In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2417
CYNTHIA ARCHER,
Plaintiff‐Appellant,
v.
JOHN T. CHISHOLM, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:15‐cv‐00922‐LA — Lynn Adelman, Judge.
____________________
ARGUED JANUARY 6, 2017 — DECIDED AUGUST 29, 2017
____________________
Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit
Judges.
WOOD, Chief Judge. While Governor Scott Walker was
leading the charge for controversial changes to Wisconsin’s
public union laws, plaintiff‐appellant Cynthia Archer was at
his side, drafting the law and advocating for its passage. At
the same time, the Milwaukee County State’s Attorney’s
Office was investigating allegations of misconduct against
Archer and several of the governor’s close associates, using
2 No. 16‐2417
Wisconsin’s unique “John Doe” procedure. Archer sees a
connection between the legislative campaign and the John
Doe investigation. She alleges that she was targeted because
of her work on the union bill and her affiliation with Governor
Walker. Although Archer was never charged with
wrongdoing, she filed this section 1983 action against three
prosecutors and three members of the investigative team. The
district court dismissed the case on the basis of immunity. We
affirm.
I
As Archer tells it (and that is the perspective we adopt at
this stage), this case is about a top Republican policy staffer
who was dragged unfairly into a criminal investigation by
members of a rabidly political prosecutor’s office. The story
begins in 2006, when Archer joined Milwaukee County
Executive Scott Walker’s administration as the budget
director for the Department of Administrative Services.
Archer was no government neophyte; she had served before,
usually in Republican administrations. Two years later,
Walker promoted Archer to Director of Administrative
Services. There she played a key role in developing and
implementing Walker’s policies. She was well suited for the
work, thanks to her master’s degree in public policy and
administration and her policy experience. Walker, a
Republican, launched his bid for governor in April 2009.
In May 2010, with the gubernatorial campaign underway,
Milwaukee County District Attorney John Chisholm’s office
began investigating activities in Walker’s Milwaukee County
Executive’s office. The impetus for the investigation was a re‐
port from Thomas Nardelli, Walker’s chief of staff, concerning
some money that the county had given to a non‐profit and
No. 16‐2417 3
that had since vanished. Nardelli had reported the missing
money to David Budde, an investigator in the Milwaukee
D.A.’s office (and a defendant‐appellee here), back in
April 2009. His report stated that the county had asked the re‐
cipient charity to document how the money was spent, but it
failed to submit a satisfactory accounting. Nardelli identified
the charity’s treasurer, Kevin Kavanaugh, as the likely thief.
To get the investigation started, Assistant D.A.
Bruce Landgraf asked a state judge to open a “John Doe”
investigation into the missing charity funds, although the
purpose of his investigation was not limited to that topic. A
“John Doe” is a unique Wisconsin device that permits the
prosecutor, under the supervision and direction of a judge, to
conduct a secret investigation. Wis. Stat. § 968.26; State ex rel.
Two Unnamed Petitioners v. Peterson, 866 N.W.2d 165, 197–99
(Wis. 2015). After the proceeding is opened, the John Doe
judge may issue subpoenas and examine witnesses. State v.
Doe, 254 N.W.2d 210, 211 n.1 (Wis. 1977). The Wisconsin
Supreme Court believes that, if conducted appropriately, the
John Doe process “provides much greater protections to the
target of an investigation” than other types of investigations,
because the supervising judge acts as a check on the
prosecutor. Two Unnamed Petitioners, 866 N.W.2d at 198. In this
case, the petition for the John Doe investigation said that it
was “reasonable to expect” that county officials, including
those from the county executive’s office, would be witnesses.
The John Doe investigation expanded several times as it
uncovered evidence of wrongdoing, including illegal cam‐
paign fundraising and anomalies in the bidding process for
two county projects (a 2009 housekeeping contract and a 2010
lease for agency space at a building known as Reuss Plaza).
4 No. 16‐2417
The bidding investigation was exploring whether county of‐
ficials were giving companies associated with Walker’s cam‐
paign treasurer, John Hiller, an improper advantage. Along
the way, D.A. Chisholm’s office learned that Archer had com‐
municated with members of Walker’s inner circle, including
Hiller, about bid proposals. In December 2010, after Walker
was elected governor but before he had taken office, the de‐
fendants searched Archer’s county office pursuant to a search
warrant.
By that point, Archer had left her position with the county.
Walker had invited her to join his transition team and had ap‐
pointed her Deputy Secretary of Administration. The deputy
secretary job was a high‐ranking political position; its head
drafted policy and oversaw state departments. Walker hired
Archer because of her experience working on his policies in
the county office.
Soon after Walker became governor, he began advocating
for legislation that would significantly weaken bargaining
rights for public sector unions. He announced a legislative
proposal in February 2010. Public protests and national
headlines followed. At the same time, Archer was playing a
lead role crafting legislation. This sort of policy work was not
inherent in her position as deputy secretary, but she took the
initiative to participate in the drafting and implementation
process of what became known as Act 10. She advised the
governor and other members of the staff about the bill and
became a self‐described point person for fielding questions
from lawmakers and other officials. The law passed in early
March. Recall campaigns targeting some lawmakers and
Governor Walker followed.
No. 16‐2417 5
While the State Capitol was focused on the public union
legislation, the John Doe investigation rolled on. By this time,
Archer says, the Milwaukee County D.A.’s Office had
“bec[o]me a hotbed of pro‐union, anti‐Act 10, and anti‐Walker
activity.” D.A. Chisholm had been a vigorous opponent of
Walker for years, ever since Walker’s stint as county executive.
