More Mischief From The 7th Circuit

Bianchi v. McQueen.  We didn’t like this case after it came out of the District Court.

We like it less now, coming out of the 7th Circuit Court of Appeals.  Just a few days ago.

We might spend a little more time on it later, but for now we’ll just make a few observations, in no particular order.

First, the panel is Posner, Easterbrook and Sykes.  Sykes you can read about here.  She’s been pretty much on a campaign to undo or thoroughly confuse or otherwise neuter Whitlock v. Brueggemann.  It’s a cop-prosecutor protection thing.  Easterbrook is a smart guy, but he’s also the author of Buckley v. Fitzsimmons, a truly horrible bit of legal “reasoning” that went back and forth to the Supreme Court in the early 1990’s and left a black mark on us all.  Don’t believe us?  We quote:

Probable cause is enough to initiate a criminal prosecution. It takes proof beyond a reasonable doubt to convict. That difference, together with uncertainties in what the evidence will show, implies that some innocent persons will be prosecuted. Trial is supposed to filter out the innocent, a task it serves well if imperfectly.

Only someone who has never tried a case for a criminal defendant or personal injury plaintiff could say that.  It’s risible.  But he goes on to almost instantly contradict himself, not even getting to the next page:

Accusation and trial are wrenching experiences, especially for the innocent. On top of trauma comes expense and often the loss of freedom pending disposition. How should society respond when an innocent person is prosecuted?…Innocent defendants, rightly feeling put upon, may respond to this governmental indifference by turning on their accusers, making them defendants in turn. They demand that the prosecutors, police, and witnesses dig into their own pockets to provide recompense. If courts could quickly and reliably identify malicious prosecutions, those in which the case was manufactured or conviction unattainable, it might make sense to award damages, to cause prosecutors with the power to destroy others’ lives to do their jobs with the care that their responsibilities require. But the legal system is neither quick nor infallible.  To allow a search for malicious or weak prosecutions is to license litigation at any defendant’s option…

All the confidence in the “trial” evaporates when the shoe is on the other foot.  When the government is the accuser, well, let’s have a trial to sort it all out.  It works just fine, if a bit imperfectly!  When the government is the Defendant, well, that’s another story.  All of a sudden trials are a terrible burden, “neither quick nor infallible”, and we must be wary not to “license litigation” although that doesn’t seem to bother us when it’s the government doing the litigating.

Where is Judge Easterbrook going with all this?  Very immunity.  Much Absolute.


And the line about prosecutors, police “digging into their own pockets” can only be disingenuous.  Easterbrook knows better:  officials are indemnified; the claims are paid, if they ever are in fact paid, by insurance or the municipality.

That’s a terrible falsehood to put in an opinion from a federal appeals court.

More on this some other time.  Villanova playing.  Much final four. Very alma mater.


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