mccauley - appellate brief (7th circuit ca us)
TRANSCRIPT
NO. 09-3561
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
_____________________________________________________________________________
BREWSTER MCCAULEY, as Special Administrator of the Estate of Mersaides McCauley,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, ET. AL.,
Defendants-Appellees, ___________________________________________________________________________
On Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division Case No. 09-CV-2604
The Honorable Amy J. St. Eve, Judge Presiding _____________________________________________________________________________
BRIEF AND REQUIRED SHORT APPENDIX OF
PLAINTIFF-APPELLANT BREWSTER MCCAULEY, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MERSAIDES MCCAULEY
______________________________________________________________________________
DOLAN LAW OFFICES, PC Martin A. Dolan 10 South LaSalle Street Suite 3712 Chicago, Illinois 60602 (312) 676-7600 - Telephone (312) 849-2030 - Facsimile
Attorneys for Plaintiff-Appellant
ORAL ARGUMENT REQUESTED
ii
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Appellate Court No: 09-3561
Short Caption: McCauley v. City of Chicago, et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ]PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): Brewster McCauley as Special Administrator of the Estate of Mersaides McCauley
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Dolan Law Offices, P.C.
(3) If the party or amicus is a corporation:
(i) Identify all its parent corporations, if any; and n/a (ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: n/a Attorney’s Signature: /s/ Martin A. Dolan Date: 10/26/2009 Attorney’s Printed Name: Martin A. Dolan
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No Address: 10 South LaSalle Suite 3712 Chicago, Illinois 60603 Phone Number: 312-676-7600 Fax Number: 312-849-2030 E-Mail Address: [email protected]
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TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. The Special Administrator Is Entitled to Proceed with his Equal Protection Claim Against the City of Chicago, Having Pled that Mersaides McCauley’s Death Was Caused by the City’s Irrational Policy, Pattern, and Practice of Providing Inadequate Police Protection Due to Her Status as a Female Domestic Violence Victim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Female Domestic Violence Victims, Including Mersaides McCauley, Should Be Recognized as Members of a Suspect Class Victim. . . . . . 10
1. Application of the relevant factors of the suspect class analysis establishes that female domestic violence victims
are a suspect class. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. The suspect class of female domestic violence victims is distinguishable from other classes rejected as suspect such as over-50 police officers, the “mentally retarded”
and the disabled. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3. The “emerging awareness” that female domestic violence victims deserve special protection is a relevant consideration. . 17
B. Female Domestic Violence Victims, Including Mersaides McCauley,
Are Members of the Quasi-Suspect Class of Gender. . . . . . . . . . . . . . 18
C. The Special Administrator’s Equal Protection Claim Against the City of Chicago, at a Minimum, Is Viable Under the Rational Basis Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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III. The District Court’s Denial of Leave to Conduct Additional Discovery Was Premised Upon the Erroneous Finding that the Special Administrator Could Never Plead a Viable Equal Protection Claim Based on Mersaides McCauley’s Status as a Female Domestic Violence Victim. . . . . . . . . . . . . . . 23
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CIRCUIT RULE 32(a)(7)(C) CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CIRCUIT RULE 31(e) CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CIRCUIT RULE 30(d) CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
REQUIRED SHORT APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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TABLE OF AUTHORITIES
Cases Brown v. Budz, 398 F.3d 904 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) . . . . . . . . . . . . . 12, 13, 15, 16 Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Harris v. McRae, 448 U.S. 297 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Jones v. Simek, 193F.3d 485 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Korematsu v. United States, 323 U.S. 214 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Macias v. Ihde, 219 F.3d 1018 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Moore v. City of Chicago Heights, 2010 U.S. Dist. LEXIS 2566 (N.D. Ill Jan. 12, 2010) . . . . 21 Martin v. Shawano-Gresham School District, 295 F.3d 701 (7th Cir. 2002) . . . . . . . . . . . . . . . 9 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . . . . 15 Milner v. Apfel, 148 F.3d 812 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) . . . . . . . . . . . . . . . . . . .18, 19 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 New Burnham Prairie Homes, Inc. v. Burnham, 910 F.2d 1474 (7th Cir. 1989) . . . . . . . . . . . . 20 Prince v. Rescorp Realty, 940 F.2d 1104 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Reed v. Reed, 404 U.S. 71 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) . . . . . . . . . . . . . 9, 12 United States v. Carolene Products, 304 U.S. 144 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
vi
United States v. Harris, 197 F.3d 870 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 United States v. McKenzie, 99 F.3d 813 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Vision Church, United Methodist v. Village of Long Grove, 468 F.3d 975 (7th Cir. 2006) . . . 19 Williams v. City of Montgomery, 21 F. Supp. 2d 1360 (M.D. Ala. 1998) . . . . . . . . . . . . . . . . 22 Wroblewski v. City of Washburn, 965 F.2d 452 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Constitutional Amendments U.S. CONST., amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Statutes 18 U.S.C. § 13981 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343(a)(3), (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1441(b), (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1446 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 13701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 750 ILCS 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17 Court Rules Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 20, 22
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Fed. R. Civ. P. 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Miscellaneous American Institute on Domestic Violence, Domestic Violence in the Workplace Statistics, available at http://www.aidv-usa.com/statistics.htm . . . . . . . . . . . . . . 11 Center for Disease Control, Adverse Health Conditions and Health Risk Behaviors Associated with Intimate Partner Violence (2008), available at http://www.cdc.gov/mmwr/preview/mmrhtmlmm5705a1.htmDiscrimination . . . . . . . . . . . . 11 City of Chicago Mayor’s Office on Domestic Violence, Assessment of the Current Response to Domestic Violence in Chicago (2007), available at http://www.cfw.org/Document.Doc?id=169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Kaiser Health News, Congress May Address Health Coverage Discrimination Against Women, Domestic Violence Victims (Oct. 7, 2009), available at http://www.kaiserhealthnews.org/Daily-Reports/2009/October/07/Gender-Gap.aspx . . . . . . 13 National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States (2003), available at http://www/caepv.org/Costs%20of%20IPV%20Against%20Women%20in%20the%20US.pdf . .11 Patricia Tjaden & Nancy Thoennes, Nancy. Extent, Nature, and Consequences of Intimate Partner Violence: findings from the National Violence Against Women Survey, available at http://www.ncjrs.gov/txtfiles1/nij /181867.txt . . . . . . . . . . . . . . . . . . . . 11 Neil Websdale, Reviewing Domestic Violence Deaths, NIJ JOURNAL, Issue No. 250 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States Department of Justice, Office on Violence Against Women, http://www.ovw.usdoj.gov/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The White House, Vice President Biden Announces Appointment of White House Advisor on Violence Against Women (June 26, 2009), available at http://www.whitehouse.gov/ the_press_office/Vice-President-Biden-Announces- Appointment-of-White-House-Advisor-on-Violence-Against-Women/ . . . . . . . . . . . . . . . . . . 17
1
JURISDICTIONAL STATEMENT
The district court had jurisdiction of the case that is docketed as No. 09-CV-2604
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3), (4) following its removal to federal
court pursuant to 28 U.S.C. § 1441(b), (c) and 28 U.S.C. § 1446. The district court’s jurisdiction
was based on alleged violations of 42 U.S.C. § 1983 as well as the Equal Protection Clause and
Due Process Clause of the United States Constitution. The district court had supplemental
jurisdiction of the state law claims pursuant to 28 U.S.C. § 1367 and 28 U.S.C. § 1441.
