Del Marcelle v. Brown County Corp.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3426

L EWIS D. D EL M ARCELLE,

Plaintiff-Appellant,

v.

B ROWN C OUNTY C ORP., et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-C-785—William C. Griesbach, Judge.

S UBMITTED M ARCH 8, 2011—

A RGUED E N B ANC S EPTEMBER 23, 2011—D ECIDED M AY 17, 2012

Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,

K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES, T INDER, and

H AMILTON, Circuit Judges.

P ER C URIAM . Five judges have voted to affirm the

district court’s judgment and five to remand for further

proceedings. The result of this tie vote is affirmance,

because it takes a majority to reverse a judgment.

2 No. 10-3426

Although it is customary not to issue opinions when

an appellate court affirms on a tie vote, there are

occasional departures. See, e.g., School District of the City

of Pontiac v. Secretary of Education, 584 F.3d 253 (6th Cir.

2009) (en banc); United States v. McFarland, 311 F.3d

376, 417-20 and n. 1 (5th Cir. 2002) (en banc) (dissenting

opinion, collecting cases); United States v. Walton, 207

F.3d 694 (4th Cir. 2000) (en banc); United States v. Klubock,

832 F.2d 664 (1st Cir. 1987) (en banc); see also Standard

Industries, Inc. v. Tigrett Industries, Inc., 397 U.S. 586 (1970)

(dissenting opinion); Biggers v. Tennessee, 390 U.S. 404,

404 n. 1 (1968) (dissenting opinion, collecting cases). A

majority of the judges of the court have concluded that

this is an appropriate occasion for such a departure.

The law concerning “class of one” equal-protection

claims is in flux, and other courts faced with these

cases may find the discussion in the three opinions in

this case helpful.

Judge Posner’s lead opinion is joined by Judges

Kanne, Sykes, and Tinder. Chief Judge Easterbrook

has written an opinion concurring in the judg-

ment. Judge Wood’s dissenting opinion is joined by

Judges Flaum, Rovner, Williams, and Hamilton.

The judgment is affirmed by an equally divided court.

No. 10-3426 3

P OSNER, Circuit Judge, with whom K ANNE, SYKES,

and T INDER, Circuit Judges, join. The plaintiff brought

this federal civil rights suit against law enforcement

officers in a Wisconsin county (and against the county

itself), charging that they had denied him equal protec-

tion of the laws. They had done this, the complaint

alleges, by failing to respond to his complaints about

gangs that were harassing him and his wife and had

eventually forced them to sell their house in the Village

of Denmark and move to another village in the county,

with the gangs in hot pursuit. The district court, inter-

preting the pro se complaint as simply a complaint about

inadequate police protection, dismissed the suit for

failure to state a claim, correctly ruling that states are

not required by the Fourteenth Amendment to pro-

vide adequate police protection against private violence.

DeShaney v. Winnebago County Dep’t of Social Services,

489 U.S. 189, 197 (1989); Hilton v. City of Wheeling,

209 F.3d 1005, 1007 (7th Cir. 2000); Schroder v. City of

Fort Thomas, 412 F.3d 724, 725-26 (6th Cir. 2005).

The plaintiff appealed, and the appeal was submitted

to a three-judge panel in March 2011. The panel noted

that the complaint could be interpreted as charging the

defendants with arbitrarily providing less police protec-

tion to the plaintiff and his wife than the police provide

to other residents of Brown County. See Geinosky v.

City of Chicago, 675 F.3d 743 (7th Cir. 2012). The plain-

tiff’s invocation of the equal protection clause of

the Fourteenth Amendment supported that character-

ization, and so interpreted the suit presented a “class of

4 No. 10-3426

one” discrimination claim, as distinct from a claim of

discrimination based on a plaintiff’s membership in a

particular group, such as a racial or religious minority.

However, although detailed, the complaint did not

allege that the defendants’ failure to protect the

plaintiff from harassment by gangs had been the result

of their harboring some personal animosity toward the

plaintiff or his wife, and the panel concluded that

without such an allegation the plaintiff’s equal protec-

tion claim failed.

In advance of publication, the panel circulated its

proposed opinion affirming the dismissal of the suit to

the full court under Circuit Rule 40(e), because the

opinion proposed a new approach to the standard of

liability in class-of-one discrimination cases. The full

court decided on April 12 of last year to hear the case

en banc, and so the panel opinion was not published

and instead the appeal was reargued before the full

court. The plaintiff had litigated pro se, but upon

deciding to hear the case en banc the court requested

Thomas L. Shriner, Jr., of the law firm of Foley & Lardner

LLP, to represent the plaintiff. We thank Mr. Shriner,

his colleague Kellen C. Kasper, and the firm for their

excellent representation of the plaintiff.

In deciding to hear the case en banc, the court had hoped

that the judges might be able to agree on an improved

standard for this difficult class of cases. We have not

been able to agree. The court has split three ways, but

by a tie vote has affirmed the dismissal of the suit.

This opinion, expressing the views of four judges,

proposes a simple standard: that the plaintiff be re-

No. 10-3426 5

quired to show that he was the victim of discrimination

intentionally visited on him by state actors who knew or

should have known that they had no justification, based on

their public duties, for singling him out for unfavorable treat-

ment—who acted in other words for personal reasons, with

discriminatory intent and effect. The plaintiff’s complaint,

although detailed, does not allege that the defendants

failed to protect him from harassment because they

wanted to single him out for unfavorable treatment

and had no justification, such as limited resources, for

their failure to protect him. For this reason, the suit is

rightly being dismissed.

We believe that class-of-one suits should not be per-

mitted against police officers or police departments,

complaining about failure to investigate a complaint

or otherwise provide police protection to a particular

individual, unless the police, acting from personal

motives, with no justification based on their public

duties, intend to disfavor the plaintiff. Such suits, unless

exceptional in the way just indicated, are neither

necessary to prevent serious injustices nor manageable;

they are not compelled by the equal protection clause

or the case law interpreting it; they fill no yawning gap

in the legal protection of Americans. This case and

cases like it are remote from the original target of the

equal protection clause—law enforcers who systemati-

cally withdraw protection from a group against which

they are prejudiced. The unwillingness of the law enforce-

ment authorities in southern states to protect the newly

freed blacks from white vigilante groups such as the

Ku Klux Klan was an important motive for the enact-

6 No. 10-3426

ment of the equal protection clause. Slaughter-House

Cases, 83 U.S. (16 Wall.) 36, 70-71 (1872); Hilton v. City

of Wheeling, supra, 209 F.3d at 1007; David P. Currie,

The Constitution in the Supreme Court: The First Hundred

Years 349 (1985).

The history of class-of-one litigation can be said to

have begun with our decision in Olech v. Village of

Willowbrook, 160 F.3d 386 (7th Cir. 1998), though there

were earlier cases in our court and in other courts as

well. See id. at 387. The reason for making Olech the

starting point of our narrative is what the Supreme

Court did with it.

The Olechs wanted the Village to connect their home

to the municipal water system. The Village agreed,

but only on condition that the Olechs grant it not the

customary 15-foot-wide easement to enable the Village

to service the water main but a 33-foot-wide easement

to enable the Village to widen the road on which the

Olechs lived. They rejected the condition, and after

several months of disputation the Village relented, ad-

mitted that it had had no good reason to demand the

wider easement, and agreed to hook up the Olechs’ home

to the water main in exchange for the standard 15-foot

easement. The Olechs sued for the damages they’d sus-

tained by being without water during the period in

which the Village was demanding the larger easement.

They claimed that the Village had had no justifica-

tion for treating them differently from other property

owners—it had done so to punish them for having suc-

cessfully sued it for negligently installing culverts

near their property.

No. 10-3426 7

The district court dismissed the Olechs’ suit for failure

to state a claim. We reversed. Though “troubled . . . by the

prospect of turning every squabble over municipal

services . . . into a federal constitutional case,” we were

comforted by the thought that “the ‘vindictive action’

class of equal protection cases requires proof that the

cause of the differential treatment of which the plain-

tiff complains was a totally illegitimate animus toward

the plaintiff by the defendant.” Id. at 388.

The Supreme Court affirmed our decision in a brief

per curiam opinion, Village of Willowbrook v. Olech, 528

U.S. 562 (2000), but without making clear what role if any

motive should play in such cases. It emphasized the

allegations “that the Village’s demand was ‘irrational

and wholly arbitrary’ and that the Village ultimately

connected [the Olechs’] property [to the water system]

after receiving a clearly adequate 15-foot easement,”

and said that “these allegations, quite apart from the

Village’s subjective motivations, are sufficient to state

a claim for relief under traditional equal protection analy-

sis. We therefore affirm the judgment of the Court

of Appeals, but do not reach the alternative theory

of ‘subjective ill will’ relied on by that court.” Id. at 565.

One hears frequent laments that modern Supreme

Court opinions are too long, but the opinion in Olech is

too short. It leaves the key words “irrational” and

“wholly arbitrary” undefined in the class-of-one con-

text. “[T]raditional equal protection analysis” is situation

specific: industry groups complaining about discrimina-

tory regulations do not receive the same consideration

8 No. 10-3426

in equal protection case law as blacks or women com-

plaining about racial or sexual discrimination. Women

for that matter don’t receive as much consideration

as blacks; and hippies, the elderly, and the mentally

impaired don’t receive as much consideration as women

or blacks. See Railway Express Agency, Inc. v. New York,

336 U.S. 106, 109-10 (1949); United States Dep’t of Agri-

culture v. Moreno, 413 U.S. 528, 534 (1973); Massachusetts

Board of Retirement v. Murgia, 427 U.S. 307, 312-14

(1976) (per curiam); City of Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 432, 440-43 (1985); Clark v. Jeter,

486 U.S. 456, 461 (1988); Grutter v. Bollinger, 539 U.S. 306,

326-27 (2003). Class-of-one discrimination might well

be thought also to require a different level of considera-

tion from other forms of discrimination challenged

under the equal protection clause, as the Court was later

to realize. Justice Breyer, concurring in the judgment

but not in the majority opinion in Olech, said that the

presence of subjective ill will was “sufficient to minimize

any concern about transforming run-of-the-mill zoning

cases into cases of constitutional right.” 528 U.S. at 566.

The majority ignored his concurrence.

We have difficulty understanding why—since the issue

in Olech was simply whether class-of-one equal protec-

tion claims are permissible—the Court took the occasion

to reject, or at least appear to reject, the limiting

principle that we had suggested and Justice Breyer had

endorsed. The Court need not have endorsed it—it need

only have confined the immediate decision to cases in

which ill will was shown; if later a case arose in

which a compelling equal protection argument was made

No. 10-3426 9

despite the absence of a bad motive, the Court could have

allowed the case to proceed without contradicting any-

thing in its opinion in Olech. Making the presence of ill

will a factor in the conclusion that the Olechs had stated

a claim would have launched modern class-of-one

equal protection litigation on calmer waters.

Like Justice Breyer, lower-court judges did not

believe that class-of-one litigation could be kept

from exploding without some limiting principles, but

they (we) couldn’t and still can’t agree on what those

principles should be. Eight years ago a concurring

opinion in Bell v. Duperrault, 367 F.3d 703, 709-13 (7th

Cir. 2004), noted the lack of clarity concerning the

standard for deciding such cases, echoing scholarly

commentary: Robert C. Farrell, “Classes, Persons, Equal

Protection, and Village of Willowbrook v. Olech,” 78 Wash. L.

Rev. 367, 400-25 (2003); J. Michael McGuinness, “The

Impact of Village of Willowbrook v. Olech on Disparate

Treatment Claims,” 17 Touro L. Rev. 595, 603-06 (2001);

Shaun M. Gehan, Comment, “With Malice Toward

One: Malice and the Substantive Law in ‘Class of One’

Equal Protection Claims in the Wake of Village of

Willowbrook v. Olech,” 54 Me. L. Rev. 329, 379-80 (2002).

And since then scholarly complaint about the lack of

clarity in class-of-one case law has mushroomed. See H.

