Eric Alston v. City of Madison, et al
Filed opinion of the court by Judge Kanne. AFFIRMED. Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and Michael S. Kanne, Circuit Judge. [6832719-1]  [16-1034]
United States Court of Appeals
For the Seventh Circuit
ERIC T. ALSTON,
CITY OF MADISON, et al.,
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 13‐cv‐635 — Barbara B. Crabb, Judge.
ARGUED FEBRUARY 16, 2017 — DECIDED APRIL 10, 2017
Before FLAUM, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. The Madison Police Department es‐
tablished a focused deterrence program to increase surveil‐
lance of repeat violent offenders in Madison. Eric Alston was
one of ten repeat violent offenders originally selected for the
Alston brought this § 1983 suit against the City of Madi‐
son, then Chief of Police Noble Wray, Lieutenant Tom
Woodmansee, and three detectives—Cory Nelson, Samantha
D. Kellogg, and Paige Valenta—claiming that he was select‐
ed for the program because of his race in violation of his
equal‐protection rights. Alston also argued that his inclusion
in the program deprived him of liberty without due process
of law: he contended that he was stigmatized as a repeat vio‐
lent offender and subjected to increased surveillance, penal‐
ties, and reporting requirements, and to a biased probation‐
revocation hearing examiner.
While in the program, Alston’s probation officer Brian
Reynolds issued an apprehension request when Alston al‐
legedly failed to attend a scheduled appointment. Alston ar‐
gued that he rescheduled the appointment before he missed
it, so the apprehension request violated his Fourth Amend‐
The district court granted the defendants’ motion for
summary judgment. Because Alston failed to produce evi‐
dence that would allow a reasonable trier of fact to conclude
that the program had a discriminatory effect or purpose, that
Alston’s legal rights were altered by being included in the
program, and that the apprehension request issued without
reasonable suspicion, we reject Alston’s arguments.
Repeat violent offenders are responsible for a dispropor‐
tionate percentage of crime in Madison, and the police de‐
partment expends more resources policing those offenders
than others. The department created the Special Investiga‐
tions Unit to run a focused deterrence program designed to
combat that problem. The program used a two‐pronged ap‐
proach: (1) increase surveillance of repeat violent offenders
to deter criminal conduct and (2) provide resources to repeat
violent offenders to help them become productive members
If program members continued to reoffend, the depart‐
ment wanted them to be punished to the greatest extent pos‐
sible. To promote enforcement and punishment, investiga‐
tions unit detectives1 met with other law‐enforcement agen‐
cies to explain the program and to seek the agencies’ help
implementing it. In particular, the detectives met with pro‐
bation‐revocation hearing examiners and encouraged them
to revoke the probation of program members who violated
their probation terms.
Not every repeat violent offender in Madison was a part
of the program; the aim was to monitor only the worst of
that group. The investigations unit relied on two lists to se‐
lect participants for the program: one from the department
of corrections, which identified the most violent offenders
released in the last year, and one from the police department
technology staff, which identified the most prolific violent
offenders in the department’s database. From those lists, in‐
vestigations unit detectives made qualitative and quantita‐
tive judgments about potential candidates’ criminal history,
likelihood of reoffending, effect on the community, and
drain on department resources. Detectives chose eighteen
candidates and created a candidate profile for each person.
Each candidate’s profile included the candidate’s age, gang
membership (if any), a breakdown of prior criminal conduct
Defendants Cory Nelson, Samantha D. Kellogg, and Paige Valenta
were investigations unit detectives.
(including convictions and charged offenses), and pending
The investigations unit presented the candidate profiles
to a selection committee, which chose ten candidates for the
program. The department of corrections then sent a letter
notifying the selected candidates that they had been chosen
for the program. The members were told both in the letter
and by their probation officers that they had to attend a noti‐
fication meeting to learn more about the program.
Alston, who was one of the first ten people chosen for the
program, described the program less charitably. He argued
that the program was designed to reduce disproportionate
minority incarceration in Madison by making examples of
minority offenders. He based this conclusion on three pieces
of evidence. First, blacks accounted for only 4.5 percent of
the Madison population but 37.6 percent of arrests and 86
percent of the program.2 Second, as to the first ten members
chosen, the four candidates associated with allegedly black
gangs were selected while the one candidate associated with
an allegedly white gang was not. And third, quotes from
two high‐ranking police‐department officials, both involved
in establishing the program, revealed that the disparity in
minority incarceration was a concern when creating the pro‐
gram. Lieutenant Woodmansee stated that “the goal, truly,
was to have a positive impact on disproportionate minority
confinement.” (R. 113 at 6.) And an investigations unit report
credited Chief of Police Noble Wray with describing the
2 Eighty‐six percent refers to the racial composition of the program at the
time of oral argument: fifty‐five of sixty‐four program members were
program “as a tangible means of addressing racial disparity
in the criminal justice system.” (R. 111‐1 at 34.)
