the notion that “Leatherman is not the last word” on pleading
standards in civil rights cases because the Supreme Court
“addressed this kind of claim in Board of County Comm’rs of Bryan
County v. Brown, 520 U.S. 397 (1997).” Id, But Brown reached the
Supreme Court following a jury trial and dealt exclusively with the
evidence a plaintiff must produce in order to prevail on the facts.
The opinion does not address the issue of pleading standards at
all, and contains no reference to Leatherman. Furthermore, the
Seventh Circuit recently re-affirmed the essential holding of
Leatherman, stating that a complaint need contain only an
allegation of an express unconstitutional policy, a widespread
practice so well established that it constitutes law, or that the
person injuring plaintiff held final policymaking authority. Here
plaintiff alleges the existence of an actual policy. MeCormick v.
City of Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000). In light of
McCormick, I do not find Gustafson controlling here, Mr. Horstman
has stated a claim against Sheriff Zaruba in his official capacity.

Next, defendants argue that the state-law claims must be
dismissed under the Illinois Tort Immunity Act, 745 ILCS 10/2-202,
which states that “[a] public employee is not liable for his act or
omission in the execution or enforcement of any law unless such act
or omission constitutes willful and wanton conduct.” Willful and
wanton conduct is defined as behavior that “shows an actual or

deliberate intention to cause harm or which, if not intentional,

19


Fitzsimmons, 509 U.S. 259 (1993). In Buckley, the court noted that
prosecutors enjoy absolute immunity against suits stemming from any
act “intimately associated with the judicial process” and “fairly
within the prosecutor’s function as an advocate,” such as
initiating and pursuing a criminal prosecution. Id. at 269-70
(internal quotations omitted). However, when prosecutors act
outside their roles as advocates, such as when performing
administrative and investigatory duties, absolute immunity does not
apply. Id. at 273. The court stressed that “[a] prosecutor neither
is, nor should consider himself to be, an advocate before he has
probable cause to have anyone arrested.” Id.

Here, Mr. Horstman alleges that his arrest and arraignment
were part of a long-term prosecutorial plot to illegally arrest and
release law-abiding gun owners. He states that this plot began on
or before December 6, 2000, when Mr. Birkett and Mr. Devine held a
joint press conference addressing the enforcement of Illinois’ gun
laws.’ In other words, Mr. Horstman is alleging actions on the part
of Mr. Birkett and Mr, Brennan that took place long before his
arrest. Accepting these allegations as true, Thompson v. Ill. Dap’t

of Prof’1 Reguiation, 300 F.3d 750, 753 (7th Cir. 2002), { find

1 Whether such statements were made at the alleged press
conference or, if so, whether Mr. Horstman’s arrest was related to
the statements is, of course, not before me at this time. TI will
assume counsel is aware of his responsibilities under Rule 11, Fed.
R. Civ. P.

13


VIII.

I grant the motions to dismiss all counts against State’s
Attorney Devine, DuPage County, Det. DelGiudice and Sheriff Zaruba.
As to the remaining defendants, the motions to dismiss Counts I,
II, VI, VII, IX, and XIV are denied. The motion to dismiss Count XI
is denied as to Dep. Weiser, but granted as to the other
defendants. The motions to dismiss counts III, IV, V, VIII, X,

XII, XIII, XV, XVI, and XVII are granted.

ENTER ORDER:

Elaine E, Bucklo
United States District Judge

Dated: September ab, 2003

23



Devine, State’s Attorney of Cook County. Count I is a claim against
the DuPage defendants under 42 U.S.C. § 1983 for deprivation of Mr.
Horstman’s rights under the first, second, fourth, fifth, eighth,
and fourteenth amendments. Count If is a claim against the DuPage
defendants under § 1983 for conspiracy to violate Mr. Horstman’s
rights. Count III is an additional § 1983 claim against the DuPage
defendants, alleging that Sheriff Zaruba promulgated policies and
customs that resulted in the constitutional harm done to Mr.
Horstman. Count IV is a similar claim against the DuPage defendants
due to the policies allegedly promulgated by State’s Attorney
Birkett. In Count V, Mr. Horstman asks that this court declare
unconstitutional the defendants’ alleged “catch and release” policy
of arresting and then freeing citizens who carry unloaded, encased
firearms in compliance with 720 ILCS 5/24-1(a)(4) and seeks
declaratory and permanent injunctive relief against Sheriff Zaruba,
State’s Attorney Birkett, and State’s Attorney Devine to prevent
further enforcement of the alleged policy. Counts VI through XIII
charge the DuPage defendants with false arrest, malicious
prosecution, intentional infliction of emotional distress, abuse of
process, misuse of process, battery, defamation, and placing Mr.
Horstman in a “false light in the public eye.” Count XIV is a
state-law conspiracy claim against the DuPage defendants. Count XV
is a “respondeat superior claim,” alleging that DuPage County is

