IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60305
_____________________
STEVE BRYAN,
Plaintiff-Appellant,
versus
THE CITY OF MADISON, MISSISSIPPI;
MARY HAWKINS, Individually and in
her official capacity as Mayor of
Madison, Mississippi; TIMOTHY L.
JOHNSON, Individually and in his
official capacity as Alderman and
elected public official of the
City of Madison, Mississippi;
LISA CLINGAN-SMITH, Individually
and in her official capacity as
Alderman and elected public
official of the City of Madison,
Mississippi,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________
June 9, 2000
Before JOLLY and DeMOSS, Circuit Judges, and DAVID D. DOWD,*
District Judge.
E. GRADY JOLLY, Circuit Judge:
Steve Bryan, a developer, wanted to build some apartments in
Madison, Mississippi, so he contracted to buy some land that was
*
District Judge of the Northern District of Ohio, sitting by
designation.
zoned for apartments and began the process of submitting his plan
to the mayor and board of aldermen. It was approved. All he
needed then was a building permit. But after some 700 residents
raised serious objections, all he got was grief. In a protracted
approval process, he was frustrated time and time again,
principally by the mayor and her allies. Even a state circuit
court, which sided with Bryan, was unable to give him any
significant help. Finally, after some three years of various
delays, miscues, and political maneuvers, his battle ended when all
he had left was an expired contract to purchase. That is when he
came to the federal courts with this 42 U.S.C. § 1983 claim,
arguing that the City of Madison and its officials had violated his
due process rights under the United States Constitution. He argues
that the defendants deprived him of his property rights without due
process of law. Unfortunately, he had no property rights and
accordingly we must turn him away.
I
The saga of this plot of land began, routinely enough, in
1987, when the mayor and board of aldermen rezoned the property to
allow for construction of residential apartments.1 In 1990, the
city adopted a new, comprehensive plan for development of the
1
There is some dispute about whether this rezoning was
conditional on a grant by the owner to the city of a forty-foot
buffer along the property’s eastern boundary, but resolving this
question is not critical to the outcome of the case.
2
entire municipality. Under this plan, the property maintained its
classification allowing for development of an apartment complex.
At this point, Bryan unceremoniously entered the story. He
signed a contract with the owner of the plot to buy the land, with
the purchase to close between March 22, 1993 and September 30,
1994. In early 1991, he submitted a plan for the development of
apartments on the property to the mayor and board. The plan would
provide 564 units, approximately ten units per acre. The city
approved the plan in March 1991 and the architectural design for
the project two months later. All that remained was to obtain a
building permit. And in October 1991, Madison’s Public Works
Director, Denson Robinson, wrote Bryan to say that the planned
development complied with all city ordinances and that Madison was
prepared to issue the permit.
By December 1991, however, Bryan still had not applied for a
building permit. Perhaps he should have acted more quickly. On
December 17, the city adopted a comprehensive rezoning ordinance,
to be effective on January 16, 1992, as part of the implementation
of the 1990 comprehensive plan. This rezoning was significant for
three reasons. First, it repealed all earlier and inconsistent
ordinances. Second, while the property maintained its
classification allowing for residential apartment development, the
new zoning ordinance reduced the density restriction from ten to
3
7.5 units per acre. Third, the new ordinance adopted a formal site
plan review procedure.
At this point, Bryan finally applied for a building permit.
But according to a Madison ordinance, the builder must seek the
permit within six months of approval of the site plan. Bryan had
missed this deadline, so he was forced to resubmit his site plan
for approval. In early July 1993, therefore, Bryan amended his
site plan to accord with the new density provision and resubmitted
it. The board of aldermen voted to approve the new plan in
September 1993.
While Bryan was involved in that process residents became
unhappy with what would have been Madison’s first apartment
complex, and organized a petition drive opposing the development.
They collected over 700 signatures. This expression of voters,
naturally enough, provoked a response from Mayor Mary Hawkins: she
vetoed the board’s September approval of Bryan’s site plan. Bryan
appealed this decision to the Circuit Court of Mississippi.2 In
the meantime, the mayor and two aldermen, Timothy Johnson and Lisa
Clingan-Smith, submitted a rezoning application to the city zoning
commission that would have prohibited development of apartments.
2
He pursued his appeal pursuant to Miss.Code.Ann. § 11-51-75,
which provides for appeal from decisions of boards of supervisors
and municipal authorities upon presentment of a bill of exceptions
setting forth the basis for appeal. In this case, the circuit
court ultimately found that Bryan’s plan was inadequate.
