### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1605

R EX A. F REDERICKSON

, Plaintiff

‐ Appellee

,

v.

T IZOC L ANDEROS

, D ETECTIVE

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 C 3484

— Thomas M. Durkin

, Judge

.

____________________

A RGUED N OVEMBER 6, 2018

— D ECIDED N OVEMBER 26, 2019

____________________

Before W OOD

, Chief Judge

, and E ASTERBROOK and K ANNE

,

Circuit Judges

.

W OOD

, Chief Judge

. The Equal Protection Clause of the

Fourteenth Amendment requires that state actors have, at a

minimum, a rational basis for treating similarly situated peo

‐ ple di ff erently. Rex Frederickson alleges that O ffi cer Tizoc

Landeros prevented him from updating his Illinois sexual of

‐

fender registration and otherwise used his o ffi cial position to

harass Frederickson purely out of personal dislike. Without2 No. 18

‐ 1605

an updated registration, Frederickson was unable to move

from Joliet, Illinois, to nearby Bolingbrook.

The district court found that Frederickson had put forth

enough evidence to allow a jury to fi nd that Landeros had sin

‐ gled Frederickson out for unfavorable treatment, and that in

so doing Landeros was motivated solely by personal animus

and thus lacked a rational basis for his actions. Frederickson v.

Landeros, No. 11 C 3484, 2018 WL 1184730 (N.D. Ill. March 7,

2018). The district court also held, relying on our decision in

Hanes v. Zurick, 578 F.3d 491, 496 (7th Cir. 2009), that “Freder

‐

ickson’s equal protection right to ‘police protection uncor

‐ rupted by personal animus’ [was] clearly established.” 2018

WL 1184730 at *8 (quoting from Hanes ). Relying on these two

conclusions, the district court denied Landeros’s motion for

summary judgment based on quali fi ed immunity as it applied

to Frederickson’s equal protection theory. It also found that

Landeros was entitled to quali fi ed immunity on Frederick

‐

son’s theories based on a substantive due process right to in

‐

trastate travel and an alleged procedural due process right to

register under the Illinois sex o ff ender legislation. Frederick

‐

son did not cross

‐ appeal from the la tt er two fi ndings, and so

we need not address them. Landeros fi led a timely appeal

from the partial denial of quali fi ed immunity. We conclude

that the district court’s order must be a ffi rmed.

I

Because this case comes to us on an interlocutory appeal

from a denial of quali fi ed immunity, we must accept the

plainti ff ’s version of the facts. Gant v. Hartman

, 924 F.3d 445,

448 (7th Cir. 2019), relying on Johnson v. Jones

, 515 U.S. 304

(1995). The account that follows re fl ects that favorable as

‐ sumption, not any fi ndings of our own.No. 18

‐ 1605 3

In 2011, Frederickson lived in Joliet, Illinois. He was home

‐

less, and he had a prior conviction for a sex crime. That com

‐

bination meant that he had (and has) to comply with strict

registration requirements under the Illinois Sexual O ff ender

Registration Act (“SORA”). Chief among those requirements

is SORA’s mandate that he report and register every week

with the law enforcement agency for the jurisdiction in which

he resides. 730 ILCS 150/6; 730 ILCS 150/3(a). As part of that

process, he must provide certain information, including his

work address and where he had stayed over the past seven

days. If he wishes to move to a di ff erent jurisdiction, addi

‐

tional rules apply. The City of Joliet interprets SORA to re

‐ quire that a person in Frederickson’s position take two dis

‐

tinct steps: (1) register with the new jurisdiction, and (2) “reg

‐

ister out” of the old jurisdiction. Both, it says, must be done

within three days. See 730 ILCS 150/6.

Frederickson’s understanding of the system is that the law

requires only the fi rst of those actions, but we do not need to

resolve this question of state law. No one disputes that if Illi

‐

nois wanted to enact a requirement to “register out,” it could

do so. For present purposes, we can assume without deciding

that SORA requires notice of exit on an ongoing basis for a

homeless person (rather than only when the person fi rst loses

a fi xed residence, see 730 ILCS 150/6). The issue before us con

‐

cerns only Frederickson’s claim that Detective Landeros vio

‐

lated his federal rights, not whether Landeros was misinter

‐ preting a state law. We therefore turn directly to quali fi ed im

‐ munity.

For the fi rst four years during which Frederickson lived in

Joliet, Detective Moises Avila registered Frederickson and

everything went smoothly. In 2007 Detective Landeros took4 No. 18

‐ 1605

over Joliet’s SORA registrations—a post he held throughout

the period at issue here. Frederickson interacted with Lande

‐

ros every week when he updated his SORA registration.

Frederickson’s compliance with the SORA registration re

‐ quirements, while dutiful, was begrudging. To Landeros’s an

‐

noyance, Frederickson often questioned the constitutionality

of the registration requirement. He also requested seemingly

small—indeed, trivial in Landeros’s opinion—changes to his

registration. For example, Frederickson regularly asked Lan

‐

deros to specify that Frederickson was not an employee of

Greg’s Body Shop, but instead that he was an independent

contractor for that shop’s owner, Greg Buccarelli. Ma tt ers be

‐

came so contentious that Frederickson began bringing wit

‐

nesses to some of his weekly registrations. One witness pur

‐ portedly observed Landeros saying that “of all the people I

register, why are you the only one I have trouble with[?]”

Frederickson testi fi ed that Landeros often repeated variations

on this refrain.

Over the years, Landeros arrested Frederickson several

times. In 2008, he arrested Frederickson for failure to register

under SORA. Although Frederickson ultimately was acquit

‐

ted on that charge, he spent a year in jail before it was re

‐

solved. In November 2010 Landeros arrested Frederickson for

driving on a suspended license. Frederickson pleaded guilty

to this charge, although he asserts that he did so only because

his plea allowed him to get out of jail. Critically, despite the

emphasis that the dissent puts on these arrests, Frederickson

does not challenge his guilty plea or conviction in this lawsuit.

We agree that under Nieves v. Bartle tt

, 139 S. Ct. 1715 (2019),

they cannot be challenged if supported by probable cause,

and we assume that they were so supported.No. 18

‐ 1605 5

Frederickson points instead to independent evidence that,

he believes, is relevant to his equal protection claim. On Janu

‐

ary 26, 2011, Frederickson informed Landeros that he had de

‐

cided to leave Joliet. Landeros did not take well to the news:

he threatened to arrest Frederickson (on unclear grounds and

with no hint of probable cause) if Frederickson relocated. De

‐ spite this threat, Frederickson moved to Bolingbrook, Illinois,

on February 8, 2011, to take a job with J&J Autobody. On Feb

‐

ruary 9—a day after the move and a week after his last regis

‐

tration—Frederickson registered with the Bolingbrook Police

Department. Bolingbrook accepted the registration. Landeros

believed that the move also triggered a requirement under

SORA for Frederickson to “register out” of Joliet. But Freder

‐

ickson alleges that Illinois jurisdictions regularly waive notice

of exit—a fact that is relevant to what happened next.

