Seventh Circuit Review

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Volume 13 (Fall 2017)

Introduction (contains Table of Contents, Masthead, About the Seventh Circuit Review, and Preface)

Constitutional Law

Crediting the Incredible: How the Seventh Circuit Uses Procedure to Mask Its Improper Perfunctory Grant of Deference to Chicago’s Law Enforcement Officers

Ava B. Gehringer
13 Seventh Circuit Rev. 1 (2017) [Full Article] [Audio Synopsis]

Abstract: In January 2017, the Department of Justice released a Report after investigating the Chicago Police Department and its in-house accountability agencies tasked with detecting and deterring police misconduct, concluding that there is reasonable cause to believe that the CPD routinely engages in unlawful patterns and practices in violation of the Fourth Amendment. Moreover, the DOJ found that attempts by the CPD’s agencies to hold officers accountable for misconduct have been frustrated by the “code of silence” and “pervasive cover-up culture” among CPD officers. As a result, the burden of deterring police misconduct has effectively fallen on the victims themselves. Yet the primary tools at those victims’ disposal, 42 U.S.C. §1983 and the Illinois common law intentional tort of malicious prosecution, have yet to translate into an effective system for detecting and deterring misconduct.

Judges have traditionally followed three basic restrictive rules on motions for summary judgment: the evidence is to be viewed in the light most favorable to the nonmovant, the credibility of witnesses is not to be evaluated, and contradicting evidence is not to be weighed. Nonetheless, federal judges have read the Supreme Court’s 1986 “Summary Judgment Trilogy” as a directive to be more receptive to summary judgment in ways that are more striking than anything articulated in those three cases. As a result, judges have taken the post-Trilogy liberalization of the summary judgment standard as an invitation to assess and weigh evidence as much as a juror would.

The Supreme Court’s recent decision in Tolan v. Cotton, however, evidences the Court’s renewed emphasis on the proper role of a federal judge at the summary judgment stages of litigation, especially in civil rights cases involving purely testimonial evidence. Failing to heed the Court’s warnings in Tolan, the Seventh Circuit majority in Colbert v. City of Chicago neglected to adhere to the fundamental principles of a motion for summary judgment by implicitly resolving credibility disputes in favor of the moving party—Chicago Police Officers. This article concludes by applauding Judge David Hamilton, who penned a dissent in which he criticized the rose-tinted glasses with which the majority read the defendant officers’ barebones denial of all responsibility and properly framed the case as one which raises larger issues about how courts should address claims of law enforcement misconduct.

Between Scylla and Charybdis: Ezell v. City of Chicago (Ezell II) and How the Seventh Circuit Continues to Narrow Chicago’s Constitutional Path Forward on Gun Control

Christopher Gerardi
13 Seventh Circuit Rev. 51 (2017) [Full Article] [Audio Synopsis]

Abstract: It has been less than a decade since the Supreme Court reset the landscape of gun rights by recognizing, for the first time, that the Second Amendment protects an individual’s right to keep and bear arms unconnected with any militia service. The Court was notably silent as to which standard of review lower courts should apply to the inevitable wave of Second Amendment challenges to federal, state, and local gun control legislation. In the absence of guidance from the Supreme Court, the majority of the Federal Circuit Courts of Appeals have adopted a two-step means-end test similar in many respects to the framework used in the First Amendment context. Under this test, the courts must first determine whether the conduct being regulated falls within the scope of the Second Amendment, and if so they must evaluate the law at issue under some heightened form of means-end scrutiny.

The Seventh Circuit formally adopted this two-step means-end test in Ezell v. City of Chicago (Ezell I), where it invalidated several Chicago gun control ordinances that effectively banned the construction of all live firing ranges within the city limits. The firing-range ordinances were enacted after the Supreme Court had struck down the City’s total ban on handgun ownership. After the three-judge panel in Ezell I struck down the firing-range ban, the City enacted a new scheme of zoning and distancing requirements for live ranges as well as a ban on minors under 18 entering the ranges.