On September 18, 2009, the district court dismissed the constitutional claims of Plaintiff-
Appellant Brewster McCauley, as Special Administrator of the Estate of Mersaides McCauley
(“Special Administrator”) against the City of Chicago and the Illinois Department of Corrections
Defendants’ with prejudice. The district court declined to exercise jurisdiction over the
remaining state law claims after entering judgment in the City of Chicago and IDOC Defendants’
favor on the federal claims. The district court remanded the state law claims and dismissed the
federal action in its entirety. The district court entered judgment on September 18, 2009 pursuant
to Federal Rule of Civil Procedure 58. The Special Administrator filed his timely notice of
appeal on October 16, 2009. This Court has jurisdiction pursuant to 28 U.S.C. § 1291, which
provides for jurisdiction of an appeal from a final decision of a district court.
2
STATEMENT OF ISSUES PRESENTED FOR REVIEW
I. Whether the district court erred in dismissing the Special Administrator’s equal
protection claim against the City of Chicago although the Second Amended Complaint alleges
that Mersaides McCauley’s death was caused by the City’s irrational policy, pattern and practice
of providing lesser or no police protection due to her status as a female domestic violence victim.
II. Whether the district court erred in denying the Special Administrator leave to engage in
limited discovery as to Roger E. Walker, Jr.’s personal involvement in the events leading to
Mersaides McCauley’s murder in order to bring an equal protection claim against Walker in his
individual capacity because it determined that the Special Administrator was foreclosed from
bringing any equal protection claim upon determining that McCauley was not a member of a
suspect or protected class.
3
STATEMENT OF THE CASE
This action stems from the shooting death of Mersaides McCauley, a female domestic
violence victim under an order of protection, by her ex-boyfriend Glenford J. Martinez, a felon
on parole for murder and attempted murder. On February 13, 2009, Plaintiff Brewster McCauley,
as Special Administrator of the Estate of Mersaides McCauley, filed an action in the Circuit
Court of Cook County, Illinois, Law Division, alleging wrongful death claims in violation of the
Illinois Domestic Violence Act, 750 ILCS 60, against the City of Chicago, the Illinois
Department of Corrections (“IDOC”) and various IDOC officers. It also contained a battery
claim against the Estate of Martinez. After the Special Administrator filed his Second Amended
Complaint, which added violations of the United States Constitution against the City of Chicago,
IDOC and IDOC officers and named two new defendants, the IDOC Director, Roger E. Walker,
Jr. and IDOC Parole Officer Winfield, in their official capacities, the City and IDOC
Defendants1 removed the Special Administrator’s action to the United States District Court for
the Northern District of Illinois, Eastern Division. Specifically, the Second Amended Complaint
alleges equal protection and due process violations in violation of 42 U.S.C. § 1983.
The City of Chicago and the IDOC Defendants filed motions to dismiss the Second
Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
attacking each of its fourteen counts. As to the City of Chicago, the Special Administrator
responded that the Second Amended Complaint stated viable state law claims as well as equal
protection and due process claims. As to the IDOC Defendants, the Special Administrator also
contended that the state law claims were viable but withdrew the constitutional claims with one
caveat. The Special Administrator sought leave to engage in limited discovery regarding
1 The Illinois Department of Corrections, the IDOC officers, IDOC Parole Officer Winfield, and Roger E. Walker, Jr. are collectively referred to as the “IDOC Defendants.”
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Walker’s personal involvement in order to bring an individual capacity equal protection claim
against Walker. The district court denied the discovery request and dismissed the Special
Administrator’s constitutional claims with prejudice. The district court then declined to exercise
its supplemental jurisdiction over the Special Administrator’s state law claims, and remanded
those remaining claims to the Circuit Court of Cook County.
The Special Administrator is appealing the dismissal of the equal protection claim against
the City and the dismissal of the equal protection claim against the IDOC Defendants, in so far as
it relates to the denial of leave to engage in limited discovery as to Walker in order to bring
claims against Walker in his individual capacity, and the corresponding dismissal of the state law
claims for lack of jurisdiction.
