Stephen Hanes v. Thomas Zurick

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1043

S TEPHEN H ANES,

Plaintiff-Appellee,

v.

T HOMAS Z URICK, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 2714—Charles R. Norgle, Sr., Judge.

A RGUED JULY 8, 2009—D ECIDED A UGUST 18, 2009

Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.

W OOD , Circuit Judge. Stephen Hanes sued the Village

of Grayslake, Illinois, and eleven officers of its police

department, alleging that the officers denied him—and

only him—equal protection of the law, solely for reasons

of personal animus. Relying on Hilton v. City of

Wheeling, 209 F.3d 1005 (7th Cir. 2000), the district court

denied the officers’ motion to dismiss, which sought

dismissal both on the basis of qualified immunity and for

2 No. 09-1043

failure to state a claim. Under Hilton, a plaintiff states

such a claim by alleging that “the police decided to with-

draw all protection . . . out of sheer malice.” Id. at 1007.

Focusing on their qualified immunity theory, the officers

filed this interlocutory appeal, in which they invite us

to reconsider Hilton in light of the Supreme Court’s

holding in Engquist v. Oregon Dep’t of Agriculture, 128

S. Ct. 2146 (2008), that no class-of-one equal protection

claim can be made in the public-employment context. We

reject the officers’ invitation. Based on the significant

differences between public employment and policing, we

hold that Hilton remains good law after Engquist. We

therefore affirm.

I

Hanes’s complaint is straightforward: it alleges that as

a result of a long-running and somewhat mysterious

dispute with his neighbors, both Hanes and the neighbors

have complained repeatedly to the police. Yet when the

police respond, they arrest only Hanes, no matter who

initiated the complaint. They have arrested him at least

eight times, and those arrests have led to thirteen crim-

inal charges for minor crimes. Every single charge was

later dropped. According to Hanes, the police have

treated him unequally by ignoring his complaints against

others and arresting only him because they “hate” him

and “do not respect him.” Those reasons, Hanes insists,

are “unrelated to the police officers’ duties.”

The officers moved to dismiss Hanes’s complaint for

failure to state a claim, arguing that selective enforce-

No. 09-1043 3

ment of the law can never violate the equal protection

clause under a class-of-one theory because of the discre-

tion inherent in police power. The officers acknowl-

edged that, under our opinion in Hilton, Hanes’s allega-

tions state a claim, but they argued that the Supreme

Court’s opinion in Engquist implicitly overruled Hilton.

The officers also argued that they were entitled to

qualified immunity, but they conceded that if the

district court refused to revisit Hilton, it should reject

their qualified immunity argument as well. The district

court concluded that it was bound by Hilton and denied

the officers’ motion. Its order did not explicitly mention

qualified immunity.

II

The court’s failure to discuss qualified immunity

caused us to question whether we have before us a

nonappealable order denying a motion to dismiss, see

Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008), or an

appealable order rejecting the defense of qualified im-

munity, see Mitchell v. Forsyth, 472 U.S. 511 (1985). In

Gosnell v. City of Troy, Ill., 979 F.2d 1257 (7th Cir. 1992), the

district court similarly denied the defendants’ motions

for summary judgment in an order that did not mention

qualified immunity. Id. at 1259-60. We acknowledged

the possibility that “the district court intended to rule

on the question of qualified immunity in its order,” but

we held that without an express “conclusion of law”

from the district court, appellate jurisdiction was not

proper. Id. at 1261. Gosnell advises that defendants faced

4 No. 09-1043

with uncertainty over whether the district court has

rejected a defense of qualified immunity should move

the district court to reconsider or clarify; they should

not appeal. Id. at 1260.

A closer look at this case reveals, however, that it is

not the same as Gosnell. In Gosnell, it was not only

unclear whether the district court intended to rule on

qualified immunity; it was also unclear whether the

defendants intended to raise the defense. Id. at 1259. The

defendants in Gosnell seemed to have forgotten about

the issue when they filed a second motion for sum-

mary judgment. In the present case, there is no am-

biguity about the officers’ intent—their motion to

dismiss explicitly raises the defense, and their sup-

porting memorandum contains a detailed discussion of

the issue. Hanes responded in kind, ensuring that the

issue was fully briefed for the district court. Because

qualified immunity was unambiguously before the

district court, its denial of the motion to dismiss neces-

sarily included a denial of the defense of qualified im-

munity. See In re Montgomery County, 215 F.3d 367, 374

(3d Cir. 2000) (collecting cases).