legally liable for the actions of the other DuPage defendants under


shows an utter indifference to or conscious disregard for the
safety of others or their property.” Smith v. City of Chicago, 242
F.3d 737, 744 (7th Cir. 2001), Mr. Horstman alleges that the
defendants acted with deliberate malice as part of a nefarious plot
to deprive gun owners of their rights, which, if true, might
justify a holding that the defendants’ behavior was willful and
wanton. The factual record must be further developed before I can
evaluate the veracity of this claim, Taking the plaintiff’s
allegations as true, I find that the Illinois Tort Immunity Act
does not bar Mr. Horstman’s state law claims against defendants
Weiser, Birkett, Brennan and Tellone. See McGovern v. Pacetti, No.
O01 C 3722, 2002 U.S. Dist. LEXIS 1420, at *10 (N.D. Ill. Jan. 29,
2002) (Pallmeyer, J.) (denying defendant police officer’s motion to
dismiss state law assault and battery claims on the ground that
more facts were necessary in order to determine the applicability
of 745 ILCS 10/2-202).

The DuPage defendants argue that Count I should be dismissed
because “the existence of a tort claim under state law knocks out
any constitutional theory of malicious prosecution.” Newsome v.
McCabe, 256 F. 3d 747, 750 (7th Cir. 2001). Mr. Horstman himself
pleads that he has a state-law claim for malicious prosecution in
Count VII of the complaint, However, Count I cannot be
characterized as a malicious prosecution claim; it alleges

deprivation of civil rights under § 1983, including false

20



Count II as well as Count XIV, the state-law conspiracy claim. The

motion to dismiss the conspiracy claims is denied.

VII.

The defendants point out two flaws in the complaint that
necessitate dismissal of Counts VIII, XII, and XIII as to all
defendants. First, in order to sustain a claim of intentional
infliction of emotional distress, a plaintiff must plead that the
defendants’ conduct was “truly extreme and outrageous, beyond all
possible bounds of decency.” McDade v. City of Chicago, No, 01 C
9300, 2003 U.S. Dist. LEXIS 9117, at *8 (N.D. Ill. May 30, 2003
(Bucklo, J.). Mr. Horstman makes no such allegation and pleads no
facts that support such an inference. Thus, the motion to dismiss

Count VIII is granted as to all defendants.

Second, public officials enjoy absolute immunity from suit for
defamation and “kindred torts” arising from statements made in the
course of their official duties. Harris v. News-Sun, 646 N.E.2d 8,
11 (Ill. App. Ct. 1995). Mr. Horstman does not allege that the
defendants acted outside the scope of their duties, and he does not
dispute their claim that any statements made about Mr. Horstman
were made in the course of doing their jobs. The motions to dismiss

Counts XII and XIII are granted as to all defendants.

22



arrest Mr. Horstman. The existence or non-existence of probable
cause at the time of Mr. Horstman’s arrest simply cannot be
determined from the face of the complaint. Furthermore, his
argument in the alternative that qualified immunity protects him
from suit is premature. Until the facts are further developed, I
cannot determine whether Dep. Weiser’s acts were protected by
immunity or not.

Sheriff Zaruba argues that the complaint against him in his
individual capacity should be dismissed. The mere existence of a
supervisory relationship to an alleged wrongdoer does not support
a cause of action against a supervisor under § 1983, and Mr.
Horstman has not pleaded that Sheriff Zaruba had any direct
involvement in or even knowledge of the allegedly unconstitutional
experiences suffered by Mr. Horstman. He has not pled an individual
claim against Sheriff Zaruba.

