Stephen Buckley, Plaintiff-Appellee-Cross-Appellant v. J. Michael Fitzsimmons, Defendants-Appellants-Cross-Appellees

1230 withdrawal, ly of which he had cases not act of cited that were

affirmative case, point; lawyer in termi- it is suggestion no this for the rare who will there is participation conspiracy. acknowledge that he no cases to cite. nate Patel, (7th having point 879 F.2d 292 But found no cases v. United States Borelli, given v. Cir.1989); government 336 could still have us rea- United States (2d Cir.1964). extending 376, conspiracy for cases to 388-89 sons F.2d aiding abetting cases of and or of conduct- copartici- similar rule for Is there a ing illegal an enterprise. govern- The enterprise—“co-schem illegal pants in an ment's submission is limited to three cases ers,” government Or calls them? as government that do not stand for what the abettors? But how does one for aiders and enough claims That is stand for. agreement that one is from an withdraw preserve point. Janis entitled on you an to? For can be aider party not a retrial statute to a of limitations instruc- being of an offense without abettor tion. offender, principal co-conspirator of the questions He also the denial of his mo- example you assist the offender with Giovannetti’s, his tion sever case from agreed might having out to do so—he but issue is moot because new trial your assistance. United even be aware ordering that we are will have one but (3d 22, 576 29 Krogstad, v. F.2d States summarize, then, defendant: Janis. To your It not follow that affirmed, Giovannetti’s but conviction his liability for acts would be as extensive Janis’s conviction reversed and the case conspiracy, as had United if there been is remanded for a trial him in new (2d Blitz, 1329, F.2d 1346-47 v. States conformity principles with set forth Cir.1976)—though is plenty there of author opinion. Sellers, ity v. that it would. United States (5th Cir.1973), 483 F.2d and cases IN IN PART, PART, AFFIRMED REVERSED AND there. cited Remanded. only government’s response to these The (two cite

conundra has been to three eases brief, argument), one without its at oral

disclosing are conspiracy that these cases involving either the con rather than cases BUCKLEY, Stephen enterprise illegal aiding ducting of or Plaintiff-Appellee-Cross-Appellant, press abetting. litigant A who fails to point pertinent by supporting v. good by showing why it is a authority, or FITZSIMMONS, al., J. Michael et point supporting authority despite a lack of Defendants-Appellants-Cross-Appellees. contrary authority, the face for Nos. 89-2899 89-2900. Motors, point. Inc. feits the Bob Willow Corp., Motors F.2d General Appeals, United States Court (7th Cir.1989); Fed.R.App.P. 28(a)(4). We Seventh Circuit. for him. will not do his research Sanchez Argued Sept. 1990. Miller, (7th Cir.1986). 792 F.2d principles apply waiver Decided Dec. government in cases criminal as much As on Grant Amended private litigation. party in civil United 14, 1991. Clarification Jan. (7th Malin, F.2d States v. Woods, Cir.1990); United States v. Cir.1989); cf. Thomas Indiana, Cir. not,

1990). in a to which no We would

previous pertinent, cases were consider

litigant challenge to have mere- waived Stainthorp, Peo- L. Taylor, John Flint G. Ill., plaintiff- Office, Chicago, Law

ples appellee. Hervas, Sotos, E. Charles James G. Condon, Schirott, W. R. Michael

James Ill., Itasca, Mary P. Associates, & Schirott Gen., Topeka, Atty. Wetting, Office Kan., for defendant-appellant County of Innocent defendants, rightly feeling put DuPage. upon, may respond to governmental indifference turning on their accusers, Hervas, Charles E. Phillip A. Luetke- making them defendants in turn. They hans, Sotos, James G. Schirott, James R. demand that the prosecutors, police, and Condon, Michael W. Associates, Schirott & dig witnesses into their pockets own Itasca, Ill., Steve A. Schwarm, Asst. Atty. provide recompense. If courts quick Gen., Gen., Office of Atty. Topeka, Kan., ly and reliably identify prosecu malicious for defendant-appellant J. Michael Fitzsim- tions, those in which the case was manufac mons. tured or unattainable, conviction might Sotos, James G. Hervas, Charles E. make sense to award damages, to cause Schirott, James R. Condon, Michael prosecutors W. with the power destroy oth Schirott Associates, Itasca, & Ill., ers’ Steve lives to jobs A. do their with the care that Schwarm, Atty. Gen., Asst. Topeka, Kan., responsibilities require. But legal for defendants-appellees system is Knight, quick Thomas neither nor infallible. To Patrick King, Ryan allow a James search and Robert for Ki- malicious prose or weak lander. cutions is to litigation license any defen option. dant’s And if prosecu malicious rare, tions are WOOD, then even Jr., Before a low rate of and error against suits EASTERBROOK, prosecutors will lead to Circuit Judges, and more positives false than FAIRCHILD, to vindication of Senior Judge. Circuit just claims. Given the error inevitable in our legal system criminal prosecutions EASTERBROOK, —in Judge. Circuit as well as in follow-on litigation civil —a Probable cause enough is to initiate a system personal prosecutors prosecution. criminal It proof takes be- and witnesses do would more discourage yond a reasonable doubt to convict. That the activity of prosecution (or criminal tes difference, together with uncertainties in tifying) than to prosecutors make the and what the show, evidence implies will that witnesses more careful and honest. Be some persons innocent will prosecuted. cause criminal prosecutions regularly do supposed Trial is to filter innocent, out the good bad, more than prosecu a task it serves ifwell imperfectly. tors have no way to use these social bene