As the Supreme Court recently reaffirmed in Pearson

v. Callahan, 129 S. Ct. 808 (2009), two questions are perti-

nent to the defense of qualified immunity: whether

the facts alleged show that the state actor violated a

constitutional right, and whether that right was clearly

established. Id. at 816, referring to Saucier v. Katz, 533

U.S. 194 (2001). Pearson held that the district court has

discretion in choosing the order in which those questions

No. 09-1043 5

should be answered; a negative answer to either one is

enough to establish the defense of qualified immunity.

Here, the district court was able to resolve both parts of

the immunity inquiry by reference to Hilton: the facts

alleged described a violation of a constitutional right,

and, in noting that “Hilton is squarely on point,” the

court indicated that the right was clearly established.

Gosnell is distinguishable for another reason as well.

There, the discussion in the district court’s ruling had

nothing to do with qualified immunity. Gosnell, 979 F.2d

at 1260. We were wary of making an appellate ruling

without “findings of fact and conclusions of law” from

the district court. Id. at 1261. Indeed, in general, “an

interlocutory appeal is inappropriate where substantial

steps remain to be taken in the district court before the

facts, and hence the applicable law, are brought into

focus.” Khorrami, 539 F.3d at 787. In the present case,

nothing needs to be cleared up, and so there would be

no point to a remand for an explicit ruling on qualified

immunity.

Finally, accepting jurisdiction over this appeal is con-

sistent with the Supreme Court’s reminder that qualified

immunity is “both a defense to liability and a limited

‘entitlement not to stand trial or face the other burdens

of litigation.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1946 (2009)

(quoting Mitchell, 472 U.S. at 526). Appeals from denials

of motions raising the defense are allowed “without

regard to the district court’s reasons; it is enough that a

given order prolongs the litigation and thus (further)

impinges on a defendant’s potential right not to be

6 No. 09-1043

sued.” Asher v. Baxter Int’l, Inc., 505 F.3d 736, 739-40

(7th Cir. 2007) (citing Fairley v. Fermaint, 482 F.3d 897

(7th Cir. 2007)). (This is not to say that every minor post-

ponement gives rise to a right to appeal; normal

scheduling orders designed to facilitate an informed

ruling on the defense are permissible. See Khorrami,

539 F.3d at 786.) The district court’s order gave no indi-

cation that it intended to reserve ruling on any of the

arguments raised in the motion to dismiss. By signaling

its decision on both halves of the qualified immunity

inquiry, the district court set the stage for the defen-

dants’ interlocutory appeal.

III

With our jurisdiction secure, we may now move to the

officers’ argument that they are entitled to qualified

immunity. As they did in the district court, the officers

rely almost exclusively on the Supreme Court’s decision

in Engquist and its purported effect on our holding

in Hilton.

A

We consider first the question whether the facts Hanes

alleged describe a constitutional violation. See Pearson,

129 S. Ct. at 815-16, 818. Hanes argues that they do, based

on the idea that the Equal Protection Clause protects

invidious discrimination against even one person. Under

that theory, “the plaintiff alleges that she has been inten-

tionally treated differently from others similarly situated

No. 09-1043 7

and that there is no rational basis for the difference

in treatment.” Village of Willowbrook v. Olech, 528 U.S.

562, 564 (2000).

In Hilton, we relied on Olech to explain how a class-of-

one claim could be made against police officers for

unequal enforcement of the law. Hilton, 209 F.3d at 1007.

The plaintiff there had alleged that throughout a long-

running feud with his neighbors, the police were not

evenhanded and usually cited or arrested only him. Id.

at 1006. We recognized a claim under a class-of-one

theory for unequal police protection, but held that the

plaintiff could not survive summary judgment because

he had not shown that the officers’ unequal enforcement

of the law was motivated by personal animus unrelated

to official duties. Hilton, 209 F.3d at 1007-08. It is true

that some more recent cases have cast doubt on the

animus requirement, suggesting that the plaintiff need

show only that no rational reason supports the unequal

treatment. See United States v. Moore, 543 F.3d 891, 898

(7th Cir. 2008) (collecting cases). Because Hanes alleged

personal animus, thereby meeting the more onerous

standard, we need not resolve the tension identified in

Moore. Hanes’s complaint follows Hilton to a “T” (perhaps

because the plaintiff’s lawyer is the same in both cases),

and the officers have never argued that it fails to state

a claim under that case.

