In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3742
RONALD OLSON and CINDY OLSON,
Plaintiffs‐Appellants,
v.
CHAMPAIGN COUNTY, ILLINOIS, et al.
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 11‐2147 — Harold A. Baker, Judge.
____________________
ARGUED OCTOBER 31, 2014 — DECIDED APRIL 30, 2015
____________________
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiffs Ronald and Cindy Ol‐
son appeal the district court’s dismissal of their civil suit chal‐
lenging the arrest of Mr. Olson by local officials in Illinois.
The Olsons allege that two police detectives and a prosecutor
violated Mr. Olson’s Fourth Amendment rights by causing his
arrest without probable cause. The district court dismissed
2 No. 12‐3742
the suit for failure to state a claim, finding that the prosecutor
was entitled to absolute prosecutorial immunity and the de‐
tectives were entitled to qualified immunity because they had
a warrant for Olson’s arrest. The district court then declined
supplemental jurisdiction over state law claims arising out of
the same events.
We reverse the dismissal of the federal claims and remand
for the district court to consider both the federal and state law
claims. The prosecutor is not entitled to absolute immunity
because the plaintiffs allege he swore to the truth of facts to
obtain the arrest warrant for Olson. In swearing to facts, he
was acting as a witness, not as an advocate of the state, and so
is not protected by absolute prosecutorial immunity. See Kali‐
na v. Fletcher, 522 U.S. 118, 129–30 (1997). Neither the detec‐
tives nor the prosecutor are entitled to dismissal on qualified
immunity. The allegations of the complaint permit the rea‐
sonable inference that the two detectives, the prosecutor, or
all three gave false information to the state judge who issued
the warrant for Olson’s arrest. The plaintiffs allege that the
detectives exhaustively investigated the theft of a trailer and
lawn mowers but found no evidence or witnesses that linked
Olson to the crime. The fact that Olson was arrested anyway
on a warrant based on information from the defendants plau‐
sibly suggests that the defendants gave false information, and
they are not entitled to qualified immunity if they lied to ob‐
tain the arrest warrant.
I. Factual and Procedural History
We recount the facts as alleged in the second amended
complaint because we must accept the plaintiffs’ allegations
as true when reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6). Parish v. City of Elkhart, 614 F.3d 677,
No. 12‐3742 3
679 (7th Cir. 2010); Parish v. City of Chicago, 594 F.3d 551, 552
(7th Cir. 2009).
A. Investigation and Olson’s Arrest
This suit stems from an exhaustive police investigation in‐
to the burglary of Marie Buhr’s property in Royal, Illinois, a
town located in Champaign County. On October 6, 2008, Ma‐
rie Buhr and her grandson, Christopher Buhr, reported to the
Champaign County Sheriff that a red trailer and lawn mow‐
ers were stolen from the Buhr property.
Also in October 2008, plaintiffs Ronald and Cindy Olson
noticed that their neighbor, Vilven Tire Company, had placed
an eight‐foot‐long trailer on the Olsons’ property just outside
Royal. Mr. Olson concluded that the trailer was abandoned.
The trailer was deteriorated and had no lights or license
plate. Olson planned to fix up the abandoned trailer to give to
his daughter and son‐in‐law, Brandy and Brent Vinson. He
painted the trailer and placed brackets and anchor boards on
it. He left the trailer on his property where it could be seen
from the road. Three days after he completed these repairs,
the trailer disappeared. The Olsons did not file a police report
because they did not care if someone took it.
On October 23, 2008, a detective working for the Cham‐
paign County Sheriff, defendant David Sherrick, discovered a
black trailer with a flat tire abandoned in a ditch on a country
road near Ogden, Illinois. Sherrick took fingerprint samples
from the trailer. In a police report, Sherrick wrote that he ob‐
served tire marks that looked as if a riding lawn mower had
been transported on the trailer. He also saw bean stalks on
the trailer. Sherrick concluded the trailer had been driven
4 No. 12‐3742
through a field to transport the lawn mowers that were re‐
ported stolen from the Buhr property.
