Alston v. City of Madison

Decision Date10 April 2017
Docket NumberNo. 16-1034,16-1034
Citation853 F.3d 901
Parties Eric T. ALSTON, Plaintiff–Appellant, v. CITY OF MADISON, et al., Defendants–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Andrew Bentz, Attorney, Washington, DC, Nicole C. Henning, Attorney, Chicago, IL, Jones Day, for PlaintiffAppellant.

Kathryn A. Harrell, Attorney, Catherine M. Rottier, Attorney, Boardman & Clark, Madison, WI, for DefendantsAppellees City of Madison, Noble Wray, Madison Police Chief, Tom Woodmansee, Lieutenant, Cory Nelson, Lieutenant.

Steven C. Kilpatrick, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for DefendantAppellee Brian Reynolds, Probation Officer.

Before Flaum, Manion, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

The Madison Police Department established a focused deterrence program to increase surveillance of repeat violent offenders in Madison. Eric Alston was one of ten repeat violent offenders originally selected for the program.

Alston brought this § 1983 suit against the City of Madison, then Chief of Police Noble Wray, Lieutenant Tom Woodmansee, and three detectives—Cory Nelson, Samantha D. Kellogg, and Paige Valenta—claiming that he was selected for the program because of his race in violation of his equal-protection rights. Alston also argued that his inclusion in the program deprived him of liberty without due process of law: he contended that he was stigmatized as a repeat violent offender and subjected to increased surveillance, penalties, and reporting requirements, and to a biased probation-revocation hearing examiner.

While in the program, Alston's probation officer Brian Reynolds issued an apprehension request when Alston allegedly failed to attend a scheduled appointment. Alston argued that he rescheduled the appointment before he missed it, so the apprehension request violated his Fourth Amendment rights.

The district court granted the defendants' motion for summary judgment. Because Alston failed to produce evidence that would allow a reasonable trier of fact to conclude that the program had a discriminatory effect or purpose, that Alston's legal rights were altered by being included in the program, and that the apprehension request issued without reasonable suspicion, we reject Alston's arguments.


Repeat violent offenders are responsible for a disproportionate percentage of crime in Madison, and the police department expends more resources policing those offenders than others. The department created the Special Investigations Unit to run a focused deterrence program designed to combat that problem. The program used a two-pronged approach: (1) increase surveillance of repeat violent offenders to deter criminal conduct and (2) provide resources to repeat violent offenders to help them become productive members of society.

If program members continued to reoffend, the department wanted them to be punished to the greatest extent possible. To promote enforcement and punishment, investigations unit detectives1 met with other law-enforcement agencies to explain the program and to seek the agencies' help implementing it. In particular, the detectives met with probation-revocation hearing examiners and encouraged them to revoke the probation of program members who violated their probation terms.

Not every repeat violent offender in Madison was a part of the program; the aim was to monitor only the worst of that group. The investigations unit relied on two lists to select participants for the program: one from the department of corrections, which identified the most violent offenders released in the last year, and one from the police department technology staff, which identified the most prolific violent offenders in the department's database. From those lists, investigations unit detectives made qualitative and quantitative judgments about potential candidates' criminal history, likelihood of reoffending, effect on the community, and drain on department resources. Detectives chose eighteen candidates and created a candidate profile for each person. Each candidate's profile included the candidate's age, gang membership (if any), a breakdown of prior criminal conduct (including convictions and charged offenses), and pending cases.

The investigations unit presented the candidate profiles to a selection committee, which chose ten candidates for the program. The department of corrections then sent a letter notifying the selected candidates that they had been chosen for the program. The members were told both in the letter and by their probation officers that they had to attend a notification meeting to learn more about the program.