Jefferson Powell, “Reasoning About the Irrational: The

Roberts Court and the Future of Constitutional Law,” 86

Wash. L. Rev. 217, 261-76 (2011); Benjamin L. Schuster,

“Fighting Disparate Treatment: Using the ‘Class of One’

Equal Protection Doctrine in Eminent Domain Settlement

Negotiations,” 45 Real Property, Trust & Estate L.J. 369, 391-

10 No. 10-3426

94 (2010); Robert C. Farrell, “The Equal Protection Class

of One Claim: Olech, Engquist, and the Supreme Court’s

Misadventure,” 61 S.C. L. Rev. 107, 121-25 (2009); Kerstin

Miller, Note, “Engquist v. Oregon Department of Agriculture:

No Harm Meant? The Vanquished Requirement of Ill-Will

in Class-Of-One Equal Protection Claims and the Erosion

of Public Employees’ Constitutional Rights,” 68 Md. L. Rev

915, 935-36 (2009); Matthew M. Morrison, Comment,

“Class Dismissed: Equal Protection, the ‘Class-of-One,’

and Employment Discrimination After Engquist v. Oregon

Department of Agriculture,” 80 U. Colo. L. Rev. 839, 854-56

(2009); William D. Araiza, “Irrationality and Animus in

Class-of-One Equal Protection Cases,” 34 Ecology L.Q. 493,

498-500 (2007); Robert J. Krotoszynski, Jr., “Taming the

Tail that Wags the Dog: Ex Post and Ex Ante Con-

straints on Informal Adjudication,” 56 Admin. L. Rev.

1057, 1068 n. 50 (2004).

In Hilton v. City of Wheeling, supra, we took a stab at

formulating a standard that we hoped would be both

consistent with Olech and operable: “to make out a

prima facie case the plaintiff must 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 defendant’s

position.” 209 F.3d at 1008. Hostility to the plaintiff

(“animus”), the motive emphasized in our Olech opinion

and in Justice Breyer’s concurrence in the Supreme

Court, was only one of the “reasons of a personal nature

unrelated to the duties of the defendant’s position” that

we thought should be actionable in class-of-one litiga-

tion. Others included larceny, as in Forseth v. Village of

No. 10-3426 11

Sussex, 199 F.3d 363, 371 (7th Cir. 2000), and a desire to

find a scapegoat in order to avoid adverse publicity and

the threat of a lawsuit, as in Ciechon v. City of Chicago, 686

F.2d 511, 524 (7th Cir. 1982). These were wrongful

acts, though not motivated by personal hostility to the

victims, as in Olech.

We have applied the approach of Hilton in a number

of cases: Crowley v. McKinney, 400 F.3d 965, 972 (7th Cir.

2005); Fenje v. Feld, 398 F.3d 620, 628 (7th Cir. 2005);

Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d

1124, 1127 (7th Cir. 2004); Indiana Land Co., LLC v. City of

Greenwood, 378 F.3d 705, 712-13 (7th Cir. 2004); Discovery

House, Inc. v. Consolidated City of Indianapolis, 319 F.3d

277, 283 (7th Cir. 2003); Purze v. Village of Winthrop Harbor,

286 F.3d 452, 455 (7th Cir. 2002); Cruz v. Town of Cicero,

275 F.3d 579, 587 (7th Cir. 2001). The approach we

suggest in this opinion is a variant of it.

The picture in other circuits (in ours too, alas, continuing

to this day) is very mixed, though there is considerable

support for Hilton’s approach. See SBT Holdings, LLC v.

Town of Westminster, 547 F.3d 28, 34 (1st Cir. 2008); Lazy Y

Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008)

(“the defendants simply harbor animus against her in

particular and therefore treated her arbitrarily” (emphasis

in original)); Lindquist v. City of Pasadena, 525 F.3d 383,

387 n. 2 (5th Cir. 2008); Mimics, Inc. v. Village of Angel

Fire, 394 F.3d 836, 849 (10th Cir. 2005); Jennings v. City of

Stillwater, 383 F.3d 1199, 1211-12 (10th Cir. 2004); Williams

v. Pryor, 240 F.3d 944, 951 (11th Cir. 2001); Shipp v.

McMahon, 234 F.3d 907, 916-17 (5th Cir. 2000), overruled

12 No. 10-3426

on other grounds by McClendon v. City of Columbia, 305

F.3d 314, 329 (5th Cir. 2002) (en banc) (per curiam); Bryan

v. City of Madison, 213 F.3d 267, 276-77 and n. 17 (5th

Cir. 2000). Some of our own cases, however, while ac-

cepting Hilton’s approach, leave open the possibility

that a more liberal approach—one that would require

a showing merely that the defendant had acted without

a reasonable basis—might also be appropriate. See Hanes

v. Zurick, 578 F.3d 491, 494 (7th Cir. 2009); United States

v. Moore, 543 F.3d 891, 898-99 (7th Cir. 2008), and cases

cited there.

Some cases in other circuits deem it an open question

after Olech whether animus or, more broadly, improper

personal motivations are required in a class-of-one case.

See Cordi-Allen v. Conlon, 494 F.3d 245, 250 n. 3 (1st Cir.

2007); Jicarilla Apache Nation v. Rio Arriba County, 440

F.3d 1202, 1210 (10th Cir. 2006); Hayut v. State Uni-

versity of New York, 352 F.3d 733, 754 n. 15 (2d Cir. 2003);

DeMuria v. Hawkes, 328 F.3d 704, 707 n. 2 (2d Cir. 2003);

Giordano v. City of New York, 274 F.3d 740, 743 (2d Cir.

2001). Other cases hold that such motivations aren’t

required: Gerhart v. Lake County, 637 F.3d 1013, 1022 (9th

Cir. 2011); Phillips v. County of Allegheny, 515 F.3d 224,

243 (3d Cir. 2008); Stotter v. University of Texas, 508 F.3d

812, 824 n. 3 (5th Cir. 2007); Scarbrough v. Morgan County

Board of Education, 470 F.3d 250, 261 (6th Cir. 2006);

TriHealth, Inc. v. Board of Commissioners, 430 F.3d 783,

788 (6th Cir. 2005); Boone v. Spurgess, 385 F.3d 923, 932 (6th

Cir. 2004); Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004). And

still others merely intone the formula recited by the

No. 10-3426 13

Supreme Court in Olech: Analytical Diagnostic Labs, Inc.

v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010); Renchenski v.

Williams, 622 F.3d 315, 337-38 (3d Cir. 2010); Grider v.

City of Auburn, 618 F.3d 1240, 1263-64 (11th Cir. 2010);

Association of Cleveland Fire Fighters v. City of Cleveland,

502 F.3d 545, 549 (6th. Cir. 2007); Griffin Industries, Inc. v.

Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007); Barstad v. Murray,

420 F.3d 880, 884 (8th Cir. 2005); Tri-County Paving, Inc.

v. Ashe County, 281 F.3d 430, 439 (4th Cir. 2002); Costello

v. Mitchell Public School Dist. 79, 266 F.3d 916, 921 (8th

Cir. 2001).

Judge Wood has made a commendable effort to harmo-

nize the diverse strains of class-of-one jurisprudence.

The key passage in her dissenting opinion is the follow-

ing. We italicize the words and phrases in the opinion

that persuade us that the effort at harmonization falls

short:

a putative class-of-one complainant faces a much

higher burden to show that the exercise of that

discretion was irrational. This, we believe, is what

our court and others have been driving at ever

since Olech and Engquist in the suggestions that

animus, or malice, or lack of any possible legitimate

state purpose, plays a part in class-of-one cases.

Those motive elements are not always necessary, as

Olech illustrates, and indeed, it is not clear to us

that Judge Posner’s separate opinion even takes

that position. Nor should animus (or something

similar) be seen as an alternative to a showing

of irrationality. Instead, in the cases that do not rest

on the state’s failure to follow a clear standard, the

14 No. 10-3426

plaintiff has the burden of showing in the com-

plaint some plausible reason to think that inten-

tional and irrational discrimination has occurred.

Pleading animus or improper purpose will often be

an effective way to accomplish that goal.

So the police must be “irrational,” and the harm they

cause the plaintiff must be “intentional,” actuated by

“animus,” or by “malice” (which need not mean the

same thing as “animus”), or must “lack . . . any possible

legitimate state purpose” (but how does that differ

from being “irrational,” and in what sense is it a “motive

element”?), and amount to “irrational discrimination.”

Judge Wood and the judges who have joined her

opinion are aware that so loose a standard could invite

a flood of cases, because the opinion imposes a high

burden of proof on plaintiffs (though not on this plain-

tiff) and requires that the complaint itself “show . . . some

plausible reason to think that intentional, irrational

discrimination has occurred.” But an open-ended list

of factors for judges and jurors to mull over, a pile-up

of adjectives, an invitation to consider unnamed fur-

ther possibilities for establishing liability, and on top of

all this a pleading requirement that may go beyond

Iqbal yet is not applied to this case—so ad hoc an

approach leaves the law of class-of-one discrimination

in the confusion in which we found it when we agreed

to hear the case en banc.

We need to simplify and we could do so by holding

that a state actor commits class-of-one discrimination

No. 10-3426 15

only when he intends to discriminate in the sense of

intending to treat a person differently from other persons

for reasons of a personal character, that is, reasons not

grounded in his public duties. Olech was such a case.

The Village was charged with having discriminated

against the Olechs in violation of its own regulation in

order to punish them for having sued it and won. The

discrimination not only had no justification; it had been

motivated by a desire for vengeance, which was no part

of the Village officials’ public duty, as they well knew. In

this case, in contrast, a plaintiff complains about govern-

mental conduct that is unavoidably highly discretionary,

and to a degree almost random, as is commonplace at the

lower rungs of law enforcement. Suppose a police car is

lurking on the shoulder of a highway in a 45 m.p.h. zone,

a car streaks by at 65 m.p.h., and the police do nothing.

Two minutes later a car streaks by at 60 m.p.h. and the

police give that driver a ticket. Can the second driver

complain of a denial of equal protection if the police

cannot come up with a rational explanation for why they

ticketed him even though he wasn’t driving as fast as

the first driver? If so, the courts will be swamped with

class-of-one cases remote from the aims of the equal

protection clause and unmanageable as a matter of

judicial administration. Or suppose that an asylum

officer, after interviewing an applicant for asylum, rec-

ommends that the applicant be turned down, while

another asylum officer, in (as he knows) a rationally

indistinguishable case, recommends that “his” applicant

be granted asylum. Like situations are thus being treated

differently; that is what unequal treatment, often called

by lawyers and judges “irrational,” means. Both asylum

16 No. 10-3426

officers are doing their duty, though the result is an

irrational difference in treatment. Neither is guilty of

discrimination.

We can learn from Hilton’s facts. For seven years Hilton

and his neighbors in an apartment complex had been

locked in a feud that began when neighbors saw him

beating his Rottweiler puppy. He was cited for cruelty

to animals and fined $500. Since that initial contretemps

with his neighbors he had been cited or arrested some

fifteen times on neighbors’ complaints for such trans-

gressions as disorderly conduct, battery, and violating

noise ordinances. His suit charged that the police had

not been evenhanded in arbitrating, as it were, his feud

with his neighbors. He had complained to the police

many times. They had responded to all the complaints

but had acted on only one. That was when he com-

plained that a neighbor’s dog was barking loudly—and

the police cited Hilton for disorderly conduct as well

as the neighbor. The police had, in short, he claimed,

enforced the law one-sidedly. And likewise in the

present case: law enforcement authorities are accused

of having refused to take seriously a complaint of gang

violence in the form of “loud illegal car & motorcycle

mufflers,” and a police lieutenant is alleged to have

told the plaintiff that he would “take no action on

your complaint because you are crazy.”

The challenge is to find amidst the welter of trivial

“irrationalities” in discretionary actions by frontline

public employees acts of discrimination of a character

to warrant classification as denials of equal protection.

No. 10-3426 17

A state trooper notices two cars being driven above

the speed limit. One is a beautiful red convert-

ible—an Aston Martin DBS Volante. The other, which is

not speeding quite so fast, is a Toyota Prius. The trooper

has never seen such a beautiful car as the Aston Martin (it

should be beautiful—the sticker price is $290,861), so he

signals the driver to pull over so that he can get a better

look at the car, and, awed, lets the driver continue on

his way without giving him a ticket. Later the trooper

catches up with the driver of the Prius and, unimpressed,

tickets him. The trooper’s behavior is not admirable, but

it is not unrelated to his public duties; the Prius was

speeding, albeit not so fast as the Aston Martin, and

the trooper was therefore acting in accordance with

his duties in ticketing the Prius’s driver.