Accusation and trial fits to are offset the wrenching expe- damages they could be riences, especially called to pay for the on when their injure innocent. On activities top innocent, trauma expense comes courts have and often the concluded that prosecutors both loss of pending freedom disposition. generally witnesses How are society should immune from respond when an innocent account of errors. person prosecuted? Imbler v. Pachtman, Apologies are mild balm at (1976); Money best. is more Bris effective. LaHue, coe v. Compensation 460 U.S. only not would aid the invol- (1983). untary L.Ed.2d 96 participant in the justice criminal system but also would induce prosecutors How far does this immunity extend? to evaluate cases carefully, taking Does it process cover the of investigating account of the costs the defendants. and evaluating a case as well the trial prosecutors Yet rarely apologize, and so, itself? If it could throw blanket of states do compensate defendants ac- immunity over acts that lead to liabili quitted by jury, whom ty performed by when police, see Jones charges dropped. are Often apolo- neither Chicago, (7th Cir.1988); F.2d 985 gy nor compensation order, is in because Smith v. Springer, 859 F.2d 31 Cir. suspect guilty but for one reason or 1988), decision after remand under the another convicted. Sometimes both name v. Chicago, Smith 913 F.2d 469 for, are called but they are almost not, never If criminal defendants can forthcoming. evade the by established Imbler Hernandez police officer. said began, become that, the trial before asserting between conversation he overheard precisely prepared do prosecutors “Ricky” which Buckley and Stephen create the same That they did. what the crime. Sam “Ricky” talked about retaliatory error, exposure risk of high unemployed Buckley, down and Briscoe are tracked Imbler counterstrikes, having Buckley admitted dropout. how far school must decide We avert. meant to bootprint in the like those soles shoes with in a world extend immunity doctrines brought them to Sam He door. governmen- option, logical most which analysis. by Monell closed may well be liability, tal Services, Social Department the identifi- the head of Gorayczyk, John County crime in the section cation Buckley’s shoes laboratory, decided that I were the soles bootprint: not match did old, home Nicarico, years Jeanine differ- a little same, the heels were but February Friday, German, the flu on scien- forensic Edward R. ent. teacher, Patricia, came home laboratory, mother Her crime in the Illinois state tist to Jeanine, returned then fix lunch for

to he conclud- positive: only a little was someone after that long Not school. have at “could best” shoe ed that Nicarico to door in front kicked sent the then Prosecutors print. made bedclothes, up in home, Olsen, trussed Jeanine the Kansas Robert shoe to the walls Marks on her off. Identification, and carried who concluded Bureau to her mute witness jamb bore and door matched “probably” Buckley’s shoe that no took The intruder to resist. efforts Prosecutors also door. marks on the the blanket than nothing other Robbins, professor of a brought in Louise valuables — Hernandez, People occupant. and its University of North at the anthropology 293, 117 Ill.Dec. Robbins, 121 Ill.2d la- who at Greensboro. Carolina identify N.E.2d 26-27 could that she ter testified certainty if she even a shoe with wearer into the Jeanine kidnapper drove The shoes, with different only prints made had over her nightgown her country pulled and made the Buckley positively concluded at- in determined head. Unsuccessful door. the Nicaricos’ marks kidnap- vagina, the her tempt penetrate he Now in the anus. per raped Jeanine investigation pro- was Meanwhile her He caved assassin. became her Two witnesses— other fronts. ceeding on iron or from tire blows skull with five house, another near near the Nicaricos’ one the mud into her threw baseball bat and Buckley as the Path —identified the Prairie Path, hiking Prairie feet off the Illinois Granada, missing a green driver of a Ford four hours within trail. died Jeanine and ar- neighborhood hubcap, that left her mother. ate lunch with time she right times. at the the Prairie Path rived at February and body on police found the though even positive, witnesses were These began. the manhunt not match descriptions did earlier initially them (One of Buckley’s features. DuPage Sam, with the detective John driver, late in his 20s police that the investi- told leading the Police County Sheriffs glasses and 30s, was granny early wore clue principal on the gation, concentrated a mustache had shaven; Buckley, (the clean print a clear intruder left behind: Hernandez glasses.) wear and does not appeared the sole of shoe “bootprint”) of in Jeanine’s role took some that he detec- said While other door. on the Nicaricos’ Cruz, Rolando implicated and persons abduction neighbors and interviewed tives (although neither confessed drop also kidnapper who seen might have who murder); said that both nor to trail, rape tried to Sam near body Jeanine's nor Neither Cruz the car. $10,000 Buckley drove A the shoe. find the owner Hernandez, have substantial- both whom Hernandez, petty Alex reward attracted intelligence, give average ly below a desire and intelligence thief with low important offense, details of the but some jail for life on account of the Schnorr circumstantial implicated evidence each. and Ackerman slayings. prosecutors But in DuPage County refused to accept John Sam Du- Cruz, arrested Buckley, and gan’s offer, concluding that his Hernandez, admissions they were put on trial for were unreliable. Although Dugan fur- their lives. began But Sam question many nished details that out, checked he conclusion that the three partly did be- it— also claimed that Jeanine was so well of discrepancies cause in the identifications bound that she did grab anything as (witnesses other details reported only a they left; the walls Nicarieo house single person in car); partly because testified to the contrary. none of the three had a record of sex offenses; partly because As DuPage Cruz and County Hernan- was preparing put dez contended they came burgle trial a time, second Louise Rob- Nicarieo bins house died. items, took No one else some was willing to testi- fy though nothing the bootprint missing; was but mostly inexorably showed Buckley’s guilt. he was Ryan, convinced James that men who State’s At- torney for girls violate little County, do not work teams. dismissed charges against Sex Buckley. crimes he had He solved were released solitary in March aggressions. 1987 after years three Sam told superiors prison; he had been unable post had wrong the $3 million defendants. When they bond. In January 1988 the listen, Supreme would not Court quit Sam the force and of Illinois reversed the offered convictions testify of Cruz for the defense. James and Hernandez on the basis of Bruton Tuohy, The DuPage Cover-Up, Chicago violations at trial: 1, intro- Lawyer 1986). 9-14 (May duced each man’s confession implicating A jury convicted and Cruz Hernandez of other, and the substitution of euphe- murder, among crimes, other and judge misms for names did nothing to hide the sentenced both to death. It was unable to accusations from jury, the court held. reach a verdict Buckley, about and the Hernandez, 117 Ill.Dec. at prosecutor scheduled a second trial. While 32-37; N.E.2d People Cruz, v. 121 Ill.2d prosecution and defense preparing were for 321, 117 Ill.Dec. N.E.2d 18 retrial, police in County LaSalle arrested See also York, Cruz New Dugan Brian abduction, molesta- (1987) (re- tion, and murder year of 7 old Melissa jecting the interlocking excep- confessions Ackerman. Discussing the charges with Bruton). tion to The court did not forbid lawyer, his Dugan admitted two rape- other retrial, concluding that the evidence is suf- murders: Donna Schnorr and Jeanine Ni- ficient to a jury allow guilt. find Cruz He carico. furnished each, details for and Hernandez were retried. Cruz was many of which had never publicized. been convicted and again been sentenced to He also told lawyer his that after killing death. Hernandez’s case was be- mistried he Jeanine away threw the shoes he wore. cause the jury could agree; not Ryan has Soles of the shoe style Dugan says he announced that he will take Hernandez to bought at Fayva a store matched the boot- trial a third time. print at least closely as as Buckley’s, prob- Buckley filed this suit under 42 U.S.C. ably A better. farmer the area where 1983 in 1988. § He contends almost body Jeanine’s was found recalls plowing everyone connected with the investigation up pair of boots in 1983. prosecution and violated his constitutional Dugan, history had a of violent sex rights and should be made to pay damages. offenses, always solitary. lawyer His used J. Fitzsimmons, Michael Attorney State’s the admissions and a willingness plead for DuPage County at the time of Buck- guilty to all three crimes to avoid the death ley’s indictment, is the lead defendant. penalty. Dugan give no statement Ryan is among defendants, the other who creating a risk of capital punishment. La- include DuPage Sheriff of County, Salle County deal, made the Dugan and is many members of police, the Sheriff’s immunity under received Attorney’s nesses State’s many prosecutors Eberle, and Kincaid analyzed the boot- Briscoe staff, experts who three Robbins), Cir.1983), out-of-court for their Olsen, and and (German,

