LOUIS A. BIANCHI, et al., Plaintiffs-Appellants,
THOMAS K. MCQUEEN, et al., Defendants-Appellees
April 16, 2015
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:12-cv-00364 --
Robert M. Dow, Jr., Judge.
Louis A. Bianchi, Joyce A. Synek, Michael Mccleary, Ronald J.
Salgado, Plaintiffs - Appellants: Terry A. Ekl, Attorney,
Tracy Stanker, Attorney, Ekl, Williams & Provenzale Llc,
Thomas K. Mcqueen, Defendant - Appellee: Joel D. Bertocchi,
Attorney, Hinshaw & Culbertson Llp, Chicago, IL.
Daniel Jerger, Robert Scigalski, James Reilly, Patrick
Hanretty, Defendants - Appellees: Scott L. Howie, Attorney,
Pretzel & Stouffer, Chartered, Chicago, IL.
POSNER, EASTERBROOK, and SYKES, Circuit Judges.
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 secretaries in the office
resigned and took a treasure trove of sensitive documents
with her. Working with a disgruntled Assistant State's
Attorney whom Bianchi had demoted, the secretary delivered
the documents to the media and to Bianchi's opponent in
the next election.
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 convened, and Bianchi and three of his colleagues
were indicted on multiple counts of official misconduct. All
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
investigators hired by the special prosecutors, and several
of its investigators. 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.
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, concluding that the
two immunities foreclose the federal constitutional claims.
That ruling was sound and we affirm.
Bianchi was first elected as McHenry County State's
Attorney; he has been reelected ever since. 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 immunity. 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).
for starters--as did the district judge--that the second
amended complaint differs in significant respects from the
earlier versions, probably because of the intervening
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 current
theory, in contrast, is that Tonigan was an unwitting
participant in an unconstitutional prosecution. More
specifically, the second amended complaint alleges that
McQueen and the Quest investigators " duped"
Tonigan into prosecuting Bianchi and his colleagues by
feeding him fabricated witness statements and other false
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
evidentiary support that Defendants McQueen and the
Quest Investigators used the false evidence and witness
statements that they manufactured during the investigation
and concealed exculpatory evidence in order to 'dupe'
Tonigan to bring charges . . . ." (Emphasis added.)
defendants urged the judge to disregard all such allegations
outright. The plaintiffs' attorney objected, explaining
that this mode of pleading was necessary under the
circumstances and is specifically permitted by Rule
11(b)(3). The judge accepted this explanation
and rejected the defendants' invitation to disregard
these allegations based on the qualifier alone. We'll do
simplicity, from now on we'll omit the modifier "
second amended" and simply refer to the "
* * *
Dalby was a secretary in the McHenry County State's
Attorney's Office from 2004 to 2006. She resigned in July
2006, taking some 5,000 sensitive documents with her. She was
encouraged in this theft by Kristin Foley, an Assistant
State's Attorney whom Bianchi had demoted. In October
2007 Dalby and Foley gave the documents to members of the
local media and to Daniel Regna, Bianchi's opponent in
the upcoming 2008 Republican primary for State's
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 proceedings
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
special 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 investigate Bianchi, echoing the allegations
made by Regna.
September 2009 Judge Gordon Graham of the McHenry County
Circuit Court appointed Tonigan, a former circuit court
judge, as a " Special State's Attorney" under
the authority 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
and McQueen quickly discovered that the statute 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 relative
to the possible misuse, misappropriation or theft of public
funds, public property or public personnel by McHenry County
State[']s Attorney Louis Bianchi from 2005 and
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
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 conspired
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 "
manufacturing" and " fabricating" evidence
against them--largely in the form of false witness
statements--both before and after 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 official misconduct. Arrest
warrants followed. On September 10, 2010, Bianchi and Synek
were arrested and immediately released on bond that same day.
pause here to note a factual concession that will become
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' attorney 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
back to the narrative. At this point the special prosecutors
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 ...