The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1822
JOSEPH A. LUNINI, JR.,
Plaintiff-Appellee,
v.
CHARLES V. GRAYEB, individually;
JOHN STENSON, individually and in
his official capacity as Chief of Police
for the City of Peoria; STUART BARDEN,
individually; and JEFFREY KICE, individually,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-3028—Jeanne E. Scott, Judge.
____________
ARGUED NOVEMBER 9, 2004—DECIDED JANUARY 18, 2005
____________
Before FLAUM, Chief Judge, and CUDAHY and POSNER,
Circuit Judges.
CUDAHY, Circuit Judge. Following an alleged physical
altercation with Charles Grayeb, his former boyfriend,
appellee Joseph Lunini filed suit against Grayeb and three
police officers who allegedly refused to arrest Grayeb due to
2 No. 04-1822
his position on the Peoria City Council. The suit alleged,
among other things, that the officers’ refusal to arrest
Grayeb violated Lunini’s equal protection rights under the
Fourteenth Amendment. The district court granted in part
and denied in part the defendants’ subsequent motion for
summary judgment, holding, inter alia, that the police
officers’ claims of qualified immunity fail because Lunini’s
equal protection rights were “clearly established” at the
time of the incident and material questions of fact remain
as to whether the police officers actually violated those
rights. Appellants now appeal that ruling on the narrow
question whether Lunini’s equal protection rights were in-
deed “clearly established” for qualified immunity purposes
at the time of the alleged incident.
I. FACTS & DISPOSITION BELOW1
In this case we attend to the aftermath of a protracted
lovers’ quarrel in which, it would seem, each party has at-
tempted to use the official machinery of the justice system
to exact revenge on the other. It is emphatically not the sort
of case that we relish. At all times relevant to this suit the
defendant Charles Grayeb was a member of the Peoria City
Council, the defendant John Stenson was the Chief of the
Peoria Police Department, and the defendants Stuart Barden
and Jeffrey Kice were police officers with the Peoria Police
Department. Defendant Grayeb and plaintiff Joseph A.
Lunini, Jr. met in June 1995. Lunini and Grayeb began a
personal relationship with sexual overtones in June 1995,
and they began to live together in December 1995 or
January 1996. In 1997, Lunini and Grayeb moved into a
single-family home at 510 West High Street (the High
1
The factual material here is largely drawn from the district
court’s summary of the facts in its order below. Lunini v. Grayeb,
et al., 305 F. Supp. 2d 893, 897-904 (C.D. Ill. 2004).
No. 04-1822 3
Street residence) in Peoria, Illinois, which Grayeb had pur-
chased earlier that year. Grayeb is still the record owner of
the property. Lunini and Grayeb were the sole residents of
the High Street residence from 1997 until June 2000, and
Lunini’s children would visit the residence almost every
weekend.
Sometime during the first half of 2000 Lunini and Grayeb
began to have major difficulties in their relationship, and by
June a breakup was on the horizon. On June 27, 2000, after
a City Council meeting, Grayeb met with Chief Stenson and
discussed his problems with Lunini. The details of this
discussion are contested, but for our purposes it is enough
to note that Grayeb asked Stenson about how he might
have Lunini removed from the High Street residence. Lunini
claims that Grayeb later told him about this conversation
and declared that the police were willing to remove Lunini
at Grayeb’s request, though Grayeb denies making such
statements. In any event, it appears that shortly thereafter
Lunini began to make arrangements to move out of the
High Street residence.
Events came to a head on June 30, 2000 when Lunini
went to the High Street residence at approximately 4:00 a.m.,
ostensibly to retrieve a few boxes from the basement and
pack up some crystal that he owned. Grayeb came down-
stairs just as Lunini was placing his boxes in the front
parlor, and a confrontation ensued. Lunini alleges that
Grayeb lost his temper, swore at him, slapped him twice
in the face and punched him in the face once. Lunini also
reports that Grayeb told him to “go ahead and call the pol-
ice,” boasting that the police would not help Lunini since
Grayeb was a member of the City Council. Grayeb disputes
that this altercation ever occurred, but the precise details
of the confrontation are immaterial to this appeal. After
allegedly being struck in the face, Lunini grabbed a port-
able telephone, dialed 911 and went outside the house. He
told the 911 operator that he had been assaulted at the
High Street residence.
