Brian Towne v. Karen Donnelly ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2469
BRIAN TOWNE,
Plaintiff-Appellant,
v.
KAREN DONNELLY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cv-04097 — Sharon Johnson Coleman, Judge.
____________________
ARGUED FEBRUARY 16, 2022 — DECIDED AUGUST 11, 2022
____________________
Before RIPPLE, SCUDDER and KIRSCH, Circuit Judges.
RIPPLE, Circuit Judge. Brian Towne, the former State’s At-
torney for LaSalle County, Illinois, defeated criminal charges
against him when an Illinois court ruled that the proceedings,
which had idled for about two years, violated his right to a
speedy trial. In the wake of that decision, Mr. Towne brought
this action under 42 U.S.C. § 1983. Pertinent to this appeal, he
alleged that State’s Attorney Karen Donnelly, with the aid of
assistant state’s attorneys and police investigators, had pros-
ecuted him in retaliation for his previous campaign for state’s
2 No. 21-2469
attorney and, in so doing, had violated his First Amendment
rights. The district court dismissed the complaint as untimely.
The court ruled that the two-year statute of limitations for
Mr. Towne’s First Amendment retaliation claim had expired.
The court explained that the limitations period had begun to
run when he was indicted, not when he was acquitted.
Because our precedent establishes that a First Amendment
retaliation claim such as Mr. Towne’s accrues when the un-
derlying criminal charge is brought, and because the Supreme
Court’s decision in McDonough v. Smith, 139 S. Ct. 2149 (2019),
has not disturbed that conclusion, we affirm the judgment of
the district court.
I
BACKGROUND
A. Facts
Because this lawsuit was dismissed on the pleadings, we
must take as true the following facts set forth in the operative
complaint. See Vergara v. City of Chicago, 939 F.3d 882, 884 (7th
Cir. 2019).
Mr. Towne served as the LaSalle County State’s Attorney
from 2006 until 2016. During his tenure, Mr. Towne encoun-
tered Karen Donnelly in three situations. First, Ms. Donnelly
worked as a legal intern with the State’s Attorney’s Office in
2012. During the internship, she impermissibly accessed a file
about the ongoing prosecution of her son, and Mr. Towne
locked the file to prohibit her continued access to it. Second, a
few years later, Ms. Donnelly applied for a position with the
State’s Attorney’s Office, and Mr. Towne did not hire her. Fi-
nally, Ms. Donnelly ran against and defeated Mr. Towne in
the 2016 election for State’s Attorney.
No. 21-2469 3
Soon after taking office, Ms. Donnelly launched an inves-
tigation into Mr. Towne’s conduct as State’s Attorney. She
claimed to suspect him of criminal acts during his tenure in
office; Mr. Towne alleges that the inquiry “was wholly politi-
1
cal and motivated by personal animosity towards” him.
Ms. Donnelly enlisted assistant state’s attorneys and police
officers for the City of Ottawa to help with an investigation.
Over the next seven months, they interviewed witnesses, con-
cealed exculpatory portions of the interviews, and fabricated
2
inculpatory testimony.
Based on this allegedly fabricated evidence, a grand jury
indicted, and Mr. Towne moved to have a special prosecutor
appointed in the case. The state court granted the motion, but
the special prosecutor did not act on the charges against
Mr. Towne. After ten months with no development,
Mr. Towne moved to dismiss the charges on the ground that
the prosecutorial inaction violated his right to a speedy trial.
The trial court granted the motion in August 2019 and dis-
missed all criminal charges against him.
B. District Court Proceedings
In July 2020—nearly three years after Mr. Towne was in-
dicted, and one year after the charges against him were dis-
missed—Mr. Towne filed this action under 42 U.S.C. § 1983against Ms. Donnelly, the assistant state’s attorneys, the offic-
ers involved in the underlying investigation, LaSalle County,
and the City of Ottawa. The operative complaint alleged that
the individual defendants violated Mr. Towne’s First
1 R.36 ¶ 40.
2 See id. ¶¶ 41–50.
4 No. 21-2469
Amendment rights by prosecuting him in retaliation for his
having opposed Ms. Donnelly in the 2016 election. The com-
plaint further alleged that these defendants caused him to be
held without probable cause in violation of the Fourth
Amendment and subjected him to prosecution in violation of
his Fourteenth Amendment right to due process. Finally, the
complaint included allegations that the defendants had con-
spired to infringe Mr. Towne’s constitutional rights and had
3
failed to intervene to prevent constitutional violations.
