Del Marcelle v. Brown Cnty. Corp.

680 F.3d 887

Lewis D. DEL MARCELLE, Plaintiff–Appellant,

v.BROWN COUNTY CORP., et al., Defendants–Appellees.

No. 10–3426.

United States Court of Appeals, Seventh Circuit.

Submitted March 8, 2011.

Argued En Banc Sept. 23, 2011.

Decided May 17, 2012.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10–C–785—William C. Griesbach, Judge.

Thomas L. Shriner, Jr. (argued), Attorney, Foley & Lardner LLP, Milwaukee, WI, for Plaintiff–Appellant.

William J. Ewald (argued), Attorney, Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, WI, Samuel C. Hall, Jr.(argued), Attorney, Crivello Carlson, S.C., Milwaukee, WI, for Defendants–Appellees.

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.

PER CURIAM.

Five judges have voted to affirm the district court's judgment and five to remand for further proceedings. The result of this tie vote is affirmance, because it takes a majority to reverse a judgment.

Although it is customary not to issue opinions when an appellate court affirms on a tie vote, there are occasional departures. See, e.g., School District of the City of Pontiac v. Secretary of Education, 584 F.3d 253 (6th Cir.2009) (en banc); United States v. McFarland, 311 F.3d 376, 417–20 and n. 1 (5th Cir.2002) (en banc) (dissenting opinion, collecting cases); United States v. Walton, 207 F.3d 694 (4th Cir.2000) (en banc); United States v. Klubock, 832 F.2d 664 (1st Cir.1987) (en banc); see also Standard Industries, Inc. v. Tigrett Industries, Inc., 397 U.S. 586, 90 S.Ct. 1310, 25 L.Ed.2d 590 (1970) (dissenting opinion); Biggers v. Tennessee, 390 U.S. 404, 404 n. 1, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968) (dissenting opinion, collecting cases). A majority of the judges of the court have concluded that this is an appropriate occasion for such a departure. 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.

Judge POSNER'S lead opinion is joined by Judges KANNE, SYKES, and TINDER. Chief Judge EASTERBROOK has written an opinion concurring in the judgment. Judge WOOD'S dissenting opinion is joined by Judges FLAUM, ROVNER, WILLIAMS, and HAMILTON.

The judgment is affirmed by an equally divided court.

POSNER, Circuit Judge, with whom KANNE, SYKES, and TINDER, Circuit Judges, join.

The plaintiff brought this federal civil rights suit against law enforcement officers in a Wisconsin county (and against the county itself), charging that they had denied him equal protection of the laws. They had done this, the complaint alleges, by failing to respond to his complaints about gangs that were harassing him and his wife and had eventually forced them to sell their house in the Village of Denmark and move to another village in the county, with the gangs in hot pursuit. The district court, interpreting the pro se complaint as simply a complaint about inadequate police protection, dismissed the suit for failure to state a claim, correctly ruling that states are not required by the Fourteenth Amendment to provide adequate police protection against private violence. DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir.2000); Schroder v. City of Fort Thomas, 412 F.3d 724, 725–26 (6th Cir.2005).

The plaintiff appealed, and the appeal was submitted to a three-judge panel in March 2011. The panel noted that the complaint could be interpreted as charging the defendants with arbitrarily providing less police protection to the plaintiff and his wife than the police provide to other residents of Brown County. See Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir.2012). The plaintiff's invocation of the equal protection clause of the Fourteenth Amendment supported that characterization,and so interpreted the suit presented a “class of one” discrimination claim, as distinct from a claim of discrimination based on a plaintiff's membership in a particular group, such as a racial or religious minority. However, although detailed, the complaint did not allege that the defendants' failure to protect the plaintiff from harassment by gangs had been the result of their harboring some personal animosity toward the plaintiff or his wife, and the panel concluded that without such an allegation the plaintiff's equal protection claim failed.

In advance of publication, the panel circulated its proposed opinion affirming the dismissal of the suit to the full court under Circuit Rule 40(e), because the opinion proposed a new approach to the standard of liability in class-of-one discrimination cases. The full court decided on April 12 of last year to hear the case en banc, and so the panel opinion was not published and instead the appeal was reargued before the full court. The plaintiff had litigated pro se, but upon deciding to hear the case en banc the court requested Thomas L. Shriner, Jr., of the law firm of Foley & Lardner LLP, to represent the plaintiff. We thank Mr. Shriner, his colleague Kellen C. Kasper, and the firm for their excellent representation of the plaintiff.

In deciding to hear the case en banc, the court had hoped that the judges might be able to agree on an improved standard for this difficult class of cases. We have not been able to agree. The court has split three ways, but by a tie vote has affirmed the dismissal of the suit.

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 plaintiff's complaint, although detailed, does not allege that the defendants failed to protect him from harassment because they wanted to single him out for unfavorable treatment and had no justification, such as limited resources, for their failure to protect him. For this reason, the suit is rightly being dismissed.

We believe that class-of-one suits should not be permitted against police officers or police departments, complaining about failure to investigate a complaint or 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. This case and cases like it are remote from the original target of the equal protection clause—law enforcers who systematically withdraw protection from a group against which they are prejudiced. The unwillingness of the law enforcement authorities in southern states to protect the newly freed blacks from white vigilante groups such as the Ku Klux Klan was an important motive for the enactment of the equal protection clause. Slaughter–House Cases, 83 U.S. (16 Wall.) 36, 70–71, 21 L.Ed. 394 (1872); Hilton v. City of Wheeling, supra, 209 F.3d at 1007; David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 349 (1985).

The history of class-of-one litigation can be said to have begun with our decision in Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir.1998), though there were earlier cases in our court and in other courts as well. See id. at 387. The reason for making Olech the starting point of our narrative is what the Supreme Court did with it.

The Olechs wanted the Village to connect their home to the municipal water system. The Village agreed, but only on condition that the Olechs grant it not the customary 15–foot–wide easement to enable the Village to service the water main but a 33–foot–wide easement to enable the Village to widen the road on which the Olechs lived. They rejected the condition, and after several months of disputation the Village relented, admitted that it had had no good reason to demand the wider easement, and agreed to hook up the Olechs' home to the water main in exchange for the standard 15–foot easement. The Olechs sued for the damages they'd sustained by being without water during the period in which the Village was demanding the larger easement. They claimed that the Village had had no justification for treating them differently from other property owners—it had done so to punish them for having successfully sued it for negligently installing culverts near their property.

The district court dismissed the Olechs' suit for failure to state a claim. We reversed. Though “troubled ... by the prospect of turning every squabble over municipal services ... into a federal constitutional case,” we were comforted by the thought that “the ‘vindictive action’ class of equal protection cases requires proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant.” Id. at 388.

The Supreme Court affirmed our decision in a brief per curiam opinion, Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), but without making clear what role if any motive should play in such cases. It emphasized the allegations “that the Village's demand was ‘irrational and wholly arbitrary’ and that the Village ultimately connected [the Olechs'] property [to the water system] after receiving a clearly adequate 15–foot easement,” and said that “these allegations, quite apart from the Village's subjective motivations, are sufficient to state a claim...