Alston also argued that Reynolds, his probation officer,
violated his Fourth Amendment rights. After receiving no‐
tice that he had been selected for the program, Alston started
having problems with law enforcement. One of Alston’s
probation conditions required him to attend appointments
with Reynolds. On November 16, Alston was not at home
for a scheduled visit. Alston alleges that he called Reynolds
before he missed the meeting and told Reynolds that he
would be late. According to Alston, they rescheduled the
appointment for December 2.
Reynolds contends that he did not hear from Alston on
November 16. According to Reynolds, Alston did not contact
him until November 25. Reynolds claims that Alston’s phone
died during the November 25 conversation and that Alston
did not call him back until November 30. Under Reynolds’s
version of the story, only then did they reschedule the ap‐
pointment for December 2.
Regardless of the details surrounding the November 16
meeting, Reynolds issued an apprehension request for Al‐
ston on November 23. On December 1, the police depart‐
ment began investigating a domestic battery that allegedly
involved Alston.3 A day later, Alston missed the rescheduled
appointment. His next contact with Reynolds or law en‐
forcement was on December 6, when he turned himself into
the police because of the domestic‐battery investigation.
3 Alston was charged with domestic battery but was acquitted.
After the missed appointments and domestic‐battery in‐
cident, Alston had a probation‐revocation hearing. At the
hearing, Alston appeared before his hearing examiner, Beth
Whitaker. Whitaker was one of the hearing examiners that
investigations unit detectives met with at the start of the
program. At those meetings, the detectives encouraged the
hearing examiners to revoke the probation of any program
member who violated a probation term. Alston asked Whit‐
aker to recuse herself, but she refused. She ultimately re‐
voked Alston’s probation, noting that the investigations
unit’s presentation played at least some role in her decision.
Alston brought a § 1983 suit, claiming that his inclusion
in the program violated his equal‐protection and due‐
process rights. Alston also claimed that the apprehension
request violated his Fourth Amendment rights. The district
court granted the defendants’ motion for summary judg‐
ment. This appeal followed.
We review de novo a grant of summary judgment, con‐
struing all facts and reasonable inferences in the nonmoving
party’s favor. Tapley v. Chambers, 840 F.3d 370, 376 (7th Cir.
2016). We affirm summary judgment if “the admissible evi‐
dence shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law.” Id. (quoting Hanover Ins. Co. v. N. Bldg. Co.,
751 F.3d 788, 791 (7th Cir. 2014)).
A. Equal‐Protection Claim
Alston first argues that he was selected for the program
because of his race in violation of his equal‐protection rights.
To prove an equal‐protection claim, Alston must show that
the program “had a discriminatory effect” and that the de‐
fendants “were motivated by a discriminatory purpose.”
Chavez v. Ill. State Police, 251 F.3d 612, 635–36 (7th Cir. 2001).
To prove discriminatory effect, Alston must show that he
was a member of a protected class and that he was treated
differently from a similarly situated member of an unpro‐
tected class. Id. at 636. He may do so either by statistical
analysis or by identifying a particular similarly situated
member of the unprotected class who was treated differently
from him. Id.
Blacks accounted for 4.5 percent of the Madison popula‐
tion, 37.6 percent of arrests, and 86 percent of the program—
statistics that Alston repeats time and again in his brief as
evidence of discriminatory effect. Even the defendants admit
that these statistics are regrettable. (Appellees’ Br. at 37.) But
that does not mean that the statistics prove discriminatory
effect. Statistics are relevant only if they address the perti‐
nent question, that is, whether Alston was treated differently
from a similarly situated member of the unprotected class.
Chavez, 251 F.3d at 638. Alston’s statistics do not address
whether black, repeat violent offenders were treated differ‐
ently from white, repeat violent offenders and thus are not
evidence of discriminatory effect.
