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Brunson v. Murray

United States Court of Appeals, Seventh Circuit

December 13, 2016

James Brunson and Brunson Package, Inc., Plaintiffs-Appellants,
Scott Murray, et al., Defendants-Appellees.

          Argued February 24, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cv-00225-NJR-DGW - Nancy J. Rosenstengel, Judge.

          Before Easterbrook, Rovner, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Plaintiff 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 battery.

         Brunson 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 license renewal.

         I. Factual and Procedural Background

         On 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).

         A. Brunson's Liquor Store

         In the 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.

         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.

         There 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.

         B. 2010 Liquor License Renewal

         In 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 counsel.

         Brunson 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.

         Brunson 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.

         C. The Violent Events of August 7, 2010

         Brunson's 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.

         Sensing 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.

         Harshman 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.

         Brunson 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 investigation.

         Another 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.

         Two 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.

         D. Procedural History

         Brunson's § 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.

         On 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.

         We 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 Cir. 2016).[1]

         II. Prosecutorial Immunity

         Brunson 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 immunity.

         Wade's 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.

         Prosecutors 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 ...

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