print testimony. as for as well County preparation itself. DuPage but all claims prevailed on Fitzsimmons anything to do had who Everyone an- that his concluded one: and than Sam Go- other prosecution, press indictment nouncement rogues’ place rayczyk, has immunity. by absolute covered was that all complaint contends His gallery. however, Although lost. County, DuPage him, execute conspiracy to in a participated attorneys state’s court concluded is innocent. The that he all although knew officials, so that local rather than are state things, is Fitz- Buckley sees ringleader, policy- Ryan were and Fitzsimmons Nicarico simmons, to solve wanted who concluded county, it for the makers popularity. State’s his to boost murder for their policymakers are final the sheriffs Fitzsimmons run- Attorney since therefore Acts the Sheriff counties. pri- Republican in the Ryan ning be the basis campaign could give To spring mary Cincinnati, 475 U.S. County, Fitzsimmons Pembaur alleges, boost, complaint (1986), 89 L.Ed.2d jury and instruct- special grand convened county in the indictment. produce an court retained and the assistants ed his interro- a tale of coercive Buckley narrates case. by police in 1983 gations Fitzsimmons, county, point At this arm-twisting experts that

prosecutors, Sheriff, of the Sheriff’s and members between his similarities to “find” led them It was time defendants. remained as police misleading presen- bootprint, shoes Instead, every- almost discovery. to start indictment, and jury, grand tations question first Naturally the appealed. one the case de- to dismiss refusal stubborn jurisdiction. appellate an- Fitzsimmons Dugan’s confession. spite press confer- the indictment nounced II 1984; Buckley maintains March ence on turning rights by violated also that this the order appeal from Fitzsimmons’ him, reducing the community against him absolute refusing to accord or a fair he could obtain bail that chance authority on the jurisdiction our is within particulars; full of complaint is The trial. 457 U.S. 102 Fitzgerald, of Nixon gospel, usual but them as we take (1982), which 349 73 L.Ed.2d applies. caveat claim a substantial the denial of that holds moved to dismiss immediately ap the defendants Most of of absolute immunity, ab grounds of complaint on Jurisdic 28 U.S.C. pealable under § moved DuPage County qualified. or depends solute appeals on the other tion over 1983 does ground that on the § to dismiss the court 54(b), which allows Fed.R.Civ.P. Monell, liability, see vicarious not establish claims particular judgment final to enter 2036-38, 691-95, 98 S.Ct. at the dis parties’ request, At all parties. the State’s nor the Sheriff neither that designed to judgment judge entered trict County, so for the Attorney “policy” made 54(b). Rule taken under appeals to be allow directly. The district be it liable orders, entering the year after More than 1989 WL split decision. delivered a judge court, argument oral and after (N.D.Ill. 6689 Dist. Lexis U.S. question for certified a judge also district prose 1989). Ryan all of assistant 28 U.S.C. interlocutory under appeal Imbler; judge under prevailed cutors 54(b). 1292(b). with Rule We start § jury, convening grand that concluded judge 54(b) not allow Rule does it, preparing the information presenting interlocutory decision issues certify for witnesses), and (including expert policy-maker for a sheriff “Is by such as covered are interviewing even issue is an When Illinois?” counties expert wit- immunity. The three unresolved and interlocutory resolution Jurisdiction over Buckley’s appeal could materially advance the termination of against Fitzsimmons and DuPage County litigation, 1292(b)allows § the district depends on the meaning of “claim” in Rule judge certify question. The court of 54(b). We understand a “claim” pur appeals decides whether to entertain the poses 54(b) of Rule to mean factually or appeal. 54(b) Rule serves a different func legally connected elements of a case. tion: carving of a out complex case individ Horn, 898 F.2d at 592. “It has seemed to ual claims that have been finally resolved. implicit us in the rule that the retained and Sears, Roebuck & Co. v. Mackey, 351 U.S. appealed claims must factually dis 427, 437-38, 100 L.Ed. tinct, for otherwise the court appeals 54(b) Rule allows a court to may be forced to analyze the same facts in “direct entry of a judgment final as to appeals, successive a form piecemeal one or more but fewer than all of the appealing not authorized the rule.” parties” claims or but does not change the Olympia Corp. Hotels v. Johnson Wax ordinary meaning of “final”. So it does Development Corp., 908 F.2d not authorize appeal that, of decisions (7th Cir.1990). The claim Fitzsim made in litigation, stand-alone would not be mons remaining in the district court is fac “final”. Liberty Mutual Insurance Co. v. tually related to the claims on which he Wetzel, 47 prevailed; indeed, Buckley alleges that the (1976); Horn v. Transcon announcement of the indictment and Fitz Lines, Inc., F.2d 589 simmons’ other acts part are all single of a Unless the court enters judgment final on plan. Similarly, the claim DuPage “claim”, entire or wraps up the case County set “policy” through the decisions respect to all claims involving a partic of the two attorneys states’ is factually party, ular 54(b) Rule permit does not an related to the claim set a policy by immediate appeal. E.g., Steve’s Home decisions Sheriff. Buckley alleg Cream, made Ice Stewart, Inc. v. one conspiracy, es policy, one one injury. (2d Cir.1990); Elefant, FDIC v. Olympia expresses Hotels unease with Cir.1986); Horn, 898 the circuit’s definition “claim”, of a recog- F.2d at 593-95. nizing judicial resources be con- district judgment entered served rather than squandered by acceler- Ryan, favor of prosecutors, assistant ating issue, decision a controlling even if and the three expert witnesses. there is a chance that questions related appeal puts all of these before us. Fitzsim- could recur. Of course one go cannot too mons County, however, contin- far with recognition: this jurisdiction is a parties ue to be in the district court. De- question judicial of power, not of conve- mands them brought be here nience. When immediate review ma- only if the judge district finally has deter- terially advance the termination of the liti- mined entire “claims” for DuPage relief. gation, 1292(b)supplies the § route but al- County moved for on ground dismissal the lows the appeals court of to exercise discre- that neither the State’s Attorney nor the tion, a filter missing appeals under Rule Sheriff set policy for the county. That 54(b). The rule does not allow entry of motion was denied. The court knocked out judgments that would not be “final” within one of Buckley’s theories but refused to the