In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2981

Joseph Ruffino, Randall A. Noble,
and Emmett Doherty,

Plaintiffs-Appellees,

v.

Michael Sheahan, individually and in his
official capacity as Sheriff of Cook County,
Illinois,

Defendant-Appellant.



Appeal from the United States District Court
for the
Northern District of Illinois, Eastern
Division.
Nos. 96 C 2234 & 97 C 5670--George W. Lindberg,
Judge.


Argued December 10, 1999--Decided June 27,
2000



  Before Easterbrook, Rovner, and Diane P.
Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. This is an
interlocutory appeal that never should
have seen the light of day. For the most
part, it presents questions over which
this court has no appellate jurisdiction;
the only other issue is one that was
forfeited in the court below and that is
without merit in any event. On the eve of
trial, Michael Sheahan, the Sheriff of
Cook County, Illinois, made a last-ditch
effort to avoid final adjudication of the
civil rights case that three sheriffs’
deputies brought against him by taking an
appeal from the district court’s decision
refusing to grant his motion for
dismissal on qualified immunity grounds.
The district court concluded that
dismissal would be premature, because the
resolution of the immunity issue depended
upon disputed issues of fact. The
Sheriff’s attorneys convinced a panel of
this court to stay the start of the trial
while he attempted this appeal. On
interlocutory appeal, we have enough of
the record before us to conclude that the
Sheriff not only cannot prevail on his
immunity defense at this stage of the
proceedings, but also that his arguments
are so lacking in merit that he must show
cause why he should not be sanctioned for
filing this appeal.

I

  The underlying action concerns the
internal operations of the Sheriff’s
office. In the late 1980s and early
1990s, the FBI was investigating
corruption in that office. It learned
that the Merit Board certification
process, an examination regime through
which deputy sheriffs were selected, was
compromised, and perhaps as many as 300
people had been certified for employment
even though they did not meet the
necessary requirements.

  In 1990, Sheriff Michael Sheahan, a
Democrat, was elected to replace Sheriff
James O’Grady, a Republican. Upon taking
office, Sheahan promised to clean things
up. His efforts to do so took on added
urgency as the 1994 re-election campaign
began in earnest. In August 1994, two
months before the general election and
after the FBI investigation had been
underway for some time, Sheahan held a
press conference and announced that he
was bringing 30 deputies before the Merit
Board to seek their dismissal. Sheahan
claimed that he selected the 30
individuals based on their seniority, but
the targets had a different explanation.
They claimed that they had been singled
out because of their support for O’Grady
in the 1990 election, their support for
the Republican Party in general, and
their failure to contribute to the
Democratic Party.

  The Merit Board dismissed the 1994
complaints in July 1995, but the Sheriff
pressed on, filing new charges before the
Board in August 1995. The latter charges
were dropped only in May 1998. Between
the start of the first round of charges
and the dismissal of the second, the 30
affected individuals were stripped of
their rank, declared ineligible for
overtime, barred from consideration for
promotion, and denied weapons permits
(which had the undesirable collateral
effect of making it impossible for them
to work lucrative private security jobs
during their off-hours).

  Among the group of 30 were the three
plaintiffs in this case, Joseph Ruffino,
Randall Noble, and Emmett Doherty. Each
of these men held the title of "deputy
sheriff." In that capacity, they worked
as guards at various Cook County court
facilities, where they performed services
such as checking employee and attorney
identification cards, operating scanning
devices at the entrances to court
facilities, and providing security in
courtrooms and lock-up areas. They worked
under an immediate supervisor located at
the same facility. During the 1990
campaign, Ruffino and Doherty had both
worked for O’Grady’s re-election; Noble
had posted O’Grady signs in his yard and
put O’Grady bumper stickers on his car.
In March 1994, just before the primary
election, Noble appeared on television to
discuss an allegation of bribery leveled
at a high-ranking official in Sheriff
Sheahan’s administration--a matter Noble
believed was being covered up. Noble also
decided to run as a write-in candidate in
the general election and to distribute
anti-Sheahan literature.