The defendants moved to dismiss the complaint. Relevant
to this appeal, they submitted that Mr. Towne’s First Amend-
ment retaliation claim was untimely. According to the de-
fendants, the two-year statute of limitations began to run
upon his indictment and, therefore, had expired in September
2019—ten months before Mr. Towne filed this lawsuit. They
also maintained that Mr. Towne’s Fourth Amendment unlaw-
ful detention claim and due process claim were not actionable
because he never was taken into custody and his criminal case
never proceeded to trial.
In response, Mr. Towne argued that his First Amendment
claim was timely under McDonough v. Smith, 139 S. Ct. 2149(2019). In McDonough, the Supreme Court held that a Four-
teenth Amendment due process claim based on fabricated ev-
idence does not accrue until the proceedings are favorably ter-
minated. Mr. Towne argued that his retaliation claim, like the
due process claim in McDonough, challenged the validity of
criminal proceedings. Therefore, he continued, the statute of
limitations on his claim did not begin to run until he was
3 The complaint also alleged state law claims of malicious prosecution, in-
tentional infliction of emotional distress, conspiracy, and indemnification.
No. 21-2469 5
acquitted of the charges. As for his Fourth Amendment and
due process claims, Mr. Towne contended that they were vi-
able because his liberty was restricted while he was awaiting
trial and because the criminal process was based on fabricated
evidence.
The district court granted the defendants’ motions and
dismissed the case for failure to state a claim. Beginning with
the First Amendment retaliation claim, the court explained
that the claim accrued when the retaliatory act occurred, spe-
cifically in 2017 when Mr. Towne was indicted on false crim-
inal charges. The district court was unpersuaded by
Mr. Towne’s argument that the Supreme Court’s holding in
McDonough applied to Mr. Towne’s First Amendment retali-
ation claim. Similarly, with respect to Mr. Towne’s Fourth
Amendment claim, the district court concluded that the claim
accrued when his detention ceased; this occurred when he
was released on bond in September 2017. Consequently, this
claim, too, was untimely. Regarding Mr. Towne’s due process
claim, the court concluded that Mr. Towne had not suffered a
deprivation of liberty as a result of the fabrication of the evi-
dence, and therefore his claim failed. Finally, the court dis-
missed the failure-to-intervene and conspiracy claims be-
cause they were contingent on the presence of an underlying
constitutional claim, but none of Mr. Towne’s constitutional
4
claims were viable.
4 Having dismissed all of Mr. Towne’s federal constitutional claims with
prejudice, the court “decline[d] to exercise its supplement jurisdiction
over Towne’s state law claims of malicious prosecution, intentional inflic-
tion of emotional distress, indemnification, and conspiracy.” R.64 at 9.
6 No. 21-2469
II
DISCUSSION
Mr. Towne appeals the district court’s dismissal of his
First Amendment retaliatory prosecution claim as untimely.
Because the parties agree that the statute of limitations for
§ 1983 claims in Illinois is two years, see 735 ILCS 5/13-202;
Smith v. City of Chicago, 3 F.4th 332, 335 (7th Cir. 2021), the sole
issue on appeal is whether the limitations period began to run
when the grand jury returned an indictment against
Mr. Towne, as the district court held, or when the charges
were dismissed, as he contends. If the latter view is correct,
Mr. Towne’s First Amendment claim, which he filed one year
after his charges were dismissed, was timely. We review de
novo a dismissal based on the statute of limitations. Smith,
3 F.4th at 335.
A.
Generally, a claim under § 1983 accrues “when the plain-
tiff has ‘a complete and present cause of action,’ that is, when
‘the plaintiff can file suit and obtain relief.’” Wallace v. Kato,
549 U.S. 384, 388 (2007) (citation omitted) (quoting Bay Area
Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal.,
5
522 U.S. 192, 201 (1997)). At that point, the plaintiff “knows
or should know that his or her constitutional rights have been
violated.” Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016)
(quoting Hileman v. Maze, 367 F.3d 694, 696 (7th Cir. 2004)). To
determine when a litigant has a “complete and present” cause
5Although the statute of limitations is governed by state law, federal law
governs the accrual date for such actions. Gekas v. Vasiliades, 814 F.3d 890,
894 (7th Cir. 2016).