After Bolingbrook registered Frederickson, it had to up

‐

date his record in Illinois’s Law Enforcement Agency Data

System (“LEADS”) database. To do that Bolingbrook needed

Frederickson’s LEADS fi le. But only one law enforcement

agency can “own” a LEADS fi le at a time, and only the agency

that owns the fi le can update it. That meant that Joliet had to

transfer Frederickson’s fi le to Bolingbrook before the la tt er

town could make the necessary change. When the Boling

‐

brook records clerk, Nicole Wlodarski, called Joliet, the per

‐

son to whom she spoke refused to transfer Frederickson’s

LEADS fi le. That person stated that “they knew [Frederick

‐

son] was still living in Joliet,” and that his residence was “un

‐

der investigation.” This was the only time that Wlodarski

could remember a jurisdiction’s refusing to transfer a LEADS

fi le. Sean Talbot, a Bolingbrook detective, and Diane Kloepfer,

a Bolingbrook administrator responsible for LEADS fi les for6 No. 18

‐ 1605

“most of” 19 years, also testi fi ed that they could not remem

‐

ber a jurisdiction ever refusing a fi le transfer. This incident

had nothing to do with an arrest and thus did not trigger the

Nieves rule.

Landeros then spoke to Detective Talbot about Frederick

‐

son. Landeros told Talbot that Frederickson was trying to

“pull the wool over [Bolingbrook’s] eyes” and that Frederick

‐

son was not actually residing in Bolingbrook. After this con

‐

versation, several emails were circulated within the Boling

‐

brook Police Department instructing the recipients not to ac

‐

cept Frederickson’s SORA registration because “he lives in Jo

‐

liet [ sic ] he is not homeless.”

After his initial registration in Bolingbrook on February 9,

Frederickson worked in Bolingbrook for most of the next

week while a tt empting to move his belongings from Joliet to

Bolingbrook. On February 16, Frederickson again had to reg

‐

ister. Once again, thanks to Landeros’s intervention, he had

problems doing so. That morning Frederickson was in Joliet

picking up his tools, but he did not know whether he would

be able to get a ride to Bolingbrook later that day. Because the

16th was his required registration day, just to be safe Freder

‐

ickson registered in Joliet that morning. But Frederickson

managed to get a ride to Bolingbrook that afternoon, and so,

based on his intent to remain and work in Bolingbrook for the

coming week, he went to the Bolingbrook police station to

register. The Bolingbrook police o ffi cer with whom Frederick

‐

son spoke refused to register him and ordered him to go back

to Joliet. Despite this refusal, Frederickson resided in Boling

‐

brook for the next week, living in a truck parked there.No. 18

‐ 1605 7

Frederickson tried to register in Bolingbrook again on Feb

‐

ruary 23, but his registration was again refused. This time De

‐

tective Talbot and another Bolingbrook detective told Freder

‐

ickson that if he wanted to register he had to list the locations

where he planned on staying over the next week. (No one has

ever suggested a source for this requirement, and we cannot

fi nd it either in Illinois law, Bolingbrook ordinances, or any

municipal policy.) Frederickson refused to comply with this

additional hurdle, and so the Bolingbrook detectives ordered

him to return to Joliet. Frederickson responded by going to

the Bolingbrook Village Hall to fi le a complaint against the

two detectives. But while he was there, the village clerk re

‐

ceived a call instructing her to refuse to help with—even to

accept—Frederickson’s complaint. Shortly after that, several

Bolingbrook police o ffi cers entered the Village Hall and re

‐

moved Frederickson from the premises before he could com

‐ plete his complaint.

Because of his registration troubles, Frederickson quit his

job in Bolingbrook and went back to Joliet. On February 28,

and March 1, 2, and 3 Frederickson went to the Joliet Police

Department. According to Frederickson, at least some of these

trips were a tt empts to register, and he was spurned each time.

Joliet Detective Scarpe tt a admits that he refused on February

28 to take Frederickson’s registration, instead requiring him

to come back two days later. Critically, Frederickson did not

successfully complete his registration on March 2 as SORA re

‐ quired. For that omission, Frederickson was indicted with

failing to register “on or about March 3, 2011.” People v. Fred

‐

erickson

, 2014 Il App (3d) 110733

‐ U, ¶ 36 (Ill. Ct. App. 2014).

Frederickson was convicted for failing to register by that date;

the conviction was upheld on appeal. Once again, Frederick

‐

son does not a tt empt to undermine either the facts underlying8 No. 18

‐ 1605

this conviction or the conviction itself. As the Appellate Court

of Illinois recognized, “[e]ven assuming [Frederickson’s] at

‐

tempts to register in Bolingbrook on February 23 were im

‐ properly rebuked, it is undisputed that as of March 3, 2011,

[Frederickson] had not registered as required by” SORA. Id.

at ¶ 38. But this case is not about the March 2 events. Here,

Frederickson is challenging Landeros’s actions before that

time.

II

We review the district court’s denial of quali fi ed immunity

de novo

. Estate of Clark v. Walker

, 865 F.3d 544, 549 (7th Cir.

2017). We ask whether, when viewed in the light most favor

‐

able to Frederickson, the facts show a violation of a constitu

‐

tional right, and if so, whether that constitutional right was

clearly established at the time of the alleged violation, in the

context presented by the case. Id. at 550.

We do not conduct this analysis in a vacuum. We must in

‐

stead de fi ne carefully, and at the right level of detail, the con

‐

stitutional right that is at issue. In that connection, we do not

know why the dissent has chosen to postulate various consti

‐

tutional claims that Frederickson is not raising—claims based

on the First Amendment, post at 24, or the Fourth Amend

‐

ment, post at 25, or the Due Process Clause of the Fourteenth

Amendment, id. The dissent comes closer to Frederickson’s

actual allegation when it turns to the Equal Protection Clause

of the Fourteenth Amendment, post at 26–28, but only when it

fi nally turns to the class

‐ of

‐ one theory does it fi nally hit the

mark. Surely if quali fi ed immunity law requires careful de fi

‐

nition of the asserted claim, at the correct level of generality,

see White v. Pauly

, 137 S. Ct. 548, 552 (2017), citing Anderson v.

Creighton, 483 U.S. 635, 640 (1987), then it cannot be assessedNo. 18

‐ 1605 9

based on hypothetical claims that are not presented in the

case.

