William Lund v. City of Rockford, Illinois

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19‐1945

WILLIAM LUND,

Plaintiff‐Appellant,

v.

CITY OF ROCKFORD, ILLINOIS,

a municipal corporation;

SEAN WELSH, TIMOTHY CAMPBELL, and

EDDIE TORRANCE,

Defendants‐Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 3:17‐cv‐50035 — Frederick J. Kapala, Judge.

____________________

ARGUED DECEMBER 9, 2019 — DECIDED APRIL 20, 2020

____________________

Before EASTERBROOK, ROVNER, and SCUDDER, Circuit

Judges.

ROVNER, Circuit Judge. William Lund, a reporter, was ar‐

rested in Rockford, Illinois after discovering a police‐run

prostitution sting operation in the course of his news‐gather‐

ing activities. He sued the City and several officers for

2 No. 19‐1945

retaliatory arrest, malicious prosecution and several other al‐

leged invasions of his rights under federal and state law. The

district court granted summary judgment for the defendants.

While Lund’s case was pending, the Supreme Court issued its

decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), which in‐

structs that, in most cases, probable cause to arrest defeats a

claim of retaliatory arrest. Because the police had probable

cause to arrest Lund, Nieves controls, and we affirm the grant

of summary judgment for the defendants.

I.

Lund was a reporter and administrator for the Rockford

Scanner, a news organization that reports on notable events

in the Rockford Area.1 On May 25, 2015, he heard, by way of

a police scanner, of a number of traffic stops in the Midtown

District of Rockford. Because he did not have a driver’s li‐

cense, he rode a motorized bicycle to the area, where he began

taking photographs. He quickly surmised that the police were

operating a prostitution sting operation. After about ten to fif‐

teen minutes photographing the scene, he retreated to an al‐

ley.

In the meantime, a surveillance officer at the scene of the

sting noticed Lund riding his motorized bicycle and taking

photographs, and subsequently radioed the other members of

the sting team to report it. One of the undercover officers

1 The defendants label the Rockford Scanner an “internet blog” and note

that Lund was an unpaid reporter with “no background or education in

journalism.” Brief of Appellees Sean Walsh, Timothy Campbell, and Eddie

Torrance, at 4. We note that First Amendment protection does not depend

on the quality of the news source or the wages of the reporter. The defend‐

ants’ brief also contains many references to Lund’s prior criminal record

which are irrelevant to the matter presently before us.

No. 19‐1945 3

posing as a prostitute also noticed Lund and called another

officer, Officer Sean Welsh, on his cell phone and told him she

was concerned about a man on a motorized bike who was tak‐

ing pictures of her. Officer Welsh and Officer Timothy Camp‐

bell both knew of Lund and were familiar with some of his

previous anti‐police speech. Officer Welsh knew that Lund

was a reporter for the Rockford Scanner.

Officers Campbell and Welsh found Lund in an alley and

Campbell informed Lund that he had to “move on.” Lund

asked if he was breaking any laws, and Campbell informed

him that he was not, but that if he did not leave as requested,

his continued presence would constitute obstruction of a po‐

lice detail and they would arrest him. Lund started the engine

of his bicycle, and as he rode away, he called out to the un‐

dercover officers—loudly, over the noise of the engine—

“goodbye officers.” At that moment, Welsh and Campbell

made the decision to arrest Lund for obstructing a police in‐

vestigation. They had concerns that, because of his previous

animus toward the Rockford police, he might post pictures on

social media while the sting operation was still ongoing

which, they assumed, would create a danger for the under‐

cover officers who were unarmed in a high crime area. Welsh

and Lund followed Lund for three blocks, the second of which

Lund travelled southbound on a one‐way‐street which ran

northbound. After one more block of following Lund, the of‐

ficers stopped and then arrested him for driving the wrong

way on a one‐way street, operating a vehicle without insur‐

ance, resisting or obstructing a police officer, felony aggra‐

vated driving on a revoked license, and operating a motor ve‐

hicle without a valid drivers’ license.

