In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2520

Sarah E. Atwell,

Plaintiff-Appellant,

v.

Lisle Park District,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 7267--Charles P. Kocoras, Judge.

Argued January 8, 2002--Decided April 12, 2002



  Before Posner, Coffey, and Diane P. Wood,
Circuit Judges.

  Posner, Circuit Judge. The defendant
park district, an Illinois public entity,
employed Sarah Atwell as its director of
development. About 15 months after hiring
her, the Park District retained a law
firm to investigate allegations of
"financial improprieties" and "misuse of
funds," including "unauthorized
expenditures of Park District funds and
the concealment of those expenditures." A
target of the investigation, Atwell was
suspended with pay, told that an
investigator would contact her, and
instructed to cooperate with the
investigation. She retained a lawyer.
Shortly afterward, the investigator, a
lawyer for the law firm investigating the
allegations, met with Atwell in a parking
lot to pick up some Park District
property that Atwell had in her
possession and in the course of this
encounter told her that a grand jury was
being convened to investigate the allega
tions and that, in light of the grand
jury’s involvement, Atwell’s lawyer would
probably advise her that it would be
prudent for her to exercise her
constitutional right to remain silent.
Sure enough, her lawyer advised her not
to agree to be interviewed by the law
firm that was conducting the
investigation. The Park District then
fired Atwell (after notice and an
opportunity for a hearing) for
insubordination in failing to cooperate
in the investigation and for receipt of
unauthorized salary payments. The suit
charges that her termination violated her
right not to be compelled to incriminate
herself and that after firing her the
Park District deprived her of property
without due process of law by publicly
releasing false information about her,
including information that would prevent
her from obtaining comparable employment.
The district court dismissed the
complaint for failure to state a claim.

  The government is not allowed to force
a person to make a statement, even out of
court, that might be used as evidence
that he had committed a crime. It is not
even allowed to pressure him into
cooperating by threatening to fire him
(if he’s a government employee) for his
refusing to provide such evidence.
Gardner v. Broderick, 392 U.S. 273, 276,
278-79 (1968); Chan v. Wodnicki, 123 F.3d
1005, 1009 (7th Cir. 1997); Lenard v.
Argento, 699 F.2d 874, 896 (7th Cir.
1983). It has every right to investigate
allegations of misconduct, including
criminal misconduct by its employees, and
even to force them to answer questions
pertinent to the investigation, but if it
does that it must give them immunity from
criminal prosecution on the basis of
their answers. Lefkowitz v. Cunningham,
431 U.S. 801, 806 (1977); Gardner v.
Broderick, supra, 392 U.S. at 276; Chan
v. Wodnicki, supra, 123 F.3d at 1009. Nor
can the federal government use those
answers to assist it in its own
prosecution of the person. Murphy v.
Waterfront Commission, 378 U.S. 52, 79-80
and n. 18 (1964); United States v.
Balsys, 524 U.S. 666, 683 (1998).

  For these purposes, moreover, the state
is treated as a unit: if the Park
District insisted on Atwell’s giving evi
dence that might show she had committed a
crime, the state’s attorney could not use
that evidence to prosecute her. Oddly,
the cases do not bother to say this; but
it is implicit in any case involving an
employee of a department that does not do
criminal prosecutions and it is his own
department rather than the prosecutor
that is interrogating him; and that of
course is the standard case. See, e.g.,
Gulden v. McCorkle, 680 F.2d 1070, 1071
(5th Cir. 1982).