meaning 1291, Horn, of see § dismiss the claim. Further lay proceedings 593-94, at and a decision foreclosing one in store. The denial of a motion to dismiss theory of liability leaving while open others (or summary judgment) is not a “final” is not any “final” on understanding of that decision. More than two weeks after oral term. argument DuPage County moved dis- appeal, miss its agreeing Buckley’s Still, with how much overlap factual is too argument, first made in his brief question on the much is a degree, of Olympia merits, that the court jurisdiction; lacks properly 54(b) observed that Rule commits that granted. is motion the decision on such matters to the in- appeals properly in the presented 908 issues judge. district discretion formed against the “claim” discretion, thought Buckley’s us. before Such 1367-68. F.2d at “final” yield yet disturbed. has exercised, rarely county be therefore will fully 54(b). sug We nothing in this record Rule appealable under Unfortunately, decision “as judge has the extent appeal district Buckley’s gests that dismiss judg desirability County of immediate whether us to decide asks sessed] give[n] an affirma unequivocally the State’s of ment and on account may be liable Thompson P-171 v. Local answer.” Attorneys’ tive decisions. Cir. Co., F.2d Farms appeal against Fitzsim appeal took an 1981). After Fitzsimmons Al problem. same encounters the mons dismiss, his motion the denial from that Fitzsim concluded though the court judge the district presented parties immunity from mons entry of directing order “agreed the incidents about of most account signed this judge judgment”. final it did not dismiss Buckley protests, which prepared for parties order. What the summary judgment grant claim or relation discussion no judge contains why That is Fitzsim favor. Fitzsimmons’s finally disposed of and the claims between do he is entitled to appealing, as is decision, apprecia mons no remaining for those interlocutory. though the decision decision even successive potential for tion of though, only Buckley may appeal, of immediate weighing the benefits meaning of judicial “final” within cost to against the decision resolution see, 54(b), district is not. can and it For we Rule system. all systemic gave consideration no ap- Fitzsimmons’s inconsistent? Is of one the norm preserving interests that the deci- a conclusion peal depends on minimizing the per case—and appeal “fi- to dismiss is denying his motion sion if there must appeals number meaning of 28 U.S.C. nal” within Indeed, nothing that suggests than one. thing the same “Finality” means § entering he judge recognized 54(b), Horn, see 1291and Rule under § motion to denying a judgment” a “final enlarge 593-94, do not rules F.2d remarked before We have dismiss! 82; Fed.R.Civ.P. Fed.R. See jurisdiction. reflexively enter may not judges district “final” about the 1(b). App.P. What par just because the 54(b)judgments Rule decision, only the conclusion though, is Horn, F.2d appeal. want ties lost proceed. Fitzsimmons ease must Chromalloy 592; Glidden see also and to avoid not to be tried” “right 621, 624 Corp., 808 American immunity sepa- ingredients of discovery, prevail entitlement from an rate there complaint According to the Forsyth, Mitchell v. merits. the Sher conspiracy which single 2814-17, was a 86 L.Ed.2d Attorneys participated, iff both State’s Meanor, 442 U.S. (1985); Helstoski prosecuting “policy” producing 500, 99 S.Ct. through the adopted innocent. Whether street; one-way kind is Finality of this single Attorneys, this State’s Sheriff “right not be to only the holder of the No claim. basis “policy” is the only experi- he may appeal, because tried” say about we matter what “final” decision. ences for policymaker Attorney’s role as State’s pen invoke Buckley could Perhaps facts Illinois, the same set counties concept That jurisdiction. appellate dent the Sher concerning later back would come consider a court to extra allows sometimes sim also would be role; issues legal iff’s interlocutory appeal. Illinois in an issues are not bodies governmental ilar. Because Peters, 164 Hartigan v. ex rel. Inde immunity, Owen entitled to official Portch, 853 1988); Patterson 1398, Cir. 63 100 S.Ct. 445 U.S. pendence, could assume We Du- F.2d (1980), questions about appeal immunity jurisdiction County unrelated Page are Fitzsimmons if only the doctrine allows them, draft for they should at least see to appellants addition of as well as issues. it that lawyers have everything in or- as pendent-party jurisdiction Just in the der. district court is harder support than is There is deeper also a flaw: delay. Ap- issues, addition of Finley v. United peals must be taken within a short time States, U.S. 104 after the entry of the appealed orders (1989), L.Ed.2d 593 so pendent-party appel- from, 1292(b) sets one of the § short- jurisdiction late is especially problematic. est limits at days. ten Although Fed.R. Abney States, United 662- 5(a) App.P. judge allows to amend the 2034, 2041-42, 52 L.Ed.2d 651 ruling 1292(b) to add a certification at § (1977), tells us not to interlocutory allow any time, we held Propst, Weir v. appeals acquire barnacles. Although (7th Cir.1990), power Abney is a case, jeopardy double it is the must not be used promiscuously. “An foundation for the entitlement to immedi- amendment that will have the effect of ate appeal when the defendant asserts a extending the limitation is only proper right not to be tried. Its flat conclusion there is a reason delay.” for the In Weir issue, that each and presumably par- each parties neither the nor the gave a ty, must separate find a basis appellate reason for the delay; we declined accept jurisdiction governs in other cases of the the appeal. So here. Judge Leinenweber stripe. same We therefore dismiss Buck- is silent (the on the question parties ne- ley’s appeal to the extent he seeks relief glected to draft for him with mind), inWeir against Fitzsimmons. joint and the motion for leave appeal gives as a only reason skepticism ex- What remains is the belated certifi pressed argument at oral about jurisdiction 1292(b). cation under parties Just as the § under jurisdictional 1291. That problem § 54(b) wrote for the judge a judgment, Rule largely parties, attributable to the and at signed which he comment, without they so problem all events the 54(b) with the Rule 1292(b) wrote for him certification, a § judgment was flagged by first plain- again which signed he change. without brief, tiff’s filed in January Delay 1990. Again parties’ draftsmanship and tim unjustifiable, after that is and we decline to ing leaves much desired. Here is the accept appeal from a certification made operative part of the order wrote for after argument oral in this court. judge: In this opinion, Court’s its memoran- Ill opinion

