Rex Frederickson v. Tizoc Landeros, 943 F.3d 1054

Before W OOD Chief Judge E ASTERBROOK K ANNE Circuit Judges .

W OOD Chief Judge . Equal Protection Clause Fourteenth Amendment requires actors have, minimum, treating similarly situated peo ple di erently. Rex alleges O cer Tizoc prevented updating Illinois sexual fender otherwise used cial position harass purely out dislike. Without 2 No. 18 1605 an updated registration, Frederickson was unable move from Joliet, Illinois, nearby Bolingbrook.

The district court found had put forth enough evidence allow jury fi nd Landeros sin gled out unfavorable treatment, so doing Landeros motivated solely personal animus thus lacked actions. v. Landeros, C WL 1184730 (N.D. Ill. March 7, 2018). The district court also held, relying on our decision Hanes v. Zurick, (7th Cir. 2009), “Freder ickson’s equal protection right ‘police protection uncor rupted animus’ [was] clearly established.” WL *8 (quoting from Hanes ). Relying on these two conclusions, district court denied motion summary judgment based on quali fi ed immunity as applied theory. It found entitled quali fi ed immunity on Frederick son’s theories based on substantive due process right trastate travel an alleged procedural due process right Illinois sex ender legislation. Frederick son did cross appeal from la er two fi ndings, so we need address them. led timely appeal from partial denial quali ed immunity. We conclude district court’s order must rmed.

I

Because case comes us on interlocutory appeal denial quali immunity, must accept plainti ’s version facts. Gant Hartman 2019), relying Johnson Jones (1995). account follows re fl ects favorable sumption, ndings our own.

In lived Joliet, Illinois. He home ‐ less, and he had prior conviction sex crime. That com ‐ bination meant he had (and has) comply with strict requirements Illinois Sexual O ender Registration Act (“SORA”). Chief among those requirements SORA’s mandate he report register every week law enforcement agency jurisdiction which he resides. ILCS 150/6; ILCS 150/3(a). As part process, he must provide certain information, including work address where he stayed over past seven days. If wishes move di erent jurisdiction, addi tional rules apply. The City Joliet interprets SORA re quire person Frederickson’s position take two dis tinct steps: (1) new jurisdiction, (2) “reg ister out” old jurisdiction. Both, it says, must done within three days. ILCS 150/6.

Frederickson’s understanding system requires only fi rst those actions, we do need resolve question state law. No disputes Illi nois wanted enact requirement “register out,” do so. For present purposes, can assume without deciding SORA requires notice exit ongoing homeless person (rather than only person rst loses xed residence, see ILCS 150/6). issue before us con cerns claim Detective Landeros vio lated federal rights, misinter preting law. We therefore turn directly quali im munity.

For rst four years during which lived Joliet, Detective Moises Avila registered everything went smoothly. In Detective took over Joliet’s SORA registrations—a post he held throughout period issue here. Frederickson interacted Lande ros every week he updated his SORA registration. compliance SORA registration re quirements, while dutiful, was begrudging. To Landeros’s an noyance, Frederickson often questioned constitutionality requirement. He requested seemingly small—indeed, trivial opinion—changes his registration. For example, Frederickson regularly asked Lan deros specify that Frederickson was an employee Greg’s Body Shop, instead that he was independent contractor that shop’s owner, Greg Buccarelli. Ma tt ers be came so contentious Frederickson began bringing wit nesses some weekly registrations. One witness pur portedly observed Landeros saying “of all people I register, why are you only I trouble with[?]” Frederickson testi Landeros often repeated variations on this refrain.

Over years, arrested Frederickson several times. In he arrested Frederickson failure under SORA. Although Frederickson ultimately acquit ted on charge, he spent year jail before re solved. In November arrested driving on suspended license. pleaded guilty this charge, although asserts he did so because plea allowed get out jail. Critically, despite emphasis dissent puts these arrests, challenge guilty plea conviction lawsuit. We agree Nieves Bartle S. Ct. (2019), they cannot challenged supported probable cause, assume they so supported.

Frederickson points instead to independent evidence that, he believes, relevant to his claim. On Janu ‐ ary 2011, Frederickson informed Landeros that he had de ‐ cided to leave Joliet. did take well to the news: threatened to arrest Frederickson (on unclear grounds and with hint probable cause) relocated. De spite threat, moved Bolingbrook, Illinois, February take a job J&J Autobody. On Feb ruary 9—a day after move week after last regis tration—Frederickson registered Bolingbrook Police Department. Bolingbrook accepted registration. believed that move triggered requirement SORA “register out” Joliet. But Freder ickson alleges Illinois jurisdictions regularly waive notice exit—a fact relevant what happened next.

