                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1043

S TEPHEN H ANES,
                                                    Plaintiff-Appellee,
                                  v.

T HOMAS Z URICK, et al.,
                                             Defendants-Appellants.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 08 C 2714—Charles R. Norgle, Sr., Judge.



       A RGUED JULY 8, 2009—D ECIDED A UGUST 18, 2009




  Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
  W OOD , Circuit Judge. Stephen Hanes sued the Village
of Grayslake, Illinois, and eleven officers of its police
department, alleging that the officers denied him—and
only him—equal protection of the law, solely for reasons
of personal animus. Relying on Hilton v. City of
Wheeling, 209 F.3d 1005 (7th Cir. 2000), the district court
denied the officers’ motion to dismiss, which sought
dismissal both on the basis of qualified immunity and for
2                                               No. 09-1043

failure to state a claim. Under Hilton, a plaintiff states
such a claim by alleging that “the police decided to with-
draw all protection . . . out of sheer malice.” Id. at 1007.
Focusing on their qualified immunity theory, the officers
filed this interlocutory appeal, in which they invite us
to reconsider Hilton in light of the Supreme Court’s
holding in Engquist v. Oregon Dep’t of Agriculture, 128
S. Ct. 2146 (2008), that no class-of-one equal protection
claim can be made in the public-employment context. We
reject the officers’ invitation. Based on the significant
differences between public employment and policing, we
hold that Hilton remains good law after Engquist. We
therefore affirm.


                             I
  Hanes’s complaint is straightforward: it alleges that as
a result of a long-running and somewhat mysterious
dispute with his neighbors, both Hanes and the neighbors
have complained repeatedly to the police. Yet when the
police respond, they arrest only Hanes, no matter who
initiated the complaint. They have arrested him at least
eight times, and those arrests have led to thirteen crim-
inal charges for minor crimes. Every single charge was
later dropped. According to Hanes, the police have
treated him unequally by ignoring his complaints against
others and arresting only him because they “hate” him
and “do not respect him.” Those reasons, Hanes insists,
are “unrelated to the police officers’ duties.”
  The officers moved to dismiss Hanes’s complaint for
failure to state a claim, arguing that selective enforce-
No. 09-1043                                                    3

ment of the law can never violate the equal protection
clause under a class-of-one theory because of the discre-
tion inherent in police power. The officers acknowl-
edged that, under our opinion in Hilton, Hanes’s allega-
tions state a claim, but they argued that the Supreme
Court’s opinion in Engquist implicitly overruled Hilton.
The officers also argued that they were entitled to
qualified immunity, but they conceded that if the
district court refused to revisit Hilton, it should reject
their qualified immunity argument as well. The district
court concluded that it was bound by Hilton and denied
the officers’ motion. Its order did not explicitly mention
qualified immunity.


                               II
  The court’s failure to discuss qualified immunity
caused us to question whether we have before us a
nonappealable order denying a motion to dismiss, see
Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008), or an
appealable order rejecting the defense of qualified im-
munity, see Mitchell v. Forsyth, 472 U.S. 511 (1985). In
Gosnell v. City of Troy, Ill., 979 F.2d 1257 (7th Cir. 1992), the
district court similarly denied the defendants’ motions
for summary judgment in an order that did not mention
qualified immunity. Id. at 1259-60. We acknowledged
the possibility that “the district court intended to rule
on the question of qualified immunity in its order,” but
we held that without an express “conclusion of law”
from the district court, appellate jurisdiction was not
proper. Id. at 1261. Gosnell advises that defendants faced
4                                               No. 09-1043

