Appel et al v. LaSalle County State's Attorney Felony Enforcement Unit et al

Filing 102

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 9/4/2019. Before the Court are the motion to dismiss 80 filed by Defendants Edward Jauch, City of Spring Valley, Kevin Sangston, Rebecca Hanson, and Timothy Green; t he motion to dismiss 82 filed by Defendants LaSalle County State's Attorney, LaSalle County State's Attorney Felony Enforcement Unit, LaSalle County Board, Jeff Gaither, Daniel Gillette, and Derek Ben ning; the motion to dismiss 84 filed by Defendants City of Peru, Matthew Heiden, and Douglas Bernabei; the motion to dismiss 85 filed by Defendant Brian Towne; the motion to dismiss 86 filed by Defendants City of Ottawa, Robert Nilles, Brent Roalson, Mark Hoster; and the motion to dismiss 89 filed by Defendants City of LaSalle, Mark Manicki, Robert Uranich, and Brian Zebron. For the reasons set forth below, the motions to dismiss [80; 82; 84; 85; 86; 89] are granted. Plaintiffs are given until October 2, 2019 to file a second amended complaint consistent with this opinion. Status hearing set for October 15, 2019 at 9:00 a.m. Mailed notice(cdh, )

Case: 1:18-cv-02439 Document #: 102 Filed: 09/04/19 Page 1 of 24 PageID #:578

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL APPEL, et al.,
Plaintiffs,
v.
LASALLE COUNTY STATE’S
ATTORNEY FELONY ENFORCEMENT
UNIT, et al.,
Defendants.

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Case No. 18-cv-2439
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Before the Court are the motion to dismiss [80] filed by Defendants Edward Jauch, City of
Spring Valley, Kevin Sangston, Rebecca Hanson, and Timothy Green; the motion to dismiss [82]
filed by Defendants LaSalle County State’s Attorney, LaSalle County State’s Attorney Felony
Enforcement Unit, LaSalle County Board, Jeff Gaither, Daniel Gillette, and Derek Benning; the
motion to dismiss [84] filed by Defendants City of Peru, Matthew Heiden, and Douglas Bernabei;
the motion to dismiss [85] filed by Defendant Brian Towne; the motion to dismiss [86] filed by
Defendants City of Ottawa, Robert Nilles, Brent Roalson, Mark Hoster; and the motion to dismiss
[89] filed by Defendants City of LaSalle, Mark Manicki, Robert Uranich, and Brian Zebron. For
the reasons set forth below, the motions to dismiss [80; 82; 84; 85; 86; 89] are granted. Plaintiffs
are given until October 2, 2019 to file a second amended complaint consistent with this opinion.
Status hearing set for October 15, 2019 at 9:00 a.m.

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I.

Background
According to Plaintiffs’ operative complaint, the LaSalle County State’s Attorney Felony

Enforcement Unit (“SAFE”) is an unofficial, unlawful police department set up by the LaSalle
County State’s Attorney’s Office and the LaSalle County States Attorney, Brian Towne. [78, at ¶
138.] Plaintiffs allege that the sole purpose of SAFE was to generate income through the Illinois
Controlled Substance Act (720 ILCS 570), The Cannabis Control Act (20 ILCS 550), and the Drug
Asset Forfeiture Procedure Act (725 ILCS 150). [Id. at ¶ 139.] Under the Drug Asset Forfeiture
Procedure Act, the arresting law enforcement agency receives 65% of the value of the property or
cash seized. [Id. at ¶ 140.] The prosecuting State’s Attorney’s Office receives 12.5% of the value
of the seized property. [Id.]
SAFE profiled out-of-state drivers by pulling over vehicles with non-Illinois license plates
for minor traffic violations to provide justification for the traffic stop. [Id. at ¶ 142.] Once the
vehicles were pulled over, a canine unit from one of the named Defendant Police Departments
would arrive on scene and the canine would perform a free air sniff to provide justification to
search the vehicle and its inhabitants. [Id. at ¶ 144.]
Spring Valley Police Chief Kevin Sangston managed, supervised, and directed the
activities of the Spring Valley Police Department. [Id. at ¶ 184.] Chief Sangston approved the
use of canine units to provide free air sniffs for traffic stops made by SAFE. [Id. at ¶ 185.] Chief
Sangston entered into an agreement with Towne whereby the Spring Valley Police Department
would work with SAFE by providing canine units for SAFE traffic stops, and, in return, the City
of Spring Valley would receive funds from the seized funds obtained by SAFE. [Id. at ¶ 186.]
Furthermore, according to the amended complaint, the City of Spring Valley entered into an
agreement with Towne to organize and operate SAFE. [Id. at ¶ 189.] The City of Spring Valley

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concealed the fact that SAFE was receiving seized funds as the arresting police agency by allowing
SAFE and LaSalle County States Attorney Towne to deposit funds received from reimbursement
from the illegally seized funds into a Spring Valley bank account. [Id. at ¶ 190.] The City of
Spring Valley approved withdrawals from the City of Spring Valley bank accounts for use by
SAFE and LaSalle County States Attorney Towne. [Id. at ¶ 190.]
City of LaSalle Police Chief Robert Uranich managed, supervised, and directed the
activities of the LaSalle Police Department. [Id. at ¶ 198.] Chief Uranich approved the use of
canine units to provide free air sniffs for traffic stops made by SAFE. [Id. at ¶ 199.] Chief Uranich
entered into an agreement with Towne whereby the LaSalle Police Department would work with
SAFE by providing canine units for SAFE traffic stops, and in return, the City of LaSalle Police
Department would receive funds from the seized funds obtained by SAFE. [Id. at ¶ 200.]
According to Plaintiffs, Chief Uranich knew or should have known that the SAFE was not an
official police agency and that any and all of the traffic stops performed by SAFE were without
probable cause, without valid warrants, and lacked any official authority. [Id. at ¶ 201.] The
LaSalle Police Department is a department within and under the control of the City of LaSalle.
[Id. at ¶ 192.] The City of LaSalle controls the budget and staffing for the LaSalle Police
Department. [Id. at ¶ 193.] The City of LaSalle, through the LaSalle Police Department, provided
canine support for the illegal traffic stops made by SAFE. [Id. at ¶ 194.] The City of LaSalle,
through the LaSalle Police Department, provided office space, interview rooms, evidence storage,
and lock up facilities for SAFE. [Id. at ¶ 195.] The City of LaSalle and the LaSalle Police
Department profited from the illegal activities of SAFE through receipt of funds approved by
Towne. [Id. at ¶ 196.] Plaintiffs make similar allegations with respect to the City of Ottawa, the
City of Peru, and their respective police chiefs.

