Constitutional Law — freedom of speech — equal protection

Listen to this article

United States Court of Appeals For the Seventh Circuit

Civil

Constitutional Law — freedom of speech — equal protection

It did not violate the constitutional rights of a protest leader to arrest him but not others at the rally who refused to comply with a dispersal order.

“Even considering all the facts in favor of Thayer, we cannot conclude that every reasonable officer would have understood that by arresting Thayer, the perceived ‘chief’ of the group, and not Massey and Jakes that Officer Chiczewski was violating Thayer’s right to equal protection. Cf. Geinosky, 675 F.3d at 745 (plaintiff stated class-of-one claim where defendants allegedly cited plaintiff for twenty-four bogus parking tickets) and Hanes v. Zurich, 578 F.3d 491, 492-96 (7th Cir. 2009) (defendants not entitled to qualified immunity where plaintiff alleged that defendants arrested him eight times on charges later dropped for no reason other than malicious intent). Given the uncertainly in the law and the unique factual situation at issue here, the constitutional question was not beyond dispute. See, e.g., Lunini v. Grayeb, 395 F.3d 761, 772 (7th Cir. 2005) (defendants entitled to qualified immunity where ordinary police officer could not have known that failure to arrest councilman would violate equal protection). Rather, a reasonable officer could have believed that arresting Thayer was the most effective way to gain compliance with the dispersal order.”

Affirmed.

10-1974 & 10-2064 Thayer v. Chiczewski 

Appeals from the United States District Court for the Northern District of Illinois, Darrah, J., Tinder, J.