dum order of June questions involves a Imbler reserved all controlling issue concerning of law as to the extent to prosecutorial which there is which absolute grounds substantial [sic] immunity applies investigation opinion prep difference of and that an aration for trial. 424 appeal immediate U.S. at from this 430-31 & n. may order 33, 96 materially & n. 995-96 33. Some advance ultimate termi- Reed, be resolved this litigation. is, nation Term. Burns v. This issue — (7th Cir.), alia, F.2d 949 granted, inter cert. Attorney whether State’s -, and/or Sheriff of County are county In the officials interim we policymakers and/or reach a must decision purposes of influenced Monell functions immu under 42 nity U.S.C. serves. § 1292(b) requires Section the court to iden- maintains absolute immuni- issues,

tify assert ty that one issue is limited to the trial itself. Fitzsim- important alia”; expect “inter we the mons and the other defendants submit that explain to why, court rather anything than assert leading up to trial is within the that, appeal immediate will materially ad- scope prosecutorial immunity. disposition. vance the Courts Responding should do to a at question argument, oral writing. their own If lawyers allow to counsel for prosecu- Fitzsimmons said that 1240 distinctively prosecutorial performs even cutor be absolute would

torial Buckley to obtain functions. tortured prosecutors posi- limiting these Neither confession. right. can be tions A Imbler position would turn act rather follows Because wishing to Anyone rule. pleading into actor, to define it is essential than the only need would prosecutors challenge his Any must definition acts. “prosecutorial” preparato investigatory and challenge the immu- extend why courts in turn on depend every prosecution, precede steps ry Why place. first prosecutors nity to “conspiracy” appellation throwing in the conduct proper to induce use not limited Immunity is good for measure. damages would every Because case? investiga without and tried to filed cases temper judgment. prosecutors lead protect it why should planning; tion cost of acceptable might be an Tempering Buckley prosecutors? irresponsible only prosecuto- if the costs of damages regimen the crimi merits relitigate the wants pro- high, the criminal rial errors were but dam to recover charge him nal opportunities to itself offers sufficient cess unfounded; prose- charge was ages if the harms, damages remedies so that prevent turning the ta immunity prevents cutorial im- unnecessary. considerations These are Imbler, at 424 U.S. in this fashion. bles immunity. scope of ply appropriate Economou, 992; v. 425, Butz at 96 S.Ct. They may “trans- Litigation losers. 2894, 512-17, 2913- 478, S.Ct. 98 438 U.S. prose- being at resentment form [their] (1978); Mitchell For 16, L.Ed.2d 895 57 improper and ascription of into cuted 2806, 522-23, 511, 105 S.Ct. syth, 472 U.S. advocate”. State’s actions malicious (1985). also See 2813-14, 411 L.Ed.2d 86 425, at 992. Imbler, at 424 U.S. Cir.1926), (2d 396 Goff, Yaselli Defen- be losers. may Even the winners 72 affirmed, U.S. 275 pris- days, years, even may spend dants immunity has (1927). If absolute 395 L.Ed. Yet trial, liti- as did. awaiting believes Court Supreme value—as even more difficult would be gation its evasion. prevent does—we must trial, if, first after costly than it defendants other and the Fitzsimmons positions were a second with there to the immunity applies wrong are Prosecutors, whose parties reversed. White, 484 act, Forrester not the actor. necessarily make the duties professional L.Ed.2d 98 227, 108 S.Ct. U.S. spe- uncomfortable, be would of some lives ap who Attorney General An govern- Attorneys for targets. cial wiretap does not security proves a national retalia- from protect themselves ment could though immunity, even have absolute crime can- by quiescence. Victims tion prosecution. lead information or col- of offenders compel prosecution S.Ct. Mitchell, prosecutors. passive damages from lect prose hold regularly 2812-14. Courts D., 410 U.S. v. Richard R.S. Linda must detectives filling the roles cutors (1973); Leeke v. 1146, L.Ed.2d 536 committed wrongs for the music face Timmerman, extent same against suspects not reward (1981). Society does v. Mont E.g., Auriemma detectives do. guilty; re- convicting the prosecutors Cir.1988); F.2d gomery, 860 defen- compensate prosecutors quiring Chicago, 484 Hampton v. giving without injury inflicted dants degree the third use Police who they create benefits for the a bonus them doors, must open interrogation, or break it would cases in close a bias: would create objectively rea that their acts were show Yet so- forego prosecution. always pay to rights personal sonable; security of prosecutions. such ciety prefers induce if the state markedly diminished evil, no court is before risk, Putting a case will, without investigate at to doubt its there is reason when even lawyers. functions by shifting the same must de- often strength. “A prose- only when Immunity is absolute