We thus look exclusively at the class

‐ of

‐ one equal protec

‐

tion theory, which is the only one that Frederickson has pre

‐

served. “The classic class

‐ of

‐ one claim is illustrated when a

public o ffi cial, ‘with no conceivable basis for his action other

than spite or some other improper motive

... comes down

hard on a hapless private citizen.’” Swanson v. City of Chetek

,

719 F.3d 780, 784 (7th Cir. 2013) (quoting Lauth v. McCollum,

424 F.3d 631, 633 (7th Cir. 2005)). While the outer bounds of

class

‐ of

‐ one equal protection claims have been the subject of

much debate, see Del Marcelle v. Brown Cnty. Corp

., 680 F.3d

887 (7th Cir. 2012) ( en banc ) (a ffi rmed by an equally divided

court), some things are established. In 2000 the Supreme

Court held that it recognizes “successful equal protection

claims brought by a ‘class of one,’ where the plainti ff alleges

that she has been intentionally treated di ff erently from others

similarly situated and that there is no rational basis for the

di ff erence in treatment.” Village of Willowbrook v. Olech

, 528

U.S. 562, 564 (2000). The Olech complaint also alleged that the

Village was acting out of spite, but the Court chose not to

reach the “subjective ill will” theory. Id. at 565.

Olech therefore de fi nes the inquiry that we must conduct:

has the plainti ff (Frederickson) adequately alleged that the

state actor (Landeros) intentionally discriminated against him

without any rational basis for this di ff erential treatment. And

more particularly, we must consider not (as the dissent char

‐

acterizes it, post at 24) whether Landeros had any duty to fa

‐

cilitate Frederickson’s e ff ort to transfer his registration to Bol

‐ ingbrook; we must consider whether Landeros was entitled to10 No. 18

‐ 1605

erect extra

‐ legal barriers designed to prevent Frederickson’s

compliance with the law.

Despite the parade of horribles that the dissent fears, post

at 28, it is not so easy to fi le a complaint that complies with

Bell Atlantic Corp. v. Twombly

, 550 U.S. 544 (2007), if Olech sup

‐ plies the theory of the case. The plainti ff must present a set of

facts that plausibly depict o ffi cial action u tt erly unsupported

by a rational basis. As the Supreme Court noted in a case deal

‐ ing with local economic regulation, for purposes of the ra

‐

tional

‐ basis test “it is only the invidious discrimination, the

wholly arbitrary act, which cannot stand consistently with the

Fourteenth Amendment.” City of New Orleans v. Dukes

, 427

U.S. 297, 303–04 (1976).

Taking Dukes as a guide, we have recognized that a party

may allege that this type of “invidious” action—wholly arbi

‐

trary, inconsistent with the Fourteenth Amendment—is the

only factor distinguishing the target from the rest of the pop

‐

ulation, and that such a showing su ffi ces to prove the lack of

a rational basis. See Hanes

, 578 F.3d at 496; Geinosky v. City of

Chicago

, 675 F.3d 743, 747 (7th Cir. 2012) (“[C]lass

‐ of

‐ one

claims can be brought based on allegations of the irrational or

malicious application of law enforcement powers.”); see also

Esmail v. Macrane

, 53 F.3d 176, 178–80 (7th Cir. 1995) (holding

that when “action taken by the state, whether in the form of

prosecution or otherwise, was a spiteful e ff ort to ‘get’ [the

plainti ff ] for reasons wholly unrelated to any legitimate state ob

‐ jective ” that action violated the Equal Protection Clause (em

‐ phasis added)). With that in mind, we turn to the question

whether a trier of fact could fi nd that there was no rational

basis for Landeros’s treatment of Frederickson.No. 18

‐ 1605 11

A

Landeros’s actions occurred in 2011, and so the fi rst ques

‐

tion we must address is whether the right Frederickson is try

‐ ing to vindicate was clearly established before then. Olech was

decided in 2000, well before Landeros acted, and this court

had recognized class

‐ of

‐ one claims long before Olech

. See, e.g.

, Esmail

, 53 F.3d at 178 (7th Cir. 1995); Ciechon v. City of Chicago

,

686 F.2d 511, 522–23 (7th Cir. 1982) ( fi nding an equal protec

‐

tion violation when plainti ff was fi red but her similarly situ

‐

ated co

‐ worker was not and there was “no rational basis for

such discrimination”). Importantly, this case does not involve

state employment, and so it is una ff ected by the Supreme

Court’s recognition in Engquist v. Oregon Department of Agri

‐

culture

, 553 U.S. 591 (2008), that the class

‐ of

‐ one theory is not

cognizable in public employment cases. Id. at 605.

Bearing in mind the relation between the lack of a rational

basis in general, and actions taken solely on the basis of ani

‐

mus in particular, we have consistently stated that a class

‐ of

‐

one plainti ff ’s “right to police protection uncorrupted by per

‐

sonal animus” is clearly established. See Hanes

, 578 F.3d at

496–97 ( fi nding in 2009 that this right was established by Hil

‐

ton v. City of Wheeling

, 209 F.3d 1005 (7th Cir. 2000)). Indeed,

Hilton suggests that the right to even

‐ handed police protec

‐

tion may have been established long before that case was de

‐

cided. 209 F.3d at 1007 (citing numerous cases including Es

‐

mail

, 53 F.3d 176, and Ciechon

, 686 F.2d 511).

Let’s assume for the sake of argument, however, as the dis

‐

sent urges, that Hanes and Hilton and Geinosky were wrong

when they held that a claim is stated under Olech if “the police

decided to withdraw all protection” from a person “out of12 No. 18

‐ 1605

sheer malice,” 209 F.3d at 1007, and thus that the “right to po

‐

lice protection uncorrupted by personal animus” states the

constitutional standard too broadly. A quick look at Freder

‐

ickson’s complaint shows that his claim is far more particu

‐

larized. He is asserting that, just as in Olech

, no rational basis

supports the police o ffi cer’s action—motivated exclusively by

animus and no other discernible rational basis—to block him

from complying with an ordinary registration requirement or

from fi ling a complaint with Village authorities.

In order to prove this class

‐ of

‐ one claim, Frederickson will

eventually have to present evidence that would allow a rea

‐

sonable jury to conclude that in this particular respect he “has

been intentionally treated di ff erently from others similarly

situated and that there is no rational basis for the di ff erence in

treatment.” Hanes

, 578 F.3d at 494 (quoting Olech

, 528 U.S. at

564) (emphasis added). Although we have not de fi nitively re

‐

solved the question whether it is su ffi cient for a plainti ff

simply to allege di ff erential treatment at the hands of the po

‐

lice with no rational basis, or if a class

‐ of

‐ one claim requires a

plainti ff additionally to prove that the police acted for reasons

of personal animus, malice, or some other improper personal

motivation, see Racine Charter One, Inc. v. Racine Uni fi ed Sch.

Dist.

