Roger Whitmore's Automotive Services, Inc. v. Lake County

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1978 & 05-1033
ROGER WHITMORE’S AUTOMOTIVE
SERVICES, INC., and ROGER WHITMORE,
Plaintiffs-Appellants,
v.
LAKE COUNTY, ILLINOIS, GARY DEL RE,
SHERIFF OF LAKE COUNTY, GARY STRYKER,
UNDERSHERIFF OF LAKE COUNTY,
and CITIZENS TO ELECT GARY DEL RE,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 2504—Samuel Der-Yeghiayan, Judge.
____________
ARGUED NOVEMBER 8, 2004—DECIDED SEPTEMBER 22, 2005
____________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Towing operator Roger Whitmore
and his company sued Gary Del Re, Gary Stryker, and
others for violation of the Racketeer Influenced Corrupt
Organization Act (RICO) and for retaliation based on
constitutionally protected speech. The district court granted
summary judgment to the remaining defendants on all
counts and, later, granted motions for attorneys’ fees and
awarded costs. The plaintiffs appeal both the summary
2 Nos. 04-1978 & 05-1033
judgment and the award of fees. We affirm the order
granting summary judgment on the merits. As to the award
of fees, we affirm in part, reverse in part, and remand to the
district court for further proceedings.
I. History
Large municipalities make extensive use of towing
services to deal with stranded vehicles, accidents, and the
like. The towing fees can be quite expensive for motorists
and profitable to the companies furnishing the tow trucks.
Since at least 1968, the Lake County, Illinois, Sheriff’s
Department has implemented a system that spreads this
wealth among certain of the county’s towing operators. The
department maintains a list of “approved” towers, each of
which is assigned a particular territory within the county.
When the department requires the services of a tow truck,
the sheriff’s dispatcher calls the towing company of the
vehicle operator’s choice; if no tower is specified, the
dispatcher calls the listed tower whose territory includes
the location of the vehicle in question.
The various Lake County sheriffs implementing this
system over the years have done so without the benefit of
any local ordinances or written procedures, guidelines, or
rules to govern the selection of which towing companies
receive a spot on the list and an assigned territory. These
assigned towing areas are occasionally redrawn and towers
added or removed from the list, particularly following
elections. From 1997-1999, there were about a dozen towers
on the list.
Roger Whitmore (“Roger1”), president of Roger Whitmore’s
Automotive Services, Inc. (“Roger’s”), operates a listed
1
Both parties use this convention, so we shall follow suit for
simplicity’s sake. In addition, “Roger” denotes both plaintiffs— the
person and the corporation—collectively.
Nos. 04-1978 & 05-1033 3
towing service that has done work for the sheriff’s depart-
ment since 1972. In 1980, Roger’s was allocated a specific
towing territory in the northeastern corner of Lake County
and retained that area with some adjustments through at
least 1999. According to Roger, inclusion on the list does not
come cheap. Three different sheriffs had, over the years,
personally visited Roger in order to sell tickets for political
fund raisers. For example, Sheriff Thomas Brown made
personal appearances at Roger’s with tickets in hand.
Sheriff Mickey Babcox came to Roger’s, placed fund-raiser
tickets on the counter, and collected checks from Roger.
Sheriff Clinton Grinnell did likewise. Sheriff’s deputies
often followed up these visits, to pick up checks or to verify
that Roger would be attending the fund raisers.
Roger felt pressured to purchase the tickets for several
reasons. For one, the officers appeared at Roger’s business
openly displaying badge and gun. Plus, Roger had heard
rumors that a towing company refusing to purchase tickets
had found itself “kicked off” the approved list. Roger
therefore felt intimidated and concluded that he had no
choice but to purchase the tickets, because otherwise
“maybe they would take [his] business away.” Even when
some sheriffs mailed tickets, rather than making personal
appearances, Roger felt “slightly uncomfortable.” Until
1998, Roger always supported the incumbent sheriff during
elections.
A. Del Re’s Campaign for Sheriff
In 1996, Sheriff Grinnell retired, and the county board
appointed Undersheriff Gary Del Re as Grinnell’s replace-
ment for the remainder of the term. When Del Re assumed
the helm as Grinnell’s replacement, he delegated responsi-
bility for all towing matters to Gary Stryker, his replace-
ment as undersheriff. In 1997, Del Re kicked off a campaign
to be elected sheriff in his own right. Del Re duly formed a
4 Nos. 04-1978 & 05-1033
campaign committee that included Stryker and several
others. The committee was officially in charge of obtaining
campaign contributions for Del Re and for filing all required
disclosure forms. Del Re also enlisted the services of Tom
Crichton, a real estate broker, who had extensive experi-
ence (including fund raising) in various political campaigns
in Lake County and statewide.
During the campaign, Crichton introduced Del Re, who
was relatively new to Lake County, to various business
owners in the county. The parties dispute whether Del Re’s
meet-and-greets were for the purpose of soliciting campaign
funds.2 Of the businesses Del Re visited, only three of them
2
Of course, we construe all facts and draw all reasonable
inferences in Roger’s favor. McDonald v. Vill. of Winnetka, 371
F.3d 992, 1001 (7th Cir. 2004). We take this opportunity, however,
to note that Roger repeatedly violated Local Rule 56.1 of the
Northern District of Illinois in the manner in which he contested
summary judgment in the court below. As we have often pointed
out, L.R. 56.1 and similar rules assist the district court by
“organizing the evidence, identifying undisputed facts, and
demonstrating precisely how each side proposed to prove
a disputed fact with admissible evidence.” Bordelon v. Chi. Sch.
Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000) (citation
omitted). It is not the duty of the district court to scour the record
in search of material factual disputes, nor is it ours. See Carter v.
Am. Oil Co., 139 F.3d 1158, 1163 (7th Cir. 1998); United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not
like pigs, hunting for truffles buried in” the record.).
Roger took the wrong approach—in several egregious examples,
Roger denies certain of the defendants’ factual assertions
by citation to all 244 paragraphs of his own statement of facts.
