Rex Frederickson v. Tizoc Landeros

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18‐1605
REX A. FREDERICKSON,
                                                   Plaintiff‐Appellee,
                                 v.

TIZOC LANDEROS, DETECTIVE,
                                               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.
                     ____________________

 ARGUED NOVEMBER 6, 2018 — DECIDED NOVEMBER 26, 2019
              ____________________

   Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
   WOOD, 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 differently. Rex Frederickson alleges that Officer Tizoc
Landeros prevented him from updating his Illinois sexual of‐
fender registration and otherwise used his official position to
harass Frederickson purely out of personal dislike. Without
2                                                   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 find 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, 

 (N.D. Ill. March 7,
2018). The district court also held, relying on our decision in
Hanes v. Zurick, 

 (7th Cir. 2009), that “Freder‐
ickson’s equal protection right to ‘police protection uncor‐
rupted by personal animus’ [was] clearly established.” 

 at *8 (quoting from Hanes). Relying on these two
conclusions, the district court denied Landeros’s motion for
summary judgment based on qualified immunity as it applied
to Frederickson’s equal protection theory. It also found that
Landeros was entitled to qualified 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 offender legislation. Frederick‐
son did not cross‐appeal from the latter two findings, and so
we need not address them. Landeros filed a timely appeal
from the partial denial of qualified immunity. We conclude
that the district court’s order must be affirmed.
                                I
   Because this case comes to us on an interlocutory appeal
from a denial of qualified immunity, we must accept the
plaintiff’s version of the facts. Gant v. Hartman, 

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

(1995). The account that follows reflects that favorable as‐
sumption, not any findings 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 Offender
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 different 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 first 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 first loses
a fixed 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 qualified im‐
munity.
    For the first four years during which Frederickson lived in
Joliet, Detective Moises Avila registered Frederickson and
everything went smoothly. In 2007 Detective Landeros took
4                                                   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. Matters 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 testified 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. Bartlett, 

 (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 file. But only one law enforcement
agency can “own” a LEADS file at a time, and only the agency
that owns the file can update it. That meant that Joliet had to
transfer Frederickson’s file to Bolingbrook before the latter
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 file. 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
file. Sean Talbot, a Bolingbrook detective, and Diane Kloepfer,
a Bolingbrook administrator responsible for LEADS files for
6                                                  No. 18‐1605

“most of” 19 years, also testified that they could not remem‐
ber a jurisdiction ever refusing a file 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 attempting 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 officer 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
find 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 file 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 officers 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 attempts to register, and he was spurned each time.
Joliet Detective Scarpetta 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 attempt to undermine either the facts underlying
8                                                    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 qualified immunity
de novo. Estate of Clark v. Walker, 

 (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. 

.
    We do not conduct this analysis in a vacuum. We must in‐
stead define 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, 

 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
finally turns to the class‐of‐one theory does it finally hit the
mark. Surely if qualified immunity law requires careful defi‐
nition of the asserted claim, at the correct level of generality,
see White v. Pauly, 

 (2017), citing Anderson v.
Creighton, 

 (1987), then it cannot be assessed
No. 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 official, ‘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,

 (7th Cir. 2013) (quoting Lauth v. McCollum,

 (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., 

 (7th Cir. 2012) (en banc) (affirmed 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 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.” Village of Willowbrook v. Olech, 

 (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. 

.
     Olech therefore defines the inquiry that we must conduct:
has the plaintiff (Frederickson) adequately alleged that the
state actor (Landeros) intentionally discriminated against him
without any rational basis for this differential 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 effort to transfer his registration to Bol‐
ingbrook; we must consider whether Landeros was entitled to
10                                                   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 file a complaint that complies with
Bell Atlantic Corp. v. Twombly, 

 (2007), if Olech sup‐
plies the theory of the case. The plaintiff must present a set of
facts that plausibly depict official action utterly 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, 

, 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 suffices to prove the lack of
a rational basis. See Hanes, 

; Geinosky v. City of
Chicago, 

 (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, 

, 178–80 (7th Cir. 1995) (holding
that when “action taken by the state, whether in the form of
prosecution or otherwise, was a spiteful effort to ‘get’ [the
plaintiff] 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 find 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 first 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, 

 (7th Cir. 1995); Ciechon v. City of Chicago,

, 522–23 (7th Cir. 1982) (finding an equal protec‐
tion violation when plaintiff was fired 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 unaffected by the Supreme
Court’s recognition in Engquist v. Oregon Department of Agri‐
culture, 

 (2008), that the class‐of‐one theory is not
cognizable in public employment cases. 