In Ezell v. City of Chicago (Ezell II), the same majority from Ezell I again invalidated the Chicago firing-range ordinances under the two-step test. In both Ezell I & II, the majority concluded that the right to live-range training to maintain proficiency in firearms was closely connected to the core right of self-defense protected under the Second Amendment, thus the court applied a heightened standard of review akin to strict scrutiny. This article examines Ezell II in the context of the evolving Second Amendment jurisprudence in the Federal Courts, and argues that (1) the heightened level of review akin to strict scrutiny was inappropriate based on the nature of the conduct at issue, and (2) regulations like the firing-range ordinance should be viewed as akin to “time, place, and manner” restrictions and subjected to at most intermediate scrutiny review. With its decision in Ezell II, the Seventh Circuit has left Chicago with a narrow constitutional path forward as the City seeks to enact meaningful legislation to combat a gun violence epidemic. The time will soon come for the en banc court to clarify the Seventh Circuit’s approach, so that reasonable gun control measures are not inappropriately invalidated.

Baby Got (a Broken) Back, But No Remedy: The Seventh Circuit’s Refusal to Provide a Remedy for Eighth Amendment Violations

Timothy Lavino
13 Seventh Circuit Rev. 99 (2017) [Full Article] [Audio Synopsis]

Abstract: Since 1871, individuals have been able to bring a cause of action against state officials who violate the individual’s constitutional rights. However, it wasn’t until the 1965 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that the U.S. Supreme Court created a cause of action for individuals whose Fourth Amendment rights were violated by federal officials. Since 1965, this cause of action, known as a Bivens action, has been extended to violations of the Fifth and Eighth Amendments.

The Seventh Circuit analyzed an Eighth Amendment Bivens action in Estate of Miller v. Marberry. The case involved a prisoner in the Federal Correctional Complex in Terre Haute, Indiana, who was supposed to be restricted to a lower bunk because he had a brain tumor that caused him to lose feeling in the left half of his body. Regardless of the prisoner’s lower-bunk restriction, he was forced to sleep on a top bunk and fell to the floor twice. The second time he fell, he broke his back and suffered multiple injuries. The Seventh Circuit denied his Bivens claim, finding that he had sued the wrong parties. This holding directly contradicts Seventh Circuit precedent holding that turning a blind eye to a prisoner’s needs can establish deliberate indifference, and that deliberate indifference to a prisoner’s serious medical needs is a violation of the Eighth Amendment. In this comment, I will discuss the evolution of the Bivens action, and discuss why the Seventh Circuit decided this case incorrectly.

Neither Cruel Nor Unusual: An Hour and a Half Delay in Treatment Can Now Amount to Deliberate Indifference

Monica J. Raven
13 Seventh Circuit Rev. 124 (2017) [Full Article] [Audio Synopsis]

Abstract: The Eighth Amendment of the U.S. Constitution proscribes cruel and unusual punishment. To state a cognizable claim, a plaintiff must allege that a prison official or medical professional was deliberately indifferent to his or her objectively serious medical need. In Lewis v. McLean, the Seventh Circuit analyzed whether a nurse and prison official’s hour and a half delay in treatment created a triable issue as to whether they acted with deliberate indifference. The plaintiff alleged that the defendants showed deliberate indifference to his severe back pain by delaying his access to medical care. The defendants, on the other hand, purported that they were not deliberately indifferent, rather, the delay was caused by the plaintiff’s inability to follow their safety commands.

The U.S. District Court for the Western District of Wisconsin granted summary judgment in favor of the defendants, reasoning that a jury could not reasonably find from the evidence that the defendants took longer than was necessary to assess Lewis’s medical issue and get him treatment. The Seventh Circuit vacated the district court’s grant of summary judgment in favor of the defendants, concluding there was sufficient evidence for a reasonable jury to find that the defendants were deliberately indifferent to Lewis’s medical needs.

