Dawn Hanson v. Chris LeVan

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19‐1840

DAWN HANSON, et al.,

Plaintiffs‐Appellees,

v.

CHRIS LEVAN,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15‐cv‐5354 — Robert M. Dow, Jr., Judge.

____________________

ARGUED MAY 28, 2020 — DECIDED JULY 21, 2020

____________________

Before MANION, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge. For some government jobs, political

affiliation is an appropriate position requirement. But that’s

generally not the case. And unless political affiliation is an ap‐

propriate job requirement, the First Amendment forbids gov‐

ernment officials from discharging employees based on their

political affiliation. Rutan v. Republican Party of Ill., 497 U.S. 62,

64 (1990) (citing Elrod v. Burns, 427 U.S. 347 (1976); Branti v.

Finkel, 445 U.S. 507 (1980)).

2 No. 19‐1840

After stepping into his elected office as Milton Township

Assessor, Chris LeVan dismissed a group of employees who

were Deputy Assessors, allegedly because they supported his

political rival and predecessor. The fired deputies sued

LeVan, claiming the terminations violated their First Amend‐

ment rights. In a motion to dismiss for failure to state a claim,

LeVan asserted a qualified‐immunity defense. The district

court concluded that LeVan is not entitled to qualified im‐

munity at this pleading stage, and LeVan appealed.

We affirm because, taking as true the plaintiffs’ well‐

pleaded allegations about the characteristics of the Deputy

Assessor position, a reasonable actor in LeVan’s position

would have known that dismissing the deputies based on

their political affiliation violated their constitutional rights.

I. BACKGROUND

According to the plaintiffs’ complaint, in 2013 Chris

LeVan was elected to the office of Milton Township Assessor,

displacing his predecessor and political rival, Bob Earl.

Shortly after he took office, LeVan discharged a group of em‐

ployees—Deputy Assessors1—who had publicly supported

Earl in his run for reelection.

The dismissed employees sued LeVan in his personal and

official capacities for discharging them on improper bases. At

issue now are the plaintiffs’ challenges that LeVan, under

color of state law, violated their rights guaranteed by the First

Amendment (applicable to Illinois through the Fourteenth

Amendment) by firing them because of their political

1 Among the plaintiffs dismissed from their positions in the Assessor’s

Office is a former IT Administrator. This appeal does not concern that

plaintiff, only those who were Deputy Assessors.

No. 19‐1840 3

affiliation. See 42 U.S.C. § 1983. They alleged that the Deputy

Assessor position is not one for which political affiliation is a

valid job requirement, as the position did not authorize the

employees to have meaningful input in policy decisions, yet

LeVan discharged them based on their political affiliation.

For these challenges against LeVan in his individual ca‐

pacity, LeVan asserted qualified immunity as a defense. See

Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination

Unit, 507 U.S. 163, 166 (1993) (recognizing that qualified im‐

munity is afforded only to individual officials, not to units of

government); Ruffino v. Sheahan, 218 F.3d 697, 700 (7th Cir.

2000). He did so in a motion to dismiss, under Rule 12(b)(6),

for failure to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(6). The district court concluded that

LeVan is not entitled to qualified immunity at the pleading

stage and allowed the claims to proceed. LeVan sought inter‐

locutory review of that decision.

II. ANALYSIS

A. Appellate Jurisdiction

The first order of business is our jurisdiction to review the

district court’s qualified‐immunity decision. The former Dep‐

uty Assessors contend that we lack jurisdiction, reasoning

that the district court’s order is nonfinal and falls outside the

collateral‐order doctrine. We disagree.

Appellate courts’ jurisdiction under 28 U.S.C. § 1291 is in‐

deed limited to appeals from “final decisions” of district

courts. But some “final decisions” are made before the district

court enters a final judgment: certain “collateral orders” are

immediately reviewable because they “‘[1] conclusively de‐

termine the disputed question, [2] resolve an important issue

4 No. 19‐1840

completely separate from the merits of the action, and [3] [are]

effectively unreviewable on appeal from a final judgment.’”

Johnson v. Jones, 515 U.S. 304, 310 (1995) (bracketed numbers

in original) (quoting Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).

Denials of qualified immunity often fall into this category

of immediately appealable orders. They are reviewable when

“the issue appealed concerned, not which facts the parties

might be able to prove, but, rather, whether or not certain

given facts showed a violation of ‘clearly established’ law.” Id.

at 311 (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 (1985));

see, e.g., Leiser v. Kloth, 933 F.3d 696, 700–01 (7th Cir. 2019), cert.

denied, No. 19‐7508 (Apr. 27, 2020). In other words, the denial

of qualified immunity is within our jurisdiction to review be‐

fore a final judgment if that denial turns on “abstract” ques‐

tions of law. Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009) (quoting

Johnson, 515 U.S. at 317). By contrast, interlocutory review is

unavailable for a district court’s “fact‐based” decision—for

example, that the evidence in the pretrial record shows a gen‐

uine issue of fact on which qualified immunity depends. Id.