5
STATEMENT OF FACTS In 1992, Glenford J. Martinez shot two individuals in a drug-related incident and was
convicted of murder and attempted murder. (S.A.-17 ¶¶ 9-10.)2 Upon his convictions, Martinez
was sentenced to terms of imprisonment of 28 years and 14 years, respectively, to be served
concurrently, with the Illinois Department of Corrections (“IDOC”). (Id. ¶ 10.) On May 25,
2006, IDOC released Martinez from his incarceration to mandatory supervised release. (Id. ¶
11.) Martinez’s discharge date from his IDOC mandatory supervised release was set for May 25,
2009. (Id. ¶ 12.)
On November 3, 2007, Martinez, an ex-boyfriend of Mersaides McCauley, choked
McCauley to the point of unconsciousness. (Id. ¶14.) Chicago police department officers arrested
Martinez for domestic battery/bodily harm that same day. (Id. ¶15.) On November 5, 2007,
McCauley obtained an Emergency Order of Protection against Martinez, prohibiting Martinez
from committing physical abuse, harassment, interference with personal liberty, stalking and
contacting McCauley by any means. (Id. ¶ 16.) On November 7, 2007, the Circuit Court of
Cook County issued a subpoena for McCauley to appear on November 19, 2007 for the battery
case. (S.A. 18 ¶ 17.) On November 19, 2007, a Plenary Order of Protection was entered on
behalf of McCauley against Martinez, prohibiting Martinez from committing physical abuse,
harassment, interference with personal liberty, stalking and contacting McCauley by any means.
(Id. ¶ 18.) The Plenary Order of Protection was extended on McCauley’s behalf on December 18,
2007 to February 25, 2008. (Id.)
Following his November 3, 2007 arrest for domestic violence and the entry of an Order
of Protection, Martinez continued to contact and harass McCauley in violation of the Order of
2 “S.A.-_” refers to the page location of a document contained in the Short Appendix attached to the brief. References to the Second Amended Complaint also include its original paragraph numbers.
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Protection. (S.A.-19 ¶ 24.) The Chicago Police Department never arrested Martinez for violating
the Order of Protection against McCauley although the police were aware of such violations. (Id.
¶ 25.) The City of Chicago failed to arrest Martinez for violations of the Order of Protection and
the conditions of his parole as part of its pattern and practice of affording female domestic
violence victims lesser or no protection. (S.A.-35 ¶ 121, S.A.-36 ¶127).
On December 18, 2007, the Cook County State’s Attorney’s Office telephoned
Martinez’s parole officer at IDOC and notified him of the November 3, 2007 domestic violence
battery against McCauley by Martinez. (S.A.-18 ¶ 19.) Also, on January 9, 2008, the Cook
County State’s Attorney’s Office contacted Martinez’s assigned IDOC parole officer and
notified him of the battery charge. (Id. ¶ 20.) IDOC never issued a Parole Violation Warrant for
Martinez for his November 3, 2007 domestic battery that would have mandated that Martinez be
held without bail until the trial of his domestic battery case. (Id. ¶¶ 22, 23.) IDOC failed to
arrest or hold Martinez without bond for parole violations as part of its pattern and practice of
affording female domestic violence victims lesser or no protection. (S.A.-38 ¶¶ 137, 141)
Meanwhile, on February 25, 2008, the domestic violence battery charge against Martinez
was to be heard by the judge in Branch 62, Courtroom 404, but the matter was continued to April
17, 2008. (S.A.-18 ¶ 21.) Following a church service on April 6, 2008, Mersaides McCauley was
in her vehicle in a church parking lot at approximately 8:40 p.m. with her friend Steve Rodriguez
en route to meeting other church members at a downtown restaurant. (S.A.-19 ¶ 26.) Martinez
used his vehicle to block McCauley’s vehicle in the parking lot, thus preventing McCauley from
exiting. (Id. ¶ 27.) Martinez violently shot Mersaides McCauley multiple times. (Id. ¶ 28.)
Shortly, thereafter Mersaides McCauley was pronounced dead at Northwestern Memorial
Hospital. (Id. ¶ 29.) Later that evening, Martinez shot and killed himself. (Id. ¶ 30.)
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SUMMARY OF THE ARGUMENT
The Special Administrator’s Second Amended Complaint alleges that Mersaides
McCauley’s equal protection and due process rights were violated by the City of Chicago and
IDOC Defendants. This appeal concerns the district court’s dismissal of the equal protection
claims and corresponding dismissal of the state law claims for lack of jurisdiction.3 The district
court committed several reversible errors in its Opinion and Order.
The district court, after it recognized the absence of “controlling legal authority” as to
whether female domestic violence victims are members of a “suspect class,” should have
independently analyzed whether female domestic violence victims constitute a suspect class.
After engaging in that analysis, the district court should have found that female domestic
violence victims, including Mersaides McCauley, are members of a suspect class. Alternatively,
the district court erred in not recognizing that female domestic violence victims, including
Mersaides McCauley, are members of the recognized quasi-suspect class of gender.
Even if the district court had engaged in that required independent class analysis and then
found that Mersaides McCauley was not a member of either of these protected classes, its
dismissal of the equal protection claims would have still been in error. The district court applied
the wrong standard in determining the pleading sufficiency of the equal protection claim. It
improperly found that because it had concluded that Mersaides McCauley was not a member of a
“protected class,” the Special Administrator could not proceed with his equal protection claim. In
3 The instant brief discusses the sufficiency of the equal protection pleadings as it relates to the City of Chicago only. However, Plaintiff does so without intending to waiving his appeal of the dismissal with prejudice of the IDOC Defendants’ equal protection claims, insofar as Judge St. Eve denied Plaintiff leave to engage in limited discovery as to Roger E. Walker, Jr.’s personal involvement. Nor does Plaintiff intend to abandon any of his state law claims against any of the defendants.
8
fact, the Second Amended Complaint sets forth a viable equal protection claim against the City
of Chicago.
