Denis Navratil v. City of Racine

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-1208

DENIS NAVRATIL, et al.,

Plaintiffs-Appellants,

v.

CITY OF RACINE and CORY MASON,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:21-cv-00181-SCD — Stephen C. Dries, Magistrate Judge.

____________________

ARGUED NOVEMBER 30, 2023 — DECIDED MAY 6, 2024

____________________

Before HAMILTON, KIRSCH, and PRYOR, Circuit Judges.

HAMILTON, Circuit Judge. On April 24, 2020, plaintiff-

appellant Denis Navratil attended a rally at the Wisconsin

State Capitol to protest the recent statewide “Safer at Home

Order” that limited public gatherings, travel, and business

operations to combat the COVID-19 pandemic. The rally itself

was a violation of the Safer at Home Order. Also, a permit is

required to hold rallies at the State Capitol, and the permit

application for the April 24 rally had been denied because of

2 No. 23-1208

the COVID-19 pandemic and the Safer at Home Order. By

April 24, 2020, 291 people had died of COVID-19 in the state

of Wisconsin. There were over 5,000 confirmed cases in the

state, with more than 200 new cases being diagnosed each

day. 1

In this lawsuit, Denis Navratil, his wife Dimple Navratil,

and their business, Dimple’s LLC, have asserted several

constitutional claims against the City of Racine and Mayor

Cory Mason, as well as a defamation claim against Mason. At

the heart of all the claims was the city’s decision not to give

an emergency grant to Dimple’s LLC because Denis had gone

to the April 24 rally. Presiding with the consent of the parties

under 28 U.S.C. § 636(c), a magistrate judge granted summary

judgment for both defendants on all claims. Plaintiffs have

appealed, and we affirm.

I. Factual and Procedural History

Because we are reviewing a grant of summary judgment,

plaintiffs as the non-moving parties are entitled to the benefit

of all conflicts in the evidence and to reasonable inferences in

their favor. Whitaker v. Wisconsin Dep't of Health Services, 849

F.3d 681, 682 (7th Cir. 2017). All facts are drawn from the

district court’s account of the facts for purposes of summary

judgment unless otherwise noted. See Navratil v. City of

Racine, No. 21-cv-181-SCD, 2023 WL 9190207 (E.D. Wis. Jan. 5,

2023).

1 Statistics are from Johns Hopkins University & Medicine’s Corona-

virus Resource Center’s Data Timeline for the state of Wisconsin,

https://coronavirus.jhu.edu/region/us/wisconsin

[https://perma.cc/T6MM-8N6T].

No. 23-1208 3

The World Health Organization declared COVID-19 a

global pandemic on March 11, 2020. In an effort to slow the

virus’s spread, Wisconsin Governor Tony Evers and

Department of Health Services Secretary-designee Andrea

Palm issued the Safer at Home Order, which prohibited

people from going out in public except to perform limited

“essential activities.” The order caused many non-essential

businesses, including restaurants and retail stores, to close

temporarily.

The City of Racine, Wisconsin made emergency funds

available to mitigate economic damage to non-essential busi-

nesses forced to close under the Safer at Home Order. As part

of the grant application process, Racine Mayor Cory Mason

met with an ad hoc committee to review grant applications.

Mayor Mason and committee members reviewed applications

from businesses that met certain objective criteria to qualify

for the funds. The funds available for emergency grants were

quite limited, though. Mayor Mason had sole discretion to

determine which qualifying applicants received emergency

funding. The city could not guarantee that a business meeting

the qualifying criteria would receive funding.

Plaintiffs Denis and Dimple Navratil are married and

operate Dimple’s Fine Imports in Racine, Wisconsin. Dimple’s

Fine Imports is an import and gift store that is under the

control of Dimple’s LLC. Dimple is the sole owner of Dimple’s

LLC, and Dennis works as the store manager.