(quoting Johnson, 515 U.S. at 317); see Johnson, 515 U.S. at 307,

313 (no appellate jurisdiction to review district court’s order

determining that evidence is sufficient to permit a particular

finding of fact after trial).

The district court’s decision here was on a motion to dis‐

miss, under Rule 12(b)(6), for failure to state a claim. As we

see it, LeVan essentially contended that the plaintiffs did not

assert a constitutional violation upon which relief can be

granted because LeVan is qualifiedly immune. Fed. R. Civ. P.

12(b)(6); see Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th

Cir. 2000).

No. 19‐1840 5

We have accepted that dismissal under Rule 12(b)(6) can

preserve an official’s right, under qualified‐immunity doc‐

trine, “not to stand trial or face the other burdens of litiga‐

tion,” including pretrial discovery. Mitchell, 472 U.S. at 526;

see Pearson v. Callahan, 555 U.S. 223, 231–32 (2009); Reed v.

Palmer, 906 F.3d 540, 548–49 (7th Cir. 2018). But dismissal un‐

der Rule 12(b)(6) is not the only way to preserve that right. See

Jacobs, 215 F.3d at 774–75 (Easterbrook, J., concurring in part

and in the judgment) (identifying other means by which im‐

munity may be decided without protracted discovery). Nor is

it always (if ever) the most suitable procedural setting to de‐

termine whether an official is qualifiedly immune, because

immunity may depend on particular facts that a plaintiff need

not plead to state a claim. Alvarado v. Litscher, 267 F.3d 648,

651–52 (7th Cir. 2001).

Ultimately, dismissal under Rule 12(b)(6) is appropriate

based on qualified immunity only when the plaintiffs’ well‐

pleaded allegations, taken as true, do not “state a claim of vi‐

olation of clearly established law.” Behrens v. Pelletier, 516 U.S.

299, 306 (1996) (quoting Mitchell, 472 U.S. at 526). We elabo‐

rate and apply this standard later on, but for now it is enough

to reiterate that “a complaint may be dismissed under Rule

12(b)(6) on qualified immunity grounds where the plaintiff

asserts the violation of a broad constitutional right that had

not been articulated at the time the violation is alleged to have

occurred.” Jacobs, 215 F.3d at 765 n.3. And the familiar plausi‐

bility standard governs.2 See Reed, 906 F.3d at 548.

2 We have recognized the tension between the plausibility standard

that applies to motions for dismissal of a complaint; the often fact‐inten‐

sive nature of qualified‐immunity determinations; and the protection that

the qualified‐immunity doctrine provides against the burdens of pretrial

6 No. 19‐1840

The district court concluded that the plaintiffs stated a

claim for a violation of a clearly established right, barring

qualified immunity at this point in the litigation. The court

reached this conclusion by taking the plaintiffs’ well‐pleaded

allegations as true and answering two questions: First, did the

plaintiffs’ allegations add up to a claim that a constitutional

right was violated? And second, was the right clearly estab‐

lished when LeVan discharged the employees? As far as ju‐

risdiction is concerned, these are “abstract” legal questions

about “the substance and clarity of pre‐existing law,” given

the facts as alleged. Ortiz v. Jordan, 562 U.S. 180, 190 (2011); cf.

Leiser, 933 F.3d at 700–01.

The plaintiffs argue that the first question is fact‐based,

nonfinal, and thus unreviewable. They point to the district

court’s remark that whether LeVan will be entitled to quali‐

fied immunity on a further‐developed record “cannot be re‐

solved on the pleadings.” This remark, they reason, indicates

that the district court’s decision both (a) turns on facts not yet

determined and (b) is not necessarily the last qualified‐im‐

munity determination the court will make.

matters, including discovery. See, e.g., Reed, 906 F.3d at 548–49; Jacobs, 215

F.3d at 765 n.3. Although this tension generally makes Rule 12(b)(6) a poor

fit for dismissal on the basis of qualified immunity, Reed, 906 F.3d at 548–

49; see also Siefert v. Hamilton County, 951 F.3d 753, 761 (6th Cir. 2020), it

does not preclude appellate jurisdiction, see Iqbal, 556 U.S. at 672; Behrens,

516 U.S. at 307–08; see, e.g., Hardeman v. Curran, 933 F.3d 816, 819–20 (7th

Cir. 2019). The tension is also eased by other rules, like Rule 12(e) and Rule

26(c), that can be engaged to avoid or curtail discovery before a qualified‐

immunity decision is made on summary judgment. See Crawford‐El v. Brit‐

ton, 523 U.S. 574, 598–99 (1998); Jacobs, 215 F.3d at 775 (Easterbrook, J., con‐

curring in part and in the judgment).

