Louis Bianchi v. Thomas McQueen

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1635

LOUIS A. BIANCHI, et al.

Plaintiffs-Appellants,

v.

THOMAS K. MCQUEEN, et al.

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:12-cv-00364 — Robert M. Dow, Jr., Judge.

____________________

ARGUED APRIL 16, 2015 — DECIDED MARCH 29, 2016

____________________

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

SYKES, Circuit Judge. In 2004 Louis Bianchi was elected to

the office of State’s Attorney in McHenry County, Illinois,

and immediately embarked on a program of reforms. Along

the way he acquired a few enemies. In 2006 one of the secre-

taries in the office resigned and took a treasure trove of sen-

sitive documents with her. Working with a disgruntled As-

sistant State’s Attorney whom Bianchi had demoted, the sec-

2 No. 14-1635

retary delivered the documents to the media and to Bianchi’s

opponent in the next election.

When Bianchi learned of the document theft, he asked a

judge to appoint a special prosecutor to investigate. The

judge obliged, and the former secretary was charged with

several felonies and eventually pleaded guilty to computer

tampering. In the meantime, Bianchi’s opponent—aided by

the secretary and other unnamed political enemies—sought

the appointment of another special prosecutor, this time to

investigate Bianchi for politicking on the public’s dime

(among other alleged malfeasance). Again a judge obliged; a

special prosecutor was appointed, a grand jury was con-

vened, and Bianchi and three of his colleagues were indicted

on multiple counts of official misconduct. All were acquit-

ted.

Once vindicated, Bianchi and his colleagues filed this suit

for damages under 42 U.S.C. § 1983 against Henry Tonigan,

the court-appointed special prosecutor; Thomas McQueen,

the court-appointed assistant special prosecutor; and Quest

Consultants International, Ltd., a firm of private investiga-

tors hired by the special prosecutors, and several of its inves-

tigators. The plaintiffs claim that the defendants fabricated

evidence and withheld exculpatory evidence in violation of

their rights under the Due Process Clause and the Fourth

Amendment. They also allege a claim for political retaliation

in violation of the First Amendment.

Tonigan settled and dropped out of the case. McQueen

and the Quest investigators moved to dismiss based on the

combined effect of absolute prosecutorial immunity and

qualified immunity. The district court granted the motion,

No. 14-1635 3

concluding that the two immunities foreclose the federal

constitutional claims. That ruling was sound and we affirm.

I. Background

In 2004 Bianchi was first elected as McHenry County

State’s Attorney; he has been reelected ever since. 1 The

events underlying this litigation took place between 2006

and 2011. This suit was filed in 2012, and the district judge

gave the plaintiffs extra pleading opportunities to try to

overcome the dual barriers of absolute and qualified immun-

ity. We take the following factual account from the second

amended complaint. Because the case comes to us from an

order dismissing the complaint for failure to state a claim, see

FED. R. CIV. P. 12(b)(6), we accept the plaintiffs’ allegations as

true but remind the reader that these are only allegations, see

Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d

382, 384 (7th Cir. 2010).

We note for starters—as did the district judge—that the

second amended complaint differs in significant respects

from the earlier versions, probably because of the interven-

ing settlement with Tonigan. The earlier versions alleged

that Tonigan was in cahoots with the other defendants to

fabricate evidence used to prosecute the plaintiffs. The cur-

rent theory, in contrast, is that Tonigan was an unwitting

participant in an unconstitutional prosecution. More specifi-

cally, the second amended complaint alleges that McQueen

1 Late last year Bianchi announced that he would not run for reelection

in 2016. See Kevin P. Craver, McHenry County State’s Attorney Lou Bianchi

dropping re-election bid, NW. HERALD (Dec. 7, 2015), http://www.nwherald.

com/2015/12/07/mchenry-county-states-attorney-lou-bianchi-dropping-

re-election-bid/a9b23i5/.

4 No. 14-1635

and the Quest investigators “duped” Tonigan into prosecut-

ing Bianchi and his colleagues by feeding him fabricated

witness statements and other false evidence.

We have one more preliminary observation before we

proceed. Key factual allegations in the second amended

complaint are pleaded with a conspicuous Rule 11 qualifier.

To take just one example: “After a reasonable opportunity

for further investigation or discovery, there likely will be evi-

dentiary support that Defendants McQueen and the Quest In-

vestigators used the false evidence and witness statements

that they manufactured during the investigation and con-

cealed exculpatory evidence in order to ‘dupe’ Tonigan to

bring charges … .” (Emphasis added.)