Or suppose a state trooper decides to economize on

having to think by ticketing only speeders in blue cars.

He is not vindictive; he has nothing against people

who drive blue cars; he doesn’t want to harm anyone;

he’s not going to issue more tickets; all his victims

are guilty; none is a victim of unjustifiable harm; the

trooper has just decided to rest his brain. His motive

is irresponsible—when drivers get wind of it, those who

don’t drive blue cars will speed more. So should an

enterprising lawyer be encouraged to file a class action

suit on behalf of drivers of blue cars who have been

ticketed by this officer? (It would be a class-of-one

suit even though there was more than one claimant; “class

of one” refers not to the number of plaintiffs but to the

fact that the plaintiff or plaintiffs is not suing as a

member of an identifiable group, such as a race or a

18 No. 10-3426

gender, or for that matter an industry. Engquist v. Oregon

Dep’t of Agriculture, 553 U.S. 591, 601 (2008).) If a driver

complains to the police commissioner about the state

trooper, and the commissioner says he can’t be

bothered with the matter, is the commissioner guilty of

a violation of equal protection because he has exhibited

reckless indifference to his subordinate’s conduct? Or

the municipality that employs the commissioner and

has authorized him to decide such matters?

Random can be rational: a random audit by the

Internal Revenue Service should not be thought “arbi-

trary” in a pejorative sense, though it is arbitrary in the

sense that identically situated taxpayers who are not

audited are being treated differently (ex post, not ex ante)

from those who are. Randomization can be a proper and

indeed indispensable tool of government, given limited

governmental resources, as the dissenting opinion recog-

nizes. (It can also be monstrous, as in decimation—the

practice of killing every tenth soldier in a mutinous unit.)

The examples we have given involve police behavior

that while not vicious, not malicious, is not random,

being instead actuated by personal motives that should

not influence the performance of public duties. Yet it

would be silly to make constitutional cases out of them,

for remember that everyone ticketed in the examples

deserved to be ticketed.

But “silliness” is not an operable standard; and while

the courts generally agree that only egregious class-of-one

cases should be actionable in the name of the Constitu-

tion, egregiousness is not an operable standard either

No. 10-3426 19

but instead is a version of “I know it when I see it.”

Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (con-

curring opinion). The principle de minimis non curat lex is

applicable to constitutional cases, Commodity Futures

Trading Commission v. Schor, 478 U.S. 833, 856 (1986)

(separation of powers); United States v. Jacobsen, 466 U.S.

109, 125 (1984) (Fourth Amendment); Ingraham v. Wright,

430 U.S. 651, 674 (1977) (procedural due process); Bart v.

Telford, 677 F.2d 622, 625 (7th Cir. 1982) (freedom

of speech), and could be used as a limiting principle,

maybe in the speeding-ticket cases, though not in the

present case, in which the plaintiff claims to have

been driven out of town by the refusal of the police

to respond to his complaint.

One is tempted to throw up one’s hands and banish

challenges to police responses to complaints, and to

other police investigatory decisions, from the class-of-one

domain altogether, on the analogy of the Supreme Court’s

decision in Engquist v. Oregon Dep’t of Agriculture, supra.

The specific question in Engquist was whether public

employees should be allowed to bring class-of-one

suits against their employers; the Court held they

could not. The Court went out of its way to discuss

other situations in which low-level officials make discre-

tionary rather than rule-based decisions:

Recognition of the class-of-one theory of equal

protection on the facts in Olech was not so much

a departure from the principle that the Equal

Protection Clause is concerned with arbitrary

government classification, as it was an applica-

20 No. 10-3426

tion of that principle. That case involved the gov-

ernment’s regulation of property. Similarly,

the cases upon which the Court in Olech relied

concerned property assessment and taxation

schemes. We expect such legislative or regulatory

classifications to apply “without respect to per-

sons,” to borrow a phrase from the judicial oath….

What seems to have been significant in Olech

and the cases on which it relied was the existence

of a clear standard against which departures, even

for a single plaintiff, could be readily assessed.

There was no indication in Olech that the zoning

board was exercising discretionary authority

based on subjective, individualized determina-

tions—at least not with regard to easement length,

however typical such determinations may be as

a general zoning matter. Rather, the complaint

alleged that the board consistently required only

a 15-foot easement, but subjected Olech to a 33-

foot easement. This differential treatment raised

a concern of arbitrary classification, and we there-

fore required that the State provide a rational

basis for it….

There are some forms of state action, how-

ever, which by their nature involve discretionary

decisionmaking based on a vast array of subjec-

tive, individualized assessments. In such cases

the rule that people should be “treated alike,

under like circumstances and conditions” is not

violated when one person is treated differently

No. 10-3426 21

from others, because treating like individuals

differently is an accepted consequence of the

discretion granted. In such situations, allowing a

challenge based on the arbitrary singling out of a

particular person would undermine the very

discretion that such state officials are entrusted

to exercise.

Suppose, for example, that a traffic officer is sta-

tioned on a busy highway where people often

drive above the speed limit, and there is no

basis upon which to distinguish them. If the

officer gives only one of those people a ticket, it

may be good English to say that the officer has

created a class of people that did not get

speeding tickets, and a “class of one” that did. But

assuming that it is in the nature of the particular

government activity that not all speeders can

be stopped and ticketed, complaining that one

has been singled out for no reason does not

invoke the fear of improper government classi-

fication. Such a complaint, rather, challenges

the legitimacy of the underlying action itself—the

decision to ticket speeders under such circum-

stances. Of course, an allegation that speeding

tickets are given out on the basis of race or sex

would state an equal protection claim, because

such discriminatory classifications implicate

basic equal protection concerns. But allowing

an equal protection claim on the ground that a

ticket was given to one person and not others,

even if for no discernible or articulable reason,

22 No. 10-3426

would be incompatible with the discretion

inherent in the challenged action. It is no proper

challenge to what in its nature is a subjective,

individualized decision.

553 U.S. at 602-04 (citations omitted).

The quoted passage extends the Court’s analysis

(though not its holding) from public employees super-

visors to the police, who are engaged in “discretionary

decisionmaking based on a vast array of subjective,

individualized assessments,” and who therefore should

not be liable for equal protection violations unless they

base decisions on discriminatory classifications such as

race or sex that “implicate basic equal protection con-

cerns.” Employment decisions, the Court pointed out, “are

quite often subjective and individualized, resting on a

wide array of factors that are difficult to articulate and

quantify . . . . [T]reating seemingly similarly situated indi-

viduals differently in the employment context is par for

the course.” Id. at 604. As it is in policing.

When the Court went on to say that “an allegation of

arbitrary differential treatment could be made in

nearly every instance of an assertedly wrongful employ-

ment action . . . on the theory that other employees were

not treated wrongfully,” that “on Engquist’s view, every

one of these employment decisions by a government

employer would become the basis for an equal protection

complaint,” and that “the practical problem with

allowing class-of-one claims to go forward in this

context is not that it will be too easy for plaintiffs to

prevail, but that governments will be forced to defend

No. 10-3426 23

a multitude of such claims in the first place, and courts

will be obliged to sort through them in a search for

the proverbial needle in a haystack,” id. at 608, it might

have been speaking about this case. Other decisions

make similar points. See, e.g., Kansas Penn Gaming, LLC v.

Collins, 656 F.3d 1210, 1216-18 (10th Cir. 2011). Two recent

decisions apply Engquist’s bar to class-of-one suits to

discretionary action by state officials outside the em-

ployment context. Towery v. Brewer, 672 F.3d 650, 660-

61 (9th Cir. 2012) (per curiam); Novotny v. Tripp County,

664 F.3d 1173, 1179 (8th Cir. 2011).

As Professor Powell has said, “It is easy to imagine

reading the Court’s holding in Engquist as a strategic

decision, intended to keep the judiciary out of an area

in which it would be extremely difficult for courts to

vindicate the constitutional norm without undue inter-

ference in the functioning of the political branches. With-

out a ‘clear standard’ to apply to personnel decisions,

courts would find themselves simply second-guessing

the executive or administrative officials who made

the decisions on a discretionary basis in the first place,

thereby ‘undermin[ing] the very discretion that such

state officials are entrusted to exercise.’ The point of

Engquist, on this reading, would not be that government

is constitutionally free to make employment decisions

based on whim or animus toward an individual em-

ployee, but rather that given the difficulty of ascertaining

or even articulating the basis for many such decisions, it

is preferable for the courts to abstain. Such deliberate

judicial underenforcement would leave implementation

of the norm to the political branches, not decree that

24 No. 10-3426

what would be an illegitimate basis for governmental

action in any other circumstance is constitutionally ac-

ceptable in government personnel decisions.” Powell,

supra, 86 Wash. L. Rev. at 264. Engquist notes that

“public employees typically have a variety of protections

from just the sort of personnel actions about which

Engquist complains, but the Equal Protection Clause is

not one of them.” 553 U.S. at 609. Americans have an

even greater variety of protections against police mis-

conduct, many of them of constitutional dignity.

Just months after the Engquist decision, our court, in

United States v. Moore, supra, 543 F.3d at 899-901, held

that just as public employees cannot bring class-of-

one cases against their employer, so also prosecutorial and

sentencing discretion is not to be fettered by class-of-one

suits. (For this reason the plaintiff in this case cannot get

to first base by arguing that the police should have

gone after the bikers who he claims were making his

life unbearable—the decision whether to arrest is a

form of prosecutorial decision.) There is arbitrary

variance among prosecutors in deciding whether to

prosecute a particular criminal, and among judges in

deciding what sentence to impose on a particular

criminal; there are also inconsistent prosecutorial deci-

sions by individual prosecutors within a department

and inconsistent sentences imposed by individual

judges within a judicial system and indeed in the same

court. Legally enforceable limitations on arbitrariness,

such as uniform prosecutorial policy within a jurisdic-

tion and standardized sentencing guidelines based on

penological research, have largely been rejected. There

No. 10-3426 25

would be chaos if persons charged with crime

could base a defense on the ground that a similarly situ-

ated criminal suspect had not been charged, or if a

person convicted of crime could knock out his sentence

by showing that a similarly situated criminal had

received a more lenient sentence, whether from the

same or a different judge. Class-of-one claims cannot

be interposed as defenses to criminal prosecutions, con-

victions, or sentences.

What unites the public-employer, prosecutorial dis-

cretion, and sentencing discretion cases at the deepest

level of policy is not the existence of alternative

remedies or the absence of harmful discrimination. It is

the impediment to efficiency in government that would

be created by allowing class-of-one litigation in areas

in which frontline public officers—whether supervisors

and other management-level personnel in public

agencies, or prosecutors, or trial judges—exercise discre-

tionary authority guided unavoidably by subjective,

individualized factors that are bound to create disparate

treatment. Class-of-one liability in such circumstances

would not eliminate the disparities, because they are

inherent in the exercise of discretion in such activities,

but would foment litigation and disrupt law enforce-

ment; some injustices would be corrected, but at an

unacceptable price.

Police exercise a good deal of discretion, and not only

in deciding which drivers to ticket for speeding. Police

supervisors have to make decisions about the allocation

of police resources across neighborhoods, commercial

26 No. 10-3426

establishments, residences, and particular individuals,

and about whom to investigate on suspicion of criminal

activity, whom to arrest, whom merely to warn. Many

of their decisions are made in emotional settings,

involving angry and frightened people, and after the

fact it is easy to point to mistakes. The police in this

case decided not to take seriously Del Marcelle’s

complaint about being harassed by motorcycle gangs.

They thought him a nutcase. That is a judgment police

officers have constantly to make. It is not a judgment

that the federal courts should second guess in the name

of equal protection. Should a federal judge order the

police to investigate Del Marcelle’s charges? To arrest

bikers whose motorcycles lack mufflers? To assign police

officers to watch Del Marcelle’s house?

The Geinosky case that we cited earlier makes a nice

contrast to this one. The plaintiff received 24 totally

meritless parking tickets (often in circumstances in

which it was physically impossible for the plaintiff to

have committed a parking violation) in quick succes-

sion from police officers who appear to have been in

cahoots with his estranged wife. We said that “absent a

reasonable explanation, and none has even been

suggested yet, the pattern adds up to deliberate and

unjustified official harassment that is actionable under

the Equal Protection Clause.” Geinosky v. City of

Chicago, supra, 675 F.3d at 745. The defendants inten-

tionally subjected the plaintiff to harm that they knew

had no legal justification. Such a claim should survive

the concerns expressed in Engquist.