4 No. 04-1822
Defendants Barden and Kice were dispatched to the scene
between 5:00 and 5:30 a.m., where they found Lunini
outside the house in his bathrobe and holding a telephone.
Lunini told Barden that he and Grayeb had gotten into an
argument about Lunini’s smoking in the house, and that
while he was packing boxes Grayeb had slapped him twice
and punched him in the face. Barden observed that Lunini
was bleeding from his lip and had blood on his hand. Lunini
also told Barden that he and Grayeb were ending a rela-
tionship and that Lunini was planning to move out. Lunini
claims that Barden and Kice laughed and “made faces”
when Lunini mentioned his relationship with Grayeb. After
Lunini declined the defendants’ offer to call an ambulance,
defendant Kice told him to “go over and sit on the curb and
don’t leave.” Barden and Kice then went to enter the house;
Lunini remained sitting on the curb outside for approxi-
mately one hour.
Meanwhile, upon seeing the police cars arrive in front of
the High Street residence, Grayeb called the police station
and asked to have Chief Stenson paged. Grayeb claims he
wanted to speak to Stenson since he was alarmed that
Lunini had entered his house at 4:30 a.m. and because he
did not know why the police had been summoned. Shortly
thereafter, Barden and Kice entered the residence. Grayeb
told Barden that Lunini was in the process of moving out
and that he and Lunini had gotten into an argument about
a cigarette Lunini had left in the house. Grayeb told Barden
that he was unaware of Lunini’s injury, and Barden ob-
served no blood on Grayeb’s person. At some point Barden
and Kice also called for a sergeant to come to the High Street
residence since the incident involved a man of “prestige”
from the City Council. The sergeant remained there until
Barden and Kice left the scene.
While Barden was inside the house, Chief Stenson re-
turned Grayeb’s earlier call. Grayeb and Stenson had a short
conversation, the content of which is somewhat contested,
No. 04-1822 5
and then Stenson asked to speak with Barden. Barden told
Stenson about Lunini’s claim but said there was no physical
evidence of an altercation such as overturned furniture,
broken glass or torn clothes. Barden also told Stenson that
he could not determine how Lunini had been injured since
there were no witnesses to the incident. Stenson mentioned
his June 27 conversation with Grayeb but did not ask if
Lunini was the individual Grayeb had been referring to
then. Stenson finally concluded that, under the circum-
stances, he could not determine whether a crime had been
committed. He told Barden that if there was insufficient
evidence to make an arrest, then he should get both parties’
account of the incident, make a police report and escort
Lunini off the property. Neither Kice nor Barden had ever
before received a phone call from Chief Stenson at a crime
scene.
Kice and Barden informed Lunini that he was to leave the
High Street property or be arrested. Lunini objected that he
lived at the residence and that it was Grayeb who should be
arrested. After Lunini was allowed to change clothes, Kice
escorted him down to the garage where Lunini relinquished
his house key, gate key and garage door opener. Barden
gave Lunini a domestic violence form and explained how he
could obtain an order of protection if he desired one. Barden
went back inside, gave a domestic violence form to Grayeb
as well, and then left the residence. Lunini also left the
residence, followed by two squad cars, and drove to the
home of his friend Terry Ricci at 2007 North Linn in Peoria.
Peoria Police Department General Order #400.01 sets
forth procedures for responding to domestic violence inci-
dents. The Order provides that under the Illinois Domestic
Violence Act, an officer is expected to handle domestic vio-
lence in a manner similar to any other crime. In a domestic
violence situation, an officer is to make an arrest when
probable cause exists that a felony has been committed, or
that a misdemeanor or felony has been committed and the
6 No. 04-1822
victim has visible signs of injury. Under Section D of General
Order #400.01, one of the circumstances under which an
arrest is not to be made is if an officer is unable to deter-
mine if a crime has been committed.2 Factors to consider
when making an arrest include the presence of weapons at
the scene, overturned furniture and another witness at the
scene telling the officer someone struck the victim.