The defendants urged the judge to disregard all such al-

legations outright. The plaintiffs’ attorney objected, explain-

ing that this mode of pleading was necessary under the cir-

cumstances and is specifically permitted by Rule 11(b)(3). 2

The judge accepted this explanation and rejected the defend-

ants’ invitation to disregard these allegations based on the

qualifier alone. We’ll do the same.

For simplicity, from now on we’ll omit the modifier “sec-

ond amended” and simply refer to the “complaint.”

* * *

Amy Dalby was a secretary in the McHenry County

State’s Attorney’s Office from 2004 to 2006. She resigned in

2 Rule 11(b)(3) provides that by submitting a pleading to the court, coun-

sel certifies that any factual contentions contained in the pleading “have

evidentiary support, or if specifically so identified, will likely have evi-

dentiary support after a reasonable opportunity for further investigation

or discovery.”

No. 14-1635 5

July 2006, taking some 5,000 sensitive documents with her.

She was encouraged in this theft by Kristin Foley, an Assis-

tant State’s Attorney whom Bianchi had demoted. In

October 2007 Dalby and Foley gave the documents to mem-

bers of the local media and to Daniel Regna, Bianchi’s oppo-

nent in the upcoming 2008 Republican primary for State’s

Attorney.

When the document theft came to light in November

2007, Bianchi petitioned the McHenry County Circuit Court

for the appointment of a special prosecutor to investigate. A

special prosecutor was duly appointed and grand-jury pro-

ceedings followed. In March 2009 Dalby was indicted on six

felony counts. In June 2009 she pleaded guilty to computer

tampering. Before she did so, however, Regna—Bianchi’s

political nemesis—petitioned for the appointment of a spe-

cial prosecutor to investigate Bianchi on allegations that he

had ordered Dalby do political work on county time. Dalby

too filed a petition asking for a special prosecutor to investi-

gate Bianchi, echoing the allegations made by Regna.

In September 2009 Judge Gordon Graham of the McHen-

ry County Circuit Court appointed Tonigan, a former circuit

court judge, as a “Special State’s Attorney” under the au-

thority of 55 Ill. Comp. Stat. 5/3-9008 and tasked him with

investigating the allegations made by Regna and Dalby.

Judge Graham also appointed McQueen, a local attorney, to

work with Tonigan as an assistant special prosecutor.

Tonigan and McQueen quickly discovered that the stat-

ute of limitations had run on Dalby’s allegations, so in

November 2009 they asked Judge Graham to expand the

scope of the investigation. The judge agreed and authorized

them to investigate and prosecute “any and all persons rela-

6 No. 14-1635

tive to the possible misuse, misappropriation or theft of pub-

lic funds, public property or public personnel by McHenry

County State[’]s Attorney Louis Bianchi from 2005 and

thereafter.”

In December 2009 Tonigan and McQueen retained Quest

Consultants to assist in the investigation and asked the court

to appoint Quest’s investigators as special investigators.

Again the court obliged. By April 2010 Judge Graham had

convened a grand jury.

As we’ve noted, the current theory of the case is that it

was actually McQueen—not Tonigan—who controlled the

investigation. The complaint alleges that McQueen con-

spired with the Quest investigators “to limit Tonigan’s role

in and knowledge of” what was actually going on. The

plaintiffs accuse McQueen and the investigators of “manu-

facturing” and “fabricating” evidence against them—largely

in the form of false witness statements—both before and af-

ter the grand jury was convened. This false evidence was

then presented to the grand jury, and in September 2010 the

special prosecutors obtained indictments against Bianchi

and Joyce Synek, his executive assistant, on 19 counts of offi-

cial misconduct. Arrest warrants followed. On September 10,

2010, Bianchi and Synek were arrested and immediately re-

leased on bond that same day.

We pause here to note a factual concession that will be-

come important later. The complaint alleges that Bianchi and

Synek were “held in custody at the McHenry County Jail”

following their arrest. But at oral argument the plaintiffs’ at-

torney abandoned that allegation, telling us that Bianchi and

Synek in fact were never held in custody; rather, they were

immediately released on bond and not detained.