, 424 F.3d 677, 683–84 (7th Cir. 2005) (describing the two

lines of cases); see also Del Marcelle, 680 F.3d 887, whatever

uncertainty exists makes no di ff erence to this case in its pre

‐

sent posture. We accept (favorably to Landeros) that the only

form of class

‐ of

‐ one equal protection right that is clearly estab

‐

lished within our circuit involves government actors who sin

‐ gle out a citizen for di ff erential treatment with no objective

rational basis for that di ff erence and because of “a vindictive

or harassing purpose.” See Geinosky

, 675 F.3d at 748 n.2;

Hanes

, 578 F.3d at 496.No. 18

‐ 1605 13

Class

‐ of

‐ one complaints typically allege that a defendant

has either a personal fi nancial stake or some history with the

plainti ff

, and that this stake or history demonstrates both the

lack of a rational basis for the action and animus. In Olech

, for

example, the Olechs previously had successfully sued the Vil

‐ lage of Willowbrook. That lawsuit generated “substantial ill

will” on the part of Village o ffi cials toward the Olechs. See

Olech v. Village of Willowbrook

, 160 F.3d 386, 387–88 (7th Cir.

1998). Other examples include a defendant’s a tt empted lar

‐

ceny, Forseth v. Village of Sussex

, 199 F.3d 363, 371 (7th Cir.

2000), an a tt empt to use the plainti ff as a scapegoat, Ciechon

,

686 F.2d at 524, and a classic neighborly dispute about a fence,

Swanson

, 719 F.3d at 781–82; see also Brunson v. Murray

, 843

F.3d 698, 701–03 (7th Cir. 2016) (campaign of harassment over

a liquor store); Hanes

, 578 F.3d at 492 (long

‐ running dispute

between neighbors where, “no ma tt er who initiated the com

‐ plaint,” only Hanes was arrested).

Landeros would add two additional hurdles for Freder

‐

ickson to clear: fi rst, the identi fi cation of a similarly situated

comparator; and second, a demonstration that the state law

was clear enough to give rise to a clearly established right.

Neither of these extra requirements fi nds support in the rele

‐

vant cases.

The question is not whether the identi fi cation of a simi

‐ larly situated person would be su ffi cient to meet a plainti ff ’s

burden; it is instead whether such a showing is necessary

. Un

‐ surprisingly, if the plainti ff and a comparator share the rele

‐

vant characteristic, then di ff erential treatment may suggest an

impermissible motive. See Geinosky, 675 F.3d at 748 (“When

the parties raise a serious question whether di ff erences in14 No. 18

‐ 1605

treatment stem from a discriminatory purpose or from a rele

‐

vant factual di ff erence, the key evidence is often what was

done in the investigation or prosecution of others in similar

circumstances.”). Nonetheless, we have held that it is not al

‐

ways necessary to fi nd a similarly situated person. See

Geinosky

, 675 F.3d at 748; Swanson

, 719 F.3d at 784. “If animus

is readily obvious, it seems redundant to require that the

plainti ff show disparate treatment in a near exact, one

‐ to

‐ one

comparison to another individual.” Swanson

, 719 F.3d at 784.

We are not inclined to revisit those decisions.

The cases in which we have found the required lack of a

rational basis and animus without the use of a comparator

have involved plainti ff s who were subjected to arbitrary and

unjusti fi ed exercises of government power. When viewing the

facts in Frederickson’s favor, that is what one sees in his situ

‐

ation. As our recitation of the facts shows, his complaint re

‐

lates to the barricades that Landeros was placing in the way

of his registrations (whether entry or exit), not the occasional

and uncontested convictions for failure to register or driving

without a valid license. No law enforcement o ffi cer involved

in this case could recall similar obstruction happening in his

experience. Bolingbrook o ffi cials stated that Frederickson’s

registration was the only one that village had ever denied.

Landeros prompted city workers to spurn Frederickson’s ef

‐

forts to fi le complaints and to give him the run

‐ around. Just

as Geinosky did not need to identify another person who re

‐

ceived twenty

‐ four bogus parking tickets, Geinosky

, 675 F.3d

at 748, and Swanson did not need to fi nd a neighbor equally

hated by his town’s mayor for building a fence next to the

mayor’s home, Swanson

, 719 F.3d at 781, 784–85, Frederickson

does not need to identify a homeless o ff ender whose e ff ort toNo. 18

‐ 1605 15

move to a di ff erent jurisdiction Landeros blocked for no rea

‐

son at all, or out of simple invidiousness. To place that re

‐ quirement on Frederickson would be to “elevate form over

substance.” Geinosky

, 675 F.3d at 748. Frederickson “has iden

‐

ti fi ed his speci fi c harasser, provided a plausible motive and

detailed a series of alleged actions

... that appear illegitimate

on their face.” Swanson

, 719 F.3d at 785.

With respect to SORA’s requirements, Landeros seems to

be saying that he could not have known whether his activities

were permissible and thus no one could infer personal ani

‐

mus from this record. As he puts it, “[t]here is no clearly es

‐

tablished law making it illegal for an o ffi cer to investigate a

homeless sex o ff ender to determine whether he lives where

he says he does, and then refuse to transfer a LEADS fi le

pending the results of the investigation.” But no one says that

there is such a law, and that is not a fair depiction of Freder

‐

ickson’s claim. The question at the heart of any class

‐ of

‐ one

case is whether the defendant arbitrarily used the powers

given to him by the state to deny equal treatment to the plain

‐

ti ff

. Quali fi ed immunity does not require us to catalogue

every possible way that a police o ffi cer might abuse his power

before fi nding him liable for that abuse. The point is that the

state actor may not use his authority to harass or abuse some

‐

one in a way that re fl ects invidious discrimination or a wholly

arbitrary act and that can be explained exclusively as the re

‐

sult of personal dislike.

Similarly, the fact that SORA is a complex statute, and that

courts are only now exploring how it interacts with a regis

‐

trant’s due process or other constitutional rights, does not

muddle the law around class

‐ of

‐ one equal protection claims.

See, e.g.

, Beley v. City of Chicago

, 901 F.3d 823 (7th Cir. 2018)16 No. 18

‐ 1605

(analyzing the interaction between SORA and the Due Pro

‐

cess Clause); Saiger v. City of Chicago

, 37 F. Supp. 3d 979, 984–

86 (N.D. Ill. 2014) (same); Derfus v. City of Chicago

, 42 F. Supp.

3d 888, 897–99 (N.D. Ill. 2014) (same).

A simple hypothetical shows why this is so, and at the

same time illustrates why, contrary to the dissent’s argument,

post at 25, our decision creates no con fl ict with Beley. Beley in

‐

volved the City of Chicago’s alleged failure to have proce

‐

dures in place to allow homeless o ff enders to register. See Be

‐ ley

, 901 F.3d at 824. In that case we held that SORA registrants

have no liberty interest in registering under SORA, and thus

the Due Process Clause provides them no protection. Id. at

826–28. Although Beley had not yet been decided when the

district court acted, its grant of summary judgment for Lan

‐

deros on his procedural claim anticipated Beley ’s holding. Im

‐ agine, however, that the City of Chicago registered everyone

without incident except Latinos. That would obviously create

an equal protection problem, regardless of the compatibility of

the statute with due process. Or, closer to our case, imagine

that the City refused to register one person against whom the

Chief of Police had a personal vende tt a. Again, regardless of

whether the Due Process Clause is violated by the City’s re

‐ fusing to register that o ff ender, the City’s actions would raise

the same kind of class

‐ of

‐ one equal protection claim we have

here. In other class

‐ of

‐ one cases, we have recognized that an

equal protection violation may have occurred even though no

due process violation was present. See, e.g.

