In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3426
L EWIS D. D EL M ARCELLE,
Plaintiff-Appellant,
v.
B ROWN C OUNTY C ORP., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-C-785—William C. Griesbach, Judge.
S UBMITTED M ARCH 8, 2011—
A RGUED E N B ANC S EPTEMBER 23, 2011—D ECIDED M AY 17, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,
K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES, T INDER, and
H AMILTON, Circuit Judges.
P ER C URIAM . 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.
2 No. 10-3426
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 (1970)
(dissenting opinion); Biggers v. Tennessee, 390 U.S. 404,
404 n. 1 (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 judg-
ment. Judge Wood’s dissenting opinion is joined by
Judges Flaum, Rovner, Williams, and Hamilton.
The judgment is affirmed by an equally divided court.
No. 10-3426 3
P OSNER, Circuit Judge, with whom K ANNE, SYKES,
and T INDER, 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 protec-
tion 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, inter-
preting 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 pro-
vide adequate police protection against private violence.
DeShaney v. Winnebago County Dep’t of Social Services,
489 U.S. 189, 197 (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 protec-
tion 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 plain-
tiff’s invocation of the equal protection clause of
the Fourteenth Amendment supported that character-
ization, and so interpreted the suit presented a “class of
4 No. 10-3426
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 protec-
tion 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 re-
No. 10-3426 5
quired 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 treat-
ment—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 per-
mitted 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 systemati-
cally withdraw protection from a group against which
they are prejudiced. The unwillingness of the law enforce-
ment 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 enact-
6 No. 10-3426
ment of the equal protection clause. Slaughter-House
Cases, 83 U.S. (16 Wall.) 36, 70-71 (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, ad-
mitted 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 sus-
tained by being without water during the period in
which the Village was demanding the larger easement.
They claimed that the Village had had no justifica-
tion for treating them differently from other property
owners—it had done so to punish them for having suc-
cessfully sued it for negligently installing culverts
near their property.
No. 10-3426 7
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 plain-
tiff 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 (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 for relief under traditional equal protection analy-
sis. We therefore affirm the judgment of the Court
of Appeals, but do not reach the alternative theory
of ‘subjective ill will’ relied on by that court.” Id. at 565.
One hears frequent laments that modern Supreme
Court opinions are too long, but the opinion in Olech is
too short. It leaves the key words “irrational” and
“wholly arbitrary” undefined in the class-of-one con-
text. “[T]raditional equal protection analysis” is situation
specific: industry groups complaining about discrimina-
tory regulations do not receive the same consideration
8 No. 10-3426
in equal protection case law as blacks or women com-
plaining about racial or sexual discrimination. Women
for that matter don’t receive as much consideration
as blacks; and hippies, the elderly, and the mentally
impaired don’t receive as much consideration as women
or blacks. See Railway Express Agency, Inc. v. New York,
336 U.S. 106, 109-10 (1949); United States Dep’t of Agri-
culture v. Moreno, 413 U.S. 528, 534 (1973); Massachusetts
Board of Retirement v. Murgia, 427 U.S. 307, 312-14
(1976) (per curiam); City of Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 440-43 (1985); Clark v. Jeter,
486 U.S. 456, 461 (1988); Grutter v. Bollinger, 539 U.S. 306,
326-27 (2003). Class-of-one discrimination might well
be thought also to require a different level of considera-
tion from other forms of discrimination challenged
under the equal protection clause, as the Court was later
to realize. Justice Breyer, concurring in the judgment
but not in the majority opinion in Olech, said that the
presence of subjective ill will was “sufficient to minimize
any concern about transforming run-of-the-mill zoning
cases into cases of constitutional right.” 528 U.S. at 566.
The majority ignored his concurrence.
We have difficulty understanding why—since the issue
in Olech was simply whether class-of-one equal protec-
tion claims are permissible—the Court took the occasion
to reject, or at least appear to reject, the limiting
principle that we had suggested and Justice Breyer had
endorsed. The Court need not have endorsed it—it need
only have confined the immediate decision to cases in
which ill will was shown; if later a case arose in
which a compelling equal protection argument was made
No. 10-3426 9
despite the absence of a bad motive, the Court could have
allowed the case to proceed without contradicting any-
thing in its opinion in Olech. Making the presence of ill
will a factor in the conclusion that the Olechs had stated
a claim would have launched modern class-of-one
equal protection litigation on calmer waters.
Like Justice Breyer, lower-court judges did not
believe that class-of-one litigation could be kept
from exploding without some limiting principles, but
they (we) couldn’t and still can’t agree on what those
principles should be. Eight years ago a concurring
opinion in Bell v. Duperrault, 367 F.3d 703, 709-13 (7th
Cir. 2004), noted the lack of clarity concerning the
standard for deciding such cases, echoing scholarly
commentary: Robert C. Farrell, “Classes, Persons, Equal
Protection, and Village of Willowbrook v. Olech,” 78 Wash. L.
Rev. 367, 400-25 (2003); J. Michael McGuinness, “The
Impact of Village of Willowbrook v. Olech on Disparate
Treatment Claims,” 17 Touro L. Rev. 595, 603-06 (2001);
Shaun M. Gehan, Comment, “With Malice Toward
One: Malice and the Substantive Law in ‘Class of One’
Equal Protection Claims in the Wake of Village of
Willowbrook v. Olech,” 54 Me. L. Rev. 329, 379-80 (2002).
And since then scholarly complaint about the lack of
clarity in class-of-one case law has mushroomed. See H.
Jefferson Powell, “Reasoning About the Irrational: The
Roberts Court and the Future of Constitutional Law,” 86
Wash. L. Rev. 217, 261-76 (2011); Benjamin L. Schuster,
“Fighting Disparate Treatment: Using the ‘Class of One’
Equal Protection Doctrine in Eminent Domain Settlement
Negotiations,” 45 Real Property, Trust & Estate L.J. 369, 391-
10 No. 10-3426
94 (2010); Robert C. Farrell, “The Equal Protection Class
of One Claim: Olech, Engquist, and the Supreme Court’s
Misadventure,” 61 S.C. L. Rev. 107, 121-25 (2009); Kerstin
Miller, Note, “Engquist v. Oregon Department of Agriculture:
No Harm Meant? The Vanquished Requirement of Ill-Will
in Class-Of-One Equal Protection Claims and the Erosion
of Public Employees’ Constitutional Rights,” 68 Md. L. Rev
915, 935-36 (2009); Matthew M. Morrison, Comment,
“Class Dismissed: Equal Protection, the ‘Class-of-One,’
and Employment Discrimination After Engquist v. Oregon
Department of Agriculture,” 80 U. Colo. L. Rev. 839, 854-56
(2009); William D. Araiza, “Irrationality and Animus in
Class-of-One Equal Protection Cases,” 34 Ecology L.Q. 493,
498-500 (2007); Robert J. Krotoszynski, Jr., “Taming the
Tail that Wags the Dog: Ex Post and Ex Ante Con-
straints on Informal Adjudication,” 56 Admin. L. Rev.
1057, 1068 n. 50 (2004).
In Hilton v. City of Wheeling, supra, we took a stab at
formulating a standard that we hoped would be both
consistent with Olech and operable: “to make out a
prima facie case the plaintiff must present evidence
that the defendant deliberately sought to deprive him
of the equal protection of the laws for reasons of a
personal nature unrelated to the duties of the defendant’s
position.” 209 F.3d at 1008. Hostility to the plaintiff
(“animus”), the motive emphasized in our Olech opinion
and in Justice Breyer’s concurrence in the Supreme
Court, was only one of the “reasons of a personal nature
unrelated to the duties of the defendant’s position” that
we thought should be actionable in class-of-one litiga-
tion. Others included larceny, as in Forseth v. Village of
No. 10-3426 11
Sussex, 199 F.3d 363, 371 (7th Cir. 2000), and a desire to
find a scapegoat in order to avoid adverse publicity and
the threat of a lawsuit, as in Ciechon v. City of Chicago, 686
F.2d 511, 524 (7th Cir. 1982). These were wrongful
acts, though not motivated by personal hostility to the
victims, as in Olech.
We have applied the approach of Hilton in a number
of cases: Crowley v. McKinney, 400 F.3d 965, 972 (7th Cir.
2005); Fenje v. Feld, 398 F.3d 620, 628 (7th Cir. 2005);
Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d
1124, 1127 (7th Cir. 2004); Indiana Land Co., LLC v. City of
Greenwood, 378 F.3d 705, 712-13 (7th Cir. 2004); Discovery
House, Inc. v. Consolidated City of Indianapolis, 319 F.3d
277, 283 (7th Cir. 2003); Purze v. Village of Winthrop Harbor,
286 F.3d 452, 455 (7th Cir. 2002); Cruz v. Town of Cicero,
275 F.3d 579, 587 (7th Cir. 2001). The approach we
suggest in this opinion is a variant of it.
The picture in other circuits (in ours too, alas, continuing
to this day) is very mixed, though there is considerable
support for Hilton’s approach. See SBT Holdings, LLC v.
Town of Westminster, 547 F.3d 28, 34 (1st Cir. 2008); Lazy Y
Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008)
(“the defendants simply harbor animus against her in
particular and therefore treated her arbitrarily” (emphasis
in original)); Lindquist v. City of Pasadena, 525 F.3d 383,
387 n. 2 (5th Cir. 2008); Mimics, Inc. v. Village of Angel
Fire, 394 F.3d 836, 849 (10th Cir. 2005); Jennings v. City of
Stillwater, 383 F.3d 1199, 1211-12 (10th Cir. 2004); Williams
v. Pryor, 240 F.3d 944, 951 (11th Cir. 2001); Shipp v.
McMahon, 234 F.3d 907, 916-17 (5th Cir. 2000), overruled
12 No. 10-3426
on other grounds by McClendon v. City of Columbia, 305
F.3d 314, 329 (5th Cir. 2002) (en banc) (per curiam); Bryan
v. City of Madison, 213 F.3d 267, 276-77 and n. 17 (5th
Cir. 2000). Some of our own cases, however, while ac-
cepting Hilton’s approach, leave open the possibility
that a more liberal approach—one that would require
a showing merely that the defendant had acted without
a reasonable basis—might also be appropriate. See Hanes
v. Zurick, 578 F.3d 491, 494 (7th Cir. 2009); United States
v. Moore, 543 F.3d 891, 898-99 (7th Cir. 2008), and cases
cited there.
Some cases in other circuits deem it an open question
after Olech whether animus or, more broadly, improper
personal motivations are required in a class-of-one case.
See Cordi-Allen v. Conlon, 494 F.3d 245, 250 n. 3 (1st Cir.
2007); Jicarilla Apache Nation v. Rio Arriba County, 440
F.3d 1202, 1210 (10th Cir. 2006); Hayut v. State Uni-
versity of New York, 352 F.3d 733, 754 n. 15 (2d Cir. 2003);
DeMuria v. Hawkes, 328 F.3d 704, 707 n. 2 (2d Cir. 2003);
Giordano v. City of New York, 274 F.3d 740, 743 (2d Cir.
2001). Other cases hold that such motivations aren’t
required: Gerhart v. Lake County, 637 F.3d 1013, 1022 (9th
Cir. 2011); Phillips v. County of Allegheny, 515 F.3d 224,
243 (3d Cir. 2008); Stotter v. University of Texas, 508 F.3d
812, 824 n. 3 (5th Cir. 2007); Scarbrough v. Morgan County
Board of Education, 470 F.3d 250, 261 (6th Cir. 2006);
TriHealth, Inc. v. Board of Commissioners, 430 F.3d 783,
788 (6th Cir. 2005); Boone v. Spurgess, 385 F.3d 923, 932 (6th
Cir. 2004); Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004). And
still others merely intone the formula recited by the
No. 10-3426 13
Supreme Court in Olech: Analytical Diagnostic Labs, Inc.
v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010); Renchenski v.