Roger also repeatedly responds to factual assertions with
conclusory allegations that the statements are “fabrications.”
Needless to say, this does not cut it. It is true, as Roger blithely
reminds us, that this court’s duty is to review the entire record.
(continued...)
Nos. 04-1978 & 05-1033 5
were towing operators—Ray’s Shell, A-Tire, and Max
Johnson’s Auto Center. Johnson’s was a used car dealership
that provided the sheriff’s department with a number of
vehicles for use in undercover investigations. Johnson’s was
also a backup tower for the sheriff’s department and not on
the approved list.
Roger initially supported Del Re’s campaign for sheriff. In
February 1998, however, Roger decided to switch his
support to Willie Smith, Del Re’s challenger in the primary
election. Roger’s change of heart came about following a
conversation with another towing operator, Ernie Vole. Vole
passed on a rumor that Wildwood Towing Service “had the
ear of Sheriff Del Re” and was working to exclude Roger’s
from a new towing area coming open due to an operator
being dropped from the list. According to the rumor, Del Re
had planned to split the new territory between Roger’s and
Wildwood, but Wally Herman, Wildwood’s owner, convinced
Del Re to “screw” Roger’s and give Wildwood the entire
territory.
Shortly after his conversation with Vole, Roger contacted
Undersheriff Stryker and asked about the rumors. Stryker
denied them as “nonsense,” but Roger was not convinced.
He also believed that Willie Smith had a decent shot of
winning the election and would be more accessible than Del
Re, who, Roger believed, didn’t “like to return his phone
2
(...continued)
But de novo review does not mean that we must make and support
the parties’ arguments for them, even if the district court did not
take Roger to task for failure to follow L.R. 56.1. It is the parties’
duty to package, present, and support their arguments, and we
shall not waste our time searching in vain for a dispute of
material fact if we come across a factual contention or denial not
adequately supported in the record by citation to admissible
evidence. Cf. Albrechtsen v. Bd. of Regents of the Univ. of Wis.
Sys., 309 F.3d 433, 436 (7th Cir. 2002).
6 Nos. 04-1978 & 05-1033
calls and stuff like that.” Thereafter, Roger attended several
fund raisers for Smith. Smith promised Roger that he would
be “fair” in towing area distributions, which Roger inter-
preted to mean that Smith would “divvy” the new towing
area between Roger’s and Wildwood. Roger donated $500 to
Smith for his primary challenge. Roger also lent Smith a
van from his shop at no charge for use in campaigning. A-
Tire and Ernie’s Wrecker Service (owned by Vole), both on
the approved list, also supported Smith and donated money
to his primary campaign ($1000 and $500, respectively).
Later, Roger informed Undersheriff Stryker that he and
his brother Randy (who owned Whitmore’s Service, another
approved tow operator) had decided to support Smith.
Stryker expressed disappointment with the brothers’
decision.
Unfortunately for Smith and his backers, however, Del Re
won the primary election in April 1998. Shortly thereafter,
in June 1998, Roger donated $250 to Del Re’s general
election campaign. Other Smith backers, including A-Tire,
Ernie’s Wrecker Service, and Roger’s brother, did likewise,
contributing various sums. Del Re went on to win the
general election in November of 1998, and towing matters
proceeded as normal for the remainder of 1998. Roger’s
continued to tow for the sheriff’s department as it had
before, and for a while, Roger did not notice any difference
in the way his company was being treated by the depart-
ment.
B. Del Re’s Modification of Towing Areas
Sometime in early 1999, Del Re decided to change the
towing boundaries. Del Re discussed his decision with
Stryker and brought up the possibility of having Max
Johnson do some towing for the department. During Del
Re’s campaign, Johnson had spoken to Crichton to ask how
he might receive towing referrals from the department. The
Nos. 04-1978 & 05-1033 7
parties dispute whether Johnson contacted the
sheriff’s department directly to request a towing area, or if
he spoke only with Crichton. At any rate, Del Re decided to
include Johnson on the list. Del Re ordered one of his
deputies to inspect Johnson’s Auto Center as soon as
possible to ensure that it met all the requirements of the
Illinois Vehicle Code.
When devising the new towing boundaries, Stryker split
off part of Roger’s territory to give to Johnson because his
business was located within Roger’s geographic area, and
Roger’s received substantially more calls than most of the
towers on the list. In April 1999, upon Del Re’s approval of
Stryker’s plan, the sheriff’s department sent letters to each
of the twelve towers on the list advising them of the
changes. The letter stated that the department planned
to “slightly modify” assigned territories in order to “main-
tain organizational efficiency.”
As a result of the new plan, at least five of the towers
experienced changes in their towing boundaries. Roger
believed that his business suffered “significant loss” of
territory due to the split with Johnson. Ernie’s Wrecker
Service picked up all of Illinois Route 60, whereas before it
had only isolated portions of the roadway. A-Tire’s bound-
aries changed “slightly” or not at all. Randy, Roger’s
brother, lost a busy intersection. The areas of other listed
towers, including H&H Towing, Snyder’s, and Wildwood,
were modified slightly or remained the same.
C. Del Re’s Fund Raising
Unlike his predecessors, Del Re established a policy that
no uniformed officers could solicit campaign contributions;
instead, he solicited the purchase of fund-raiser tickets
through the mail. All told, Del Re received $11,585 in
campaign contributions from towing operators, out of about
$88,500 in total contributions to his primary and general
election campaigns.
8 Nos. 04-1978 & 05-1033
After winning the general election, Del Re carried
considerable campaign debt. In late summer of 1999,
Crichton formulated a plan to raise money to pay off Del
Re’s campaign debt. After consultation with Stryker,
Crichton planned a fund-raising event for that purpose.
Crichton broached the idea with towing operators Fred
Moser, Ed Kohlmeyer, and Wally Herman. Four towing
companies on the approved list—A-Tire, Johnson’s Auto
Center, Wildwood, and Ray’s Shell—contributed to the fund
raiser. Kevin’s Towing, a company not on the approved list,
donated $2000 to Del Re’s campaigns.