No. 19‐1840 7

The merits inquiry embedded in the first question—

whether political affiliation is an appropriate requirement for

a certain position—certainly calls for a case‐specific assess‐

ment of the government job at hand. See Branti, 445 U.S. at 518.

And it is true that we have generally classified this inquiry as

a matter of fact that in some cases ought to be resolved as a

matter of law3—depending on how clearly statutes, ordi‐

nances, regulations, and a reliable job description establish

the position responsibilities.4

3 Whether this inquiry is a matter of law or fact split the circuits. See

Horton v. Taylor, 767 F.2d 471, 478 (8th Cir. 1985). Compare Gordon v. County

of Rockland, 110 F.3d 886, 888–89, 889 n.4 (2d Cir. 1997) (concluding that

the propriety of political affiliation as a criterion for a position is a matter

of law, and suggesting it is never an issue for the jury to decide), with Pleva

v. Norquist, 195 F.3d 905, 912 (7th Cir. 1999) (stating that the issue “should

ordinarily be left for a jury to determine” but may be resolved as a matter

of law when the position responsibilities are clearly outlined by law).

4 See, e.g., Allman v. Smith, 790 F.3d 762, 766–67 (7th Cir. 2015) (ac‐

knowledging that trial could show plaintiff had more discretion than job

description implied); Powers v. Richards, 549 F.3d 505, 510 (7th Cir. 2008)

(resolving inquiry as a matter of law when plaintiff did not dispute that

the official job description accurately explained the position responsibili‐

ties); Fuerst v. Clarke, 454 F.3d 770, 773–74 (7th Cir. 2006) (concluding that

the matter could not be resolved on summary judgment); Riley v. Blago‐

jevich, 425 F.3d 357, 360–61 (7th Cir. 2005) (contemplating that a systemat‐

ically unreliable job description could precipitate a factual inquiry, but

quoting Danahy v. Buscaglia, 134 F.3d 1185, 1191 (2d Cir. 1998), for asser‐

tion that the inquiry “presents a question of law informed solely by the job

description and the powers of office”); Vargas‐Harrison v. Racine Unified

Sch. Dist., 272 F.3d 964, 972 (7th Cir. 2001) (observing that “an individual’s

status as a policy‐making employee frequently poses a fact question” but

that “a court may resolve this issue without the aid of a finder of fact”

when “the duties and responsibilities of a particular position are clearly

defined by law and regulations”); Pleva, 195 F.3d at 912 (citing cases); Selch

8 No. 19‐1840

But we have treated the issue as an “abstract” matter of

law, for purposes of jurisdiction, when antecedent facts are

taken as given and we are asked to review only the applica‐

tion of a legal standard to those given facts in a qualified‐im‐

munity assessment. See Jackson v. Curry, 888 F.3d 259, 263 (7th

Cir. 2018); see, e.g., Moss v. Martin, 473 F.3d 694, 702 (7th Cir.

2007); Kiddy‐Brown v. Blagojevich, 408 F.3d 346, 355–56 (7th Cir.

2005); see also Danahy v. Buscaglia, 134 F.3d 1185, 1190–91 (2d

Cir. 1998) (“For the purposes of jurisdiction, … we assume the

truth of the plaintiffs’ claims that they were subjected to pat‐

ronage dismissals and that they were not policymakers.”); cf.

Guerrero‐Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020) (“ques‐

tions of law,” for purposes of appellate jurisdiction under 8

U.S.C. § 1252(a)(2)(D), “includes the application of a legal

standard to undisputed or established facts”).

That is the situation we face here. The court did not eval‐

uate evidence or make any “antecedent” determinations that

we are asked to review. Allman v. Smith, 790 F.3d 762, 764 (7th

Cir. 2015); see, e.g., Jackson, 888 F.3d at 263–64 (unreviewable

antecedent question lay in whether the district court properly

decided not to watch a video that, defendants argued, contra‐

dicted plaintiff’s factual allegations).

The district court’s remark—that whether LeVan will be

entitled to qualified immunity on a further‐developed record

“cannot be resolved on the pleadings”—merely acknowl‐

edges the different standards that apply to a Rule 12(b)(6) mo‐

tion to dismiss and a Rule 56(a) motion for summary

v. Letts, 5 F.3d 1040, 1044 (7th Cir. 1993) (reviewing determination for clear

error). We do not reconsider our precedent today to address whether it

would be more appropriate to characterize the inquiry as a “mixed ques‐

tion of law and fact.” Guerrero‐Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020).