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Plaintiffs contend that each Defendant acted as a principal in the organization and aided
and abetted the activities of SAFE “through: (a) actual participation with the interruption of
interstate commerce; (b) conducting searches without probable cause or warrants; (c) seizing
property of the Plaintiffs; (d) extortion committed against the Plaintiffs; (e) false imprisonment of
the Plaintiffs; (f) investment of the proceeds of the seized funds; and (g) benefited from the income
knowing that the income was derived through SAFE.” [Id. at ¶ 298.]
Plaintiff Michael Appel is a resident of Pennsylvania. [Id. at ¶ 5.] On January 15, 2015,
Mr. Appel was driving westbound on Interstate 80 in LaSalle County, Illinois when he was stopped
by SAFE. [Id. at ¶ 6.] Immediately after being stopped for a supposed minor traffic violation,
Ottawa Police Department Canine Officer Robert Nilles arrived at the traffic stop and conducted
a drug sniff of the car. [Id. at ¶ 7.] After the drug sniff was completed, SAFE Officers Daniel
Gillette and Jeff Gaither conducted a search of the car. [Id. at ¶ 8.] SAFE seized $51,400.00 in
U.S. currency. [Id. at ¶ 9.] Plaintiffs contend that this search violated Mr. Appel’s Fourth
Amendment rights and was an illegal search. [Id. at ¶ 10.] Plaintiffs further contend that the
seizure of currency was a violation of Mr. Appel’s Fourth and Fourteenth Amendment rights and
that the search and seizure was conducted as part of the Defendants’ operation of an unlawful
vigilante police force that had no jurisdiction or right to stop Mr. Appel. [Id. at ¶¶ 11-12.]
According to Plaintiffs, the search and seizure was part of the Defendants’ conspiracy to seize
assets under the Illinois Asset Forfeiture Law and fund activities that benefitted the Defendants.
[Id.] Plaintiffs all make similar allegations.
On June 3, 2015, the Illinois Appellate Court held that—by creating the SAFE unit—“the
State’s Attorney created yet another branch of law enforcement, the conduct of which falls well
outside the duties contemplated” by Illinois law. People v. Ringland, 33 N.E.3d 1020, 1029 (Ill.

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App. Ct. 2015). That decision was affirmed by the Illinois Supreme Court. People v. Ringland,
89 N.E.3d 735 (Ill. 2017). Plaintiffs bring claims under the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, Section 1983 claims, and various state-laws in connection with the
searches and seizures conducted by SAFE and other Defendants.1
II.

Legal Standard
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief

can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such
that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be
sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra
Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A
pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause
of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations
in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S.
at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all

1

Plaintiffs bring a cause of action titled “Civil Rights Common Allegations” (Count V). In that Count,
Plaintiffs allege that Defendants violated their Fifth, Eighth and Fourteenth Amendment rights guaranteed
under the Constitution of the United States. [78, at ¶ 381.] It is unclear to the Court what type of claim
Plaintiffs seek to bring in Count V. To the extent that Plaintiffs seek to bring claims under different legal
theories, Rule 10(b) requires “distinct claims to be separated into counts.” Frederiksen v. City of Lockport,
384 F.3d 437, 438 (7th Cir. 2004). Should Plaintiffs file a second amended complaint, Plaintiffs are directed
to follow Rule 10(b)’s requirements.

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of Plaintiffs’ well-pleaded factual allegations and draws all reasonable inferences in Plaintiffs’
favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).
III.

Discussion
A.

Non-Suable Entities

Defendants LaSalle County Board, LaSalle County State’s Attorney’s Office and LaSalle
County State’s Attorney Felony Enforcement Unit (together, the “LaSalle Defendants”) move for
dismissal of Plaintiffs’ claims against them because they are not suable entities. Courts in this
district have concluded that a County Board and a State’s Attorney’s Office are not suable entities
because they do not “enjoy separate legal existence independent of the County.” Reese v. Chicago
Police Dept., 602 F. Supp. 441, 443 (N.D. Ill. 1984), citing Mayes v. Elrod, 470 F. Supp. 1188,
1192 (N.D. Ill. 1979); see also, Fabiszak v. Will County Bd. Of Com’rs, 1994 WL 698509 *2 (N.D.
Ill. 1994) (“In Illinois, a County Board of Commissioners is not separate from the county, rather,
its powers are co-extensive with the county[.]”). The SAFE Unit was formed by the LaSalle
County State’s Attorney’s Office and LaSalle County States Attorney, Brian Towne. [78, at
¶ 138.] Thus—according to the LaSalle Defendants—the SAFE Unit did not have legal existence
independent of LaSalle County and it therefore also is not a suable entity.
Plaintiffs fail entirely to respond to any of these legal or factual assertions, which are
supported by citation to relevant authorities. “A party’s failure to respond to arguments the
opposing party makes in a motion to dismiss operates as a waiver or forfeiture of the claim and an
abandonment of any argument against dismissing the claim.” Jones v. Connors, 2012 WL
4361500, at *7 (N.D. Ill. Sept. 20, 2012) (collecting cases); see also Cnty. of McHenry v. Ins. Co.
of the West, 438 F.3d 813, 818 (7th Cir. 2006) (“When presented with a motion to dismiss, the
non-moving party must proffer some legal basis to support his cause of action.”) (quoting Stransky

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v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir.1995)) (internal quotation marks omitted);
Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir.1999) (“Our system of justice
is adversarial, and our judges are busy people. If they are given plausible reasons for dismissing
a complaint, they are not going to do the plaintiff’s research and try to discover whether there
might be something to say against the defendants’ reasoning. An unresponsive response is no
response. In effect the plaintiff was defaulted for refusing to respond to the motion to dismiss.
And rightly so.”). Accordingly, the Court dismisses the claims against the LaSalle County Board,
the LaSalle County State’s Attorney’s Office and the SAFE Unit without leave to replead.
B.

