Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : GVC Ltd. Law Firm

FLEMING V. LIVINGSTON COUNTY (March 28, 2012)

Roger Fleming was walking his dog in a Flanagan, Illinois alley in the early morning hours one summer day when Sheriff's deputy David Turner arrested him for burglary and aggravated sexual assault. Turner had come from a local residence where two teenage girls reported being sexually assaulted in their living room. Fleming and his clothing matched the general description given by one of the girls and Turner came across him just a short distance from the crime scene. Before arresting Fleming, Turner spoke with a local state's attorney to confirm his belief that he had probable cause for the arrest. He told the prosecutor that he came upon Fleming two to three minutes after first hearing of the assault. The prosecutor confirmed his belief that probable cause existed. Before transporting Fleming to jail, Turner also had one of the girls identify him in "show up" under a streetlight. Charges were later dismissed and Fleming filed suit against Turner for false arrest and against the County for indemnification. During summary judgment briefing, and after the close of discovery, Fleming submitted a report from a private investigator that concluded that the activities in the time span Turner estimated at 2 to 3 minutes would have had take almost 7 minutes to complete. Although Judge McDade (C.D. Ill.) granted the defendants' motion to strike the evidence, he nevertheless considered it in ruling on the summary judgment motions. He granted summary judgment to the defendants on qualified immunity grounds. Fleming appeals.

In their opinion, Seventh Circuit Judges Manion and Williams and District Judge Castillo affirmed. The Court noted that Turner would prevail either a) if probable cause existed or b) if he was entitled to qualified immunity. The Court declined Turner's invitation to revisit the district court's refusal to conclude that probable cause existed as a matter of law because of its belief that the district court was correct to find qualified immunity. The arresting officer is entitled to qualified immunity in a false arrest case if a reasonable officer could have concluded that probable cause existed, even if that conclusion is a mistaken one. Here, the Court had no difficulty in concluding that "arguable probable cause" existed. Fleming was spotted within minutes of the assault, he was the only person around, and he matched the victim's description in most respects. Turner even took the additional step of confirming his belief with the prosecutor. The fact that Turner may have been wrong about the 2 to 3 minutes and that Fleming's t-shirt may not have matched the description perfectly do not compel a different conclusion. In order to attack Turner's probable cause finding on the ground that he fabricated evidence with respect to the time span, Fleming would have to show that Turner was either intentional or reckless in disregarding the truth and that the falsifications are material. He can satisfy neither of those requirements. Since Turner is entitled to qualified immunity, the indemnification claims must also fail.

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MCCOMAS v. BRICKLEY (March 13, 2012)

It was New Year’s Eve 2007 and Shannon McComas, an Indianapolis police officer, was attending a party at Durty Nelly’s Pub & Eatery. A fight broke out around 3:00 a.m. When the dust cleared, several persons were wounded and a security guard was killed. Detective Edward Brickley was one of the responding detectives. He interviewed several witnesses, recovered a gun, and viewed the bar’s surveillance video before he spoke with McComas. McComas made several statements that were inconsistent with the surveillance video and information that Brickley had obtained from other witnesses. When Brickley told McComas that he had seen the video and that McComas’ statement was inconsistent with it, McComas changed his story. Shortly thereafter, the police arrested McComas and charged him with murder and assisting a criminal. Charges of providing false information were later added. Eventually, the state dropped all charges. McComas brought an action against Brickley for false arrest pursuant to § 1983. Judge Barker (S.D. Ind.) denied Brickley’s motion for summary judgment on qualified immunity grounds. Brickley appeals.

In their opinion, Seventh Circuit Judges Bauer, Posner, and Wood reversed and remanded. The Court first addressed its jurisdiction since summary judgment denials are generally not appealable. One exception to that general rule allows appellate jurisdiction of a denial of qualified immunity—but only to the extent it involves issues of law. The Court noted that there were many factual disputes in the case but none of them were relevant to the qualified immunity question. The test for qualified immunity is whether the allegations amount to a constitutional violation when viewed in the light most favorable to plaintiff and whether the right at issue was clearly established at the time of the alleged violation. Here, the Court only addressed the “clearly established” prong. When looking at an allegation of wrongful arrest, the question is whether the officer had “arguable probable cause.” The Court found an absence of probable cause for the murder charge. However, since Brickley is entitled to qualified immunity if he had arguable probable cause for either charge, the Court turned to the assisting a criminal charge. Under Indiana law, one is guilty of assisting a criminal if one “harbors, conceals, or otherwise assists” another person. Given the evidence on the surveillance tapes and McComas’ original lies about his involvement in the fracas, the Court concluded that Brickley had arguable probable cause for the assisting a criminal charge. The Court added that Brickley had probable cause to arrest McComas with the false informing charge, even though that charge was not brought until later. An arrest is reasonable if there is probable cause to believe any crime has been or is being committed, even if it is not included in the original charge. In Indiana, one commits the crime of false informing if he gives false information in the investigation of a crime. Clearly, McComas had probable cause to believe that Brickley had done that.

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FIELDS v. WHARRIE (February 28, 2012)

Nathson Fields was convicted of murder in 1986. Although his direct appeals were unsuccessful, a state post-conviction court later ordered a new trial because his codefendant had bribed the original trial judge. Fields was acquitted at the retrial. He brought suit pursuant to §1983 and Illinois law against the City, the County, and several individuals, including two assistant states attorney’s involved in his prosecution. He alleged that ASAs Wharrie and Kelley suppressed exculpatory evidence, coerced witnesses, and suborned perjury. Wharrie and Kelley moved to dismiss the complaint on absolute prosecutorial immunity grounds. Judge Kennelly (N.D. Ill.) denied their motion in part. He let stand an allegation that Wharrie suborned perjury when he was no longer participating on the prosecution team. He also let stand an allegation against Kelley that he coerced false statements for use at the retrial (although he found that Kelley was entitled to absolute immunity for actually introducing the false testimony and for withholding exculpatory evidence). The court concluded that those allegations should be governed by qualified immunity principles. Finally, he rejected the defendants’ argument that the court lacked jurisdiction on the state law claims because of Illinois sovereign immunity law. The defendants appeal.

In their opinion, Seventh Circuit Judges Posner, Flaum, and Sykes reversed and remanded. A prosecutor is absolutely immune from suit when he acts as an officer of the court and his actions are related to his ability to conduct a trial. A prosecutor is only entitled to qualified immunity when his actions are non-prosecutorial. With respect to Wharrie, the question for the Court was whether a trial prosecutor continues to act in a prosecutorial capacity once he is no longer a member of the prosecution team. The Court concluded membership on the trial team is not the test, but rather whether he has a continuing duty under Brady or Giglio to the defendant. Here, although Wharrie was no longer involved in the prosecution team, he had a continuing duty under Brady and Giglio until the case was over. The alleged suppression of evidence was therefore part of his prosecutorial duties and he is absolutely immune from suit. The Court added that, even without immunity, Fields failed to state a cause of action against Wharrie. The constitutional violation occurred when Kelley used the evidence at the retrial. Similarly, Fields failed to state a cause of action against Kelley. The only surviving allegation against Kelley is that he coerced false testimony before the retrial. But the constitutional violation occurred when the testimony was used at trial. Finally, although the Court agreed with the district court that it had jurisdiction over the state law claims, it invited the court on remand to reconsider exercising that jurisdiction and allow a state court to resolve the challenging issues.

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GONZALEZ v. VILLAGE OF WEST MILWAUKEE (February 2, 2012)

 Jesus Gonzalez, a Wisconsin gun rights activist, openly carried a handgun into retail stores near Milwaukee on two occasions in 2008 and 2009. One was a home improvement store, which was fairly busy at the time, and in which he shocked and startled a number of shoppers and employees. The other was a large retail store. He entered it late at night when the employees were emptying cash registers and begin shopping for ammunition. On both occasions, local police arrested Gonzalez for disorderly conduct. In the 2008 incident, West Milwaukee police asked him for his Social Security number and other identifying information. One officer commented that he might have to stay longer if he did not provide it. In both incidents, local authorities retained Gonzalez' gun for several weeks. Gonzalez was not prosecuted in either incident. Gonzalez brought suit against the officers and police departments for false arrest, for keeping his guns too long, and for violating the Privacy Act by asking for his Social Security number and not making required disclosures. Judge Adelman (E.D. Wis.) granted summary judgment to the defendants. Gonzalez appeals.

