In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-4324 & 06-1165

ERIK REDWOOD and JUDE REDWOOD,

Plaintiffs-Appellants,

Cross-Appellees,

v.

ELIZABETH DOBSON and HARVEY CATO WELCH,

Defendants-Appellees,

and

MARVIN IRA GERSTEIN,

Defendant-Appellee,

Cross-Appellant.

____________

Appeals from the United States District Court

for the Central District of Illinois.

No. 00-2305—Michael P. McCuskey, Chief Judge.

____________

ARGUED JANUARY 8, 2007—DECIDED FEBRUARY 7, 2007

____________

Before EASTERBROOK, Chief Judge, and ROVNER and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. This is a grudge match.

Harvey Cato Welch represented Erik Redwood in a

criminal prosecution for battery. Redwood was convicted
2 Nos. 05-4324 & 06-1165

and maintains that Welch is at fault. Redwood wants

Welch to sign an affidavit confessing that he supplied

ineffective assistance; he believes that with such an

affidavit he could have his criminal record expunged.

Welch, who believes that his legal work met professional

standards, has refused to fall on his sword for Redwood’s

benefit. Redwood has retaliated by insulting Welch in

public, calling him, among other things, a “shoe-shine

boy.” Redwood is white and Welch black; Welch believes

that this phrase, when spoken to an adult, is a racial slur.

During October 1998 a scuffle occurred after Redwood

again called Welsh a “shoe-shine boy.” Redwood filed a

battery suit in state court; Welch filed a defamation

counterclaim and asked the State’s Attorney to prosecute

Redwood for inciting a breach of the peace. Erik Redwood

was represented in that litigation by attorney Jude

Redwood, his wife, who also is a plaintiff in the federal

suit. Elizabeth Dobson, an Assistant State’s Attorney,

decided that Erik Redwood had committed a hate crime

by using a demeaning term that led to a physical confrontation. Officer Troy Phillips of the Urbana Police

Department presented the evidence to the grand jury,

which returned an indictment. Attorney Marvin Gerstein,

representing Welch in the civil litigation, later wrote to

Jude Redwood suggesting that, if the litigation could be

resolved amicably, he would try to persuade Dobson to

dismiss the criminal charge. The Redwoods rejected that

offer. The civil case went to trial; while the jury was

deliberating, the parties reached a settlement. Meanwhile

the criminal prosecution had been dismissed on the

ground that the state’s hate-crime law does not apply to

speech that does not threaten immediate physical injury.

See People v. Redwood, 335 Ill. App. 3d 189, 780 N.E.2d

760 (4th Dist. 2002).

While the prosecutor’s appeal in the criminal prosecution was pending, the Redwoods filed this federal action
Nos. 05-4324 & 06-1165 3

against Dobson, Welch, Gerstein, Phillips, and the City of

Urbana. The complaint, signed by Jude Redwood as

counsel (she is also a plaintiff, alleging loss of consortium)

accuses the five defendants of violating the first amendment by discriminating against Erik Redwood’s religion

(which, he maintains, leads him to “teach truth and

righteousness to all persons, including defendant Harvey

Welch”, a curious euphemism for personal insults) and of

conspiracy to maintain a malicious prosecution. These

acts are alleged to violate 42 U.S.C. §1983 and §1985,

though the Redwoods have never tried to explain why

a state may not apply a rule that is neutral with respect

to the speaker’s religion. See Employment Division v.

Smith, 494 U.S. 872 (1990); cf. Wisconsin v. Mitchell, 508

U.S. 476 (1993). The complaint also presents several

claims under state law.

Urbana settled the litigation for nuisance value. After

extended discovery, the district court granted summary

judgment for the four other defendants. Phillips prevailed

as a result of the absolute immunity that applies to

witnesses in criminal proceedings. See Briscoe v. LaHue,

460 U.S. 325 (1983). The Redwoods have abandoned

their claims against him but appeal with respect to the

remaining three defendants. The Redwoods also appeal

from the denial of their motion for sanctions in discovery,

Gerstein has filed a cross-appeal to protest the district

court’s denial of his motion for attorneys’ fees, and

both sides ask us to award sanctions for what they call

frivolous arguments in this court.