1241 cide, especially public bility in in- putting cases wide one over on a court is terest, proceed to trial sufficiently low, whether where and the burden of litiga- a sharp there is conflict the evidence. tion afterward prose- to determine whether appropriate course action such a up sufficiently cutors made high, case permit may jury case well be a to resolve attempts litigate question Yet, prosecutor a the conflict. understand- should foregone. is This a reasonable ably go would be reluctant forward with judgment when a court can step early, acquittal likely a close case where would curtailing the injury; it is sound trigger damages.” suit him for (by conclusion when an act or Imbler, 24, 424 at n. U.S. 426 96 S.Ct. officer) police injury causes is com- n. 24. 993 plete before the case reaches court. See Mitchell. (and routinely Prosecutors should most do) take account of the costs inflict injuries Prosecution causes in addition to only way others. If were im suits imprisonment. Accusations of crime im press prosecutors gravity with the of these pugn good name of defendants. Trial costs, damages necessary abe evil— unpleasant experience is an as well as an why police even which is officers and attor expensive too, injuries, one. But these neys general possess do not absolute immu may by judicial be curtailed action. Resid nity conducting investigations. when injuries ual never have deemed suffi been prosecutori Courts can curtail the costs of damages against public cient to call for al blunders without need damages, prosecutors, or even for such medicaments however, by cutting prosecution short the interlocutory appeals. E.g., Midland mitigating or its effects. Mother Goose Asphalt Corp. States, v. United 489 U.S. Schools, Sendak, Nursery Inc. v. 794, 1494, (1989); 109 S.Ct. 103 L.Ed.2d 879 668, (7th Cir.1985). “[Safeguards 674 States, 259, v. Flanagan United U.S. 465 judicial process into the tend to built reduce 1051, (1984); 104 S.Ct. 79 L.Ed.2d 288 private damages the need actions as Hollywood v. United States Motor Car controlling means of unconstitutional con Co., 263, 3081, 458 U.S. 73 512, Butz, duct.” 438 U.S. at 98 S.Ct. (1982); Cobbledick v. United Judges early are involved on. The States, 323, 540, 309 U.S. 84 L.Ed. principal wrongful prosecution cost of (1940). Expense 783 and inconvenience are imprisonment of the defendant before any legal system; endemic to the costs of imprisonment depends trial. Yet on a dem justice imply espe in ours do not either probable onstration cause court. Ger cially prompt review or after Pugh, v. 420 U.S. 43 stein S.Ct. Co., ward. See v. Standard FTC Oil prosecu Even after 244, 101 495, L.Ed.2d U.S. S.Ct. cause, probable

tor establishes (1980); Renegotiation Board Ban may release the defendant bail ame 1, 24, Co., 415 Clothing nercraft S.Ct. of imprisonment. liorate the harshness 1028, 1040, (1974); 39 L.Ed.2d 123 necessary Prosecutorial action is a but not Exploration, Inc. Petroleum v. Public imprisonment; inju condition of sufficient ry Comm’n, 304 U.S. Service long will not continue unless one or 834, 841, (1938); 82 L.Ed. 1294 Pai judges impressed gravity with the Farnam, neWebber Inc. v. 843 F.2d 1050 charge weight and the of the evi (7th Cir.1988). If dence assembled. evidence suggests simple All of this de satisfy judge, enough to there is corre If injury marcation. flows from the prose spondingly less reason to blame case, prosecution then initiation or cutor. Of course there be some rea son; prosecutor is immune and the defen maybe the cooked. evidence been look the court in dant must which Malley Briggs, Cf. If, (1986); pends protect his interests. 89 L.Ed.2d case Jones however, wrong is com at 994. immu a constitutional Chicago, Absolute pros- nity depends judgment proba- plete begins, then on a before that rejected a submission pressly police detec- as a treated be should ecutor prosecutorial scope of absolute quali- circumstances: in like would be tive pros- to extent which depend on the immunity. Prose- should than absolute rather fied activity “quasi-judicial”. is or torture ecutorial open doors break who cutors need to 420-21, at 990. We 96 S.Ct. at injuries that U.S. confessing cause into suspects injure, and announcements court, know how and which of outside complete are wrong lies. (but the constitutional may be able where diminish cannot judge whose out-of- Prosecutors compensate). of that accusations is possibility One only to the extent injury acts cause court Davis, 424 v. infamy. Paul cause crime ade- brought to heel be proceeds will case 47 L.Ed.2d 96 S.Ct. U.S. Butz, by the court. quately does the Constitution (1976), holding that at 2915-16. 98 S.Ct. by public slander libel or not with deal imag- an- hard to Fitzsimmons’ official, are not cases means that Intermediate one, alone, not action- nouncement, standing v. Reed own Burns ine. Our legal injury advice gave other 1983. Some prosecutor which able under § wrong. considering whether a constitutional create who were police essential illegal press from confer- Injuries Buckley maintains carry out a search. injury and without because felt out court additional are created ence searches prosecution, will reputation of a a blackened the institution defendant regard immunity; or obtaining release on bail against cuts have trouble which prosecu- front availability of hand, murder The Nicarico fair trial. other number of Illinois. northern may throughout reduce the page advice news torial charges allowing damages on searches, and the announcement illegal So was Hernandez; long Cruz, run may in the Buckley, and advice against of bad account By improper avidly. searches. the case followed press the number increase lies. as well being balance a thief where the accusing will consider Burns or put murderer, overstating on one the val- in our as a Activities greater evidence, confi- bootprint line with of the side ue of the another of a con- the chances increased improperly dence. argument concludes. viction, Buckley’s B of Paul avoids the rock approach This announced Fitzsimmons whirlpool of Imbler. falling into the only by 9, 1984. on March press indictment injury alteration if lies For Fitzsimmons complaint According to the in the trial, remedy lies probabilities contents of press about informed than in process rather criminal comments, such added indictment a deci- Buckley was entitled litigation. evidence bootprint as his belief record, opposed made on on bail sion and his Buckley’s guilt be establish preju- the basis made on to a decision burgla in a involved Buckley was lief bail If denied publicity. dicial court, following Ste ry ring. The district Buckley was entitled high, it too set Cir. Addis, 699 panian v. press conference Similarly, appeal. Gumbinner, 855 F.2d 1983), and Marx him, Buckley against poisoned some minds that Fitzsim Cir.1988), concluded adequate to dire to a voir entitled was still to absolute mons is not entitled a venire jurors. If such find unbiased they took statements, because these County, be found could not press con place out of court change of ven- to a Buckley was entitled activities. “quasi-judicial” are ferences charges to dismissal ue—or Yount, 467 generally Patton him. “quasi” are See conferences press Whether 81 L.Ed.2d Immunity U.S. matter. something else does Florida, U.S. (1984); Murphy v. announcements on how depends (1975); Irvin 44 L.Ed.2d consid- functional on other injury and cause 1639, 6 717, 81 Dowd, Imbler ex- erations, nomenclature. not on If judges the who con- that Paul prevents any recovery v. Davis hearing ducted the bail and the trial did injury because of reputation. Judge jobs properly, they Swygert’s any eliminated opinion prosecu- concludes that a constitutionally impermissible may “pretrial effects of tor prejudice”, be liable for press the conference. If could not do 600 F.2d at which was left undefined. so, Buckley then may entitled to best It the be that he species conceived of a of remedy prosecution. of all: pretrial dismissal of the detriment outside the ambit of Davis; Paul v. at all events none of the Stating the wrong constitutional an as opinions Hampton in discussed whether probability increase anof unfair trial immunity is available when the theory is ap- demonstrates that absolute immunity that out-of-court statements led to adverse plies announcement of the indict- (denial judicial decisions of release on bail Paul, (constitu- ment. Given there was no and failure to impartial jury). seat an As tional) injury independent of indictment is Buckley’s theory, way his to avoid and trial. suffered no constitu- Davis, Paul v. we conclude Hampton injury judges tional unless the failed to offers him support. no pretrial pub- When protect him at trial. This demonstrates licity produces injury only constitutional suit Fitzsimmons is a dis- extent influences the course of bail guised attack on either the of institution hearings trial, is abso- itself, prosecution or the decisions lutely immune from damages. judges hearing at the bail and trial. way, Either it cannot be the basis of an C damages. award of Buckley charges Fitzsimmons and Stepanian prosecu and Marx hold that assistants, King two Knight, and tors do not have when announc during with investigation misconduct ing indictments. These cases ask whether presentation and grand case to the press “quasi-judicial”, conference is an jury. Judge Leinenweber dismissed all of approach different from Imbler’s. Nei claims, concluding these that absolute im ther Stepanian any nor Marx identifies munity investigation covers entire wrong independent constitutional case, witnesses, meetings presenta litigation. conduct of the We therefore grand to a jury, tion and formulation of respectfully disagree with circ the eleventh prosecute. decision to uit.* main, In the these conclusions are unex Hampton Hanrahan, 600 F.2d 600 ceptionable. Presenting the case to the (7th Cir.1979), part reversed on other grand example, jury, part grounds, prosecution proper. The selection of evi (1980), only is the other deci- present grand dence to jurors, requiring sion Judge comment. Parts of witnesses, of questioning the manner can Swygert’s opinion may in that case un- be may no basis of than say derstood to that absolute equivalent petit activities before the pretrial never available for statements. Bell, jury. Gray v. 502-05 Judge 600 F.2d at But 632-33. Pell did not (D.C.Cir.1983); Whitney, Lovelace conclusion, (dis- accept that id. at 661-62 F.Supp. (N.D.Ill.1988), 1442-43 af senting opinion), Judge and Chief Fairchild by unpublished firmed order under the accepted Judge Swygert’s only conclusions Hall, name Lovelace v. 886 F.2d 332 extent, to an (concurring id. Judge Swygert’s “except opinion quali- observations.”). following fied prose Conversations between observed, Judge Chief experts Fairchild id. at bootprint similarly cutors and the * among Judge Because our decision creates a conflict hear the in banc. Chief Bauer and circuits, it was circulated Judge before release to participate did Flaum in the consider- judges regular all active service. See Circuit ation or decision of this case. 40(f). Judges Cudahy Ripple Rule voted liability. Obtaining conducting interrogation mulcted an not be the basis witness, expert warnings, from without a sus-

