Eyrle S. Hilton, IV v. City of Wheeling

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3727
Eyrle S. Hilton, IV,
Plaintiff-Appellant,
v.
City of Wheeling, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 860--Charles P. Kocoras, Judge.
Argued March 27, 2000--Decided April 20, 2000
Before Posner, Chief Judge, and Flaum and Williams,
Circuit Judges.
Posner, Chief Judge. Eyrle Stuart Hilton, IV
sued the Village of Wheeling (a Chicago suburb)
and members of its police force (plus two social
workers employed by the Village) for injunctive
relief and damages, alleging violations of his
constitutional rights to petition the government
for redress of grievances and to enjoy the equal
protection of the laws. 42 U.S.C. sec. 1983. The
district court granted summary judgment for the
defendants.
For the last seven years Hilton and his
neighbors in an apartment complex in a blue-
collar district of Wheeling have been locked in a
feud that began when Hilton was seen beating a
Rottweiler puppy (appropriately named "Rommel")
with what a neighbor who called the police
described as a baseball bat, though Hilton claims
that it was merely a rawhide chew stick. When the
police arrived he explained that he had broken
his arm (Hilton’s arm, not the dog’s) beating
Rommel the previous evening. Hilton was cited for
cruelty to animals and fined $500. The subsequent
history of Rommel is interesting, though perhaps
not strictly germane. Hilton tired of Rommel,
took him to a veterinarian, and told the
veterinarian to kill the dog. The vet refused,
saying that the dog was healthy (Hilton’s savage

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beatings had failed to injure Rommel) and that he
wanted to put him up for adoption. Hilton agreed,
but later decided he wanted Rommel back, and when
he could not get him back protested at an open
hearing of the Wheeling village council, dragging
the empty leash behind him to punctuate his plea.
Since the initial contretemps with his neighbors
over Rommel, Hilton has been cited or arrested
some fifteen times by the Wheeling police on
neighbors’ complaints for such transgressions as
disorderly conduct, battery, and violating noise
ordinances by yelling or by playing his stereo
too loud. Hilton does not deny that there was
probable cause for each of these arrests or
citations. His argument rather is that the police
have not been evenhanded in arbitrating, as it
were, his feud with his neighbors. He has
complained to the police about them many times.
One neighbor, he complained, had kicked and
broken his door. Another had thrown a rock at his
house. Others had made loud noise. One called him
an "idiot" in front of a police officer, which he
describes as "verbal harassment." And so on. The
police responded to all these complaints--they
have responded some eighty times over the past
seven years to complaints arising out of the
feud. But only once have they taken any action
against a neighbor complained of by Hilton. That
was when he complained to them that a neighbor’s
dog was barking loudly--and the police cited him
for disorderly conduct as well as the neighbor.
They have enforced the law one-sidedly.
The right to petition the government for redress
of grievances is found in the First Amendment to
the Constitution but has been held to be
enforceable against the states by virtue of the
due process clause of the Fourteenth Amendment.
Edwards v. South Carolina, 372 U.S. 229, 235
(1963); Grossbaum v. Indianapolis-Marion County
Building Authority, 100 F.3d 1287, 1294 n. 5 (7th
Cir. 1996). The right (on which see McDonald v.
Smith, 472 U.S. 479, 482-85 (1985)) has never
been understood to be a right to police
assistance, or for that matter to any
governmental assistance, services, or largesse.
As the Supreme Court held in DeShaney v.
Winnebago County Dept. of Social Services, 489
U.S. 189, 195-97 (1989), and we have repeated
many times, the Constitution, insofar as it
creates or protects liberties, is (with
immaterial exceptions) a charter of negative
liberties. River Park, Inc. v. City of Highland
Park, 23 F.3d 164, 166 (7th Cir. 1994); K.H.
Through Murphy v. Morgan, 914 F.2d 846, 848-49
(7th Cir. 1990); Jackson v. City of Joliet, 715
F.2d 1200, 1203-04 (7th Cir. 1983); Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir. 1982); Pinder
v. Johnson, 54 F.3d 1169, 1174 (4th Cir. 1995)