Another investigator in the Sheriff’s office ran the finger‐
prints from the trailer through a database but found no
match, which was documented in a December 4, 2008 report.
Sherrick nevertheless suspected that Ronald Olson had stolen
the trailer and lawn mowers, so on June 3, 2009 he applied for
and received search warrants that authorized the collection of
DNA samples and fingerprints from Ronald Olson, as well as
a search of the Olsons’ property. Sherrick searched the prop‐
erty with defendant Stuart Shaw, another detective working
for the Champaign County Sherriff.
The searches allegedly yielded nothing to confirm Sher‐
rick’s suspicions. A June 9, 2009 laboratory report by the Illi‐
nois State Police found no match between Ronald Olson’s
DNA or fingerprints and the samples collected from the trail‐
er or any other Buhr building. Even after the searches, there
was a “lack of any forensic evidence [or a] statement of any
witness connecting Ron Olson in [any way] to the Buhrs, their
trailer, their property or any other matter that would lead a
reasonable police officer to believe there was probable cause
to believe Ron Olson had committed a crime.”
Despite the lack of any evidence implicating Olson, Detec‐
tives Sherrick and Shaw allegedly told an assistant state’s at‐
torney, defendant Steven Ziegler, that Ronald Olson should
be arrested and charged for stealing the trailer and lawn
mowers. The Olsons allege that “Officers Sherrick and Shaw
provided false statements of probable cause for charges and
the arrest of Ron Olson to Assistant State’s Attorney Steven
Ziegler [that] resulted in his filing the information which re‐
quired the arrest of Ron Olson.”
No. 12‐3742 5
On June 11, 2009, Ziegler filed an information in state
court charging Ronald Olson with felony burglary of the
Buhr property. Ziegler had no personal knowledge of the in‐
vestigation into the burglary. He swore that the facts set forth
in the information were true, relying on statements made by
Sherrick and Shaw. The complaint alleges that those state‐
ments were false. The information sets forth the charges
against Mr. Olson and also contains a section where a person
signs to swear to the truth of the facts in the information:
The State’s Attorney of said County charges:
That on or about OCTOBER 6, 2008, in Cham‐
paign County, RONALD L. OLSON committed
the offense of BURGLARY CLASS 2 FELONY in
that the said defendant, or one for whose con‐
duct he is legally responsible, without authority,
knowingly entered a building of Marie Buhr, lo‐
cated at [address], Royal, Illinois, with the in‐
tent to commit therein a theft, in violation of 720
Illinois Compiled Statutes 5/19‐1(a). s/ Julia R.
Rietz, State’s Attorney
The undersigned, being duly sworn, states up‐
on information and belief that the facts set forth
in the foregoing information are true. s/ Illegi‐
ble, Asst. State’s Attorney, SWORN TO before
me June 11, 2009, s/ Linda S. Frank, Circuit
Clerk
6 No. 12‐3742
The signature of the prosecutor swearing to the truth of the
facts in the information, which is marked “Illegible” in the
certified copy in the record in this case, belongs to Ziegler.1
Also on June 11, 2009, a state judge issued a warrant for
the arrest of Olson. That warrant is reproduced in its entirety
here, omitting only certain identifying personal information:
IN THE CIRCUIT COURT OF CHAMPAIGN
COUNTY, ILLINOIS
THE CIRCUIT COURT OF THE SIXTH
JUDICIAL CIRCUIT IN CHAMPAIGN
COUNTY, STATE OF ILLINOIS TO: ANY
PEACE OFFICER OF THE STATE OF ILLINOIS
WHEREAS, a verified information by Cham‐
paign County State’s Attorney has been made
before me that DEFENDANT: Ronald L. Olson
…
At and within the County of Champaign in the
State aforesaid, on or about October 06, 2008,
did commit the offense of Burglary ‐ a class 2
felony in violation of 720 Illinois Compiled
Statutes 5/19‐1(a).