.
    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 plaintiff’s “right to police protection uncorrupted by per‐
sonal animus” is clearly established. See Hanes, 578 F.3d at
496–97 (finding in 2009 that this right was established by Hil‐
ton v. City of Wheeling, 

 (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. 

 (citing numerous cases including Es‐
mail, 

, and Ciechon, 

).
   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 of
12                                                   No. 18‐1605

sheer malice,” 

, 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 officer’s action—motivated exclusively by
animus and no other discernible rational basis—to block him
from complying with an ordinary registration requirement or
from filing 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 differently from others similarly
situated and that there is no rational basis for the difference in
treatment.” Hanes, 

 (quoting Olech, 

) (emphasis added). Although we have not definitively re‐
solved the question whether it is sufficient for a plaintiff
simply to allege differential treatment at the hands of the po‐
lice with no rational basis, or if a class‐of‐one claim requires a
plaintiff 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 Unified Sch.
Dist., 

, 683–84 (7th Cir. 2005) (describing the two
lines of cases); see also Del Marcelle, 

, whatever
uncertainty exists makes no difference 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 differential treatment with no objective
rational basis for that difference and because of “a vindictive
or harassing purpose.” See Geinosky, 

 n.2;
Hanes, 

.
No. 18‐1605                                                    13

    Class‐of‐one complaints typically allege that a defendant
has either a personal financial stake or some history with the
plaintiff, 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 officials toward the Olechs. See
Olech v. Village of Willowbrook, 

, 387–88 (7th Cir.
1998). Other examples include a defendant’s attempted lar‐
ceny, Forseth v. Village of Sussex, 

 (7th Cir.
2000), an attempt to use the plaintiff as a scapegoat, Ciechon,

, and a classic neighborly dispute about a fence,
Swanson, 719 F.3d at 781–82; see also Brunson v. Murray, 

, 701–03 (7th Cir. 2016) (campaign of harassment over
a liquor store); Hanes, 

 (long‐running dispute
between neighbors where, “no matter who initiated the com‐
plaint,” only Hanes was arrested).
   Landeros would add two additional hurdles for Freder‐
ickson to clear: first, the identification 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 finds support in the rele‐
vant cases.
    The question is not whether the identification of a simi‐
larly situated person would be sufficient to meet a plaintiff’s
burden; it is instead whether such a showing is necessary. Un‐
surprisingly, if the plaintiff and a comparator share the rele‐
vant characteristic, then differential treatment may suggest an
impermissible motive. See Geinosky, 

 (“When
the parties raise a serious question whether differences in
14                                                  No. 18‐1605

treatment stem from a discriminatory purpose or from a rele‐
vant factual difference, 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 find a similarly situated person. See
Geinosky, 

; Swanson, 

. “If animus
is readily obvious, it seems redundant to require that the
plaintiff show disparate treatment in a near exact, one‐to‐one
comparison to another individual.” Swanson, 

.
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 plaintiffs who were subjected to arbitrary and
unjustified 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 officer involved
in this case could recall similar obstruction happening in his
experience. Bolingbrook officials 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 file 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, 

, and Swanson did not need to find a neighbor equally
hated by his town’s mayor for building a fence next to the
mayor’s home, Swanson, 

, 784–85, Frederickson
does not need to identify a homeless offender whose effort to
No. 18‐1605                                                   15

move to a different 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, 

. Frederickson “has iden‐
tified his specific harasser, provided a plausible motive and
detailed a series of alleged actions … that appear illegitimate
on their face.” Swanson, 

.
    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 officer to investigate a
homeless sex offender to determine whether he lives where
he says he does, and then refuse to transfer a LEADS file
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‐
tiff. Qualified immunity does not require us to catalogue
every possible way that a police officer might abuse his power
before finding 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 reflects 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, 

 (7th Cir. 2018)
16                                                   No. 18‐1605

(analyzing the interaction between SORA and the Due Pro‐
cess Clause); Saiger v. City of Chicago, 

, 984–
86 (N.D. Ill. 2014) (same); Derfus v. City of Chicago, 

, 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 conflict with Beley. Beley in‐
volved the City of Chicago’s alleged failure to have proce‐
dures in place to allow homeless offenders to register. See Be‐
ley, 

. 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. 

