In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1822

JOSEPH A. LUNINI, JR.,

Plaintiff-Appellee,

v.

CHARLES V. GRAYEB, individually;

JOHN STENSON, individually and in

his official capacity as Chief of Police

for the City of Peoria; STUART BARDEN,

individually; and JEFFREY KICE, individually,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02-3028—Jeanne E. Scott, Judge.

____________

ARGUED NOVEMBER 9, 2004—DECIDED JANUARY 18, 2005

____________

Before FLAUM, Chief Judge, and CUDAHY and POSNER,

Circuit Judges.

CUDAHY, Circuit Judge. Following an alleged physical

altercation with Charles Grayeb, his former boyfriend,

appellee Joseph Lunini filed suit against Grayeb and three

police officers who allegedly refused to arrest Grayeb due to
2 No. 04-1822

1 The factual material here is largely drawn from the district

court’s summary of the facts in its order below. Lunini v. Grayeb,

et al., 305 F. Supp. 2d 893, 897-904 (C.D. Ill. 2004).

his position on the Peoria City Council. The suit alleged,

among other things, that the officers’ refusal to arrest

Grayeb violated Lunini’s equal protection rights under the

Fourteenth Amendment. The district court granted in part

and denied in part the defendants’ subsequent motion for

summary judgment, holding, inter alia, that the police

officers’ claims of qualified immunity fail because Lunini’s

equal protection rights were “clearly established” at the

time of the incident and material questions of fact remain

as to whether the police officers actually violated those

rights. Appellants now appeal that ruling on the narrow

question whether Lunini’s equal protection rights were indeed “clearly established” for qualified immunity purposes

at the time of the alleged incident.

I. FACTS & DISPOSITION BELOW1

In this case we attend to the aftermath of a protracted

lovers’ quarrel in which, it would seem, each party has attempted to use the official machinery of the justice system

to exact revenge on the other. It is emphatically not the sort

of case that we relish. At all times relevant to this suit the

defendant Charles Grayeb was a member of the Peoria City

Council, the defendant John Stenson was the Chief of the

Peoria Police Department, and the defendants Stuart Barden

and Jeffrey Kice were police officers with the Peoria Police

Department. Defendant Grayeb and plaintiff Joseph A.

Lunini, Jr. met in June 1995. Lunini and Grayeb began a

personal relationship with sexual overtones in June 1995,

and they began to live together in December 1995 or

January 1996. In 1997, Lunini and Grayeb moved into a

single-family home at 510 West High Street (the High
No. 04-1822 3

Street residence) in Peoria, Illinois, which Grayeb had purchased earlier that year. Grayeb is still the record owner of

the property. Lunini and Grayeb were the sole residents of

the High Street residence from 1997 until June 2000, and

Lunini’s children would visit the residence almost every

weekend.

Sometime during the first half of 2000 Lunini and Grayeb

began to have major difficulties in their relationship, and by

June a breakup was on the horizon. On June 27, 2000, after

a City Council meeting, Grayeb met with Chief Stenson and

discussed his problems with Lunini. The details of this

discussion are contested, but for our purposes it is enough

to note that Grayeb asked Stenson about how he might

have Lunini removed from the High Street residence. Lunini

claims that Grayeb later told him about this conversation

and declared that the police were willing to remove Lunini

at Grayeb’s request, though Grayeb denies making such

statements. In any event, it appears that shortly thereafter

Lunini began to make arrangements to move out of the

High Street residence.

Events came to a head on June 30, 2000 when Lunini

went to the High Street residence at approximately 4:00 a.m.,

ostensibly to retrieve a few boxes from the basement and

pack up some crystal that he owned. Grayeb came downstairs just as Lunini was placing his boxes in the front

parlor, and a confrontation ensued. Lunini alleges that

Grayeb lost his temper, swore at him, slapped him twice

in the face and punched him in the face once. Lunini also

reports that Grayeb told him to “go ahead and call the police,” boasting that the police would not help Lunini since

Grayeb was a member of the City Council. Grayeb disputes

that this altercation ever occurred, but the precise details

of the confrontation are immaterial to this appeal. After

allegedly being struck in the face, Lunini grabbed a portable telephone, dialed 911 and went outside the house. He

told the 911 operator that he had been assaulted at the

High Street residence.
4 No. 04-1822

Defendants Barden and Kice were dispatched to the scene

between 5:00 and 5:30 a.m., where they found Lunini

outside the house in his bathrobe and holding a telephone.