After Bolingbrook registered Frederickson, had up date record Illinois’s Law Enforcement Agency Data System (“LEADS”) database. To do Bolingbrook needed Frederickson’s LEADS fi le. only enforcement agency can “own” LEADS fi le time, only agency owns fi le can update it. That meant Joliet transfer Frederickson’s le Bolingbrook before la er town could make necessary change. When Boling brook records clerk, Nicole Wlodarski, called Joliet, per son whom she spoke refused transfer LEADS le. That person stated “they knew [Frederick son] still living Joliet,” residence was “un der investigation.” This time Wlodarski remember jurisdiction’s refusing transfer LEADS le. Sean Talbot, Bolingbrook detective, Diane Kloepfer, administrator responsible LEADS les “most of” years, testi they not remem ‐ ber jurisdiction ever refusing le transfer. This incident had nothing to do arrest and thus did not trigger Nieves rule. then spoke to Detective Talbot about Frederick ‐

son. told Talbot Frederickson was trying to “pull wool over [Bolingbrook’s] eyes” Frederick son was not actually residing in Bolingbrook. After this con versation, several emails circulated within Boling brook Police Department instructing recipients to ac cept SORA registration because “he lives in Jo liet [ sic ] he homeless.”

After his initial registration in Bolingbrook on February Frederickson worked in Bolingbrook most next week while empting to move his belongings Joliet to Bolingbrook. On February Frederickson again had to reg ister. Once again, thanks to intervention, he problems doing so. That morning in Joliet picking up tools, he did know he be able get ride to Bolingbrook later day. Because 16th required day, just safe Freder ickson registered Joliet morning. managed get ride Bolingbrook afternoon, so, based intent remain work Bolingbrook coming week, went Bolingbrook police station register. cer whom Frederick son spoke refused ordered him go back Joliet. Despite refusal, resided Boling brook next week, living truck parked there.

Frederickson tried to register Bolingbrook again on Feb ruary 23, his registration was again refused. This time De tective Talbot and another Bolingbrook detective told Freder ickson he wanted to register he to list locations where he planned on staying over next week. (No ever suggested source this requirement, and cannot nd either Illinois law, Bolingbrook ordinances, municipal policy.) Frederickson refused to comply additional hurdle, and so Bolingbrook detectives ordered him to return to Joliet. Frederickson responded going to Bolingbrook Village Hall to le complaint against two detectives. while he was there, village clerk re ceived call instructing her refuse to help with—even to accept—Frederickson’s complaint. Shortly after that, several Bolingbrook cers entered Village Hall and re moved Frederickson premises before he com plete his complaint.

Because registration troubles, Frederickson quit job went back Joliet. On February 28, March Frederickson went Joliet Police Department. According Frederickson, least some these trips tt empts register, he was spurned each time. Joliet Detective Scarpe tt admits refused on February take registration, instead requiring come back two days later. Critically, did successfully complete on March SORA re quired. For omission, was indicted failing register “on about March 2011.” People Fred erickson Il App (3d) U, ¶ (Ill. Ct. App. 2014). convicted failing date; conviction upheld appeal. Once again, Frederick son empt undermine either facts underlying 1605 this conviction or the conviction itself. As the Appellate Court of Illinois recognized, “[e]ven assuming [Frederickson’s] at tempts in on February im properly rebuked, it is undisputed as of March 3, 2011, [Frederickson] not registered required by” SORA. Id. at ¶ 38. this case is not about the March events. Here, challenging actions before time.

II

We review the district court’s denial of quali fi ed immunity de novo . Estate of Clark v. Walker 544, 2017). We ask whether, when viewed the light most favor able Frederickson, the facts show violation constitu tional right, if so, constitutional right clearly established at the time the alleged violation, the context presented the case. Id. at

We do conduct analysis vacuum. We must stead de fi ne carefully, at the right level detail, the con stitutional right at issue. In connection, do know why dissent chosen postulate various consti tutional claims raising—claims based First Amendment, post at 24, Fourth Amend ment, post at Due Process Clause Fourteenth Amendment, id. dissent comes closer actual allegation when it turns Equal Protection Clause Fourteenth Amendment, post 26–28, it nally turns class theory it nally hit mark. Surely quali immunity requires careful de nition asserted claim, correct level generality, see White Pauly S. Ct. (2017), citing Anderson Creighton, (1987), then cannot assessed 9 ‐ 1605 based on hypothetical claims are presented the case.