Sheriff Zaruba also argues that the complaint against him in
his official capacity should be dismissed since neither a
municipality nor its agents in their official capacities may be
held liable under § 1983 unless one of its official policies or
customs caused plaintiff's injuries. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). He argues that the complaint against
him should be dismissed because Mr. Horstman failed to allege more
than one incident in support of his contention that his injuries

resulted from a departmental policy. Sheriff Zaruba cites a number

1?


sheriffs’ actions under Monell, stating that “Illinois sheriffs are
independently elected officials not subject to the control of the
county.” Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir.
1995); see also Thompson v. Duke, 882 F,2d 1180, 1187 (7th Cir.
1989) (finding no Monell liability). Similarly, Illinois state’s
attorneys are independently elected, Inn. Const. art. 6, § 19, and
are “state, rather than county, officials.” Ingemunson v. Hedges,
549 N.E.2d 1269, 1272 (Ill. 1990).

To counter these cases, Mr, Horstman relies heavily on Cruz v.
County of DuPage, No. 96 C 7170, 1997 U.S. Dist. LEXIS 14397 (N.D.
Tll. Sep. 17, 1997) (Coar, J.). The Cruz plaintiff argued that
DuPage County was liable for the acts of its sheriff under Monell
because the sheriff was the final policy-maker for the county. The
court agreed, writing that Ryan and Thompson were effectively
overruled by the Supreme Court’s decision in McMillian v. Monroe
County, Ala., 520 U.S. 781 (1997), McMillian held that county
sheriffs in Alabama are final law enforcement policy-makers for the
state, not the county they serve, and thus that Alabama counties
are not liable under Monell for the acts of their sheriffs related
to law enforcement. Id. at 784. However, the court stated that this
result could be expected to vary from state to state, and would be
dependent on an analysis of state law, including the state's
constitution, its statutes, its history, and its practices. Id, at

795. Judge Coar, in Cruz, analyzed Illinois law as the McMillian



Mr. Devine correctly points out that this court has no
jurisdiction to decide this claim. The federal courts are empowered
to settle cases and controversies. U.S. Const. art. III, § 2. One
method of distinguishing between a justiciable case or controversy
and a matter outside the jurisdiction of the court is the doctrine
that a plaintiff must have standing to sue. Lujan v. Defenders of
Wildlife, 504 U.S, 555, 560 (1992). A plaintiff seeking to invoke
federal court jurisdiction must be able to show that he has
suffered or will suffer an injury that is concrete, particularized,
and actual or imminent, rather than conjectural or hypothetical.
Id. Where, as here, the plaintiff seeks injunctive or declaratory
relief from future government action, the controlling case is City
of Los Angeles v. Lyons, 461 U.S. 95 (1983), In Lyons, the
plaintiff was subjected to an unconstitutional chokehold when
arrested by Los Angeles police and sued to enjoin police from using
such chokeholds in the future. The court found that the plaintiff
had no standing to pursue such an injunction because it was “no
more than speculation to assert” that he would ever be arrested and
illegally choked again. Id. at 108. Applying Lyons in Robinson v.
City of Chicago, 868 F.2d 959, 966 (7th Cir. 1989), a similar case
where plaintiffs sought to enjoin investigative detentions by
Chicago police, the Seventh Circuit held that plaintiffs had no
standing to pursue injunctive relief because they could not allege

that it was reasonably likely that they would again be arrested and


the respondeat superior doctrine. Count XVI alleges that DuPage
County is liable for the actions of the other DuPage defendants
under 745 ILCS 10/9~102, the Governmental Employees Tort Immunity
Act. Finally, Count XVII seeks a declaratory judgment that Mr.
Horstman has the right to carry an encased, unloaded firearm within
Illinois.

Il.

The first order of business is consolidation of the unwieldy
complaint. Counts III and IV are duplicative of Count I. All three
state § 1983 claims against all DuPage defendants; Counts III and
IV merely specify theories under which Mr. Horstman might choose to
argue his claim. Count X is duplicative of Count IX; there is no
difference between abuse of process and misuse of process.
Similarly, Counts XV and XVI do not allege violations independent
of those outlined in Counts VI through XIII; they only explain
theories under which Mr, Horstman might pursue his argument.
Therefore, Counts III, IV, X, XV, and XVI are dismissed.

