source: Caselaw Access Project

author: HAMILTON, Circuit Judge,

license: Public Domain

text:
    James BRUNSON and Brunson Package, Inc., Plaintiffs-Appellants, v. Scott MURRAY, et al., Defendants-Appellees.
    No. 14-2877
    United States Court of Appeals, Seventh Circuit.
    Argued February 24, 2016
    Decided December 13, 2016

      Richard S. Fedder, Attorney, Marietta, GA, for Plaintiffs-Appeilants.
    Joseph A. Bleyer, Attorney, Bleyer & Bleyer, Marion, IL'; Brett E, Legner, Attorney, Office of The Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.
    Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge,

Plaintiff James Brunson owns a package liquor store in Bridgeport, Illinois. He asserts that city officials violated his constitutional rights by refusing to renew his liquor license and orchestrating a campaign of harassment and outright violence. Brunson has offered evidence that after he purchased the business, he was subjected to continued harassment by the defendants, including Max Sehauf, the town’s mayor and local liquor commissioner. When Mayor Sehauf refused to consider Brunson’s application for a routine renewal of his liquor license, Brunson was forced to close his business and to alert state authorities to reopen. A few weeks later, while keeping watch over his store late at night after vandalism incidents, Brunson was attacked by one of Sehaufs associates. The two men fought until Brunson was able to pin down the attacker and call police. Two weeks later, Brunson was the one arrested for felony aggravated battery.

Brunson brought this suit under 42 U.S.C. § 1983 alleging federal claims of false arrest, denial of equal protection, and denial of due process, as well as several state-law claims. The district court granted summary judgment on Brunson’s federal claims and dismissed the state-law claims without prejudice. We affirm in part and reverse in part. We affirm summary judgment for prosecutor Lisa Wade, who is protected by absolute prosecutorial immunity for her role in this case. We also affirm Summary judgment for the City of Bridgeport and for all remaining defendants as to Brunson’s false arrest claim. But we reverse summary judgment on Brunson’s class-of-one equal protection claim. We also reverse summary judgment for Sehauf and hold he is not entitled to absolute immunity on Brunson’s due process claim for Sehauf s refusal to act on the liquor license renewal.

I. Factual and Procedural Background

On appeal from a grant of summary judgment to the defendants, we construe the evidence in the light reasonably most favorable to the plaintiffs and give them the benefit of all reasonable inferences from that evidence, without vouching for the objective truth of this account. E.g., Chaib v. GEO Group, Inc., 819 F.3d 337, 340-41 (7th Cir. 2016).

A. Brunson’s Liquor Store

In the summer of 2008, James Brunson purchased the only liquor store in Bridgeport, Illinois. As part of the purchase, he obtained a liquor license. Brunson’s store was one of only five places to buy alcohol in Bridgeport.

Bridgeport Police Chief Scott Murray was a frequent visitor to the shop. He often told Brunson that he was violating state and local liquor laws. Brunson-would try to track down the laws Murray accused him of violating, only to find they did not actually exist. On one occasion, Chief Murray told Brunson that he had to be a Bridgeport resident to own a liquor business. Brunson, finding this odd, called Bridgeport Mayor Max Sehauf, who was also the local liquor commissioner, Sehauf “confirmed” that such a law was on the books, but it was not.

There is evidence that Sehauf s interest in Brunson’s business was a matter of self-interest. First, Sehauf had made a competing offer' to purchase the store and had lost out to Brunson. Also, Sehauf already owned or had an interest in one of the other establishments in town that served alcohol — Red Hills Veterans Club — by way of subterfuge. The Veterans Club was ostensibly run by Beverley Pruez. An investigation by the Illinois Liquor Control Commission revealed that Pruez had a romantic relationship with Sehauf, who had owned the club and signed liquor license renewals under the table for Pruez. And Schaufs son Mark would open another Bridgeport bar and restaurant called “The Place to Be.” Since Sehauf was the local liquor commissioner, this type of self-regulation would of course be verboten.

B. 2010 Liquor License Renewal

In April 2010, Brunson applied to renew his liquor license several weeks before it would expire. This is typically a simple process. A licensee with no violations is entitled to a pro forma license renewal. Instead, Chief Murray visited for an inspection. Brunson asked if there would be any trouble with the license renewal. Chief Murray told him to hire a lawyer. Receiving no updates on the status of his application, Brunson called Schauf the day his license was set to expire. Schauf told Brunson that he would not be renewing the license in time and did not know when he would make a decision. On May 1, with Mayor Schauf running out the clock, Brun-son was forced to shutter his business and hire counsel.

Brunson contacted the state Commission, which assigned Special Agent Randal Mendenhall to investigate. Schauf told Mendenhall that he was taking time to review Brunson’s license. Mendenhall pointed out that under state law, Schauf did not have this type of discretion: Schauf could renew or not renew the license, but he was not entitled to delay indefinitely. The state Commission ordered that Brun-son be allowed to operate the store pending a hearing.

Brunson re-opened his store, prompting another visit from Chief Murray to ask: “What makes you think you can reopen your store when we say you can’t.” Brun-son’s liquor supplier also received a call from the city clerk saying it could no longer sell to Brunson. Brunson showed Murray the Commission’s order, and the supplier continued to sell to Brunson when the city clerk could not give any specific reason for the prohibition. Shortly before the Commission’s scheduled hearing over Brunson’s license, Schauf renewed the license without comment or explanation and backdated it to make it appear as if he had renewed it on time.

C. The Violent Events of August 7, 2010

Brunson’s experience as a store owner worsened still further in the summer of 2010. One weekend in July, Brunson discovered that someone had attempted to break into the store by trying to remove the back door from its hinges. The act appeared to be both premeditated and at least a little sophisticated. The vandal had left behind a flashlight and safety glasses and had chipped away the door to get at the dead bolt. Chief Murray visited the scene but dismissed the incident as the work of teenagers. He did not file a police report. The following weekend, Brunson discovered that the compressor outside his store had been vandalized. He again called police but found no satisfaction.

Sensing a pattern, and finding little help from the local police, Brunson turned to self-help. He stood guard over his store the next weekend, armed with a loaded gun. A little past 3:00 a.m. on August 7, Brunson noticed a car crawling back and forth past his store. Then the car stopped, a man emerged, and Brunson heard the store’s front windows shatter. He hurried to the scene and found Jody Harshman — a convicted felon, an off-and-on employee at Mayor Schauf s businesses, and a friend of the Schauf family.

Harshman raised a hammer and turned on Brunson, who in turn raised his gun. Harshman thought Brunson was bluffing and moved toward him. Brunson, who was not bluffing, pulled the trigger but the gun jammed. Harshman threatened, “Now you’re f***ing dead,” and swung the hammer at Brunson. Brunson blocked the blow and the two men fought. Brunson’s gun fired and Harshman fled.

Brunson did not disengage. ■ Trailing Harshman at a distance, he called authorities. Before police arrived, Harshman tossed his hammer away, and in doing so caught sight of Brunson. Harshman charged at Brunson, who felled Harshman with a blow to the face. When Harshman tried to get up, Brunson knocked him down again with a kick. Brunson fixed the jam on his gun and held Harshman at gunpoint until police arrived. Brunson also noticed a car parked nearby with Mark Schauf — son of Mayor Schauf and a friend of Harshman — inside. As Harshman was being placed in an ambulance, Chief Murray reached the scene and took over the investigation. Brunson gave his account of the incident; he also pointed Murray’s attention to Mark Schauf and asked whether Murray should be involved in the investigation.

Another officer at the scene, Officer Dooley, later explained the significance of this exchange. There was no good reason for Mark Schauf to have been at the scene in the early hours of the morning. In Dooley’s opinion, there was a “likelihood that Mark Schauf may have been an accomplice involved in planning or carrying out the crime,” a suspicion Dooley said Murray shared. And.given that Mark’s father was Chief Murray’s boss, “Murray.should not have investigated this case himself.” Dooley believed that officers from a different jurisdiction — preferably the state police— should take over the investigation. Nonetheless, Chief Murray stayed on the' case.

Two weeks later, on August 20, both Harshman and Brunson were arrested. Harshman was charged with criminal damage to property and pled guilty to a misdemeanor. Brunson was charged with felony aggravated battery. He pled not guilty. At least at the time of the district court’s decision in 2014, that case was still pending.

D. Procedural History

Brunson’s § 1983 suit alleged violations of both federal and state law by Mayor Schauf, Chief Murray, State’s Attorney Lisa Wade, Harshman, the city of Bridgeport, and Lawrence County. The three federal-law claims were: (1) false arrest, (2) denial of equal protection under the Fourteenth Amendment, and (3) denial of due process under the Fourteenth Amendment. The three state-law counts were: (1) tortious interference with'business expectation, (2) conspiracy, and (3) tortious supervisory liability against the city and county.