No. 14-1635 7

Now back to the narrative. At this point the special pros-

ecutors realized they had a problem: A charge of official

misconduct in Illinois requires an underlying crime. So in

October McQueen interviewed Peter Austin, the McHenry

County Administrator, to find out whether public officials

ever had the discretion to use county property for non-

county business. The complaint alleges that McQueen and

the investigators thereafter “manufactured a false statement

of Peter Austin for the purpose of creating the appearance

that there was probable cause to charge Bianchi and Synek

with conspiracy and official misconduct.” McQueen and the

investigators then fed this fabricated evidence to Tonigan,

who (with McQueen pulling the strings) used it to obtain a

superseding indictment against Bianchi and Synek on

October 22, 2010.

Meanwhile, shortly after the grand jury issued its first

indictment, McQueen returned to Judge Graham for broader

authority to investigate other allegations of misconduct in

the State’s Attorney’s Office. On October 1, 2010, the judge

signed an order expanding the scope of the investigation.

McQueen and the investigators thereafter fabricated still

more evidence with which to dupe the credulous Tonigan

into pursuing additional charges.

On February 24, 2011, the grand jury indicted Bianchi on

three counts of official misconduct for intervening in crimi-

nal cases on behalf of his political supporters. The grand jury

also issued misconduct charges against Ronald Salgado and

Michael McCleary, both investigators in Bianchi’s office—

Salgado for intervening in a case involving his nephew and

McCleary for improperly using a county vehicle. Arrest war-

rants were issued, and the three men were arrested and im-

8 No. 14-1635

mediately released on bond. (Again, the complaint alleges

that they were held in custody following their arrest, but

counsel told us at oral argument that they were not de-

tained.)

With the entire McHenry County judiciary recused,

Judge Joseph McGraw was brought in from Winnebago

County to preside over the cases. The complaint alleges that

McQueen and the investigators suppressed exculpatory evi-

dence that would have persuaded Tonigan to drop the pros-

ecution. In March and August 2011, the cases were separate-

ly tried to the court. Judge McGraw acquitted the defendants

of all charges.

This action for damages followed in January 2012. Bian-

chi, Synek, Salgado, and McCleary sued Tonigan, McQueen,

Quest, and five individual Quest investigators, 3 alleging that

they committed various federal constitutional torts.

The judge dismissed the first amended complaint based

on absolute and qualified immunity but allowed the plain-

tiffs a second opportunity to replead if they thought they

could overcome the obstacles the judge had identified in his

dismissal order. As we’ve noted, Tonigan then settled with

the plaintiffs; the latest iteration of the complaint depicts him

as an unsuspecting tool of McQueen and the Quest investi-

gators. The plaintiffs allege that the remaining defendants

violated their rights under the Due Process Clause, the

Fourth Amendment, and the First Amendment. The com-

plaint also includes state-law claims for malicious prosecu-

3 The Quest investigators are Robert Scigalski, Daniel Jerger, James Reil-

ly, Patrick Hanretty, and Richard Stilling.

No. 14-1635 9

tion and intentional infliction of emotional distress. All

counts contain substantive and conspiracy components.

Ruling on a renewed motion to dismiss, the judge held

that the latest version of the complaint suffered from the

same defects as the earlier ones and dismissed the federal

claims with prejudice. The judge relinquished jurisdiction

over the state-law claims, dismissing them without prejudice

to refiling in state court. See 28 U.S.C. § 1367(c)(3). This ap-

peal followed.

II. Discussion

The plaintiffs’ pursuit of a damages remedy under § 1983

encountered two immediate obstacles: absolute prosecutori-

al immunity and qualified immunity. Prosecutors are abso-

lutely immune from liability for damages under § 1983 for

conduct that is functionally prosecutorial; this immunity is

understood to broadly cover all conduct associated with the

judicial phase of the criminal process. See Van de Kamp v.

Goldstein, 555 U.S. 335, 341–43 (2009); Burns v. Reed, 500 U.S.

478, 486 (1991); Imbler v. Pachtman, 424 U.S. 409, 430–31

(1976). Police, law-enforcement investigators, and prosecu-

tors acting in an investigative capacity may claim only quali-

fied immunity, which covers “conduct that ‘does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Whitlock v.

Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012) (quoting Har-

low v. Fitzgerald, 457 U.S. 800, 818 (1982)).

This appeal turns entirely on the applicability of these

two forms of immunity. We review the district court’s deci-

sion de novo. Chasensky v. Walker, 740 F.3d 1088, 1093 (7th

Cir. 2014); Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012).