Williams, 622 F.3d 315, 337-38 (3d Cir. 2010); Grider v.
City of Auburn, 618 F.3d 1240, 1263-64 (11th Cir. 2010);
Association of Cleveland Fire Fighters v. City of Cleveland,
502 F.3d 545, 549 (6th. Cir. 2007); Griffin Industries, Inc. v.
Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007); Barstad v. Murray,
420 F.3d 880, 884 (8th Cir. 2005); Tri-County Paving, Inc.
v. Ashe County, 281 F.3d 430, 439 (4th Cir. 2002); Costello
v. Mitchell Public School Dist. 79, 266 F.3d 916, 921 (8th
Cir. 2001).
Judge Wood has made a commendable effort to harmo-
nize the diverse strains of class-of-one jurisprudence.
The key passage in her dissenting opinion is the follow-
ing. We italicize the words and phrases in the opinion
that persuade us that the effort at harmonization falls
short:
a putative class-of-one complainant faces a much
higher burden to show that the exercise of that
discretion was irrational. This, we believe, is what
our court and others have been driving at ever
since Olech and Engquist in the suggestions that
animus, or malice, or lack of any possible legitimate
state purpose, plays a part in class-of-one cases.
Those motive elements are not always necessary, as
Olech illustrates, and indeed, it is not clear to us
that Judge Posner’s separate opinion even takes
that position. Nor should animus (or something
similar) be seen as an alternative to a showing
of irrationality. Instead, in the cases that do not rest
on the state’s failure to follow a clear standard, the
14 No. 10-3426
plaintiff has the burden of showing in the com-
plaint some plausible reason to think that inten-
tional and irrational discrimination has occurred.
Pleading animus or improper purpose will often be
an effective way to accomplish that goal.
So the police must be “irrational,” and the harm they
cause the plaintiff must be “intentional,” actuated by
“animus,” or by “malice” (which need not mean the
same thing as “animus”), or must “lack . . . any possible
legitimate state purpose” (but how does that differ
from being “irrational,” and in what sense is it a “motive
element”?), and amount to “irrational discrimination.”
Judge Wood and the judges who have joined her
opinion are aware that so loose a standard could invite
a flood of cases, because the opinion imposes a high
burden of proof on plaintiffs (though not on this plain-
tiff) and requires that the complaint itself “show . . . some
plausible reason to think that intentional, irrational
discrimination has occurred.” But an open-ended list
of factors for judges and jurors to mull over, a pile-up
of adjectives, an invitation to consider unnamed fur-
ther possibilities for establishing liability, and on top of
all this a pleading requirement that may go beyond
Iqbal yet is not applied to this case—so ad hoc an
approach leaves the law of class-of-one discrimination
in the confusion in which we found it when we agreed
to hear the case en banc.
We need to simplify and we could do so by holding
that a state actor commits class-of-one discrimination
No. 10-3426 15
only when he intends to discriminate in the sense of
intending to treat a person differently from other persons
for reasons of a personal character, that is, reasons not
grounded in his public duties. Olech was such a case.
The Village was charged with having discriminated
against the Olechs in violation of its own regulation in
order to punish them for having sued it and won. The
discrimination not only had no justification; it had been
motivated by a desire for vengeance, which was no part
of the Village officials’ public duty, as they well knew. In
this case, in contrast, a plaintiff complains about govern-
mental conduct that is unavoidably highly discretionary,
and to a degree almost random, as is commonplace at the
lower rungs of law enforcement. Suppose a police car is
lurking on the shoulder of a highway in a 45 m.p.h. zone,
a car streaks by at 65 m.p.h., and the police do nothing.
Two minutes later a car streaks by at 60 m.p.h. and the
police give that driver a ticket. Can the second driver
complain of a denial of equal protection if the police
cannot come up with a rational explanation for why they
ticketed him even though he wasn’t driving as fast as
the first driver? If so, the courts will be swamped with
class-of-one cases remote from the aims of the equal
protection clause and unmanageable as a matter of
judicial administration. Or suppose that an asylum
officer, after interviewing an applicant for asylum, rec-
ommends that the applicant be turned down, while
another asylum officer, in (as he knows) a rationally
indistinguishable case, recommends that “his” applicant
be granted asylum. Like situations are thus being treated
differently; that is what unequal treatment, often called
by lawyers and judges “irrational,” means. Both asylum
16 No. 10-3426
officers are doing their duty, though the result is an
irrational difference in treatment. Neither is guilty of
discrimination.
We can learn from Hilton’s facts. For seven years Hilton
and his neighbors in an apartment complex had been
locked in a feud that began when neighbors saw him
beating his Rottweiler puppy. He was cited for cruelty
to animals and fined $500. Since that initial contretemps
with his neighbors he had been cited or arrested some
fifteen times on neighbors’ complaints for such trans-
gressions as disorderly conduct, battery, and violating
noise ordinances. His suit charged that the police had
not been evenhanded in arbitrating, as it were, his feud
with his neighbors. He had complained to the police
many times. They had responded to all the complaints
but had acted on only one. That was when he com-
plained that a neighbor’s dog was barking loudly—and
the police cited Hilton for disorderly conduct as well
as the neighbor. The police had, in short, he claimed,
enforced the law one-sidedly. And likewise in the
present case: law enforcement authorities are accused
of having refused to take seriously a complaint of gang
violence in the form of “loud illegal car & motorcycle
mufflers,” and a police lieutenant is alleged to have
told the plaintiff that he would “take no action on
your complaint because you are crazy.”
The challenge is to find amidst the welter of trivial
“irrationalities” in discretionary actions by frontline
public employees acts of discrimination of a character
to warrant classification as denials of equal protection.
No. 10-3426 17
A state trooper notices two cars being driven above
the speed limit. One is a beautiful red convert-
ible—an Aston Martin DBS Volante. The other, which is
not speeding quite so fast, is a Toyota Prius. The trooper
has never seen such a beautiful car as the Aston Martin (it
should be beautiful—the sticker price is $290,861), so he
signals the driver to pull over so that he can get a better
look at the car, and, awed, lets the driver continue on
his way without giving him a ticket. Later the trooper
catches up with the driver of the Prius and, unimpressed,
tickets him. The trooper’s behavior is not admirable, but
it is not unrelated to his public duties; the Prius was
speeding, albeit not so fast as the Aston Martin, and
the trooper was therefore acting in accordance with
his duties in ticketing the Prius’s driver.
Or suppose a state trooper decides to economize on
having to think by ticketing only speeders in blue cars.
He is not vindictive; he has nothing against people
who drive blue cars; he doesn’t want to harm anyone;
he’s not going to issue more tickets; all his victims
are guilty; none is a victim of unjustifiable harm; the
trooper has just decided to rest his brain. His motive
is irresponsible—when drivers get wind of it, those who
don’t drive blue cars will speed more. So should an
enterprising lawyer be encouraged to file a class action
suit on behalf of drivers of blue cars who have been
ticketed by this officer? (It would be a class-of-one
suit even though there was more than one claimant; “class
of one” refers not to the number of plaintiffs but to the
fact that the plaintiff or plaintiffs is not suing as a
member of an identifiable group, such as a race or a
18 No. 10-3426
gender, or for that matter an industry. Engquist v. Oregon
Dep’t of Agriculture, 553 U.S. 591, 601 (2008).) If a driver
complains to the police commissioner about the state
trooper, and the commissioner says he can’t be
bothered with the matter, is the commissioner guilty of
a violation of equal protection because he has exhibited
reckless indifference to his subordinate’s conduct? Or
the municipality that employs the commissioner and
has authorized him to decide such matters?
Random can be rational: a random audit by the
Internal Revenue Service should not be thought “arbi-
trary” in a pejorative sense, though it is arbitrary in the
sense that identically situated taxpayers who are not
audited are being treated differently (ex post, not ex ante)
from those who are. Randomization can be a proper and
indeed indispensable tool of government, given limited
governmental resources, as the dissenting opinion recog-
nizes. (It can also be monstrous, as in decimation—the
practice of killing every tenth soldier in a mutinous unit.)
The examples we have given involve police behavior
that while not vicious, not malicious, is not random,
being instead actuated by personal motives that should
not influence the performance of public duties. Yet it
would be silly to make constitutional cases out of them,
for remember that everyone ticketed in the examples
deserved to be ticketed.
But “silliness” is not an operable standard; and while
the courts generally agree that only egregious class-of-one
cases should be actionable in the name of the Constitu-
tion, egregiousness is not an operable standard either
No. 10-3426 19
but instead is a version of “I know it when I see it.”
Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (con-
curring opinion). The principle de minimis non curat lex is
applicable to constitutional cases, Commodity Futures
Trading Commission v. Schor, 478 U.S. 833, 856 (1986)
(separation of powers); United States v. Jacobsen, 466 U.S.
109, 125 (1984) (Fourth Amendment); Ingraham v. Wright,
430 U.S. 651, 674 (1977) (procedural due process); Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982) (freedom
of speech), and could be used as a limiting principle,
maybe in the speeding-ticket cases, though not in the
present case, in which the plaintiff claims to have
been driven out of town by the refusal of the police
to respond to his complaint.
One is tempted to throw up one’s hands and banish
challenges to police responses to complaints, and to
other police investigatory decisions, from the class-of-one
domain altogether, on the analogy of the Supreme Court’s
decision in Engquist v. Oregon Dep’t of Agriculture, supra.
The specific question in Engquist was whether public
employees should be allowed to bring class-of-one
suits against their employers; the Court held they
could not. The Court went out of its way to discuss
other situations in which low-level officials make discre-
tionary rather than rule-based decisions:
Recognition of the class-of-one theory of equal
protection on the facts in Olech was not so much
a departure from the principle that the Equal
Protection Clause is concerned with arbitrary
government classification, as it was an applica-
20 No. 10-3426
tion of that principle. That case involved the gov-
ernment’s regulation of property. Similarly,
the cases upon which the Court in Olech relied
concerned property assessment and taxation
schemes. We expect such legislative or regulatory
classifications to apply “without respect to per-
sons,” to borrow a phrase from the judicial oath….
What seems to have been significant in Olech
and the cases on which it relied was the existence
of a clear standard against which departures, even
for a single plaintiff, could be readily assessed.
There was no indication in Olech that the zoning
board was exercising discretionary authority
based on subjective, individualized determina-
tions—at least not with regard to easement length,
however typical such determinations may be as
a general zoning matter. Rather, the complaint
alleged that the board consistently required only
a 15-foot easement, but subjected Olech to a 33-
foot easement. This differential treatment raised
a concern of arbitrary classification, and we there-
fore required that the State provide a rational
basis for it….
There are some forms of state action, how-
ever, which by their nature involve discretionary
decisionmaking based on a vast array of subjec-
tive, individualized assessments. In such cases
the rule that people should be “treated alike,
under like circumstances and conditions” is not
violated when one person is treated differently
No. 10-3426 21
from others, because treating like individuals
differently is an accepted consequence of the
discretion granted. In such situations, allowing a
challenge based on the arbitrary singling out of a
particular person would undermine the very
discretion that such state officials are entrusted
to exercise.