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(en banc); Alston v. Redman, 34 F.3d 1237, 1247
(3d Cir. 1994); David P. Currie, "Positive and
Negative Constitutional Rights," 53 U. Chi. L.
Rev. 864 (1986). It creates areas in which the
government has to let people alone; it does not
entitle them to demand services, such as police
protection.
The reasons are historical, Jackson v. City of
Joliet, supra, 715 F.2d at 1203, but also
practical: it is not a feasible undertaking for
the federal courts to direct the allocation of
public resources to particular public services.
So while the government may not interfere with
the right to petition, California Motor Transport
Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972); Harrell v. Cook, 169 F.3d 428, 432 (7th
Cir. 1999); Vasquez v. Hernandez, 60 F.3d 325,
328 (7th Cir. 1995), it need not grant the
petition, no matter how meritorious it is. Cf.
Linda R.S. v. Richard D., 410 U.S. 614 (1973).
Nor, by the way, does the right to petition for
redress of grievances imply a duty of the
government to make every government employee a
petition receiver. Although we cannot find a case
on the point (there are few cases construing the
right-to-petition clause), we think it plain that
the right is merely a right to petition the
appropriate government entity, in this case the
local prosecutor rather than the police on the
beat. We point this out to remind Mr. Hilton that
he may have other avenues of redress.
A complaint of unequal police protection in
violation of the equal protection clause is less
easily disposed of. On the one hand, the clause,
concerned as it is with equal treatment rather
than with establishing entitlements to some
minimum of government services, does not entitle
a person to adequate, or indeed to any, police
protection. On the other hand, selective
withdrawal of police protection, as when the
Southern states during the Reconstruction era
refused to give police protection to their black
citizens, is the prototypical denial of equal
protection. Slaughter-House Cases, 83 U.S. (16
Wall.) 36, 70 (1873); David P. Currie, The
Constitution in the Supreme Court: The First
Hundred Years 349 (1985). Hilton, and so far as
appears his neighbors, are all white; there is no
suggestion that he is being discriminated against
because of his race, religion, gender, or some
other attribute that defines a group
traditionally protected by the equal protection
clause. But now that the Supreme Court has
affirmed our decision in Olech v. Village of
Willowbrook, 160 F.3d 386 (7th Cir. 1998), aff’d,
120 S. Ct. 1073 (2000) (per curiam), we know that
a person doesn’t have to be a member of a
protected group to invoke the clause. If the

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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 under Olech. See also Esmail v. Macrane, 53
F.3d 176 (7th Cir. 1995), and other cases cited
at 160 F.3d 387; Forseth v. Village of Sussex,
199 F.3d 363, 371 (7th Cir. 2000); Levenstein v.
Salafsky, 164 F.3d 345, 352 (7th Cir. 1998); cf.
Friedrich Duerrenmatt, The Visit. But there is no
suggestion of this. For reasons that Hilton has
not attempted to discover, the police exercised
the broad discretion that custom gives them in
enforcing minor public nuisance laws, in favor of
the neighbors. For all we know, they did so
simply because the neighbors were always in the
right and Hilton always in the wrong. But maybe
not; maybe the Wheeling police are inept, or have
been deceived by the neighbors. It doesn’t
matter; what matters is the absence of evidence
of an improper motive.
The role of motive is left unclear by the
Supreme Court’s decision. On the one hand the
Court recited the standard formula that the equal
protection clause forbids intentional differences
in treatment for which there is no rational
basis. On the other hand it said that the claim
that the difference in treatment was "irrational
and wholly arbitrary" (emphasis added) was
sufficient and that the Court was not reaching
our "alternative theory of ’subjective ill will.’"
120 S. Ct. at 1075. If a merely unexplained
difference in police treatment of similar
complaints made by different people established a
prima 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. Repeating what we said in our opinion
in Olech, and Justice Breyer in his concurring
opinion in the Supreme Court, 120 S. Ct. at 1075,
we gloss "no rational basis" in the unusual
setting of "class of one" equal protection cases
to mean that to make out a prima facie case the
plaintiff must 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. We described the class of
equal protection cases illustrated by Olech as
"vindictive action" cases and said that they
require "proof that the cause of the differential
treatment of which the plaintiff complains was a
totally illegitimate animus toward the plaintiff
by the defendant." 160 F.3d at 388. No evidence
of such an animus was presented in this case.
Amplifying our earlier point about other
remedies, we note that if the neighbors have
committed torts against Hilton, he has civil
remedies under state law. He has no remedy under

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the U.S. Constitution.
Affirmed.

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