with uncertainty over whether the district court has
rejected a defense of qualified immunity should move
the district court to reconsider or clarify; they should
not appeal. Id. at 1260.
  A closer look at this case reveals, however, that it is
not the same as Gosnell. In Gosnell, it was not only
unclear whether the district court intended to rule on
qualified immunity; it was also unclear whether the
defendants intended to raise the defense. Id. at 1259. The
defendants in Gosnell seemed to have forgotten about
the issue when they filed a second motion for sum-
mary judgment. In the present case, there is no am-
biguity about the officers’ intent—their motion to
dismiss explicitly raises the defense, and their sup-
porting memorandum contains a detailed discussion of
the issue. Hanes responded in kind, ensuring that the
issue was fully briefed for the district court. Because
qualified immunity was unambiguously before the
district court, its denial of the motion to dismiss neces-
sarily included a denial of the defense of qualified im-
munity. See In re Montgomery County, 215 F.3d 367, 374
(3d Cir. 2000) (collecting cases).
  As the Supreme Court recently reaffirmed in Pearson
v. Callahan, 129 S. Ct. 808 (2009), two questions are perti-
nent to the defense of qualified immunity: whether
the facts alleged show that the state actor violated a
constitutional right, and whether that right was clearly
established. Id. at 816, referring to Saucier v. Katz, 533
U.S. 194 (2001). Pearson held that the district court has
discretion in choosing the order in which those questions
No. 09-1043                                                    5

should be answered; a negative answer to either one is
enough to establish the defense of qualified immunity.
Here, the district court was able to resolve both parts of
the immunity inquiry by reference to Hilton: the facts
alleged described a violation of a constitutional right,
and, in noting that “Hilton is squarely on point,” the
court indicated that the right was clearly established.
  Gosnell is distinguishable for another reason as well.
There, the discussion in the district court’s ruling had
nothing to do with qualified immunity. Gosnell, 979 F.2d
at 1260. We were wary of making an appellate ruling
without “findings of fact and conclusions of law” from
the district court. Id. at 1261. Indeed, in general, “an
interlocutory appeal is inappropriate where substantial
steps remain to be taken in the district court before the
facts, and hence the applicable law, are brought into
focus.” Khorrami, 539 F.3d at 787. In the present case,
nothing needs to be cleared up, and so there would be
no point to a remand for an explicit ruling on qualified
immunity.
  Finally, accepting jurisdiction over this appeal is con-
sistent with the Supreme Court’s reminder that qualified
immunity is “both a defense to liability and a limited
‘entitlement not to stand trial or face the other burdens
of litigation.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1946 (2009)
(quoting Mitchell, 472 U.S. at 526). Appeals from denials
of motions raising the defense are allowed “without
regard to the district court’s reasons; it is enough that a
given order prolongs the litigation and thus (further)
impinges on a defendant’s potential right not to be
6                                               No. 09-1043

sued.” Asher v. Baxter Int’l, Inc., 505 F.3d 736, 739-40
(7th Cir. 2007) (citing Fairley v. Fermaint, 482 F.3d 897
(7th Cir. 2007)). (This is not to say that every minor post-
ponement gives rise to a right to appeal; normal
scheduling orders designed to facilitate an informed
ruling on the defense are permissible. See Khorrami,
539 F.3d at 786.) The district court’s order gave no indi-
cation that it intended to reserve ruling on any of the
arguments raised in the motion to dismiss. By signaling
its decision on both halves of the qualified immunity
inquiry, the district court set the stage for the defen-
dants’ interlocutory appeal.


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


                             A
  We consider first the question whether the facts Hanes
alleged describe a constitutional violation. See Pearson,
129 S. Ct. at 815-16, 818. Hanes argues that they do, based
on the idea that the Equal Protection Clause protects
invidious discrimination against even one person. Under
that theory, “the plaintiff alleges that she has been inten-
tionally treated differently from others similarly situated
No. 09-1043                                                7

and that there is no rational basis for the difference
in treatment.” Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000).
  In Hilton, we relied on Olech to explain how a class-of-
one claim could be made against police officers for
unequal enforcement of the law. Hilton, 209 F.3d at 1007.
The plaintiff there had alleged that throughout a long-
running feud with his neighbors, the police were not
evenhanded and usually cited or arrested only him. Id.
at 1006. We recognized a claim under a class-of-one
theory for unequal police protection, but held that the
plaintiff could not survive summary judgment because
he had not shown that the officers’ unequal enforcement
of the law was motivated by personal animus unrelated
to official duties. Hilton, 209 F.3d at 1007-08. It is true
that some more recent cases have cast doubt on the
animus requirement, suggesting that the plaintiff need
show only that no rational reason supports the unequal
treatment. See United States v. Moore, 543 F.3d 891, 898
(7th Cir. 2008) (collecting cases). Because Hanes alleged
personal animus, thereby meeting the more onerous
standard, we need not resolve the tension identified in
Moore. Hanes’s complaint follows Hilton to a “T” (perhaps
because the plaintiff’s lawyer is the same in both cases),
and the officers have never argued that it fails to state
a claim under that case.
   The officers’ central argument is that we should recon-
sider Hilton in light of the Supreme Court’s recent
holding in Engquist that public employers cannot be
liable for class-of-one equal protection violations. Engquist
8                                               No. 09-1043

