In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2918

JOSEPH T HOMAS, on behalf of himself and all others
    similarly situated,
                                       Plaintiff-Appellant,
                           v.



C ITY OF P EORIA and S ONNI W ILLIAMS,

                                           Defendants-Appellees.


           Appeal from the United States District Court
               for the Central District of Illinois.
             No. 06-1018—Joe Billy McDade, Judge.



     A RGUED A PRIL 13, 2009—D ECIDED S EPTEMBER 3, 2009




  Before C UDAHY, P OSNER, and T INDER, Circuit Judges.
  P OSNER, Circuit Judge. The plaintiff brought suit under
42 U.S.C. § 1983 against the City of Peoria and a lawyer
in the City counsel’s office named Sonni Williams, com-
plaining that he had been arrested in violation of his
Fourth Amendment rights (made applicable to state
action by interpretation of the Fourteenth Amendment)
and also deprived of his liberty without due process
2                                               No. 08-2918

of law. He added state law claims for false arrest and
abuse of process. The district judge dismissed the
federal claims for failure to state a claim and having
done so refused to certify a class of persons arrested
in circumstances like the plaintiff’s. He allowed the state
law claims to proceed, but dismissed them on sum-
mary judgment; the plaintiff does not appeal that ruling.
   First ruling on the merits of the federal claims, and then
denying class certification on the basis of that ruling,
puts the cart before the horse, as we have emphasized
in previous cases. Wiesmueller v. Kosobucki, 

, 786-87 (7th Cir. 2008); Bertrand ex rel. Bertrand v.
Maram, 

, 455-56 (7th Cir. 2007); Bieneman v. City
of Chicago, 

, 964 (7th Cir. 1988) (per curiam);
Premier Electrical Construction Co. v. National Electrical
Contractors Association, Inc., 

, 363 (7th Cir.
1987); Watkins v. Blinzinger, 

, 475-76 n. 3
(7th Cir. 1986). Among other objections to that way of
proceeding, it deprives the defendants of the benefit of
res judicata should they be sued by other members of
the class. But as is also all too common, the defendants
in this case defend the denial of certification—perversely,
because they are rightly confident that the plaintiff’s
claim, and therefore the claims of the other class mem-
bers, have no merit, so that if the class had been certified
the judgment for the defendants would spare them
further suits by members of the class. But since neither
side is challenging the denial of certification, we shall let
it stand.
  Joseph A. Thomas was stopped by a Peoria police officer
for a traffic violation, and arrested by the officer when he
No. 08-2918                                             3

learned that there was an outstanding arrest warrant
for Joshua A. Thomas. Although the names were dif-
ferent and also the addresses, the arrest warrant listed
the number of the plaintiff’s driver’s license rather
than that of Joshua Thomas’s, and the officer may have
thought therefore that Joshua was pretending to be a
different person. The plaintiff was booked, and released
on a $100 bond; and several days later, when he
appeared before a state court judge for a preliminary
hearing, the charges against him were dismissed
because he was indeed not Joshua Thomas. Cf. Baker v.
McCollan, 

, 140-41 (1979); Hernandez v.
Sheahan, 

(7th Cir. 2006).
   The warrant for Joshua Thomas’s arrest had been
issued by a state court judge upon a motion filed by
defendant Williams charging that Thomas had nine
unpaid parking tickets. The plaintiff argues that neither
Illinois state law nor Peoria ordinances authorize a
person to be arrested for having failed to pay parking
tickets, and therefore his arrest was an unreasonable
seizure. Ordinarily the defendant would be the arresting
officer, since the prosecutor would have immunity
(we discuss the issue of immunity later) and since the
officer’s employer could not be sued under the doctrine
of respondeat superior because that doctrine is inap-
plicable to suits under section 1983. But the plaintiff
claims that the City of Peoria has a policy of arresting
people for not paying their parking tickets, a policy that
he claims is unconstitutional; and if it does have such a
policy and the policy is unconstitutional, the City would
be a tortfeasor and not just a tortfeasor’s employer, and
therefore liable without reference to respondeat superior.
4                                                No. 08-2918