D. Roger’s Lawsuit
Roger was dissatisfied with Del Re’s new towing plan,
believing that it had an adverse effect on his business. In
April 1999, within weeks of receiving Del Re’s new plan,
Roger and his company filed a two count complaint against
Lake County and Del Re seeking damages and injunctive
relief pursuant to 42 U.S.C. § 1983 for alleged retaliation by
Del Re for Roger’s support of Smith in the primary election.
On April 7, 2000, the plaintiffs filed an amended complaint
adding Stryker, Del Re’s campaign committee, Crichton,
and a host of Roger’s rival towing operators. The amended
complaint also added various RICO and fraud claims. The
plaintiffs later filed a second amended complaint further
refining the RICO allegations and dropping several defen-
dants.
After several rounds of dismissals weeded out various
parties and claims, the plaintiffs had remaining a handful
of claims against a few defendants—most important for our
purposes, two RICO counts against Del Re and Stryker and
two retaliation claims brought under § 1983 against Del Re.
In March 2004, the district court granted summary judg-
ment in the defendants’ favor on all remaining counts. The
defendants also filed a motion for attorneys’ fees pursuant
Nos. 04-1978 & 05-1033 9
to 42 U.S.C. § 1988, which the district court granted. Roger
appeals the grant of summary judgment in Del Re and
Stryker’s favor, as well as the grant of attorneys’ fees.3
II. Discussion
Roger devotes much, if not most, of his briefs and argu-
ment to an extensive critique of the district court’s memo-
randum opinion. It is the district court’s judgment that we
review, however, and we do so de novo. See Corley v.
Rosewood Care Ctr., Inc., 388 F.3d 990, 1001 (7th Cir.
2004). We view the facts and make all reasonable inferences
therefrom in the light most favorable to the nonmoving
party, Roger. Id. Summary judgment is appropriate if the
record as a whole reveals no genuine issue of material fact
for trial, and the moving party therefore is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c). Thus,
summary judgment is not appropriate if a dispute about a
material fact is “ ‘genuine,’ that is, if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The nonmoving party must offer something
more than a “scintilla” of evidence to overcome summary
judgment, see id. at 252, and must do more than simply
“show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
The gravamen of Roger’s complaint is that Del Re and
Stryker punished Roger for supporting Willie Smith in the
primary race for sheriff. Roger also broadly alleges that Del
3
This is a consolidated appeal of the district court’s order
granting summary judgment and the order awarding attorneys’
fees to the defendants. The appeal of the attorneys’ fees was
submitted on the briefs.
10 Nos. 04-1978 & 05-1033
Re and Stryker operated a corrupt “pay-for-play” system for
towing in Lake County, in which the defendants intimi-
dated towing operators into donating money to Del Re’s
campaign to remain on the towing list and solicited bribes
from towing operators seeking to buy a spot on the ap-
proved list. In sum, Roger’s legal claims are that: (1) Del Re
retaliated against Roger for exercising his constitutional
right to support the political candidate of his choice (counts
7 and 8), and (2) the defendants accepted bribes, engaged in
extortion, and otherwise acted corruptly in violation of
RICO (counts 3 and 4). We take these arguments in turn.
A. Retaliation Claims
Roger brings his retaliation claims pursuant to 42 U.S.C.
§ 1983, alleging that he was punished for exercising his free
speech rights under the federal and Illinois constitutions.
The legal basis for Roger’s claims comes from companion
Supreme Court decisions issued on the same day. Bd. of
County Comm’rs, Wabaunsee County v. Umbehr, 518 U.S.
688 (1996); O’Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712 (1996). In both cases, the Court recognized the
right of independent contractors not to be retaliated against
by the government on the basis of their exercise of free
speech, expression, or association.
O’Hare involved facts superficially similar to those before
us in this case. O’Hare was a towing operator that, like
Roger, was on a rotation list of available towers. O’Hare,
518 U.S. at 715. O’Hare had been on the list for nearly
thirty years and its owner had an understanding that
O’Hare would remain on the list as long as it provided good
service. Id. Northlake’s new mayor, elected in 1989, indi-
cated that he was pleased with O’Hare’s work and would
continue using and referring its services. Id. Four years
later, the mayor’s reelection committee asked O’Hare’s
owner for a campaign contribution. Id. O’Hare’s owner
refused, however, and threw his support behind the mayor’s
Nos. 04-1978 & 05-1033 11
opponent. Id. Shortly thereafter, O’Hare was removed from
the towing rotation list in retaliation for his stance during
the campaign. Id. at 715-16.
O’Hare brought suit under § 1983, alleging that the
retaliation violated his First Amendment right of political
association. The district court dismissed O’Hare’s com-
plaint, and this court affirmed, because controlling caselaw
at the time did not recognize that independent contractors
enjoyed such a right. See id. at 716. The Court disagreed,
however, concluding that O’Hare had stated a valid consti-
tutional claim. Id. at 720-21. The Court held that independ-
ent contractors, like public employees, are protected against
retaliation by public entities for their political beliefs,
consistent with the principles set forth in prior free speech
and political affiliation cases. See id. at 726; see also id. at
716-720; Branti v. Finkel, 445 U.S. 507 (1980); Elrod v.
Burns, 427 U.S. 347 (1976); Pickering v. Bd. of Educ. of
Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). The Court
left open whether O’Hare’s case should be governed by the
Elrod-Branti line of cases, which governs political patron-
age and affiliation claims, or the Pickering line, which
governs government employee free speech claims. See
O’Hare, 518 U.S. at 726.
Umbehr involved facts less similar to ours: an independ-
ent contractor alleged that the defendant county commis-
sioners terminated his contract in retaliation for his pub-
lic criticism of the county and the board. Umbehr, 518 U.S.
at 671. The Court concluded that summary judgment in the
county board’s favor was not appropriate and held, echoing
O’Hare, that independent contractors may not be retaliated
against for the exercise of protected expression. Id. at 673.
