroblewski and Lauth, the Court identified the pleading standard for a class-of-one equal protection claim. In those cases, the plaintiff must negate any set of facts that provides a rational basis for the classification challenged. Animus of the defendant comes into play only after the plaintiff has pled facts that show the irrationality of the government’s conduct. Flying J does allege facts that would show that the City took its actions in response solely to Flying J’s development but it does not allege facts to establish that the zoning amendment was irrational. Flying J’s allegations therefore do not overcome the presumption of rationality the government enjoys in cases of this nature.

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JOHNSON v. ORR (December 04, 2008)

David Johnson obtained a certificate of purchase for a tax-delinquent piece of land in Cook County (the “County”). The certificate allowed him to acquire the property by following certain notice requirements and by then petitioning the court. He complied with the notice requirements. Before he petitioned the court, the County realized that its determination of delinquency was in error. The County and Johnson agreed to an order, entered by the court, declaring the tax sale in error and directing the cancellation of the certificate and return of the purchase price. Notwithstanding the order, Johnson petitioned the state court for a deed. Johnson later filed suit in federal court. He alleged that the County’s failure to issue the deed violated his constitutional rights and the Interstate Land Sales Full Disclosure Act, as well as various other state statutory and common laws. The court granted defendant’s motion to dismiss, ruling that the complaint sought review of a state court decision in violation of the Rooker-Feldman doctrine and that jurisdiction was barred by the Tax Injunction Act (“TIA”). Johnson appeals.

In their opinion, Judges Ripple, Evans and Tinder affirmed. The Court first addressed the Rooker-Feldman doctrine. That doctrine deprives federal courts (except the Supreme Court) of jurisdiction to hear a party complain about the effects of a state court judgment. Although Johnson attempted to style his request for relief as something other than an attack on the state court judgment, the Court looked beyond the complaint to identify the actual injury. Johnson’s injury, the state court’s failure to grant him a tax deed, comes directly from the order entered by the court canceling the certificate. The gravamen of his complaint is that the court’s order was erroneous. The district court therefore lacked subject matter jurisdiction of Johnson’s constitutional claims. Johnson also alleged a violation of the Interstate Land Sales Full Disclosure Act (the “Act”), a federal statute. Although a claim pursuant to a federal statute would normally provide subject matter jurisdiction, the Court stated that such a claim should be dismissed if it is “wholly insubstantial and frivolous.” The Court concluded that Johnson’s claim was just that. The Act applies only to sales of real estate. Here, the County did not sell the property and Johnson did not buy the property. Even if there was a sale, the Court observed that the Act would not apply because it contains an exemption for a sale by a government body. Although it did not have to, the Court did briefly address the TIA issue. It disagreed with the district court’s conclusion that the TIA applied. The TIA only applies where the relief requested would reduce the State’s tax benefit or impede the collection of taxes. The Court found neither present in the case.
 

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HOUSKINS v. SHEAHAN  (November 25, 2008)

Virgean Houskins was an employee of the Cook County Department of Corrections. One September morning in 2001, she found herself sitting in her car in the parking lot of her place of employment, waiting for a parking space to open up. Correctional Officer Keith entered the lot and took what Houskins believed was her space. Houskins uttered some profanities about Keith (which he heard) and proceeded to park in another space. A verbal confrontation between the two ended with Keith striking Houskins in the face. Correctional Officer Calderone arrived a few moments later but did nothing. Houskins reported to work, filed an incident report, and also reported the incident to her supervisor, Tolbert. Tolbert took Houskins and Bowers to the Internal Affairs Division (“IAD”) to make out a complaint. Houskins also filed a police report. The IAD dismissed the charges against Keith and Calderone as not conclusive but upheld an obscene language charge against Houskins. Upon further department review, the finding against Houskins was upheld but the dismissal of the complaint against Keith and Calderone was reversed. Houskins filed a complaint pursuant to 42 U.S.C. § 1983 against the Sheriff and Cook County, alleging a) that the Sheriff retaliated against her for filing the complaints and charges against Keith, b) that a “code of silence” policy existed for correctional officers and those who violated it were subject to retaliation, and c) that the Sheriff employed a disciplinary system in which certain officers with clout were exempted from discipline. Houskins also brought pendant state court claims of assault and battery against Keith. At trial, the jury returned a verdict against the Sheriff and Keith. It awarded $240,000 against the Sheriff and $10,000 in compensatory and $50,000 in punitive damages against Keith. The Sheriff and Keith appeal.

In their opinion, Judges Bauer, Manion and Williams affirmed the judgment and damages award with respect to Keith and reversed and remanded with respect to the Sheriff. The Court first addressed two preliminary procedural issues. Houskins argued that the Sheriff could not appeal a denial of summary judgment after a jury verdict and also that the Sheriff waived the argument by not raising it in the final pre-trial order. The Court noted that while denials of summary judgments motions based on the sufficiency of the evidence are generally not reviewable, the Sheriff’s motion raised a question of law – whether Houskins’ speech was constitutionally protected – and was therefore appealable. The Court also held that the failure to raise it in the final pre-trial order did not constitute a waiver. On the merits of the speech issue, the Court looked to the Supreme Court’s Garcetti decision. Garcetti requires a court first to decide whether a plaintiff is speaking as a private citizen on a matter of public interest. Houskins complained of retaliation for two different instances of speech – her internal complaint and her police report. The Court concluded that her internal complaint was not protected speech. She was required to report misconduct as part of her official job responsibilities. With respect to the police report, the Court concluded that it was not part of her job responsibilities but that she was speaking about a matter of purely personal interest. Her purpose in filing the police report was not to air a grievance about conditions at the jail or her safety as an employee. The Court found that Houskins’ speech was not constitutionally protected and that the lower court therefore erred in denying the Sheriff’s motion for summary judgment. The Court added that Houskins’ Monell claims that the Sheriff had a policy of retaliation and selective discipline had to fail as well. A Monell claim cannot stand where the alleged official policy did not result in a constitutional violation.