4 No. 19‐1945

Under Illinois law, a motorized bicycle is considered a mo‐

tor vehicle if it can propel a 170‐pound person more than 20

miles per hour or more on a level surface. 625 ILCS §§ 5/1‐

140.15, 1‐146. Conveniently, Lund weighs approximately 170

pounds, and the officers reported that they were following di‐

rectly behind Lund, matching his speed at 24 miles per hour.

In the district court, Lund had argued that his motor had been

modified so that it could only reach a maximum speed of 20

miles per hour. The district court held that “no reasonable

jury could conclude that defendants did not have a basis for

believing, to a reasonable degree of certainty, that plaintiff’s

bicycle was travelling fast enough to violate § 11‐708.” R. 71

at 4. See also 625 ILCS § 5/11‐708(b) (“Upon a roadway so des‐

ignated for one‐way traffic, a vehicle shall be driven only in

the direction designated at all or such times as shall be indi‐

cated by official traffic control devices.”). On appeal, Lund ap‐

pears to have abandoned arguments about the bicycle’s status

as a motor vehicle under Illinois law.2

Following the arrest, Officer Eddie Torrance put together

a list of all of the people who were arrested during the sting

and gave it to his lieutenant. From there, someone else, who

has not been identified, used the list to prepare a press release

which became the source of news stories that listed Lund’s

name as an arrestee during a prostitution sting. Torrance

2 In his statement of the case, Lund stated that he “rode a low‐powered

gasoline engine bicycle to the area,” and that it could travel no faster than

19 to 20 miles per hour, thus “meeting the definition of a low‐powered

bicycle under Illinois law.” Brief of Plaintiff‐Appellant at 2. The argument

section of his brief, however, does not challenge the district court’s finding

that “no reasonable jury could conclude that defendants did not have a

basis for believing, to a reasonable degree of certainty, that plaintiff’s bi‐

cycle was travelling fast enough to violate § 11‐708(b).” R. 71 at 4.

No. 19‐1945 5

testified that publishing this type of arrest information is a

form of “public shaming” that the department uses to dis‐

suade people from soliciting prostitution. (R. 63‐4, Torrance

Dep. 35).

The following year, Lund filed a motion to dismiss all of

the charges for lack of probable cause. On the day that the

court scheduled to hear the motion, the state’s attorney en‐

tered a nolle prosequi order, dismissing all of the charges.

Lund sued the officers and the City of Rockford for false

arrest, unreasonable search and seizure, failure to intervene,

First Amendment retaliation, conspiracy, and malicious pros‐

ecution—all under §1983—and for malicious prosecution un‐

der Illinois law. Lund appeals only the entry of summary

judgment for the defendants with respect to two claims: the

federal First Amendment retaliation claim, and malicious

prosecution under Illinois common law—decisions we re‐

view de novo.3 Youngman v. Peoria Cty., 947 F.3d 1037, 1041

(7th Cir. 2020).

3 Although Lund sued the City of Rockford, the City did not file a brief in

this case. This court issued a Rule to Show Cause, ordering the City to

“show cause … why this appeal should not be submitted to the Court for

decision without a brief and without oral argument by the appellee.” App.

R. 17. In response, the City stated that “[t]he Plaintiff‐Appellant has no

direct claims against the City. Plaintiff’s claims against the City sound

only in vicarious liability and indemnification.” App. R. 19 at 1. In lieu of

submitting its own brief, the City asked to join the briefs of the individual

defendants. Id. at 2. This court denied that request as untimely. App. R.

20.

6 No. 19‐1945

II.

A. First Amendment retaliation

1. Retaliatory arrest and probable cause

Lund asserts that the district court errantly granted sum‐

mary judgment on his First Amendment retaliation claim, ar‐

guing that he presented objective evidence that the defendant

officers abused their power by suppressing and punishing

Lund’s speech. In other words, Lund claims that the officers

arrested him in retaliation for speech and news‐gathering ac‐

tivities protected by the First Amendment. Lund’s concerns

are not without basis. Nearly every authoring justice of the

latest Supreme Court opinion on retaliatory arrest acknowl‐

edged “’a risk that some police officers may exploit the arrest

power as a means of suppressing speech.’” Nieves v. Bartlett,

139 S. Ct. 1715, 1727 (2019) (quoting Lozman v. City of Riviera

Beach, Fla., 138 S. Ct. 1945, 1953–54 (2018)). The majority opin‐

ion states:

For example, at many intersections, jaywalking

is endemic but rarely results in arrest. If an indi‐

vidual who has been vocally complaining about

police conduct is arrested for jaywalking at such

an intersection, it would seem insufficiently

protective of First Amendment rights to dismiss

the individual’s retaliatory arrest claim on the

ground that there was undoubted probable

cause for the arrest.

