DALE W. ECONOMAN and ECONOMAN AND ASSOCIATES FAMILY MEDICINE v. James Luttrull

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 4, 2025
Decided January 12, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
Nos. 24-3165, 24-3246, & 25-1020
DALE W. ECONOMAN and
ECONOMAN AND ASSOCIATES
FAMILY MEDICINE,
Plaintiffs-Appellees,
v.
JAMES LUTTRULL, et al.,
Defendants-Appellants.
Appeals from the United States District
Court for the Northern District of Indiana,
Fort Wayne Division.
No. 1:20-cv-00032-GSL
Gretchen S. Lund,
Judge.
O R D E R
This appeal concerns the criminal “pill-mill” investigation and prosecution of Dale
Economan and his medical practice, Economan and Associates Family Medicine. In 2014,
federal and Indiana state law enforcement initiated a joint investigation of Economan and
EAFM for overprescribing controlled substances. Following a state prosecution,
Economan pleaded guilty to a lesser offense and agreed to relinquish his medical license.
Economan and EAFM then went on the offensive, invoked 42 U.S.C. § 1983, and sued
Drug Enforcement Administration agents, Indiana state prosecutors, and a law firm
involved in the criminal case alleging violations of his Fourth and Fifth Amendment
rights.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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The district court denied defense motions for summary judgment requesting
qualified and absolute immunity, and this appeal followed. This case, which has persisted
for nearly six years and come before three district court judges, arrives on appeal as a
tangled mess, laden with confused claims and the misapplication of legal doctrines. We
have done our best to sort it out and provide guidance to move the litigation forward and
to finality.
We conclude that all defendants are entitled to qualified immunity on the Fifth
Amendment due process claims against them. DEA Investigator Gary Whisenand is
entitled to qualified immunity, and prosecutors James Luttrull and Jessica Krug to
absolute immunity, on the Fourth Amendment claims against them. We dismiss Garrison
Law Firm’s Fourth Amendment appeal for lack of jurisdiction.
I
A. Background
Because this is an appeal from the district court’s denials of qualified and absolute
immunity, and the district court did not identify what material facts remain in dispute,
we review the record afresh and construe it in the light most favorable to Economan and
EAFM as plaintiffs. See Mabes v. Thompson, 136 F.4th 697, 702, 705 (7th Cir. 2025).
Dale Economan was a family practice physician licensed in Indiana. He also held
a DEA license to prescribe controlled substances such as opioids. Economan opened a
solo practice, EAFM, in 2012 in Marion, Indiana. By 2014 Economan and EAFM found
themselves under investigation. All five defendants in this case, comprised of federal,
state, and private actors, collaborated in the investigation and ensuing enforcement
efforts:
• Tonda Cockrell: Supervisor of Kokomo Police Department Drug Taskforce and
federally deputized DEA officer;
• Gary L. Whisenand: DEA Diversion Investigator;
• James Luttrull: Elected Prosecutor of Grant County, Indiana;
• Jessica Krug: Indiana Deputy Attorney General in the Medicaid Fraud Control
Unit; and
• Garrison Law Firm: Private law firm retained by Grant County to prosecute civil
racketeering and forfeiture cases on behalf of Indiana.
Economan landed on law enforcement’s radar after a series of complaints. In 2013,
the Indiana Attorney General’s Medicaid Fraud Control Unit received a complaint about

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him from a patient’s relative. Around the same time, Task Force Officer Tonda Cockrell
received a complaint from a local printing company that Economan had ordered an
unusually large number of prescription pads for controlled substances. Cockrell also
learned that the Grant County Joint Efforts Against Narcotics Team, the so-called JEAN
Team, had done multiple undercover buys of controlled substances from Economan’s
patients.
Task Force Officer Cockrell collaborated with DEA Diversion Investigator Gary
Whisenand to investigate further. After conducting preliminary interviews with the
printing company and pharmacies that expressed concern about Economan’s prescribing
practices, they opened a formal DEA investigation in February 2014.
In early 2015, Cockrell and Whisenand began to meet periodically with
representatives from the Grant County Prosecutor’s Office to discuss the investigation
and a possible prosecution. Grant County Prosecutor James Luttrull and Indiana Deputy
Attorney General Jessica Krug attended one or more of those meetings.
To further the investigation, Whisenand prepared a probable cause affidavit to
support a warrant to search the EAFM office and Economan’s home. The Whisenand
Affidavit explained that the investigation uncovered evidence that Economan had
written a suspicious number of controlled substance prescriptions for his patients with
little to no accompanying medical examination and that some patients had, in turn, sold
the drugs to others or died of drug overdoses. The warrant application sought judicial
approval to search for patient files and other evidence relevant to potential violations of
state laws regulating controlled substances. Luttrull and Krug reviewed the draft
affidavit and provided edits and other feedback.
A Grant County judge issued a search warrant based on the Whisenand Affidavit.
The DEA, Indiana Attorney General’s Office, Kokomo Police Department, and JEAN
Team then performed the searches on July 29, 2015.
Two other legal proceedings followed. First, Prosecutor Luttrull retained the
Garrison Law Firm to assist in the investigation. The same day law enforcement
conducted the searches, Garrison filed a civil forfeiture complaint against Economan in
an Indiana court alleging corrupt business influence, racketeering, and drug dealing,
among other state law criminal offenses. The complaint identified Prosecutor Luttrull as
the plaintiff.
Garrison supported the civil forfeiture complaint with two affidavits—the one
prepared by DEA Investigator Whisenand to support the search warrant application and
a second signed by Task Force Officer Cockrell. The Cockrell Affidavit listed eight bank