In the absence of sufficient statistics, Alston also attempts
to identify a particular similarly situated member of the un‐
protected class who was treated differently from him. He al‐
leges that, although each candidate’s profile did not include
race, gang affiliation was used as a proxy for race. This ar‐
gument addresses the appropriate concern because it com‐
pares similarly situated people (repeat violent offenders) of
different classes (black versus white). And the candidates
associated with allegedly black gangs were chosen for the
program while the one candidate identified with an alleged‐
ly white gang was not.
But the argument fails for another reason: Alston never
made the racial‐proxy argument at the district court. On re‐
view of a district court’s decision on a motion for summary
judgment, we do not consider factual arguments not raised
below. Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843,
849 (7th Cir. 2015). “It is a well‐settled rule that a party op‐
posing a summary judgment motion must inform the trial
judge of the reasons, legal or factual, why summary judg‐
ment should not be entered. If it does not do so, and loses
the motion, it cannot raise such reasons on appeal.” Id.
(quoting Milligan v. Bd. of Trs. of So. Ill. Univ., 686 F.3d 378,
389 (7th Cir. 2012)). Because he did not make the racial‐proxy
argument at the district court, he cannot do so here. It would
be unfair to both the district court and the defendants to
conclude that there is a genuine dispute of material fact pre‐
cluding summary judgment when Alston did not present the
district court with the evidence and the defendants were
never given a chance to respond. Id.
But even if Alston could show a discriminatory effect, his
equal‐protection claim fails because he cannot show a dis‐
criminatory purpose. Discriminatory purpose means more
than simple knowledge that a particular outcome is the like‐
ly consequence of an action; rather, discriminatory purpose
requires a defendant to have selected “a particular course of
action at least in part ‘because of’ … its adverse effects upon
an identifiable group.” Chavez, 251 F.3d at 645 (quoting
McCleskey v. Kemp, 481 U.S. 279, 298 (1987)). “Proof of racial‐
ly discriminatory intent or purpose is required to show a vi‐
olation of the Equal Protection Clause.” Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
Alston first tries to rely on his statistics showing a dis‐
parate impact to prove a discriminatory purpose. But dis‐
parate impact alone is almost always insufficient to prove
discriminatory purpose. Washington v. Davis, 426 U.S. 229,
239 (1976). Without more, a court’s acceptance of a disparate‐
impact argument “would render suspect each difference in
treatment among the grant classes, however lacking in racial
motivation and however otherwise rational the treatment
might be.” Id. at 241 (quoting Jefferson v. Hackney, 406 U.S.
535, 548 (1972)). Only in rare cases are statistics alone
enough to prove discriminatory purpose. McCleskey, 481 U.S.
at 293 n.12. And even when equipped with such statistics, a
plaintiff must always “point to a defendant’s policy or poli‐
cies causing that disparity.” Texas Depʹt of Hous. & Cmty. Af‐
fairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2523
(2015). The two leading cases for this are Gomillion v. Light‐
foot, 364 U.S. 339 (1960) and Yick Wo v. Hopkins, 118 U.S. 356
(1886). In Gomillion, the state legislature redrew the city
boundary from a square to a twenty‐eight‐sided figure. Re‐
districting removed 395 of 400 black voters from city limits
while no white voter was affected. Yick Wo involved a law
that prohibited operating a laundromat in a wooden build‐
ing without a permit. All but one white applicant received a
permit but none of the 200 Chinese applicants did.
“Absent a pattern as stark as that in Gomillion or Yick Wo,
impact alone is not determinative, and the Court must look
to other evidence.” Arlington Heights, 429 U.S. at 266. The sta‐
tistics must be so stark that they are “unexplainable on
grounds other than race,” id., leading to the inescapable con‐
clusion, “tantamount for all practical purposes to a mathe‐
matical demonstration,” of discriminatory intent, Gomillion,
364 U.S. at 341.
True enough, Alston’s statistics show disparate impact:
we know that a substantial majority of the program was
black. Yet that does not lead to the inescapable conclusion
that the defendants acted with discriminatory intent. Con‐
sider more closely the statistics present in Gomillion and Yick
Wo. There, the statistics showed that minorities were dispro‐
portionately affected by the law. But the statistics showed
more than disparate impact. They revealed that almost all
minorities—every minority in Yick Wo and all but five mi‐
norities in Gomillion—were negatively affected by the law.
The statistics also revealed that almost no whites—none in
Gomillion and only one in Yick Wo—were negatively affected
by the law. In both cases, it was clear that the statistical dis‐
parity at issue was caused by the defendants’ actions, which
allowed the Court to conclude that statistics alone were
enough to prove unconstitutional disparate treatment. See
Gomillion, 364 U.S. at 341; Yick Wo, 118 U.S. at 373–74.