Lunini first attempted to bring criminal charges against
Grayeb but was told by the Assistant State’s Attorney that
the case could not be brought before a jury because it was
a “homo thing.” Lunini then brought the instant action against
Grayeb, Stenson, Barden and Kice, asserting claims under
the Fourth Amendment for violation of his right to be free
from unreasonable seizure, under the Fourteenth
Amendment for violation of his right to equal protection of
the law, under § 3604 of the Fair Housing Act, 42 U.S.C.
§ 3601 et seq., along with a state law claim for battery.
Lunini’s equal protection claim was advanced as a “class of
one” suit, alleging an improper withdrawal of police protec-
tion based on animus toward him and/or favoritism toward
Grayeb.
The defendants moved for summary judgment and on
February 27, 2004, the district court entered an order grant-
ing in part and denying in part the defendants’ motion.
Lunini v. Grayeb, et al., 305 F. Supp. 2d 893 (C.D. Ill. 2004).
Among other things, the order denied the defendants’
Motion for Summary Judgment on Lunini’s equal protection
2
The record reveals that Barden has in the past arrested both
males and females at crime scenes where an injured party accused
a non-injured party of physical violence. The record also shows
that the breakdown of male arrests to female arrests in domestic
violence situations is 70 percent to 30 percent. Barden has also
responded to domestic violence calls in which he did not make an
arrest, even though he observed a physical injury and the injured
person stated someone had hit him.
No. 04-1822 7
claims. In so holding, the district court rejected the police
officers’ claims of qualified immunity, ruling that Lunini’s
equal protection right to be free from deliberate withdrawal
of police protection for purely personal reasons was “clearly
established” under relevant legal precedents, and that
material questions of fact remained as to whether the police
officers had violated this right. Id. at 910-12.
On March 11, 2004, the appellants filed a motion asking
the court to reconsider this part of its order. On March 12,
2004, Lunini filed a Motion to Amend Judgment asking that
the district court deny appellants summary judgment on his
Fair Housing Act and Fourth amendment claims. The latter
motion is apparently still pending in the district court. On
March 29, 2004, the appellants filed their Notice of Appeal
in the district court, and the district court stayed all
deadlines to respond to both parties’ post-order motions. To
facilitate their appeal, the appellants withdrew their motion
to reconsider on May 14, 2004. The appellants’ appeal now
comes before this Court, presenting a single narrow legal
issue: whether the district court erred in ruling that
Lunini’s equal protection rights were “clearly established”
for qualified immunity purposes at the time of the incident
in question.
II. JURISDICTION
Before proceeding to the merits of this appeal, we must
clear away some jurisdictional underbrush. The jurisdiction
of the district court rested on 28 U.S.C. §§ 1331, 1343 and
1367(a). Lunini argues that we lack jurisdiction over the
instant appeal because (1) the appellants have violated
Circuit Rule 28(a)(3) by not alerting us to Lunini’s March
12, 2004 Motion to Amend Judgment which is still pending
before the district court and (2) the district court deter-
mined that material issues of fact remain with respect to
this claim, precluding appellate review. Both of these con-
tentions can be disposed of in fairly short order.
8 No. 04-1822
A. Violation of Circuit Rule 28(a)(3)
Circuit Rule 28(a)(3) provides, inter alia, that if an appeal
“is from an order other than a final judgment which
adjudicates all of the claims with respect to all parties,
counsel shall provide the information necessary to enable
the court to determine whether the order is immediately
appealable,” including a description of “any claims or par-
ties [that] remain for disposition in the district court.” This
provision is intended to prevent unnecessary serial appeals
by helping the appellate court to identify outstanding legal
issues or claims that might obviate the need for an im-
mediate interlocutory appeal. Lunini argues that we lack
jurisdiction over the instant appeal since the appellants’
brief did not mention Lunini’s pending Motion to Amend
Judgment. (Motion, Mar. 12, 2004, Supp. App. 4.)
This argument is misdirected. Lunini’s pending Motion to
Amend requests summary judgment on Lunini’s Fourth
Amendment unreasonable search and seizure claims and on
his Fair Housing Act sexual harassment claims—claims
wholly unrelated to the discrete legal issue raised in the in-
stant appeal. (See Motion, Mar. 12, 2004, Supp. App. 4.)
