In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1260

HERBERT SMITH,

Plaintiff-Appellant,

v.

CITY OF HAMMOND, INDIANA, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 03 C 542—Rudy Lozano, Judge.

____________

ARGUED SEPTEMBER 10, 2004—DECIDED NOVEMBER 3, 2004

____________

Before FLAUM, Chief Judge, and POSNER and ROVNER,

Circuit Judges.

POSNER, Circuit Judge. A woman named Leatrice Warren

was arrested by the Hammond police and charged with a

variety of relatively minor (as these things go) offenses, including battery, intimidation, possession of marijuana, disorderly conduct, and resisting arrest, all probably arising

from the same incident and eventually resolved by a plea

agreement the terms of which we do not know. When she

was arrested, Judge Harkin of the Hammond City Court set
2 No. 04-1260

bail at $6,800 “cash only.” This meant that to get out of jail

Warren would have to deposit 10 percent of the amount of

the bail—$680—with the court. Ind. Code § 35-33-8-3.2(a)(2).

If she complied with the conditions of bail (which is to say

if she didn’t skip town), the money would be returned to

her, minus certain offsets (administrative fees, restitution if

ordered, fines if imposed). Id.; Obregon v. State, 703 N.E.2d

695 (Ind. App. 1998). Warren’s family had paid our plaintiff,

Herbert Smith, a bail bondsman licensed by the State of

Indiana, a $680 premium for a $6,800 surety bond, but the

police, at the judge’s direction, refused to accept the bond,

instead insisting on the cash bond in the same amount. This

meant that Smith—assuming he returned the premium to his

client—was out the $680.

One wonders why Warren’s family would pay Smith a

nonrefundable $680 when the same $680, deposited with the

court, would (depending on the outcome of the criminal

proceeding) be largely refundable. Because the family didn’t

know any better, perhaps being misled by Smith? Or did the

family perhaps want Smith to be on the hook for the rest of

the bond when Warren skipped? But then, if Smith had the

same thought about the likely outcome, he would not have

agreed to underwrite a bond.

Even more mysterious is that Warren originally was a coplaintiff with Smith in this lawsuit, though she later dropped

out.

Upset that the bond had been refused, Smith brought this

suit under 42 U.S.C. § 1983 against the judge, the city clerk

and the city police chief, the judge’s court, and the City

itself, contending that the defendants have a policy of refusing to accept surety bonds and that this policy violates

the U.S. Constitution by depriving Smith of a property

interest consisting of his license. His license is worthless, he

contends, if he cannot write surety bonds in Hammond
No. 04-1260 3

because the court will accept only cash bonds. The suit seeks

damages but his appeal is from the denial of his motion for

a preliminary injunction, which he sought on the ground

that damages will be difficult to determine and that therefore he is incurring irreparable harm.

Not only has the appeal no merit, but it is evident that the

entire suit should be dismissed. Three of the four defendants—the City, the clerk, and the police chief—do not belong

in the case at all. None of them has, or is claimed to have

asserted, any authority over the setting of bonds. (Regarding

the City’s liability, see, e.g., Pembaur v. City of Cincinnati, 475

U.S. 469, 478-80 (1986).) Smith might just as well have sued

the Governor of New Mexico. In Indiana as elsewhere, “the

power to establish bail is exclusively judicial.” Board of

County Commissioners v. Farris, 342 N.E.2d 642, 644 (Ind. App.

1976); see also Ind. Code §§ 35-33-8-3.2(a), -4; cf. Walden v.

Carmack, 156 F.3d 861, 874 (8th Cir. 1998); Franceschi v.

Schwartz, 57 F.3d 828, 830 (9th Cir. 1995) (per curiam). And

though an official who lacked legal authority over some

matter might nevertheless use his official status (“color of

law”) to influence the officials who did have the relevant

jurisdiction, Smith doesn’t indicate what role he thinks the

clerk or the police chief plays in Judge Harkin’s bail decisions except to execute them. As mere executants they

would be sheltered by the judge’s absolute immunity (of

which more shortly), Snyder v. Nolen, 380 F.3d 279, 287 (7th

Cir. 2004) (per curiam); Richman v. Sheahan, 270 F.3d 430, 435

(7th Cir. 2001); In re Foust, 310 F.3d 849, 855 (5th Cir. 2002);

Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001), and even as

collaborators they would be sheltered by the absence of any

established Fourteenth Amendment entitlement to issue a

surety bond. We can even delete “established.” The decision

to require either a cash bond or a surety bond is a discretionary judicial act, Mott v. State, 490 N.E.2d 1125, 1129 (Ind.

App. 1986), and therefore no bondsman has a sufficiently
4 No. 04-1260

firm and definite interest in the issuance of a surety bond to

be adjudged a Fourteenth Amendment property holder.

Baldwin v. Daniels, 250 F.3d 943, 946-47 (5th Cir. 2001) (per

curiam)

As for Judge Harkin, he has, of course, absolute immunity

from liability for damages arising from judicial acts, and the

setting of bail is one of them. Mireles v. Waco, 502 U.S. 9, 11-

13 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 362-

64 (1978); Brokaw v. Mercer County, 235 F.3d 1000, 1015 (7th

Cir. 2000); Tucker v. Outwater, 118 F.3d 930, 932-33 (2d Cir.