On defendants’ motions for summary judgment, the district court first held that State’s Attorney Wade was absolutely immune from liability for her role in prosecuting Brunson for battery and that Lawrence County was entitled to summary judgment because Brunson failed to respond to the county’s motion. On the merits, the district court granted summary judgment to all defendants on the false arrest claim (Count 1) because there was probable cause to arrest Brunson for battery. The court granted summary judgment on the equal protection claim (Count 2) because Brunson did not have evidence of similarly situated comparators. The court granted summary judgment on the due process claim (Count 3) based on Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004), where we said that a local Illinois liquor commissioner had absolute judicial immunity even if his official actions were riddled with errors. The district court declined supplemental jurisdiction over the three state-law claims and dismissed them without prejudice.

We review a grant of summary-judgment de novo. United Central Bank v. KMWC 845, LLC, 800 F.3d 307, 310 (7th Cir. 2015). As noted, we construe the evidence in the light most favorable to Brun-son as the non-moving party and give him the benefit of all reasonable inferences in his favor. Tolan v. Cotton, 572 U.S. --, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014); Boston v. U.S. Steel Corp., 816 F.3d 455, 462 (7th Cir. 2016).

II. Prosecutorial Immunity

Brunson claims that prosecutor Wade participated in his false arrest and deprived him of the equal protection of the laws. She is entitled to summary judgment based on absolute prosecutorial immunity.

Wade’s first involvement with Brunson’s case came after the violent August 7 incident. On August 11, after the Bridgeport police finished their investigation, Chief Murray turned the case file over to Wade. After Murray and Wade discussed the case, Wade’s office prepared a formal charge of aggravated battery and sought an arrest warrant, which was issued on August 20. Before the arrest, Wade also spoke with Officer Dooley, who confirmed that Chief Murray alerted her to Mark Schauf s presence at the scene. Wade also recognized Chief Murray’s possible conflict of interest. Wade would later appear on behalf of the State at Brunson’s probable cause hearing.

Prosecutors are absolutely immune from liability “for their core prosecu-torial actions.” Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012), citing Hartman v. Moore, 547 U.S. 250, 261-62, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (prosecutor “is absolutely immune from liability for the decision to prosecute”); see also Spiegel v. Rabinovitz, 121 F.3d 251, 257 (7th Cir. 1997) (“Under Illinois law, the State’s Attorney ... is vested with exclusive discretion in the initiation and management of a criminal prosecution.”). When a prosecutor performs investigative or administrative actions, however, she receives only the qualified immunity afforded to law-enforcement officers. Lewis, 677 F.3d at 330, quoting Buckley v. Fitzsimmons, 509 U.S. 259, 276, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Core actions covered by absolute prosecutorial immunity are those “intimately associated with the judicial phase of the criminal process.” Lewis, 677 F.3d at 330, quoting Buckley, 509 U.S. at 270, 113 S.Ct. 2606.

The issue is whether the prosecutor was acting as an officer of the court and performing actions related to the judicial rather than investigative phase of the criminal process. Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012). For example, a prosecutor is not absolutely immune when she swears to the facts in a charging document — an investigative function — but she is absolutely immune for signing the charging document itself and initiating a prosecution. Olson v. Champaign County, 784 F.3d 1093, 1102-03 (7th Cir. 2015) (no immunity for Illinois prosecutor swearing to allegedly false information to obtain arrest warrant).

Absolute prosecutorial immunity covers Wade’s conduct in this case. Wade’s decision to charge Brunson with battery and her appearance at Brunson’s preliminary hearing were core prosecutorial functions. Nor does Brunson allege that Wade omitted exculpatory evidence in bad faith. Brunson argues, though, that Wade is not immune for her failure to call for the state police to take over the investigation in light of Chief Murray’s conflict of interest. We reject* this argument. The prosecutor’s choice to accept the police report and go forward with the prosecution without seeking further investigation by the state police was not an investigative act. It was a deliberate decision not to interfere with the investigation, Wade’s work began after the police investigation had ended. See Fields, 672 F.3d at 512 (“Prosecutors do not function as advocates before probable cause to arrest a suspect exists.”).

III. Equal Protection Claim

This leaves Brunson’s three federal claims against the remaining defendants: Mayor Schauf, Chief Murray, and the City of Bridgeport. We focus first on Brunson’s most straightforward claim, that the defendants violated his Fourteenth Amendment right to equal protection of the law. The crux of this claim is that Mayor Schauf, with the aid of the other defendants, harassed Brunson under color of state law in an attempt to drive him out of business for Schauf s own personal gain or other illegitimate purposes. Brunson’s equal protection claim covers the entire campaign against him, including Schauf s arbitrary delay in renewing Brunson’s liquor license as well as the harassment by law enforcement, the interference in his business, the vandalism of his store, and the investigation of his violent encounter with Harshman.

The Equal Protection Clause guards against government discrimination on the basis of race and other immutable characteristics, but it also extends to protect people from so-called “class-of-one” discrimination in which a government arbitrarily and irrationally singles out one person for poor treatment. Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). These class-of-one claims are designed to prevent government actors from singling qut a person for arbitrary abuse. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Class-of-one discrimination “is illustrated when a public official, ‘with no conceivable basis for his action other than spite or some other improper motive ... comes down hard on a hapless private citizen.’ ” Swanson v. City of Chetek, 719 F.3d 780, 784 (7th Cir. 2013), quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005) (alteration in original).

The district court determined that Brun-son’s claim failed for lack of evidence that defendants treated other similarly situated persons better than they, treated him. Citing the Supreme Court’s decision in Village of Willowbrook, the court wrote that a class-of-one claim requires a two-part showing: first, that a plaintiff was intentionally treated worse than similarly situated comparators, and second, that there was no rational basis for the different treatment.- Brunson’s claim failed, the court said, because he did not produce evidence of similarly situated licensees in Bridgeport Who had been treated better during their own licensing processes. Instead, his claim focused too heavily on prong two of the equal protection analysis. See Srail v. Village of Lisle, 588 F.3d 940, 945-46 (7th Cir. 2009) (granting summary judgment to defendants where plaintiffs failed to raise genuine issue of material fact with respect' to similarly situated comparators).

The .elements of class-of-one claims have remained unsettled since this court’s decision in Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en banc). In that case, the en banc court produced three separate opinions in a tie vote affirming the district court’s dismissal of the suit. The crux of the disagreement was whether the plaintiff in a class-of-one claim must demonstrate only that there is no possible justification or rational basis for the defendant’s actions, id. at 900 (Easterbrook, C.J.,-concurring in the judgment), or if the plaintiff must demonstrate a lack of justification and also present evidence of hostile intent or animus, id. at 889 (Posner, J., plurality opinion), or if the plaintiff must demonstrate an absence of rational basis, which can be satisfied with evidence of animus, id. at 913 (Wood, J., dissenting). Brunson’s class-of-one claim survives summary judgment under all three standards.

The standard in Judge Easterbrook’s opinion gives motive and intent in class-of-one suits “no role at all.” Id. at 900 (East-erbrook, C.J., concurring). Class-of-one claims must simply address “whether a rational basis can be conceived, not whether one is established on the record or occurred to a defendant.” Id. Under that standard, the “only proper use of intent in a class-of-one case is to show that discrimination exists.” Id.

The standard in Judge Posner’s plurality opinion requires the plaintiff to demonstrate that “he was the victim of discrimination intentionally visited on him by .state actors who knew or should have known that they had no justification, based on their, public duties, for singling him out for unfavorable treatment — who acted in other words for personal reasons, with discriminatory intent and effect.” Id. at 889 (Pos-ner, J., plurality opinion) (emphasis in original removed).

And the third standard, explained in Judge Wood’s dissent joined by four additional judges, laid out four elements to a class-of-one claim: “(1) plaintiff was the victim of intentional discrimination, (2) at the hands of a state actor, (3) the state actor lacked a rational basis for so singling out the plaintiff, and (4) the plaintiff has been injured by the intentionally discriminatory treatment.” Id. at 913 (Wood, J., dissenting). Under this standard, “personal animus, illegitimate motives, [and] inexplicable deviations from clear rules” illustrate the kind of facts a plaintiff may rely upon to demonstrate that a lack of rational basis is plausible. Id.

