In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3750

ROGER RASCHE and VELMA RASCHE,

Plaintiffs-Appellants,

v.

VILLAGE OF BEECHER, an Illinois

Municipal Corporation and PAUL

LOHMANN, individually and as Agent

for the Village of Beecher,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 2168—Joan Humphrey Lefkow, Judge.

____________

ARGUED MAY 30, 2003—DECIDED JULY 16, 2003

____________

Before FLAUM, Chief Judge, EASTERBROOK and RIPPLE,

Circuit Judges.

RIPPLE, Circuit Judge. Roger and Velma Rasche (“the

Rasches”) brought this action pursuant to 42 U.S.C. § 1983

against the Village of Beecher and the Village President

Paul Lohmann. They alleged that they had been the victims of retaliation because they had exercised their First

Amendment rights by opposing Village bond proposals.

The district court granted summary judgment for the Vil-
2 No. 02-3750

1 We see no reason to disturb the district court’s determination that Mrs. Rasche’s interest in this litigation is sufficient to

give her standing to appear as a litigant in this action. See infra

note 8.

lage and for Mr. Lohmann. The Rasches appeal. For the

reasons set forth in this opinion, we now affirm the judgment of the district court.

I

BACKGROUND

Roger Rasche owns and operates a vehicle towing business out of his home, located on Illinois Route 1 within the

Village of Beecher, Illinois. He began his business in 1978

and has maintained a sign on his property since 1978. The

business is licensed only in Mr. Rasche’s name, but his wife,

Velma Rasche, works full time for the business and does

not receive a separate salary. Mr. Rasche therefore characterizes the business as a “family business” owned by

himself and his wife. R.37, Ex.3 at 12-13.1

The Village of Beecher, Illinois, is a municipal corporation with a Board of Trustees. The Village President is

Paul Lohmann, an individual defendant in this action. In

1997, the Village Board of Trustees enacted an ordinance

authorizing the issuance of $4.5 million in bonds for the

purchase of a golf course. Mr. Rasche was a principal

organizer of a petition drive to require a referendum

concerning the purchase of the course. Mr. Rasche spoke

publicly concerning this effort, in addition to co-sponsoring a political advertisement in a newspaper and delivering fliers listing his home number. According to a Village

resident, Pat Schroeder, one of the Trustees, Gary LaGesse,
No. 02-3750 3

2 The ordinance does not expressly prohibit temporary and

portable signs, but it defines a sign as one that is affixed on land

or a structure—thus arguably excluding, at least by implication,

temporary and portable signs. Under the ordinance, all signs

must be approved by the building inspector on application for

a permit. See R.32, Ex.A at 3.

in his capacity as the chair of an unrelated association, the

Beecher Recreation Association, stated at a meeting of that

association in 1997 that he “would get even with anyone

opposed to the Golf Course Referendum” and that he

“would take out anybody who stood in [the] way of purchasing [the] golf course.” R.37, Ex.6 at 10, 40. The voters

of the Village of Beecher defeated the purchase of the

golf course at an election held on March 17, 1998.

In 1999, the Village of Beecher Board enacted an ordinance to issue $907,000 of bonds to pay for improvements

to the Village waterworks. Mrs. Rasche was the leader and

initiator of the petition drive to obtain a referendum on

that proposal. The Rasches circulated the majority of the

petitions on the waterworks bonds, and Mrs. Rasche filed

the petitions with the Village of Beecher City Clerk. The

waterworks bond ordinance was defeated by the Village

of Beecher voters in an election held on March 21, 2000.

At least as early as 1997, the Village Board of Trustees

was concerned about the appearance of Route 1. In July

1997, the Village Trustees decided to authorize enforcement of the Village’s ordinance against temporary or

portable signs. On August 11, 1997, at their meeting, the

Trustees addressed whether the ordinance prohibited

temporary or portable signs.2

 The Board did not take

immediate action, but held a public hearing on the temporary or portable sign issue. Affected property owners,

including the Rasches, received notification by letter. At
4 No. 02-3750

the meeting, which Mr. Rasche attended, the signs of the

Rasches and seven other businesses were discussed.

At the time it was purchased in 1978, the Rasches’ sign

was portable. However, Mr. Rasche had rotated the wheels

upward, had placed the sign on bricks and had affixed it

to the ground by a play swing cable. The sign had

chicken wire wrapped around it to prevent the letters

from blowing off. An extension cord from the Rasche’s

garage provided power to flashing lights on the sign. Mr.

