In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1790
THE JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC.,
Plaintiff‐Appellant,
v.
FRANCIS D. SCHMITZ, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:16‐cv‐539 — William M. Conley, Judge.
____________________
ARGUED NOVEMBER 8, 2017 — DECIDED MARCH 21, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐
cuit Judges.
WOOD, Chief Judge. This appeal requires us once again to
delve into the intricacies of the Wisconsin “John Doe proceed‐
ing,” a unique creature of Wisconsin law with some similari‐
ties to a grand jury investigation. A putative class of individ‐
uals and entities assert that they were swept up in a John Doe
investigation that ran roughshod over their federal rights.
They sued the members of Wisconsin’s (former) Government
2 No. 17‐1790
Accountability Board and the Milwaukee County District At‐
torney’s Office, complaining about actions the defendants
took between 2012 and 2014 in connection with a multi‐
county John Doe proceeding. The investigation had focused
on suspected illegal campaign coordination between certain
issue‐advocacy groups and a candidate for elected office.
Plaintiff, the John K. MacIver Institute for Public Policy
(“MacIver”), is one of those advocacy groups. The defendants
obtained search warrants from the state judge presiding over
the John Doe proceeding for MacIver’s electronic records;
they then executed those warrants through internet service
providers without giving notice to MacIver.
MacIver filed suit in the federal district court for the West‐
ern District of Wisconsin, alleging that the defendants’ con‐
duct violated the Stored Communications Act (“SCA”), 18
U.S.C. §§ 2703(a)–(c), 2711(3). MacIver seeks damages, a pre‐
liminary injunction, and the return of its seized property. The
district court dismissed the complaint and MacIver has ap‐
pealed. Although the parties have briefed a wide variety of
issues relating to the SCA and the John Doe process, we con‐
clude that we need reach only one of them: the SCA’s good‐
faith defense. We conclude that the defendants are entitled to
this defense and thus affirm the judgment of the district court.
I
A
John Doe proceedings “have been in use in Wisconsin
since its days as a territory.” State ex rel. Two Unnamed Peti‐
tioners v. Peterson, 363 Wis. 2d 1, 67 (2015), decision clarified on
denial of reconsideration sub nom. State ex rel. Three Unnamed Pe‐
titioners v. Peterson, 365 Wis. 2d 351 (2015). Noting that it is a
No. 17‐1790 3
unique device now codified under Wisconsin Statute § 968.26,
this court “ha[s] likened John Doe proceedings to grand jury
investigations,” except that they are conducted under the su‐
pervision of a judge, not the grand jury. See Archer v. Chisholm,
870 F.3d 603, 613 (7th Cir. 2017). A John Doe proceeding
“serves two important purposes.” Peterson, 363 Wis. 2d at 67.
It is both “an investigatory tool used to ascertain whether a
crime has been committed” and a special procedure “de‐
signed to protect innocent citizens from frivolous and
groundless prosecutions.” Id. (quoting State ex rel. Reimann v.
Cir. Ct. for Dane Cnty., 214 Wis. 2d 605, 621 (1997)).
“John Doe proceedings are conducted through the author‐
ity of the presiding judge,” In re Doe Petition, 310 Wis. 2d 342,
359 (2008), opinion modified on denial of reconsideration sub nom.
In re Doe, 314 Wis. 2d 67 (2008), whose duty it is to determine,
upon consideration of evidence collected during the proceed‐
ing, whether probable cause exists to issue a criminal com‐
plaint. See State v. Washington, 83 Wis. 2d 808, 821 (1978). A
John Doe judge “serves an essentially judicial function.” Id. at
823. Importantly, “[t]he John Doe judge does not act as ‘chief
investigator’ or as a mere arm of the prosecutor. Rather, the
John Doe judge serves as a check on the prosecutor and on the
complainant to ensure that the subject(s) of the investigation
receive(s) due process of law.” Peterson, 363 Wis. 2d at 69 (ci‐
tation omitted). At the conclusion of the proceeding, the judge
determines whether probable cause exists; if it does, the judge
may order a written criminal complaint. Id. at 68.
