STEPHEN HANES v. THOMAS ZURICK, et al.
No. 09-1043
United States Court of Appeals For the Seventh Circuit
ARGUED JULY 8, 2009—DECIDED AUGUST 18, 2009
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 2714—Charles R. Norgle, Sr., Judge.
WOOD, Circuit Judge. Stephen Hanes sued the Village of Grayslake, Illinois, and eleven officers of its police department, alleging that the officers denied him—and only him—equal protection of the law, solely for reasons of personal animus. Relying on Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000), the district court denied the officers’ motion to dismiss, which sought dismissal both on the basis of qualified immunity and for
I
Hanes‘s complaint is straightforward: it alleges that as a result of a long-running and somewhat mysterious dispute with his neighbors, both Hanes and the neighbors have complained repeatedly to the police. Yet when the police respond, they arrest only Hanes, no matter who initiated the complaint. They have arrested him at least eight times, and those arrests have led to thirteen criminal charges for minor crimes. Every single charge was later dropped. According to Hanes, the police have treated him unequally by ignoring his complaints against others and arresting only him because they “hate” him and “do not respect him.” Those reasons, Hanes insists, аre “unrelated to the police officers’ duties.”
The officers moved to dismiss Hanes‘s complaint for failure to state a claim, arguing that selective enforce-
II
The court‘s failure to discuss qualified immunity caused us to question whether we have before us a nonappealable order denying a motion to dismiss, see Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008), or an appealable order rejecting the defense of qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511 (1985). In Gosnell v. City of Troy, Ill., 979 F.2d 1257 (7th Cir. 1992), the district court similarly denied the defendants’ motions for summary judgment in an order that did not mention qualified immunity. Id. at 1259-60. We acknowledged the possibility that “the district court intended to rule on the question of qualified immunity in its order,” but we held that without an express “conclusion of law” from the district court, appellate jurisdiсtion was not proper. Id. at 1261. Gosnell advises that defendants faced
A closer look at this case reveals, however, that it is not the same as Gosnell. In Gosnell, it was not only unclear whether the district сourt intended to rule on qualified immunity; it was also unclear whether the defendants intended to raise the defense. Id. at 1259. The defendants in Gosnell seemed to have forgotten about the issue when they filed a second motion for summary judgment. In the present case, there is no ambiguity about the officers’ intent—their motion to dismiss explicitly raises the defense, and their supporting memorandum contains a detailed discussion of the issue. Hanes responded in kind, ensuring that the issue was fully briefed for the district court. Because qualified immunity was unambiguously before the district court, its denial of the motion to dismiss necessarily included a denial of the defense of qualified immunity. See In re Montgomery County, 215 F.3d 367, 374 (3d Cir. 2000) (collecting cases).
As the Supreme Court recently reaffirmed in Pearson v. Callahan, 129 S. Ct. 808 (2009), two questions are pertinent to the defense of qualified immunity: whether the facts alleged show that the state actor violated a constitutional right, and whether that right was clearly established. Id. at 816, referring to Saucier v. Katz, 533 U.S. 194 (2001). Pearson held that the district court has discretion in choosing the order in which those questions
Gosnell is distinguishable for another reason as well. There, the discussion in the district court‘s ruling had nothing to do with qualified immunity. Gosnell, 979 F.2d at 1260. We were wary of making an appellate ruling without “findings of fact and conclusions of law” from the district court. Id. at 1261. Indeed, in general, “an interlocutory appeal is inappropriate where substantial steps remain to be taken in the district court bеfore the facts, and hence the applicable law, are brought into focus.” Khorrami, 539 F.3d at 787. In the present case, nothing needs to be cleared up, and so there would be no point to a remand for an explicit ruling on qualified immunity.
Finally, accepting jurisdiction over this appeal is consistent with the Supreme Court‘s reminder that qualified immunity is “both a defense to liability and a limited ‘entitlement not to stand trial or face the other burdens of litigation.‘” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1946 (2009) (quoting Mitchell, 472 U.S. at 526). Appeals from denials of motions raising the defense are allowed “without regard to the district court‘s reasons; it is enough that a given order prolongs the litigation and thus (further) impinges on a defendant‘s potential right not to be
III
With our jurisdiction secure, we may now move to the officers’ argument that they are entitled to qualified immunity. As they did in the district court, the officers rely almost exclusively on the Supremе Court‘s decision in Engquist and its purported effect on our holding in Hilton.