No. 10-3426 27

But the example must not be generalized to every case

in which the exercise of discretion by frontline public

officers results in arbitrary “classification” (in equal-

protection speak) of persons otherwise similarly situ-

ated. A particular 911 call—say, reporting an auto theft

or a burglary—may receive prompt attention, while

another call reporting the same kind of crime a few

blocks away is ignored. Probably there’s no rational

basis for the difference in treatment. It cannot real-

istically be thought to exemplify “efficient systemic

randomization.” But such differences are an unavoidable

feature of discretionary administration of systems of

government service, such as policing. As the Engquist

decision points out, “it is no proper challenge to what

in its nature is a subjective, individualized decision that

it was subjective and individualized.” 553 U.S. at 604.

The rational-basis test is an ingenious device for uncov-

ering unconstitutional discrimination in legislative classi-

fications. Reluctant to inquire into the personal motiva-

tions of lawmakers, judges ask instead whether an ob-

jective basis can be posited for a statutory classification

challenged as discriminatory. But when “discrimination”

is the norm because the “classification” is not legislative

but instead is made ad hoc by frontline public officers,

“discrimination” can’t by itself be the criterion for viola-

tion of the equal protection clause. More is needed in a

suit challenging discretionary conduct as discriminatory

and it makes sense that the more should relate to the

public officer’s motivations, subjective though they are.

For in such a case the claim depends on proof that the

defendant singled out a private citizen for unfavorable

28 No. 10-3426

treatment, which is different from a difference in treat-

ment that arises incidentally as the inevitable conse-

quence of the conferral of discretion on low-level offi-

cials. Inability to articulate a rationally acceptable reason

for the difference is not a meaningful way to identify

intentional discrimination.

This case is thus on the other side of the line from

Geinosky, where singling out for purposes unrelated to

official duty could readily be inferred. Which is not to

say that proof of a bad motive is alone sufficient to estab-

lish liability in a class-of-one case. The plaintiff must

plead and prove both the absence of a rational basis for

the defendant’s action and some improper personal

motive (which need not be hostility, but could be, for

example, corruption) for the differential treatment. Thus,

as we said earlier, our proposed standard requires the

plaintiff to plead and prove intentional discriminatory

treatment that lacks any justification based on public duties

and that there be some improper personal motive for the

discriminatory treatment. Some discretionary decisions

will fail the rational-basis test, standing alone, but none-

theless should not be actionable because a degree of

arbitrariness is inescapable in discretionary decisions

by frontline government personnel. That is why we

suggest that more must be shown—the personal motive

to which we’ve referred. A bare allegation of bad

motive, however, is not enough. In this case, in contrast

to Geinosky, there is an allegation of arbitrariness, but

not of improper motive. The police ignored the

plaintiff’s complaints of harassment by bikers on

the ground that he was off his rocker. They failed to

No. 10-3426 29

help him, but the complaint does not allege that they

wanted to treat him worse than other citizens because

of some personal motive. Rightly or wrongly they

thought him a paranoid pest obsessed with motorcycle

gangs.

To let the plaintiff plead over would not sort well

with insistence that the class-of-one domain should be

narrowly construed when a suit attacks discretionary

action at street level. The suit was rightly dismissed.

E ASTERBROOK, Chief Judge, concurring in the judgment.

My colleagues debate the role of motive and intent in

class-of-one suits. Judge Posner (for four judges)

and Judge Wood (for five) offer slightly different under-

standings of the role motive or intent should play in

such suits. I think that it has no role at all.

Village of Willowbrook v. Olech, 528 U.S. 562 (2000), holds

that the rational-basis test applies to class-of-one

claims. That test asks whether a rational basis can be

conceived, not whether one is established on the record

or occurred to a defendant. See, e.g., FCC v. Beach Commu-

nications, Inc., 508 U.S. 307, 313 (1993); Railroad Retirement

Board v. Fritz, 449 U.S. 166 (1980). The Justices who dis-

sented in Engquist v. Oregon Department of Agriculture,

30 No. 10-3426

553 U.S. 591 (2008), contending that a class-of-one

claim should have been allowed there, recognized this,

writing: “But for this disclaimer [by defendants, who

denied having any reason at all], the district court could

have dismissed the claim if it discerned ‘any reasonably

conceivable state of facts that could provide a rational

basis for the [State’s actions],’ even one not put forth by

the State.” 553 U.S. at 612 n. 2 (citation omitted; second

bracketed phrase in original).

It is easy to conceive two rational bases for defendants’

treatment of Del Marcelle. First, they had limited enforce-

ment resources and could not fully investigate all com-

plaints. Second, defendants may have concluded that

Del Marcelle was imagining or exaggerating the prob-

lems he reported. Under the rational-basis test, either

possibility requires judgment in defendants’ favor. There

is no need for inquiry into the defendants’ state of

mind. The upshot of today’s decision, however, is

that something other than the normal rational-basis test

applies to class-of-one claims applies in the seventh

circuit. That is the very conclusion by this court that

led to the grant of certiorari in Olech. If Justices thought

they had disapproved our local rational-basis-plus-

intent approach, that message has not been received.

I do not deny that intent can matter to equal-protec-

tion analysis. Rules based on suspect classes such as race

are subject to strict scrutiny. State and local govern-

ments may try to disguise their criteria of decision by

adopting rules that have the appearance but not the

reality of neutrality. The Supreme Court has held that

No. 10-3426 31

the adverse impact of neutral rules does not change the

standard from rational basis to strict scrutiny—but

that proof of intent to discriminate on a ground such as

race or sex can do so. See, e.g., Personnel Administrator

of Massachusetts v. Feeney, 442 U.S. 256 (1979); Washington

v. Davis, 426 U.S. 229 (1976). If Del Marcelle were

arguing that defendants held his race, sex, or religion

against him, and were seeking heightened scrutiny,

intent would matter. He does not contend, however,

that defendants engaged in class-based discrimination;

that’s why this is a class-of-one case. The only proper

use of intent in a class-of-one case is to show that dis-

crimination exists—in other words, to distinguish

between disparate treatment and disparate impact. Yet

defendants do not say that this is a disparate-impact

case (perhaps because they tried but failed to arrest or

ticket the bikers) rather than a disparate-treatment

one. That makes motive and intent irrelevant to this

litigation.

What’s more, I do not think that the class-of-one

theory itself has any role to play. No public employee

attacked or injured Del Marcelle. His losses stem from

private aggression by the bikers, which public officials

failed to prevent. Inability of the police to show a

rational basis for each decision about who is arrested or

ticketed (compared with persons not arrested or ticketed)

should not expose them to damages.

Del Marcelle is not entitled to an order requiring

arrest or prosecution of the bikers, or to damages

because of public officials’ decision not to do so. Castle

32 No. 10-3426

Rock v. Gonzales, 545 U.S. 748 (2005); DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189 (1989);

Leeke v. Timmerman, 454 U.S. 83 (1981); Linda R.S. v. Richard

D., 410 U.S. 614 (1973). The Constitution does not create

a general right to protection from private wrongdoers.

The original meaning of the equal protection clause is

that, if the police and prosecutors protect white

citizens, they must protect black citizens too, but Del

Marcelle does not allege racial discrimination or any

other kind of class-based discrimination. His contention

is that the police failed to protect him, personally,

from private aggression that targeted him, personally.

DeShaney shows that this is not a good constitutional claim.

This leaves an argument that the police violated the

equal protection clause, even though not the due process

clause, by issuing citations to Del Marcelle but not the

bullies. That is a bad approach. It is inconceivable that

the plaintiff could have prevailed in either Castle

Rock or DeShaney by replacing a due-process theory with

a class-of-one equal-protection theory; the claims ad-

vanced in those cases functionally were class-of-one

claims, yet the plaintiffs lost. It was a premise in both

Castle Rock and DeShaney that state officials had

protected some persons but not the plaintiffs, who con-

tended that they should have received the same benefit

yet were denied it for no reason (i.e., without a rational

basis). That’s the same sort of claim Del Marcelle

makes. He loses for the same reasons Gonzales and

DeShaney lost.

Discrimination against members of a suspect class

is actionable notwithstanding Castle Rock and DeShaney,

No. 10-3426 33

but class-of-one distinctions are not. As for non-prosecu-

tion of the predators, the Court wrote in Linda R.S. that

“a private citizen lacks a judicially cognizable interest

in the prosecution or nonprosecution of another.” 410 U.S.

at 619. That is a limit on standing; Linda R.S. holds

that there is no justiciable controversy, which knocks

out all substantive legal theories. Del Marcelle thus

needs to show how he was injured by what the

defendants did to him, rather than by what they didn’t

do to other people or what they didn’t do for him.

Del Marcelle does not tell us, however, how the cita-

tions injured him. Any injury was meted out by the

bikers, not by the police, which makes it hard to see how

a claim centered on the citations has any prospect. If

the citations were dismissed without trial or penalty,

Del Marcelle is uninjured when compared with a world

in which no one was prosecuted, and thus no discrim-

ination could have occurred. If the citations were adjudi-

cated, and Del Marcelle prevailed, again he is uninjured.

If they were adjudicated, and he lost, then preclusion

blocks this civil suit. How could Del Marcelle get

damages on account of a potential defense that wasn’t

raised, let alone a defense that was raised and rejected?

Put lack of injury, and a potential defense of preclusion,

to the side. There is no constitutional problem. Persons

accused of wrongdoing can’t make class-of-one defenses

to criminal charges. See, e.g., United States v. Armstrong,

517 U.S. 456, 464 (1996); United States v. Moore, 543 F.3d

891, 901 (7th Cir. 2008). Armstrong holds that a defense

of selective prosecution is limited to racial discrimina-

34 No. 10-3426

tion or other class-wide inequality, which must be

shown by strong evidence before courts can allow dis-

covery. So if the citations Del Marcelle received

were followed by prosecution, he could not defend by

contending that he was being treated worse than

the bikers. That’s not class-based discrimination.

If “I was treated worse than the bikers” is not a defense

on the merits, how can it be a basis of damages against

officers who issue citations that get proceedings under

way? No decision of which I am aware holds that it

violates the Constitution to initiate a criminal prosecution

(or a civil-penalty proceeding) that can lead to a valid

conviction, whether or not the same officers failed to

arrest or ticket third parties. Quite the contrary, many

cases hold that police cannot be ordered to pay

damages even when the defendant prevails in a prosecu-

tion (or none is filed). For example, Hartman v. Moore,

547 U.S. 250 (2006), holds that probable cause for an

arrest knocks out a claim that the arrest violated the

person’s rights under the first amendment. Probable

cause is objective; the officers’ motives, beliefs, and so

on, don’t matter and cannot create liability. Ashcroft v. al-

Kidd, 131 S. Ct. 2074, 2080-83 (2011). That’s why probable

cause blocks contentions that the officers had ulterior

goals (such as favoring the bikers over Del Marcelle).

Likewise probable cause prevents an award of damages

under the fourth amendment for wrongful arrest.

Indeed, Hunter v. Bryant, 502 U.S. 224 (1991), holds

that arresting officers can’t be liable if a reasonable

person could have concluded that probable cause

exists, even if it doesn’t.

No. 10-3426 35

Suppose the officers had placed Del Marcelle

under arrest instead of just issuing citations. There is

probable cause or there isn’t. If there is probable cause,

the officers can’t be held liable. If there is not probable

cause, and an objectively reasonable officer would not

have believed that probable cause exists, then the officer

is liable under the fourth amendment. Graham v. Connor,

490 U.S. 386 (1989), completes the picture by holding

that the fourth amendment is the only source of rules

governing the validity of arrests. Graham concludes, in

particular, that an arrested person can’t present a claim

under the due process clause. That must be true for a

claim under the equal protection clause too, just as it is

true (see Hartman) for a claim under the first amend-

ment. Police need not arrest everyone who committed

the same offense; selectivity is normal—and is proper,

unless based on a forbidden classification such as race.

Probable cause for arrest is a complete defense to an

argument that other similarly situated persons were not

arrested.