The officers’ central argument is that we should recon-

sider Hilton in light of the Supreme Court’s recent

holding in Engquist that public employers cannot be

liable for class-of-one equal protection violations. Engquist

8 No. 09-1043

undermines Hilton, the officers argue, because it holds that

the class-of-one theory is poorly suited to government

actors who exercise “discretionary authority based on

subjective, individualized determinations.” Engquist, 128

S. Ct. at 2153. The exercise of such discretion may lead to

unequal treatment, but the Equal Protection Clause

is not violated, the Court explained, “because treating

like individuals differently is an accepted consequence

of the discretion granted.” Id. at 2154. Although

Engquist limited its holding to public employment, id.

at 2156, the Court illustrated its reasoning with an

example from law enforcement: a traffic officer who

cannot possibly stop all speeding drivers and has no

way to distinguish among them literally treats “unequally”

the one driver that she does stop. But that stop

does not violate the Equal Protection Clause because

discretion is inherent in the act of singling out one

driver from the crowd. Id.

The Supreme Court’s reasoning in Engquist sheds light

on the reach of its holding. First, the Court emphasized

that the judgments unsuited to a class-of-one claim are

typically “subjective and individualized, resting on a

wide array of factors that are difficult to articulate and

quantify.” Id. at 2154-55. That describes employment

decisions because treating like individuals differently

in the employment context is “par for the course.” Id. at

2155. Second, the Court noted that the constitutional

constraints on government are much less onerous when

it acts as employer as compared to acting as sovereign.

Id. at 2151. Finally, the Court recognized that, in the

employment context, an uncabined class-of-one theory

No. 09-1043 9

risks making a constitutional case out of every decision

by a government employer. Id. at 2156 (citing Connick v.

Myers, 461 U.S. 138, 143 (1983)).

The lesson we take from this is that context matters.

Our task is to apply the Engquist approach to claims that

the police have inflicted unequal treatment on a citizen

for no reason other than malice. In this setting, we con-

clude, it is not possible to dismiss a complaint based on

broad generalities. Although the police enjoy broad

freedom of action, Hilton, 209 F.3d at 1007-08, their dis-

cretion is much narrower than the discretion given

public employers. First, in contrast to an employer, who

is entitled to make decisions based on factors that may

be difficult to articulate and quantify, an officer must

justify her decision to stop a suspect by pointing to

“articulable facts.” Terry v. Ohio, 392 U.S. 1, 21 (1968). And

while employment decisions are inherently subjective,

“[s]ubjective intentions play no role” in evaluating

police seizures under the Fourth Amendment. Whren v.

United States, 517 U.S. 806, 813 (1996). Second, police

officers, in contrast to public employers, exercise the

government’s sovereign power. Accordingly, constitu-

tional constraints on police power are the norm. Finally,

although courts are reluctant to subject routine employ-

ment decisions to constitutional scrutiny, asking a court

to determine whether a police officer’s act was constitu-

tional is not at all unprecedented. For all these reasons,

Engquist does not support the officers’ argument that

malicious police conduct is off-limits from class-of-one

claims.

10 No. 09-1043

In addition to their direct argument based on Engquist,

the officers point to two circuit court decisions in

support of their position. First, the Eighth Circuit has

held that a class-of-one claim cannot be made against

police based on their decisions about whom and how to

investigate, because of the discretion inherent in those

decisions. Flowers v. City of Minneapolis, 558 F.3d 794, 799-

800 (8th Cir. 2009). But the Eighth Circuit’s one-

paragraph discussion of the issue did not consider the

objective constraints on police discretion, see, e.g., Whren,

517 U.S. at 806. Instead, it merely made the general obser-

vation that officers’ “decisions regarding whom to in-

vestigate and how to investigate are matters that neces-

sarily involve discretion.” Flowers, 558 F.3d at 799. Not

all discretion is absolute, however, and we are concerned

here with the constitutional limits on official authority.