Dimple applied for emergency funding through Dimple’s

LLC in March 2020 during the first round of city grants. The

city distributed $250,000 to eighteen different businesses, but

Dimple’s LLC was not awarded a grant in that initial round

of funding.

4 No. 23-1208

On April 24, 2020, Dimple again applied for funding

through the LLC during the second round of city grants. That

was the same day that Denis attended the “Wisconsin

Freedom Rally #Reopen Wisconsin” in Madison, Wisconsin.

The rally took place at the Wisconsin State Capitol to

protest the restrictions imposed by the Safer at Home Order,

including business closures. The rally itself violated the Safer

at Home Order’s ban on public gatherings. Also, for large

events at the State Capitol, a permit is required under

Wisconsin Statute § 16.845 and Wisconsin Administrative

Code § 2.04. The April 24 rally organizers were denied a

permit because the gathering would violate the Safer at Home

Order.

At the April 24 rally, Denis spoke with a television news

reporter, and a video clip of the interview was aired on a local

news station. Denis told the reporter that he was present at

the rally “out of curiosity” and as an “observer” because he

could “understand both sides of the argument for COVID

restrictions.” He also told the reporter that he believed the

Safer at Home Order was harmful to small businesses. Racine

Mayor Mason saw the interview.

The city denied Dimple’s LLC’s second application on

May 12, 2020. In that round of grants, nearly 200 businesses

had applied for about $650,000 in available grant money.

The day after that denial, on May 13, 2020, the Wisconsin

Supreme Court invalidated the Safer at Home Order. The

court based its decision on state administrative law, without

reaching any federal constitutional issues.

About seven weeks later, on June 26, 2020, Mayor Mason

told the Racine Journal Times that he denied Dimple’s LLC’s

No. 23-1208 5

application in the second round of grants because of Denis’s

attendance at the April 24 rally. The mayor’s press statement

read in full:

As Mayor, it is my duty to protect the public

health of our City’s residents. While I certainly

support the rights of free speech and assembly,

I cannot in good conscious [sic] send scarce City

resources to a person or business that willingly

jeopardized public health, especially when they

were competing with other businesses who

were not flagrantly violating safety measures. If

an applicant was openly violating the statewide

“Safer at Home” order and the public health

emergency under which the City was operating

to help mitigate the spread of coronavirus, that

applicant would compete less favorably. For in-

stance, participating in mass gatherings outside

of our community, such as the rally that was

held at the State Capitol – such large gatherings

have been linked to cases of COVID-19 around

the state – and then returning to our City, only

served to put our residents at unnecessary risk

and, thus, factored into the funding considera-

tion. When it comes to disbursing discretionary

funds aimed at helping businesses who were

sacrificing to protect public health, the City is

not going to reward business owners who took

reckless behaviors that risked the health of our

community.

Dkt. 45 at 7. Testimony in this case showed that Mayor Mason

brought up Denis’s attendance at the April 24 rally when he

6 No. 23-1208

and the ad hoc committee discussed Dimple’s LLC’s applica-

tion for the second round of funding. Dkt 52-3 at 17, 19; Dkt.

52-1 at 2–3. Also, during a telephone call with Dimple after

the denial of her LLC’s second application, Mayor Mason ex-

plained that he denied the grant because of Denis’s attend-

ance at the April 24 rally. Dimple’s contemporaneous notes of

the call say, “He said it was against the compliance to … be in

[the] rally. Then I connected that he was talking about Denis

going to Madison protest.” Dkt 49-2 at 3.

On February 15, 2021, the Navratils and Dimple’s LLC

filed this suit against the City of Racine and Mayor Mason

alleging that the denial of their grant application violated

their constitutional rights to free speech, equal protection, and

due process. The Navratils and Dimple’s LLC further alleged

that Mayor Mason defamed Denis in the June 2020 press

statement describing the reason he denied the application.

The city and Mayor Mason moved to dismiss some claims.