While Lunini asserts that the appellants advance a qua-
lified immunity defense to these two claims, the legal and
factual issues implicated by those claims remain distinct
from the ones presented by this appeal. In short, even con-
ceding that the appellants failed to advise us of Lunini’s
pending Motion in violation of Local Rule 28(a)(3), there is
no basis for believing that a district court ruling on this
Motion would obviate the need for the instant appeal.
More to the point, Circuit Rule 28 is not jurisdictional.
Notwithstanding Lunini’s warning about the “specter of
serial interlocutory appeals,” (Appellee’s Br. at 3 (citing
Cleveland Hair Clinic, Inc. v. Puig, 104 F.3d 123 (7th Cir.
1997); U.S. v. Daniels, 848 F.2d 758 (7th Cir. 1988))), the
U.S. Supreme Court has expressly rejected a “one-inter-
No. 04-1822 9
locutory-appeal rule.” Behrens v. Pelletier, 516 U.S. 299, 311
(1996). Thus while Lunini may be correct that “Appellants’
brief is incomplete,” and while it may be within our dis-
cretion to sanction such an omission, it cannot be said that
we lack jurisdiction to hear the instant appeal.
B. Remaining Questions of Material Fact
Lunini next claims that we lack jurisdiction over the in-
stant appeal since the district court’s denial of summary
judgment as to the appellants’ qualified immunity defense
was based on its conclusion that material issues of fact
remain for trial. Of course, it is undeniably true that the dis-
trict court so ruled: “[T]here are triable issue of fact as to
whether Defendants deprived Lunini of police protection out
of an illegitimate animus and improper motive toward
Lunini, and for reasons unrelated to any legitimate state
objective.” (D.C. Order at 39 (citing Hilton v. City of
Wheeling, 209 F.3d 1005, 1007-08 (7th Cir. 2000).).) None-
theless, such a determination does not thwart our jurisdic-
tion to review the purely legal question whether, at the time
of the appellants’ alleged misconduct, the law was clearly
established that refusal to arrest Grayeb due to his position
as a city councilman constituted selective withdrawal of
police protection in violation of the Equal Protection Clause.
While we may not review a denial of qualified immunity
where doing so “would require [the Court] to decide a ma-
terial issue of fact,” Omdahl v. Lindholm, 170 F.3d 730, 734
(7th Cir. 1999); Bell v. Deparrault, 367 F.3d 703 (7th Cir.
2004); Egebergh v. Nicholson, 272 F.3d 925 (7th Cir. 2001),
our precedents do not foreclose appellate review of purely
legal questions. The Supreme Court’s decision in Mitchell
v. Forsyth, 472 U.S. 511 (1985), confirms that “a district
court’s denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwith-
10 No. 04-1822
standing the absence of a final judgment.” Id. at 530. See
also Behrens v. Pelletier, 516 U.S. 299, 311 (1996) (“an order
denying qualified immunity, to the extent it turns on an
‘issue of law,’ is immediately appealable.”) (citations
omitted). In fact the Mitchell decision validates interlocu-
tory review of the precise legal issue raised in the instant
appeal:
An appellate court reviewing the denial of the
defendant’s claim of immunity need not consider the
correctness of the plaintiff’s version of the facts, nor
even determine whether the plaintiff’s allegations ac-
tually state a claim. All it need determine is a question
of law: whether the legal norms allegedly violated by the
defendant were clearly established at the time of the
challenged actions or, in cases where the district court
has denied summary judgment for the defendant on the
ground that even under the defendant’s version of the
facts the defendant’s conduct violated clearly estab-
lished law, whether the law clearly proscribed the
actions the defendant claims he took.