10 No. 14-1635

A. Absolute Immunity

McQueen is protected by absolute immunity to the extent

that the claims against him are premised on his conduct as a

prosecutor. The district judge ruled that absolute immunity

protects McQueen in part. McQueen argues that he is pro-

tected in full. The plaintiffs say absolute immunity doesn’t

apply at all because McQueen wasn’t really acting as a prose-

cutor but instead was a private lawyer who was merely as-

sisting a court-appointed special prosecutor. We think the

district court got it right.

1. Was McQueen a Prosecutor?

The plaintiffs argue that although McQueen “held him-

self out” as a criminal prosecutor, he wasn’t actually a prose-

cutor under the relevant state law. In their view the control-

ling statute—55 ILL. COMP. STAT. 5/3-9008—permits only one

special prosecutor, and Judge Graham named Tonigan.

This argument is hard to take seriously. On its face the

statute contains no numeric limitation. Indeed it refers to

“[a]ny attorney appointed for any reason under this Section,”

who by virtue of the court’s appointment shall “possess all

the powers and discharge all the duties of a regularly elected

State’s attorney.” Id. § 5/3-9008(b) (emphasis added).

Judge Graham’s September 18, 2009 appointment order

cited this statutory authority and appointed “Attorney

Thomas K. McQueen” to “assist the specially appointed

prosecutor, Henry C. Tonigan, III, as directed by him on all

matters relative to this case.” If there’s any ambiguity here

(and we don’t see any), Judge Graham’s October 1, 2010 or-

der expanding the investigation specifically refers to both

Tonigan and McQueen as “Special State’s Attorneys.”

No. 14-1635 11

If more were needed, we note that the Illinois Appellate

Court didn’t see any relevant distinction between Tonigan

and McQueen; it recognized both men as special prosecu-

tors. Ruling on a question about their compensation, the ap-

pellate court wrote as follows: “Tonigan was appointed as a

special prosecutor, and McQueen was appointed as an assis-

tant to the special prosecutor. Throughout this order, we re-

fer to them jointly as Special Prosecutors.” In re Appointment

of a Special Prosecutor, Nos. 2-12-0318, et al., 2012 WL 6969007,

at *1 n.1 (Ill. App. Ct. Sept. 25, 2012). The court went on to

affirm the circuit court’s decision to pay McQueen and To-

nigan the same hourly rate for their work.

In the teeth of the statutory language and this evidence,

the plaintiffs insist that the position of “special assistant

state’s attorney” simply “does not exist.” For support they

cite People v. Woodall, 777 N.E.2d 1014, 1019 (Ill. App. Ct.

2002), but that case isn’t on point. Woodall concerned the sta-

tus of special state’s attorneys who were deputized by other

prosecutors, not appointed by the court under section 9008.

See id. at 1017 (“None of the three Agency attorneys were

appointed by court order to perform as special prosecu-

tors.”). That case has no bearing on whether section 9008

permits the court to appoint more than one special state’s

attorney. It plainly does. And Judge Graham plainly ap-

pointed two special prosecutors, Tonigan and McQueen.

The plaintiffs also argue that McQueen wasn’t really a

prosecutor because his appointment was procured by fraud

and is therefore void. This argument is directed at the Octo-

ber 1, 2010 order, which the plaintiffs claim “was obtained

solely through the perjured petition of McQueen in which he

intentionally presented Judge Graham with evidence that he

12 No. 14-1635

fabricated in order to fraudulently obtain the authority to

investigate and prosecute Bianchi and Salgado.”

But Judge Graham appointed McQueen by order dated

September 18, 2009. The October 2010 order—the one the

plaintiffs say was procured by fraud—merely expanded the

scope of the investigation.

2. The Scope of Prosecutorial Immunity

So McQueen was a prosecutor. The extent to which he is

protected by absolute prosecutorial immunity depends on

the type of work he performed and the factual premises of

the plaintiffs’ claims. A prosecutor only enjoys absolute im-

munity insofar as he is “act[ing] within the scope of his

prosecutorial duties.” Imbler v. Pachtman, 424 U.S. 409, 420

(1976). The inquiry requires a “functional approach.” Rehberg

v. Paulk, 132 S. Ct. 1497, 1503 (2012). That is, we “look[] to the

nature of the function performed.” Buckley v. Fitzsimmons,

509 U.S. 259, 269 (1993) (quotation marks omitted). But abso-

lute prosecutorial immunity is not restricted to what goes on

in the courtroom: “[T]he duties of the prosecutor in his role

as advocate for the State involve actions preliminary to the

initiation of a prosecution and actions apart from the court-

room.” Imbler, 424 U.S. at 431 n.33.

