In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2173

Marcella Richman, Individually and
as Special Administrator of the Estate
of Jack B. Richman, deceased,

Plaintiff-Appellee,

v.

Michael Sheahan, in his Official Capacity
as Sheriff of Cook County, et al.,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7350--Joan B. Gottschall, Judge.

Argued December 6, 2000--Decided October 16, 2001



  Before Bauer, Posner, and Williams, Circuit
Judges.

  Williams, Circuit Judge. Jack Richman
died shortly after fourteen sheriff’s
deputies restrained him during his
mother’s appearance before an Illinois
judge on a traffic violation. Marcella
Richman, on her own behalf and on behalf
of her son’s estate, brought federal and
state claims against the sheriff’s
deputies in their individual capacities
and against Cook County Sheriff Michael
Sheahan in his official capacity. The
defendants filed a motion to dismiss
based in part on absolute, Eleventh
Amendment, and state sovereign immunity.
We agree with the district court that the
deputies are not entitled to absolute
immunity, and therefore affirm the
court’s denial of their motion to dismiss
the sec. 1983 claims. Because we cannot
conclude as a matter of law that the
sheriff’s alleged unconstitutional policy
regarding training and supervision of
deputies represents state policy for
purposes of Eleventh Amendment immunity,
we affirm the district court’s denial of
the sheriff’s motion to dismiss. However,
we conclude that the deputies’ conduct
would be attributed to the state for
purposes of Illinois sovereign immunity,
and therefore reverse the district
court’s denial of the deputies’ motion to
dismiss the state law claims.

I.    BACKGROUND

  Marcella Richman appeared in the Circuit
Court of Cook County, Illinois, to
challenge a traffic citation./1 She was
accompanied by her son, Jack Richman, who
planned to testify as a witness. The
Richmans waited in the courtroom for
several hours before their case was
called, and then the judge continued the
hearing to a future date. The Richmans
attempted to ask a question but the judge
quieted them, and when Jack continued to
speak, the judge ordered him restrained.
Two Cook County sheriff’s deputies began
to take him into custody and twelve more
deputies then entered the courtroom.
According to the complaint, the fourteen
deputies attacked Jack, forced him to the
floor, sat on and handcuffed him. Jack,
who was physically disabled and required
the use of a cane, did not resist the
deputies’ attempt to restrain him, nor
did his mother, who was restrained by
four other deputies. While Jack was
handcuffed and on the floor, he emptied
his bladder and bowels, and he appeared
to have stopped breathing. Paramedics
rendered emergency assistance at the
scene and then transported him to a
hospital, where he was pronounced dead.

  Marcella Richman’s amended complaint
seeks damages against the deputies in
their individual capacities pursuant to
42 U.S.C. sec. 1983, alleging that the
deputies’ conduct violated her and her
son’s right to be free from unreasonable
searches and seizures under the Fourth
and Fourteenth Amendments. The complaint
also includes sec. 1983 claims against
Cook County Sheriff Michael Sheahan in
his official capacity, alleging that he
failed adequately to train and supervise
the deputies in their duties "to refrain
from using excessive force in effecting
seizures of citizens." The complaint also
includes claims against the deputies
under the Illinois Wrongful Death Act,
740 Ill. Comp. Stat. 180/1, and the
Survival Act, 755 Ill. Comp. Stat. 5/27-
6./2

II.    ANALYSIS

  On appeal, we must decide whether the
district court erred in denying the
defendants’ motion to dismiss based on
(1) the deputies’ claim to absolute
immunity; (2) the sheriff’s claimed
right, under the Eleventh Amendment, to
be free from suit in federal court; and
(3) the deputies’ claim to sovereign
immunity under the Illinois State Lawsuit
Immunity Act, 745 Ill. Comp. Stat. 5/1,
and Court of Claims Act, 705 Ill. Comp.
Stat. 505/8. We review each of these
questions of law de novo. DeGenova v.
Sheriff of DuPage County, 209 F.3d 973,
975 (7th Cir. 2000); Hammond v. Kunard,
148 F.3d 692, 695 (7th Cir. 1998); cf.
Benning v. Bd. of Regents, 928 F.2d 775,
778-80 (7th Cir. 1991).

A. Absolute Immunity--sec. 1983 Claims
Against the Deputies

  The parties are correct that we have
jurisdiction, under the collateral order
doctrine, to review the district court’s
decision to deny the defendants’ motion
to dismiss based on absolute immunity.
See Mitchell v. Forsyth, 472 U.S. 511,
530 (1995); Hammond, 148 F.3d at 695.

  The ordinary rule is that qualified--and
not absolute--immunity is sufficient to
protect law enforcement officers in the
conduct of their official duties. Malley
v. Briggs, 475 U.S. 335, 340-41 (1986);
Pierson v. Ray, 386 U.S. 547, 557 (1967).
The deputies argue that the ordinary rule
does not apply in this case because they
were required to execute the judge’s
order, and that quasi-judicial immunity,
a form of absolute immunity derived from
judicial immunity, is appropriate for
officers providing courtroom security. We
disagree.