With respect to the jury’s verdict for Houskins on her claims of assault and battery against Keith, the Court rejected each of Keith’s arguments on appeal. It held that a) the district court properly asserted supplemental jurisdiction over the state law claims since they pertained to the same set of circumstances alleged in the federal claim, b) the district court did not abuse its discretion in denying a separate trial for Keith, c) the judge’s comments to Keith’s counsel did not indicate bias, and d) the award of punitive damages was not excessive. The Court affirmed the judgment against Keith.

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POWERS v. RICHARDS December 2, 2008

Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.

In their opinion, Judges Manion, Rovner, and Evans affirmed. The Court stated that the First Amendment does not prohibit a firing based on party loyalty if that loyalty is necessary to properly perform the job. The considerations in determining that necessity include whether the position allows for meaningful input into government decision-making and involves political discretion. The Court reviewed Powers’ job description to decide whether the position was such a position. The Court recited the job’s numerous responsibilities and concluded that they did include broad discretion to make policy, interpret the law, and speak on behalf of the Commission. The position is therefore one into which an incoming administration can appoint someone of its own party. With respect to Powers’ procedural due process argument, the Court noted that when a person is afforded a full post-deprivation hearing, a pre-deprivation hearing satisfies due process if it includes notice, an explanation of the evidence, and an opportunity to be heard. Since Powers concedes that he had all that is required, he cannot prevail. Finally, the Court was not persuaded by Powers’ unsupported claim that the Commission had already decided to fire him before the hearing.

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SANDAGE v. BOARD OF COMMISSIONERS (November 24, 2008)

Sheena Sandage-Shofner twice called the sheriff’s department in Vanderburgh County and complained that a man named Moore was harassing her. Moore was in the sheriff’s custody, serving a prison term for robbery. Sandage-Shofner’s complaints arose at times when Moore was out of prison on work release. Two days after her second complaint, Moore murdered Sandage-Shofner and two other people and then took his own life. Christine Sandage and Arthur Shofner brought a suit under § 1983, claiming that the County’s failure to reimprison Moore deprived their decedents of their lives without due process in violation of the Fourteenth Amendment. The district court dismissed for failure to state a claim. Sandage and Shofner appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner affirmed. Relying principally on the Supreme Court’s decision in DeShaney, the Court held that there is no federal constitutional duty to protect the citizenry from private violence, nor is there a right to be rescued from a danger that was not created by the government. There is a right not to be harmed, a right illustrated, for example, by prisoner cases alleging deliberate indifference to medical needs. Here, the Court concluded, the government did not restrict Sandage-Shofner’s access to aid and it took no affirmative steps that increased the danger to Sandage-Shofner. It simply failed in its moral obligation to protect its citizens from private harm, for which there is no federal constitutional remedy.

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CHOOSE LIFE ILLINOIS, INC. v. WHITE (November 7, 2008)

The State of Illinois offers a wide array of license plates that, in addition to an identifying combination of numbers and letters, contain a message or symbol. A vehicle owner can, for example, purchase plates that identify her alma mater, favorite charity, civic organization, or social cause. The Illinois legislature, with irrelevant exceptions, has authorized each specialty plate by statute. Some part of the proceeds from the sale of the plates typically goes to the organization whose message appears on the plate. Choose Life, Inc. (“CLI”) is a not-for-profit company. Its mission is to promote adoptions. CLI collected more than 25,000 signatures from prospective purchasers of a plate bearing the words “Choose Life.” It applied to the Secretary of State (the “Secretary”) for the issuance of the plate. When told by the Secretary that he would not issue a plate without authorizing legislation from the legislature, CLI embarked on a several-year-long unsuccessful campaign to get the legislature to authorize the plate. CLI brought suit against the Secretary alleging a violation of its First Amendment free-speech rights. The court below held that the Secretary did not need legislation, that the program created a private speech forum, and the Secretary’s refusal to issue the “Choose Life” plate was unlawful viewpoint discrimination. The court granted summary judgment to CLI and ordered the Secretary to issue the plates. The Secretary appeals. Pending appeal, the legislature amended the statute to explicitly require legislative approval before a specialty plate could be issued.

In their opinion, Judges Manion (concurring), Evans, and Sykes reversed and remanded. The Court first cursorily dealt with several preliminary issues. In a footnote, the Court recognized a split in the circuits over jurisdiction of specialty license plate cases on both standing and Tax Injunction Act bases. The Court found sufficient allegations of injury to support standing and sided with those circuits that held the Tax Injunction Act did not apply. In another footnote, it dismissed CLI’s argument that the program was facially unconstitutional. The Court held that a legislature need not – indeed, cannot – adopt standards that would control future legislatures. Lastly, the Court held that it would apply the amended statute. Particularly when a party seeks only prospective relief, a court will apply the law as it exists at the time of the appeal.