The district court granted the motion, dismissing Dimple’s

LLC’s First Amendment retaliation claim, Denis’s equal pro-

tection and due process claims, and Dimple’s equal protection

and due process claims. The appellants do not challenge any

of these dismissals on appeal. Dkt. 65.

The city and Mayor Mason eventually moved for

summary judgment on the remaining claims: Denis’s First

Amendment retaliation claim, Dimple’s LLC’s equal

protection claim, Dimple’s LLC’s due process claim, and

Denis’s defamation claim. The district court granted

summary judgment for the defendants on all claims, and this

appeal followed.

No. 23-1208 7

II. Standard of Review

We review a trial court’s grant of summary judgment de

novo, construing the evidence in the light most favorable to

the non-moving parties and drawing all reasonable inferences

in their favor. E.g., Carmody v. Board of Trustees of Univ. of Illi-

nois, 893 F.3d 397, 401 (7th Cir. 2018). Summary judgment is

proper if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists

when ‘the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.’” Estate of Simpson v. Gor-

bett, 863 F.3d 740, 745 (7th Cir. 2017), quoting Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Analysis

A. First Amendment Retaliation

The district court granted summary judgment to the city

and Mayor Mason on Denis’s First Amendment retaliation

claim. 2 To avoid summary judgment on a section 1983 claim

of First Amendment retaliation, a plaintiff must offer evidence

showing that: “(1) he engaged in activity protected by the

First Amendment, (2) he suffered an adverse action that

would likely deter future First Amendment activity, and

(3) the First Amendment activity was at least a motivating

factor in the defendants’ decision to retaliate.” Gekas v.

Vasiliades, 814 F.3d 890, 895 (7th Cir. 2016) (internal quotations

omitted). Here, Denis’s claim fails on the first element. His

attendance at the April 24, 2020 rally was not protected First

2 Any retaliation claim by Dimple Navratil was waived in the district

court. Navratil, 2023 WL 9190207 at *4 n.4.

8 No. 23-1208

Amendment activity because the rally was prohibited by two

valid time, place, and manner restrictions—the Safer at Home

Order and the state permit requirement.

1. Valid Time, Place, and Manner Restrictions

Whether certain speech or activity is protected under the

First Amendment is a question of law for the court. Kubiak v.

City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016). The First

Amendment protects freedom of speech, the right to assemble

peaceably, and the right to petition the government for

redress of grievances, but those rights are not absolute. E.g.,

Heffron v. Int'l Society for Krishna Consciousness, Inc., 452 U.S.

640, 647 (1981) (“[T]he First Amendment does not guarantee

the right to communicate one’s views at all times and places

or in any manner that may be desired.”). As explained by the

Supreme Court, “even in a public forum the government may

impose reasonable restrictions on the time, place, or manner

of protected speech, provided the restrictions ‘are justified

without reference to the content of the regulated speech, that

they are narrowly tailored to serve a significant governmental

interest, and that they leave open ample alternative channels

for communication of the information.’” Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989), quoting Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 293 (1984).

We assume for purposes of this appeal that Denis’s

attendance at the rally was expressive conduct that constitutes

speech pursuant to the First Amendment. See, e.g., Spence v.

Washington, 418 U.S. 405, 409–10 (1974) (explaining that

conduct must be “sufficiently imbued with elements of

communication” to constitute a “form of protected

expression”). His conduct was not protected, however, from

No. 23-1208 9

reasonable and content-neutral restrictions on the time, place,

and manner of his expression. 3

a. Safer at Home Order

The Safer at Home Order was content-neutral and de-

signed to serve a significant government interest—protecting

public health and safety. See, e.g., Elim Romanian Pentecostal

Church v. Pritzker, 962 F.3d 341, 343, 347 (7th Cir. 2020) (affirm-

ing denial of preliminary injunction after district court found

Illinois governor’s executive order limiting gathering sizes

during COVID-19 pandemic was supported by compelling

need to safeguard public health during pandemic).

