§ 1983 Plaintiffs Cannot Use the Fifth Amendment Due Process Clause Against State Actors; Prosecutors Are Absolutely Immune for Reviewing Search-Warrant Affidavits

1. Introduction

Dale Economan v. Tonda Cockrell (7th Cir. Jan. 12, 2026) arises from a “pill-mill” investigation into Dr. Dale Economan and his practice, Economan and Associates Family Medicine (“EAFM”). Federal and Indiana authorities investigated Economan for allegedly overprescribing controlled substances. The investigation led to (i) a search of Economan’s home and office supported by a probable-cause affidavit from DEA Diversion Investigator Gary Whisenand, (ii) a state-court civil forfeiture action that froze more than $1 million in accounts supported by Whisenand’s affidavit and a second affidavit by Task Force Officer Tonda Cockrell, and (iii) licensing and criminal proceedings that ultimately ended with Economan pleading guilty to a lesser marijuana charge and relinquishing his medical license.

Economan and EAFM then sued a mixed set of actors under 42 U.S.C. § 1983: federal investigator Whisenand, deputized task-force officer Cockrell, state prosecutors James Luttrull and Jessica Krug, and a private firm (Garrison Law Firm) retained to assist with civil forfeiture. They claimed the defendants violated the Fourth Amendment and the Fifth Amendment Due Process Clause by preparing/submitting affidavits containing materially false statements and omissions.

The appeal presented three recurring immunity questions: (1) whether immunity defenses were waived by late assertion; (2) whether the Seventh Circuit had interlocutory jurisdiction over denials of immunity; and (3) whether qualified immunity or absolute prosecutorial immunity defeated the Fourth- and Fifth-Amendment theories as framed. The panel repeatedly emphasized that the case came up “as a tangled mess,” driven by unclear pleading, grouped analysis, and misapplied doctrines.

2. Summary of the Opinion

Waiver/forfeiture: The court rejected the plaintiff’s claim that defendants waived immunity defenses. The district court did not abuse its discretion in entertaining them because Economan showed no prejudice from timing irregularities.
Fifth Amendment: All defendants received qualified immunity because the Fifth Amendment Due Process Clause does not apply to state action, making it a “misfit” for a § 1983 claim in this posture. The court declined to treat the claim as Fourteenth Amendment due process because it was too late to amend.
Fourth Amendment—Whisenand: Whisenand received qualified immunity because, even after correcting alleged misstatements/omissions, the “hypothetical” affidavit still established probable cause to believe Economan engaged in “corrupt business influence” through a pattern of controlled-substance dealing under Indiana law.
Fourth Amendment—Prosecutors Luttrull & Krug: Both received absolute immunity for their role reviewing/editing the search-warrant affidavit, deemed advocative under the functional approach.
Fourth Amendment—Garrison Law Firm: The court dismissed Garrison’s interlocutory Fourth Amendment appeal for lack of jurisdiction because resolving qualified immunity turned on disputed facts (notably Garrison’s knowledge of alleged falsity in the Cockrell affidavit).
Disposition: The panel dismissed Garrison’s Fourth Amendment appeal, reversed the denial of immunity as to the other appealed issues, and remanded for entry of judgment for Whisenand, Cockrell, Luttrull, and Krug consistent with the order.

3. Analysis

3.1 Precedents Cited

A. Pleading, waiver, and late-raised immunity

e360 Insight v. The Spamhaus Project: supplied the de novo standard on whether conduct amounts to waiver, framing the appellate lens for the waiver claim.
Burton v. Ghosh: supported the district court’s discretion to entertain late affirmative defenses absent prejudice; central to rejecting Economan’s waiver argument.
Leiser v. Kloth and Tully v. Barada: reinforced that qualified immunity and absolute immunity are affirmative defenses.
Whyte v. Winkleski (quoting Reed v. Columbia St. Mary's Hosp.): supplied the waiver/forfeiture taxonomy (“knowingly and intelligently” relinquished vs. merely not preserved), which the court used to organize the defendants’ inconsistent timing.
Henry v. Hulett (en banc): emphasized that merely pleading immunity is not enough; it must be developed at summary judgment. The panel nonetheless held no abuse of discretion in allowing the defenses given lack of prejudice and overlapping briefing.