While we await a final resolution of the doctrinal debate, Brunson’s claim survives summary judgment under all three standards. First, while earlier cases cited by the district court had required evidence of similarly situated comparators, see Srail, 588 F.3d at 945 (7th Cir. 2009); Vision Church v. Village of Long Grove, 468 F.3d 975, 1002 (7th Cir. 2006), our more recent cases have made clear that such evidence is not always required. Evidence of similarly situated individuals is not required as part of a formalistic mandate, but such evidence may help to establish disparate treatment: “if all principal characteristics of the two individuals are the same, and one received more favorable treatment, this may show there was no proper motivation for the disparate treatment.” Swanson, 719 F.3d at 784. Some cases, however, present the circumstance where disparate treatment “is easily demonstrated but similarly situated individuals are difficult to find.” Id. These class-of-one claims are also viable. See, e.g., Miller v. City of Monona, 784 F.3d 1113, 1120-21 (7th Cir. 2015) (collecting cases).

For instance, in Geinosky v. City of Chicago, we reversed a dismissal based on a plaintiffs failure to identify and describe comparators in his complaint. 675 F.3d at 748-49. The pattern of the defendants’ conduct toward the plaintiff — two dozen false parking tickets in fourteen.months— demonstrated on its own “the officers’ improper discriminatory purpose.... [W]here the alleged facts so clearly suggest harassment by public officials that has no conceivable legitimate purpose,” the plaintiff did not need to identify comparators. Id. at 748.

Our later en banc decision in Del Mar-celle found common ground in supporting the Geinosky approach to comparators. We said that if the allegations signal that the plaintiff alone suffered the defendant’s harassment, there is no need to identify a comparator. 680 F.3d at 914-15 (Wood, J., dissenting); see also id. at 898 (Posner, J., plurality opinion) (demonstrated pattern against one individual “adds up to deliberate and unjustified official harassment” even without comparators), quoting Geinosky, 675 F.3d at 745.

Defendants argue here, and the district court agreed, that because Brunson held the only Class B liquor license in Bridgeport, he could not identify any similarly situated comparators. Bridgeport is a small town of 2,500, with just five establishments selling or serving any liquor. Brunson owned the only package liquor store and Class B liquor license. Thus, as in many small communities, it would have been practically impossible for Brunson to produce similarly situated comparators among Class B liquor license holders as distinguished from Class A restaurants and Class C clubs. In this case, requiring Brunson to produce a comparator among Class B liquor establishments “would not help distinguish between ordinary wrongful acts and deliberately discriminatory denials of equal protection.” Geinosky, 675 F.3d at 748.

Brunson offered evidence of a pattern of discriminatory behavior on the part of a government. As we recognized in Geinosky, such a pattern can perform the same function as the similarly situated requirement in other class-of-one claims. Id. As the district court noted, Chief Murray repeatedly visited “to inform Brunson that he and his store were in violation” of nonexistent state and local liquor laws. Mayor Schauf attempted to single Brunson out with a proposed local rule that would have driven only him out of business. When Schauf arbitrarily refused to act on his license renewal, Brunson was forced to close his store and hire counsel. A city official tried to intimidate Brunson’s liquor supplier in an attempt to cut off Brunson’s receipt of product. Brunson also produced an affidavit from Agent Mendenhall that reasonably described this behavior as harassment.

Brunson has also offered evidence sufficient. to avoid summary judgment that there was no rational and legitimate basis for Mayor Schauf to.single out Brunson for discriminatory treatment. He had no overwhelming number of license renewals to review nor insufficient resources to do so. The- average was not even one renewal per month. According to the State Commission’s Agent Mendenhall, Schauf had no discretion to delay the pro forma renewal. As Brunson emphasizes in his brief, even Schauf himself — from the time Brun-son and Agent Mendenhall first inquired until he submitted his appellate brief — has not offered a reason, “any reason, not even a spurious reason, for his inaction.” A jury could find that Schauf had no conceivable justification for his actions based on his public duties as liquor commissioner. See Del Marcelle, 680 F.3d at 900 (Easter-brook, C.J., concurring in the judgment).

Accordingly, Brunson has shown a lack of rational basis so that his claim survives summary judgment under Judge Easter-brook’s standard in Del Mareelle. Still, “something other than the normal rational-basis test applies to class-of-one claims,” id. even if that something has not been clearly delineated. Brunson will need to address intent on remand.

With regard to hostile intent and animus, whether the standard requires it or only allows its use as evidence, the pattern of harassment and discriminatory acts driven by Schaufs personal interests in Bridgdport is sufficient to satisfy both the plurality and dissenting opinions in Del Mareelle. See id. at 889, 913. Brunson, supported by Mendenhall’s affidavit, paints a clear picture of the motive for this pattern of behavior: Schauf had a number of personal interests adverse to Brunson’s store, and he sought to harass Brunson to drive him out of business, Brunson has offered evidence of substantial animus and a continuing misuse of power by government agents akin to an “orchestrated campaign of official harassment motivated by sheer malice” that we have said is sufficient (though it may not be necessary) to support an equal protection claim, Olech v. Village of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998) (internal quotation marks omitted), aff'd, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

Courts must handle class-of-one claims carefully to avoid turning “every squabble over municipal services, of which there must be tens 'or even hundreds of thousands every year, into a federal constitutional case.” Id. But the severity and extent of the defendants’ harassment shown by Brunson’s evidence convince us that this claim should go to trial.

IV. False Arrest

We turn to Brunson’s false arrest claim. Brunson was arrested on August 20 oñ a warrant. Brunson argues that Murray participated in his arrest but lacked probable cause to believe he had committed the crime charged. Brunson contends that clear evidence of self-defense defeated any probable cause to support an arrest for aggravated battery. The district court, reasoning that affirmative defenses play no part in the probable cause determination, granted the defendants’ motion for' summary judgment on the claim. We affirm but on a different ground.

The key point is that- Chief Murray arrested Brunson on the basis of an arrest warrant. A state court issued the facially valid warrant upon application by the prosecuting attorney. Murray concluded his investigation and turned over his police report to State’s Attorney Wade. Wade then reviewed the police report and determined there was probable cause to arrest Brunson for aggravated battery. Her office prepared, and she personally signed, a charging document for Brunson. Chief Murray affirmed the factual allegations: that Brunson committed a battery in that he “struck Jody Harshman in the head and kicked Jody Harshman in the face, head, and, chest.” A court issued an arrest warrant for Brunson on August 20, and Murray arrested Brunson that day.

When a person has been arrested as a result of such formal legal processes, his claim is not for an unconstitutional false arrest but (perhaps, if at all) for malicious prosecution, which we leave to state law in Illinois. See Bianchi v, McQueen, 818 F.3d 309, 321 (7th Cir. 2016). A police officer who receives a facially valid arrest warrant is ordinarily expected to act upon it, not to second-guess the court’s decision to issue it. The officer does not personally violate the Constitution by making the arrest' the court has authorized.

We have recognized a narrow exception to this rule where a reasonable officer would have known that the evidence provided to support the warrant failed, to establish probable cause. Williamson v. Curran, 714 F.3d 432, 442 (7th Cir. 2013). That exception does not apply here. Chief Murray was entitled to investigate, to turn over the results to the prosecutor, and to let the prosecutor and then the court figure out if there was probable cause for the arrest or whether Brunson was clearly acting in self-defense. This case therefore does not present an issue concerning the scope of a police officer’s duty, on the street, to evaluate available evidence of an affirmative defense. See McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009) (officer may end investigation once he has probable cause, but “may not ignore conclusively established evidence of the existence of an affirmative defense,” though Fourth Amendment imposes no duty to investigate validity of defense), quoting Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004).

A second narrow exception could apply if Murray himself “knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and [if] the false statements were necessary to the judicial officers’ determinations that probable cause existed for the arrests.” See Beauchamp v. City of Noblesville, 320 F.3d 733, 742-43 (7th Cir. 2003), citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). This can include law enforcement deliberately or recklessly failing to inform the judicial officer of facts negating probable cause. Id. at 743. Brun-son has not offered evidence that Murray deliberately or recklessly made any false statement or omitted any critical fact. He has not identified anything in Murray’s police report or in the factual portion of the application for an arrest warrant that is demonstrably deceptive or false. Accordingly, Brunson has not cleared the high bar to support his false arrest claim,

V. Due Process and Mayor Schaufs Immunity

We next address Brunson’s claim that he was deprived of a property interest (his liquor license) without due process of law when Mayor Schauf refused to act in a timely manner on his application to renew the annual license. According to Brunson, the license should have been renewed automatically. Schauf s refusal to act forced Brunson to close his business until he could persuade the state Commission to step in and allow him to reopen. The district court granted summary judgment to Schauf on this claim based on the defense of absolute quasi-judicial immunity. The district court correctly limited its discussion of immunity to Brunson’s due process claim.