YOU ARE COMMANDED, by order of said
Court to arrest the said Ronald L. Olson and
1 As a general rule, we may take judicial notice of public records not
attached to the complaint in ruling on a motion to dismiss under Rule
12(b)(6). E.g., Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir.
2012); see also Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986). The defend‐
ants filed the information and arrest warrant in the district court as exhib‐
its supporting their motion to dismiss. Both documents are certified cop‐
ies of public state court records.
No. 12‐3742 7
bring him/her forthwith before me, or in case of
my absence or inability to act, before the nearest
Associate Circuit Judge or Magistrate within the
said County, to answer said complaint and be
dealt with according to law.
Bail for the foregoing offense(s) hereby fixed at
$50,000.00.
Issued this 11th day of June, A.D. 2009, in the
County of Champaign, State of Illinois.
s/ Richard P. Klaus, Judge of said Circuit
Court/Associate Circuit Judge
Olson was arrested on June 11, 2009. The complaint alleges
Sherrick and Shaw are liable for “obtaining the arrest” of
Ronald Olson. Fifteen months later, on September 21, 2010,
the circuit court dismissed the charge against Olson on mo‐
tion of the prosecutor.
B. Procedural History of the Federal Civil Case
The Olsons filed suit on June 6, 2011. They sued Detec‐
tives Sherrick and Shaw in their individual capacities; Dan
Walsh, Sheriff of Champaign County, in his individual and
official capacities; Assistant State’s Attorney Steven Ziegler in
his individual capacity; and Champaign County itself.
The Olsons alleged that the arrest of Ronald Olson violat‐
ed his Fourth Amendment right to be free from unreasonable
seizure. This federal claim against local officials was brought
under 42 U.S.C. § 1983 and was asserted against Sherrick and
Shaw for providing false information that led to the arrest
and Ziegler for attesting to the truth of the facts alleged in the
information. Plaintiffs also asserted state law claims for mali‐
8 No. 12‐3742
cious prosecution and false arrest against Sherrick, Shaw, and
Ziegler for their roles in the arrest, as well as against Sheriff
Walsh based on respondeat superior liability for the actions of
Sherrick and Shaw. Champaign County was joined as a nec‐
essary party because it is obliged by law to pay judgments
against employees acting within the scope of their employ‐
ment. See 745 Ill. Comp. Stat. 10/9‐102. The Olsons sought
damages for Mr. Olson’s brief detention, the bond restrictions
requiring him to stay in Illinois, and Cindy Olson’s inconven‐
ience in being unable to travel outside Illinois with her hus‐
band.2
The district court dismissed the Olsons’ first amended
complaint for failure to state a claim but granted plaintiffs
leave to file another. The district court then dismissed the
second amended complaint as well and entered final judg‐
ment for the defendants.
The district court dismissed all claims for five different
reasons. First, the court concluded that Sherrick and Shaw
were entitled to qualified immunity because they arrested Ol‐
son pursuant to a warrant issued by a state judge. Second, the
court concluded that prosecutor Ziegler was entitled to abso‐
lute immunity because he was acting in his capacity as an ad‐
2When the Olsons first filed suit, they joined their claims based on
the arrest of Ronald Olson with the claims of his daughter and son‐in‐law,
Brandy and Brent Vinson. The Vinsons sued various local officials and
local governments for the allegedly unlawful search of their property in
Vermilion County, which adjoins Champaign County. That search took
place on June 4, 2009, after the search of the Olson property. On February
27, 2012, the district court severed the claims of the Vinsons and Olsons
into two separate lawsuits. For our disposition of the Vinsons’ claims, see
Vinson v. Vermilion County, 776 F.3d 924 (7th Cir. 2015).