Sovereign Immunity

Although there are no allegations against the LaSalle County State’s Attorney in the
amended complaint, it still is listed as a party to the suit and has not been voluntarily dismissed by
Plaintiffs. The LaSalle County State’s Attorney’s Office moves to dismiss Plaintiffs’ claims
against it on sovereign immunity grounds. The Eleventh Amendment to our Constitution states:
“The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “Eleventh Amendment
issues arise whenever a private citizen files a federal lawsuit against a state, a state agency, or a
state official—although the effect of the amendment differs depending on the category of
defendant.” Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir. 1992) (citation omitted). “Whether a
particular official is the legal equivalent of the State itself is a question of that State’s law, and the
Illinois Supreme Court decided in 1990 that State’s Attorneys are state officials.” Garcia v. City
of Chicago, Ill., 24 F.3d 966, 969 (7th Cir. 1994) (internal citations omitted).2 Accordingly, the
2

Because Plaintiffs allege that Defendant Towne was not acting in his official capacity, the Court does not
dismiss Plaintiffs’ claims against Defendant Towne on sovereign immunity grounds. Cf. Garcia v. City of

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Court dismisses Plaintiffs’ claims against the LaSalle County State’s Attorney on sovereign
immunity grounds without leave to replead.
C.

Absolute Immunity

Defendant Towne moves for dismissal of Plaintiffs’ claims against him on absolute
immunity grounds. To the extent that Plaintiffs are suing Defendant Towne “in his official
capacity as a state officer, damages are barred by the Eleventh Amendment.” Parker v. Lyons,
757 F.3d 701, 706 (7th Cir. 2014) (citing Nat’l. Cas. Co. v. McFatridge, 604 F.3d 335, 342 (7th
Cir. 2010); Garcia v. City of Chi., 24 F.3d 966, 969 (7th Cir. 1994)). To the extent that Plaintiffs
are suing Defendant Towne in his individual capacity for conduct related to prosecutorial activity,
“damages are barred by absolute prosecutorial immunity.” Id. (citing Fields v. Wharrie, 672 F.3d
505, 516 (7th Cir. 2012); Thomas v. City of Peoria, 580 F.3d 633, 638-39 (7th Cir. 2009)).
Although Plaintiffs fail to identify any reason for concluding that absolute immunity should not
apply in this case, the Supreme Court has “made clear that absolute immunity may not apply when
a prosecutor is not acting as ‘an officer of the court,’ but is instead engaged in other tasks, say,
investigative or administrative tasks.” Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009). The
Court is skeptical that Defendant Towne is entitled to absolute immunity for the alleged
misconduct at issue in this case. However, because the Court is dismissing Plaintiffs’ federal
claims for the reasons discussed below, the Court defers ruling definitively on whether Defendant
Towne is entitled to absolute immunity until the issue properly subjected to adversarial briefing.

Chicago, Ill., 24 F.3d 966, 969 (7th Cir. 1994) (applying sovereign immunity to official capacity claims
against State’s Attorney).

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D.

Rooker-Feldman Doctrine

Defendants also contend that Plaintiffs’ federal claims are barred by the Rooker-Feldman
doctrine.3 The Rooker-Feldman doctrine “prevents federal district and appellate courts from
deciding cases by litigants complaining of injuries from state-court judgments rendered before the
federal suit commenced and seeking federal review and reversal of those judgments.” Weinhaus
v. Cohen, 773 F. App’x 314, 316 (7th Cir. 2019) (citing Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005)).
Plaintiffs in this case—at least to some extent—appear to be complaining of injuries from
state-court judgments rendered before this case commenced. Indeed, the primary relief sought by
Plaintiffs makes clear that is the case. Specifically, Plaintiffs request the following relief: (1) the
return of the actual amount seized, (2) the return of the amount of any and all fines imposed and
paid by Plaintiffs, (3) treble damages, (4) attorney’s fees, and (5) any and all other damages this
Court deems appropriate. To the extent that Plaintiffs’ claims seek review of the relevant statecourt forfeiture proceedings, the Court concludes that Plaintiffs’ claims are barred by the RookerFeldman doctrine. Warden v. Nw. Bank of Rockford, 2003 WL 22872118, at *2 (N.D. Ill. Dec. 3,
2003) (holding claims were barred under the Rooker-Feldman doctrine where reviewing claims
effectively would reopen “state court forfeiture proceeding”). Still, to the extent that the Court can
construe Plaintiffs’ claims in a manner that does not require the Court effectively to review the
decision of the state-court civil forfeiture proceedings, the Court will do so.

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Although Defendants do not focus on the argument, the argument still was raised (albeit in a cursory
manner) and supported by relevant authority. In any event, the Court may sua sponte consider the
Rooker-Feldman doctrine. Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 646 (7th Cir. 2011)
(“The district court correctly considered the Rooker–Feldman doctrine sua sponte[.]” (citation omitted)).

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E.