  We begin our analysis with the
fundamental principle that judges are
entitled to absolute immunity from
damages for their judicial conduct.
Mireles v. Waco, 502 U.S. 9, 11-12
(1991); Forrester v. White, 484 U.S. 219,
225-29 (1988). Judicial immunity was
recognized at common law "as a device for
discouraging collateral attacks and
thereby helping to establish appellate
procedures as the standard system for
correcting judicial error" and to
"protect[ ] judicial independence by
insulating judges from vexatious actions
prosecuted by disgruntled litigants."
Forrester, 484 U.S. at 225; see also
Pierson, 386 U.S. at 554; Bradley v.
Fisher, 80 U.S. 335, 347 (1872).

  The absolute immunity afforded to judges
has been extended to apply to "quasi-
judicial conduct" of "[n]on-judicial
officials whose official duties have an
integral relationship with the judicial
process." Henry v. Farmer City State
Bank, 808 F.2d 1228, 1238 (7th Cir.
1986). For example, we have applied
absolute immunity to officials engaged in
quasi-judicial decision making, such as
members of a parole board. See Wilson v.
Kelkhoff, 86 F.3d 1438, 1443-44 (7th Cir.
1996); Walrath v. United States, 35 F.3d
277, 281-82 (7th Cir. 1994). For these
officers, whose conduct is "functionally
comparable" to those of judges, Antoine
v. Byers & Anderson, Inc., 508 U.S. 429,
436 (1993); Wilson, 86 F.3d at 1443, the
rationale for applying absolute immunity
is much the same as for judges: that
officials making quasi-judicial decisions
should be free of "’the harassment and
intimidation associated with litigation.’"
See Kincaid v. Vail, 969 F.2d 594, 600-01
(7th Cir. 1992) (quoting Burns v. Reed,
500 U.S. 478, 494 (1991)). The deputies
do not claim that they exercise a
comparable form of discretionary decision
making./3

  The deputies instead rely on a different
sort of quasi-judicial immunity, which we
have recognized for some officials whose
functions are further removed from the
core dispute resolution function of
judges. "[W]hen functions that are more
administrative in character have been
undertaken pursuant to the explicit
direction of a judicial officer, we have
held that that officer’s immunity is also
available to the subordinate." Kincaid,
969 F.2d at 601. The policy justifying an
extension of absolute immunity in these
circumstances is to prevent court
personnel and other officials from
becoming a "’lightning rod for harassing
litigation’ aimed at the court." See
Ashbrook v. Hoffman, 617 F.2d 474, 476
(7th Cir. 1980) (quoting Kermit Constr.
Corp. v. Banco Credito Y Ahorro Ponceno,
547 F.2d 1, 3 (1st Cir. 1976)); see also
Kincaid, 969 F.2d at 601; Mays v.
Sudderth, 97 F.3d 107, 113 (5th Cir.
1996); Coverdell v. Dept. of Social &
Heath Servs., 834 F.2d 758, 765 (9th Cir.
1987).
  We have not yet had occasion to consider
whether law enforcement officers charged
with using unreasonable force when
seizing a person pursuant to a judge’s
order are entitled to quasi-judicial
immunity. Two other circuit courts of
appeal have addressed this question, with
different results. In Martin v. Board of
County Commissioners, 909 F.2d 402, 405
(10th Cir. 1990), the Tenth Circuit held
that officers charged with employing
excessive force to execute a bench
warrant were not entitled to absolute
immunity. The Tenth Circuit reasoned
that, because an order to take someone
into custody carries with it an implicit
order not to use unreasonable force, the
judge’s order would not shield the
officers from a claim challenging the
manner in which they enforced the order.
Id. The court distinguished its earlier
holding in Valdez v. City of Denver, 878
F.2d 1285 (10th Cir. 1989), that law
enforcement officers enforcing a contempt
order were entitled to quasi-judicial
immunity for claims of false arrest and
imprisonment. In Valdez, the claim was
not directed at the manner in which the
judge’s order was executed, but instead
at conduct expressly prescribed by the
order. Because of this difference, the
court held that the policies underlying
the extension of absolute immunity--not
holding officials accountable for conduct
they are powerless to avoid--did not
apply. Martin, 909 F.2d at 404-05.

  The Eighth Circuit reached the opposite
conclusion in Martin v. Hendren, 127 F.3d
720 (8th Cir. 1997), a case, like this
one, in which the plaintiff was
restrained in the courtroom by order of
the judge. The Eighth Circuit rejected
the Tenth Circuit’s reasoning, and held
that the alleged impropriety of the
officers’ acts (using excessive force to
effectuate the seizure) did not strip the
acts of their quasi-judicial character.
Id. at 721-22. The Eighth Circuit relied
on the Supreme Court’s statement in
Mireles that "’[i]f judicial immunity
means anything, it means that a judge
will not be deprived of immunity because
the action he took was in error . . . or
was in excess of his authority.’" 127
F.3d at 722 (quoting Mireles, 502 U.S. at
12-13).