We thus look exclusively at the class ‐ of ‐ one equal protec tion theory, which the one has pre served. “The classic class one claim illustrated public cial, ‘with no conceivable basis action other than spite some other improper motive ... comes down hard hapless private citizen.’” Swanson v. City Chetek F.3d (7th Cir. 2013) (quoting Lauth v. McCollum, (7th Cir. 2005)). While the outer bounds class equal protection claims been subject much debate, see Del Marcelle Brown Cnty. Corp ., 2012) ( en banc ) (a rmed equally divided court), some things are established. In Supreme Court held recognizes “successful claims brought ‘class one,’ where plainti ff  alleges she has been intentionally treated di ff erently others similarly situated there rational basis di ff erence treatment.” Village Willowbrook Olech (2000). Olech complaint alleged Village acting out spite, Court chose reach “subjective ill will” theory. Id.

Olech therefore de nes inquiry we must conduct: plainti ff  (Frederickson) adequately alleged actor (Landeros) intentionally discriminated against without any di erential treatment. And more particularly, we must consider (as dissent char acterizes it, post 24) whether duty fa cilitate e ort transfer Bol ingbrook; must consider entitled ‐ erect extra legal barriers designed prevent compliance with the law.

Despite the parade of horribles that the dissent fears, post 28, so easy le a complaint that complies with Bell Atlantic Corp. v. Twombly , U.S. (2007), Olech sup plies the theory of the case. plainti ff  must present a set of facts plausibly depict cial action u erly unsupported rational basis. As the Supreme Court noted case deal ing with local economic regulation, purposes of the ra tional basis test “it only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently the Fourteenth Amendment.” City of New Orleans v. Dukes 303–04 (1976).

Taking Dukes guide, we recognized party may allege type of “invidious” action—wholly arbi trary, inconsistent Fourteenth Amendment—is factor distinguishing target rest of pop ulation, such showing su ces prove lack rational basis. Hanes F.3d 496; Geinosky City Chicago (7th Cir. 2012) (“[C]lass claims can brought based allegations irrational malicious application enforcement powers.”); see Esmail Macrane 178–80 1995) (holding “action taken state, whether form prosecution otherwise, spiteful e ort ‘get’ [the plainti ] reasons wholly unrelated legitimate ob jective ” action violated Equal Protection Clause (em phasis added)). With mind, turn question trier fact nd there treatment Frederickson. 11 18 ‐ 1605 actions occurred in 2011, and so rst ques ‐ tion we must address is right is try ‐ ing vindicate was clearly established before then. Olech was decided in well before acted, and this court recognized class ‐ of ‐ one claims long before Olech . See, e.g. , Esmail , 53 F.3d at 178 (7th Cir. 1995); Ciechon v. City of Chicago , 686 F.2d 522–23 (7th Cir. 1982) ( nding protec ‐ tion violation when plainti ff  was red her similarly situ ‐ ated co ‐ worker was and there was “no rational basis such discrimination”). Importantly, this case involve employment, and so is una ected by Supreme Court’s recognition in Engquist Oregon Department Agri culture , (2008), class one theory cognizable in public employment cases. Id. at

Bearing mind relation between lack general, actions taken solely basis ani mus particular, have consistently stated class plainti ’s “right police uncorrupted per sonal animus” clearly established. Hanes F.3d 496–97 ( nding right established Hil ton City Wheeling F.3d 2000)). Indeed, Hilton suggests right even handed police protec tion may been established long before case de cided. F.3d (citing numerous cases including Es mail Ciechon 511).

Let’s assume sake argument, however, dis sent urges, Hanes Hilton Geinosky wrong they held claim stated Olech “the decided withdraw all protection” person “out 18 ‐ 1605 sheer malice,” F.3d at thus that “right po lice protection uncorrupted personal animus” states constitutional standard too broadly. quick look at Freder ickson’s complaint shows claim is far more particu larized. He is asserting that, just Olech , no rational basis supports police cer’s action—motivated exclusively animus no other discernible rational basis—to block from complying with ordinary requirement or from ling complaint with Village authorities.

In order prove this class ‐ ‐ one claim, will eventually have present evidence allow rea sonable jury conclude this particular respect “has been intentionally treated di ff erently others similarly situated there no rational basis for di ff erence treatment.” Hanes F.3d at (quoting Olech , at 564) (emphasis added). Although de nitively re solved question su cient for plainti ff  simply allege di ff erential treatment at hands po lice no rational basis, or class one claim requires plainti ff additionally prove acted reasons animus, malice, some other improper personal motivation, see Racine Charter One, Inc. Racine Uni Sch. Dist. F.3d 683–84 2005) (describing two lines cases); see Del Marcelle, F.3d whatever uncertainty exists makes no di ff erence case its pre sent posture. We accept (favorably Landeros) form class right clearly estab lished within our circuit involves government actors who sin gle out citizen di erential treatment objective di erence because “a vindictive harassing purpose.” Geinosky n.2; Hanes 13 18 1605