Lunini told Barden that he and Grayeb had gotten into an

argument about Lunini’s smoking in the house, and that

while he was packing boxes Grayeb had slapped him twice

and punched him in the face. Barden observed that Lunini

was bleeding from his lip and had blood on his hand. Lunini

also told Barden that he and Grayeb were ending a relationship and that Lunini was planning to move out. Lunini

claims that Barden and Kice laughed and “made faces”

when Lunini mentioned his relationship with Grayeb. After

Lunini declined the defendants’ offer to call an ambulance,

defendant Kice told him to “go over and sit on the curb and

don’t leave.” Barden and Kice then went to enter the house;

Lunini remained sitting on the curb outside for approximately one hour.

Meanwhile, upon seeing the police cars arrive in front of

the High Street residence, Grayeb called the police station

and asked to have Chief Stenson paged. Grayeb claims he

wanted to speak to Stenson since he was alarmed that

Lunini had entered his house at 4:30 a.m. and because he

did not know why the police had been summoned. Shortly

thereafter, Barden and Kice entered the residence. Grayeb

told Barden that Lunini was in the process of moving out

and that he and Lunini had gotten into an argument about

a cigarette Lunini had left in the house. Grayeb told Barden

that he was unaware of Lunini’s injury, and Barden observed no blood on Grayeb’s person. At some point Barden

and Kice also called for a sergeant to come to the High Street

residence since the incident involved a man of “prestige”

from the City Council. The sergeant remained there until

Barden and Kice left the scene.

While Barden was inside the house, Chief Stenson returned Grayeb’s earlier call. Grayeb and Stenson had a short

conversation, the content of which is somewhat contested,
No. 04-1822 5

and then Stenson asked to speak with Barden. Barden told

Stenson about Lunini’s claim but said there was no physical

evidence of an altercation such as overturned furniture,

broken glass or torn clothes. Barden also told Stenson that

he could not determine how Lunini had been injured since

there were no witnesses to the incident. Stenson mentioned

his June 27 conversation with Grayeb but did not ask if

Lunini was the individual Grayeb had been referring to

then. Stenson finally concluded that, under the circumstances, he could not determine whether a crime had been

committed. He told Barden that if there was insufficient

evidence to make an arrest, then he should get both parties’

account of the incident, make a police report and escort

Lunini off the property. Neither Kice nor Barden had ever

before received a phone call from Chief Stenson at a crime

scene.

Kice and Barden informed Lunini that he was to leave the

High Street property or be arrested. Lunini objected that he

lived at the residence and that it was Grayeb who should be

arrested. After Lunini was allowed to change clothes, Kice

escorted him down to the garage where Lunini relinquished

his house key, gate key and garage door opener. Barden

gave Lunini a domestic violence form and explained how he

could obtain an order of protection if he desired one. Barden

went back inside, gave a domestic violence form to Grayeb

as well, and then left the residence. Lunini also left the

residence, followed by two squad cars, and drove to the

home of his friend Terry Ricci at 2007 North Linn in Peoria.

Peoria Police Department General Order #400.01 sets

forth procedures for responding to domestic violence incidents. The Order provides that under the Illinois Domestic

Violence Act, an officer is expected to handle domestic violence in a manner similar to any other crime. In a domestic

violence situation, an officer is to make an arrest when

probable cause exists that a felony has been committed, or

that a misdemeanor or felony has been committed and the
6 No. 04-1822

2 The record reveals that Barden has in the past arrested both

males and females at crime scenes where an injured party accused

a non-injured party of physical violence. The record also shows

that the breakdown of male arrests to female arrests in domestic

violence situations is 70 percent to 30 percent. Barden has also

responded to domestic violence calls in which he did not make an

arrest, even though he observed a physical injury and the injured

person stated someone had hit him.

victim has visible signs of injury. Under Section D of General

Order #400.01, one of the circumstances under which an

arrest is not to be made is if an officer is unable to determine if a crime has been committed.2

 Factors to consider

when making an arrest include the presence of weapons at

the scene, overturned furniture and another witness at the

scene telling the officer someone struck the victim.