Id. at 1727. See also id. at 1732 (Gorsuch, J. concurring in part

and dissenting in part) (“No one doubts that officers regularly

choose against making arrests, especially for minor crimes,

even when they possess probable cause. So the presence of

No. 19‐1945 7

probable cause does not necessarily negate the possibility that

an arrest was caused by unlawful First Amendment retalia‐

tion.”); id. at 1734 (Ginsburg, J. concurring in the judgment in

part, and dissenting in part) (“Arrest authority, as several de‐

cisions indicate, can be abused to disrupt the exercise of First

Amendment speech and press rights.”); id. at 1736 (So‐

tomayor, J. dissenting) (“[S]ome arrests are demonstrably re‐

taliation for protected speech, notwithstanding probable

cause of some coincidental infraction.”); but see id. at 1728

(Thomas, J. dissenting) (“I do not agree that ‘a narrow quali‐

fication is warranted for circumstances where officers have

probable cause to make arrests, but typically exercise their

discretion not to do so.’”).

Even while expressing concerns about abuse of police

power for retaliatory arrests, the Nieves Court answered the

only question posed in this case: Does “probable cause to

make an arrest defeat[] a claim that the arrest was in retalia‐

tion for speech protected by the First Amendment?” Id. at

1721. The answer, the Supreme Court held (just thirty‐nine

days after the district court entered its opinion in this case), is

“yes.” “The plaintiff pressing a retaliatory arrest claim must

plead and prove the absence of probable cause for the arrest.”

Id. at 1724. This answer definitively resolves the question pre‐

sented by Lund in this case. At the time of Lund’s arrest, the

officers had probable cause to arrest him for, at a minimum,

driving a motorized vehicle the wrong way on a one‐way

street. Lund does not challenge this finding. Therefore his

claim for retaliatory arrest fails.

All of the other standards and tests that Lund describes

and wishes to apply are inapplicable here, as the Nieves deci‐

sion makes clear that (except in a very narrow exception that

8 No. 19‐1945

we will discuss below, and which does not apply here), prob‐

able cause defeats a claim of retaliatory arrest. Id. at 1724. No

further analysis of causation, motive, or injury is required.

Nieves has left nothing further to discuss.

All of this presupposes, of course, that we can apply the

holding of Nieves to a case that was still in the pipeline when

the Supreme Court handed down the decision. The rule on

retroactivity instructs that when the Supreme Court

applies a rule of federal law to the parties before

it, that rule is the controlling interpretation of

federal law and must be given full retroactive

effect in all cases still open on direct review and

as to all events, regardless of whether such

events predate or postdate our announcement

of the rule.

Harper v. Virginia Depʹt of Taxation, 509 U.S. 86, 97 (1993). The

Court in Nieves applied the rule to the parties before it (see id.

at 1728), so the ordinary rules of retroactive application come

into play, and we apply the holding of Nieves to the matter

before us.

Lund, however, proposes that his case squeezes through

the crack of an opening that Nieves left ajar. The Court de‐

scribed that opening as follows:

Although probable cause should generally de‐

feat a retaliatory arrest claim, a narrow qualifi‐

cation is warranted for circumstances where of‐

ficers have probable cause to make arrests, but

typically exercise their discretion not to do so.

In such cases, an unyielding requirement to

show the absence of probable cause could pose

No. 19‐1945 9

“a risk that some police officers may exploit the

arrest power as a means of suppressing speech.”

Nieves, 139 S. Ct. at 1727 (quoting Lozman, 138 S. Ct. at 1953).

