discussing how disparate impact alone does not violate equal protection in context of claim that state elected to provide greater protective services for men than women
How later courts described this case
- discussing how disparate impact alone does not violate equal protection in context of claim that state elected to provide greater protective services for men than women
- “[T]he Supreme Court held in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), that disparate impact does not violate the equal protection clause of the fourteenth amendment.”
- plaintiff must show defendants “adopted that policy because of, not in spite of or with indifference to, its effect on [the identifiable group]”
- “How domestic-relations matters compare with the many other subjects clamoring for law-enforcement attention is for the people to decide through elections and appointments.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 11-‐‑3275 & 11-‐‑3559
STEPHANIE JANE BOND,
Plaintiff-‐‑Appellee,
v.
MICHAEL R. ATKINSON, et al.,
Defendants-‐‑Appellants.
____________________
Appeals from the United States District Court
for the Central District of Illinois.
No. 11-‐‑CV-‐‑2059 — Michael P. McCuskey, Judge.
____________________
ARGUED SEPTEMBER 10, 2012 — DECIDED AUGUST 26, 2013
____________________
Before EASTERBROOK, Chief Judge, and CUDAHY and
KANNE, Circuit Judges.
EASTERBROOK, Chief Judge. Stephanie Bond was shot three
times by her husband, who then killed himself. She survived
and filed this suit against state and local police officers and
other public officials, contending that they violated her con-‐‑
stitutional rights under the fourteenth amendment by not
enforcing an order of protection issued by a state court and
by failing to confiscate her husband’s guns after his state-‐‑law
Nos. 11-‐‑3275 & 11-‐‑3559 2
right to own firearms had been revoked. As a claim under
the fourteenth amendment’s due process clause, Bond’s suit
is doomed by decisions such as Castle Rock v. Gonzales, 545
U.S. 748 (2005), and DeShaney v. Winnebago County Depart-‐‑
ment of Social Services, 489 U.S. 189 (1989). But Bond invokes
the equal protection clause. DeShaney observes that equal-‐‑
protection claims may succeed even when due-‐‑process theo-‐‑
ries fail. 489 U.S. at 197 n.3. A state is not obliged to protect
residents from crime (that’s the holding of Castle Rock and
DeShaney), but when the state chooses to provide protective
services it cannot protect men while failing to protect wom-‐‑
en. The state must provide equal protection of the laws,
without discriminating on account of race, sex, religion, or
other criteria the Constitution places off limits.
Bond contends in this suit under 42 U.S.C. §1983 that the
defendants discriminated against her on account of sex. She
does not present a class-‐‑of-‐‑one claim, on which see Del Mar-‐‑
celle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en
banc), but contends that she has been disfavored in common
with other women by defendants’ failure to enforce the laws
against domestic violence and to confiscate guns from poten-‐‑
tially dangerous men. Defendants asked the district judge to
rule in their favor on the ground of qualified immunity. The
court referred this motion to a magistrate judge, who re-‐‑
marked that the rule against sex discrimination is well estab-‐‑
lished and recommended denying the motion. 2011 U.S.
Dist. LEXIS 119778 at *18–19 (C.D. Ill. Sept. 8, 2011). The dis-‐‑
trict judge accepted this recommendation, 2011 U.S. Dist.
LEXIS 118026 at *4 (C.D. Ill. Oct. 13, 2011), and defendants
immediately appealed under the doctrine of Mitchell v. For-‐‑
syth, 472 U.S. 511 (1985), which treats the rejection of an im-‐‑
3 Nos. 11-‐‑3275 & 11-‐‑3559
munity defense as a final decision for the purpose of 28
U.S.C. §1291.
The rule against sex discrimination in law enforcement is
clearly established, just as the district court observed. But
does Bond’s complaint adequately allege sex discrimination?
Ashcroft v. Iqbal, 556 U.S. 662 (2009), shows that an appellate
court may resolve a qualified-‐‑immunity appeal by deciding
that the complaint does not state a plausible claim.
According to the complaint, relatives of Gabriel Omo-‐‑
Osagie, Bond’s husband, told police in November 2009 that
he had become suicidal and potentially violent. Bond herself
reported that Omo-‐‑Osagie had hit her and had acquired an
arsenal of guns, some of them stolen, though he lacked legal
authority to own any firearm. A court issued an order of
protection requiring Omo-‐‑Osagie to stay away from Bond.
