In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1732
KENNETH DUNN,
Plaintiff-Appellant,
v.
LEO SCHMITZ, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:16-cv-03308 — Sue E. Myerscough, Judge.
____________________
ARGUED APRIL 25, 2023 — DECIDED JUNE 6, 2023
____________________
Before RIPPLE, ST. EVE, and PRYOR, Circuit Judges.
RIPPLE, Circuit Judge. Kenneth Dunn, a former lieutenant
with the Illinois State Police (“ISP”), believes that the ISP
wrongly designated him “not in good standing” upon his re-
tirement. This designation limits his rights to carry a con-
cealed weapon under federal and state law. Moreover, he
claims that, if prospective employers learn of his designation,
he will be disqualified from future positions in law enforce-
ment and private security. Mr. Dunn therefore brought this
2 No. 22-1732
action against three ISP superiors for violating his right to due
process under the Fourteenth Amendment by depriving him
of a liberty interest in future employment. The district court
entered summary judgment for the defendants.
We affirm that judgment. Regardless of whether the des-
ignation is justified, Mr. Dunn lacks evidence that the defend-
ants disclosed his designation or foreclosed his future job pro-
spects.
I
BACKGROUND
When reviewing the grant of summary judgment, we con-
strue the facts in the light most favorable to Mr. Dunn, the
nonmoving party. See Perry v. Sims,
990 F.3d 505, 511 (7th Cir.
2021). While he was an ISP lieutenant, Mr. Dunn was assigned
to work at the Illinois Gaming Board under an inter-govern-
mental agreement. According to his superiors, federal agents
informed the ISP that he was implicated in a federal criminal
investigation into mortgage fraud. In September 2014, there-
fore, the ISP placed him on restricted duty. He could perform
administrative work but could not carry out enforcement or
operational responsibilities, such as arrests. The ISP’s director
sent Mr. Dunn a letter notifying him that his status would
“change to restricted duty pending the completion of a crim-
1
inal investigation.” The ISP placed the letter in his personnel
file and sent copies to those within Mr. Dunn’s chain of com-
mand and to the ISP’s legal and administrative offices.
Defendant Joann Johnson, a deputy director of the ISP’s
Division of Internal Investigations (“DII”), later stated under
1R.20-4 at 1; R.20 at 2–3.
No. 22-1732 3
oath that the ISP records reflected that at the time he was
placed on restricted duty, Mr. Dunn was the “subject of a fed-
eral criminal felony investigation” and that the investigation
2
was still open when he retired. She based this on “the DII
investigative casefile on Lt. Dunn, as well as emails summa-
rizing conversations with federal agents and prosecutor [sic]
3
conducting the criminal investigation.” Mr. Dunn admits
that he participated in a voluntary interview with federal in-
vestigators, but he denies that he was under investigation. In-
deed, he claims that the ISP was never told that he was a “tar-
4
get.” The record does not contain documents supporting the
5
ISP’s notation that he was the “subject” of an investigation.
According to an ISP official, the ISP “could not obtain any ad-
ditional documentation” before placing Mr. Dunn on re-
stricted duty because of “limitations with federal grand jury
6
regulations.”
2 R.20-9 at 3.
3
Id.
4 R.22 at 3.
5 We take judicial notice of the United States Department of Justice’s def-
initions of the terms “subject” and “target” for purposes of grand jury in-
vestigations. According to the Department’s Justice Manual, a “target” is
“a person as to whom the prosecutor or the grand jury has substantial ev-
idence linking him or her to the commission of a crime” and who is thus
“a putative defendant”; a “subject,” by contrast, is “a person whose con-
duct is within the scope of the grand jury’s investigation.” U.S. Dep’t of
Just., Just. Manual § 9-11.151 (2020).
6 R.20-5 at 24:22–25:10.
4 No. 22-1732
In November 2016, Mr. Dunn filed this action under
42 U.S.C. § 1983 against three individuals in their personal
and official capacities: Ms. Johnson; Isaiah Vega, the ISP su-
pervisor of personnel assigned to the Illinois Gaming Board;
and Leo Schmitz, the successor to the ISP director who signed
Mr. Dunn’s letter. He alleged that the defendants had violated
his right to due process under the Fourteenth Amendment by
depriving him of a liberty interest in future occupational op-
portunities. He asserted that he was not the “subject,” let
alone “target,” of any federal investigation at the time the de-
fendants placed him on restricted duty. Nevertheless, the de-
fendants, he continued, had notified third parties that the ISP
had stripped him of his law-enforcement authority. He fur-
ther alleged that the defendants had deprived him of any op-
portunity for a name-clearing hearing. Accordingly, he asked
the court to grant him relief by ordering such hearing and by
awarding him damages and attorney fees.