No. 12‐3742 9
vocate for the state when he signed and filed the charging in‐
formation. Third, the court found the complaint failed to state
a federal claim against Sheriff Walsh because a supervisor is
not liable under § 1983 for a subordinate’s violation of a per‐
son’s constitutional rights. E.g., Chavez v. Illinois State Police,
251 F.3d 612, 651 (7th Cir. 2001). Fourth, the plaintiffs failed to
state a viable Monell claim against Champaign County be‐
cause they did not point to a municipal policy or practice (or
person with policymaking authority) that caused the consti‐
tutional injury. See Monell v. New York City Dep’t of Social Ser‐
vices, 436 U.S. 658 (1978) (explaining when a local govern‐
ment may be liable under § 1983). Finally, after finding no
valid federal claims, the court declined to accept supple‐
mental jurisdiction over the state law false arrest and mali‐
cious prosecution claims. The court entered final judgment in
favor of the defendants. This appeal followed.
II. Analysis
We review de novo the district court’s dismissal for failure
to state a claim under Fed. R. Civ. P. 12(b)(6). E.g., Parish v.
City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010). We reverse the
dismissal. The complaint plausibly alleges that the defend‐
ants unlawfully caused the arrest of Ronald Olson. At this
stage of the proceedings, Sherrick and Shaw are not entitled
to qualified immunity, and Ziegler is not entitled to absolute
immunity or qualified immunity.
A. Legal Standard
To survive a motion to dismiss, the plaintiffs’ complaint
need contain only “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). While specific facts are not necessary, Erickson v. Par‐
10 No. 12‐3742
dus, 551 U.S. 89, 93 (2007) (per curiam), the complaint must
“‘give the defendant fair notice of what the … claim is and
the grounds upon which it rests.’” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (omission in original), quot‐
ing Conley v. Gibson, 355 U.S. 41, 47 (1957).
We must determine if the allegations in the complaint
state a plausible claim for relief. Twombly, 550 U.S. at 570;
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations
must be enough to raise a right to relief above the speculative
level … .” Twombly, 550 U.S. at 555; see also Brooks v. Ross, 578
F.3d 574, 581 (7th Cir. 2009) (plausibility requirement “‘simp‐
ly calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence’ supporting the plaintiff’s alle‐
gations”), quoting Twombly, 550 U.S. at 556.
These factual allegations must be more than “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Iqbal, 556 U.S. at 678. We “are
not bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (internal quota‐
tion marks omitted), quoting Papasan v. Allain, 478 U.S. 265,
286 (1986). This is a fine line, though, and it is appropriate to
give plaintiffs a chance to amend a complaint to provide
more factual detail, as the district court did here after its first
dismissal. See, e.g., Bausch v. Stryker Corp., 630 F.3d 546, 562
(7th Cir. 2010) (“Generally, if a district court dismisses for
failure to state a claim, the court should give the party one
opportunity to try to cure the problem, even if the court is
skeptical about the prospects for success.”), citing Foster v.
DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).
“The plausibility standard is not akin to a ‘probability re‐
quirement,’ but it asks for more than a sheer possibility that a
No. 12‐3742 11
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, quot‐
ing Twombly, 550 U.S. at 556. A claim should survive a Rule
12(b)(6) motion to dismiss if the complaint contains well‐pled
facts—that is, not just legal conclusions—that permit the
court to infer more than the mere possibility of misconduct.
Iqbal, 556 U.S. at 679. In deciding or reviewing a Rule 12(b)(6)
motion, we do not ask did these things happen; instead, “the
proper question to ask is still ‘could these things have hap‐
pened.” Carlson v. CSX Transportation, Inc., 758 F.3d 819, 827
(7th Cir. 2014), quoting Swanson v. Citibank, N.A., 614 F.3d 400,
404–05 (7th Cir. 2010).
B. Claim Against Detectives Sherrick and Shaw
The plaintiffs claim that detectives Sherrick and Shaw are
liable for arresting Ron Olson without probable cause in vio‐
lation of the Fourth Amendment. The district court dismissed
this claim after concluding the officers could not be liable be‐
cause they had a warrant for the arrest and so were entitled to
qualified immunity.
