§ 1983 Limits: No Fifth Amendment Due Process Claim Against State Actors; Absolute Immunity for Prosecutors Reviewing Warrant Affidavits

1. Introduction

Dale Economan v. James Luttrull (Seventh Circuit, Jan. 12, 2026) arises from a joint federal–state “pill-mill” investigation of physician Dale W. Economan and his practice, Economan and Associates Family Medicine (EAFM). After searches, a civil forfeiture action, a medical licensing suspension, and ultimately a plea to a lesser offense (marijuana possession) with surrender of his medical license, Economan sued under 42 U.S.C. § 1983.

Economan named DEA and local law enforcement (including DEA Diversion Investigator Gary Whisenand and Task Force Officer Tonda Cockrell), two state prosecutors (Grant County Prosecutor James Luttrull and Indiana Deputy Attorney General Jessica Krug), and a private firm hired by the county (Garrison Law Firm). He alleged violations of the Fourth Amendment and Fifth Amendment due process based on allegedly false and misleading affidavits used to obtain a civil forfeiture asset-freeze order.

A key narrowing occurred on appeal: at oral argument, Economan represented that his Fourth and Fifth Amendment theories were based only on the civil forfeiture proceeding; the panel treated any other Fourth/Fifth theories as waived.

2. Summary of the Opinion

The Seventh Circuit (nonprecedential) reversed most of the district court’s immunity rulings and clarified the proper structure of immunity analysis in multi-defendant § 1983 litigation:

All defendants received qualified immunity on the Fifth Amendment due process claims because the Fifth Amendment’s Due Process Clause is not incorporated against the States and thus does not constrain state actors in § 1983 actions.
On the Fourth Amendment claims:
- Whisenand received qualified immunity because, even after removing alleged inaccuracies/adding omissions, his affidavit still established probable cause for corrupt business influence.
- Luttrull and Krug received absolute immunity for their roles reviewing/editing the warrant affidavit—acts treated as advocative under controlling circuit law.
- Garrison Law Firm: the court dismissed its Fourth Amendment interlocutory appeal for lack of jurisdiction because its qualified-immunity argument depended on a disputed fact (its knowledge of falsity in the Cockrell affidavit).

The court remanded with instructions to enter judgment for Whisenand, Cockrell, Luttrull, and Krug consistent with the order, leaving Garrison’s Fourth Amendment exposure to be litigated further in the district court.

3. Analysis

A. Precedents Cited

1) Appellate posture, jurisdiction, and the limits of interlocutory immunity review

Mabes v. Thompson framed the standard of review on immunity appeals and reiterated the requirement that qualified immunity must be analyzed defendant-by-defendant and claim-by-claim—a theme the panel used to critique the district court’s grouped analysis.
Smith v. Finkley, Whitlock v. Brueggemann, and Davis v. Allen supplied the rule that interlocutory review is available only for legal immunity issues, not disputes about “what happened.”
Johnson v. Jones is the core jurisdictional limiter: if denial of qualified immunity turns on disputed facts, the appellate court lacks jurisdiction at the interlocutory stage. This is why Garrison’s Fourth Amendment appeal was dismissed.
Stewardson v. Biggs operationalized this inquiry by asking whether the district court denied immunity due to factual disputes and whether the appellant is making a “back-door” attempt to re-litigate facts on appeal.
Clark v. Sweeney was cited for the “party presentation principle,” supporting the panel’s choice to assume (rather than resolve) the “state actor” question because it was not meaningfully presented on appeal.

2) Waiver/forfeiture of immunity defenses in the district court

e360 Insight v. The Spamhaus Project and Burton v. Ghosh supplied the standards for reviewing waiver arguments and a district court’s discretion to permit late-raised affirmative defenses where there is no prejudice.
Leiser v. Kloth and Tully v. Barada identified qualified and absolute immunity as affirmative defenses.
Whyte v. Winkleski (quoting Reed v. Columbia St. Mary's Hosp.) distinguished “waiver” (knowing relinquishment) from “forfeiture” (failure to timely preserve), a framework the court used to reject Economan’s claim that defendants lost immunity by imperfect pleading/briefing.
Henry v. Hulett underscored that simply pleading immunity may be insufficient if the defense is not developed at summary judgment—yet the panel held the district court acted within its discretion in reaching the merits because Economan showed no prejudice.

3) Qualified immunity substance and “clearly established” law

District of Columbia v. Wesby (quoting Reichle v. Howards and Malley v. Briggs) provided the canonical two-prong test and the policy that qualified immunity protects reasonable mistakes.

