CHICAGO (CN) - In an exceedingly rare five-to-five split, the 7th Circuit divided over the appropriate standards for class-of-one Equal Protection claims against law enforcement personnel.
Under circuit rules when the full court, reviewing a case en banc, divides evenly, the lower court decision is affirmed. In an even rarer occurrence - judges normally do not release opinions for evenly divided decisions -- the judges issued no less than 73 pages explaining their holdings.
"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," the judges wrote per curium.
Class-of-one claims contend that an individual has been denied equal protection under the law, though not as a result of group affiliations such as gender, race, religion, or sexual orientation. The Supreme Court has approved class-of-one claims but has largely declined to define the pleading requirements.
In the case at hand, Judges Michael Kanne, Diane Sykes, and John Tinder joined an opinion, penned by Judge Richard Posner, affirming the lower court's ruling. Chief Judge Frank Easterbrook wrote a concurring opinion, agreeing with the result.
On the other side, Judges Joel Flaum, Ilana Rovner, Ann Claire Williams, and David Hamilton joined Judge Diane Wood's opinion. The result, somewhat counter-intuitively, was a plurality by the dissent. Because no side commanded a majority, however, none of the opinions represent binding circuit precedent.
The case stems from an Equal Protection lawsuit filed by a Wisconsin man, Lewis Del Marcelle, who claimed police discriminated against him by failing to respond to his complaints of harassment by a local biker gang. According to Del Marcelle, explosive devices were placed next to his home, his car and property were damaged, and he received threatening phone calls from members of the gang. His wife was so distressed by the incident that she allegedly attempted suicide.
Not only were Del Marcelle's pleas for help ignored, but officers issued citations to Del Marcelle in response to competing complaints by the bikers, telling Del Marcelle that he was crazy.
But Del Marcelle's plight was mostly lost amid the constitutional questions that dominated the completing court opinions.
Posner's opinion, which could be loosely described as the lead opinion, suggested more stringent standards for class-of-one claims against state actors.
"This opinion, expressing the views of four judges, proposes a simple standard: that the plaintiff be required 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 treatment-who acted in other words for personal reasons, with discriminatory intent and effect."
The judges warned of the damages of authorizing suits such as Del Marcelle's.
"We believe that class-of-one suits should not be permitted against police officers or police departments, complaining about failure to investigate a complaint of 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," Posner wrote.