Class of complaints typically allege a defendant either a fi nancial stake some history the plainti ff , and stake history demonstrates both the lack of a the action animus. In Olech , example, the Olechs previously successfully sued the Vil lage Willowbrook. That lawsuit generated “substantial ill will” part Village cials toward Olechs. See Olech v. Village Willowbrook , F.3d 386, 387–88 (7th Cir. 1998). Other examples include a defendant’s a tt empted lar ceny, Forseth Village Sussex , F.3d (7th Cir. 2000), an a tt empt use plainti ff  a scapegoat, Ciechon F.2d at a classic neighborly dispute about a fence, Swanson F.3d at 781–82; see Brunson Murray F.3d 701–03 2016) (campaign harassment over a liquor store); Hanes (long running dispute between neighbors where, “no ma er who initiated com plaint,” Hanes arrested). would add two additional hurdles Freder

ickson clear: rst, identi cation similarly situated comparator; second, demonstration clear enough give rise clearly established right. Neither these extra requirements nds support rele vant cases. question whether identi cation simi

larly situated person su cient meet plainti ff ’s burden; instead whether such showing necessary . Un surprisingly, plainti ff  comparator share rele vant characteristic, then di erential treatment may suggest impermissible motive. Geinosky, (“When parties raise serious question di erences ‐ treatment stem a discriminatory purpose or from a rele vant factual di ff erence, the key evidence is often what was done in the investigation or prosecution others in similar circumstances.”). Nonetheless, we have held it not al ways necessary to nd similarly situated person. Geinosky F.3d at 748; Swanson , F.3d at 784. “If animus readily obvious, seems redundant to require plainti ff  show disparate treatment in near exact, one to one comparison to another individual.” Swanson F.3d at We are not inclined to revisit those decisions. cases in which have found required lack and animus without use comparator involved plainti ff s who subjected to arbitrary

unjusti exercises government power. When viewing facts Frederickson’s favor, what one sees in his situ ation. As our recitation facts shows, his complaint re lates barricades placing way registrations (whether entry exit), not occasional uncontested convictions failure driving without valid license. No enforcement o cer involved case recall similar obstruction happening experience. o cials stated Frederickson’s village ever denied. prompted city workers spurn ef forts le complaints give run around. Just Geinosky did need identify another person who re ceived twenty four bogus parking tickets, Geinosky Swanson did need nd neighbor equally hated town’s mayor building fence next mayor’s home, Swanson 784–85, need identify homeless ender whose e ort ‐ move to a di ff erent jurisdiction blocked no rea ‐ son at all, or out of simple invidiousness. To place that re quirement on be to “elevate form over substance.” Geinosky F.3d at 748. “has iden ti ed his speci fi c harasser, provided a plausible motive and detailed a series alleged actions … that appear illegitimate their face.” Swanson

With respect SORA’s requirements, seems be saying that he could not known whether activities permissible and thus no one infer personal ani mus record. As he puts it, “[t]here is no clearly es tablished law making it illegal o cer investigate a homeless sex o ender determine whether he lives where says he does, then refuse transfer LEADS le pending results investigation.” one says that there is such law, is not fair depiction Freder ickson’s claim. The question heart class one case defendant arbitrarily used powers given him state deny equal treatment plain ti . Quali immunity does require us catalogue every possible way cer might abuse power before nding liable abuse. point actor may use authority harass or abuse some one way re fl ects invidious discrimination wholly arbitrary act can explained exclusively re sult dislike.

Similarly, fact SORA complex statute, courts are now exploring how interacts regis trant’s due process other constitutional rights, muddle around class claims. See, e.g. Beley City Chicago 2018) ‐ 1605 (analyzing the interaction between SORA the Due Pro cess Clause); Saiger City of Chicago , F. Supp. 3d 984– (N.D. Ill. 2014) (same); Derfus City of Chicago , F. Supp. 3d 897–99 (N.D. Ill. 2014) (same). simple hypothetical shows why so, at the

same time illustrates why, contrary the dissent’s argument, post at our decision creates no con fl ict Beley. Beley volved the City of Chicago’s alleged failure have proce dures place allow homeless o enders register. Be ley F.3d at In case we held SORA registrants have no liberty interest registering SORA, thus the Due Process Clause provides them no protection. Id. at 826–28. Although Beley had yet been decided district court acted, its grant of summary judgment Lan deros procedural claim anticipated Beley ’s holding. Im agine, however, City of Chicago registered everyone without incident except Latinos. That would obviously create an equal protection problem, regardless of compatibility of statute due process. Or, closer our case, imagine City refused register one person against whom Chief Police vende tt a. Again, regardless Due Process Clause violated City’s re fusing ender, City’s actions raise same kind class ‐ one equal protection claim we have here. In other class one cases, have recognized equal protection violation may occurred even though due process violation present. See, e.g. Geinosky (dismissing Geinosky’s due process claim); Esmail (distinguishing due process claims class claim because la er “does re quire proof deprivation life, liberty, property”). We thus conclude Frederickson’s right to register sex of ‐ fender to fi le complaints the local authorities without being blocked o ffi cer who acts exclusively out animus was clearly established the time these events.