  We believe that the Eighth Circuit
stretches the reasoning in Mireles too
far, and confuses the question suggested
by the Tenth Circuit in Martin--whether
the challenged conduct was specifically
ordered by the judge--with the separate
question of whether the conduct was
lawful or exceeded the actor’s authority.
In Mireles, the plaintiff challenged the
judge’s order directly--that is, by suing
the judge. Mireles holds that when the
challenged conduct is the judge’s own
decision making, the applicability of
absolute immunity cannot turn on the
correctness of the judge’s decision. 502
U.S. at 12-13. By contrast, when the
conduct directly challenged is not the
judge’s decision making, but the manner
in which that decision is enforced, we
agree with the Tenth Circuit that the law
enforcement officer’s fidelity to the
specific orders of the judge marks the
boundary for labeling the act "quasi-
judicial." See Martin, 909 F.2d at 404-
05.

  More important, as Judge Lay points out
in his dissent in Hendren, Mireles
"directs that the facts of the incident
must be evaluated in relation to the
general function of the officer."
Hendren, 127 F.3d at 723 (Lay, J.,
dissenting). In making this evaluation,
"we examine the nature of the functions
with which a particular official or class
of officials has been lawfully entrusted,
and we seek to evaluate the effect that
exposure to particular forms of liability
would likely have on the appropriate
exercise of those functions." Forrester,
484 U.S. at 224.

  Our quasi-judicial immunity cases
demonstrate that the primary function to
be protected is judicial or quasi-
judicial decision making. This is true of
cases challenging discretionary conduct
by a quasi-judicial body like a parole
board, see Wilson, 86 F.3d at 1443-44,
and it is also true when the lawsuit is
aimed at persons integral to the judicial
process but whose conduct is not
"functionally comparable" to a judge’s.
See Antoine, 508 U.S. at 436; Wilson, 86
F.3d at 1443. For example, we have
recognized absolute immunity for law
enforcement officials when the challenged
conduct (the mere act of enforcing a
foreclosure judgment) was specifically
ordered by the judge. See Henry, 808 F.2d
at 1238-39. The source of the plaintiff’s
wrong in Henry was the judge’s order
itself, and we reasoned that a suit
against the officers was not the
appropriate vehicle for challenging the
validity of that order. See id. Under
those circumstances, extension of
absolute immunity is not primarily to
protect the enforcement function
performed by the deputies, but rather to
protect the judicial decision-making
function by discouraging collateral
attacks and encouraging appeals. See id.
at 1239. It further avoids the "untenable
result" of requiring "sheriffs and other
court officers who enforce properly
entered judgments pursuant to facially
valid court orders to act as appellate
courts, reviewing the validity of both
the enforcement orders and the underlying
judgments before proceeding to collect on
them." Id.; see also Mays, 97 F.3d at
113; Valdez, 878 F.2d at 1289.

  Similarly, for court personnel and
adjuncts who do not exercise a
discretionary function comparable to a
judge’s, the justification for extending
absolute immunity is most compelling when
the lawsuit challenges conduct
specifically directed by the judge, and
not simply the manner in which the
judge’s directive was carried out. See
Kincaid, 969 F.2d at 601 (clerk who
refused to accept filing of complaint at
the direction of the judge was entitled
to quasi-judicial immunity); Dellenbach
v. Letsinger, 889 F.2d 755, 763 (7th Cir.
1989) (court reporter and clerks who told
plaintiff to pay for unnecessary
transcript at the request of the judge
were entitled to quasi-judicial
immunity); Eades v. Sterlinske, 810 F.2d
723, 726 (7th Cir. 1987) (clerk and court
reporter who prepared and filed a false
certificate summarizing an instruction
conference at the direction of the judge
were entitled to quasi-judicial
immunity); cf. Lowe v. Letsigner, 772
F.2d 308, 313 (7th Cir. 1985) (court
clerk who allegedly concealed entry of
order was not entitled to absolute
immunity for his ministerial act of
failing to type and send notice after
entry of judgment)./4 By contrast, the
Supreme Court has held that a court
reporter was not entitled to absolute
immunity for her own misconduct (losing
her trial notes and failing to provide a
transcript of the trial), reasoning that
"court reporters do not exercise the kind
of judgment that is protected by the
doctrine of judicial immunity." See
Antoine, 508 U.S. at 437.

  The policies articulated in our quasi-
judicial immunity cases have less force
when, as in this case, the challenged
conduct is the manner in which the
judge’s order is carried out, and not
conduct specifically directed by a judge.
Reading Richman’s complaint in the light
most favorable to her, the claim is not
that the judge ordered the deputies to
use unreasonable force, but that the
deputies exceeded the judge’s order by
the manner in which they executed it. The
claim for damages in this case is not
therefore a collateral attack on the
judge’s order (an order that Richman
concedes was valid), and an appeal of the
judge’s order would provide no remedy.
Similarly, the deputies are not being
called upon to answer for wrongdoing
directed by the judge, but instead for
their own conduct. And that conduct--the
manner in which they enforced the judge’s
order--implicates an executive, not
judicial, function.