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accounts and one retirement account owned by Economan or EAFM that she attested she
had “good cause to believe” contained “significant” proceeds from the criminal activities
described in the Whisenand Affidavit. The civil forfeiture complaint requested an
immediate order freezing those accounts.
A Grant County judge granted the request pursuant to Indiana Code § 34-24-2-3
after finding probable cause to believe the accounts held funds derived from corrupt
business influence under Indiana Code § 35-45-6-2. The judge ordered the banks to freeze
Economan and EAFM’s assets totaling over $1 million.
Next, Indiana Deputy Attorney General Krug sought and obtained an emergency
suspension of Economan’s medical license from the Indiana Medical Licensing Board.
Krug used the Whisenand Affidavit to support the licensing action.
In September 2016, Indiana filed criminal charges against Economan including
seven counts of dealing in narcotics and one count of corrupt business influence. The
State later added a marijuana possession charge. Economan pleaded guilty to the
marijuana charge and, as part of a plea agreement, surrendered his medical license.
Indiana then dismissed the remaining criminal charges as well as the civil forfeiture
proceeding.
B. Procedural History
Economan and EAFM then invoked 42 U.S.C. § 1983 and sued DEA Investigator
Whisenand and Task Force Officer Cockrell, Prosecutor Luttrull, Indiana DAG Krug, and
Garrison Law Firm for allegedly violating and conspiring to violate his rights under
federal and state law. We confine our recitation of the procedural background and
accompanying facts and analysis to the issues pertinent to this appeal, in particular,
Economan’s Fourth Amendment and Fifth Amendment due process claims. For the
remainder of this Order, we refer to Economan and EAFM together as “Economan.”
Economan alleged that the defendants violated his Fourth and Fifth Amendment
rights by preparing and submitting affidavits containing materially false information and
omissions. Our review of the complaint shows that Economan pleaded his claims with
substantial imprecision. Each defendant, of course, played a unique role in the case and
law enforcement used the Whisenand Affidavit to support multiple applications—a
warrant to search Economan’s home and office, a civil forfeiture proceeding, and a
licensing action before the Indiana Medical Licensing Board. Yet, to our eye, it has been
unclear from the beginning which claims Economan raised against which defendants
based on which proceedings. The district court grappled with this confusion at summary
judgment as we do now on appeal. At oral argument, Economan stated that he brought

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Fourth and Fifth Amendment claims against each defendant based solely on the civil
forfeiture proceeding. We accept his representation and consider any other Fourth and
Fifth Amendment claims waived for all purposes in this litigation.
The defendants each separately moved for summary judgment based on qualified
immunity (except Luttrull and Krug who filed jointly). In their roles as prosecutors,
Luttrull and Krug also sought summary judgment based on absolute immunity. Garrison
initially moved for absolute immunity too but only challenges the denial of qualified
immunity on appeal.
The district court denied the defense motions for summary judgment across the
board as to the claims at issue here. At the threshold, the court determined that all
defendants, including the federal and private defendants, qualified as state actors for
purposes of § 1983 based on their collaboration in the state investigation and prosecution.
From there the district court turned to the merits and concluded that, because the
Whisenand and Cockrell Affidavits contained false information material to the probable
cause determination in the civil forfeiture proceeding, the defense motions for summary
judgment must be denied. But it then went a step further and affirmatively entered
summary judgment for Economan on his Fourth and Fifth Amendment claims even
though Economan never moved for summary judgment on those claims.
The district court then denied Luttrull absolute immunity without considering
Krug’s parallel defense. And as a final measure the court denied all defendants qualified
immunity.
On defense motions for reconsideration, the district court, to its credit, recognized
that Federal Rule of Civil Procedure 56(f) prohibits entry of summary judgment for a
nonmoving party without notice, leading the court to vacate this aspect of its prior order
and to send Economan’s Fourth and Fifth Amendment claims to trial. In ruling on the
reconsideration motions, the district court also determined, without much explanation,
that qualified immunity would have to be resolved at trial due to material factual
disputes. The court did not address absolute immunity in its reconsideration ruling.
Finally, the district court seemed to conclude that its prior ruling that the defendants had
acted “under color of state law” for purposes of § 1983 could be challenged or revisited
at trial.
As the case came to us on appeal, we struggled to discern what rulings were being
challenged by what party. Rarely do we see this level of confusion in an appeal. Having
done our best to untangle the knots, we believe the following defendants appealed the
district court’s denial of immunity on the following claims and bases:

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Nos. 24-3165, 24-3246, & 25-1020 Page 6
Defendant Fourth Amendment Fifth Amendment Basis
Gary Whisenand Appealed Appealed Qualified immunity
Tonda Cockrell Not appealed Appealed Qualified immunity
James Luttrull Appealed Appealed Absolute immunity;
Qualified immunity
Jessica Krug Appealed Appealed Absolute immunity;
Qualified immunity
Garrison Law Firm Appealed Appealed Qualified immunity
We recognize that there may be an open question about whether the federal and
private defendants still qualify as state actors after the district court retracted its initial
findings. But this was not a focus of presentation on appeal, so we assume that all
defendants qualify as state actors. See Clark v. Sweeney, 607 U.S. ––, 2025 WL 3260170, at
*1 (2025) (reiterating the party presentation principle).
II
We begin with a procedural question on waiver. Economan insists that the
defendants waived all immunity defenses by raising them too late in the district court.
We review the legal question of whether conduct amounts to waiver de novo. See e360
Insight v. The Spamhaus Project, 500 F.3d 594, 599 (7th Cir. 2007). But we review a district
court’s decision to allow the late assertion of an affirmative defense only for abuse of
discretion. See Burton v. Ghosh, 961 F.3d 960, 964 (7th Cir. 2020).
Immunity is an affirmative defense. See Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir.
2019) (qualified immunity); Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010) (absolute
immunity). As such, a defendant’s failure to plead immunity “may result in a waiver of
the defense if the defendant has relinquished it knowingly and intelligently, or forfeiture
if the defendant merely failed to preserve the defense by pleading it.” Whyte v. Winkleski,
34 F.4th 617, 626 (7th Cir. 2022) (quoting Reed v. Columbia St. Mary’s Hosp., 915 F.3d 473,
478 (7th Cir. 2019)).
Merely pleading a defense, however, is not enough to preserve it for appeal at
summary judgment. A defendant must also raise and develop it at that stage. See Henry
v. Hulett, 969 F.3d 769, 785 (7th Cir. 2020) (en banc). But a district court may entertain a

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late affirmative defense if delay has not prejudiced the plaintiff as the non-moving party.
See Burton, 961 F.3d at 965–66.
For reasons that confound us, the defendants here invoked immunity at different
points before the district court and not always in a timely fashion. DEA Investigator
Whisenand and Task Force Officer Cockrell pleaded qualified immunity as an affirmative
defense but only raised it at summary judgment in reply. Prosecutor Luttrull and Indiana
DAG Krug pleaded absolute and qualified immunity as defenses and fully briefed them
at summary judgment. Garrison Law Firm did not plead qualified immunity but briefed
it at summary judgment.
The district court nevertheless chose to address immunity on the merits for each
defendant, opting not to penalize the untimeliness of any defense. We see no abuse of
discretion because Economan does not claim, much less show, that he suffered any
prejudice.
On the contrary, Economan could and should have anticipated immunity defenses
at summary judgment because all defendants, except Garrison Law Firm, pleaded
immunity as an affirmative defense in their answers to the complaint. Most defendants
then fully briefed immunity at summary judgment. Although Whisenand and Cockrell
only raised it in reply, their positions strongly overlapped with those advanced by other
defendants, which Economan fully responded to. Further, most defendants (all except
Task Force Officer Cockrell and, for absolute immunity, Prosecutor Luttrull) raised
immunity in their motions to reconsider. Yet Economan failed to address the merits of
those arguments.
On this record, we cannot see how Economan was unfairly surprised by or denied
a fair opportunity to respond to any immunity defense. We conclude that each defendant
preserved their immunity defense(s) for appeal.
III
We turn next to our own jurisdiction. A denial of immunity is only considered a
final decision subject to interlocutory review if it turns on issues of law. See Smith v.
Finkley, 10 F.4th 725, 734–35 (7th Cir. 2021) (addressing qualified immunity); Whitlock v.
Brueggemann, 682 F.3d 567, 573 (7th Cir. 2012) (addressing absolute and qualified
immunity). “If, however, the denial turns on disputed facts, then we lack jurisdiction to
hear the interlocutory appeal.” Davis v. Allen, 112 F.4th 487, 492 (7th Cir. 2024) (citing
Johnson v. Jones, 515 U.S. 304, 313 (1995)).
To determine whether an immunity defense turns on legal issues, “we ‘closely
examine’ whether: (1) the district court ‘identifie[d] factual disputes as the reason for