Mitchell, 472 U.S. at 528 (emphasis added).3
In the present case, the district court’s summary judg-
ment ruling turned on both a factual determination (that
questions of material fact remain as to the police officers’
reasons for refusing to arrest Grayeb) and a legal determi-
nation (that the law regarding class of one equal protection
claims is clearly established and could have been violated
by the police officer’s alleged conduct). 305 F. Supp. 2d at
910-12. Under Mitchell and its progeny, we may review the
latter determination but not the former since, if the rule of
3
The Court’s later ruling in Johnson v. Jones, 515 U.S. 304
(1995), cited by this Court in Omdahl, does not disturb this
baseline rule but merely clarifies that summary judgment orders
denying qualified immunity defenses are not reviewable insofar
as such review requires resolution of factual questions.
No. 04-1822 11
law on which Lunini relies was not clearly established at
the time of appellants’ alleged misconduct, this Court may
grant the police officers qualified immunity and dispose of
Lunini’s equal protection claims without “resolv[ing] any
factual disagreements.” Tangwall v. Stuckey, 135 F.3d 510,
515 (7th Cir. 1998). See also Saucier v. Katz, 533 U.S. 194,
202 (2001) (verifying that summary judgment is appropriate
where the alleged constitutional rights are not clearly
established).
Having validated our jurisdiction, pursuant to 28 U.S.C.
§ 1291, to consider the narrow legal question presented by
this appeal, we now turn to the merits.
III. DISCUSSION
Lunini alleges that police officers Stenson, Barden and
Kice failed to arrest Grayeb during the incident in question
solely because Grayeb was a member of the Peoria City
Council. Lunini claims that, in so doing, they impermissibly
withdrew police protection from him in violation of his equal
protection rights under a so-called “class of one” theory. We
have recognized on several occasions that “[a] class of one
equal protection claim may be brought where (1) the plaintiff
alleges that he has been intentionally treated differently
from others similarly situated and (2) that there is no
rational basis for the difference in treatment or the cause of
the differential treatment is a ‘totally illegitimate animus’
toward the plaintiff by the defendant.” McDonald v. Village
of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). See also
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Nevel
v. Vill. of Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002); but
see Bell, 367 F.3d at 709-10 (Posner, J., concurring); Hilton
v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000)
(rejecting the “no rational basis” approach since “[i]f a
merely unexplained difference in police treatment of similar
complaints made by different people established a prima
12 No. 04-1822
facie case of denial of equal protection of the laws, the
federal courts would be drawn deep into the local enforce-
ment of petty state and local laws.”).
The police officers respond that, at the time of the alleged
incident, the law was not “clearly established” with respect
to Lunini’s alleged rights under the circumstances and thus
that they are entitled to summary judgment on grounds of
qualified immunity. In its most basic formulation, the doc-
trine of qualified immunity provides that “governmental
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or con-
stitutional rights of which a reasonable person would have
known.” Harlow v, Fitzgerald, 457 U.S. 800, 818 (1982)
(emphasis added). More than this, it is “an immunity from
suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is errone-
ously permitted to go to trial.” Mitchell, 472 U.S. at 526.
Accordingly where, as here, a “defendant seeks qualified im-
munity, a ruling on that issue should be made early in the
proceedings so that the costs and expenses of trial are
avoided where the defense is dispositive. Qualified immu-
nity is an entitlement not to stand trial or face the other
burdens of litigation.” Saucier, 533 U.S. at 200-01 (quota-
tions and citation omitted).
In denying the appellants’ motion for summary judgment
on Lunini’s class of one equal protection claim, the district
court held that Lunini had indeed alleged violation of a
clearly established constitutional right: “[A]ction depriving
a citizen of police protection at the purely personal request
of a government official [as Lunini alleges4] was unrelated
4
In considering a motion for summary judgment, a court must
consider all evidence in the light most favorable to the non-moving
(continued...)
No. 04-1822 13
to any legitimate state objective, and denied the citizen the
right to equal protection of the law.” 305 F. Supp. 2d at 911
(citing Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir.
2000) and Village of Willowbrook v. Olech, 160 F.3d 386 (7th
Cir. 1998)). We review rulings on motions for summary
judgment de novo. Reed v. McBride, 178 F.3d 849, 852 (7th
Cir. 1999). Summary judgment is warranted when the
evidence, when viewed in a light most favorable to the non-
moving party, presents “no genuine issue as to any material
fact” such that “the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). See also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Because we
believe the district court’s ruling on this issue was errone-
ous, we reverse.