4
The commission rejected their application, however. A group of
residents calling themselves the “Madison Homeowners Association”
then appealed the commission’s decision to the mayor and board of
aldermen, who had authority to hear this type of appeal. After a
public hearing, however, the board voted 3-2 to deny the mayor’s
rezoning application.
Two days later, in early November 1993, the mayor called four
of the board members for an unscheduled meeting. The mayor told
them she was declaring the first vote invalid and called for
another immediate vote, even though one of the board members was
absent and none of the interested parties had notice of the
meeting. Two members of the board objected and left the room.
Undeterred, the mayor proceeded to count the two who had left as
abstaining votes, thereby constituting affirmative votes. She then
announced that the rezoning had passed, 4-0.
The landowner, not Bryan, appealed this decision to the
circuit court. In its March 16, 1994 order, the court ruled that
the rezoning had been improper and warned the mayor against using
the site approval procedures to block a landowner from lawfully
using his property in response to public clamor. But the judge
dismissed the appeal on the assumption that the parties would be
able to work out their differences. By this time, however, the
dispute was beginning to develop solid traction that would not slip
into compromise.
5
Two days later, on March 18, 1994, Bryan submitted a new site
plan, which he later modified on April 7.3 On April 25, the
planning and zoning commission voted to approve Bryan’s plan
subject to certain conditions. The mayor and board took up the
matter of the site plan on May 3, but left the issue unresolved
until the next regular meeting, May 17. At that May 17 meeting,
the board again voted 3-2 to approve the plan, and directed city
personnel to issue a building permit. But the mayor again vetoed
the board decision.
This pattern became script. Bryan would appeal the mayor’s
veto before the circuit court, which would reverse the veto. In
doing so, the circuit judge would issue findings in Bryan’s favor
4
before remanding back to the board of alderman. After another
favorable vote for Bryan in that forum, the mayor would announce
another veto based on some new problem with Bryan’s plan. Bryan
would then appeal.
This pattern was temporarily interrupted at a hearing on
June 13, 1995. At that hearing, before the aldermen even had a
chance to vote, the mayor withdrew the plan from consideration,
3
During review of this plan, Madison’s city engineer,
Engineering Associates, Inc., advised the city of a potential
conflict of interest. The board of aldermen then voted unanimously
to hire another firm, Southern Consultants, Inc., to review the
plan.
4
The district court held that these findings did not have
preclusive effect, an issue that Bryan has not raised on appeal.
6
ostensibly to review the transcript of another board meeting held
the night before during which a portion of Bryan’s plan had been
approved. But the mayor never made any attempt to obtain such a
transcript.
By this point, Bryan’s window for purchasing the property had
closed, but it is not clear whether the circuit judge was aware of
this development. Regardless, the judge eventually tired of the
mayor’s strategies. He determined that Bryan’s plan complied with
all city ordinances and directed the city to issue a building
permit. The judge also imposed sanctions of $19,688.45 on the city
for its repeated attempts to block Bryan’s attempts to obtain a
building permit.
At this point, nothing appeared to stand in Bryan’s way. But
on April 21, 1995, the property’s owner wrote Bryan informing him
that the contract period for purchasing the property had ended.
The owner ordered Bryan to remove his equipment from the property
and not to return. The owner later sold the property to a third
party in 1996.
After this final reversal, Bryan filed a § 1983 suit in
federal district court, alleging violation of his Fifth and
Fourteenth Amendment rights. The suit named the city of Madison,
the mayor, and the two aldermen (Johnson and Clingan-Smith) as
defendants. Bryan and the defendants later filed summary judgment
7
motions, and the district court ruled in favor of the defendants,
dismissing the suit.
II
Because the district court ruled for the defendants on summary
judgment, we review the judgment de novo, applying the same
standard as the district court. Duffy v. Leading Edge Prods. Inc.,
44 F.3d 308, 312 (5th Cir. 1995); Fed.R.Civ.P. 56. We therefore
draw all factual inferences in Bryan’s favor in order to determine
whether the defendants are entitled to judgment as a matter of law.
Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).
III
We first address whether the three individual defendants enjoy
immunity from this suit.5 The district court, in a thorough and
considered opinion, concluded that they were entitled to absolute
legislative immunity. We must disagree.