Although the rules have since changed significantly, at the
time relevant to this case a judge overseeing a John Doe pro‐
ceeding could subpoena witnesses, take testimony under
oath, and, most relevant here, issue search warrants. Wis. Stat.
4 No. 17‐1790
§ 968.26(2)(c) (2009), amended by 2015 Wis. Act 64 (eff. Oct. 25,
2015) (granting authority to subpoena witnesses and take tes‐
timony); State v. Cummings, 199 Wis. 2d 721, 733–35 (1996)
(discussing authority to issue search warrants). Additionally,
some or all of the proceeding could be conducted in secret, so
that the subjects of the investigation would be unaware of it.
Wis. Stat. § 968.26(3) (2009), amended by 2015 Wis. Act 64 (eff.
Oct. 25, 2015).
B
MacIver is a Wisconsin‐based conservative non‐profit or‐
ganization. As noted above, the defendants all worked either
for the Wisconsin Government Accountability Board (“the
Board”), an entity that now has been disbanded, or the Mil‐
waukee County District Attorney. Francis Schmitz was a spe‐
cial investigator for the Board. Kevin Kennedy was the
Board’s Director and General Counsel, and Jonathan Becker
served as Administrator of its Ethics and Accountability Di‐
vision. Shane Falk was a Staff Attorney with the Board. John
Chisholm was the Milwaukee County District Attorney.
Bruce Landgraf and David Robles were Milwaukee County
Assistant District Attorneys. Finally, Robert Stelter was an in‐
vestigator for the Milwaukee County District Attorney’s Of‐
fice.
On August 10, 2012, Robles petitioned the Milwaukee
County Circuit Court to commence a John Doe proceeding to
investigate alleged campaign‐finance violations. The petition,
anticipating that sensitive documents would be sought and
collected, requested a secrecy order. On August 23, the chief
judge of the circuit court assigned and forwarded the John
Doe petition to Reserve Circuit Court Judge Barbara Kluka.
No. 17‐1790 5
On September 5, Judge Kluka was appointed by the Chief Jus‐
tice of Wisconsin to preside over the John Doe proceeding in
Milwaukee County, a step that was necessary because she
was a reserve judge. Judge Kluka authorized the commence‐
ment of the proceeding and entered the requested secrecy or‐
der. In July and August of 2013, the investigation expanded
into Columbia, Iowa, Dodge, and Dane counties, leading to
the Chief Justice’s appointment of Schmitz as special prosecu‐
tor for the entire investigation.
While presiding over the John Doe proceedings, Judge
Kluka issued search warrants for electronic records of Mac‐
Iver and other advocacy groups. MacIver alleges that in the
end the investigators seized nearly five years’ worth of its
stored electronic communications. The secrecy orders had
their intended effect: MacIver was not notified when the war‐
rants were executed.
The recipients of the subpoenas, however, obviously knew
that something was afoot. Some of them filed motions to
quash their subpoenas in October 2013. Because of a conflict
of interest (unspecified), Judge Kluka recused herself from the
proceedings, which were reassigned to Judge Gregory Peter‐
son. On January 10, 2014, Judge Peterson granted the motions
to quash. He concluded that the targets had done nothing
wrong, as Wisconsin law did not prohibit coordination be‐
tween campaign committees and outside groups when the
purpose of such coordination was to finance issue advocacy.
Eventually this issue reached the Wisconsin Supreme Court,
which upheld Judge Peterson’s decision on July 16, 2015. The
court ordered that the John Doe proceedings be closed and
6 No. 17‐1790
that the defendants “return all property seized in the investi‐
gation … and permanently destroy all copies of information
and other materials obtained through the investigation.”
On December 2, 2015, the Wisconsin Supreme Court refor‐
mulated the portion of its ruling pertaining to the disposition
of the seized materials. The modified order required Schmitz
to retrieve all original documents relating to the John Doe pro‐
ceeding and file them with the Clerk of the Wisconsin Su‐
preme Court. All other copies had to be destroyed, but the
copies on file with the Clerk would remain “in the event that
the investigation would be allowed to proceed at some future
date” or “for use in related civil proceedings … .” The court
ordered that this file‐and‐destroy process be completed by
November 2, 2016.