4) Fifth Amendment due process and § 1983

The court relied on an inter-circuit consensus—Koessel v. Sublette County Sheriff's Dep't, Bingue v. Prunchak, Martinez-Rivera v. Sanchez Ramos, Scott v. Clay County, and Nguyen v. U.S. Catholic Conf.—for the proposition that the Fifth Amendment Due Process Clause applies to the federal government, not the States.
Sabo v. Erickson (en banc) and Albright v. Oliver reinforced the structural point that § 1983 does not create rights; it is a vehicle for enforcing rights “conferred elsewhere.” That matters because a misidentified constitutional source (Fifth vs. Fourteenth) can be fatal at the merits stage.

5) Fourth Amendment, affidavits, and civil forfeiture seizures

Franks v. Delaware and Rainsberger v. Benner established that an officer violates the Fourth Amendment by intentionally or recklessly submitting an affidavit with material falsehoods/omissions.
Rainsberger v. Benner (quoting Betker v. Gomez) supplied the “corrected affidavit” materiality test: remove false statements, add omitted facts, and ask whether probable cause remains.
United States v. James Daniel Good Real Prop. anchored the proposition that the Fourth Amendment restricts seizures conducted for civil forfeiture purposes.
Illinois v. Gates and District of Columbia v. Wesby provided the practical, probability-based definition of probable cause.
Manuel v. City of Joliet was used to connect fabricated evidence material to probable cause with tainted legal process and Fourth Amendment injury.
Abbott v. State (citing Katner v. State) was used for the Indiana-law requirement of a nexus between the property to be frozen and the enumerated offense.
Brinegar v. United States and Johnson v. Myers were used to reject the district court’s evidentiary-error: probable cause assessments do not turn on trial admissibility under the Federal Rules of Evidence.
United States v. Hollingsworth supported reliance on informants if sufficiently reliable, countering the district court’s discounting of interview summaries as “mere allegations.”
Pryor v. Corrigan supported the objective nature of probable cause; an officer’s subjective assessment is not the constitutional yardstick.
Dollard v. Whisenand supplied a closely analogous “pill mill” probable-cause template, including use of INSPECT-type prescribing data, third-party accounts, and inferences about intent.

6) Prosecutorial absolute immunity for affidavit review

Buckley v. Fitzsimmons and Whitlock v. Brueggemann provided the functional test: absolute immunity covers advocative acts tied to judicial proceedings, not investigative/administrative work.
Greenpoint Tactical Income Fund LLC v. Pettigrew was decisive: in the Seventh Circuit, assisting with preparing/reviewing a search-warrant affidavit is advocative conduct protected by absolute immunity—otherwise absolute immunity would “disappear for seeking search warrants.”

B. Legal Reasoning

1) The court’s “cleanup” function: narrowing claims and enforcing analytic discipline

A defining feature of the order is its insistence that messy pleadings and grouped rulings cannot substitute for individualized immunity analysis. Following Mabes v. Thompson, the panel treated the district court’s collective approach—finding affidavit falsity and then denying immunity to everyone—as doctrinally wrong. Rather than remand for a do-over (after six years and three district judges), the panel performed the immunity analysis itself.

2) Fifth Amendment due process: a pleading choice with dispositive consequences

The panel did not reach “clearly established law” because it found no viable underlying right at prong one: state actors cannot violate the Fifth Amendment’s Due Process Clause in a § 1983 action because that clause limits federal action. While Economan likely meant the Fourteenth Amendment, the court treated amendment as too late and ended the Fifth Amendment claims across the board.

This is less a technicality than a structural holding: the rights-enforcement vehicle (§ 1983) requires a correctly identified source of substantive federal law, and misidentification can defeat the claim even if similar protections exist elsewhere.

3) Whisenand and the Fourth Amendment: “corrected affidavit” still supports probable cause

The court accepted the Franks v. Delaware/Rainsberger v. Benner framework but found Economan could not establish materiality. Even after correcting for alleged errors—most notably, the INSPECT “day written vs. day filled” issue—the affidavit still described a substantial pattern of suspicious prescribing, corroborated by pharmacists, prescribing-volume data, undercover buys linked to patients, reports by medical professionals, and patient-death information.

Critically, the panel reframed the civil forfeiture probable-cause inquiry as two-part under Indiana law: (1) probable cause of the enumerated offense (here, corrupt business influence tied to dealing in controlled substances), and (2) a nexus between that offense and the property seized. It treated Whisenand as speaking primarily to (1), while the Cockrell affidavit supplied (2). On that division of labor, Whisenand’s alleged misstatements did not negate probable cause that Economan engaged in racketeering activity through illegitimate prescribing.

4) Garrison Law Firm: disputed knowledge defeats interlocutory review

Garrison’s qualified-immunity argument hinged on a factual predicate: that it did not know the Cockrell affidavit overstated the evidentiary basis for freezing specific accounts. Because the record could support an inference that Garrison drafted the affidavit using incomplete “trash pull” financial documents yet represented “significant” criminal proceeds, the panel deemed knowledge materially disputed—triggering Johnson v. Jones and eliminating interlocutory appellate jurisdiction.

