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

> Court of Appeals for the Seventh Circuit · July 14, 1988 · 850 F.2d 1180

URL: https://www.frixlaw.com/law-library/cases/9477878

## Case

- **Full name:** George RAKOVICH, Plaintiff-Appellee, v. Gregory WADE and Darryl Drake, Defendants-Appellants; George RAKOVICH, Plaintiff-Appellee, v. Chester KASS, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** July 14, 1988
- **Citations:** 850 F.2d 1180
- **Precedential status:** Published
- **Opinion:** Dissent by Ripple
- **Judges:** Bauer, Cummings, Wood, Cudahy, Posner, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne
- **Cited by:** 370 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Spiegla v. Hull, 371 F.3d 928 (2004).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477878

## How later opinions describe it (automated extraction)

- 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
- stating that closely analogous cases are required to find constitutional right clearly established

## Opinion text

RIPPLE, Circuit Judge,
dissenting.
Justice Holmes, addressing the tendency of “[g]reat cases like hard cases [to make] bad law,” further elaborated on the danger when “some accident of immediate overwhelming interest ... appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Northern Sec. Co. v. United States, 193 U.S. 197, 400-401 , 24 S.Ct. 436, 468 , 48 L.Ed.2d 679 (1904) (Holmes, J., dissenting). “If ‘hard cases make bad law,’ unusual cases surely have the potential to make even worse law.” Department of the Air Force v. Rose, 425 U.S. 352, 382 , 96 S.Ct. 1592, 1609 , 48 L.Ed.2d 11 (1976) *1215 (Burger, C.J., dissenting). This is certainly not a “great case.” It is, however, a “hard case;” it was tried poorly and therefore does not present to this court the clean, crisp record necessary for accurate appellate adjudication. It is also an unusual case; fortunately, in most American communities, cooler heads prevail at an earlier stage and the provincial, petty, political bickering that forms the basis of this litigation does not end up in federal court.
It is quite understandable, therefore, that a case such as this one would produce the kind of “hydraulic pressure” of which Justice Holmes spoke. The parties and their counsel have brought to both the proceedings of this court and the proceedings of the district court more passion than reason. The court is also understandably concerned about the result in the district court. The imposition of a civil monetary judgment on a state law enforcement officer is harsh medicine and ought to be imposed only in accordance with settled principles of law. While it is understandable that such a hard and unusual case produces “hydraulic pressure,” we cannot, I respectfully submit, allow the rest of Justice Holmes’ observation to become a reality. What has previously been clear must not now become doubtful; settled principles of law must not bend to the exigencies of the moment.
Unfortunately, the effect of this hydraulic pressure is easily observable in the court’s methodology. Rather than remain within its proper role as an intermediate appellate court, the court first intrudes on the fact-finding responsibilities of the jury and then frustrates the governing test for qualified immunity carefully forged by the Supreme Court. See generally Murphy, Lower Court Checks on Supreme Court Power, 53 Am.Pol.Sci.Rev. 1017 (1959). In the first part of its opinion it holds — or appears to hold — that the record will not support the plaintiff’s claim of retaliation. It reaches this conclusion by disregarding the usual limitations on the scope of appellate review of factual findings. See Jefferson Nat’l Bank v. Central Nat’l Bank, 700 F.2d 1143 , 1156 (7th Cir.1983) (“It is the fact finders’ function to hear and observe the witnesses and to weigh the conflicting evidence. On appeal, we are not to decide a case based on what we, as individual judges, would have decided under the same or similar circumstances.”); cf. Anderson v. City of Bessemer City, 470 U.S. 564 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985) (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”). Indeed, the court makes a better case for the defendants than do the defendants. The second part of the court’s opinion stands in curious juxtaposition to the first part. The court now either assumes or concedes that the plaintiff presented sufficient evidence to require a jury determination of his retaliation claim. Disregarding the sharp disagreement between the parties with respect to the facts, it then proceeds to hold that the defendants are entitled to qualified immunity.
At this stage of the litigation, it makes little sense to increase the pages in this court’s reports by restating the facts and arguing for a characterization of those facts compatible with the jury verdict. Even the casual reader of our decisions will recognize that the methodology employed here is a significant departure from this court’s usual approach when asked to review the factual basis of a jury verdict in a civil case. See Jefferson, 700 F.2d at 1156; see also 9 C. Wright & A. Miller, Federal Practice & Procedure § 2524 at 543-44 (1971). Indeed, even those members of the bar who regularly practice criminal law, where the standard of proof is more stringent, see Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), will be able to recall few cases where this court’s scrutiny of the factual basis for the verdict has been quite so exacting.