As we explained in Elim Church in June 2020, “we do not

evaluate orders issued in response to public-health

emergencies by the standard that might be appropriate for

years-long notice-and-comment rulemaking.” Id. at 347, citing

Jacobson v. Massachusetts, 197 U.S. 11 (1905). This deference is

appropriate. The Constitution “principally entrusts ‘[t]he

safety and the health of the people’ to the politically

accountable officials of the States ‘to guard and protect.’”

South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613,

1613 (2020) (mem.) (Roberts, C.J., concurring) (alteration in

original), quoting Jacobson, 197 U.S. at 38. “When those

officials ‘undertake[ ] to act in areas fraught with medical and

scientific uncertainties,’ their latitude ‘must be especially

3 Denis asserts that he attended the April 24 rally merely as an “ob-

server” because he could see “both sides” of the issue. Dkt. 50-1 at 4–5.

The district court inferred that Denis’s attendance at the rally was thus not

expressive conduct because simply observing an event does not com-

municate any particular message. 2023 WL 9190207 at *4. Defendants do

not challenge on appeal whether Denis’s attendance at the rally was ex-

pressive conduct, so we do not address this alternative holding.

10 No. 23-1208

broad.’” Id. (alteration in original), quoting Marshall v. United

States, 414 U.S. 417, 427 (1974).

Plaintiffs argue that the Safer at Home Order was too

broad to be a valid time, place, and manner restriction

because it banned public gatherings. April 2020 was scarcely

a month into the COVID-19 pandemic and our understanding

of the virus’s spread. State and local officials were working to

slow the transmission of the virus, to “flatten the curve,” to

protect public health, and to limit the severe demands that

COVID-19 cases were placing on the health-care system.

Placing limits on public gatherings within the state was

tailored to “prevent[ ] the transmission of viral particles …

from one person to the next.” Illinois Republican Party v.

Pritzker, 973 F.3d 760, 761 (7th Cir. 2020). With the benefit of

hindsight and additional scientific evidence, we assume that

reasonable minds might disagree on whether any particular

restrictions among those early responses were the most

effective means of stopping the spread of COVID-19. But our

analysis is focused on what state and local officials knew at

the time. See Elim Church, 962 F.3d at 347 (“Perhaps with more

time—and more data from contact tracing—Illinois could

figure out just how dangerous religious services are

compared with warehouses and similar activities, but no one

contends that such data were available when Executive Order

2020-32 was promulgated (or, for that matter, now).”).

Here, it is clear at the time of its issuance that a temporary

ban on large public gatherings during a global pandemic was

a valid time, place, and manner restriction on speech. It was

reasonable, and it was content-neutral. Denis’s attendance at

the April 24 rally violated the Safer at Home Order. Therefore,

No. 23-1208 11

his attendance was not protected First Amendment activity

and he cannot establish a retaliation claim.

b. State Permit Requirement

Wisconsin Statute § 16.845 authorizes the state to establish

permitting requirements for gatherings on state property,

including the State Capitol Park where the April 24 rally was

held. Under the regulations for permits for events on State

grounds, permits can be denied on the basis that a proposed

event is a hazard to the safety of the public or involves an

activity prohibited by law. Wis. Admin. Code § 2.04 (Aug.

2014). The Wisconsin permitting scheme for the Capitol is a

quintessential time, place, and manner restriction. See Thomas

v. Chicago Park District, 534 U.S. 316, 322, 324 (2002)

(permitting scheme for park events that allowed denials

based on risks to public health and safety was valid time,

place, and manner restriction); Gaylor v. Thompson, 939 F.

Supp. 1363, 1370–71 (W.D. Wis. 1996) (holding that permitting

scheme for displaying signs in Wisconsin State Capitol was

not unconstitutional).

The April 24 rally organizers were denied a permit

because the Safer at Home Order prohibited large public

gatherings for public health reasons during the pandemic.