undermines Hilton, the officers argue, because it holds that
the class-of-one theory is poorly suited to government
actors who exercise “discretionary authority based on
subjective, individualized determinations.” Engquist, 128
S. Ct. at 2153. The exercise of such discretion may lead to
unequal treatment, but the Equal Protection Clause
is not violated, the Court explained, “because treating
like individuals differently is an accepted consequence
of the discretion granted.” Id. at 2154. Although
Engquist limited its holding to public employment, id.
at 2156, the Court illustrated its reasoning with an
example from law enforcement: a traffic officer who
cannot possibly stop all speeding drivers and has no
way to distinguish among them literally treats “unequally”
the one driver that she does stop. But that stop
does not violate the Equal Protection Clause because
discretion is inherent in the act of singling out one
driver from the crowd. Id.
   The Supreme Court’s reasoning in Engquist sheds light
on the reach of its holding. First, the Court emphasized
that the judgments unsuited to a class-of-one claim are
typically “subjective and individualized, resting on a
wide array of factors that are difficult to articulate and
quantify.” Id. at 2154-55. That describes employment
decisions because treating like individuals differently
in the employment context is “par for the course.” Id. at
2155. Second, the Court noted that the constitutional
constraints on government are much less onerous when
it acts as employer as compared to acting as sovereign.
Id. at 2151. Finally, the Court recognized that, in the
employment context, an uncabined class-of-one theory
No. 09-1043                                                 9

risks making a constitutional case out of every decision
by a government employer. Id. at 2156 (citing Connick v.
Myers, 461 U.S. 138, 143 (1983)).
  The lesson we take from this is that context matters.
Our task is to apply the Engquist approach to claims that
the police have inflicted unequal treatment on a citizen
for no reason other than malice. In this setting, we con-
clude, it is not possible to dismiss a complaint based on
broad generalities. Although the police enjoy broad
freedom of action, Hilton, 209 F.3d at 1007-08, their dis-
cretion is much narrower than the discretion given
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.” Terry v. Ohio, 392 U.S. 1, 21 (1968). And
while employment decisions are inherently subjective,
“[s]ubjective intentions play no role” in evaluating
police seizures under the Fourth Amendment. Whren v.
United States, 517 U.S. 806, 813 (1996). Second, police
officers, in contrast to public employers, exercise the
government’s sovereign power. Accordingly, constitu-
tional constraints on police power are the norm. Finally,
although courts are reluctant to subject routine employ-
ment decisions to constitutional scrutiny, asking a court
to determine whether a police officer’s act was constitu-
tional is not at all unprecedented. For all these reasons,
Engquist does not support the officers’ argument that
malicious police conduct is off-limits from class-of-one
claims.
10                                              No. 09-1043

  In addition to their direct argument based on Engquist,
the officers point to two circuit court decisions in
support of their position. First, the Eighth Circuit has
held that a class-of-one claim cannot be made against
police based on their decisions about whom and how to
investigate, because of the discretion inherent in those
decisions. Flowers v. City of Minneapolis, 558 F.3d 794, 799-
800 (8th Cir. 2009). But the Eighth Circuit’s one-
paragraph discussion of the issue did not consider the
objective constraints on police discretion, see, e.g., Whren,
517 U.S. at 806. Instead, it merely made the general obser-
vation that officers’ “decisions regarding whom to in-
vestigate and how to investigate are matters that neces-
sarily involve discretion.” Flowers, 558 F.3d at 799. Not
all discretion is absolute, however, and we are concerned
here with the constitutional limits on official authority.
  The officers also rely on our application of Engquist to
prosecutorial discretion in Moore, where we explained that
“the discretion conferred on prosecutors in choosing
whom and how to prosecute is flatly inconsistent with a
presumption of uniform treatment.” Moore, 543 F.3d at
901. Moore simply honors the rule that prosecutorial
conduct is absolutely immune from civil liability because
prosecutors need unfettered discretion. Imbler v. Pachtman,
424 U.S. 409, 426 (1976). By contrast, police officers are
protected only by qualified immunity because they have
“less complex discretionary responsibilities.” Harlow
v. Fitzgerald, 457 U.S. 800, 807 (1982).
  Engquist does show that some discretionary police
decision-making is off-limits from class-of-one claims. One
No. 09-1043                                               11

