Rare 7th Cir. Split on Class-of-One Claims

     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.
     The vast discretion afforded to law enforcement officers, the judges wrote, largely shields them from liability.
     Posner offered an example, “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?”
     The arbitrary or discretionary variance of enforcement between cases should not be grounds for an equal protection claim, the judges concluded, absent particular discriminatory intent.
     “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.”
     In a concurring opinion, Chief Judge Frank Easterbrook advocated the exclusive use of rational-basis review for class-of-one claims.
     “Judge Posner (for four judges) and Judge Wood (for five) offer slightly different understandings of the role motive or intent should play in such suits. I think that is has no role at all,” he began.
     “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.”
     Easterbrook also raised the issue of legal standing as potentially preclusive of many class-of-one suits, writing “Del Marcelle thus needs to show how he was injured by what the defendants did to him, rather than but what they didn’t do to other people or what they didn’t do for him.”
     Finally, Easterbrook questioned whether law enforcement decisions could ever be the subject of class-of-one suits.
     “Discretionary decisions in law enforcement are not amendable to class-of-one analysis… 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,” he cautioned.
     The five dissenting judges agreed that Del Marcelle’s complaint was defective, but argued that he should be allowed to refile.
     Wood’s opinion advocated a different standard for evaluating class-of-one claims which lacked the discriminatory intent standard advocated by the lead judges.
     “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 discrimination, (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.”
     Wood continued, “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.”
     Referring to the lead opinion, Wood cautioned, “In our view, it will be a difficult [standard] for the district courts to follow. It is all too easy for a plaintiff to accuse someone of a malicious notice and thus to impose on the entire system the burden of going forward. 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 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.”
     Both groups of judges expressed regret that the issue had not been definitely resolved.
     “We had hoped to make some sense of all of this, but regrettably, that proved to be impossible. At most, perhaps, the differences among us narrowed slightly as a result of this litigation, but ultimate resolution will have to await another day,” Wood wrote.
     Del Marcelle had originally argued his case pro se, but was represented by Thomas Shriner, Jr. of Foley & Lardner LLP for the en banc review, at the judges’ request.

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