James Brunson and Brunson Package, Inc., Plaintiffs-Appellants,
Scott Murray, et al., Defendants-Appellees.
February 24, 2016
from the United States District Court for the Southern
District of Illinois. No. 3:12-cv-00225-NJR-DGW - Nancy J.
Easterbrook, Rovner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
James Brunson owns a package liquor store in Bridgeport,
Illinois. He asserts that city officials violated his
constitutional rights by refusing to renew his liquor license
and orchestrating a campaign of harassment and outright
violence. Brunson has offered evidence that after he
purchased the business, he was subjected to continued
harassment by the defendants, including Max Schauf, the
town's mayor and local liquor commissioner. When Mayor
Schauf refused to consider Brunson's application for a
routine renewal of his liquor license, Brunson was forced to
close his business and to alert state authorities to reopen.
A few weeks later, while keeping watch over his store late at
night after vandalism incidents, Brunson was attacked by one
of Schauf s associates. The two men fought until Brunson was
able to pin down the attacker and call police. Two weeks
later, Brunson was the one arrested for felony aggravated
brought this suit under 42 U.S.C. § 1983 alleging
federal claims of false arrest, denial of equal protection,
and denial of due process, as well as several state-law
claims. The district court granted summary judgment on
Brunson's federal claims and dismissed the state-law
claims without prejudice. We affirm in part and reverse in
part. We affirm summary judgment for prosecutor Lisa Wade,
who is protected by absolute prosecutorial immunity for her
role in this case. We also affirm summary judgment for the
City of Bridgeport and for all remaining defendants as to
Brunson's false arrest claim. But we reverse summary
judgment on Brunson's class-of-one equal protection
claim. We also reverse summary judgment for Schauf and hold
he is not entitled to absolute immunity on Brunson's due
process claim for Schauf's refusal to act on the liquor
Factual and Procedural Background
appeal from a grant of summary judgment to the defendants, we
construe the evidence in the light reasonably most favorable
to the plaintiffs and give them the benefit of all reasonable
inferences from that evidence, without vouching for the
objective truth of this account. E.g., Chaib v. GEO
Group, Inc., 819 F.3d 337, 340-41 (7th Cir. 2016).
Brunson's Liquor Store
summer of 2008, James Brunson purchased the only liquor store
in Bridgeport, Illinois. As part of the purchase, he obtained
a liquor license. Brunson's store was one of only five
places to buy alcohol in Bridgeport.
Police Chief Scott Murray was a frequent visitor to the shop.
He often told Brunson that he was violating state and local
liquor laws. Brunson would try to track down the laws Murray
accused him of violating, only to find they did not actually
exist. On one occasion, Chief Murray told Brunson that he had
to be a Bridgeport resident to own a liquor business.
Brunson, finding this odd, called Bridgeport Mayor Max
Schauf, who was also the local liquor commissioner. Schauf
"confirmed" that such a law was on the books, but
it was not.
is evidence that Schauf s interest in Brunson's business
was a matter of self-interest. First, Schauf had made a
competing offer to purchase the store and had lost out to
Brunson. Also, Schauf already owned or had an interest in one
of the other establishments in town that served alcohol - Red
Hills Veterans Club-by way of subterfuge. The Veterans Club
was ostensibly run by Beverley Pruez. An investigation by the
Illinois Liquor Control Commission revealed that Pruez had a
romantic relationship with Schauf, who had owned the club and
signed liquor license renewals under the table for Pruez. And
Schauf's son Mark would open another Bridgeport bar and
restaurant called "The Place to Be." Since Schauf
was the local liquor commissioner, this type of
self-regulation would of course be verboten.
2010 Liquor License Renewal
April 2010, Brunson applied to renew his liquor license
several weeks before it would expire. This is typically a
simple process. A licensee with no violations is entitled to
a pro forma license renewal. Instead, Chief Murray
visited for an inspection. Brunson asked if there would be
any trouble with the license renewal. Chief Murray told him
to hire a lawyer. Receiving no updates on the status of his
application, Brunson called Schauf the day his license was
set to expire. Schauf told Brunson that he would not be
renewing the license in time and did not know when he would
make a decision. On May 1, with Mayor Schauf running out the
clock, Brunson was forced to shutter his business and hire
contacted the state Commission, which assigned Special Agent
Randal Mendenhall to investigate. Schauf told Mendenhall that
he was taking time to review Brunson's license.
Mendenhall pointed out that under state law, Schauf did not
have this type of discretion: Schauf could renew or not renew
the license, but he was not entitled to delay indefinitely.
The state Commission ordered that Brunson be allowed to
operate the store pending a hearing.
re-opened his store, prompting another visit from Chief
Murray to ask: "What makes you think you can reopen your
store when we say you can't." Brunson's liquor
supplier also received a call from the city clerk saying it
could no longer sell to Brunson. Brunson showed Murray the
Commission's order, and the supplier continued to sell to
Brunson when the city clerk could not give any specific
reason for the prohibition. Shortly before the
Commission's scheduled hear- ing over Brunson's
license, Schauf renewed the license without comment or
explanation and backdated it to make it appear as if he had
renewed it on time.