The district court’s grant of absolute immunity for action on a license renewal has support in our opinions in Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004), and Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir. 1983), which hold or. indicate that absolute immunity is available not only for a local liquor commissioner’s decisions to suspend or revoke licenses, but also for actions on license renewals. On further consideration, however, and in light of supplemental briefing on the question, we conclude that those cases must be narrowed so as to exclude license renewal decisions. The key holding expressed in Reed based its grant of absolute immunity for license renewal decisions on a view of Illinois law that is no longer accurate and on a broad view of absolute immunity that the Supreme Court has narrowed. We reverse the grant of absolute immunity to the may- or with respect to the non-renewal of Brunson’s liquor license.

We start the analysis with the Supreme Court’s approach to the strong medicine of absolute immunity. Absolute immunity is a powerful shield attaching primarily to judicial functions — not to the person or position. Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985), citing Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). When a functional analysis of the responsibilities at issue reveals that they are judicial in nature, the actor is entitled to absolute immunity from damages no matter how erroneous the act or injurious the consequences. Id. at 199-200, 106 S.Ct. 496. If the functions are not judicial in nature, however, then absolute immunity is not available. The official is left with the still-important protection of qualified immunity, which defeats individual liability unless his or her actions were contrary to clearly established law. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

Under the reasoning of Cleaving-er and Butz, the action of renewing or not renewing an Illinois liquor license is a bureaucratic and administrative act — not a judicial act. Under state law, a local liquor commissioner’s action on a license renewal lacks the procedural formalities and protections that apply to the same official’s decision to suspend or revoke a license. The differences are great enough to produce different results for the availability of absolute'immunity.

An overview of the state statute and facts of this case is helpful here. Under the Illinois Liquor Control Act, a liquor license holder is entitled to important procedural protections when a local liquor commissioner acts to suspend or revoke a license and/or to impose a fíne. Those actions by a local liquor commissioner require a public hearing, with at least three days’ written notice. The licensee must have an opportunity to be heard, and an official written record of evidence is required. Liquor Control Act of 1934, 235 Ill. Comp. Stat. 5/7-5. The Act also provides additional procedural safeguards, including additional hearings and appeals. Id.; 235 Ill. Comp. Stat. 5/7-9; see also Killinger, 389 F.3d at 770 (holding that local liquor commissioner was entitled to absolute immunity for actions in suspending license). The Act also allows emergency suspensions of up to seven days without a prior hearing but provides for expedited hearings to contest them. 235 Ill. Comp. Stat. 5/7-5.

License renewal does not provide comparable procedural protections. The Act provides that a license holder may renew a license at its expiration, “provided he is then qualified to receive a license and the premises for which such renewal license is sought are suitable for such purpose.” 235 Ill. Comp. Stat. 5/6-1. The Act also gives the local liquor commissioner the right to investigate any applicant for a local license renewal, including examining the applicant’s books and records and taking testimony and evidence. 235 Ill. Comp. Stat. 5/4-5. However, the local application for Bridgeport renewal applicants is a one-page, tick-the-box form, and Agent Men-denhall testified that approval was virtually “automatic.” Most important for our purposes, the Act does not grant a right to notice and a hearing in the event of a planned or actual decision not to renew, nor does the Act require the commissioner to state for the record any reasons for denying renewal. The licensee has the right to appeal a denial to the state Commission, the filing of which allows the licensee to continue its operations. See 235 Ill. Comp. Stat. 5/7-9. Such an appeal is quite different from an appeal of a revocation or suspension, either of which would require notice, a hearing, a record, and a reasoned decision.

In this case, Brunson submitted the pro forma application for renewal three weeks before his license was set to expire. Although the local ordinance required Schauf to review the application within 15 days, he sat on it for seven weeks, forcing Brunson to close his store. By simply not acting, Schauf made it difficult for Brunson to appeal, which is a key safeguard against unlawful or unconstitutional acts. With no other recourse available to him, Brunson sought the aid of hired counsel and the state Commission. Only because Brunson independently solicited the aid of the state Commission was he able to reopen his store with the involvement of Agent Men-denhall.

Cleavinger offers a guide to assessing the relative importance of these facts and statutory characteristics. 474 U.S. at 201-02, 106 S.Ct. 496. Our functional analysis of the immunity issue is aided by the six factors “characteristic of the judicial process” set out in the decision, which are .“to be considered in determining absolute as contrasted with qualified immunity”:

(a) the need to assure that the individual can perform his functions without harassment or intimidation;
(b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct;
(c) insulation from political influence;
(d) the importance of precedent;
(e) the adversary nature of the process; and
(f) the correctability of error on appeal.

Id. at 202, 106 S.Ct. 496, citing Butz, 438 U.S. at 512, 98 S.Ct. 2894.

These factors weigh decisively against absolute immunity for an Illinois local liquor commissioner’s action on whether tó renew a liquor license. First, while the risk of harassment may be substantial when a local liquor commissioner makes decisions to suspend or revoke licenses, the risk of harassment is minimal where the decision to renew is “automatic” and “not discretionary.” Second, while there are substantial procedural safeguards available in cases of suspensions or revocations, including notice, a prompt public hearing on an official record, and a reasoned written decision, see 235 Ill. Comp. Stat. 5/7-5, those protections do not apply to actions on license renewals. Third, unlike many judges, the local liquor commissioner is an elected mayor, not insulated at all from political influence, though that factor applies equally to any of the official’s actions. See 235 Ill. Comp. Stat. 5/4-2. Fourth and fifth, we have no indication that precedent is important in the administrative renewal process, nor is the process adversarial or even based on a record of evidence.

The sixth and only factor that tends to support absolute immunity is that errors can be corrected on appeal to the state Commission. That factor is limited to some extent, however, because in the case of inaction on a license renewal, the appellant must show there is a local commissioner’s “order or action .., having the effect of ... denying a renewal application.” 235 Ill. Comp. Stat. 5/7-9. When the local commissioner simply refuses to act, as Mayor Schauf did here, the inaction poses a further challenge to effective review.

We have applied absolute immunity under federal law only when the official’s duties “are functionally comparable to those of a judicial officer.” Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517, 521 (7th Cir. 2001), citing Butz, 438 U.S. at 512-13, 98 S.Ct. 2894; see also id. at 526 (absolute immunity for election board members when “they rule on the validity of nomination petitions”); Capra v. Cook County Bd. of Review, 733 F.3d 705, 709-10 (7th Cir. 2013) (absolute immunity for members of county board of review for property tax appeals); Heyde v. Pittenger, 633 F.3d 512, 518 (7th Cir. 2011) (absolute immunity for members of a county board of review for quasi-judicial functions, which required notice, a hearing, and otherwise engaging in a judicial proceeding); Wilson v. Kelkhoff, 86 F.3d 1438, 1444 (7th Cir. 1996) (absolute immunity for members of parole board when they “grant, deny, or revoke parole,” quoting Walrath v. United States, 35 F.3d 277, 281 (7th Cir. 1994)).

However, where an official’s actions “do not involve acts that are analogous to those performed by judges,” we have rejected absolute immunity defenses. Dawson v. Newman, 419 F.3d 656, 662 (7th Cir. 2005) (no absolute immunity for parole officers’ actions involving “day-to-day duties in the supervision of a parolee”); Snyder v. Nolen, 380 F.3d 279, 288-89 (7th Cir. 2004) (no absolute immunity for clerks of court whose duty to “maintain the official record was purely ministerial,” involving “none of the discretion that ... is at the heart of absolute judicial immunity”); Richman v. Sheahan, 270 F.3d 430, 438 (7th Cir. 2001) (no absolute immunity for sheriffs or deputies whose misconduct involved “the manner in which they enforced the judge’s order,” which is an “executive, not judicial, function”); Auriemma v. Montgomery, 860 F.2d 273, 278-79 (7th Cir. 1988) (no absolute immunity for extra-judicial, pretrial investigations by government attorneys; absolute immunity available “only when such activities are intimately associated with the court-related duties”). See also Cleavinger, 474 U.S. at 201-02, 206, 106 S.Ct. 496 (no absolute immunity for members, of prison disciplinary committee).

The Cleavinger factors thus weigh heavily against extending absolute immunity to an Illinois local liquor commissioner’s actions on whether to renew a license, even while they weigh in favor of absolute immunity for decisions to revoke or suspend licenses. Denying absolute immunity runs contrary to one holding in a pre-Cleavinger case, which was repeated in dicta more recently. We therefore find it necessary to overrule one holding in Reed v. Village of Shorewood and to disapprove one phrase of dictum in Killinger v. Johnson.