While the lawsuit was pending, Mr. Dunn remained on re-
stricted duty until his retirement in December 2016. At that
point, the ISP notified him that, because he retired while on
restricted duty, he would be categorized as “not in good
7
standing” at retirement. That letter also explained that this
status affected, among other things, his eligibility to carry a
concealed weapon under 18 U.S.C. § 926C, a provision of fed-
eral law that applies to “qualified retired law enforcement of-
ficer[s].” Mr. Dunn appealed the good-standing determina-
tion within the ISP, but in February 2017, Mr. Schmitz upheld
the decision.
7 R.20-6 at 1.
No. 22-1732 5
The defendants moved for summary judgment, contend-
ing that Mr. Dunn had failed to establish that they had vio-
lated his right to due process. They submitted that Mr. Dunn
had not presented evidence that they had disclosed publicly
that he was not in good standing or that he had lost employ-
ment opportunities from the disclosure of any stigmatizing
statement.
Mr. Dunn responded that his lack of good standing easily
could be disclosed to third parties. Specifically, he expressed
concern that prospective employers could submit a request
for this information under the Freedom of Information Act,
5 U.S.C. § 552, or its state equivalent, 5 ILCS 140/1 et seq.
Mr. Dunn stated, moreover, that any prospective employer
was certain to seek information about his retirement status,
and that all law enforcement organizations in Illinois could
learn of his lack of good standing by searching a database
maintained by the Illinois Law Enforcement Training Stand-
ards Board (“Standards Board”). Mr. Dunn also reiterated
that he was never the subject of a federal investigation, and
he provided a letter, dated May 30, 2019, from an Assistant
United States Attorney stating that he was not being investi-
gated currently and that he was never a “target” of a federal
8
investigation.
Mr. Dunn further submitted that his lack of good standing
disqualified him from many law-enforcement and private-se-
curity positions, which, he claimed, “would require him to
9
carry a concealed weapon under federal law.” Although
8 R.22-1 at 5.
9 R.22 at 10–11.
6 No. 22-1732
Illinois law provides for concealed-carry permits for private
individuals, see 430 ILCS 66/1 et seq., it is easier for retired law
enforcement officers to obtain a concealed-carry permit under
both state and federal law, see
Ill. Admin. Code tit. 20,
§ 1720.240(b); 18 U.S.C. § 926C. Because of his designation,
this less restrictive route was not open to Mr. Dunn. However,
Mr. Dunn has a Firearm Owner’s Identification Card, so he
may lawfully possess or acquire firearms. See 430 ILCS
65/2(a)(1).
The district court entered summary judgment for the de-
fendants. It concluded that Mr. Dunn lacked evidence that
they had publicly disclosed stigmatizing information about
him. Public disclosure, the court explained, requires actual
disclosure, but Mr. Dunn pointed to only the possibility of
disclosure.
Mr. Dunn timely appealed.
II
DISCUSSION
A government employer infringes an employee’s occupa-
tional liberty interest when, without constitutionally ade-
quate process, it places the employee’s “good name, reputa-
tion, honor, or integrity” at stake or imposes “a stigma or
other disability that foreclose[s] his freedom to take ad-
vantage of other employment opportunities.” Bd. of Regents of
State Colls. v. Roth,
408 U.S. 564, 573 (1972) (citations omitted).
To succeed on an occupational liberty claim, an employee
must prove that: “(1) he was stigmatized by the employer’s
actions; (2) the stigmatizing information was publicly dis-
closed; and (3) he suffered a tangible loss of other employ-
ment opportunities as a result of the public disclosure.”
No. 22-1732 7
Dupuy v. Samuels,
397 F.3d 493, 509 (7th Cir. 2005) (citing
McMath v. City of Gary,
976 F.2d 1026, 1031 (7th Cir. 1992)).
Mr. Dunn contends that he raised a genuine issue of material
fact as to each of these elements. In his view, his evidence
shows that it is inevitable that the stigmatizing designation
will reach prospective employers and will prevent him from
obtaining employment in his field. Our review of the sum-
mary judgment ruling is de novo. Perry, 990 F.3d at 511.
