                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-3092

L EE M ERCADO, et al.,
                                                 Plaintiffs-Appellees,
                                  v.

T HOMAS J. D ART, Sheriff of Cook County, Illinois,

                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 06 C 552—Matthew F. Kennelly, Judge.


       A RGUED A PRIL 5, 2010—D ECIDED A PRIL 28, 2010




 Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
  E ASTERBROOK, Chief Judge. A class of persons detailed
at the Cook County Jail contends in this suit under
42 U.S.C. §1983 that the Sheriff of Cook County (who
runs the Jail), and his staff, have subjected them to need-
lessly humiliating strip searches (including body-cavity
searches). Plaintiffs have other contentions as well, and
the district judge has certified subclasses to pursue dif-
2                                                No. 09-3092

ferent claims. The current appeal, by the Sheriff (other
defendants have not joined this appeal), concerns only
searches after February 2007 of detainees when they
first arrive at the Jail.
  The district judge concluded that, because the class’s
claims arise from the manner rather than the fact of these
searches, the holding of Bell v. Wolfish, 441 U.S. 520, 558–62
(1979), does not vindicate the Sheriff’s position. A jury
trial was held. At the close of the proofs, the Sheriff filed
a motion for judgment as a matter of law. Fed. R. Civ.
P. 50. He argued that Illinois requires jailers to conduct
strip searches and that, when complying with this rule, a
sheriff or other custodian is part of “the state” for the
purpose of the doctrine of state sovereign immunity
recognized in Hans v. Louisiana, 134 U.S. 1 (1890).
  The parties call this “eleventh amendment immunity,”
which is triply inaccurate—first because Hans did not
interpret the eleventh amendment, whose text is limited
to diversity suits; second because the eleventh amend-
ment limits the jurisdiction of federal courts rather than
establishing an immunity, see Calderon v. Ashmus, 523 U.S.
740, 745 n.2 (1998); Ruehman v. Sheahan, 34 F.3d 525, 527
(7th Cir. 1994); and third because a state (including a
state officer sued in an official capacity) is not a “person”
for the purpose of §1983. Will v. Michigan Department of
State Police, 491 U.S. 58 (1989). That statutory rule makes
it unnecessary and inappropriate to consider what
limits the eleventh amendment would create. Lapides v.
University System of Georgia, 535 U.S. 613, 617–18 (2002); see
also Arizonans for Official English v. Arizona, 520 U.S. 43,
No. 09-3092                                                 3

69 (1997). For reasons discussed below, however, it does
not matter whether “eleventh amendment immunity” is
a useful shorthand for the Sheriff’s position.
   The district judge observed that the theory behind the
Rule 50 motion was being raised for the first time even
though the suit had been pending for three years. The
judge deemed the contention forfeited and submitted
the case to the jury, which returned a verdict in favor of
the class on liability. Because the trial had been bifurcated,
the next stage was the presentation of evidence about
damages. But, before that phase could begin, the Sheriff
filed a notice of appeal, contending that the rejection of
his theory is immediately appealable under Puerto Rico
Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506
U.S. 139 (1993).
  Metcalf & Eddy applies to sovereign immunity the
approach to interlocutory appeals developed by Mitchell
v. Forsyth, 472 U.S. 511, 525–30 (1985), for situations in
which a public official asserts an absolute or qualified
immunity. We assume (without deciding) that the
Supreme Court would extend this understanding of the
collateral-order doctrine, see Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), to an appeal by a state
official who contends that the definition of the word
“person” in §1983 means that a suit is untenable—though
that extension of Mitchell would bring the doctrine
awfully close to authorizing interlocutory review of the
merits. (Sovereign immunity does not apply because §5
of the fourteenth amendment empowers Congress to
subject states to suits for violations of that amendment.
4                                               No. 09-3092