(The Milwaukee District Attorney is an elected office, and
Chisholm had run as a Democrat.) Archer asserted
that Chisholm had promoted Landgraf and David Robles,
assistant district attorneys, “at least in part” because they
shared Chisholm’s political views; she makes the same
claim for the three detective defendants—David Budde,
Robert Stelter, and Aaron Weiss.
The John Doe investigation, Archer alleges, was a veiled
attempt by the defendants to stop Walker and harass his al‐
lies. (Although she claims that D.A. Chisholm’s office had
conducted “a continuous campaign of harassment and intim‐
idation” against Walker’s allies since at least May 2010, she
alleges facts concerning only the defendants’ opposition to
Act 10.) All six defendants worked on the John Doe investiga‐
tion in some capacity. And although the John Doe proceeding
was being conducted under the judge’s secrecy order, word of
it seeped out to the news media. Archer believes that this, too,
was the work of the defendants, who leaked information in
order to sully Archer’s reputation.
The efforts to stop Act 10 failed, and it became law on
March 11, 2011. Six months later, the defendants sought and
received from the John Doe judge a search warrant for
Archer’s home in Madison. The application was supported by
a 33‐page affidavit from investigator Stelter. As relevant here,
the affidavit described the investigation and the facts Stelter
6 No. 16‐2417
believed gave rise to probable cause that Archer and others
had violated a handful of laws, including the state’s statute
addressing misconduct in public office, an ethics code, and
the prohibition against solicitation. It also listed the Wisconsin
statute under which aiders, abetters, and co‐conspirators are
treated as principals. Stelter added that Archer had sent notes
regarding a contract from her personal e‐mail account and
had communicated with other Walker allies about the pro‐
jects. The affidavit identified, as materials to be seized, “all
documents, e‐mails, records, correspondence, and infor‐
mation” relating to the Reuss Plaza and housekeeping con‐
tracts, as well as “any computer or electronic communication
device of Archer related to the above including a search of the
documents within said computer or device.”
The John Doe judge authorized the search warrant on
September 13, 2011, and the D.A.’s office executed it early the
next day. It was so early, in fact, that Archer was sleeping
when officers arrived. Their tactics were rough; they
“thunderous[ly] hammered on her front door” and shouted
that she had to open it or they would break it down. Archer
saw a battering ram on her lawn. Panicked, she ran
downstairs and quickly got dressed in the officers’ line of
sight. When she opened the door, the officers entered with
their guns drawn and proceeded to search every nook and
cranny. Just after the search began, Archer noticed a reporter
standing on the sidewalk outside her home; other reporters
showed up later. The search was widely reported.
The search lasted several hours. During this time, the
officers prohibited Archer and her partner from leaving the
house, even though her partner needed to get to work.
Detective Weiss attended and supervised the operation. He
No. 16‐2417 7
allegedly told Archer that the investigation was “politically
charged” and “touched a lot of people.” Officers seized
Archer’s computer and cell phone; when Archer asked to
copy her brother’s phone number from her cell phone
contacts list, the officers refused.
After the search, Archer was interviewed several times, in‐
cluding by Stelter and Budde, as part of the John Doe investi‐
gation. She was granted immunity, however, and she never
was charged with any crimes. But at least four people were
convicted as a result of the investigation, including some
members of Walker’s staff who had violated state campaign
finance and fundraising laws. Walker’s former deputy chief of
staff, Tim Russell, pleaded guilty to stealing from the charity,
and Kavanaugh, the charity’s treasurer, was convicted of fel‐
ony theft.
Those convictions did not exhaust the investigation.
Along the way, the D.A.’s office unearthed evidence suggest‐
ing unlawful coordination during the recall effort between
Walker’s gubernatorial campaign committee and “independ‐
ent” political groups, including the Wisconsin Club for
Growth. Based on this evidence, Chisholm’s office sought
from a Wisconsin judge, and was granted, the authority to
begin a second John Doe investigation (“John Doe II”). The
second investigation did not concern Archer, but it is relevant
to a document preservation issue in this case.
John Doe II led to people outside Milwaukee County; they
were beyond the reach of the John Doe II judge.
D.A. Chisholm therefore asked Wisconsin’s Attorney
General, J.B. Van Hollen, to take over the entire matter.
Van Hollen (a Republican) declined to do so because of
possible conflicts, but he recommended that the state
8 No. 16‐2417
Government Accountability Board—the nonpartisan body in
charge of state elections—take charge. It did so. A former
Republican legislator on the Board later observed that the
Board had been presented with “credible, hard evidence” of
a violation of the law. In addition, the district attorneys for the
other counties in which targets of the investigation resided
also became involved. Eventually the John Doe II judge
appointed a special prosecutor to run the operation.
Targets of John Doe II, including the director of the
Wisconsin Club for Growth, brought various lawsuits to try
to shut it down. The one that matters for our purposes
resulted in the Wisconsin Supreme Court’s decision in Two
Unnamed Petitioners, 866 N.W.2d 165 (Wis. 2015). There, the
court held that the First Amendment prohibited the
enforcement of Wisconsin’s anti‐coordination laws against
entities such as the Wisconsin Club for Growth. The decision
expressly ended John Doe II for the reason that “the special
prosecutor’s legal theory is unsupported in either reason or
law.” Id. at 179. It ordered the return of all seized items, and
the destruction of “all copies of information and other
materials” obtained. Id. But on December 2, 2015, the court
modified its “destroy” directive, ordering instead that all
records from John Doe II—including records from the first
investigation that were used in the second investigation—be
filed with the supreme court clerk; all other copies were to be
destroyed. State ex rel. Three Unnamed Petitioners v. Peterson,
875 N.W.2d 49, 59–60 (Wis. 2015). The court reasoned that this
was necessary to “ensure that the prosecution team would
comply with the court’s order” to stop the John Doe II
investigation. Id. at 58. This meant that the records would be
available in the event the investigation ever was allowed to
proceed, and that they “could also potentially be available for
No. 16‐2417 9
use in related civil proceedings,” if the request and use was
“proper under the circumstances.” Id. at 61. It did not
elaborate further.