The Special Administrator also potentially has a viable equal protection claim against
Roger E. Walker, Jr. and should have been allowed to engage in the requested limited discovery
as to his personal involvement in the events leading up to Mersaides McCauley’s murder.
9
ARGUMENT
I. Standard of Review
Because this case comes before the Court of Appeals on appeal from an order granting a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), that order is subject to de
novo review. Jones v. Simek, 193 F.3d 485, 489 (7th Cir. 1999). In so reviewing, the Court will
assume the truth of all well-pleaded factual allegations as true and make all possible inferences
in favor of the plaintiff.” Wroblewski v. City of Washburn, 965 F.2d 452, 453-4 (7th Cir.
1992)(citing Prince v. Rescorp Realty, 940 F.2d 1104, 1006 (7th Cir. 1991)). “If it is possible to
hypothesize a set of facts, consistent with the complaint, that would entitle the plaintiff to relief,
dismissal under Federal Rule of Civil Procedure Rule 12(b)(6) is inappropriate.” Brown v. Budz,
398 F.3d 904, 909 (7th Cir. 2005).
II. The Special Administrator Is Entitled to Proceed with his Equal Protection Claim Against the City of Chicago, Having Pled that Mersaides McCauley’s Death Was Caused by the City’s Irrational Policy, Pattern, and Practice of Providing Inadequate Police Protection Due to Her Status as Female Domestic Violence Victim.
The Equal Protection Clause of the Fourteenth Amendment prohibits states from
depriving any person within its jurisdiction of the equal protection of the laws. U.S. CONST.,
amend. XIV. “Typically, an equal protection claim focuses on the denial of a fundamental right
or disparate treatment of persons depending on the claimant’s suspect classification.” Martin v.
Shawano-Gresham School District, 295 F.3d 701, 712 (7th Cir. 2002). Equal protection claims
involving a fundamental right or suspect classification are reviewed with strict scrutiny. Martin,
295 F.3d at 712. The strict scrutiny accorded a suspect class applies to all challenged state action.
See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 40 (1973).
10
The Second Amended Complaint alleges that the City of has an “unwritten custom,
practice and policy to afford lesser protection or none at all to victims of domestic violence” and
that the City deprived Mersaides McCauley of her equal protection right when it “exhibited a
pattern or practice of affording lesser or no protection to women who complained of domestic
abuse, including McCauley.” (S.A.-35 ¶¶ 121, S.A.37 1¶29.) The district court determined, in
evaluating the sufficiency of the equal protection claim, that “without any controlling legal
authority” it could not conclude that Mersaides McCauley was a member of a suspect class.
(S.A.-07.)
While, indeed, there is no binding authority which establishes female domestic violence
victims as a suspect class, the contrary is true as well. There is no binding authority which
establishes that female domestic violence victims are not a suspect class for equal protection
purposes or that the list of recognized suspect classes is closed. Given that whether female
domestic violence victims are a suspect class remains an open constitutional question, the district
court should have independently analyzed the question and, ultimately, answered it in the
affirmative. The Special Administrator respectfully invites this Court to explicitly hold that
female domestic violence victims constitute a suspect class.
A. Female Domestic Violence Victims, Including Mersaides McCauley, Should Be Recognized as Members of a Suspect Class.
Domestic violence affects approximately twenty-five percent of women in the United
States during their lifetimes.4 An estimated 1.8 million women are victims of physical assault
and rape by an intimate partner each year, and about a million violent crimes are committed
4 Patricia Tjaden & Nancy Thoennes, Nancy. Extent, Nature, and Consequences of Intimate Partner Violence: findings from the National Violence Against Women Survey, available at http://www.ncjrs.gov/txtfiles1/nij/181867.txt.
11
against former partners.5 The most gruesome statistic, of which Mersaides McCauley may
tragically be counted among, is that between 1,000 and 1,600 women die each year in the United
States as a result of domestic abuse.6 In 2006, in Chicago alone, there were twenty-one domestic-
related homicides and Chicago Police responded to 204,729 domestic-related calls for assistance
(911).7 Also in 2006 in Chicago, 18,447 civil orders of protection were granted and 11,641
criminal orders were issued totaling 30,888 orders.8
The effects of domestic violence are not confined to the home. Lost productivity and
earnings due to domestic violence account for almost $1.8 billion each year.9 Domestic violence
victims lose nearly 8 million days of paid work each year.10 Healthcare costs for battered women
account for $4.1 billion each year.11 In addition to the mental health effects of domestic violence,
women who experience domestic violence incur higher rates of chronic diseases and risk
behaviors.12
5 National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States (hereinafter “Costs of Intimate Partner Violence”) (2003), available at http://www.caepv.org/membercenter/files/Costs%20of%20IPV%20Against%20Women%20in%20the%20US.pdf. 6 Neil Websdale, Reviewing Domestic Violence Deaths, NIJ JOURNAL, Issue No. 250 (2003). 7 City of Chicago Mayor’s Office on Domestic Violence, Assessment of the Current Response to Domestic Violence in Chicago (2007), available at http://www.cfw.org/Document.Doc?id=169. 8 Id. The total includes all orders so it does not reflect an unduplicated count of cases as one victim could have had multiple orders. 9 American Institute on Domestic Violence, Domestic Violence in the Workplace Statistics, available at http://www.aidv-usa.com/statistics.htm. 10 Id. 11 Costs of Intimate Partner Violence. 12 Center for Disease Control, Adverse Health Conditions and Health Risk Behaviors Associated with Intimate Partner Violence (2008), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ mm5705a1.htm.
12
1. Application of the relevant factors of the suspect class analysis establishes that female domestic violence victims are a suspect class.