  At the oral argument of the appeal, one of the judges
raised the question whether the plaintiff lacks “standing”
to challenge the legality of an arrest for unpaid parking
tickets. Not standing in the constitutional sense, for he
has suffered a harm that he would not have suffered
had the defendants obeyed state law—in which event
he would not have been arrested—and he could be
made whole for that harm by being awarded damages.
Rather, standing in the “zone of interests” sense, a re-
quirement for maintaining a suit in federal court but
one imposed by federal common law, rather than by
the Constitution as a condition of federal jurisdiction.
  The term “zone of interests” originated as a guide to
determining who is a person “aggrieved” by an adminis-
trative ruling within the meaning of the Administrative
Procedure Act and therefore entitled to challenge
the ruling in court. Association of Data Processing Service
Organizations, Inc. v. Camp, 

, 153-55 (1970);
United States ex rel. Hall v. Tribal Development Corp., 

, 1214 (7th Cir. 1995); North Shore Gas Co. v.
EPA, 

, 1243-44 (7th Cir. 1991); Conte Bros.
Automotive, Inc. v. Quaker State-Slick 50, Inc., 

, 226 (3d Cir. 1998); Church of Scientology Flag Service
Organization v. City of Clearwater, 

, 1525-26 (11th
Cir. 1993). And it is found mainly in APA cases. But
it expresses a broader principle, related to the tort
concept of remoteness of injury.
  Often the violation of a statute or a common law
doctrine injures someone who is not an intended benefi-
ciary of the statute or the doctrine. Consider Gorris v.
No. 08-2918                                              5

Scott, 9 L.R.-Ex. 125 (1874), where a number of the plain-
tiff’s sheep were swept overboard in a storm to their
death while being transported on the defendant’s ship.
The defendant had failed to install pens in which to
hold the animals on their journey, as required by stat-
ute. Had the pens been installed, the sheep would
have been saved. But because the statute’s purpose
was merely to prevent infection, not to save animals
from being drowned, the suit failed. An owner of animals
killed not because of disease but because of the rolling
of a ship during a storm was not within the class of
persons intended to be protected by the statute under
which he was suing.
  In Gorris, as in many of the APA cases, the statute
that created the right of action circumscribed the benefi-
ciaries and thus the scope of liability. But in other cases
the class of persons who are permitted to sue to enforce
a statute or a common law doctrine is circumscribed in an
exercise of judicial discretion guided by concerns with
the administrative costs of liability relative to the
benefits of the threat of liability in bringing about
better compliance with law. We discussed this second
type of “zone of interests” determination in MainStreet
Organization of Realtors v. Calumet City, 

, 747
(7th Cir. 2007), where the question was whether real
estate brokers could challenge an ordinance that
reduced the salability of the homes in the area in which
the brokers operated. The ordinance undoubtedly
harmed the brokers by reducing the number of sales, but
the primary injury was to homeowners who wanted to
sell their homes, and we disapproved of “allowing a
6                                                 No. 08-2918

derivative victim to preempt the claims of the immediate
victim.” 

injured persons to sue
would interfere with the primary victims and add more
to the judiciary’s burdens than to the deterrent effect of
the law sued under.
   This discussion exposes an ambiguity in what it
means to be within the “zone of interests” and therefore
entitled to sue. It can denote the class of persons injured
by a violation who are the intended beneficiaries of the
law that has been violated; but it can also denote a class
of victims that excludes persons derivatively or peripher-
ally injured by the violation. Our opinion in MainStreet
illustrated that exclusion with “the rule of antitrust law
that denies the right of a purchaser from a cartel’s cus-
tomers to sue the cartel for damages even if the customers
passed on the cartel overcharge to their purchasers.
Illinois Brick Co. v. Illinois, 