As an example, the Nieves majority described a hypothetical

in which a police officer uses a jaywalking arrest to retaliate

against a rabble‐rouser complaining about police conduct,

when other jaywalkers are almost never subject to arrest. Id.

at 1727. Lund asserts that his arrest for driving a vehicle the

wrong way down a one‐way street was, in fact, retaliation for

his protected First Amendment journalistic activity. But to

make this argument, Lund would have to present “objective

evidence that he was arrested when otherwise similarly situ‐

ated individuals not engaged in the same sort of protected

speech had not been.” Id. at 1727. That language in Nieves im‐

plies that Lund would have to present objective evidence that

the Rockford police rarely, if ever, arrest citizens who drive

vehicles or, perhaps more specifically, motorized bicycles the

wrong way down one‐way streets. It is possible; however,

Nieves has left open the possibility that Lund could demon‐

strate objective evidence of retaliation in some other way.

Lund urges us to take the view of the concurring and dis‐

senting Justice Gorsuch and dissenting Justice Sotomayor and

apply the majority’s view of the exception “commonsensi‐

cally.” See id. at 1734 (Gorsuch, J. concurring in part and dis‐

senting in part); id. at 1741 (Sotomayor, J. dissenting). In his

separate opinion, Justice Gorsuch opined that the majority

opinion did not adopt a rigid rule “that First Amendment re‐

taliatory arrest plaintiffs who can’t prove the absence of prob‐

able cause must produce ‘comparison‐based evidence’ in

every case.” Id. at 1734 (Gorsuch, J. concurring in part and dis‐

senting in part) (citing Sotomayor, J. id. at 1737).

10 No. 19‐1945

I do not understand the majority as going that

far. The only citation the majority offers in sup‐

port of its new standard is Armstrong, which ex‐

pressly left open the possibility that other kinds

of evidence, such as admissions, might be

enough to allow a claim to proceed. Given that,

I retain hope that lower courts will apply to‐

day’s decision “commonsensically,” post, at

1741–1742, and with sensitivity to the compet‐

ing arguments about whether and how Arm‐

strong might apply in the arrest setting.

Id. at 1734.

We agree with Justice Gorsuch’s interpretation of the ma‐

jority opinion in Nieves; the majority does not appear to be

adopting a rigid rule that requires, in all cases, a particular

form of comparison‐based evidence. Nieves requires that a

plaintiff “present objective evidence that he was arrested

when otherwise similarly situated individuals not engaged in

the same sort of protected speech had not been.” Id. at 1727.

We cannot, however, predict in advance every factual sce‐

nario which might meet the Court’s “objective evidence”

standard. We must consider each set of facts as it comes to us,

and in assessing whether the facts supply objective proof of

retaliatory treatment, we surmise that Justices Gorsuch and

Sotomayor are correct—common sense must prevail.

Regardless of how we interpret the requirements of Nieves,

however, Lund has not presented sufficient objective evi‐

dence of retaliation that would allow him to slip into the nar‐

row exception to the rule which dictates that probable cause

to arrest defeats a retaliatory arrest claim. Lund has made no

attempt to present objective evidence showing that the police

No. 19‐1945 11

rarely make arrests for driving the wrong way on a one‐way

street, or that other similarly situated persons were not ar‐

rested, and he has not demonstrated retaliation in some other

way.

The only evidence Lund offers is what he labels as an “ad‐

mission” by Welsh and Campbell that they decided to arrest

Lund for obstruction “based solely on his newsgathering ac‐

tivities,” and because he said, “goodbye officers.” See Brief of

Plaintiff‐Appellant at 4–5, 9. To support this claim, Lund cites

to deposition testimony that purports to be an admission by

Officers Welsh and Campbell that they arrested Lund

“solely” for these activities. Id. at 9. But Lund has not pre‐

sented the full picture of the relevant testimony. For example,

he stops his citation to Officer Campbell’s testimony too soon.