Rasche did not obtain a building permit when he installed the sign in 1978.

The zoning ordinance regarding signs had been enacted in 1974. Under the 1974 code, before a sign could be

erected, the owner had to obtain a building permit and

approval from the building inspector. Although the code

did not prohibit explicitly temporary or portable signs, it

impliedly defined a sign as requiring a foundation. A sign

is defined as “a name, identification, description, illustration . . . which is affixed . . . upon a structure or land.” R.32,

Ex.A at 3 (emphasis added). In 1992, the Village amended

its zoning ordinance to prohibit “flashing signs,” to require that any wiring conform to the electrical code and

to require that the sign be able to withstand wind pressure

of not less than thirty pounds per square foot. Id. The

code also stated that prior existing non-conforming

signs could be used for any remaining depreciation in

value, but not to exceed five years beyond the enactment

of the ordinance.

In 1999, the Village appointed its first “Code Enforcement Officer,” Julie Riechers. Her duties included identifying any code violations and speaking with the owners

about conforming to the requirements. Village Trustee

Patrick Lane stated in his deposition that it was his understanding “that with respect to signs and compliance with
No. 02-3750 5

3 According to Mr. Barber, his duties as the Village Administrator “include making recommendations to the Village Board of

Trustees regarding local legislation, zoning and building issues,

and local ordinance enforcement.” R.32, Ex.A at ¶ 3. He attends

all meetings of the Board of Trustees and answers to and takes

direction from the Board of Trustees and the Village President.

See id. at ¶¶ 2-4.

4 The Rasches maintain that, at this meeting, the “only specific

sign that Barber and Lohmann directed Riechers to look at

was the Rasches’ sign.” Appellants’ Br. at 6. However, as noted

by the district court, this characterization misrepresents the

record. The Rasches base their assertion solely on a statement

made on page 25 of Riechers’ deposition. In response to the

question, “[D]id [Mr. Lohmann and the Village Administrator] mention the Rasche sign to you as one of the signs they

wanted you to look at?,” Ms. Riechers responded “yes.” R.32,

Ex.Riechers’ Dep. at 25. It initially should be noted that this

response itself does not state, as the Rasches contend, that the

Rasche sign was the only sign mentioned; rather the response

indicates that the Rasche sign was “one of the signs they

wanted [Ms. Riechers] to look at.” Id. Further, the dialogue

immediately following this question completely negates plaintiff’s contention:

Q: . . . [D]id they mention the Rasche sign to you as one of

the signs they wanted you to look at?

A: Yes. [end of page 25]

(continued...)

the sign ordinances of the Village of Beecher that would

have been solely Julie’s [Riechers’] responsibility as to what

were proper signs and what were improper signs.” R.37,

Ex.10 at 24-25. In the spring of 1999, Village President,

Paul Lohmann, and the Village Administrator,3

 Robert

Barber, expressed to Riechers their concern about the

appearance of Route 1.4
6 No. 02-3750

4 (...continued)

Q: Did they mention any other signs by name?

A: Risings, Shady Long Golf Course.

Q: Excuse me a second. Risings, Shady Long Golf Course?

A: Actually I think I’m going to take that back. I assumed this

all on my own. I’m thinking about it. No one told me

to deal with any particular thing. They just said go to

Route 1, pick out things that you think are in violation.

Q: Of the Village—

A: Anything, right.

Q: Of anything?

A: Right. They did not tell me anything like even the sign,

the Rasche sign. We just discussed different—I just actually did it on my own.

Id. at 25-26.

The Rasches do not include page 26 of the deposition in

their appendix, although they do include and cite to page 25.

They forwarded the same mischaracterization of facts in the

district court. The district court explained:

While plaintiffs allege that at this meeting the only sign

Lohmann told Riechers to specifically look at was Roger’s

sign, they present at best a scintilla of evidence of this

fact. Plaintiffs rely on Riechers’ deposition where she

states that Barber and Lohmann did mention the Rasche

sign as one they wanted Riechers to look at. A few lines

later, however, Riechers retracted the statement and testified, “Actually I think I’m going to take that back. I assumed this all on my own. I’m thinking about it. No one

told me to deal with any particular thing. They just said go

to Route 1, and pick out things that you think are in violation.” (Riechers Dep. at 25-26.) (Disappointingly, plaintiffs

fail to acknowledge page 26 of Riechers’ deposition testi-

(continued...)
No. 02-3750 7

4 (...continued)

mony.) With no argument addressing the testimony, which

fairly read is that Lohmann did not single out the Rasche

property, there is no basis to infer retaliation based on this

meeting.