Like the lower courts, the Court assumed that the plaintiff
had in fact suffered retaliation and concluded that the
Pickering rule was the appropriate test to evaluate the
propriety of the government’s actions. See id. at 675-80.
12 Nos. 04-1978 & 05-1033
The principles set forth in the above-cited line of cases
guide our analysis of Roger’s retaliation claims. There is
some uncertainty regarding which legal standard applies in
political retaliation cases depending on whether the
case involves political patronage or speech/affiliation. See
Heideman v. Wirsing, 7 F.3d 659, 661-62 (7th Cir. 1993). As
noted, even the Supreme Court in O’Hare, which was
factually similar to this case, left this determination open
on remand.
Regardless of which of these tests is the better fit, for
a plaintiff to prevail in a political retaliation case, it is clear
that two fundamental requirements must be satisfied: the
expression at issue must be protected, and it must have
brought about the retaliatory action complained of. See
Umbehr, 518 U.S. at 675 (“The First Amendment[ ] . . .
protects government employees from termination because of
their speech on matters of public concern . . . . To prevail,
an employee must prove that the conduct at issue was
constitutionally protected, and that it was a substantial or
motivating factor in the termination.”) (emphasis
in original, citation omitted); Spiegla v. Hull, 371 F.3d
928, 940-42 (7th Cir. 2004); Kokkinis v. Ivkovich, 185 F.3d
840, 843 (7th Cir. 1999); Nelms v. Modisett, 153 F.3d 815,
818 (7th Cir. 1998); accord Curinga v. City of Clairton, 357
F.3d 305, 310 (3d Cir. 2004); Lucas v. Monroe County, 203
F.3d 964, 973 (6th Cir. 2000). We may resolve Roger’s
retaliation claim in light of these two basic requirements,
so this framework shall suffice for our purposes.
As to whether Roger’s political support of Smith was
constitutionally protected, the parties quibble over whether
the support was for public or private purposes. The district
court agreed with the defendants that Roger’s support of
Smith was for selfish reasons, because Roger “contribut[ed]
to [Smith] hoping to get beneficial treatment by the newly
elected Sheriff and thus benefit[ ] from the same type of
alleged unlawful patronage that he alleges harmed him.”
Nos. 04-1978 & 05-1033 13
The record does seem to support the district court’s conclu-
sion that Roger’s motives were less than pure, but that
determination is irrelevant to this inquiry. We shall assume
that Roger’s campaign contributions themselves were
expressions of protected political speech or affiliation, no
matter what motives Roger may have had in making them.
E.g., Buckley v. Valeo, 424 U.S. 1, 16-19 (1976). So Roger
satisfies the first requirement.
It is at the second requirement, however, where Roger’s
retaliation case founders. As noted, Roger must present
an indication of a causal link between the protected act and
the alleged retaliation—that the act was a substantial or
motivating factor in the retaliation. Cf. Umbehr, 518 U.S.
at 675. Although Roger’s campaign support of Smith was
constitutionally protected, Roger presents very little
evidence that his political support for Smith was a substan-
tial or motivating factor in the modification of his towing
area. In fact, much of Roger’s “evidence” is simply that his
towing area changed at some point after he failed to support
Del Re in the primary election. Beyond this, Roger points,
for example, to the sheriff’s department’s lack of written
guidelines for devising towing areas as evidence of Del Re’s
“opportunity” to punish dissenters like Roger and reward
supporters. Roger claims that his brother Randy (who also
supported Smith) lost a busy intersection under the new
plan. Roger also points to Stryker being “upset” that Roger
chose not to support Del Re in the primary, and he suggests
that Del Re’s use of the phrase “organizational efficiency”
was nothing but a sham because some towers on the list did
not lose territory.
This “evidence” does not carry the day for Roger. Indeed,
it is almost as if Roger points to the lack of evidence as
proof that his case should go to trial—the first time he
failed to support an incumbent in a primary race, he
suffered a loss in towing territory. As Roger sees it, the loss
in territory, which occurred in April 1999, could only have
14 Nos. 04-1978 & 05-1033
come as retaliation for supporting Smith in early 1998, and
thus his case must proceed to trial. This is a classic post hoc
ergo propter hoc logical fallacy, which might make the grade
at the pleading stage. But to defeat summary judgment,
Roger must present something by which a jury could
connect the dots between the propter and the post, and at
best he has presented only bare speculation or a scintilla of
evidence, neither of which will suffice. See, e.g., Anderson,
477 U.S. at 251-52; Beard v. Whitley County REMC, 840
F.2d 405, 410 (7th Cir. 1988) (“[A] party who bears the
burden of proof on a particular issue may not rest on its
pleading, but must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of material
fact which requires trial.”) (emphasis in original).
On the record before us, we believe no rational jury
could conclude that Del Re modified Roger’s towing area
in retaliation for Roger’s support of Smith. Indeed, the
record appears to contain ample evidence cutting against
Roger’s position. For example, we note the substantial lapse
in time between Roger’s support of Smith and the alleged
retaliation—about fourteen months. Such a long stretch
between the protected conduct and alleged retaliation
significantly weakens any inference of a causal connection.
Cf. Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001);
Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992).
In addition, Roger and his brother were not the only
towing operators whose assigned areas changed under the
new plan. The towing area for A-Tire, which donated even
more money than Roger did to Willie Smith’s primary
campaign, was “modified slightly or not at all.” The towing
area of Ernie Vole, who donated to Smith and whose
rumor mongering helped induce Roger to do likewise,
actually increased under the new plan. Even Roger concedes
that he was unaware of any retaliation these two towers
may have suffered as a result of their support of Smith. As
for his own towing area, Roger claims that the new plan
Nos. 04-1978 & 05-1033 15
resulted in a “significant loss,” though we note that undis-
puted evidence indicates that since 1999, Roger’s ranked
either second or third among all twelve listed towing
companies in terms of volume of business generated by
sheriff’s department referral.