III.

Mr. Devine, State’s Attorney of Cook County, moves to dismiss
the claim against him for lack of subject matter jurisdiction, as
Mr. Horstman has no standing to sue him. The only count that names
Mr. Devine is Count V, which seeks declaratory judgment and an
injunction barring Cook County from interfering with Mr. Horstman’s

right to bear arms in the future.



of cases for the proposition that a plaintiff must allege several
specific events in order to properly allege a § 1983 claim under
Monell. All but one of these cases, however, are inapposite.
Several of them concern the evidence a plaintiff must provide in
order to withstand a motion for summary judgment or succeed at
trial, not the allegations a plaintiff must make in order to
withstand a motion to dismiss for failure to state a claim, which
is the question currently before me. See, e.g., Roach v. City of
Evansville, 111 F.3d 544, 548 (7th Cir, 1997). Others are
uninformative as they predate Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993)
the definitive case abolishing heightened pleading standards in
civil rights cases. See, e.g., O’Connor v. City of Chicago, No. 87
c 10945, 1989 U.S. Dist. LEXIS 1726 (N.D. Ill. Feb 21, 1989)
(Grady, J.).

The one case that does appear to support Sheriff Zaruba’s
contention that Mr. Horstman has failed to state a Monell claim is
Gustafson v. Jones, 117 F.3d 1015 (7th Cir. 1997). In Gustafson,
the court upheld the dismissal of a claim against three high-
ranking police officers in their official capacities. The court
reasoned that the plaintiffs’ general allegation that the Milwaukee
Police Department engaged in an ongoing practice of
unconstitutional discriminatory transfer was not sufficient to

state a claim. Id. at 1022. The holding in Gustafson was based on

18



Iv.

DuPage County mmeves to dismiss the claims against it on the
ground that it may not be held liable for the actions of its
sheriff, its sheriff's deputies, or its state’s attorney. Mr.
Horstman offers a number of theories under which I might find the
county liable, including a Monell theory, respondeat superior
doctrine, and 745 ILCS 10/9-102, the Governmental Employees Tort
Immunity Act. None of these theories renders DuPage County liable
for the alleged injury to Mr. Horstman.

Mr, Horstman argues first that DuPage County is Liable under
Monell v. Department of Social Services, 436 U.S. 658, 694 (1978).
Monell held that in order to establish a § 1983 claim against a
municipal body, a plaintiff must establish that his rights were
violated as a result of the body’s official policy, practice, or
custom. Id, at 694. Mr. Horstman alleges that his injuries came
about because the sheriff and state’s attorney followed a policy of
harassing and arresting law-abiding gun owners. However, even if
true, this would not render the county liable. While a sheriff is
a county officer, a “county is given no authority to control the
office of the sheriff,” and the Illinois Supreme Court has ruled
that the status of sheriffs in relation to their counties is
analogous to that of an independent contractor. Moy v. County of
Cook, 640 N.B.2d 926, 929 (I11. 1994). The Seventh Circuit has

explicitly ruled that Illinois counties are not liable for their


IMinure Creer Havas (0697)

United States District Court, Northern District of linois

Name of Assigned Judge Flaine FE. Bucklo
r Magistrate Judge ~s ed Judge
CASE NUMBER 02 C 5218 DATE 9/26/2003
CASE Horstman vs. County of DuPage, et al,
TITLE
[ln the following bax (a) indicate the party filing (he motion, &.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.

DOCKET ENTRY:

(a) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion duc

(3) i] Answer brie! to motion duc _o Reply to answer brief due

(4) Oo Ruling/[earing on set for al

(35) o Status hearing|held/continued to] [set for/re-set for] on set for al_

(6) Oo Pretrial conference[held/continucd to] [set for/re-set for] on set for at

(7) ao Trial{set for/re-set for] on at

(8) oO (Beneh/Jury trial] [Hearing] held/continued to at

9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OrRCP4(m) PF] Local Ruled. OFRCP41(ay(1) CO FROP41(a)(2).