A
Absolute immunity applies to activities, not offices. See
Marrero v. City of Hialeah, 625 F.2d 499, 508 (5th Cir. 1980)(“[I]t
is the official function that determines the degree of immunity
required, not the status of the acting officer.”). Legislative
immunity protects officials fulfilling legislative functions even
5
The City of Madison itself does not enjoy immunity from suit,
either absolute or qualified, under § 1983. Burge v. Parish of St.
Tammany, 187 F.3d 452, 476 (5th Cir. 1999).
8
if they are not “legislators.” Hughes v. Tarrant County Texas, 948
F.2d 918, 920 (5th Cir. 1991). And absolute immunity only protects
those duties that are functionally legislative, not all activities
engaged in by a legislator. Id.
The first step in our analysis, therefore, is to determine
exactly what activities Bryan has challenged. Bryan’s brief and
his complaint discuss four types of such activities:6
(1) The mayor’s repeated vetoes of Bryan’s site and
development plans.
(2) Delaying tactics by the mayor by blocking a decision on
Bryan’s various plans at board meetings.7
(3) The vote by the mayor and two aldermen to apply to
themselves to rezone the property.8
(4) The events at the November 3, 1993 board meeting, where
the mayor placed the rezoning decision back on the agenda
without notifying the parties, and where she and the two
6
We note that Bryan’s brief often fails to enumerate what
specific acts form the basis for his specific claims.
7
In his complaint, Bryan charges that the mayor prevented the
processing of a site plan he submitted to the board on March 18,
1994, though Bryan does not explain how the mayor accomplished
this. In his complaint, he points to further delay when the board
failed to reach a decision on his site plan at a meeting on May 3,
1994. Again, there is no mention of how this was accomplished, or
even who was to blame for the delay. Finally, Bryan points to a
decision by the mayor to remove consideration of Bryan’s plan from
the agenda at a June 13, 1995 board meeting, purportedly to obtain
a transcript of an earlier proceeding.
8
On September 13, 1993, the Madison zoning commission voted to
deny the mayor’s rezoning application. The Madison Homeowner’s
Association appealed to the board of alderman, which then voted on
November 1, 1993, to deny the rezoning application.
9
aldermen voted to rezone the property notwithstanding the
board’s earlier vote against rezoning.9
B
In Hughes v. Tarrant County Texas, 948 F.2d 918 (5th Cir.
1991), we discussed various legal standards for evaluating whether
a particular activity is “legislative” rather than “administrative”
and therefore protected by absolute immunity.10 We first looked to
Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.
1984), which held that “[a]dministration of a contract does not
involve the formulation of a policy. . . . Rather, it is more the
type of ad hoc decisionmaking engaged in by an executive.” We also
considered a zoning case, Scott v. Greenville County, 716 F.2d
1409, 1423 (4th Cir. 1983), where the Fourth Circuit held that
“[w]hen local zoning officials do more than adopt prospective,
legislative-type rules and take the next step into the area of
enforcement, they can claim only the executive qualified immunity
appropriate to that activity.” We next turned to Cutting v.
Muzzey, 724 F.2d 259, 261 (1st Cir. 1984), where the First Circuit
denied legislative immunity protection to a zoning board that had
placed conditions on the approval of a development: “It is not the
9
The state court overturned the rezoning on Feb 10, 1994.
10
Hughes was not a zoning or permit case. The question before
the court was whether county commissioners were entitled to
absolute legislative immunity for refusing to compensate a district
court clerk for his attorney’s fees incurred in the course of his
§ 1983 suit against them.
10
enactment of an overall plan or the establishment of general
policy, both of which could be said to be legislative in
nature. . . . In our case the Planning Board merely decided to
insist on completion of a particular road before granting approval
of a specified proposed subdivision.” We explained that the
Cutting court had adopted two different tests in reaching its
conclusion:
The first test focuses on the nature of the facts used to
reach the given decision. If the underlying facts on
which the decision is based are "legislative facts," such
as "generalizations concerning a policy or state of
affairs," then the decision is legislative. If the facts
used in the decisionmaking are more specific, such as
those that relate to particular individuals or
situations, then the decision is administrative. The
second test focuses on the "particularity of the impact
of the state action." If the action involves
establishment of a general policy, it is legislative; if
the action single[s] out specific individuals and
affect[s] them differently from others, it is
administrative.
Id. (citing Developments In the Law, 91 Harv.L.Rev. 1427, 1510-11
(1978). In Hughes, we did not choose any one of these particular
standards, but instead used them as general guidelines.
