                                   NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with Fed. R. App. P. 32.1




                     United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604
                                    Submitted August 25, 2010*
                                     Decided August 27, 2010


                                                Before
                                FRANK H. EASTERBROOK, Chief Judge
                                JOHN L. C OFFEY , Circuit Judge

                                DANIEL A. MANION, Circuit Judge

No. 10-1400
                                                                   Appeal from the United
JOHN L. BEALES,                                                    States District Court for the
      Plaintiff-Appellant,                                         Eastern District of Wisconsin.
                v.                                                 No. 08-C-0355
C ITY OF PLYMOUTH, WISCONSIN, et al.,                              William E. Callahan, Jr.,
       Defendants-Appellees.                                       Magistrate Judge.


                                                 Order
    John Beales, who operates a pub in Plymouth, Wisconsin, contends that police and
prosecutors have violated the equal protection clause of the Constitution’s fourteenth
amendment by insisting that he operate within the law, while tolerating unlawful activ-
ity at a bar across the street that is owned by a former officer of the police force. A
magistrate judge, presiding by consent, see 28 U.S.C. §636(c), granted summary judg-
ment in favor of the defendants.
    Beales protests several things that happened many years ago, such as a demand that
he hire off-duty officers as bouncers. Nothing came of these demands (he did not hire
any off-duty officers, and none of the defendants took any adverse action), and they
are irrelevant at all events because they predate the ex-officer’s operation of Beales’s
business rival. The essence of the theory is that, although Beales concedes doing every-
thing for which he has been sanctioned (such as occasionally serving minors and allow-
ing illegal gambling), Beales is sure that the tavern across the street has done worse and
been sanctioned less often. He calls this a class-of-one equal-protection claim. See Wil-
lowbrook v. Olech, 528 U.S. 562 (2000).

   * After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 10-1400                                                                          Page 2

    One problem with this position is that it amounts to an objection to prosecutorial
discretion. Prosecutorial decisions entail selectivity. See Heckler v. Chaney, 470 U.S. 821
(1985). The Supreme Court has held that class-of-one claims are not available when the
challenged activity entails lawful discretion. See Engquist v. Oregon Department of Agri-
culture, 553 U.S. 591, 128 S. Ct. 2146, 2154–55 (2008). The sort of argument that Beales
presents—that he has been prosecuted for his misconduct, while others who committed
the same misconduct have not been prosecuted—is not novel. In FTC v. Universal-
Rundle Corp., 387 U.S. 244 (1967), the Supreme Court held that it is no defense, when of-
fered by someone who concedes violating the law. See also Moog Industries, Inc. v. FTC,
355 U.S. 411 (1958). Having held that it is proper for a prosecutor to exercise selectivity,
the Court is unlikely to conclude that selectivity is unconstitutional. Indeed, given the
rule that one person lacks standing to demand the criminal prosecution of another, see
Linda R.S. v. Richard D., 410 U.S. 614 (1973); Leeke v. Timmerman, 454 U.S. 83 (1981), it is
hard to see a case or controversy about that topic.
     The most Beales could try to do would be to defend any prosecutions against him
on the theory that the selective prosecution violates his rights. Given decisions such as
United States v. Armstrong, 517 U.S. 456 (1996) (selective-prosecution defense depends
on proof that the prosecutor systematically prosecuted persons of one race, or other
suspect characteristic, and not members of other races who committed the same of-
fense), and United States v. Bass, 536 U.S. 862 (2002) (same), that defense would be un-
likely to succeed. The current suit is not an attempt to fend off prosecution, however,
but proposes to hold police and prosecutors personally liable for not prosecuting plain-
tiff’s business rival. The magistrate judge did not err in dismissing this suit.
                                                                                 AFFIRMED