We evaluate claims for qualified immunity by the stand‐
ard of objective reasonableness. Malley v. Briggs, 475 U.S. 335,
344 (1986); see also Harlow v. Fitzgerald, 457 U.S. 800, 818–19
(1982) (holding that officials who act objectively reasonably,
by reference to clearly established law, are entitled to quali‐
fied immunity). This is the same standard that applies in de‐
ciding whether to suppress evidence in a criminal trial ob‐
tained through an invalid warrant, and precedents regarding
suppression rulings therefore provide guidance to the quali‐
fied immunity inquiry for civil § 1983 suits. Malley, 475 U.S. at
344, citing United States v. Leon, 468 U.S. 897 (1984).
12 No. 12‐3742
Officers do not act reasonably if they intentionally or reck‐
lessly provide false information to obtain a warrant. Leon, 468
U.S. at 926; see also United States v. Garcia, 528 F.3d 481, 487
(7th Cir. 2008) (holding that a criminal defendant can rebut
the presumption that an officer is acting in good faith by ap‐
plying for a warrant if “the officer was dishonest or reckless
in preparing the affidavit”). A police officer is not entitled to
qualified immunity for submitting “an affidavit that con‐
tained statements he knew to be false or would have known
were false had he not recklessly disregarded the truth and no
accurate information sufficient to constitute probable cause
attended the false statements.” Lawson v. Veruchi, 637 F.3d 699,
704 (7th Cir. 2011) (internal quotation marks omitted), quot‐
ing Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985). This stand‐
ard applies to officers “who provided information material to
the probable‐cause determination.” Leon, 468 U.S. at 923 n.24.
The plantiffs’ allegations allow a reasonable inference that
Sherrick and Shaw provided false information to obtain the
warrant and so are not entitled to qualified immunity. The
plaintiffs allege that Sherrick and Shaw lied to Ziegler about
having probable cause to arrest Mr. Olson. The complaint
states that “Officers Sherrick and Shaw provided false state‐
ments of probable cause for charges and the arrest of Ron Ol‐
son to Assistant State’s Attorney Steven Ziegler [that] resulted
in his filing the information which required the arrest of Ron
Olson.”
The defendants respond that this is a bare legal conclusion
and fails to give them notice of the claim against them in light
of the pleading requirements set out in Twombly and Iqbal.
They suggest that the plaintiffs were required to specify what
statements were false and led to Olson’s arrest. But the Olsons
No. 12‐3742 13
alleged all of the facts they could reasonably be expected to
know and have provided much more detail than the bare le‐
gal conclusion that Sherrick and Shaw “provided false state‐
ments of probable cause.”
Plaintiffs’ “pleading burden should be commensurate
with the amount of information available to them.” Bausch,
630 F.3d at 561 (citation and internal quotation marks omit‐
ted). It is unreasonable to require plaintiffs to plead the spe‐
cific statements with more particularity when they have no
knowledge of the specific falsehoods and can learn of them
only through discovery. The Olsons do not know what false
information was the purported basis for the arrest warrant
because the warrant itself is so conclusory. It refers only to an
information with the conclusory allegation that Ronald Olson
committed burglary. The well‐pled facts in the complaint
make it reasonable to expect that discovery will reveal evi‐
dence about the precise statement that the Olsons contest is
false and that is all that is required at this stage. See Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (complaint is plausible if
it contains facts that “raise a reasonable expectation that dis‐
covery will reveal evidence” supporting the allegations),
quoting Twombly, 550 U.S. at 556.
The complaint recounts in detail the investigation leading
up to Mr. Olson’s arrest and the absence of evidence implicat‐
ing him in any theft of the lawn mowers and trailer. Viewed
as a whole, the complaint supports a plausible inference that
Sherrick and Shaw lied about the factual basis for the proba‐
ble cause to arrest Olson. See Twombly, 550 U.S. at 555–56.