Lunini first attempted to bring criminal charges against

Grayeb but was told by the Assistant State’s Attorney that

the case could not be brought before a jury because it was

a “homo thing.” Lunini then brought the instant action against

Grayeb, Stenson, Barden and Kice, asserting claims under

the Fourth Amendment for violation of his right to be free

from unreasonable seizure, under the Fourteenth

Amendment for violation of his right to equal protection of

the law, under § 3604 of the Fair Housing Act, 42 U.S.C.

§ 3601 et seq., along with a state law claim for battery.

Lunini’s equal protection claim was advanced as a “class of

one” suit, alleging an improper withdrawal of police protection based on animus toward him and/or favoritism toward

Grayeb.

The defendants moved for summary judgment and on

February 27, 2004, the district court entered an order granting in part and denying in part the defendants’ motion.

Lunini v. Grayeb, et al., 305 F. Supp. 2d 893 (C.D. Ill. 2004).

Among other things, the order denied the defendants’

Motion for Summary Judgment on Lunini’s equal protection
No. 04-1822 7

claims. In so holding, the district court rejected the police

officers’ claims of qualified immunity, ruling that Lunini’s

equal protection right to be free from deliberate withdrawal

of police protection for purely personal reasons was “clearly

established” under relevant legal precedents, and that

material questions of fact remained as to whether the police

officers had violated this right. Id. at 910-12.

On March 11, 2004, the appellants filed a motion asking

the court to reconsider this part of its order. On March 12,

2004, Lunini filed a Motion to Amend Judgment asking that

the district court deny appellants summary judgment on his

Fair Housing Act and Fourth amendment claims. The latter

motion is apparently still pending in the district court. On

March 29, 2004, the appellants filed their Notice of Appeal

in the district court, and the district court stayed all

deadlines to respond to both parties’ post-order motions. To

facilitate their appeal, the appellants withdrew their motion

to reconsider on May 14, 2004. The appellants’ appeal now

comes before this Court, presenting a single narrow legal

issue: whether the district court erred in ruling that

Lunini’s equal protection rights were “clearly established”

for qualified immunity purposes at the time of the incident

in question.

II. JURISDICTION

Before proceeding to the merits of this appeal, we must

clear away some jurisdictional underbrush. The jurisdiction

of the district court rested on 28 U.S.C. §§ 1331, 1343 and

1367(a). Lunini argues that we lack jurisdiction over the

instant appeal because (1) the appellants have violated

Circuit Rule 28(a)(3) by not alerting us to Lunini’s March

12, 2004 Motion to Amend Judgment which is still pending

before the district court and (2) the district court determined that material issues of fact remain with respect to

this claim, precluding appellate review. Both of these contentions can be disposed of in fairly short order.
8 No. 04-1822

A. Violation of Circuit Rule 28(a)(3)

Circuit Rule 28(a)(3) provides, inter alia, that if an appeal

“is from an order other than a final judgment which

adjudicates all of the claims with respect to all parties,

counsel shall provide the information necessary to enable

the court to determine whether the order is immediately

appealable,” including a description of “any claims or parties [that] remain for disposition in the district court.” This

provision is intended to prevent unnecessary serial appeals

by helping the appellate court to identify outstanding legal

issues or claims that might obviate the need for an immediate interlocutory appeal. Lunini argues that we lack

jurisdiction over the instant appeal since the appellants’

brief did not mention Lunini’s pending Motion to Amend

Judgment. (Motion, Mar. 12, 2004, Supp. App. 4.)