5) Luttrull and Krug: absolute immunity for warrant-affidavit review/editing

Applying Buckley v. Fitzsimmons and Greenpoint Tactical Income Fund LLC v. Pettigrew, the panel held that reviewing and editing a search-warrant affidavit is advocative, not investigative, even if performed while an investigation is ongoing. The court also rejected the district court’s implicit narrowing that “only Luttrull” could be a prosecutor; Krug, acting functionally as a prosecutor in the matter, qualified as well.

The panel emphasized the practical necessity of prosecutorial review of affidavits prepared by non-lawyer investigators; treating that routine legal gatekeeping as “investigation” would collapse absolute immunity in a large class of core prosecutorial functions.

C. Impact

1) Pleading and constitutional selection in § 1983 cases

The order spotlights a high-stakes pleading discipline: suing state actors for “due process” under the Fifth Amendment is a category error. Even where the likely intended theory is Fourteenth Amendment due process, courts may refuse late-stage recharacterization, particularly after summary judgment.

2) Prosecutorial insulation in pre-charge warrant practice

By extending Greenpoint Tactical Income Fund LLC v. Pettigrew to the pill-mill context, the court reinforces strong absolute immunity for prosecutors who review/edit warrant materials. Plaintiffs attempting to plead around absolute immunity may increasingly focus on conduct that looks like evidence fabrication or direction of investigative steps—rather than legal review.

3) Civil forfeiture as a Fourth Amendment “seizure” and the bifurcated probable-cause showing

The court treated the asset freeze as a Fourth Amendment seizure (consistent with United States v. James Daniel Good Real Prop.) and underscored that, at least under Indiana’s statutory scheme discussed here, probable cause requires both offense-probable-cause and a property nexus. That framing may influence how litigants allocate responsibility among affiants when multiple affidavits collectively support forfeiture restraints.

4) Interlocutory appeals: knowledge disputes can block immunity review

The Garrison portion is a reminder that immunity appeals are not vehicles to contest factual inferences. Where qualified immunity turns on the defendant’s knowledge or intent—often the case in “false affidavit” theories—interlocutory review may be unavailable if the record supports competing inferences.

5) Trial-court management of multi-defendant immunity disputes

The panel’s critique of grouped analysis, and its insistence on claim-by-claim and defendant-by-defendant reasoning, serves as a management directive: errors in analytic structure can prolong already complex litigation and create avoidable appellate confusion.

4. Complex Concepts Simplified

Qualified immunity: even if a plaintiff alleges a constitutional violation, an official is not liable for damages unless (1) a constitutional right was violated and (2) the unlawfulness was clearly established at the time. The doctrine protects reasonable mistakes.
Absolute immunity (prosecutors): broader than qualified immunity, it fully protects prosecutors from damages for advocative acts tied to judicial proceedings (e.g., presenting the state’s case, preparing for court). It does not cover purely investigative work (like acting as a detective).
Franks v. Delaware claim: a Fourth Amendment theory that an affidavit supporting a warrant (or similar probable-cause determination) contained deliberate or reckless lies/omissions that were material. Courts test materiality by imagining a “corrected affidavit” and asking whether probable cause would still exist.
Probable cause: not proof beyond reasonable doubt. It is a practical, common-sense probability that wrongdoing occurred.
Interlocutory appeal limits (Johnson v. Jones): defendants can often appeal immunity denials immediately—but only on legal questions, not when the appeal depends on resolving factual disputes (like what the defendant knew).
Incorporation: most Bill of Rights protections apply to states through the Fourteenth Amendment, but the Fifth Amendment Due Process Clause is aimed at federal action; “state due process” claims typically arise under the Fourteenth Amendment.

5. Conclusion

The Seventh Circuit’s disposition delivers three core takeaways. First, in § 1983 suits against state actors, the Fifth Amendment Due Process Clause is the wrong constitutional hook, and that misstep can be fatal. Second, prosecutors are absolutely immune for advocative functions that include reviewing/editing warrant affidavits, consistent with Greenpoint Tactical Income Fund LLC v. Pettigrew. Third, Fourth Amendment false-affidavit litigation depends heavily on materiality and probable cause, and interlocutory immunity review will fail where a defendant’s knowledge is genuinely disputed, as with Garrison.

Although labeled “NONPRECEDENTIAL DISPOSITION,” the order functions as a detailed diagnostic of how immunity doctrines, affidavit challenges, and jurisdictional rules should be applied—especially in sprawling, multi-defendant civil rights litigation arising from complex criminal and forfeiture investigations.