The Court also recognized a split in the circuits on the next step of its analysis – whether the speech is government speech, private speech, or a hybrid. It noted the Fourth Circuit’s Sons of Confederate Veterans and Rose cases in which that court held that specialty plates gave rise to private or a mixture of private and government speech. That court relied mostly on the facts that the state exercised little editorial control and the vehicle owners were the real speakers. The Court contrasted the Fourth Circuit cases to the later Sixth Circuit decision in Bredesen and the Ninth Circuit decision in Stanton. Relying on an intervening Supreme Court decision in a different speech context and Tennessee’s “total government control” over the design and message of the specialty plate, the Sixth Circuit held that the speech was government speech. The Ninth Circuit rejected the Sixth Circuit’s approach and its reading of the Supreme Court case. It agreed with the Fourth Circuit and held that specialty license plates are not government speech, but must be treated and analyzed as private speech. The Court believed the Fourth and Ninth Circuit approach to be the better one and adopted it. Although the state has approved the message, the most obvious speakers are the vehicle owners who choose to display it.

Having identified the speech as private, the Court proceeded to a forum analysis. Speech restrictions in a traditional or designated public forum come under strict scrutiny. Restrictions on speech in non-public fora, on the other hand, must merely avoid discriminating against certain viewpoints and “be reasonable in light of the forum’s purpose.” The Court concluded that license plates are neither traditional nor designated public fora. They are principally used to identify vehicles and serve only as expressions of ideas in a very limited context. They should be judged as speech in a non-public forum. Here, Illinois excluded all specialty plates on the subject of abortion. The Court held that this was not a discrimination based on viewpoint, but one based on content, and thus permissible. Finally, the Court had “no trouble” finding the restriction reasonable. Even though not government speech, the message on a license plate is closely associated with the state. The Court found it reasonable for a state to decide to maintain a neutral position on a subject like abortion.

Judge Manion concurred in order to raise three points. First, he took issue with the basis for the majority’s conclusion that Illinois entirely excluded the subject of abortion from its program. The only decision evident in the record was the state’s decision not to allow the “Choose Life” plate at issue. Second, he disagreed that the message of CLI and the “Choose Life” plate was pro-life. He viewed it as a “broader middle ground” that did not take a position on the legality of abortion but merely supported more adoptions as an alternative to abortion. Third, he noted his belief that a state could approve a “Choose Life” message and reject abortion-related plates and yet remain viewpoint neutral.
 

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ANDONISSAMY v. HEWLETT-PACKARD CO. (November 7, 2008)

Sanjay Andonissamy, a French citizen of Indian ancestry, began his employment with Hewlett-Packard (“HP”) in April of 2001. He was in the country on an HP-sponsored H-1B visa. [The following is Andonissamy’s version of the story – HP’s version differs greatly] After the events of September 11, 2001, Ken Smith, Andonissamy’s supervisor, began to make derogatory racial, ethnic, and nationalist remarks to and about Andonissamy. Andonissamy frequently complained to Smith’s supervisor. Smith placed Andonissamy on remedial performance plans, allegedly in retaliation for Andonissamy’s complaints about Smith. Andonissamy began taking medication for anxiety and depression in 2002. He was being treated, but his physician never placed him on any restricted work schedule. Andonissamy’s condition worsened in early 2003 after the deaths of his brother and nephew. In May of 2003, Smith made a false report to the company implicating Andonissamy as a security threat. HP fired Andonissamy on June 23, 2003. On September 16, Andonissamy filed an EEOC complaint alleging national origin discrimination. The EEOC dismissed his complaint and issued a right to sue letter. Andonissamy filed a complaint in federal court in April of 2004. In addition to his complaints of national origin discrimination under Title VII and 42 U.S.C. § 1981, Andonissamy added a Family and Medical Leave Act count. In November of 2005, Andonissamy added Smith as a defendant on an assault count. The district court dismissed Smith and granted summary judgment to HP. Andonissamy appeals.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first addressed Andonissamy’s Title VII hostile work environment claim. In order to survive summary judgment, Andonissamy had to show that a) he was subjected to unwelcome harassment, b) the harassment was based on his national origin, c) it was severe and pervasive enough to amount to a hostile and abusive environment, and d) there exists a basis for employer liability. The Court did not address the first three elements because it found no basis for employer liability. An employer can be vicariously liable for the conduct of a supervisor but can only be liable for the conduct of a co-worker if the company was negligent in discovering or remedying the harassment. A supervisor for purposes of Title VII is the person with the ability to affect the terms and conditions of the plaintiff’s employment. Smith, although he was Andonissamy’s “supervisor” in the sense that he directed his performance, was not a Title VII supervisor. There was no evidence that Smith was able "to hire, fire, promote, demote, discipline or transfer" Andonissamy. In order to hold HP liable for the acts of Smith as co-worker, Andonissamy had to establish that he complained or that the discrimination was so pervasive that HP’s knowledge could be inferred. Although Andonissamy did complain to Smith’s supervisor, he did not specifically complain about national origin discrimination. The Court agreed with the district court that Andonissamy therefore did not make out a Title VII claim. With respect to his companion § 1981 claim, the Court stated that a plaintiff can proceed under the direct or indirect method. The direct method requires evidence that an adverse employment action was based on the plaintiff's national origin. The Court found no such evidence in the record. Under the indirect method, a plaintiff must establish, among other elements, that he was meeting his employer’s legitimate performance expectations. The Court noted that the record contained numerous references to Andonissamy’s performance problems. The Court concluded that Andonissamy was therefore unable to establish a § 1981 claim under either method.