No. 19‐1840 9

judgment. As we’ve already mentioned, before discovery be‐

gins, a defendant asserting qualified immunity is entitled to

dismissal if the allegations in the complaint fail to state a claim

of a clearly established right having been violated. Mitchell,

472 U.S. at 526. After discovery, however, the defendant as‐

serting qualified immunity is entitled to summary judgment

if the evidence fails to demonstrate a genuine factual issue

about the characteristics of the employee’s position or

whether the defendant committed the alleged acts. See id.; All‐

man, 790 F.3d at 766–67.

In this way, while qualified immunity may not entitle a

defendant to dismissal on the pleadings, qualified immunity

may entitle the defendant to summary judgment later on.

And because each determination is conclusive as to the de‐

fendant’s right to avoid the burdens of pretrial discovery and

trial, a denial of qualified immunity can be a “final decision”

at both stages of the litigation. See Behrens, 516 U.S. at 307–08.

Having confirmed that we have jurisdiction to review the

court’s qualified‐immunity decision, we next address

whether the court properly concluded that LeVan is not enti‐

tled to qualified immunity at this pleading stage.

B. Qualified Immunity

LeVan is entitled to dismissal unless (1) the plaintiffs ade‐

quately alleged facts that, if true, would constitute a violation

of a statutory or constitutional right, and (2) the right was

“clearly established” at the time of the alleged violation, such

that a reasonable public official would have known his con‐

duct was unlawful. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); see Moss, 473 F.3d at 702. We review de novo whether

each criterion has been met, accepting all well‐pleaded factual

10 No. 19‐1840

allegations as true and drawing all permissible inferences in

the plaintiffs’ favor. See Reed, 906 F.3d at 546, 549; Chasensky v.

Walker, 740 F.3d 1088, 1093, 1095 (7th Cir. 2014).

1. Violation of a Right

The plaintiffs alleged in their complaint that the Deputy

Assessor position is not one for which political affiliation is a

valid requirement and that LeVan dismissed the plaintiffs be‐

cause of their political affiliation, in violation of their First

Amendment rights. LeVan counters that political affiliation is

an appropriate job requirement for the Deputy Assessor posi‐

tion, so the employees’ dismissal based on political patronage

is not a First Amendment violation.

The general rule, under the Supreme Court’s decisions in

Elrod and Branti, is that dismissal of a public employee on the

basis of political affiliation violates the employee’s First

Amendment rights. See Rutan, 497 U.S. at 64; Bogart v. Vermil‐

ion County, 909 F.3d 210, 213 (7th Cir. 2018). The exception is

when party affiliation is an appropriate requirement for the

position involved. See Hagan v. Quinn, 867 F.3d 816, 824 (7th

Cir. 2017). This so‐called Elrod‐Branti or “policymaking”5 ex‐

ception derives from the principles of representative govern‐

ment: without political alignment in certain positions, em‐

ployees occupying those positions could obstruct the imple‐

mentation of policies presumably sanctioned by the

5 The exception’s application does not turn on whether the position

can bear the label “policymaker,” see Branti, 445 U.S. at 518, but we have

used the term “policymaker” as a shorthand for the broad category of of‐

fices that fall within the Elrod‐Branti exception. See Hagan, 867 F.3d at 824;

Kiddy‐Brown, 408 F.3d at 355.

No. 19‐1840 11

electorate, who placed the current administration in power.

Elrod, 427 U.S. at 367; Bogart, 909 F.3d at 213.

As a result, the Elrod‐Branti exception applies if “the hiring

authority can demonstrate that party affiliation is an appro‐

priate requirement for the effective performance of the public

office involved.” Branti, 445 U.S. at 518. We have held that po‐

litical affiliation is an appropriate requirement when “the

[employee’s] position authorizes, either directly or indirectly,

meaningful input into government decisionmaking on issues

where there is room for principled disagreement on goals or

their implementation.” Kiddy‐Brown, 408 F.3d at 355 (quoting

Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981)). This as‐

sessment includes whether the position “entails the exercise

of a substantial amount of political (as distinct from profes‐

sional) discretion,” Powers v. Richards, 549 F.3d 505, 510 (7th

Cir. 2008), and whether the position gives its holder access to

the superior’s “confidential, politically sensitive thoughts,”

Bogart, 909 F.3d at 213 (quoting Riley v. Blagojevich, 425 F.3d

357, 359 (7th Cir. 2005)).