C
MacIver filed the present action on August 1, 2016, on be‐
half of a putative class of plaintiffs whose information was
seized in the John Doe proceeding. MacIver alleges that the
defendants “sought, obtained, and executed” search warrants
for electronic communications without notice in violation of
the SCA. Under MacIver’s theory, the John Doe proceeding that
issued the search warrants was not a “court of competent ju‐
risdiction” under the SCA, thus making the lack of notice a
statutory violation. In addition to damages, MacIver seeks de‐
claratory relief and an injunction (1) prohibiting the defend‐
ants from obtaining any new records or disclosing the records
they have, and (2) requiring the defendants to provide Mac‐
Iver with copies of all seized records.
No. 17‐1790 7
In fact, the defendants have represented to this court that
they do not have custody of any of the documents. The Wis‐
consin Supreme Court has the originals under seal, and the
district court has copies, also under seal and out of their con‐
trol. The latter documents were delivered to the district court
because the defendants had worried that the Wisconsin Su‐
preme Court’s file‐and‐destroy order would hamper their
ability to defend themselves. The district court allowed the
defendants to file copies of the documents under seal until
further order or its closure of the case.
MacIver later moved for a preliminary injunction, asking
for relief along the same lines of its requested permanent in‐
junction. While MacIver’s motion was pending, the defend‐
ants moved to dismiss. The district court granted the defend‐
ants’ motions. It ruled that MacIver had failed to state a claim
because the search warrants complied with the SCA, and in
the alternative, that the defendants were protected by the
SCA’s good faith defense and qualified or prosecutorial im‐
munity. The court denied MacIver’s motion for a preliminary
injunction and return of the seized materials. This appeal fol‐
lowed.
II
This case turns on the interpretation of the SCA, which is
contained within the Electronic Communications Privacy Act
(“ECPA”). The ECPA has three titles, two of which are rele‐
vant to this appeal. Title I, often referred to as the “Wiretap
Act,” prohibits the unauthorized, nonconsensual interception
of “wire, oral, or electronic communications” by government
agencies and private parties. See 18 U.S.C. §§ 2510–22. Title
II—the SCA—governs the privacy of stored internet commu‐
nications. See id. §§ 2701–12.
8 No. 17‐1790
A
The SCA places limits on both the government’s ability to
compel disclosure of electronic information and on internet
service providers’ ability voluntarily to disclose information
to the government. The present litigation focuses solely on the
compelled disclosure of electronic information. The SCA’s
provisions on this topic are complex, but for present purposes
it is enough to say that a search warrant is required under cer‐
tain circumstances, see id. § 2703, and that a warrant was nec‐
essary for the searches in our case.
The question is thus whether the challenged search war‐
rants were valid for purposes of the SCA. To comply with the
statute, a warrant must be issued “using the procedures de‐
scribed in the Federal Rules of Criminal Procedure (or, in the
case of a State court, issued using State warrant procedures)
by a court of competent jurisdiction.” See id. § 2703(a), (b)(1)(A)
(emphasis added). The statute specifies what kind of court it
has in mind, as follows:
(3) the term “court of competent jurisdiction” in‐
cludes—
(A) any district court of the United States (includ‐
ing a magistrate judge of such a court) or any
United States court of appeals that—
(i) has jurisdiction over the offense being in‐
vestigated;
(ii) is in or for a district in which the provider
of a wire or electronic communication ser‐
vice is located or in which the wire or elec‐
tronic communications, records, or other in‐
formation are stored; or
No. 17‐1790 9
(iii) is acting on a request for foreign assis‐
tance pursuant to section 3512 of this title; or
(B) a court of general criminal jurisdiction of a State
authorized by the law of that State to issue search
warrants[.]
18 U.S.C. § 2711. MacIver alleges that the warrants issued in
this case were not issued by a “court of competent jurisdic‐
tion,” or even by a “court” at all, rendering the underlying
searches unlawful by the terms of the SCA.