The officers make clear that they initially made the decision

to stop and possibly arrest Lund not solely because of his First

Amendment activity, but because they had concluded that his

First Amendment activity (news gathering activity and yell‐

ing “goodbye officers) was obstructing or was about to ob‐

struct their law enforcement investigation. Lund cites only to

the first two question‐and‐answer exchanges below in Officer

Campbell’s deposition, but had he cited to a longer excerpt,

we would see that the officers did not decide to arrest Lund

for saying “goodbye officers,” but rather, under the totality of

the circumstances, they believed at the time that Lund’s

speech compromised or obstructed a police investigation:

Q. So the reason you guys decided to stop him

after what we see in the video here is the

statement he made “Goodbye, Officers,”

correct?

A. Yes.

12 No. 19‐1945

Q. Was there any other crimes that you noted

prior to him—or strike that —from where

we see here until he says “Goodbye, Offic‐

ers”?

A. No.

Q. Is there any other legal justification that you

base this stop on Mr. Lund other than him

saying “Goodbye, Officers”?

A. I think you can take the whole totality of eve‐

rything together towards the obstruction

charge, yes.

Q. That being him taking the photos?

A. The photos and the videos compromising—

potentially compromising the detail and the

safety of the officers, yes.

Q. Do you know whether or not you can base

probable cause on actions that aren’t crimes?

A. It’s called totality of the circumstances. You

can take somebody’s actions and things that

they’re doing and put it all together.

R. 63‐5, Campbell dep. 65.

In fact, Officers Campbell and Welsh repeatedly described

their initial decision to pursue Lund in order to arrest him as

one based on Lund’s compromising, obstructing, or impeding

the investigatory detail, and out of concern for the safety of

the undercover officers. See R. 63‐5, Welsh dep. 74–75 (“there

was concerns that he was interfering with our detail and our

investigation.”); id. 80–81 (“based on the fact we were con‐

cerned for the safety of the undercover officers. … [W]e grew

No. 19‐1945 13

very concerned that he was at this time now impeding in the

investigation. So Officer Campbell and I made the decision to

go arrest Mr. Lund for obstructing an investigation.”); id. at

82–83 (“And so based on those feelings and that concern that

… he had the potential that he could post these pictures on

social media, which put those two officers in jeopardy.”); id.

at 91–92 (“placed under arrest for … [o]bstructing a police in‐

vestigation, interfering with a police investigation.”); id. at 94–

95 (“He hindered the investigation because we had to go and

address what he was doing because of the concerns of the un‐

dercover officers. So we had to put the operation on hold to

address his activities.”); id. at 103–104 (“obstruction … was

the initial reason why we went to go stop him.”), id. at 131–

132 (“Q: Oh, he was impeding? A: Yeah … [w]e had to take

time out of our detail to come and address his activities and

what he was doing. We had to stop what we were doing in

order to address the concerns of the undercover officer on‐

scene.”), id. at 155 (“ I was worried for the safety of the officers

that were on the street corner posing as prostitutes.”); R. 63‐3,

Campbell Dep. 35–37 (The officers asked Lund to leave “[t]o

protect the integrity of the detail and the safety of the … un‐

dercover officers.”); id. at 41 (“Everything put together, yes, I

believe it did at that point constitute obstruction. … [A]t that

point my opinion was that Mr. Lund was attempting to com‐

promise our detail.”); id. at 42–43 (“The safety of the officers I

believe could have been brought into question. … I believe his

actions were an attempt to obstruct what we were doing.”);

id. at 51–52 (“Due to [Lund’s] circling the area on his motor‐

ized bike and him stopping several times to photograph and

record the officers, we felt his activities were compromising

to the success of our detail. … [H]is presence was interfering

with our detail.”).

14 No. 19‐1945

We present these examples only to counter Lund’s claim

that the officers “admitted” that they arrested Lund solely for

his First Amendment activity. They did not. We take no posi‐

tion as to whether Lund’s behavior met the criteria for ob‐

struction of justice, and we need not. The officers’ reasonable

belief that Lund’s activities were obstructing, or might come

to obstruct, their investigation was sufficient for them to stop

Lund and ask him to move along. Although First Amendment

activity is generally protected, it loses its protection when it

violates the law. See generally Brandenburg v. Ohio, 395 U.S.