assessments Miranda trial, no pect warnings that witness for causes has no entitlement to the preparing happens protect what in court. injury apart warnings from themselves. Miranda indepen- Obtaining voluntary suppli- right from counsel and no evidence have a any Interrogations not of defendant’s stature. without Mi- ers does violate dent only using warnings do a rights; evidence could randa thus do not violate sus- given, rights; only we have when the pect’s so. For the reasons violation occurs on the depends the the costs of when the statements are used in criminal injury (including judi- proceedings. the risk of 425 judicial process Palmigiano, Baxter v. 1557-58, error), 308, 316-18, 1551, im- 47 prosecutor cial the U.S. S.Ct. (1976); Allowing Elstad, on munity. Oregon award of L.Ed.2d 810 cf. v. 298, 305-07, preparation of would 1290- the basis witness (1985); prosecutorial immunity only Michigan the 84 L.Ed.2d 222 evade Tucker, 445-46, the immuni- of but also testimonial 417 U.S. Imbler ty These immunities do not There is of Briscoe. 41 L.Ed.2d 182 plaintiff give way just “compelling” directs likewise no violation in sus- against preparing compulsion for im- to pect speak, his fire activities where the does presentations practices in court. Heidel- not involve forbidden on other munized (7th Hammer, grounds. right compelled 577 F.2d The not to be to berg v. Cir.1978). testify evidentiary against oneself is an immunity privilege. As the use cases Buckley’s allegation that assist show, government may require a sus- attorneys coercively interroga ant state’s pect speak, use long so as does not problem, presents ted a different how him against Kastigar results him. v. United interrogations may inju inflict ever. Such States, 441, 92 judicial process begins, injury ry before (1972). Arguments based on grand jury less if the be no that would Miranda and self-incrimination clause pros an indictment. If a declined to return the conduct and there- concern of trial participates a raid that unconsti ecutor damages; fore not be the of basis privacy, im tutionally suspect’s invades independently coercive tactics that are qualified rather than munity is absolute. wrongful however, may, lead to awards. Hanrahan, F.2d at 631- Hampton v. 33; Hialeah, (5th early It is too to tell whether Buck Marrero v. reason, ley relying if on and the self-in Cir.1980). prose same Miranda For the clause, general interrogation, crimination or on conducts a coercive cutor punished right (through not to be coercive only is available. Jo qualified tactics) (6th Patterson, in advance of trial. It accord 795 F.2d was seph ingly premature aspect Cir.1986); Teeples, dismiss this Rex Buckley’s complaint. pro He is entitled To extent 843-44 evidence, any, Morris, tending he has 810 F.2d 1437 Cir. duce Myers v. prosecutors absolutely show used tactics add 1987), prosecutors are holds that ing up pretrial punishment. Because the account from immune depend injury from such tactics does not unconstitutional interro participation in an filing an indictment or the conduct of disagree. gation, respectfully we trial, the more than prosecutors have no however, only appropriate, Liability is immunity. qualified is com- when the violation constitutional A plete, injury, out of court. and causes IV prosecutor depriving a could be liable for question sleep during comes the whether suspect an interro- Last of food and expert have absolute gation, trun- the three witnesses beating or him with rubber eval cheon, pretrial for their activities: putting shoots under or bamboo writing uating bootprint, reports, dis- fingernails. could not be A cussing the prosecutors, case with and pre- State’s Attorney would not have obtained paring to testify. agree We with the dis- an indictment. parallel is not apt. trict court do. Briscoe holds experts that None invented report presentation of testimony may crime brought fable the state’s the basis of liability, even if the attention. witness Jeanine Nicarieo is dead. Each deliberately misleads the court. expert It brought into the abe hollow immunity prosecutors, if the aggrieved par- sought who to evaluate the ty could turn strength around say, effect: evidence Buckley. “True, your We delivery of bad therefore testimony need not decide whether to immunized, but follow preparing to White. deliver that testimony not, so I litigate can the sub- To up: sum We decline accept your stance of testimony.” Substance is appeal on the district court’s certification exactly what puts Briscoe off limits. under 1292(b). DuPage § County’s appeal, 89-2900,