Alston’s statistics here lack any of those details. There is
no evidence about the number of black, repeat violent of‐
fenders who qualified for the program but were not chosen.
Nor is there any evidence about the number of white, repeat
violent offenders chosen compared to the number of white,
repeat violent offenders who could have been chosen. Ab‐
sent more specific statistics, we cannot say that mere dispar‐
ate impact is sufficient to prove discriminatory purpose.
So Alston had to provide other evidence of discriminato‐
ry purpose. As noted above, to show discriminatory pur‐
pose, a plaintiff must show that the decisionmaker “selected
or reaffirmed a particular course of action at least in part ‘be‐
cause of’ ... its adverse effects upon an identifiable group.”
Chavez, 251 F.3d at 645 (quoting McCleskey, 481 U.S. at 298)
(emphasis added). Here, Alston points to two statements
made by men in charge of creating and implementing the
program. Neither statement, however, is sufficient. For in‐
stance, Lieutenant Woodmansee said that “the goal, truly,
was to have a positive impact on disproportionate minority
confinement.” (R. 113 at 6) (emphasis added). While the in‐
carceration rate of minorities might have been part of the
reason for adopting the program, Woodmansee’s deposition
testimony shows the opposite of discriminatory purpose.
The testimony demonstrates that the program was created to
benefit, not discriminate against, Madison’s minority popu‐
Former Chief of Police Wray’s comment does not show a
discriminatory purpose for the same reason. That the pro‐
gram was a “tangible means of addressing racial disparity in
the criminal justice system” does not show that the depart‐
ment created the program to negatively affect blacks. (R.
111‐1 at 34.) Quite the contrary: if the police department
wanted to address the disparity in minority incarceration
then it did not intend to negatively affect blacks.
For those reasons, Alston has provided no evidence that
the program had a discriminatory effect or that the defend‐
ants acted with a discriminatory purpose. Thus, the district
court appropriately granted the defendants’ motion for
summary judgment on Alston’s equal‐protection claim.
B. Due‐Process Claim
Next, Alston argues that his inclusion in the program de‐
prived him of liberty without due process of law. He claims
that being chosen for the group stigmatized him as a repeat
violent offender and subjected him to increased reporting
requirements, surveillance, and penalties, and to a biased
probation‐revocation hearing examiner.
“A plaintiff may prove a deprivation of a protected liber‐
ty interest by showing damage to his ‘good name, reputa‐
tion, honor, or integrity.’” Hannemann v. S. Door Cty. Sch.
Dist., 673 F.3d 746, 753 (7th Cir. 2012) (quoting Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971)). But not every de‐
famatory statement by a public official constitutes “a depri‐
vation of liberty within the meaning of the Due Process
Clause.” Paul v. Davis, 424 U.S. 693, 702 (1976). State action
that simply harms a plaintiff’s reputation is insufficient; the
action must also alter a previously recognized legal status or
right. Hinkle v. White, 793 F.3d 764, 767–68 (7th Cir. 2015).
This is known as a “stigma‐plus” injury. Id. at 768.
Alston can prove the “stigma” portion of the stigma‐plus
test. The focused deterrence program’s entire purpose was to
monitor repeat violent offenders. Anyone selected for the
program carried that brand. Without question, being classi‐
fied as a “repeat violent offender” harms one’s reputation.
But Alston can get no further because he has not shown
that being selected for the program altered a previously rec‐
ognized legal status or right. Alston’s additional reporting
requirements amounted to a single event: the notification
meeting that he had to attend after he was initially chosen
for the program. But a probationer, unlike an ordinary citi‐
zen, does not retain the absolute right to come and go as he
pleases: a probationer’s liberty interest is necessarily limited
by special probation conditions. Griffin v. Wisconsin, 483 U.S.
868, 874 (1987). So to prevail on this claim based on his re‐
quired attendance at the notification meeting, Alston must
show that being forced to attend the notification meeting
constituted “a sufficiently large incremental reduction in
freedom to be classified as a deprivation of liberty.” Domka v.
Portage Cty., Wis., 523 F.3d 776, 781 (7th Cir. 2008) (quoting
Paige v. Hudson, 341 F.3d 642, 643 (7th Cir. 2003)).
As a probationer with reduced liberty interests, we can‐
not say that being forced to attend the single notification
meeting deprived Alston of his liberty without due process
of law. Alston’s probation terms make this especially clear.
