                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1865

M ARIA A VILA,
                                                  Plaintiff-Appellant,
                                  v.

M ARIA P APPAS, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 06 C 2947—Joan Humphrey Lefkow, Judge.



    A RGUED N OVEMBER 3, 2009—D ECIDED JANUARY 4, 2010




   Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
  E ASTERBROOK, Chief Judge. Shortly before the date of
her disciplinary hearing at the Cook County Treasurer’s
Office, Maria Avila told a friend (and co-worker) that she
could “go postal”; she advised the friend to duck. Con-
cerned that Avila might be serious, the friend told her
superiors. Police attended the hearing, and the implied
threat became another ground of discipline. Avila was
2                                               No. 09-1865

fired and criminally prosecuted. Illinois law treats as a
felony a threat against a public official; otherwise a
threat is a misdemeanor. Compare 720 ILCS 5/12-9 with
720 ILCS 5/12-2(a)(10). The State’s Attorney of Cook
County charged Avila with a felony, on the ground that
Michael Shine, one of three persons Avila had mentioned
as potential targets, was a public official because the
Treasurer had appointed him to an office created by
statute. See 720 ILCS 5/12-9(b)(1). Avila was acquitted at
a bench trial after the state judge concluded that Shine
was not a public official under §5/12-9(b)(1).
  Avila then filed this federal suit under 42 U.S.C. §1983.
She contends that the Treasurer and her staff violated the
Constitution by persuading the State’s Attorney to com-
mence the prosecution. Avila calls this persuasion mali-
cious prosecution and contends that it is both unconstitu-
tional and tortious. The state tort claim depends on the
supplemental jurisdiction, see 28 U.S.C. §1367, because
all parties are citizens of Illinois. The district judge
rejected the federal-law theories and, instead of relin-
quishing jurisdiction over the state-law theories, resolved
them on the merits in defendants’ favor. 2009 U.S. Dist.
L EXIS 16276 (N.D. Ill. Mar. 3, 2009). Avila’s appeal raises
only state law; the constitutional theories have vanished
from the case, as far as the parties are concerned.
  Judges cannot disregard the constitutional theories
so easily, however; subject-matter jurisdiction depends on
them. The first question in every case is whether the
court has jurisdiction. It not enough to utter the word
“Constitution” and then present a claim that rests on state
No. 09-1865                                                3

law. If it were, every claim that a state employee com-
mitted a tort, or broke a contract, could be litigated in
federal court. It is therefore essential that the federal
claim have some substance—that it be more than a
pretext to evade the rule that citizens of a single state
must litigate their state-law disputes in state court. When
the federal theories are insubstantial in the sense that
“prior decisions inescapably render the claims frivolous”,
there is no federal jurisdiction. Hagans v. Lavine, 415 U.S.
528, 538 (1974). See also, e.g., Jogi v. Voges, 480 F.3d 822,
825–26 (7th Cir. 2007); Crowley Cutlery Co. v. United States,
849 F.2d 273 (7th Cir. 1988).
  Prior decisions inescapably render Avila’s federal
theories frivolous. Albright v. Oliver, 510 U.S. 266 (1994),
holds that malicious prosecution does not violate the
Constitution’s due process clauses. There might be a
problem under the fourth amendment if a person is
arrested without probable cause, but when the suit is
directed against the prosecution itself, rather than any
attendant custody, there is no constitutional wrong.
Because Albright produced a plurality opinion plus con-
currences, there is some difficulty in understanding its
upshot. But we concluded in Newsome v. McCabe, 256
F.3d 747 (7th Cir. 2001), that the holding is as we have
just stated, provided that state law recognizes malicious
prosecution as a tort—which Illinois does. See also
Johnson v. Saville, 575 F.3d 656, 663–64 (7th Cir. 2009);
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003).
  This suit runs smack into Albright and Newsome. Avila
articulates four federal-law theories. The assertion that
4                                                No. 09-1865