Statute of Limitations

Defendants collectively move to dismiss Plaintiffs’ claims under Section 1983 and the
Racketeer Influenced and Corrupt Organizations (“RICO”) Act as time-barred. Dismissal based
on a statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c)(1). Nevertheless,
“dismissal is appropriate when the plaintiff pleads himself out of court by alleging facts sufficient
to establish the complaint’s tardiness.” Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559
F.3d 671, 674-75 (7th Cir. 2009); see also United States v. Lewis, 411 F.3d 838, 842 (7th Cir.
2005) (explaining that dismissal is appropriate “where, as here, the allegations of the complaint
itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint
plainly reveals that an action is untimely under the governing statute of limitations”).
The parties agree that there is a two-year statute of limitations for claims brought under
Section 1983. Licari v. City of Chicago, 298 F.3d 664, 667-68 (7th Cir. 2002) (“A two year statute
of limitations applies to section 1983 claims in Illinois.” (citing Wilson v. Giesen, 956 F.2d 738,
741 (7th Cir. 1992))). The parties also agree that there is a four-year statute of limitations for
RICO claims. Cherry v. Duke Realty Investments, Inc., 611 F. App’x 362 (7th Cir. 2015) (“The
statute of limitations on his RICO claim was four years[.]” (citing Cancer Found., 559 F.3d at
674)). However, Plaintiffs invoke the doctrines of equitable tolling and equitable estoppel in an
effort to save certain of their claims.
State-law equitable tolling principles apply to Plaintiffs’ Section 1983 claims. Fayoade v.
Spratte, 284 F. App’x 345, 347 (7th Cir. 2008). Under the Illinois doctrine of equitable tolling, a
plaintiff may “‘sue after the statute of limitations has expired if through no fault or lack of diligence
on his part he was unable to sue before.’” Id. (quoting Savory v. Lyons, 469 F.3d 667, 673 (7th
Cir. 2006)). With respect to Plaintiffs’ RICO claims, although the federal common-law doctrine

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of equitable tolling is “broader,” it “still requires that a plaintiff act with diligence.” Id. (citing
Shropshear v. Corp. Counsel of City of Chicago, 275 F.3d 593, 595-96 (7th Cir.2001)). Under
both Illinois and federal law, “[e]quitable tolling typically applies in cases where the plaintiff,
despite reasonable efforts, cannot discover information essential to determining that he has a
claim.” Id.
Plaintiffs contend that they did not have the information necessary to determine that they
had claims until the Supreme Court of Illinois issued its decision in People v. Ringland, which
held that SAFE lacked authority to conduct the traffic stops and searches at issue. That argument
was considered and rejected in Judge St. Eve’s well-reasoned decision in Larson v. LaSalle Cty.,
2018 WL 1156204, at *4 (N.D. Ill. Mar. 5, 2018). As noted by the court in Larson, whether the
“alleged constitutional injuries are actionable does not depend on whether SAFE officers were
patrolling I-80 legally under state law at the time.” Id. at 5. “[T]he violation of police regulations
or even a state law is completely immaterial as to the question of whether a violation of the federal
constitution has been established.” Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir.
2006). The Court therefore rejects Plaintiffs’ contention that information provided by the Ringland
decision was necessary to determine that they had constitutional claims.
The Court reaches the same conclusion with respect to Plaintiffs’ claims under the RICO
Act. Plaintiffs fail entirely to explain how any information provided in the Ringland decision was
necessary for them to determine that they had RICO claims against Defendants. In fact, Plaintiffs
amended complaint and opposition brief make clear that their RICO claims are based on the same
alleged misconduct as their constitutional claims. [See, e.g., 78, at ¶ 338 (“The Count I Defendants
agreed to and did conduct and participate in the conduct of SAFE enterprise affairs through a
pattern of racketeering activity and for the unlawful purpose of intentionally defrauding Plaintiffs

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through illegal searches and seizures when they did not have probable cause to conduct the traffic
stops and searches and seizures of Plaintiffs’ property while Plaintiffs were traveling interstate on
Interstate 80.”).]
To the extent that Plaintiffs contend that the Ringland decision constituted a change in law
that affected their claims, the Seventh Circuit has “previously rejected the argument that a change
in law alone warrants equitable tolling.” Fayoade v. Spratte, 284 F. App’x 345, 347 (7th Cir.
2008) (citing Lo v. Endicott, 506 F.3d 572, 576 (7th Cir. 2007); see also Franklin v. Summers, 41
F.3d 1510 (7th Cir. 1994) (“Changes in the law do not revive expired claims.”).
To the extent that Plaintiffs contend that they did not realize that the challenged conduct
was unlawful until challenged in Ringland, the Seventh Circuit also has rejected the argument that
a claim is tolled until the plaintiff becomes aware of its unlawful nature. Chakonas v. City of
Chicago, 42 F.3d 1132, 1136 (7th Cir. 1994) (“A plaintiff who is aware of his injury is not allowed
to wait until the time that he becomes aware of its unlawful nature.” (citing Teumer v. General
Motors Corp., 34 F.3d 542, 550 (7th Cir. 1994)); Cancer Found., 559 F.3d at 674 (“A plaintiff
does not need to know that his injury is actionable to trigger the statute of limitations—the focus
is on the discovery of the harm itself, not the discovery of the elements that make up a claim.”
(addressing RICO claim)); see also Rotella v. Wood, 528 U.S. 549, 555-559 (2000) (rejecting a
“pattern discovery rule” and concluding that the statute of limitations on RICO claims begins
running even if the plaintiff has not yet “discovered the pattern of predicate acts”). Thus, Plaintiffs
are not entitled to equitable tolling.
Plaintiffs also argue that their claims are timely under the doctrine of equitable estoppel.
However, Plaintiffs fail entirely to address the applicable legal standard for invoking equitable
estoppel. “It is not the obligation of this court to research and construct the legal arguments open

