Del Marcelle v. Brown County Corp.

Dist. Ct. did not err in dismissing for failure to state valid claim, plaintiffs' section 1983 action against defendants-police officials alleging under class of one equal protection claim that defendants arbitrarily provided plaintiffs with less police protection by failing to respond to their complaints against third-party gang members who allegedly harassed plaintiffs at or near their home. All ten members of Ct. of Appeal found that dismissal was proper to extent that allegations of complaint alleged only inadequate police protection. However, five members of Ct. of Appeals would not allow plaintiffs to re-plead their complaint, and thus affirmed Dist. Ct.'s dismissal with prejudice. Four members of Ct. of Appeals would require that plaintiffs allege that they were victims of discrimination intentionally visited on them by state actor who knew or should have known that they had no justification for singling them out for unfavorable treatment, and who acted for personal reasons with discriminatory intent and effect. Five members of Ct. of Appeals, who would allow plaintiff ability to re-plead complaint, would require plaintiff to allege intentional discrimination on part of state actor, where discrimination lacked rational basis that caused plaintiffs' injuries. (Dissent filed.)