Suppose, for example, that a traffic officer is sta-
tioned on a busy highway where people often
drive above the speed limit, and there is no
basis upon which to distinguish them. If the
officer gives only one of those people a ticket, it
may be good English to say that the officer has
created a class of people that did not get
speeding tickets, and a “class of one” that did. But
assuming that it is in the nature of the particular
government activity that not all speeders can
be stopped and ticketed, complaining that one
has been singled out for no reason does not
invoke the fear of improper government classi-
fication. Such a complaint, rather, challenges
the legitimacy of the underlying action itself—the
decision to ticket speeders under such circum-
stances. Of course, an allegation that speeding
tickets are given out on the basis of race or sex
would state an equal protection claim, because
such discriminatory classifications implicate
basic equal protection concerns. But allowing
an equal protection claim on the ground that a
ticket was given to one person and not others,
even if for no discernible or articulable reason,
22 No. 10-3426
would be incompatible with the discretion
inherent in the challenged action. It is no proper
challenge to what in its nature is a subjective,
individualized decision.
553 U.S. at 602-04 (citations omitted).
The quoted passage extends the Court’s analysis
(though not its holding) from public employees super-
visors to the police, who are engaged in “discretionary
decisionmaking based on a vast array of subjective,
individualized assessments,” and who therefore should
not be liable for equal protection violations unless they
base decisions on discriminatory classifications such as
race or sex that “implicate basic equal protection con-
cerns.” Employment decisions, the Court pointed out, “are
quite often subjective and individualized, resting on a
wide array of factors that are difficult to articulate and
quantify . . . . [T]reating seemingly similarly situated indi-
viduals differently in the employment context is par for
the course.” Id. at 604. As it is in policing.
When the Court went on to say that “an allegation of
arbitrary differential treatment could be made in
nearly every instance of an assertedly wrongful employ-
ment action . . . on the theory that other employees were
not treated wrongfully,” that “on Engquist’s view, every
one of these employment decisions by a government
employer would become the basis for an equal protection
complaint,” and that “the practical problem with
allowing class-of-one claims to go forward in this
context is not that it will be too easy for plaintiffs to
prevail, but that governments will be forced to defend
No. 10-3426 23
a multitude of such claims in the first place, and courts
will be obliged to sort through them in a search for
the proverbial needle in a haystack,” id. at 608, it might
have been speaking about this case. Other decisions
make similar points. See, e.g., Kansas Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1216-18 (10th Cir. 2011). Two recent
decisions apply Engquist’s bar to class-of-one suits to
discretionary action by state officials outside the em-
ployment context. Towery v. Brewer, 672 F.3d 650, 660-
61 (9th Cir. 2012) (per curiam); Novotny v. Tripp County,
664 F.3d 1173, 1179 (8th Cir. 2011).
As Professor Powell has said, “It is easy to imagine
reading the Court’s holding in Engquist as a strategic
decision, intended to keep the judiciary out of an area
in which it would be extremely difficult for courts to
vindicate the constitutional norm without undue inter-
ference in the functioning of the political branches. With-
out a ‘clear standard’ to apply to personnel decisions,
courts would find themselves simply second-guessing
the executive or administrative officials who made
the decisions on a discretionary basis in the first place,
thereby ‘undermin[ing] the very discretion that such
state officials are entrusted to exercise.’ The point of
Engquist, on this reading, would not be that government
is constitutionally free to make employment decisions
based on whim or animus toward an individual em-
ployee, but rather that given the difficulty of ascertaining
or even articulating the basis for many such decisions, it
is preferable for the courts to abstain. Such deliberate
judicial underenforcement would leave implementation
of the norm to the political branches, not decree that
24 No. 10-3426
what would be an illegitimate basis for governmental
action in any other circumstance is constitutionally ac-
ceptable in government personnel decisions.” Powell,
supra, 86 Wash. L. Rev. at 264. Engquist notes that
“public employees typically have a variety of protections
from just the sort of personnel actions about which
Engquist complains, but the Equal Protection Clause is
not one of them.” 553 U.S. at 609. Americans have an
even greater variety of protections against police mis-
conduct, many of them of constitutional dignity.
Just months after the Engquist decision, our court, in
United States v. Moore, supra, 543 F.3d at 899-901, held
that just as public employees cannot bring class-of-
one cases against their employer, so also prosecutorial and
sentencing discretion is not to be fettered by class-of-one
suits. (For this reason the plaintiff in this case cannot get
to first base by arguing that the police should have
gone after the bikers who he claims were making his
life unbearable—the decision whether to arrest is a
form of prosecutorial decision.) There is arbitrary
variance among prosecutors in deciding whether to
prosecute a particular criminal, and among judges in
deciding what sentence to impose on a particular
criminal; there are also inconsistent prosecutorial deci-
sions by individual prosecutors within a department
and inconsistent sentences imposed by individual
judges within a judicial system and indeed in the same
court. Legally enforceable limitations on arbitrariness,
such as uniform prosecutorial policy within a jurisdic-
tion and standardized sentencing guidelines based on
penological research, have largely been rejected. There
No. 10-3426 25
would be chaos if persons charged with crime
could base a defense on the ground that a similarly situ-
ated criminal suspect had not been charged, or if a
person convicted of crime could knock out his sentence
by showing that a similarly situated criminal had
received a more lenient sentence, whether from the
same or a different judge. Class-of-one claims cannot
be interposed as defenses to criminal prosecutions, con-
victions, or sentences.
What unites the public-employer, prosecutorial dis-
cretion, and sentencing discretion cases at the deepest
level of policy is not the existence of alternative
remedies or the absence of harmful discrimination. It is
the impediment to efficiency in government that would
be created by allowing class-of-one litigation in areas
in which frontline public officers—whether supervisors
and other management-level personnel in public
agencies, or prosecutors, or trial judges—exercise discre-
tionary authority guided unavoidably by subjective,
individualized factors that are bound to create disparate
treatment. Class-of-one liability in such circumstances
would not eliminate the disparities, because they are
inherent in the exercise of discretion in such activities,
but would foment litigation and disrupt law enforce-
ment; some injustices would be corrected, but at an
unacceptable price.
Police exercise a good deal of discretion, and not only
in deciding which drivers to ticket for speeding. Police
supervisors have to make decisions about the allocation
of police resources across neighborhoods, commercial
26 No. 10-3426
establishments, residences, and particular individuals,
and about whom to investigate on suspicion of criminal
activity, whom to arrest, whom merely to warn. Many
of their decisions are made in emotional settings,
involving angry and frightened people, and after the
fact it is easy to point to mistakes. The police in this
case decided not to take seriously Del Marcelle’s
complaint about being harassed by motorcycle gangs.
They thought him a nutcase. That is a judgment police
officers have constantly to make. It is not a judgment
that the federal courts should second guess in the name
of equal protection. Should a federal judge order the
police to investigate Del Marcelle’s charges? To arrest
bikers whose motorcycles lack mufflers? To assign police
officers to watch Del Marcelle’s house?
The Geinosky case that we cited earlier makes a nice
contrast to this one. The plaintiff received 24 totally
meritless parking tickets (often in circumstances in
which it was physically impossible for the plaintiff to
have committed a parking violation) in quick succes-
sion from police officers who appear to have been in
cahoots with his estranged wife. We said that “absent a
reasonable explanation, and none has even been
suggested yet, the pattern adds up to deliberate and
unjustified official harassment that is actionable under
the Equal Protection Clause.” Geinosky v. City of
Chicago, supra, 675 F.3d at 745. The defendants inten-
tionally subjected the plaintiff to harm that they knew
had no legal justification. Such a claim should survive
the concerns expressed in Engquist.
No. 10-3426 27
But the example must not be generalized to every case
in which the exercise of discretion by frontline public
officers results in arbitrary “classification” (in equal-
protection speak) of persons otherwise similarly situ-
ated. A particular 911 call—say, reporting an auto theft
or a burglary—may receive prompt attention, while
another call reporting the same kind of crime a few
blocks away is ignored. Probably there’s no rational
basis for the difference in treatment. It cannot real-
istically be thought to exemplify “efficient systemic
randomization.” But such differences are an unavoidable
feature of discretionary administration of systems of
government service, such as policing. As the Engquist
decision points out, “it is no proper challenge to what
in its nature is a subjective, individualized decision that
it was subjective and individualized.” 553 U.S. at 604.
The rational-basis test is an ingenious device for uncov-
ering unconstitutional discrimination in legislative classi-
fications. Reluctant to inquire into the personal motiva-
tions of lawmakers, judges ask instead whether an ob-
jective basis can be posited for a statutory classification
challenged as discriminatory. But when “discrimination”
is the norm because the “classification” is not legislative
but instead is made ad hoc by frontline public officers,
“discrimination” can’t by itself be the criterion for viola-
tion of the equal protection clause. More is needed in a
suit challenging discretionary conduct as discriminatory
and it makes sense that the more should relate to the
public officer’s motivations, subjective though they are.
For in such a case the claim depends on proof that the
defendant singled out a private citizen for unfavorable
28 No. 10-3426
treatment, which is different from a difference in treat-
ment that arises incidentally as the inevitable conse-
quence of the conferral of discretion on low-level offi-
cials. Inability to articulate a rationally acceptable reason
for the difference is not a meaningful way to identify
intentional discrimination.
This case is thus on the other side of the line from
Geinosky, where singling out for purposes unrelated to
official duty could readily be inferred. Which is not to
say that proof of a bad motive is alone sufficient to estab-
lish liability in a class-of-one case. The plaintiff must
plead and prove both the absence of a rational basis for
the defendant’s action and some improper personal
motive (which need not be hostility, but could be, for
example, corruption) for the differential treatment. Thus,
as we said earlier, our proposed standard requires the
plaintiff to plead and prove intentional discriminatory
treatment that lacks any justification based on public duties
and that there be some improper personal motive for the
discriminatory treatment. Some discretionary decisions
will fail the rational-basis test, standing alone, but none-
theless should not be actionable because a degree of
arbitrariness is inescapable in discretionary decisions
by frontline government personnel. That is why we
suggest that more must be shown—the personal motive
to which we’ve referred. A bare allegation of bad
motive, however, is not enough. In this case, in contrast
to Geinosky, there is an allegation of arbitrariness, but
not of improper motive. The police ignored the
plaintiff’s complaints of harassment by bikers on
the ground that he was off his rocker. They failed to
No. 10-3426 29
help him, but the complaint does not allege that they
wanted to treat him worse than other citizens because
of some personal motive. Rightly or wrongly they
thought him a paranoid pest obsessed with motorcycle
gangs.
To let the plaintiff plead over would not sort well
with insistence that the class-of-one domain should be
narrowly construed when a suit attacks discretionary
action at street level. The suit was rightly dismissed.
E ASTERBROOK, Chief Judge, concurring in the judgment.
My colleagues debate the role of motive and intent in
class-of-one suits. Judge Posner (for four judges)
and Judge Wood (for five) offer slightly different under-
standings of the role motive or intent should play in
such suits. I think that it has no role at all.
Village of Willowbrook v. Olech, 528 U.S. 562 (2000), holds
that the rational-basis test applies to class-of-one
claims. That test asks whether a rational basis can be
conceived, not whether one is established on the record
or occurred to a defendant. See, e.g., FCC v. Beach Commu-
nications, Inc., 508 U.S. 307, 313 (1993); Railroad Retirement
Board v. Fritz, 449 U.S. 166 (1980). The Justices who dis-
sented in Engquist v. Oregon Department of Agriculture,
30 No. 10-3426
553 U.S. 591 (2008), contending that a class-of-one
claim should have been allowed there, recognized this,
writing: “But for this disclaimer [by defendants, who
denied having any reason at all], the district court could
have dismissed the claim if it discerned ‘any reasonably
conceivable state of facts that could provide a rational
basis for the [State’s actions],’ even one not put forth by
the State.” 553 U.S. at 612 n. 2 (citation omitted; second
bracketed phrase in original).