The Violent Events of August 7, 2010
experience as a store owner worsened still further in the
summer of 2010. One weekend in July, Brunson discovered that
someone had attempted to break into the store by trying to
remove the back door from its hinges. The act appeared to be
both premeditated and at least a little sophisticated. The
vandal had left behind a flashlight and safety glasses and
had chipped away the door to get at the dead bolt. Chief
Murray visited the scene but dismissed the incident as the
work of teenagers. He did not file a police report. The
following weekend, Brunson discovered that the compressor
outside his store had been vandalized. He again called police
but found no satisfaction.
a pattern, and finding little help from the local police,
Brunson turned to self-help. He stood guard over his store
the next weekend, armed with a loaded gun. A little past 3:00
a.m. on August 7, Brunson noticed a car crawling back and
forth past his store. Then the car stopped, a man emerged,
and Brunson heard the store's front windows shatter. He
hurried to the scene and found Jody Harshman-a convicted
felon, an off-and-on employee at Mayor Schauf's
businesses, and a friend of the Schauf family.
raised a hammer and turned on Brunson, who in turn raised his
gun. Harshman thought Brunson was bluffing and moved toward
him. Brunson, who was not bluffing, pulled the trigger but
the gun jammed. Harshman threatened, "Now you're
f***ing dead, " and swung the hammer at Brunson. Brunson
blocked the blow and the two men fought. Brunson's gun
fired and Harshman fled.
did not disengage. Trailing Harshman at a distance, he called
authorities. Before police arrived, Harshman tossed his
hammer away, and in doing so caught sight of Brunson.
Harshman charged at Brunson, who felled Harshman with a blow
to the face. When Harshman tried to get up, Brunson knocked
him down again with a kick. Brunson fixed the jam on his gun
and held Harshman at gunpoint until police arrived. Brunson
also noticed a car parked nearby with Mark Schauf-son of
Mayor Schauf and a friend of Harshman-inside. As Harshman was
being placed in an ambulance, Chief Murray reached the scene
and took over the investigation. Brunson gave his account of
the incident; he also pointed Murray's attention to Mark
Schauf and asked whether Murray should be involved in the
officer at the scene, Officer Dooley later explained the
significance of this exchange. There was no good reason for
Mark Schauf to have been at the scene in the early hours of
the morning. In Dooley's opinion, there was a
"likelihood that Mark Schauf may have been an accomplice
involved in planning or carrying out the crime, " a
suspicion Dooley said Murray shared. And given that
Mark's father was Chief Murray's boss, "Murray
should not have investigated this case himself." Dooley
believed that officers from a different
jurisdiction-preferably the state police-should take over the
investigation. Nonetheless, Chief Murray stayed on the case.
weeks later, on August 20, both Harshman and Brunson were
arrested. Harshman was charged with criminal damage to
property and pled guilty to a misdemeanor. Brunson was
charged with felony aggravated battery. He pled not guilty.
At least at the time of the district court's decision in
2014, that case was still pending.
§ 1983 suit alleged violations of both federal and state
law by Mayor Schauf, Chief Murray, State's Attorney Lisa
Wade, Harshman, the city of Bridgeport, and Lawrence County.
The three federal-law claims were: (1) false arrest, (2)
denial of equal protection under the Fourteenth Amendment,
and (3) denial of due process under the Fourteenth Amendment.
The three state-law counts were: (1) tortious interference
with business expectation, (2) conspiracy, and (3) tortious
supervisory liability against the city and county.
defendants' motions for summary judgment, the district
court first held that State's Attorney Wade was
absolutely immune from liability for her role in prosecuting
Brunson for battery and that Lawrence County was entitled to
summary judgment because Brunson failed to respond to the
county's motion. On the merits, the district court
granted summary judgment to all defendants on the false
arrest claim (Count 1) because there was probable cause to
arrest Brunson for battery. The court granted summary
judgment on the equal protection claim (Count 2) because
Brunson did not have evidence of similarly situated
comparators. The court granted summary judgment on the due
process claim (Count 3) based on Killinger v.
Johnson, 389 F.3d 765 (7th Cir. 2004), where we said
that a local Illinois liquor commissioner had absolute
judicial immunity even if his official actions were riddled
with errors. The district court declined supplemental
jurisdiction over the three state-law claims and dismissed
them without prejudice.
review a grant of summary judgment de novo. United
Central Bank v. KMWC 845, LLC, 800 F.3d 307, 310 (7th
Cir. 2015). As noted, we construe the evidence in the light
most favorable to Brunson as the non-moving party and give
him the benefit of all reasonable inferences in his favor.
Tolan v. Cotton, 572 U.S. -, 134 S.Ct. 1861 (2014);
Boston v. U.S. Steel Corp., 816 F.3d 455, 462 (7th
claims that prosecutor Wade participated in his false arrest
and deprived him of the equal protection of the laws. She is
entitled to summary judgment based on absolute prosecutorial
first involvement with Brunson's case came after the
violent August 7 incident. On August 11, after the Bridgeport
police finished their investigation, Chief Murray turned the
case file over to Wade. After Murray and Wade discussed the
case, Wade's office prepared a formal charge of
aggravated battery and sought an arrest warrant, which was
issued on August 20. Before the arrest, Wade also spoke with
Officer Dooley, who confirmed that Chief Murray alerted her
to Mark Schauf's presence at the scene. Wade also
recognized Chief Murray's possible conflict of interest.
Wade would later appear on behalf of the State at
Brunson's probable cause hearing.
are absolutely immune from liability "for their core
prosecutorial actions." Lewis v. Mills, 677
F.3d 324, 330 (7th Cir. 2012), citing Hartman v.
Moore,547 U.S. 250, 261-62 (2006) (prosecutor "is
absolutely immune from liability for the decision to
prosecute"); see also Spiegel v. Rabinovitz,121 F.3d 251, 257 (7th Cir. 1997) ("Under Illinois law,
the State's Attorney ... is vested with exclusive
discretion in the initiation and management of a criminal
prosecution."). When a prosecutor performs investigative
or administrative actions, however, she receives only the
qualified immunity afforded to law-enforcement officers.
Lewis, 677 F.3d at 330, quoting Buckley v.
Fitzsimmons,509 U.S. 259, 276 (1993). Core actions
covered by absolute ...