In their opinion, Seventh Circuit Judges Bauer, Wood, and Sykes affirmed. The Court first addressed the false arrest claim. It noted that his request for prospective declaratory relief was moot -- both because of a 2011 Wisconsin statute that specifically provides that openly carrying a firearm is not disorderly conduct and because Gonzalez has since been convicted of first-degree reckless homicide and can no longer lawfully possess a firearm. Nevertheless, his damage claims remain viable. In order to prevail on his false arrest claims, however, he must show that the officers lacked probable cause. But for the state and federal constitutions, the Court considered the case fairly straightforward. Gonzales created a disturbance during both incidents and frightened employees and shoppers. That is normally enough for probable cause for arrest for disorderly conduct. But Wisconsin adopted a constitutional provision in 1998 guaranteeing a right to bear arms. The Court therefore thought it more prudent to address qualified immunity, the district court's alternative holding, rather than probable cause. Qualified immunity would protect the officers if there was no constitutional violation or if the right they allegedly violated was not clearly established at the time. Even though Wisconsin adopted the constitutional amendment, Wisconsin law also prohibited carrying concealed weapons. The tension between these two provisions was still unsettled at the time of Gonzalez' arrests, notwithstanding two Wisconsin Supreme Court decisions. The federal constitutional right to bear arms was also unsettled at the time. Heller was not decided until after the first arrest and McDonald was not decided until after both. The Court concluded that right allegedly violated was not clearly established and the officers were entitled to qualified immunity. Next, the Court rejected Gonzales' unlawful seizure claim. A seizure takes place when property is taken. Continued retention of property, even if illegal, is not actionable under the Fourth Amendment. Finally, the Court turned to Gonzalez' Privacy Act of 1974 claim. That Act makes it illegal to deny any right to a person because of the person's refusal to disclose his Social Security number and also contains disclosure requirements. The Court first addressed whether the Act even applies to non-federal agencies. Although the plain language of the Act states that Section 7 applies to federal, state, and local agencies, the Sixth Circuit has concluded that it only applies to federal agencies, relying on an internal inconsistency created by a codification mistake. The Court joined the Eleventh Circuit in concluding that Section 7 applies to local agencies. On the merits, the Court concluded that the record did not support Gonzales' claim that the West Milwaukee officers denied him any right or benefit. With respect to the Section 7(b) claim, it found that the officers did violate the disclosure requirements but that they are protected by qualified immunity since it was not clear that the section applied to local agencies.

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SURITA v. HYDE (December 22, 2011) 

Waukegan, Illinois enacted an ordinance in 2002 pursuant to which the police could impound a vehicle if its driver was caught driving without a license or proof of insurance. The ordinance was very unpopular in the city, particularly among the minority population. At a large rally in 2004, José Surita confronted a city official. The official complained to the Mayor that Surita was very angry and that she feared a physical attack. Two days later, Surita attempted to speak during "audience time" at a City Council meeting. The Mayor refused to let him speak until he apologized to the official. The Mayor did allow others to speak on a variety of topics, including the towing ordinance. Margaret Carrasco also opposed the ordinance. When the Chief of Police heard that she was going to conduct a rally, he sent a police officer to her home to request a meeting. She came to a meeting where she was asked to comply with the City's Assembly Ordinance. A city attorney advised her that she would have to pay a permit fee of $1500 to pay for the extra police officers that the Chief determined would be needed. The City imposed a permit fee requirement on only 2 of 530 events over the last five years, both involving towing ordinance protests. The rally was never held. Chris Blanks also opposed the ordinance. Blanks was organizing a rally to be held in one of the City's parks, which are not covered by the Assembly Ordinance. Nevertheless, when the city attorney learned that Blanks did not have a permit, she sent a police officer to his home with a letter telling him that he was violating the Assembly Ordinance. Blanks cancelled the rally. Surita, Carrasco, and Blanks brought suit against the City, the Mayor, and the Police Chief, alleging First Amendment violations. Judge Shadur (N.D. Ill.) denied the requests for qualified immunity by the Mayor and the Police Chief. The Mayor and the Police Chief appeal.

In their opinion, Seventh Circuit Judges Manion (concurring in part and dissenting in part) and Williams and District Judge Clevert affirmed the qualified immunity denials with respect to Surita's and Carrasco's claims but reversed the denial with respect to Blanks’ claims. The Court first addressed its appellate jurisdiction since no final judgment was entered below. When the district court's summary judgment order is one denying qualified immunity, it is immediately appealable if the appeal can be resolved without resolving a disputed question of fact. The question on qualified immunity is whether the defendants' actions violated a constitutional right that was clearly established at the time. With that foundation, the Court turned to each plaintiff’s claim. With respect to Surita’s claims against the Mayor, the Court first noted that "audience time" is a designated public forum under First Amendment law and that, therefore, any content-based restriction on speech is subject to strict scrutiny. Here, defendants argued that the restriction was not content-based since others spoke out against the ordinance at the same meeting. But restrictions based on the identity of the speaker are content-based as well. Since the restriction was content-based, it had to be narrowly tailored to effectuate a compelling state interest and there was no evidence that it was. It was, in fact, a sanction for Surita’s earlier speech and behavior. The Court therefore concluded that there was a First Amendment violation. The Court then had little difficulty in finding that the constitutional right was well-established. The Court turned to Carrasco's claims against the Chief of Police. The Court first determined that the Chief was involved enough in the conduct to be personally liable. He called the meeting with Carrasco, he sent an officer to her home, and he computed the amount of extra police support that translated into the amount of the fee. There is nothing necessarily wrong with charging a fee even for the use of a traditional public forum -- but it must be content neutral. Under Forsyth County, a content-based flexible fee is unconstitutional. Here it is undisputed that the Chief took content into consideration. He testified that he needed more police support for a rally protesting the ordinance then he would for one in support of the ordinance. There was a constitutional violation and it was clearly established at the time of the meeting. Carrasco also claimed that the Chief retaliated against her for prior speech. The Court concluded that there were genuine issues of material fact with respect to the qualified immunity test in this context and so it could not be determined on appeal. Finally, the Court turned to Blank's claims against the Chief. Here, the Court determined that the Chief was not sufficiently involved in the City's conduct to support personal liability. It was the city attorney, not the Chief of Police, that applied the Assembly Ordinance to Blanks. Although the Chief received copies of the attorney's correspondence to Blanks, that is not enough to establish personal liability.

Judge Manion wrote separately, concurring in the majority's treatment of Surita’s claims and Blank’s claims but disagreeing with its treatment of Carrasco's claims. Judge Manion believed that the record did not support a finding of personal liability with respect to Carrasco’s claims against the Chief. It was the city attorney, not the Chief, that was principally involved in applying the Assembly Ordinance to Carrasco. The undisputed evidence is that the Chief did not know that the city attorney was going to impose the fee.

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REHER v. VIVO (September 7, 2011)

Ronald Reher caused a bit of a commotion in Edson Park in Lombard, Illinois on a May day in 2007. The park is located behind the apartment building where Ezeldra Outlaw and her daughter Ashley lived. Outlaw and Reher had been romantically involved in the past. In fact, Ashley was their daughter. Reher had seen neither of them for over four years. Apparently because he carried a video camera and binoculars, several of the adults in the park became suspicious. Outlaw approached him and yelled at him and broke his video camera. Others in the park took his bicycle. Soon, a number of police officers arrived. Officer Gabinski was aware of a history of domestic disputes and orders of protection concerning Reher and Outlaw. When she told Reher that she did not believe his story (that he was videotaping nature scenes), he became upset and called her a “bitch.” At that point, Officer Vivo arrested him for disorderly conduct. Reher brought suit against Gabinski and Vivo pursuant to § 1983 for an unlawful arrest. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants, finding that the defendants had probable cause for the arrest or, in the alternative, were entitled to qualified immunity.