  Moreover, we believe that the policies
articulated by the Eighth Circuit in
Hendren are insufficient to justify the
extension of absolute immunity urged
here. The Eighth Circuit expressed alarm
at the possibility that exposing court
security officers to "potential liability
for acting on a judge’s courtroom orders
could breed a dangerous, even fatal, hes
itation." See Hendren, 127 F.3d at 722.
But without in any way minimizing the
vital and often valorous service of those
who provide security to judges and other
participants in the judicial process, we
note that the need for immediate action
in the face of potentially fatal
consequences is not a situation unique to
courtrooms, and yet qualified immunity
(which takes into account the particular
circumstances faced by the officers) is
the rule for law enforcement officers of
all kinds, see Malley, 475 U.S. at 340-
41; Pierson, 386 U.S. at 557, including
secret service officers charged with
guarding the President. See Hunter v.
Bryant, 502 U.S. 224, 228 (1991) (per
curiam). That the conduct occurs in the
courtroom, does not, in our opinion,
justify our applying a different rule. In
this regard, the Supreme Court has
cautioned against our being overly
solicitous of claims of immunity
involving the judicial function:

One can reasonably wonder whether judges,
who have been primarily responsible for
developing the law of official
immunities, are not inevitably more
sensitive to the ill effects that
vexatious lawsuits can have on the
judicial function than they are to
similar dangers in other contexts. . . .
Although Congress has not undertaken to
cut back the judicial immunities
recognized by this Court, we should be at
least as cautious in extending those
immunities as we have been when dealing
with officials whose peculiar problems we
know less well than our own.

Forrester, 484 U.S. at 226 (citation
omitted).

  Finally, the only difference (in terms
of liability for damages) between the
absolute immunity urged by the deputies
here and the qualified immunity that is
the ordinary rule for law enforcement
officers is that the former shields even
knowingly unlawful or plainly incompetent
acts. See Malley, 475 U.S. at 341.
Absolute immunity provides an additional
benefit even for officers whose actions
are reasonable because it allows them to
avoid altogether the litigation that
would be required in order to determine
their entitlement to qualified immunity.
The tradeoff, however, is that even
victims of knowingly unlawful acts go
without a remedy, and for that reason
absolute immunity is applied with caution
and only when it is necessary to protect
the function at issue. See Forrester, 484
U.S. at 230; Antoine, 508 U.S. at 432
n.4; Burns v. Reed, 500 U.S. 478, 486-87
(1991). A secure courtroom is necessary
to protect the judicial function from
interference or intimidation; this
function is adequately protected by
immunizing a judge’s order to restrain a
person, see Mireles, 502 U.S. at 12-13,
and by barring lawsuits that challenge a
judge’s decision through claims aimed at
officers who do nothing more than
implement it. See Henry, 808 F.2d at
1238-39. It is not necessary to the
judicial function, in our judgment, to
also deny a remedy to plaintiffs who were
harmed not by the judge’s order, but by
unlawful conduct by those who enforce it.
We therefore affirm the district court’s
denial of the deputies’ motion to dismiss
the plaintiff’s sec. 1983 claims./5

B. The Eleventh Amendment--sec. 1983
Claims Against the Sheriff

  Sheriff Sheahan claims that the district
court erred in denying his motion to
dismiss, in which he asserted that the
Eleventh Amendment barred the plaintiff’s
sec. 1983 claim alleging that he failed
adequately to train and supervise the
deputies. We have jurisdiction, under the
collateral order doctrine, to review the
district court’s denial of the sheriff’s
claim to Eleventh Amendment immunity. See
Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146-
47 (1993); DeGenova, 209 F.3d at 975;
Franklin v. Zaruba, 150 F.3d 682, 684
(7th Cir. 1998). Because we cannot
conclude as a matter of law that the
alleged unconstitutional policy of the
sheriff’s office represents state policy,
we affirm the district court’s denial of
the sheriff’s motion to dismiss.

  Richman sued Sheahan in his official
capacity, and therefore the claim is
against the entity of which he is an
agent. See Kentucky v. Graham, 473 U.S.
159, 169 (1985); Scott v. O’Grady, 975
F.2d 366, 369 (7th Cir. 1992). The
Eleventh Amendment does not apply to
suits against counties or other local
government entities. Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 280 (1977); Scott, 975 F.2d at
370. Under Illinois law, sheriffs are
classified as county, not state,
officials, and when the sheriff "performs
his duties as the principal executive
officer or chief law enforcement officer
of the county, he acts as a county
official" and the Eleventh Amendment does
not apply. Scott, 975 F.2d at 371;
Franklin, 150 F.3d at 684; Ruehman v.
Sheahan, 34 F.3d 525, 528 (7th Cir.
1994). However, a county sheriff may act
as an arm of the state when performing
certain functions. Ruehman, 34 F.3d at
528; Scott, 975 F.2d at 371. When he does
so, a suit challenging that conduct is
against the state, and the claim for
damages may not be brought in federal
court. Ruehman, 34 F.3d at 528; Scott,
975 F.2d at 371.