It is settled law that classifications based on race, alienage and nationality are inherently
suspect and entitled to strict scrutiny. Graham v. Richardson, 403 U.S. 365, 372 (1971). Thus,
state action which discriminates on these bases must advance a compelling interest in order to
withstand strict judicial scrutiny. Cleburne Living Center, 473 U.S. at 440 (1985). The roots of
the suspect class categories are traced to a Commerce Clause and substantive due process case,
United States v. Carolene Products, 304 U.S. 144 (1938). Justice Stone, in a famous footnote
discussing the presumption of constitutionality that the Court would apply to economic
legislation, wrote:
[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
Carolene Products, 304 U.S. at 153 n. 4. In a series of post-Carolene Products decisions
beginning with Korematsu v. United States, 323 U.S. 214, 216 (1944), thus, the suspect classes
were recognized. These recognitions reflected an understanding of Justice Stone’s observation
that certain groups should be accorded special protection because of their long-standing history
of discrimination and weak position in a pluralist society. See Carolene Products, 304 U.S. at
153 n. 4.
Justice Powell, writing for the majority in Rodriguez, 411 U.S. at 28, defined the
“traditional indicia” of a suspect class as (1) a group that is “saddled with disabilities,” or (2) a
group that has been “subjected to” a “history of purposeful unequal treatment,” or (3) a group
that has been “relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process.”
13
Turning to the first factor, when a characteristic is irrelevant to a person’s ability to
engage in society, a classification on the basis of that characteristic is unlikely to be related to the
accomplishment of any state interest. Rather it is more likely to reflect “outmoded notions of the
relative capabilities” of groups or “prejudice and antipathy – a view those in the burdened class
are as worthy or deserving as others.” Cleburne Living Center, 473 U.S. 432 at 441. A woman’s
experience of domestic violence has no relevance to her true ability to perform or contribute to
society. Anti-discrimination statutes make clear that our society is beginning to understand that
women who experience domestic violence are not innately weak or inferior and that these
misconceptions are not a legitimate basis for denying them their rights under the law.
It is also indisputable that female domestic violence victims have been subjected to a
history of discrimination in many areas of their lives. The Violence Against Women Act of 1994
(“VAWA”), amended in 2005, aptly notes that “[t]here is a strong link between domestic
violence and homelessness . . . Women . . . across the country are being discriminated against,
denied access to, and even evicted from public and subsidized housing because of their status as
victims of domestic violence.” 18 U.S.C. § 13981 et seq. In response to these housing problems,
the reauthorized VAWA includes nondiscrimination provisions and affirmative protections for
domestic violence victims in the public housing arena. Id.
Another area of discrimination has been in the context of insurance. Eight states and the
District of Columbia do not prohibit coverage denial on the grounds of a domestic abuse
history.13 In the employment context, numerous states have enacted laws prohibiting the
acknowledged problem of discrimination against victims of domestic violence in the workplace.
Although some employers very ignore these laws out of fear that the violence will spill over into 13 Kaiser Health News, Congress May Address Health Coverage Discrimination Against Women, Domestic Violence Victims (Oct. 7, 2009), available at http://www.kaiserhealthnews.org/Daily-Reports/2009/October/07/Gender-Gap.aspx
14
the workplace, others surely rely on the misconceived notion that female domestic violence
victims are less capable employees. This is a particularly troubling fact because steady income is
often vital to a victim’s independence and escape from domestic violence. Clearly, the
discrimination faced by female domestic violence victims is no less pervasive than the
discrimination faced by other groups already treated as suspect classes.
Political powerlessness is also present here. Female domestic violence victims, of course,
have access to the political system, in theory. Just exactly how that access benefits them is
unclear. The social pressures to conceal one’s status as a domestic violence victim operate to
discourage such victims from full participation. Moreover, those women who are living in the
midst of an abusive relationship risk their lives by leaving the abusive situation let alone
speaking publicly on the matter. These women lack the ability to coalesce into an organized,
politically powerful group given the culture of silence which attaches to domestic violence and
the social stigma which still attaches to a woman who relates her experience of domestic
violence.
Discrimination, as this action maintains, also exists in the area of law enforcement. The
Special Administrator contends that the Chicago Police Department has a pattern and practice of
affording female domestic violence victims lesser or protection. This stems, in large part, from
an ill-founded notion that domestic violence is an internal “family issue.” Allowing this case to
proceed past the pleadings will shed light on the City’s true response to domestic violence
complaints from women, allowing the Special Administrator access to the City’s internal data via
the discovery process. In sum, the relevant factors favor finding female victims of domestic
violence are a suspect class.
15
2. The suspect class of female domestic violence victims is distinguishable from other classes rejected as “suspect” such as over-50 police officers, the “mentally retarded” and the disabled.
In Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976), the Supreme
Court did not consider aging police officers so disabled or politically powerless that they
“command[ed] extraordinary protection from the majoritarian political process.” Massachusetts
law required the retirement of uniformed officers at age fifty. Murgia, 427 U.S. at 309.
Massachusetts emphasized that the job was demanding, and with age came decreased physical
abilities. Id. at 310-11. The Court refused to categorize age as a suspect class because it reasoned
everyone reaches old age upon living a normal life span. Id. at 313-14. Age was thus not a
specific enough distinction. Id. at 314. Unlike the over-50 officers in Murgia, female domestic
violence victims constitute a discrete and insular group. Obviously, not every person will
become a member of the group. It is limited to those who experience abuse. And it is further
limited to females. Additionally, the physical fitness of the over-50 group was a legitimate given
the employment at issue. The personal characteristics of domestic violence victims are not
similarly relevant.
The Supreme Court did not find the “mentally retarded” to constitute a suspect class (or
quasi-suspect class) in Cleburne Living Center, 473 U.S. at 432. In doing so, the Court first
explained the lesson of Murgia:
[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.
Cleburne, 473 U.S. at 441-42. The Court then stated four bases for its determination. First, the
Court found that the “mentally retarded have a reduced ability to cope with and function in the
16
everyday world” and they are not “all cut from the same pattern.” Cleburne, 473 U.S. at 442.