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denying … immunity;’ and (2) [the defendant] ‘make[s] a back-door effort to use disputed
facts’ to support his arguments. When we answer yes to both questions … we lack
jurisdiction over the appeal.” Stewardson v. Biggs, 43 F.4th 732, 736 (7th Cir. 2022) (quoting
Finkley, 10 F.4th at 736).
Having done so, we conclude that we have jurisdiction over all appeals except
Garrison’s appeal on Economan’s Fourth Amendment claim. We explain our reasoning
in the ensuing sections of this Order.
IV
Qualified immunity protects a government official from liability for civil damages
unless the plaintiff shows that “(1) they violated a federal statutory or constitutional right,
and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664
(2012)). The defense allows room for reasonable but mistaken judgments and “protects
‘all but the plainly incompetent or those who knowingly violate the law.’” Id. at 63
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “We review denials of qualified
immunity without deference to the district court and cabin our review to legal questions.”
Mabes, 136 F.4th at 705.
We have repeatedly emphasized that “[b]ecause qualified immunity is an
affirmative defense” available on an individual basis, “a court must structure its analysis
defendant-by-defendant and claim-by-claim.” Id. at 706. This requires a district court to
focus on the facts relevant to a particular defendant’s actions under the elements of the
claim in question.
The district court’s analysis fell short on this front. The court did not approach the
qualified immunity inquiries defendant-by-defendant and claim-by-claim but instead
grouped defendants and claims together. As best as we can tell, the error occurred this
way: once the district court found that the Whisenand and Cockrell Affidavits contained
false statements material to the civil forfeiture, the court concluded in summary fashion
that all defendants shouldered responsibility for the misstatements and therefore no form
of immunity was available to any defendant. The court stopped at this categorical and
general level without taking the necessary steps of scrutinizing each defendant’s
individual actions and clearly established precedent addressing their respective roles.
In a situation like this, we could return the case to the district court for a renewed
analysis of each defendant’s request for immunity. But we have opted against that
approach for two reasons. First, this case has been pending for many years (and assigned
to three different district court judges). Second, after undertaking our own examination

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of the record, we are able to reach clear and confident conclusions about the immunity
defenses.
As to the Fifth Amendment claims, all defendants are entitled to qualified
immunity. And as to the Fourth Amendment claims, DEA Investigator Whisenand is
entitled to qualified immunity while Garrison Law Firm is not, at least at this stage of the
proceedings.
A. Fifth Amendment Claims (All Defendants)
Economan brought a Fifth Amendment due process claim against each defendant.
We start with this claim because it suffers from a common legal flaw applicable to each
defendant.
The Fifth Amendment’s Due Process Clause is a misfit for a § 1983 action because
it has not been incorporated against the States. See, e.g., Koessel v. Sublette County Sheriff’s
Dep’t, 717 F.3d 736, 748 n.2 (10th Cir. 2013) (observing that the Fifth Amendment’s Due
Process Clause only applies to the federal government’s actions); Bingue v. Prunchak, 512
F.3d 1169, 1174 (9th Cir. 2008) (same); Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 8–9
(1st Cir. 2007) (same); Scott v. Clay County, 205 F.3d 867, 873 n.8 (6th Cir. 2000) (same);
Nguyen v. U.S. Catholic Conf., 719 F.2d 52, 54 (3d Cir. 1983) (same). 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.
We therefore dispose of the Fifth Amendment claims on the first prong of qualified
immunity by observing that officials acting under color of state law cannot violate a
plaintiff’s Fifth Amendment due process rights because that clause does not constrain
state action. See Sabo v. Erickson, 128 F.4th 836, 845 (7th Cir. 2025) (en banc)
(“[Section 1983] … does not confer substantive rights. Instead, [it] provides a means of
enforcing federal rights conferred elsewhere.” (citing Albright v. Oliver, 510 U.S. 266, 271
(1994)).
Accordingly, all defendants are entitled to qualified immunity on all Fifth
Amendment claims.
B. Fourth Amendment Claim (Defendant Whisenand)
Economan alleged that DEA Investigator Whisenand caused an unlawful seizure
of his property by preparing an inaccurate and materially misleading probable cause
affidavit for the civil forfeiture proceeding. To defeat qualified immunity, Economan
must show that Whisenand violated a constitutional right and that the right was clearly
established at the time. Economan fails at the first step.

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An officer violates the Fourth Amendment by intentionally or recklessly
submitting a probable cause affidavit that includes false statements or omissions material
to a probable cause determination. See Franks v. Delaware, 438 U.S. 154, 164–65 (1978);
Rainsberger v. Benner, 913 F.3d 640, 647 (7th Cir. 2019). This principle applies with full
force in the civil forfeiture context. See United States v. James Daniel Good Real Prop., 510
U.S. 43, 49 (1993) (holding that the Fourth Amendment places “restrictions on seizures
conducted for purposes of civil forfeiture”).
We evaluate materiality by “eliminat[ing] the alleged false statements,
incorporat[ing] any allegedly omitted facts, and then evaluat[ing] whether the resulting
‘hypothetical’ affidavit would establish probable cause.” Rainsberger, 913 F.3d at 647
(quoting Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012)). Probable cause exists when the
remaining facts viewed from the standpoint of an objectively reasonable officer show a
“probability or substantial chance of criminal activity.” Wesby, 583 U.S. at 57 (quoting
Illinois v. Gates, 462 U.S. 213, 243–44 & n.13 (1983)).
Before assessing the materiality of the alleged misstatements within the
Whisenand Affidavit, we must be clear about its purpose in the civil forfeiture
proceeding. Whisenand originally drafted the affidavit for a search warrant application.
But he later signed a copy of the same affidavit knowing it would be used in the civil
forfeiture proceeding. In these circumstances, we assess whether any false statements in
or omissions from the affidavit were material to the state court’s probable cause
determination for its order directing the freezing of Economan’s assets because that is the
legal proceeding about which Economan complains. See Manuel v. City of Joliet, 580 U.S.
357, 369 n.8 (2017) (explaining in the context of pretrial detention that if fabricated
evidence is material to a probable cause determination, the legal proceeding is tainted
and an ensuing deprivation of liberty violates the Fourth Amendment).
Under Indiana law, the prosecuting attorney for a county may bring a civil
forfeiture action for property derived from corrupt business influence. See Ind. Code § 34-
24-2-2 (2015). Upon a showing of probable cause of “corrupt business influence,” Ind.
Code § 35-45-6-2, a judge may issue an order to seize property that is the subject of the
forfeiture action. See Ind. Code § 34-24-2-3. The Whisenand Affidavit and civil forfeiture
complaint both attested to facts supporting a finding (at least under a probable cause
standard) of corrupt business influence connected to Economan and EAFM. Indeed, a
Grant County judge issued an order freezing Economan’s assets on that very basis.
Seizure of civil assets linked to corrupt business influence requires both probable
cause of criminal activity and a nexus between that activity and the property sought to
be seized. See Ind. Code § 34-24-2-3 (requiring a showing of probable cause to believe