(10) | [Other docket entry] Defendants’ motions to dismiss (6-1, 7-1 and 13-1) are granted in part and denied
in part. The motions to dismiss all counts against State’s Altorncy Devine, DuPage County, Det. DelCiiudice, and
Sheriff Zaruba are granted. As to the remaining defendants, the motions to dismiss Counts I, II, VI, VIL, LX and
XIV are denied. The motion to dismiss Count X1 is denied s to Dep. Weiser, but granted as to the other defendants.
‘The motions to dismiss counts HI, [V, V, VII, X, XII, XII, XV, XVI and XVII are granted. Enter Memorandum
Opinion and Order. Discovery is ordered closed on 1/31/04. Any dispositive motion will be due by 2/27/04.
These dates will not be changed. Status hearing set for 3/5/04 at 9:30 a.m.

(11) [For further detail see order attached to the original minute order. |

No nonives required, advised in open court Document
’ Number:

No notices required. erat pice

V | Notices mailed by judge's stat, SEP 2 9 2003

Notified counsel by telephone

dave dackerest
Dockeling to mail notices, QO / )
Mail AQ) 450 fe ais
jail AQ 450 form, pope sn ae iin
Copy ta judge/magistrate judge. Qos
AVA 620
_ dane mailed weston:
conrtraom wd ”
MPI : So . :

MPIO

initiats
Date/time received if

ventral Clerk's Onfiges ating deputy initials



under a respondeat superior theory, and that plaintiffs must
instead pursue claims against municipalities under the alternative
theory that the injury flowed from the decisions or policies of the
municipality itself. As discussed in the previous paragraphs,
DuPage County is not liable under Monell, and it cannot be liable
under the doctrine of respondeat superior.

Finally, 745 ILCS 10/9-102, the Illinois statute cited by Mr.
Horstman, does not offer an avenue for suit against the county. It
provides only that a local public entity must pay “any tort
judgment or settlement for compensatory damages ... for which it or
an employee while acting within the scope of his employment is
liable.” Id. In other words, it does not bestow a right of action
whereby a plaintiff may sue a municipality directly; rather, it
makes the municipality an insurer for its employees. Wilson v. City
of Chicago, 120 F.3d 681, 685 (7th Cir. 1997). As discussed above,
the sheriff and state’s attorney are elected state officials,
answerable to the electorate, not the county; they are not
employees of DuPage County, and the cited statute does not apply.
See Biggerstaff v. Moran, 671 N.E,2d 781, 784 (Ill. App. Ct. 1996)
(“Just as Cook County is not vicariously liable for the Cook County
Sheriff’s negligent acts ... Cook County is not vicariously liable

for the Cook County State’s Attorney’s negligent acts.”)

11


court analyzed Alabama law and concluded that [llincis sheriffs do
make policy for their counties, and that Illinois counties are thus
liable under Monell for their sheriff’s actions.

With due respect to Judge Coar, I do not believe McMillian
wiped away the Seventh Circuit’s holdings in Thompson and Ryan so
cleanly. In Thompson, the Seventh Circuit engaged in just the kind
of state-law analysis used by the McMillian court, albeit in an
abbreviated fashion. The opinion cites to the Illinois
Constitution, a statute, and cases to justify its finding that Cook
County was not liable for its sheriff's actions. Had the case been
decided after McMillian, that analysis might have been longer, but
I see no reason to assume that its outcome would have changed.
Furthermore, the McMillian court placed great emphasis upon the
Alabama Supreme Court's interpretation of its own constitution, id.
at 788, and I am unable to reconcile Crug with the Illinois Supreme
Court’s decision in Moy stressing a county board’s lack of control
over its sheriff and refusing to hold it vicariously liable for the
sheriff's actions. Thus, any policies promulgated by either the
sheriff or the state’s attorney and complained of by Mr. Horstman
are not attributable to DuPage County, and the county is not liable
for his alleged injuries under Monell.