  In determining whether the sheriff is an
agent of Illinois government when
performing particular functions, we have
looked to the degree of control exercised
by Illinois over the conduct at issue and
whether the Eleventh Amendment policy of
avoiding interference with state (as
opposed to county) policy is offended by
the lawsuit. See Ruehman, 34 F.3d at 529;
Scott, 975 F.2d at 371. In Scott, for
example, deputy sheriffs were sued in
their official capacities for executing a
writ of assistance issued by an Illinois
court. We noted that because the sheriff
had "a statutory, non-discretionary duty
to execute this writ," the deputies were
acting as state, not county, officers.
Scott, 975 F.2d at 371.

  But not all actions associated with
carrying out the deputies’ duty to
execute the state court’s orders are
actions on behalf of the state. For
example, in Ruehman, the plaintiff
challenged the sheriff’s design of a
system to track warrants issued by state
courts. We noted, consistent with Scott,
that an official-capacity suit
challenging the deputies’ execution of
the warrants would be a suit against the
state because the warrants were issued by
the Illinois courts. 34 F.3d at 528-29.
However, the warrant-tracking system that
was at the heart of the plaintiff’s
complaint was designed and implemented by
the sheriff and county government, and
did not therefore implicate state policy:
"State law requires the Sheriff to arrest
the right people but says nothing about
how he should do it." Id. at 529.

  As in Ruehman, the claim against the
sheriff in this case does not challenge
the mere execution of the court’s order
by the sheriff’s office. Nor does it seek
to hold the sheriff liable as the
deputies’ employer, a theory that is
foreclosed by Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658, 692
(1978). Instead, Richman’s claim against
the sheriff’s office is based on its
alleged unconstitutional policy (its
failure adequately to train and supervise
the deputies in deliberate indifference
to the plaintiff’s rights) regarding the
use of force when arresting persons in
the courtroom pursuant to a judge’s
order. Therefore, we must determine
whether that alleged policy represents
state policy or instead county policy.
See McMillian v. Monroe County, Alabama,
520 U.S. 781, 784 (1997); DeGenova, 209
F.3d at 975-76; Ruehman, 34 F.3d at 529.
Sheriff Sheahan does not contend that
Illinois has any policy regarding, or
exercises any control over, his training
or supervision of deputies in the use of
force when executing court orders. Cf.
Ruehman, 34 F.3d at 529; DeGenova, 209
F.3d at 976. Instead, the sheriff relies
on an Illinois statute that requires the
sheriff to obey orders of Illinois
courts:

Each sheriff shall, in person or by
deputy, county corrections officer, or
court security officer, attend upon all
courts held in his or her county when in
session, and obey the lawful orders and
directions of the court, and shall
maintain the security of the courthouse.

55 Ill. Comp. Stat. 5/3-6023.

  We are unable to conclude from this
provision that the county sheriff
operates as a state officer with respect
to the conduct alleged here. Aside from
the explicit command that sheriffs obey
orders of Illinois courts, Illinois law
assigns the responsibility for courtroom
security generally to the county sheriff.
Id. The sheriff has no discretion in
whether to obey a judge’s orders, but we
are aware of no state policy directing
the sheriff’s actions regarding the
training and supervision of deputies in
the use of force in carrying out state
court orders. The evidence may show
otherwise, but at this stage of the
proceedings, we cannot conclude as a
matter of law that the alleged
unconstitutional policy represents state
policy. Therefore, we affirm the district
court’s denial of Sheriff Sheahan’s
motion to dismiss./6

C. Sovereign Immunity--State Law Claims
Against the Deputies

  The deputies moved to dismiss the state
wrongful death and survival claims,
asserting that they were entitled to
sovereign immunity under the Illinois
State Lawsuit Immunity Act, 745 Ill.
Comp. Stat. 5/1, and Court of Claims Act,
705 Ill. Comp. Stat. 505/8. The district
court denied the deputies’ motion,
holding that the lawsuit was not a suit
against the state for purposes of
Illinois sovereign immunity. On appeal,
the deputies argue that the district
court’s decision was wrong as a matter of
Illinois law. We agree.

  The Illinois State Lawsuit Immunity Act,
745 Ill. Comp. Stat. 5/1, provides that
the State of Illinois is immune from suit
in any court, except as provided in the
Illinois Court of Claims Act, 705 Ill.
Comp. Stat. 505/8 (and other statutes not
relevant here), which vests jurisdiction
over state tort claims against the state
in the Illinois Court of Claims. These
state immunity rules apply to Richman’s
state law claims in federal court.
Benning v. Bd. of Regents, 928 F.2d 775,
778-79 (7th Cir. 1991); Magdziak v. Byrd,
96 F.3d 1045, 1048 (7th Cir. 1996).

  Under Illinois law, a claim against
individual officers will be considered a
claim against the state, even when, as
here, the officials are sued in their
individual capacities, if "judgment for
the plaintiff could operate to control
the actions of the State or subject it to
liability." Currie v. Lao, 592 N.E.2d
977, 980 (Ill. 1992); Feldman v. Ho, 171
F.3d 494, 498 (7th Cir. 1999). If the
state law claim is deemed to be against
the state, then it must be dismissed.
This is because, under Illinois law, the
deputies would have absolute immunity,
and under the Eleventh Amendment, the
claim for damages against the state may
not be brought in federal court. Feldman,
171 F.3d at 498. Either way, the
collateral order doctrine provides the
basis for appellate jurisdiction under
the principles of Mitchell, 472 U.S. at
525-30, and Metcalf & Eddy, 506 U.S. at
145-46. See Griesel v. Hamlin, 963 F.2d
338, 340-41 (11th Cir. 1992) (per curiam)
(holding that denial of officer’s
immunity under state law is an
immediately appealable collateral order);
Napolitano v. Flynn, 949 F.2d 617, 621
(2d Cir. 1991) (same).