An expert No. is dismissed suspect’s violate a on the rights County’s motion. independently Buckley’s appeal, the 89-2899, No. litigation. expert The is dismissed might, example, extent it break seeks into relief the sus- against DuPage County pect’s home to samples obtain Fitzsimmons. analysis. We affirm the remainder of the immunity Absolute would not decisions apply to that under appeal review on theft, No. for the same it reason does not apply exception of the contention prosecutorial infliction of punishment prosecutors engaged in coercive interroga- without trial. A non-testimonial expert tion. The decision is vacated the extent could violate a suspect’s rights by “cook- it dismissed this portion of the complaint, ing” a laboratory report in way and the case is remanded for pro- further misleads the testimonial experts. Experts, ceedings concerning Fitzsimmons, King, like police, “cannot hide behind [the Knight, consistent with Part III.C of immunity the officials of] whom have opinion. On Fitzsimmons’ appeal, No. defrauded.” Jones v. Chicago, 856 F.2d at 89-2441, the decision of the district court is nothing 994. But in the complaint sug- reversed, and the case is remanded with gests that the expert three defendants hid directions to dismiss the complaint to the evidence, opposed as to misinterpreting it. extent it seeks on account of the Discussions between prosecutors and press conference at which Fitzsimmons an- experts violated none of Buckley’s nounced the indictment. rights. Preparing to commit slander or perjury is not actionable. The testimony FAIRCHILD, Senior Judge, Circuit itself is by covered immunity. Buckley dissenting part and concurring part: makes it clear that the testimony is the real For the part, most I I, however, concur. gravamen of complaint. Olsen, he sub- have a different concerning view the immu- mits, “wrongfully changed his opin- initial nity prosecutor Fitzsimmons for his al- ion”; Robbins was an “utterly disreputable leged prejudicial creation of pretrial publici- Maybe so,

-witness-for-hire”. but cross ex- ty. great With respect, I think that Part amination rather than a for damages suit III, B of the opinion fails to examine the right way to establish these things. nature of particular function Fitzsim- Junk science is plague in contemporary mons was performing so as to determine litigation, but peddlers of poorly sup- whether presented public interest ported theories do not expose themselves to needs which justify immunity. absolute liability by doing out research of court or majority The says, “If injury flows appearing in more than one case. from the prosecution initiation or Frank, White v. (2d 855 F.2d 956 Cir. case, then prosecutor is immune and 1988), holds that Briscoe does apply the defendant must look to the court in “complaining witnesses”. con pends which the case protect his inter- tends that experts three are in this ests.” This “demarcation” is applied to category, because but for their opinions the Mr. press Fitzsimmons’s conference state- the burden have personal from alleged to militate are ments which justified exemption showing that such fair trial. poli- public overriding considerations by as the fact that leans majority The The at Id. cy_” at been able Buckley may have defendant, pro- procedures that court did note Court afforded by procedures himself

protect at at safeguards, id. vide respect, allWith case itself. criminal safeguards present 544, but it did recognized immunity should absolute immunity. conferring reason for immunity such purpose of only when Economou, 438 U.S. Butz Even served. 511-512, 98 S.Ct. Pachtman, In Imbler exten- the Court (1978), in which (1976), the Su- 47 L.Ed.2d as a procedure judicial sively discussed the same to afford Court decided preme adequa- examined Court safeguard, the 1983 that section under it deter- only after protections cy law. Id. common enjoys judges administrative that the mined considerations at 993. at stake whose prosecutors “concern immunity include such underlying entitle the functions performing were litigation unfounded that harassment judicial in the prosecutors judges prosecu- of a deflection cause immunity. to absolute branch duties, and public his energies from tor’s in our his deci- afforded procedures shade that would is true that he It possibility good a indepen- defendant exercising give a justice of system of sions instead public prejudicial by his required avoid such results chance judgment dence of bail, difficulty or ina- at 991. The as excessive publicity trust.” Id. jury, prosecutor’s selecting impartial activi- an bility that the agreed Court intimately cost reduce the procedures “were These consideration like. under ties I not but do phase prosecutor, judicial by a impropriety with associated recognized their functions were have thus that the courts find process, criminal con- immunity reason for availability as a sufficient the reasons to which did not immunity. ferring Court full force.” with apply reasons or similar “like whether consider may make it publicity Prejudicial pretrial aspects of those immunity for require expensive for and more difficult cast him that responsibility prosecutor’s the fairness protect defendant investiga- or administrator the role of a con- that as trial, recognize I and would of an advo- than rather tive officer can wrong for which stitutional (foot- Id. at cate.” acted prosecutor has where obtained omitted). notes press as a stage, such wrongfully at to be purposes ab- conference, recent most where Supreme In the Court’s White, apply. not case, do Forrester served solute 538, 544, 98 or sufficiently pled has Whether considered Court (1988), the Fitzsimmons’s statements prove that immunity and decided judicial scope of deprived him of press conference at the discharging probation demoting or pertain to me to seems rights constitutional entitles which a function officer was yet been merits, have which explained immunity. The Court reached. ex- saying, approach “[W]e its functional denial court’s the district affirm I would functions with nature amine the Fitzsimmons immunity for of absolute class of offi- particular official which statements. press conference to his respect entrusted, and we lawfully cials been exposure to effect to evaluate seek likely liability would forms of particular of those exercise appropriate on the have exemption seek who Officials functions.

Case Details

Case Name: Stephen Buckley, Plaintiff-Appellee-Cross-Appellant v. J. Michael Fitzsimmons, Defendants-Appellants-Cross-Appellees

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 14, 1991

Citation: 919 F.2d 1230

Docket Number: 89-2441, 89-2899 and 89-2900

Court Abbreviation: 7th Cir.