Andonissamy’s retaliation claim could also be established under the direct or indirect method. The indirect method for retaliation, like discrimination, contains an element that Andonissamy was meeting HP’s performance obligations. The Court rejected Andonissamy’s indirect method for establishing his retaliation claim for the same reason it rejected it for his discrimination claim. Under the direct method, Andonissamy had to establish that: a) he engaged in statutorily protected activity, b) his employer took an adverse employment action, and c) there was a causal connection between the two. The Court held that his complaints to HP did not include complaints of national origin discrimination. He was thus unable to establish the statutorily protected activity element. The Court concluded that he failed to establish a retaliation claim under either method. With respect to the FMLA count, the Court noted that Andonissamy never asked for any leave and did not exhibit any dramatic changes in behavior that would have put HP on notice of a need for leave. The Court agreed with the district court that Andonissamy failed to meet his burden under the FMLA.

Finally, the Court addressed Andonissamy’s assault claim against Smith. The assault claim was added to the case after the statute of limitations on the claim had expired. Andonissamy argued that the claim related back to the original claim and was thus permissible under FRCP 15(c). The Court affirmed the dismissal, stating that a claim against a new defendant relates back only when there is a case of mistaken identity. Since Smith supervised Andonissamy for years, that cannot be the case here.

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TRIGILLO v. SNYDER (October 31, 2008)

The Illinois Department of Corrections (“Department”) created a new position in 1999 dedicated to procurement matters. The Department hired Tracy Trigillo, an attorney, into the position. Her responsibilities included managing the Department’s contracting, purchasing, leasing, and inventories. She advised department officials on legal matters. She also was responsible for ensuring that contracts were properly bid and in compliance with the Illinois Procurement Act. From early in her employment, Trigillo had concerns about the Department’s procurement practices. She frequently advised her superiors of her concerns, with little effect. In late 2000, she drafted a report that summarized many of her concerns. The report was addressed to the Department of Central Management Services (“CMS”), an agency that provided procurement support to other state agencies. Trigillo also sent the report to the state Attorney General (“AG”). The report contained some allegations of misconduct, although it was principally addressed to policy disputes. Also in 2000, one of Trigillo’s staff members told her that Department officials had rigged the bid of a contract to benefit a friend of the governor. Although the incident predated Trigillo’s tenure in the Department, she was responsible for monitoring an extension of the contract. She reported the information to the FBI but did not advise her superiors that she had done so. When her term of employment was up for renewal in late 2001, the Department chose not to renew. Although she had received acceptable performance reviews during her tenure, her supervisor stated that her approach to procurement principles was “over-zealous” and that she was not a team player. Trigillo brought an action under 42 U.S.C. § 1983, alleging that she was non-renewed in retaliation for her reports of misconduct. The district court granted summary judgment to the defendants. The court separated her speech into three categories. The court held that: a) her routine communications with her superiors were part of her normal job duties and not as a citizen speaking out on matters of public interest, b) her CMS report referred principally to policy disputes and, to the extent it did raise matters of public interest, the Department’s interest in effective operations outweighed Trigillo’s interest as a citizen, and c) her report of misconduct to the FBI was constitutionally protected but there was no evidence that the person who decided not to renew her contract knew about it. Trigillo appeals.

In their opinion, Judges Rovner, Evans, and Williams affirmed. The Court first observed that the district court entered judgment just prior to the Supreme Court’s decision in Garcetti v. Ceballos. Garcetti reaffirmed the limitations imposed by the First Amendment on a public employer’s ability to restrict the “liberties employees enjoy in their capacities as private citizens.” The role of the Court is to determine whether the speech is that of an employee doing her job or that of a private citizen reporting on a matter of public interest. Garcetti requires an inquiry into whether the speech in question relates to the employee’s official obligations, even the more general ones. Trigillo conceded on appeal that her routine communications did not meet the Garcetti standard. The Court addressed the other two categories. The Court rejected defendants’ argument that the CMS report was per se “official” because it was required by statute. The Court noted that the statutory duty was very broad and applied to all employees. Instead of looking at a broad duty, the Court looked at the speech at issue and the responsibilities of the employee. The Court held that the CMS report did not meet the Garcetti standard. The report: a) made no “accusations”, b) sought “guidance” on procurement issues, c) was written on Department letterhead, d) was signed by Trigillo in her official capacity, and e) offered her group’s resources to any investigation. The Court held that the report fit squarely within Trigillo’s responsibilities of managing the procurement practices of the Department. With respect to the FBI report, the Court agreed with the district court that Trigillo had presented no evidence that the decision-maker even knew that she made the report. It could not have been the reason for her non-renewal.

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KAY V. BOARD OF EDUCATION (October 27, 2008)

Gail Kay taught in the Chicago public school system. After she retired in 1994, she brought a § 1983 action against the Board of Education (“Board”). She alleged that the Board penalized her on account of her speech. The parties settled the litigation in 1996 and her case was dismissed. In the settlement, the Board offered to rehire Kay into an available future position. In 1997, she was offered an opportunity to return to her former school. She taught for seven more years – yet she never received another paycheck. After retiring again in 2004, she brought suit against the Board in federal court to enforce the 1996 settlement, alleging that her seven years of teaching without pay was a breach of the settlement. The district court dismissed the case on its own accord for “lack of venue” because Kay was governed by a collective bargaining agreement that required arbitration. Kay appeals.