No. 21-2469 7
of action, we begin by examining the nature of the constitu-
tional right at stake. McDonough, 139 S. Ct. at 2155 (quoting
Wallace, 549 U.S. at 388). We also may look “to the common-
law principles governing analogous torts.” Id. at 2156.
In the context of a First Amendment retaliation claim, we
have held that, “[g]enerally, the statute of limitations clock be-
gins to run … immediately after the retaliatory act occurred,”
Gekas, 814 F.3d at 894, so long as the plaintiff “knows or
should know that his or her constitutional rights have been
violated,” id. (quoting Hileman, 367 F.3d at 696)). At least two
circuits have held that this general accrual rule for First
Amendment retaliation claims applies equally to First
Amendment retaliatory prosecution claims and that, conse-
quently, the cause of action typically accrues when the retali-
atory charges are brought. See Smith v. Campbell, 782 F.3d 93,
100 (2d Cir. 2015); Mata v. Anderson, 635 F.3d 1250, 1253 (10th
6
Cir. 2011). At that point, a plaintiff can state a complete claim
by alleging that (1) he participated in an activity protected by
the First Amendment; (2) he suffered a harm—that is, the
criminal charges—likely to deter future protected activity;
and (3) the charges were motivated by retaliation. FKFJ, Inc.
v. Village of Worth, 11 F.4th 574, 585 (7th Cir. 2021). For a First
Amendment retaliatory prosecution claim, the plaintiff also
6 Indeed we have reached this conclusion in a nonprecedential case, see
Williams v. Davis, 609 F. App’x 865, 867 (7th Cir. 2015), as have our col-
leagues in the Third and Sixth Circuits, see Reardon v. Zonies, 730 F. App’x
129, 132 (3d Cir. 2018); Rapp v. Putman, 644 F. App’x 621, 625 (6th Cir.
2016).
8 No. 21-2469
must plead a lack of probable cause supporting the charge.
7
Hartman v. Moore, 547 U.S. 250, 265–66 (2006).
The district court correctly determined that Mr. Towne’s
First Amendment retaliatory prosecution claim accrued when
he learned that the defendants indicted him on charges that
he believed to be retaliatory. According to Mr. Towne’s com-
plaint, he learned of the unlawful charges in September 2017,
when the indictment was issued by a state’s attorney with
whom he had a history of conflict and personal animosity. At
this point, Mr. Towne was aware that he had engaged in the
protected activity of running for office and that the defend-
ants harbored political and personal animosity toward him.
7 Of course, the practical realities of a particular prosecution may inhibit
an individual’s ability to detect that a criminal charge is tainted by retali-
atory animus. For instance, because of the secretive nature of a grand jury
investigation, an individual might well be subjected to a retaliatory indict-
ment, but not become apprised of the retaliatory motivations until well
after the charges are brought. Or if a prosecutor is merely the cat’s paw
and brings charges at the instigation of another person who has retaliatory
animus, the indicted individual may remain unaware of the retaliatory
motivation for a considerable period of time. In those instances, the doc-
trines of equitable tolling or equitable estoppel may afford relief. “Equita-
ble tolling permits a plaintiff to avoid the bar of the statute of limitations
if[,] despite the exercise of all due diligence[,] he is unable to obtain vital
information bearing on the existence of the claim.” Shropshear v. Corp.
Counsel of City of Chi., 275 F.3d 593, 595 (7th Cir. 2001). However, because
we borrow a state’s equitable tolling rules when we borrow its statute of
limitations, id. at 596, the scope of relief available through equitable tolling
may vary from state to state. Equitable estoppel, by contrast, is “a doctrine
of federal law,” Rosado v. Gonzalez, 832 F.3d 714, 716 (7th Cir. 2016), and
“comes into play if the defendant takes active steps to prevent the plaintiff
from suing in time,” Shropshear, 275 F.3d at 595.
No. 21-2469 9
Indeed, Mr. Towne asserts that he moved for the appointment
of a special prosecutor in part because he believed the prose-
8
cution was “highly problematic.” Thus, Mr. Towne had
grounds to challenge the charges against him at the time those
charges were brought.
B.
Notably, Mr. Towne does not argue that he did not recog-
nize immediately the retaliatory nature of the charges against
him. He appears to concede that, if his retaliation claim ac-
crued when he knew or should have known that his rights
were violated, the district court correctly dismissed his cause
9
of action as untimely. He therefore asks this court to “aban-
don” its current accrual rule and impose a favorable-termina-
tion requirement on First Amendment retaliatory prosecution
10
claims. He takes the view that the accrual rule set forth in
Gekas cannot survive the Supreme Court’s decision in
McDonough.