On July 1, 2015, while the John Doe cases were still before
the Wisconsin Supreme Court, Archer filed the present suit
against three prosecutors (Chisholm, Robles, and Landgraf,
whom we call the Prosecutors), and three investigators
(Stelter, Budde, and Weiss, whom we call the Investigators),
in their personal capacities, under 42 U.S.C. § 1983. She al‐
leged five constitutional violations: (1) retaliatory investiga‐
tion, in violation of the First Amendment; (2) unreasonable
search and seizure, in violation of the Fourth Amendment;
(3) retaliatory arrest, in violation of the First Amendment;
(4) false arrest in violation of the Fourth Amendment; and
(5) conspiracy to violate civil rights. These actions, Archer ar‐
gued, caused her great emotional distress, ranging from post‐
traumatic stress disorder to depression and anxiety, and
prompted her to resign from her deputy secretary job in the
Walker administration. The investigation left her reputation
in tatters, both personally and professionally, and made her
the target of public harassment.
In response, the Prosecutors filed a motion to dismiss pur‐
suant to Federal Rule of Civil Procedure 12(b)(6) and a motion
for judgment on the pleadings pursuant to Rule 12(c), invok‐
ing absolute immunity and qualified immunity. The Investi‐
gators sought judgment on the pleadings on qualified im‐
munity grounds. The six collectively asked the district court
to allow them to file John Doe records with that court, so that
the documents would be available even if the Wisconsin Su‐
preme Court denied a request to allow their use for the section
1983 action.
10 No. 16‐2417
The district court decided all issues in favor of the
defendants. It granted the Prosecutors’ motion to dismiss,
reasoning that they were absolutely immune for all their
activities done pursuant to the John Doe investigation. It
granted the Investigators’ motion for judgment on the
pleadings on qualified immunity grounds and noted that the
Prosecutors also were entitled to qualified immunity. Finally,
it granted the defendants’ motion to preserve evidence by
permitting them to file with the Clerk of the Eastern District
of Wisconsin sealed copies of all the materials they had to file
with the Wisconsin Supreme Court.
Before us now is Archer’s attempt to revive all of her sec‐
tion 1983 claims and to overturn the district court’s preserva‐
tion order.
II
We consider de novo the district court’s ruling on qualified
immunity in response to a motion to dismiss. Ewell v. Toney,
853 F.3d 911, 918–19 (7th Cir. 2017). Motions under Rule 12(c)
for judgment on the pleadings also receive a fresh look in this
court. Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chicago,
649 F.3d 539, 547 (7th Cir. 2011). We read the complaint in the
light most favorable to Archer, the non‐movant, accepting all
of her well‐pleaded facts as true and drawing all reasonable
inferences in her favor. Burke v. 401 N. Wabash Venture, LLC,
714 F.3d 501, 504 (7th Cir. 2013). To pass muster, Archer’s
complaint must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim has the requisite plausibility “when the plaintiff pleads
factual content that allows the court to draw the reasonable
No. 16‐2417 11
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A
Archer asks us to hold that absolute immunity does not
protect the Prosecutors in this case because they were acting
as investigators—not prosecutors—at all times relevant to her
claims. The district court was not persuaded by this argu‐
ment; it placed great weight on the fact that their actions were
taken as part of the John Doe proceeding. That meant that
some, if not all, of the Prosecutors’ actions were conducted
under the direct supervision and approval of a judge. As for
the execution of the warrant, the district court found disposi‐
tive the fact that Archer had not alleged the necessary per‐
sonal involvement. The former issue is the critical one:
whether the Prosecutors are entitled to absolute immunity for
their investigation of Archer because it was done pursuant to
the John Doe process.
Prosecutors are absolutely immune for actions they
undertake in their capacities as prosecutors, even including
malicious prosecution unsupported by probable cause. Imbler
v. Pachtman, 424 U.S. 409, 427 (1976). But absolute immunity
does not shield them from liability for actions that are not
“intimately associated with the judicial phase of the criminal
process,” nor does it apply when they are performing non‐
prosecutorial actions, such as administrative and
investigatory activities. Imbler, 424 U.S. at 430; see Buckley v.
Fitzsimmons, 509 U.S. 259, 274–76 (1993); Burns v. Reed, 500
U.S. 478, 492–95 (1991). Protection hinges not on the
defendant’s job title, but on the nature of the function he
performed. Buckley, 509 U.S. at 268–69.
12 No. 16‐2417
The Prosecutors argue that all the actions Archer has
identified were prosecutorial in nature because they were
conducted under the supervision of a judge who, under
Wisconsin law, “is to act as a neutral magistrate.” In re Doe
Petition, 750 N.W.2d 873, 884 (Wis. 2008). We have likened
John Doe proceedings to grand jury investigations, see
O’Keefe v. Chisholm, 769 F.3d 936, 943 (7th Cir. 2014); they also
proceed under the general supervision of a judge, and
prosecutors receive absolute immunity in those proceedings.