  Deputy sheriffs executing orders of the
court may be agents of the state for
purposes of Illinois sovereign immunity.
Alencastro v. Sheahan, 698 N.E.2d 1095,
1101 (Ill. App. Ct. 1998). An agent’s
conduct will be attributed to the state
for purposes of sovereign immunity if:
"’(1) [there are] no allegations that an
agent or employee of the State acted
beyond the scope of his authority through
wrongful acts; (2) the duty alleged to
have been breached was not owed to the
public generally independent of the fact
of State employment; and (3) . . . the
complained-of actions involve matters
ordinarily within that employee’s normal
and official functions of the State.’"
Healy v. Vaupel, 549 N.E.2d 1240, 1247
(Ill. 1990) (quoting Robb v. Sutton, 498
N.E.2d 267, 272 (Ill. App. Ct. 1986));
Benning, 928 F.2d at 779. "Sovereign
immunity affords no protection, however,
when it is alleged that the State’s agent
acted in violation of statutory or
constitutional law or in excess of his
authority." See Nichol v. Stass, 735
N.E.2d 582, 586 (Ill. 2000); Healy, 549
N.E.2d at 1247; see also Feldman, 171
F.3d at 498 ("Illinois follows the
federal practice by making an exception
for situations in which the public
employee did not act within the scope of
his employment or violated the
Constitution.").

  Applying these principles, we conclude
that Illinois would consider the wrongful
death and survival claims against the
deputies to be against the state.
Richman’s state wrongful death and
survival claims are not dependant on the
alleged constitutional violation, but
instead on a theory of wilful and wanton
negligence, so the exception to immunity
for unconstitutional conduct does not
apply. Cf. Medina v. City of Chicago, 606
N.E.2d 490, 498 (Ill. App. Ct. 1992)
(holding that there was no inconsistency
between jury’s verdict for plaintiff on
wrongful death claim and for defendant on
sec. 1983 claim of excessive force: "Two
different standards are involved.");
Leavitt v. Farwell Tower Ltd. P’ship, 625
N.E.2d 48, 52 (Ill. App. Ct. 1993)
(wrongful death claim requires a breach
of a duty, owed to the decedent, which
proximately caused decedent’s death, and
pecuniary damages). Furthermore, Richman
does not allege that the deputies’
conduct was not within their normal
duties, and the duty owed to Jack Richman
was owed by virtue of the deputies’
obligation to enforce the state court’s
order. The critical question, then, for
determining the deputies’ entitlement to
sovereign immunity is whether the
deputies acted beyond the scope of their
authority. See Healy, 549 N.E.2d at 1247;
Benning, 928 F.2d at 780-81.

  As we noted earlier in this opinion (for
purposes of determining the deputies’
entitlement to quasi-judicial immunity),
Richman does not allege that the
deputies’ conduct was specifically
authorized by the Illinois judge.
However, for purposes of determining
whether an agent’s acts are within the
scope of his authority, the fact that the
agent’s act was not specifically
authorized is not dispositive, so long as
it is of the general kind he is
authorized to perform, and is motivated,
at least in part, by a purpose to serve
the principal./7 See Janes v. Albergo,
626 N.E.2d 1127, 1132-33 (Ill. App. Ct.
1993); Gaffney v. City of Chicago, 706
N.E.2d 914, 919-20 (Ill. App. Ct. 1998);
Mitchell v. Norman James Constr. Co., 684
N.E.2d 872, 878 (Ill. App. Ct.
1997);Sunseri v. Puccia, 422 N.E.2d 925,
930 (Ill. App. Ct. 1981). Similarly, if
there are no allegations that the
defendant was acting for a purpose
unrelated to his employment, the fact
that the conduct was wilful and wanton
does not take the conduct outside the
defendant’s scope of agency for purposes
of sovereign immunity. See Janes, 626
N.E.2d at 1132; Rembis v. Bd. of
Trustees, 618 N.E.2d 797, 799-800 (Ill.
App. Ct. 1993); Campbell v. White, 566
N.E.2d 47, 53-54 (Ill. App. Ct. 1991).
Richman alleges that the deputies’
conduct was wilful and wanton, but there
is nothing in the complaint that would
indicate that the deputies’ conduct was
motivated by a purpose other than
executing the judge’s order. We therefore
conclude that the deputies’ actions were
within the scope of their authority for
purposes of Illinois sovereign immunity.

  Because we conclude that the deputies’
acts are attributable to the state for
purposes of sovereign immunity under the
Illinois State Lawsuit Immunity Act and
Court of Claims Act, we reverse the
district court’s decision denying the
deputies’ motion to dismiss the state law
claims.