Our focus, when determining whether a position falls

within the Elrod‐Branti exception, is on “the powers inherent

in a given office, as opposed to the functions performed by a

particular occupant of that office.” Tomczak v. City of Chicago,

765 F.2d 633, 640 (7th Cir. 1985); see Embry v. City of Calumet,

701 F.3d 231, 236 (7th Cir. 2012). We have thus endorsed

courts’ use of reliable job descriptions, which—if objective—

provide “a provisional safe harbor for elected officials” who

may depend on the descriptions when deciding whom to re‐

place on political grounds. Riley, 425 F.3d at 365. But a statute

or ordinance trumps a job description whenever they conflict.

See Davis v. Ockomon, 668 F.3d 473, 478 (7th Cir. 2012). And at

12 No. 19‐1840

this 12(b)(6) stage, we don’t have an official description of the

Deputy Assessor position, cf. Hagan, 867 F.3d at 827; we have

only the plaintiffs’ allegations and the Illinois Tax Code,

which LeVan says confirms the Deputy Assessor position is

one for which political alliance is a valid requirement.

Before we turn to the statutes, it’s important to address the

role that the plaintiffs’ allegations play in our analysis. LeVan

argues that the plaintiffs’ allegations about their job duties

should not be considered because the issue turns on the inher‐

ent powers of an office, not a particular occupant’s functions.

It is true that whether political affiliation is a valid job re‐

quirement depends on the position itself—that is, the functions

that “usually attend” the position—rather than specific acts

performed by a particular position holder. Tomczak, 765 F.2d

at 640–41. This is why statutes, ordinances, regulations, and

reliable job descriptions are the go‐to sources for determining

what the position entails. See Davis, 668 F.3d at 478. But the

plaintiffs’ allegations about the nature of the position may be

relevant, too. If the statutes, ordinances, regulations, and job

description do not provide a clear enough picture of the posi‐

tion, or if the job description provides sufficient detail but is

inaccurate or unreliable, then how the position is treated and

performed on the ground can supply the necessary infor‐

mation about the “normal duties,” Allman, 790 F.3d at 766, or

the functions that “usually attend [the] position,” Tomczak,

765 F.2d at 641. See Allen v. Martin, 460 F.3d 939, 944 (7th Cir.

2006). Stated differently, facts about how the position is car‐

ried out can support inferences about the powers inherent in

the office. Consequently, unless a statute, ordinance, regula‐

tion, or reliable job description confirms that the position falls

within the Elrod‐Branti exception, we take the plaintiffs’

No. 19‐1840 13

plausible allegations to the contrary as true at the pleading

stage. See, e.g., Moss, 473 F.3d at 698–99, 702; Kiddy‐Brown, 408

F.3d at 355–56.

The plaintiffs alleged in their complaint that political affil‐

iation is not an appropriate requirement for the Deputy As‐

sessor position. They elaborated that the Deputy Assessor po‐

sition did not give the plaintiffs any policymaking authority,

and that the Milton Township Assessor’s Office employs

Chief Deputy Assessors, who “advise the Assessor on policy

issues”; fill the Assessor’s role in the Assessor’s absence; and

manage the lower‐level office personnel, including the Dep‐

uty Assessors. The lower‐level Deputy Assessors, the plain‐

tiffs alleged, are not authorized to perform any of these advi‐

sory or managerial functions.

The plaintiffs continued that their positions involved tak‐

ing measurements of property and inputting those measure‐

ments, along with other collected data, into computer pro‐

grams and formulas that were set by statutes, regulations,

state‐issued guidelines, and the County and Township Asses‐

sors. The Deputy Assessors had “no control or discretion”

over the formulas or programs. And the Township Asses‐

sor—not the Deputy Assessors—was empowered to change

an assessment. The Deputy Assessor positions also involved

“other clerical functions.”

The plaintiffs additionally rely on a declaration, attached

to their complaint, by the prior Township Assessor, who

stated that Chief Deputy Assessors, only, were in positions to

advise the Assessor on policymaking issues and to fill the As‐

sessor’s role in his absence. See Williamson v. Curran, 714 F.3d

432, 436 (7th Cir. 2013) (observing that documents attached to

14 No. 19‐1840

the complaint and on which the plaintiff relies to support a

claim may be considered on a motion to dismiss).

Taken alone, the plaintiffs’ allegations portray the Deputy

Assessor position as one that does not involve meaningful in‐

put into government decisionmaking on issues where there is

room for principled disagreement on goals or their imple‐

mentation. The predetermined formulas and computer pro‐

grams that the lower‐level Deputy Assessors apply suggest

that any discretion the position holds “is channeled by pro‐

fessional rather than political norms.” Riley, 425 F.3d at 360.