, Geinosky

, 675 F.3d

at 750 (dismissing Geinosky’s due process claim); Esmail

, 53

F.3d at 180 (distinguishing due process claims from a class

‐ of

‐

one equal protection claim because the la tt er “does not re

‐ quire proof of a deprivation of life, liberty, or property”). WeNo. 18

‐ 1605 17

thus conclude that Frederickson’s right to register as a sex of

‐

fender or to fi le complaints with the local authorities without

being blocked by a police o ffi cer who acts exclusively out of

animus was clearly established at the time of these events.

B

This brings us to the second part of the quali fi ed

‐ immun

‐ ity analysis: whether the facts Frederickson has asserted de

‐

scribe a violation of the Equal Protection Clause and su ffi ce to

defeat summary judgment. We agree with the district court

that the answer is yes. Frederickson has introduced evidence

that would allow a jury to fi nd both that Landeros had no ob

‐ jective rational basis to prevent his move to Bolingbrook, and

that Landeros took a ffi rmative steps to block his move for rea

‐

sons of personal animus.

Landeros’s actions were, according to every law enforce

‐

ment o ffi cer deposed (including Landeros himself), unprece

‐

dented and unexplainable. Despite their decades of combined

experience, no o ffi cer from Bolingbrook or Joliet could recall

a jurisdiction’s ever refusing to transfer a LEADS fi le in any

instance other than this one. Bolingbrook’s refusal to register

Frederickson and the many steps Landeros took to block

Frederickson’s access to the registration machinery were sim

‐ ilarly extraordinary. Indeed, Bolingbrook’s representative

con fi rmed that Frederickson was the only person that Boling

‐

brook had ever refused to register.

Landeros argues that despite all this, we should still dis

‐

cern a rational purpose for his actions: he stopped Frederick

‐

son’s fi le transfer because he was in the process of investigat

‐ ing Frederickson’s alleged move from Joliet to Bolingbrook.

But there we slip into the forbidden realm of disputed facts.18 No. 18

‐ 1605

There is signi fi cant evidence undermining Landeros’s expla

‐

nation, and much of that evidence comes from Landeros’s

own testimony. Landeros testi fi ed that as a general ma tt er, he

could think of no reason to refuse to put a LEADS fi le into the

moving status necessary to transfer it to a new jurisdiction.

He also testi fi ed that it was his policy to register homeless of

‐

fenders “regardless” of whether they provided accurate infor

‐

mation. If an o ff ender provided inaccurate information, Lan

‐

deros said, he would simply arrest that person. At a minimum

then, Landeros deviated from his usual policies when he took

active steps to prevent Frederickson from registering in Bol

‐ ingbrook. A fact fi nder could conclude that this is the type of

departure from a “clear standard” that the Court found rele

‐

vant in Olech

. See Engquist

, 553 U.S. at 602 (citing Olech

, 528

U.S. at 565 (Breyer, J., concurring in result)).

Landeros also admi tt ed that the reasons he provided to the

Bolingbrook Police Department about why they should not

register Frederickson may have been false. During Landeros’s

deposition, the following exchange occurred:

Q: Did you have any reason to believe that

Mr. Frederickson wasn’t homeless in Boling

‐

brook?

A: No, I don’t.

Q: And you didn’t have any reason at the

time?

A: No.

On the second day of his deposition, Landeros rea ffi rmed that

he had no reason to suspect Frederickson was lying about liv

‐ ing in Bolingbrook:No. 18

‐ 1605 19

Q: You previously testi fi ed on the fi rst day of

this deposition that you had no reason to believe

Mr. Frederickson was not homeless in Boling

‐

brook, correct?

A: Correct.

At the time of the a tt empted fi le transfer, Landeros told Bol

‐ ingbrook o ffi cers that Frederickson was trying to “pull the

wool over [Bolingbrook’s] eyes” because Frederickson “lives

in Joliet” and “d[idn’t] want to pay [Joliet’s] mandatory fee so

he is going to try and scam [Bolingbrook] into doing it.” This

is the type of obvious factual dispute that we cannot resolve

on an interlocutory appeal. If jurors were to credit Landeros’s

statements during this litigation, they could conclude that his

previously stated “investigatory” reasons for preventing

Frederickson’s registering in Bolingbrook were phony, de

‐ signed only to cover up his personal dislike of Frederickson.

Beyond Landeros’s own statements, there are additional

reasons that suggest his explanations for stymying Frederick

‐

son’s move to Bolingbrook were pretextual. As the district

court noted, SORA does not obligate the police to investigate

a resident’s purported change of address before transferring

a LEADS fi le. It instead requires that an investigation into an

o ff ender’s provided information must occur once per year.

See 730 ILCS 150/8

‐ 5. And while Landeros suggests that Fred

‐

erickson’s failure to “register out” of Joliet within three days

of his move to Bolingbrook raised the need for an investiga

‐

tion, a jury could fi nd that reason to be pretextual, in light of

evidence indicating that any such exit requirement is nor

‐ mally waived. See 730 ILCS 150/6.20 No. 18

‐ 1605

We reiterate that if Landeros merely violated state law,

that would not be enough to support Frederickson’s class

‐ of

‐

one equal protection claim. But Landeros’s actions here, ac

‐ cording to the allegations, include a ffi rmative misconduct de

‐ signed to block Frederickson’s access to registration and to

the ordinary complaint process. A similar problem occasion

‐ ally arises in connection with the Prison Litigation Reform Act

(PLRA). See, e.g.

, Hernandez v. Dart

, 814 F.3d 836, 842 (7th Cir.

2016) (“Administrative remedies are primarily ‘unavailable’

to prisoners where ‘a ffi rmative misconduct’ prevents prison

‐

ers from pursuing administrative remedies.”). Under the

PLRA, prisoners must exhaust intra

‐ prison administrative

remedies before fi ling suit in federal court. Id. at 841. But that

exhaustion requirement is excused if the intra

‐ prison admin

‐

istrative procedure is “genuinely unavailable or nonexistent.”