It is easy to conceive two rational bases for defendants’
treatment of Del Marcelle. First, they had limited enforce-
ment resources and could not fully investigate all com-
plaints. Second, defendants may have concluded that
Del Marcelle was imagining or exaggerating the prob-
lems he reported. Under the rational-basis test, either
possibility requires judgment in defendants’ favor. There
is no need for inquiry into the defendants’ state of
mind. The upshot of today’s decision, however, is
that something other than the normal rational-basis test
applies to class-of-one claims applies in the seventh
circuit. That is the very conclusion by this court that
led to the grant of certiorari in Olech. If Justices thought
they had disapproved our local rational-basis-plus-
intent approach, that message has not been received.
I do not deny that intent can matter to equal-protec-
tion analysis. Rules based on suspect classes such as race
are subject to strict scrutiny. State and local govern-
ments may try to disguise their criteria of decision by
adopting rules that have the appearance but not the
reality of neutrality. The Supreme Court has held that
No. 10-3426 31
the adverse impact of neutral rules does not change the
standard from rational basis to strict scrutiny—but
that proof of intent to discriminate on a ground such as
race or sex can do so. See, e.g., Personnel Administrator
of Massachusetts v. Feeney, 442 U.S. 256 (1979); Washington
v. Davis, 426 U.S. 229 (1976). If Del Marcelle were
arguing that defendants held his race, sex, or religion
against him, and were seeking heightened scrutiny,
intent would matter. He does not contend, however,
that defendants engaged in class-based discrimination;
that’s why this is a class-of-one case. The only proper
use of intent in a class-of-one case is to show that dis-
crimination exists—in other words, to distinguish
between disparate treatment and disparate impact. Yet
defendants do not say that this is a disparate-impact
case (perhaps because they tried but failed to arrest or
ticket the bikers) rather than a disparate-treatment
one. That makes motive and intent irrelevant to this
litigation.
What’s more, I do not think that the class-of-one
theory itself has any role to play. No public employee
attacked or injured Del Marcelle. His losses stem from
private aggression by the bikers, which public officials
failed to prevent. Inability of the police to show a
rational basis for each decision about who is arrested or
ticketed (compared with persons not arrested or ticketed)
should not expose them to damages.
Del Marcelle is not entitled to an order requiring
arrest or prosecution of the bikers, or to damages
because of public officials’ decision not to do so. Castle
32 No. 10-3426
Rock v. Gonzales, 545 U.S. 748 (2005); DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189 (1989);
Leeke v. Timmerman, 454 U.S. 83 (1981); Linda R.S. v. Richard
D., 410 U.S. 614 (1973). The Constitution does not create
a general right to protection from private wrongdoers.
The original meaning of the equal protection clause is
that, if the police and prosecutors protect white
citizens, they must protect black citizens too, but Del
Marcelle does not allege racial discrimination or any
other kind of class-based discrimination. His contention
is that the police failed to protect him, personally,
from private aggression that targeted him, personally.
DeShaney shows that this is not a good constitutional claim.
This leaves an argument that the police violated the
equal protection clause, even though not the due process
clause, by issuing citations to Del Marcelle but not the
bullies. That is a bad approach. It is inconceivable that
the plaintiff could have prevailed in either Castle
Rock or DeShaney by replacing a due-process theory with
a class-of-one equal-protection theory; the claims ad-
vanced in those cases functionally were class-of-one
claims, yet the plaintiffs lost. It was a premise in both
Castle Rock and DeShaney that state officials had
protected some persons but not the plaintiffs, who con-
tended that they should have received the same benefit
yet were denied it for no reason (i.e., without a rational
basis). That’s the same sort of claim Del Marcelle
makes. He loses for the same reasons Gonzales and
DeShaney lost.
Discrimination against members of a suspect class
is actionable notwithstanding Castle Rock and DeShaney,
No. 10-3426 33
but class-of-one distinctions are not. As for non-prosecu-
tion of the predators, the Court wrote in Linda R.S. that
“a private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.” 410 U.S.
at 619. That is a limit on standing; Linda R.S. holds
that there is no justiciable controversy, which knocks
out all substantive legal theories. Del Marcelle thus
needs to show how he was injured by what the
defendants did to him, rather than by what they didn’t
do to other people or what they didn’t do for him.
Del Marcelle does not tell us, however, how the cita-
tions injured him. Any injury was meted out by the
bikers, not by the police, which makes it hard to see how
a claim centered on the citations has any prospect. If
the citations were dismissed without trial or penalty,
Del Marcelle is uninjured when compared with a world
in which no one was prosecuted, and thus no discrim-
ination could have occurred. If the citations were adjudi-
cated, and Del Marcelle prevailed, again he is uninjured.
If they were adjudicated, and he lost, then preclusion
blocks this civil suit. How could Del Marcelle get
damages on account of a potential defense that wasn’t
raised, let alone a defense that was raised and rejected?
Put lack of injury, and a potential defense of preclusion,
to the side. There is no constitutional problem. Persons
accused of wrongdoing can’t make class-of-one defenses
to criminal charges. See, e.g., United States v. Armstrong,
517 U.S. 456, 464 (1996); United States v. Moore, 543 F.3d
891, 901 (7th Cir. 2008). Armstrong holds that a defense
of selective prosecution is limited to racial discrimina-
34 No. 10-3426
tion or other class-wide inequality, which must be
shown by strong evidence before courts can allow dis-
covery. So if the citations Del Marcelle received
were followed by prosecution, he could not defend by
contending that he was being treated worse than
the bikers. That’s not class-based discrimination.
If “I was treated worse than the bikers” is not a defense
on the merits, how can it be a basis of damages against
officers who issue citations that get proceedings under
way? No decision of which I am aware holds that it
violates the Constitution to initiate a criminal prosecution
(or a civil-penalty proceeding) that can lead to a valid
conviction, whether or not the same officers failed to
arrest or ticket third parties. Quite the contrary, many
cases hold that police cannot be ordered to pay
damages even when the defendant prevails in a prosecu-
tion (or none is filed). For example, Hartman v. Moore,
547 U.S. 250 (2006), holds that probable cause for an
arrest knocks out a claim that the arrest violated the
person’s rights under the first amendment. Probable
cause is objective; the officers’ motives, beliefs, and so
on, don’t matter and cannot create liability. Ashcroft v. al-
Kidd, 131 S. Ct. 2074, 2080-83 (2011). That’s why probable
cause blocks contentions that the officers had ulterior
goals (such as favoring the bikers over Del Marcelle).
Likewise probable cause prevents an award of damages
under the fourth amendment for wrongful arrest.
Indeed, Hunter v. Bryant, 502 U.S. 224 (1991), holds
that arresting officers can’t be liable if a reasonable
person could have concluded that probable cause
exists, even if it doesn’t.
No. 10-3426 35
Suppose the officers had placed Del Marcelle
under arrest instead of just issuing citations. There is
probable cause or there isn’t. If there is probable cause,
the officers can’t be held liable. If there is not probable
cause, and an objectively reasonable officer would not
have believed that probable cause exists, then the officer
is liable under the fourth amendment. Graham v. Connor,
490 U.S. 386 (1989), completes the picture by holding
that the fourth amendment is the only source of rules
governing the validity of arrests. Graham concludes, in
particular, that an arrested person can’t present a claim
under the due process clause. That must be true for a
claim under the equal protection clause too, just as it is
true (see Hartman) for a claim under the first amend-
ment. Police need not arrest everyone who committed
the same offense; selectivity is normal—and is proper,
unless based on a forbidden classification such as race.
Probable cause for arrest is a complete defense to an
argument that other similarly situated persons were not
arrested.
Apparently Del Marcelle was not arrested; the police
just wrote a few tickets. How can the police be more
exposed to awards of damages for writing tickets than
for making full custodial arrests? That would create an
incentive for needless arrests in order to create a shield
from liability. Often people contend that police should
be compelled to write tickets without arresting. Atwater
v. Lago Vista, 532 U.S. 318 (2001), holds that the Constitu-
tion allows police to make custodial arrests for offenses
punishable only by fines. That the defendants left
Del Marcelle at liberty cannot be their undoing.
36 No. 10-3426
Class-of-one liability for the toleration of private
violence is blocked by Castle Rock and its predecessors;
liability for arrests based on probable cause is blocked
by Graham no matter what legal theory the plaintiff in-
vokes; liability for criminal (and civil) prosecutions is
blocked by Armstrong. Those decisions address the
merits and cannot be circumvented by observing that
police officers lack prosecutorial immunity. Citations,
whether issued by an officer on the beat or a lawyer in
an office, just get a legal process under way; they
do not themselves cause injury and should not be a
basis of liability no matter why someone writes them
(or fails to write others). State law can create liability in
tort (think malicious prosecution or abuse of process),
but the Constitution is not a fount of national tort law,
as the decisions I’ve mentioned show.
Any doubt on this score is stilled by Engquist. Although
that case’s holding is limited to public employees, its
rationale is not.
Recognition of the class-of-one theory of equal
protection on the facts in Olech was not so much
a departure from the principle that the Equal
Protection Clause is concerned with arbitrary
government classification, as it was an applica-
tion of that principle. That case involved the gov-
ernment’s regulation of property. Similarly,
the cases upon which the Court in Olech relied
concerned property assessment and taxation
schemes. We expect such legislative or regulatory
classifications to apply “without respect to per-
No. 10-3426 37
sons,” to borrow a phrase from the judicial oath.
See 28 U.S.C. § 453. As we explained long ago, the
Fourteenth Amendment “requires that all persons
subjected to . . . legislation shall be treated alike,
under like circumstances and conditions, both in
the privileges conferred and in the liabilities im-
posed.” Hayes v. Missouri, 120 U.S. 68, 71-72 (1887).
When those who appear similarly situated are
nevertheless treated differently, the Equal Protec-
tion Clause requires at least a rational reason for
the difference, to assure that all persons subject
to legislation or regulation are indeed being
“treated alike, under like circumstances and con-
ditions.” Thus, when it appears that an indi-
vidual is being singled out by the government, the
specter of arbitrary classification is fairly raised,
and the Equal Protection Clause requires a “ratio-
nal basis for the difference in treatment.” Olech,
528 U.S., at 564.
What seems to have been significant in Olech
and the cases on which it relied was the existence
of a clear standard against which departures, even
for a single plaintiff, could be readily assessed.
There was no indication in Olech that the zoning
board was exercising discretionary authority
based on subjective, individualized determina-
tions—at least not with regard to easement length,
however typical such determinations may be as
a general zoning matter. Rather, the complaint
alleged that the board consistently required only
a 15-foot easement, but subjected Olech to a 33-
38 No. 10-3426
foot easement. This differential treatment raised
a concern of arbitrary classification, and we there-
fore required that the State provide a rational
basis for it. . . .
There are some forms of state action, how-
ever, which by their nature involve discretionary
decisionmaking based on a vast array of subjec-
tive, individualized assessments. In such cases
the rule that people should be “treated alike,
under like circumstances and conditions” is not
violated when one person is treated differently
from others, because treating like individuals
differently is an accepted consequence of the
discretion granted. In such situations, allowing a
challenge based on the arbitrary singling out of a
particular person would undermine the very
discretion that such state officials are entrusted
to exercise.