  Our court has ruled in several cases
that the government employer who wants to
ask an employee potentially incriminating
questions must first warn him that
because of the immunity to which the
cases entitle him, he may not refuse to
answer the questions on the ground that
the answers may incriminate him. Riggins
v. Walter, 279 F.3d 422, 431 (7th Cir.
1995) (per curiam); United States v.
Devitt, 499 F.2d 135, 141 (7th Cir.
1974); Confederation of Police v.
Conlisk, 489 F.2d 891, 894 (7th Cir.
1973). This rule is unique. It has been
rejected in two circuits, Hill v.
Johnson, 160 F.3d 469, 471 (8th Cir.
1998); Gulden v. McCorkle, supra, 680
F.2d at 1076, has been expressly left
open in two others, Wiley v. Mayor & City
Council of Baltimore, 48 F.3d 773, 777
and n. 7 (4th Cir. 1995); Grand Jury
Subpoenas Dated Dec. 7 & 8 v. United
States, 40 F.3d 1096, 1102 n. 5 (10th
Cir. 1994), and has been followed in
none, though the Second Circuit hinted at
it in a dictum in Uniformed Sanitation
Men Ass’n v. Commissioner of Sanitation,
426 F.2d 619, 626-27 (2d Cir. 1970)
(Friendly, J.). Outside the criminal
context, government is not required to
advise the persons with whom it deals,
including its employees, of their legal
options. Our rule is perhaps best
understood as an anti-mousetrapping rule.
Uncounseled persons are much more likely
to know about their "Fifth Amendment"
right than they are to know about an
immunity that qualifies the right. Asked
to give answers to questions put to them
in the course of an investigation of
their arguably criminal conduct, they may
instinctively "take the Fifth" and by
doing so unknowingly set themselves up to
be fired without recourse.

  Whatever the merits of the rule, and
whether, in light of its rationale, it
has any possible application when the em
ployee has a lawyer, we have already
registered our agreement with the Fifth
Circuit that there can be no duty to warn
until the employee is asked specific
questions. Riggins v. Walter, supra, 279
F.3d at 431; Gulden v. McCorkle, supra,
680 F.2d at 1076. The employee has no
right to skip the interview merely
because he has reason to think he’ll be
asked questions the answers to which
might be incriminating. He may be asked
other questions as well. Or he may be
told that he can take the Fifth without
repercussions. Or that the interviewer
will merely draw an adverse inference
from the employee’s taking the Fifth,
which is permitted in civil cases. Baxter
v. Palmigiano, 425 U.S. 308, 316-20
(1976). The statute authorizing grants of
immunity to witnesses before Congress
"does not authorize grants of immunity to
persons who are not witnesses but may in
the future become witnesses, may refuse
to testify, and may claim their
privilege. Nothing in the Act suggests
that Congress meant to authorize grants
of unlimited immunity to possible
witnesses in exchange for undescribed
evidence of undisclosed value in
unidentified investigations." In re
McElrath, 248 F.2d 612, 615 (D.C. Cir.
1957) (en banc) (plurality opinion); see
also United States v. Di Mauro, 441 F.2d
428, 440 (8th Cir. 1971). Witnesses
before congressional committees who plan
to take the Fifth if asked certain
questions that they expect to be asked
cannot on that account refuse to show up
at the committee hearing--in fact, they
commit a misdemeanor if they refuse to
show up. 2 U.S.C. sec. 192; Wheeldin v.
United States, 283 F.2d 535 (9th Cir.
1960) (per curiam).

  Atwell was not being asked to meet with
the investigator in the absence of her
lawyer. With her lawyer at her elbow to
advise her, she would have known which
questions she could refuse to answer (but
for immunity) on self-incrimination
grounds. If she refused to answer a
question on such grounds, and if our rule
applies even when the employee who is
being questioned has a lawyer--even when
the lawyer is present at the
interrogation--that would be the time to
warn her that if she refused to answer
the question despite the immunity the
Fifth Amendment would not protect her
from being fired for refusing to
cooperate in the investigation.