example comes from the Supreme Court’s own opinion,
which discusses the traffic cop who has no way to dis-
tinguish among many speeding drivers. Engquist, 128 S. Ct.
at 2156. But the officer who repeatedly arrests someone
solely because of malice does have a way to distinguish
between the citizen repeatedly arrested and the citizen
left alone: the officer hates the arrestee. The officer moti-
vated by malice alone is not exercising discretion and
is not weighing the factors relevant to the officer’s duties
to the public. We conclude, therefore, that Engquist
does not undermine Hilton and that Hanes has satisfied
the first element of the qualified-immunity analysis: he
has stated a claim under a class-of-one theory.


                             B
  We must therefore reach the officers’ alternative argu-
ment, which is that even if we do not revisit Hilton, they
are entitled to qualified immunity because the right to
police protection uncorrupted by personal animus
was not clearly established at the time of the alleged
conduct. In support of that point, they note again that
there has been some indecision in this circuit over
whether there is an animus requirement. See Moore, 543
F.3d at 898. But under any view we have taken, arrests
motivated by personal animus are unconstitutional.
Second, the officers argue that the right announced in
Hilton is dicta. Hilton states, “If the police decided to
withdraw all protection from Hilton out of sheer malice,
or because they had been bribed by his neighbors, he
would state a claim under Olech.” Hilton, 209 F.3d at 1007.
12                                                 No. 09-1043

Although we described that statement as dicta in a later
case, see Lunini v. Grayeb, 395 F.3d 761, 772 (7th Cir. 2005),
even dicta may clearly establish a right, see Anderson v.
Creighton, 483 U.S. 635, 640 (1987). When a court holds
that certain conduct violates a constitutional right but
that the right was not clearly established, the constitu-
tional ruling is arguably dicta, see Pearson, 129 S. Ct. at 818,
but it still may clearly establish the law for future
conduct, id. at 819. As Judge Calabresi has explained,
“lucid and unambiguous dicta concerning the existence
of a constitutional right can without more make that right
‘clearly established’ for purposes of a qualified immunity
analysis.” Wilkinson v. Russell, 182 F.3d 89, 112 (2d Cir.
1999) (Calabresi, J., concurring). Hilton’s statement could
not be more lucid and unambiguous. Since the conduct
alleged here is almost identical to the requirements set
out in Hilton, a reasonable officer was on notice that such
conduct violates the constitution.
  The officers’ remaining arguments that the right was
not clearly established rest on other cases on which they
might have relied, but none of those decisions affects the
clarity of the law established in Hilton. First, the officers
point to Whren v. United States, 517 U.S. 806 (1996), and
DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S.
189 (1989). Neither of those cases, however, concerned
the Equal Protection Clause. In fact, the opinion in each
one contains language in support of an equal-protection
challenge to unequal enforcement of the law. Whren, 517
U.S. at 813 (“[T]he constitutional basis for objecting to
intentionally discriminatory application of laws is the
Equal Protection Clause, not the Fourth Amendment.”);
No. 09-1043                                              13

DeShaney, 489 U.S. at 197 n.3 (“The State may not, of
course, selectively deny its protective services to
certain disfavored minorities without violating the
Equal Protection Clause.”). Finally, the officers contend
that even if Engquist did not implicitly overrule Hilton, it
unsettled the law established in Hilton. (At the time they
acted, these officers could not have been relying on
Engquist in any event; the Supreme Court did not hand
down the decision until June, 2008, one month after
Hanes filed his complaint.) For the reasons we have
already given, we do not agree that it had this effect
outside the context of areas that are almost entirely dis-
cretionary.
  We therefore A FFIRM the judgment of the district court.




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