Id. at 273. That said, the ultimate test remains a functional one;
the involvement of a judge is not dispositive. See Buckley,
509 U.S. at 272–73 (absolute immunity protects “an out‐of‐
court ‘effort to control the presentation of a witness’s
testimony’”) (quoting Imbler, 424 U.S. at 430 n.32). John Doe
proceedings are intended as “investigatory tool[s]” for
determining whether a crime was committed and by whom,
State ex rel. Reimann v. Cir. Ct. for Dane Cnty., 571 N.W.2d 385,
390 (Wis. 1997), and prosecutorial work historically did not
include investigations, see Buckley, 509 U.S. at 275–76.
Because they are so unusual, John Doe proceedings do not
fit neatly into the categories used in earlier cases. We find it a
bit artificial to squash them into either the absolute immunity
box or the qualified immunity box, but fortunately, that is not
necessary. If qualified immunity is available, it is enough to
dispose of the present case. We therefore turn directly to that
analysis. See Sonnleitner v. York, 304 F.3d 704, 717 n.8
(7th Cir. 2002) (court may affirm on the basis of any ground
fairly presented in the record).
B
All of the defendants have invoked qualified immunity as
an affirmative defense to Archer’s claims. “Qualified
No. 16‐2417 13
immunity shields government officials from civil damages
liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664
(2012). Although qualified immunity is an affirmative
defense, the plaintiff has the burden of defeating it once the
defendants raise it. Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir.
2013). To do so, the plaintiff must show (1) that the defendant
violated a constitutional right, when construing the facts in
the light most favorable to the plaintiff, and (2) that the right
was clearly established at the time of the alleged violation,
such that it would have been clear to a reasonable actor that
her conduct was unlawful. Pearson v. Callahan, 555 U.S. 223,
232 (2009). A failure to show either is fatal for the plaintiff’s
case, and we may begin (and possibly end) with either
inquiry. Id. at 236.
1
In support of her assertion that her Fourth Amendment
rights were violated by the September 14, 2011 search and sei‐
zures in her home, Archer attacks both the warrant and the
search itself. We address the warrant first, and then the man‐
ner in which the search was carried out.
Searches undertaken pursuant to valid search warrants
are presumptively valid, see Franks v. Delaware, 438 U.S. 154,
171 (1978), and even flawed warrants can help to demonstrate
good faith on the part of the officers, see United States v. Leon,
468 U.S. 897 (1984). In order to be valid, a search warrant
must: (1) be issued by a neutral and disinterested magistrate;
(2) establish probable cause that the evidence sought in the
warrant will aid in obtaining a conviction of a particular of‐
fense; and (3) describe with particularity the things to be
14 No. 16‐2417
seized and the place to be searched. Dalia v. United States,
441 U.S. 238, 255 (1979). Even if one of those elements is miss‐
ing, an officer is still entitled to qualified immunity if she is
acting pursuant to a warrant that was authorized by a judge,
and her action is reasonable. Leon, 468 U.S. at 920–21; Malley
v. Briggs, 475 U.S. 335, 344–45 (1986). Only when an officer
seeks or obtains a warrant “so lacking in indicia of probable
cause as to render … belief in its existence unreasonable,”
may the officer face liability for damages. Malley, 475 U.S. at
344–45.
Archer asserts that the warrant in her case was deficient in
all three respects. Her first attack is her boldest: she asserts
that the John Doe judge was not “neutral and detached” and
that he “rubber‐stamped” the warrant and made “no effort to
scrutinize the legal or factual basis for the requested warrants
and subpoenas.” At one point, she questioned whether the
judge even read the application or signed the warrant, alt‐
hough she did not repeat this in her amended complaint.
Archer also alleges that the defendants somehow knew about
the judge’s shirking of his responsibility.
Proving that a judge was not “neutral and detached” is
difficult to do; such arguments rarely succeed because they
demand exceptional circumstances. Wisconsin has a
presumption of regularity that attaches to the actions of state
judicial officers. See State ex rel. LaFollette v. Cir. Ct. of Brown
Cnty., Br. 1, 155 N.W.2d 141, 149 (Wis. 1967); cf. U.S. Postal Serv.
v. Gregory, 534 U.S. 1, 10 (2001) (presumption of regularity
attaches to actions of government agencies). But see Lo‐Ji
Sales, Inc. v. New York, 442 U.S. 319, 326–28 (1979) (local justice
did not act with the required neutrality and detachment when
he participated in and directed the seizure of items during the
No. 16‐2417 15
execution of a warrant he had issued). Archer has offered
nothing in her complaint that would rebut that presumption.
At best she has expressed a hunch that something went awry.
But she must do more than raise questions about the judge’s
action; she must allege enough facts to present a plausible
violation. See Twombly, 550 U.S. at 570; Adams v. City of
Indianapolis, 742 F.3d 720, 728–29 (7th Cir. 2014).
The only factual allegations that head in this direction—
facts which also were not in her amended complaint—con‐
cern time sheets and reimbursement logs that the John Doe
judge (who was paid by the hour) submitted to the state.
Those sheets apparently reflected that he did not report doing
work on the John Doe investigation on the date when Stelter
submitted his sworn statement and the judge signed the war‐
rant. From these logs, timestamps, and the judge’s report of
work done some 30 miles away, Archer deduces that there
was not enough time in the day for the judge to review
Stelter’s warrant package. Archer adds a roundabout chal‐
lenge to the authenticity of the warrant, noting that the judge
did not seek reimbursement for travel to Milwaukee (where
the warrant was issued), even though he did not live there.