This argument is misdirected. Lunini’s pending Motion to

Amend requests summary judgment on Lunini’s Fourth

Amendment unreasonable search and seizure claims and on

his Fair Housing Act sexual harassment claims—claims

wholly unrelated to the discrete legal issue raised in the instant appeal. (See Motion, Mar. 12, 2004, Supp. App. 4.)

While Lunini asserts that the appellants advance a qualified immunity defense to these two claims, the legal and

factual issues implicated by those claims remain distinct

from the ones presented by this appeal. In short, even conceding that the appellants failed to advise us of Lunini’s

pending Motion in violation of Local Rule 28(a)(3), there is

no basis for believing that a district court ruling on this

Motion would obviate the need for the instant appeal.

More to the point, Circuit Rule 28 is not jurisdictional.

Notwithstanding Lunini’s warning about the “specter of

serial interlocutory appeals,” (Appellee’s Br. at 3 (citing

Cleveland Hair Clinic, Inc. v. Puig, 104 F.3d 123 (7th Cir.

1997); U.S. v. Daniels, 848 F.2d 758 (7th Cir. 1988))), the

U.S. Supreme Court has expressly rejected a “one-inter-
No. 04-1822 9

locutory-appeal rule.” Behrens v. Pelletier, 516 U.S. 299, 311

(1996). Thus while Lunini may be correct that “Appellants’

brief is incomplete,” and while it may be within our discretion to sanction such an omission, it cannot be said that

we lack jurisdiction to hear the instant appeal.

B. Remaining Questions of Material Fact

Lunini next claims that we lack jurisdiction over the instant appeal since the district court’s denial of summary

judgment as to the appellants’ qualified immunity defense

was based on its conclusion that material issues of fact

remain for trial. Of course, it is undeniably true that the district court so ruled: “[T]here are triable issue of fact as to

whether Defendants deprived Lunini of police protection out

of an illegitimate animus and improper motive toward

Lunini, and for reasons unrelated to any legitimate state

objective.” (D.C. Order at 39 (citing Hilton v. City of

Wheeling, 209 F.3d 1005, 1007-08 (7th Cir. 2000).).) Nonetheless, such a determination does not thwart our jurisdiction to review the purely legal question whether, at the time

of the appellants’ alleged misconduct, the law was clearly

established that refusal to arrest Grayeb due to his position

as a city councilman constituted selective withdrawal of

police protection in violation of the Equal Protection Clause.

While we may not review a denial of qualified immunity

where doing so “would require [the Court] to decide a material issue of fact,” Omdahl v. Lindholm, 170 F.3d 730, 734

(7th Cir. 1999); Bell v. Deparrault, 367 F.3d 703 (7th Cir.

2004); Egebergh v. Nicholson, 272 F.3d 925 (7th Cir. 2001),

our precedents do not foreclose appellate review of purely

legal questions. The Supreme Court’s decision in Mitchell

v. Forsyth, 472 U.S. 511 (1985), confirms that “a district

court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwith-
10 No. 04-1822

3 The Court’s later ruling in Johnson v. Jones, 515 U.S. 304

(1995), cited by this Court in Omdahl, does not disturb this

baseline rule but merely clarifies that summary judgment orders

denying qualified immunity defenses are not reviewable insofar

as such review requires resolution of factual questions.

standing the absence of a final judgment.” Id. at 530. See

also Behrens v. Pelletier, 516 U.S. 299, 311 (1996) (“an order

denying qualified immunity, to the extent it turns on an

‘issue of law,’ is immediately appealable.”) (citations

omitted). In fact the Mitchell decision validates interlocutory review of the precise legal issue raised in the instant

appeal:

An appellate court reviewing the denial of the

defendant’s claim of immunity need not consider the

correctness of the plaintiff’s version of the facts, nor

even determine whether the plaintiff’s allegations actually state a claim. All it need determine is a question

of law: whether the legal norms allegedly violated by the

defendant were clearly established at the time of the

challenged actions or, in cases where the district court

has denied summary judgment for the defendant on the

ground that even under the defendant’s version of the

facts the defendant’s conduct violated clearly established law, whether the law clearly proscribed the

actions the defendant claims he took.