B

This brings us to second part quali fi immun ‐ ity analysis: facts Frederickson has asserted de ‐ scribe violation Equal Protection Clause su ffi ce to defeat summary judgment. We agree district court answer yes. introduced evidence allow jury to nd both Landeros had no ob jective rational prevent move Bolingbrook, Landeros took ffi rmative steps block move rea sons animus. actions were, according every enforce

ment o cer deposed (including Landeros himself), unprece dented unexplainable. Despite their decades combined experience, cer from Joliet recall jurisdiction’s ever refusing transfer LEADS le instance other than one. Bolingbrook’s refusal many steps took block Frederickson’s access machinery sim ilarly extraordinary. Indeed, Bolingbrook’s representative con rmed person Boling brook ever refused register. argues despite all this, we should still dis

cern purpose actions: he stopped Frederick son’s le transfer because process investigat ing alleged move Joliet Bolingbrook. there slip into forbidden realm disputed facts. No. There signi fi cant evidence undermining Landeros’s expla nation, much that evidence comes from Landeros’s own testimony. Landeros testi ed general ma tt er, he could think no reason refuse put LEADS le into moving status necessary transfer it new jurisdiction. He also testi ed policy register homeless fenders “regardless” they provided accurate infor mation. If ender provided inaccurate information, Lan deros said, he simply arrest person. At minimum then, Landeros deviated from usual policies he took active steps prevent Frederickson from registering in Bol ingbrook. fact nder conclude type departure “clear standard” Court found rele vant Olech . Engquist U.S. at (citing Olech (Breyer, J., concurring result)). admi reasons he provided Police Department about why they should may have been false. During deposition, following exchange occurred:

Q: Did you have any reason believe Mr. wasn’t homeless Boling brook?

A: No, I don’t.

Q: And you didn’t reason time?

A: On second day deposition, rea rmed reason suspect lying about liv ing Bolingbrook:

Q: You previously testi on fi rst day this deposition that you reason to believe Mr. homeless Boling brook, correct?

A: Correct. At time empted le transfer, told Bol ingbrook o cers trying “pull wool over [Bolingbrook’s] eyes” because “lives Joliet” “d[idn’t] want pay [Joliet’s] mandatory fee so going try scam [Bolingbrook] into doing it.” This type obvious factual dispute cannot resolve an interlocutory appeal. If jurors were credit Landeros’s statements during litigation, they could conclude his previously stated “investigatory” reasons preventing registering Bolingbrook were phony, de signed cover up dislike Frederickson.

Beyond own statements, there are additional reasons suggest explanations stymying Frederick son’s move Bolingbrook pretextual. As district court noted, SORA obligate investigate resident’s purported change address before transferring LEADS le. It instead requires an investigation into an ender’s provided information must occur once per year. See ILCS 150/8 And while suggests Fred erickson’s failure “register out” Joliet within three days move raised need investiga tion, jury nd reason pretextual, light evidence indicating such exit requirement nor mally waived. ILCS 150/6.

20 18 1605

We reiterate if Landeros merely violated law, would enough to support Frederickson’s class ‐ claim. But actions here, ac ‐ cording to allegations, include ffi rmative misconduct de signed block access registration to ordinary complaint process. similar problem occasion ally arises connection Prison Litigation Reform Act (PLRA). See, e.g. , Hernandez v. Dart , F.3d 836, (7th Cir. 2016) (“Administrative remedies are primarily ‘unavailable’ prisoners where ‘a ffi rmative misconduct’ prevents prison ers pursuing administrative remedies.”). Under PLRA, prisoners must exhaust intra prison administrative remedies before ling suit federal court. Id. exhaustion requirement excused intra prison admin istrative procedure “genuinely unavailable nonexistent.” Lanaghan v. Koch F.3d (7th Cir. 2018) (quoting Pyles Nwaobasi F.3d (7th Cir. 2016)). We con sistently have held prison employee can make admin istrative remedies unavailable engaging ffi rmative mis conduct, such giving prisoner “blank sheets paper when he requested grievance form.” Dale Lappin (7th Cir. 2004); see Lanaghan 686–87, 2018) (grievance procedure unavailable mate guards denied him access table where another inmate help him write grievance, inmate lost physical ability write). Just so here. may may violated Illinois law, put forward su cient evidence allow trier fact nd targeted rmative measures blocked access administrative ma chinery supposed use. ‐