Second, national and state legislative response to the group’s needs did not demonstrate “a
continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the
judiciary.” Id. at 443. Third, the fact that legislation was passed demonstrated that class is not
“politically powerless.” Id. Finally, the Court found that it would be difficult to “distinguish a
variety of other groups who have perhaps immutable disabilities setting them off from others,
who cannot themselves mandate the desired legislative responses, and who can claim some
degree of prejudice . . . [such as] the aging, the disabled, the mentally ill, and the infirm.” Id. at
445-46.
This Court, in relying upon Cleburne in its determination in United States v. Harris, 197
F.3d 870, 875 (7th Cir. 1999) that the disabled did not constitute a suspect class, identified the
main consideration in its analysis:
Most importantly, as with the mentally retarded, there are ‘real and undeniable differences between the [disabled] and others,’ and ‘governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable.’
Harris, 197 F.3d at 875. Undoubtedly, women who experience domestic violence are different
from others. However, a great part of that difference stems from the social stigma still attached in
being a domestic violence victim. In contrast, age and disability relate mainly to the physical
functionality of a person. Thus, certain distinctions in the areas of employment and housing,
among others, for these groups make sense. The same rationale does not exist with respect to
female domestic violence victims in the area of law enforcement. The differences of the female
domestic violence victim class members are unrelated to whether law enforcement should
respond to them in the same way they respond to other crime victims.
17
3. The “emerging awareness” that female domestic violence victims deserve special protection is a relevant consideration.
Female domestic violence victims have yet to be recognized as a suspect class by any
federal court. In situations, however, where there is an “emerging awareness” that a group
deserves legal protection, consideration should be given to the laws and traditions of the recent
past as they are most relevant. Lawrence v. Texas, 539 U.S. 558, 571-72 (2003). In Lawrence,
539 U.S. at 578, the Court held that any law that criminalized homosexual sodomy violated the
Fourteenth Amendment Due Process Clause. The Court found an “emerging awareness that
liberty gives substantial protection to adult persons in deciding how to conduct their private lives
in matters pertaining to sex.” Id. at 572. The right to engage in homosexual sodomy, therefore,
was not based on historical patterns but rather on the recent “emerging awareness” in this
country of a fundamental liberty interest.
Recent history shows that the law has begun to embrace protections for female domestic
violence victims. Congress’ passage of the VAWA provided $1.6 billion to improve criminal
justice and community-based responses to domestic violence, dating violence, sexual assault and
stalking in the United States. 18 U.S.C. § 13981. Further, the Office of Violence Against
Women, a component of the U.S. Department of Justice, “provides national leadership in
developing the nation’s capacity to reduce violence against women through the implementation
of the VAWA.”14 Recently, the White House announced the creation of new position, White
House Advisor on Violence Against Women.15 On the state level, Illinois has enacted the Illinois
Domestic Violence Act. See 735 ILCS 60. These enactments reflect a growing societal
14 See United States Department of Justice, Office on Violence Against Women, http://www.ovw.usdoj.gov/. 15 See The White House, Vice President Biden Announces Appointment of White House Advisor on Violence Against Women (June 26, 2009), http://www.whitehouse.gov/ the_press_office/Vice-President-Biden-Announces-Appointment-of-White-House-Advisor-on-Violence-Against-Women/.
18
recognition that female domestic violence victims should not be treated as second-class citizens.
Recognition as a suspect class would put added teeth into these slow advancements.
B. Female Domestic Violence Victims, Including Mersaides McCauley, Are Members of the Quasi-Suspect Class of Gender.
Until 1971, sex-based classifications were subjected to the lowest level of constitutional
scrutiny, that is, rational basis review. In Reed v. Reed, 404 U.S. 71, 75-6 (1971), the Supreme
Court for the first time applied a higher level of scrutiny to sex discrimination. The Reed Court
implicitly rejected rational basis review of sex-based distinctions to strike down an Idaho law
that selected men over otherwise equally qualified women as administrators of estates. 404 U.S.
at 75-6. Two years later, in Frontiero v. Richardson, 411 U.S. 677 (1973), the Supreme Court
held sex-based classifications of uniformed service members for purposes of dependents’
benefits to be unjustifiably discriminatory. In so doing, the Court noted that “what differentiates
sex from such nonsuspect statuses as intelligence or physical disability . . . is that the sex
characteristic frequently bears no relation to ability to perform or contribute to society.”
Frontiero, 411 U.S. at 686. Thus, heightened scrutiny is applied in the case of gender
discrimination. Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996). In other words, a gender
classification fails unless it is substantially related to a sufficiently important governmental
interest. Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982).
The Special Administrator posits that the discrimination alleged - inadequate law
enforcement response to domestic abuse complaints - is a gender-based discrimination. As the
Second Amended Complaint makes clear, the class is not domestic violence victims but rather
female domestic violence victims. The Second Amended Complaint alleges that “[a]s a
proximate result of Defendant’s acts and/or omissions, McCauley was deprived of the Fourteenth
Amendment Right of Equal Protection when Defendant exhibited a pattern or practice of
19
affording lesser or no protection to women who complained of domestic abuse, including
McCauley. (S.A.-37 ¶ 129) (emphasis added).
Female domestic violence victims, including Mersaides McCauley, clearly belong to the
quasi-suspect class of women. Therefore, her equal protection claim is entitled to heightened
scrutiny. A defendant would, therefore, be compelled to demonstrate that there is an
“exceedingly persuasive justification” for the disparate treatment of female domestic violence
victims. See Mississippi University for Women, 458 U.S. at 724.
C. The Special Administrator’s Equal Protection Claim Against the City of Chicago, at a Minimum, Is Viable Under the Rational Basis Standard.