The touchstone of the qualified immunity inquiry is an
alleged violation of “clearly established” statutory or con-
stitutional rights. Under this standard, we must first deter-
mine whether the conduct, as alleged, violates a constitu-
tional or statutory right in the first place; second, the Court
must determine whether the right in question was “clearly
established” at the time of the alleged misconduct. Saucier,
533 U.S. at 200-01. The Supreme Court has elaborated on
the second prong of this test as follows:
This inquiry, it is vital to note, must be undertaken in
light of the specific context of the case, not as a broad
general proposition . . . . the right the official is alleged
to have violated must have been “clearly established” in
a more particularized, and hence more relevant, sense:
The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is
doing violates that right. The relevant, dispositive
4
(...continued)
party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The district court did so below.
14 No. 04-1822
inquiry in determining whether a right is clearly es-
tablished is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.
Id. (internal citations and quotations omitted). The plaintiff
bears the burden of establishing that a given right is
“clearly established,” Rice v. Burks, 999 F.2d 1172, 1174
(7th Cir. 1993), and to do so the plaintiff must demonstrate
either that a court has upheld the purported right in a case
factually similar to the one under review, or that the
alleged misconduct constituted an obvious violation of a
constitutional right. Chan v. Wodnicki, 123 F.3d 1005, 1008
(7th Cir. 1997). However, “liability is not predicated upon
the existence of a prior case that is directly on point.”
Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996).
Before we address the claims presented on their own
terms, we pause to note that Lunini’s allegations probably
do not satisfy even the first prong of the test outlined in
Saucier. That is, it is difficult to discern any equal protec-
tion violation in the circumstances of this case since Lunini
has not demonstrated that he suffered unequal treatment—
the essence of an equal protection violation is, after all,
discrimination of some sort.5 We have previously held that
a class of one claim must fail where the plaintiff has “failed
to identify someone who is similarly situated but intention-
ally treated differently than he.” McDonald, 371 F.3d at
1002. Lunini has presented no evidence that the police
officers treated him differently than other citizens in the
context of domestic violence incidents. Lunini identifies no
5
Of course the law must provide some remedy for extreme abuses
of power by public officials. However, absent some comparative
showing of discrimination among similarly situated individuals or
classes of individuals, such a remedy cannot be obtained via the
Equal Protection Clause.
No. 04-1822 15
similarly situated individual who has been treated differ-
ently by Peoria police, and there is no indication that the
Peoria Police Department always arrests an alleged assail-
ant when responding to a domestic violence report—indeed
we would be surprised and alarmed if this were the case. To
the contrary, the district court notes that at least one of the
appellants has in the past “responded to domestic violence
calls in which he did not make an arrest, even though he
observed physical injury, and the injured person stated that
someone else had hit him.” 305 F. Supp. 2d at 904 (emphasis
added). Lunini’s invocation of Peoria Police Department
General Order #400.01 (setting forth the procedures for
responding to domestic violence reports) on this score is
unavailing. The provisions of that Order do not create any
explicit duty to arrest Grayeb under the circumstances, and
we have previously held that class of one arguments based
on internal government rules or standard operating proced-
ures are insufficient—a plaintiff must show that another
similarly situated individual was in fact treated differently.
See McDonald, 371 F.3d at 1002-05 (holding insufficient
a class of one claim premised on local fire department’s
deviation from its established procedures for investigating
house fires).
In short, it is far from clear that this incident involved
anything other than an ordinary exercise of police discre-
tion, and as such it is not obvious how the police officers’
failure to arrest Grayeb on June 30, 2000 implicates Lunini’s
rights under the Equal Protection Clause in the first place.6
6
We are cognizant of the fact that, as a general matter, whether
individuals are similarly situated is a factual question for the
jury. See Harlen Assoc. v. Vill. of Mineola, 273 F.3d 494, 499 n. 2
(2d Cir. 2001). However, where it is clear that no reasonable jury
could find that the similarly situated requirement has been met,
a grant of summary judgment is appropriate. Id.; McDonald, 371
(continued...)