Dobson, Welch, and Gerstein are right to label most

of the Redwoods’ appellate arguments as frivolous. “Malicious prosecution” is not a constitutional tort independent of complaints about wrongful arrest and detention,

and Erik Redwood was never placed in custody. See

Albright v. Oliver, 510 U.S. 266 (1994); Newsome v.

McCabe, 256 F.3d 747 (7th Cir. 2001). Dobson’s decision to
4 Nos. 05-4324 & 06-1165

commence a criminal prosecution is covered by absolute

immunity. See Imbler v. Pachtman, 424 U.S. 409 (1976).

Although the plaintiffs insist that Dobson is being sued

for administrative rather than prosecutorial duties, the

only “administrative” act about which they complain is

her decision to put Phillips before the grand jury as a

summary witness, rather than to call Welch. That’s

precisely the kind of prosecutorial decision that immunity protects. Unlike activity of the sort at issue in

Buckley v. Fitzsimmons, 509 U.S. 259 (1993)—such as a

prosecutor’s personal conduct of an interrogation, or a prelitigation search or seizure—the choice of witnesses to

present is part of the prosecutorial function and cannot

independently violate anyone’s rights (as a search or

seizure might do).

As the complainant in the criminal prosecution, Welch

lacks absolute immunity, see Kalina v. Fletcher, 522 U.S.

118 (1997), but he’s not a state actor and so can’t be liable

under §1983 in the first place. That is why the Redwoods

invoke 42 U.S.C. §1985(3), which covers conspiracies

between public and private actors. But where’s the conspiracy? Plaintiffs treat all contact between prosecutors

and complaining witnesses as “conspiracy.” The minimum

ingredient of a conspiracy, however, is an agreement to

commit some future unlawful act in pursuit of a joint

objective. See United States v. Lechuga, 994 F.2d 346 (7th

Cir. 1993) (en banc). The record in this case would not

permit reasonable jurors to conclude that Welch and

Dobson had a joint objective, let alone that they agreed

to pursue it through unlawful acts. Welch complained to

the prosecutor, seeking an end to what he deemed racist

harassment; Dobson acted as she conceived the public

interest to require. Dobson had no reason to do any favors

for Welch and received nothing (except this lawsuit) in

return for her official actions. No prosecutor handles a

case in an isolation tank. Discussions with victims,
Nos. 05-4324 & 06-1165 5

witnesses, and police are common. If these ordinary acts

amount to “conspiracy” to violate the Constitution, then

immunities will be worthless and both witnesses and

prosecutors would be induced to remain passive rather

than enforce the criminal law vigorously.

Then there is Gerstein, whose only role was to represent

Welch in the tort litigation, and neither §1983 nor §1985(3)

applies to that private activity. The Redwoods believe

that Gerstein acted unethically by offering to contact

Dobson and ask her to dismiss the criminal charge as

part of a settlement. Whether or not that step was appropriate as a matter of legal ethics in Illinois, it does not

violate any rule of federal law—for so far as §1983 and the

Constitution are concerned, criminal charges may be

dismissed in order to facilitate civil settlement. See

Newton v. Rumery, 480 U.S. 386 (1987). Calling the offer

“extortion,” as the plaintiffs do, does not make it so, as

Newton demonstrates. See also Dye v. Wargo, 253 F.3d 296

(7th Cir. 2001). If Gerstein acted wrongfully in suggesting a global resolution, the Redwoods’ remedy lay in the

state court handling the civil litigation (to which they

never complained), or the Attorney Registration and

Disciplinary Commission of Illinois (to which they did),

rather than in a federal lawsuit.

The only reason why the Redwoods’ appeal is not wholly

frivolous is that the district court dismissed the state-law

claims on the merits rather than relinquishing supplemental jurisdiction. A court that resolves all federal

claims before trial normally should dismiss supplemental

claims without prejudice. 28 U.S.C. §1367(c)(3). That both

sides have allowed animosity to get the better of legal

judgment, however, implies the wisdom of bringing the

contretemps to a conclusion in a single forum. The statelaw claims were not complex. On appeal, the Redwoods

treat them as replays of the federal claims, and their

principal argument is that a jury could find a conspiracy
6 Nos. 05-4324 & 06-1165

among the defendants. As we have rejected that argument with respect to the federal theories, it fails for statelaw theories as well.