“The Equal Protection Clause grants to all Americans the right to be free from invidious
discrimination in statutory classifications and other governmental activity.” Nabozny, 92 F.3d at
453 (citing Harris v. McRae, 448 U.S. 297, 322 (1980)). It does not only protect “fundamental
rights,” and does not only protect against “suspect classifications.” See e.g., Romer v. Evans, 517
U.S. 620, 632 (1996)(Court invalidated Colorado state constitutional amendment because it
imposed a “broad and undifferentiated disability on a single named group” and it “lack[ed]” a
rational relationship to legitimate state interests.”) In the absence of deprivation of a fundamental
right or the existence of a suspect class, the proper standard of review is rational basis. Vision
Church, United Methodist v. Village of Long Grove, 468 F.3d 975, 1000-01 (7th Cir. 2006).
After determining that Mersaides McCauley was not a member of a suspect class, the
district court properly proceeded to determine whether the Special Administrator “sufficiently
alleged an equal protection claim in the context of the rational basis standard.”16 (S.A.-07) The
16 Plaintiff-Appellant, in acknowledging the propriety of engaging in review in the context of rational basis for those equal protection claims not involving a fundamental right or a suspect/quasi-suspect class, does not intend to waive his argument that Mersaides McCauley is a member of a suspect or quasi-suspect class.
20
district court first articulated the proper pleading requirement for an equal protection claim: “To
make out a prima facie case for an equal protection violation, a plaintiff must allege that: 1) she
is a member of a protected class; 2) she was otherwise similarly situated to members of the
protected class; and 3) she was treated differently from members of the unprotected class.” See
Id. However, the district court then improperly equated “protected class” with “suspect class”
and found that because it had determined that Mersaides McCauley was not a member of a
suspect class, the equal protection claim could only go forward if McCauley had a cognizable
class-of-one claim. (See S.A.-08).
Frankly, the district court’s equation of “protected” with “suspect” turns equal protection
jurisprudence on its head. Under the district court standard, a plaintiff who is not a member of
one of three suspect classes (race, alienage, nationality) or denied a fundamental right could
never bring a cognizable equal protection claim even if the discrimination was irrational.
Fortunately, there is recourse for these types of plaintiffs. Courts regularly apply equal protection
analysis to plaintiffs who are members of non-suspect or non-quasi suspect classes. See, e.g.,
Milner v. Apfel, 148 F.3d 812, 813 (7th Cir. 1998) (persons acquitted by reason of insanity);
United States v. McKenzie, 99 F.3d 813, 817 (7th Cir. 1996) (felons). This Court has clarified the
applicable standard for such a plaintiff:
A person bringing an action under the Equal Protection Clause must show intentional discrimination against [her] because of his membership in a particular class, not merely that [she] was treated unfairly as an individual. ‘The decisionmaker [must have] selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.’
New Burnham Prairie Homes, Inc. v. Burnham, 910 F.2d 1474, 1481 (7th Cir. 1989). The
Second Amended Complaint alleges that Mersaides McCauley is a member of an identifiable
21
group, female domestic violence victims, thus satisfying the group membership element of an
equal protection claim.
Judge Virginia Kendall, who also sits in the Northern District of Illinois, Eastern
Division, recently rejected a Rule 12(b)(6) motion to dismiss an equal protection claim based on
allegations markedly similar to those here. In that case, Moore v. City of Chicago Heights, 2010
U.S. Dist. LEXIS 2566, *3 (N.D. Ill Jan. 12, 2010), the plaintiff alleged that Teresa Iocavetti
was a victim of domestic violence and under an order of protection. The complaint also alleged
that the defendant police department had not arrested Iocavetti’s parolee ex-boyfriend when she
reported a battery nor had his parole agent revoked his parole when his violation of the order of
protection was reported. Moore, 2010 U.S. Dist. LEXIS at *4. It was also alleged that the ex-
boyfriend shot and killed Iocavetti. The plaintiff alleged that the defendant law enforcement
agencies and officers violated Iocavetti’s equal protection rights by “engage[ing] in a policy,
pattern and practice of treating domestic abuse reports from women with less priority than other
crimes.” Id. at *4-*5. Judge Kendall found that the plaintiff’s complaint implicated the protected
class of women because it alleged that “this policy, pattern and practice resulted in unequal and
discriminatory treatment in the form of inadequate or no protection for victims of domestic abuse
seeking police intervention. This impacted Teresa, as the class of domestic violence assault
victims consists primarily of women.” Id. at *12-*13.
Similar relevant allegations of the Special Administrator’s Second Amended Complaint
include:
Defendant has an unwritten custom, practice and policy to afford lesser protection or none at all to victims of domestic violence. There is no rational basis as to why Defendant affords lesser or no protection to victims of domestic abuse and under an Order of Protection.
22
As a proximate result of Defendant’s acts and/or omissions, McCauley was deprived of the Fourteenth Amendment Right of Equal Protection when Defendant exhibited a pattern or practice of affording lesser or no protection to women who complained of domestic abuse, including McCauley.
(S.A.-35-38 ¶¶121, 122, S.A.-37 ¶129) These allegations, like the allegations in Moore, should have been found sufficient to
state an equal protection claim. The Federal Rules of Civil Procedure provide that to state a
claim for relief, a complaint must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” FRCP 8(a)(2). As this Court noted in Brown, 398 F.3d at 91, the
notice pleading requirements of Rule 8 are liberal, especially with regard to equal protection
claims. See, e.g., Williams v. City of Montgomery, 21 F. Supp. 2d 1360, 1365 (M.D. Ala. 1998)
(emphasizing the low threshold required to survive a motion to dismiss, the court denied the
motion to dismiss an equal protection claim based on law enforcement entities’ failure to respond
to the decedent’s complaints because she was a domestic violence victim).