The officers also rely on our application of Engquist to

prosecutorial discretion in Moore, where we explained that

“the discretion conferred on prosecutors in choosing

whom and how to prosecute is flatly inconsistent with a

presumption of uniform treatment.” Moore, 543 F.3d at

901. Moore simply honors the rule that prosecutorial

conduct is absolutely immune from civil liability because

prosecutors need unfettered discretion. Imbler v. Pachtman,

424 U.S. 409, 426 (1976). By contrast, police officers are

protected only by qualified immunity because they have

“less complex discretionary responsibilities.” Harlow

v. Fitzgerald, 457 U.S. 800, 807 (1982).

Engquist does show that some discretionary police

decision-making is off-limits from class-of-one claims. One

No. 09-1043 11

example comes from the Supreme Court’s own opinion,

which discusses the traffic cop who has no way to dis-

tinguish among many speeding drivers. Engquist, 128 S. Ct.

at 2156. But the officer who repeatedly arrests someone

solely because of malice does have a way to distinguish

between the citizen repeatedly arrested and the citizen

left alone: the officer hates the arrestee. The officer moti-

vated by malice alone is not exercising discretion and

is not weighing the factors relevant to the officer’s duties

to the public. We conclude, therefore, that Engquist

does not undermine Hilton and that Hanes has satisfied

the first element of the qualified-immunity analysis: he

has stated a claim under a class-of-one theory.

B

We must therefore reach the officers’ alternative argu-

ment, which is that even if we do not revisit Hilton, they

are entitled to qualified immunity because the right to

police protection uncorrupted by personal animus

was not clearly established at the time of the alleged

conduct. In support of that point, they note again that

there has been some indecision in this circuit over

whether there is an animus requirement. See Moore, 543

F.3d at 898. But under any view we have taken, arrests

motivated by personal animus are unconstitutional.

Second, the officers argue that the right announced in

Hilton is dicta. Hilton states, “If the police decided to

withdraw all protection from Hilton out of sheer malice,

or because they had been bribed by his neighbors, he

would state a claim under Olech.” Hilton, 209 F.3d at 1007.

12 No. 09-1043

Although we described that statement as dicta in a later

case, see Lunini v. Grayeb, 395 F.3d 761, 772 (7th Cir. 2005),

even dicta may clearly establish a right, see Anderson v.

Creighton, 483 U.S. 635, 640 (1987). When a court holds

that certain conduct violates a constitutional right but

that the right was not clearly established, the constitu-

tional ruling is arguably dicta, see Pearson, 129 S. Ct. at 818,

but it still may clearly establish the law for future

conduct, id. at 819. As Judge Calabresi has explained,

“lucid and unambiguous dicta concerning the existence

of a constitutional right can without more make that right

‘clearly established’ for purposes of a qualified immunity

analysis.” Wilkinson v. Russell, 182 F.3d 89, 112 (2d Cir.

1999) (Calabresi, J., concurring). Hilton’s statement could

not be more lucid and unambiguous. Since the conduct

alleged here is almost identical to the requirements set

out in Hilton, a reasonable officer was on notice that such

conduct violates the constitution.

The officers’ remaining arguments that the right was

not clearly established rest on other cases on which they

might have relied, but none of those decisions affects the

clarity of the law established in Hilton. First, the officers

point to Whren v. United States, 517 U.S. 806 (1996), and

DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S.

189 (1989). Neither of those cases, however, concerned

the Equal Protection Clause. In fact, the opinion in each

one contains language in support of an equal-protection

challenge to unequal enforcement of the law. Whren, 517

U.S. at 813 (“[T]he constitutional basis for objecting to

intentionally discriminatory application of laws is the

Equal Protection Clause, not the Fourth Amendment.”);

No. 09-1043 13

DeShaney, 489 U.S. at 197 n.3 (“The State may not, of

course, selectively deny its protective services to

certain disfavored minorities without violating the

Equal Protection Clause.”). Finally, the officers contend

that even if Engquist did not implicitly overrule Hilton, it

unsettled the law established in Hilton. (At the time they

acted, these officers could not have been relying on

Engquist in any event; the Supreme Court did not hand

down the decision until June, 2008, one month after

Hanes filed his complaint.) For the reasons we have

already given, we do not agree that it had this effect

outside the context of areas that are almost entirely dis-

cretionary.

We therefore A FFIRM the judgment of the district court.

8-18-09