Suppose, for example, that a traffic officer is sta-
tioned on a busy highway where people often
drive above the speed limit, and there is no
basis upon which to distinguish them. If the
officer gives only one of those people a ticket, it
may be good English to say that the officer has
created a class of people that did not get
speeding tickets, and a “class of one” that did. But
assuming that it is in the nature of the particular
government activity that not all speeders can
be stopped and ticketed, complaining that one
has been singled out for no reason does not
No. 10-3426 39
invoke the fear of improper government classi-
fication. Such a complaint, rather, challenges
the legitimacy of the underlying action itself—the
decision to ticket speeders under such circum-
stances. Of course, an allegation that speeding
tickets are given out on the basis of race or sex
would state an equal protection claim, because
such discriminatory classifications implicate
basic equal protection concerns. But allowing
an equal protection claim on the ground that a
ticket was given to one person and not others,
even if for no discernible or articulable reason,
would be incompatible with the discretion
inherent in the challenged action. It is no proper
challenge to what in its nature is a subjective,
individualized decision that it was subjective
and individualized.
This principle applies most clearly in the employ-
ment context, for employment decisions are
quite often subjective and individualized, resting
on a wide array of factors that are difficult to
articulate and quantify. As Engquist herself points
out, “[u]nlike the zoning official, the public em-
ployer often must take into account the individual
personalities and interpersonal relationships of
employees in the workplace. The close relationship
between the employer and employee, and the
varied needs and interests involved in the em-
ployment context, mean that considerations such
as concerns over personality conflicts that would
be unreasonable as grounds for ‘arm’s-length’
40 No. 10-3426
government decisions (e.g., zoning, licensing) may
well justify different treatment of a public em-
ployee.” Unlike the context of arm’s-length reg-
ulation, such as in Olech, treating seemingly simi-
larly situated individuals differently in the em-
ployment context is par for the course.
Thus, the class-of-one theory of equal protec-
tion—which presupposes that like individuals
should be treated alike, and that to treat them
differently is to classify them in a way that must
survive at least rationality review—is simply a
poor fit in the public employment context. To treat
employees differently is not to classify them in a
way that raises equal protection concerns. Rather,
it is simply to exercise the broad discretion that
typically characterizes the employer-employee
relationship. A challenge that one has been treated
individually in this context, instead of like every-
one else, is a challenge to the underlying nature of
the government action.
553 U.S. at 602-05 (internal citations omitted without
indication). This passage tells us that public employ-
ment is just an example of the situations in which the Con-
stitution tolerates selective action, without requiring
public officials to explain to a court’s satisfaction why
they exercised discretion in favor of one person and
against another. Issuing citations is another example. And
although there is a rational basis for letting most speeders
go, Engquist did not rely on that proposition. Nor did it
say that difficulty of proof explains why unequal enforce-
No. 10-3426 41
ment is allowed. The language I have quoted says that
issuing particular law-enforcement citations is outside
the scope of class-of-one analysis because law enforce-
ment is permissibly discretionary.
Engquist shows that discretionary decisions in law
enforcement are not amenable to class-of-one analysis.
See Flowers v. Minneapolis, 558 F.3d 794, 799-800 (8th
Cir. 2009) (“a police officer’s investigative decisions . . .
may not be attacked in a class-of-one equal protection
claim”). A contrary conclusion would effectively
constitutionalize the Administrative Procedure Act and
open all public officials’ decisions to judicial review to
determine whether they are arbitrary or capricious. (A
capricious decision must lack a rational basis.) Indeed,
in the name of the equal protection clause Del Marcelle
asks us to go beyond the APA by ruling that (a) the
remedy is damages from the decisionmaker’s pocket, not
just an order setting aside the arbitrary or capricious
decision, and (b) the initiation of a process, and not
just the outcome, is subject to judicial review.
One of the APA’s basic rules is that review is limited
to the agency’s final decision. Issuing a complaint is
not reviewable even though it portends a multi-year
adjudicative process that may cost millions to re-
solve. FTC v. Standard Oil Co., 449 U.S. 232 (1980). See
also Sackett v. EPA, 132 S. Ct. 1367, 1371-72 (2012) (dis-
cussing what makes an act “final” under the APA). If
the target of the complaint prevails before the agency,
there will never be judicial review, and the private
party must bear its own attorneys’ fees under the
42 No. 10-3426
American Rule. An argument that similarly situated
persons have not been subjected to this costly process
does not authorize judicial review of the com-
plaint—indeed, does not authorize a court to set aside
the final decision either. FTC v. Universal-Rundle Corp.,
387 U.S. 244 (1967); Moog Industries, Inc. v. FTC, 355 U.S.
411 (1958). Thus there is no class-of-one doctrine in
federal administrative law, any more than in criminal
law. But under Del Marcelle’s approach there is a con-
stitutional class-of-one doctrine, enforced by awards
of damages, regulating the decision by police officers
to issue a ticket initiating a legal inquiry—and
perhaps administrative prosecutors at the FTC to
issue a complaint. If judges are going to apply the
APA to state and municipal governments through the
Constitution, which we shouldn’t, we certainly should
not go beyond the APA by creating personal liability
for issuing a complaint or citation to one party but not
another said to be similarly situated.
Del Marcelle cannot prevail whether his complaint
concerns failure to prosecute the bikers or the tickets
he received, and whether or not a class-of-one theory
is available. I therefore concur in the decision affirming
the judgment of the district court.
No. 10-3426 43
W OOD , Circuit Judge, with whom FLAUM, R OVNER,
W ILLIAMS, and H AMILTON, Circuit Judges, join, dissenting.
Ever since the Supreme Court confirmed in Village
of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam),
that the Equal Protection Clause of the Constitution
extends to “class of one” cases, courts have been grap-
pling with what a plaintiff must plead, and ultimately
show, to prevail in such an action. The full court
decided to hear this case en banc in the hopes that we
might bring some clarity to the matter. The case before
us was brought under 42 U.S.C. § 1983 pro se by Lewis
Del Marcelle (and originally his wife, but she is no
longer involved) against several state defendants for
alleged discrimination. The district court dismissed
Del Marcelle’s complaint for failure to state a claim on
which relief may be granted. Five judges have con-
cluded that Del Marcelle’s complaint not only fails to
meet the standard for pleading a class-of-one case, but
that it cannot be salvaged. Five other judges, myself
included, believe that his current complaint is legally
insufficient, but that he should be given a chance to
replead under the correct standard. Beyond that bottom-
line disagreement, there is a more fundamental dif-
ference of opinion about the proper standard in this kind
of case. A plurality consisting of five members of the
court agrees with the standard set forth in this opinion;
four members have adopted the standard described in
Judge Posner’s concurrence; and Chief Judge Easterbrook
has offered yet another approach. Because we are equally
divided, none of these opinions has precedential signifi-
cance: we must affirm the judgment of the district court
44 No. 10-3426
by an equally divided court. Five judges of this court
dissent from that result, for the reasons set forth in
this opinion.
I
We accept the account of the facts set forth in Del
Marcelle’s complaint, as helpfully summarized by the
outstanding counsel the court recruited to assist him
before the en banc court. (Naturally we do not vouch for
any of these facts; we simply follow the accepted rules
for evaluating complaints under Federal Rule of Civil
Procedure 12(b)(6).) For over 20 years, the Del Marcelles
have lived in Glenmore, Wisconsin, a town located in
rural southeastern Brown County. (Packers fans will
know that Lambeau Field is located in Brown County’s
seat, the City of Green Bay.) As part of the purchase
of their home, they acquired rights to a liquor license
associated with the Glenmore Opera House.
This case had its origin in a dispute that arose
between Del Marcelle and members of a local motorcycle
gang and their associates; the latter included various
law enforcement personnel. The dispute escalated into
active harassment and threats against the Del Marcelles
from the gang members. Explosive devices were
placed next to his home; his car was damaged; he
suffered property theft and vandalism; and he received
threatening phone calls. His wife was so distressed by
this campaign that she attempted suicide. The gang also
annoyed Del Marcelle with very loud muffler sounds
around the clock; members would constantly ride their
motorcycles past his house or idle in front of it.
No. 10-3426 45
One such gang member was Mark Taggart, who made
loud sounds with his motorcycle right outside Del
Marcelle’s home, twice disrupted a wedding ceremony
that the Del Marcelles were attending; he also made
threatening phone calls to the home. Gang leader Karl
Guns, along with others, tried to run over Del Marcelle
with their cars. Guns is a relative of Officer Guns of the
Brown County Sheriff’s Department; Taggart is a friend
or associate of other law-enforcement officials, and has
been an officer himself.
The Brown County Sheriff’s Department has law-enforce-
ment responsibilities in Glenmore. Faced with this unre-
lenting harassment, Del Marcelle turned to the Sheriff and
other governmental entities for help, filing numerous
complaints. Not only were his pleas ignored, but based
on competing complaints from others, the Department
issued citations to Del Marcelle himself for actions he
had taken in response to his mistreatment. In the end,
the Del Marcelles tired of fighting. They sold their home
and moved to the Village of Ashwaubenon, which is
also in Brown County. But the motorcycle gangs fol-
lowed them there and continued their harassment.
By 2009, Taggart was living on the same street as Del
Marcelle. Each of them complained about the other to
the Ashwaubenon Police. Del Marcelle received a cita-
tion based on Taggart’s complaints, but the police
would not accept Del Marcelle’s complaint; they told
him that they would not help him because he was crazy.
On September 13, 2010, Lewis and Ellen Del Marcelle
(acting pro se) filed a complaint in federal court under
42 U.S.C. § 1983 against Brown County, County Executive
46 No. 10-3426
Tom Hintz, the Village of Ashwaubenon, Village President
Mike Aubinger, and one “unknown John Doe.” Brown
County and Hintz responded on September 28 with a
motion to dismiss for lack of subject-matter jurisdiction
and for failure to state a claim. Del Marcelle parried
that motion with three exhibits filed on October 5,
through which he hoped to “qualify” his complaint. A
week later, the district court dismissed the complaint
against all defendants, even though Ashwaubenon
and Aubinger had answered without filing a Rule 12
motion. The order of dismissal gave Del Marcelle no
chance to replead. Del Marcelle filed a timely notice of
appeal. On April 12, 2011, this court ordered that the
appeal would be taken up by the full court. The court
recruited Thomas L. Shriner, Jr., of the law firm of Foley &
Lardner LLP, to represent Mr. Del Marcelle. We join
our colleagues in thanking Mr. Shriner, his colleague
Kellen C. Kasper, and the firm for their fine work.
II
At the time the order for en banc hearing was issued,
the court directed the parties to supplement the briefs
that had been filed by addressing the following issues:
(1) In cases of alleged “class-of-one” discrimina-
tion by front-line public officers, such as police
officers, who exercise a broad discretionary
authority that frequently involves subjective,
ad hoc judgments, as distinct from class-of-one
discrimination effectuated by legislative or
regulatory classifications, what should be
the governing legal standard?
No. 10-3426 47
(2) Specifically, what if any role should proof
of “animus” play in such cases? Or should
the rational-basis standard, supplemented
where appropriate by the rules forbidding
intentional discrimination on the basis of
a protected characteristic, be the governing
standard as it is when legislative or regulatory
classifications, as distinct from subjective dis-
cretionary decisions, are challenged as class-of-
one discrimination?