The Olsons allege that every step of Sherrick and Shaw’s
extensive investigation failed to yield any evidence that Mr.
Olson was involved in the theft of the trailer and lawn mow‐
14 No. 12‐3742
ers. The officers found an abandoned trailer that they be‐
lieved was the trailer stolen from the Buhrs. They took fin‐
gerprint samples from that trailer, had the samples analyzed,
and found no match in their database. The officers then ob‐
tained a search warrant for the Olson residence as well as for
Mr. Olson’s DNA and fingerprints. They executed both
searches but allegedly found nothing linking Olson to the sto‐
len trailer. Olson’s DNA and fingerprints did not match sam‐
ples collected from the abandoned trailer or samples from the
Buhr property. And the search of the Olson residence also
turned up nothing implicating Mr. Olson in the theft or even
linking him to the Buhr property, the scene of the crime. The
Olsons also allege that the police did not have any statements
from witnesses that implicated Ron Olson.
In short, the Olsons allege in detail that Sherrick and
Shaw’s unusually elaborate investigation of the theft of a
trailer revealed no evidence that Mr. Olson had anything to
do with it. These well‐pled facts permit the reasonable infer‐
ence that Sherrick and Shaw knew no facts that would sup‐
port probable cause to arrest Olson. And yet they allegedly
gave statements to Ziegler that provided the factual basis for
his arrest. We can draw the reasonable inference from these
allegations that whatever Sherrick and Shaw said to Ziegler,
it included false information that led to the unlawful arrest of
Ronald Olson.
The defendants rely heavily on Burton v. City of Franklin,
No. 1:11‐cv‐00267‐JMS‐TAB, 2011 WL 2938029 (S.D. Ind. July
18, 2011), to argue that plaintiffs’ complaint is deficient, and
we find it useful to compare the Olsons’ complaint to the
complaint in that case. In Burton, the district court dismissed
the plaintiffs’ complaint because the allegation that a search
No. 12‐3742 15
warrant was “[b]ased upon false information” provided by
police officers was conclusory and not supported by well‐
pled facts that would give the defendants notice of the claim.
Id. at *4–5. The problem with the Burton complaint was that
all the facts alleged showed that the police actually did have
probable cause. Before requesting the search warrant, two po‐
lice officers had monitored an informant who made con‐
trolled drug buys at Burton’s house. Id. at *2. Based on that
allegation, the district court concluded that the search war‐
rant for the house had been supported by probable cause. The
only possible “false information” provided by the police was
an overstatement of the quantity of drugs bought by the in‐
formant. Id. at *5. But even that inference—itself “a strained
reading of the Complaint”—was not sufficient to state a claim
for a wrongful search because the facts in the complaint es‐
tablish that the police had probable cause to seek the search
warrant even if the quantity of drugs was exaggerated. Id.
None of the alleged facts could support a reasonable infer‐
ence that the defendants had violated any law, so the court
had no choice but to dismiss the complaint for failure to state
a claim. Id.
In contrast to the Burton complaint, the complaint here al‐
leges facts that Sherrick and Shaw investigated Ronald Olson
but turned up no evidence linking him to the crime. Yet the
officers nevertheless told prosecutor Ziegler that they had
probable cause to believe Olson had stolen the trailer and
lawn mowers, and Olson was arrested for burglary. These
facts permit the reasonable inference that defendants inten‐
tionally or recklessly caused his arrest without probable
cause. Viewing the complaint as a whole, the Olsons have
provided much more than the “mere allegation that a search
warrant [was] based on ‘false information.’” Burton, 2011 WL
16 No. 12‐3742
2938029, at *4. The factual allegations in the Olson complaint
state a plausible claim against detectives Sherrick and Shaw
for false arrest.