To explain, in 1983 in Reed, we faced allegations of a pattern of official harassment of a liquor licensee similar to the harassment of Brunson in this case. The harassment in Reed includecl harassment of customers and groundless suspensions of the license, and eventually included denial of license renewal. 704 F.2d at 947-48. We reversed in part the dismissal of the licensee’s due process claim, holding first and foremost that an Illinois liquor license is a property interest within the meaning of the due process clause. Id. at 949. We also held that the local liquor commissioner was entitled to absolute quasi-judicial immunity for his actions in suspending and revoking the license. Id. at 961-52. We agree with those holdings, which are consistent with the later Supreme Court decision in Cleavinger.

In Reed we also extended that absolute immunity to actions to renew or deny renewal of a license. We reasoned that even though the Illinois statute did not prescribe the same procedural protections for denials of license renewals that it does for suspensions and revocations, Illinois case law required those procedures. Id. at 948-49, citing City of Wyoming v. Liquor Control Comm’n of Illinois, 48 Ill.App.3d 404, 6 Ill.Dec. 258, 362 N.E.2d 1080, 1084 (1977). We also read the Act as suggesting “that the Illinois legislature expected most licenses to be renewed as a matter of course.” Reed, 704 F.2d at 948-49.

More recently, in Killinger we considered a similar due process claim based on two relatively brief suspensions of a liquor license,' including one summary suspension. We followed Reed to hold that the local liquor commissioner was entitled to absolute immunity on those claims based on the suspensions. 389 F.3d at 770. We repeated .the Reed holding that absolute immunity applied to decisions “to renew or revoke a liquor license,” id. (emphasis added), though strictly speaking the reference to renewal was dictum in Killinger, which presented no issue involving license renewals;

In this appeal, we invited the parties to file supplemental briefs on whether the absolute immunity holding of Reed and the dictum of Killinger on license renewals should be revisited. The principles of stare decisis demand that we give significant weight to our prior decisions unless supervening developments arise. See, e.g., Grandberry v. Keever, 735 F.3d 616, 617 (7th Cir. 2013); McClain v. Retail Food Employers Joint Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005). While recognizing the importance of stare decisis in'general, we conclude that we must narrow the Reed holding and disagree with the dictum in Killinger. We must deny absolute immunity to local liquor commissioners in decisions to renew licenses. We take this step based on developments in both federal and state law.

The principal development in federal law is the Supreme Court’s decision in Cleav-inger, which laid out the factors discussed above for deciding when the rare grant of absolute immunity is required. See also Harlow v. Fitzgerald, 457 U.S. 800, 807-08, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (qualified immunity is the norm; absolute immunity is appropriate only when public policy so requires); Saxner v. Benson, 727 F.2d 669, 675 (7th Cir. 1984) (Cudahy, J., concurring), aff'd sub nom. Cleavinger, 474 U.S. 193, 106 S.Ct. 496. Cleavinger was decided after Reed and was not cited in Killinger, which in any event did not need to address whether absolute immunity should apply to decisions whether to renew licenses.

The developments in Illinois state law are two-fold. First, recently an Illinois appellate decision has rejected the City of Wyoming holding that “nonrenewal is equivalent to a revocation or suspension.” Knoob Enterprises, Inc. v. City of Carbondale, 407 Ill.App.3d 1177, 350 Ill.Dec. 114, 948 N.E.2d 183, 186 (2011). The court in Knoob Enterprises found that the Act unambiguously distinguished between the procedures for renewals' and the procedures for revocations and suspensions. Id., 350 Ill.Dec. 114, 948 N.E.2d at 186-87. In the case, a liquor licensee appealed the non-renewal of its license. The decision turned on whether the licensee was appealing a suspension or revocation on one hand or a non-renewal on the other. The local government relied on City of Wyoming[ to argue that there was no difference, and the appellate court rejected that view, explaining that City of Wyoming “gives no reason to depart from the plain language of the Act.” Id. 350 Ill.Dec. 114, 948 N.E.2d at 186.

While it might be possible to treat Knoob Enterprises as an inconclusive decision by another district of the Appellate Court of Illinois, the opinion also pointed out that the Illinois legislature had responded to City of Wyoming. It did so with a statutory amendment to allow appeals of actions “having the effect of ... denying a renewal application,” but without imposing the sorts of procedural requirements that apply to local liquor commissioners’ decisions to suspend or revoke licenses. 350 Ill.Dec. 114, 948 N.E.2d at 186-87, quoting Pub. Act 86-1279, § 1 (1991). That limited legislative response— to allow appeals of non-renewals but without requiring the procedures critical to absolute immunity — persuades us that Reed’s view of Illinois law on this point is no longer viable, however sensible it might have been.

Accordingly, the combination of Cleav-inger, the Illinois legislative response to City of Wyoming, and the more recent decision in Knoob Enterprises convinces us that the key assumption in Reed concerning non-renewals no longer applies. Absolute immunity should no longer apply to non-renewal decisions, which lack the hallmarks of a judicial act. Schauf has not claimed qualified immunity, which would not apply in any event if Brunson can prove his claims on the merits. We reverse the district court’s grant of absolute immunity to Schauf on the due process claim.

VI. Remaining Due Process Issues

A. City of Bridgeport

,We affirm the district court’s grant of summary judgment to the City of Bridgeport on the due process claim. The city is hable for Schauf s actions only insofar as its municipal policy caused a constitutional violation. Killinger, 389 F.3d at 771, citing Monell v. Dep’t of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court rejected Brunson’s argument that the city was ha-ble on the due process claim for Schauf s actions as a final policymaker for Bridgeport. The court’s conclusion might well raise an eyebrow, see Reed, 704 F.2d at 953 (official acts of municipal officials are acts of the municipality for purposes of § 1983 liability, even if official is entitled to immunity from individual liability), but Brunson has waived the point by not arguing it on appeal.

Brunson instead hints briefly at an alternative theory of due process liability for the city and the other defendants: that the overall campaign of harassment deprived him of the value of his liquor hcense. See id., at 949. But Brunson provides only an underdeveloped argument, so that issue is also waived. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).

B. Defendants’Parratt Defense to Due Process Claim

Defendants suggest that we affirm summary judgment on Brunson’s due process claim based on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Parratt held that a claim under § 1983 for deprivation of property without prior notice and an opportunity for hearing fails where the property deprivation is the result of random and unauthorized acts by state officials and where a meaningful post-deprivation remedy is available. See Easter House v. Felder, 910 F.2d 1387, 1396 (7th Cir. 1990), citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The district court did not consider this argument in granting summary judgment to defendants. We decline to affirm summary judgment on this basis. Defendants have presented us with only black letter law of the Parratt line of cases. They have not shown how that narrow exception would apply to the circumstances of this case.

VII. Supplemental Jurisdiction

Finally, the district court declined to exercise supplemental jurisdiction over Brunson’s state-law claims because it had dismissed all of the federal claims over which it had original jurisdiction. See 28 U.S.C. § 1367(c)(3). Because we reinstate some of Brunson’s federal claims under § 1983, the district court will need to revisit the question of supplemental jurisdiction on remand. See McCullah v. Gadert, 344 F.3d 655, 662 (7th Cir. 2003).

To recapitulate, summary judgment for Wade on the basis of prosecutorial immunity and summary judgment as to all defendants on Brunson’s false arrest claim are AFFIRMED. Summary judgment in favor of defendants Schauf, Murray, and the City of Bridgeport on Brunson’s claim for denial of equal protection is REVERSED. Summary judgment on Brun-son’s claim of denial of due process is also REVERSED as to defendants Schauf and Murray, but AFFIRMED as to defendant City of Bridgeport. The case is REMANDED to the district court for further proceedings consistent with this opinion.

      . Brunson’s co-plaintiff is the corporate enti- . ty, Brunson Package, Inc,, through which Brunson purchased the package liquor store. The district court and the appellate briefs did not differentiate between the two, nor do we, though we presume the corporate plaintiff could have no claim for false arrest. On remand, it may be necessary to look more carefully at the two plaintiffs. See, e.g., Assaf v. Trinity Medical Center, 821 F.3d 847, 849 (7th Cir. 2016) (individual plaintiff could not assert claim for money that should have been paid to professional corporation).

      . Defendants did not assert absolute immunity against this claim.

      . Even if this were not the case, Brunson also provided the district court with evidence of similarly situated comparators. The process of obtaining license renewal is identical for Class A, Class B, and Class C establishments. Brunson claims that no other business that needed to renew its liquor license — including at least one Class C club in which Mayor Schauf held an ownership interest — experienced the same harassment, scrutiny, and delay that he and his store experienced. The district court could and should have found sufficient evidence of similarly situated comparators. See Swanson, 719 F.3d at 782, 785 (noting, in a case where a mayor used his position to harass an abutting neighbor over the building of a fence, that a resident in the same neighborhood whose property did not abut the mayor's property and who was treated better could be "helpful in indicating the norm governing'the regulation of fences” in the town, and "could be invoked as additional support for a direct showing of animus,” if the direct evidence were less strong than in the present case).