In their opinion, Chief Judge Easterbrook and Judges Sykes and Tinder vacated the judgment of the court and remanded with instructions to dismiss for lack of subject matter jurisdiction. First, the Court listed several reasons why the court erred in dismissing the suit because of the collective bargaining agreement’s arbitration clause: a) only the union and employer can invoke the clause, b) a settlement of a dispute is not arbitrable as a claim arising under the agreement, c) a collective bargaining agreement cannot require the arbitration of civil rights claims, and d) the Board cannot compel arbitration with a volunteer, which they claim is Kay’s status. The panel also criticized the court below for acting independently, without benefit of the views of the parties.

Although the Court held that the lower court erred in dismissing the complaint, it identified (and asked for supplemental briefing on) a different problem. The Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. makes clear that the vehicle for enforcement of a settlement of a federal case is a contract claim, which cannot be brought in federal court unless it qualifies independently under diversity principles. Apart from a settlement, a state’s wage-payment statute is the proper vehicle for a claim for unpaid wages. Kay conceded that she has no federal claim to enforce the settlement or for unpaid wages. She asserted, however, a claim that the Board’s failure to abide by the settlement is further retaliation for her assertion of constitutional rights. The only assertion of rights she maintains, however, are those that pre-dated the settlement. The Court noted that the Board’s failure to pay cannot be deemed a revived retaliation claim under Kokkonen. Finally, the panel did consider whether the Kokkonen rule applied in the context of a state actor defendant. It held that the Constitution does not require a state actor to keep its promise; it only requires some process before depriving a person of property. Kay’s opportunity to litigate her case in state court is process enough.  

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VIILO v. EYRE (October 27, 2008)

Virginia Viilo was enjoying a quiet August evening in her backyard, accompanied by several family members and Bubba, her dog. Suddenly, Bubba heard a commotion in Viilo’s front yard and ran down the side of the house. It seems that six Milwaukee police officers, acting on a tip that a felon had entered the house with a dangerous dog, had arrived and were approaching the house. Bubba leapt a three foot fence and ran toward the officers. Officer Carter shot Bubba twice, seriously injuring him. Bubba retreated into bushes near the house. Carter continued to watch Bubba while the other officers spoke with Viilo. Viilo asked to get Bubba or call for help. The police refused. Sergeant Eyre arrived about ten minutes after Carter shot Bubba. Eyre approached the bushes where Bubba was hiding. According to many witnesses, Bubba came out limping and whimpering. Eyre ordered Carter to shoot Bubba. Carter shot Bubba a third, and a fourth time, killing him. Viilo sued the city and Carter and Eyre under 42 U.S.C. § 1983, alleging a violation of her Fourth Amendment rights. The district court denied Carter and Eyre’s motion for summary judgment on qualified immunity grounds. Carter and Eyre appeal.

In their opinion, Judges Bauer. Cudahy, and Williams dismissed the appeal for lack of jurisdiction. The Court began with the familiar two-part analysis for qualified immunity – whether the alleged facts establish a violation of a constitutional right and whether that right was clearly established. Although the panel briefly discussed the application of the test and found it compelling, it decided it could not reach the merits.

Appeals are generally heard after a final order. Interlocutory appeals are an exception to that rule. The Supreme Court, in the Mitchell v. Forsyth and Johnson v. Jones cases, clarified the scope of the exception in qualified immunity cases. The appeal cannot attack the presence or absence of disputes of fact. It must be limited to the question of law: whether the facts establish a violation of a clearly established constitutional right. The panel pointed out that there can be disputed factual issues in the case. The appellants just cannot contend that the court below erred in ruling that the evidence created an issue for the jury. They must accept alleged or stipulated facts or the facts that the court below found had sufficient support to go to a jury. Here, the court below found that there were sufficient facts to support a reasonable jury’s finding that Bubba was shot the third and fourth time as he was “crying, sitting down, moving slowly, or headed to the backyard.” The officers argue for qualified immunity based on a totally different set of facts. Their appeal must be dismissed.

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NEGRETE v. NATIONAL RAILROAD PASSENGER CORP. (AMTRAK) (October 27, 2008)

Jorge Negrete was a track repair worker for Amtrak.  He injured his back on the job. He sued Amtrak, alleging a permanent disability. During discovery, Negrete: a) withheld the names of doctors who did not support his claim, b) provided false information during his deposition regarding his income, c) was “less than forthcoming” at his deposition regarding who performed maintenance at his apartments, and d) missed twenty-one discovery deadlines (in one case by over a year). The district court dismissed the case for these abuses. Negrete appeals.

In their opinion, Chief Judge Easterbrook and Judges Rovner and Sykes affirmed. The Court observed that dismissal is a drastic penalty for discovery abuses. In the case, however, the “appalling” conduct of Negrete supported the dismissal. He lied about the principal issues in the case – how severe were his injuries and whether he could work. The Court not only affirmed the dismissal, it referred its opinion to the United States Attorney’s Office.