A profusion of motions and cross-motions for sanctions—and the conduct underlying some of these motions—demonstrates the extent to which counsel have

allowed personal distaste to displace dispassionate legal

analysis. Most depositions are taken without judicial

supervision. Witnesses often want to avoid giving answers,

and questioning may probe sensitive or emotionally

fraught subjects, so unless counsel maintain professional

detachment decorum can break down. That happened

here; the results were ugly.

Gerstein’s deposition was taken by Charles L. Danner

on behalf of both Redwoods, though Jude Redwood attended and sometimes acted as counsel in addition to her

role as a plaintiff. Gerstein’s counsel was Roger Webber,

though Gerstein himself peppered the transcript with

legal arguments. The deposition began badly when Danner

spent the first 30 pages or so of the transcript exploring

Gerstein’s criminal record—mostly vehicular violations.

Danner made no effort to explain how these questions

could lead to admissible evidence, and they got under

Gerstein’s skin. After Gerstein spontaneously refused to

answer some of the questions (remarking “That’s none

of your business”), Webber began instructing Gerstein not

to answer.

Webber gave no reason beyond his declaration that the

questions were designed to harass rather than obtain

information—which may well have been their point, but

Fed. R. Civ. P. 30(d) specifies how harassment is to be

handled. Counsel for the witness may halt the deposition

and apply for a protective order, see Rule 30(d)(4), but

must not instruct the witness to remain silent. “Any

objection during a deposition must be stated concisely
Nos. 05-4324 & 06-1165 7

and in a non-argumentative and non-suggestive manner.

A person may instruct a deponent not to answer only

when necessary to preserve a privilege, to enforce a

limitation directed by the court, or to present a motion

under Rule 30(d)(4).” Fed. R. Civ. P. 30(d)(1). Webber

violated this rule repeatedly by telling Gerstein not to

answer yet never presenting a motion for a protective

order. The provocation was clear, but so was Webber’s

violation.

Danner then turned to Gerstein’s troubles with the

state bar, another topic whose relevance (or ability to lead

to relevant evidence) has never been explained. Gerstein

was censured for misconduct in 1991 and suspended for

a month in 2002. Although the reasons are matters of

public record, Danner demanded that Gerstein confess

them in the deposition; Gerstein professed inability to remember, and when Danner inquired whether Gerstein had

been ordered to obtain psychiatric counseling or angermanagement therapy, Webber again told him not to

answer. Richard Klaus, representing Dobson, opined that

Danner had committed a misdemeanor under Illinois

law by asking questions about Gerstein’s mental health.

What happened next must be set out in full to be believed:

Q [by Danner]. Mr. Gerstein, have you ever

engaged in homosexual conduct?

MR. WEBBER: Objection, relevance.

MR. KLAUS: I join.

MR. WEBBER: I believe it violates Rule 30, and 

 I’m instructing him not to answer the question.

A. I’m not answering the question.

MR. KLAUS: I join the objection.
8 Nos. 05-4324 & 06-1165

Q. Mr. Gerstein, are you involved in any type of

homosexual clique with any other defendants

in this action?

MR. WEBBER: Same objection. Same instruction.

MR. KLAUS: I join the objection.

Gerstein would have been entitled to stalk out of the room.

Webber justifiably could have called off the deposition and

applied for a protective order (plus sanctions). Fed. R. Civ.

P. 26(c), 30(d)(3), (4). Instead he told Gerstein not to

answer, which was untenable as no claim of privilege had

been advanced.

After a brief recess, Gerstein acquired “amnesia” and

started playing word games.

Q. During the last recess that we had that we just

reconvened from, did you consult with your

attorney concerning this deposition?

Instead of asserting the attorney-client privilege, a genuine reason not to answer (though perhaps consultation

would have violated an order that the deposition be

conducted without such conferences), Gerstein played

dumb.

A. I don’t understand the question.

Q. We just had a recess.

A. I understand that.

Q. Do you understand that? During that recess

period, did you take that time to consult with

your attorney regarding this deposition?

A. I don’t know what you mean by the word

consult.

Q. Did you speak with your attorney regarding

this deposition?
Nos. 05-4324 & 06-1165 9

A. I don’t think so. I don’t know.

Q. Do you know how—did you write anything to

your attorney during that recess?