This Note argues that the Seventh Circuit incorrectly decided Lewis v. McLean because it failed to consider precedent, which requires a plaintiff to place into the record verifying medical evidence that an alleged delay in medical treatment had a detrimental effect. Further, this Note argues that the courts should return to applying the cruel and unusual punishment standard, following the text of the Constitution. Finally, this Note argues that state law medical malpractice claims are best suited for actions against medical professionals.

Civil Procedure

The Cost of Obeying the Law?: The Seventh Circuit Rejects the Bona Fide Error Defense from a Debt Collector Who Followed the Then-Binding Law

Jun Qiu
13 Seventh Circuit Rev. 155 (2017) [Full Article] [Audio Synopsis]

Abstract: It is expected that people should follow the law, which includes the statutes themselves and the judicial rulings interpreting those statutes. However, if the binding judicial interpretation changes, should the parties be liable for their behavior following the old binding judicial interpretation of a federal statute at the time when it was still in effect? Or, should there be any defense that would allow the parties to shield themselves from liability for a good-faith reliance on the old binding judicial interpretation?

In Oliva v. Blatt, Hasenmiller, Leibsker & Moore LLC, a debtor collector, relied on the then-binding judicial interpretation in Newsom to file a debt collection claim against the debtor in the first municipal district. While the case was pending, the Seventh Circuit adopted a new interpretation of the venue provision under the FDCPA in Suesz, resulting in the debt collector’s initial choice of venue being wrong under the new interpretation. The debtor collector voluntarily dismissed the claim against the debtor. However, the debtor brought a suit against the debt collector, alleging that the debt collector’s choice of venue violated the FDCPA. The Seventh Circuit en banc held that Suesz applied retroactively to Oliva; therefore, the debt collector violated the FDCPA’s venue provision. The court further held that the bona fide error defense did not apply to mistakes of law, even if the debt collector relied in good faith on a binding court’s interpretation of the law, which later had been overruled. This Note argues that Suesz should not have been applied retroactively to Oliva, and, even if it applied, the bona fide error defense should have excused the debt collector’s liability.

Stranded at Sea: The Seventh Circuit and the Rule 11 “Safe Harbor” Rule

Daniel Ristau
13 Seventh Circuit Rev. 193 (2017) [Full Article] [Audio Synopsis]

Abstract: When lawyers pursue frivolous claims, they invite sanctions. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that the pleadings and motions they submit are meritorious. Since 1993, attorneys have been required to serve opposing counsel with a motion—to fire a warning shot—when they intend to file for sanctions. This provides attorneys an opportunity to seek “safe harbor” and avoid sanctions by withdrawing or amending actions brought for an improper purpose.

The Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits are unified in demanding strict compliance with the “safe harbor” requirement. The Seventh Circuit, however, has developed precedent that mere “substantial compliance” is sufficient to impose sanctions on an offending party. In Northern Illinois Telecom, Inc. v. PNC Bank, N.A., the Seventh Circuit settled on a flimsy endorsement of its substantial compliance interpretation of Rule 11(c)(2). This note explores why the Seventh Circuit decided not to overturn its controversial precedent and whether the circuit is likely to take the steps to align itself with the bulk of circuits that already demand strict compliance with the Rule 11 “safe harbor” requirement in the future.

Civil Rights

The “Animus” Briefs: Attacks on the Seventh Circuit’s Sound Analysis of Transgender Bathroom Rights in Public Schools

Brennan B. Hutson
13 Seventh Circuit Rev. 222 (2017) [Full Article] [Audio Synopsis]

Abstract: You have probably heard about state legislatures floating the idea of “bathroom laws” that would prohibit transgendered individuals from using the bathroom of their gender identity in public places. Although no state has actually signed such legislation into law, the spirit of those anti-transgender laws has been carried out in smaller governmental entities: public schools. Unlike a hypothetical state law, which would be nearly impossible to enforce without state officials performing inspections of genitals, a school policy is truly enforceable and has real effects.