C
Applying the same guidelines to the present case indicates
that legislative immunity protects only one of the defendants’
listed activities. The first challenged activity, the mayor’s
repeated vetoes, was non-legislative. In each instance, the mayor
was vetoing a determination that Bryan’s plan satisfied city zoning
11
ordinances or building requirements. Such a determination does not
involve the “determination of a policy.” Rather than constituting
a prospective rule, an overall plan, or general policy, this
determination entered the realm of “enforcement” with respect to
“approval of a specified proposed” plan. Finally, under the two
Cutting tests, the determination was based on specific, particular
facts and affected Bryan’s development alone.
Thus, our conclusion is not inconsistent with our earlier
decision in Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.
1981), where we held that a mayor’s veto of a rezoning ordinance
was protected by legislative immunity. Zoning is general and
prospective. It directly affects the entire community. In the
present case, however, general rules are being applied to one
specific piece of property.11 Calhoun v. St. Bernard Parish, 937
F.2d 172 (5th Cir. 1991) presents a closer case because it
concerned spot zoning rather than a general zoning ordinance. But
spot zoning, even if it relates to a specific plot, is still a
11
In some circumstances, the application of general rules to
a specific case may be quasi-judicial in nature, and therefore
entitled to absolute immunity for that reason. The standard for
judicial immunity is different, and is discussed in detail in
Thomas v. City of Dallas, 175 F.3d 358, 362-63. We are not aware
that the defendants have raised this argument to this point, but
the district court did not address it, and the defendants have not
alluded to it in their brief. For these reasons, the issue is not
properly before us.
12
prospective amendment of a larger general plan. For that reason,
it is legislative, while the vetoes in the case before us are not.12
Similarly, the second activity, where the mayor delayed
decisions on approval of Bryan’s plans at various board meetings,
is non-legislative. The point at issue in those meetings was
specifically and particularly related to the proposed development.
Any decision to delay a vote on that issue, therefore, was also
specific and particular.
The third challenged activity, the vote to apply for a
rezoning, also appears non-legislative. This was not a vote to
rezone. It was a vote to apply for a rezoning, just as private
citizens are able to do. This type of activity is more like ad hoc
decisionmaking than the formulation of a policy.
Based on these standards, however, we must grant legislative
immunity for the events related to the November 3, 1993 board
meeting, which is the fourth set of activities. These activities
were irregular and inappropriate. But they were still legislative
in nature because they involved a rezoning provision. It may be
that at some point, when a legislature acts in a wholly
irresponsible and undemocratic manner, its immunity for
12
Our conclusion is consistent with that of the Eleventh
Circuit, which has twice held that the denial of a permit
constitutes an administrative rather than a legislative act. See
Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1392 (11th Cir.
1993); Crymes v. Dekalb County, Georgia, 923 F.2d 1482, 1485-86
(11th Cir. 1991).
13
“legislative” acts dissipates because it is no longer operating as
a legislature, as we understand the term. But we are reluctant to
conclude that this point has been reached here.13
D
We recognize that the mayor and aldermen may be entitled to
qualified immunity for the activities that are not protected by
legislative immunity. But the district court did not need to
address this issue, having concluded that legislative immunity
applied, and it has not been fully briefed by the parties. For
that reason, we decline to address it at this point.
IV
We turn now to the substance of Bryan’s specific
claims--substantive and procedural due process violations, taking
without just compensation, and equal protection violation.
13
Immunity concerning the November 3 meeting is probably
insignificant. The state court overturned the rezoning just over
three months later, so any impact on Bryan’s efforts was minor.
14
A
In order to establish either a substantive or a procedural due
process violation by claiming denial of a property right, Bryan
must first establish a denial of a constitutionally protected
property right.14 See Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir.
1992) (stating that a prerequisite to a substantive due process
claim is the establishment of a constitutionally protected property
right); Jackson Court Condominiums, Inc. v. City of New Orleans,
874 F.2d 1070, 1074 (5th Cir. 1989)(requiring a showing of a
property right as a basis for a procedural due process violation).
Such a showing, as we noted in Schaper v. City of Huntsville, 813
F.2d 709 (5th Cir. 1987), must be made by reference to state law.
“The Constitution does not create property interests; ‘they are
created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law.’” Schaper, 813 F.2d at 713 (quoting Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); see also
Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684
(1976) (stating that “a property interest in employment can, of
course, be created by ordinance or by an implied contract . . . in
14
This requirement of a property right is not necessary if the
plaintiff charges denial of a liberty interest. But Bryan has not
made that claim here.