The alleged office hierarchy also supports an inference

that the lower‐level Deputy Assessor position does not en‐

dow its holders with influence over policy choices or access

to the Township Assessor’s politically sensitive thoughts:

only the Chief Deputy Assessors hold cabinet‐like managerial

and advisory roles; and the lower‐level Deputy Assessor po‐

sition does not carry power to alter an assessment resulting

from the prescribed formulas or programs.

Thus, unless a law makes these allegations implausible,

the plaintiffs have alleged that they held low‐level positions

lacking political discretion and for which political affiliation

is not a valid requirement.

We’ve been alerted to statutes (no ordinances) that ad‐

dress the duties and responsibilities of the Township Assessor

and deputies. The Illinois Tax Code provides that each year

“the assessor, in person or by deputy, shall actually view and

determine as near as practicable the value of each property

listed for taxation … and assess the property at 33 ⅓ % of its

fair cash value, or in accordance with … [certain statutes or

county ordinances].” 35 ILCS 200/9‐155. It also provides that

No. 19‐1840 15

an assessor “may appoint one or more suitable persons as

deputies to assist in making the assessment, and may appoint

other employees required for operation of the office.” 35 ILCS

200/2‐65. Thus, the Township Assessor may carry out the stat‐

utorily imposed assessment duty with the help of appointed

deputy assessors, who may “assist in making the assess‐

ment.” Id. The Code also defines “assessor” as “county, town‐

ship, multi‐township or deputy assessors, all of whom evalu‐

ate and appraise property.” 35 ILCS 200/1‐10. LeVan says

these statutes confirm the plaintiffs’ positions fit the Elrod‐

Branti exception.

We can assume that the Township Assessor position falls

within the Elrod‐Branti exception; the plaintiffs even allege

that LeVan made policy. So, if the statutes expressly con‐

firmed that the Deputy Assessor position had all the same

powers as the Township Assessor, we would have no trouble

concluding that the plaintiffs’ positions also fit within the El‐

rod‐Branti exception. That was the case with the Indiana dep‐

uty county auditor position in Kline v. Hughes, 131 F.3d 708,

710 (7th Cir. 1997) (deputy who was vested with the power by

express statute to perform all duties of the auditor fell within

the Elrod‐Branti exception).

But the Illinois Code does not declare that a deputy asses‐

sor has all the same authorizations and duties as the assessor.

It instead specifies that the assessor may deputize employees

“to assist in making the assessment” of properties—not to

hold all the same power and responsibilities as the assessor or

to take the assessor’s place when the office becomes vacant.

35 ILCS 200/2‐65.6 The Code’s definition of “assessor” as

6 Deputy assessors are authorized to administer oaths. 35 ILCS 200/24‐

30. But we don’t see how power to administer an oath equals meaningful

16 No. 19‐1840

“county, township, multi‐township or deputy assessors” does

not make the Township Assessor position one and the same

as the Deputy Assessor position. 35 ILCS 200/1‐10. It merely

recognizes that when “assessor” appears in the correspond‐

ing statutes, that term may refer to any of the listed positions.

This leaves us with the following critical question: Do

Deputy Assessors have inherent authority to provide mean‐

ingful input into decisions on issues where there is room for

principled disagreement on goals or their implementation be‐

cause the Illinois Code permits deputies to help the Township

Assessor make an assessment?

The statutes do not confirm an affirmative answer, as they

do not establish the extent to which political discretion plays

a part in the Deputy Assessor’s role in “actually view[ing] and

determin[ing] as near as practicable the value of each prop‐

erty listed for taxation … and assess[ing] the property at

33 ⅓ % of its fair cash value, or in accordance with [certain

statutes or ordinances].” 35 ILCS 200/9‐155. The Code defines

“33 ⅓ %”7 and “fair cash value.”8 And other statutes, ordi‐

nances, or “general rules” prescribed by the Department of

influence in policy decisions or access to politically sensitive deliberations;

the power to administer an oath is not power to make hiring‐and‐firing or

other placement decisions.

7“One‐third of the fair cash value of property, as determined by the

[State Revenue] Department’s sales ratio studies for the 3 most recent

years preceding the assessment year, adjusted to take into account any

changes in assessment levels implemented since the data for the studies

were collected.” 35 ILCS 200/1‐55.

8“The amount for which a property can be sold in the due course of

business and trade, not under duress, between a willing buyer and a will‐

ing seller.” 35 ILCS 200/1‐50.

No. 19‐1840 17

Revenue may leave the assessment task devoid of any policy‐

making discretion, even if it requires some professional dis‐

cretion. See 35 ILCS 200/8‐5(3); see generally People ex rel. Cut‐

more v. Harding, 164 N.E. 827, 829 (Ill. 1929) (holding that

county deputy assessor was not entitled to the higher com‐

pensation authorized for a clerk, and noting that the deputy’s

role in determining property value includes some form of

“discretion,” without identifying that discretion as political or

professional).