Apparently Del Marcelle was not arrested; the police

just wrote a few tickets. How can the police be more

exposed to awards of damages for writing tickets than

for making full custodial arrests? That would create an

incentive for needless arrests in order to create a shield

from liability. Often people contend that police should

be compelled to write tickets without arresting. Atwater

v. Lago Vista, 532 U.S. 318 (2001), holds that the Constitu-

tion allows police to make custodial arrests for offenses

punishable only by fines. That the defendants left

Del Marcelle at liberty cannot be their undoing.

36 No. 10-3426

Class-of-one liability for the toleration of private

violence is blocked by Castle Rock and its predecessors;

liability for arrests based on probable cause is blocked

by Graham no matter what legal theory the plaintiff in-

vokes; liability for criminal (and civil) prosecutions is

blocked by Armstrong. Those decisions address the

merits and cannot be circumvented by observing that

police officers lack prosecutorial immunity. Citations,

whether issued by an officer on the beat or a lawyer in

an office, just get a legal process under way; they

do not themselves cause injury and should not be a

basis of liability no matter why someone writes them

(or fails to write others). State law can create liability in

tort (think malicious prosecution or abuse of process),

but the Constitution is not a fount of national tort law,

as the decisions I’ve mentioned show.

Any doubt on this score is stilled by Engquist. Although

that case’s holding is limited to public employees, its

rationale is not.

Recognition of the class-of-one theory of equal

protection on the facts in Olech was not so much

a departure from the principle that the Equal

Protection Clause is concerned with arbitrary

government classification, as it was an applica-

tion of that principle. That case involved the gov-

ernment’s regulation of property. Similarly,

the cases upon which the Court in Olech relied

concerned property assessment and taxation

schemes. We expect such legislative or regulatory

classifications to apply “without respect to per-

No. 10-3426 37

sons,” to borrow a phrase from the judicial oath.

See 28 U.S.C. § 453. As we explained long ago, the

Fourteenth Amendment “requires that all persons

subjected to . . . legislation shall be treated alike,

under like circumstances and conditions, both in

the privileges conferred and in the liabilities im-

posed.” Hayes v. Missouri, 120 U.S. 68, 71-72 (1887).

When those who appear similarly situated are

nevertheless treated differently, the Equal Protec-

tion Clause requires at least a rational reason for

the difference, to assure that all persons subject

to legislation or regulation are indeed being

“treated alike, under like circumstances and con-

ditions.” Thus, when it appears that an indi-

vidual is being singled out by the government, the

specter of arbitrary classification is fairly raised,

and the Equal Protection Clause requires a “ratio-

nal basis for the difference in treatment.” Olech,

528 U.S., at 564.

What seems to have been significant in Olech

and the cases on which it relied was the existence

of a clear standard against which departures, even

for a single plaintiff, could be readily assessed.

There was no indication in Olech that the zoning

board was exercising discretionary authority

based on subjective, individualized determina-

tions—at least not with regard to easement length,

however typical such determinations may be as

a general zoning matter. Rather, the complaint

alleged that the board consistently required only

a 15-foot easement, but subjected Olech to a 33-

38 No. 10-3426

foot easement. This differential treatment raised

a concern of arbitrary classification, and we there-

fore required that the State provide a rational

basis for it. . . .

There are some forms of state action, how-

ever, which by their nature involve discretionary

decisionmaking based on a vast array of subjec-

tive, individualized assessments. In such cases

the rule that people should be “treated alike,

under like circumstances and conditions” is not

violated when one person is treated differently

from others, because treating like individuals

differently is an accepted consequence of the

discretion granted. In such situations, allowing a

challenge based on the arbitrary singling out of a

particular person would undermine the very

discretion that such state officials are entrusted

to exercise.

Suppose, for example, that a traffic officer is sta-

tioned on a busy highway where people often

drive above the speed limit, and there is no

basis upon which to distinguish them. If the

officer gives only one of those people a ticket, it

may be good English to say that the officer has

created a class of people that did not get

speeding tickets, and a “class of one” that did. But

assuming that it is in the nature of the particular

government activity that not all speeders can

be stopped and ticketed, complaining that one

has been singled out for no reason does not

No. 10-3426 39

invoke the fear of improper government classi-

fication. Such a complaint, rather, challenges

the legitimacy of the underlying action itself—the

decision to ticket speeders under such circum-

stances. Of course, an allegation that speeding

tickets are given out on the basis of race or sex

would state an equal protection claim, because

such discriminatory classifications implicate

basic equal protection concerns. But allowing

an equal protection claim on the ground that a

ticket was given to one person and not others,

even if for no discernible or articulable reason,

would be incompatible with the discretion

inherent in the challenged action. It is no proper

challenge to what in its nature is a subjective,

individualized decision that it was subjective

and individualized.

This principle applies most clearly in the employ-

ment context, for employment decisions are

quite often subjective and individualized, resting

on a wide array of factors that are difficult to

articulate and quantify. As Engquist herself points

out, “[u]nlike the zoning official, the public em-

ployer often must take into account the individual

personalities and interpersonal relationships of

employees in the workplace. The close relationship

between the employer and employee, and the

varied needs and interests involved in the em-

ployment context, mean that considerations such

as concerns over personality conflicts that would

be unreasonable as grounds for ‘arm’s-length’

40 No. 10-3426

government decisions (e.g., zoning, licensing) may

well justify different treatment of a public em-

ployee.” Unlike the context of arm’s-length reg-

ulation, such as in Olech, treating seemingly simi-

larly situated individuals differently in the em-

ployment context is par for the course.

Thus, the class-of-one theory of equal protec-

tion—which presupposes that like individuals

should be treated alike, and that to treat them

differently is to classify them in a way that must

survive at least rationality review—is simply a

poor fit in the public employment context. To treat

employees differently is not to classify them in a

way that raises equal protection concerns. Rather,

it is simply to exercise the broad discretion that

typically characterizes the employer-employee

relationship. A challenge that one has been treated

individually in this context, instead of like every-

one else, is a challenge to the underlying nature of

the government action.

553 U.S. at 602-05 (internal citations omitted without

indication). This passage tells us that public employ-

ment is just an example of the situations in which the Con-

stitution tolerates selective action, without requiring

public officials to explain to a court’s satisfaction why

they exercised discretion in favor of one person and

against another. Issuing citations is another example. And

although there is a rational basis for letting most speeders

go, Engquist did not rely on that proposition. Nor did it

say that difficulty of proof explains why unequal enforce-

No. 10-3426 41

ment is allowed. The language I have quoted says that

issuing particular law-enforcement citations is outside

the scope of class-of-one analysis because law enforce-

ment is permissibly discretionary.

Engquist shows that discretionary decisions in law

enforcement are not amenable to class-of-one analysis.

See Flowers v. Minneapolis, 558 F.3d 794, 799-800 (8th

Cir. 2009) (“a police officer’s investigative decisions . . .

may not be attacked in a class-of-one equal protection

claim”). A contrary conclusion would effectively

constitutionalize the Administrative Procedure Act and

open all public officials’ decisions to judicial review to

determine whether they are arbitrary or capricious. (A

capricious decision must lack a rational basis.) Indeed,

in the name of the equal protection clause Del Marcelle

asks us to go beyond the APA by ruling that (a) the

remedy is damages from the decisionmaker’s pocket, not

just an order setting aside the arbitrary or capricious

decision, and (b) the initiation of a process, and not

just the outcome, is subject to judicial review.

One of the APA’s basic rules is that review is limited

to the agency’s final decision. Issuing a complaint is

not reviewable even though it portends a multi-year

adjudicative process that may cost millions to re-

solve. FTC v. Standard Oil Co., 449 U.S. 232 (1980). See

also Sackett v. EPA, 132 S. Ct. 1367, 1371-72 (2012) (dis-

cussing what makes an act “final” under the APA). If

the target of the complaint prevails before the agency,

there will never be judicial review, and the private

party must bear its own attorneys’ fees under the

42 No. 10-3426

American Rule. An argument that similarly situated

persons have not been subjected to this costly process

does not authorize judicial review of the com-

plaint—indeed, does not authorize a court to set aside

the final decision either. FTC v. Universal-Rundle Corp.,

387 U.S. 244 (1967); Moog Industries, Inc. v. FTC, 355 U.S.

411 (1958). Thus there is no class-of-one doctrine in

federal administrative law, any more than in criminal

law. But under Del Marcelle’s approach there is a con-

stitutional class-of-one doctrine, enforced by awards

of damages, regulating the decision by police officers

to issue a ticket initiating a legal inquiry—and

perhaps administrative prosecutors at the FTC to

issue a complaint. If judges are going to apply the

APA to state and municipal governments through the

Constitution, which we shouldn’t, we certainly should

not go beyond the APA by creating personal liability

for issuing a complaint or citation to one party but not

another said to be similarly situated.

Del Marcelle cannot prevail whether his complaint

concerns failure to prosecute the bikers or the tickets

he received, and whether or not a class-of-one theory

is available. I therefore concur in the decision affirming

the judgment of the district court.

No. 10-3426 43

W OOD , Circuit Judge, with whom FLAUM, R OVNER,

W ILLIAMS, and H AMILTON, Circuit Judges, join, dissenting.

Ever since the Supreme Court confirmed in Village

of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam),

that the Equal Protection Clause of the Constitution

extends to “class of one” cases, courts have been grap-

pling with what a plaintiff must plead, and ultimately

show, to prevail in such an action. The full court

decided to hear this case en banc in the hopes that we

might bring some clarity to the matter. The case before

us was brought under 42 U.S.C. § 1983 pro se by Lewis

Del Marcelle (and originally his wife, but she is no

longer involved) against several state defendants for

alleged discrimination. The district court dismissed

Del Marcelle’s complaint for failure to state a claim on

which relief may be granted. Five judges have con-

cluded that Del Marcelle’s complaint not only fails to

meet the standard for pleading a class-of-one case, but

that it cannot be salvaged. Five other judges, myself

included, believe that his current complaint is legally

insufficient, but that he should be given a chance to

replead under the correct standard. Beyond that bottom-

line disagreement, there is a more fundamental dif-

ference of opinion about the proper standard in this kind

of case. A plurality consisting of five members of the

court agrees with the standard set forth in this opinion;

four members have adopted the standard described in

Judge Posner’s concurrence; and Chief Judge Easterbrook

has offered yet another approach. Because we are equally

divided, none of these opinions has precedential signifi-

cance: we must affirm the judgment of the district court

44 No. 10-3426

by an equally divided court. Five judges of this court

dissent from that result, for the reasons set forth in

this opinion.

I

We accept the account of the facts set forth in Del

Marcelle’s complaint, as helpfully summarized by the

outstanding counsel the court recruited to assist him

before the en banc court. (Naturally we do not vouch for

any of these facts; we simply follow the accepted rules

for evaluating complaints under Federal Rule of Civil

Procedure 12(b)(6).) For over 20 years, the Del Marcelles

have lived in Glenmore, Wisconsin, a town located in

rural southeastern Brown County. (Packers fans will

know that Lambeau Field is located in Brown County’s

seat, the City of Green Bay.) As part of the purchase

of their home, they acquired rights to a liquor license

associated with the Glenmore Opera House.

This case had its origin in a dispute that arose

between Del Marcelle and members of a local motorcycle

gang and their associates; the latter included various

law enforcement personnel. The dispute escalated into

active harassment and threats against the Del Marcelles

from the gang members. Explosive devices were

placed next to his home; his car was damaged; he

suffered property theft and vandalism; and he received

threatening phone calls. His wife was so distressed by

this campaign that she attempted suicide. The gang also

annoyed Del Marcelle with very loud muffler sounds

around the clock; members would constantly ride their

motorcycles past his house or idle in front of it.

No. 10-3426 45

One such gang member was Mark Taggart, who made

loud sounds with his motorcycle right outside Del

Marcelle’s home, twice disrupted a wedding ceremony

that the Del Marcelles were attending; he also made

threatening phone calls to the home. Gang leader Karl

Guns, along with others, tried to run over Del Marcelle

with their cars. Guns is a relative of Officer Guns of the

Brown County Sheriff’s Department; Taggart is a friend

or associate of other law-enforcement officials, and has

been an officer himself.

The Brown County Sheriff’s Department has law-enforce-

ment responsibilities in Glenmore. Faced with this unre-

lenting harassment, Del Marcelle turned to the Sheriff and

other governmental entities for help, filing numerous

complaints. Not only were his pleas ignored, but based

on competing complaints from others, the Department

issued citations to Del Marcelle himself for actions he

had taken in response to his mistreatment. In the end,

the Del Marcelles tired of fighting. They sold their home

and moved to the Village of Ashwaubenon, which is

also in Brown County. But the motorcycle gangs fol-

lowed them there and continued their harassment.