(3) What bearing on questions 1 and 2 have Village
of Willowbrook v. Olech, 528 U.S. 562 (2000) (per
curiam), and Engquist v. Oregon Dep’t of Agri-
culture, 553 U.S. 591 (2008)? After Engquist, is
even a rational basis required for subjective,
discretionary decisions? Would the use of a
system of random or arbitrary enforce-
ment decisions (such as a police officer’s
choice about which speeders to ticket) satisfy
rational-basis review, or is rational-basis re-
view unnecessary for such decisions?
The discussion that follows draws on each of these
points as needed.
III
A
Before turning to the heart of this case—the standard
that governs class-of-one cases—we address a prelim-
inary, but fundamental question that is raised in Chief
48 No. 10-3426
Judge Easterbrook’s separate opinion: whether Del
Marcelle has standing to pursue this claim at all. This
depends on how one understands Del Marcelle’s com-
plaint. Read one way, it could be seen as an assertion
of a right to have the law-enforcement authorities in
Brown County take action on his behalf. As we explain,
the Supreme Court has squarely rejected this theory.
But read another way, Del Marcelle is not asserting a
right to any particular level of law enforcement or any
particular response to his complaints: he is instead
saying only that he is entitled to equal treatment,
whether that be bad, good, or something in between.
The latter theory is a valid one. A person who has
been adversely affected by discrimination has suffered
injury-in-fact; the differential treatment is the cause of
his injury; and that injury can be redressed either by
damages or injunctive relief. No more is required to
support standing. See Camreta v. Greene, 131 S. Ct. 2020,
2028 (2011) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)).
It is quite possible that this limitation will significantly
constrict cases like Del Marcelle’s. But a review of two
Supreme Court decisions—Town of Castle Rock v. Gonzales,
545 U.S. 748 (2005), and Linda R.S. v. Richard D., 410
U.S. 614 (1973)—leaves no doubt that a plaintiff has
no right to insist that the law-enforcement officers in his
area arrest his tormenters. Gonzales involved particularly
heart-wrenching facts. Respondent Jessica Gonzales had
obtained a restraining order against her husband, re-
stricting the times during which he was entitled to visit
the couple’s three daughters. Despite the order, he
No. 10-3426 49
stopped by Gonzales’s house and took the three girls
without permission. To make a long, sad, story short,
after Gonzales frantically tried in vain to persuade the
police to enforce the court order, her husband showed up
at the police station in the middle of the night, started
firing at the police, and was killed. The bodies of the
three girls were then found in his car.
Gonzales sued the town of Castle Rock on the theory
that it had violated the Due Process Clause of the Four-
teenth Amendment by failing to respond properly to her
repeated efforts to induce it to enforce the restraining
order. The Supreme Court found that she had failed to
state a claim. Even though the order contained language
that made it appear to be mandatory, the Court noted
that this language could not overcome “[t]he deep-rooted
nature of law-enforcement discretion.” 545 U.S. at 761.
And even if Colorado law somehow made enforcement
of the law mandatory, the Court added, “that would not
necessarily mean that state law gave respondent an en-
titlement to enforcement of the mandate.” Id. at 764-65.
Finally, even if such an entitlement were found, the
Court expressed doubt that an individual entitlement
to the enforcement of a restraining order would amount
to a “property” interest for purposes of the Due Process
Clause. It concluded with broad language: “the benefit
that a third party may receive from having someone
else arrested for a crime generally does not trigger
protections under the Due Process Clause, neither in its
procedural nor in its ‘substantive’ manifestations.” Id. at
768, referring to DeShaney v. Winnebago C’nty Dep’t of
50 No. 10-3426
Soc. Servs., 489 U.S. 189 (1989), and Parratt v. Taylor, 451
U.S. 527, 544 (1981).
Linda R.S. also involved a family-law matter—the
more conventional problem of a parent who fails to
support an illegitimate child. The Texas statute at issue
imposed a support duty only on parents of legitimate
children. In her lawsuit against the child’s father, the
mother complained that the district attorney was
refusing to enforce a duty of support solely based on
this statute, which she asserted was unconstitutional.
The Supreme Court looked carefully at the relief the
mother was seeking and concluded that she had no
standing to pursue it. As it said, “in the unique context
of a challenge to a criminal statute,” 410 U.S. at 617,
there was not enough to justify judicial intervention,
even though the Court recognized the practical injury
the mother had suffered. But she could not trace her
injury to the nonenforcement of the Texas support stat-
ute. If she were granted relief, the only thing that would
happen would be the jailing of the father; there
was no guarantee that support payments would be forth-
coming in the future. More generally, the Court held
that its “prior decisions consistently hold that a citizen
lacks standing to contest the policies of the prosecuting
authority when he himself is neither prosecuted nor
threatened with prosecution.” Id. at 619.
Gonzales squarely forecloses any due process theory
that might be lurking in Del Marcelle’s complaint. He
may have believed that the Brown County Sheriff’s De-
partment, or the police in Glenmore or Ashwaubenon,
No. 10-3426 51
were violating his due process rights when they did
not respond to his complaints about the motorcycle
gangs, but he has no legally enforceable right to have
the police come and make any particular arrests. And
Linda R.S. does the same for any claim Del Marcelle
might raise to force the police or the prosecutors to
pursue the gangs.
But plaintiffs are not required to plead legal theories,
even in the new world of pleading that is developing in
the wake of the Supreme Court’s decisions in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009). Instead, the complaint must
simply “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” 556 U.S. at ___, 129 S. Ct. at 1949. The fact that a
complaint does not state a claim under the Due Process
Clause, or that a plaintiff would not have standing to
seek the criminal prosecution of another, does not neces-
sarily preclude a valid assertion of an equal protection
violation. (It is worth noting, however, that Del Marcelle
invoked the Equal Protection Clause several times in
his pro se submissions.)
The distinction between a due process theory and an
equal protection claim was brought out in this court’s
opinion in Hilton v. City of Wheeling, 209 F.3d 1005 (7th
Cir. 2000), which noted that the right to petition gov-
ernment, made applicable to the states by the Fourteenth
Amendment’s Due Process Clause, does not carry with
it any right to police assistance or other government
services. But, the opinion continued:
52 No. 10-3426
A complaint of unequal police protection in viola-
tion of the equal protection clause is less easily
disposed of. On the one hand, the clause, con-
cerned as it is with equal treatment rather than
with establishing entitlements to some minimum
of government services, does not entitle a person
to adequate, or indeed to any, police protection.
On the other hand, selective withdrawal of police
protection, as when the Southern states during
the Reconstruction era refused to give police
protection to their black citizens, is the proto-
typical denial of equal protection.
Id. at 1007.
Other examples of sound equal protection claims that
exist even where there would be no underlying
due process right come readily to mind. For example,
although there is no constitutional requirement that a
state provide a system of appellate review, if the state
chooses to do so, it cannot discriminate against indigent
defendants. Griffin v. Illinois, 351 U.S. 12, 18 (1956) (ad-
dressing transcripts for indigent defendants); see also
Douglas v. California, 372 U.S. 353, 357-58 (1963) (holding
that states must provide appellate counsel for indigent
defendants). Examples of this principle in non-criminal
cases are also easy to find. Even though a student has
no due process right to be admitted to a state university,
she is entitled to complain about state university admis-
sions systems that allegedly discriminate on the basis of
race. Gratz v. Bollinger, 539 U.S. 244 (2003); see also Fisher
v. University of Texas at Austin, No. 11-345, cert. granted,
No. 10-3426 53
Feb. 21, 2012. And even though a citizen has no due
process right to any particular kind of tax system, he
is entitled to complain about discrimination in the ad-
ministration of a tax system. See Hillsborough v.
Cromwell, 326 U.S. 620, 623 (1946) (“The equal protection
clause . . . protects the individual from state action
which selects him out for discriminatory treatment by
subjecting him to taxes not imposed on others of the
same class.”); see also Armour v. Indianapolis, No. 11-161,
argued Feb. 29, 2012 (presenting the question whether
the Equal Protection Clause precludes a local taxing
authority from refusing to refund payments made by
those who have paid their assessments in full, while
forgiving the obligations of identically situated tax-
payers who choose to pay over a multi-year installment
plan).
Importantly, the equal protection claim that Del
Marcelle is trying to raise is different from a claim that
takes issue with an arrest or a citation. If all that Del
Marcelle were arguing was that police should not have
cited him because he had done nothing wrong (and in
fact, it was the bikers who were the real offenders), that
would be akin to challenging the citations themselves, or
perhaps it would provide support for a state-law claim
of selective prosecution. The citations themselves, how-
ever, are not necessary to Del Marcelle’s equal protec-
tion claim. The point is that the police are treating
him differently, in a way that injures him. Whether
that differential treatment takes the form of baseless
citations, or malicious arrests, or any other adverse
action, makes no difference.
54 No. 10-3426
The question before the court is thus whether Del
Marcelle’s complaint (or a possible amended complaint)
might be read to state a class-of-one claim under the
Equal Protection Clause. It is useful to begin by locating
class-of-one cases within the broader context of equal
protection jurisprudence. From there, we take a closer
look at the substantive requirements for these cases, and
finally we consider what is required to plead such a case.
B
The familiar language of the Equal Protection Clause
is as good a starting point as any. It says “nor [shall any
State] deny to any person within its jurisdiction the
equal protection of the laws.” U.S. C ONST. AMEND. XIV,
§ 1. The Supreme Court has repeatedly confirmed that the
Clause “protect[s] persons, not groups.” Engquist, 553
U.S. at 597 (quoting Adarand Constructors, Inc. v. Peña,
515 U.S. 200, 227 (1995)); see also Shelley v. Kraemer, 334 U.S.
1, 22 (1948). Although the concept of the Clause requires
comparison between the injured party and others, the
Court has also said that “the number of individuals in
a class is immaterial for equal protection analysis.”
Olech, 528 U.S. at 562 n.*. As the Court succinctly put it
in City of Cleburne v. Cleburne Living Center, Inc., the Equal
Protection Clause “is essentially a direction that all
persons similarly situated should be treated alike.” 473
U.S. 432, 439 (1985). Straightforward as this may sound,
however, experience shows that a great deal lurks
below the surface. The questions of who bears the
burden of demonstrating that a person is not receiving
No. 10-3426 55
the “equal protection of the laws” to which the Constitu-
tion entitles her, and what it takes to meet that burden,
are more complex.
The Cleburne Court summarized the answers to these
questions in a way that is helpful:
The general rule is that legislation is presumed
to be valid and will be sustained if the classifica-
tion drawn by the statute is rationally related to a
legitimate state interest. When social or economic
legislation is at issue, the Equal Protection Clause
allows the States wide latitude, and the Constitu-
tion presumes that even improvident decisions
will eventually be rectified by the democratic
processes.
The general rule gives way, however, when a
statute classifies by race, alienage, or national
origin.
473 U.S. at 440 (internal citations omitted). Although
this passage speaks of legislation, Engquist confirmed
that the Clause’s protections “apply to administrative
as well as legislative acts.” 553 U.S. at 597.
A moment’s thought shows that a true class-of-one
case (that is, one that does not implicate fundamental
rights) falls under the “general rule” that the Court has
articulated—in other words, the allegedly unequal treat-
ment of the “one” must be upheld as long as it is
rationally related to a legitimate state interest. As the
Supreme Court has said, “[u]nless a classification
trammels fundamental personal rights or is drawn
56 No. 10-3426
upon inherently suspect distinctions such as race,
religion, or alienage, our decisions presume the constitu-
tionality of the statutory discriminations and require
only that the classification challenged be rationally
related to a legitimate state interest.” City of New Orleans
v. Dukes, 427 U.S. 297, 303 (1976). If a classification is
based on a forbidden characteristic, then by definition
it would not be a class-of-one case. Under rational-
basis review, the Court continued, “it is only the
invidious discrimination, the wholly arbitrary act, which
cannot stand consistently with the Fourteenth Amend-
ment.” Id. at 303-04. It is the plaintiff who bears the
heavy burden of showing such a complete lack of ra-
tionality in the challenged state action.