Mr. Horstman’s respondeat superior theory cannot save the
claims against DuPage County. The central holding of Monell is that

municipalities cannot be liable for the actions of their employees

10


detained. “Because the various plaintiffs’ future conduct
presumably will give the police no probable cause to arrest them,
they cannot expect that they will encounter the police, or, if they
did, that the police would again detain them.” Id. Likewise, Mr.
Horstman, who repeatedly describes himself as law-abiding, cannot
allege that it is reasonably likely that he will again be arrested
or searched, or if he is, that police will again misapply Illinois
law and arrest him for carrying a firearm in a permissible manner.
The cases he cites to support his claim that he has standing to
pursue injunctive and declaratory relief are inapposite. The
plaintiffs in those cases faced pending or otherwise imminent
prosecution, not the hypothetical (and highly unlikely) future
arrests Mr. Horstman fears. See, e.g., Rowe v. Griffin, 676 F.2d
524 (11th Cir. 1982) (affirming a district court’s permanent
injunction against prosecution of the plaintiff for murder when the
plaintiff had been granted immunity; at the time of suit, the
plaintiff had already been indicted and prosecution was underway).
Mr. Horstman has no standing to pursue injunctive or declaratory
relief against State’s Attorney Devine, or any of the other
defendants. The claim against Mr. Devine is dismissed for lack of
subject matter jurisdiction, Counts V and XVII, which seek
injunctive and declaratory relief, are also dismissed as to all

defendants for lack of subject matter jurisdiction.



imprisonment, loss of liberty, and other torts, Thus, the fact that
Mr. Horstman must base his malicious prosecution claim on state law
does not justify dismissal of Count I.

The Sheriff's Department defendants move to dismiss the
battery count, Count XI, on the ground that only Dep. Weiser
touched Mr. Horstman. “A person commits battery if he intentionally
or knowingly without legal justification and by any means, (1)
causes bodily harm to an individual or (2) makes physical contact
of an insulting or provoking nature.” 720 ILCS 5/12-3(a). Mr.
Horstman does not allege that any defendant other than Dep. Weiser
touched him, so the battery count is dismissed as to all defendants
except Dep. Weiser. Dep. Weiser’s states that his touching of Mr.
Horstman was not battery because it was legally justified touching
during the course of a legal arrest. As discussed above, however,
the question of whether Mr. Horstman’s arrest was justified has yet
to be settled. Thus, Count XI is not dismissed with respect to Dep.

Weiser.

Like the state’s attorney defendants, the sheriff’s department
defendants argue that Mr. Horstman has failed to adequately plead
conspiracy. The analysis of Count II’s sufficiency in section V,
above, applies equally to the defendants about whom Mr. Horstman

has otherwise stated a claim.* Mr. Horstman has adequately pleaded

* Since the facts as alleged do not state a claim against
Sheriff Zaruba in his individual capacity or Det. DelGuidice, and
they are not otherwise tied to the alleged conspiracy, this claim
is also dismissed as to them. Walker v. Thompson, 288 F.3d at 1008.

21



After more questioning Mr. Horstman chose to exercise his right to
remain silent. He was permitted to telephone his family, who then
contacted his lawyer. That night, Mr. Horstman was formally charged
with aggravated unlawful use of a weapon under 720 ILCS 5/24-
1.6(a) (2) (B), a felony. The complaint alleged that Mr. Horstman’s
gun was uncased.

The following morning, Mr. Horstman was brought before a judge
in the Circuit Court of DuPage County. The prosecutor, Liam
Brennan, told the judge that Mr. Horstman had exposed himself to
two children and then chased them, requested that bail be set at
$250,000, and further requested that Mr. Horstman be obliged to
surrender all other weapons he owned and avoid unsupervised contact
with minors. The judge set Mr. Horstman’s bond at $250,000 and
agreed to the terms suggested by the prosecutor. Mr. Horstman
posted bond later in the day and was released.

On August 7, 2001, DuPage County State’s Attorney Joe Birkett
dropped the charges against Mr. Horstman and issued a press release
explaining that he had done so because Mr. Horstman had complied
with the law and there was no evidence on which to proceed with
prosecution. Mr. Horstman subsequently filed this seventeen-count
suit against the County of DuPage, John Zaruba, Sheriff of DuPage
County, Liam Brennan, Assistant State’s Attorney of DuPage County,
Dep. Thomas Weiser, Sgt. Michael Tallone, and Det. Joseph

DelGiudice (collectively, the “DuPage defendants”), and Dick



that Mr. Birkett and Mr. Brennan have failed to establish that
their actions were protected by prosecutorial immunity.