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to the parties, especially when they are represented by counsel.” United States v. Kinzer, 13 F.
App’x 399, 402 (7th Cir. 2001) (quoting Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986))
(internal quotation marks omitted). In any event, the Court concludes that the doctrine of equitable
estoppel does not save Plaintiffs’ federal claims. “In contrast to equitable tolling, federal courts
do not borrow [the] state equitable estoppel doctrine when they borrow a state statute of
limitations; federal courts apply the federal doctrine of equitable estoppel.” Smith v. City of
Chicago Heights, 951 F.2d 834, 841 (7th Cir. 1992); see also Cook v. City of Chicago, 2014 WL
4493813, at *3 (N.D. Ill. Sept. 9, 2014) (“Federal equitable estoppel law controls [Section 1983
claims] even though defendants rely on an Illinois statute of limitations.” (citation omitted)). Thus,
federal law on equitable estoppel applies to Plaintiffs’ federal claims, including Plaintiffs’ Section
1983 claims.

Under federal law, “[t]he traditional elements of equitable estoppel are:

‘(1) misrepresentation by the party against whom estoppel is asserted; (2) reasonable reliance on
that misrepresentation by the party asserting estoppel; and (3) detriment to the party asserting
estoppel.’” Garlovsky v. United States, 211 F. Supp. 3d 1084, 1090 (N.D. Ill. 2016) (quoting
LaBonte v. United States, 233 F.3d 1049, 1053 (7th Cir. 2000)).
“Equitable estoppel * * * ‘comes into play if the defendant takes active steps to prevent the
plaintiff from suing in time, as by promising not to plead the statute of limitations.’” Rosado v.
Gonzalez, 832 F.3d 714, 716 (7th Cir. 2016) (quoting Shropshear v. Corp. Counsel of Chicago,
275 F.3d 593, 595 (7th Cir. 2001)). These “active steps” may include, among other things, “hiding
evidence.” Shanoff v. Illinois Dept. of Human Services, 258 F.3d 696, 702 (7th Cir. 2001).
“Equitable estoppel presupposes ‘efforts by the defendant, above and beyond the wrongdoing upon
which the plaintiff’s claim is founded, to prevent, by fraud or deception, the plaintiff from suing
in time.’” Rosado, 832 F.3d at 716 (citation omitted). According to Plaintiffs—because Towne

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and the LaSalle County State’s Attorney continued to argue in the Illinois Appellate Court and the
Illinois Supreme Court that the traffic stops were constitutional and were valid, they now are
equitably estopped from arguing that Plaintiffs should have been on notice. [91, at 9.] However,
taking a legal position contrary to the interests of Plaintiffs cannot be the foundation for invoking
equitable estoppel. See Singletary v. Continental Ill. Nat’l Bank and Trust Co of Chi., 9 F.3d 1236,
1241 (7th Cir. 1993) (“It is not the denial of liability or a refusal to cooperate in making the
plaintiff’s case that extends the statute of limitations, but affirmative efforts to delay the plaintiff’s
bringing suit.” (internal citations omitted)). Accordingly, equitable estoppel also does not save
Plaintiffs’ federal claims.
Finally, Plaintiffs argue that—to the extent that Plaintiffs seek to bring claims against
Defendant Towne—the claims should be deemed timely under 735 ILCS 5/13-202.1(a), which
“permits victims of Class 1 felonies to sue for damages at any time if the perpetrator is convicted.”
Hampton v. Rita, 545 F. App’x 533, 534 (7th Cir. 2013) (citing 735 ILCS 5/13-202.1). This
argument fails in numerous respects. To begin, Defendant Towne was not even charged with any
Class 1 felony. Although Plaintiffs contend that the LaSalle County State’s Attorney could have
brought such charges against Towne, Plaintiffs have not identified any basis for concluded that the
statute extends to all cases in which Class 1 felony charges could have been brought. In fact, the
plain language of the statute requires that there be a conviction of a Class 1 felony. 735 ILCS
5/13-202.1(a)(2). Regardless, the Seventh Circuit has concluded that 735 ILCS 5/13-202.1 does
not supplant the generally applicable two-year statute of limitations period for Section 1983
claims. Hampton, 545 F. App’x at 535.
Finally, Plaintiff Kathleen Brand argues that her claims are timely under
735 ILCS 5/13-211, which tolls the statute of limitations for claims of minors. Defendants

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concede that because of Kathleen Brand’s status as a minor, her claims under § 1983 are timely by
virtue of 735 ILCS 5/13-211. See Wallace v. City of Chi., 440 F.3d 421, 425 (7th Cir. 2006).
However, Defendants argue that Ms. Brand’s RICO claims remain time-barred, as
735 ILCS 5/13-211 does not apply to such federal claims. [93, at 2-3.] Plaintiffs have conceded
the argument by failing entirely to respond.
In sum, to the extent that Plaintiffs other than Ms. Brand bring Section 1983 claims based
on conduct occurring more than two years before Plaintiffs filed suit, Plaintiffs’ Section 1983
claims are dismissed with prejudice. To the extent that Plaintiffs’ RICO claims are based on
conduct occurring more than four years before Plaintiffs filed suit, Plaintiffs RICO claims are
dismissed with prejudice.
F.