By 2009, Taggart was living on the same street as Del

Marcelle. Each of them complained about the other to

the Ashwaubenon Police. Del Marcelle received a cita-

tion based on Taggart’s complaints, but the police

would not accept Del Marcelle’s complaint; they told

him that they would not help him because he was crazy.

On September 13, 2010, Lewis and Ellen Del Marcelle

(acting pro se) filed a complaint in federal court under

42 U.S.C. § 1983 against Brown County, County Executive

46 No. 10-3426

Tom Hintz, the Village of Ashwaubenon, Village President

Mike Aubinger, and one “unknown John Doe.” Brown

County and Hintz responded on September 28 with a

motion to dismiss for lack of subject-matter jurisdiction

and for failure to state a claim. Del Marcelle parried

that motion with three exhibits filed on October 5,

through which he hoped to “qualify” his complaint. A

week later, the district court dismissed the complaint

against all defendants, even though Ashwaubenon

and Aubinger had answered without filing a Rule 12

motion. The order of dismissal gave Del Marcelle no

chance to replead. Del Marcelle filed a timely notice of

appeal. On April 12, 2011, this court ordered that the

appeal would be taken up by the full court. The court

recruited Thomas L. Shriner, Jr., of the law firm of Foley &

Lardner LLP, to represent Mr. Del Marcelle. We join

our colleagues in thanking Mr. Shriner, his colleague

Kellen C. Kasper, and the firm for their fine work.

II

At the time the order for en banc hearing was issued,

the court directed the parties to supplement the briefs

that had been filed by addressing the following issues:

(1) In cases of alleged “class-of-one” discrimina-

tion by front-line public officers, such as police

officers, who exercise a broad discretionary

authority that frequently involves subjective,

ad hoc judgments, as distinct from class-of-one

discrimination effectuated by legislative or

regulatory classifications, what should be

the governing legal standard?

No. 10-3426 47

(2) Specifically, what if any role should proof

of “animus” play in such cases? Or should

the rational-basis standard, supplemented

where appropriate by the rules forbidding

intentional discrimination on the basis of

a protected characteristic, be the governing

standard as it is when legislative or regulatory

classifications, as distinct from subjective dis-

cretionary decisions, are challenged as class-of-

one discrimination?

(3) What bearing on questions 1 and 2 have Village

of Willowbrook v. Olech, 528 U.S. 562 (2000) (per

curiam), and Engquist v. Oregon Dep’t of Agri-

culture, 553 U.S. 591 (2008)? After Engquist, is

even a rational basis required for subjective,

discretionary decisions? Would the use of a

system of random or arbitrary enforce-

ment decisions (such as a police officer’s

choice about which speeders to ticket) satisfy

rational-basis review, or is rational-basis re-

view unnecessary for such decisions?

The discussion that follows draws on each of these

points as needed.

III

A

Before turning to the heart of this case—the standard

that governs class-of-one cases—we address a prelim-

inary, but fundamental question that is raised in Chief

48 No. 10-3426

Judge Easterbrook’s separate opinion: whether Del

Marcelle has standing to pursue this claim at all. This

depends on how one understands Del Marcelle’s com-

plaint. Read one way, it could be seen as an assertion

of a right to have the law-enforcement authorities in

Brown County take action on his behalf. As we explain,

the Supreme Court has squarely rejected this theory.

But read another way, Del Marcelle is not asserting a

right to any particular level of law enforcement or any

particular response to his complaints: he is instead

saying only that he is entitled to equal treatment,

whether that be bad, good, or something in between.

The latter theory is a valid one. A person who has

been adversely affected by discrimination has suffered

injury-in-fact; the differential treatment is the cause of

his injury; and that injury can be redressed either by

damages or injunctive relief. No more is required to

support standing. See Camreta v. Greene, 131 S. Ct. 2020,

2028 (2011) (citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992)).

It is quite possible that this limitation will significantly

constrict cases like Del Marcelle’s. But a review of two

Supreme Court decisions—Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005), and Linda R.S. v. Richard D., 410

U.S. 614 (1973)—leaves no doubt that a plaintiff has

no right to insist that the law-enforcement officers in his

area arrest his tormenters. Gonzales involved particularly

heart-wrenching facts. Respondent Jessica Gonzales had

obtained a restraining order against her husband, re-

stricting the times during which he was entitled to visit

the couple’s three daughters. Despite the order, he

No. 10-3426 49

stopped by Gonzales’s house and took the three girls

without permission. To make a long, sad, story short,

after Gonzales frantically tried in vain to persuade the

police to enforce the court order, her husband showed up

at the police station in the middle of the night, started

firing at the police, and was killed. The bodies of the

three girls were then found in his car.

Gonzales sued the town of Castle Rock on the theory

that it had violated the Due Process Clause of the Four-

teenth Amendment by failing to respond properly to her

repeated efforts to induce it to enforce the restraining

order. The Supreme Court found that she had failed to

state a claim. Even though the order contained language

that made it appear to be mandatory, the Court noted

that this language could not overcome “[t]he deep-rooted

nature of law-enforcement discretion.” 545 U.S. at 761.

And even if Colorado law somehow made enforcement

of the law mandatory, the Court added, “that would not

necessarily mean that state law gave respondent an en-

titlement to enforcement of the mandate.” Id. at 764-65.

Finally, even if such an entitlement were found, the

Court expressed doubt that an individual entitlement

to the enforcement of a restraining order would amount

to a “property” interest for purposes of the Due Process

Clause. It concluded with broad language: “the benefit

that a third party may receive from having someone

else arrested for a crime generally does not trigger

protections under the Due Process Clause, neither in its

procedural nor in its ‘substantive’ manifestations.” Id. at

768, referring to DeShaney v. Winnebago C’nty Dep’t of

50 No. 10-3426

Soc. Servs., 489 U.S. 189 (1989), and Parratt v. Taylor, 451

U.S. 527, 544 (1981).

Linda R.S. also involved a family-law matter—the

more conventional problem of a parent who fails to

support an illegitimate child. The Texas statute at issue

imposed a support duty only on parents of legitimate

children. In her lawsuit against the child’s father, the

mother complained that the district attorney was

refusing to enforce a duty of support solely based on

this statute, which she asserted was unconstitutional.

The Supreme Court looked carefully at the relief the

mother was seeking and concluded that she had no

standing to pursue it. As it said, “in the unique context

of a challenge to a criminal statute,” 410 U.S. at 617,

there was not enough to justify judicial intervention,

even though the Court recognized the practical injury

the mother had suffered. But she could not trace her

injury to the nonenforcement of the Texas support stat-

ute. If she were granted relief, the only thing that would

happen would be the jailing of the father; there

was no guarantee that support payments would be forth-

coming in the future. More generally, the Court held

that its “prior decisions consistently hold that a citizen

lacks standing to contest the policies of the prosecuting

authority when he himself is neither prosecuted nor

threatened with prosecution.” Id. at 619.

Gonzales squarely forecloses any due process theory

that might be lurking in Del Marcelle’s complaint. He

may have believed that the Brown County Sheriff’s De-

partment, or the police in Glenmore or Ashwaubenon,

No. 10-3426 51

were violating his due process rights when they did

not respond to his complaints about the motorcycle

gangs, but he has no legally enforceable right to have

the police come and make any particular arrests. And

Linda R.S. does the same for any claim Del Marcelle

might raise to force the police or the prosecutors to

pursue the gangs.

But plaintiffs are not required to plead legal theories,

even in the new world of pleading that is developing in

the wake of the Supreme Court’s decisions in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,

556 U.S. 662 (2009). Instead, the complaint must

simply “contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its

face.” 556 U.S. at ___, 129 S. Ct. at 1949. The fact that a

complaint does not state a claim under the Due Process

Clause, or that a plaintiff would not have standing to

seek the criminal prosecution of another, does not neces-

sarily preclude a valid assertion of an equal protection

violation. (It is worth noting, however, that Del Marcelle

invoked the Equal Protection Clause several times in

his pro se submissions.)

The distinction between a due process theory and an

equal protection claim was brought out in this court’s

opinion in Hilton v. City of Wheeling, 209 F.3d 1005 (7th

Cir. 2000), which noted that the right to petition gov-

ernment, made applicable to the states by the Fourteenth

Amendment’s Due Process Clause, does not carry with

it any right to police assistance or other government

services. But, the opinion continued:

52 No. 10-3426

A complaint of unequal police protection in viola-

tion of the equal protection clause is less easily

disposed of. On the one hand, the clause, con-

cerned as it is with equal treatment rather than

with establishing entitlements to some minimum

of government services, does not entitle a person

to adequate, or indeed to any, police protection.

On the other hand, selective withdrawal of police

protection, as when the Southern states during

the Reconstruction era refused to give police

protection to their black citizens, is the proto-

typical denial of equal protection.

Id. at 1007.

Other examples of sound equal protection claims that

exist even where there would be no underlying

due process right come readily to mind. For example,

although there is no constitutional requirement that a

state provide a system of appellate review, if the state

chooses to do so, it cannot discriminate against indigent

defendants. Griffin v. Illinois, 351 U.S. 12, 18 (1956) (ad-

dressing transcripts for indigent defendants); see also

Douglas v. California, 372 U.S. 353, 357-58 (1963) (holding

that states must provide appellate counsel for indigent

defendants). Examples of this principle in non-criminal

cases are also easy to find. Even though a student has

no due process right to be admitted to a state university,

she is entitled to complain about state university admis-

sions systems that allegedly discriminate on the basis of

race. Gratz v. Bollinger, 539 U.S. 244 (2003); see also Fisher

v. University of Texas at Austin, No. 11-345, cert. granted,

No. 10-3426 53

Feb. 21, 2012. And even though a citizen has no due

process right to any particular kind of tax system, he

is entitled to complain about discrimination in the ad-

ministration of a tax system. See Hillsborough v.

Cromwell, 326 U.S. 620, 623 (1946) (“The equal protection

clause . . . protects the individual from state action

which selects him out for discriminatory treatment by

subjecting him to taxes not imposed on others of the

same class.”); see also Armour v. Indianapolis, No. 11-161,

argued Feb. 29, 2012 (presenting the question whether

the Equal Protection Clause precludes a local taxing

authority from refusing to refund payments made by

those who have paid their assessments in full, while

forgiving the obligations of identically situated tax-

payers who choose to pay over a multi-year installment

plan).

Importantly, the equal protection claim that Del

Marcelle is trying to raise is different from a claim that

takes issue with an arrest or a citation. If all that Del

Marcelle were arguing was that police should not have

cited him because he had done nothing wrong (and in

fact, it was the bikers who were the real offenders), that

would be akin to challenging the citations themselves, or

perhaps it would provide support for a state-law claim

of selective prosecution. The citations themselves, how-

ever, are not necessary to Del Marcelle’s equal protec-

tion claim. The point is that the police are treating

him differently, in a way that injures him. Whether

that differential treatment takes the form of baseless

citations, or malicious arrests, or any other adverse

action, makes no difference.

54 No. 10-3426

The question before the court is thus whether Del

Marcelle’s complaint (or a possible amended complaint)

might be read to state a class-of-one claim under the

Equal Protection Clause. It is useful to begin by locating

class-of-one cases within the broader context of equal

protection jurisprudence. From there, we take a closer

look at the substantive requirements for these cases, and

finally we consider what is required to plead such a case.

B

The familiar language of the Equal Protection Clause

is as good a starting point as any. It says “nor [shall any

State] deny to any person within its jurisdiction the

equal protection of the laws.” U.S. C ONST. AMEND. XIV,

§ 1. The Supreme Court has repeatedly confirmed that the

Clause “protect[s] persons, not groups.” Engquist, 553

U.S. at 597 (quoting Adarand Constructors, Inc. v. Peña,

515 U.S. 200, 227 (1995)); see also Shelley v. Kraemer, 334 U.S.

1, 22 (1948). Although the concept of the Clause requires

comparison between the injured party and others, the

Court has also said that “the number of individuals in

a class is immaterial for equal protection analysis.”