The April 24 rally violated the state permit requirement,

which is another reason that Denis’s attendance at the rally

was not protected First Amendment activity.

2. Later Invalidation of the Safer at Home Order

Plaintiffs argue that Denis’s attendance at the April 24

rally was in fact protected First Amendment activity because

the Wisconsin Supreme Court later held the Safer at Home

Order invalid. That later decision does not affect our

12 No. 23-1208

conclusion. The court struck down the Safer at Home Order

in Wisconsin Legislature v. Palm, 2020 WI 42, 942 N.W.2d 900.

The court based its decision on a failure to follow proper state

administrative law procedural rulemaking requirements and

an over-stepping of statutorily delegated authority. Id. ¶¶ 3–

4. At no point did any court find the Safer at Home Order vi-

olated the First Amendment.

The Safer at Home Order’s later invalidation on state-law

grounds does not retroactively render Denis’s attendance at

the rally protected First Amendment activity. Particularly not

where, as here, the argument would be used to support

liability against a municipality relying on a facially valid law

to protect public health. Cf. Lemon v. Kurtzman, 411 U.S. 192,

209 (1973) (plurality opinion) (“[S]tate officials and those with

whom they deal are entitled to rely on a presumptively valid

state statute, enacted in good faith and by no means plainly

unlawful.”); Walker v. City of Birmingham, 388 U.S. 307, 317,

320–21 (1967) (affirming criminal contempt convictions for

violating state-court injunction of dubious constitutionality

restricting public demonstrations for civil rights). Because

Denis did not engage in protected First Amendment activity,

we affirm the grant of summary judgment to the city and

Mayor Mason on Denis’s First Amendment retaliation claim. 4

4 By affirming on this ground, we bypass questions about whether

Denis has a viable claim for a violation of his own First Amendment rights,

given that the alleged adverse action was taken against his spouse’s LLC

instead of him personally.

No. 23-1208 13

B. Equal Protection

1. Political Animus Theory

Plaintiffs argue that the city and Mayor Mason violated

Dimple’s LLC’s right to equal protection under the law on the

theory that its grant application was denied based on Mayor

Mason’s political animus toward the Navratils. The admissi-

ble evidence submitted on summary judgment does not raise

a genuine issue of fact on this theory but shows instead, be-

yond reasonable dispute, that Dimple’s LLC was denied

funding based on Denis’s attendance at the April 24 rally in

violation of the Safer at Home Order.

Ample evidence supports the defendants’ assertion that

Dimple’s LLC’s grant application was denied because of

Denis’s attendance at the April 24 rally. The question on

appeal is whether plaintiffs offered evidence sufficient to raise

a genuine factual dispute about that reason. Plaintiffs rely

most heavily on the deposition testimony of James Palenick,

City Administrator during the emergency grant process, as

evidence of Mayor Mason’s political animus.

Palenick testified that in the discussion of Dimple’s LLC’s

grant application, Mayor Mason explained he was not

supportive of the application because of Denis’s attendance at

the April 24 rally. Palenick testified that Mayor Mason said,

“if he had anything to say, that [Dimple’s LLC] wouldn’t get

a grant.” Dkt. 52-1 at 2–3. That comment is not evidence of

political animus, but only further confirmation that Dimple’s

LLC was denied emergency funding due to Denis’s rally

attendance. According to Palenick, Denis’s attendance at the

rally was the only reason Mayor Mason gave for opposing

Dimple’s LLC’s grant application.

14 No. 23-1208

Palenick went on to testify that he believed the denial of

Dimple’s LLC’s application was “political in nature.” Id. at 4.

When pressed on what his belief was based upon, however,

Palenick explained that it was mostly Republicans who op-

posed the Safer at Home Order and that Mayor Mason had

longtime ties to the Democratic party. Id. Palenick also testi-

fied, that he did not know whether Mayor Mason knew the

Navratils’ political affiliations, but rather assumed Mayor

Mason did because politics “was his business.” Id.