A. Write anything?

Q. Correct.

A. No.

Q. Did you speak with your attorney during that

recess?

A. I had words with my attorney. We exchanged

a conversation.

Q. Were those conversations—or strike that. Did

any of the comments in that conversation or

those conversations refer to any aspect of this

deposition?

A. I can’t recall.

The deposition fills a further 98 pages of transcript,

unedifying to the end. At one point Danner asked whether

the secretary who had typed the letter in which Gerstein

offered to ask Dobson to dismiss the criminal prosecution was married; Webber instructed Gerstein not to

answer. Danner asked whether the secretary had children; before Webber could leap in, Gerstein replied that

she did. What this—indeed, what most of Danner’s

questions—had to do with the legal proceeding against

Gerstein is unfathomable. Plaintiffs say that Gerstein once

gave Danner “the finger,” and though the transcript does

not reflect that gesture the proceedings were heated

enough that this could well have happened. (Gerstein

does not deny this accusation; a video tape of the deposition was made, but we have not consulted it.)

Danner’s conduct of this deposition was shameful—not

as bad as the insult-riddled performance by Joe Jamail
10 Nos. 05-4324 & 06-1165

that incensed the Supreme Court of Delaware, see Paramount Communications Inc. v. QVC Network Inc., 637 A.2d

34, 52-57 (Del. 1994), but far below the standards to which

lawyers must adhere. Gerstein, Webber, and Klaus were

goaded, but their responses—feigned inability to remember, purported ignorance of ordinary words (the “consult”

episode was not the only one), and instructions not to

respond that neither shielded a privilege nor supplied

time to apply for a protective order—were unprofessional

and violated the Federal Rules of Civil Procedure as well

as the ethical rules that govern legal practice.

At one point, after Jude Redwood said that, because

this was a deposition rather than a trial, Danner was

entitled to fish for evidence whether or not the answers

would be admissible, Klaus replied: “[T]his is not a

discovery deposition. There’s no such distinction or

dichotomy under the federal rules. Everything that is

asked here must meet the standard of the federal rules of

evidence.” Klaus either did not know, or did not care, that

discovery may be used to elicit information that will

lead to relevant evidence; each question and answer

need not be one that could be one that would itself be

proper at trial. But Danner’s questions had ventured so far

beyond the pale that overstatement on the other side was

inevitable.

When the Redwoods sought sanctions in the district

court, the judge declared that everyone had behaved

badly and that, because Danner was the greater offender,

no sanctions would be appropriate. The district judge

remarked that it was “ludicrous” for the Redwoods to

argue that lawyers may not instruct witnesses not to

answer. Given Rule 30(d)(1), however, the Redwoods had

(and have) a meritorious position on this issue.

Mutual enmity does not excuse the breakdown of

decorum that occurred at Gerstein’s deposition. Instead of
Nos. 05-4324 & 06-1165 11

declaring a pox on both houses, the district court should

have used its authority to maintain standards of civility

and professionalism. It is precisely when animosity runs

high that playing by the rules is vital. Rules of legal

procedure are designed to defuse, or at least channel into

set forms, the heated feelings that accompany much

litigation. Because depositions take place in law offices

rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control.

Sanctions are in order, but they need not be monetary.

See Fed. R. Civ. P. 30(d)(3), 37(a)(4), (b)(2). Because the

arguments pro and con have been fully ventilated in this

court, and none of the attorneys has asked for a hearing

under Fed. R. App. P. 46(c), we see no need to drag out

this controversy with a remand. Attorneys Danner,

Gerstein, and Webber are censured for conduct unbecoming a member of the bar; attorney Klaus is admonished.

(We differentiate in this way because a censure is the

more opprobrious label, see In re Charge of Judicial

Misconduct, 404 F.3d 688, 695-96 (2d Cir. 2005), and

Klaus’s misconduct is substantially less serious than that

of the other lawyers.) Any repetition of this performance,

in any court within this circuit, will lead to sterner

sanctions, including suspension or disbarment.