One of the terms required Alston to report to appointments
with his probation officer. Although the notification meeting
was with the investigations unit detectives and not his pro‐
bation officer, Alston’s probation officer was the one who
told him about the meeting and told him that he had to at‐
tend it. Given his probation requirement, being forced to at‐
tend the notification meeting did not result in a large enough
reduction in Alston’s liberty to require due process.
Nor did the police department or investigations unit im‐
plement the program in a way that altered Alston’s previous‐
ly recognized legal status or rights. The defendants do not
dispute that program members were subjected to increased
surveillance and increased punishment. Indeed, that was the
program’s entire purpose. But neither fact altered Alston’s
legal rights. Alston has provided no evidence that being in‐
cluded in the program authorized the investigations unit to
conduct its surveillance in a way that violated his preexisting
rights. The detectives just did what they always had the au‐
thority to do: closely monitor Alston’s conduct. Likewise, the
increased penalties that the police department wanted en‐
forced against program members were penalties already au‐
thorized by law. Alston was not threatened with new or in‐
creased sentencing ranges. The department always had the
discretion to seek punishment at the strong end of the spec‐
trum. Bryn Mawr Care, Inc. v. Sebelius, 749 F.3d 592, 602–03
(7th Cir. 2014). It simply chose to exercise that discretion
within the scope of the program.
Finally, Alston’s argument about a biased hearing exam‐
iner is a nonstarter. A plaintiff cannot recover damages in a
§ 1983 suit if a judgment in the plaintiff’s favor would “nec‐
essarily imply the invalidity” of a prior conviction. Heck v.
Humphrey, 512 U.S. 477, 487 (1994). And a ruling that his
hearing examiner was biased would necessarily imply the
invalidity of the probation‐revocation hearing. “A criminal
defendant tried by a partial judge is entitled to have his con‐
viction set aside, no matter how strong the evidence against
him.” Edwards v. Balisok, 520 U.S. 641, 647 (1997) (applying
the principle to a prison disciplinary hearing). The only ap‐
propriate way to challenge the validity of a prior conviction
is on collateral review. Alston pursued this argument on col‐
lateral review and lost. Alston v. Smith, 840 F.3d 363 (7th Cir.
Despite providing sufficient evidence to conclude that he
was stigmatized, Alston has provided no evidence that being
included in the program altered his previously recognized
legal status or rights. Thus, the district court appropriately
granted the defendants’ motion for summary judgment on
Alston’s due‐process claim.
C. Fourth Amendment Claim
Finally, Alston argues that Reynolds violated his Fourth
Amendment rights by issuing the apprehension request
without a reasonable suspicion that he violated his proba‐
tion terms. Alston insists that he called Reynolds and re‐
scheduled the November 16 appointment before he missed it
and thus did not violate his probation.
When reviewing a grant of summary judgment, we con‐
strue all facts and reasonable inferences from the record in
the nonmoving party’s favor. Tapley, 840 F.3d at 376. Yet even
at the summary‐judgment stage not every purported factual
dispute precludes summary judgment. A factual dispute
must be material and genuine. Carroll v. Lynch, 698 F.3d 561,
564 (7th Cir. 2012). A factual dispute is genuine only if “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
While the factual dispute here is material, it is not genu‐
ine. A probation officer needs only a reasonable suspicion
that the probationer violated a probation term to issue an
apprehension request. Knox v. Smith, 342 F.3d 651, 657 (7th
Cir. 2003). And no reasonable trier of fact could conclude
that Reynolds lacked reasonable suspicion that Alston
missed the November 16 appointment.
Alston’s affidavit forecloses any argument to the contra‐
ry. In his response to the defendants’ proposed findings of
fact, Alston asserted that he remembered “rescheduling the
office visit just minutes after missing the November 16, 2011
‘home visit’.” (R. 71 at ¶ 7.) Alston attempts to evade his
admission by arguing that he meant he called Reynolds
“minutes after the home visit was to begin.” (Appellant’s Br.
at 42.) Even so, he was not at home when he was supposed
to be for the scheduled appointment. Rather than lacking
reasonable suspicion, Reynolds knew with certainty that Al‐
ston had violated his probation. Accordingly, the apprehen‐
sion request was issued with reasonable suspicion and did
not violate Alston’s Fourth Amendment rights.
For the foregoing reasons, we AFFIRM the district court’s
grant of the defendants’ motion for summary judgment.
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