      . While the standard in class-of-one cases remains .unsettled, district judges may find it prudent to use jury instructions and verdict forms to distinguish between findings of hostile animus and findings of objectively arbitrary acts that lack justification based on public duties,

      , The Supreme Court is now considering a case that may shed new light on these doctrinal issues. See Manuel v. City of Joliet, 590 Fed.Appx. 641 (7th Cir. 2015), cert. granted, — U.S. -, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016), The Court heard oral argument in Manuel on October 5, 2016.

      . Schauf’s absolute immunity defense does not affect Brunson's broader equal protection claim because his claim of harassment "extends beyond [Schauf's] conduct as local liquor control commissioner ... to his nonjudicial, nonlegislative conduct as mayor.” Reed v. Village of Shorewood, 704 F.2d 943, 951 (7th Cir. 1983) (reversing in part summary judgment for defendant acting as both mayor and local liquor commissioner). As in Reed, when a defendant is both mayor and local liquor commissioner, we separate out claims that primarily concern the defendant's actions in the mayoral role. Id.

      . The Act also provides: “Notwithstanding any other provision of this Section to the contrary, the mayor of a city with a population of 55,000 or less ,., that has an interest in the manufacture, sale, or distribution of alcoholic liquor must direct the council or board over which he or she presides to appoint, by majority vote, a person other than him or her to serve as the local liquor control commissioner." 235 Ill. Comp. Stat. 5/4-2, This provision may be relevant to Brunson's argument that Schauf violated the statute by holding, directly or indirectly, interests in liquor sales in Bridgeport.

      . Because we overrule one holding in Reed, we have circulated this opinion to all active judges under Circuit Rule 40(e). No active judge voted to hear this case en banc.

      . We are skeptical in any event. Parratt is a rare exception to due process norms. See Parratt, 451 U.S. 527, 101 S.Ct. 1908 (1981); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). It is "limited to a narrow category of due process cases where the plaintiff claims he was denied a meaningful pre-deprivation hearing, but under circumstances where the very notion of a pre-deprivation hearing would be impractical and even nonsensical, and where the deprivation was not carried out through established state procedures.” Armstrong v. Daily, 786 F.3d 529, 539 (7th Cir. 2015). The procedures to protect Brunson’s property interest in his liquor license were available and well-established. A deliberate decision to prevent him from using those procedures does not fit within the narrow Patratt doctrine, and certainly not where there is no obvious and sufficient post-deprivation remedy available under state law.


author: FEINERMAN, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alexander KLUBALL, Defendant-Appellant.
    No. 16-2087
    United States Court of Appeals, Seventh Circuit.
    Argued November 7, 2016
    Decided December 13, 2016

      Julie Suzanne Pfluger, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI, for Plaintiff-Ap-pellee.
    Peter R. Moyers, Attorney, FEDERAL DEFENDER SERVICES OF WISCONSIN, Madison, WI, for Defendant-Appellant.
    Before EASTERBROOK and WILLIAMS, Circuit Judges, and FEINERMAN, District Judge.

       Of the Northern District of Illinois, sitting’ by designation.

   FEINERMAN, District Judge.

Alexander Kluball was sentenced to 120 months’ imprisonment for transporting a 17-year-old girl across state lines with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421. The only issue on appeal is whether the district court violated Kluball’s due process right to be-sentenced based on accurate information by finding that his mental health history suggested that further treatment would be unlikely to have a “lasting impact” on his ability to refrain’from further criminal conduct. There was ho due process violation, and so the district ■ court’s judgment is affirmed.

In pleading guilty, Kluball admitted that he drove to Tennessee to pick up a 17-year-old girl he had met on Facebook, brought her to his apartment in Wisconsin, advertised her online for sex acts, and escorted her to several prostitution engagements in the Madison area. The probation office calculated an advisory guidelines range of 121 to 151 months’ imprisonment, but because the statutory maximum under § 2421 is ten years, Kluball’s advisory ’guidelines term became 120 months. See U.S.S.G. § 5Gl.l(a) (“Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”).

The presentence investigation report provided the only factual information before' the district court regarding Kluball’s mental health history. The report chronicled Kluball’s struggle with mental illness and associated behavioral problems since early childhood. His diagnoses included oppositional defiant disorder, attention deficit hyperactivity disorder, bipolar disorder, posttraumatic stress disorder, and depression. Kluball received counseling and was hospitalized several times, and he was treated with an array of drugs, including Adderall, Depakote, Eskalith, Fluoxetine, lithium, Prozac, Remeron, Ritalin, Seroquel, Strattera, Valium, Zoloft, Zydis, and Zyprexa. None of the treatments succeeded, at least for very long. Kluball was kicked out of twenty-one daycare facilities as a child, expelled from high school, discharged from the military with an other-than-honorable discharge due to misconduct, and fired from multiple jobs due to various transgressions. Kluball threatened to kill his parents with a baseball bat as a child, threatened to stab his foster parents and to attack his foster brother with a meat cleaver as a teenager, and threatened others with a concealed weapon as an adult.

Kluball did not object to the presentence report’s description of his mental health history or offer evidence to undermine or augment it. The district court adopted the report’s findings at sentencing, as it was entitled to do. See United States v. Sonsalla, 241 F.3d 904, 907 (7th Cir. 2001). The court imposed the guidelines term of 120 months. In so doing, the court remarked:

I think the bottom line here is that when I look at the records of Mr. Klu-ball’s troubles, there is no diagnosis of a mental illness here that really relieves Mr. Kluball of responsibility. He is a person who is upsettable, is sometimes violent. He’s defiant. And all of these things are difficulties and maybe things that are'amenable to some kind of treatment, but I don’t see any diagnosis here that really makes me feel like I should consider Mr. Kluball’s culpability for this very calculating kind of criminal act that he committed here to be alleviated. He’s responsible for what he did despite the fact that he has a history of problems that may involve mental health issues.
The bottom line here is that Mr. Klu-ball has proven himself to be very dangerous. Even after these things came to light, he’s posting pictures on Facebook showing his guns. He’s manifestly at risk of self-harm. But if we were to look at this pattern here and find Mr. Kluball’s fascination with guns and his defiant behavior, I think you’d have to conclude, as I do, that he really is a dangerous person and that the protection of the public is a factor that has to drive the sentence in a significant way.
... [T]he bottom line here is that not only is he dangerous, I think his history suggests that there is no structure or treatment that realistically suggests that it’s going to have any ... lasting impact on Mr. Kluball’s ability to conform himself to, let alone lawful behavior, just safe behavior. I think that — I’m left only with the conclusion that there is only incarceration which provides the kind of level of structure that Mr. Kluball can succeed in and that keeps the public safe.

As Kluball acknowledges, a sentencing judge may consider whether mental health treatment will succeed in reducing the defendant’s dangerousness or propensity to commit further crimes. The governing statute, in fact, requires the judge to consider “the need for the sentence imposed ... to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). As we have explained, “incapacitation (physically preventing the defendant from committing crimes on ‘the outside,’ by imprisoning him) is an authorized factor for a judge to consider in determining the length of a prison sentence.” United States v. Kubeczko, 660 F.3d 260, 262 (7th Cir. 2011) (citing § 3553(a)(2)(C)). This is so even if the defendant’s difficulties refraining from criminal conduct result from mental illness. See ibid, (rejecting the proposition that “there is any impropriety in lengthening a sentence because of concern— whether based on mental illness, addiction, or anything else that may weaken a person’s inhibitions against committing crimes — that the defendant is likely to commit further crimes upon release”); United States v. Miranda, 505 F.3d 785, 793 (7th Cir. 2007) (“In this case, there is evidence that [the defendant] was being treated for mental illness at the time he committed his crimes, and so the court may determine that the only way to truly incapacitate [the defendant] is a heavy prison sentence.”). True, a sentencing judge may find a defendant’s mental illness to be a mitigating rather than an aggravating factor, or both mitigating and aggravating. See United States v. Annoreno, 713 F.3d 352, 358 (7th Cir. 2013); Miranda, 505 F.3d at 792. But the degree to which mental illness is deemed mitigating or aggravating, and the weight accorded that factor, lies within the sentencing judge’s broad discretion. See United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015) (“Ultimately, it falls on the district court to weigh and balance the various factors and' to make an individualized assessment based on the facts presented.”) (internal quotation marks omitted); United States v. Beier, 490 F.3d 572, 574 (7th Cir. 2007) (“The statute does not attach weights to these factors, thus leaving the séntencing judge with enormous latitude.... ”).