B. Interlocutory jurisdiction over immunity appeals

Smith v. Finkley and Whitlock v. Brueggemann: restated that immunity denials are immediately appealable only to the extent they present issues of law.
Davis v. Allen (citing Johnson v. Jones): set the controlling rule that interlocutory review is unavailable where denial turns on disputed facts.
Stewardson v. Biggs (quoting Finkley): provided the Seventh Circuit’s two-part “closely examine” test to detect back-door factual disputes. This framework drove the dismissal of Garrison’s Fourth Amendment appeal.

C. Qualified immunity framework

District of Columbia v. Wesby (quoting Reichle v. Howards, and quoting Malley v. Briggs): supplied the two-prong qualified immunity test and the “plainly incompetent”/“knowingly violate the law” guardrail.
Mabes v. Thompson: provided both the summary-judgment posture standard (construing the record favorably to plaintiffs) and, critically, the admonition that immunity analysis must be conducted defendant-by-defendant and claim-by-claim. The panel treated the district court’s grouped analysis as a structural error.

D. Fifth Amendment due process and § 1983

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.: cited to support the proposition that the Fifth Amendment’s Due Process Clause constrains federal action, not state action.
Sabo v. Erickson (en banc) (citing Albright v. Oliver): reinforced that § 1983 is remedial (a vehicle) and does not itself create substantive rights, making accurate identification of the underlying constitutional right essential.

E. Fourth Amendment false-affidavit doctrine and probable cause

Franks v. Delaware: supplied the foundational rule that intentional or reckless false statements/omissions material to probable cause violate the Fourth Amendment.
Rainsberger v. Benner (quoting Betker v. Gomez): provided the Seventh Circuit’s “corrected affidavit” materiality method (remove falsities, add omissions, then reassess probable cause).
United States v. James Daniel Good Real Prop.: confirmed Fourth Amendment restrictions apply to civil forfeiture seizures.
Manuel v. City of Joliet: used for the principle that material fabrication can taint a probable-cause determination and render a resulting deprivation unconstitutional.
Illinois v. Gates and Wesby: supplied the “probability or substantial chance” probable-cause standard.
Brinegar v. United States and Johnson v. Myers: rebutted the district court’s evidentiary approach by emphasizing that probable-cause determinations are not governed by trial admissibility rules.
United States v. Hollingsworth: supported reliance on informant observations where reliability is sufficient.
Pryor v. Corrigan: reinforced probable cause as an objective standard; an officer’s subjective view is not controlling.
Dollard v. Whisenand: provided a close analog for pill-mill investigations, showing how INSPECT data plus corroborative sources can establish probable cause for controlled-substance dealing and how intent may be inferred from a physician’s expected knowledge of prescribing limits.

F. Indiana forfeiture/racketeering nexus and state-law backdrop

Abbott v. State (citing Katner v. State): used to articulate Indiana’s requirement of a nexus between the property sought in forfeiture and the enumerated offense, shaping the court’s explanation of why Whisenand’s affidavit and Cockrell’s affidavit served different “halves” of probable cause (crime + property nexus).

G. Absolute prosecutorial immunity

Buckley v. Fitzsimmons: supplied the functional test and the advocate vs. investigator distinction, including the “preparing for initiation of judicial proceedings” concept.
Whitlock v. Brueggemann: reiterated the functional approach and the scope of advocacy immunity.
Greenpoint Tactical Income Fund LLC v. Pettigrew: the key modern Seventh Circuit authority holding prosecutors act as advocates when helping prepare/review a search-warrant affidavit. The panel treated this case as dispositive of absolute immunity for Luttrull and Krug.