In their opinion, Seventh Circuit Judges Rovner, Williams, and Hamilton affirmed. Under Illinois law, a disorderly conduct charge requires unreasonable conduct that disturbs another and threatens to provoke a breach of the peace. Videotaping others in Illinois is not illegal unless it is also accompanied by other suspicious circumstances. The Court emphasized that neither Reher's swearing nor the neighbors’ general agitation satisfied the test. Officer Gabinski knew a lot more, however. Based on her extensive knowledge of the Reher /Outlaw relationship and past incidents, the Court concluded that she had probable cause to arrest Reher. In the alternative, it concluded that she was entitled to qualified immunity. Officer Vivo did not have the same historic knowledge. He was aware that some of the adults in the park accused Reher of videotaping the children. He also knew that one woman stated that Reher had been to the park several times earlier watching the children. The Court concluded that those allegations did not give rise to probable cause. It did conclude, however, that Vivo could have had a reasonable belief that they did. He was therefore entitled to qualified immunity.

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HERNANDEZ v. FOSTER (August 26, 2011)

Fifteen-month-old Jaymz Hernandez’ parents brought him to the hospital where x-rays established that he had a broken arm. The Hernandezes reported that they thought he had fallen out of his crib. Although the fracture was common in children, a hospital nurse was suspicious. The parents had slightly inconsistent stories about the circumstances of the injury and about whether Jaymz could walk. Jaymz also had unexplained, old bruises. The nurse reported her suspicions to the Department of Children and Family Services. Although the DCFS instructed the hospital to release Jaymz to his parents, it also began an investigation, which it assigned to Pamela Foster-Stith. Foster-Stith interviewed the nurse and doctor and prepared an action plan for a home visit and risk assessment. After receiving the approval of her supervisor, she sent investigator Lakesha Foster to the home. Foster found nothing particular suspicious in her visit. Nevertheless, given the injury and the inconsistent stories, Foster and Foster-Stith wanted a home safety plan. The family resisted. Foster-Stith, in consultation with her supervisor, decided that the Department had to take Jaymz into protective custody. She communicated that decision to Foster, who was still at the family's home. Foster explained the decision to the family, including the fact that they could not have contact with Jaymz during the custody period, and took Jaymz in the custody. Jaymz was placed with his great-grandparents. The next day, two different doctors examined Jaymz. Both concluded that the injury was not suggestive of abuse. Foster also spoke with an assistant state's attorney, who advised her that there was not enough evidence to seek protective custody. Although the Department decided to terminate its protective custody, Foster would still not let the family visit Jaymz. The next day, Foster presented a safety plan to the Hernandezes which would require Jaymz to remain with his great-grandparents with supervised visitation by his parents. After being told that they could not see Jaymz without agreeing to the safety plan, the Hernandezes agreed. The Hernandezes signed another safety plan the following week, which the Department later agreed to terminate. The Hernandezes brought suit pursuant to § 1983 for violations of the Fourth and Fourteenth Amendments, naming Foster, Foster-Stith, and the supervisor. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants on qualified immunity grounds. The Hernandezes appeal.

In their opinion, Seventh Circuit Judges Sykes, Tinder, and Hamilton affirmed in part and vacated and remanded in part. The question for a qualified immunity defense is whether the defendants violated a clearly established constitutional right. The Court considered each plaintiff’s claims separately. First, all three plaintiffs asserted substantive due process claims with respect to the initial seizure. The Court noted that since Jaymz had a Fourth Amendment claim, he could not assert a substantive due process claim. With respect to Jaymz’ Fourth Amendment claim, the Court concluded that the removal was supported by probable cause. It relied on the unexplained injury, the older injury, and the inconsistent and contradictory statements of the parents. Therefore, the defendants were entitled to qualified immunity on that claim. The parents’ substantive due process claims fail for the same reason. Second, the Court addressed the plaintiffs' substantive due process claims relating to the continued withholding. This claim arises from a right to familial relations. The defendants needed reasonable suspicion of abuse to override that right. Again, however, the court concluded that Jaymz’ claim was properly analyzed under the Fourth Amendment while his parents' claims should be analyzed under substantive due process. Here, the Court found genuine issues of material fact with respect to defendants' knowledge that the continued withholding violated constitutional rights. The Court relied heavily on the normal physical exams and the assistant state's attorney's response. Summary judgment was improper. Third, the Court addressed the substantive due process claims regarding the allegedly coerced safety plan. The Court concluded that the defendants had no reasonable suspicion that Jaymz was in danger of abuse when they presented the safety plan. The alleged threats were extremely coercive. The Court concluded that the district court erred in granting summary judgment on those claims. Next, the Court considered the plaintiffs' procedural due process claims. The basis of these claims was that the defendants took Jaymz into custody without any pre-deprivation hearing. Here, the Court concluded that the case law at the time of the removal would not have put a reasonable Department investigator on notice that a pre-deprivation hearing was required. The defendants were therefore entitled to qualified immunity on the due process claim relating to the removal. Again, however, the Court found genuine issues of fact on the due process claim with respect to the safety plan. With the allegations of misrepresentations and coercion, qualified immunity would be appropriate.

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VANCE v. RUMSFELD (August 8, 2011)

In 2005 and 2006, American citizens Donald Vance and Nathan Ertel were working for a privately owned security company in Iraq. They allege that: a) they came to believe that their employer was engaged in illegal activity, b) they reported their suspicions to the FBI, c) they continued to share information with American officials in Iraq, d) their employer became suspicious and confiscated their credentials, e) American officials "rescued" them and seized their personal property, and f) they were detained, physically and psychologically abused, tortured, treated inhumanely, and assaulted for weeks. They were never charged with a crime and were eventually released. Plaintiffs brought suit against former Secretary of Defense Donald Rumsfeld and other, unidentified defendants. The complaint alleged unconstitutional inhumane treatment, denial of procedural due process, and denial of access to the courts. They also brought a claim against the United States for the return of their personal property. Judge Andersen (N.D. Ill.) dismissed the due process and access claims but refused to dismiss the inhumane treatment claim or the personal property claim. Rumsfeld appeals the inhumane treatment claim -- the United States appeals the personal property claim.

In their opinion, Seventh Circuit Judges Manion (concurring in part, dissenting in part), Evans, and Hamilton affirmed in part and reversed in part. The Court first addressed the Bivens claim against Rumsfeld. It identified three issues: whether there were adequate allegations of Rumsfeld's personal responsibility, whether Rumsfeld was entitled to qualified immunity, and whether a Bivens remedy is even available to a United States citizen in a war zone. First, the Court concluded that the complaint adequately alleged Rumsfeld's personal involvement and responsibility under Rule 8 and Iqbal and Twombly. The complaint alleged, among other things, that Rumsfeld approved a list of interrogation techniques contrary to the Army Field Manual, that he directed that those techniques be used in Iraq, that he was well aware of detainee abuse generally, that he took no action in response to the Ronald W. Reagan National Defense Authorization Act's directive to ensure that detainees were treated in a humane manner, that he continued to approve interrogation techniques not authorized by the Army Field Manual even after the Detainee Treatment Act's limitations of techniques to those authorized in the manual, and that he did not investigate or correct detainee abuse. The Court found that those allegations sufficiently alleged his personal involvement in the policies that led to plaintiffs’ torture and that he was deliberately indifferent to their mistreatment. The Court turned to the issue of qualified immunity and the Saucier two-step test. The Court had little difficulty in concluding that the alleged treatment, if true, "shocks the conscience" and violates substantive due process. In fact, Rumsfeld did not really argue otherwise. Likewise, the Court had little difficulty in concluding that a reasonable United States official would have known that the alleged treatment, if true, would amount to a constitutional violation. Finally, the Court turned to the central issue -- whether Bivens allows a suit for damages by a United States citizen alleging unconstitutional treatment occurring in a war zone. The Court applied the Supreme Court's two-step test: 1) is there a sufficient alternative remedy for the wrong and 2) do "special factors" weigh against recognizing the remedy. Finding no alternative remedy, it focused on the second step. In addressing in the second step, the Court emphasized that the complaint was not a broad challenge to the country’s interrogation or detention policies. It was, instead, a narrow claim for damages. The court found its key elements familiar: a) Bivens has been used by prisoners who have asserted abuse in federal prisons, b) Bivens has been used by civilians who have asserted violation of constitutional rights by military personnel, and c) Bivens has been used against high-ranking government officials, including cabinet members. The Court rejected the defendants’ arguments that a wartime or national security environment counsel against judicial intervention. Finally, the Court emphasized the fact that plaintiffs were United States citizens and distinguished a line of cases that concluded that Bivens did not provide a damages remedy to aliens. It ultimately concluded that there were no special factors standing in the way of a Bivens remedy. With respect to the personal property claim, the Court reversed the district court. It concluded that the "military authority" exception in the Administrative Procedure Act precludes judicial review.