In any event, however Roger may measure the magnitude
of his loss, he must show the required causal link. This he
has not done, so this case is distinguishable from facially
similar cases in which plaintiffs provided evidence of
causation that precluded summary judgment. See, e.g.,
Lucas, 203 F.3d at 975 (finding that the plaintiffs presented
“overwhelming evidence that their removal from [a] tow call
list was motivated by their constitutionally protected public
criticism of the Sheriff’s Department”).
Finally, aside from the causation shortcomings noted
above, Roger points to no local laws, regulations, or guide-
lines that require Sheriff Del Re to maintain a list
of favored towing operators, let alone to do so in a pre-
scribed fashion. Therefore, as long as Del Re did not act in
a manner that offended towers’ constitutional rights, he
was free to add or remove them from the list as he saw fit.
Cf. O’Hare, 518 U.S. at 725-26; Kevin v. Thompson, 235
F.3d 1026, 1027-28 (7th Cir. 2000) (collecting authority).
Roger argues simply that his monthly towing volume (and
therefore revenue) dropped, but that of course is consistent
with the reduction in his towing area. He has not, however,
shown that the reduction in towing area was improper—i.e.,
in retaliation for his protected expression. The fact that the
Constitution extends some First Amendment protection to
independent contractors like Roger does not mean that he
enjoys some constitutional guarantee to a particular towing
area.
For all of these reasons, the district court properly
granted summary judgment on Roger’s retaliation claims.
16 Nos. 04-1978 & 05-1033
B. RICO Claims
Roger’s RICO claims purport violations of 18 U.S.C.
§§ 1962(c) and 1962(d). We first tackle the § 1962(c) claims.
To prove a violation of § 1962(c), a plaintiff must establish
that there has been (1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity. See Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). A pattern
of racketeering activity consists of at least two predicate
acts of racketeering committed within a ten-year period. 18
U.S.C. § 1961(5).
Roger asserts that the enterprises in question are Del
Re’s election committee and the Lake County Sheriff’s
Department. He argues that the racketeering activity
consists of the defendants’ solicitation and acceptance of
various contributions relating to Del Re’s primary and
general elections. In essence, Roger claims that the defen-
dants enforced a corrupt “pay-for-play” system in which
towers bribed their way onto the approved list or felt
intimidated into making sizable campaign contributions so
that Del Re would not take their business away. Roger
alleges the following predicate acts in connection with
defendants’ scheme: (1) extortion in violation of the Hobbs
Act, 18 U.S.C. § 1951; (2) mail fraud, 18 U.S.C. § 1341; (3)
wire fraud, 18 U.S.C. § 1343; and (4) bribery and intimida-
tion in violation of Illinois law, 720 Ill. Comp. Stat. 5/33-1
and 5/12-6.
At the outset, we note that it is far from clear that the
defendants’ deeds qualify as racketeering activity, particu-
larly the alleged violations of the Hobbs Act. It is undis-
puted that the ultimate object of the alleged predicate
acts was to raise money for Del Re’s primary and general
election campaigns. Campaign contributions, of course, are
not in and of themselves illegal, and they reflect the nature
of the American political system for better or worse. E.g.,
McCormick v. United States, 500 U.S. 257, 272-74 (1991);
Nos. 04-1978 & 05-1033 17
United States v. Giles, 246 F.3d 966, 972 (7th Cir. 2001);
United States v. Allen, 10 F.3d 405, 410-11 (7th Cir. 1993).
Illinois law authorizes the sort of solicitation of campaign
contributions at issue in this case. See 10 Ill. Comp. Stat.
5/9-1.4(2). Yet Roger claims that the defendants engaged in
Hobbs Act extortion, defined as “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).
In cases in which “color of official right” extortion is
alleged, it can be difficult to separate above-board political
contributions from the shady. Cf. Giles, 246 F.3d at 972(“[C]ampaign contributions often are made with the hope
that the recipient, if elected, will further interests with
which the contributor agrees; there is nothing illegal about
such contributions.”). The Supreme Court therefore requires
proof of a quid pro quo. Evans v. United States, 504 U.S.
255, 268 (1992) (“[T]he [plaintiff] need only show that a
public official has obtained a payment to which he was not
entitled, knowing that the payment was made in return for
official acts.”); Giles, 246 F.3d at 972 (“To distinguish legal
from illegal campaign contributions, it makes sense to
require the [plaintiff] to prove that a particular contribution
was made in exchange for an explicit promise or undertak-
ing by the official.”). For the other type of Hobbs Act
extortion at issue—the fear-induced variety—the victim’s
fear must be reasonable. See Sutherland v. O’Malley, 882
F.2d 1196, 1202 (7th Cir. 1989).
For either type of extortion, Roger’s evidence is woefully
inadequate. Roger offers no objective evidence that the
defendants were extorting the campaign funds from him or
other towing operators. Instead, Roger merely points to
evidence that Del Re accepted money from him and other
towers (which, of course, is undisputed) and contends that
the contributions could only have been in exchange for
presence on the list or from fear of being removed from the
18 Nos. 04-1978 & 05-1033
list. Roger relies heavily on subjective belief that the
payments were a sort of quid pro quo or offered out of fear.
For example, he offers the fact that towers made up a
disproportionate percentage of Del Re’s campaign contribu-
tions. He claims that the defendants received one contribu-
tion of cash in an envelope, and argues that Del Re violated
his rule prohibiting face-to-face solicitation. Roger also
testified to his discomfort at having sheriffs sporting guns
and badges personally pick up contributions and cites
isolated testimony from a fellow tower that “it helps” to
make contributions to the incumbent sheriff. All of this,
Roger contends, is proof that the defendants extorted funds
from towers.
