Tie goes to the police — 7th Cir. discriminatory police protection case
Case: MARCELLE v. BROWN COUNTY CORP., 10-3426 (7th Cir. 5-17-2012)
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 protection 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, interpreting 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 provide adequate police protection against private violence. [citations omitted throughout this block quote] 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 protection to the plaintiff and his wife than the police provide to other residents of Brown County. The plaintiff’s invocation of the equal protection clause of the Fourteenth Amendment supported that characterization, and so interpreted the suit presented a “class of 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 protection 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.