Police arrested Omo-‐‑Osagie for domestic battery, but a state
judge released him.
Bond asked the police to confiscate Omo-‐‑Osagie’s guns;
according to the complaint, an officer of the Champaign
County sheriff’s office replied that, as long as Omo-‐‑Osagie’s
name was on the title to the couple’s house, confiscation
could proceed only with a court order, which neither the
sheriff’s office nor Bond ever sought. The complaint adds,
however, that neither Illinois law nor the sheriff’s office re-‐‑
quires judicial permission. (A warrant would have been nec-‐‑
essary to enter a house in order to search for the guns over
the occupants’ protests, but Bond might have had authority
to consent to an entry.) In late November Omo-‐‑Osagie ad-‐‑
mitted to some of the defendants that he had violated the
order of protection, but (as in Castle Rock) he was not arrest-‐‑
ed. On February 27, 2010, Omo-‐‑Osagie shot Bond three times
Nos. 11-‐‑3275 & 11-‐‑3559 4
and then killed himself. Not until March 2010 did the Illinois
State Police begin to collect and dispose of Omo-‐‑Osagie’s
weapons.
That’s the outline of the complaint’s narration, which
poses the question: Where’s the sex discrimination? Bond
does not allege that police confiscate guns from women who
should not possess them, while leaving guns in the hands of
men who should not possess them. The complaint does not
allege that defendants require a warrant to confiscate men’s
firearms while not waiting for a warrant to confiscate wom-‐‑
en’s firearms. It does not allege that police vigorously en-‐‑
force protective orders issued for the benefit of men while
not enforcing orders issued for the benefit of women. It does
not allege that the police arrest women who threaten or at-‐‑
tack male domestic partners, while failing to arrest men who
threaten or attack female domestic partners. Bond does con-‐‑
tend that the police described her as “only crying wolf,” but
both men and women cry wolf. This is just another way of
expressing the proposition that Bond’s estimate of the risk
differed from the officers’ estimate; it does not tend to show
sex discrimination.
Bond’s principal theory is that enforcing the laws against
domestic violence is a low priority for state and local law-‐‑
enforcement agencies in Illinois. Because roughly 85% of the
victims of domestic violence are female, see Bureau of Justice
Statistics, Intimate Partner Violence 1993–2001 (2003), a policy
of weak enforcement injures women disproportionately and
therefore violates the Constitution.
The problem with that approach is that the harm comes
from disparate impact rather than disparate treatment. Some
statutes, prominently Title VII of the Civil Rights Act of
5 Nos. 11-‐‑3275 & 11-‐‑3559
1964, deem disparate impact a form of discrimination. See,
e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971). (Griggs it-‐‑
self concerned race discrimination, but sex discrimination is
treated the same under Title VII.) Yet the Supreme Court
held in Washington v. Davis, 426 U.S. 229 (1976), that dispar-‐‑
ate impact does not violate the equal protection clause of the
fourteenth amendment and cannot be redressed by suits un-‐‑
der §1983. See also, e.g., Personnel Administrator of Massachu-‐‑
setts v. Feeney, 442 U.S. 256 (1979).
To obtain relief, a plaintiff must show intentional dis-‐‑
crimination—that the defendants wanted men (but not
women) left at large to injure their domestic partners. Feeney
holds that it is not enough to show that state actors knew
that women would fare worse than men under an official
policy; instead the plaintiff must show that the state actors
adopted that policy because of, not in spite of or with indif-‐‑
ference to, its effect on women. Id. at 279. Yet Bond’s com-‐‑
plaint does not allege that any defendant decided to give
domestic-‐‑relations crimes a low priority because that would
injure women. The allegation instead is that the defendants
thought that Bond and Omo-‐‑Osagie were just involved in a
“messy divorce” in which the risk of serious violence was
modest compared with other crimes such as murder, rape,
armed robbery, financial fraud, and sexual abuse of minors.
This a sex-‐‑neutral reason. Defendants were wrong about the
risk Omo-‐‑Osagie posed to Bond, but the Constitution does
not guarantee mistake-‐‑free law enforcement.