Mr. Birkett and Mr. Brennan correctly point out that Mr,
Horstman presents no evidence to support the existence of the
alleged plot, but at this time, he does not need to; he need only
make a short, plain statement sufficient to notify the defendants
as to the nature of the accusation. Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002). I cannot say that the prosecutors’ acts
were shielded by absolute immunity, or even qualified immunity,
until it is clear what those acts were. See Alvarado v. Litscher,
267 F.3d 648, 651-52 (7th Cir. 2001) (“Because an immunity defense
usually depends on the facts of the case, dismissal at the pleading
stage is inappropriate.”). The motion to dismiss all claims on the
ground of prosecutorial immunity is denied.

Next, the prosecutors argue that common law public official
immunity bars the state-law claims against them (Counts VI-XIV).
However, the case they cite, Aboufariss v. City of DeKalb, 713
N.E.2d 804 (211. App. Ct, 1999), does not support dismissal of
those claims. “To be protected, a public official’s actions must
fall within the scope of an official's authority and should not be
the result of malicious motives.” Id, at 812 (internal quotation
omitted). In upholding an award of summary judgment in favor of the
defendant prosecutors in Aboufariss, the court noted that “there is

no evidence in the record to support plaintiff's argument” that the

14


VI.

Defendants Sheriff John Zaruba, Dep. Thomas Weiser, Sgt.
Michael Tellone, Det. Joseph DelGiudice, and the Sheriff’s
Department of DuPage County move to dismiss the claims against
them. Defendants argue that the only mention of Sgt. Tellone in
the facts section of Mr. Horstman’s complaint is an allegation that
Sgt. Tellone witnessed the criminal charge against Mr, Horstman, an
act that they claim is not actionable. Jenkins v. Keating, 147 F.3d
577, 584 (7th Cir. 1998) (holding that plaintiff could not bring a
false arrest claim against an officer who only signed a complaint).
However, the complaint alleges that Sgt. Tellone falsely witnessed
the charge and, together with others, prepared and filed factually
false investigation and duty reports to substantiate the false
charges. On a motion to dismiss, this is sufficient to state a
claim.

Detective DelGiudice argues that the counts against him should
be dismissed because the acts alleged are not sufficient to sustain
his claim. I agree. The statements and actions Mr. Horstman
attributes to Det. DelGiudice in the facts section of the complaint
fall well within the legal standards for permissible interrogation,
or at least within the realm protected by qualified immunity

Dep. Weiser makes the premature argument that Mr. Horstman’s
claims for false arrest, false imprisonment, and malicious

prosecution are barred because Dep. Weiser had probable cause to

16


Horstman’s belt with two handgun magazines inside. He asked Mr

Horstman if he had a gun, Mr. Horstman replied, “I’m transporting
my firearm in my backpack.” Deputy Weiser informed Mr, Horstman
that he was under arrest for unlawful use of weapons.

Deputy Weiser radioed for backup. As other officers arrived,
they stripped Mr. Horstman of his backpack and other possessions,
which included a combat knife, concealment holster, pepper spray,
canteen, pocket knife, Firearm Owner’s Identification Card
(“F.0.1.0.%), and assorted survival gear, as well as a zippered gun
case holding an unloaded gun and ammunition in separate Velcro
compartments. Mr. Horstman asked why he was being held, and Deputy
Weiser replied, “You look like someone we’re looking for,” Mr.
Horstman was subsequently presented in two “roll-up” lineups where
he was made to stand facing a squad car some distance away. Mr.
Horstman was then taken to the DuPage County Jail, strip-searched,
and held. Later that day, Mr. Horstman signed a waiver of his
Miranda rights and Detective Joseph DelGiudice interrogated him.
Det. DelGiudice accused Mr. Horstman of carrying a concealed
weapon, Mr. Horstman replied that he had complied with 720 ILCS
5/24-1(a) (4), which allows a holder of a currently valid F.O.I.D.
to transport an encased, unloaded weapon. Detective DelGiudice then
questioned Mr. Horstman about an incident of a man exposing himself
to two ten-year-old girls on the trail. He asked Mr. Horstman why

his name came up in the police department’s computer database.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