We do not believe a rational jury could find in Roger’s
favor on the basis of this evidence. For one, it should hardly
be surprising that towers made up a disproportionate
percentage of Del Re’s campaign contributions, given the
manner in which the Lake County sheriff’s department has
long used a list of approved towers. Cf. Allen, 10 F.3d at 411(“It would be naive to suppose that contributors do not
expect some benefit—support for favorable legislation, for
example—for their contributions.”). This is the very nature
of politics, and in the absence of evidence indicating some
wrongdoing independent of legal solicitation of campaign
contributions, this proportional disparity is evidence of
nothing. As stated, Illinois law expressly allows for solicita-
tion of contributions like Del Re’s, so merely accepting cash
is not evidence of extortion, especially when there is no
separate evidence of an explicit, promised quid pro quo. See
Evans, 504 U.S. at 268; cf. United States v. Martin, 195
F.3d 961, 966 (7th Cir. 1999) (collecting authority).
Likewise, Roger’s bald assertion that he and other towers
had been intimidated does not carry the day. As noted, any
fear that Roger or the others may have felt must be reason-
able. This is where Roger’s failure to present some objective
evidence of extortion—for example, historical data tying the
Nos. 04-1978 & 05-1033 19
award or denial of towing to contributions made or not
made—becomes a serious problem for Roger’s case. If a
plaintiff’s subjective discomfort with uniformed and armed
law enforcement officers dropping by for contributions is
enough to qualify as Hobbs Act extortion, it won’t be long
before all police fund raisers (for political or other purposes)
come to an end. There must be objective evidence to indi-
cate that the plaintiff’s fears are reasonable and otherwise
to allow a jury to find Hobbs Act extortion; we find none in
this record to satisfy Roger’s burden of establishing a
material issue of fact for trial.
In any event, we need not delve into a discussion of
whatever flaws there may be in the remaining predicate
acts that allegedly amount to racketeering activity. Even if
we generously assume that all of the remaining acts in
question so qualify, Roger still must show a pattern of
racketeering activity. The Supreme Court long ago made
clear that the statutory definition of a pattern—two racke-
teering acts within ten years—did “not so much define a
pattern of racketeering activity as state a minimum
necessary condition for the existence of such a pattern.”
H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229, 237 (1989). To
establish a pattern of racketeering activity, a plaintiff must
show continued criminal activity (or the threat thereof) and
relationship between the predicate acts—a standard
commonly dubbed the “continuity plus relationship” test.
See id. at 239.
Relatedness of the alleged predicate acts does not pose a
problem here. All of the acts complained of were indisput-
ably for the purpose of raising funds for Del Re’s primary
and general election campaigns or paying off his campaign
debt, so we shall assume that Roger meets the relationship
prong. See id. at 240 (teaching that predicate acts are
related if they have “the same or similar purposes, results,
participants, victims, or methods of commission, or other-
20 Nos. 04-1978 & 05-1033
wise are interrelated by distinguishing characteristics and
are not isolated events”) (citation omitted).
Roger does not, however, supply sufficient evidence to
satisfy the continuity prong. As the Court has noted,
continuity is “both a closed- and open-ended concept.” Id. at
241. As its name suggests, a closed period of racketeering
activity involves a course of criminal conduct that has
ended. A plaintiff may demonstrate a closed period of
continuity by proving a series of related predicates extend-
ing over a substantial period of time. Id. at 242. On the
other hand, an open-ended period of racketeering is a
course of criminal conduct that lacks the duration and
repetition to establish continuity. A plaintiff may neverthe-
less satisfy continuity by showing past conduct that by its
nature projects into the future with a threat of repetition.
See id. To summarize, a RICO plaintiff can satisfy the
continuity prong either by (1) demonstrating a close-ended
series of conduct that existed for such an extended period of
time that a threat of future harm is implicit, or (2) an open-
ended series of conduct that, while short-lived, shows clear
signs of threatening to continue into the future. See Mid-
west Grinding Co. v. Spitz, 976 F.2d 1016, 1023 (7th Cir.
1992).
This court has analyzed continuity under a multifactor
test, in which we consider (1) the number and variety of
predicate acts and the length of time over which they were
committed, (2) the number of victims, (3) the presence of
separate schemes, and (4) the occurrence of distinct inju-
ries. See Morgan v. Bank of Waukegan, 804 F.2d 970, 975
(7th Cir. 1986). No one factor is dispositive of a claim. Olive
Can Co. v. Martin, 906 F.2d 1147, 1151 (7th Cir. 1990).
Rather, our analysis of the continuity prong is fact-specific
and undertaken with the goal of achieving a “natural and
commonsense” result, consistent with Congress’s concern
with long-term criminal conduct. See id.; see also Vicom,
Nos. 04-1978 & 05-1033 21
Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 780 (7th
Cir. 1994) (citations omitted); Sutherland, 882 F.2d at 1204.
Analysis of the various factors present in this case leads
us to conclude that Roger has not shown closed-ended
continuity. As previously noted, Roger’s RICO claim is
against both Del Re and Stryker. The campaign contribu-
tions at issue spanned at most about two years—from 1997,
when Del Re started off his campaign for sheriff, to 1999,
when Del Re solicited donations to pay off his campaign
debt. Perhaps the most important element of RICO continu-
ity is its temporal aspect. See, e.g., Midwest Grinding Co.,
976 F.2d at 1024. Although we have not employed a bright-
line rule for how long a closed period must be to satisfy
continuity, we have not hesitated to find that closed periods
of several months to several years did not qualify as “sub-
stantial” enough to satisfy continuity. See id. (citing H.J.
Inc. and collecting additional authority).
Likewise, the number of predicate acts alleged is not
large. Roger points to several different instances of what he
believes to be mail fraud—mailings of solicitations for
purchase of fund-raising tickets and Del Re’s notice to
towers that the towing areas would be revised. Roger also
claims that various phone calls between Johnson and
Crichton and the department constituted wire fraud.
Finally, Roger broadly asserts that the handful of face-to-
face meetings between the defendants and some towing
operators constituted bribery and intimidation. The fairly
small number of predicate acts cuts against showing
continuity, particularly when a large proportion of the
acts involved wire or mail fraud, neither of which are
favored means of establishing a RICO pattern in this
circuit. See Vicom, 20 F.3d at 781 (collecting authority).