  The wrinkle here is that the
investigator (concededly an agent of the
Park District for these purposes though
employed by the law firm that the
District had retained to investigate the
allegations of financial improprieties)
gave Atwell misleading advice--basically
not to cooperate with the investigation.
It was in the form of a prediction, but
was likely to be, and we may assume was,
interpreted as legal advice. Had Atwell
not had a lawyer, the Park District might
conceivably (our tentativeness is
deliberate) be estopped to deny that
Atwell had a Fifth Amendment right not to
cooperate with the investigation, though
most cases refuse to base estoppel on a
misrepresentation of law, reasoning that
the plaintiff could have consulted a
lawyer. E.g., Utah Power & Light Co. v.
Federal Ins. Co., 983 F.2d 1549, 1556
(10th Cir. 1993) ("no one can be deceived
by a misrepresentation of law because
everyone has access to the law"); Quality
Finance Co. v. Mitchell, 423 So. 2d 1262,
1266 (La. App. 1982). This "equal access"
theory is unrealistic, though not as
unrealistic as grounding a principle that
misrepresentations of law are not
actionable in the hoary maxim--a
testament to the embarrassing tenacity of
legal fictions--that everyone is presumed
to know the law, United States v. Marine
Shale Processors, 81 F.3d 1329, 1349 (5th
Cir. 1996). We are reassured by Glus v.
Brooklyn Eastern District Terminal, 359
U.S. 231, 235 (1959), which rejects any
blanket rule against basing estoppel on a
misrepresentation of law; but we needn’t
pursue the issue further here.

  It is doubtful that estoppel could ever
bring a case in which there was no
violation of the Constitution into
federal court under 42 U.S.C. sec. 1983,
the statute under which Atwell sued,
which creates a remedy for violations of
federal rights under color of state law.
Atwell had no federal right, whatever the
Park District may have told her. The Park
District therefore could not have
violated her federal rights. If it misled
her into not cooperating with the
investigation and then fired her for not
cooperating, it might be guilty of fraud
or breach of contract under state law,
Board of Education v. A, C & S, Inc., 546
N.E.2d 580, 591 (Ill. 1989), but there
would be no federal violation.

  If she had had a contract under which
she could be fired only for cause (which
apparently she did not), she might have
tried to estop the Park District to plead
that her refusal to cooperate with its
investigation was cause for firing her,
though she would doubtless be met by the
proposition of Illinois law that estoppel
will lie against public agencies only in
extraordinary situations, Cities Service
Oil Co. v. City of Des Plaines, 171
N.E.2d 605, 607 (Ill. 1961); Monat v.
County of Cook, 750 N.E.2d 260, 270 (Ill.
App. 2001), which we assume this was not,
considering that it wasn’t even an
employee of the Park District who
allegedly misled the plaintiff. These
cases illustrate the traditional judicial
reluctance to apply estoppel against the
government. Office of Personnel
Management v. Richmond, 496 U.S. 414, 419
(1990); Estate of Kunze v. Commissioner,
233 F.3d 948, 952 (7th Cir. 2000); Gibson
v. West, 201 F.3d 990, 994 (7th Cir.
2000). In any event, whether estoppel
would lie would be a matter of state law;
it would have nothing to do with this
suit, a suit under federal law.

  Even if we brush all these problems to
one side, we are left with the bedrock
principle that a reasonable person
represented by a lawyer does not rely on
the legal advice given him by an
adversary, which was the status of the
investigator in relation to Atwell, as
she well knew. A reasonable person in
Atwell’s position consults his or her own
lawyer. Atwell did. The lawyer gave her
bad advice. For that she may have a
remedy against the lawyer, but she has no
remedy against the Park District.
Estoppel requires reasonable reliance on
the misrepresentation of the party who is
sought to be estopped. Heckler v.
Community Health Services of Crawford
County, Inc., 467 U.S. 51, 59 (1984);
Teamsters & Employers Welfare Trust v.
Gorman Bros. Ready Mix, No. 01-2029, 2002
WL 417405, at *5 (7th Cir. Mar. 19,
2002); Rager v. Dade Behring, Inc., 210
F.3d 776, 779 (7th Cir. 2000); Frahm v.
Equitable Life Assurance Society, 137
F.3d 955, 961 (7th Cir. 1998); Elmore v.
Cone Mills Corp., 187 F.3d 442, 447 (4th
Cir. 1999) (per curiam). Reliance on a
known adversary’s legal advice is not
reasonable, especially when one has ready
access to a lawyer of one’s own. See In
re VMS Ltd. Partnership Securities
Litigation, 26 F.3d 50, 52 (7th Cir.
1994); In re Larson, 862 F.2d 112, 115
(7th Cir. 1988); Office & Professional
Employees Int’l Union, Local No. 471 v.
Brownsville General Hospital, 186 F.3d
326, 336 (3d Cir. 1999); Vadino v. A.
Valey Engineers, 903 F.2d 253, 263-64 (3d
Cir. 1990); Elk Park Ranch, Inc. v. Park
County, 935 P.2d 1131, 1138 (Mont. 1997).