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that a violation of § 35-45-6-2 has occurred in the case of property described in § 34-24-2-
2(a) to seize the property); see also Abbott v. State, 183 N.E.3d 1074, 1080 (Ind. 2022)
(recognizing that civil forfeiture under a section using analogous language, Ind. Code
§ 34-24-2-2, requires a nexus between the property sought in forfeiture and an
enumerated offense) (citing Katner v. State, 655 N.E.2d 345, 349 (Ind. 1995)).
The Whisenand and Cockrell Affidavits, attached as they were to the civil
forfeiture complaint, supplied two clear halves of the inquiry. The Whisenand Affidavit
addressed the criminal element, while the Cockrell Affidavit addressed the property to
be targeted and its nexus with criminal activity. So the question at the first step of
qualified immunity is whether false statements in or omissions from the Whisenand
Affidavit were material to a finding of probable cause to believe that Economan
committed the crime of corrupt business influence.
Under Indiana law, a person engages in corrupt business influence when they
(1) knowingly or intentionally “receive[] any proceeds” from a “pattern of racketeering
activity” and use those proceeds to “acquire an interest in property” or to “establish or to
operate an enterprise”; (2) “acquire[] or maintain[]” an interest in or control of property
or an enterprise through a “pattern of racketeering activity;” or (3) are associated with an
enterprise and knowingly or intentionally participate in a “pattern of racketeering
activity” through that enterprise. Ind. Code § 35-45-6-2(1)–(3). A “[p]attern of
racketeering activity” means engaging in at least two similar incidents of racketeering
within five years of each other. Id. at § 35-45-6-1(d). Racketeering, in turn, may include
“[d]ealing in a controlled substance.” Id. at § 35-45-6-1(e)(30)–(31). A person deals in a
controlled substance by “(1) knowingly or intentionally … (C) deliver[ing]; or
(D) financ[ing] the delivery of; a controlled substance … classified in schedule [I, II, III, or
IV].” Id. at §§ 35-48-4-2, -3.
Licensed medical practitioners like Economan may prescribe controlled
substances within professional limits: “Those who prescribe controlled substances
outside the scope of their practice or without a legitimate [medical] purpose are subject
to sanction under Indiana criminal law.” Dollard v. Whisenand, 946 F.3d 342, 348 (7th Cir.
2019) (citing 856 Ind. Admin. Code 2-6-3(a)). For example, a physician “must have a
legitimate medical purpose to issue a reasonable quantity in the usual course of
business.” Id. And a physician usually cannot prescribe controlled substances without
first examining and diagnosing a patient. Id. (citing 844 Ind. Admin. Code 5-4-1(a)).
The district court determined that the Whisenand Affidavit contained false
statements informing whether probable cause existed to believe Economan committed
corrupt business influence. But the court’s analysis fell short at multiple points.