3.2 Legal Reasoning

A. The court imposes order on a “shotgun” § 1983 case

The panel’s reasoning is as much about litigation architecture as about outcomes. It faulted the district court for collapsing multiple defendants, multiple proceedings (search warrant, civil forfeiture, licensing), and multiple constitutional theories into a single undifferentiated analysis. Citing Mabes v. Thompson, the court insisted on a claim-by-claim, defendant-by-defendant approach because qualified immunity is individualized and role-sensitive.

That structural critique became outcome-determinative: once the claims were properly disaggregated, several defendants’ conduct was either legally incapable of violating the alleged right (Fifth Amendment), objectively supported by probable cause (Whisenand), or functionally advocative (Luttrull/Krug).

B. Fifth Amendment due process: a categorical mismatch in § 1983 against state actors

The court resolved all Fifth Amendment claims at qualified immunity prong one: if the defendants are treated as state actors for § 1983 purposes, they cannot violate the Fifth Amendment Due Process Clause because that clause constrains the federal government and has not been incorporated against the States. This is less a “clearly established” inquiry than a threshold “no right violated” conclusion.

The notable procedural bite is the court’s refusal to recharacterize the claim as Fourteenth Amendment due process: “Perhaps Economan meant to invoke the Fourteenth Amendment’s Due Process Clause. But it is far too late in the litigation to amend the complaint.” In other words, mislabeling the constitutional source was fatal at this stage.

C. Fourth Amendment claim against Whisenand: corrected-affidavit probable cause defeats liability

Applying Franks v. Delaware through the Seventh Circuit’s Rainsberger v. Benner corrected-affidavit method, the panel accepted (for summary-judgment purposes) that Whisenand made mistakes—most prominently misdescribing INSPECT “fill date” data as “prescription written” dates. But the court treated that error as non-material because it did not change the overall prescribing volume and other corroborative evidence.

The corrected affidavit still contained: high controlled-substance prescribing volume (including INSPECT rankings), a printing company’s alarm about prescription-pad volume, pharmacists’ concerns and refusals to fill prescriptions, undercover buys connected to Economan’s patients, peer/colleague concerns about dangerous prescribing patterns, multiple overdose deaths linked to controlled substances prescribed by Economan, family accounts of minimal examination with continued prescribing, and community medical reports that patients said they could “get what they wanted” if they had money.

With that record, the panel found probable cause “in spades” for Indiana “corrupt business influence,” and held that any alleged misstatements/omissions were immaterial. The court also corrected the district court’s approach to evidence: probable cause is not limited to what would be admissible at trial (Brinegar v. United States).

D. Fourth Amendment claims against Luttrull and Krug: absolute immunity for reviewing warrant affidavits

The opinion’s clearest doctrinal application concerns absolute immunity. The district court denied it by labeling the prosecutors’ affidavit review as “investigative.” The Seventh Circuit rejected that characterization under Buckley v. Fitzsimmons and its own Greenpoint Tactical Income Fund LLC v. Pettigrew. Evaluating evidence assembled by law enforcement and preparing it for judicial presentation—including reviewing/editing a search-warrant affidavit—is advocative conduct protected by absolute immunity.

Two functional points mattered: (1) Krug’s eligibility did not depend on a formal title at the moment of drafting; the question is what role she functionally played in the prosecution; and (2) recognizing immunity at the warrant stage is necessary to preserve meaningful absolute immunity—otherwise, any prosecutor involvement pre-charge could be reframed as “investigation” and immunity would “disappear for seeking search warrants” (quoting Greenpoint).

E. Garrison Law Firm: why jurisdiction failed at the interlocutory stage

Garrison’s qualified-immunity pitch depended on a factual premise: that it did not know the Cockrell affidavit overstated what was known about the accounts’ contents and criminal provenance. The panel held that premise was disputed (e.g., the affidavit’s “good cause” assertions about “significant” criminal proceeds vs. deposition testimony that the account documents came from a trash pull and did not show balances or sources).