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LASKOWSKI v. SPELLINGS  (October 14, 2008)

In 1999, Congress appropriated $500,000 to the Department of Education (“DOE”) for a grant to the University of Notre Dame to support a teacher quality program. Notre Dame applied for the grant, indicating that the money would support its Alliance for Catholic Education (“ACE”) program. ACE places and trains teachers in Catholic schools in poor neighborhoods. DOE awarded the grant. Laskowski and Cook, two federal taxpayers, sued the Secretary of the DOE, alleging that the appropriation violated the Establishment Clause. The plaintiffs sought to enjoin the award of the money but did not seek preliminary injunctive relief. Notre Dame intervened. By the time the court heard the case, the DOE had already paid the full amount of the grant to Notre Dame. The court dismissed the case as moot. The plaintiffs appealed, conceding their request for injunctive relief was moot but contending that other remedies were available. The Seventh Circuit panel agreed that the court could not order the DOE to attempt to recover the money from Notre Dame but split on whether the court could order Notre Dame to repay the disbursed funds, if the appropriation violated the Establishment Clause. The majority reversed the dismissal, holding that it could so order. The United States Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of their decision in Hein v. Freedom From Religion Found.

In their opinion, Judges Posner, Evans, and Sykes affirmed. The only issue facing the Court was whether the plaintiff taxpayers had standing to seek restitution of the grant money from Notre Dame to the U.S. Treasury. The panel began with the general standing rule that payment of taxes is a very generalized interest and usually not enough to establish standing to challenge the constitutionality of government activity. The Court focused on the one exception to the rule. The Supreme Court decided in Flast that a taxpayer could seek to enjoin a specific appropriation of Congress as a violation of the Establishment Clause if the appropriation was made pursuant to Congress’ Article 1, Section 8 taxing and spending power.  

Hein presented a slightly different twist to the standing issue. The Hein taxpayers brought an Establishment Clause challenge to an Executive Branch program funded out of its own general appropriations.  A divided panel of the Seventh Circuit found standing.  The Supreme Court reversed. A three-justice plurality declined to extend the Flast exception beyond the congressional action facts present in the case but also stopped short of overruling Flast, a result preferred by the two-justice concurrence. After the decision in Hein, the panel noted, the Flast exception is now strictly limited to its facts. The only relief for which the taxpayers have standing is injunctive, which is no longer available here. The case is moot and was properly dismissed.

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HAYES v. SNYDER  (October 9, 2008)

Floyd Hayes, a Vietnam War veteran, was serving a ten-year sentence at the Hill Correctional Center (“Hill”) in Illinois. In 2000, Hayes developed testicular cysts. Tests revealed that the cysts were benign. A Hill physician determined that neither a biopsy nor urological referral were indicated. Hayes’ condition worsened and he began to experience more pain. He requested a urology referral in 2001. Hill personnel declined. In September, he began receiving an antibiotic and over-the-counter pain medication. Beginning in October, he saw Dr. Hamby twice and then started seeing Dr. Shute. Dr. Shute wanted to refer Hayes to a urologist and administer prescription pain medication but Hamby refused to approve. Hayes complained to Hill personnel. He sent letters to the Director and to his staff. He described in significant detail his condition and the extreme swelling and pain he experienced. He complained that he needed to see a specialist but that Hamby would not approve. The Hill staff investigated Hayes’ complaint by seeking information from the medical staff. Hamby himself responded to the inquiry by the staff with a lengthy e-mail. He confirmed that Hayes had two cysts but concluded that they were stable but for “self-reported swelling and occasional tenderness.” Hayes and the non-medical staff continued their correspondence. The staff continued to base its responses to Hayes on communications from Hamby that nothing further needed to be done. Hayes filed a formal grievance complaining of inadequate treatment for his pain. The grievance officer denied his grievance, relying on Hamby’s assurance that Hayes was “treated and tested” appropriately.

Upon his release from Hill, Hayes went directly to a nearby VA hospital. Although he complained of testicular pain, the hospital referred him to the psychiatric ward. They allowed Hayes only a few minutes with a urologist. It seems that the Hill staff had called the hospital to warn them that Hayes might be coming and to advise them that his problems were principally psychiatric. Hayes was released after ten days. He went to his home in Kentucky where he visited the local VA hospital there. He received an evaluation, an ultrasound, and a urology referral. Hayes was diagnosed with Peyronie’s disease, a connective tissue disorder that is often painful. The disease is not easily recognized or well understood, even by urologists. Hayes was referred to and is still being treated by a pain management specialist.

Hayes filed suit under 42 U.S.C. § 1983 against Dr. Hamby for his failure to treat his condition and against the non-medical staff at Hill for their failure to respond to his condition properly. The district court granted summary judgment to the defendants on the merits and on the basis of qualified immunity. Hayes appeals.

In their opinion, Judges Bauer, Ripple, and Wood reversed in part and affirmed in part. The Court started with the rule and the test. The defendants are liable if they displayed “deliberate indifference” to Hayes’ medical needs. Hayes must establish that the condition itself, objectively, is sufficiently serious. Then he must establish that the prison officials knew of and disregarded an excessive health risk. The Court first addressed the objective prong of the test. In finding that a reasonable trier of fact could find in Hayes' favor on the objective test, the Court relied on Hayes’ complaints of extreme pain and swelling and Hamby’s refusal to refer Hayes to a specialist. It disregarded the fact that the disease was quite rare and hard to diagnose, given Hamby’s refusal to even make a referral.

The analysis of the subjective element of the test required separate approaches for Dr. Hamby and the non-medical defendants. The Court relied on several facts in the record to conclude that Hayes could meet the test with respect to Hamby.  Hamby a) refused to approve the urology referral, b)may have stopped minimal treatment of ice-packs and non-prescription pain medication in retaliation for Hayes' complaints, c)  testified that he would never prescribe pain medication for a prisoner, and d) was dismissive of Hayes' needs in his deposition testimony. The Court found these to be sufficient facts to establish that a reasonable trier of fact could conclude that Hamby’s conduct constituted deliberate indifference.