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Conducting this analysis ourselves and viewing the record in Economan’s favor, we
conclude that the Whisenand Affidavit supplied probable cause to believe that he
committed the crime of corrupt business influence through EAFM, specifically by
repeatedly prescribing (and sometimes overprescribing) controlled substances without a
legitimate medical purpose. Any false statements or omissions Whisenand made in his
affidavit do not undermine that determination and therefore were immaterial.
First, we must strip the Whisenand Affidavit of its false statements and insert
omitted information. At a high level, the affidavit included (1) data from Indiana’s state
prescription drug monitoring program INSPECT, which tracks controlled substance
prescriptions, from 2011 to 2014, (2) information about controlled drug buys from
Economan’s patients, and (3) interview summaries with the local printing company,
pharmacists, former employees and colleagues, area practitioners, former patients, and
family members of former patients communicating concerns about Economan’s
prescribing practices.
For his part, Economan emphasizes one false statement in the affidavit.
Whisenand attested that INSPECT data showed that Economan wrote a suspiciously high
number of prescriptions on certain days in 2014. As it turns out, Whisenand knew that
INSPECT data shows when a pharmacy fills a prescription, not the day a physician writes
the prescription. So the volume of prescriptions Economan wrote per day may be lower
than the affidavit represented. We consider this fact but observe that it does not alter the
overall number of prescriptions Economan wrote during the period investigated.
Economan also stresses facts that Whisenand excluded from the affidavit. First, he
omitted information bearing on the credibility of former patients and EAFM employees
interviewed by law enforcement to prepare the affidavit. But even assuming these
individuals offered unreliable accounts, the Whisenand Affidavit contains ample
information from other sources whose reliability Economan does not challenge.
Second, Economan points to evidence indicating that former EAFM employees
themselves may have been prescribing illegal prescriptions in the course of their
employment. Fair enough, but we consider the impact of this omission as minimal on a
proper probable cause analysis. The asset freeze order rooted itself in a probable cause
determination that Economan and EAFM’s accounts contained proceeds obtained
through corrupt business influence. It did not require Economan to have been the only
person at EAFM involved in that criminal activity.
Finally, the Whisenand Affidavit stated that investigators learned in mid-February
2014 that local Meijer pharmacies were no longer filling EAFM prescriptions. Yet
INSPECT data shows that Meijer only stopped filling EAFM prescriptions in February

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2014 after Whisenand and Cockrell questioned pharmacies about the clinic. By
Economan’s account, then, the true facts imply that Meijer stopped filling prescriptions
because of the investigation, not because it was independently suspicious of EAFM. Here
too the observation is fair, but the record shows that Meijer was not the only pharmacy
that Whisenand identified as having looked askance at EAFM’s prescribing patterns and
practices.
We also consider particular uncontested evidence that the district court did not
account for. The district court declined to factor the INSPECT data into its probable cause
analysis because it would be inadmissible at trial. But, as the Supreme Court has
emphasized, the admissibility of evidence under the Federal Rules plays no role in
resolving whether an officer reasonably believed he had probable cause to suspect
criminal activity. See Brinegar v. United States, 338 U.S. 160, 174 (1949) (observing that it is
inappropriate to apply the rules of evidence to probable cause determinations for an
arrest or a search and seizure). We too have underscored the same point in analogous
circumstances. See, e.g., Johnson v. Myers, 53 F.4th 1063, 1067 (7th Cir. 2022) (“[T]he Federal
Rules of Evidence do not apply to applications for warrants.” (citing Fed. R. Evid.
1101(d)(3))).
The district court also declined to consider interview summaries with Economan’s
former colleagues, area practitioners, and patients’ family members, reasoning that they
“are nothing more than allegations.” But a probable cause determination can be made
based on informant observations so long as those informants are sufficiently reliable. See
United States v. Hollingsworth, 495 F.3d 795, 805 (7th Cir. 2007). Economan contested the
credibility of former patients and employees. Yet he did not claim that any other sources
were unreliable, at least not based on information known to Whisenand. The district court
should have considered those sources in its analysis.
Even confining our own analysis to uncontested information and including
omitted facts, the Whisenand Affidavit supported a probable cause finding in spades.
Ample facts suggested that EAFM practitioners, including Economan, wrote an
unusually high volume of controlled substance prescriptions during the period under
investigation. INSPECT data showed that Economan jumped to the third highest
prescriber of controlled substances in Indiana in 2014, ahead of some hospitals. And a
printing company became alarmed when Economan ordered substantially more
controlled substance prescription pads than other medical providers in the area for his
and another nurse’s use. Pharmacists likewise reported concerns about the large number
of controlled substance prescriptions from EAFM and at least one pharmacy (Walgreens)
refused to fill multiple EAFM prescriptions. In short, this information more than supplied

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probable cause to believe that EAFM practitioners, including Economan, were writing
illicit prescriptions.
Other evidence described in the Whisenand Affidavit reinforces this conclusion.
The JEAN team arranged undercover buys of controlled substances from people who
received prescriptions for those or other controlled substances from Economan during
the relevant timeframe. A former colleague who worked with Economan prior to EAFM
reported concerns about his prescribing practices based on the young age of patients
receiving controlled substances, high dosage amounts, and dangerous combination of the
controlled substances he prescribed.
In line with that former colleague’s concern, investigators linked six patient deaths
between 2011 and 2015 to use of Schedule II and IV controlled substances prescribed by
Economan. Family members of deceased patients informed law enforcement of
Economan’s excessive prescribing practices and failure to conduct accompanying
physical examinations. One even mentioned that Economan became known as the
“Candyman.” Another stated that he never examined her daughter during appointments
yet still prescribed a controlled substance.
The Whisenand Affidavit contained still more. One practitioner in the area learned
from patients that Economan had loose prescribing practices resulting in addiction. See
App. 167 (“[T]hey could just walk in to Economan’s practice and ‘get what they wanted’
as long as they had money.”). The Marion General Hospital Emergency Department
Director stated that if Economan’s name appeared on a patient’s chart at the hospital,
doctors expected that the patient would have a drug problem.
Considered collectively, this information more than established probable cause to
believe that Economan engaged in the crime of corrupt business influence by knowingly
and repeatedly writing unwarranted prescriptions for controlled substances. See Dollard,
946 F.3d at 354–55 (considering a combination of INSPECT data showing unusually high
prescriptions, information from patients and the family of a deceased patient about a
doctor’s prescribing practices, undercover surveillance and recordings corroborating
those observations, concerns voiced by other doctors, and medical expert opinions to
support probable cause for dealing in a controlled substance); see id. at 357 (holding that
the intent element of dealing in a controlled substance can be inferred from the
expectation that a doctor understands the limits of their prescribing authority). Indeed,
we do not see this question as close.
Nothing that Whisenand later stated in his federal court deposition testimony
undermines our conclusion. The district court seemed of the view that Whisenand
“admitted” that his affidavit did not establish probable cause. That perspective was