Judge Manion concurred in the personal property portion of the majority's opinion but dissented from the Bivens portion. Judge Manion stated that special factors counsel against applying Bivens in this context and that the majority ignored precedent to that effect and, instead, extended the principle beyond where it has ever been applied. Judge Manion was particularly sensitive to the risks posed by the judiciary getting involved in matters of national security and wartime decisions.

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 BROOKS v. CITY OF AURORA (July 6, 2011)

Early one June evening in 2008, two Aurora police officers were staking out a location suspected of being a front for drug activity when they observed Michael Brooks driving through an adjacent parking lot. They knew Brooks but had never seen him drive. When they checked, they discovered that his license had been suspended for over a decade. Before they could take any action, however, they were called away. One of the officers later completed a traffic ticket and obtained a warrant for Brooks's arrest. The police served the warrant a few weeks later. When they arrived at his apartment, Brooks was barbecuing. An officer took him aside and explained the reason for the visit -- that he was under arrest. Brooks denied driving the car, claimed that it was not even working at the time, pulled his wrists away, and started backpedaling and waving his arms. The officer fired two bursts of pepper spray and ultimately immobilized Brooks. He was arrested and charged with the driving offense and resisting a peace officer. He was acquitted of both charges. Brooks filed suit against the police officers and the City of Aurora pursuant to § 1983. He alleged false arrest, false imprisonment, and excessive force. The defendants moved for summary judgment on the false arrest and excessive force claims and asserted qualified immunity on the excessive force claim. Judge Coar (N.D. Ill.) found probable cause and granted summary judgment on the false arrest claim. Sua sponte, he granted summary judgment on the false imprisonment claim for the same reason. Finally, he found that defendants were entitled to qualified immunity on the excessive force claim.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Tinder affirmed. The Court first addressed probable cause on the false arrest and imprisonment claims. Probable cause depends on the facts and circumstances at the time of the arrest and whether a prudent person, with the officers knowledge, would believe that the suspect has committed, is committing, or is about to commit an offense. The offense at issue here, resisting a peace officer, requires "a physical act of resistance or obstruction . . . that impedes, hinders, interrupts, prevents, or delays the performance of the officer’s duties, such as by going limp or forcefully resisting arrest." Although Brooks claims that he had no intent to resist (but just to tell his wife to bring his wallet to the station), the undisputed evidence in the record supports the proposition that a reasonable officer could have believed that he did. Although there is disputed evidence regarding whether Brooks was actually driving a car on the night in question, that evidence is not material. First, resisting even an unlawful arrest violates the statute. Second, Brooks was not actually arrested and detained until after the officers had probable cause to believe that he had resisted the arrest. The Court saw no error in the false imprisonment summary judgment. The analysis is the same for both claims and Brooks never proffered a reason why an opportunity to respond to the false imprisonment claim was necessary. With respect to the excessive force claim, the Court did not decide the deprivation prong of the qualified immunity test. It noted that courts have held the use of pepper spray appropriate in resisting arrest situations and that courts have considered it excessive if its use is unprovoked or gratuitous. Here, regardless of Brooks's intentions, a reasonable police officer could have concluded that he was resisting arrest and that the use of pepper spray would be appropriate. Therefore, the officer is entitled to qualified immunity.

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KOTWICA v. ROSE PACKING CO. (March 22, 2011)

Teresa Kotwica was employed as a general laborer at the Rose Packing Company's facility on the south side of Chicago from 1996 to 2006. General laborers perform a number of functions and are purposely rotated through different positions on a regular basis. Rose adopted this work policy in order to be able to reassign workers easily as demand fluctuated and to minimize repetitive motion injuries. Rose also required its employees to have unconditional medical releases before returning to work after a non-work related injury. On the advice of her doctor, Kotwica had a total hip replacement in late 2005. She tried to return to her job after 12 weeks leave, but her doctor included several conditions on her work authorization letter. Rose's in-house physician also conducted an evaluation but could not give her an unconditional clearance. Rose terminated Kotwica's employment in March of 2006 in accordance with its policy. Kotwica brought suit alleging that Rose violated the Americans with Disabilities Act (ADA). Judge Lefkow (N.D. Ill.) granted summary judgment to Rose. Kotwica appeals.

In their opinion, Circuit Judges Cudahy and Rovner and District Judge Adelman affirmed. The Court noted that the district court considered only one of the three requirements of a prima facie case -- whether Kotwica was a qualified individual with a disability. The ADA, at the time, defined a "qualified individual" as an individual with a disability who can perform the "essential functions" of her position. In order to qualify as a person with a disability, Kotwica must show that she had an impairment that limited a major life activity, that she had a record of such an impairment, or that Rose considered her to have such an impairment. She cannot. First, she denies having an impairment. Second, she failed to show that she has a record of an impairment. Third, she failed to show that Rose believed that she suffered from an impairment that substantially limited her ability to work. On this third prong, the Court stated that Kotwica had to produce evidence that Rose thought she was disqualified from a broad category of jobs. That is not what the record shows. Rose only considered her precluded from a general laborer’s job because she was unable to perform the entire job rotation. The ADA does not require an employer to create a new job that consists only of a subset of an employee's prior position.

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SILIVEN v. INDIANA DEPARTMENT OF CHILD SERVICES (March 16, 2011)

Teresa and Mark Siliven’s two-year-old son had been in daycare with Ashley Woods for almost a year. When Teresa picked him up one day in January 2008, Woods told her that the boy had been acting up. Later that evening, Teresa noticed bruises on her son's arm. Mark said he knew nothing about them, so they filed a child-abuse report with the Richmond, Indiana Police Department. The report was forwarded to the Indiana Department of Child Services(DCS). DCS caseworker Amber Luedike investigated. She interviewed Mark and Teresa, as well as Woods. Luedike also asked the Siliven’s to take their son to the emergency room for an examination. Although the emergency room report reached no conclusion as to the cause of the bruises, another doctor to whom Luedike showed the bruises opined that they were consistent with an adult grabbing the boy's arm. Six days into her investigation, Luedike learned that the DCS had substantiated an incident of child abuse involving Mark and his 15-year-old stepdaughter five years earlier. Luedike met with her supervisor, a staff attorney, and a DCS director. She recommended that DCS remove the boy from his home. She based her recommendation on the likelihood that he had been injured by an adult, the fact that the parents had not been eliminated as the cause, and Mark’s earlier incident. The others agreed, and also agreed that they should remove him on an emergency basis because they would be unable to obtain a court order before the upcoming weekend. Luedike and several sheriff’s deputies went to the Siliven's home, intending to take the boy into protective custody. The DCS director eventually agreed, however, to allow Teresa to take the boy to his grandmother's home in Ohio. The following Monday, a judge concluded that probable cause to believe that the boy’s physical health was seriously endangered did not exist. DCS closed its investigation. The Silivens filed suit against Luedike and the DCS director, alleging federal Constitutional and state law violations. Judge Lawrence (S.D. Ind.) granted summary judgment to the defendants based on qualified immunity. He did not address whether there was a constitutional violation but, under the second prong of the qualified immunity test, held that the constitutional rights allegedly violated were not clearly established at the time of the conduct. The Silivens appeal.