Moreover, the district court found there relevant factual disputes on question whether complied “register out” requirement, as well as was empting evade SORA’s re quirements more generally. This interlocutory appeal right vehicle for resolving those questions. trier of fact could nd need investigate was real reason for Landeros’s decision prevent Frederick son’s registering in Bolingbrook. That fact ‐ nder could conclude there no need investigate at all. This important because an action withstands rational basis review so long there “a conceivable rational basis for di er ence treatment,” regardless actual reason di er ential treatment. D.B. ex rel. Kurtis B. Kopp 2013). On these facts, jury could conclude there no “objectively rational basis investigate” Frederick son’s move. Id. Beyond need investigation, has put forward conceivable rational treat ment Frederickson, we can think none. thus adduced su cient evidence allow trier fact nd actions lacked basis.

C

As noted earlier, Supreme Court’s opinion Olech stated class one claim rises falls based proof “irrational wholly arbitrary” government behavior. U.S. at 564–65. taking heed concerns Justice Breyer expressed Olech concurrence, 565–66 (Breyer, J., concurring result), lower courts quickly realized need avoid standard which virtually every discre tionary decision government actor lead ade quately pleaded class claim. Hilton ‐ To prevent unintended outcome and remain faithful test, we adopted rule requiring class of plainti ff  plead and prove “that defendant deliberately sought deprive him of protection of laws reasons of personal nature unrelated du ‐ ties defendant’s position.” Id. Frederickson’s allegations meet formulation too. presence animus powerful evidence poten

tially irrational government conduct. Government action mo tivated solely by personal dislike canonical example “irrational and wholly arbitrary” government behavior. Hilton (“If decided withdraw all Hilton out sheer malice, or because they had been bribed neighbors, he would claim un der Olech .”). So too here; evidence Frederickson fered Landeros’s dislike ff ers plausible explanation otherwise potentially unexplaina ble behavior.

Frederickson Landeros years long tumul tuous relationship. harassed Frederickson count less pe y ways blocked e orts comply SORA, he threatened arrest, actually arrested him, multiple occasions. (We confess being mysti over why cared Frederick son lived Joliet other Illinois town; willing him, would longer have been Lan deros’s problem.) If complaining about arrests supported probable cause, freely concede Nieves require di erent result. complaint goes well beyond that. Relations between Landeros combative. Frederickson testi fi ed Lande ros threatened arrest him when he announced his plan leave Joliet he tt empted do so again 2011; there no hint probable cause those actions. Fred erickson stated repeatedly refused cor rect status independent contractor name employer registration. Landeros, turn, com plained thought gave “trouble.” Probable cause has nothing do with those actions. jury would compelled nd anything nefarious about this history interactions between single o cer citizen—even homeless ex sex ender. our question jury make nding. When combined series events surrounding Frederick son’s empted move, this history entitle jury con clude acted against con ceivable reason other than animus. We therefore agree district court presented su cient evidence defeat quali ed immunity stage.

*** district court’s denial quali immunity

AFFIRMED. 18 1605

E ASTERBROOK Circuit Judge , dissenting. Rex Frederickson, sex o ender, must frequently in Illinois because does have xed address. He asserts in this suit U.S.C. §1983 in Tizoc Landeros, o cer in Joliet, refused to transfer his registration records from Jo liet Bolingbrook. The cause, asserts, was per sonal antipathy (Frederickson sassed Landeros, who took ense), result included his arrest, conviction, imprisonment failing register, well as reduction in his economic opportunities. asserts quali im munity from liability in damages, which requires us de cide in was “clearly established” Constitution required facilitate transfer Freder ickson’s registration Joliet Bolingbrook. Escondi do v. Emmons S. Ct. (2019) (citing many other deci sions). many potential constitutional theories, all problems. Consider them in turn.

One theory violated First Amendment (applied states through Fourteenth) taking adverse actions penalize speech. problem approach “retaliation” “an imus” response speech support liability result arrest supported probable cause. Nieves Bartle S. Ct. (2019). That’s what happened Frederickson. Gaps sequence registrations led conviction. state appellate court rejected contention arrest invalid lack justi ed. People IL App (3d) U (June 2014). Having litigated lost court, Fred erickson cannot obtain relief federal court theory 25 1605 requires him to show that the law “clearly established” in his favor. And if can nd way around the holdings Nieves (2019) his own criminal conviction (2014), would hardly help him show that the clearly established way Reichle v. Howards , U.S. (2012) (holding as quali immun ity blocks recovery retaliatory arrest claim).