Lanaghan v. Koch

, 902 F.3d 683, 688 (7th Cir. 2018) (quoting

Pyles v. Nwaobasi

, 829 F.3d 860, 864 (7th Cir. 2016)). We con

‐ sistently have held that a prison employee can make admin

‐

istrative remedies unavailable by engaging in a ffi rmative mis

‐

conduct, such as giving a prisoner “blank sheets of paper

when he requested a grievance form.” Dale v. Lappin

, 376 F.3d

652, 656 (7th Cir. 2004); see also Lanaghan

, 902 F.3d at 686–87,

689 (7th Cir. 2018) (grievance procedure unavailable to an in

‐

mate when guards denied him access to a table where another

inmate would help him write the grievance, and the inmate

had lost the physical ability to write). Just so here. Landeros

may or may not have violated Illinois law, but Frederickson

has put forward su ffi cient evidence to allow a trier of fact to

fi nd that Landeros targeted him with a ffi rmative measures

that blocked his access to the administrative registration ma

‐ chinery he was supposed to use.No. 18

‐ 1605 21

Moreover, the district court found that there were relevant

factual disputes on the question whether Frederickson had

complied with the “register out” requirement, as well as

whether he was a tt empting to evade SORA’s registration re

‐ quirements more generally. This interlocutory appeal is not

the right vehicle for resolving those questions.

A trier of fact could fi nd that a need to investigate was not

the real reason for Landeros’s decision to prevent Frederick

‐

son’s registering in Bolingbrook. That fact

‐ fi nder could also

conclude that there was no need to investigate at all. This is

important because an action withstands rational basis review

so long as there is “a conceivable rational basis for the di ff er

‐

ence in treatment,” regardless of the actual reason for di ff er

‐

ential treatment. D.B. ex rel. Kurtis B. v. Kopp

, 725 F.3d 681, 686

(7th Cir. 2013). On these facts, a jury could conclude that there

was no “objectively rational basis to investigate” Frederick

‐

son’s move. Id. Beyond the need for investigation, Landeros

has put forward no conceivable rational basis for his treat

‐

ment of Frederickson, and we can think of none. Frederickson

has thus adduced su ffi cient evidence to allow a trier of fact to

fi nd that Landeros’s actions lacked any rational basis.

C

As we noted earlier, the Supreme Court’s opinion in Olech

stated that a class

‐ of

‐ one claim rises or falls based on proof of

“irrational and wholly arbitrary” government behavior. 528

U.S. at 564–65. But taking heed of the concerns Justice Breyer

expressed in his Olech concurrence, 528 U.S. at 565–66 (Breyer,

J., concurring in the result), lower courts quickly realized the

need to avoid a standard under which virtually every discre

‐ tionary decision by a government actor could lead to an ade

‐ quately pleaded class

‐ of

‐ one claim. See Hilton

, 209 F.3d at22 No. 18

‐ 1605

1008. To prevent that unintended outcome and to remain

faithful to the rational

‐ basis test, we adopted a rule requiring

a class

‐ of

‐ one plainti ff to plead and prove “that the defendant

deliberately sought to deprive him of the equal protection of

the laws for reasons of a personal nature unrelated to the du

‐

ties of the defendant’s position.” Id. Frederickson’s allegations

meet that formulation too.

The presence of animus is powerful evidence of poten

‐ tially irrational government conduct. Government action mo

‐

tivated solely by personal dislike is the canonical example of

“irrational and wholly arbitrary” government behavior. See

Hilton

, 209 F.3d at 1007 (“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 un

‐

der Olech .”). So too here; the evidence Frederickson has of

‐

fered of Landeros’s personal dislike of him o ff ers a plausible

explanation for Landeros’s otherwise potentially unexplaina

‐

ble behavior.

Frederickson and Landeros had a years

‐ long and tumul

‐

tuous relationship. Landeros harassed Frederickson in count

‐

less pe tt y ways that blocked Frederickson’s e ff orts to comply

with SORA, and he threatened Frederickson with arrest, or

actually arrested him, on multiple occasions. (We confess to

being mysti fi ed over why Landeros cared whether Frederick

‐

son lived in Joliet or any other Illinois town; if Bolingbrook

was willing to have him, he would no longer have been Lan

‐

deros’s problem.) If Frederickson were complaining only

about arrests supported by probable cause, we freely concede

that Nieves would require a di ff erent result. But his complaint

goes well beyond that. Relations between Frederickson andNo. 18

‐ 1605 23

Landeros were combative. Frederickson testi fi ed that Lande

‐

ros threatened to arrest him when he announced his plan to

leave Joliet in 2008 and when he a tt empted to do so again in

2011; there is no hint of probable cause for those actions. Fred

‐

erickson also stated that Landeros repeatedly refused to cor

‐

rect his status as an independent contractor and the name of

his employer on his registration. Landeros, in turn, com

‐ plained that he thought Frederickson gave him “trouble.”

Probable cause has nothing to do with those actions.

A jury would not be compelled to fi nd anything nefarious

about this history of interactions between a single o ffi cer and

citizen—even a homeless ex

‐ sex

‐ o ff ender. But our question is

only whether a rational jury could make that fi nding. When

combined with the series of events surrounding Frederick

‐

son’s a tt empted move, this history would entitle a jury to con

‐

clude that Landeros acted against Frederickson for no con

‐

ceivable reason other than personal animus. We therefore

agree with the district court that Frederickson has presented

su ffi cient evidence to defeat quali fi ed immunity at this stage.

***

The district court’s denial of quali fi ed immunity is

AFFIRMED.24 No. 18

‐ 1605

E ASTERBROOK

, Circuit Judge

, dissenting. Rex Frederickson,

a sex o ff ender, must register frequently in Illinois because he

does not have a fi xed address. He asserts in this suit under

42 U.S.C. §1983 that in 2011 Tizoc Landeros, a police o ffi cer

in Joliet, refused to transfer his registration records from Jo

‐

liet to Bolingbrook. The cause, Frederickson asserts, was per

‐

sonal antipathy (Frederickson sassed Landeros, who took

o ff ense), and the result included his arrest, conviction, and

imprisonment for failing to register, as well as a reduction in

his economic opportunities. Landeros asserts quali fi ed im

‐ munity from liability in damages, which requires us to de

‐

cide whether in 2011 it was “clearly established” that the

Constitution required him to facilitate the transfer of Freder

‐

ickson’s registration from Joliet to Bolingbrook. See Escondi

‐

do v. Emmons

, 139 S. Ct. 500 (2019) (citing many other deci

‐

sions).

Frederickson has many potential constitutional theories,

but all have problems. Consider them in turn.

One theory would be that Landeros violated the First

Amendment (applied to the states through the Fourteenth)

by taking adverse actions to penalize Frederickson’s speech.

The problem with this approach is that “retaliation” or “an

‐

imus” in response to speech does not support liability when

the result is an arrest supported by probable cause. Nieves v.

