Lunini v. Grayeb, 04-1822.

• Decision Date: 18 January 2005
• Docket Number: No. 04-1822.,04-1822.
• Parties: Joseph A. LUNINI, Jr., Plaintiff-Appellee, v. Charles V. GRAYEB, individually; John Stenson, individually and in his official capacity as Chief of Police for the City of Peoria; Stuart Barden, individually; and Jeffrey Kice, individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

395 F.3d 761

Joseph A. LUNINI, Jr., Plaintiff-Appellee, v. Charles V. GRAYEB, individually; John Stenson, individually and in his official capacity as Chief of Police for the City of Peoria; Stuart Barden, individually; and Jeffrey Kice, individually, Defendants-Appellants.

No. 04-1822.

United States Court of Appeals, Seventh Circuit.

Argued November 9, 2004.

Decided January 18, 2005.

As Amended on Denial of Rehearing and Rehearing En Banc March 4, 2005.

COPYRIGHT MATERIAL OMITTED

Edward A. Voci (argued), Oak Park, IL, for Plaintiff-Appellee.

Kenneth E. Davies (argued), The Leiter Group, Peoria, IL, for Defendant-Appellant Charles V. Grayeb.

L. Lee Smith (argued), Hinshaw & Culbertson, Peoria, IL, for Defendants-Appellants John Stenson and Stuart Barden.

Gerald W. Brady, Jr., Brady & Flanagan, Peoria, IL, for Defendant-Appellant Jeffrey Kice.

Before FLAUM, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Following an alleged physical altercation with Charles Grayeb, his former boyfriend, appellee Joseph Lunini filed suit against Grayeb and three police officers who allegedly refused to arrest Grayeb due to his position on the Peoria City Council. The suit alleged, among other things, that the officers' refusal to arrest Grayeb violated Lunini's equal protection rights under the Fourteenth Amendment. The district court granted in part and denied in part the defendants' subsequent motion for summary judgment, holding, inter alia, that the police officers' claims of qualified immunity fail because Lunini's equal protection rights were "clearly established" at the time of the incident and material questions of fact remain as to whether the police officers actually violated those rights. Appellants now appeal that ruling on the narrow question whether Lunini's equal protection rights were indeed "clearly established" for qualified immunity purposes at the time of the alleged incident.

I. FACTS & DISPOSITION BELOW¹

In this case we attend to the aftermath of a protracted lovers' quarrel in which, it would seem, each party has attempted to use the official machinery of the justice system to exact revenge on the other. It is emphatically not the sort of case that we relish. At all times relevant to this suit the defendant Charles Grayeb was a member of the Peoria City Council, the defendant John Stenson was the Chief of the Peoria Police Department, and the defendants Stuart Barden and Jeffrey Kice were police officers with the Peoria Police Department. Defendant Grayeb and plaintiff Joseph A. Lunini, Jr. met in June 1995. Lunini and Grayeb began a personal relationship with sexual overtones in June 1995, and they began to live together in December 1995 or January 1996. In 1997, Lunini and Grayeb moved into a single-family home at 510 West High Street (the High Street residence) in Peoria, Illinois, which Grayeb had purchased earlier that year. Grayeb is still the record owner of the property. Lunini and Grayeb were the sole residents of the High Street residence from 1997 until June 2000, and Lunini's children would visit the residence almost every weekend.

Sometime during the first half of 2000 Lunini and Grayeb began to have major difficulties in their relationship, and by June a breakup was on the horizon. On June 27, 2000, after a City Council meeting, Grayeb met with Chief Stenson and discussed his problems with Lunini. The details of this discussion are contested, but for our purposes it is enough to note that Grayeb asked Stenson about how he might have Lunini removed from the High Street residence. Lunini claims that Grayeb later told him about this conversation and declared that the police were willing to remove Lunini at Grayeb's request, though Grayeb denies making such statements. In any event, it appears that shortly thereafter Lunini began to make arrangements to move out of the High Street residence.

Events came to a head on June 30, 2000 when Lunini went to the High Street residence at approximately 4:00 a.m., ostensibly to retrieve a few boxes from the basement and pack up some crystal that he owned. Grayeb came downstairs just as Lunini was placing his boxes in the front parlor, and a confrontation ensued. Lunini alleges that Grayeb lost his temper, swore at him, slapped him twice in the face and punched him in the face once. Lunini also reports that Grayeb told him to "go ahead and call the police," boasting that the police would not help Lunini since Grayeb was a member of the City Council. Grayeb disputes that this altercation ever occurred, but the precise details of the confrontation are immaterial to this appeal. After allegedly being struck in the face, Lunini grabbed a portable telephone, dialed 911 and went outside the house. He told the 911 operator that he had been assaulted at the High Street residence.