In McDonough, the question before the Court was when
the statute of limitations begins to run for a § 1983 action
based upon allegations of fabricated evidence. The district
court and the court of appeals had concluded that the limita-
tions period “began to run when the evidence was used
against [the plaintiff].” McDonough, 139 S. Ct. at 2153. The Su-
preme Court reached a different conclusion. Analogizing
these claims to the tort of malicious prosecution, an element
of which is a favorable termination of proceedings, the
8 R.36 ¶¶ 36, 37, 60.
9 See Appellant’s Br. 5.
10 Id.10 No. 21-2469
Supreme Court held that due process claims based on fabri-
cated evidence do not accrue until the favorable termination
of the underlying criminal proceedings. Id. at 2156–58. The
Court further explained that
malicious prosecution’s favorable-termination
requirement is rooted in pragmatic concerns
with avoiding parallel criminal and civil litiga-
tion over the same subject matter and the re-
lated possibility of conflicting civil and criminal
judgments. The requirement likewise avoids al-
lowing collateral attacks on criminal judgments
through civil litigation. These concerns track
“similar concerns for finality and consistency”
that have motivated this Court to refrain from
multiplying avenues for collateral attack on
criminal judgments through civil tort vehicles
such as § 1983.
Id. at 2156–57 (citations omitted) (quoting Heck v. Humphrey,
512 U.S. 477, 485 (1994)).
Mr. Towne maintains that, for two reasons, McDonough
supports the view that all First Amendment retaliatory pros-
ecution claims do not accrue until the prosecution is favorably
terminated. First, he contends that, like a due process claim
based on fabricated evidence, a retaliatory prosecution claim
is akin to the common-law tort of malicious prosecution and
therefore also should include a favorable-termination require-
ment. Second, Mr. Towne asserts that the practical concerns
supporting the decision in McDonough apply equally to First
Amendment challenges to a state prosecution. We examine in
turn each of these arguments.
No. 21-2469 11
We are not convinced that a First Amendment retaliatory
prosecution claim has the strong parallels to malicious prose-
cution that are present with a due process claim based on the
fabrication of evidence. In comparing the evidence-fabrica-
tion claim to malicious prosecution, the Court drew upon its
reasoning in Heck, 512 U.S. 477. See McDonough, 139 S. Ct. at
2156-57. In Heck, it had determined that the “common-law
cause of action for malicious prosecution provides the closest
analogy” to a due process claim for destruction and fabrica-
tion of evidence because “it permits damages for confinement
imposed pursuant to legal process” and therefore necessarily
impugns the entire legal process. 512 U.S. at 484. The Court
explained, “[t]he essentials of McDonough’s claim are similar:
His claim requires him to show that the criminal proceedings
against him—and consequent deprivations of his liberty—
were caused by Smith’s malfeasance in fabricating evidence.
At bottom, both claims challenge the integrity of criminal
prosecutions undertaken ‘pursuant to legal process.’”
McDonough, 139 S. Ct. at 2156 (footnote omitted) (quoting
Heck, 512 U.S. at 484).
Under established law, however, to bring a retaliatory
prosecution claim under the First Amendment, a plaintiff
need only plead and prove an absence of probable cause for
the underlying charge. Hartman, 547 U.S. at 265–66; Williams
v. City of Carl Junction, 480 F.3d 871, 877 n.4 (8th Cir. 2007)
(“Application of Hartman to defeat a plaintiff’s claim does not
require that a charge lead to a conviction, but merely that the
charge be supported by probable cause.”). Thus, the plaintiff’s
allegations do not necessarily impugn or implicate the entire
prosecution. Additionally, a plaintiff need not assert or estab-
lish that he was confined or deprived of liberty as a result of
the charges. See, e.g., FKFJ, Inc., 11 F.4th at 585 (setting forth
12 No. 21-2469
elements of First Amendment retaliation claim). Indeed, in
Gekas, we pointedly said that “First Amendment retaliation
claims and malicious prosecution claims are fundamentally
different causes of action.” 814 F.3d at 894. McDonough itself
noted that “the argument for adopting a favorable-termina-
tion requirement [is] weaker” in situations where there is not
a “liberty deprivation occasioned by the criminal proceedings
themselves.” 139 S. Ct. at 2160.