  Atwell’s other claim is unrelated to the
Fifth Amendment’s self-incrimination
clause. It invokes the principle that
while reputation is not liberty or
property within the meaning of the due
process clauses, and so defamation, a
tortious injury to reputation, is not a
constitutional tort, e.g., Siegert v.
Gilley, 500 U.S. 226, 233 (1991); Paul v.
Davis, 424 U.S. 693, 711-12 (1976); Klug
v. Chicago School Reform Bd. of Trustees,
197 F.3d 853, 859 (7th Cir. 1999),
occupational liberty is a form of liberty
under those clauses; and so the
dissemination of false information that
renders a person unemployable is a
constitutional tort. Hedrich v. Board of
Regents, 274 F.3d 1174, 1183-84 (7th Cir.
2001); Bone v. City of Lafayette, 763
F.2d 295, 297-98 (7th Cir. 1985); Lawson
v. Sheriff of Tippecanoe County, 725 F.2d
1136, 1138-39 (7th Cir. 1984). Atwell
alleges dissemination of false
information about financial improprieties
and receipt of unauthorized salary but
not that the dissemination of either form
of false information deprived her of her
occupational liberty. The false
information the dissemination of which
she alleges deprived her of that liberty
is "other" information (her word) not
specified in the complaint or in any
other document filed by the plaintiff or
found in the record.

  Ordinarily a plaintiff is not required
to plead specifics. Swierkiewicz v.
Sorema N. A., 122 S.Ct. 992, 995 (2002);
Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507
U.S. 163, 168 (1993); Beanstalk Group,
Inc. v. AM General Corp., No. 01-2164,
2002 WL 406985, at *6 (7th Cir. Mar. 15,
2002); Kirksey v. R.J. Reynolds Tobacco
Co., 168 F.3d 1039, 1041 (7th Cir. 1999).
Ordinarily therefore it would be enough
in a case of this sort for the plaintiff
to allege that the defendant had
disseminated false information with the
consequence of depriving her of liberty
of contract. See Codd v. Velger, 429 U.S.
624, 627-28 (1977) (per curiam); Austin
v. Board of Education, 562 F.2d 446, 449
(7th Cir. 1977); Whitney v. New Mexico,
113 F.3d 1170, 1175 (10th Cir. 1997);
Lentsch v. Marshall, 741 F.2d 301, 305
(10th Cir. 1984); Little v. City of North
Miami, 805 F.2d 962, 969 (11th Cir. 1986)
(per curiam). This case is unusual,
however, because so far as appears from
the complaint, the only information
disseminated by the Park District,
whether true or false, was information
concerning the alleged conduct of Atwell
that resulted in her termination after
notice and an opportunity for her to be
heard. Whether the dissemination of such
information has rendered Atwell
unemployable is irrelevant. The due
process clause does not forbid
deprivations of liberty as such, but only
those deprivations that are effectuated
without due process of law. If the state
provides notice of and an opportunity to
be heard concerning allegations that if
publicized will render a person
unemployable, the person has no ground
for a federal claim should the
allegations, having been sustained
without due process being denied, later
be publicized as the grounds for the
person’s having been fired. See Garcia v.
Kankakee County Housing Authority, 279
F.3d 532, 535 (7th Cir. 2002). Should the
state later issue embroidered
allegations, allegations that exceed the
scope of the hearing and as to which
therefore the employee had no notice and
opportunity to be heard, that would be a
different case. But when pressed,
Atwell’s lawyer was unable to indicate
any such embroidery, and we infer that he
does not understand the elements required
to make out a "defamation plus" claim--in
other words that he is really just
alleging defamation.

Affirmed.
