Esmail v. Macrane

• Decision Date: 19 April 1995
• Docket Number: No. 94-3285,94-3285
• Citation: 53 F.3d 176
• Parties: Basim ESMAIL, Zabco Enterprises, Incorporated, and Nazco Enterprises, Incorporated, Plaintiffs-Appellants, v. Samuel T. MACRANE, Jr., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 176

53 F.3d 176

63 USLW 2658

Basim ESMAIL, Zabco Enterprises, Incorporated, and Nazco

Enterprises, Incorporated, Plaintiffs-Appellants, v. Samuel T. MACRANE, Jr., et al., Defendants-Appellees.

No. 94-3285.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1995.

Decided April 19, 1995.

Timothy T. McLaughlin (argued), Oak Lawn, IL, for plaintiff-appellant.

Thomas G. DiCianni, Ancel, Glink, Diamond, Cope & Bush, Chicago, IL, Michael M. Roth, Howard P. Levine, Paul L. Stephanides (argued), City of Naperville, Naperville, IL, for defendants-appellees.

Before POSNER, Chief Judge, and BAUER and ROVNER, Circuit Judges.

POSNER, Chief Judge.

Basim Esmail, a liquor dealer in Naperville, Illinois, brought suit in federal district court under 42 U.S.C. Sec. 1983, complaining that he was being persecuted by the Mayor of Naperville in violation of Esmail's right to the equal protection of the laws. The district judge dismissed the suit for failure to state a claim, and we must therefore take the facts alleged in the complaint as true, though of course without warranting that they are true.

The complaint is 22 pages long and contains 50 paragraphs. It unfolds the following story, which we simplify slightly. Esmail has owned a liquor store in Naperville since 1981. He had a retail liquor license issued by the city and renewable annually. It was renewed until 1992. When in January of that year he applied for the renewal of his license, and also for a second license at another location in the city, the city notified him that its prosecutor would move that both applications be denied. And this on three grounds: He had given beer and champagne to a minor; one of his managers had failed to register as the manager of a liquor store, as required by the municipal code; and Esmail had omitted from his application form the fact, required to be disclosed on the form, that his license had been revoked. The true facts were these: Esmail, a leader in efforts to prevent the sale of liquor to minors, had used Stacey Hicks, a 19-year-old, to conduct a sting operation against his own store in order to discover whether a salesperson who he suspected of selling alcoholic beverages to minors was actually guilty. He had not bought Stacey Hicks beer or given her a bottle of champagne. She had bought the beer herself, had gotten drunk and fallen in the mud, had stolen the bottle of champagne, and had charged Esmail with sexual assault when he helped her clean off the mud. The phony charge of sexual assault was dropped. The episode had serendipitously been videotaped, and the videotape showed that Esmail really had been cleaning off the mud on her, not sexually assaulting her. And the unregistered manager had been on duty only an hour and a half; this is not in the complaint, but it is in an opinion of the Illinois Appellate Court, about which more shortly. As for the failure to disclose a revocation, it is true that back in 1985 Esmail's license had been revoked because he had bought a glass of beer for an underage female. But the offense had not been committed in Naperville. And on appeal the state liquor control commission had reduced the revocation to a thirty-day suspension--and Esmail had disclosed the suspension on every application for renewal that he had filed after 1985.

The mayor, who is also Naperville's liquor control commissioner, found Esmail guilty on all but the charge of having given Stacey Hicks a bottle of champagne, and ordered his license revoked and the application for a second license denied. After exhausting his administrative remedies, Esmail turned to the state courts, which ordered that both his application for a renewal of his original license and his application for a second license be granted. Esmail's only violation of law, the courts found, had been the employment of the unregistered manager for an hour and a half, and that violation was de minimis.

So what is Esmail complaining about? He is complaining that the mayor forced him to incur $75,000 in legal expenses to get his license applications finally granted through the intervention of the state courts. Why did the mayor do this? Because, the complaint charges, he and other city officials had developed a "deep-seated animosity" toward Esmail. The animosity was due in part to Esmail's success in getting the 1985 revocation order (issued by Mayor Macrane's predecessor) changed to a brief suspension, in part to Esmail's advertising campaign against the sale of liquor to minors--why that should distress the mayor is not explained, but it is presumably because the ads accused the city of ineffectual enforcement of the law--and in part to Esmail's having withdrawn political and financial support from the mayor after Esmail learned that the mayor was trying to destroy his business. The complaint does not allege, however, as one might have expected, any violation of Esmail's rights under the First Amendment. The mayor's "campaign of vengeance" against Esmail is alleged to have consisted not only in trying to deny him his liquor licenses but also in causing the Naperville police to harass Esmail and his employees with constant, intrusive surveillance, in causing the police to stop his car repeatedly and force him to undergo field sobriety tests, and in causing false criminal charges to be lodged against him.

The denial of equal protection is alleged to lie in the mayor's having denied Esmail's two license applications in 1992 on the basis of trivial or trumped-up charges while "maintain[ing] a policy and practice of routinely granting new liquor licenses as well as renewing existing licenses requested by persons who had engaged in the same or similar conduct, ... for the sole and exclusive purpose of exacting retaliation and vengeance against" Esmail. A list of examples follows--and they are arguably of more serious infractions than Esmail was charged with, yet were punished lightly or not at all. A liquor license was granted to Mike Ditka, the former coach of the Chicago Bears, even though he had been placed under court supervision for driving under the influence of alcohol. The license of a liquor dealer who had three convictions for driving under the influence of alcohol was not revoked or suspended. The license of a dealer who had committed battery against Naperville police officers was renewed. A license was issued to an individual who had been convicted of a felony drug charge and whose store manager had served four years in federal prison on drug charges. A seven-day suspension was the only punishment of a licensee who stayed open after the legally mandated closing hours, served liquor to minors and a drunk, did not have a manager on duty (as required by law), and mouthed off in a hostile and obscene manner to the Naperville police officer who was investigating these violations. The enumeration of instances of unequal treatment in the complaint, though extensive, is not exhaustive, since the plaintiff had not conducted discovery, the suit having been dismissed on the pleadings.

This is an unusual kind of equal protection case, though not an unprecedented kind. The common kinds are two. One involves charges of singling out members of a vulnerable group, racial or otherwise, for unequal treatment. See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985). The other, which rarely succeeds nowadays, involves challenges to laws or policies alleged to make irrational distinctions, Lindsey v. Normet, 405 U.S. 56, 74-79, 92 S.Ct. 862, 874-77, 31 L.Ed.2d 36 (1972), for example in tax rates. See, e.g., U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 175-77, 101 S.Ct. 453, 459-60, 66 L.Ed.2d 368 (1980). This case fits neither mold. The charge here is that a powerful public official picked on a person out of sheer vindictiveness; and we must consider what standing such a charge has in the law of equal protection. The mayor argues none, that this is just a case of "selective prosecution." This term has two meanings in law. The first is simply failing to prosecute all known lawbreakers, whether because of ineptitude or (more commonly) because of lack of adequate resources. The resulting pattern of nonenforcement may be random, or an effort may be made to get the most bang for the prosecutorial buck by concentrating on the most newsworthy lawbreakers, but in either case the result is that people who are equally guilty of crimes or other violations receive unequal treatment, with some being punished and others getting off scot-free. That form of selective prosecution, although it involves dramatically unequal legal treatment, has no standing in equal protection law. Wayte v. United States, 470...