Ashton Whitaker, a transgender boy in the Kenosha School District of Wisconsin, felt those real effects when his school enforced its unwritten bathroom policy on him and barred him from using the boys’ bathroom. He was granted a preliminary injunction to prevent the school from enforcing its policy, which the school district appealed to the Seventh Circuit. Despite the current political climate that has amplified anti-transgender sentiment, the Seventh Circuit applied existing law in coming to the only plausible conclusion: public schools cannot lawfully prohibit transgender students from using the bathroom in accordance with their gender identity.

The school district filed a petition for writ of certiorari to the Supreme Court, where it was supported by several amicus briefs from various conservative interest groups. Those briefs, which I have dubbed the “animus” briefs, reek of anti-transgender sentiment and fail to even address the Seventh Circuit’s sound legal analysis. This Comment discusses that existing precedent upon which the Seventh Circuit came to its conclusion, and further urges the Supreme Court to do the same if and when it addresses the issue.

Class Actions

Selling the Footlong Short: How Consumers Inch Toward Satisfaction in Costly Food Class Action Litigation

Erica A. Burgos
13 Seventh Circuit Rev. 259 (2017) [Full Article] [Audio Synopsis]

Abstract: Food and beverage class action litigation has increased tremendously over the last five years. While many have ridiculed these lawsuits as ploys to extort money from wealthy food producers, plaintiff consumers maintain that the surge of food litigation suits evidence their growing desire for transparency. Many food-based class actions allege companies are purposefully deceiving consumers with misleading marketing campaigns. Defendants argue that a reasonable consumer should know better than to take their advertising at face value. Even still, defendants are often eager to resolve conflicts without admitting liability and, in turn, rush to settle the matter. Courts are then faced with such issues as class certification or whether to accept or reject a potential settlement. Even more challenging is determining whether a settlement provides a meaningful benefit to the entire class. When courts, however, determine that class members will receive only minor injunctive relief, while class counsel secures grand fee awards, settlements are often denied. Unfortunately, these decisions essentially leave potential plaintiffs without a viable alternative to recovery. Additionally, it allows food producers to continue with misleading marketing practices because consumers cannot hold them accountable.

This Article uses the Seventh Circuit’s opinion in In re Footlong Sandwich Marketing and Sales Practice Litigation as a springboard to discuss the need for sweeping changes to class action litigation as it exists today. This Article will argue that regardless of a settlement’s purported monetary relief, courts should elevate the value of injunctive relief in order to preserve class members’ rights to subsequent action. Additionally, it will advocate for Congress to pass the Fairness in Class Action Litigation Act, thereby eliminating unmeritorious complaints while simultaneously ensuring that class counsel does not receive benefits exorbitantly disproportionate to the class members themselves.

Employment Law

Mirror, Mirror on the Wall, Are they Trainees and Not Employees at All? The Legality and "Economic Reality" of Unpaid Internships

Beatriz Carrillo
13 Seventh Circuit Rev. 282 (2017) [Full Article] [Audio Synopsis]

Abstract: The number of unpaid internships has skyrocketed over the past years as employers seem to prefer those with experience in the field. “Experience” has become the currency that college students seek to open the door to future employment. Unpaid interns have become the modern-day equivalent of entry-level employees. However, they are not paid for the hours worked and lack the normal employment protections offered to employees, such as FLSA and Title VII protections. The court's interest recently has been sparked to define the roles of interns in the labor force and has started to shape intern’s legal protections. As a result, the courts have tried to interpret the Supreme Court case of Walling v. Portland Terminal Co. to define the circumstances under which an unpaid trainee can be considered an employee under the FLSA. Four predominant tests have emerged from circuit court interpretations: the WHD factors (drafted by the Department of Labor), the primary beneficiary test, the totality of the circumstances test, and the Glatt test.