444, 447 (1969). And generally applicable laws, like those that

prohibit interference with a police investigation, “do not of‐

fend the First Amendment simply because their enforcement

against the press has incidental effects on its ability to gather

and report the news.” Cohen v. Cowles Media Co., 501 U.S. 663,

669 (1991). It is possible, of course, that based on Lund’s ac‐

tivities, a court might conclude that no reasonable officer

could have construed his actions as constituting obstruction

of justice. After all, reporters are free to take photos and vid‐

eos of what they see on a public street, even when it involves

police activity. See 720 ILCS § 5/14‐2(e). See also Am. Civil Lib‐

erties Union of Illinois v. Alvarez, 679 F.3d 583, 608 (7th Cir.

2012). Again, however, we note that we need not delve into

this question. The officers had a clear right to stop Lund, ques‐

tion him, and direct him to cease doing anything that placed

their undercover investigation in jeopardy.

We need not address the question of whether the officers

had probable cause to arrest Lund for obstruction of justice,

because whatever the officers reasonably believed about

Lund’s activities, and whether those activities in fact consti‐

tuted obstruction of justice, did not matter in the end. Lund

was not arrested until after his clear violation of an Illinois

No. 19‐1945 15

vehicular law—driving against the traffic pattern on a one‐

way street. See 625 ILCS § 5/11‐708. And Lund has not argued

in this court that the officers did not have probable cause to

arrest him for that offense.

Lund has not supplied any “objective evidence” that “sim‐

ilarly situated individuals not engaged in the same sort of

protected speech” have not been and would not be arrested

for driving the wrong way down a one‐way street. Nieves, 139

S. Ct. at 1727. Although we might all agree that jaywalking—

the example given in Nieves—is the type of law‐breaking to‐

ward which most officers would turn a blind eye, it is less

clear that officers routinely give a pass to persons driving mo‐

torized vehicles the wrong way on one‐way streets, an action

that could have fatal consequences. And although Lund, in

his brief, describes his behavior as riding or driving a “bicy‐

cle,” Illinois law makes a distinction between low‐powered

bicycles and motorized vehicles (625 ILCS §§ 5/1‐140.15,

1‐146), and Lund has not challenged the district court’s find‐

ing that the officers had a reasonable basis for believing, to a

reasonable degree of certainty that Lund was operating a mo‐

torized vehicle under Illinois law. R. 71 at 4. Lund has pre‐

sented no evidence that this behavior would ordinarily get a

pass from police officers, and common sense does not supply

an obvious answer.

In sum, it is clear that the officers had probable cause to

arrest Lund for violating an Illinois traffic law. Probable cause

defeats a retaliatory arrest claim in all but the most narrow of

exceptions. Nieves, 139 S. Ct. at 1727. Lund has offered no ev‐

idence that his actions or arrest fall within that narrow excep‐

tion.

16 No. 19‐1945

2. Qualified Immunity

As we have noted, the rule of Nieves applies retroac‐

tively—if a plaintiff cannot plead and prove the absence of

probable cause, the retaliatory arrest claim fails. Id. at 1725.

But even if Nieves did not apply retroactively, Lund still could

not prevail, as the defendant officers were entitled to qualified

immunity.

Police officers are entitled to qualified immunity under

section 1983 unless they “violated a statutory or constitutional

right that was clearly established at the time of the challenged

conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012).

“’Clearly established’ means that, at the time of the officer’s

conduct, the law was ‘sufficiently clear’ that every ‘reasonable

official would understand that what he is doing’ is unlawful.”

D.C. v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al‐

Kidd, 563 U.S. 731, 741 (2011)).

Three years before Lund’s arrest, the Supreme Court was

asked to decide two questions: “whether a First Amendment

retaliatory arrest claim may lie despite the presence of proba‐

ble cause to support the arrest,” and second, “whether clearly

established law at the time of [the plaintiff’s] arrest so held.”