The Supreme Court’s two recent class-of-one cases
confirm in our view that this is the standard faced by
the Del Marcelles of the world. In Olech, the Court
recalled that it had “recognized successful equal protec-
tion claims brought by a ‘class of one,’ where 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.” 528
U.S. at 564. The Court specifically declined to reach the
question whether subjective ill will is also required in
these cases. Id. at 565. Engquist reaffirmed Olech, quoting
with approval the language to which we have just re-
ferred. 553 U.S. at 601. Stressing the importance of the
capacity in which a state acts, however, Engquist held
that when the state acts as an employer, the class-of-one
theory is unavailable. In so holding, it relied on a long
line of cases that have recognized in other constitutional
No. 10-3426 57
areas the unique position of the government-as-em-
ployer. See, e.g., O’Connor v. Ortega, 480 U.S. 709 (1987)
(Fourth Amendment); Bishop v. Wood, 426 U.S. 341 (1976)
(Due Process); Connick v. Myers, 461 U.S. 138 (1983) (First
Amendment).
At the same time, the Court offered some observations
about “forms of state action . . . which by their nature
involve discretionary decisionmaking based on a vast
array of subjective, individualized assessments.” 553
U.S. at 603. In such cases, it noted, the rule that people
should be treated alike, under like circumstances and
conditions, is not violated merely because one person
is treated differently from others, because the differ-
ence in treatment is an accepted consequence of the
discretion granted. Id. It gave as examples of the latter
situation the traffic officer posted on a busy highway
who randomly chooses from all who are speeding just
a few who receive a ticket. This does not represent im-
permissible discrimination, the Court opined, with
the following comment:
But assuming that it is in the nature of the particu-
lar government activity that not all speeders can
be stopped and ticketed, complaining that one
has been singled out for no reason does not
invoke the fear of improper government classi-
fication. Such a complaint, rather, challenges the
legitimacy of the underlying action itself—the
decision to ticket speeders under such circum-
stances. Of course, an allegation that speeding
tickets are given out on the basis of race or
58 No. 10-3426
sex would state an equal protection claim, be-
cause such discriminatory classifications im-
plicate basic equal protection concerns. But al-
lowing an equal protection claim on the ground
that a ticket was given to one person and not
others, even if for no discernible or articulable
reason, would be incompatible with the discre-
tion inherent in the challenged action. It is no
proper challenge to what in its nature is a sub-
jective, individualized decision that it was sub-
jective and individualized.
Id. at 604. The Court then applied that principle to the
employment context, noting that employment decisions
are often subjective and individualized. Id. The Court
explicitly noted, nevertheless, that it was not categorically
ruling out class-of-one cases for anything but those in-
volving public employment. Id. at 607 (“[T]he class-of-
one theory of equal protection has no application in
the public employment context—and that is all we
decide . . . .”).
This case presents the question how Olech and Engquist
apply at a more general level. In particular, the issue
is whether it is enough for a class-of-one plaintiff to
plead and ultimately to prove irrationality in the state’s
action, or if in addition the plaintiff must demonstrate
illegitimate animus. One group of cases has required
the latter showing. See, e.g., Hilton v. City of Wheeling,
209 F.3d 1005, 1008 (7th Cir. 2000); Purze v. Vill. of
Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002); Cruz v.
Town of Cicero, 275 F.3d 579, 587 (7th Cir. 2001). Another
No. 10-3426 59
group has phrased the test in the alternative, looking to
see if there was no rational basis for the difference
in treatment or the cause of the differential is “totally
illegitimate animus.” Lunini v. Grayeb, 395 F.3d 761, 768
(7th Cir. 2005); see also McDonald v. Vill. of Winnetka, 371
F.3d 992, 1001 (7th Cir. 2004). Panels of the court have
noted the confusion in our case law on more than one
occasion. See, e.g., Srail v. Vill. of Lisle, 588 F.3d 940, 944
(7th Cir. 2009); Racine Charter One, Inc. v. Racine Unified
Sch. Dist., 424 F.3d 677, 683-84 (7th Cir. 2005). Other courts
of appeals have also stated the test in divergent ways.
See, e.g., Analytical Diagnostic Labs v. Kusel, 626 F.3d 135,
140 (2d Cir. 2010) (not imposing an animus requirement
but requiring plaintiffs to show that “decisionmakers
were aware that there were other similarly-situated
individuals who were treated differently”); Lindquist v.
City of Pasadena, 525 F.3d 383, 387 (5th Cir. 2008)
(explicitly declining to impose an animus requirement).
We had hoped to make some sense of all of this, but
regrettably, that proved to be impossible. At most, per-
haps, the differences among us narrowed slightly as a
result of this litigation, but ultimate resolution will
have to await another day.
C
As the Tenth Circuit has observed, it is necessary to
pay attention to both the substantive standards and the
pleading standards that govern these claims. See Kansas
Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011).
Del Marcelle faces the challenge of presenting a case that
60 No. 10-3426
is governed by the equal protection theory that gives
the greatest deference to the state actor. He does not
assert that he belongs to any class that receives special
solicitude from the courts, nor is he saying that
the actions of the Brown County Sheriff or the various
municipal police officers infringed any fundamental
right that the Supreme Court has recognized. The state
actions in question are therefore entitled to a presump-
tion of constitutionality; they can be disturbed only if
they are in fact discriminatory, and if that discrimina-
tion lacks any conceivable rational basis; it is
the plaintiff’s burden to show why that might plausibly
be the case. We use the word “plausibly” here for a
reason. That is the standard that the Supreme Court has
adopted for judging the adequacy of pleadings.
As we explain below, in our view a plaintiff seeking
to present a class-of-one case must include in his or her
complaint plausible allegations about the following
elements: (1) plaintiff was the victim of intentional dis-
crimination, (2) at the hands of a state actor, (3) the
state actor lacked a rational basis for so singling out the
plaintiff, and (4) the plaintiff has been injured by the
intentionally discriminatory treatment. In so doing, the
plaintiff must present facts—not bare legal conclusions—
that support these points. Twombly, 550 U.S. at 544;
Iqbal, 556 U.S. at 662; Swanson v. Citibank, 614 F.3d 400
(7th Cir. 2010). In particular, the complaint must set
forth a plausible account of intentional discrimination,
which is required for any violation of the Equal Protec-
tion Clause. See, e.g., Washington v. Davis, 426 U.S. 229
(1976); Wayte v. United States, 470 U.S. 598, 610 (1985)
No. 10-3426 61
(“[D]iscriminatory purpose” can be shown by demon-
strating that “the decisionmaker . . . selected or reaffirmed
a particular course of action at least in part because of,
not merely in spite of, its adverse effects . . . .”) (quotation
omitted). This is no small task. The complaint must
also indicate how the plaintiff proposes to shoulder the
burden of demonstrating the lack of a rational basis.
There is no single way to accomplish that task, but, as
Engquist stresses, a plaintiff must do more than show
that state actors who have legitimately been delegated
discretion to act simply exercised that discretion. It is
entirely rational, in other words, to permit state actors
to make individualized decisions when the very nature
of their job is to take a wide variety of considerations
into account.
The other factors that have crept their way into our class-
of-one cases—personal animus, illegitimate motives,
inexplicable deviations from clear rules—are not primary
rules. They are instead illustrative of the kind of facts
on which a plaintiff might rely in a complaint to show
that the lack of a rational basis is not merely possible,
but plausible. In some instances, well illustrated by
Olech, the state actor may inexplicably have failed to
follow what the Engquist Court called a “clear standard
against which departures, even for a single plaintiff,
could be readily assessed.” 553 U.S. at 602. Plaintiff
need only plead the existence of such a standard and
the state actor’s failure to meet that standard in order
to satisfy Twombly and Iqbal and go forward. In many
other cases, however, more will be required to cross the
line between possibility and plausibility of intentional,
62 No. 10-3426
irrational behavior. Often something like animus, or
the lack of justification based on public duties for
singling out the plaintiff (as Judge Posner proposes), or an
impermissible personal motivation, will serve that pur-
pose. Again, as the Supreme Court indicated in Engquist,
it will not be enough to challenge “what in its nature is
a subjective, individualized decision” solely with the
accusation “that it was subjective and individualized.”
Id. at 604. That sort of accusation would not be enough
to show plausibly that plaintiff will be able to rebut
the presumption of rationality.
The Tenth Circuit took much the same approach as
the one we are describing in its Kansas Penn decision. It
held that a class-of-one plaintiff bears a “substantial
burden” to describe those who are similarly situated in
all material respects (i.e., others who have been treated
more favorably), how plaintiff was treated differently,
and that there is “no objectively reasonable basis for
the defendant’s action.” 656 F.3d at 1217. That court,
however, thought that it was necessary at the pleading
stage to provide evidence of the comparators, rather
than saving that detail for summary judgment. This
represented an extension of the holdings in the cases
on which it relied, all of which involved the affirmance
of summary judgment for the defendants. See 656 F.3d
at 1217-18, citing Jicarilla Apache Nation v. Rio Arriba
C’nty, 440 F.3d 1202, 1212 (10th Cir. 2006); Jennings v.
City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004);
Analytical Diagnostic Labs, 626 F.3d at 143; Cordi-Allen
v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007); and Purze,
No. 10-3426 63
286 F.3d at 455; see also McDonald, 371 F.3d at 1009 (af-
firming summary judgment based on failure to prove
comparators).
In Geinosky v. Chicago, 675 F.3d 743 (7th Cir. 2012), this
court held that there was “no basis for requiring the
plaintiff to identify [the similarly situated] person in the
complaint.” Id. at 748 n.3 (emphasis in original). That was
because Geinosky alleged that police had given him
numerous baseless parking tickets over a long period
of time; to require Geinosky to name a specific
comparator in his complaint would have asked him to
do nothing more than point to another random person
in Chicago, who had not received the same pattern of
parking tickets. The allegation of discrimination under
these circumstances was enough in itself to signal that
others were not being subject to the same kind of harass-
ment. It was thus not essential that Geinosky identify a
specific comparator in order to paint a plausible pic-
ture of intentional discrimination without a rational
basis—there was no conclusion that could be drawn,
other than the police had targeted Geinsoky alone to
receive a series of baseless tickets.
Not all cases will be this straightforward. In some, as
part of the burden of pleading intentional discrimina-
tion, plaintiff may need to be more explicit about how
his or her treatment was different from that of others.
This flows from the substantive test for an equal protec-
tion claim: discrimination for this purpose occurs when
one is “intentionally treated differently from others
similarly situated.” Olech, 528 U.S. at 564; see also City
64 No. 10-3426
of Cleburne, 473 U.S. at 439. It may be difficult to
accomplish this task without including some facts in
the complaint that tell the court who (if it is not obvious,
as it was in Geinosky) falls in the favored class-of-
many. These kinds of details could, as a practical matter,
be essential to signal how the plaintiff proposes to rebut
the presumption that an officer with discretion to
consider a variety of factors has done nothing more
than exercise that discretion. Plaintiff must plead facts
showing that his unfavorable treatment could not have
rested on a legitimate exercise of discretion conferred
by the relevant laws. The more discretion an official
has, the more difficult this task will be. But as Geinosky
demonstrates, in some cases the discriminatory nature
of the official conduct will be apparent even without
any particularized allegations about the favored group,
and so we would not impose an across-the-board require-
ment that plaintiffs identify a specific comparator in
the complaint. To the extent that this deviates from the
Kansas Penn holding (and the difference may be only
superficial, since the facts before that court were dif-
ferent from those in Geinosky), we would part company
with the Tenth Circuit. We believe that it is enough, as
we have already said, to plead the four elements set
forth earlier: intentional discrimination, on the part of
a state actor, lack of a rational basis, and injury.