Mitchell, 472 U.S. at 528 (emphasis added).3

In the present case, the district court’s summary judgment ruling turned on both a factual determination (that

questions of material fact remain as to the police officers’

reasons for refusing to arrest Grayeb) and a legal determination (that the law regarding class of one equal protection

claims is clearly established and could have been violated

by the police officer’s alleged conduct). 305 F. Supp. 2d at

910-12. Under Mitchell and its progeny, we may review the

latter determination but not the former since, if the rule of
No. 04-1822 11

law on which Lunini relies was not clearly established at

the time of appellants’ alleged misconduct, this Court may

grant the police officers qualified immunity and dispose of

Lunini’s equal protection claims without “resolv[ing] any

factual disagreements.” Tangwall v. Stuckey, 135 F.3d 510,

515 (7th Cir. 1998). See also Saucier v. Katz, 533 U.S. 194,

202 (2001) (verifying that summary judgment is appropriate

where the alleged constitutional rights are not clearly

established).

Having validated our jurisdiction, pursuant to 28 U.S.C.

§ 1291, to consider the narrow legal question presented by

this appeal, we now turn to the merits.

III. DISCUSSION

Lunini alleges that police officers Stenson, Barden and

Kice failed to arrest Grayeb during the incident in question

solely because Grayeb was a member of the Peoria City

Council. Lunini claims that, in so doing, they impermissibly

withdrew police protection from him in violation of his equal

protection rights under a so-called “class of one” theory. We

have recognized on several occasions that “[a] class of one

equal protection claim may be brought where (1) the plaintiff

alleges that he has been intentionally treated differently

from others similarly situated and (2) that there is no

rational basis for the difference in treatment or the cause of

the differential treatment is a ‘totally illegitimate animus’

toward the plaintiff by the defendant.” McDonald v. Village

of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). See also

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Nevel

v. Vill. of Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002); but

see Bell, 367 F.3d at 709-10 (Posner, J., concurring); Hilton

v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000)

(rejecting the “no rational basis” approach since “[i]f a

merely unexplained difference in police treatment of similar

complaints made by different people established a prima
12 No. 04-1822

4 In considering a motion for summary judgment, a court must

consider all evidence in the light most favorable to the non-moving

(continued...)

facie case of denial of equal protection of the laws, the

federal courts would be drawn deep into the local enforcement of petty state and local laws.”).

The police officers respond that, at the time of the alleged

incident, the law was not “clearly established” with respect

to Lunini’s alleged rights under the circumstances and thus

that they are entitled to summary judgment on grounds of

qualified immunity. In its most basic formulation, the doctrine of qualified immunity provides that “governmental

officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v, Fitzgerald, 457 U.S. 800, 818 (1982)

(emphasis added). More than this, it is “an immunity from

suit rather than a mere defense to liability; and like an

absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526.

Accordingly where, as here, a “defendant seeks qualified immunity, a ruling on that issue should be made early in the

proceedings so that the costs and expenses of trial are

avoided where the defense is dispositive. Qualified immunity is an entitlement not to stand trial or face the other

burdens of litigation.” Saucier, 533 U.S. at 200-01 (quotations and citation omitted).

In denying the appellants’ motion for summary judgment

on Lunini’s class of one equal protection claim, the district

court held that Lunini had indeed alleged violation of a

clearly established constitutional right: “[A]ction depriving

a citizen of police protection at the purely personal request

of a government official [as Lunini alleges4

] was unrelated
No. 04-1822 13

4 (...continued)

party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The district court did so below.

to any legitimate state objective, and denied the citizen the

right to equal protection of the law.” 305 F. Supp. 2d at 911

(citing Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir.

2000) and Village of Willowbrook v. Olech, 160 F.3d 386 (7th

Cir. 1998)). We review rulings on motions for summary

judgment de novo. Reed v. McBride, 178 F.3d 849, 852 (7th

Cir. 1999). Summary judgment is warranted when the

evidence, when viewed in a light most favorable to the nonmoving party, presents “no genuine issue as to any material

fact” such that “the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). See also Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Because we

believe the district court’s ruling on this issue was erroneous, we reverse.