 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 vendetta. Again, regardless of
whether the Due Process Clause is violated by the City’s re‐
fusing to register that offender, 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, 

 (dismissing Geinosky’s due process claim); Esmail, 

 (distinguishing due process claims from a class‐of‐
one equal protection claim because the latter “does not re‐
quire proof of a deprivation of life, liberty, or property”). We
No. 18‐1605                                                  17

thus conclude that Frederickson’s right to register as a sex of‐
fender or to file complaints with the local authorities without
being blocked by a police officer 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 qualified‐immun‐
ity analysis: whether the facts Frederickson has asserted de‐
scribe a violation of the Equal Protection Clause and suffice 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 find both that Landeros had no ob‐
jective rational basis to prevent his move to Bolingbrook, and
that Landeros took affirmative steps to block his move for rea‐
sons of personal animus.
    Landeros’s actions were, according to every law enforce‐
ment officer deposed (including Landeros himself), unprece‐
dented and unexplainable. Despite their decades of combined
experience, no officer from Bolingbrook or Joliet could recall
a jurisdiction’s ever refusing to transfer a LEADS file 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
confirmed 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 file 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 significant evidence undermining Landeros’s expla‐
nation, and much of that evidence comes from Landeros’s
own testimony. Landeros testified that as a general matter, he
could think of no reason to refuse to put a LEADS file into the
moving status necessary to transfer it to a new jurisdiction.
He also testified that it was his policy to register homeless of‐
fenders “regardless” of whether they provided accurate infor‐
mation. If an offender 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 factfinder could conclude that this is the type of
departure from a “clear standard” that the Court found rele‐
vant in Olech. See Engquist, 

 (citing Olech, 

 (Breyer, J., concurring in result)).
   Landeros also admitted 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 reaffirmed that
he had no reason to suspect Frederickson was lying about liv‐
ing in Bolingbrook:
No. 18‐1605                                                   19

           Q: You previously testified on the first 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 attempted file transfer, Landeros told Bol‐
ingbrook officers 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 file. It instead requires that an investigation into an
offender’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 find 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 affirmative 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, 

 (7th Cir.
2016) (“Administrative remedies are primarily ‘unavailable’
to prisoners where ‘affirmative misconduct’ prevents prison‐
ers from pursuing administrative remedies.”). Under the
PLRA, prisoners must exhaust intra‐prison administrative
remedies before filing suit in federal court. 

. But that
exhaustion requirement is excused if the intra‐prison admin‐
istrative procedure is “genuinely unavailable or nonexistent.”
Lanaghan v. Koch, 

 (7th Cir. 2018) (quoting
Pyles v. Nwaobasi, 

 (7th Cir. 2016)). We con‐
sistently have held that a prison employee can make admin‐
istrative remedies unavailable by engaging in affirmative mis‐
conduct, such as giving a prisoner “blank sheets of paper
when he requested a grievance form.” Dale v. Lappin, 

 (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 sufficient evidence to allow a trier of fact to
find that Landeros targeted him with affirmative 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 attempting 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 find that a need to investigate was not
the real reason for Landeros’s decision to prevent Frederick‐
son’s registering in Bolingbrook. That fact‐finder 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 differ‐
ence in treatment,” regardless of the actual reason for differ‐
ential treatment. D.B. ex rel. Kurtis B. v. Kopp, 

(7th Cir. 2013). On these facts, a jury could conclude that there
was no “objectively rational basis to investigate” Frederick‐
son’s move. 

 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 sufficient evidence to allow a trier of fact to
find 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, 

                                                  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 plaintiff 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.” 

 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, 

 (“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 offers 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 petty ways that blocked Frederickson’s efforts to comply
with SORA, and he threatened Frederickson with arrest, or
actually arrested him, on multiple occasions. (We confess to
being mystified 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 different result. But his complaint
goes well beyond that. Relations between Frederickson and
No. 18‐1605                                                   23

Landeros were combative. Frederickson testified that Lande‐
ros threatened to arrest him when he announced his plan to
leave Joliet in 2008 and when he attempted 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 find anything nefarious
about this history of interactions between a single officer and
citizen—even a homeless ex‐sex‐offender. But our question is
only whether a rational jury could make that finding. When
combined with the series of events surrounding Frederick‐
son’s attempted 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
sufficient evidence to defeat qualified immunity at this stage.