II

  On April 17, 1996, Ruffino and Noble
responded to Sheahan’s decision to bring
them before the Merit Board by filing a
five count complaint against him in both
his individual and official capacities,
alleging that he acted under color of law
to deprive them of their First and
Fourteenth Amendment rights, in violation
of 42 U.S.C. sec. 1983, and alleging that
he had violated certain state laws. On
August 11, 1997, Doherty filed a
complaint alleging only the federal civil
rights violations similar to those that
the other two had raised. In a series of
rulings, the district court eliminated
everything from the case except various
claims against Sheahan in his official
capacity and the First Amendment claims
Ruffino, Noble, and Doherty are asserting
against him in his individual capacity.
The Sheriff moved for summary judgment on
those claims, arguing that even if he did
attempt to fire the three deputies for
patronage reasons, his decision to do so
was consistent with Illinois law and
furthered the public’s interest in
rooting out corruption. He claimed that
the deprivations the plaintiffs suffered
were so trivial that they could not, as a
matter of law, establish a constitutional
violation. He also argued that he acted
in good faith. At no time did he breathe
a word before the district court hinting
that his actions were at least debatably
legitimate because the deputies in
question were policymakers.

  The district court decided first that it
is not necessary for a First Amendment
claim to show the kind of loss of a
property interest that would support a
Fourteenth Amendment claim, citing Rutan
v. Republican Party of Illinois, 497 U.S.
62, 73 (1990), and Swick v. City of
Chicago, 11 F.3d 85, 87 (7th Cir. 1993).
To the contrary, said the court, under
Bart v. Telford, 677 F.2d 622, 625 (7th
Cir. 1982), a campaign of harassment or
disciplinary actions based on political
affiliation can violate the First
Amendment by chilling the exercise of the
public employee’s constitutional rights.
Finding also that the facts concerning
the way the 30 deputies were selected for
termination proceedings were disputed,
the court decided that dismissal on
immunity grounds was inappropriate.
III

  As the case reaches us, there are three
potential issues on appeal: (1) whether
the district court correctly rejected the
Sheriff’s qualified immunity claim for
the official capacity counts; (2) whether
the Sheriff may at this point attack the
district court’s qualified immunity
decision on the ground that the deputies
were all policymakers and thus subject to
firing under a fair reading of the
contemporaneous law; and (3) whether the
district court’s decision rejecting
qualified immunity was correct. As we
explain briefly below, we have no
jurisdiction to consider the first or
third of these issues, and the Sheriff
has waived the second.

  The doctrine of qualified immunity
exists to protect public officials
performing discretionary functions from
civil damages. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Official capacity
suits do not, by definition, place the
public official at risk of personal
liability. Instead, they implicate the
public fisc. A plaintiff seeking to
pursue an official capacity claim must be
able to point to a theory that entitles
it to sue the public agency. In Monell v.
Dept. of Soc. Serv. of the City of New
York, 436 U.S. 658, 690 (1978), the
Supreme Court held that municipalities
are "persons" for purposes of 42 U.S.C.
sec. 1983. See also Board of County
Comm’rs of Bryan County v. Brown, 520
U.S. 397, 403 (1997). In Illinois, the
office of the Sheriff as an institutional
matter is also ordinarily a suable entity
under sec. 1983. See Scott v. O’Grady,
975 F.2d 366, 370 (7th Cir. 1992). See
also Ill. Const. art. 7, sec. 4(C)
(sheriff is a county official). To take
an obvious counter-example, a state
itself cannot be sued for civil damages
in the absence of a valid abrogation of
Eleventh Amendment sovereign immunity or
a valid waiver of those rights.
Fitzpatrick v. Bitzer, 427 U.S. 445, 455-
56 (1976) (allowing damages action where
Congress acted pursuant to Fourteenth
Amendment powers); Edelman v. Jordan, 415
U.S. 651, 664-65 (1974) (disallowing
monetary awards generally). Because the
rationale that supports qualified
immunity from suit in individual capacity
cases is absent in official capacity
cases, it is well established that the
qualified immunity doctrine does not
apply to official capacity claims.
Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999); Ruehman v.
Sheahan, 34 F.3d 525, 527 (7th Cir.
1994); Ying Jing Gan v. City of New York,
996 F.2d 522, 529 (2d Cir. 1993). Since
the Sheriff’s first ground of appeal does
not, therefore, even implicate a valid
branch of the qualified immunity
doctrine, and there is neither a final
judgment in the case nor another ground
supporting an interlocutory appeal, we
have no jurisdiction to consider it.