A second theory would be violated Fourth Amendment (again applied through Fourteenth), not First Amendment, allowing retaliatory animus fl uence registration decisions, which turn led custody. once again probable cause arrest defeats theory. The Fourth Amendment applies objectively; o cer’s mind is irrelevant. See, e.g., Whren v. United States U.S. (1996). This means “retaliatory arrest” claims Fourth Amendment are unavailing. Hartman Moore (2006). third approach invoke Due Process Clause Fourteenth Amendment proposition Lan

deros deprived valuable procedure: ability move registration Joliet Bolingbrook. That ap proach, however, runs into Beley Chicago 2018), which holds Due Process Clause create protect right register as sex o ff ender. No wants be registered sex o ender; registration duty, opportunity. right, held Beley arrested con ned (or otherwise punished) failing sex ender, required improperly denied. And takes us back rst two potential approaches, which are blocked Nieves Hartman . ‐

Could bene t by recasting due ‐ process theory Equal Protection Clause? It’s hard see how. The fact remains sex ‐ ender registration is a det riment, not bene t. problem person who should been registered was not is risk prosecution, risk came pass Frederickson. Everything Beley said about due process theory applies an equal protection theory as well. Surely opposite was not “clear ly established” 2011.

My colleagues say most analysis irrelevant because abandoned any challenge his arrest con nement and contesting events oc curred before his arrest March 2011. Slip op. 8. He also does not challenge arrest He does not contend custody following either arrest was unsupported probable cause. abandoning any challenge ar rests custody, abandoned plausi ble theory damages, lack registration did injure him. He free work live there; problem risk arrest prosecution which non registration exposed him. To repeat holding Beley : duty, right.

Both due process approaches come additional problem: Fourteenth Amend ment treat violation violation federal Constitution. See, e.g., Snowden v. Hughes , U.S. 1, (1944) (Equal Protection Clause); Davis v. Scherer U.S. 183, 192–96 (1984) (Due Process Clause); Nordlinger v. Hahn n.8 (1992) (Equal Protection Clause); Archie Racine 1215–18 1988) (en banc) (Due Process Clause); Tucker Chicago 494–95 (7th Cir. 2018) (citing both due process decisions). See also, e.g., Wilson Corcoran U.S. (2010) (holding that, because a violation state law cannot equated to a violation Constitution, is im permissible for a federal court issue collateral relief for er rors state law) (collecting many other decisions).

Federal law not specify where, within a state, a sex o ender must register. The rule needed Bolingbrook he wanted work Bolingbrook (if is indeed a rule) is one Illinois law. Likewise requirement transfer LEADS le from Joliet one Illinois law. My col leagues make clear their view did not follow duties under Illinois law. how a “clearly estab lished” constitutional claim? If Illinois law provided Frederickson, having registered Joliet, must continue do so, would not have federal objection. This shows claim arises state law, Constitution. Wilson (where “it violate federal [a state] adopt rule authorizing what [state actor] did” there constitutional problem) (emphasis origi nal). Cf. Gordon Degelmann 1994) (“[F]ederal courts assess constitutional claims assuming state wants its employees behave just they did asking federal rules permit state achieve objective.”).

My colleagues hint way derive constitutional violation violation law. Equal Protection Clause requires cial action have rational basis. Lan deros asserted rational basis violating Illinois law. How public employee ‐ defying state law (if state law is not itself unconstitutional)? QED. By this approach every violation of state law becomes a violation of the Constitution. Snowden and its successors are defunct. Perhaps the Supreme Court will hold some day (though I doubt it), it assuredly was not law 2011. sequence “violation of state law demonstrates ab sence of a which shows a violation of Con stitution” was clearly established is not clear ly established today.

This leaves a fth theory, which my colleagues embrace: was class of one who did receive equal treatment from Landeros. According majority, every one has “right police protection uncorrupted person al animus.” Slip op. And this approach, all of obstacles I mentioned vanish. Want avoid Nieves ? Ignore First Amendment assert retaliatory arrest “class ‐ ‐ one equal ‐ protection” problem. Disa gree Hartman ? Same solution. Seeking sidestep Beley ? Class ‐ ‐ one your silver bullet. Trouble showing these legal propositions clearly established 2011? Just assert everyone always “right protection uncorrupted animus.”