1997); Franceschi v. Schwartz, supra, 57 F.3d at 830; King v.

Love, 766 F.2d 962, 968 (6th Cir. 1985). It is true that the core

concern animating absolute immunity for judges is the

prospect of malicious suits by disappointed litigants, and

Smith was not a party to the suit in which Judge Harkin

issued the order of which Smith is complaining. But that is

not a saving grace when one considers how common it is for

judicial rulings to have adverse effects on nonparties that

might prompt them to seek judicial revenge against the

judge.

Smith also seeks injunctive relief against the judge, but

here he runs up against a 1996 amendment to 42 U.S.C.

§ 1983 that provides “that in any action brought against a

judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless

a declaratory decree was violated or declaratory relief was

unavailable.” Federal Courts Improvement Act of 1996, Pub.

L. No. 104-317, § 309(c), 110 Stat. 3847, 3853. Setting bail is

a judicial act, as we said, and the exception involving

declaratory relief is inapplicable to this case. Declaratory relief is not unavailable just because it is not an award of

damages—yet that is Smith’s argument.

What is more, we don’t see how a motion for a preliminary injunction can be premised on the difficulty of deter-
No. 04-1260 5

mining damages—Smith’s only ground—when the defendant

is absolutely immune from damages liability. It would be

beyond odd to argue for preliminary relief on the ground

that one had no legal right to permanent relief, when it is

only the existence of a probability of eventually prevailing

that entitles a plaintiff to seek preliminary relief to protect

his expectation. Similarly, while in some cases it might be

argued that a defendant’s immunity from damages liability

might constitute irreparable harm entitling the plaintiff to

preliminary relief, Hillhaven Corp. v. Wisconsin Dept. of Health

& Social Services, 733 F.2d 1224, 1226 (7th Cir. 1984) (per

curiam); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353,

361-62 (4th Cir. 1991), this argument won’t fly in a case such

as this in which the defendant (by virtue of the 1996 amendment to section 1983) is immune from being enjoined as well

as from having to pay damages. As Smith is not entitled to

obtain a final judgment awarding him either monetary or

equitable relief against Judge Harkin, he cannot obtain

preliminary relief, which is merely a way station to final

relief. (He comes perilously close to arguing that the weaker

the case, the stronger the argument for preliminary relief.)

Nor can the absolute immunity of a judge be got round by

suing his employer (in this case the Hammond city court) on

a theory of respondeat superior, which is not a basis of

liability authorized by section 1983.

So everywhere Smith might turn, relief is blocked; and

anyway his theory of liability—that by insisting on cash

bonds Judge Harkin is arbitrarily depriving him of his license in violation of the due process clause of the Fourteenth

Amendment—has no merit even on its own grounds, that is,

even ignoring issues of immunity. Judge Harkin is not

depriving Smith of his license, but merely reducing Smith’s

income from it. A provider of services to a court has no

standing to challenge judicial rulings that reduce the demand for his services and hence his income. He is injured
6 No. 04-1260

but he is not within the protected class. If a judge who is

“soft” on crime releases arrested persons on their own recognizance, a bail bondsman cannot challenge the judge’s

ruling on the ground that it will reduce the bondsman’s

business. Manufacturers of shackles cannot sue when a

judge decides that criminal defendants shall not be shackled

in his courtroom. Smith could not sue the prosecutor for not

bringing enough charges for violent crime (the sort that lead

to surety bonds), or for charging too many poor defendants

on the theory that the public fisc does not pay as handsomely

as solvent defendants do. When the Federal Reserve juices

up the economy, pawnbrokers cannot head to court to stop

the undermining of their livelihoods.

As if this weren’t enough to demonstrate the frivolous

nature of this suit, Smith is claiming a violation of the

Fourteenth Amendment, which requires that he show an

entitlement that can be characterized as property or liberty

to issue surety bonds, and we saw earlier that he cannot

show that.

We add unnecessarily that Judge Harkin’s policy is not

arbitrary. The difference between cash bonds and surety

bonds is, as we mentioned, that if the defendant has a cash

bond and complies with its terms he has a shot at getting his

money back, but if he has a surety bond he doesn’t get the

premium back, typically, as in this case, 10 percent of the

face amount of the bond. Lake County Clerk’s Office v. Smith,

766 N.E.2d 707, 709-10 (Ind. 2002); Holly J. Joiner, Note,

“Private Police: Defending the Power of Professional Bail

Bondsmen,” 32 Ind. L. Rev. 1413, 1417 (1999). If the defendant is a substantial flight risk, the judge, as an alternative

to increasing the amount of bail and thus the amount of a

cash bond, may require the posting of a surety bond, to get

the bondsman’s assessment of the risk (which will determine the premium) and also his aid in assuring compliance
No. 04-1260 7

with the terms of bail, since the bondsman will have to pay

if they are violated. Id. at 1422-27. But this is a judgment for

the judge to make—not the bondsman by suing the judge.

It is, moreover, a discretionary judgment, as we noted

earlier.

The denial of the motion for a preliminary injunction is

affirmed, and in view of the plainly meritless character of

the underlying suit we suggest that the district judge dismiss

it without further ado. If Smith persists in this hopeless

litigation, he—and his lawyer—are courting sanctions.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-3-04