  Next, the Sheriff tries to claim that
under this court’s decisions in Upton v.
Thompson, 930 F.2d 1209 (7th Cir. 1991),
and Wallace v. Benware, 67 F.3d 655 (7th
Cir. 1995), it was not clearly
established in 1994 that patronage
dismissals of deputy sheriffs could as a
matter of law violate the deputies’ First
Amendment rights. The law of qualified
immunity requires a plaintiff to show (1)
that she has asserted a violation of a
constitutional right, and (2) that the
right in question was clearly established
at the time of the challenged action.
See, e.g., Erwin v. Daley, 92 F.3d 521,
525 (7th Cir. 1996). The Sheriff’s
argument focuses on the second of those
two factors.

  As counsel for the Sheriff conceded at
oral argument, however, the Sheriff did
not raise this point at all before the
district court. Sheriff Sheahan’s two
memoranda in that court raise other
arguments supporting immunity, but none
have anything to do with the so-called
policymaker exception he is now raising.
We note as well that it would be a
remarkable extension of the policymaker
line of cases to hold that the hundreds
of deputy sheriffs in Cook County are all
policymakers, for whom the Sheriff has a
legitimate interest in insisting on
personal and political loyalty. As Branti
v. Finkel, 445 U.S. 507, 518 (1980),
Flenner v. Sheahan, 107 F.3d 459, 463-64
(7th Cir. 1997), and even Upton itself,
930 F.2d at 1215-16, make clear, the
application of the policymaker exception
depends on the particular job functions
of the employees in question. Over what
would these deputy sheriffs, who were
serving as court security officers, be
making policy? How to operate the
security screening machines? Whom to
allow in the courtrooms? But we need not
tarry over those questions, because it is
so clear that the Sheriff waived this
argument that we reject it on that ground
alone.   Last, we consider the question
whether we have jurisdiction over the
Sheriff’s contentions that he had
qualified immunity for the claims dealing
with his attempted discharges and petty
harassment of the plaintiff deputies. The
district court found, and we agree, that
resolution of these questions depends
critically on disputed issues of fact.
The Sheriff argues that he tried to
dismiss the 30-deputy group for reasons
relating to the corruption probe and
their qualifications for certification;
the plaintiffs respond that no such thing
was happening, and that they were being
targeted for political reasons. If the
former is true (even though the Merit
Board eventually dismissed the
proceedings), then the Sheriff may
prevail; if the latter is true,
principles as old and well-established as
those articulated in Elrod v. Burns, 427
U.S. 347 (1976), indicate that the
Sheriff violated the plaintiffs’ First
Amendment rights. Nothing but fact-
finding will resolve this point, and the
same is true for the related harassment
claims. Johnson v. Jones, 515 U.S. 304
(1995), a case which, remarkably, counsel
for the Sheriff did not initially recall
when asked about it at oral argument,
spells the end of the Sheriff’s appeal on
this point. The issue before us is
qualified immunity; the appeal is
interlocutory; and its resolution depends
on disputed issues of fact. Johnson holds
that we have no jurisdiction over this
issue, and we therefore must dismiss this
part of appeal as well.

IV

  The lower court told the parties that in
its view, any "interlocutory appeal would
be frivolous." We are inclined to agree,
and so we hereby order that the Sheriff,
in both his official and individual
capacities, show cause as to why we
should not impose sanctions under Fed. R.
App. P. 38. Also, the plaintiffs should
submit a statement of the pertinent costs
and fees to this court within 14 days.

  The appeal is Dismissed in part for want
of jurisdiction; the decision below is
Affirmed insofar as it is construed as an
appeal from a denial of immunity on the
waived policymaker theory.
