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Bianchi v. McQueen

United States Court of Appeals, Seventh Circuit

March 29, 2016

LOUIS A. BIANCHI, et al., Plaintiffs-Appellants,
THOMAS K. MCQUEEN, et al., Defendants-Appellees

         Argued April 16, 2015

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          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.

         For Louis A. Bianchi, Joyce A. Synek, Michael Mccleary, Ronald J. Salgado, Plaintiffs - Appellants: Terry A. Ekl, Attorney, Tracy Stanker, Attorney, Ekl, Williams & Provenzale Llc, Lisle, IL.

         For Thomas K. Mcqueen, Defendant - Appellee: Joel D. Bertocchi, Attorney, Hinshaw & Culbertson Llp, Chicago, IL.

         For Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, Defendants - Appellees: Scott L. Howie, Attorney, Pretzel & Stouffer, Chartered, Chicago, IL.

         Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.


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          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 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.

         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 convened, and Bianchi and three of his colleagues were indicted on multiple counts of official misconduct. All were acquitted.

         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 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.

         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, 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 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.,

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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 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 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 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.)

         The 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).[2] The judge accepted this explanation and rejected the defendants' 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 " second 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 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 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 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.

         In 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

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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 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 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 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.

         We 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 detained.

         Now 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 ...

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