Opinion

George Rakovich v. Gregory Wade and Darryl Drake, George Rakovich v. Chester Kass

  • 850 F.2d 1180
Court
Court of Appeals for the Seventh Circuit
Filed
Jul 14, 1988
Status
Published
Author
Flaum
On the bench
Bauer, Cummings, Wood, Cudahy, Posner, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne
Cited by
370 cases

Overruled on other grounds by Spiegla v. Hull, 371 F.3d 928 (2004)

stating in' dictum that a retaliatory investigation could be actionable under § 1983 but not analyzing the issue because “[t]he officers [did] not argue[ ] that the amendment [was] inapplicable”

How later courts described this case

  • stating in' dictum that a retaliatory investigation could be actionable under § 1983 but not analyzing the issue because “[t]he officers [did] not argue[ ] that the amendment [was] inapplicable”
  • reversing district court’s denial of the officer’s motion for directed verdict and finding that [c]onsidering the facts of this case, the unlawfulness of the officers’ actions was not ‘apparent.’ We have been unable to find cases ‘closely analogous’ to these facts.”
  • observing that qualified immunity is not limited to summary judgment context, although benefits of immunity lessen as suit progresses to trial, and may be considered at directed verdict or judgment notwithstanding verdict stage
  • concluding that defendant prevailed under Mt. Healthy because plaintiff had not established that protected speech was a motivating factor

Written by the judges who cited it.

Later courts went against this

  • Overruled on other grounds by Spiegla v. Hull, 371 F.3d 928 (2004)

    See Rakovich v. Wade, 850 F.2d 1180, 1191 (7th Cir.1988) (“More than mere speculation must serve as the basis for finding that [such speech] is the ‘motivating cause.’ If this link is not made a reasonable jury could not find that the [speech] ‘motivated’ the defendant; thus, the defendant should prevail on the motion.”), overruled on other grounds by Spiegla v. Hull, 371 F.3d 928 (7th Cir.2004).
    Court of Appeals for the Seventh CircuitJun 14, 2004other groundsmedium confidenceRead it

The opinion

FLAUM, Circuit Judge,

concurring.

I concur in section II C of the majority’s thorough opinion which addresses the question of the appellants’ qualified immunity. I agree with Judge Wood’s well-reasoned analysis that applying the correct legal standards the officers are immune from liability to Rakovich under § 1983. I would therefore reverse the district court’s denial of the appellants' motion for a directed verdict on qualified immunity grounds.

With regard to the issue of the officers’ right to either a directed verdict or a judgment notwithstanding the verdict, I would not find it necessary to address this very close question. Viewing the evidence and all reasonable inferences therefrom in the light most favorable to Rakovich (the non-moving party) it may well be that reasonable jurors could differ over whether the officers unlawfully retaliated against Rako-vich for the exercise of his first amendment rights.

Respectfully, I therefore join only the portion of the majority opinion that holds that the appellants are entitled to a directed verdict based on qualified immunity.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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