Hanes v. Zurick

• Decision Date: 18 August 2009
• Docket Number: No. 09-1043.,09-1043.
• Citation: 578 F.3d 491
• Parties: Stephen HANES, Plaintiff-Appellee, v. Thomas ZURICK, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

578 F.3d 491

Stephen HANES, Plaintiff-Appellee, v. Thomas ZURICK, et al., Defendants-Appellants.

No. 09-1043.

United States Court of Appeals, Seventh Circuit.

Argued July 8, 2009.

Decided August 18, 2009.

Richard D. Grossman (argued), Chicago, IL, for Plaintiff-Appellee.

William W. Kurnik (argued), Knight, Hoppe, Kurnik & Knight, Ltd., Rosemont, IL, for Defendants-Appellants.

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

Stephen Hanes sued the Village of Grayslake, Illinois, and eleven officers of its police department, alleging that the officers denied him—and only him—equal protection of the law, solely for reasons of personal animus. Relying on Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000), the district court denied the officers' motion to dismiss, which sought dismissal both on the basis of qualified immunity and for failure to state a claim. Under Hilton, a plaintiff states such a claim by alleging that "the police decided to withdraw all protection ... out of sheer malice." Id. at 1007. Focusing on their qualified immunity theory, the officers filed this interlocutory appeal, in which they invite us to reconsider Hilton in light of the Supreme Court's holding in Engquist v. Oregon Dep't of Agriculture, ___ U.S. ___, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), that no class-of-one equal protection claim can be made in the public-employment context. We reject the officers' invitation. Based on the significant differences between public employment and policing, we hold that Hilton remains good law after Engquist. We therefore affirm.

I

Hanes's complaint is straightforward: it alleges that as a result of a long-running and somewhat mysterious dispute with his neighbors, both Hanes and the neighbors have complained repeatedly to the police. Yet when the police respond, they arrest only Hanes, no matter who initiated the complaint. They have arrested him at least eight times, and those arrests have led to thirteen criminal charges for minor crimes. Every single charge was later dropped. According to Hanes, the police have treated him unequally by ignoring his complaints against others and arresting only him because they "hate" him and "do not respect him." Those reasons, Hanes insists, are "unrelated to the police officers' duties."

The officers moved to dismiss Hanes's complaint for failure to state a claim, arguing that selective enforcement of the law can never violate the equal protection clause under a class-of-one theory because of the discretion inherent in police power. The officers acknowledged that, under our opinion in Hilton, Hanes's allegations state a claim, but they argued that the Supreme Court's opinion in Engquist implicitly overruled Hilton. The officers also argued that they were entitled to qualified immunity, but they conceded that if the district court refused to revisit Hilton, it should reject their qualified immunity argument as well. The district court concluded that it was bound by Hilton and denied the officers' motion. Its order did not explicitly mention qualified immunity.

II

The court's failure to discuss qualified immunity caused us to question whether we have before us a nonappealable order denying a motion to dismiss, see Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008), or an appealable order rejecting the defense of qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In Gosnell v. City of Troy, Ill., 979 F.2d 1257 (7th Cir.1992), the district court similarly denied the defendants' motions for summary judgment in an order that did not mention qualified immunity. Id. at 1259-60. We acknowledged the possibility that "the district court intended to rule on the question of qualified immunity in its order," but we held that without an express "conclusion of law" from the district court, appellate jurisdiction was not proper. Id. at 1261. Gosnell advises that defendants faced with uncertainty over whether the district court has rejected a defense of qualified immunity should move the district court to reconsider or clarify; they should not appeal. Id. at 1260.

A closer look at this case reveals, however, that it is not the same as Gosnell. In Gosnell, it was not only unclear whether the district court intended to rule on qualified immunity; it was also unclear whether the defendants intended to raise the defense. Id. at 1259. The defendants in Gosnell seemed to have forgotten about the issue when they filed a second motion for summary judgment. In the present case, there is no ambiguity about the officers' intent-their motion to dismiss explicitly raises the defense, and their supporting memorandum contains a detailed discussion of the issue. Hanes responded in kind, ensuring that the issue was fully briefed for the district court. Because qualified immunity was unambiguously before the district court, its denial of the motion to dismiss necessarily included a denial of the defense of qualified immunity. See In re Montgomery County, 215 F.3d 367, 374 (3d Cir.2000) (collecting cases).