This approach “addresses the main concern with the
class-of-one theory—that it will create a flood of claims
in that area of government action where discretion is
high and variation is common.” Kansas Penn, 656 F.3d at
No. 10-3426 65
1218. Given the presumption of validity that attaches to
both state legislation and administrative or executive
activity, a plaintiff will often need to set out relatively
detailed allegations to exclude the possibility that a
defendant acceptably exercised discretion. This task will
be easier, as Engquist pointed out, when the state has
inexplicably deviated from a clear rule like the ease-
ment length in Olech; it will be more difficult for cases
attempting to attack decisions where discretion plays
a significant role. As the Supreme Court warned
in Twombly and reiterated in Iqbal, “[w]here a com-
plaint pleads facts that are merely consistent with a de-
fendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.” 556
U.S. at __, 129 S. Ct. at 1949. Qualified immunity will
also frequently relieve state actors of the burden of litiga-
tion in this area: if discretion is broad and the rules are
vague, it will be difficult to show both a violation of a
constitutional right and the clearly established nature
of that right. See, e.g., Pearson v. Callahan, 555 U.S. 223,
232 (2009).
This illustrates how one would distinguish the case of
the police officer who cannot stop all speeding cars and
thus randomly selects just a few from a proper class-of-one
case. At first blush, it might appear that the officer has
behaved in an arbitrary fashion, but that impression
is easily dispelled: a system of random checks is a
rational enforcement mechanism. Police act with limited
resources and cannot possibly stop every single speeder.
Furthermore, it would be almost impossible to demon-
66 No. 10-3426
strate intent to discriminate against the particular
stranger whom the police officer happened to pull over. As
Kansas Penn noted, “the fact that government action
is infrequent, or that a formerly unenforced regulation
is enforced, is not enough to create a federal cause of
action.” 656 F.3d at 1220; see also Chavez v. Illinois State
Police, 251 F.3d 612 (7th Cir. 2001) (finding that
plaintiffs failed to prove intentional race discrimination
in highway stops made by Illinois State Police, and thus
failed to state an equal protection claim). Only if the
complaint offers facts that would support the elements
outlined above should it be able to survive a motion
to dismiss under Rule 12(b)(6).
D
Last, we explain why we would refuse the invitation
from the appellees to extend Engquist’s holding to all
forms of law enforcement. This court has, it is true, held
that no class-of-one claim is possible for a person
who wants to complain, essentially, about prosecutorial
discretion. United States v. Moore, 543 F.3d 891 (7th Cir.
2008). In Moore, the defendant argued that the Equal
Protection Clause is violated by the law that allows a
criminal sentence below the statutory mandatory mini-
mum only upon a government motion based on sub-
stantial assistance. That opinion first noted that Moore
was not similarly situated to others who had been prose-
cuted in state court for offenses involving approxi-
mately the same drug amounts. More important, how-
ever, was the fact that Moore’s argument was flatly
No. 10-3426 67
inconsistent with the theory of nearly complete pros-
ecutorial discretion that prevails in our system. (We say
“nearly” because that discretion, as was noted in Moore,
is subject to constitutional constraints such as the pro-
hibition against discrimination on the basis of race or
religion. But that qualification played no part in either
Moore’s case, nor is it relevant here.) Critically for
present purposes, even irrationality is not a ground on
which prosecutorial discretion may be challenged. Id. at
900. With irrationality off the table, it follows that the
third element of a class-of-one equal protection claim
can never be satisfied when the attempted attack is on
an exercise of prosecutorial discretion. E.g., United States
v. Green, 654 F.3d 637 (6th Cir. 2011) (rejecting equal
protection challenge to prosecution’s decision to
proceed in civilian rather than military court). We thus
have no problem adhering to the holding in Moore to
the effect that there is no place for a class-of-one theory
directed against prosecutorial decisionmaking.
The situation presented in cases challenging police
action is quite different, as this court explained in Hanes
v. Zurick, 578 F.3d 491 (7th Cir. 2009):
Although the police enjoy broad freedom of
action, their discretion is much narrower than
the discretion given to public employers. First, in
contrast to an employer, who is entitled to make
decisions based on factors that may be difficult
to articulate and quantify, an officer must justify
her decision to stop a suspect by pointing to
“articulable facts.” And while employment deci-
68 No. 10-3426
sions are inherently subjective, subjective inten-
tions play no role in evaluating police seizures
under the Fourth Amendment. . . . [A]sking a court
to determine whether a police officer’s act was
constitutional is not at all unprecedented.
Id. at 495 (internal citations and quotation marks omit-
ted). The plaintiff in Hanes had alleged that the police
were motivated by malice and had no reason related
to their official duties for their actions. Had this been
all, the complaint likely would have been dismissed
under Iqbal for containing nothing but a conclusion of
law. The complaint, however, included details that
showed that this was not merely possible but was
actually plausible. The police had arrested Hanes eight
times; those arrests had led to 13 criminal charges for
minor crimes; yet every charge was later dropped. At
the same time, the police were ignoring Hanes’s own
complaints against others, no matter what the under-
lying facts.
Defendants point to a recent decision of the Eighth
Circuit, Novotny v. Tripp County, 664 F.3d 1173 (8th Cir.
2011), which they say has extended Engquist to discre-
tionary law-enforcement decisions like those at issue
here. We do not read Novotny so broadly. Among other
complaints, Novotny charged that county officials were
unequally enforcing the county’s weed ordinances
against him. But his only evidence for this was hearsay
in two letters from the state Department of Agriculture
to the county weed board—evidence that was insuf-
ficient to support summary judgment. Only after
No. 10-3426 69
making that point did the Eighth Circuit add that
Novotny had failed to state a class-of-one claim, because
the weed ordinance was a uniform rule with neces-
sarily discretionary enforcement. 664 F.3d at 1179. In the
absence of any reason to think that the Department
of Agriculture and the weed board were discriminating
against Novotny in an entirely irrational way—
and Novotny provided none—this ruling is entirely
consistent with the rule we are proposing. Although
the Eighth Circuit, in passing, cited Engquist for the
proposition that the class-of-one principle does not
apply to discretionary decisions based on a broad array
of subjective, individualized criteria, see id., this point
was neither explored fully nor was it necessary to the
outcome. We therefore consider Novotny to be distin-
guishable from the case before us.
Because police action of the type alleged in Hanes and
in Del Marcelle’s case falls closer to the “discretionary”
end of the spectrum, a putative class-of-one complainant
faces a much higher burden to show that the exercise
of that discretion was irrational. This, we believe, is
what our court and others have been driving at ever
since Olech and Engquist in the suggestions that animus,
or malice, or lack of any possible legitimate state
purpose, plays a part in class-of-one cases. Those motive
elements are not always necessary, as Olech illustrates,
and indeed, it is not clear to us that Judge Posner’s sepa-
rate opinion even takes that position. Nor should
animus (or something similar) be seen as an alternative
to a showing of irrationality. Instead, in the cases that
do not rest on the state’s failure to follow a clear
70 No. 10-3426
standard, the plaintiff has the burden of showing in
the complaint some plausible reason to think that in-
tentional and irrational discrimination has occurred.
Pleading animus or improper purpose will often be
an effective way to accomplish that goal.
* * *
Fanciful stories of persecution, backed up by nothing
but conclusory allegations, will not pass the bar estab-
lished by Rule 12(b)(6). But there will be occasional cases
that do, as the Supreme Court has taught. We return to
the most basic proposition: the Equal Protection Clause
protects individual persons, not groups. If a plaintiff
can meet the pleading burdens we have described here,
then he or she should be entitled to pursue a class-of-one
case.
This brings us to the driving force that has split our
court evenly down the middle. Five members would
end Del Marcelle’s case here; five would allow him to
replead. Unfortunately, this even division has prevented
us from coming to rest on the substantive standard
that should govern these cases. These standards were
unclear, to put it charitably, at the time Del Marcelle
filed his pro se complaint, and at the time the district court
evaluated it. The full court agrees that as it stands,
Del Marcelle’s complaint is inadequate. As we would
put it, the complaint fails to meet his substantial burden
to present a plausible account that the police acted
without any rational basis when they failed to respond
to some of his complaints but did respond to the
gang members’ corresponding complaints by issuing
No. 10-3426 71
citations to him. For example, Del Marcelle attached a
police report to his complaint showing that police in-
vestigated an incident in which Del Marcelle asserted
that a gang member tried to run him over. But Del
Marcelle’s own filing shows that the police did not
ignore his complaint. To the contrary, they spoke to
the car driver and various witnesses (except for Del
Marcelle, who refused to speak to them). They concluded
that Del Marcelle had actually provoked the incident
by throwing a rock at the car and shattering its wind-
shield. Del Marcelle provides no reason for the court
to believe that this police report was falsified or to
question its conclusions. Thus, at present (even as sup-
plemented by the additional materials we mentioned at
the outset) Del Marcelle’s complaint does not plausibly
suggest that police officers failed to respond to him
because they irrationally discriminated against him.
Instead, it appears to be just as likely that police
acted rationally by declining to take action on what
they determined to be baseless complaints.
The question is what to do now: simply affirm the
dismissal, or permit Del Marcelle to replead consistently
with an agreed standard. In light of the unsettled state
of the law, the general rule favoring an opportunity to
replead, and the fact that Del Marcelle was proceeding
pro se, we would give him one more chance. The court
may think that it can predict what he will be able to do,
but it is critical to recall that the factual record has not
yet been developed, and so we are all operating in the
dark. We are not prepared to express any opinion on
the question whether an amended complaint could
72 No. 10-3426
pass muster. Had the court been willing to give Del
Marcelle another chance, it is also worth noting that
this would have been more limited than his original
suit. Specifically, we would have held that he cannot
proceed against the two individual defendants, County
Executive Tom Hintz and Ashwaubenon Village
President Mike Aubinger, without a showing that each
one was personally involved with the course of action
he is challenging. Similarly, any complaint against
Brown County or Ashwaubenon would have needed to
satisfy the criteria of Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658 (1978). The district court’s earlier
order had nothing to say about either individual liability
or municipal liability.
We end with a brief comment on the standard of
liability that four members of the court have endorsed.
In our view, it will be a difficult one for the district
courts to follow. It is all too easy for a plaintiff to
accuse someone of a malicious motive and thus to
impose on the entire system the burden of going for-
ward. The standard we favor, the one in this opinion,
would be easier for the district courts to apply at
the pleading stage because it does not require mind-
reading. Finally, we are deeply concerned that
Judge Posner’s opinion might be read as endorsing a
new type of rational-basis test that the Supreme Court
has never created—some kind of “rational-basis minus”
level of review. We hope that this is not the case, but
it seems that he is concerned that too many class-of-
one cases will slip by the normal rational-basis screen.
No. 10-3426 73
We do not share that view, but unfortunately we have
not been able resolve the matter in the present case.
We would reverse the judgment of the district court
and remand to give Del Marcelle a chance to replead,
using the standards we have described in this opinion.
We therefore dissent from the order of the court
affirming the judgment of the district court.
5-17-12