See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The class
contends that the Sheriff violated the fourteenth amend-
ment, directly and via its incorporation of the fourth
amendment. So Congress could authorize a suit such
as this against a state, though Quern v. Jordan, 440 U.S. 332
(1979), holds that §1983 does not do so.) Even on the
assumption that Mitchell applies to appeals of this kind,
however, the Sheriff’s appeal must be dismissed for
want of jurisdiction.
   Like any other application of the collateral-order doc-
trine, Mitchell depends on characterizing the decision
under review as “final,” because Mitchell interprets 28
U.S.C. §1291, a statute that makes finality essential to
appellate jurisdiction. Mitchell rests on the view that, as
a practical matter, an order declining to dismiss a com-
plaint, or denying a motion for summary judgment,
finally resolves the defendant’s assertion of a “right not
to be tried”—for an immunity (unlike a defense on the
merits) confers an entitlement to be free of the judicial
process as well as an entitlement to avoid an adverse
judgment. An order rejecting a claim of immunity is
final in the two senses that matter to Mitchell and its
successors: it represents the district court’s definitive
resolution, and it subjects the defendant to the judicial
process, with all of the costs that discovery and trial
produce. When a district court postpones resolution
until it has received additional submissions from the
litigants, it has not made a decision that is “final” in
Mitchell’s sense. See Khorrami v. Rolince, 539 F.3d 782,
786–87 (7th Cir. 2008). And when the defendant’s con-
tention does not invoke a “right not to be tried,” the
foundation for an interlocutory appeal is missing.
No. 09-3092                                                5

   To date, the Supreme Court has treated only two
kinds of orders as “final” for the purpose of an
immunity appeal: denial of a motion to dismiss the com-
plaint and denial of a motion for summary judgment. See
generally Behrens v. Pelletier, 516 U.S. 299, 305–11 (1996).
These two orders often are the outcome of focused en-
gagements after full briefing; each represents the end of
a discrete stage in the litigation, during which the legal
issue has crystallized and been resolved as a matter of
law. Oral denial of a mid-trial motion under Rule 50, by
contrast, is not final by that standard. It is possible to
see how an order denying a motion for summary judg-
ment can be called “final” for some purposes even
though the judge has allowed the suit to proceed; but a
mid-trial ruling is not “final” for any purpose. It is a step
on the way to a verdict. And a mid-trial motion under
Rule 50 does not assert a “right not to be tried” or even a
“right to be free of costly discovery”; it asserts a right to
win (that’s why it is called a “motion for judgment as a
matter of law”). Discovery and trial have occurred by
the time lawyers start making Rule 50 motions. A judge’s
oral statement allowing the trial to proceed may presage
a final decision (judgment on the verdict) but is not
itself a final decision.
  It is hard to imagine that the Justices have authorized
public officials to bring trials to a halt and disband the
jury while a pre-verdict appeal proceeds. As a practical
matter that would give every public official a right to a
mistrial in every §1983 suit that seemed to be going
the plaintiff’s way, because once a trial stops jurors are
likely to forget the evidence, to come across information
6                                                No. 09-3092

they are not supposed to read, to discuss the trial with
friends and relatives, or all three. Appellate delay would
compel the trial to start over with a new jury. Although a
district judge is entitled to certify that an appeal is frivo-
lous and proceed with the litigation, see Apostol v.
Gallion, 870 F.2d 1335 (7th Cir. 1989), the need for this
procedure (and for the court of appeals to consider
whether to stay the trial notwithstanding an Apostol
certification) would throw a monkey wrench into the
proceedings. And at a second trial the public official
could force still another mistrial, because Behrens
holds that there is no numerical limit on the number of
permissible interlocutory appeals in a single case. The
only requirement is that each order sought to be
appealed be “final” under Mitchell.
  Thus both formal reasons (a mid-trial order is not “final”
and does not concern a “right not to be tried”) and practi-
cal ones (the need to prevent defendants from thwarting
the completion of ongoing trials and disrupting the
orderly management of litigation) lead us to conclude
that a district judge’s oral statement denying a mid-trial
Rule 50 motion is not appealable as a “collateral order”
under §1291.
   Should bifurcated trials be treated differently? The
Sheriff did not file his appeal until the jury had returned
its verdict on liability. Perhaps one could say that the
Sheriff was asserting a “right not to be tried” on the
damages phase of the litigation. Attaching dispositive
significance to the fact that the district judge chose to
bifurcate the trial might turn what is supposed to be an
No. 09-3092                                                 7