Bartle tt

, 139 S. Ct. 1715 (2019). That’s what happened to

Frederickson. Gaps in his sequence of registrations led to a

conviction. A state appellate court rejected his contention

that the arrest was invalid or that his lack of registration was

justi fi ed. People v. Frederickson

, 2014 IL App (3d) 110733

‐ U

(June 3, 2014). Having litigated and lost in state court, Fred

‐

erickson cannot obtain relief in federal court on a theory thatNo. 18

‐ 1605 25

requires him to show that the law was “clearly established”

in his favor. And if Frederickson can fi nd a way around the

holdings of Nieves (2019) and his own criminal conviction

(2014), that would hardly help him to show that the law was

clearly established his way in 2011. See Reichle v. Howards

,

566 U.S. 658 (2012) (holding that as of 2012 quali fi ed immun

‐ ity blocks recovery on a retaliatory

‐ arrest claim).

A second theory would be that Landeros violated the

Fourth Amendment (again applied through the Fourteenth),

if not the First Amendment, by allowing retaliatory animus

to in fl uence his registration decisions, which in turn led to

custody. But once again probable cause for Frederickson’s

arrest defeats that theory. The Fourth Amendment applies

objectively; the o ffi cer’s state of mind is irrelevant. See, e.g.,

Whren v. United States

, 517 U.S. 806 (1996). This means that

“retaliatory arrest” claims under the Fourth Amendment are

unavailing. Hartman v. Moore

, 547 U.S. 250 (2006).

A third approach would invoke the Due Process Clause

of the Fourteenth Amendment for the proposition that Lan

‐

deros deprived him of a valuable procedure: the ability to

move his registration from Joliet to Bolingbrook. That ap

‐ proach, however, runs into Beley v. Chicago

, 901 F.3d 823 (7th

Cir. 2018), which holds that the Due Process Clause does not

create or protect a right to register as a sex o ff ender. No one

wants to be a registered sex o ff ender; registration is a duty,

not an opportunity. The right, we held in Beley

, is not to be

arrested and con fi ned (or otherwise punished) for failing to

register as a sex o ff ender, when registration is required but

improperly denied. And that takes us back to the fi rst two

potential approaches, which are blocked by Nieves and

Hartman

.26 No. 18

‐ 1605

Could Frederickson bene fi t by recasting the due

‐ process

theory under the Equal Protection Clause? It’s hard to see

how. The fact remains that sex

‐ o ff ender registration is a det

‐

riment, not a bene fi t. The problem for a person who should

have been registered but was not is the risk of prosecution, a

risk that came to pass for Frederickson. Everything that Beley

said about a due

‐ process theory applies to an equal

‐ protection theory as well. Surely the opposite was not “clear

‐ ly established” in 2011.

My colleagues say that most of this analysis is irrelevant

because Frederickson has abandoned any challenge to his

arrest and con fi nement and is contesting only events that oc

‐

curred before his arrest in March 2011. Slip op. 8. He also

does not challenge his arrest in 2008. He does not contend

that his custody following either arrest was unsupported by

probable cause. But by abandoning any challenge to the ar

‐

rests and custody, Frederickson also abandoned any plausi

‐

ble theory of damages, for lack of registration in Bolingbrook

did not injure him. He was free to work or live there; his

problem was the risk of arrest and prosecution to which

non

‐ registration exposed him. To repeat the holding of Beley :

registration is a duty, not a right.

Both due

‐ process and the equal

‐ protection approaches

come with an additional problem: the Fourteenth Amend

‐

ment does not treat a violation of state law as a violation of

the federal Constitution. See, e.g., Snowden v. Hughes

, 321

U.S. 1, 11 (1944) (Equal Protection Clause); Davis v. Scherer

,

468 U.S. 183, 192–96 (1984) (Due Process Clause); Nordlinger

v. Hahn

, 505 U.S. 1, 16 n.8 (1992) (Equal Protection Clause);

Archie v. Racine

, 847 F.2d 1211, 1215–18 (7th Cir. 1988) (en

banc) (Due Process Clause); Tucker v. Chicago

, 907 F.3d 487,No. 18

‐ 1605 27

494–95 (7th Cir. 2018) (citing both due

‐ process and equal

‐ protection decisions). See also, e.g., Wilson v. Corcoran

, 562

U.S. 1, 5 (2010) (holding that, because a violation of state law

cannot be equated to a violation of the Constitution, it is im

‐ permissible for a federal court to issue collateral relief for er

‐

rors of state law) (collecting many other decisions).

Federal law does not specify where, within a state, a sex

o ff ender must register. The rule that Frederickson needed to

register in Bolingbrook if he wanted to work in Bolingbrook

(if that is indeed a rule) is one of Illinois law. Likewise any

requirement that Landeros transfer Frederickson’s LEADS

fi le from Joliet to Bolingbrook is one of Illinois law. My col

‐ leagues make clear their view that Landeros did not follow

his duties under Illinois law. But how is that a “clearly estab

‐

lished” constitutional claim? If Illinois law provided that

Frederickson, having registered in Joliet, must continue to

do so, he would not have a federal objection. This shows that

his claim arises under state law, not the Constitution. See

Wilson

, 562 U.S. at 6 (where “it would not violate federal law

for [a state] to adopt a rule authorizing what the [state actor]

did” there is no constitutional problem) (emphasis in origi

‐ nal). Cf. Gordon v. Degelmann

, 29 F.3d 295, 300 (7th Cir. 1994)

(“[F]ederal courts assess constitutional claims by assuming

that the state wants its employees to behave just as they did

and asking whether federal rules permit the state to achieve

this objective.”).

My colleagues hint at one way to derive a constitutional

violation from a violation of state law. The Equal Protection

Clause requires o ffi cial action to have a rational basis. Lan

‐

deros has not asserted a rational basis for violating Illinois

law. How could a public employee have a rational basis for28 No. 18

‐ 1605

defying state law (if state law is not itself unconstitutional)?

QED. By this approach every violation of state law becomes

a violation of the Constitution. Snowden and its successors

are defunct. Perhaps the Supreme Court will hold that some

day (though I doubt it), but it assuredly was not the law in

2011. The sequence “violation of state law demonstrates ab

‐

sence of a rational basis which shows a violation of the Con

‐

stitution” was not clearly established in 2011 and is not clear

‐ ly established today.

This leaves a fi fth theory, which my colleagues embrace:

Frederickson was a class of one who did not receive equal

treatment from Landeros. According to the majority, every

‐

one has a “right to police protection uncorrupted by person

‐

al animus.” Slip op. 2, 11, 12. And on this approach, all of the

obstacles I have mentioned vanish. Want to avoid Nieves ?

Ignore the First Amendment and assert that the retaliatory

arrest was a “class

‐ of

‐ one equal

‐ protection” problem. Disa

‐

gree with Hartman ? Same solution. Seeking to sidestep Beley ?

Class

‐ of

‐ one is your silver bullet. Trouble showing that any

of these legal propositions was clearly established in 2011?

Just assert that everyone always has had a “right to police

protection uncorrupted by personal animus.”