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Nos. 24-3165, 24-3246, & 25-1020 Page 15
mistaken. Whisenand did not admit to including any material false information in the
affidavit during his deposition testimony. Instead, he affirmed that his affidavit was
truthful and insisted that there was probable cause to conclude that Economan was
dealing in controlled substances and engaged in a pattern of racketeering.
The district court homed in on particular testimony from Whisenand’s 2022
deposition in which he discussed Brett Blum, another EAFM employee named in the civil
forfeiture proceeding (but who is not part of this case). Whisenand agreed in response to
a question that he had “no information or evidence to support that … Economan, EAFM,
and … Blum had participated in … a corrupt enterprise through a pattern of racketeering
activity” the day law enforcement executed the search warrant. This statement lacks
context because, so far as we can tell from the deposition excerpts in the record, it came
on the heels of a discussion about evidence of Blum’s role in the alleged criminal activity.
It is also legally irrelevant. Probable cause is an objective standard, with the legal
determination made by a judge. Whisenand’s role was to supply facts, and his own
assessment of probable cause was irrelevant. See Pryor v. Corrigan, 124 F.4th 475, 486–87
(7th Cir. 2024). Regardless, Whisenand’s alleged admission does not relate to the factual
content—or overarching weight of the factual content—in his affidavit.
In the end, we conclude that the Whisenand Affidavit established probable cause
to believe that Economan was engaged in a pattern of racketeering by repeatedly
prescribing controlled substances at EAFM without a legitimate medical purpose. See
Ind. Code § 35-45-6-2. This qualifies as engagement in corrupt business influence at least
under § 35-45-6-2(3) (knowingly or intentionally participating in EAFM’s activities
through a pattern of racketeering) if not § 35-45-6-2(1) (knowingly or intentionally
operating EAFM using proceeds derived from a pattern of racketeering).
Another conclusion warrants emphasis. Whisenand cannot be held responsible for
failing to include information in his affidavit about the bank and retirement accounts
frozen in the investigation. The Cockrell Affidavit addressed this half of the probable
cause inquiry and we see no evidence that Whisenand was aware of the content of the
Cockrell Affidavit or involved in the investigation of those accounts.
All of this leads us to hold that DEA Investigator Gary Whisenand is entitled to
qualified immunity. This conclusion applies only to Whisenand as Task Force Officer
Cockrell did not appeal the district court’s denial of qualified immunity on the Fourth
Amendment claim against her.

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C. Fourth Amendment Claim (Defendant Garrison Law Firm)
That brings us to Garrison Law Firm’s qualified immunity defense. Recall that
Garrison drafted the Cockrell Affidavit and civil forfeiture complaint. Economan alleged
that it did so knowing the Cockrell Affidavit contained false information in violation of
the Fourth Amendment.
Garrison contends that preparing an affidavit for a civil forfeiture without
knowing it contained false information does not violate a clearly established right. Key
to Garrison’s argument is the assumption that it was ignorant of any false information in
the Cockrell Affidavit. But this fact is heavily disputed, leading us to conclude we lack
jurisdiction over Garrison’s appeal challenging the district court’s denial of qualified
immunity on Economan’s Fourth Amendment claim.
No doubt the district court should have brought more precision to its analysis of
the facts demonstrating Garrison’s knowledge about specific information in the Cockrell
Affidavit. But viewing the record in Economan’s favor, a jury could reasonably conclude
that Garrison knew or should have known the affidavit contained material
misstatements.
The Cockrell Affidavit identified and listed particular bank and retirement
accounts held by Economan and EAFM and represented that there was good cause to
believe that they held significant funds generated from a criminal enterprise. Yet during
Cockrell’s depositions in 2018 and 2022, she explained that law enforcement pulled
financial information about the accounts from trash outside Economan’s home. The
recovered documents helped law enforcement identify the bank and retirement accounts
but did not reveal what most accounts contained or the source of funds in them. Cockrell
acknowledged in her deposition testimony that she had no other evidence showing what
was in the accounts or reason to believe they held criminally obtained funds other than
that she thought that Economan’s sole income came from illegally prescribing controlled
substances.
It is undisputed that Garrison used information from law enforcement to prepare
the affidavit, presumably the documents from the trash pull. And if Garrison prepared
this document with information so incomplete and inconclusive, it is reasonable to infer
that Garrison knew it was both an overread and speculative to represent in Cockrell’s
sworn affidavit that the accounts held funds generated from a criminal enterprise. Yet
that statement was key to the probable cause determination needed to freeze the
accounts. Garrison’s qualified immunity argument depends upon it lacking such
knowledge. As the parties dispute this essential fact, we cannot review Garrison’s appeal