What is more, the victims of the defendants’ activities
were confined to a small group—the dozen or so approved
towers from 1997 to 1999—which does not help Roger’s case
22 Nos. 04-1978 & 05-1033
for continuity. Cf. W. Assocs. Ltd. v. Market Square Assocs.,
235 F.3d 629, 635 (D.C. Cir. 2001) (distinguishing a single
“set” of victims from a “class of victims who are all similarly
and directly injured”). Most important, Roger alleges only
one overarching scheme—that the defendants illegally
obtained contributions to fund Del Re’s election campaign.
Although a RICO pattern may be established on the basis
of a single scheme, “it is not irrelevant, in analyzing the
continuity requirement, that there is only one scheme.”
Sutherland, 882 F.2d at 1204 (citing H.J. Inc., 492 U.S. at
240); U.S. Textiles, Inc. v. Anheuser-Busch Co., 911 F.2d
1261, 1269 (7th Cir. 1990). The campaign at issue was Del
Re’s first, and all of the predicate acts alleged were for the
purpose of raising money for that campaign. There is no
indication that the defendants engaged in any other
racketeering scheme before or after that closed period
associated with Del Re’s campaign, or that there was a
concurrent and unrelated scheme to use the campaign
contributions for other purposes. Thus, the fact that we are
faced with a single, isolated scheme with a confined set of
victims also supports the conclusion that Roger has not
shown closed-ended continuity, even if we generously
assume that the alleged scheme brought about distinct
injuries to the affected towers.
We also conclude that Roger has not established open-
ended continuity. Instead of presenting meaningful evi-
dence and argument on this score, Roger merely recites the
legal standard for showing open-ended continuity
and complains that the district court “did not credit mate-
rial evidence as to pattern.” Conclusory and unsupported
allegations of this sort will not carry the day for Roger. Cf.
Vicom, 20 F.3d at 783 (“A threat of continuity cannot be
found from bald assertions. . . .”).
In any event, schemes with a “clear and terminable goal
have a natural ending point.” Id. at 782. As discussed,
Roger has alleged that defendants’ scheme involved raising
Nos. 04-1978 & 05-1033 23
funds for Del Re’s 1998 campaign (both the primary and the
general election) and retirement of its campaign debt. All of
the predicate acts Roger alleged related to the solicitation
of funds for the 1998 campaign. In this regard, Roger
pleaded himself out of showing a continuing threat of
continued activity, because the alleged scheme had a
natural ending point when Del Re was elected sheriff and
he retired the debt accrued in that campaign. See id.; Olive
Can, 906 F.2d at 1151; accord Hindes v. Castle, 937 F.2d
868, 874 (3d Cir. 1991); Int’l Bhd. of Teamsters v. Carey, 297
F. Supp. 2d 706, 718 (S.D.N.Y. 2004), aff’d sub nom., 124
Fed. Appx. 41 (2d Cir. 2005). Nor has Roger offered any-
thing more than the unadorned allegation in his complaint
that “the schemes were a regular . . . way the enterprises
did business”; a generous review of the record does not
indicate the existence of evidence to satisfy that aspect of
open-ended continuity. Cf. Vicom, 20 F.3d at 784.
In sum, our review of the record supports the conclusion
that Roger has not satisfied the continuity prong and thus
has not presented evidence of a RICO pattern sufficient
to survive summary judgment on his § 1962(c) claim. This is
a “natural and commonsense” result, given the facts alleged
and our analysis of the various continuity factors. See, e.g.,
U.S. Textiles, 911 F.2d at 1269.
As for Roger’s § 1962(d) claim, he again offers only his
conclusory assertion that a conspiracy must be present,
because the defendants’ conspiratorial intent can be shown
through circumstantial evidence—namely, the fact that the
defendants were present “when illegal acts occur[red].” This
is wholly inadequate. A conspiracy to violate RICO may be
shown “by proof that the [defendant], by his words or
actions, objectively manifested an agreement to participate,
directly or indirectly, in the affairs of an enterprise, through
the commission of two or more predicate crimes.” United
States v. Neapolitan, 791 F.2d 489, 497 (7th Cir. 1986)
(citation omitted); see also Gagan v. Am. Cablevision, Inc.,
24 Nos. 04-1978 & 05-1033
77 F.3d 951, 961 (7th Cir. 1996). The fact that defendants
may have been physically present during commission of
predicate acts, without more, is insufficient to defeat
summary judgment on the § 1962(d) claim (indeed, such an
expansive view would transform virtually all substantive
RICO violations into conspiracies). Roger steers us to no
specific evidence sufficient to raise a material issue of fact
on this score, nor does our review of the record reveal such
evidence. The district court properly granted summary
judgment on Roger’s § 1962(d) claim.
C. Attorneys’ Fees
At last, we turn to Roger’s appeal of the district court’s
order awarding attorneys’ fees.
Recall that the district court granted the defendants’
motion for summary judgment in its entirety in March
2004. Thereafter, Lake County (which in March 2001 was
dismissed from the action) and Del Re filed a motion for
attorneys’ fees pursuant to 42 U.S.C. § 1988 on the basis
that Roger’s suit was frivolous. The district court referred
the issue to a magistrate judge, who recommended that Del
Re be awarded $91,271.50 in fees, but that Lake County’s
claim be denied. The district court adopted the magistrate
judge’s recommendation with regard to Del Re, but dis-
agreed with the recommendation regarding Lake County.
On December 3, 2004, the district court entered an opinion
and order awarding Lake County and Del Re $110,331.50
in fees and $4,154.74 in costs.
Section 1988 provides for the award of attorneys’ fees
to the prevailing party in a § 1983 action. 42 U.S.C.