More particularly, the immunity encompasses quintes-

sentially prosecutorial functions like “an out-of-court ‘effort

to control the presentation of [a] witness’ testimony,’”

Buckley, 509 U.S. at 272–73 (quoting Imbler, 424 U.S. at 430

n.32), and “acts undertaken by a prosecutor in preparing for

the initiation of judicial proceedings or for trial,” id. at 273.

These include “the professional evaluation of the evidence

assembled by the police and appropriate preparation for its

presentation at trial or before a grand jury after a decision to seek

No. 14-1635 13

indictment has been made.” Id. (emphasis added).

At the other end of the spectrum, a prosecutor is not ab-

solutely immune for acts that “go beyond the strictly prose-

cutorial to include investigation.” Fields v. Wharrie

(“Fields II”), 740 F.3d 1107, 1111 (7th Cir. 2014) (citing

Buckley, 509 U.S. at 275–76)). A prosecutor acting in an inves-

tigative capacity may claim only the same qualified immuni-

ty that protects police officers and other law-enforcement

investigators. Id.

With this background in mind, it’s clear that absolute

immunity knocks out a large part of the case against

McQueen—most notably the claims premised on allegations

that McQueen presented false statements to the grand jury

and at trial. Still, some of the allegations cover conduct that

stretches back to the investigative period before McQueen

was engaged in what could reasonably be called prosecuto-

rial advocacy. The complaint contains allegations of evi-

dence fabrication and other chicanery months before the

grand jury was empaneled.

The district judge observed that many of these allega-

tions are vague and alleged only very generally and “as to a

large window of time (October 2009–August 2010).” They

are indeed vague (e.g., “McQueen personally interviewed

individuals and also directed [Quest] to conduct certain in-

terviews for the purpose of manufacturing and fabricating

evidence.”). They’re also general (e.g., “McQueen and

[Quest] manufactured evidence and fabricated inculpatory

witness statements against Bianchi and other [State’s Attor-

ney’s Office] employees.”). But these weaknesses do not af-

fect the scope of McQueen’s absolute immunity. We agree

with the judge that McQueen is not absolutely immune for

14 No. 14-1635

his investigative conduct in the months before the grand jury

was convened.

But he—and the Quest defendants—remain protected by

qualified immunity.

B. Qualified Immunity

Qualified-immunity doctrine holds that “government of-

ficials are not subject to damages liability for the perfor-

mance of their discretionary functions when ‘their conduct

does not violate clearly established statutory or constitution-

al rights of which a reasonable person would have known.’”

Buckley, 509 U.S. at 268 (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “[T]wo central questions must be addressed

in the course of determining whether qualified immunity is

available: whether the plaintiff has alleged a deprivation of a

constitutional right at all, and whether the right at issue was

clearly established at the time and under the circumstances

presented.” Whitlock, 682 F.3d at 580.

The complaint alleges claims for violation of (1) due pro-

cess (evidence fabrication and breach of the Brady duty to

disclose exculpatory evidence); (2) the First Amendment (for

political retaliation); and (3) the Fourth Amendment (for

false arrest). Qualified immunity bars them all.

1. Due Process/Evidence Fabrication

Allegations of evidence fabrication may state a colorable

due-process claim in the wake of our decisions in Whitlock

and Fields II. See id. at 580–82 (holding that a prosecutor’s

fabrication of evidence while acting as an investigator is not

covered by qualified immunity); Fields II, 740 F.3d at 1114–

15. But an act of evidence fabrication doesn’t implicate due-

process rights unless the fabricated evidence “is later used to

No. 14-1635 15

deprive the [criminal] defendant of her liberty in some way.”

Whitlock, 682 F.3d at 580. A deprivation of liberty is a neces-

sary element of a due-process claim premised on allegations

of evidence fabrication. “[I]f an officer (or investigating

prosecutor) fabricates evidence and puts that fabricated evi-

dence in a drawer, making no further use of it, then the of-

ficer has not violated due process; the action did not cause

an infringement of anyone’s liberty interest.” Id. at 582 (cit-

ing Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994)).

Bianchi and his colleagues suffered no deprivation of lib-

erty; they were acquitted at trial. That brings this case

squarely within the holding of Saunders-El v. Rohde, 778 F.3d

556 (7th Cir. 2015). Our decision in Saunders-El reiterated

that “[n]ot every act of evidence fabrication offends one’s

due process rights.” Id. at 560. To explain, we pointed to the

recent case of Alexander v. McKinney, 692 F.3d 553 (7th Cir.