Olech, 528 U.S. at 562 n.*. As the Court succinctly put it

in City of Cleburne v. Cleburne Living Center, Inc., the Equal

Protection Clause “is essentially a direction that all

persons similarly situated should be treated alike.” 473

U.S. 432, 439 (1985). Straightforward as this may sound,

however, experience shows that a great deal lurks

below the surface. The questions of who bears the

burden of demonstrating that a person is not receiving

No. 10-3426 55

the “equal protection of the laws” to which the Constitu-

tion entitles her, and what it takes to meet that burden,

are more complex.

The Cleburne Court summarized the answers to these

questions in a way that is helpful:

The general rule is that legislation is presumed

to be valid and will be sustained if the classifica-

tion drawn by the statute is rationally related to a

legitimate state interest. When social or economic

legislation is at issue, the Equal Protection Clause

allows the States wide latitude, and the Constitu-

tion presumes that even improvident decisions

will eventually be rectified by the democratic

processes.

The general rule gives way, however, when a

statute classifies by race, alienage, or national

origin.

473 U.S. at 440 (internal citations omitted). Although

this passage speaks of legislation, Engquist confirmed

that the Clause’s protections “apply to administrative

as well as legislative acts.” 553 U.S. at 597.

A moment’s thought shows that a true class-of-one

case (that is, one that does not implicate fundamental

rights) falls under the “general rule” that the Court has

articulated—in other words, the allegedly unequal treat-

ment of the “one” must be upheld as long as it is

rationally related to a legitimate state interest. As the

Supreme Court has said, “[u]nless a classification

trammels fundamental personal rights or is drawn

56 No. 10-3426

upon inherently suspect distinctions such as race,

religion, or alienage, our decisions presume the constitu-

tionality of the statutory discriminations and require

only that the classification challenged be rationally

related to a legitimate state interest.” City of New Orleans

v. Dukes, 427 U.S. 297, 303 (1976). If a classification is

based on a forbidden characteristic, then by definition

it would not be a class-of-one case. Under rational-

basis review, the Court continued, “it is only the

invidious discrimination, the wholly arbitrary act, which

cannot stand consistently with the Fourteenth Amend-

ment.” Id. at 303-04. It is the plaintiff who bears the

heavy burden of showing such a complete lack of ra-

tionality in the challenged state action.

The Supreme Court’s two recent class-of-one cases

confirm in our view that this is the standard faced by

the Del Marcelles of the world. In Olech, the Court

recalled that it had “recognized successful equal protec-

tion claims brought by a ‘class of one,’ 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. at 564. The Court specifically declined to reach the

question whether subjective ill will is also required in

these cases. Id. at 565. Engquist reaffirmed Olech, quoting

with approval the language to which we have just re-

ferred. 553 U.S. at 601. Stressing the importance of the

capacity in which a state acts, however, Engquist held

that when the state acts as an employer, the class-of-one

theory is unavailable. In so holding, it relied on a long

line of cases that have recognized in other constitutional

No. 10-3426 57

areas the unique position of the government-as-em-

ployer. See, e.g., O’Connor v. Ortega, 480 U.S. 709 (1987)

(Fourth Amendment); Bishop v. Wood, 426 U.S. 341 (1976)

(Due Process); Connick v. Myers, 461 U.S. 138 (1983) (First

Amendment).

At the same time, the Court offered some observations

about “forms of state action . . . which by their nature

involve discretionary decisionmaking based on a vast

array of subjective, individualized assessments.” 553

U.S. at 603. In such cases, it noted, the rule that people

should be treated alike, under like circumstances and

conditions, is not violated merely because one person

is treated differently from others, because the differ-

ence in treatment is an accepted consequence of the

discretion granted. Id. It gave as examples of the latter

situation the traffic officer posted on a busy highway

who randomly chooses from all who are speeding just

a few who receive a ticket. This does not represent im-

permissible discrimination, the Court opined, with

the following comment:

But assuming that it is in the nature of the particu-

lar government activity that not all speeders can

be stopped and ticketed, complaining that one

has been singled out for no reason does not

invoke the fear of improper government classi-

fication. Such a complaint, rather, challenges the

legitimacy of the underlying action itself—the

decision to ticket speeders under such circum-

stances. Of course, an allegation that speeding

tickets are given out on the basis of race or

58 No. 10-3426

sex would state an equal protection claim, be-

cause such discriminatory classifications im-

plicate basic equal protection concerns. But al-

lowing an equal protection claim on the ground

that a ticket was given to one person and not

others, even if for no discernible or articulable

reason, would be incompatible with the discre-

tion inherent in the challenged action. It is no

proper challenge to what in its nature is a sub-

jective, individualized decision that it was sub-

jective and individualized.

Id. at 604. The Court then applied that principle to the

employment context, noting that employment decisions

are often subjective and individualized. Id. The Court

explicitly noted, nevertheless, that it was not categorically

ruling out class-of-one cases for anything but those in-

volving public employment. Id. at 607 (“[T]he class-of-

one theory of equal protection has no application in

the public employment context—and that is all we

decide . . . .”).

This case presents the question how Olech and Engquist

apply at a more general level. In particular, the issue

is whether it is enough for a class-of-one plaintiff to

plead and ultimately to prove irrationality in the state’s

action, or if in addition the plaintiff must demonstrate

illegitimate animus. One group of cases has required

the latter showing. See, e.g., Hilton v. City of Wheeling,

209 F.3d 1005, 1008 (7th Cir. 2000); Purze v. Vill. of

Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002); Cruz v.

Town of Cicero, 275 F.3d 579, 587 (7th Cir. 2001). Another

No. 10-3426 59

group has phrased the test in the alternative, looking to

see if there was no rational basis for the difference

in treatment or the cause of the differential is “totally

illegitimate animus.” Lunini v. Grayeb, 395 F.3d 761, 768

(7th Cir. 2005); see also McDonald v. Vill. of Winnetka, 371

F.3d 992, 1001 (7th Cir. 2004). Panels of the court have

noted the confusion in our case law on more than one

occasion. See, e.g., Srail v. Vill. of Lisle, 588 F.3d 940, 944

(7th Cir. 2009); Racine Charter One, Inc. v. Racine Unified

Sch. Dist., 424 F.3d 677, 683-84 (7th Cir. 2005). Other courts

of appeals have also stated the test in divergent ways.

See, e.g., Analytical Diagnostic Labs v. Kusel, 626 F.3d 135,

140 (2d Cir. 2010) (not imposing an animus requirement

but requiring plaintiffs to show that “decisionmakers

were aware that there were other similarly-situated

individuals who were treated differently”); Lindquist v.

City of Pasadena, 525 F.3d 383, 387 (5th Cir. 2008)

(explicitly declining to impose an animus requirement).

We had hoped to make some sense of all of this, but

regrettably, that proved to be impossible. At most, per-

haps, the differences among us narrowed slightly as a

result of this litigation, but ultimate resolution will

have to await another day.

C

As the Tenth Circuit has observed, it is necessary to

pay attention to both the substantive standards and the

pleading standards that govern these claims. See Kansas

Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011).

Del Marcelle faces the challenge of presenting a case that

60 No. 10-3426

is governed by the equal protection theory that gives

the greatest deference to the state actor. He does not

assert that he belongs to any class that receives special

solicitude from the courts, nor is he saying that

the actions of the Brown County Sheriff or the various

municipal police officers infringed any fundamental

right that the Supreme Court has recognized. The state

actions in question are therefore entitled to a presump-

tion of constitutionality; they can be disturbed only if

they are in fact discriminatory, and if that discrimina-

tion lacks any conceivable rational basis; it is

the plaintiff’s burden to show why that might plausibly

be the case. We use the word “plausibly” here for a

reason. That is the standard that the Supreme Court has

adopted for judging the adequacy of pleadings.

As we explain below, in our view a plaintiff seeking

to present a class-of-one case must include in his or her

complaint plausible allegations about the following

elements: (1) plaintiff was the victim of intentional dis-

crimination, (2) at the hands of a state actor, (3) the

state actor lacked a rational basis for so singling out the

plaintiff, and (4) the plaintiff has been injured by the

intentionally discriminatory treatment. In so doing, the

plaintiff must present facts—not bare legal conclusions—

that support these points. Twombly, 550 U.S. at 544;

Iqbal, 556 U.S. at 662; Swanson v. Citibank, 614 F.3d 400

(7th Cir. 2010). In particular, the complaint must set

forth a plausible account of intentional discrimination,

which is required for any violation of the Equal Protec-

tion Clause. See, e.g., Washington v. Davis, 426 U.S. 229

(1976); Wayte v. United States, 470 U.S. 598, 610 (1985)

No. 10-3426 61

(“[D]iscriminatory purpose” can be shown by demon-

strating that “the decisionmaker . . . selected or reaffirmed

a particular course of action at least in part because of,

not merely in spite of, its adverse effects . . . .”) (quotation

omitted). This is no small task. The complaint must

also indicate how the plaintiff proposes to shoulder the

burden of demonstrating the lack of a rational basis.

There is no single way to accomplish that task, but, as

Engquist stresses, a plaintiff must do more than show

that state actors who have legitimately been delegated

discretion to act simply exercised that discretion. It is

entirely rational, in other words, to permit state actors

to make individualized decisions when the very nature

of their job is to take a wide variety of considerations

into account.

The other factors that have crept their way into our class-

of-one cases—personal animus, illegitimate motives,

inexplicable deviations from clear rules—are not primary

rules. They are instead illustrative of the kind of facts

on which a plaintiff might rely in a complaint to show

that the lack of a rational basis is not merely possible,

but plausible. In some instances, well illustrated by

Olech, the state actor may inexplicably have failed to

follow what the Engquist Court called a “clear standard

against which departures, even for a single plaintiff,

could be readily assessed.” 553 U.S. at 602. Plaintiff

need only plead the existence of such a standard and

the state actor’s failure to meet that standard in order

to satisfy Twombly and Iqbal and go forward. In many

other cases, however, more will be required to cross the

line between possibility and plausibility of intentional,

62 No. 10-3426

irrational behavior. Often something like animus, or

the lack of justification based on public duties for

singling out the plaintiff (as Judge Posner proposes), or an

impermissible personal motivation, will serve that pur-

pose. Again, as the Supreme Court indicated in Engquist,

it will not be enough to challenge “what in its nature is

a subjective, individualized decision” solely with the

accusation “that it was subjective and individualized.”

Id. at 604. That sort of accusation would not be enough

to show plausibly that plaintiff will be able to rebut

the presumption of rationality.

The Tenth Circuit took much the same approach as

the one we are describing in its Kansas Penn decision. It

held that a class-of-one plaintiff bears a “substantial

burden” to describe those who are similarly situated in

all material respects (i.e., others who have been treated

more favorably), how plaintiff was treated differently,

and that there is “no objectively reasonable basis for

the defendant’s action.” 656 F.3d at 1217. That court,

however, thought that it was necessary at the pleading

stage to provide evidence of the comparators, rather

than saving that detail for summary judgment. This

represented an extension of the holdings in the cases

on which it relied, all of which involved the affirmance

of summary judgment for the defendants. See 656 F.3d

at 1217-18, citing Jicarilla Apache Nation v. Rio Arriba

C’nty, 440 F.3d 1202, 1212 (10th Cir. 2006); Jennings v.

City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004);

Analytical Diagnostic Labs, 626 F.3d at 143; Cordi-Allen

v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007); and Purze,

No. 10-3426 63

286 F.3d at 455; see also McDonald, 371 F.3d at 1009 (af-

firming summary judgment based on failure to prove

comparators).

In Geinosky v. Chicago, 675 F.3d 743 (7th Cir. 2012), this

court held that there was “no basis for requiring the

plaintiff to identify [the similarly situated] person in the

complaint.” Id. at 748 n.3 (emphasis in original). That was

because Geinosky alleged that police had given him

numerous baseless parking tickets over a long period

of time; to require Geinosky to name a specific

comparator in his complaint would have asked him to

do nothing more than point to another random person

in Chicago, who had not received the same pattern of

parking tickets. The allegation of discrimination under

these circumstances was enough in itself to signal that

others were not being subject to the same kind of harass-

ment. It was thus not essential that Geinosky identify a

specific comparator in order to paint a plausible pic-

ture of intentional discrimination without a rational

basis—there was no conclusion that could be drawn,

other than the police had targeted Geinsoky alone to

receive a series of baseless tickets.