In their opinion, Judges Flaum, Manion, and Evans affirmed. The Court’s two-part test is familiar: whether the complaint alleges a constitutional violation and whether the rights allegedly violated were clearly established at the time of the conduct. Unlike the district court, which ignored the first prong and found the second prong dispositive, the Court started with the first prong and found it dispositive. With respect to the Fourth Amendment unreasonable seizure claim, the Court assumed without deciding that there was a seizure (remember that the boy never left his mother's side) but concluded that the defendants' acts were reasonable under an objective test. There was physical evidence of abuse, Mark had access to the boy, and the DCS had substantiated an earlier abuse claim against Mark. Those facts, particularly combined with the fact that the boy remained with his mother at all times, were enough for the Court to find reasonableness. With respect to the substantive due process claim, the Court noted that the constitutional right to familial integrity has to be balanced against the public interest in child safety. A caseworker need only have reasonable suspicion of past or threatened abuse to take a child into custody. Since that threshold is less demanding than the Fourth Amendment threshold the Court already discussed, the Court had no difficulty in concluding that there was no substantive due process violation. Finally, the Siliven's also alleged a procedural due process violation. Due process does require a pre-deprivation hearing before a child is removed from his home, unless there are exigent circumstances. This also requires an objective test, whether a reasonable caseworker would have believed the child was in immediate danger. Again, that test is less stringent than the Fourth Amendment test. The Court concluded that the defendants met the test.

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AULT v. SPEICHER (March 3, 2011)

In late 2004, the Illinois Department of Children and Family Services received a tip that Dana Ault's boyfriend had physically abused one of her four children. Ault sent her children to live with her mother to prevent them from being placed in foster care. The Department assigned Leslie Speicher as Ault’s caseworker. Speicher developed a plan to which Ault agreed. Under the plan, the children would continue to reside with Ault's mother. In mid-2005, Speicher suggested to Ault's mother that she should attempt to gain legal custody of the children. In fact, Speicher told Ault that she would file for custody in court if Ault did not agree to transfer custody to her mother. Both Ault and her mother believed that Ault could retain custody only as long as they agreed to leave the children with the mother. When Ault refused to sign a subsequent plan, the Department sought an adjudication of wardship. The court denied the petition and Ault's children were allowed to return to her care. Ault filed suit against Speicher pursuant to § 1983, alleging violations of the First, Ninth, and Fourteenth Amendments. Judge Herndon (S.D. Ill.) granted summary judgment to Speicher, concluding that there was no constitutional violation and, alternatively, that Speicher was entitled to qualified immunity. Ault appeals.

In their opinion, Circuit Judges Bauer and Williams and District Judge McCuskey affirmed. The Court addressed only the qualified immunity issue and only the second prong of the familiar test, whether the constitutional right allegedly violated was clearly established at the time. In order to carry its burden, a plaintiff must either present case law well articulating the right and applying it in a similar factual circumstance or show that the conduct’s unconstitutionality was obvious. With respect to the case law, the Court stated that the plaintiff’s cases simply stood for the proposition that parents have certain constitutional rights in family choice issues. They are not at all similar to the factual circumstances here. Even the alleged violations of state law do not establish a violation of a clearly established constitutional right. The Court also concluded that Speicher’s acts were not obviously unconstitutional, given that Ault was still in a relationship with a man accused of child abuse and that she had earlier agreed to the children’s placement with her mother.

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HERNANDEZ v. COOK COUNTY SHERIFF'S OFFICE (February 24, 2011)

Several Cook County Jail inmates escaped in February of 2006. Jail authorities immediately suspected that the escapees had inside help. One guard admitted his involvement. Six additional guards came under suspicion. Internal and criminal investigations were conducted. Several of the guards were suspended with pay. The guards also claimed they were treated harshly during the investigation and discouraged from contacting the union or an attorney. Ultimately, one guard was suspended for five days and two left the department. Administrative charges were dropped against the other three. The six guards brought suit against the Sheriff's office alleging a violation of their First Amendment rights, and included state law intentional infliction of emotional distress and false imprisonment claims. They claimed that the investigation was in retaliation for their safety complaints (the plaintiffs allegedly complained about security and overcrowding problems in the jails) and political views (the head of their unit was running for Sheriff against the incumbent sheriff's Chief of Staff). The defendants moved to dismiss the constitutional claims on qualified immunity grounds and the state law claims on statutory immunity grounds. The court never ruled on that motion. The defendants later moved for summary judgment, but only briefly argued qualified immunity and did not argue statutory immunity in their opening brief. Judge Guzman (N.D. Ill.) a) granted summary judgment on the merits on the retaliation claim based on safety complaints, b) denied summary judgment on the retaliation claim based on political views, c) denied the request for qualified immunity, concluding that defendants had waived it, and d) denied summary judgment with respect to the state law claims. Defendants appeal only the denial of qualified immunity on the constitutional claims.

In their opinion, Judges Cudahy, Flaum, and Wood reversed and remanded. The Court noted that the denial of a motion for summary judgment is ordinarily not appealable. It is, however, when the requested grounds for summary judgment is qualified immunity and when the denial involves only legal issues. Since a finding of waiver is a legal issue, the Court has jurisdiction to entertain the appeal. The Court seemed to have little difficulty in concluding that the district court erred in finding waiver. Although an underdeveloped argument can amount to waiver, it does so only when it provides inadequate notice of the argument. Here, defendants have argued qualified immunity from the beginning of the case. They argued in their motion to dismiss, they argued unambiguously (albeit briefly) in their opening summary judgment brief in a section captioned "Qualified Immunity," and they argued it at length in their reply brief. Arguments raised for the first time in reply briefs are generally considered waived, but arguments more fully developed in reply briefs do not necessarily suffer the same fate. The plain fact is that plaintiffs were on notice of the argument and defendants treatment of it did not constitute a waiver. Finding no waiver, the Court addressed the merits of the argument. The familiar test has two prongs -- whether the defendants violated a constitutional right and, if so, whether that right was clearly established at the time. When the constitutional violation concerns a public employee's First Amendment rights, a court first must determine whether the speech involves a matter of public concern. If it does, the court applies a balancing test. If it does not, the employee is not entitled to constitutional protection. Based on the district court's findings on the safety complaint retaliation claims, the Court was able to determine as a matter of law that the speech did not involve a matter of public concern. The plaintiffs were acting in response to their duties as employees and are not entitled to constitutional protection. Therefore, there was no constitutional violation, and the defendants are entitled to qualified immunity. With respect to the political retaliation claim, however, the Court was unable to reach such a conclusion. The district court failed to identify the disputed and undisputed facts, nor did it make any findings regarding materiality. The Court remanded for that purpose.

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JONES v. CLARK (January 14, 2011)

Early one August morning, Christina Jones had begun her job reading meters for Commonwealth Edison. Jones is African-American. On this particular day, her job took her to Braidwood, Illinois. Braidwood, a small town about 50 miles southwest of Chicago, has an almost exclusively white population. Apparently, a "concerned citizen" thought that she was something other than a meter reader and called the police. [According to her complaint:] Officer Clark was the first to arrive and question her. Although she wore numerous articles of clothing with her employer's logo and provided two separate pieces of identification, Clark would not let her go. When he asked for her date of birth, she stepped away and started to call her supervisor on her cell phone. At that point, Officer Kaminski arrived. He screamed at her, knocked the phone out of her hand, cuffed her hands behind her back, threw her against the car, and arrested her. She was charged with obstructing a peace officer and released on bond. The charges were later terminated in her favor. Jones brought suit, alleging Fourth Amendment violations. Judge Andersen (N.D. Ill.) concluded that disputed issues of fact precluded resolution either of the merits or defendants' request for qualified immunity. Defendants appeal.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first addressed its appellate jurisdiction. Although the "collateral orders" exception to the finality rule does apply to the appeal of qualified immunity denials, it does so only in so far as the appeal raises an issue of law. Even in a case, like this, where there are disputed issues of fact, defendants can (and these defendants have) get their appeal if they limit it to plaintiffs version of the facts. Comfortable with its jurisdiction, the Court turned to the merits. Qualified immunity has two prongs: was there a constitutional deprivation and were the constitutional rights at issue clearly established. With respect to the second prong, the constitutional right at issue here -- the right to be free from an arrest without probable cause -- was certainly clearly established. Therefore, the only question for the Court on the merits is whether Clark and Kaminski violated Jones' rights. The Court appeared to have little difficulty in answering that question affirmatively (again, on Jones' version of the facts). The Court noted that there was nothing in the record that would provide reasonable suspicion that she was engaged in unlawful activity. Their initial detention of her was therefore a constitutional deprivation. In addition, her actual arrest was a constitutional violation. Since the officers had no reason to detain her in the first place, anything supporting probable cause to arrest her must have occurred after her detention. Her post-detention conduct does not support probable cause either for disorderly conduct or for obstructing a peace officer. With respect to the former, she acted professionally at all times. With respect to the latter, the offense requires a physical act rather than just an argument with a policeman. The officers are therefore not entitled to qualified immunity on this record.