Finally, Archer’s handwriting expert “was unable to confirm”
that the signature on the warrant matched other documents
signed by the judge.
These records are not the silver bullet Archer thinks they
are; they do not, and cannot show, that the judge was not
“neutral and detached.” Assuming for the sake of argument
that the court should even consider these documents, they re‐
veal at most that the judge did not spend significant time re‐
viewing the warrant on the day that it was issued. It does not
16 No. 16‐2417
show that he did not review a draft or discuss it with the de‐
fendants earlier. Nor does it shed light on possible bias or im‐
propriety. It relates only to the judge’s diligence, which is ir‐
relevant to our validity inquiry. And it is possible that he did
not ask for reimbursement for that day’s work. (Indeed, given
the ease of today’s electronic communication, the judge easily
could have been working on the case from an office 30 miles
away from Milwaukee; the record is silent about this possibil‐
ity.) In sum, Archer has failed to allege facts that, if believed,
would show that the judge who issued the warrant shirked
his responsibility to be a “neutral and detached magistrate.”
Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971).
Archer’s theory has another flaw: she has not explained
how the defendant prosecutors and investigators might have
known of the judge’s alleged sloppiness, such that their reli‐
ance on the warrant was unreasonable. Archer’s brief says
only that “[a]ppellees knew that the judge did not review the
warrant and know whether he is actually the one who signed
it.” Why the counter‐intuitive proposition that the prosecu‐
tor’s office should have known about the internal operations
of the judiciary is left up in the air.
Archer’s second jab at the warrant focuses on Stelter’s sup‐
porting affidavit. Archer claims that Stelter and others pro‐
cured the affidavit through deceit by providing misleading
and unfair statements to the judge. The defendants, she con‐
tends, selectively quoted her e‐mails and failed to disclose key
information about the bids, including that Archer “actively
opposed” awarding the 2010 Reuss Plaza lease to the Walker
administration’s favored bidder. This information tended to
exculpate her, she claims, and thus would have undermined
the showing of probable cause.
No. 16‐2417 17
A warrant is insufficient for Fourth Amendment purposes
if the requesting officer “knowingly, intentionally, or with
reckless disregard for the truth, makes false statements” when
requesting it, and her false statements were “necessary to the
determination that a warrant should issue.” Betker v. Gomez,
692 F.3d 854, 860 (7th Cir. 2012) (internal citation omitted).
This includes an officer’s failure to disclose facts that she
“knew would negate probable cause.” Beauchamp v. City of
Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003). But even
officers who knowingly or recklessly submit an affidavit
containing falsehoods may receive qualified immunity if they
show an objectively reasonable basis for believing that the
affidavit still demonstrated probable cause. Betker, 692 F.3d at
860.
The facts that were allegedly withheld from the issuing
judge do not negate probable cause. Stelter’s detailed affidavit
described a range of suspicious and troubling activity be‐
tween bidders and Walker’s inner circle, including Archer. It
noted that Archer used her private e‐mail account to forward
documents and, at one point, to advise Hiller. Even if Archer
personally opposed a favored bidder, it is still possible that
she improperly assisted others. Moreover, the affidavit specif‐
ically relied on Wisconsin’s parties‐to‐crime statute, Wis. Stat.
§ 939.05, which allows for aiders and co‐conspirators to be
treated as principals to a crime. Because no facts that would
negate probable cause were withheld, the warrant cannot be
rejected on this ground.
Archer lastly attacks the particularity of the warrant. She
claims that it was so lacking in meaningful limits that it was
facially deficient and thus did not even permit good‐faith,
Leon‐style reliance. The Fourth Amendment demands that
18 No. 16‐2417
warrants “particularly describ[e] the place to be searched, and
the persons or things to be seized.” U.S. CONST. amend. IV.
This mandate “makes general searches under them
impossible and prevents the seizure of one thing under a
warrant describing another.” Marron v. United States, 275 U.S.
192, 196 (1927); see also Maryland v. Garrison, 480 U.S. 79, 84
(1987); Dalia, 441 U.S. at 255. Warrants that fail to satisfy this
threshold requirement are facially deficient, and executing
officers may not rely on them. Leon, 468 U.S. at 914. But
although warrants must describe the objects of the search
with “reasonable specificity,” the Constitution does not insist
that they be “elaborately detailed.” United States v. Jones,
54 F.3d 1285, 1290 (7th Cir. 1995) (internal citation omitted).
Archer’s characterization of the warrant as containing
only “reference[s] to broad statutes” and “illustrative” topics
is not supported by the document. Far from giving only a
bird’s eye view of the case, Stelter’s affidavit detailed the con‐
tracts, the players involved, their various actions, and the spe‐
cific state laws he believed that Archer (and others) may have
violated.
The affidavit also described the specific location to be
searched (Archer’s home), and the objects to be seized, which
included “all documents, e‐mails, records, correspondence,
and information relating to” the Reuss Plaza lease and the
2009 housekeeping contract, and related e‐mails between
January 1, 2009 and December 31, 2010. Archer finds these
categories so broad as to violate the Constitution. But the
particularity inquiry turns on what was realistic or possible in
this investigation. See Jones, 54 F.3d at 1291. Stelter could not
know ex ante, with pinpoint specificity, what documents and
e‐mails existed. This is to be expected, since secrecy is often
No. 16‐2417 19
the preferred modus operandi of wrongdoers, and the
defendants believed Archer and her confederates were
wrongdoers. When granular detail is impossible, generic
descriptions of the items to be seized are sufficient so long as
they particularize the types of items to be seized. Russell v.