Section 1983 Claims

Defendants also move for dismissal of Plaintiffs’ Section 1983 claims for failure to state a
claim. Section 1983 allows an individual to sue any person who, under the color of state law,
violates that individual’s constitutional rights. 42 U.S.C. § 1983. In order to state a claim under
Section 1983, Plaintiffs must allege facts sufficient to establish (1) that “conduct complained of
was committed by a person acting under color of state law,” and (2) that such “conduct “deprived
a person of rights, privileges, or immunities secured by the Constitution or laws of the United
States.” Bradley v. Vill. of Univ. Park, Illinois, 929 F.3d 875, 900 (7th Cir. 2019) (quoting Parratt
v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds) (internal quotation marks
omitted). Although Defendants do not appear to be disputing the first element—at least for the

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purposes of the pending motions to dismiss—Defendants argue that Plaintiffs fail sufficiently to
allege the second element.
Plaintiffs argue that the challenged searches and seizures violated their Fourth Amendment
rights. However, that argument is premised on the assumption that the initial traffic stops were
unconstitutional. Although Plaintiffs have shown that the traffic stops were improper under
Illinois law, the violation of “a state law is completely immaterial as to the question of whether a
violation of the federal constitution has been established.” Thompson v. City of Chicago, 472 F.3d
444, 454 (7th Cir. 2006) (citation omitted). Plaintiffs do assert that the initial traffic stops were
not supported by probable cause—which would be a basis for a Fourth Amendment claim—but
Plaintiffs fail to identify any factual allegations supporting those assertions. Plaintiffs’ conclusory
allegations that “all traffic stops, searches, and seizures lacked probable cause and were not
supported by warrant” [see, e.g., 78 at P. 294] are insufficient to survive a motion to dismiss.
Glanz v. Illinois, 2016 WL 2344587, at *3 (N.D. Ill. May 4, 2016). Plaintiffs therefore have not
alleged sufficient facts to support a plausible claim that the initial traffic stops were
unconstitutional. Thus, to the extent that Plaintiffs’ Section 1983 claims are based on the initial
traffic stops, the Court grants Defendants’ motions to dismiss Plaintiffs’ Section 1983 claims with
leave to replead.
To the extent that Plaintiffs’ Section 1983 claims are based on the use of dog sniffs during
the traffic stops, Plaintiffs Section 1983 claims also fail. The Supreme Court has concluded that
the use of a dog sniff on the exterior of a car lawfully seized for a traffic violation “does not rise
to the level of a constitutionally cognizable infringement.”4 Ill. v. Caballes, 543 U.S. 405, 409

4

The Court notes that a delay caused by the dog sniff “may impact the determination of whether a seizure
is reasonable.” United States v. Taylor, 596 F.3d 373, 377 (7th Cir. 2010). However, Plaintiffs do not
identify any allegations suggesting that there were any such delays here.

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(2005). Plaintiffs have alleged no more here. To the extent that Plaintiffs contend that the dog
sniffs were improper because the traffic stops were merely a pretext, the Supreme Court has
repeatedly rejected that argument. United States v. Taylor, 596 F.3d 373, 377 (7th Cir. 2010)
(“[Defendant’s] argument is that the traffic stop was a pretext for a drug investigation, and that the
primary objective is relevant in determining the reasonableness of a search and seizure. That
argument has been repeatedly rejected by the Supreme Court.”). Plaintiffs fail to identify any
purported Fourth Amendment violation that is not premised on their contention that the initial
traffic stops were improper. Accordingly, the Court grants Defendants’ motions to dismiss
Plaintiffs’ Section 1983 claims with leave to replead.
Finally, to the extent that Plaintiffs seek to bring Section 1983 claims under Monell v. Dep’t
of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978), Plaintiffs’ claims fail. “Under
Monell, a local governmental entity is liable for damages only if a plaintiff can show that the
alleged constitutional violation occurred as a result of an official policy, custom, or practice.”
Clemons v. Dart, 2016 WL 890697, at *9 (N.D. Ill. Mar. 9, 2016). Thus, Monell “requires a
plaintiff suing a municipality or comparable entity to demonstrate that the entity’s official policy,
widespread custom, or action by an official with policy-making authority was the ‘moving force’
behind his constitutional injury.” Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016).
Defendants moved for dismissal of Plaintiffs’ Monell claims against it for failure sufficiently to
allege a policy, custom, or practice. Plaintiffs fail entirely to respond to the argument. In any
event, the Court agrees that Plaintiffs have not alleged that a constitutional violation occurred as a
result of an official policy, custom, or practice, as Plaintiffs do not even allege an underlying
constitutional violation. Petty v. City of Chicago, 754 F.3d 416, 424 (7th Cir. 2014); see also King
v. East St. Louis School Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007) (“It is well established that

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there can be no municipal liability based on an official policy under Monell if the policy did not
result in a violation of [a plaintiff’s] constitutional rights.”). Thus, to the extent that Plaintiffs seek
to bring claims under Monell, Plaintiffs’ claims are dismissed with leave to replead.
G.

RICO Claims

Defendants also move for dismissal of Plaintiffs’ RICO claims, raising numerous
arguments as to why such claims are substantively deficient. First, to the extent that Plaintiffs seek
to bring claims against municipalities, Defendants contend that Plaintiffs’ RICO claims fail
because “ a municipality cannot be held liable under RICO.” Curtis v. Wilks, 704 F. Supp. 2d 771,
786 (N.D. Ill. 2010) (collecting cases); see also Rogers v. City of New York, 359 F. App’x 201 (2d
Cir. 2009) (“[T]here is no municipal liability under RICO[.]”). Municipalities cannot be held liable
under RICO because they are incapable of forming the requisite mens rea. Call v. Watts, 142 F.3d
432 (6th Cir. 1998) (“Counties are not persons under RICO because they lack ‘the capability to
form the mens rea requisite to the commission of the predicate acts.’” (quoting Smallwood v.
Jefferson Cnty. Government, 743 F. Supp. 502, 504 (W.D. Ky. 1990)); see also Massey v. City of
Oklahoma City, 643 F. Supp. 81, 85 (W.D. Okla. 1986) (“[T]he City itself is incapable of forming
the mens rea or criminal intent necessary to perform an act of racketeering[.]”). Furthermore,
RICO does not apply to municipalities because “RICO’s mandatory treble damages provision is
punitive and * * * Congress did not intend to impose punitive damages on innocent taxpayers.”
Curtis, 704 F. Supp. 2d at 786. Plaintiffs fail entirely to respond these arguments and therefore
have waived any argument in response. Jones v. Connors, 2012 WL 4361500, at *7 (N.D. Ill.
Sept. 20, 2012) (“A party’s failure to respond to arguments the opposing party makes in a motion
to dismiss operates as a waiver or forfeiture of the claim and an abandonment of any argument
against dismissing the claim.”) (collecting cases). Thus, to the extent that Plaintiffs seek to bring