R.40 at 8. In a footnote, the court recognized that Riechers’

immediate recantation “is consistent with another portion of

Riechers’ deposition testimony. Riechers previously was asked

if specific property owners along Route 1 were singled out for

her to talk to. Riechers responded that there were not, and that

she was to talk to all property or business owners along Route 1.

(Id. at 20).” R.40 at 8 n.8.

On July 9, 1999, Riechers visited with seven business

owners, including Mr. Rasche, concerning their zoning

violations. On July 14 and 15, 1999, Riechers sent letters

to building owners who were not available on July 9,

explaining that their signs were in violation of the Village

Zoning Ordinance, that the sign needed to be removed

within 30 days and that the Village might file with the

Village Attorney a formal complaint. See R.32, Ex.J. Her

memorandum to the Trustees, dated July 16, states that

some of the property owners had complied with the

prior instructions. This memo also notes that on July 9,

Riechers spoke with Mr. Rasche, “gave him copies of the

Ordinances he was violating and gave him 30 days to

remove the sign and clean up the junk. He was also

issued a ticket for no village sticker on the RV that he

owns and is parked in front of his house.” R.32, Ex.M at 1.

On August 9, Riechers visited several property owners,

including Mr. Rasche. This time she reported that Mr.

Rasche had “clean[ed] up the junk in the driveway. However, the sign was still there and he was issued a ticket

for $25.00. He did unplug the extension cord and the sign
8 No. 02-3750

5 The Rasches state repeatedly in their brief that “[w]hen Code

Enforcement Officer Riechers went out to determine if any

business signs along State Route 1 violated the Village of

Beecher’s sign ordinance, she did not determine whether

any other business signs were in violation of the Village of

Beecher sign ordinance except Rasche’s. (Appendix No. 11, pp.

112-133.)” Appellants’ Br. at 8-9. The record does not support

this assertion. For example, on pages 26-27 of her deposition,

Riechers details that she told four other businesses to remove

their signs because the signs were not permanent, had wheels

or were otherwise not affixed to the ground—which was the

same violation the Rasches allegedly committed. See R.32,

Ex.Riechers’ Dep. at 26-27. Also, Riechers produced letters sent

to other business owners who were told that their signs were

in violation and that they were required to remove or to

change their sign. See R.32, Ex.J. She specifically stated in these

letters (dated July 14 and 15, 1999) that she and the Chief of

Police, Mark DiSanto, “went to all local businesses on Dixie

Highway to talk to the owners regarding various code violations” and to explain that the property owner’s sign was in

violation of the code and needed to be removed in the next 30

days. Id. The letters warn that, if the signs are not removed, “the

Village may file a formal complaint with the Village Attorney.”

Id. The Rasches also emphasize that the sign on Knuth’s Country Corner Restaurant, owned by relatives of the Village Attorney, was in violation of the ordinance because the restaurant

went out of business in November of 2000 and it is a violation

to have a sign on a vacant building. Riechers testified that

a citation had not been issued to Knuth for his sign because

in February 2001 (three months after the store closed), Knuth

had “removed some of the signs. He has not removed the

(continued...)

is not lighted or flashing anymore.” R.32, Ex.N at 1. Riechers

details in these reports approximately sixty actions she

took in connection with code enforcement from June 1999

to May 2000.5
No. 02-3750 9

5 (...continued)

giant sign that’s on the corner yet. But he has been working

with me on it.” R.37, Ex.1 at 32. According to Riechers’ deposition, on February 21, 2001, Knuth asked for a few more weeks

to get the large corner sign down because “he said he had

more problems getting that one down. But he did remove the

other ones . . . .” Id. at 33. Thus Riechers had not issued a citation yet, as of her March 2001 deposition, “because he has

spoken with me and worked with me on it.” Id. at 32.

6 In the Rasches’ statement of facts, this fact appears twice,

but refers to the same occasion and the same ticket—not two

different occasions or tickets. See Appellants’ Br. at 7 (discussing

at top of page that “the Beecher Adjudicatory Hearing Officer dismissed Ticket No. 4101” and stating at bottom of page

after discussing issuance of further tickets that the “ticket for

the illegal sign, No. 4101, was dismissed by the hearing officer

on October 21, 1999 because it was not an offense covered by

the Adjudicatory Ordinance”).