(1977). There is
Article III standing, but there is no right to sue—not
because there is no antitrust violation, but because it is
efficient to confine the right to sue to the immediate
customer of the cartel rather than to multiply the
number of plaintiffs and burden the court with having
to apportion damages between the first and second tiers
of 

.
  Remoteness of injury as a limitation on liability is a
common law principle well illustrated in a number of
famous opinions by Cardozo. E.g., Ultramares Corp. v.
Touche, 

(N.Y. 1931); Palsgraf v. Long Island R.R.,

(N.Y. 1928); H.R. Moch Co. v. Rensselaer Water
Co., 

(N.Y. 1928); Kerr S.S. Co. v. Radio Corp. of
No. 08-2918                                                  7

America, 

(N.Y. 1927). It is securely a
principle of federal common law, as illustrated by such
cases as Clarke v. Securities Industry Association, 

, 400-01 n. 16 (1987); Boston Stock Exchange v. State
Tax Commission, 

, 320-21 n. 3 (1977); Phoenix
Bond & Indemnity Co. v. Bridge, 

, 932-33 (7th Cir.
2007); Gale v. Hyde Park Bank, 

, 452 (7th Cir.
2004); Israel Travel Advisory Service, Inc. v. Israel Identity
Tours, Inc., 

, 1257-58 (7th Cir. 1995), and City
of New York v. Smokes-Spirits.com, Inc., 

, 440-41
n. 20 (2d Cir. 2008)—as well as by Illinois Brick and
MainStreet, both federal cases not governed by the Ad-
ministrative Procedure Act, the principal generator
of “zone of interests” cases.
  If Illinois state and local law is as the plaintiff claims (a
question we need not answer, and therefore do not since
only the Illinois courts can declare Illinois law authorita-
tively), and if in addition an arrest for violating a law
that does not authorize arrest thereby violates the con-
stitutional prohibition against unreasonable seizures,
Joshua Thomas is a primary victim of the City of Peoria’s
allegedly unconstitutional policy. But Joseph Thomas,
our plaintiff, is not. He is the accidental victim of a
policy aimed at protecting a class to which he does not
belong—people who don’t pay their parking tickets.
  Not that it isn’t odd to think that Joshua, the scofflaw,
has greater rights than the innocent Joseph. But Joseph’s
argument that we are considering depends on incorporat-
ing the state and local protections of parking violators
from arrest into the Fourth Amendment, and he is not
within those protections.
8                                                   No. 08-2918

  But suppose, contrary to what we have just said, that
the state and local no-arrest rules were intended to
protect people falsely accused of parking violations
from being arrested. Would that carry the day for the
plaintiff? (Since the nonconstitutional standing doctrine
is not jurisdictional, we are at liberty to resolve the
merits as an alternative ground of decision.) It would
not. The Supreme Court has held that if an arrest is other-
wise reasonable, the fact that it is not for an “arrestable”
offense does not make it unconstitutional. Virginia v.
Moore, 

, 1606-07 (2008); see also United States
v. Turner, 

, 1345-46 (10th Cir. 2009); Rose v.
City of Mulberry, 

, 680 (8th Cir. 2008). The
dictum in United States v. Trigg, 

, 1041 (7th
Cir. 1989), on which the plaintiff relies—“The reasonable-
ness of an arrest depends upon the existence of two
objective factors. First, did the arresting officer have
probable cause to believe that the defendant had com-
mitted or was committing an offense. Second, was the
arresting officer authorized by state and or municipal law
to effect a custodial arrest for the particular offense” (emphasis
added)—cannot survive Moore.
  The plaintiff fares no better with his argument that an
arrest for an offense that cannot be punished by jail or
prison is unreasonable even if state law permits it. As
with many traffic violations, the only “punishment”
authorized by Illinois law for not paying one’s parking
tickets is (we are assuming) a monetary penalty that
is not even classified as a “fine.” But the Fourth Amend-
ment does not forbid an arrest for a “nonjailable” offense.
Atwater v. City of Lago Vista, 

, 351-54 (2001);
No. 08-2918                                                 

. Rodriguez, 

, 399-401 (7th Cir. 2007);
Hernandez v. 