2012). Alexander involved an evidence-fabrication claim by a

plaintiff who was arrested, immediately released on bond,

and found not guilty at trial. Id. at 555–57. Following his ac-

quittal, he sued the prosecutor and investigators, alleging

that they conspired “to manufacture false evidence and

bring trumped-up charges” in violation of his right to due

process. Id. at 554. We held in Alexander that the plaintiff’s

acquittal foreclosed any due-process claim. See id. at 557. In-

deed, we said “[i]t would be anomalous to hold that attend-

ing a trial deprives a criminal defendant of liberty without

due process of law, when the purpose of trial is to effectuate

due process.” Id. at 557 n.2.

The same result followed in Saunders-El. We held that be-

cause “Saunders-El [was] released on bond following his ar-

rest and acquitted at trial, [his case] falls squarely within our

16 No. 14-1635

holding in Alexander, and … [he] cannot make out an evi-

dence fabrication-based due process violation.” 778 F.3d at

561. We explained that “due process is not implicated when,

as here, the defendant is released on bond following his ar-

rest and acquitted at trial.” Id. at 558.

Saunders-El and Alexander foreclose the evidence-

fabrication claim alleged in this case. Because the plaintiffs

suffered no liberty deprivation, they suffered no due-process

violation. When pressed on this point at oral argument, the

plaintiffs’ attorney conceded the controlling force of

Saunders-El and grudgingly accepted the impossibility of

prevailing on this claim. So even if acts of evidence fabrica-

tion could be proved, qualified immunity applies.

2. Due Process/Brady

The complaint states a separate due-process claim based

on alleged violations of the Brady duty to disclose material

exculpatory evidence. This claim too runs into difficulty for

a similar reason: A violation of Brady requires a showing of

prejudice, which can’t be made here because the plaintiffs

were acquitted.

As the Supreme Court has explained,

[T]he term “Brady violation” is sometimes used

to refer to any breach of the broad obligation to

disclose exculpatory evidence—that is, to any

suppression of so-called “Brady material”—

although, strictly speaking, there is never a real

“Brady violation” unless the nondisclosure was

so serious that there is a reasonable probability

that the suppressed evidence would have pro-

duced a different verdict.

No. 14-1635 17

Stricker v. Greene, 527 U.S. 263, 281 (1999). The Court suc-

cinctly elaborated the point, saying “[t]here are three com-

ponents of a true Brady violation: The evidence at issue must

be favorable to the accused, either because it is exculpatory,

or because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued.” Id. at 281–82.

Accordingly, we’ve explained that it’s “doubtful … that

an acquitted defendant can ever establish the requisite prej-

udice for a Brady violation.” Carvajal v. Dominguez, 542 F.3d

561, 570 (7th Cir. 2008). The Sixth, Tenth, and Eleventh Cir-

cuits have definitively held that an acquittal extinguishes a

Brady claim. 4 So even assuming the truth of the allegations

about evidence suppression, no Brady violation occurred be-

cause the plaintiffs suffered no prejudice. Qualified immuni-

ty bars this claim too. (Indeed, absolute immunity bars the

Brady claim against McQueen.)

3. First Amendment Retaliation

Bianchi alleges that McQueen and the Quest investiga-

tors pursued this prosecution in retaliation for his decision

to seek and hold public office, and this politically motivated

retaliation violated his First Amendment rights. Synek joins

him in this claim. But they haven’t pleaded plausible allega-

tions that McQueen and the investigators harbored retaliato-

ry animus or that a causal connection between the retaliatory

motive and the claimed injury exists.

To succeed on a political-retaliation claim, a “plaintiff

4See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999); Flores v. Satz,

137 F.3d 1275, 1278 (11th Cir. 1998); McCune v. City of Grand Rapids,

842 F.2d 903, 907 (6th Cir. 1988).

18 No. 14-1635

must show a causal connection between a defendant’s retali-

atory animus and subsequent injury in any sort of retaliation

action.” Hartman v. Moore, 547 U.S. 250, 259 (2006). Even if

retaliatory animus can be shown, the retaliation must be the

cause-in-fact of the claimed injury. See Thayer v. Chiczewski,

705 F.3d 237, 252 (7th Cir. 2012) (“If retaliation is not the but-

for cause of the arrest, ‘the claim fails for lack of causal con-

nection between unconstitutional motive and resulting

harm, despite proof of some retaliatory animus in the offi-

cial’s mind.’” (quoting Hartman, 547 U.S. at 260)).