In July 1999, the Village adopted a local adjudication

system to handle ordinance violations. The Rasches received numerous warnings and citations for alleged zoning

violations on their property. On August 20, 1999, the

Rasches received another ticket (No. 4101) for the sign. On

October 1, 1999, the Rasches received a warning about a

motor home parked on their property.

On approximately October 21, 1999, Mr. Rasche appeared before the Village adjudication system and ticket

No. 4101 was dismissed.6

 On November 23, 1999, the

August 9, 1999, ticket for the sign was dismissed in the

Illinois state circuit court.

On December 13, 1999, the Rasches received a ticket

for having an inoperable vehicle on their property. On

December 17, 1999, they received a notice from the Vil-
10 No. 02-3750

lage of Beecher demanding that their sign be removed.

On January 5, 2000, the Rasches received seven additional tickets for having inoperable vehicles in their front

yard. The inoperable motor vehicle tickets were issued by

Tim Mitchell, a Village police officer at the direction of

Beecher Chief of Police Mark DiSanto. At the same time,

another business, Jody’s Transmission Service, also located on Route 1, was issued 29 citations for inoperable

vehicles parked in its front yard.

Robert Barber, the Village Administrator, testified that,

even though he “believed that under our Village Ordinance we had the authority to enter upon Rasche’s

property and remove a non-complying sign, [he] felt uncomfortable and recommended to the Trustees, in an

Executive Session, that we file a Long Form Complaint

in State Court and let the State Court Judge make the

determination. The Trustees concurred with my recommendation. At the Executive Session, possible violations were

discussed and direction was given to the Village Attorney,

Mr. Knuth, to research the matter and draft a Long Form

Complaint for filing in the Circuit Court.” R.32, Ex.A at

¶¶ 49-50. Trustee LaGesse testified that, at a Village

board meeting, the Village Attorney received “the approval of the village board before he filed the lawsuit”

against the Rasches. R.37, Ex.12 at 33. Village Administrator Barber testified that the reason for bringing the long

form complaint was that “[w]ith the exception of Roger

Rasche . . . all of the business owners along Route 1 complied with Julie Riechers’ requests” and either removed

their signs or brought them into compliance. R.32, Ex.A

at ¶ 56.

On January 12, 2000, the Village Attorney filed a twocount complaint against Mr. Rasche, alleging that the

sign was erected and the electrical connection was in-
No. 02-3750 11

7 The state court’s order directing the verdict states in its

entirety: “This cause comes before the Court for decision on

Defendant’s Motion for Directed Finding, the Court citing

People, ex rel Adams Elec. Co-op v. Village of Cant Point [sic., Camp

Point], 286 Ill. App. 3d 247 [1997] and Village of Riverwoods v.

Untermyer, 54 Ill. App. 3d 816 [1977], hereby grants the Motion for Directed Finding and all cases outlined in defendants

brief.” Appellants’ App. at 53. The defendants had argued in

their brief supporting their motion for directed verdict that the

Village had failed to “offer into evidence the Village ordinance

itself with publication noted thereon it, certified and signed by

the Village Clerk and therefore, as a matter of law, the Village

did not prove the existence of any ordinance under which

Roger Rasche is charged.” Id. at 39 (citing Village of Riverwoods,

54 Ill. App. 3d 816). Moreover, the Village had failed to offer

into evidence “the Book of Ordinances” and thus failed to establish “the existence of the ordinance.” Id. at 39 (citing Village of

Camp Point, 286 Ill. App. 3d 247).

stalled without the required building permits. On November 28, 2000, the state court granted Mr. Rasche’s motion

for a directed verdict.7

On February 17, 2000, Mr. Rasche appeared before

the Village adjudication system court on his remaining

tickets (Nos. 4488 and 4304 through 4310); these citations

were dismissed. In sum, the Village adjudicatory officer

dismissed all citations issued to Mr. Rasche for the sign

and inoperable vehicles. The Rasches contend that the

officer dismissed the citations because they were not

among the violations that could be prosecuted through

the local adjudication system. Defendants maintain that

the adjudicatory officer dismissed the tickets because the

wrong statutory section was listed for the alleged violation

and Mr. Rasche was trying to keep his inoperable vehicles

away from the front yard. See Appellees’ Br. at 7-8.
12 No. 02-3750

8 Before reaching the merits, the court first noted that, because

“claims against individuals in their official capacities are suits

against the municipality,” it need only consider the claim

against Mr. Lohmann in his individual capacity and the claim

against the Village. R.40 at 6 n.5.