It may also be that any policy discretion and confidential

deliberation that is left for the Assessor’s Office is done by the

Township Assessor and the Chief Deputy Assessors who act

as advisors or “formulate[] plans for the implementation of

broad goals,” Elrod, 427 U.S. at 368. Those policies may then

be inflexibly executed by the lower‐level Deputy Assessors

when they “assist in making the assessment.” 35 ILCS 200/2‐

65. In other words, the Deputy Assessor’s role in performing

assessments may involve only professional discretion and

mechanical application of formulas set by legislators, regula‐

tors, the Township Assessor, and the cabinet‐like advisors

who occupy the Chief Deputy Assessor position. Finally, alt‐

hough the assessment produced by a deputy may be deemed

the Township Assessor’s own, that does not determine

whether the deputy exercises political discretion in perform‐

ing the assessment.

So, no statutes or ordinances confirm whether the Deputy

Assessor position involves policymaking input or access to

the assessor’s politically sensitive or confidential thoughts.

And at this point, we have no job description, much less a re‐

liable one. Thus, the plaintiffs’ allegations about the Deputy

Assessor position characteristics—specifically, that the

18 No. 19‐1840

position lacks policymaking authority and access—are plau‐

sible. The plaintiffs also adequately alleged that LeVan dis‐

missed the Deputy Assessors on political‐patronage grounds,

so the plaintiffs stated a claim of violated First Amendment

rights under Elrod and Branti.

2. Clear Establishment of the Right

Having concluded that the plaintiffs adequately pled a vi‐

olation of a right, we move to the question whether the con‐

tours of the allegedly violated right were, at the time LeVan

dismissed the plaintiffs, “sufficiently clear that every reason‐

able official would have understood that what he is doing vi‐

olates that right.” Kemp v. Liebel, 877 F.3d 346, 351 (7th Cir.

2017) (quoting Gustafson v. Adkins, 803 F.3d 883, 891 (7th Cir.

2015)).

Critically, we approach this question by taking the plain‐

tiffs’ well‐pleaded allegations as true. We assume at this

12(b)(6) stage that the plaintiffs occupied positions lacking au‐

thority to have meaningful input into policy decisions and to

access politically sensitive or confidential deliberations. We

also take as given that the employees were fired based on

their political affiliation. See Moss, 473 F.3d at 702; Kiddy‐

Brown, 408 F.3d at 356. Consequently, the more specific ques‐

tion we face is this: When LeVan fired the plaintiffs, would

every reasonable state actor in his shoes have understood that

dismissing an employee from a position lacking meaningful

input into political decisionmaking violates the employee’s

First Amendment rights?

LeVan says this question assumes too much, arguing that

the nature of the Deputy Assessor position—that is, whether

No. 19‐1840 19

it falls inside or outside the Elrod‐Branti exception—was not

beyond debate.

But because we are at the 12(b)(6) stage, the plaintiffs re‐

ceive the benefit of all plausible allegations and reasonable in‐

ferences being treated as true. This makes the set of contextual

facts that are assumed for purposes of this qualified‐immun‐

ity inquiry broad: the assumed context includes that the Dep‐

uty Assessor position is not a cabinet‐like role but rather a

lower‐level position involving no political discretion in per‐

forming assessments (that is, collecting data and plugging it

into prescribed formulas and computer programs). Faced

with this set of circumstances, a reasonable officer in LeVan’s

position would have known that firing the non‐policymaking

employees on political‐patronage grounds violates their First

Amendments rights.

As we mentioned earlier, qualified immunity warrants

dismissal at the 12(b)(6) stage only when “the plaintiff asserts

the violation of a broad constitutional right that had not been

articulated at the time the violation is alleged to have oc‐

curred.” Jacobs, 215 F.3d at 765 n.3. The right that the plaintiffs

allege LeVan violated has long been established in our circuit.

We observed in Kiddy‐Brown that “by 2003, it was well‐estab‐

lished that the First Amendment prohibits a state official from

dismissing, on political grounds, an employee who was not

charged with policymaking duties.” Kiddy‐Brown, 408 F.3d at

357. And we reiterated this conclusion again in Moss, in 2007.

See 473 F.3d at 702; see also Allman, 790 F.3d at 767 (observing

that our cases had clearly established that a person who has

limited operational discretion but no significant policymak‐

ing discretion cannot be fired on political grounds). That right

did not become unclear between those decisions and the

20 No. 19‐1840

plaintiffs’ dismissals in 2014, so our precedent “placed the

statutory or constitutional question beyond debate.” Gus‐

tafson, 803 F.3d at 891 (quoting Rabin v. Flynn, 725 F.3d 628,

632 (7th Cir. 2013)).