Although Kluball does not dispute these principles, he contends that the record at sentencing did not permit the district court to conclude that “his history suggests that there is no structure or treatment that realistically suggests that it’s going to have any ... lasting impact on [his] ability to conform himself to ... lawful behavior.,” This flaw in the district court’s reasoning, Kluball says, violated his due process rights.

“A convicted defendant has a due process right to be sentenced on the basis of accurate information.” United States v. Melendez, 819 F.3d 1006, 1012 (7th Cir. 2016). Additionally, “due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations.” United States v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010); see also United States v. England, 555 F.3d 616, 622 (7th Cir. 2009). To show a violation of this right, “a defendant must demonstrate that the information before the court was inaccurate and that the court relied , on this. inaccurate information.” United States v. Katalinich, 113 F.3d 1475, 1484 (7th Cir. 1997).

Kluball does not and cannot make that showing. The facts set forth.in the presen-tence report amply support the ■ district court’s conclusion that treatment is unlikely to have, a “lasting impact” on Kluball’s ability to refrain from criminal conduct. Kluball has been hospitalized every few years throughout his life and treated with various medications; he has received counseling; and he has spent time in various structured environments, including special education classes, juvenile detention, and the military. Despite these many medical and environmental interventions, Kluball has consistently engaged in dangerous and unlawful behavior. It was well within reason — and certainly not an abuse of discretion — for the district court to take Klu-ball’s history into account and draw the conclusion that further mental health treatment is unlikely to succeed in enabling him to conform to societal norms.

Kluball is wrong to liken this case to Bradley and England, where the district judges engaged in impermissible speculation when imposing sentence. In Bradley, the sentencing judge “made a prediction about future conduct based on rank speculation about other, multiple instances of deviant behavior” of which there was no record evidence. 628 F.3d at 401. In England, the sentencing judge’s “unsupported speculation” was that the defendant would have committed the crime of attempted murder had he been released on bond. 555 F.3d at 623.

The district court here engaged in no such speculation. To the contrary, the court’s finding that treatment was unlikely to have á “lasting impact” on Kluball was reasonably based on the fact, which he does not dispute, that he has throughout his life suffered from mental illness, endangered those around him, and engaged in criminal conduct, notwithstanding his being afforded mental health treatment and placed in structured environments. Sentencing routinely requires the judge to make predictions about the defendant’s future conduct and, in particular, his ability to' lead a - law-abiding life. See United States v. Boroczk, 705 F.3d 616, 622 (7th Cir. 2013) (“Neither the district court nor the various doctors who testified or provided input at sentencing were blessed with a crystal ball to predict [the defendant’s] future behavior. In the absence of such certainty, the district court simply weighed the evidence before it and concluded that the risk-of future crimes was a factor in favor of a lengthy sentence.”); United States v. Neary, 552 F.2d 1184, 1193 (7th Cir. 1977) (noting that “evaluation of the character of the defendant and a prediction of future conduct [are] matters which aré traditionally left to wide discretion of a sentencing court”). Such predictions do not violate due process where, as here, they reasonably follow from accurate information in the sentencing record. See United States v. Lucas, 670 F.3d 784, 792-93 (7th Cir. 2012) (rejecting a due process claim comparable to the claim brought here); United States v. Morales, 655 F.3d 608, 646-47 (7th Cir. 2011) (same).

AFFIRMED


author: EASTERBROOK, Circuit Judge.

text:
    Jakeffe HOLT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 16-1793
    United States Court of Appeals, Seventh Circuit.
    Argued November 16, 2016
    Decided December 13, 2016

      Carol A. Brook, William H. Theis, William Todd Watson, Attorneys, Chicago, IL, for Petitioner-Appellant. ■
    Debra Riggs Bonamici, Madeleine S. Murphy, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Respondent-Appellee.
    Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
   EASTERBROOK, Circuit Judge.

About a decade ago, Jakeffe Holt was convicted of possessing a firearm- despite prior convictions that barred gun ownership. 18 U.S.C. § 922(g)(1). Several of those convictions led the district court to deem him an armed career criminal, 18 U.S.C. § 924(e), and impose a 200-month sentence,

Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), holds that the residual clause in § 924(e)(2)(B)(ii) is unconstitutionally vague. Holt then launched a collateral attack on his sentence under 28 U.S.C. § 2255. Section 924(e) applies to persons with three prior violent felonies or serious drug offenses. The district court had counted a burglary conviction toward this number. Holt argued that this was a mistake. The district court rejected this argument and denied Holt’s petition. 2016 WL 1407713, 2016 U.S. Dist. Lexis 48063 (N.D. Ill. Apr. 11, 2016). While Holt’s appeal was pending we held that the version of the Illinois burglary statute under which he had been convicted is indeed not a “violent felony” because it does not satisfy the definition, of “burglary” used in Mathis v. United States, — U.S. - — -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), for indivisible statutes. See United States v. Haney, 840 F.3d 472 (7th Cir. 2016).

This development led us to ask for supplemental briefs on the question whether Mathis and Haney apply retroactively on collateral review under § 2255, The United States has conceded that they do. Without the armed career criminal enhancement, Holt’s maximum sentence would have been 120 months under § 924(a)(2). Section 2255(a) allows a district court to reduce a sentence that exceeds the statutory maximum, and substantive decisions such as Mathis presumptively apply retroactively on collateral review. See, e.g., Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

But here Holt encounters a snag: This is his second § 2255 proceeding. A second or successive collateral attack is permissible only if the court of appeals certifies that it rests on newly discovered evidence (which Holt’s does not) or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). See also 28 U.S.C. § 2244(b). Johnson is a new rule of constitutional law, and in Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court made Johnson's rule retroactive. Holt asked for leave to pursue a second collateral attack based on those precedents, and we granted his application. But his current argument rests on Mathis and Haney, not on Johnson and Welch.

Haney, as a decision of this Court, cannot satisfy § 2255(h)(2), and Mathis has not been declared retroactive by the Supreme Court — nor is it a new rule of constitutional law. Mathis interprets the statutory word “burglary” and does not depend on or announce any novel principle of constitutional law. Section 2255(h)(2) therefore does not authorize a second § 2255 proceeding. See Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016) (arguments that rest on Mathis do not justify second or successive collateral attacks). While conceding that Holt would prevail in an initial collateral attack, the United States insists that he is not entitled to relief in this second § 2255 proceeding.

Holt submits that, despite appearances, his. collateral attack really rests on Johnson. Although we stated in Stanley v. United States, 827 F.3d 562 (7th Cir. 2016), that Johnson does not affect sentence enhancements under the elements clause of § 924(e)(2)(B)(ii), we noted that, before Johnson, some defendants may have refrained from objecting to the classification of particular convictions under the elements clause because, even if these offenses lacked actual or threatened violence as an element, they still would have been treated as violent felonies under the residual clause. 827 F.3d at 565. By knocking out the residual clause Johnson thus opened the door to arguments based on the limits of the elements clause. So Holt’s argument goes. Stanley itself did not draw this conclusion, however, because Johnson did not interpret the elements clause or declare it unconstitutional.

This aspect of Holt’s argument treats § 924(e)(2)(B) as having only two clauses: elements and residual. Show that a given conviction does not satisfy the elements clause and you lack it into the residual clause, where Johnson applies. The problem is that § 924(e)(2)(B) has three clauses, not two. Here is its full text:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destruc-five device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

Romanette (i) is the elements clause. Ro-manette (ii) comprises two clauses: “is burglary, arson, or extortion, involves use of explosives” and “otherwise involves conduct that presents a serious potential risk of physical injury to another”. The second of these, the residual clause, contains the only language that Johnson held unconstitutionally vague. The possibility that after Johnson defendants may have a stronger incentive to contest the classification of convictions under the elements clause — in the hope of moving them to the residual clause and thus eliminating them from the set of violent felonies — has nothing to do with Holt’s situation. His burglary conviction was classified as a violent felony under the burglary clause. Nothing in Johnson, Welch, or Stanley affects the proper treatment of burglary. convictions. So Holt’s second collateral attack cannot rest on Johnson.

Section 2255(h), which requires advance appellate approval of a second or successive collateral attack, incorporates 28 U.S.C. § 2244 by reference. Section 2244(b)(3)(E) reads: “The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Thus we cannot treat the prosecutor’s supplemental brief as implying a request that we rehear, and rescind, the certificate authorizing a second collateral attack. But § 2244(b)(4) adds: “A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” This means that someone in Holt’s position must show the district court that the requirements for a second collateral attack have-been satisfied, and that issue is reviewable on appeal in the ordinary course.