The touchstone of the qualified immunity inquiry is an

alleged violation of “clearly established” statutory or constitutional rights. Under this standard, we must first determine whether the conduct, as alleged, violates a constitutional or statutory right in the first place; second, the Court

must determine whether the right in question was “clearly

established” at the time of the alleged misconduct. Saucier,

533 U.S. at 200-01. The Supreme Court has elaborated on

the second prong of this test as follows:

This inquiry, it is vital to note, must be undertaken in

light of the specific context of the case, not as a broad

general proposition . . . . the right the official is alleged

to have violated must have been “clearly established” in

a more particularized, and hence more relevant, sense:

The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is

doing violates that right. The relevant, dispositive
14 No. 04-1822

5 Of course the law must provide some remedy for extreme abuses

of power by public officials. However, absent some comparative

showing of discrimination among similarly situated individuals or

classes of individuals, such a remedy cannot be obtained via the

Equal Protection Clause.

inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.

Id. (internal citations and quotations omitted). The plaintiff

bears the burden of establishing that a given right is

“clearly established,” Rice v. Burks, 999 F.2d 1172, 1174

(7th Cir. 1993), and to do so the plaintiff must demonstrate

either that a court has upheld the purported right in a case

factually similar to the one under review, or that the

alleged misconduct constituted an obvious violation of a

constitutional right. Chan v. Wodnicki, 123 F.3d 1005, 1008

(7th Cir. 1997). However, “liability is not predicated upon

the existence of a prior case that is directly on point.”

Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996).

Before we address the claims presented on their own

terms, we pause to note that Lunini’s allegations probably

do not satisfy even the first prong of the test outlined in

Saucier. That is, it is difficult to discern any equal protection violation in the circumstances of this case since Lunini

has not demonstrated that he suffered unequal treatment—

the essence of an equal protection violation is, after all,

discrimination of some sort.5

 We have previously held that

a class of one claim must fail where the plaintiff has “failed

to identify someone who is similarly situated but intentionally treated differently than he.” McDonald, 371 F.3d at

1002. Lunini has presented no evidence that the police

officers treated him differently than other citizens in the

context of domestic violence incidents. Lunini identifies no
No. 04-1822 15

6 We are cognizant of the fact that, as a general matter, whether

individuals are similarly situated is a factual question for the

jury. See Harlen Assoc. v. Vill. of Mineola, 273 F.3d 494, 499 n. 2

(2d Cir. 2001). However, where it is clear that no reasonable jury

could find that the similarly situated requirement has been met,

a grant of summary judgment is appropriate. Id.; McDonald, 371

(continued...)

similarly situated individual who has been treated differently by Peoria police, and there is no indication that the

Peoria Police Department always arrests an alleged assailant when responding to a domestic violence report—indeed

we would be surprised and alarmed if this were the case. To

the contrary, the district court notes that at least one of the

appellants has in the past “responded to domestic violence

calls in which he did not make an arrest, even though he

observed physical injury, and the injured person stated that

someone else had hit him.” 305 F. Supp. 2d at 904 (emphasis

added). Lunini’s invocation of Peoria Police Department

General Order #400.01 (setting forth the procedures for

responding to domestic violence reports) on this score is

unavailing. The provisions of that Order do not create any

explicit duty to arrest Grayeb under the circumstances, and

we have previously held that class of one arguments based

on internal government rules or standard operating procedures are insufficient—a plaintiff must show that another

similarly situated individual was in fact treated differently.

See McDonald, 371 F.3d at 1002-05 (holding insufficient

a class of one claim premised on local fire department’s

deviation from its established procedures for investigating

house fires).

In short, it is far from clear that this incident involved

anything other than an ordinary exercise of police discretion, and as such it is not obvious how the police officers’

failure to arrest Grayeb on June 30, 2000 implicates Lunini’s

rights under the Equal Protection Clause in the first place.6
16 No. 04-1822

6 (...continued)

F.3d at 1002 (affirming a grant of summary judgment where

plaintiff failed to present a triable issue as to whether he was

“similarly situated” to comparators); Bell, 367 F.3d at 709-10 (same);

Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455-56 (7th Cir.