Because interlocutory immunity appeals are limited to legal issues, Johnson v. Jones barred review. The court dismissed (rather than affirmed/ reversed) the Fourth Amendment appeal for lack of jurisdiction, leaving the district court to resolve factual disputes in ordinary proceedings.

3.3 Impact

Pleading discipline in constitutional tort cases: The order signals that courts may not rescue poorly specified constitutional sources late in litigation. Plaintiffs must identify the correct constitutional hook (e.g., Fourteenth rather than Fifth for state actors) early, or risk case-ending consequences.
Role-sensitive immunity analysis becomes non-optional: Echoing Mabes v. Thompson, the panel framed defendant-by-defendant, claim-by-claim analysis as essential, especially when multiple proceedings reuse affidavits for different legal functions (search, forfeiture, licensing).
Strengthening the practical reach of absolute prosecutorial immunity: By applying Greenpoint Tactical Income Fund LLC v. Pettigrew, the decision reinforces that prosecutors can vet and edit search-warrant affidavits without fear of civil damages liability—absent conduct outside advocacy (e.g., personally fabricating facts).
Clarifying probable-cause evaluation in pill-mill/medical cases: The court’s reliance on a broad evidentiary mosaic—PDMP data, pharmacy refusals, community reports, overdoses, and informant statements—underscores how probable cause may be established without a fully trial-ready evidentiary record.
Limits on interlocutory appeals for private actors asserting qualified immunity: The dismissal of Garrison’s appeal illustrates that when qualified immunity turns on disputed knowledge/intent facts, appellate courts will not entertain interlocutory review, pushing such defendants toward trial-level resolution.

4. Complex Concepts Simplified

Qualified immunity: A protection for officials from damages unless they violated a constitutional right and the unlawfulness was clearly established at the time. Here, the court often stopped at step one (no viable Fifth Amendment right against state actors; no Fourth Amendment violation because probable cause remained).
Absolute immunity (prosecutors): A stronger protection covering prosecutorial “advocacy” functions closely tied to judicial proceedings. Under Greenpoint Tactical Income Fund LLC v. Pettigrew, reviewing/editing a search-warrant affidavit is treated as advocacy, not investigation.
Franks violations and “corrected affidavits”: Under Franks v. Delaware, lying (or reckless omission) in an affidavit matters only if it is material. Courts test materiality by removing the alleged lies, adding the omitted facts, and asking whether the judge would still have probable cause (Rainsberger v. Benner).
Probable cause: Not proof beyond a reasonable doubt—only a “substantial chance” of wrongdoing (Illinois v. Gates; Wesby). It can rely on information that might not be admissible at trial (Brinegar v. United States).
Fifth vs. Fourteenth Amendment due process: The Fifth Amendment due process clause limits the federal government; the Fourteenth limits states. In § 1983 suits against state actors, due process claims are typically Fourteenth Amendment claims. Economan pleaded Fifth, and the court declined to rewrite it late.
Interlocutory appellate jurisdiction over immunity: Appeals from immunity denials are allowed early only for legal questions. If the issue depends on who knew what, or other disputed facts, the appellate court must dismiss (Johnson v. Jones).

5. Conclusion

This nonprecedential Seventh Circuit order is primarily a corrective roadmap for multi-defendant § 1983 litigation built on reused affidavits across multiple proceedings. Its central takeaways are: (1) a Fifth Amendment due process theory is not viable against state actors in a § 1983 posture, and courts may refuse late efforts to reframe it as Fourteenth Amendment due process; (2) in a forfeiture-linked Fourth Amendment claim premised on affidavit falsity, the corrected-affidavit probable-cause inquiry can defeat liability even where some statements were wrong; (3) prosecutors who review/edit warrant affidavits act as advocates and are absolutely immune under Greenpoint Tactical Income Fund LLC v. Pettigrew; and (4) interlocutory review of qualified immunity is unavailable when the defense turns on disputed facts, as with Garrison’s contested knowledge of affidavit inaccuracies.