, 455 F.3d at 774. Even arrests
for violations of purely civil laws are common enough,
and usually unexceptionable—examples that spring to
mind are arrests for civil violations of the immigration
laws (such as overstaying a visa) and for civil contempt.
  The plaintiff’s due process argument hovers on the
brink of the preposterous. It is that the City deprived
him of liberty by arresting him without having notified
him that failure to pay parking tickets might lead to an
arrest. Since he didn’t fail to pay his parking tickets (as
far as we know, he had no parking tickets), the notice
could not have helped him. What he should as a matter
of logic be arguing (though it would not be a winning
argument either) is that the City should have notified
him that its policy of arresting people for not paying
parking tickets is clumsily administered, with the result
that people who do pay their parking tickets, or for that
matter never get parking tickets, had better watch out.
The implication would be that if he had received such
a warning maybe he would have stopped driving.
   Finally, even if defendant Williams violated the plain-
tiff’s rights in filing the motion that led to his arrest, she
has absolute immunity from liability to pay damages
for the consequences of what she did. Prosecutors
have absolute immunity when they are performing prose-
cutorial duties, and filing a complaint is such a duty, even
if it is a complaint charging a civil rather than a criminal
violation, Smith v. Power, 

, 742 (7th Cir. 2003);
Mendenhall v. Goldsmith, 

, 691 (7th Cir. 1995);
10                                                No. 08-2918

Blakely v. United States, 

, 871 (6th Cir. 2002);
Gray v. Poole, 

, 577 (D.C. Cir. 2001); Schrob v.
Catterson, 

, 1411-12 (3d Cir. 1991), which
seems the correct characterization of nonpayment of
parking tickets in Peoria, Illinois. “Prosecution,” for
purposes of absolute prosecutorial immunity, just
means law enforcement by public officers. Whether the
law being enforced is civil or criminal or something in
between, such as a parking violation, is irrelevant. See,
e.g., Butz v. Economou, 

, 516-17 (1978) (civil
enforcement of Department of Agriculture regulations);
Smith v. 

(civil proceedings to demolish a
house that violated the building code); Gray v. 

(civil child-neglect actions); Sprecher v. Graber, 

, 975 (2d Cir. 1983) (civil enforcement of securities
laws). The work of prosecutors requires them constantly
to be inflicting costs on private citizens, so that without
immunity they would be the targets of continuous litiga-
tion that would make it impossible for them to perform
their duties. This is so whether their “prosecutions” are
civil, or criminal, or merely, as in the case of unpaid
parking tickets in Peoria, administrative.
  The plaintiff’s reliance on Kalina v. Fletcher, 

,
129-31 (1997), is unavailing; indeed the decision caps
the ruination of his case. It holds that while prosecutors
do not have absolute immunity for filing affidavits in
support of arrest warrants because that is a merely in-
vestigative activity, they do have it when applying for
an arrest warrant because applying for a warrant is part
of the prosecutor’s role as advocate, and that means it
belongs to the “judicial phase” of criminal justice, Imbler
No. 08-2918                                             11

v. Pachtman, 

, 430 (1976), rather than to its
investigatory or administrative phases. Burns v. Reed,

, 491 (1991). (Burns involved a search warrant,
but its analysis is equally applicable to an arrest war-
rant.) The distinction may seem rather tenuous, or artifi-
cial, or even question-begging, but it makes practical
sense because a person who supplies the facts to back
the warrant has a greater opportunity to misrepresent
them. And although this doesn’t explain why the police
officer who applies for the warrant lacks absolute im-
munity, a reason suggested in the decision that denied
the police that immunity is that they are further removed
from the judicial phase of the criminal process than
prosecutors are. Malley v. Briggs, 

, 342-43
(1986). And probably in most cases the police officer
who applies for the warrant writes and signs the sup-
porting affidavit.
                                                A FFIRMED.




                           9-3-09