C. Claim Against Prosecutor Ziegler
The plaintiffs also alleged that prosecutor Ziegler is liable
for Olson’s false arrest because he verified that the allegations
in the charging information were true and therefore was act‐
ing as a witness. Ziegler protests that he is entitled to abso‐
lute immunity because he was acting as prosecutor in signing
and filing the information to initiate the prosecution of Olson
for burglary. Both sides agree that courts conduct a functional
analysis to determine if a prosecutor has absolute immunity
because he is entitled to absolute immunity only for conduct
that relates to his role as an advocate for the state. See Buckley
v. Fitzsimmons, 509 U.S. 259, 269 (1993); Burns v. Reed, 500 U.S.
478, 486 (1991). A prosecutor’s immunity turns on “the nature
of the function performed, not the identity of the actor who
performed it.” Forrester v. White, 484 U.S. 219, 229 (1988).
The question of how to categorize Ziegler’s conduct is
controlled by Kalina v. Fletcher, 522 U.S. 118, 120 (1997), where
the Court examined whether a prosecutor was entitled to ab‐
solute prosecutorial immunity for “making false statements
of fact in an affidavit supporting an application for an arrest
warrant.” Prosecutor Kalina had initiated a criminal proceed‐
ing against Fletcher by filing three documents in state court.
Two were unsworn pleadings: an information charging
Fletcher with burglary and a motion for a warrant for his ar‐
rest. The third document was an affidavit that summarized
the evidence supporting the charge—a “Certification for De‐
termination of Probable Cause” required by state law to sup‐
port the arrest warrant. The prosecutor “personally vouched
No. 12‐3742 17
for the truth of the facts set forth in the certification under
penalty of perjury.” Id. at 120–21. Fletcher alleged that the
prosecutor’s affidavit contained inaccurate statements, which
caused him to be arrested and jailed in violation of the Fourth
Amendment.
The Court ruled that the prosecutor was entitled to abso‐
lute immunity for filing the information and motion for the
arrest warrant but could be sued for personally swearing to
the truth of the facts in the supporting affidavit. Id. at 129–31.
In executing the certification under penalty of perjury, she
acted as a complaining witness and not as a lawyer:
Testifying about facts is the function of the wit‐
ness, not of the lawyer. No matter how brief or
succinct it may be, the evidentiary component
of an application for an arrest warrant is a dis‐
tinct and essential predicate for a finding of
probable cause. Even when the person who
makes the constitutionally required “Oath or af‐
firmation” is a lawyer, the only function that
she performs in giving sworn testimony is that
of a witness.
Id. The prosecutor in Kalina was performing essentially the
same function as police officers who obtain a warrant by
swearing to false information, and police officers can be sued
for such actions under Malley v. Briggs, 475 U.S. 335 (1986).
See Kalina, 522 U.S. at 122.
Employing the functional approach and applying the
teachings of Kalina here, we conclude that Ziegler is not enti‐
tled to absolute immunity. He performed the same function
as a police officer witness when he swore to facts. A police
18 No. 12‐3742
officer witness would not be entitled to absolute immunity
for swearing to false information, so neither is Ziegler. His
signature is below the following statement: “The under‐
signed, being duly sworn, states upon information and belief
that the facts set forth in the foregoing information are true.”
It is irrelevant that his affidavit was not on a separate piece of
paper. In signing that he stated “upon information and belief
that the facts set forth” were true, Ziegler converted that part
of the information into his own affidavit.
Ziegler resists this conclusion and tries to distinguish Ka‐
lina by arguing that he did not attest to the truth of the allega‐
tions in the information because he was empowered by state
law to verify the information. Illinois law provides that “an
information shall be signed by the State’s Attorney and sworn
to by him or another.” 725 Ill. Comp. Stat. 5/111‐3(b). This
statute thus distinguishes between the signing of the infor‐
mation as a charging document, which “shall” be done by the
State’s Attorney, and swearing to the facts, which may be
done “by him or another.”