The parties dispute whether Mr. Dunn was involved in a
federal criminal investigation as a “target,” a “subject,” or
otherwise. This issue is relevant to whether Mr. Dunn can sat-
isfy the first element of his claim—stigma. Stigmatizing state-
ments “must be false assertions of fact.” Strasburger v. Bd. of
Educ., Hardin Cnty. Cmty. Unit Sch. Dist. No. 1,
143 F.3d 351,
10
356 (7th Cir. 1998). However, we need not decide whether
Mr. Dunn has made out a triable issue on this element be-
cause his claim fails on the remaining elements. See Johnson v.
Martin,
943 F.2d 15, 16 (7th Cir. 1991).
Regarding the element of public disclosure, our cases have
not “delineate[d] exactly how plaintiffs must prove dissemi-
nation.”
Id. at 17. But we have said that potentially stigmatiz-
ing information has not been “made public” if it “remains in
a discharged employee’s personnel file and has not been dis-
seminated beyond the proper chain of command within the
10 Because Mr. Dunn continues to emphasize the inaccuracy of the reason
given for his placement on restricted duty, we asked at oral argument
whether any state remedies were available for him to challenge that deci-
sion (which led directly to the unfavorable retirement status). The parties
were unable to give us a firm answer, but we do know that Mr. Dunn did
not pursue any other state remedies after receiving a final determination
from the ISP.
8 No. 22-1732
police department.” Id.; see also Olivieri v. Rodriguez,
122 F.3d
406, 408 (7th Cir. 1997). In this case, although Mr. Dunn spec-
ulates about disclosures, he does not point to evidence that
the defendants actually disclosed his not-in-good-standing
designation outside the ISP chain of command and his per-
sonnel file.
Mr. Dunn submits that he has satisfied the public disclo-
sure element because the defendants admitted to disclosing
his unfavorable designation to the Standards Board. Even if
we assume that such a disclosure would satisfy the public dis-
closure requirement, Mr. Dunn overstates his evidence on
this point. In their answer to his complaint, the defendants
admitted only that “the good standing determination may be
shared between the Illinois State Police and the Illinois Law
11
Enforcement Training Standards Board.” There is no evi-
dence in the record that this determination in fact was dis-
closed to the Standards Board.
Setting aside actual disclosure, Mr. Dunn insists that he
succeeds under the constructive dissemination test of Dupuy,
397 F.3d at 510. There, we held that the disclosure element
was met even though there had not been actual transmission
of the information because dissemination was inevitable. The
plaintiffs, who were subject to findings of past child abuse or
neglect, were required by statute to authorize disclosure of
this information when seeking employment in their chosen
field of childcare.
Id.
Unlike the Dupuy plaintiffs, Mr. Dunn has not pointed to
evidence showing that he must disclose his retirement status
11 R.7 at 5 (emphasis added).
No. 22-1732 9
12
to any prospective employer. Nor has he shown that pro-
spective employers would require him to apply for and obtain
the retired-law-enforcement version of a concealed-carry per-
mit. At most, Mr. Dunn established that employers in the
fields of law enforcement or private security might inquire
into his retirement status in a background check and might
require him to possess some form of concealed-carry permit.
But the mere likelihood of public disclosure is not enough to
satisfy the disclosure element under our precedents. See John-
son,
943 F.2d at 16–17. Notably, we have already rejected the
holdings of some of the out-of-circuit decisions that Mr. Dunn
cites to support a more relaxed version of the constructive dis-
semination test. See, e.g., Olivieri,
122 F.3d at 408–09 (distin-
guishing between an employer who “goes out of his way to
publicize the ground of the dismissal” and an employer who
“does not disclose, let alone publicize, the ground of its ac-
13
tion”).