Mr. Towne sees things differently. He submits that in
Hartman, the Supreme Court already has analogized First
Amendment retaliatory prosecution claims to malicious pros-
ecution and therefore set the groundwork for requiring favor-
able termination. We cannot accept this argument. In Hart-
man, the Supreme Court observed that it “could debate
whether the closer common-law analog to retaliatory prose-
cution is malicious prosecution (with its no-probable-cause
element) or abuse of process (without it).” 547 U.S. at 258. The
Court declined to engage in that debate, however. Instead, it
adopted a no-probable-cause requirement for retaliatory
prosecution claims because these claims require that retalia-
tion be the “but-for cause” of the charge. Id. at 260; see also id.
at 259 (“It is, instead, the need to prove a chain of causation
from animus to injury … that provides the strongest justifica-
tion for the no-probable-cause requirement … .”).
To be sure, the events that led to the lawsuit in McDonough
and those underlying Mr. Towne’s claim are undeniably sim-
ilar because the basis for both is a prosecution that is based on
false evidence and not supported by probable cause. Thus, the
language in McDonough asserting that “[t]here is not ‘a com-
plete and present cause of action’ to bring a fabricated-evi-
dence challenge to criminal proceedings while those criminal
No. 21-2469 13
proceedings are ongoing,” 139 S. Ct. at 2158 (quoting Wallace,
549 U.S. at 388), at first glance, might seem to apply with equal
force to claims like Mr. Towne’s. There is, however, an im-
portant difference between Mr. Towne’s claim and the one in
McDonough: Mr. Towne claims a violation of the First Amend-
ment. Such a claim—unlike an evidence-fabrication claim un-
der the Due Process Clause—does not necessarily focus on the
entire prosecution, and, in that respect, is not akin to mali-
cious prosecution with its favorable-termination requirement.
See Smith, 782 F.3d at 100 (noting that, in arguing for a favor-
able-termination requirement, the plaintiff had “mistakenly
conflate[d] the Fourth Amendment tort of malicious prosecu-
tion with the First Amendment tort of retaliation” and further
observing that “[t]hese two kinds of claims are not subject to
the same standards”).
Mr. Towne also submits that the pragmatic concerns mo-
tivating the favorable-termination requirement in McDonough
are equally present in the context of a First Amendment retal-
iatory prosecution claim. For instance, litigants who wish to
challenge an ongoing prosecution as retaliatory “could face
an untenable choice between (1) letting their claims expire
and (2) filing a civil suit against the very person who is in the
midst of prosecuting them.” McDonough, 139 S. Ct. at 2158.
The latter choice involves undesirable risks of “tipping his
hand as to his defense strategy, undermining his privilege
against self-incrimination, and taking on discovery obliga-
tions not required in the criminal context.” Id. Because of
these concerns, Mr. Towne maintains, a litigant should not be
required to file his claim before the proceedings against him
are completed in his favor.
14 No. 21-2469
We agree with Mr. Towne that many of the practical con-
cerns expressed in McDonough, 139 S. Ct. at 2158–59, apply
also to First Amendment retaliatory prosecution claims that
challenge ongoing state prosecutions. Nevertheless, we are
not convinced that these interests justify extending the favor-
able-termination requirement to retaliatory prosecution
claims arising under the First Amendment.
Requiring a favorable termination in a First Amendment
retaliatory prosecution claim because of these pragmatic con-
cerns would narrow First Amendment protections. As the law
now stands, a First Amendment claim accrues when a person
is prosecuted without probable cause in retaliation for pro-
tected activity, even if evidence is later discovered to support
the charge and lead to conviction. See Hartman, 547 U.S. at265–66. Perhaps for this reason, Mr. Towne points to no circuit
that imposes such a favorable-termination requirement on re-
taliatory prosecution claims. On the other hand, as discussed
earlier, several circuits have concluded that First Amendment
retaliatory prosecution claims accrue when the retaliatory
11
charges are brought.
Further, if several of the concerns about parallel litigation
become acute in a particular case, those concerns can be as-
suaged through the prudent use of stays and abstention.
See Wallace, 549 U.S. at 393–94 (“[I]t is within the power of the
district court, and in accord with common practice, to stay the
civil action until the criminal case or the likelihood of a crim-
inal case is ended.”). This practice is preferable to delayed ac-
cruals in situations like this one, where the action impugns an
11 See supra p. 7.
No. 21-2469 15
indictment as without probable cause but not necessarily the
entire prosecution. See id. at 393.