I don’t see how magic can work. class claim subset all equal protection claims therefore subject rule violation di ers violation Constitution. I am con dent Justices who decided Nieves Hartman thought they making substantive decisions about circumstances which public employees lia ble, rather than ddling names tt ached theories liability. And ma er treat Lande ‐ ros as (merely) not following state law as making registra ‐ tion in “unavailable” (slip op. 20); neither ap ‐ proach permits a violation state law serve as foun ‐ dation constitutional recovery. Nieves Hartman show that there is general rule that personal animus makes public o ffi cial’s acts unconstitutional, if acts have some other basis—whether it probable cause ar rest (as in Nieves Hartman ) state law. I am saying acts were supported by Illinois law. (Lande ros says they were; says they weren’t.) The point instead is whether they so supported is question law only. remedy, any, lies Illinois law rather than §1983.

If always been everyone has “right protection uncorrupted by personal animus”, why did Supreme Court decide Hartman in 2006? Why did Reichle hold quali immunity blocks recovery on retaliatory ‐ arrest claim? Why did bother Del Mar celle Brown County 2012) (en banc)? Del Marcelle alleged that, result animus, lo cal o cials failed protect criminals so vio lated Equal Protection Clause class one theory. court en banc rejected claim, though an equally divided vote. On view taken my colleagues today, Del Marcelle should have prevailed. He did not. view lost cannot been clearly established

I explained Del Marcelle class theory appropriate way evaluate po lice cers’ conduct. 902–05 (concurring opin ion). It necessary repeat analysis, because question right asserts clear 30 18 1605 ly established in 2011 rather than 2012 today. it is apt ask why, if it has always been established everyone has “right police protection uncorrupted by personal imus”, supposed right still at issue in 2012—and why it is possible fi nd support it decisions Supreme Court. The debate within court 2012, lack good precedent favor Supreme Court, bring into play principle “[i]f judges … disagree constitutional question, it is unfair subject police money damages picking losing side controversy.” Wilson v. Layne , 526 U.S. 603, 618 (1999).

More than that. My colleagues’ conclusion clear ly established right is “to protection uncorrupted personal animus” far too high level generality. The Supreme Court has held right “clearly established” has been “de ned speci city.” Escondido , 139 S. Ct. See also, e.g., Kisela v. Hughes , 138 S. Ct. 1148, 1152–53 (2018); District Columbia v. Wesby , 138 S. Ct. 577, (2018); White v. Pauly , 137 S. Ct. 548, 552 (2017); Mullenix v. Luna , S. Ct. 305, (2015); San Francisco v. Sheehan , S. Ct. 1765, 1775–76 (2015); Carroll v. Carman , U.S. 13, 16–17 (2014); Wood v. Moss , U.S. 744, 757–58 (2014); Plumho ff  v. Rickard U.S. 765, 778–79 (2014); Stanton v. Sims 5–6 (2013); Brosseau Haugen U.S. 198–99 (2004). These decisions, more, tell us high level generality won’t do. right been de ned “with speci city” existing

judicial decisions tell cer what do, concretely, given situation. also, e.g., Weiland Loomis 919–20 2019). proposition everyone enti tled “police uncorrupted animus” does not convey that information. It does not tell Landeros when to transfer a LEADS fi le (state that). It does not tell any o ffi cer where a given sex o ff ender must register, a sex o ff ender under investigation one jurisdic ‐ tion (such as Joliet) is entitled to register another (such as Bolingbrook). O cial action uncorrupted by personal ani ‐ mus is ideal—something which all public employees should aspire—but not a rule conduct governing day day business. It is therefore not adequate as a foundation damages §1983.

Midway through their opinion, my colleagues allow “police uncorrupted animus” may too general. Slip op. 11–12. They propose variant: Fred erickson similar persons have a “right register as a sex o ff ender le complaints local authorities without being blocked a police o cer who acts exclusive ly out animus.” Slip op. This supposes sex o ff end ers have “right register as sex o ender”. Yet Be ley held they do not. My colleagues say Beley lim ited due process claims. Suppose so. Still, where clearly established before March Equal Protection Clause creates “right register sex end er”? My colleagues do not cite decision so holding. As “ le complaints without being blocked …”, blocked ling complaints. He could have led complaint about Landeros Joliet’s depart ment but did try to. He sued Landeros asked judge direct Landeros let Bolingbrook, but didn’t. There constitutional right access courts, Bounds Smith (1977), but did interfere it. alleges obstructed complaint process Lan deros blocked from registering (as op posed Joliet). nal part formulation—“by po lice o cer who acts exclusively out animus” might re phrased as “by cer who violates state law exclu sively out animus”, violating di ers violating Constitution, all events prohibition against “acting out animus” simpliciter clearly es tablished federal right. It con fl icts Nieves Hartman while posing same generality problem right “po lice uncorrupted animus”.

Case Details

Case Name: Rex Frederickson v. Tizoc Landeros

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 26, 2019

Citations: 943 F.3d 1054; 18-1605

Docket Number: 18-1605

Court Abbreviation: 7th Cir.