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HILL v. COPPLESON (November 22, 2010)

Eighteen-year-old Harold Hill was arrested in early 1992. While in custody, two detectives began questioning him about a sexual assault and murder that happened almost 2 years earlier. According to Hill, they questioned him for hours and abused him both physically and mentally. At some point, Assistant State's Attorney Rogers also began questioning Hill. Hill eventually confessed to the crime and implicated two other men. Those two men were arrested and also eventually confessed to the crime -- although one was never charged because, even though he gave a detailed confession, he was in jail at the time of the crime. In late 1994, Hill was convicted of the crime and sentenced to life in prison. Over 10 years later, Hill was exonerated through DNA testing and his conviction was vacated. Hill filed suit against the two detectives, Rogers, and the City of Chicago alleging that the defendants violated his Fifth Amendment rights by coercing the confession and that they engaged in a civil conspiracy in violation of § 1983. Judge St. Eve (N.D. Ill.) denied the individual defendants' motions for summary judgment, including Rogers' claim that he was entitled to both absolute prosecutorial immunity as well as qualified immunity. Rogers appeals.

In their opinion, Seventh Circuit Judges Ripple, Williams, and Tinder dismissed for want of jurisdiction. The Court has jurisdiction of an appeal from the denial of summary judgment on either absolute or qualified immunity grounds only if they can decide the questions presented based on undisputed facts. Here, there is a dispute in the record over the timing of Rogers' arrival at the police station. Rogers claims that he arrived only after Hill's confession -- Hill claims that he did not confess until after meeting with Rogers. Rogers' success on his absolute immunity claim depends on whether he was acting as a prosecutor or investigator. The answer to that question depends on whether probable cause existed prior to his arrival. Rogers' success on his qualified immunity claim depends on whether there is evidence that he was involved in the coerced confession. The probable cause and the coercion questions depend on the timing of Rogers' arrival at the police station and thus cannot be decided on a record of undisputed facts. Because the Court cannot resolve the question on undisputed facts, it lacks jurisdiction.

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FINCH v. PETERSON (September 10, 2010)

In 1978, the Indianapolis Police Department and the United States Department of Justice entered into a consent decree designed to correct racial discrimination in the Department. The long-range goal of the decree was to increase the number of African-Americans to the point where it reflected the racial composition of the workforce in the city. In part, it provided that assignments, transfers, and promotions were to be based on appropriate criteria without regard to race. Now fast forward almost 30 years to 2006. That year, the Department promoted 11 lieutenants to captain. To prepare for the promotions, the Department screened, tested, and ranked each applicant. Instead of promoting the highest-ranked applicants, however, the Department promoted three African-Americans who ranked as low as 26th. Three white applicants, all of whom ranked in the top 10, brought suit pursuant to Title VII, § 1981, and § 1983. Magistrate Judge Lynch (S.D. Ind.) rejected the individual defendants' argument that they were entitled to qualified immunity because their actions were required by the consent decree and denied their motion for judgment on the pleadings. The defendants appeal.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first confirmed its jurisdiction under the collateral-order doctrine. Even in the absence of a final judgment, a decision denying qualified immunity on an issue of law is immediately appealable. On the merits, the Court recited the familiar two questions raised by a qualified immunity analysis -- was a constitutional right violated and was the right sufficiently well-established to put the defendants on notice. The Court rejected the defendants' only argument that their race-based promotion decisions did not violate the Constitution -- that is, that the consent decree required them. Although it conceded that the consent order had general goals of increasing the number of African-American captains, the Court pointed to the several, very specific provisions of the order requiring race-neutral decisions. Other provisions of the consent decree (e.g., requiring sufficient African-American representation in an applicant pool) were designed to allow the department to reach its general goal without engaging in race-based promotions. The Court also rejected the defendants' only argument with respect to the "sufficiently well-established" prong because it also relied on the premise that the consent order required them to promote the African-Americans.

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MCALLISTER v. PRICE (August 12, 2010)

Frank McAllister, who suffers from diabetes, was driving his car alone early one afternoon when he suddenly went into a severe hypoglycemic state. McAllister's car struck two other vehicles before coming to rest. Although McAllister was not injured, witnesses described him as staring into space and convulsing. Burns Harbor police officer Jerry Price responded. The dispatch advised Price that the accident may have been caused by an intoxicated driver. Price confronted McAllister. When McAllister failed to follow his instructions or respond to his questions, Price removed him from his car with force. According to a witness, Price threw him to the ground, put his full weight on his back, and handcuffed him. Eventually, and only after the suggestion of a bystander, Price checked McAllister for medical alert identification. He discovered a diabetes alert necklace on McAllister and released him. McAllister suffered from a broken hip and a bruised lung. He brought a § 1983 complaint against Price. Judge Van Bokkelen (N.D. Ind.) denied Price's request for summary judgment on qualified immunity grounds, concluding that there were genuine issues of material fact. Price brought an interlocutory appeal.

In their opinion, Judges Bauer, Flaum, and Tinder affirmed. A qualified immunity defense requires that a court answer two questions: whether there is a constitutional deprivation and whether the constitutional right was "clearly established" at the time. The Court first addressed the deprivation -- whether Price used excessive force. Three factors mattered: the degree of severity of any offense, whether the victim was a safety threat, and whether the victim was a flight risk. Before addressing the merits of the excessive force claim, the Court resolved two evidentiary issues. First, it concluded that the district court did not err in allowing evidence of McAllister's hip injury, even though there was no conclusive medical testimony that Price's actions caused the injury. Some causal evidence is all that is required for the jury to consider the evidence. Second, the Court concluded that the district court did not err in considering McAllister's diabetic condition. Although a police officer is not required to accommodate unknown conditions, here McAllister was obviously suffering from something and Price was trained in recognizing diabetes, trained in recognizing intoxication, and trained to look for medical alert identifications. On the merits of the constitutional deprivation question, the Court concluded that there was sufficient evidence for a jury to conclude that the amount of force used was excessive. On the second question, the Court concluded that the case law in effect at the time of the incident was sufficient to "clearly establish" McAllister's rights to be free from the excessive force as alleged.

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PURVIS v. OEST (AUGUST 2, 2010)

Gina Purvis was a high school teacher in Spring Valley, Illinois. In early 2004, rumors of a sexual relationship between Purvis and a 15-year-old student arose. Principal Patricia Lunn questioned Purvis and the student. When both denied the truth of the rumors, she dropped it. However, when the rumors resurfaced the following year, Lunn and Superintendent Oest decided to investigate. Oest and Dean of Students Gary Vicini carried out the investigation. Unfortunately, Vicini knew that Purvis had reported him for the sexual harassment of a student the prior year. Lunn was aware of Vicini's conflict, although Oest was not. Oest and Vicini interviewed the student, who denied the relationship. There is evidence that Vicini then threatened the student with expulsion if he continued to deny the relationship. The student recanted his denial, admitted the relationship, and provided numerous details about its development. Oest reported the matter to the local police, who in turn reported the matter to the Department of Children and Family Services (“DCFS”). Neither the police nor DCFS were informed of Vicini's potential bias. The police investigation resulted in significant additional information, some of which supported the student's admission and some of which did not. Of particular importance was the fact that the student's cousin, while on leave from the Navy, picked the student up from Purvis' house and saw them kissing. Purvis was arrested and resigned her teaching position but was later acquitted of all charges. She brought suit alleging a denial of due process and false arrest against Oest, Lunn, Vicini, and the police investigator. Judge Mihm (C.D. Ill.) denied the defendants' request for summary judgment, finding genuine issues of fact with respect to the constitutional violation itself and concluding that the defendants were not entitled to qualified immunity. The defendants appeal.