Addressing the non-medical personnel, the Court stated that non-medical personnel are generally justified in believing that a prisoner is being adequately cared for if he is in the hands of medical personnel. Here, the non-medical personnel investigated Hayes’ complaints. They were entitled to rely on the professional judgment of the medical professionals. The Court held that Hayes could not establish his claims against the non-medical personnel.
 

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KOZUSZEK v. BREWER  (October 8, 2008)

Nicole Kozuszek and her brother Wesley lived with their parents and were registered to vote in Porter, Indiana. About a month before the 2003 general election, Wesley reported his car stolen in the neighboring town of Chesterton. The police met him at an apartment he rented in Chesterton. The police report of the theft lists the apartment as the residence of  Wesley and Nicole. Wesley was scheduled to be a poll-watcher in Chesterton on election day. At a pre-election training session, Chesterton Police Chief Nelson noticed a document on which Wesley had asked that his fee for poll-watching be sent to the Porter address. Nelson recalled the theft incident and the Chesterton address Wesley gave the police. He mentioned the discrepancy to Dale Brewer, an election official. Brewer did nothing with the information until election day. She and Wesley were both at the Chesterton polls. Brewer asked Wesley if he liked living in Chesterton. Wesley responded that he did not live in Chesterton, at least on a regular basis. Brewer did not question Wesley further about the address discrepancy . Instead, she consulted with the other election board members. All of them agreed that Wesley’s vote should be challenged if there was a residence conflict. Brewer learned from election officials in Porter that Nicole and Wesley had both voted by absentee ballot in Porter. Brewer challenged both ballots.  The Porter poll inspector spoiled the ballots.  The Kozuszeks brought a § 1983 claim, alleging that Nelson and Brewer violated their right to vote. The district court granted the defendants’ motion for summary judgment. The Kozuszeks appeal.

In their opinion, Judges Kanne, Williams, and Tinder affirmed. They observed that the parties agreed that the votes should not have been spoiled.  To be successful on their § 1983 cliam, however, the Kozuszeks had to prove that Nelson and Brewer willfully acted to spoil the ballots. Willfulness requires an intent to undermine the electoral process. Addressing Wilson, the Court found that he did nothing wrong. He merely reported a voting record discrepancy to an elected official. With respect to Brewer, the Kozuszeks rely on a) the fact that Brewer waited until election day to challenge the vote, leaving no time to resolve the issue pre-election, and b) the fact that Brewer neglected to tell the Porter poll inspector about the information (Wesley's statement to Brewer and the pay voucher) that would have supported Wesley's Porter registration.  The Court determined that neither of these facts amounted to willfullness on Brewer's part.  The Court also relied on the fact that there was no evidence that the poll inspector did not exercise independent judgment.  The Court held that no reasonable jury, particularly because Brewer had reasonable explanations for her actions, could find that Brewer acted willfully.

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MOORE v. TULEJA  (October 6, 2008)

On the evening of April 8, Frederick Grady was in a serious accident in his van. He escaped with minor injuries but his van flipped and was badly damaged. Despite the warnings of emergency personnel, Grady reached into his van to retrieve some carpentry tools. He cut his hand badly. The on-scene emergency personnel treated the wound and recorded its occurrence. Later that evening, Grady trespassed on the lot where his damaged van had been taken, in another vain attempt to retrieve his tools. He was arrested. The arresting officer noticed his bandaged hand but did not mention it in his report. The report prepared at the lockup also neglected to mention a hand injury. He was photographed and taken to jail. The photograph showed no signs of injury to his head. The prisoner in the adjacent cell noticed the bandage on his hand. Jail guards noticed Grady sitting in his cell at about 1:30 the next afternoon. A few minutes later, the prisoner in the adjacent cell heard an unusual noise. Shortly thereafter, jail personnel found Grady on the floor of his cell, unconscious. He was pronounced dead at the hospital. An autopsy determined that he died of a heart attack. It also revealed a number of injuries to his body. His estate filed an action under 42 U.S.C. §1983, claiming that various officers and jail personnel deprived Grady of his constitutional rights by using excessive force and depriving him of medical care. The case was based almost exclusively on inferences drawn from the nature of the injuries to Grady’s body. After seven days of testimony from almost every individual who interacted with Grady after his accident, the jury found for defendants. Plaintiffs appeal the denial of their motion for a new trial.

In their opinion, Judges Cudahy, Posner, and Tinder affirmed. The Court first noted plaintiffs' heavy burden on appeal. They will set aside the verdict only if “no rational jury” could have rendered the verdict. The panel moved on to a review of the evidence. All three medical experts agreed that the cause of death was a heart attack. The question for the jury was what triggered the attack. Plaintiffs’ expert opined that the nature of the hand laceration, two head abrasions, and scrapes on Grady’s wrist indicated that Grady had likely been beaten. The Court analyzed each individual injury in turn. They found reasonable bases in the record for the jury's conclusions that a) the hand injury arose from the post-accident event, b) the head abrasions occurred when he collapsed onto the floor of his cell, and c) the wrist scrapes resulted form the short time he was in handcuffs or even from the original accident.  Plaintiffs did not meet their burden. 