2002) (same).

On a similar note, we also question whether, on a purely

factual level, Lunini has alleged an actual withdrawal of

police protection. There is no allegation that Grayeb posed

a continuing danger to Lunini when the police arrived at

the scene, and the facts suggest no threat of renewed assault or conflict. Under the circumstances encountered by

the police officers at the time, it would be difficult to say

that failing to arrest Grayeb amounted to a withdrawal of

physical protection in any meaningful sense.

In any event, we need not rest our decision on these general reservations since, even assuming that Lunini’s allegations present a cognizable class of one equal protection

violation, we cannot say that the law on this matter was

“clearly established” at the time of the incident. As of

June 30, 2000, there were three central class of one equal

protection precedents prevailing in this circuit, each of which

differs in important respects from the instant case. The first

is Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995), in

which we held that the plaintiff had stated a valid legal

claim under the Equal Protection Clause by alleging that he

was unable to renew his liquor license because of the ill will

of local municipal officials—“an orchestrated campaign of

official harassment directed against him out of sheer

malice.” We explained that, while a valid equal protection

claim does not require “a deprivation of life, liberty, or property,” it does require “that the action taken by the state,

whether in the form of prosecution or otherwise, was a spiteful effort to ‘get’ [plaintiff] for reasons wholly unrelated to

any legitimate state objective.” Id. at 180. In the instant
No. 04-1822 17

7 Justice Breyer wrote separately to concur, noting his concern

that, absent an allegation of ill will on the part of the government,

such a broad “rational basis” standard could “transform[ ] run-of-

(continued...)

case, aside from the fact that the official activity at issue is

entirely different from the licensing procedures implicated

in Esmail, it is not alleged that defendant police officers

bore any malice toward Lunini, much less engaged in an

“orchestrated campaign” to “get” him. Esmail thus provides

no guidance to defendant police officers with respect to the

specific situation they faced in the June 30, 2000 incident.

The next case, Olech v. Village of Willowbrook, originally

came before this Court and was subsequently affirmed by

the Supreme Court. That case involved an allegation that

municipal authorities demanded an unusually large easement over plaintiff’s property and shut off plaintiff’s water

for three months because of ill will generated by her earlier

(victorious) lawsuit against the city. In our handling of that

case, we noted that, unlike Esmail, the case “was not one of

uneven enforcement,” and we declared that a municipality

could be held liable for failure to provide basic services:

“The Village does not deny that it has a legal obligation to

provide water to all its residents. If it refuses to perform

this obligation for one of the residents, for no other reason

than a baseless hatred, then it denies that resident the

equal protection of the laws.” 160 F.3d 386, 388 (7th Cir.

1998). On appeal, the Supreme Court affirmed under an

even broader standard, declaring that class of one equal

protection claims are valid where “the plaintiff alleges that

she has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.” 528 U.S. 562, 564 (2000) (per

curiam). The Court expressly declined to reach the “alternative theory of ‘subjective ill will’ ” upon which our decision

was based. Id. at 565.7

 Here again, the instant case is dis
18 No. 04-1822

7 (...continued)

the-mill zoning cases into cases of constitutional right.” Olech, 528

U.S. at 566 (Breyer, J., concurring).

tinguishable based both on the nature of the government

services at issue and the absence of ill will (much less a

“baseless hatred”) toward the plaintiff. Of course, the

Supreme Court suggests that unequal treatment based

on mere irrationality could suffice to overcome a qualified

immunity defense, but given the circumstances of the incident at issue in the instant case, it would be difficult to

charge defendant police officers with notice of a clearly established constitutional right based on such an open-ended

pronouncement in a case arising under completely different

facts.