Harms, 397 F.3d 458, 464 (7th Cir. 2005). The warrant here did
just that, and thus the defendants are entitled to qualified
immunity on this aspect of Archer’s unreasonable search and
seizure claim.
Archer also argues that the manner of the search violated
her Fourth Amendment rights, even if the warrant itself was
sound. Archer contends that the officers exceeded its scope by
ordering that certain places in her home be searched, because
the items the warrant authorized to be seized could not have
been in these places. She also objects to the officers’ seizure of
her phone, computer, and private e‐mails—items that, we as‐
sume, contained more than documents related to the two con‐
tracts and the John Doe investigation. One can raise this type
of claim as a matter of law: exceeding the scope of a warrant
violates the Fourth Amendment; it is tantamount to a “gen‐
eral exploratory rummaging through one’s belongings.”
United States v. Mann, 592 F.3d 779, 782 (7th Cir. 2010).
But the officers did not look for anything the warrant did
not authorize, and we already have found that the list was not
impermissibly vague. The affidavit expressly permitted the
seizure of “any computer or electronic communication device
of Archer containing any records related” to the two contracts
and the other components of the investigation. The fact that
these electronic devices contained documents other than
those authorized for seizure under the warrant is of no mo‐
ment. If the possible existence of unrelated materials were
20 No. 16‐2417
enough to invalidate a warrant, computer searches would be
impossible in drug cases, financial fraud cases, internet child
pornography cases, and a host of others. The target’s privacy
interest in unrelated materials is typically addressed by the
search methods used by the police after seizure, because an ex
ante screen is impossible. Here, Stelter’s affidavit specifically
noted the officers’ desire to “search … documents within” any
computer or device that was seized. Because the records au‐
thorized to be seized “could be essentially anywhere on the
computer,” the officers were entitled to take any storage de‐
vices capable of holding responsive records.
Moreover, no Fourth Amendment violation occurred
when officers searched Archer’s dresser, cabinets, and base‐
ment. Generally, officers are entitled to search anywhere the
items to be seized might likely be discovered, so long as that
is within the place authorized to be searched. See United States
v. Ross, 456 U.S. 798, 820–21 (1982); Mann, 592 F.3d at 782–83.
The objects of the search set the boundaries of the scope; “[i]f
you are looking for an adult elephant, searching for it in a
chest of draws is not reasonable.” Platteville Area Apt. Ass’n v.
City of Platteville, 179 F.3d 574, 579 (7th Cir. 1999). Here, the
items expressly authorized to be seized—paper, digital rec‐
ords, and electronic devices—were closer in size to a cat than
an elephant. Digital records could be stored on devices such
as thumb drives, hard drives, or CDs, which could be almost
anywhere in the house. Thus, the officers were authorized to
look in any of those places. See United States v. Aghedo, 159
F.3d 308, 311 (7th Cir. 1998).
Archer also objects to the manner of the search, which she
describes as so violent that it independently violated the
Fourth Amendment. See Los Angeles Cnty. v. Rettele, 550 U.S.
No. 16‐2417 21
609, 614 (2007) (“Unreasonable actions include the use of ex‐
cessive force or restraints that cause unnecessary pain or are
imposed for a prolonged and unnecessary period of time.”).
She points to the presence of a battering ram (that was not
used), the officers’ entering the home with “guns drawn”
(they apparently put them away quickly), the presence of a
news reporter (who was on the sidewalk during the search),
and the time of day (early on a weekday morning).
The Fourth Amendment prohibits the use of excessive
force during a seizure. See Graham v. Connor, 490 U.S. 386, 397
(1989); Estate of Escobedo v. Bender, 600 F.3d 770, 780 (7th Cir.
2010). Rettele holds that “[t]he test of reasonableness [of force]
is an objective one.” 550 U.S. at 614. We look at the facts from
the perspective of a reasonable officer at the time. Baird v.
Renbarger, 576 F.3d 340, 344 (7th Cir. 2009). Unpleasant as the
events undoubtedly were, we see nothing objectively
unreasonable in what occurred. Although Archer was
undoubtedly startled to wake up to armed police at her door
with a battering ram in the yard, they never used that device,
and they quickly holstered their guns. Apprehension that the
police might do something falls short of a showing that they
actually did use objectively abusive tactics. We take Archer at
her word that the officers’ demeanor was rude and that they
were disrespectful, but the Supreme Court has never held that
the Fourth Amendment protects against those problems.
The presence of a news reporter outside her home during
the search does not change things. Archer alleges no facts
tending to show that any of the six defendants were the ones
who leaked, or authorized the leak of, information about the
search (or anything else about the investigation) to the media.
And even if they did, we doubt that the Fourth Amendment
22 No. 16‐2417
protects against such behavior. That does not mean that
abuses must go un‐redressed: Wisconsin law provides a rem‐
edy for violations of a secrecy order of a John Doe proceeding,
which is at the core of Archer’s complaint here. See Wis. Stat.
§ 968.26(4)(d).
2
Because the warrant was valid and Archer has stated no
claim about the execution of the search, her false arrest claim
also fails. As Archer implicitly acknowledges, officers may
detain the occupants of a location to be searched when they
execute a valid warrant if they have a valid reason for doing
so—that is, an articulable basis for suspecting criminal activ‐
ity and a valid law enforcement interest. Michigan v. Summers,
452 U.S. 692, 704–05 (1981) (“If the evidence that a citizen’s
residence is harboring contraband sufficient to persuade a ju‐
dicial officer that an invasion of the citizen’s privacy is justi‐
fied, it is constitutionally reasonable to require that citizen to
remain while officers of the law execute a valid warrant to
search his home.”) The defendants did not exceed this limited
authority by detaining Archer for the duration of the search.