I don’t see how this magic can work. A class

‐ of

‐ one

equal

‐ protection claim is a subset of all equal

‐ protection

claims and therefore is subject to the rule that a violation of

state law di ff ers from a violation of the Constitution. I am

con fi dent that the Justices who decided Nieves and Hartman

thought they were making substantive decisions about the

circumstances under which public employees would be lia

‐

ble, rather than fi ddling with the names a tt ached to theories

of liability. And it does not ma tt er whether we treat Lande

‐No. 18

‐ 1605 29

ros as (merely) not following state law or as making registra

‐

tion in Bolingbrook “unavailable” (slip op. 20); neither ap

‐ proach permits a violation of state law to serve as the foun

‐

dation for a constitutional recovery. Nieves and Hartman

show that there is no general rule that personal animus

makes a public o ffi cial’s acts unconstitutional, if the acts

have some other basis—whether it be probable cause to ar

‐

rest (as in Nieves and Hartman ) or state law. I am not saying

that Landeros’s acts were supported by Illinois law. (Lande

‐

ros says they were; Frederickson says they weren’t.) The

point instead is that whether they were so supported is a

question of state law only. Frederickson’s remedy, if any, lies

under Illinois law rather than §1983.

If it has always been the law that everyone has a “right to

police protection uncorrupted by personal animus”, why did

the Supreme Court decide Hartman in 2006? Why did Reichle

hold in 2012 that quali fi ed immunity blocks recovery on a

retaliatory

‐ arrest claim? Why did we bother with Del Mar

‐

celle v. Brown County

, 680 F.3d 887 (7th Cir. 2012) (en banc)?

Del Marcelle alleged that, as a result of personal animus, lo

‐

cal o ffi cials failed to protect him from criminals and so vio

‐

lated the Equal Protection Clause on a class

‐ of

‐ one theory.

The court en banc rejected that claim, though by an equally

divided vote. On the view taken by my colleagues today, Del

Marcelle should have prevailed. He did not. A view that lost

in 2012 cannot have been clearly established in 2011.

I explained in Del Marcelle that a class

‐ of

‐ one equal

‐ protection theory is not an appropriate way to evaluate po

‐

lice o ffi cers’ conduct. 680 F.3d at 902–05 (concurring opin

‐

ion). It is not necessary to repeat that analysis, because the

question is whether the right Frederickson asserts was clear

‐30 No. 18

‐ 1605

ly established in 2011 rather than 2012 or today. But it is apt

to ask why, if it has always been established that everyone

has a “right to police protection uncorrupted by personal an

‐

imus”, that supposed right was still at issue in 2012—and

why it is not possible to fi nd support for it in the decisions of

the Supreme Court. The debate within this court in 2012, and

the lack of a good precedent in Frederickson’s favor from the

Supreme Court, bring into play the principle that “[i]f judges

... disagree on a constitutional question, it is unfair to subject

police to money damages for picking the losing side of the

controversy.” Wilson v. Layne

, 526 U.S. 603, 618 (1999).

More than that. My colleagues’ conclusion that the clear

‐ ly established right is one “to police protection uncorrupted

by personal animus” is at far too high a level of generality.

The Supreme Court has held a right is “clearly established”

only if it has been “de fi ned with speci fi city.” Escondido

, 139

S. Ct. at 503. See also, e.g., Kisela v. Hughes

, 138 S. Ct. 1148,

1152–53 (2018); District of Columbia v. Wesby

, 138 S. Ct. 577,

590 (2018); White v. Pauly

, 137 S. Ct. 548, 552 (2017); Mullenix

v. Luna

, 136 S. Ct. 305, 308 (2015); San Francisco v. Sheehan

,

135 S. Ct. 1765, 1775–76 (2015); Carroll v. Carman

, 574 U.S. 13,

16–17 (2014); Wood v. Moss

, 572 U.S. 744, 757–58 (2014);

Plumho ff v. Rickard

, 572 U.S. 765, 778–79 (2014); Stanton v.

Sims

, 571 U.S. 3, 5–6 (2013); Brosseau v. Haugen

, 543 U.S. 194,

198–99 (2004). These decisions, and more, tell us that a high

level of generality won’t do.

A right has been de fi ned “with speci fi city” when existing

judicial decisions tell the o ffi cer what to do, concretely, in a

given situation. See also, e.g., Weiland v. Loomis

, 938 F.3d 917,

919–20 (7th Cir. 2019). The proposition that everyone is enti

‐

tled to “police protection uncorrupted by personal animus”No. 18

‐ 1605 31

does not convey that information. It does not tell Landeros

when to transfer a LEADS fi le (state law does that). It does

not tell any o ffi cer where a given sex o ff ender must register,

or when a sex o ff ender under investigation in one jurisdic

‐

tion (such as Joliet) is entitled to register in another (such as

Bolingbrook). O ffi cial action uncorrupted by personal ani

‐

mus is an ideal—something to which all public employees

should aspire—but not a rule of conduct governing day

‐ to

‐ day business. It is therefore not adequate as a foundation for

damages under §1983.

Midway through their opinion, my colleagues allow that

“police protection uncorrupted by personal animus” may be

too general. Slip op. 11–12. They propose this variant: Fred

‐

erickson and similar persons have a “right to register as a

sex o ff ender or to fi le complaints with the local authorities

without being blocked by a police o ffi cer who acts exclusive

‐ ly out of animus.” Slip op. 17. This supposes that sex o ff end

‐

ers have a “right to register as a sex o ff ender”. Yet in 2018 Be

‐ ley held that they do not. My colleagues say that Beley is lim

‐

ited to due

‐ process claims. Suppose that is so. Still, where

was it clearly established before March 2011 that the Equal

Protection Clause creates a “right to register as a sex o ff end

‐

er”? My colleagues do not cite any decision so holding. As

for “ fi le complaints without being blocked ...”, no one

blocked Frederickson from fi ling complaints. He could have

fi led a complaint about Landeros at Joliet’s police depart

‐

ment but did not try to. He could have sued Landeros and

asked a state judge to direct Landeros to let him register in

Bolingbrook, but he didn’t. There is a constitutional right of

access to the courts, Bounds v. Smith

, 430 U.S. 817 (1977), but

Landeros did not interfere with it. Frederickson alleges not

that Landeros obstructed a complaint process but that Lan

‐32 No. 18

‐ 1605

deros blocked him from registering in Bolingbrook (as op

‐ posed to Joliet). The fi nal part of this formulation—“by a po

‐

lice o ffi cer who acts exclusively out of animus” might be re

‐ phrased as “by a police o ffi cer who violates state law exclu

‐ sively out of animus”, but violating state law di ff ers from

violating the Constitution, and at all events a prohibition

against “acting out of animus” simpliciter is not a clearly es

‐

tablished federal right. It con fl icts with Nieves and Hartman

while posing the same generality problem as a right to “po

‐

lice protection uncorrupted by personal animus”.