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challenging the district court’s denial of qualified immunity. See Johnson, 515 U.S. at 313;
see also Mabes, 136 F.4th at 704–05.
V
Finally, we come to Grant County Prosecutor Luttrell and Indiana DAG Krug.
Economan’s Fourth Amendment claims against Luttrell and Krug are based on their
involvement in drafting the Whisenand Affidavit. We could grant Luttrull and Krug
qualified immunity on the same basis as Whisenand. But their absolute immunity
defenses are solid and bear emphasis.
Luttrell and Krug raised absolute immunity at summary judgment. But the district
court only addressed the merits of Luttrell’s defense, finding that “the only prosecutor
was Defendant Luttrull.” It then denied Luttrull absolute immunity by finding his
involvement in the affidavit “investigative.” The analysis was mistaken on both points.
Prosecutors enjoy absolute immunity “for ‘acts undertaken … in the course of
[their] role as an advocate for the State.’” Whitlock, 682 F.3d at 576 (quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993)). The necessary inquiry is functional, meaning that
it is based on the nature of a prosecutor’s actions, not their nominal role. See id. at 578.
Prosecutorial acts include “acts undertaken by a prosecutor in preparing for the initiation
of judicial proceedings or for trial,” as distinguished from acts taken in an investigative
or administrative capacity. Buckley, 509 U.S. at 273.
Luttrull is not the only defendant eligible for absolute immunity. So is Krug.
Although she was formally sworn in as a prosecutor in Grant County after Whisenand
drafted his affidavit, Krug functionally served as a prosecutor during the state court
search warrant application process through her role as a state lawyer involved in a
criminal proceeding. So we must consider her immunity defense as well.
Turning to the merits, it is well-established that a prosecutor acts as an advocate
by evaluating evidence assembled by law enforcement and preparing it for presentation
at trial or before a grand jury. See Buckley, 509 U.S. at 273. We recently built on Buckley in
holding that a prosecutor also acts as an advocate when they help prepare and review an
affidavit for a search warrant application. See Greenpoint Tactical Income Fund LLC v.
Pettigrew, 38 F.4th 555, 565–67 (7th Cir. 2022).
We see no material distinction between this case and Greenpoint. The evidence
viewed in Economan’s favor shows that Luttrull and Krug did nothing more than
evaluate the Whisenand Affidavit based on the evidence presented by law enforcement
and provide unspecified edits. Nothing suggests that they inserted false facts into the
affidavit or directed material omissions.

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To be sure, the investigation was still ongoing when Luttrull and Krug reviewed
the Whisenand Affidavit. Remember, the original purpose of the affidavit was to support
a search warrant. But DEA investigators and agents are not trained as lawyers. And even
at the search warrant phase, it is advisable and routine for prosecutors to review affidavits
to ensure that legal representations made to a court are accurate. “If that were sufficient
to establish that a prosecutor was acting in an investigative capacity, then absolute
immunity would disappear for seeking search warrants.” Greenpoint, 38 F.4th at 566.
The district court also seemed to conclude that Luttrull and Krug somehow
conspired with the other defendants to violate Economan’s constitutional rights because
they (excluding Garrison Law Firm) periodically met to discuss the case and collaborated
on the Whisenand Affidavit. We do not see any evidence of a conspiracy. Based on our
review, all indications are that Luttrull and Krug acted fully within their prosecutorial
capacities in reviewing the affidavit based on evidence already gathered.
It is not clear whether Economan’s claim against Luttrull is also premised on the
latter’s role as a plaintiff in the civil forfeiture complaint. If it is, it also fails because we
see no evidence that Luttrull was aware of any false information presented in either the
Whisenand or Cockrell Affidavits.
Grant County Prosecutor James Luttrull and Indiana Deputy Attorney General
Jessica Krug are entitled to absolute immunity on any and all claims against them. This
is not to be revisited on remand.
* * *
Do not mistake today’s Order as criticizing any party or the district court. This
sprawling § 1983 action has been plagued by disorganization from the outset. Perhaps
above all else, our Order illustrates the importance of conducting individualized and fact-
focused immunity analyses when a case involves multiple claims and defendants.
Grouped analysis only complicates the challenge accompanying multi-party litigation.
Having done our best to clarify the complexities, this is where things now stand: all
defendants are entitled to qualified immunity on the Fifth Amendment claims.
Whisenand is entitled to qualified immunity, and Luttrull and Krug to absolute
immunity, on the Fourth Amendment claims. We cannot review Garrison Law Firm’s
appeal on the Fourth Amendment claim due to material factual disputes.
We DISMISS Garrison Law Firm’s appeal on the Fourth Amendment claim for lack
of jurisdiction, REVERSE the district court’s judgment as to all other appeals, and
REMAND for entry of judgment for defendants Gary Whisenand, Tonda Cockrell, James
Luttrull, and Jessica Krug in line with this Order.

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