The SCA does not require perfection from the officials
who implement it. Instead, it provides that “good faith reli‐
ance on … a court warrant or order … is a complete defense
to any civil or criminal action brought under this chapter or
any other law.” Id. § 2707(e)(1). We have addressed sec‐
tion 2707(e) only once before, in McCready v. eBay, Inc., 453
F.3d 882 (7th Cir. 2006). There we noted that “[g]ood faith re‐
liance on a subpoena is a complete defense to actions brought
under the ECPA and SCA.” Id. at 892. We applied an objective
test, noting that nothing in the subpoena at issue gave “any
indication of irregularity sufficient to put [the defendant] on
notice that the subpoena was ‘phony.’” Id.
B
In order to decide whether the defendants were entitled to
the good‐faith defense under the SCA, we must dip a bit into
the merits of each side’s arguments. We first outline MacIver’s
position, and then that of the defendants. If the statute can be
read objectively to support the actions the defendants took,
then they are entitled to the defense, even if other readings
are also possible.
10 No. 17‐1790
1
MacIver opens with an important concession: it admits
that the search warrants issued by Judge Kluka were valid as
a matter of Wisconsin law. See Cummings, 199 Wis. 2d at 738
(holding that “a John Doe judge … enjoys those powers that
are conferred to all judges by statute”); Wis. Stat. § 968.375
(2010), amended by 2013 Wis. Act 167 (eff. Mar. 29, 2014). Mac‐
Iver must therefore show why state‐law compliance is not
good enough for the SCA.
In undertaking this task, it starts by looking back to the
ECPA, the SCA’s parent statute. The ECPA, MacIver says, dis‐
tinguishes in a number of places between a “court” and a
“judge.” Title I of the ECPA (known as the Wiretap Act) au‐
thorizes a “State court judge of competent jurisdiction” to is‐
sue an order “authorizing or approving the interception of
wire, oral, or electronic communications,” 18 U.S.C. § 2516(2)
(emphasis added). The Wiretap Act further defines a “Judge
of competent jurisdiction” to include “a judge of any court of
general criminal jurisdiction of a State who is authorized by a
statute of that State to enter orders authorizing interceptions
of wire, oral, or electronic communications.” Id. § 2510(9)(b)
(emphasis added). In contrast, in the SCA, which is Title II of
the ECPA, the statute uses the term “court.” The SCA thus
empowers a “court of competent jurisdiction” to do certain
things, 18 U.S.C. § 2703(a), (b)(1)(A) (emphasis added). Mac‐
Iver deduces from the different choice of terms in the Wiretap
Act and the SCA the conclusion that Congress meant to dif‐
ferentiate between “courts” and “judges.”
This is a reasonable argument. “[I]t is a general principle
of statutory construction that when ‘Congress includes par‐
No. 17‐1790 11
ticular language in one section of a statute but omits it in an‐
other section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate in‐
clusion or exclusion.’” Barnhart v. Sigmon Coal Co., 534 U.S.
438, 452 (2002) (quoting Russello v. United States, 464 U.S. 16,
23 (1983)). As applied to our case, MacIver says this principle
requires the conclusion that Congress has excluded for SCA
purposes some warrants that are admittedly lawful under
state law.
MacIver also points to some parts of Wisconsin law that
buttress its position. The John Doe statute in effect at the time
of the defendants’ investigation also distinguished between a
“judge” and a “court.” For example, the statute dictated that
a “judge” would convene an investigation and subpoena and
examine witnesses, Wis. Stat. § 968.26(1) (2009), amended by
2015 Wis. Act 64 (eff. Oct. 25, 2015), and that the extent of such
an examination was within the “judge’s” discretion. Id.
§ 968.26(3). In contrast, only a “court” could compel a person
to testify or produce evidence. Id. Wisconsin courts have also
repeatedly noted this distinction. See, e.g., In re John Doe Pro‐
ceeding, 260 Wis. 2d 653, 685 n.15 (2003) (“A John Doe judge
does not, however, enjoy the statutory powers of a court.”);
State v. Washington, 83 Wis. 2d 808, 828 (1978) (“A John Doe
judge is not the equivalent of a court, and a John Doe proceed‐
ing is not a proceeding in a court of record.”); State v. Schober,
167 Wis. 2d 371, 379–80 (Ct. App. 1992) (citations omitted)
(“[T]he John Doe tribunal is not acting as a ‘court,’ but as a
‘judge.’ There is an express distinction between a judge and a
court. An order issued by a judge in a John Doe proceeding is
not a judgment or order of a circuit court.”); Gavcus v.