15
either case, however, the sufficiency of the claim of entitlement
must be decided by reference to state law”).
The right that Bryan claims he was denied is his right to
develop apartments on the land. He contends that when he signed
the contract to purchase the land and put money down, that gave him
an interest in the land. Bryan maintains that this interest
entailed a right to use, which encompassed a right to develop
apartments. That is what, according to him, the defendants
interfered with.
The one and only Mississippi case that he relies on as support
for the existence of such a right is Cole v. Haynes, 62 So.2d 779
(Miss. 1953). A careful analysis of that holding is therefore
warranted.
In Cole, the issues were whether a contract between two
parties was an option contract or a contract of sale, and if the
latter, whether the buyer had an equitable lien on the property for
the return of his down payment upon the seller’s failure to make
good title. Id. at 779. The parties had signed a contract, and
the buyer paid $3,250 down. But the seller was not able to clear
title to the property by the closing date. When the seller refused
to return the down payment, the buyer sued. He claimed an
equitable lien on the property in the amount of his down payment.
The only part of the holding that is relevant to our inquiry
16
is the nature of the interest the buyer secured.15 We believe the
description of that interest, however, forecloses any possible
recovery under a due process theory:
55 Am.Jur., Vendor and Purchaser, § 548, states that the
general rule is that a purchaser under an executory
contract for sale and purchase of land is entitled to an
equitable lien upon the land for the amount which he has
paid upon the purchase price, where the vendor is in
default or unable to make good title. Section 549 says
this with reference to the nature and basis of the lien:
‘The lien of a purchaser of land under an executory
contract for the amount which he has paid is to secure to
him the repayment of expenditures made in pursuance of
the contract. The exact nature of this lien is not
clear. . . . It has been said that the basis of the lien
is the well-known fundamental rule that in equity what is
agreed to be done is regarded as done, so that from the
time that a contract is made for the purchase of real
estate, the vendor is, in a sense, a trustee for the
purchaser, and the purchaser in a sense is the real owner
of the land, so that each, under the ordinary equitable
rules, has a lien for his protection. The whole practice
in equity with reference to such contracts is clearly on
the basis that the parties are under equitable
obligations to each other.’
Id. at 781 (emphasis added)(quoting 55 Am.Jur., Vendor and
Purchaser, § 548).
The nature of the interest the buyer secures under Cole is
extremely limited. It is an interest in the land. But what rights
does that interest entail? Merely a right to get the down payment
back if the seller does not make good title. This interest does
15
Bryan has asserted, and the defendants do not appear to
contest, that the contract in this case was one of sale rather than
an option contract.
17
not give one the right to enter the land, to exclude others from
the land, or to build anything on the land.
Thus, it is apparent that Bryan never had the right that he
claims the defendants denied him. The interest in the land that
arose when he signed the contract to purchase did not give him the
right to develop the land. So the defendants did not deny him his
right to develop apartments because he never had such a right in
the first place.
Because Bryan has failed to establish the denial of a property
right, his due process claims fail.16
B
Bryan next contends that the defendants’s conduct violated 42
U.S.C. §§ 1985(3) and 1986. These two sections are directed at
conspiracies to interfere with civil rights. The district court
16
Bryan also contends that the city’s demand that he cede a
forty-foot buffer of the property in exchange for approval of his
plan constituted a taking of property without just compensation.
The district court, however, correctly held that this claim was not
ripe because Bryan had failed to seek compensation from the state.
In Williamson County Regional Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120-21, 87
L.Ed.2d 126 (1985), the Supreme Court held that “if a State
provides an adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the Just Compensation
Clause until it has used the procedure and been denied just
compensation.” Mississippi has a procedure for obtaining
compensation based on eminent domain takings, and Bryan failed to
resort to it. See Miss. Code Ann. §§ 11-27-1 et seq. (providing
for a “court of eminent domain”).
18
dismissed these claims because Bryan had failed to allege
membership in a class recognizable under § 1985(3).
On appeal, Bryan asserts that he is a member of an
identifiable class--multi-family developers. But in United
Brotherhood of Carpenters and Joiners of America, Local 610,
AFL-CIO v. Scott, 463 U.S. 825, 837-39, 103 S.Ct. 3352, 3360-61, 77
L.Ed.2d 1049 (1983), the Supreme Court held that § 1985(3) does not
reach conspiracies motivated by economic or commercial animus. In
this circuit, we require an allegation of a race-based conspiracy.