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BURRUS V. STATE LOTTERY COMMISSION  (October 6, 2008)

Indiana created the State Lottery Commission of Indiana (the “Commission”) in 1989 to operate lottery games in the state. The legislature set it up to operate as a “separate body politic and corporate” from the rest of state government. The legislature authorized up to $18 million in start up costs. The Commission only used $6 million and repaid that within the year. The lottery has been quite successful. It has generated over $3 billion in profits since its inception. The governor appoints the director and five commissioners who operate the lottery. The Commission has the authority to sue and be sued. It operates independently of the state, although it is heavily regulated by the state.  The Commission deposits all of its revenue into a fund separate from the state’s general revenue fund. The funds are first used to pay for the prizes and operating costs. Each quarter, the remaining funds are disbursed to the credit of the state teachers’ retirement fund ($7.5 million) and the pension relief fund ($7.5 million). Any quarterly surplus is transferred to a fund which is used to support local and state capital projects.

Between January and May of 2005, seven employees of the Commission were fired. They all sued the Commission under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Each alleged that he or she was fired as a result of his or her race. The Commission moved to dismiss the § 1981 claims on the grounds of sovereign immunity. The district court denied the motion. The Commission appeals.

In their opinion, Judges Bauer, Ripple, and Manion affirmed. The appeal raised only one issue – whether the Eleventh Amendment shields the Commission from the §1981 claims. The Court began with the basic proposition that unconsenting states, and their agencies, are immune from federal lawsuits under the Eleventh Amendment. Here, the parties simply disagreed over whether the Commission is a state agency. The Court listed the two factors that generally determine that issue. The first, and most important, is the degree of financial autonomy from the state. The other factor is the general legal status of the entity. The Court observed that the Commission’s complete lack of financial reliance on the state and the total lack of responsibility by the state for any of the Commission’s obligations strongly weighed against finding the Commission to be an agency of the state. While it is true that a judgment against the Commission would deprive the state of revenues it otherwise would have received but for the judgment, the panel noted that the Supreme Court had rejected that “state-benefit” theory of financial dependence.

The second prong of the test, general legal status, also supports the Court’s conclusion that the Commission is not an agency of the state. The Court pointed to a number of factors to support its conclusion: a) it sets its own budget, b) it controls its day-to-day operations, c) it sues in its own name, and d) it enters into contracts in its own name. The fact that the governor appoints the commissioners was given little weight by the Court given the Commission’s financial independence. Finally, the Court noted that the fact that the lottery is the subject of much state regulation does not change the result that the Commission is not an agency of the state and not immune from suit.

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MANNING v. UNITED STATES  (October 6, 2008)

Steve Manning is a former police officer and FBI informant. He was convicted of kidnapping in Missouri and murder in Illinois. Both convictions were overturned. Manning brought a §1983 Bivens action against two FBI agents, alleging that they violated his constitutional rights in their handling of both investigations and prosecutions. Specifically, he alleged that they fabricated evidence and withheld that fact from the prosecutors. He also sued the United States, in the same action, under the Federal Tort Claims Act (“FTCA”) for malicious prosecution and intentional infliction of emotional distress. The claims were tried together. Since FTCA claims cannot be tried to a jury, the jury heard only the Bivens claim. Simultaneously, the court heard the FTCA claim. The jury awarded Manning $6.5 million on the Bivens claim. A year and a half later, the court found against Manning on the FTCA claim. The Bivens defendants moved to vacate the judgment entered on the jury award, invoking the FTCA “judgment bar.” The district court granted the motion. Manning appeals.

In their opinion, Judges Bauer, Flaum, and Manion affirmed. The Court cited the established rule that the victim of a tort committed by a federal law enforcement officer can pursue a constitutional tort action (i.e., a Bivens action) or a common law tort claim against the United States under the FTCA. However, the FTCA provides that a judgment in an FTCA claim bars a direct action against the employee(s) whose act gave rise to the claim. Manning argued, alternatively, that the FTCA does not bar a judgment on a claim pursued in the same action or that the FTCA does not operate retroactively to bar a prior-entered direct judgment. On the “same action” argument, the Court relied on the unambiguous, plain language of the statute and the common meaning of the word “action” to reject Manning’s interpretation. Similarly, the Court found no support in the plain language of the statute for Manning’s retroactivity argument. The panel appreciated the “significant reversal of fortune” for Manning as a result of its holding. It observed that it was, of course, bound by the plain language of the statute. It also pointed to Manning’s strategic choices that led to the unfortunate (for Manning) result.

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FOSTER V. DELUCA (September 29, 2008)

Stacie Foster, a Democrat, was employed by the City of Chicago Heights, Illinois. Shortly after the citizens of Chicago Heights elected a Republican mayor, Anthony DeLuca, her employment was terminated. Foster brought suit against the City and DeLuca under 42 U.S.C. §1983, alleging that her First Amendment freedom of association rights had been violated. The district court granted a motion to dismiss and, on the same day, entered final judgment. Foster moved to alter the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (FRCP) and to amend her complaint. The court denied the motions. Foster appeals.

In their opinion, Judges Rovner, Evans, and Williams reversed. The Court noted that relief under Rule 60(b) is extraordinary and that its review of the lower court’s denial of leave to amend is for abuse of discretion. Notwithstanding these high bars, the Court determined that the circumstances warranted a reversal. FRCP 15(a) provides that amendments to pleadings should be “freely given” and that one opportunity to amend is available “as a matter of course” before a responsive pleading is served. Since the motion to dismiss is not considered a responsive pleading under Rule 15(a), the court have either given Foster an opportunity to amend or provided an explanation for its denial. The court abused its discretion in not doing either. Also, the court left Foster with no option but to move to alter the judgment since it entered final judgment the same day.

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