12 At oral argument and in his reply brief, Mr. Dunn suggested that dis-
closure is mandated under the Illinois Police Training Act, 50 ILCS 705/9.2,
which became effective in January 2022. Even if we assume that this pro-
vision applies retroactively to Mr. Dunn’s retirement designation five
years earlier, he has waived this argument by failing to raise it in his open-
ing brief. See Wonsey v. City of Chicago,
940 F.3d 394, 398–99 (7th Cir. 2019).
13 Our sister circuits have expressed conflicting views. Compare Burton v.
Town of Littleton,
426 F.3d 9, 17 (1st Cir. 2005) (“[T]he placement of dam-
aging information in a personnel file, without further dissemination, is not
sufficient to trigger the constitutional tort.”); Ortega-Rosario v. Alvarado-
Ortiz,
917 F.2d 71, 74–75 (1st Cir. 1990) (same); Copeland v. Philadelphia Po-
lice Dep’t,
840 F.2d 1139, 1148 (3d Cir. 1988) (finding insufficient plaintiff’s
allegation that “the presence of information relating to his termination in
his personnel file raises an inference that the city intends to communicate
this information to prospective employers”), with Segal v. City of New York,
10 No. 22-1732
Nor can Mr. Dunn prove disclosure based on the general
availability of stigmatizing information through transparency
laws such as the Freedom of Information Act. Even if the de-
fendants placed stigmatizing information “in documents
available to the public under the Illinois Freedom of Infor-
mation Act,” “that information is not publicly disseminated
where it may be, but has not yet been, disclosed to third par-
ties.” RJB Properties, Inc. v. Bd. of Educ. of City of Chicago,
468
F.3d 1005, 1011 (7th Cir. 2006) (citing Olivieri,
122 F.3d at 408,
and Johnson,
943 F.2d at 17); see also Koch v. Stanard,
962 F.2d
605, 607 (7th Cir. 1992) (citing Clark v. Maurer,
824 F.2d 565,
567 (7th Cir. 1987)) (emphasizing that although information
in personnel files may be a “ticking time bomb,” there is no
claim “until the bomb explodes”). Furthermore, there are nu-
merous exemptions to the Freedom of Information Act that
could apply, making Mr. Dunn’s premise—that anyone who
asks could learn facts related to his employment with the
ISP—less certain than he assumes.
The public disclosure element is not the only one about
which Mr. Dunn lacks sufficient evidence: he also did not
show that the defendants’ conduct foreclosed practically all
459 F.3d 207, 213 (2d Cir. 2006) (“[T]he placement of statements in an em-
ployee’s personnel file may satisfy the … public disclosure element[].”);
Sciolino v. City of Newport News,
480 F.3d 642, 650 (4th Cir. 2007) (“A plain-
tiff need not allege that his file has actually been disseminated to particu-
lar prospective employers.”); Cox v. Roskelley,
359 F.3d 1105, 1110 (9th Cir.
2004) (stating that where disclosure was mandated upon request, “[p]ubli-
cation of the stigmatizing information occurred, if at all, when the termi-
nation letter was placed into and maintained in Cox’s personnel file”).
No. 22-1732 11
14
his prospective employment opportunities. Success on an
occupational-liberty claim “requires ‘that the circumstances
made it virtually impossible for [the plaintiff] to find a new
position in his chosen profession.’” Palka v. Shelton,
623 F.3d
447, 454 (7th Cir. 2010) (quoting Lashbrook v. Oerkfitz,
65 F.3d
1339, 1349 (7th Cir. 1995)). Mr. Dunn testified that he re-
frained from applying for two security-related positions that
required carrying a weapon, which he said he could not do
because of his retirement status. But Mr. Dunn has not pre-
sented evidence establishing that he could not apply for a con-
cealed-carry license as a private citizen under Illinois’s Fire-
arm Concealed Carry Act, 430 ILCS 66/1 et seq. Assuming he
can obtain such a license, he has not established that only the
license afforded to former law enforcement officers would be
satisfactory to prospective employers.
In sum, Mr. Dunn has failed to present evidence that any
law-enforcement or private-security employer has ever de-
nied, or would deny, him a position because of his status.
See Townsend v. Vallas,
256 F.3d 661, 670 (7th Cir. 2001) (hold-
ing that plaintiff, who had yet to be turned down by any po-
tential employer, failed to show that prospective employment
opportunities were foreclosed). On these facts, no reasonable
jury could find that it would be “virtually impossible” for
Mr. Dunn to obtain a job in his chosen field, making summary
judgment for the defendants appropriate.
Id.
14 Although the district court did not rely on this factor, it was litigated at
summary judgment and therefore can be grounds for affirmance. See King
v. Hendricks Cnty. Comm’rs,
954 F.3d 981, 984 (7th Cir. 2020).
12 No. 22-1732
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