Maroney, 127 Wis. 2d 69, 70 (Ct. App. 1985) (“A [John Doe]
proceeding is not a court proceeding.”).
12 No. 17‐1790
Finally, MacIver argues that the John Doe proceeding
must be “a court of general criminal jurisdiction” to satisfy the
SCA. See 18 U.S.C. § 2711(3)(B). We find it hard to equate a
John Doe proceeding with either a court or a judge, but we
take MacIver to mean that each John Doe proceeding must
exercise general criminal jurisdiction for its warrants to com‐
ply with the SCA. If this is the requirement, it plainly is not
met. Wisconsin strictly limits the scope of a John Doe proceed‐
ing “to the subject matter of the complaint upon which the
John Doe is commenced.” Washington, 83 Wis. 2d at 822. “The
John Doe judge has no authority to ferret out crime wherever
he or she thinks it might exist,” but instead must “act with a
view toward issuing a complaint or determining that no crime
has occurred.” Id. at 822–23. The Wisconsin courts deem this
jurisdictional restraint “crucial to the fair administration of a
John Doe proceeding,” because “[w]ithout it, John Doe pro‐
ceedings could easily devolve into judicially sanctioned gen‐
eral warrants.” Peterson, 363 Wis. 2d at 72. Nonetheless, the
fact that each John Doe proceeding does not exercise general
criminal jurisdiction is not the end of the matter, because the
definition of “court of competent jurisdiction” in section
2711(3)(B) uses the word “includes” before giving examples.
18 U.S.C. § 2711(3). The defendants argue that “includes” im‐
plies “‘comprehends’ or ‘embraces,’” Helvering v. Morgan’s,
Inc., 293 U.S. 121, 125 (1934), thus making the list of “compe‐
tent” courts provided in section 2711(3) illustrative rather
than exhaustive. See In re Krehl, 86 F.3d 737, 741 (7th Cir.
1996). But “the term ‘includes’ may sometimes be taken as
synonymous with ‘means,’” Helvering, 293 U.S. at 125. Per‐
haps this is enough to render section 2711 amenable to a read‐
ing under which the SCA requires a warrant to be issued by a
“court of general criminal jurisdiction,” not by a judge acting
No. 17‐1790 13
within her authority to conduct an ancillary proceeding such
as the John Doe investigation.
2
While MacIver’s arguments therefore must be taken seri‐
ously, so must those of the defendants, who offer a tenable
response to MacIver’s position. Defendants contend that the
SCA does not contemplate a hard distinction between “judge”
and “court.” Instead, it requires only a search warrant that is
valid under state law. Comparisons to the Wiretap Act, they
argue, are misplaced. First, the Wiretap Act calls for “a ‘super’
search warrant rather than the usual warrant required by the
SCA.” Orin S. Kerr, A User’s Guide to the Stored Communica‐
tions Act, and A Legislator’s Guide to Amending It, 72 GEO.
WASH. L. REV. 1208, 1232 (2004). It uses the term “judge of
competent jurisdiction” as part of a statutory scheme that in‐
cludes extensive descriptions of additional findings necessary
to support a wiretap warrant. 18 U.S.C. § 2518. The defend‐
ants also point out that in the case of federal courts, the term
“court of competent jurisdiction” is defined to include “a
magistrate judge of such a court.” 18 U.S.C. § 2711(3)(A).
Viewed in this light, they say, the phrase “court of competent
jurisdiction” is a simple shorthand to ensure that warrants are
issued through a judicial proceeding that is itself valid under
state law, not through some ad hoc administrative process.