economizing measure (the liability phase is easier to
manage if damages evidence is postponed) into an
occasion for a prolonged interruption. But just in case
the Justices should conclude that there is a difference
between a mid-trial Rule 50 decision in a unitary trial
and a mid-trial Rule 50 decision in a bifurcated trial,
we add that this appeal must be dismissed anyway,
because it is frivolous.
   The district judge thought the appeal frivolous because
the Sheriff forfeited this theory of immunity by raising
it for the first time at the end of trial. (Earlier he had
raised other theories related to sovereign immunity, but
this one was a novelty in the litigation.) The judge was
right to find a forfeiture, though this does not necessarily
render the appeal frivolous. Appellate courts sometimes
relieve the parties of forfeitures, especially when the
litigation is against a public official in a representa-
tive rather than a personal capacity. See, e.g., Day v.
McDonough, 547 U.S. 198 (2006); Granberry v. Greer, 481
U.S. 129 (1987); Ford Motor Co. v. Department of Treasury,
323 U.S. 459, 466–67 (1945); Indiana Protection and Advocacy
Services v. Indiana Family and Social Services Administration,
No. 08-3183 (7th Cir. Apr. 22, 2010) (en banc). But this
appeal is substantively frivolous. It is nothing but
a delaying tactic and deserves to be swiftly squelched.
Cf. Abney v. United States, 431 U.S. 651, 662 n.8 (1977).
  The Sheriff of Cook County, a local official, is not “the
state” for the purpose of either Illinois or federal law, and
therefore the Sheriff is a “person” as §1983 uses that
word. (City and county officials also are not “states” for
8                                               No. 09-3092

the purpose of the eleventh amendment and related
doctrines of sovereign immunity, see Northern Insurance
Co. v. Chatham County, 547 U.S. 189, 193–94 (2006); Lincoln
County v. Luning, 133 U.S. 529, 530 (1890)—though, as we
have said already, only the definition of “person” matters
to this suit.) The Sheriff’s contrary argument proceeds
in two steps: first, he contends that Illinois law requires
all sheriffs to conduct strip searches of all inmates
arriving at county jails; second, he maintains that any
local official whose conduct is dictated by state law is
“the state” to the extent of that obligation. It follows, the
Sheriff concludes, that he is not a “person” under Will
(or, in his own language, that he has “eleventh amend-
ment immunity”). Neither premise of this syllogism
is sound.
 1. The state law on which the Sheriff relies is 20 Ill.
Admin. Code §701.40(f), a regulation that specifies proce-
dures for admissions to county jails. It provides:
    1) A strip search shall be performed in an area that
    ensures privacy and dignity of the individual. The
    individual shall not be exposed to the view of
    others who are not specifically involved in the
    process.
    2) Strip searches shall be conducted by a person
    of the same sex.
    3) All personal clothing shall be carefully searched
    for contraband.
    4) The probing of body cavities may not be done
    except where there is reasonable suspicion of
No. 09-3092                                              9

   contraband. Intrusive searches may only be con-
   ducted:
       A) By a medically trained person who is not a
       detainee, for example, a physician, physician’s
       assistant, registered nurse, licensed practical
       nurse, or paramedic; and
       B) In a private location under sanitary condi-
       tions.
The Sheriff reads this regulation as if it said “[a] strip
search shall be performed” and the sentence stopped
there. Plaintiffs, by contrast, read the language as a re-
quirement that strip searches, if performed, “shall be
performed in an area that ensures privacy and dignity”
(and so on). In other words, the Sheriff treats the “shall”
in this construction as compelling a strip search, while
the plaintiffs treat it as compelling the preservation
of dignity.
  Either reading is possible, because “shall” is a notori-
ously slippery word. See, e.g., Gutierrez de Martinez v.
Lamagno, 515 U.S. 417, 432–33 & n.9 (1995). One reason
to think that the Sheriff’s reading is sensible is subsec-
tion (b), which says: “Detainees shall be given an im-
mediate frisk search.” This uses “shall” in the same
way that the Sheriff thinks that the word works in sub-
section (f). But if subsection (f) directs the Sheriff to
conduct a strip search of every newly admitted detainee,
it also directs the Sheriff to conduct each search in
a dignified manner, and to refrain from conducting a
body-cavity search “except where there is reasonable
suspicion of contraband”.
10                                              No. 09-3092