All this shows is that Illinois law tracks the distinction be‐
tween the roles of initiating a prosecution and swearing to
facts—two roles that the Supreme Court took great care to
keep separate in Kalina. An Illinois prosecutor who complies
with state law that “an information shall be signed by the
State’s Attorney” is using her professional judgment. See Ka‐
lina, 522 U.S. at 129–30 (recognizing a prosecutor is acting as
an advocate in preparing and filing an information, drafting a
witness’s affidavit, and deciding that the evidence is strong
enough to find probable cause); see also Thomas v. City of Peo‐
ria, 580 F.3d 633, 638–39 (7th Cir. 2009) (recognizing absolute
immunity for a prosecutor who filed for an arrest warrant). A
No. 12‐3742 19
prosecutor who signs and files an information, but does not
swear to any of the facts contained in it, is protected by abso‐
lute immunity because she is acting as an advocate of the
State.
But, as Kalina explains, a prosecutor does not act as an ad‐
vocate when testifying to facts because her professional
“judgment could not affect the truth or falsity of the factual
statements themselves.” Kalina, 522 U.S. at 130. Accordingly,
when a prosecutor goes beyond signing the information to
initiate the suit by swearing to the facts it contains, the attor‐
ney is no longer absolutely immune from suit.
Ziegler briefly mentions that he seeks qualified immunity
in the alternative. We reject his argument for the same rea‐
sons discussed above regarding Sherrick and Shaw. The facts
alleged permit the reasonable inference that Ziegler swore to
false information to obtain the warrant that led to Olson’s ar‐
rest. It is unclear at this stage if the false information was
provided by Sherrick and Shaw, by Ziegler, or even by all
three defendants. That ambiguity does not defeat the Olsons’
plausible claims for relief against the three defendants. The
Olsons’ allegations are sufficient for the claims to proceed to
discovery, which is likely to shed light on what allegedly false
information was provided, and by whom. See Brooks, 578 F.3d
at 581 (holding that a claim is plausible if the facts alleged
raise a reasonable expectation that discovery will yield evi‐
dence supporting the allegations).
D. Claims Against Sheriff Walsh and Champaign County
The district court also dismissed the claims against Sheriff
Walsh and Champaign County. The court dismissed Walsh
because a supervisor is not liable under § 1983 for a subordi‐
20 No. 12‐3742
nate’s violation of a person’s constitutional rights. Champaign
County was dismissed because the plaintiffs failed to state a
Monell claim. But we believe the district court misunderstood
the Olsons’ claims. The Olsons did not sue Walsh or Cham‐
paign County for federal false arrest under § 1983.
The Olsons sued Sheriff Walsh under a theory of re‐
spondeat superior as a supervisor liable for a subordinate’s
state law torts, in this case false arrest and malicious prosecu‐
tion. After concluding that the Olsons’ complaint failed to
state a federal claim, the district court declined to exercise
supplemental jurisdiction under 28 U.S.C. § 1367(c) over the
state law false arrest and malicious prosecution claims. We
reverse the dismissal of the federal claims, so the state law
claims against Walsh—and Sherrick, Shaw, and Ziegler—
should be considered anew on remand.
The Olsons sued Champaign County because state law
requires the county to indemnify Sheriffs and their deputies
for damages for torts committed in the scope of their em‐
ployment. See 745 Ill. Comp. Stat. 10/9‐102. Champaign
County is a necessary party to a suit against a Sheriff under
federal law. See Carver v. Sheriff of LaSalle County, 324 F.3d 947,
948 (7th Cir. 2003) (holding that “a county in Illinois is a nec‐
essary party in any suit seeking damages from an inde‐
pendently elected county officer (sheriff, assessor, clerk of
court, and so on) in an official capacity”), citing Fed. R. Civ. P.
17 & 19. The plaintiffs have sued Sheriff Walsh in his official
capacity, so we reverse the dismissal of Champaign County. It
is a necessary party to this suit as long as Sheriff Walsh re‐
mains a party.
No. 12‐3742 21
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.