We are not done with motions and cross-motions for

sanctions and other relief. Gerstein has asked us to

penalize the Redwoods under Fed. R. App. P. 38 for taking

a frivolous appeal. As we have explained, the Redwoods’

principal arguments on the merits were frivolous, but their

appeal with respect to discovery sanctions has been

successful. Although we have the discretion to award

Rule 38 sanctions issue-by-issue as well as appeal-byappeal, we elect not to do so because fault is widely

distributed. It should be plain to the Redwoods from what

we have said, however, that any effort to resume this

spite contest under another legal theory would not be in
12 Nos. 05-4324 & 06-1165

their financial interest (and would jeopardize Jude Redwood’s future ability to practice law in federal court).

In addition to asking for sanctions in response to the

Redwoods’ appeal, Gerstein filed a cross-appeal to contest

the district court’s order denying his motion in that

forum for attorneys’ fees under 42 U.S.C. §1988. Such

awards in a defendant’s favor are proper only if the suit

is frivolous or vexatious. See Christiansburg Garment Co.

v. EEOC, 434 U.S. 412 (1978). The Redwoods responded

with a Rule 38 motion of their own, asking us to award

attorneys’ fees in their favor on the theory that Gerstein’s

cross-appeal is frivolous. In a small concession, Gerstein

has not asked for fees under Rule 38 on the theory that

the Redwoods’ Rule 38 motion is frivolous; perhaps he

fears infinite regress.

Any defendant who seeks fees under §1988 for the cost

of defense in the district court has a tough row to hoe, for

two reasons—the legal rule that §1988 creates is asymmetric in plaintiffs’ favor, see Hughes v. Rowe, 449 U.S. 5

(1980), and appellate review of the district court’s decision

is deferential. See Webb v. Board of Education, 471 U.S.

234 (1985). The district judge did not abuse his discretion.

As we’ve mentioned, the state-law claims presented under

the supplemental jurisdiction were not as fatuous as those

arising under federal law. Although we would have been

inclined to award sanctions were the decision ours to

make, it is not; discretion includes the freedom to take

decisions other than the appellate tribunal’s first preference.

Finally, we have multiple motions to strike portions of

the opposing side’s briefs. The Redwoods asked this court

to strike parts, if not all, of the statement of facts in

Dobson’s brief; Gerstein asked us to strike parts, if not all,

of the statement of facts in the Redwoods’ brief. Each

motion—which was deferred by a motions panel to the
Nos. 05-4324 & 06-1165 13

hearing on the merits—asserts that statements in the

other side’s brief misrepresent the record. And each motion was met, first, with a defense of the brief’s accuracy

and, second, with a motion under Rule 38 for sanctions

for filing a frivolous motion to strike.

Each of the motions to strike was indeed frivolous, for

the reasons given in Custom Vehicles, Inc. v. Forest River,

Inc., 464 F.3d 725 (2006) (Easterbrook, J., in chambers).

The Federal Rules of Appellate Procedure provide a

means to contest the accuracy of the other side’s statement of facts: that means is a brief (or reply brief, if the

contested statement appears in the appellee’s brief), not a

motion to strike. Motions to strike sentences or sections

out of briefs waste everyone’s time. They go to a motions

panel, which does not know (and cannot efficiently learn)

which statements are accurate depictions of the record

and, if erroneous, whether the error is legally material.

If the motions panel defers decision to the hearing on the

merits, as was done here, then the motion does nothing

except increase the amount of reading the merits panel

must do, effectively giving each side argument on top of

the word limit set by Fed. R. App. P. 32. Motions to

strike words, sentences, or sections out of briefs serve no

purpose except to aggravate the opponent—and though

that may have been the goal here, this goal is not one

the judicial system will help any litigant achieve. Motions

to strike disserve the interest of judicial economy. The

aggravation comes at an unacceptable cost in judicial time.

These motions were filed before the opinion in Custom

Vehicles issued, however, and therefore are not appropriate grounds of monetary sanctions. (It is too late to count

the motion toward the allowable length of the brief, the

sanction adopted in Custom Vehicles.) Future motions

of this kind will not be so charitably received.

The judgment is affirmed. Attorneys Charles L. Danner,

Marvin Ira Gerstein, and Roger B. Webber are censured
14 Nos. 05-4324 & 06-1165

for conduct unbecoming a member of the bar, and attorney

Richard Klaus is admonished for conduct unbecoming a

member of the bar.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-7-07