  Plaintiffs have not contended in this suit that the Jail’s
practice of conducting strip searches of detainees first
entering the jail violates either the federal Constitution
or Illinois law. Rather the plaintiffs contend, and the jury
found, that the manner of the search is unreasonable
and thus violates the fourth amendment as well as
§701.40(f). No matter how favorably to the Sheriff sub-
section (f) is read, it does not compel him or his staff to
perform any of the acts—such as having large numbers
of detainees drop their pants simultaneously to raucous
hooting and taunts from guards of both sexes—that
have led to this litigation and the jury’s verdict. And
because no plausible understanding of subsection (f)
treats it as authorizing, let alone commanding, the chal-
lenged practices, the major premise of the Sheriff’s ar-
gument has not been established. (We assume for this
purpose that the evidence supports the class’s view of
matters; an interlocutory appeal under Mitchell does not
authorize a court of appeals to resolve factual disputes.
See Johnson v. Jones, 515 U.S. 304 (1995).)
  2. The minor premise also is wrong. The proposition
that anyone who obeys state law must be “the state” is not
supported by any rule or decision of which we are
aware. We asked the Sheriff’s lawyer at oral argument if
a business that puts soot scrubbers on its smokestack, in
compliance with regulations under the Clean Air Act of
1970, would be “the federal government” for purposes
of citizen suits under that statute (which therefore
would have to be dismissed as barred by sovereign im-
munity). Counsel answered yes but could not supply
authority for the proposition, which if true would make
No. 09-3092                                              11

many state and federal laws unenforceable by entitling
private defendants to the benefit of sovereign immunity.
The National Labor Relations Act requires employers to
recognize and bargain with unions that are supported
by a majority of its workers; does this turn all collective
bargaining into an activity by the federal government?
The Fair Labor Standards Act sets minimum wages; do
employers act as “the United States” when they pay (or
fail to pay) the legally required wages?
   The Sheriff may be confused by the fact that some
public officials in Illinois serve in dual capacities. Each
county has a State’s Attorney. That official is “the state”
when representing the state (all criminal prosecutions
are brought in the state’s name) and “the county” when
representing the county (which he serves as its lawyer
in civil suits). See National Casualty Co. v. McFatridge,
No. 09-1497 (7th Cir. Apr. 28, 2010), slip op. 12–14 (dis-
cussing this dual-capacity status). But it does not
follow from the fact that one person may be an official
of two different public entities that every person who
is subject to state or federal law is “the sovereign” whose
law he obeys. A sheriff in Illinois may perform some
tasks on behalf of the state—so we assumed in Scott v.
O’Grady, 975 F.2d 366 (7th Cir. 1992)—but when running
the county jail he is a county official. DeGenova v. Sheriff
of DuPage County, 209 F.3d 973, 976–77 (7th Cir. 2000);
see also Ill. Const. Art. VII §4(c); People ex rel. Davis v.
Nellis, 249 Ill. 12, 21, 94 N.E. 165, 169 (1911).
  That some rules for the conduct of county officials (and
private citizens) are set by a state does not make that
12                                              No. 09-3092

person “the state” for the purpose of §1983, the eleventh
amendment, or doctrines of sovereign immunity. Status
of an entity as “the state” depends on the organization
chart and not on whose law supplies the substantive
rule or who pays the judgments. See Regents of University
of California v. Doe, 519 U.S. 425 (1997).
  Sometimes a person who follows another sovereign’s
commands is entitled to offsetting benefits. For example,
a person acting on the directions of a federal agency
may be treated as a “person acting under” that agency,
which entitles the person to remove any litigation to
federal court. See 28 U.S.C. §1442(a)(1); Watson v. Philip
Morris Cos., 551 U.S. 142, 151–52 (2007). A vendor that sells
products made strictly according to a federal buyer’s
specifications is not liable to private persons in tort for
defects in those products. See Boyle v. United Technologies
Corp., 487 U.S. 500 (1988). And a private firm that
complies with a state law that replaces competition with
regulation does not violate the antitrust laws, even when
an identical private agreement would be deemed
unlawful per se. See, e.g., Parker v. Brown, 317 U.S. 341
(1943). But rules such as these are a far cry from a norm
that anyone whose behavior is controlled by state or
federal law must be treated as part of the government, and
suits against it dismissed by operation of sovereign
immunity or the limited scope of the word “person” in
§1983.
  The Sheriff is responsible for his own policies—and as
a state actor (but not himself “the state”) for any uncon-
stitutional policies that Illinois has directed him to im-
No. 09-3092                                                13

plement. This interlocutory appeal is dismissed because
it is not from a “final decision” and because it is frivolous.
Any remaining arguments are open to review on appeal
from the final decision.




                            4-28-10