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RICO claims against municipalities (i.e., the City of Spring Valley, the City of Ottowa, the City
of Peru, the City of LaSalle, and LaSalle County), Plaintiffs’ RICO claims are dismissed.
Second, Plaintiffs fail sufficiently to allege a pattern of racketeering activity. “A RICO
claim is a unique cause of action that does not concern all instances of wrongdoing, but focuses on
the limited purpose of ‘eradicating organized, long-term, habitual criminal activity.’” Kaye v.
D’Amato, 357 F. App’x 706, 710 (7th Cir. 2009) (quoting Gamboa v. Velez, 457 F.3d 703, 705
(7th Cir. 2006)). “A RICO plaintiff must prove four elements: (1) conduct; (2) of an enterprise;
(3) through a pattern; (4) of racketeering activity.” Id. (citation omitted). “A ‘pattern of
racketeering activity’ requires at least two predicate acts within a ten-year period.” Id. at 710-11
(citing 18 U.S.C. § 1961(5)). “Establishing a pattern also requires a showing that ‘the racketeering
predicates are related, and that they amount to or pose a threat of continued criminal activity.’” Id.
(quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989)). Defendants argue that
Plaintiffs’ allegations relating to a pattern of racketeering activity fail on both fronts.
Plaintiffs assert that they sufficiently have alleged the requisite number of predicate acts
by alleging that Defendants (1) violated the civil rights of Plaintiffs every time Defendants
conducted a search, and (2) committed extortion under the Hobbs Act each and every time
Defendants seized assets.5 With respect to the first category, as discussed above, Plaintiffs have
not alleged sufficient facts to establish that the initial traffic stops were unconstitutional or
otherwise violated federal law. Furthermore, “violations of civil rights and constitutional law * * *
are not predicate acts under RICO.” Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990).

5

Plaintiffs also assert that Defendants interfered with interstate commerce every time Defendants stopped
a vehicle. However, Plaintiffs fail to explain how that alleged conduct fits within their RICO claims. And
Because interference with interstate commerce is an element of a Hobbs Act claim—as discussed below—
the Court addresses that argument in the discussion of the Hobbs Act below.

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That leaves the question of whether Plaintiffs sufficiently allege that Defendants violated
the Hobbs Act.6 Claims under the Hobbs Act have two essential elements: (1) interference with
commerce, and (2) extortion. United States v. Schultz, 2017 WL 2080348, at *3 (N.D. Ill. May
15, 2017) (quoting Stirone v. United States, 361 U.S. 212, 218 (1960)). For the purposes of this
opinion, the Court assumes that Plaintiffs sufficiently allege the first element—leaving only the
extortion element. Extortion is “the obtaining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
18 U.S.C. § 1951(b)(2). Plaintiffs assert that “[e]ach and every time the Defendants seized assets,
they committed extortion under the Hobbs Act.” [91, at 13.] However, Plaintiffs do not allege
any seizure of assets beyond those that were subject to state-court forfeiture proceedings. To the
extent that Plaintiffs seek to challenge the seizure of assets pursuant to state-court forfeiture
proceedings, such claims are barred by the Rooker-Feldman doctrine discussed above. Weinhaus,
773 F. App’x at 316 (The Rooker-Feldman doctrine “prevents federal district and appellate courts
from deciding cases by litigants complaining of injuries from state-court judgments rendered
before the federal suit commenced and seeking federal review and reversal of those judgments.”
(citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
In any event, the Court concludes that such conduct cannot serve as the basis for
establishing extortion under the Hobbs Act. “At common law, extortion was a property offense
committed by a public official who took any money or thing of value that was not due to him under

6

Plaintiffs also assert that Defendants interfered with interstate commerce by means including “robbery,
extortion, and engaging in monetary transactions derived from unlawful activity.” [91, at 10.] Although
Defendants argued that Plaintiffs fail to allege facts establishing that any Defendants committed robbery
[81, at 8-9], Plaintiffs fail entirely to explain how their allegations establish that such predicate acts
occurred. Regardless, the Court concludes that Plaintiffs’ have not sufficiently alleged that any Defendant
committed robbery, which only occurs when “the use of force or threat of force causes the victim to part
with possession or custody of property against his will.” People v. Hay, 362 Ill. App. 3d 459, 466 (Ill. App.
Ct. 2005).

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the pretense that he was entitled to such property by virtue of his office.”7 Wilkie v. Robbins, 551
U.S. 537, 564 (2007) (citation and internal quotation marks omitted). “Extortion by [a] public
official was the rough equivalent of what we would now describe as ‘taking a bribe.’” Evans v.
United States, 504 U.S. 255, 260 (1992). While “public officials were not immune from charges
of extortion at common law, the crime of extortion focused on the harm of public corruption, by
the sale of public favors for private gain, not on the harm caused by overzealous efforts to obtain
property on behalf of the Government.” Wilkie, 551 U.S. at 564. Thus, in Wilkie, the Supreme
Court concluded that “it is not reasonable to assume that the Hobbs Act (let alone RICO) was
intended to expose all federal employees * * * to extortion charges whenever they stretch in trying
to enforce Government property claims.” Wilkie v. Robbins, 551 U.S. 537, 566 (2007). With
respect to the challenged seizures, Plaintiffs allege no more than overzealous efforts to obtain
property on behalf of the state.8 And the Court sees no reason to reach a different conclusion with
respect to state employees. Accordingly, the Court dismisses Plaintiffs’ RICO claims with leave
to replead.
H.