Newberry v. East Texas State University, 161 F.3d 276, 281 n.2 (5th
Cir. 1998). For that reason, Bryan’s § 1985(3) claim fails. And
because a valid § 1985 claim is a prerequisite to a § 1986 claim,
that claim is also invalid. See id. at 281 n.3.
C
Finally, Bryan argues that the defendants violated his right
to equal protection under the Fourteenth Amendment. Unfortunately,
neither his complaint nor his brief lists the specific instances
that he considers examples of violations of his equal protection
rights. To the best we can discern, there are two types of
violations that might be implicated here. First, Bryan appears to
allege that the defendants applied the zoning standards, such as
the height and water meter restrictions, unreasonably in his case
by vetoing his applications based on a failure to comply with those
standards. Second, Bryan charges that the “extraordinary” process
19
he faced, which included the unscheduled November 1993 meeting and
the hiring of Southern Consultants to review his plan, violated his
equal protection rights.
The first activity falls within the standard equal protection
analysis. As a prerequisite to such a claim, the plaintiff must
prove that similarly situated individuals were treated differently.
Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999). But Bryan
has failed even to allege this. He does not provide an example of
any developer who had these standards applied to him or her in a
manner different from the way they were applied to him. Thus, the
equal protection claim with respect to those actions fails.
The second type of conduct on the part of defendants does not
fit into this “as applied” analytical framework as easily, but
instead looks like an example of “selective enforcement.” In
Esmail v. Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995), the Seventh
Circuit considered a case in which city officials had used their
powers to delay and frustrate an applicant’s efforts to obtain a
liquor license. That court treated the case as one of “selective
prosecution,” which is a type of equal protection claim recognized
in this circuit as well. See Allred’s Produce v. United States
Department of Agriculture, 178 F.3d 743, 748 (5th Cir.
1999)(including all but personal vindictiveness); Stern v. Tarrant
County Hospital District, 778 F.2d 1052, 1058 (5th Cir.
1985)(including all but personal vindictiveness). In the present
20
case, when the mayor independently sought to rezone the property
and called the November 1993 unscheduled meeting, she was not
applying standards in an unreasonable manner. Instead, she was
selectively using her powers against a single party,17 Bryan. This
therefore looks like an case of selective enforcement.
But to successfully bring a selective prosecution or
enforcement claim, a plaintiff must prove that the government
official’s acts were motivated by improper considerations, such as
race, religion, or the desire to prevent the exercise of a
constitutional right.18 Allred’s Produce, 178 F.3d at 748. Stern,
778 F.2d at 1058. Bryan’s selective enforcement claim fails for
that reason. He has never alleged any improper motive by the mayor
or aldermen. Neither his complaint nor his brief explains why the
17
In Willowbrook v. Olech, 120 S.Ct. 1073, 1074 (2000), the
Supreme Court explained that “[o]ur cases have recognized
successful equal protection claims brought by a “class of one.” As
we read this part of the holding, it merely stands for the
proposition that single plaintiffs may bring equal protection
claims. They need not proceed on behalf of an entire group. But
this statement has nothing to do with whether they must assert
membership in a larger protected class. The decision does not,
therefore, alter our requirement of an improper motive, such as
racial animus, for selective enforcement claims.
18
For example, retaliation for an attempt to exercise one’s
religion or right to free speech would be expected to qualify.
Esmail, 53 F.3d at 179. The Seventh Circuit has also included
personal vindictiveness as an improper basis for selective
enforcement in the equal protection context. Id. at 180. We have
never specifically addressed whether such a motive would be enough
to support an equal protection claim without some other class-based
discrimination, but that issue is not before us here because Bryan
has failed to allege it.
21
mayor and aldermen’s motive to block his plan were improper. He
does not allege that they did so because of his race, his religion,
his attempts to assert his constitutional rights, or just personal
vindictiveness. The most we can garner is that the mayor and
aldermen acted in response to the public petition against the
development. If the public opposition were based on improper
motives, such as race, then it might be that responding as the
mayor and aldermen did to block the development would have
implicated constitutional rights. But Bryan has failed to allege
any such motive. And, in a democratic republic, responding to the
voice of the public is expected and is not, standing alone, a
malevolent motive for selective enforcement purposes. For that
reason, the district court’s dismissal of this claim was
appropriate.
V
For the reasons stated herein, the district court’s decision
is
A F F I R M E D.
22
Bryan v. City of Madison MS
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