JOHN R. HORSTMAN, SEP 2 9 2003

Plaintiff,

ve No, 02 C 5218
COUNTY OF DUPAGE, a political subdivision
of the State of Illinois, JOHN ZARUBA,
Sheriff of DuPage County, Illinois,

JOE BIRKETT, State's Attorney of DuPage
County, Illinois, LIAM BRENNAN,
individually and in his capacity as
Assistant State’s Attorney of DuPage
County, Illinois, DEPUTY T. WEISNER (Badge
#188), and DETECTIVE JOSEPH DEILGIUDICE,
individually and as agents and employees
ef the County of DuPage, and DICK DEVINE,
State’s Attorney of Cook County, JOHN DOE
and all others not presently known,

Defendants.

MEMORANDUM OPINION AND ORDER

I,

On July 24, 2001, plaintiff John R. Horstman was riding his
bicycle on a public trail in DuPage County. As Mr. Horstman
approached a bridge, a DuPage County Sheriff squad car pulled
forward and blocked his path. Deputy Thomas Weiser asked Mr.
Horstman where he was going and how long he had been on the trail.
Mr. Horstman replied that he was heading home and that he had been
on the trail for an hour and forty-five minutes. Deputy Weiser left

the squad car, ordered Mr. Horstman to put his hands on the hood,

and frisked Mr. Horstman. He discovered a magazine pouch on Mr.



As there is no basis for holding DuPage County liable for the
actions of the other DuPage defendants, its motion to dismiss the
claims against it is granted.

Vv.

DuPage County State’s Attorney Joe Birkett and his assistant
Liam Brennan move to dismiss the claims against them on the grounds
that as prosecutors, they are absolutely immune from suit under §
1983, or in the alternative, that qualified immunity shields them
from liability. They also argue that the conspiracy claim should be
dismissed because Mr. Horstman failed to plead that claim properly.
Mr. Horstman disputes the immunity defense, asserting that Mr.
Birkett and Mr. Brennan’s actions took place outside the protected
sphere of prosecutorial immunity. He also argues that the
conspiracy claim is properly pleaded. I find that resolution of the
immunity question requires a factual analysis not possible at this
stage of the proceedings, and therefore deny the motion to dismiss
the claims against Mr. Birkett and Mr, Brennan on immunity grounds.
I further find that the conspiracy claim against them meets the
liberal notice pleading standards of the Federal Rules of Civil
Procedure.

The party asserting immunity bears the burden of establishing
that his actions are protected. Antoine v. Byers & Anderson, Inc.,
508 U.S. 429, 432 (1993). The leading case defining the contours of

absolute immunity for prosecutors from § 1983 claims is Buckley v.

12


defendants knowingly and recklessly acted to harm the plaintiff.
Id. Mr. Horstman alleges that the prosecutors acted with the
malicious motive of harassing law-abiding gun owners. If true, this
allegation would bar an official immunity defense, but its truth
has yet to be tested. The reasoning of Aboufariss is dependent on
the existence of a factual record, and the case is thus
inapplicable on a motion to dismiss where there is no record to
evaluate. The motion to dismiss the state-law claims on the ground
of common law official immunity is denied.

Finally, Mr. Birkett and Mr. Brennan argue that Mr. Horstman
has failed to adequately plead his federal and state~law conspiracy
claims (Counts II and XIV), pointing to Kunik v. Racine County, 946
F.2d 1574 (7th Cir. 1991) to support the proposition that
conclusory allegations of conspiracy are not sufficient to
withstand a motion to dismiss under Fed. R. Civ. P. 12(b)6. But
Kunik was overruled by the Seventh Circuit in Walker v. Thompson,
288 F.3d 1005 (7th Cir. 2002), which held that Kunik “cannot be
squared with” the Supreme Court’s 2002 decision in Swierkiewicz and
that “it is enough in pleading a conspiracy to indicate the
parties, general purpose, and approximate date.” Id,, 1007-8. This
is precisely what the complaint contains, The motion to dismiss the

conspiracy counts is denied.

15