The court also determined that Mrs. Rasche had standing

despite the Village’s argument that “she did not have any

(continued...)

In early 2000, the Village repealed the ordinance creating the local adjudication system. Village Administrator

Barber explained that he had “received a letter from our

retained hearing officer, John Murphey, resigning as hearing officer; and he also advised the Village that in enacting our Adjudicatory Ordinance, we neglected to include

zoning violations within the purview of the ordinance,

and he maintained that he had no jurisdiction over tickets

covering ordinance violations.” R.32, Ex.A at ¶ 54. Consequently, “[w]ith the resignation of the hearing officer,

and because we concluded that the use of the ordinance

was not cost effective, the Trustees repealed our Adjudicatory Ordinance.” Id. at ¶ 55.

II

PROCEEDINGS IN THE DISTRICT COURT

The Rasches brought this § 1983 action against Mr.

Lohmann in both his individual and official capacity and

against the Village. They allege that the citations and

warnings were issued in retaliation for the exercise of

their First Amendment rights in speaking out against

the Village’s golf and waterworks bond proposals.

The district court granted summary judgment to Mr.

Lohmann and to the Village.8

 The district court noted
No. 02-3750 13

8 (...continued)

ownership interests in the business and none of the citations

were issued against her.” Id. at 7 n.7. The district court concluded that “[t]he facts indicate that Velma has an ownership

interest because Rasche Towing may be a family business.

Also, because Velma asserts that defendants retaliated against

her First Amendment rights, she has standing to assert an

injury sustained as a result” and she is not bringing claims “on

behalf of third parties,” but “asserts her own claim, not that

of her husband.” Id.

initially that summary judgment was appropriate because

“(1) Lohmann was not personally involved in the alleged constitutional deprivation; (2) the alleged retaliatory actions cannot be attributed to the Village because

they were not taken by a person with final policymaking

authority.” R.40 at 7. Consequently, stated the court, it

was unnecessary to address the question of whether the

plaintiffs “show[ed] that their constitutionally protected

speech was a motivating factor in defendants’ actions.” Id.

With respect to Mr. Lohmann, the court determined

that, “[a]lthough the record establishes that Lohmann was

aware of the Village’s efforts to enforce the sign ordinance along Route 1, plaintiffs provide no evidence that

he was aware of any Village official’s retaliatory motive

and no evidence that Lohmann either directed the conduct or consented to it.” Id. at 9.

As for the claims against the Village, the district court

simply stated that: “Because the facts read in a light

most favorable to the plaintiffs do not create a genuine

issue of material fact that plaintiffs’ constitutional right

to free expression was denied, it is unnecessary to ad-
14 No. 02-3750

9 This statement seems contrary to the court’s earlier statement that because it agreed that the actions were not attributable to the Village (no municipal liability), it would not consider the question of whether the exercise of their First Amendment rights was a motivating or substantial factor in the Village’s issuance of the citations. See R.40 at 7.

dress the question of municipal liability.” Id. at 9-10.9 Nevertheless, the district court went on to note in a footnote

that:

Plaintiffs seem to argue that Riechers or DiSanto was

a final policymaker that would make the Village liable,

even though neither of these individuals is named as

a defendant accused of depriving them of their rights.

The only relevant question then is whether Lohmann

was a final policymaker, and since he has prevailed

on the motion, the Village likewise is not liable. Obviously, Riechers was not a final policymaker because

all of the evidence indicates that she was an employee

following her superiors’ directions. DiSanto, as police

chief, did not enact the sign ordinance, and it is undisputed that the concern about enforcement derived

from the Board. There is absolutely no evidence that

DiSanto was a final policymaker, to say nothing of

the lack of evidence that he had a motive to retaliate

against plaintiffs based on their exercise of protected

speech.

Id. at 10 n.9.
No. 02-3750 15

III

DISCUSSION

A.

We first address whether the district court erred in

granting summary judgment in favor of Mr. Lohmann. In

examining this issue, we apply a well-established threestep analytical framework. We first ask whether the plaintiff’s speech was constitutionally protected. See Vukadinovich

v. Bd. of Sch. Trus. of N. Newton Sch. Corp., 278 F.3d 693,

699 (7th Cir. 2002). If the speech was protected, we ask

whether the defendants’ actions were motivated by that

constitutionally protected speech. See id. If the plaintiff

can show that his constitutionally protected speech was

a substantial or motivating factor, the defendants must

show that they would have taken the same action in

the absence of his exercise of his rights under the First

Amendment. See id. If the defendants carry that burden, the

plaintiff bears the burden of persuasion to show that the

defendants’ proffered reasons were pretextual and that

retaliation was the real reason for the defendants’ action.