A
We consider first the question whether the facts Hanes alleged describe a constitutional violation. See Pearson, 129 S. Ct. at 815-16, 818. Hanes argues that they do, based on the idea that the Equal Protection Clause protects invidious discrimination against even one person. Under that theory, “the plaintiff alleges that shе has been intentionally treated differently from others similarly situated
In Hilton, we relied on Olech to explain how a class-of-one claim could be made against police officers for unequal enforcement of the law. Hilton, 209 F.3d at 1007. The plaintiff there had alleged that throughоut a long-running feud with his neighbors, the police were not evenhanded and usually cited or arrested only him. Id. at 1006. We recognized a claim under a class-of-one theory for unequal police protection, but held that the plaintiff could not survive summary judgment because he had not shown that the officers’ unequal enforcеment of the law was motivated by personal animus unrelated to official duties. Id. at 1007-08. It is true that some more recent cases have cast doubt on the animus requirement, suggesting that the plaintiff need show only that no rational reason supports the unequal treatment. See United States v. Moore, 543 F.3d 891, 898 (7th Cir. 2008) (collecting cases). Because Hanes alleged personal animus, thereby meeting the more onerous standard, we need not resolve the tension identified in Moore. Hanes‘s complaint follows Hilton to a “T” (perhaps because the plaintiff‘s lawyer is the same in both cases), and the officers have never argued that it fails to state a claim under that case.
The officers’ central argument is that we should reconsider Hilton in light of the Supreme Court‘s recent holding in Engquist that public employers cannot be liable for class-of-one equal protection violations. Engquist
The Supreme Court‘s reasoning in Engquist sheds light on the reach of its holding. First, the Court emphasized that the judgments unsuited to a class-of-one claim are typically “subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.” Id. at 2154-55. That describes employment decisions because treating like individuals differently in the employment context is “par for the course.” Id. at 2155. Second, the Court noted that the constitutional constraints on government are much less onerous when it acts as employer as compared to acting as sovereign. Id. at 2151. Finally, the Court recognized that, in the employment context, an uncabined class-of-one theory
The lesson we take from this is that context matters. Our task is to apply the Engquist approach to claims that the police have inflicted unequal treatment on a citizen for no reason other than malice. In this setting, we conclude, it is not possible to dismiss a comрlaint based on broad generalities. Although the police enjoy broad freedom of action, Hilton, 209 F.3d at 1007-08, their discretion is much narrower than the discretion given public employers. First, in contrast to an employer, who is entitled to make decisions based on factors that may be difficult to articulate and quantify, an offiсer must justify her decision to stop a suspect by pointing to “articulable facts.” Terry v. Ohio, 392 U.S. 1, 21 (1968). And while employment decisions are inherently subjective, “[s]ubjective intentions play no role” in evaluating police seizures under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 813 (1996). Second, police officers, in contrast to public employers, exercise the government‘s sovereign power. Accordingly, constitutional constraints on police power are the norm. Finally, although courts are reluctant to subject routine employment decisions to constitutional scrutiny, asking a court to determine whether a police officer‘s act was constitutional is not at all unprecedented. For all these reasons, Engquist does not support the officers’ argument that malicious police conduct is off-limits from class-of-one claims.
The officers also rely on our application of Engquist to prosecutorial discretion in Moore, where we explained that “the discretion conferred on prosecutors in choosing whom and how to prosecute is flatly inconsistent with a presumption of uniform treatment.” Moore, 543 F.3d at 901. Moore simply honors the rule that prosecutorial conduct is absolutely immune from civil liability because prosecutors need unfettered discretion. Imbler v. Pachtman, 424 U.S. 409, 426 (1976). By contrast, police officers are protected only by qualified immunity because they have “less complex discretionary responsibilities.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).
Engquist does show that some discretionary police decision-making is off-limits from class-of-one claims. One
B
We must therefore reaсh the officers’ alternative argument, which is that even if we do not revisit Hilton, they are entitled to qualified immunity because the right to police protection uncorrupted by personal animus was not clearly established at the time of the alleged conduct. In support of that point, they note again that there hаs been some indecision in this circuit over whether there is an animus requirement. See Moore, 543 F.3d at 898. But under any view we have taken, arrests motivated by personal animus are unconstitutional. Second, the officers argue that the right announced in Hilton is dicta. Hilton states, “If the police decided to withdraw all protection from Hilton out of sheer malice, or because they had been bribed by his neighbors, he would state a claim under Olech.” Hilton, 209 F.3d at 1007.
The officers’ remaining arguments that the right was not clearly established rest on other cases on which they might have relied, but none of those decisions affects the clarity of the law established in Hilton. First, the officers point to Whren v. United States, 517 U.S. 806 (1996), and DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S. 189 (1989). Neither of those cases, however, concerned the Equal Protection Clause. In fact, the opinion in each one contains language in support of an equal-protection challenge to unequal enforcement of the law. Whren, 517 U.S. at 813 (“[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.“);
We therefore AFFIRM the judgment of the district court.
8-18-09