Defendants Barden and Kice were dispatched to the scene between 5:00 and 5:30 a.m., where they found Lunini outside the house in his bathrobe and holding a telephone. Lunini told Barden that he and Grayeb had gotten into an argument about Lunini's smoking in the house, and that while he was packing boxes Grayeb had slapped him twice and punched him in the face. Barden observed that Lunini was bleeding from his lip and had blood on his hand. Lunini also told Barden that he and Grayeb were ending a relationship and that Lunini was planning to move out. Lunini claims that Barden and Kice laughed and "made faces" when Lunini mentioned his relationship with Grayeb. After Lunini declined the defendants' offer to call an ambulance, defendant Kice told him to "go over and sit on the curb and don't leave." Barden and Kice then went to enter the house; Lunini remained sitting on the curb outside for approximately one hour.

Meanwhile, upon seeing the police cars arrive in front of the High Street residence, Grayeb called the police station and asked to have Chief Stenson paged. Grayeb claims he wanted to speak to Stenson since he was alarmed that Lunini had entered his house at 4:30 a.m. and because he did not know why the police had been summoned. Shortly thereafter, Barden and Kice entered the residence. Grayeb told Barden that Lunini was in the process of moving out and that he and Lunini had gotten into an argument about a cigarette Lunini had left in the house. Grayeb told Barden that he was unaware of Lunini's injury, and Barden observed no blood on Grayeb's person. At some point Barden and Kice also called for a sergeant to come to the High Street residence since the incident involved a man of "prestige" from the City Council. The sergeant remained there until Barden and Kice left the scene.

While Barden was inside the house, Chief Stenson returned Grayeb's earlier call. Grayeb and Stenson had a short conversation, the content of which is somewhat contested, and then Stenson asked to speak with Barden. Barden told Stenson about Lunini's claim but said there was no physical evidence of an altercation such as overturned furniture, broken glass or torn clothes. Barden also told Stenson that he could not determine how Lunini had been injured since there were no witnesses to the incident. Stenson mentioned his June 27 conversation with Grayeb but did not ask if Lunini was the individual Grayeb had been referring to then. Stenson finally concluded that, under the circumstances, he could not determine whether a crime had been committed. He told Barden that if there was insufficient evidence to make an arrest, then he should get both parties' account of the incident, make a police report and escort Lunini off the property. Neither Kice nor Barden had ever before received a phone call from Chief Stenson at a crime scene.

Kice and Barden informed Lunini that he was to leave the High Street property or be arrested. Lunini objected that he lived at the residence and that it was Grayeb who should be arrested. After Lunini was allowed to change clothes, Kice escorted him down to the garage where Lunini relinquished his house key, gate key and garage door opener. Barden gave Lunini a domestic violence form and explained how he could obtain an order of protection if he desired one. Barden went back inside, gave a domestic violence form to Grayeb as well, and then left the residence. Lunini also left the residence, followed by two squad cars, and drove to the home of his friend Terry Ricci at 2007 North Linn in Peoria.

Peoria Police Department General Order # 400.01 sets forth procedures for responding to domestic violence incidents. The Order provides that under the Illinois Domestic Violence Act, an officer is expected to handle domestic violence in a manner similar to any other crime. In a domestic violence situation, an officer is to make an arrest when probable cause exists that a felony has been committed, or that a misdemeanor or felony has been committed and the victim has visible signs of injury. Under Section D of General Order # 400.01, one of the circumstances under which an arrest is not to be made is if an officer is unable to determine if a crime has been committed.² Factors to consider when making an arrest include the presence of weapons at the scene, overturned furniture and another witness at the scene telling the officer someone struck the victim.

Lunini first attempted to bring criminal charges against Grayeb but was told by the Assistant State's Attorney that the case could not be brought before a jury because it was a "homo thing." Lunini then brought the instant action against Grayeb, Stenson, Barden and Kice, asserting claims under the Fourth Amendment for violation of his right to be free from unreasonable seizure, under the Fourteenth Amendment for violation of his right to equal protection of the law, under § 3604 of the Fair Housing Act, 42 U.S.C. § 3601 et seq., along with a state law claim for battery. Lunini's equal protection claim was advanced as a "class of one" suit, alleging an improper withdrawal of police protection...