Id. (As for Archer’s partner, it is enough to say that we have
no claim from the partner before us, and so no reason to com‐
ment on the separate interests of the partner.) Seeing no merit
in Archer’s Fourth Amendment arguments, we move on to
her First Amendment claim.
3
Archer argues that the investigation and her detention
during the search violated her First Amendment rights, be‐
cause the defendants allegedly took these actions in retalia‐
tion for her support of Walker and her advocacy for Act 10.
No. 16‐2417 23
Once again, we consider whether qualified immunity protects
some or all of the defendants. The defendants have properly
raised this defense, and so it is up to Archer to show (1) that
the defendants’ actions (if proven) violated her constitutional
rights, and (2) that these rights were clearly established at the
time in question. See Pearson, 555 U.S. at 236–38.
To state a First Amendment retaliation claim, Archer must
allege that: (1) she engaged in activity protected by the First
Amendment; (2) she suffered a deprivation that would likely
deter First Amendment activity; and (3) the protected activity
she engaged in was at least a motivating factor for the retalia‐
tory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009);
see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977). We proceed on the assumption that Archer’s alle‐
gations of severe emotional distress, tarnished reputation,
and professional harms were enough to satisfy the second el‐
ement, and that her allegation that the defendants were moti‐
vated to investigate her because of her political advocacy met
the third (for purposes of pleading—nothing has been proven
yet, of course).
That leaves us with the first question—whether the First
Amendment protected Archer’s activity from the defendants’
criminal investigation and her detention during the search.
Archer says yes, and directs us to Rakovich v. Wade, 850 F.2d
1180 (7th Cir. 1988) (en banc) abrogated in part on other grounds,
Spiegla v. Hull, 371 F.3d 928 (7th Cir. 2004). Rakovich, she ar‐
gues, stands for the proposition that an investigation con‐
ducted in retaliation for public statements is actionable under
section 1983. That case concerned a civil service commission
member who alleged that he was subjected to a retaliatory in‐
24 No. 16‐2417
vestigation by police officers after he criticized the depart‐
ment. Id. at 1183. Archer clings to one line as support for her
position: “[t]he district court correctly found that an investi‐
gation conducted in retaliation for comments protected by the
first amendment could be actionable under section 1983.” Id.
at 1189.
The quote is accurate, but the conclusion she draws is
flawed. Rakovich is long in the tooth, and the Supreme Court
has spoken to the issues surrounding public employee speech
since it appeared. The Court has emphasized the distinction
between speech a public employee makes in her capacity as a
citizen and speech she makes in her capacity as an employee.
Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court
held that First Amendment protection for a public employee’s
speech turns on two inquiries: (1) whether the employee
spoke as a citizen on a matter of public concern; and (2) if so,
whether the governmental entity has offered an adequate jus‐
tification for its decision to treat the employee differently
from the general public. Id. at 418. Drawing a distinction be‐
tween public and private speech may be difficult. Id. at 424.
That task is necessary, however. Here we must determine
whether the activity Archer claims was the impetus for the
retaliation was work‐related. In her brief in this court, Archer
points to several facts: her general advocacy on behalf of Act
10; her policy work for the governor; and her affiliation with
and personal support of the governor. But her amended com‐
plaint focuses on alleged retaliation for her work surrounding
Act 10—legislation that Governor Walker first proposed in
February 2011, months after the John Doe investigation began
and two months after investigators searched Archer’s office.
No. 16‐2417 25
There is nothing in the complaint to suggest that Archer’s per‐
sonal support of Governor Walker played a role in the inves‐
tigation. And Archer cannot duck this inquiry merely by re‐
peating that her work on Act 10 was speech she made “as a
citizen … outside the duties of employment.” See Tamayo v.
Blagojevich, 526 F.3d 1074, 1092 (7th Cir. 2008) (rejecting a sim‐
ilar classification as a legal conclusion). This legal conclusion
is belied by Archer’s other assertions about her legislative
work in the Walker administration. Her job was in part to de‐
velop policy. Even if this work was “not inherent” to the dep‐
uty secretary position, that does not mean Archer undertook
it in her capacity as citizen. Thus, while political work and
legislative work easily constitute matters of public concern,
Archer worked on these matters as a state employee, albeit
one who served at the governor’s pleasure.
Were we to proceed to the second Garcetti inquiry, we
would run into a roadblock there too, because that question
asks whether the government employer had an adequate justifi‐
cation for treating the employee differently from a member of
the public. 547 U.S. at 418. Garcetti concerned an allegation of
employer‐employee retaliation. Concerns unique to the em‐
ployer‐employee context infuse the Court’s opinion. E.g., id. at
410–11 (“Without a significant degree of control over its em‐
ployees’ words and actions, a government employer would
have little chance to provide services efficiently.”). Archer’s
case is different: it focuses on the relation between a state em‐
ployee and a criminal investigation.
It is not at all clear how Garcetti would apply to such a sit‐
uation. In Fairley v. Andrews, 578 F.3d 518, 524 (7th Cir. 2009),
we observed that Garcetti focused on the nature of the defend‐
ant, which was a government employer, and so we thought
26 No. 16‐2417
that it was possible that Court might treat differently a case in
which retaliation occurs at the hands of coworkers. Yet we
went on to hold in Fairley that Garcetti broadly holds that “the
first amendment does not protect statements made as part of
one’s job.” Id. at 522.