See id. We also note that, “[s]ection 1983 creates a cause

of action based on personal liability and predicated upon

fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional

deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996)

(internal quotation marks and citations omitted).

The district court correctly determined that the evidence in this record does not support a determination

either that Mr. Lohmann “caused or participated in a

constitutional deprivation,” Vance, 97 F.3d at 991, or, under

the three-step approach, that Mr. Lohmann’s “actions [were]

motivated by [the Rasches’] constitutionally protected
16 No. 02-3750

10 It is undisputed that the Rasches’ speech on the bond issues

was constitutionally protected.

speech,”10 Vukadinovich, 278 F.3d at 699. The Rasches’

allegation that Mr. Lohmann directed Riechers to examine

only the Rasches’ sign will not sustain their burden in this

regard. As noted at some length earlier, see supra note 4,

Riechers gave two versions of her meeting with Village

officials. If Riechers’ initial deposition statement is true,

Mr. Lohmann directed her to inspect not only the Rasches’

sign but also the signs for Risings and for the Shady Long

Golf Course. In that case, Mr. Lohmann did not tell her

to look exclusively at the Rasches’ sign. On the other hand,

if Riechers’ immediate retraction is accurate, Mr. Lohmann did not direct her to any particular sign. See R.32,

Ex.Riechers’ Dep. at 25-26. Neither version supports

the view that Mr. Lohmann gave Riechers direction to

focus exclusively on the Rasches’ sign. Accordingly, the

district court did not err in granting summary judgment

for Mr. Lohmann.

B.

We now turn to the issue of whether the district court

erred in determining that summary judgment on behalf

of the Village was warranted.

“[M]unicipalities cannot be held liable for § 1983 claims

under a theory of respondeat superior.” Palmer v. Marion

County, 327 F.3d 588, 594 (7th Cir. 2003) (internal quotation

marks and citations omitted). The Rasches therefore must

establish that “the deprivation of constitutional rights is

caused by a municipal policy or custom.” Kujawski v. Bd.

of Comm’rs of Bartholomew County, 183 F.3d 734, 737 (7th

Cir. 1999).
No. 02-3750 17

11 A municipality can ratify the action of its employees by

“adopting an employee’s action as its own” and thus becoming “the author of the action for purposes of liability under

section 1983.” Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274

F.3d 464, 469 (7th Cir. 2001). In order to adopt such an action, the

municipality must know of the “subordinate’s conduct” and

“approve[] of the conduct and the basis for it.” Baskin v. City

of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998) (internal quotation marks and citations omitted). Here, the Rasches argue that

the Village, by authorizing the suit in state court, ratified the

Village Attorney’s actions. The suit is therefore an act by the

Trustees. There is no evidence that the Trustees “ratified” any

other actions (such as Riechers’ or DiSanto’s issuance of tickets).

Under our case law, unconstitutional policies or customs can take three forms: (1) an express policy that, when

enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written

law or express municipal policy, is so permanent and

well settled as to constitute a “custom or usage” with

the force of law; or (3) an allegation that the constitutional

injury was caused by a person with final policymaking

authority. Palmer, 327 F.3d at 594-95. In our view, the

Rasches cannot prevail under any of these theories.

The Rasches first submit that the Village is liable because the Board of Trustees directed the Village Attorney,

or at least ratified the Village Attorney’s decision, to file

the state court suit against the Rasches. The Supreme

Court has explained: “[P]roof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right

necessarily establishes that the municipality acted culpably.” Bd. of the County Comm’rs of Bryan County v. Brown,

520 U.S. 397, 405 (1997).11 Here, the Board of Trustees,

the “municipality’s legislative body,” authorized a suit
18 No. 02-3750

12 We therefore need not decide whether this statement is admissible.

against Mr. Rasche for an alleged violation of the sign

ordinance. Id.

We therefore shall examine whether the Rasches’ speech

concerning the golf course and waterworks bond proposals was, on this record, “a substantial or motivating

factor” in the Village’s decision to bring suit against Mr.