From this perspective, they continue, it just confuses the
analysis to say that a John Doe judge is not a court. Of course
not—judges often exercise the power of the court (especially
at the trial level, where only one judge sits), but that does not
mean that they are themselves a court. (We are long past the
era of “l’État c’est Moi.”) Courts in the abstract do not issue
warrants; the judges presiding over the particular criminal
14 No. 17‐1790
cases do so. In the federal system, Federal Rule of Criminal
Procedure 41(b) authorizes a magistrate judge or a judge of a
state court of record to issue search warrants. As noted above,
no one disputes that Wisconsin law authorized Judge Kluka
to issue the warrants at issue here. Wis. Stat. § 968.375(4)
(2010), amended by 2013 Wis. Act 167 (eff. Mar. 29, 2014) (“a
judge may issue a warrant requiring a person who provides
electronic communication service or remote computing ser‐
vice to disclose within a reasonable time that is established in
the warrant any of the following [items]”). In both the state
systems and the federal system, there is a distinction between
the investigatory phase of a proceeding and the adjudicative
phase. Federal grand juries, for example, are convened only
when “the court” so orders, and they operate under the su‐
pervision of the district court. See FED. R. CRIM. P. 6. Yet no
one would say that the district court judge assigned to the
case cannot, for instance, rule on a motion to disclose certain
grand jury materials under Rule 6(e)(3)(E) because the judge
somehow is not “the court.”
Viewed through this lens, all Congress was doing in the
SCA (a different statute, enacted at a different time from the
Wiretap Act) was recognizing that the judge exercising the
power of the court must be authorized by state law to wield
that particular power. Rather than delve into the law of all 50
states, Congress used the short‐hand term “court of compe‐
tent jurisdiction.” The fact that the Wiretap Act uses the word
“judge” does not mean that state courts for SCA purposes
have an extra burden to show why a given “judge” is acting
for a particular “court.” In fact, Wisconsin has provided an
assurance that the John Doe judges are doing exactly that. It
did so when it amended the statute after the decision in State
ex rel. Jackson v. Coffey, 18 Wis. 2d 529 (1963), to eliminate the
No. 17‐1790 15
possibility that John Doe powers would be exercised by a
magistrate. Id. at 534–35. See also State ex rel. Newspapers, Inc.
v. Cir. Ct. for Milwaukee Cnty., 65 Wis. 2d 66, 70–71 (1974) (rec‐
ognizing the amendment). Although it is true that a John Doe
judge does not exercise all powers of the court, nothing in the
SCA says that this is necessary. The key question is whether
state law confers on the John Doe judge the power to issue
search warrants. As MacIver concedes, the answer to that
question is yes.
The defendants also push back against MacIver’s accusa‐
tion that the John Doe judge is some sort of free‐floating agent
unconstrained by any external authority. That is not the case.
The John Doe judge here was appointed by the chief judge of
the Milwaukee County Circuit Court (with the concurrence of
the state’s chief justice). The Wisconsin Supreme Court held
in In re John Doe Proceeding that the John Doe judge’s decisions
are “subject to review pursuant to a petition for a supervisory
writ,” 260 Wis. 2d at 680, even though they cannot be re‐
viewed on direct appeal. This parallels the way in which one
would obtain review of a matter arising before a grand jury.
Typically such an issue would not qualify for a direct appeal,
but in extraordinary circumstances a writ of mandamus
would be proper. See United States v. Sinovel Wind Grp. Co.,
Ltd., 794 F.3d 787, 790–94 (7th Cir. 2015). The John Doe judge
is appointed to exercise the powers of the circuit court that
asked for the appointment. At the time, the statute did not
prohibit “reserve” judges from serving as a John Doe judge,
and so the fact that Judges Kluka and Peterson may have had
that status is immaterial. Just as senior judges in the federal
system exercise all powers of a judge of their court, reserve
judges in Wisconsin are entitled either to perform specified
duties, Wis. Stat. § 753.075(1)(b), or, if they have “permanent”
16 No. 17‐1790
reserve status, the “same duties as other judges.” Id.
§ 753.075(1)(a). Issuing a warrant is one of those powers. And
a John Doe judge’s power to issue a search warrant flows not
from her appointment as a John Doe judge or from Wis. Stat.
§ 968.26, which at the time made no mention of search war‐
rants, but from “those powers that are conferred to all judges
by statute.” State v. Cummings, 199 Wis. 2d at 738.
The defendants end with the observation that the John
Doe statute in effect at the time of the investigation of Mac‐
Iver’s activities authorized the Chief Justice of Wisconsin to
confer the power to supervise the investigation on any state‐
court judge authorized to sit on a Wisconsin Circuit Court.