In sum, Garcetti might support either side: Archer, because
the defendants were not her employer; the defendants, be‐
cause Archer’s activities were part of her job as a public em‐
ployee. This uncertainty means that Archer has not shown
that her asserted right was “clearly established”—a stringent
standard that demands that “every reasonable official would
have understood that what he is doing violates that right.”
Reichle, 566 U.S. at 664 (quotation marks omitted); see also
Wilson v. Layne, 526 U.S. 603, 615 (1999) (“[T]he right allegedly
violated must be defined at the appropriate level of specificity
before a court can determine if it was clearly established.”).
Our conclusion is bolstered by the Supreme Court’s observa‐
tion in Hartman v. Moore, 547 U.S. 250 (2006), where it said that
“[n]o one here claims that simply conducting a retaliatory in‐
vestigation with a view to promote a prosecution is a consti‐
tutional tort. … Whether the expense or other adverse conse‐
quences of a retaliatory investigation would ever justify rec‐
ognizing such an investigation as a distinct constitutional vi‐
olation is not before us.” Id. at 262 n.9.
Were this all not enough, the existence of probable cause
and the judicial supervision of the John Doe investigation fur‐
ther counsel in favor of finding that qualified immunity ap‐
plies. No case we have seen has considered how to treat pub‐
lic employee speech that draws the attention of a John Doe
judge or a grand jury for purposes of the First Amendment.
See generally Branzburg v. Hayes, 408 U.S. 665 (1972) (no First
No. 16‐2417 27
Amendment privilege for newsman to refuse to testify before
a grand jury). And we know from Hartman that probable
cause (or the lack thereof) is relevant to a claim of retaliatory
prosecution. See 547 U.S. at 260–64. There is no clearly estab‐
lished rule of law under which an official pursuing a lawful
investigation, based on probable cause, has been found liable
under the First Amendment to a target.
4
Because Archer’s claims all fail to show the denial of a civil
right, her civil conspiracy claim (based on the same underly‐
ing conduct) was also correctly dismissed. Section 1983 does
not reach a conspiracy to deny a civil right in the absence of
an actual denial of such a right. Goldschmidt v. Patchett, 686
F.2d 582, 585 (7th Cir. 1982); see also Hill v. Shobe, 93 F.3d 418,
422 (7th Cir. 1996).
C
The only remaining question is whether the district court
properly exercised its authority when it agreed that the Clerk
of the Eastern District of Wisconsin was to hold copies of the
John Doe records undocketed and under seal pending final
disposition of this case. At the end of this litigation, the dis‐
trict court ordered these copies to be destroyed. Its action is in
some tension with the Wisconsin Supreme Court’s file‐and‐
destroy demand in Three Unnamed Petitioners, 875 N.W.2d at
58–61. Without the district court’s limited preservation order,
the defendants feared that they would be unable to obtain ac‐
cess to the records for purposes of their defense in the present
case (if we had reversed the district court). The court recog‐
nized the comity and federalism concerns raised by the de‐
fendants’ motion, but it accommodated those concerns in
28 No. 16‐2417
three ways: by sealing, by making the records undocketed,
and by ordering them destroyed at the conclusion of the case.
Archer believes this was an inappropriate intrusion into
the Wisconsin Supreme Court’s adjudication in Three
Unnamed Petitioners, because there is no proof that the state’s
high court will deny any future request from the defendants
for access to the documents. Since the state supreme court
denied motions to intervene brought by the Prosecutors and
the Investigators, we are unable to predict what the court
ultimately may decide. We turn therefore to the federal laws
on which the defendants rely: the All Writs Act, 28 U.S.C.
§ 1651, and the Anti‐Injunction Act, 28 U.S.C. § 2283.
The All Writs Act allows all courts established by
Congress to “issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). The Anti‐Injunction
Act (AIA) bars a district court from granting an injunction to
stay a proceeding in a state court unless such action is
“expressly authorized by Act of Congress, or where necessary
in aid of its jurisdiction, or to protect or effectuate its
judgments.” 28 U.S.C. § 2283. The AIA recognizes the
“fundamental constitutional independence of the States and
their courts,” and, accordingly, is aimed at ensuring that the
dual court systems avoid “needless friction.” Atl. Coast Line
R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286–87 (1970)
(internal citation omitted). The two laws are interpreted
similarly. In re Baldwin‐United Corp., 770 F.2d 328, 335 (2d Cir.
1985).
We see no problem with the district court’s practical solu‐
tion to this problem of inter‐system coordination. Until this
case is final, the possibility remains that the defendants will
No. 16‐2417 29
need to obtain access to the relevant investigation records. Be‐
cause the Wisconsin Supreme Court has not identified how or
whether the defendants will be able to use that court’s repos‐
itory, the district court was justified in creating a means to
preserve its ability to adjudicate this case. Thus, the action
falls comfortably within the “in aid of” jurisdiction exception
to the AIA. Alternatively, it is an order “necessary or appro‐
priate in aid of” the court’s jurisdiction for purposes of the All
Writs Act. The district court’s directive ensures that the stated
purpose of the Wisconsin Supreme Court’s file‐and‐destroy
order—to remove the records from the Prosecutors’ hands—
is accomplished. Had the district court proposed a method
that conflicted with the Wisconsin Supreme Court’s objective,
then perhaps we would reach a different outcome. But it does
not, and so we see no need to disrupt the district court’s han‐
dling of the matter.
III
Although this case presents troubling accusations of a po‐
litically motivated investigation, Archer has not met her bur‐
den in overcoming the defendants’ invocation of qualified im‐
munity. The judgment of the district court is AFFIRMED.