III.   CONCLUSION

  We agree with the district court that
the deputies are not entitled to absolute
immunity, and therefore Affirm that
portion of the district court’s order
denying the deputies’ motion to dismiss
Richman’s sec. 1983 claims. Because we
cannot conclude as a matter of law that
the alleged unconstitutional policy at
issue here was state policy for purposes
of the Eleventh Amendment, we Affirm that
portion of the district court’s order
denying the sheriff’s motion to dismiss
Richman’s sec. 1983 claims. Finally, we
conclude that the deputies’ conduct would
be attributed to the state for purposes
of sovereign immunity under the Illinois
State Lawsuit Immunity Act and Court of
Claims Act, and therefore Reverse that
portion of the district court’s order
denying the deputies’ motion to dismiss
the state law claims.

FOOTNOTES

/1 This version of events is from the allegations of
Richman’s amended complaint, which we accept as
true for purposes of reviewing the defendants’
motion to dismiss. See Hammond v. Kunard, 148
F.3d 692, 695 (7th Cir. 1998).

/2 Other defendants and claims were dismissed below
and are not involved in this appeal.

/3 The deputies characterize their conduct as "clas-
sically ministerial," that is, without the exer-
cise of their own discretion. See Black’s Law
Dictionary 1011 (7th ed. 1999). At common law,
such conduct by a sheriff was not entitled to
absolute immunity. See Thomas M. Cooley, Law of
Torts, 376, 392-98 (Chicago, Callaghan 1880); see
also Floyd R. Mechem, Public Offices and Offi-
cers, sec.sec. 636-38 (Chicago, Callaghan 1890).

/4 The quasi-judicial immunity cases from other
circuits cited by the deputies similarly involved
challenges to conduct prescribed by the court’s
order or direction. See Gallas v. Supreme Court
of Pennsylvania, 211 F.3d 760, 772-73 (3d Cir.
2000) (court administrator entitled to immunity
for damages for release of information ordered by
a judge); Mays, 97 F.3d at 108, 114 (official
entitled to quasi-judicial immunity for "strict
compliance" with facially valid order, but not
for conduct that exceeded the scope of the or-
der); Roland v. Phillips, 19 F.3d 552, 556-57
(11th Cir. 1994) (sheriffs entitled to quasi-
judicial immunity for executing a facially valid
court order); Coverdell, 834 F.2d at 764-65
(child protective services worker entitled to
quasi-judicial immunity for executing order to
apprehend a child); Bush v. Rauch, 38 F.3d 842,
847 (6th Cir. 1994) (court official entitled to
quasi-judicial immunity for carrying out the
order of the judge); Robinson v. Freeze, 15 F.3d
107, 109 (8th Cir. 1994) (holding that officers
would be entitled to absolute immunity only for
conduct "specifically ordered by the trial judge
and related to the judicial function"); Valdez,
878 F.2d at 1289-90 (officers entitled to quasi-
judicial immunity for enforcing contempt order).

/5 This opinion has been circulated to the full
court before release in accordance with Circuit
Rule 40(e). A majority did not favor a rehearing
en banc on the question of the deputies’ entitle-
ment to quasi-judicial immunity. Judge Bauer
voted to grant rehearing en banc.

/6 Sheriff Sheahan’s claim to absolute immunity is
without merit because the suit is against him in
his official capacity. See Leatherman v. Tarrant
County Narcotics Intelligence and Coordination
Unit, 507 U.S. 163, 166 (1993). Also without
merit is his claim that he cannot be liable if
the deputies are immune. The sheriff relies on
Tesch v. County of Green Lake, 157 F.3d 465, 477
(7th Cir. 1998), which held that without an
underlying constitutional violation, there can be
no liability on a failure to train theory. Id.
However, if there is a constitutional violation
(a question we do not address here), an officer’s
immunity from damages does not negate the exis-
tence of that violation.

/7 On this question we are guided by Illinois law of
sovereign immunity, which involves different
considerations than the principles underlying the
extension of quasi-judicial immunity to law
enforcement officers on a sec. 1983 claim.




  BAUER, Circuit Judge, dissenting. I respectfully
dissent. The majority finds Martin v. Board of
County Commissioners, 909 F.2d 402 (10th Cir.
1990) "more persuasive" than Martin v. Hendren,
127 F.3d 720 (8th Cir. 1997). The tenth circuit
case involved police conduct in serving a bench
warrant; the eighth circuit case is virtually on
all fours with the instant case.

  I have no quarrel with the result reached by
the tenth circuit case; it differs not at all
from the run-of-the-mill arrests made pursuant to
any judicial warrant and, since the arrest takes
place away from the courtroom and away from the
watchful eye of the judicial officer who issued
the warrant, the conduct of the police is more
likely to require a closer scrutiny. Nor is the
immediate service of the warrant necessary to
provide the court with the proper decorum needed
to continue the work of the court.