16 No. 04-1822
On a similar note, we also question whether, on a purely
factual level, Lunini has alleged an actual withdrawal of
police protection. There is no allegation that Grayeb posed
a continuing danger to Lunini when the police arrived at
the scene, and the facts suggest no threat of renewed as-
sault or conflict. Under the circumstances encountered by
the police officers at the time, it would be difficult to say
that failing to arrest Grayeb amounted to a withdrawal of
physical protection in any meaningful sense.
In any event, we need not rest our decision on these gen-
eral reservations since, even assuming that Lunini’s alle-
gations present a cognizable class of one equal protection
violation, we cannot say that the law on this matter was
“clearly established” at the time of the incident. As of
June 30, 2000, there were three central class of one equal
protection precedents prevailing in this circuit, each of which
differs in important respects from the instant case. The first
is Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995), in
which we held that the plaintiff had stated a valid legal
claim under the Equal Protection Clause by alleging that he
was unable to renew his liquor license because of the ill will
of local municipal officials—“an orchestrated campaign of
official harassment directed against him out of sheer
malice.” We explained that, while a valid equal protection
claim does not require “a deprivation of life, liberty, or prop-
erty,” it does require “that the action taken by the state,
whether in the form of prosecution or otherwise, was a spite-
ful effort to ‘get’ [plaintiff] for reasons wholly unrelated to
any legitimate state objective.” Id. at 180. In the instant
6
(...continued)
F.3d at 1002 (affirming a grant of summary judgment where
plaintiff failed to present a triable issue as to whether he was
“similarly situated” to comparators); Bell, 367 F.3d at 709-10 (same);
Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455-56 (7th Cir.
2002) (same).
No. 04-1822 17
case, aside from the fact that the official activity at issue is
entirely different from the licensing procedures implicated
in Esmail, it is not alleged that defendant police officers
bore any malice toward Lunini, much less engaged in an
“orchestrated campaign” to “get” him. Esmail thus provides
no guidance to defendant police officers with respect to the
specific situation they faced in the June 30, 2000 incident.
The next case, Olech v. Village of Willowbrook, originally
came before this Court and was subsequently affirmed by
the Supreme Court. That case involved an allegation that
municipal authorities demanded an unusually large ease-
ment over plaintiff’s property and shut off plaintiff’s water
for three months because of ill will generated by her earlier
(victorious) lawsuit against the city. In our handling of that
case, we noted that, unlike Esmail, the case “was not one of
uneven enforcement,” and we declared that a municipality
could be held liable for failure to provide basic services:
“The Village does not deny that it has a legal obligation to
provide water to all its residents. If it refuses to perform
this obligation for one of the residents, for no other reason
than a baseless hatred, then it denies that resident the
equal protection of the laws.” 160 F.3d 386, 388 (7th Cir.
1998). On appeal, the Supreme Court affirmed under an
even broader standard, declaring that class of one equal
protection claims are valid where “the plaintiff alleges that
she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.” 528 U.S. 562, 564 (2000) (per
curiam). The Court expressly declined to reach the “alterna-
tive theory of ‘subjective ill will’ ” upon which our decision
was based. Id. at 565.7 Here again, the instant case is dis
7
Justice Breyer wrote separately to concur, noting his concern
that, absent an allegation of ill will on the part of the government,
such a broad “rational basis” standard could “transform[ ] run-of-
(continued...)
18 No. 04-1822
tinguishable based both on the nature of the government
services at issue and the absence of ill will (much less a
“baseless hatred”) toward the plaintiff. Of course, the
Supreme Court suggests that unequal treatment based
on mere irrationality could suffice to overcome a qualified
immunity defense, but given the circumstances of the inci-
dent at issue in the instant case, it would be difficult to
charge defendant police officers with notice of a clearly es-
tablished constitutional right based on such an open-ended
pronouncement in a case arising under completely different
facts.