It is important, however, to spend some time reviewing the court’s substantive treatment of the qualified immunity issue. Here, to paraphrase Justice Holmes, set- *1216 tied principles of law have been bent and the possible impact on the future protection of first amendment rights is substantial. At the outset, I emphasize that there is no dispute over many basic principles. The court correctly states that the claim of qualified immunity must be evaluated against an objective standard. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). The proper inquiry is whether the prison officials violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. It is also true that the right allegedly violated may not be asserted at any level of generality. Rather,
the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.
Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987).
It is in the application of this last principle that the court’s approach encounters fatal difficulty. In its attempt to justify its result, the court presents, successively, two distinct analyses. First, the court analogizes the situation to the one that confronted the court in Benson v. Allpkin, 786 F.2d 268 (7th Cir.1986). There, the defendant public officer, dealing with a public employee discharge situation, had to “arrive at a balance between the interests of the plaintiff, as citizen, in commenting on matters of public concern and the interests of the state, as employer, in promoting the efficiency of the public service it performs through its employees.” Id. at 276 . This approach, concludes the court, is likewise applicable in this present context “where an officer must balance an infringement of first amendment interests against proper law enforcement interests.” This characterization of the present case requires, of course, the court’s protestations notwithstanding, that the plaintiff’s version of the case be revised factually. It ignores totally the possibility that one motivation — retaliation — was the reason for the defendants’ action. Or, if we assume a dual motive, it disembowels completely the Supreme Court’s holding in Mt. Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977). Apparently, at least in the Seventh Circuit, any evidence that official action restricting first amendment rights was prompted by a permissible governmental reason will be sufficient to remove the case from the jury’s consideration — even when there is evidence that the government’s action was prompted largely by an impermissible motivation to inhibit protected speech.
The court’s alternate approach to the “ ‘clearly established’ in a more particularized ... sense” requirement of Anderson, 107 S.Ct. at 3039 , creates even more concern for the protection of first amendment rights. The court determines that there is an absence of “closely analogous” case law because most cases concerning retaliation for first amendment rights involve public employee discharges, surveillance of political groups and organizations, or the arrest of persons on the explicit ground that they exercised first amendment rights. These situations, it summarily concludes, do not “equate with the factual situation here.”
This conclusion ignores the explicit mandate of Anderson, where the Supreme Court said: “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of preexisting law the unlawfulness must be apparent.” 107 S.Ct. at 3039 (citation omitted). In short, while closely analogous case law, decided before the defendant public official acted, is always relevant, it must be acknowledged that precise factual congruity cannot be expected and is not necessary. What is important is that the law be sufficiently explicit and well-settled that “the unlawfulness must be apparent.” Id.
It is hardly a novel proposition of American constitutional law that a law enforcement officer may not utilize the criminal process in order to punish a citizen for the *1217 exercise of first amendment rights. Not only does the average American law enforcement officer understand this basic proposition, the average American third grader does as well. The court’s approach to the need for “closely analogous” case law sends a clear message to those officials, hopefully small in number, who are willing to use their power to inhibit freedom of speech: Choose a novel approach to your abuse of power. Avoid a modus op-erandi that someone has tried before. Create a verbal smokescreen by articulating fabricated justifications for your actions. Then, when you are sued, point to the fact that there has never been a case like yours.
Anderson struck a healthy balance between the need to protect individual freedom and the necessity of protecting the public official from liability for actions he could not have known were contrary to law. Today, this circuit departs significantly from that approach and distorts that precedent. Our obligation is to apply the law of the Supreme Court — not to bend it to fit our own predilection. Law enforcement officers now have little to fear, at least in this circuit, from civil rights suits; fortunately, lower court judges must still fear the writ of certiorari.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477878. Public record. Not legal advice.