Palenick’s belief about Mayor Mason’s political motiva-

tion was not supported by any factual basis in the admissible

evidence. It is well-established that “inferences that are sup-

ported by only speculation or conjecture will not defeat a

summary judgment motion.” Design Basics, LLC v. Lexington

Homes, Inc., 858 F.3d 1093, 1099 (7th Cir. 2017), quoting Herzog

v. Graphic Packaging Int'l, Inc., 742 F.3d 802, 806 (7th Cir. 2014).

Palenick’s statement that Dimple’s LLC’s grant denial was

politically motivated was no more than conjecture and

supposition that a Democratic mayor must necessarily have

animus toward a Republican constituent. That is not enough

to defeat summary judgment. See FKFJ, Inc. v. Village of Worth,

11 F.4th 574, 587 (7th Cir. 2021) (affirming grant of summary

judgment to defendants: “[w]hile it is clear from [plaintiffs’]

testimony that they believe [defendant] is the reason they

went out of business and she intentionally tried to drive them

out of town, they have failed to present evidence to support

their beliefs” (emphasis in original)); see also Circle City

Broadcasting I, LLC v. AT&T Services, Inc., __ F.4th __, 2024 WL

1634093 at *5 (7th Cir. 2024) (affirming grant of summary

judgment to defendants because plaintiff’s theory that

defendants discriminated against plaintiff company on the

No. 23-1208 15

basis of the company owner’s race was not backed by

evidence and instead based on conjecture); Garrett v. Barnes,

961 F.2d 629, 634 (7th Cir. 1992) (upholding directed verdict

for defendants: “It may be easy to become cynical about

politics and politicians, but public perception of political

machinations, innuendo, and speculation cannot be the basis

of a jury verdict—and there is nothing else in this case.”);

Endicott v. Huddleston, 644 F.2d 1208, 1215 (7th Cir. 1980)

(affirming grant of defendants’ motion for judgment

notwithstanding the verdict and explaining, “all [plaintiff]

has shown is that he is a Democrat and that the defendants

are Republicans…. Even drawing all reasonable inferences

from the evidence viewed in the light most favorable to

plaintiff, we conclude there was insufficient evidence from

which a jury could find that the defendants’ actions were

motivated by political considerations”).

The evidence at summary judgment thus showed only one

reason for denying Dimple’s LLC’s grant application: Denis’s

attendance at the April 24 rally in violation of the Safer at

Home Order. The purpose of the city’s emergency grants was

to keep afloat small businesses forced to close or limit opera-

tions by the Safer at Home Order. Basing a denial on Denis’s

attendance at the rally was not subject to any heightened scru-

tiny under the Equal Protection Clause, and the defendants’

stated reason for the denial easily passes muster as rationally

related to a legitimate government purpose. It was not unrea-

sonable to deny discretionary grant funds to a business whose

manager seemed to have violated the law, thereby contrib-

uting to the public health crisis that created the need for emer-

gency funding in the first place. The denial of Dimple’s LLC’s

grant application was not a violation of the Fourteenth

Amendment’s Equal Protection Clause.

16 No. 23-1208

2. Class-of-One Theory

Dimple’s LLC also argues a class-of-one equal protection

theory. To prevail on a “class-of-one” equal protection claim,

a plaintiff must show that it was “treated differently from oth-

ers similarly situated, without a rational basis for the differ-

ential treatment.” Williamson v. Curran, 714 F.3d 432, 441 (7th

Cir. 2013). To be similarly situated the comparators must be

“identical or directly comparable in all material respects” to

the plaintiff. LaBella Winnetka, Inc. v. Village of Winnetka, 628

F.3d 937, 942 (7th Cir. 2010).

Dimple’s LLC’s theory is that other grant applicants who

violated the Safer at Home Order nevertheless received

funding. Plaintiffs have provided evidence that some

successful applicants likely violated the Safer at Home Order.