The final case, Hilton v. City of Wheeling, 209 F.3d 1005
(7th Cir. 2000), decided just over one month before the inci-
dent at issue in the instant case, comes closest to providing
the required notice. Hilton involved an action under 42
U.S.C. § 1983 alleging that city police were unfair in re-
sponding to complaints among neighbors. Specifically, the
plaintiff in Hilton alleged that local police arrested him
several times in response to complaints from his neighbors
(for battery, disorderly conduct and noise violations), but
they did not respond similarly to his own complaints against
those neighbors. We held that plaintiff had failed to present
a valid equal protection claim since he had presented no
evidence of improper police animus against him, but merely
alleged uneven enforcement of local laws. Id. at 1007-08.
We explained that “[i]f the police decided to withdraw all
protection from [plaintiff] out of sheer malice, or because
they had been bribed by his neighbors, he would state a
claim under Olech,” but “the absence of evidence of an
improper motive” is decisive. Id. at 1008. We concluded by
summarizing that “to make out a prima facie case [for a
class of one equal protection violation] the plaintiff must
7
(...continued)
the-mill zoning cases into cases of constitutional right.” Olech, 528
U.S. at 566 (Breyer, J., concurring).
No. 04-1822 19
present evidence that the defendant deliberately sought to
deprive him of the equal protection of the laws for reasons
of a personal nature unrelated to the duties of the defen-
dant’s position.” Id.
Clearly, Hilton comes closest to the instant case. It in-
volves allegations of unequal police response to complaints
by local residents; additionally, its dictum regarding actions
taken “for reasons of a personal nature unrelated to the
duties of the defendant’s position” arguably echo Lunini’s
claims with respect to the defendant police officers’ moti-
vations for refusing to arrest Grayeb. Nonetheless, the key
word here is “arguably”; Hilton still differs significantly
from the instant case. Unlike Hilton, where it was clear that
the plaintiff was being treated differently from his neigh-
bors, it is unclear that such is the case here. Additionally,
we are mindful of the fact that our actual holding in Hilton
ultimately vindicated the police officers’ claims of qualified
immunity, and the language which arguably encompasses
Lunini’s claims is pure dicta. We acknowledge that “liability
is not predicated upon the existence of a prior case that
is directly on point,” Nabozny, 92 F.3d at 456, yet nonethe-
less “[t]he contours of the right [at issue] must be sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.” Saucier, 533 U.S. at 200-01.
However suggestive our dicta in Hilton, we are instructed
to conduct the “clearly established” inquiry from the de-
fendant-official’s perspective, and in this light, a claim in a
factually dissimilar case which ultimately fails to survive a
qualified immunity defense cannot be said to sufficiently
define “the contours of the [purported] right” to any signi-
ficant degree. Indeed the precise contours of class of one
equal protection rights continue to elude some of this cir-
cuit’s most capable judges. See Bell v. Duperrault, 367 F.3d
703, 709 (7th Cir. 2004) (Posner, J., concurring) (noting that
there is lingering uncertainty regarding the legal standard
applicable to class of one cases).
20 No. 04-1822
Certainly Lunini is unhappy with defendant police officers’
response to the incident at the High Street residence.
However, on this record it appears highly doubtful that any
alleged police misjudgments (if misjudgments there were)
took on constitutional proportions. While we take pains to
affirm the baseline principle that police support and
protection must be afforded to all citizens on a non-discrimi-
natory basis, we decline to take the unprecedented step of
implying a general constitutional police duty to arrest
certain individuals during a response to an isolated domes-
tic incident. Such a ruling would threaten to turn every
police house call into a potential federal constitutional
lawsuit. Cf. Olech, 528 U.S. at 565-66 (Breyer, J., concurring)
(warning against a rule that “would transform many ordi-
nary violations of city or state law into violations of the
Constitution”).
IV. CONCLUSION
We are persuaded that, under the circumstances of the
instant case, an ordinary police officer could not know that
he or she risked violating Lunini’s civil rights by failing to
arrest Grayeb. Accordingly, we must conclude that the equal
protection rights alleged to have been violated in the instant
case were not clearly established at the time of the incident
at the High Street residence. The order of the district court
regarding defendant police officers’ claims of qualified
immunity is accordingly REVERSED and the case REMANDED
with instructions to enter summary judgment in favor of
defendants Stenson, Kice and Barden with respect to
Lunini’s class of one equal protection claim.
No. 04-1822 21
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-05