In their opinion, Judges Cudahy, Manion, and Williams reversed. First, the Court found genuine issues of material fact both with respect to Vicini's bias and with respect to the independence of the subsequent investigations by the police and the DCFS. Due process is not provided when the process is biased and deprives one of a protected interest. Purvis had a protected interest in her job as a tenured teacher. The Court concluded that a jury could find that the subsequent investigations did not cure the fundamental bias present in the original investigation. The Court then addressed qualified immunity. The first prong of the qualified immunity test was already answered in the Court's treatment of the summary judgment appeal. The facts in a light most favorable to Purvis demonstrated a constitutional violation. Application of the second prong of the test, whether the right was "clearly established," led the Court to conclude that each of the non-police defendants was entitled to qualified immunity. Oest was not even aware of Vicini's bias and could not have knowingly violated a clearly established right. Lunn and Vicini are also entitled to qualified immunity based on the Court's conclusion that there was no case law holding that reporting Purvis to a separate body for an independent investigation violated a clearly established constitutional right. Finally, the Court concluded that the police investigator was entitled to qualified immunity under the first prong of the test. The officer had probable cause to arrest Purvis -- there was no constitutional violation. The evidence uncovered by the police officer "easily" met the probable cause standard -- whether there is a probability of criminal activity. Although significant exculpatory evidence was uncovered in the police investigation (enough, in fact, that Purvis was ultimately acquitted), it did not negate the existence of probable cause. As an alternative ground for finding qualified immunity, the Court noted that a reasonable police officer would believe probable cause existed even if it did not.

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MOSS v. MARTIN (August 2, 2010)

William Moss was hired as the Chief of the Illinois Department of Transportation's (IDOT) Springfield, Illinois Highway Sign Shop in 2000. He was responsible for taking care of the signs on Illinois' highways. Moss was also a Republican. In 2003, a Democratic governor was elected in Illinois for the first time in a long time. Shortly thereafter, IDOT personnel manager Jacob Miller, who knew that Moss was a Republican, discovered that he was non-exempt. Non-exempt employees are those that are not protected from employment decisions based on their political affiliation. Miller started the process for firing Moss. Before any action was taken, Scott Doubet replaced Miller. Independently of anything Miller had decided or started, Doubet fired Moss in order to provide a job to Joe Athey, who was loyal to the new governor. Moss brought suit under § 1983, alleging that his First Amendment and due process rights were violated. Judge Scott (C.D. Ill.) dismissed the claims. On appeal, the Seventh Circuit reinstated the First Amendment claim. The district court then granted summary judgment to the defendants on qualified immunity grounds. Moss appeals.

In their opinion, Judges Kanne, Wood, and Hamilton affirmed. The district court only addressed the second prong of the qualified immunity test, whether Moss’ constitutional rights were clearly established at the time of the defendants' conduct. The Court nevertheless briefly visited the first prong of the test, whether Moss' First Amendment rights were even violated. The Court noted that a fact finder could find that the firing was politically motivated, particularly against some of the defendants. It also found that Moss had a "promising" argument that his classification as non-exempt was wrong. Non-exempt positions are reserved for individuals with policymaking responsibilities or those who handle confidential information. The Court did not believe that the Chief of the Highway Sign Shop met that definition. Thus, the Court moved to the issue addressed by the district court -- whether it was "clearly established" that defendants' actions would violate the First Amendment. Although not dispositive, the Court agreed with the district court that Illinois' designation of the position as non-exempt favored a qualified immunity finding. The Court also relied on the fact that the job was designated exempt before Moss took the position. Finally, the Court found it particularly telling that Moss was unable to point to a closely analogous case despite a large number of political patronage case. The Court therefore concluded that qualified immunity was appropriate.

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JUNKERT v. MASSEY (June 21, 2010)

Roger Massey, the Sheriff of the DeWitt County, Illinois, began an investigation into a series of local burglaries. His investigation led him to Richard Baker. Baker provided much information to the police about his activities and those of Jeffrey McCall: a) he received stolen guns from McCall, b) he sold drugs with McCall, c) he named his cocaine source, d) McCall told him that McCall's attorney (a female) used cocaine, and e) McCall told him that he paid his attorney with stolen laptops. Massey corroborated some of the information from Baker. Additional investigation established that McCall's lawyer was Dodie Junkert, the only female lawyer in the county. Massey used the information from Baker in preparing an affidavit for a search warrant for Junkert's office and residence. When Massey informed Junkert of the existence of the search warrant, she admitted receiving the stolen laptops from McCall and arranged for their return. The police searched her office and home anyway. They found no computers but did find evidence of drug use. Junkert brought an action under § 1983, alleging that the Massey’s lack of probable cause for the search warrant violated her Fourth Amendment rights. A jury found in favor of Massey. Junkert appeals from Judge Mills' (C.D. Ill.) denial of her motion for judgment as a matter of law.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. The Court addressed whether the affidavit provided probable cause for the search, applying a totality of the circumstances test. It focused on the degree of cooperation, the extent of personal observation, the amount of detail, the time interval, and whether the affiant appeared before the judge. The Court found the affidavit severely lacking -- it lacked personal observation, it specified no time period, and the affiant did not personally appear. Even with the other positive aspects of the affidavit, the Court found it "difficult to conclude" that the affidavit provided a substantial basis for the search. Without actually deciding whether probable cause existed, however, the Court addressed qualified immunity. It noted that Massey is personally liable for damages only if courts have held that a materially similar affidavit lacked probable cause or if the affidavit was so lacking that any reasonable officer would have known it lacked probable cause. The Court found neither. Notwithstanding the weaknesses in the affidavit, the Court concluded that there were enough indicia of probable cause to support Massey’s reliance on it. Massey was therefore entitled to a qualified immunity defense.

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LEVAN v. GEORGE (April 28, 2010)

It all started when Michael Levan got a parking ticket in Peoria. He missed a scheduled hearing and a default judgment was entered. A motion to vacate the default was filed by his attorney. On the day he thought it was scheduled to be heard, Levan went to the courthouse and engaged the city's attorney in conversation. When she advised him that the motion was not scheduled for that day, a confrontation ensued. The parties disagree about how the confrontation escalated. It is undisputed, however, that two court security officers handcuffed and pepper-sprayed Levan, and took him to a holding cell. Levan was later acquitted of disorderly conduct charges. He brought suit against the county and the security officers for false arrest and excessive use of force. A magistrate judge denied summary judgment on qualified immunity grounds, finding genuine issues of material fact. The officers and the County appeal.

In their opinion, Judges Kanne, Wood, and Hamilton dismissed the appeal. The Court first recognized that, although not a final judgment, a denial of qualified immunity at the summary judgment stage can sometimes be appealable. A denial is not appealable, however, when it rests on factual rather than legal grounds. As the Supreme Court stated in Johnson, an appeal is allowed to challenge the "clearly established" law part of the qualified immunity analysis when the legal issues are separable from the factual issues underlying the claim. Here, the magistrate Judge found genuine issues of material fact both with respect to probable cause to arrest and probable cause to use force. The individual defendants' entitlement to qualified immunity turns on the resolution of those issues of fact. The denial is therefore not appealable.