The complaint’s allegations concerning the non-‐‑
confiscation of Omo-‐‑Osagie’s weapons do not even allege a
disparate effect on women. Perhaps the defendants violated
Illinois law, or perhaps the person to whom Bond spoke lied
Nos. 11-‐‑3275 & 11-‐‑3559 6
to her in an effort to get her to go away, so that he could turn
to some other business. We must assume that Bond was told
a tall tale. But state law cannot be enforced through §1983.
See, e.g., Archie v. Racine, 847 F.2d 1211, 1215–18 (7th Cir.
1988) (en banc). Bond does not contend that the police con-‐‑
fiscated guns from women (but not men) without warrants.
Instead she appears to contend that the police confiscated
guns from everyone, except her husband, without waiting for
a warrant. That might have the makings of a class-‐‑of-‐‑one
claim, but Bond’s counsel abjured a class-‐‑of-‐‑one claim both
in the appellate briefs and at oral argument. What’s more,
this court’s inability to produce a majority opinion in Del
Marcelle shows that the law concerning class-‐‑of-‐‑one chal-‐‑
lenges to the decisions of the police about which laws to en-‐‑
force, and how vigorously, is anything but clearly estab-‐‑
lished.
Appellants relied on Feeney. Instead of responding (her
brief does not even cite Feeney), Bond invokes an earlier de-‐‑
cision, Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 266 (1977), for the proposition that the
disparate impact of a governmental policy violates the equal
protection clause. Arlington Heights says the opposite, how-‐‑
ever. Citing Washington v. Davis, the Court wrote that proof
of discriminatory intent is essential. It added, as Washington
v. Davis also had done, that a policy’s effects may help a
court understand the defendants’ intent. Adoption of a poli-‐‑
cy that bears more heavily on women than on men, yet lacks
any apparent justification, could support an inference that
the defendants chose the policy because of its adverse effect
on women.
7 Nos. 11-‐‑3275 & 11-‐‑3559
It does not take a supposition of animus toward women,
however, to explain why domestic-‐‑relations investigations
receive lower priority than murder, rape, or child abuse in-‐‑
vestigations. Perhaps a state ought to appropriate the money
necessary to allow better enforcement of the domestic-‐‑
battery and firearms-‐‑control laws, but a law-‐‑enforcement
agency must set priorities in light of the resources in hand.
Whether or not the defendants’ priorities were unwise, it is
not possible given Feeney and this complaint’s allegations to
find them unconstitutional. There is certainly a rational basis
for giving murder and rape investigations higher priority
than domestic-‐‑relations matters, and the equal protection
clause does not authorize the judiciary to take over priority-‐‑
setting for law enforcement. How domestic-‐‑relations matters
compare with the many other subjects clamoring for law-‐‑
enforcement attention is for the people to decide through
elections and appointments.
Statements made at oral argument lead us to infer that
Bond’s lawyers have not fully appreciated the difference be-‐‑
tween disparate impact and disparate treatment. The district
judge has discretion to allow Bond to plead again. If she has
evidence that defendants protect men from threats of domes-‐‑
tic violence while failing to protect similarly situated wom-‐‑
en, that could demonstrate sex discrimination meeting Feen-‐‑
ey’s standards. (This is an individual-‐‑capacity suit, so the ev-‐‑
idence must deal with the conduct of these defendants rather
than law-‐‑enforcement officials in the aggregate.)
If the court allows Bond to re-‐‑plead, and she chooses to
do so, her lawyers must keep in mind that discrimination in
law enforcement must be shown through data; impressions
or “information and belief” will not suffice. See United States
Nos. 11-‐‑3275 & 11-‐‑3559 8
v. Armstrong, 517 U.S. 456 (1996), which not only sets a high
evidentiary standard before a court may order discovery in-‐‑
to law-‐‑enforcement practices but also reiterates that proof of
disparate treatment is essential. See also McReynolds v. Mer-‐‑
rill Lynch & Co., 694 F.3d 873, 884–87 (7th Cir. 2012). But
Bond and her counsel may well conclude that claims under
state law provide the best chance of recovery. (An affidavit
from one officer calls another’s failure to confiscate Omo-‐‑
Osagie’s guns “derelict police work.”) If the federal claim is
dismissed or abandoned, the district court should relinquish
supplemental jurisdiction over Bond’s state-‐‑law theories.
VACATED AND REMANDED