The problem for plaintiffs on this theory, however, is that they

have offered no evidence that, at the time the city was

considering the second round of emergency funding

applications, Mayor Mason knew that any other applicants

had violated the order. See Dkt. 52-3 at 14 (Mayor Mason

testifying Denis was the only applicant he knew to have

violated the Safer at Home Order at the time grants were

being considered). Mayor Mason also testified that if he had

known other applicants were violating the order, he would

have also denied their applications. Id. at 14, 16. Even if we

take such explanations with a grain of salt for purposes of

summary judgment, plaintiffs still have not offered

affirmative evidence of any similarly situated comparators—

businesses that Mayor Mason knew violated the Safer at

Home Order but received funding—to support this claim.

No. 23-1208 17

C. Due Process Claims

1. Procedural Due Process

Dimple’s LLC also argues that the city’s denial of its grant

application violated its right to procedural due process. The

Fourteenth Amendment’s Due Process Clause prohibits the

deprivation of life, liberty, or property by the government

without due process of law. “[W]e consider first whether the

plaintiff has been deprived of a protected interest in property

or liberty, and if that is established, we consider whether the

state’s procedures comport with due process.” Rock River

Health Care, LLC v. Eagleson, 14 F.4th 768, 773 (7th Cir. 2021).

Here, Dimple’s LLC cannot show it had any protected prop-

erty or liberty interest in the city’s COVID-19 emergency

grants.

It is well-settled that there is no property interest in a

purely discretionary government benefit. See, e.g., Board of Re-

gents v. Roth, 408 U.S. 564, 577 (1972) (“To have a property in-

terest in a benefit, a person clearly must have more than an

abstract need or desire for it. … He must, instead, have a le-

gitimate claim of entitlement to it.”); Bell v. City of Country

Club Hills, 841 F.3d 713, 719 (7th Cir. 2016) (“A protected prop-

erty interest exists only when the state’s discretion is clearly

limited such that the plaintiff cannot be denied the interest

unless specific conditions are met.” (cleaned up)). Cf. Rock

River Health Care, 14 F.4th at 774 (“Because [the Medicaid re-

imbursement rate] is defined by statute, and is not a discre-

tionary determination, it is the type of entitlement that trig-

gers due process protection.”).

The city’s emergency funding program had certain re-

quirements for eligibility, but once those requirements were

18 No. 23-1208

met, the actual award of funds was left to Mayor Mason’s dis-

cretion. Neither the city nor any governing legal rules guar-

anteed that a business meeting the criteria would receive

funding because the funds available were limited. Dimple’s

LLC simply had no constitutionally protected property inter-

est in the emergency funds.

Dimple’s LLC also argues that the denial of emergency

funds deprived it of a liberty interest in its right to run its

store. We reject this theory. Denying Dimple’s LLC a discre-

tionary grant did not deprive it of any legal right to continue

to operate, unlike the revocation of a business license or a ret-

roactive revision of zoning laws. Cf. Pro’s Sports Bar & Grill,

Inc. v. City of Country Club Hills, 589 F.3d 865, 870–71 (7th Cir.

2009) (business had protected property interest in liquor li-

cense and could not be deprived of renewed license without

due process of law). Dimple’s LLC was not deprived of any

constitutionally protected property or liberty interest, so its

procedural due process claim fails at the threshold.

2. Substantive Due Process

Plaintiffs also assert that the denial of the emergency fund-

ing application “shocks the conscience.” Suffice it to say that

the decision to deny one application for limited funds does

not meet the extraordinarily high “shocks the conscience”

standard. See generally County of Sacramento v. Lewis, 523 U.S.

833, 846 (1998) (“[T]he cognizable level of executive abuse of

power [is] that which shocks the conscience,” and “only the

most egregious official conduct” can meet this standard.).