In Hollins v. Regency Corp., the Seventh Circuit was tasked with determining if an unpaid trainee qualified as an employee and was entitled to her unpaid wages. Here, a cosmetology student claimed she was doing work beyond that of a “trainee,” such as cleaning the bathrooms and tending the cash register. The court determined that it would create its own test by combining the four tests for the various circuit courts; they called it “the economic reality” test. This article argues that there needs to be a strict universal test to determine if an unpaid intern is an employee as defined by the FLSA and Title VII. The test should consider two questions: (1) Are all the tasks assigned to the intern associated in furtherance of their educational or career goals and is the intern aware of how it will further their goals? and (2) did the intern replace any of employer’s employees? Applying a strict universal test gives the courts, interns, and employees a clear understanding of the parameters between an intern and an employee so that no one can cross the line.

Your Supervisor As Your Chattel: Broadening the Scope of Negligent Hiring and Retention in Illinois

Philip F. Vieira
13 Seventh Circuit Rev. 317 (2017) [Full Article] [Audio Synopsis]

Abstract: In Illinois, employers have a duty to act reasonably in hiring and retaining their employees. An employer who negligently hires or retains an employee may be liable for injuries caused by that employee even if the employee is acting outside the scope of employment. Of course, this doctrine has to have some limit. Otherwise, employers would be responsible for practically any injury committed by one of its employees, even if it is only tangentially related to the fact of employment. However, courts have struggled to define that outer limit. Particularly when faced with horrific injuries, courts may be tempted to push the boundaries of negligent hiring and retention further and further out.

In Anicich v. Home Depot, the Seventh Circuit was faced with this dilemma. In Anicich, the plaintiff’s daughter was brutally murdered by her supervisor at Home Depot. While the murder happened in another state hundreds of miles from where they worked, there seemed to be an inextricable link between the crime and the fact of employment. Faced with these facts, the Seventh Circuit applied a novel interpretation of the Restatement of Torts. Analogizing supervisory authority to employer chattels, the court created a new way to satisfy the Restatement’s principles and establish proximate cause for negligent hiring and negligent retention. In doing so, the court may have created a new avenue for employer liability without establishing any clear limits.

Outgrowing Its Usefulness: Seventh Circuit Limits the Application of the Common Actor Inference in Title VII Discrimination Cases

Michael G. Zolfo
13 Seventh Circuit Rev. 352 (2017) [Full Article] [Audio Synopsis]

Abstract: Can a person harbor discriminatory views toward protected minority groups, yet still hire a member of that group as an employee? Under Title VII jurisprudence, the “common actor inference” holds that if the same supervisor hires and fires an employee in a short time period, that supervisor likely did not have a discriminatory reason for the employment decision. The common actor inference has been accepted and used across all U.S. Circuit Courts of Appeal, but was recently criticized and limited by the Seventh Circuit.

In McKinney v. Sheriff of Whitley County, the Seventh Circuit considered the case of the first black police officer in the history of Whitley County, Indiana, who was fired within a year of his hiring by the sheriff. The Seventh Circuit thoroughly reviewed the facts in this case, and found enough genuine issues of material fact to reverse the Indiana District Court’s grant of summary judgment to the sheriff. However, the Seventh Court also addressed, and criticized, the district court’s reliance on the common actor inference. The Seventh Circuit exposed a number of logical flaws in the inference and limited the application of the inference to an evidentiary consideration that can only be considered by the ultimate trier-of-fact jury at the trial stage of litigation. Therefore, in the Seventh Circuit, employers cannot use the common actor inference as a defense at either the pleadings stage or summary judgment stage of litigation.

The Seventh Circuit has adopted the most restrictive application of the common actor inference compared to all other U.S. Circuit Courts. This comment argues that the Seventh Circuit was correct in concluding that the common actor inference is significantly flawed, so much so that its application should be limited to only the trial stage. Other U.S. Circuit Courts should follow the Seventh Circuit’s lead in limiting the application of the common actor inference in their jurisdictions to an evidentiary consideration that can only be considered by the ultimate trier-of-fact.


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