Not all cases will be this straightforward. In some, as

part of the burden of pleading intentional discrimina-

tion, plaintiff may need to be more explicit about how

his or her treatment was different from that of others.

This flows from the substantive test for an equal protec-

tion claim: discrimination for this purpose occurs when

one is “intentionally treated differently from others

similarly situated.” Olech, 528 U.S. at 564; see also City

64 No. 10-3426

of Cleburne, 473 U.S. at 439. It may be difficult to

accomplish this task without including some facts in

the complaint that tell the court who (if it is not obvious,

as it was in Geinosky) falls in the favored class-of-

many. These kinds of details could, as a practical matter,

be essential to signal how the plaintiff proposes to rebut

the presumption that an officer with discretion to

consider a variety of factors has done nothing more

than exercise that discretion. Plaintiff must plead facts

showing that his unfavorable treatment could not have

rested on a legitimate exercise of discretion conferred

by the relevant laws. The more discretion an official

has, the more difficult this task will be. But as Geinosky

demonstrates, in some cases the discriminatory nature

of the official conduct will be apparent even without

any particularized allegations about the favored group,

and so we would not impose an across-the-board require-

ment that plaintiffs identify a specific comparator in

the complaint. To the extent that this deviates from the

Kansas Penn holding (and the difference may be only

superficial, since the facts before that court were dif-

ferent from those in Geinosky), we would part company

with the Tenth Circuit. We believe that it is enough, as

we have already said, to plead the four elements set

forth earlier: intentional discrimination, on the part of

a state actor, lack of a rational basis, and injury.

This approach “addresses the main concern with the

class-of-one theory—that it will create a flood of claims

in that area of government action where discretion is

high and variation is common.” Kansas Penn, 656 F.3d at

No. 10-3426 65

1218. Given the presumption of validity that attaches to

both state legislation and administrative or executive

activity, a plaintiff will often need to set out relatively

detailed allegations to exclude the possibility that a

defendant acceptably exercised discretion. This task will

be easier, as Engquist pointed out, when the state has

inexplicably deviated from a clear rule like the ease-

ment length in Olech; it will be more difficult for cases

attempting to attack decisions where discretion plays

a significant role. As the Supreme Court warned

in Twombly and reiterated in Iqbal, “[w]here a com-

plaint pleads facts that are merely consistent with a de-

fendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” 556

U.S. at __, 129 S. Ct. at 1949. Qualified immunity will

also frequently relieve state actors of the burden of litiga-

tion in this area: if discretion is broad and the rules are

vague, it will be difficult to show both a violation of a

constitutional right and the clearly established nature

of that right. See, e.g., Pearson v. Callahan, 555 U.S. 223,

232 (2009).

This illustrates how one would distinguish the case of

the police officer who cannot stop all speeding cars and

thus randomly selects just a few from a proper class-of-one

case. At first blush, it might appear that the officer has

behaved in an arbitrary fashion, but that impression

is easily dispelled: a system of random checks is a

rational enforcement mechanism. Police act with limited

resources and cannot possibly stop every single speeder.

Furthermore, it would be almost impossible to demon-

66 No. 10-3426

strate intent to discriminate against the particular

stranger whom the police officer happened to pull over. As

Kansas Penn noted, “the fact that government action

is infrequent, or that a formerly unenforced regulation

is enforced, is not enough to create a federal cause of

action.” 656 F.3d at 1220; see also Chavez v. Illinois State

Police, 251 F.3d 612 (7th Cir. 2001) (finding that

plaintiffs failed to prove intentional race discrimination

in highway stops made by Illinois State Police, and thus

failed to state an equal protection claim). Only if the

complaint offers facts that would support the elements

outlined above should it be able to survive a motion

to dismiss under Rule 12(b)(6).

D

Last, we explain why we would refuse the invitation

from the appellees to extend Engquist’s holding to all

forms of law enforcement. This court has, it is true, held

that no class-of-one claim is possible for a person

who wants to complain, essentially, about prosecutorial

discretion. United States v. Moore, 543 F.3d 891 (7th Cir.

2008). In Moore, the defendant argued that the Equal

Protection Clause is violated by the law that allows a

criminal sentence below the statutory mandatory mini-

mum only upon a government motion based on sub-

stantial assistance. That opinion first noted that Moore

was not similarly situated to others who had been prose-

cuted in state court for offenses involving approxi-

mately the same drug amounts. More important, how-

ever, was the fact that Moore’s argument was flatly

No. 10-3426 67

inconsistent with the theory of nearly complete pros-

ecutorial discretion that prevails in our system. (We say

“nearly” because that discretion, as was noted in Moore,

is subject to constitutional constraints such as the pro-

hibition against discrimination on the basis of race or

religion. But that qualification played no part in either

Moore’s case, nor is it relevant here.) Critically for

present purposes, even irrationality is not a ground on

which prosecutorial discretion may be challenged. Id. at

900. With irrationality off the table, it follows that the

third element of a class-of-one equal protection claim

can never be satisfied when the attempted attack is on

an exercise of prosecutorial discretion. E.g., United States

v. Green, 654 F.3d 637 (6th Cir. 2011) (rejecting equal

protection challenge to prosecution’s decision to

proceed in civilian rather than military court). We thus

have no problem adhering to the holding in Moore to

the effect that there is no place for a class-of-one theory

directed against prosecutorial decisionmaking.

The situation presented in cases challenging police

action is quite different, as this court explained in Hanes

v. Zurick, 578 F.3d 491 (7th Cir. 2009):

Although the police enjoy broad freedom of

action, their discretion is much narrower than

the discretion given to 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.” And while employment deci-

68 No. 10-3426

sions are inherently subjective, subjective inten-

tions play no role in evaluating police seizures

under the Fourth Amendment. . . . [A]sking a court

to determine whether a police officer’s act was

constitutional is not at all unprecedented.

Id. at 495 (internal citations and quotation marks omit-

ted). The plaintiff in Hanes had alleged that the police

were motivated by malice and had no reason related

to their official duties for their actions. Had this been

all, the complaint likely would have been dismissed

under Iqbal for containing nothing but a conclusion of

law. The complaint, however, included details that

showed that this was not merely possible but was

actually plausible. The police had arrested Hanes eight

times; those arrests had led to 13 criminal charges for

minor crimes; yet every charge was later dropped. At

the same time, the police were ignoring Hanes’s own

complaints against others, no matter what the under-

lying facts.

Defendants point to a recent decision of the Eighth

Circuit, Novotny v. Tripp County, 664 F.3d 1173 (8th Cir.

2011), which they say has extended Engquist to discre-

tionary law-enforcement decisions like those at issue

here. We do not read Novotny so broadly. Among other

complaints, Novotny charged that county officials were

unequally enforcing the county’s weed ordinances

against him. But his only evidence for this was hearsay

in two letters from the state Department of Agriculture

to the county weed board—evidence that was insuf-

ficient to support summary judgment. Only after

No. 10-3426 69

making that point did the Eighth Circuit add that

Novotny had failed to state a class-of-one claim, because

the weed ordinance was a uniform rule with neces-

sarily discretionary enforcement. 664 F.3d at 1179. In the

absence of any reason to think that the Department

of Agriculture and the weed board were discriminating

against Novotny in an entirely irrational way—

and Novotny provided none—this ruling is entirely

consistent with the rule we are proposing. Although

the Eighth Circuit, in passing, cited Engquist for the

proposition that the class-of-one principle does not

apply to discretionary decisions based on a broad array

of subjective, individualized criteria, see id., this point

was neither explored fully nor was it necessary to the

outcome. We therefore consider Novotny to be distin-

guishable from the case before us.

Because police action of the type alleged in Hanes and

in Del Marcelle’s case falls closer to the “discretionary”

end of the spectrum, a putative class-of-one complainant

faces a much higher burden to show that the exercise

of that discretion was irrational. This, we believe, is

what our court and others have been driving at ever

since Olech and Engquist in the suggestions that animus,

or malice, or lack of any possible legitimate state

purpose, plays a part in class-of-one cases. Those motive

elements are not always necessary, as Olech illustrates,

and indeed, it is not clear to us that Judge Posner’s sepa-

rate opinion even takes that position. Nor should

animus (or something similar) be seen as an alternative

to a showing of irrationality. Instead, in the cases that

do not rest on the state’s failure to follow a clear

70 No. 10-3426

standard, the plaintiff has the burden of showing in

the complaint some plausible reason to think that in-

tentional and irrational discrimination has occurred.

Pleading animus or improper purpose will often be

an effective way to accomplish that goal.

* * *

Fanciful stories of persecution, backed up by nothing

but conclusory allegations, will not pass the bar estab-

lished by Rule 12(b)(6). But there will be occasional cases

that do, as the Supreme Court has taught. We return to

the most basic proposition: the Equal Protection Clause

protects individual persons, not groups. If a plaintiff

can meet the pleading burdens we have described here,

then he or she should be entitled to pursue a class-of-one

case.

This brings us to the driving force that has split our

court evenly down the middle. Five members would

end Del Marcelle’s case here; five would allow him to

replead. Unfortunately, this even division has prevented

us from coming to rest on the substantive standard

that should govern these cases. These standards were

unclear, to put it charitably, at the time Del Marcelle

filed his pro se complaint, and at the time the district court

evaluated it. The full court agrees that as it stands,

Del Marcelle’s complaint is inadequate. As we would

put it, the complaint fails to meet his substantial burden

to present a plausible account that the police acted

without any rational basis when they failed to respond

to some of his complaints but did respond to the

gang members’ corresponding complaints by issuing

No. 10-3426 71

citations to him. For example, Del Marcelle attached a

police report to his complaint showing that police in-

vestigated an incident in which Del Marcelle asserted

that a gang member tried to run him over. But Del

Marcelle’s own filing shows that the police did not

ignore his complaint. To the contrary, they spoke to

the car driver and various witnesses (except for Del

Marcelle, who refused to speak to them). They concluded

that Del Marcelle had actually provoked the incident

by throwing a rock at the car and shattering its wind-

shield. Del Marcelle provides no reason for the court

to believe that this police report was falsified or to

question its conclusions. Thus, at present (even as sup-

plemented by the additional materials we mentioned at

the outset) Del Marcelle’s complaint does not plausibly

suggest that police officers failed to respond to him

because they irrationally discriminated against him.

Instead, it appears to be just as likely that police

acted rationally by declining to take action on what

they determined to be baseless complaints.

The question is what to do now: simply affirm the

dismissal, or permit Del Marcelle to replead consistently

with an agreed standard. In light of the unsettled state

of the law, the general rule favoring an opportunity to

replead, and the fact that Del Marcelle was proceeding

pro se, we would give him one more chance. The court

may think that it can predict what he will be able to do,

but it is critical to recall that the factual record has not

yet been developed, and so we are all operating in the

dark. We are not prepared to express any opinion on

the question whether an amended complaint could

72 No. 10-3426

pass muster. Had the court been willing to give Del

Marcelle another chance, it is also worth noting that

this would have been more limited than his original

suit. Specifically, we would have held that he cannot

proceed against the two individual defendants, County

Executive Tom Hintz and Ashwaubenon Village

President Mike Aubinger, without a showing that each

one was personally involved with the course of action

he is challenging. Similarly, any complaint against

Brown County or Ashwaubenon would have needed to

satisfy the criteria of Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658 (1978). The district court’s earlier

order had nothing to say about either individual liability

or municipal liability.

We end with a brief comment on the standard of

liability that four members of the court have endorsed.

In our view, it will be a difficult one for the district

courts to follow. It is all too easy for a plaintiff to

accuse someone of a malicious motive and thus to

impose on the entire system the burden of going for-

ward. The standard we favor, the one in this opinion,

would be easier for the district courts to apply at

the pleading stage because it does not require mind-

reading. Finally, we are deeply concerned that

Judge Posner’s opinion might be read as endorsing a

new type of rational-basis test that the Supreme Court

has never created—some kind of “rational-basis minus”

level of review. We hope that this is not the case, but

it seems that he is concerned that too many class-of-

one cases will slip by the normal rational-basis screen.

No. 10-3426 73

We do not share that view, but unfortunately we have

not been able resolve the matter in the present case.

We would reverse the judgment of the district court

and remand to give Del Marcelle a chance to replead,

using the standards we have described in this opinion.

We therefore dissent from the order of the court

affirming the judgment of the district court.

5-17-12