Alston, who was one of the first ten people chosen for the program, described the program less charitably. He argued that the program was designed to reduce disproportionate minority incarceration in Madison by making examples of minority offenders. He based this conclusion on three pieces of evidence. First, blacks accounted for only 4.5 percent of the Madison population but 37.6 percent of arrests and 86 percent of the program.2 Second, as to the first ten members chosen, the four candidates associated with allegedly black gangs were selected while the one candidate associated with an allegedly white gang was not. And third, quotes from two high-ranking police-department officials, both involved in establishing the program, revealed that the disparity in minority incarceration was a concern when creating the program. Lieutenant Woodmansee stated that "the goal, truly, was to have a positive impact on disproportionate minority confinement." (R. 113 at 6.) And an investigations unit report credited Chief of Police Noble Wray with describing the program "as a tangible means of addressing racial disparity in the criminal justice system." (R. 111–1 at 34.)

Alston also argued that Reynolds, his probation officer, violated his Fourth Amendment rights. After receiving notice that he had been selected for the program, Alston started having problems with law enforcement. One of Alston's probation conditions required him to attend appointments with Reynolds. On November 16, Alston was not at home for a scheduled visit. Alston alleges that he called Reynolds before he missed the meeting and told Reynolds that he would be late. According to Alston, they rescheduled the appointment for December 2.

Reynolds contends that he did not hear from Alston on November 16. According to Reynolds, Alston did not contact him until November 25. Reynolds claims that Alston's phone died during the November 25 conversation and that Alston did not call him back until November 30. Under Reynolds's version of the story, only then did they reschedule the appointment for December 2.

Regardless of the details surrounding the November 16 meeting, Reynolds issued an apprehension request for Alston on November 23. On December 1, the police department began investigating a domestic battery that allegedly involved Alston.3 A day later, Alston missed the rescheduled appointment. His next contact with Reynolds or law enforcement was on December 6, when he turned himself into the police because of the domestic-battery investigation.

After the missed appointments and domestic-battery incident, Alston had a probation-revocation hearing. At the hearing, Alston appeared before his hearing examiner, Beth Whitaker. Whitaker was one of the hearing examiners that investigations unit detectives met with at the start of the program. At those meetings, the detectives encouraged the hearing examiners to revoke the probation of any program member who violated a probation term. Alston asked Whitaker to recuse herself, but she refused. She ultimately revoked Alston's probation, noting that the investigations unit's presentation played at least some role in her decision.

Alston brought a § 1983 suit, claiming that his inclusion in the program violated his equal-protection and due-process rights. Alston also claimed that the apprehension request violated his Fourth Amendment rights. The district court granted the defendants' motion for summary judgment. This appeal followed.


We review de novo a grant of summary judgment, construing all facts and reasonable inferences in the nonmoving party's favor. Tapley v. Chambers , 840 F.3d 370, 376 (7th Cir. 2016). We affirm summary judgment if "the admissible evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. (quoting Hanover Ins. Co. v. N. Bldg. Co. , 751 F.3d 788, 791 (7th Cir. 2014) ).

A. Equal–Protection Claim

Alston first argues that he was selected for the program because of his race in violation of his equal-protection rights. To prove an equal-protection claim, Alston must show that the program "had a discriminatory effect" and that the defendants "were motivated by a discriminatory purpose." Chavez v. Ill. State Police , 251 F.3d 612, 635–36 (7th Cir. 2001).

To prove discriminatory effect, Alston must show that he was a member of a protected class and that he was treated differently from a similarly situated member of an unprotected class. Id. at 636. He may do so either by statistical analysis or by identifying a particular similarly situated member of the unprotected class who was treated differently from him. Id.

Blacks accounted for 4.5 percent of the Madison population, 37.6 percent of arrests, and 86 percent of the program—statistics that Alston repeats time and again in his brief as evidence of discriminatory effect. Even the defendants admit that these statistics are regrettable. (Appellees' Br. at 37.) But that does not mean that the statistics prove discriminatory effect. Statistics are relevant only if they address the pertinent question, that is, whether Alston was treated differently from a similarly situated member of the unprotected class. Chavez , 251 F.3d at 638. Alston's statistics do not address whether...

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