The Chief Justice exercised that power when she authorized
first Judge Kluka and then Judge Peterson to oversee the John
Doe investigation. Pursuant to those authorizations, they
were acting in their official capacity as judges of the Milwau‐
kee County Circuit Court. Thus, the defendants conclude, the
judges’ actions fell within the scope contemplated by the SCA.
Naturally the judges personally were not “court[s] of general
criminal jurisdiction,” but they were authorized to, and did,
exercise the powers of such a court.
As this brief discussion shows, both positions have some
merit. That is the backdrop against which we must assess the
availability of the statutory good‐faith defense, to which we
now turn.
III
MacIver begins with a procedural challenge to the de‐
fense: it urges that it is improper to consider an affirmative
defense at the pleading stage. That is often true. Generally,
“[a]ffirmative defenses do not justify dismissal under Rule
No. 17‐1790 17
12(b)(6).” Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003).
Nevertheless, a plaintiff may “plead[] itself out of court” by
“admit[ting] all the ingredients of an impenetrable defense”
in a complaint. Xechem, Inc. v. Bristol‐Myers Squibb Co., 372
F.3d 899, 901 (7th Cir. 2004). Here, MacIver’s Amended Com‐
plaint explicitly states that it “does not challenge the basis or
even the scope” of the underlying John Doe proceeding, in‐
cluding the search warrants issued by Judge Kluka. MacIver
asserts only that such warrants were improperly executed
without notice to MacIver because a John Doe proceeding is
not a “court of competent jurisdiction” under the SCA. Be‐
cause MacIver’s challenge rests purely on legal interpretation,
we may resolve the good‐faith defense at the motion‐to‐dis‐
miss stage, as we have done before. See McCready, 453 F.3d at
891–92.
It cannot be the case that the good‐faith defense is availa‐
ble only to those defendants who can show that they are enti‐
tled to judgment on the merits. The whole idea of such a de‐
fense rests on the idea that the investigating agents might
make a mistake, but that they should not be liable if they can
show that they proceeded in good faith. The same thinking
lies behind the Supreme Court’s decision in United States v.
Leon, 468 U.S. 897 (1984), in which the Court held that the
Fourth Amendment’s exclusionary rule should not be applied
to bar evidence obtained in good faith by officers acting in
reasonable reliance on a warrant. The Court used an objective
standard of reasonableness, id. at 922–23, and we think that
the same approach is proper here.
From that perspective, we conclude that the defendants
behaved in an objectively reasonable manner when they fol‐
lowed the prescribed procedures of the John Doe proceeding,
18 No. 17‐1790
sought warrants from state circuit judges who had been duly
appointed to preside over the proceeding, and conducted
their investigation into possible violations of the state’s elec‐
tion laws. The fact that the legal ground shifted under them
during a period of considerable upheaval in election law, see
McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 (2014) (in‐
validating statutory aggregate limits on how much money a
donor may contribute to political candidates), and Wisconsin
Right To Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) (strik‐
ing down state laws that banned corporations from making
certain contributions and addressing independent political
messages), is neither here nor there. The prosecutors had no
way of predicting these changes in state law and cannot be
found to have been acting in bad faith because the legal land‐
scape later changed. We note as well that the system ulti‐
mately vindicated MacIver’s position: Judge Peterson
quashed the subpoenas, the Wisconsin Supreme Court af‐
firmed him, and the investigation was shut down. Prosecu‐
tors should not be vulnerable to lawsuits every time they lose
in court.
IV
In addition to raising their statutory good‐faith defense,
the defendants have argued that they are entitled to qualified
immunity. “Qualified immunity shields federal and state of‐
ficials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitu‐
tional right, and (2) that the right was ‘clearly established’ at
the time of the challenged conduct.” Ashcroft v. al‐Kidd, 563
U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). Because of the “dearth of case law interpreting the
SCA’s ‘court of competent jurisdiction’ language,” the district
No. 17‐1790 19
court thought that qualified immunity was also available for
them. There is no serious dispute that MacIver’s interpreta‐
tion of the SCA was not “clearly established” at the time de‐
fendants’ warrants were issued.