Qualified Immunity

Finally, the individual Defendants argue that Plaintiffs’ federal claims against them should
be dismissed on qualified immunity grounds.

“The qualified immunity doctrine provides

7

Certain Defendants assert that establishing extortion under the Hobbs Act requires a “quid pro quo.”
Although the Supreme Court has required such a showing for challenging campaign contributions under
the Hobbs Act, the Supreme Court “expressly limited its holding to campaign contributions.” Medley v.
United States, 1 F.3d 1244 (7th Cir. 1993) (discussing McCormick v. United States, 500 U.S. 257, 274
(1991)). Defendants have not cited any authority supporting the extension of that holding.

8

For the most part, Plaintiffs allege that Defendants seized money on behalf of the state. For example,
Plaintiffs allege that seized money paid for trips out of state to attend continuing education classes for the
members of SAFE and to procure equipment for SAFE. [78, at ¶ 148.] However, with respect to the
officers actually conducting the searches and seizures (i.e., the officers Plaintiffs contend committed
extortion), Plaintiffs do not sufficiently allege that they took money to benefit themselves personally.

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defendants immunity from suit, not just a defense to liability.” Sebesta v. Davis, 878 F.3d 226,
233 (7th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Though it is an
affirmative defense for pleading purposes, the plaintiff carries the burden of showing that
defendants are not immune.” Id. “Qualified 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).
“To decide whether government officials are entitled to qualified immunity, courts ask two
questions: first, whether the facts or allegations, taken in the light most favorable to plaintiffs,
constitute a violation of a statutory or constitutional right, and second, whether that right was
clearly established at the time of the alleged violation.” Dibble v. Quinn, 793 F.3d 803, 807 (7th
Cir. 2015).
“To be ‘clearly established,’ a right must be defined so clearly that every reasonable official
would have understood that what he was doing violated that right.” Id. (citing Reichle, 566 U.S.
at 664). “Although ‘clearly established’ does not require a case directly on point, ‘existing
precedent must have placed the statutory or constitutional question beyond debate.’” Id. (quoting
Ashcroft v. al-Kidd, 563 U.S. 731 (2011)). “The right allegedly violated must be established ‘not
as a broad general proposition’ but in a ‘particularized’ sense so that the ‘contours’ of the right are
clear to a reasonable official.” Id. (quoting Reichle, 566 U.S. at 665). Plaintiffs’ response to
Defendants’ qualified immunity argument focuses only on Plaintiffs’ Section 1983 claims.
Plaintiffs argue that Defendants violated the Fourth Amendment by conducting “unauthorized
traffic stops” that they “knew or should have known * * * were unauthorized, as they lacked any
official jurisdiction, and that SAFE was not a valid Police Force.” [91, at 14.] Even if Plaintiffs
could establish a constitutional violation by alleging that Defendants acted beyond their authority

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under state law—which they cannot for the reasons addressed above—the individual Defendants
still would be entitled to qualified immunity on any Section 1983 claims based on that misconduct,
as Plaintiffs have not shown that it was clearly established that Defendants’ conduct was
unauthorized. To the contrary, Plaintiffs themselves allege that “[n]either the Plaintiffs nor the
Circuit Court of the Thirteenth Judicial Circuit of LaSalle County knew or had reason to know that
SAFE was not a legal law enforcement entity.” [78, at ¶ 150.] Given this allegation and the
complex legal analysis in Ringland, the Court concludes that—to the extent that Plaintiffs’ Section
1983 claims are based on SAFE being unauthorized—the individual Defendants would be entitled
to qualified immunity on their Section 1983 claims and the Court therefore dismisses such claims
against the individual Defendants without leave to replead. The Court does the same with respect
to Plaintiffs’ RICO claims, to the extent that such claims are dependent on the fact that the initial
traffic stops were unauthorized under state law.
However, as noted above, the Court is giving Plaintiffs the opportunity to file a second
amended complaint sufficiently alleging claims independent of whether the actions of SAFE were
authorized, to the extent that such claims are not otherwise barred. Without knowing what
additional facts Plaintiffs may allege, the Court is unable to determine whether the individual
Defendants categorically are entitled to qualified immunity.
I.

State Law Claims

Because the Court is dismissing Plaintiffs’ federal claims, the Court also dismisses
Plaintiffs’ state law claims without prejudice. “The usual practice in this circuit is for district
courts to ‘dismiss without prejudice state supplemental claims whenever all federal claims have
been dismissed prior to trial.’” Hagan v. Quinn, 867 F.3d 816, 830 (7th Cir. 2017) (quoting Groce
v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999)); see also Al’s Service Center v. BP Products

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North America, Inc., 599 F.3d 720, 727 (7th Cir. 2010) (“When all federal claims in a suit in federal
court are dismissed before trial, the presumption is that the court will relinquish federal jurisdiction
over any supplemental state-law claims, which the plaintiff can then prosecute in state court.”
(citations omitted)); Curry v. Advocate Bethany Hosp., 204 F. App’x 553, 558 (7th Cir. 2006)
(“The district court properly dismissed the pendant state-law tort claims without prejudice because
the federal claims were dismissed at screening.”) (citing 28 U.S.C. § 1367(c); East-Miller v. Lake
County Highway Dep’t, 421 F.3d 558, 564-65 (7th Cir. 2005)). If Plaintiffs file a second amended
complaint sufficiently alleging federal claims, the Court then will consider any arguments in favor
of dismissing Plaintiffs’ state-law claims.
IV.

Conclusion
For the reasons set forth above, the motions to dismiss [80; 82; 84; 85; 86; 89] are granted.

Plaintiffs are given until October 2, 2019 to file a second amended complaint consistent with this
opinion. Status hearing set for October 15, 2019 at 9:00 a.m.

Date: September 4, 2019
____________________________
Robert M. Dow, Jr.
United States District Judge

24