Reichle, 566 U.S. at 663. The Court passed on the first question,

(but, as we just noted, answered it seven years later in Nieves,

as we described above). The Court, in 2012, did, however, de‐

cide the second question and determined that at the time of

the defendant’s arrest in Reichle, “it was not clearly estab‐

lished that an arrest supported by probable cause could vio‐

late the First Amendment.” Id. at 663. See also Thayer v.

Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012) (granting qualified

immunity to the arresting officer because “neither our circuit

nor the Supreme Court has “’recognized a First Amendment

No. 19‐1945 17

right to be free from a retaliatory arrest that is supported by

probable cause.’”) (quoting Reichle, 566 U.S. at 664–65).

At the time of Lund’s arrest, therefore, the Supreme Court

had specifically stated that it had “never recognized a First

Amendment right to be free from a retaliatory arrest that is

supported by probable cause.” Id. at 664. This forecloses an

argument that any reasonable officer would have understood

that the First Amendment precluded Lund’s arrest. In short,

no matter whether we apply the substantive holding of Nieves

or look at the qualified immunity question presented in

Reichle, Lund cannot prevail. None of Lund’s other argu‐

ments—including Lund’s arguments about the publication of

his name, the officers’ subjective intent, and causation, among

others—therefore, are relevant.

B. Malicious prosecution

Under Illinois law, to succeed on a malicious prosecution

claim, a plaintiff must prove: “(1) the commencement or con‐

tinuance of an original criminal or civil judicial proceeding by

the defendant; (2) the termination of the proceeding in favor

of the plaintiff; (3) the absence of probable cause for such pro‐

ceeding; (4) the presence of malice; and (5) damages resulting

to the plaintiff.” Swick v. Liautaud, 662 N.E.2d 1238, 1242

(1996). Only the second of these requirements is at issue here.

Approximately eight months after Lund’s arrest, his attor‐

ney filed a motion to dismiss all charges. That same day, the

state’s attorney filed a motion to dismiss all of those same

charges. In response, the court entered a bare nolle prosequi or‐

der which simply stated, “cases dismissed on motion of

state’s attorney.” R. 54‐6. Under Illinois law a nolle prosequi

(meaning “refuse to pursue”) does not dispose of a case on its

18 No. 19‐1945

merits, but merely “reverts the matter to the same condition

which existed before the commencement of the prosecution.”

Swick, 662 N.E.2d at 1242 (quoting People v. Woolsey, 564

N.E.2d 764, 766 (Ill. 1990)). For purposes of a malicious pros‐

ecution action, the plaintiff has the burden to prove that the

nolle prosequi was entered for reasons related to his innocence.

Id. at 1243. “The circumstances surrounding the abandon‐

ment of the criminal proceedings must compel an inference

that there existed a lack of reasonable grounds to pursue the

criminal prosecution.” Id. (emphasis ours). A bare nolle prose‐

qui order, which does not state the reasons behind it, is insuf‐

ficient to establish that the proceedings were terminated in

the plaintiff’s favor. Id.

Despite the bare order, Lund argues that the timing and

circumstances surrounding the entry of a nolle prosequi order

support a finding that the charges were dismissed because the

government lacked “reasonable cause to proceed.” Brief of

Plaintiff‐Appellant at 18–19. Lund points to the fact that the

state’s attorney moved to enter a nolle prosequi order on the

same day that Lund’s criminal defense attorney noticed his

motion to dismiss all of the charges. There are many reasons

why a state’s attorney might choose not to prosecute a case

including, among others, decisions about how to expend lim‐

ited resources, availability of police and other witnesses, and

ease of garnering evidence. Illinois law makes clear that the

burden is on the plaintiff to prove a favorable termination,

and a coincidence in timing on top of a bare use of the nolle

prosequi order does not constitute the sort of proof which

might compel an inference that there existed a lack of reason‐

able grounds to pursue the criminal prosecution. Lund has

not met his burden to demonstrate that the nolle prosequi order

No. 19‐1945 19

in this case was a termination favorable to him, and therefore

his malicious prosecution claim fails.

III.

Because Lund cannot mount either a retaliatory arrest or

malicious prosecution claim, we AFFIRM the district court’s

entry of summary judgment for all defendants.