The complaint does not come close to plausibly alleging

that McQueen or the investigators harbored retaliatory ani-

mus against Bianchi for seeking and holding office or that

this animus, if it existed, was the cause-in-fact of the alleged

false indictment. At most the complaint alleges that

McQueen and the investigators interviewed Bianchi’s politi-

cal enemies during the course of the investigation. That’s not

enough to support a reasonable inference that they harbored

retaliatory animus or were in cahoots with those who did.

This claim too was properly dismissed.

4. Fourth Amendment/False Arrest

The final claim is one for false arrest in violation of the

Fourth Amendment. The complaint alleges that McQueen

and the investigators fabricated evidence during the investi-

gation, which in turn was used to indict and arrest the plain-

tiffs without probable cause.

The problem with this claim is that it’s not actually one

for false arrest, at least not on the facts alleged here. As the

district judge correctly noted, false arrest “is detention with-

out legal process,” and Bianchi and his colleagues were ar-

rested on warrants that were issued after the grand jury in-

No. 14-1635 19

dicted. That is, they were arrested after and as a consequence of

formal legal process. What the complaint calls a claim for

false arrest is really one for malicious prosecution, which

does not implicate any interests protected by the Fourth

Amendment. (Or at least it does not under existing law;

we’ll have more to say about this in a moment.)

The Supreme Court's decision in Wallace v. Kato is in-

structive on this point. Wallace addressed a statute-of-

limitations question: What is the accrual rule for a Fourth

Amendment claim for arrest without probable cause?

549 U.S. 384, 386–87 (2007). The Court held that the limita-

tions period “begins to run at the time the claimant becomes

detained pursuant to legal process.” Id. at 397. Along the

way to this holding the Court had a lot to say about how to

classify and analyze the different constitutional claims that

might arise from a wrongful arrest and prosecution.

By way of background, the plaintiff in Wallace was ar-

rested without a warrant and without probable cause (or so

he claimed), and was detained and remained in jail pending

trial on a murder charge. Id. at 386–89. He was convicted of

murder and sentenced to 26 years in prison. Id. at 386. When

his conviction was later overturned, he sued the arresting

officers for false arrest in violation of the Fourth Amend-

ment. See id. at 387. The question before the Court was

whether the cause of action accrued “at the time of his ar-

rest … [or] when his conviction was later set aside.” Id. If the

former, the suit was untimely; if the latter, it could proceed.

See id. at 387–88.

The Court began by explaining that a Fourth Amend-

ment false-arrest claim—that is, a claim arising from a war-

rantless arrest without probable cause—is most closely anal-

20 No. 14-1635

ogous to a common-law claim for false imprisonment. Id. at

389. And “[t]he sort of unlawful detention remediable by the

tort of false imprisonment is detention without legal process,”

which “ends once the victim becomes held pursuant to such

[legal] process—when, for example, he is bound over by a

magistrate or arraigned on charges.” Id.

The Court continued: “Thereafter [i.e., after the initiation

of formal legal process], unlawful detention forms part of

the damages for the ‘entirely distinct’ tort of malicious pros-

ecution, which remedies detention accompanied, not by ab-

sence of legal process, but by wrongful institution of legal

process.” Id. at 390 (quoting W. PAGE KEETON, ET AL., PROSSER

AND KEETON ON LAW OF TORTS § 119, at 885–86 (5th ed.

1984)). It follows, the Court said, that

[i]f there is a false arrest claim, damages for

that claim cover the time of detention up until

issuance of process or arraignment, but not

more. From that point on, any damages recov-

erable must be based on a malicious prosecu-

tion claim and on the wrongful use of judicial

process rather than detention itself.

Id. (quoting KEETON, supra, § 119, at 888).

After Wallace we have applied similar boundaries: “Typi-

cally, the scope of a Fourth Amendment claim is limited up

to the point of arraignment, at which point the prosecution is

underway.” Bielanski v. County of Kane, 550 F.3d 632, 638 (7th

Cir. 2008).