Rasche. Vukadinovich, 278 F.3d at 699. Evaluating the record in the light most favorable to the Rasches, the only

evidence that the Village’s decision to file suit was motivated by his speech is the proximity of time between the

suit and the speech, and the testimony concerning a comment made by LaGesse in 1997 in his capacity as a member of the Beecher Recreation Association that he “would

take out anybody who stood in [the] way of purchasing

[the] golf course.” R.37, Ex.6 at 10, 40.

The suit by the Village was brought soon after the waterworks referendum was put on the ballot. Although we

have noted that a “telling temporal sequence” can be

used to establish causation, see Sweeney v. West, 149 F.3d 550,

558 (7th Cir. 1998) (internal quotation marks omitted), we

have also recognized in the analogous Title VII context

that timing, “standing alone, does not create a genuine

issue as to causal connection.” Foster v. Arthur Anderson,

LLP, 168 F.3d 1029, 1034 (7th Cir. 1999). A plaintiff

must “show more than just temporal proximity.” Id.

We do not believe that the statement by LaGesse, a

single legislator, made in a different capacity and three

years before the legislative action now in question can

be considered sufficiently probative to provide the additional support needed to sustain a jury verdict.12 The

fact that LaGesse, three years prior to the Trustee’s bring-
No. 02-3750 19

ing suit against the Rasches, in his capacity in a recreational association, was upset about losing the golf course

does not demonstrate that the entire board of Trustees was

motivated to retaliate unconstitutionally by bringing suit

against Mr. Rasche for his sign. The importance of LaGesse’s

statement is rendered even more feeble when we recollect

the context in which the Village Board took action. It

referred the sign matter to litigation only after numerous

attempts to obtain compliance and only after its attempts at

local administrative resolution had proved fruitless. The

Village Administrator’s unrebutted testimony is that he

recommended the lawsuit to ensure that the Rasches’ sign

was removed only after judicial scrutiny of the proposed

action. There was, therefore, abundant evidence that this

Board decision was taken in the normal course of its

business of pursuing a long-term effort to improve the

Village’s appearance by a broad-scale enforcement of its

zoning ordinances.

The Rasches also submit that the Village is liable under

the first form of unconstitutional policies identified in

Palmer because “the express policy of the Village as enforced caused a constitutional deprivation.” Appellants’ Br.

at 21. The Rasches identify the “express policies” or “official policy” as “the Adjudicatory Ordinance and the sign

ordinance.” Appellants’ Br. at 13, 18. The Rasches make

no argument that either the zoning ordinance or the adjudicatory ordinance is unconstitutional or represents

unconstitutional policies; thus these ordinances do not

fall within the first definition of unconstitutional “express”

policies. The Rasches nevertheless argue that the ordinances, although not unconstitutional in themselves, have
20 No. 02-3750

13 The Rasches later make an almost identical argument concerning Mr. Lohmann. They argue that, assuming he is a final

policymaker, “Lohmann set in motion a series of acts by others,

which he did, and reasonably knew or should have known

that they would cause Riechers and the Police Chief to inflict

the constitutional injuries retaliating against the Rasches only.”

Appellants’ Br. at 16. Outside of the unsupported allegation

that Mr. Lohmann directed Riechers to look at only the Rasches’

sign, the Rasches give no indication of any activities that

Mr. Lohmann “set in motion” which he “reasonably knew or

should have known . . . would cause Riechers and the Police

Chief to inflict the constitutional injuries retaliating against

the Rasches only.” Appellants’ Br. at 16.

caused a constitutional violation.13 We cannot accept this

argument.

In order for a § 1983 plaintiff “to establish municipal

liability on the theory that a facially lawful municipal action

has led an employee to violate a plaintiff’s rights,” the

plaintiff “must demonstrate that the municipal action was

taken with ‘deliberate indifference’ as to its known or

obvious consequences.” Bryan County, 520 U.S. at 407. The

Rasches do not articulate how the obvious consequence

of enacting the zoning ordinances was that the ordinances

would be used to retaliate against Rasches’ or other citizens’

exercise of their First Amendment rights. As to the allegation that Mr. Lohmann specifically directed Riechers

to examine only the Rasches’ sign, we already have noted

that the record will not support such an allegation.