MacIver responds that as a matter of law, qualified im‐
munity does not apply to statutory claims arising from the
SCA. That is not, however, the direction in which our deci‐
sions have gone in cases under the Wiretap Act. We have con‐
sistently recognized qualified immunity for alleged Wiretap
Act violations. See Narducci v. Moore, 572 F.3d 313, 323 (7th
Cir. 2009); Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998).
The Sixth and Eleventh Circuits agree. See Blake v. Wright, 179
F.3d 1003, 1012 (6th Cir. 1999); Tapley v. Collins, 211 F.3d 1210,
1216 (11th Cir. 2000). MacIver relies heavily upon the D.C.
Circuit’s decision in Berry v. Funk, 146 F.3d 1003 (D.C. Cir.
1998), which went the other way and held that qualified im‐
munity did not apply to the Wiretap Act. Id. at 1013–14. We
see no persuasive reason, however, to distinguish the SCA
from the Wiretap Act or to depart from circuit precedent. To
the extent it makes any difference (and that is unclear), we
hold that qualified immunity is available to SCA defendants
in general, and these defendants in particular.
V
Finally, we turn to two residual issues: MacIver’s request
for injunctive relief and its motion under Federal Rule of
Criminal Procedure 41(g). MacIver seeks two kinds of equita‐
ble relief: (1) an injunction barring the defendants from seiz‐
ing records in the future or publicly disclosing records they
have obtained, and (2) an order requiring the defendants con‐
fidentially to provide MacIver (and putative class members)
20 No. 17‐1790
with copies of seized materials. Neither of these requests has
any merit at this point.
As to MacIver’s first request for an injunction to prevent
future searches and seizures, “[w]e cannot reach the merits of
[MacIver’s] claim for prospective relief if ‘the possibility of
any future injury [is] too remote.’” Capeheart v. Terrell, 695
F.3d 681, 684 (7th Cir. 2012) (second alteration in original)
(quoting Piggee v. Carl Sandburg College, 464 F.3d 667, 673 (7th
Cir. 2006)). Although MacIver’s Amended Complaint is re‐
plete with allegations of past wrongs, it fails to allege a “real
and immediate threat” of future prosecution and seizures suf‐
ficient to issue injunctive relief. See O’Shea v. Littleton, 414 U.S.
488, 496 (1974). Indeed, it does the opposite, insofar as it
acknowledges that (1) the Board was dissolved; (2) the John
Doe proceedings relevant to this lawsuit were closed; (3) the
Wisconsin Supreme Court repudiated the legal theory under‐
lying defendants’ investigation; and (4) the John Doe statute
was amended.
Our previous decision in O’Keefe v. Chisholm, 769 F.3d 936
(7th Cir. 2014), resolves MacIver’s second request, for produc‐
tion of the materials seized in the past. “The state court en‐
tered a comprehensive order regulating disclosure of docu‐
ments in the John Doe proceeding. … Wisconsin’s judiciary
must decide whether particular documents gathered in the in‐
vestigation should be disclosed.” Id. at 943. There is no basis
to enjoin the defendants when the Wisconsin Supreme Court
has already ordered exactly what they want.
The district court denied MacIver’s effort to obtain the re‐
turn of its property using Federal Rule of Criminal Procedure
41(g). Recall that the district court permitted the defendants
to file copies of electronic materials obtained by John Doe
No. 17‐1790 21
search warrants with the Clerk of the Western District of Wis‐
consin, and that those copies are under seal and unavailable
to anyone without the court’s permission. We approved a
similar arrangement in Archer v. Chisholm, 870 F.3d 603, 621
(7th Cir. 2017). Rule 41(g) motions are independent equitable
actions, at least for evidence seized by federal officials, see
United States v. Sims, 376 F.3d 705, 707–08 (7th Cir. 2004), but
it is not the proper tool here. The Wisconsin Supreme Court
controls these materials. If MacIver would like copies of its
documents, it must take its request to the Wisconsin Supreme
Court.
* * *
Because all defendants are entitled to the SCA’s good‐faith
defense and qualified immunity, we AFFIRM the judgment of
the district court.