the prosecution violated principles of substantive due
process is refuted by Albright and Newsome, as well as the
rule that substantive due process deals with violations
of fundamental rights only. See Washington v. Glucksberg,
521 U.S. 702, 719–21 (1997). No court has held that the
expense of retaining a criminal-defense lawyer infringes
a “fundamental” right to put the money to other ends,
and the defamatory content of a criminal charge does not
concern any federal interest, because reputation is
neither “liberty” nor “property” for constitutional pur-
poses. See Paul v. Davis, 424 U.S. 693 (1976); Codd v. Velger,
429 U.S. 624 (1977). The right to defend oneself in the
state prosecution, and to advance a tort claim in state
court, is all the process due for an unsupported or mali-
ciously pursued criminal charge.
  Avila’s second and third federal theories are that the
defendants conspired to violate the due process clause
and failed to train their subordinates to avoid such viola-
tions; as malicious prosecution does not violate the due
process clause, there is nothing wrong with an agree-
ment among the defendants and no constitutional need
for more training. See Cefalu v. Village of Elk Grove, 211
F.3d 416, 423 (7th Cir. 2000) (one cannot violate the Con-
stitution by conspiring to commit acts that don’t violate
the Constitution); Houskins v. Sheahan, 549 F.3d 480, 493–94
(7th Cir. 2008) (no liability for poor training or negligent
supervision unless there has been an underlying viola-
tion by the poorly trained or supervised state actor);
Tesch v. County of Green Lake, 157 F.3d 465, 477 (7th Cir.
1998) (same).
No. 09-1865                                               5

   The fourth theory is that the defendants violated the
equal protection clause by persuading the prosecutor to
bring charges. Engquist v. Oregon Department of Agriculture,
128 S. Ct. 2146 (2008), shows that this theory is a bad one;
it holds that disputes related to a public employee’s
interactions with superiors or co-workers never may be
litigated as class-of-one claims under the equal
protection clause. Engquist adds that class-of-one claims
cannot rest on governmental activity that is discretionary
by design, id. at 2154, a good description of prosecutorial
selectivity in criminal law. Because this suit began
before Engquist was issued, however, we do not rely on
it; federal jurisdiction does not disappear if a decision
released while the suit is pending shows that the
plaintiff cannot prevail.
  Still, even before Engquist Avila had to show that the
defendants lacked a rational basis for their actions. See
Village of Willowbrook v. Olech, 528 U.S. 562 (2000). Avila
never had the tiniest chance of demonstrating the
absence of a rational basis, making her claim insub-
stantial when filed.
  Defendants did not pick Avila’s name out of a hat. They
asked the State’s Attorney to prosecute her because she
told a friend that she could “go postal”—in other words,
commit mayhem—at her disciplinary hearing. Avila has
never denied making that statement. Although she does
contend that she was joking, the statement supplies
probable cause for a criminal prosecution. Probable
cause is a rational basis for official action. See Schor v.
Chicago, 576 F.3d 775, 778–79 (7th Cir. 2009). The only
6                                               No. 09-1865

question is whether the prosecution should have been
for a misdemeanor (as Avila believed and a state judge
eventually concluded) rather than a felony. Choosing the
wrong state statute on which to base a prosecution—when
there is a rational basis for some prosecution—does not
violate the equal protection clause or any other part of
the federal Constitution. Errors of state law are just that:
errors of state law. There is a gulf between such an
error and a violation of the federal Constitution. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Archie v.
Racine, 847 F.2d 1211, 1216–18 (7th Cir. 1988) (en banc);
Gordon v. Degelmann, 29 F.3d 295, 300 (7th Cir. 1994).
  This suit has no business in federal court. A veneer
of constitutional phraseology on top of a state tort
claim cannot justify its adjudication in federal court. The
judgment of the district court is vacated, and the case
is remanded with instructions to dismiss for lack of
subject-matter jurisdiction.




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