Applying this reasoning here, it’s clear that the false-

arrest claim is really one for abuse of the judicial process

(that is, malicious prosecution). The complaint alleges that

No. 14-1635 21

McQueen and the investigators fabricated some of the evi-

dence that was presented to the grand jury to obtain indict-

ments against the plaintiffs, and the indictments in turn led

to the issuance of arrest warrants. Bianchi and his colleagues

were thus arrested pursuant to formal legal process (and then

were immediately released on bond). As a factual and legal

matter, the claim is for malicious prosecution, not false ar-

rest. 5

5 The plaintiffs cite Juriss v. McGowan, 957 F.2d 345 (7th Cir. 1992), as

support for their Fourth Amendment claim. Juriss involved a false-arrest

claim against a police officer who was alleged to have lied to a grand

jury to obtain an indictment against the plaintiff for harboring a fugitive.

Id. at 346–48. The grand jury indicted the plaintiff, an arrest warrant fol-

lowed, and the lying officer arrested her. Id. at 347–48. Two months later

the charge was dropped. Id. at 348. The plaintiff sued the officer for false

arrest in violation of the Fourth Amendment. Id. at 346. Relying on

Malley v. Briggs, 475 U.S. 335, 345 (1986), we held that qualified immunity

did not apply because an officer who engages in deceit to persuade a

judicial officer to issue a warrant is not entitled to rely on either the facial

validity of the warrant or the Leon good-faith exception. Id. at 350–51.

We see two problems with extending Juriss to this case. First, Juriss

involved an actual false arrest: A police officer fraudulently obtained a

warrant and then arrested the plaintiff pursuant to that warrant. The

claim in this case is strictly for abuse of the legal process; the complaint

does not allege that McQueen or the Quest investigators effectuated the

arrests of Bianchi and his colleagues. The second problem is that Juriss

predates Wallace, which more clearly demarcated the lines between the

cognizable constitutional torts in cases alleging wrongful arrest and

prosecution. As we’ve already explained, the arrests at issue in this case

came after and as a consequence of the formal initiation of criminal pro-

ceedings by indictment. Wallace teaches that once formal criminal pro-

ceedings have begun, we’re in the domain of malicious prosecution, not

false arrest. And as a factual matter, the gravamen of the allegations

against McQueen and the investigators is abuse of the formal legal pro-

cess.

22 No. 14-1635

Importantly, the Court in Wallace specifically declined to

address whether a malicious-prosecution claim is ever cog-

nizable as a Fourth Amendment violation remediable under

§ 1983. 549 U.S. at 390 n.2. The plaintiff in Wallace had ex-

pressly abandoned that issue, which was left unresolved in

the Court’s split decision in Albright v. Oliver, 510 U.S. 266,

270–71 (1994) (plurality opinion). 549 U.S. at 390 n.2; see gen-

erally Albright, 510 U.S. at 276–81 (Ginsburg, J., concurring).

Although some circuits have recognized such a claim, see

Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99 (1st Cir. 2013) (col-

lecting cases), this circuit has not, see, e.g., Welton v. Anderson,

770 F.3d 670, 673–75 (7th Cir. 2014); Bielanski, 550 F.3d at 638;

Newsome v. McCabe, 256 F.3d 747, 750–52 (7th Cir. 2001). With

the law this unsettled, qualified immunity applies. 6

Finally, even if this claim were cognizable as a Fourth

Amendment violation, McQueen and the investigators

would still be entitled to qualified immunity. Because the

plaintiffs were immediately released on bond and were nei-

ther seized nor detained, they suffered no Fourth Amend-

ment injury.

So any way you slice it, the district judge was right to

apply the qualified-immunity bar. The Fourth Amendment

6 The Supreme Court has recently granted certiorari to address whether

a claim for malicious prosecution is cognizable under the Fourth

Amendment where the plaintiff alleges that he was held in pretrial de-

tention without probable cause. See Manuel v. City of Joliet, 590 F. App’x

641 (7th Cir. 2015), cert. granted 136 S. Ct. 890 (Jan. 15, 2016) (No. 14-9496).

Manuel will be heard next term. The Court’s decision will not affect this

case; here the plaintiffs were not held in pretrial detention.

No. 14-1635 23

claim was properly dismissed. 7

AFFIRMED.

7 With the federal claims gone, it was entirely appropriate for the judge

to relinquish jurisdiction over the state-law claims and dismiss them

without prejudice. See Sharp Elec. Corp. v. Metro. Life Ins. Co., 578 F.3d 505,

514 (7th Cir. 2009) (“Normally, when all federal claims are dismissed

before trial, the district court should relinquish jurisdiction over pendent

state-law claims … .”).