It was not unreasonable, and certainly not conscience-

shocking, for the city to decide that a business whose key em-

ployee violated COVID-19 restrictions should not receive

No. 23-1208 19

limited COVID-19 emergency funding. This practical policy

decision is not in the same realm as government actions that

have been found conscience-shocking. Compare Rochin v. Cal-

ifornia, 342 U.S. 165, 172–73 (1952) (forcibly pumping criminal

suspect’s stomach shocked the conscience), and Hess v. Garcia,

72 F.4th 753, 757, 767 (7th Cir. 2023) (police officer’s repeated

sexual assault of minor student during class-required police

car ride-along could be found to shock the conscience), with

Geinosky v. City of Chicago, 675 F.3d 743, 750 (7th Cir. 2012)

(police officers harassing plaintiff by issuing 24 bogus parking

tickets did not shock the conscience), and GEFT Outdoors, LLC

v. City of Westfield, 922 F.3d 357, 368 (7th Cir. 2019) (affirming

denial of preliminary injunction and explaining that city at-

torney’s threat to arrest plaintiff for violating ordinance did

not shock the conscience). We affirm summary judgment on

Dimple’s LLC’s due process claims.

D. Defamation

Plaintiffs also contend that Mayor Mason’s June 2020 press

statement defamed Denis. First, Denis contends that Mayor

Mason’s statement that Denis “returned to our City” is false.

Second, Denis claims that the explanation that funds would

not be granted to people who “willingly jeopardized public

health” and “took reckless behaviors that risked the health of

our community” defamed him.

The elements of a Wisconsin common law action for defa-

mation are familiar:

(1) a false statement; (2) communicated by

speech, conduct or in writing to a person other

than the one defamed; and (3) the communica-

tion is unprivileged and tends to harm one’s

20 No. 23-1208

reputation, lowering him or her in the estima-

tion of the community or deterring third per-

sons from associating or dealing with him or

her.

Laughland v. Beckett, 2015 WI App 70, ¶ 22, 870 N.W.2d 466,

473 (internal quotations omitted).

Truth is a complete defense to a defamation claim so long

as the statement is “substantially true.” Lathan v. Journal Co.,

140 N.W.2d 417, 423 (Wis. 1966). Denis contends that the state-

ment that he returned to “our City” was false because he ac-

tually lived in the adjoining Village of Wind Point and did not

return to Racine specifically until fourteen days after the rally.

His home in Wind Point is within half a mile of the Racine city

line. The Navratils referred to themselves in their emergency

grant application and the amended complaint in this action as

living at a Racine address.

We agree with the district court. “Whether Denis actually

returned to the City itself or merely to the area is inconsequen-

tial—the mayor’s point was simply that it was dangerous for

someone to attend a rally and then return to the community.”

Navratil, 2023 WL 9190207 at *8. Mayor Mason’s statement

that Denis returned to the city was substantially true. The dif-

ference between Wind Point and Racine cannot support his

defamation claim.

Also, statements of pure opinion are not actionable under

defamation law, and a mixed-opinion statement is actionable

only “if it implies the assertion of undisclosed defamatory

facts as the basis of the opinion.” Laughland, 2015 WI App 70,

¶ 27 (internal quotations omitted). Mayor Mason’s statements

that Denis “willingly jeopardized public health” and “took

No. 23-1208 21

reckless behaviors that risked the health of our community”

are pure opinion statements. They conveyed Mayor Mason’s

belief that Denis’s attendance at the rally was “reckless” and

“jeopardized” public health.

The June press statement was issued to explain why

Dimple’s LLC was denied an emergency funding grant. In

this context, the statement did not imply undisclosed,

defamatory facts, but explained only that Mayor Mason

declined to award emergency funding to a business whose

key employee engaged in behavior—attending a rally—that

the mayor believed to be a dangerous activity in the midst of

a global pandemic and in violation of public health measures.

The district court properly granted summary judgment on

Denis’s defamation claim.

The judgment of the district court is AFFIRMED.