                              ***

  The district court’s denial of qualified immunity is
AFFIRMED.
24                                                 No. 18‐1605

    EASTERBROOK, Circuit Judge, dissenting. Rex Frederickson,
a sex offender, must register frequently in Illinois because he
does not have a fixed address. He asserts in this suit under

 that in 2011 Tizoc Landeros, a police officer
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
offense), and the result included his arrest, conviction, and
imprisonment for failing to register, as well as a reduction in
his economic opportunities. Landeros asserts qualified 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, 

 (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.
Bartlett, 

 (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
justified. 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 that
No. 18‐1605                                                  25

requires him to show that the law was “clearly established”
in his favor. And if Frederickson can find 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,

 (2012) (holding that as of 2012 qualified 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 influence 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 officer’s state of mind is irrelevant. See, e.g.,
Whren v. United States, 

 (1996). This means that
“retaliatory arrest” claims under the Fourth Amendment are
unavailing. Hartman v. Moore, 

 (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, 

 (7th
Cir. 2018), which holds that the Due Process Clause does not
create or protect a right to register as a sex offender. No one
wants to be a registered sex offender; registration is a duty,
not an opportunity. The right, we held in Beley, is not to be
arrested and confined (or otherwise punished) for failing to
register as a sex offender, when registration is required but
improperly denied. And that takes us back to the first two
potential approaches, which are blocked by Nieves and
Hartman.
26                                                No. 18‐1605

    Could Frederickson benefit by recasting the due‐process
theory under the Equal Protection Clause? It’s hard to see
how. The fact remains that sex‐offender registration is a det‐
riment, not a benefit. 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 confinement 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, 

 (1944) (Equal Protection Clause); Davis v. Scherer,

, 192–96 (1984) (Due Process Clause); Nordlinger
v. Hahn, 

, 16 n.8 (1992) (Equal Protection Clause);
Archie v. Racine, 

, 1215–18 (7th Cir. 1988) (en
banc) (Due Process Clause); Tucker v. Chicago, 

,
No. 18‐1605                                                    27

494–95 (7th Cir. 2018) (citing both due‐process and equal‐
protection decisions). See also, e.g., Wilson v. Corcoran, 

 (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
offender 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
file 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, 

 (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, 

 (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 official 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 for
28                                                 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 fifth 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 differs from a violation of the Constitution. I am
confident 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 fiddling with the names attached to theories
of liability. And it does not matter 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 official’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 qualified immunity blocks recovery on a
retaliatory‐arrest claim? Why did we bother with Del Mar‐
celle v. Brown County, 

 (7th Cir. 2012) (en banc)?
Del Marcelle alleged that, as a result of personal animus, lo‐
cal officials 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 officers’ 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 find 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, 

 (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 “defined with specificity.” Escondido, 

. See also, e.g., Kisela v. Hughes, 

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

 (2018); White v. Pauly, 

 (2017); Mullenix
v. Luna, 

 (2015); San Francisco v. Sheehan,

, 1775–76 (2015); Carroll v. Carman, 

,
16–17 (2014); Wood v. Moss, 

, 757–58 (2014);
Plumhoff v. Rickard, 

, 778–79 (2014); Stanton v.
Sims, 

, 5–6 (2013); Brosseau v. Haugen, 

,
198–99 (2004). These decisions, and more, tell us that a high
level of generality won’t do.
    A right has been defined “with specificity” when existing
judicial decisions tell the officer what to do, concretely, in a
given situation. See also, e.g., Weiland v. Loomis, 

,
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 file (state law does that). It does
not tell any officer where a given sex offender must register,
or when a sex offender under investigation in one jurisdic‐
tion (such as Joliet) is entitled to register in another (such as
Bolingbrook). Official 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 offender or to file complaints with the local authorities
without being blocked by a police officer who acts exclusive‐
ly out of animus.” Slip op. 17. This supposes that sex offend‐
ers have a “right to register as a sex offender”. 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 offend‐
er”? My colleagues do not cite any decision so holding. As
for “file complaints without being blocked …”, no one
blocked Frederickson from filing complaints. He could have
filed 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, 

 (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 final part of this formulation—“by a po‐
lice officer who acts exclusively out of animus” might be re‐
phrased as “by a police officer who violates state law exclu‐
sively out of animus”, but violating state law differs 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 conflicts with Nieves and Hartman
while posing the same generality problem as a right to “po‐
lice protection uncorrupted by personal animus”.