§ 1988(b). Although the statute specifies the award of such
fees is within the court’s discretion, it is clear that prevail-
ing defendants have a much harder row to hoe than do
prevailing plaintiffs. See Gonzalez v. Transfer Tech., Inc.,
301 F.3d 608, 609 (7th Cir. 2002). A prevailing defendant
Nos. 04-1978 & 05-1033 25
may be entitled to fees only in cases in which the plain-
tiff’s action was frivolous, unreasonable, or groundless. Cf.
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978); see also Hughes v. Rowe, 449 U.S. 5, 14-15 (1980)
(extending Christianburg’s Title VII fee-shifting standard
in the § 1983 context); Khan v. Gallitano, 180 F.3d 829, 837
(7th Cir. 1999); Hamer v. County of Lake, 819 F.2d 1362,
1367 (7th Cir. 1987). We have defined a suit as frivolous “if
it has no reasonable basis, whether in fact or in law.”
Tarkowski v. County of Lake, 775 F.2d 173, 176 (7th Cir.
1985).
We review decisions awarding attorneys’ fees for abuse of
discretion, taking into consideration whether the district
court properly applied the Christianburg standard and
whether the court’s findings are supported by the record.
Hamilton v. Daley, 777 F.2d 1207, 1212 (7th Cir. 1985).
Having done so, we cannot agree with the district court’s
conclusion that Roger’s retaliation claims against Del Re
were frivolous. O’Hare and Umbehr expanded First Amend-
ment protection to cover independent contractors like
Roger, and O’Hare’s facts are facially quite similar to those
in this case. As our extensive discussion of Roger’s claims
on the merits indicates, Roger’s theory of the case was not
so lacking in reasonableness that it should be deemed
frivolous and thus eligible for fee-shifting under § 1988. As
to Roger’s claims against Del Re, we cannot conclude that
Roger’s counsel failed to conduct a sufficient legal and
factual investigation. Cf. LaSalle Nat’l Bank of Chi. v.
County of DuPage, 10 F.3d 1333, 1340 (7th Cir. 1993). True,
it was ultimately revealed that Roger’s evidence established
that his case was weak at best—so weak, in fact, that no
triable issues of fact could be discerned and the defendants
were entitled to summary judgment in the entirety. But a
weak case does not a frivolous case make, so we must
conclude that the district court abused its discretion with
regard to the award of fees in Del Re’s favor.
26 Nos. 04-1978 & 05-1033
Matters become much trickier with regard to Lake
County, however. Roger filed his original complaint pursu-
ant to 42 U.S.C. § 1983 in April 1999, naming only Lake
County and Sheriff Del Re as defendants and alleging
deprivation of Roger’s free speech rights, among other
things. He later amended his complaint to state that “the
County ceded all towing authority to Del Re, [Del Re] acted
on behalf of the County regarding the matters set forth
herein, and the County is responsible for his actions.”
In August 2000, the defendants filed a motion to dismiss
the complaint against it. In March 2001, Judge Gottschall,
the district judge to whom the case was then assigned,
granted the motion with respect to Lake County, among
others, noting that the plaintiffs had conceded that the
county was not a proper party defendant and admonishing
that “[t]he court cannot imagine how plaintiffs can justify
naming the county in these counts consistent with Rule 11.”
(R. 63 at 8.)
It was on this basis that the magistrate judge apparently
concluded that Roger’s suit against the county was frivo-
lous. The magistrate judge did not, however, recommend an
award of fees to the county because it failed to mitigate its
losses. As noted, the district court disagreed with the
magistrate judge’s conclusion with regard to mitigation.
Under the deferential standard of review in play here, we
cannot say that the district judge committed error when he
concluded that the case against Lake County was frivolous,
particularly in light of the reasoning of Judge Gottschall
and the magistrate judge. At the time Roger filed his suit,
under clearly established law, Lake County was not a
proper party defendant under the apparent theory of joint
or vicarious liability that Roger pleaded. See Monell v. Dep’t
of Soc. Servs. of the City of New York, 436 U.S. 658, 692
(1978); Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th
Cir. 1995). Thus, Roger’s claim against Lake County had no
Nos. 04-1978 & 05-1033 27
reasonable legal basis. See Tarkowski, 775 F.2d at 176; see
also Hamer, 819 F.2d at1367 (noting that “it is the responsi-
bility of counsel to know the law and to know whether a
claim is clearly foreclosed by precedent”) (citation omitted).
Roger is not helped by the fact that later developments in
the law clarified that Illinois counties may properly be
pleaded as necessary parties in suits seeking damages
against independently elected sheriffs like Del Re. See
Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th
Cir. 2003). This clarification relates not to substantive
liability of the sort Roger alleged, but instead addresses
Illinois law that requires counties to bear financial respon-
sibility for damages in such suits.
We therefore affirm the award of fees to Lake County,
because we cannot say that the court’s finding of frivolous-
ness was an abuse of discretion. We note, however, that the
district court provided only the most cursory explanation for
its determination that the county had no need to mitigate
its damages. See Mary Beth G. v. City of Chicago, 723 F.2d
1263, 1278 (7th Cir. 1984) (noting that district courts must
provide clear explanations and make sufficient factual
findings to assist appellate review); cf. Leffler v. Meer, 936
F.2d 981, 987 (7th Cir. 1991). Moreover, the court lumped
together the fees awarded to both Del Re and the county,
and it is not clear to us that the difference between the
district judge’s award of fees and the magistrate judge’s
award of fees accurately represents the county’s share. On
remand, the district court shall determine what reasonable
attorneys’ fees Lake County alone may be entitled to, and
it should provide a reasoned explanation for its conclusions
regarding mitigation or any other relevant issue bearing on
the award of fees. See id.Lastly, we note that the plaintiffs do not challenge the
district court’s award of costs to Del Re and Lake County;
that portion of the court’s order shall stand.
28 Nos. 04-1978 & 05-1033
III. Conclusion
For the reasons stated, we AFFIRM the district court’s
order granting summary judgment in the defendants’ favor.
We REVERSE the award of fees in Del Re’s favor and
REMAND for a determination of the appropriate amount,
if any, to be awarded to Lake County.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-22-05