The final case, Hilton v. City of Wheeling, 209 F.3d 1005

(7th Cir. 2000), decided just over one month before the incident at issue in the instant case, comes closest to providing

the required notice. Hilton involved an action under 42

U.S.C. § 1983 alleging that city police were unfair in responding to complaints among neighbors. Specifically, the

plaintiff in Hilton alleged that local police arrested him

several times in response to complaints from his neighbors

(for battery, disorderly conduct and noise violations), but

they did not respond similarly to his own complaints against

those neighbors. We held that plaintiff had failed to present

a valid equal protection claim since he had presented no

evidence of improper police animus against him, but merely

alleged uneven enforcement of local laws. Id. at 1007-08.

We explained that “[i]f the police decided to withdraw all

protection from [plaintiff] out of sheer malice, or because

they had been bribed by his neighbors, he would state a

claim under Olech,” but “the absence of evidence of an

improper motive” is decisive. Id. at 1008. We concluded by

summarizing that “to make out a prima facie case [for a

class of one equal protection violation] the plaintiff must
No. 04-1822 19

present evidence that the defendant deliberately sought to

deprive him of the equal protection of the laws for reasons

of a personal nature unrelated to the duties of the defendant’s position.” Id.

Clearly, Hilton comes closest to the instant case. It involves allegations of unequal police response to complaints

by local residents; additionally, its dictum regarding actions

taken “for reasons of a personal nature unrelated to the

duties of the defendant’s position” arguably echo Lunini’s

claims with respect to the defendant police officers’ motivations for refusing to arrest Grayeb. Nonetheless, the key

word here is “arguably”; Hilton still differs significantly

from the instant case. Unlike Hilton, where it was clear that

the plaintiff was being treated differently from his neighbors, it is unclear that such is the case here. Additionally,

we are mindful of the fact that our actual holding in Hilton

ultimately vindicated the police officers’ claims of qualified

immunity, and the language which arguably encompasses

Lunini’s claims is pure dicta. We acknowledge that “liability

is not predicated upon the existence of a prior case that

is directly on point,” Nabozny, 92 F.3d at 456, yet nonetheless “[t]he contours of the right [at issue] must be sufficiently

clear that a reasonable official would understand that what

he is doing violates that right.” Saucier, 533 U.S. at 200-01.

However suggestive our dicta in Hilton, we are instructed

to conduct the “clearly established” inquiry from the defendant-official’s perspective, and in this light, a claim in a

factually dissimilar case which ultimately fails to survive a

qualified immunity defense cannot be said to sufficiently

define “the contours of the [purported] right” to any significant degree. Indeed the precise contours of class of one

equal protection rights continue to elude some of this circuit’s most capable judges. See Bell v. Duperrault, 367 F.3d

703, 709 (7th Cir. 2004) (Posner, J., concurring) (noting that

there is lingering uncertainty regarding the legal standard

applicable to class of one cases).
20 No. 04-1822

Certainly Lunini is unhappy with defendant police officers’

response to the incident at the High Street residence.

However, on this record it appears highly doubtful that any

alleged police misjudgments (if misjudgments there were)

took on constitutional proportions. While we take pains to

affirm the baseline principle that police support and

protection must be afforded to all citizens on a non-discriminatory basis, we decline to take the unprecedented step of

implying a general constitutional police duty to arrest

certain individuals during a response to an isolated domestic incident. Such a ruling would threaten to turn every

police house call into a potential federal constitutional

lawsuit. Cf. Olech, 528 U.S. at 565-66 (Breyer, J., concurring)

(warning against a rule that “would transform many ordinary violations of city or state law into violations of the

Constitution”).

IV. CONCLUSION

We are persuaded that, under the circumstances of the

instant case, an ordinary police officer could not know that

he or she risked violating Lunini’s civil rights by failing to

arrest Grayeb. Accordingly, we must conclude that the equal

protection rights alleged to have been violated in the instant

case were not clearly established at the time of the incident

at the High Street residence. The order of the district court

regarding defendant police officers’ claims of qualified

immunity is accordingly REVERSED and the case REMANDED

with instructions to enter summary judgment in favor of

defendants Stenson, Kice and Barden with respect to

Lunini’s class of one equal protection claim.
No. 04-1822 21

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-18-05