LeVan’s disagreement with the assumed context here il‐

lustrates the mismatch between the 12(b)(6) plausibility

standard and the often fact‐intensive nature of qualified‐im‐

munity inquiries. See supra, at n.2; Reed, 906 F.3d at 548–49;

Jacobs, 215 F.3d at 765 n.3. But that incongruity does not justify

heightening the pleading standard, which imposes on the

plaintiffs no obligation to initially “anticipate and overcome a

defense of qualified immunity” in their complaint. Jacobs, 215

F.3d at 765 n.3. See generally Leatherman, 507 U.S. at 168 (no

particularity requirement or heightened standard for claims

under § 1983); Gomez v. Toledo, 446 U.S. 635, 640 (1980)

(“[T]wo—and only two—allegations are required in order to

state a cause of action under [§ 1983]. First, the plaintiff must

allege that some person has deprived him of a federal right.

Second, he must allege that the person who has deprived him

of that right acted under color of state or territorial law.”).

The plausibility standard, which leads us to take as given

the plaintiffs’ allegations about the nature of their positions,

is why “a complaint is generally not dismissed under Rule

12(b)(6) on qualified immunity grounds.” Alvarado, 267 F.3d

at 651. And it is why the plaintiffs’ First Amendment claims

should not be dismissed on qualified‐immunity grounds

here.

We are not persuaded by LeVan’s additional argument for

why the constitutional question—whether dismissing the

Deputy Assessors on political‐patronage grounds violated

their First Amendment rights—was not beyond debate. He

No. 19‐1840 21

points out that the district judge originally assigned to this

case, Judge Samuel Der‐Yeghiayan, concluded that the posi‐

tion fell within the Elrod‐Branti exception as a matter of law,

and when the case was reassigned to Judge Robert Dow upon

Judge Der‐Yeghiayan’s retirement, Judge Dow decided other‐

wise on reconsideration.

LeVan is correct that political‐patronage dismissals over‐

all comprise a “somewhat murky area of the law,” Moss v.

Martin, 614 F.3d 707, 712 (7th Cir. 2010), and that the “clearly

established” inquiry “must be undertaken in light of the spe‐

cific context of the case, not as a broad general proposition.”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001), receded from on different point by

Pearson, 555 U.S. at 236).

But LeVan did not face “an undeveloped state of the law”

regarding political‐patronage dismissals. Wilson v. Layne, 526

U.S. 603, 617 (1999). Nor did he align his conduct with court

holdings that the Milton Township Deputy Assessor position

falls within the Elrod‐Branti exception. Cf. Pearson, 555 U.S. at

244–45 (officers reasonably believed their conduct was lawful

when a doctrine under which their conduct would be lawful

had been accepted by the two State Supreme Courts and all

three Federal Courts of Appeals that considered it, with no

court of appeals having issued a contrary decision). No case

“directly on point” was required for the relevant right to have

been clearly established. Kiddy‐Brown, 408 F.3d at 356 (quot‐

ing Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996)).

The context LeVan faced was whether to fire, on political‐

patronage grounds, low‐level employees (as opposed to cab‐

inet‐level advisors) who performed clerical and professional

work involving no political discretion. And when LeVan

22 No. 19‐1840

dismissed the plaintiffs, the law was clear that a position lack‐

ing the features of a policymaking role—such as significant

political discretion or cabinet‐level advisory functions—falls

under the Elrod‐Branti rule, not the exception. See Allman, 790

F.3d at 767; Moss, 473 F.3d at 702; Kiddy‐Brown, 408 F.3d at

356–57.

We thus think it “sufficiently clear” that—taking as given

the plaintiffs’ well‐pleaded allegations that the positions oc‐

cupied a low rung of the bureaucratic latter and lacked poli‐

cymaking authority—every reasonable official would have

understood that firing the plaintiffs because of their political

affiliation violates their First Amendment rights. Kemp, 877

F.3d at 351 (quoting Gustafson, 803 F.3d at 891).

To be clear, LeVan may be entitled to qualified immunity

on a motion for summary judgment, at which time the plain‐

tiffs’ well‐pleaded allegations are not taken as true. But that is

a matter different from the one before us now. See Behrens, 516

U.S. at 308.

III. CONCLUSION

Because we have jurisdiction to review the district court’s

qualified‐immunity decision, and because the court correctly

concluded that LeVan is not entitled to qualified immunity at

this stage in the litigation, we AFFIRM.