As the Supreme Court recently reaffirmed in Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), two questions are pertinent to the defense of qualified immunity: whether the facts alleged show that the state actor violated a constitutional right, and whether that right was clearly established. Id. at 816, referring to Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Pearson held that the district court has discretion in choosing the order in which those questions should be answered; a negative answer to either one is enough to establish the defense of qualified immunity. Here, the district court was able to resolve both parts of the immunity inquiry by reference to Hilton: the facts alleged described a violation of a constitutional right, and, in noting that "Hilton is squarely on point," the court indicated that the right was clearly established.

Gosnell is distinguishable for another reason as well. There, the discussion in the district court's ruling had nothing to do with qualified immunity. Gosnell, 979 F.2d at 1260. We were wary of making an appellate ruling without "findings of fact and conclusions of law" from the district court. Id. at 1261. Indeed, in general, "an interlocutory appeal is inappropriate where substantial steps remain to be taken in the district court before the facts, and hence the applicable law, are brought into focus." Khorrami, 539 F.3d at 787. In the present case, nothing needs to be cleared up, and so there would be no point to a remand for an explicit ruling on qualified immunity.

Finally, accepting jurisdiction over this appeal is consistent with the Supreme Court's reminder that qualified immunity is "both a defense to liability and a limited `entitlement not to stand trial or face the other burdens of litigation.'" Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1946, 173 L.Ed.2d 868 (2009) (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. 2806). Appeals from denials of motions raising the defense are allowed "without regard to the district court's reasons; it is enough that a given order prolongs the litigation and thus (further) impinges on a defendant's potential right not to be sued." Asher v. Baxter Int'l, Inc., 505 F.3d 736, 739-40 (7th Cir.2007) (citing Fairley v. Fermaint, 482 F.3d 897 (7th Cir.2007)). (This is not to say that every minor postponement gives rise to a right to appeal; normal scheduling orders designed to facilitate an informed ruling on the defense are permissible. See Khorrami, 539 F.3d at 786.) The district court's order gave no indication that it intended to reserve ruling on any of the arguments raised in the motion to dismiss. By signaling its decision on both halves of the qualified immunity inquiry, the district court set the stage for the defendants' interlocutory appeal.

III

With our jurisdiction secure, we may now move to the officers' argument that they are entitled to qualified immunity. As they did in the district court, the officers rely almost exclusively on the Supreme Court's decision in Engquist and its purported effect on our holding in Hilton.

A

We consider first the question whether the facts Hanes alleged describe a constitutional violation. See Pearson, 129 S.Ct. at 815-16, 818. Hanes argues that they do, based on the idea that the Equal Protection Clause protects against invidious discrimination against even one person. Under that theory, "the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

In Hilton, we relied on Olech to explain how a class-of-one claim could be made against police officers for unequal enforcement of the law. Hilton, 209 F.3d at 1007. The plaintiff there had alleged that throughout a long-running feud with his neighbors, the police were not evenhanded and usually cited or arrested only him. Id. at 1006. We recognized a claim under a class-of-one theory for unequal police protection, but held that the plaintiff could not survive summary judgment because he had not shown that the officers' unequal enforcement of the law was motivated by personal animus unrelated to official duties. Hilton, 209 F.3d at 1007-08. It is true that some more recent cases have cast doubt on the animus requirement, suggesting that the plaintiff need show only that no rational reason supports the unequal treatment. See United States v. Moore, 543 F.3d 891, 898 (7th Cir.2008) (collecting cases). Because Hanes alleged personal animus, thereby meeting the more onerous standard, we need not resolve the tension identified in Moore. Hanes's complaint follows Hilton to a "T" (perhaps because the plaintiff's lawyer is the same in both cases), and the officers have never...