  The Martin v. Hendren case, like ours, however
involves police officers under the immediate
direction and supervision of a judge, following
the judge’s orders to restore or maintain order
in the court instanter, doing precisely what they
are sworn to do. Indeed, it is to do this job of
maintaining order at the bidding of the judge
that is the very reason they are present in the
courtroom.

  In formulating the finding granting these
officers quasi-immunity, it is difficult to
improve on the language of the majority opinion
of the eighth circuit:

[2-4] "Absolute quasi-judicial immunity derives
from absolute judicial immunity." Roland v.
Phillips, 19 F.3d 552, 555 (11th Cir. 1994).
Judges are absolutely immune from suit for money
damages when they act in their judicial capacity,
unless their actions are "taken in the complete
absence of all jurisdiction." Duty [v. City of
Springdale, Ark., 42 F.3d 460 (8th Cir. 1994)].
A judge’s absolute immunity extends to public
officials for "’acts they are specifically
required to do under court order or at a judge’s
direction.’" Robinson v. Freeze, 15 F.3d 107, 109
(8th Cir. 1994) (quoting Rogers v. Bruntrager,
841 F.2d 853, 856 (8th Cir. 1988)). Like other
officials, bailiffs enjoy absolute quasi-judicial
immunity for actions "specifically ordered by the
trial judge and related to the judicial func-
tion." Id. In subduing Martin, Hendren was acting
as a de facto bailiff, obeying specific judicial
commands to restore order in the courtroom. Those
orders unquestionably related to the judicial
function. See Mireles v. Waco, 502 U.S. 9, 12-13,
112 S.Ct. 286, 288-89, 116 L.Ed.2d 9 (1991) (per
curiam); Terry v. State, 303 Ark. 270, 796 S.W.2d
332, 335 (1990). Hendren is thus entitled to
absolute quasi-judicial immunity from sec. 1983
liability for carrying out the judge’s orders to
handcuff Martin and remove her from the court-
room.

  Martin argues that even if Hendren is absolute-
ly immune from liability for implementing the
judge’s orders, Hendren ceased to act in a quasi-
judicial capacity when he carried out those
orders using excessive force. See Martin v. Board
of County Comm’rs, 909 F.2d 402, 404-05 (10th
Cir. 1990) (per curiam) (holding officers not
absolutely immune for using excessive force in
executing arrest warrant). After Martin was
decided, however, the Supreme Court held a judge-
’s order to use excessive force, issued in the
judge’s judicial capacity, was a judicial act for
which the judge retained absolute immunity. See
Mireles, 502 U.S. at 12-13, 112 S.Ct. at 288-89.
The Court emphasized that the nature of the
function being performed, not the particular act
itself, controls the judicial immunity inquiry.
See id. The Court rejected the idea that the
impropriety of a judge’s act strips the judge of
immunity, reasoning that "[i]f judicial immunity
means anything, it means that a judge ’will not
be deprived of immunity because the action he
took was in error . . . or was in excess of his
authority.’" Id. (quoting Stump v. Sparkman, 435
U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d
331 (1978) (ellipsis in Mireles)). Although the
Mireles Court did not address quasi-judicial
immunity, we find the Court’s reasoning persua-
sive in this context. Absolute quasi-judicial
immunity would afford only illusory protection if
it were lost the moment an officer acted improp-
erly. Further, the officers in Martin were exe-
cuting an arrest warrant away from the issuing
judge’s courtroom, see Martin, 909 F.2d at 403-
04, but Hendren was carrying out a judicial
command in the judge’s courtroom and presence.
Because judges frequently encounter disruptive
individuals in their courtrooms, exposing bai-
liffs and other court security officers to poten-
tial liability for acting on a judge’s courtroom
orders could breed a dangerous, even fatal,
hesitation. "For the criminal justice system to
function, . . . courts must be able to assume
their orders will be enforced." Patterson v. Von
Riesen, 999 F.2d 1235, 1241 (8th Cir. l993).

Martin v. Hendren, 127 F.3d 720, at 721-22.

  As to the horrific scenario envisioned by Judge
Lay’s dissent, the court dryly (and properly!)
responded ". . . we need not speculate about
hypothetical situations testing the limits of our
holding."

  A decision reversing the trial court in the
instant case is, in my opinion, both logical and
necessary, if courtroom decorum is to be pre-
served at all. To suggest that the judge is
absolutely immune from liability for requiring
the bailiffs to take a person into custody for
refusing the court’s direction while exposing the
bailiffs to liability has implications that go
beyond the present case. A probable response (if
it could be done without the bailiff being held
in contempt) would be to suggest that the judge,
cloaked with his or her immunity, step down and
preserve order himself.

  I continue to have sufficient faith in the
judges who serve our courts to believe that they
will oversee the bailiff or bailiffs who carry
out their orders in the courtroom and make sure,
by direction or otherwise, that the orders are
properly carried out with the reasonable amount
of force that the individual cases require.

  I would reverse the district court and hold the
bailiffs to be cloaked with immunity when carry-
ing out the orders of the court relating to the
conduct of court proceedings themselves. It
follows then, that I would reverse the order-
denying the sheriff’s motion to dismiss. I would
join the majority in reversing the order denying
the deputies’ motion to dismiss the state law
claims.