A “plaintiff need not ‘show’ anything to survive a motion under Rule 12(b)(6) – he need
only allege.” Brown, 398 F.3d at 916. Indeed, whether the evidence later adduced would
overcome a motion for summary judgment remains to be seen. However, the special
administrator is emboldened by Macias v. Ihde, 219 F.3d 1018 (9th Cir. 2000). In that case, the
plaintiff also alleged an equal protection violation in the delivery of police service based on the
decedent’s status as a woman and domestic violence victim. Macias, 219 F.3d at 1019. Not only
did the Macias complaint survive a motion to dismiss but the Ninth Circuit reversed a grant of a
motion for summary judgment. Id. at 1020. (“We remand so that the district court can determine,
in the first instance, following completion of discovery, whether the Appellees deprived Mrs.
Macias of her right to equal protection.)
23
The required liberal reading of the Second Amended Complaint reveals that it alleges that
Mersaides McCauley was treated differently because she was among the class of “victims of
domestic abuse,” and more specifically, because she one of the “women who complained of
domestic abuse.” Further, that there was no “rational basis” for the disparate treatment. The
district court erred in dismissing the equal protection claim given these allegations.
III. The District Court’s Denial of Leave to Conduct Additional Discovery Was Premised Upon the Erroneous Finding that the Special Administrator Could Never Plead a Viable Equal Protection Claim Based on McCauley’s Status as a Female Domestic Violence Victim. In response to the IDOC Defendants’ contention that the equal protection claims against
the IDOC Defendants in their official capacities were barred by the doctrine of sovereign
immunity, the Special Administrator withdrew the claims. The Special Administrator, however,
sought leave from the district court to engage in limited discovery as to Roger E. Walker, Jr.’s
personal involvement in the events leading to the murder of McCauley in order to bring a claim
against Walker in his individual capacity. The district court denied that request, finding that any
equal protection claim was foreclosed because of its ruling that Mersaides McCauley was not a
member of a suspect class. (S.A.-13).
The Special Administrator, while again disputing that McCauley is not a member of a
suspect class, contends that the district court’s denial was in error because a viable equal
protection claim may be pled even if McCauley was not a member of a suspect class. The
Special Administrator incorporates his arguments set forth in Argument II, supra, and reiterates
that class membership only determines what level of scrutiny is applied to the claim of equal
protection. Thus, the Special Administrator should have been granted the leave sought as he
potentially could plead a viable equal protection claim against Roger E. Walker, Jr.
24
CONCLUSION
For the reasons stated herein, this Court should find that the district court erred in
dismissing with prejudice the Special Administrator’s equal protection claim against the City of
Chicago and denying the Special Administrator leave to engage in limited discovery with respect
to Roger E. Walker, Jr. in order to bring an equal protection claim against Walker in his
individual capacity. Brewster McCauley, as Special Administrator of the Estate of Mersaides
McCauley, respectfully requests that this Court reverse the decision of the district court and
remand for further proceedings.
Respectfully submitted,
/s/ Martin A. Dolan _____________________________ DOLAN LAW OFFICES, PC 10 S. La Salle Street Suite 3712
Chicago, Illinois 60603 (312) 676-7600 - Telephone (312) 849-2030 – Facsimile
25
CIRCUIT RULE 32(a)(7)(C) CERTIFICATION
I certify that this brief complies with the type and volume limitation of Circuit Rule
32(a)(7)(B), in that this Brief of Plaintiff-Appellant contains 6,637 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This certification is based on the
Microsoft Word count of the word processing system used in preparing Plaintiff-Appellant’s
brief. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type
style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Word in 12-point Times New Roman except for footnotes
which are in 11-point Times New Roman.
/s/ Martin A. Dolan _____________________________
26
CIRCUIT RULE 31(e) CERTIFICATION
The undersigned hereby certifies that I have provided the Court with a digital version of
the Brief and Short Appendix, pursuant to Circuit Rule 31(e), and that the CD-Rom is virus-free.
/s/ Martin A. Dolan _____________________________
27
CIRCUIT RULE 30(d) CERTIFICATION
The undersigned hereby certifies that all of the materials required by Circuit Rule 30(a)
and (b) are included in the Required Short Appendix attached to the brief.
/s/ Martin A. Dolan _____________________________
28
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on March 1, 2010, I caused to be served two paper
copies and one digital copy of this Brief and Short Appendix, upon the following counsel, by
mailing such documents via UPS with postage prepaid and properly affixed.
Attorney for IDOC defendants Paul Berks Office of Illinois Attorney General Civil Appeals Division 100 West Randolph 13th Floor Chicago, Illinois 60601 Phone: 312-814-3700 Attorney for City of Chicago Appeals Division Mara S. Georges Myriam Zreczny Kasper Christopher S. Norberg 30 North LaSalle, Suite 1400 Chicago, Illinois 600602 /s/ Martin A. Dolan
____________________________
29
NO. 09-3561
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
_____________________________________________________________________________
BREWSTER MCCAULEY, as Special Administrator of the Estate of Mersaides McCauley,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, ET. AL.,
Defendants-Appellees, ___________________________________________________________________________
On Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division Case No. 09-CV-2604
The Honorable Amy J. St. Eve, Judge Presiding _____________________________________________________________________________
REQUIRED SHORT APPENDIX OF
PLAINTIFF-APPELLANT BREWSTER MCCAULEY, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MERSAIDES MCCAULEY
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DOLAN LAW OFFICES, PC Martin A. Dolan 10 South LaSalle Street Suite 3712 Chicago, Illinois 60602 (312) 676-7600 - Telephone (312) 849-2030 - Facsimile
Attorneys for Plaintiff-Appellant
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TABLE OF CONTENTS TO APPELLANT’S
REQUIRED SHORT APPENDIX
Description of Item Short Appendix Page Number
Judgment in a Civil Case dated September 18, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . S.A.-01
District Court’s Memorandum Opinion and Order dated September 18, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S.A.-02 – S.A-14 Plaintiff’s Second Amended Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S.A.-15 – S.A. 44