As to the third form of unconstitutional policies or

customs, the Rasches argue that various individuals possessed final policymaking authority. At the outset, we

simply cannot conclude that the evidence would support

a determination that a final policymaker’s decision re-
No. 02-3750 21

sulted in retaliation against the Rasches. “[M]unicipal liability under § 1983 attaches where—and only where—a

deliberate choice to follow a course of action is made from

among various alternatives by the official or officials responsible for establishing final policy with respect to the

subject matter in question.” Pembaur v. City of Cincinnati, 475

U.S. 469, 483-84 (1986) (emphasis added). In order to have

final policymaking authority, an official must possess

“[r]esponsibility for making law or setting policy,” that

is, “authority to adopt rules for the conduct of government.” Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir. 1992)

(internal quotation marks and citations omitted). “Authority

to make municipal policy may be granted directly by a

legislative enactment or may be delegated by an official

who possesses such authority, and of course, whether an

official had final policymaking authority is a question

of state law.” Pembaur, 475 U.S. at 483. In examining state

law to determine such authority, we are to “[r]eview[]

the relevant legal materials, including state and local

positive law, as well as custom or usage having the force

of law.” Kujawski, 183 F.3d at 737 (internal quotation

marks and emphasis omitted).

We have further elaborated on the term “final”:

Every public employee, including the policeman on

the beat and the teacher in the public school, exercises

authority ultimately delegated to him or her by their

public employer’s supreme governing organs. A police officer has authority to arrest, and that authority

is “final” in the practical sense that he doesn’t have to

consult anyone before making an arrest; likewise a

teacher does not have to consult anyone before flunking a student. That is a perfectly good use of the

word “final” in ordinary conversation but it does not

fit the cases; for if a police department or a school
22 No. 02-3750

district were liable for employees’ actions that it authorized but did not direct, we would be back in the

world of respondeat superior. To avoid this the cases

limit municipal liability under section 1983 to situations in which the official who commits the alleged

violation of the plaintiff’s rights has authority that

is final in the special sense that there is no higher

authority.

Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464,

469 (7th Cir. 2001).

Under this formulation, Riechers certainly was not the

person with final policymaking authority; she occupied

a position quite analogous to a police officer making an

arrest. Although Trustee Lane stated that Riechers was

responsible for determining what signs were proper, it is

clear that Riechers did not set the zoning policy, enact the

zoning ordinance or even determine what area of town

required her concentrated scrutiny. She simply had the

authority to issue tickets and citations. She testified that

she focused on Route 1 at the behest of the Board of Trustees. See R.32, Ex.Riechers’ Dep. at 19-20. She also reported

her activities to the Board of Trustees. See R.32, Ex.M. The

Board set the policy—including her area of focus, Route

1—for her enforcement of the zoning laws. Indeed, at

page 15 of their brief, the Rasches admit as much in arguing that “the Village of Beecher retained the authority to

measure [Riechers’] conduct for conformance with their

policies and approved [Riechers’] decisions in only going

after the Rasches.” Appellants’ Br. at 15. If the Village

retained such authority, then Riechers’ authority cannot

constitute final policymaking authority.

With respect to Mr. Lohmann, the Rasches have brought

forth no authority to establish that, as a matter of state law,

he has the authority to make final municipal policy with
No. 02-3750 23

regard to zoning. Under Illinois law, it is the “corporate

authorities” that have authority concerning zoning policy

and enforcement. 65 ILCS 5/11-13-1. “Corporate authorities” include “the president and trustees or similar body

when the reference is to villages or incorporated towns.”

65 ILCS 5/1-1-2. Nevertheless, it appears that the president has only tie breaking authority, veto power (which

can be overridden), and the power to “recommend . . .

measures the . . . president believes expedient.” 65 ILCS

5/3.1-35-5, 5/3.1-45-5, 5/3.1-40-30. In general, the president’s responsibilities are to “perform all the duties which

are prescribed by law, including ordinances, and shall

take care that the laws and ordinances are faithfully executed.” 65 ILCS 5/3.1-35-5. By contrast, the board of trustees has the authority to “pass ordinances, resolutions,

and motions in the same manner as a city council.” 65

ILCS 5/3.1-45-5. Generally, a person holding only executive power does not have policymaking authority for

purposes of § 1983; rather, the policymaking authority in

the city structure will be the city council, or here, the

Board of Trustees. See Auriemma, 957 F.2d at 399-400. In

any event, there is no evidence that Mr. Lohmann took

any actions against the Rasches. Therefore, even if Mr.

Lohmann were a final policymaker, he could not be held

liable to the Rasches because there is no evidence that

he took or directed any action against them.

Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED
24 No. 02-3750

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-16-03