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ESTATE OF ESCOBEDO v. BENDER (April 5, 2010)

At 4:24 on a summer morning in 2005, Rudy Escobedo called 911 and told the dispatcher that he was high on cocaine, armed, and suicidal. According to the complaint filed by his estate, the Fort Wayne Police grossly mishandled the situation. It alleges that, over the succeeding five hours, the police: a) engaged the Crisis Response Team and the Emergency Response Team, b) did not follow normal communication protocol, c) never complied with Escobedo's request to have his psychologist at the scene, d) decided to use teargas to force Escobedo from his apartment, e) actually used twelve times the incapacitating concentration of teargas, f) were forced to cut off communication with Escobedo because of the strength of the teargas and the location of the officer in communication with him, g) broke down his apartment door and threw in more teargas and a flash bang grenade, h) broke down the door to his bedroom and threw in more grenades, and i) shot and killed him. Escobedo never threatened anyone other than himself. Escobedo 's estate filed a complaint pursuant to § 1983, alleging that the use of the teargas and flash bang grenades constituted excessive force. On the individual officers' motion for summary judgment, the district court granted in part and denied in part. Its denial of the officers’ summary judgment motion on the excessive force claim was based on the courts' ruling that they were not entitled to qualified immunity. The individual officers appeal.

In their opinion, Circuit Judges Manion (concurring in part and dissenting in part) and Kanne and District Judge Kendall affirmed. The Court noted that the only issue before it was whether the individual officers were entitled to qualified immunity. Furthermore, the officers limited their appeal to the second prong of the Saucier qualified immunity test -- whether the law was clearly established at the time of the events in question that the use of teargas and flash bang grenades under the circumstances presented constituted excessive force. The estate has the burden of meeting the "clearly established" test but can do so in one of two ways: either by presenting a closely analogous case or by establishing that the conduct is so obviously a violation of constitutional rights that any reasonable0 officer would know. Although the Court briefly discussed the latter test, they declined to apply it because of its conclusions with respect to closely analogous case law. The Court addressed the case law with respect to teargas and flash bang grenades separately. With respect to teargas, the Court found controlling precedent and a clear trend in other circuits that the use of teargas is unreasonable when: a) the target is an individual, b) the individual poses no actual threat, c) there are no hostages, d) the individual has not committed a crime and is not attempting to flee, e) the individual, though suicidal, is not homicidal, and f) the individual suffers some incapacity. The Court found those elements present here. With respect to flash bang grenades, the Court noted that it had earlier found the use of such devices reasonable in Molina. It distinguished Molina, however, on the grounds that the officers there had serious personal safety concerns. It then cited dicta from other circuit cases which suggests that the use of the devices might not be reasonable if used in close proximity to a suspect or when the suspect is not dangerous. Although recognizing the relative dearth of precedent in the area and the lack of any precise guidance, the Court concluded that the holdings and dicta in the cases that do exist clearly show that the use of the device in the circumstances of this case is unreasonable.

Judge Manion concurred in part and dissented in part. With respect to the teargas, he agreed with the result although he would have reached it under the patently obvious violation route rather than the closely analogous case law route. He disagreed, however with the Court's conclusion on the use of flash bang devices. Judge Manion criticized the majority's treatment of Molina. Although he agreed that the cases were distinguishable, he considers Molina the leading authority in the circuit on the issue and should not have been limited to its facts in favor of dicta from other cases. Even the dicta in the other cases, he believed, did not come close to meeting the "clearly established" standard.

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SANDRA T.E. v. GRINDLE (March 17, 2010)

Three female elementary school classmates at Pershing Elementary School attended a seminar on "inappropriate touching" at their school in May of 2001. After the seminar, they wrote a short letter to the presenter stating that they were uncomfortable with the conduct of their band teacher. The presenter shared the note with Karen Grindle, Pershing's principal. Although Grindle met with the band teacher, the students, some parents, and the school's social worker, the accounts of their meetings varied. The allegations are that Grindle downplayed the significance and the seriousness of the accusations. Additional incidents surfaced in January and April of the following year. Again, Grindle is alleged to have minimized the significance of the incidents. One of the students who wrote the original letter in 2001 revealed to her mother, in 2005, her version of what happened. Her mother informed the police, a criminal investigation was launched, other victims came forward, and the band teacher pleaded guilty to multiple counts of aggravated criminal sexual abuse. Several of the children and their parents filed an action pursuant to section 1983, alleging a violation of their equal protection and substantive due process rights. The district court granted summary judgment on the section 1983 claim to all defendants except Grindle and the band teacher. Grindle appeals.

In their opinion, Judges Flaum, Rovner, and Hamilton affirmed. The basis of Grindle's appeal is her claim to qualified immunity. The Court recited the familiar two-part test: whether a constitutional right was violated, and whether the right was "clearly established" at the time of the conduct. With respect to the equal protection claim, the Court concluded that well-developed law at the time of Grindle's conduct held that a supervisor could be liable for deliberately ignoring an equal protection violation of her subordinate. In addition, the sexual harassment by the subordinate was a well-established equal protection violation. The Court concluded that plaintiffs presented sufficient evidence from which a jury could infer that Grindle intentionally discriminated against the girls to withstand summary judgment. With respect to the substantive due process claim, Grindle argued that she had no duty to protect the students from the abuse at the hands of the band teacher. The Court agreed that state officials do not generally have an obligation to protect citizens from violence, but noted the "special relationship" exception to that rule. Although the Court agreed that it had once rejected the "special relationship" theory in the student context, it also noted that the Third Circuit held otherwise in Stoneking. The Stoneking decision has been recognized in the circuit as one that is viable and, in fact, has been followed on several occasions in the district courts of the circuit. The Court concluded that a reasonable elementary school principal should have concluded that she could be liable for ignoring, or even covering up, a teacher's sexual abuse of a student. Finally, the Court noted that the plaintiffs allege that Grindle's own actions establish the constitutional violation, and not just her mere failure to act or prevent. Thus, they meet the test of Iqbal.

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WHITLOCK v. BROWN (February 24, 2010)

The Whitlocks were camping with their daughter at the Indiana Dunes State Park in July of 2005. They came across some personal property at what appeared to be a deserted camp site. They put the items in their vehicle and told a neighboring camper that they would turn it in to park rangers. Instead of turning it in immediately, however, they left the park and went shopping. Upon their return, they left a voicemail for the property owner (having obtained his number from information found in the property) advising him that they had his property and were going to leave it with the park ranger. The owner of the property had already reported it missing and park authorities were investigating. When the Whitlocks eventually turned in the property, they were accused of theft. The investigation confirmed the Whitlocks' explanation. State investigator Brown prepared a case report and an "Affidavit for Probable Clause." He sent the affidavit to the local county prosecutor's office, and there is a dispute over whether he attached his case report to it. The Whitlocks were charged with conversion and an arrest warrant was issued. When they were stopped for a traffic violation a month later, they were arrested and held in jail for four days before the prosecutor dropped the charges. The Whitlocks sued Brown under § 1983, specifically alleging that he withheld their explanation for why they held the property for so long from his case report or application for a warrant. The district court concluded that Brown did violate their Fourth Amendment rights by withholding the exculpatory information but also concluded that he was entitled to qualified immunity because a reasonable officer could have believed that probable cause to arrest the Whitlocks existed. The Whitlocks appeal.

In their opinion, Circuit Judges Posner and Sykes and District Judge Dow affirmed. Qualified immunity, stated the Court, involves two inquiries: whether there is a constitutional violation and whether a reasonable officer, considering clearly established law, would have known his actions were unconstitutional. Here, the claim is that Brown intentionally or recklessly withheld exculpatory information from the prosecutor, which could overcome the general presumption of the validity of the warrant. The information omitted, however, must be material to the existence of probable cause. The Court first addressed the alleged withholding of the case report itself. The district court had concluded that Brown withheld the report, inferring so from its absence from the prosecutor's file. The Court disagreed. Brown testified that he had submitted the case report. Although self-serving, the testimony was not speculation and was based on Brown's personal knowledge. In contrast, the Whitlocks presented no evidence or reasonable inference that the report was not sent. Although therefore concluding that the report itself was not withheld, the Court also considered an omission in the report -- Brown's failure to include the Whitlock's innocent explanation for why they did not turn in the property immediately. The Court turned to the materiality of that missing information. The statute upon which the warrant was based prohibits "unauthorized control over property" of another. It does not require an intent to permanently deprive. Although the Court hypothesized a situation in which the explanation could be material under a theory of implied consent from the owner of lost property, it found no such theory recognized under Indiana law. The Court concluded that a reasonable officer would not have known if the innocent explanation was material to probable cause and that Brown was therefore entitled to qualified immunity.

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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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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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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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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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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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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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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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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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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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