C.
In his complaint, Mr. Towne also alleged that he was sub-
jected to pretrial detention without probable cause in viola-
12
tion of the Fourth Amendment. The district court dismissed
that claim as untimely because “a claim for unlawful pretrial
detention accrues when the detention ceases,” and Mr. Towne
was “released on bond in September 2017,” more than two
13
years before he filed his complaint. In his brief before this
court, Mr. Towne conceded that, under governing law, his
“Fourth Amendment claim accrued more than two years
prior to the initiation of his civil lawsuit and is outside the
14
statute of limitations.”
Following oral argument, the Supreme Court handed
down its decision in Thompson v. Clark, 142 S. Ct. 1332 (2022),
in which it “flesh[ed] out” the favorable termination require-
ment for a Fourth Amendment malicious prosecution claim.
Id. at 1335. Specifically, the Court held that, “[t]o demonstrate
a favorable termination of a criminal prosecution for pur-
poses of the Fourth Amendment claim under § 1983 for mali-
cious prosecution, a plaintiff need only show that his prose-
cution ended without a conviction.” Id. At Mr. Towne’s re-
quest we ordered supplemental briefing by the parties on “the
12 See R.36 ¶¶ 86–91.
13R.64 at 6 (quoting Mitchell v. City of Elgin, 912 F.3d 1012, 1015 (7th Cir.
2019)).
14 Appellant’s Br. 10.
16 No. 21-2469
applicability, if any, of Thompson v. Clark, 142 S. Ct. 133215
(2022), to the resolution of this case.”
Mr. Towne contends that this court should vacate the dis-
missal of his Fourth Amendment claim in light of Thompson.
He ultimately asks this court to take three actions: (1) to “over-
rule its prior holding that there is no cognizable claim for fed-
eral malicious prosecution,” (2) to “hold that a Fourth
Amendment claim for unreasonable pretrial detention,” like
a Fourth Amendment malicious prosecution claim, also “ac-
crues upon favorable termination of those charges,” and (3) to
reverse the dismissal of his Fourth Amendment claim and re-
16
mand for further proceedings. According to Mr. Towne, we
should consider his arguments, despite the concession in his
opening brief, because Thompson was issued after oral argu-
ment, and “[a] party does not waive an argument when, un-
17
der then-existing precedent, it had no reason to offer [it].”
We cannot accept Mr. Towne’s contention. First, we previ-
ously have held litigants—even criminal defendants—to their
concessions in briefs despite intervening developments in the
law beneficial to them. For instance, in United States v. Cun-
ningham, 405 F.3d 497 (7th Cir. 2005), the defendant, in his
opening brief, had “conceded that the district court properly
increased his base sentence for the use of a computer and for
the age of the victim” based on judge-found facts. Id. at
503-04. Following oral argument, the Supreme Court handed
down its decision in Blakely v. Washington, 542 U.S. 29615 App. R.40.
16 Appellant’s Supp. Br. 9.
17 Id. at 2.
No. 21-2469 17
18
(2004). Cunningham then filed a supplemental brief in
which he sought to challenge the district court’s sentencing
determinations on the basis of Blakely. We concluded, how-
ever, that “because Cunningham [had] waived his right to
contest the district court’s imposition of separate two-level
enhancements for the victim’s age and for Cunningham’s use
of a computer well before the Supreme Court’s decision in
Blakely v. Washington, we need not consider whether they
were improper in light of that decision.” Id. at 504.
Moreover, the Supreme Court granted certiorari in Thomp-
son in March 2021, almost eight months prior to the date on
which Mr. Towne filed his opening brief. The granting of cer-
tiorari served to alert litigants of a potential change in the law.
Cf. Ortiz-Santiago v. Barr, 924 F.3d 956, 964 (7th Cir. 2019) (re-
fusing to relieve a litigant of a forfeiture when “there were
signs that a meritorious argument could be raised”). Thus, to
the extent that Thompson has any bearing on Mr. Towne’s
Fourth Amendment claim, he had notice of that long before
making his concession in his opening brief.
CONCLUSION
For the reasons set forth in this opinion, the judgment of
the district court is affirmed.
AFFIRMED
18 In Blakely v. Washington, 542 U.S. 296, 305 (2004), the Court held that a
state judge’s imposition of an “exceptional” sentence violated the Sixth
Amendment because the enhanced sentence was based on judge-found
facts.