Section 2255(h) permits a court of appeals to authorize a successive collateral attack, though success is subject to a time limit in § 2255(f)(3). A petitioner has only one year from the date a constitutional right is first recognized by the Supreme Court. For Johnson that date was June 26, 2015. But appellate permission under § 2255(h) does not become possible until the Supreme Court itself declares the newly recognized right to be retroactive. That was done in Welch, which was issued on April 18, 2016. Less than three months remained for prisoners to file, and appellate courts to consider, applications seeking permission to file Johnson-based second or successive collateral attacks. Once any given application is filed, the court of appeals has only 30 days to grant or deny it. 28 U.S.C. § 2244(b)(3)(D). It may be difficult to get access to any given prisoner’s full record of convictions within that time to see whether the residual clause matters to a sentence enhancement. These tight deadlines led us to authorize any second or successive collateral attack that arguably rested on the residual clause. We relied on the fact that, if we authorized a new collateral proceeding, the district judge could gather all of the necessary information and make an independent decision under § 2244(b)(4), a decision open to plenary appellate review.

That’s what happened after Holt filed his § 2255(h) application. We authorized the second collateral attack after a necessarily abbreviated review. The district judge then saw that Holt’s claim for relief depends on the meaning of “burglary” rather than the meaning of the Constitution, and she denied the petition; The judge acted before the Supreme Court released Mathis and before we issued Ha ney, so she did not appreciate that Holt’s burglary conviction had indeed been misclassified when he was sentenced, but she understood that the argument being made wa$ statutory, rather than constitutional and did not rest on Johnson or any other retroactive rule of constitutional law. It follows that Holt is not entitled to relief in this, his second § 22S5 proceeding. Whether he might be entitled to relief under 28 U.S.C. § 2241, should he pursue that route in’ the district where he is confined (he is being held at USP Canaan in Pennsylvania), is a question we need not consider.

AFFIRMED.


author: MANION, Circuit Judge.

text:
    Jeremy MEYERS, individually and on behalf of others similarly situated, Plaintiff-Appellant, v. NICOLET RESTAURANT OF DE PERE, LLC, Defendant-Appellee.
    No. 16-2075
    United States Court of Appeals, Seventh Circuit.
    Argued November 3, 2016
    Decided December 13, 2016

      Thomas A. Zimmerman, Jr., Matthew Charles DeRe, Attorneys, Zimmerman Law Offices, P.C., Chicago, IL, for Plaintiff-Appellant.
    Ryan R. Graff, Nicole R. Radler, Attorneys, Nash, Spindler, Grimstad , & McCracken, Manitowoc, WI, for Defendant-Appellee.
    Before BAUER, MANION, and HAMILTON, Circuit Judges.
   MANION, Circuit Judge.

Jeremy Meyers appeals the district court’s denial of class certification in this case brought under the Pair and Accurate Credit Transactions Act (FACTA). This is Meyers’ second putative class action under the PACTA to reach this court in a matter of months. In the prior appeal, we held that sovereign immunity barred Meyers’ clainragainst the Oneida Tribe of Wisconsin. This time, we conclude that Meyers lacks Article III standing. Therefore, we vacate the judgment of the district court and remand the case with instructions to dismiss for lack of jurisdiction.

I. Background

The FACTA was a 2003 amendment to the Pair Credit Reporting Act (PRCA), 15 U.S.C. § 1681 et seq. As we detailed in Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818, 819-20 (7th Cir. 2016) [Meyers I], Congress enacted the FACTA in response to what it considered to be the increasing threat of identity theft. The provision at issue here was intended to “reduce the amount of .potentially misap-propriateable information produced' in credit and debit card receipts.” Id. at 820. To that end, it provides that “[n]o person that accepts credit cards or debit cards for the transaction of business shall print more than "the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” 15 U.S.C. § 1681c(g)(l). Each willful violation entitles consumers to recover either “any actual damages sustained ... as a result” of the violation or statutory damages of between $100 and $1,000. Id. § 1681n(a)(l)(A).

As in Meyers I, the facts of this case are simple and undisputed. On February 10, 2015, Meyers was given a copy of his receipt after dining at Nicolet Restaurant of de Pere in de Pere, Wisconsin. He noticed that Nicolet’s receipt did not truncate the expiration date, as the FACTA requires. Two months later, Meyers filed a putative class action complaint in district court, purportedly on behalf of everyone who had been provided a non-compliant receipt at Nicolet. He sought only statutory damages..

The district court denied Meyers’ motion for class certification. Although the court held that Meyers had satisfied Federal Rule of Civil Procedure 23(a)’s four prerequisites, it denied certification because he failed "to establish that class-wide issues would “predominate” over issues affecting only individual potential class members. Fed R. Civ. P. 23(b)(3); Meyers v. Nicolet Rest. of de Pere, LLC, No. 15-G444, 2016 WL 1275046, at *7 (E.D. Wis. Apr. 1, 2016).

At the same time, Meyers was pursuing his appeal in Meyers I. On September 8, 2016, we affirmed the dismissal of that case on sovereign immunity grounds..Because we held that the Tribe was immune from suit, we specifically declined to address whether Meyers had suffered a sufficient injury for Article III standing purposes. Meyers I, 836 F.3d at 821-22. We also had no occasion to determine the propriety of class certification. This appeal presents both questions. However, because we conclude that Meyers lacks standing, we do not reach the certification question.

II. Discussion

The Supreme Court has consistently recognized that “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). Standing to sue is an important component of that limitation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The requirement that litigants possess standing ensures “that courts do not decide abstract principles of law but rather concrete cases and controversies.” Sierra Club v. Marita, 46 F.3d 606, 613 (7th Cir. 1995). In short, “[standing is a threshold question in every federal case because if the litigants do not have standing to raise their claims the court is without authority to consider the merits of the action.” Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988).

To establish standing, Meyers “must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted). He says that Congress, through the FACTA amendment, has granted him the legal right to receive a receipt that truncates the expiration date on his credit card. Nicolet responds that its violation has not caused Meyers any harm.

The parties dispute the application of the Supreme Court’s decision last Term in Spokeo. That case is indeed highly relevant and worthy of close examination. The plaintiff there alleged that Spokeo (“a Web site that allows users to search for information about other individuals by name, email address, or phone number”) generated a profile of him that contained inaccurate information. Spokeo, 136 S.Ct. at 1546. Particularly, the plaintiff alleged that his Spokeo profile “states that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree.” Id. According to the plaintiff, none of this information is accurate. Id.

Upset about the apparently false information in his profile, the plaintiff filed a putative class action arguing that Spokeo failed to comply with four provisions of the FCRA. These sections imposed requirements on reporting agencies to: (1) “follow reasonable procedures to assure maximum possible accuracy of’ consumer reports, 15 U.S.C. § 1681e(b); (2) notify providers and users of information of their obligations under the Act, id. § 1681e(d); (3) limit the circumstances in which agencies provide consumer reports “for employment purposes,” id. § 1681b(b)(l); and (4) post toll-free numbers by which consumers may request reports, id. § 1681j(a). See Spokeo, 136 S.Ct. at 1545. Like Meyers, the plaintiff, in Spokeo sought statutory damages under 15 U.S.C. § 1681n(a)(1)(A).

The Ninth Circuit held that the plaintiff s allegations were sufficient for Article III standing, but the Supreme Court vacated that decision. The Court held that a concrete injury is required “even in the context of a statutory violation.” Id. at 1549. Indeed, Congress does not have the final word on whether a plaintiff has alleged a sufficient injury for the purposes of standing, because “not all inaccuracies cause harm or present any material risk of harm.” Id. at 1550. More than a “bare procedural - violation, divorced from any concrete harm” is required to satisfy Article Ill’s injury-in-fact requirement. Id. at 1549.

The Ninth Circuit’s principal error was that it conflated the two independent components of an injury-in-fact: concreteness and particularity. See id. at 1546, 1548. That Congress has passed a statute coupled with a private right of action is a good indicator that whatever harm might flow from a violation of that statute would be particular to the plaintiff. Yet the plaintiff still must allege a concrete injury that resulted from the violation in his case. As Spokeo explained, “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1549. In other- words, Congress’ judgment that there should be a legal remedy for the violation of a statute does not mean each statutory violation creates an Article III injury. See Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 590-91 (7th Cir. 2016) (rejecting the argument that a violation of the Real Estate Settlement Procedures Act, without more, is a sufficient injury-in-fact after Spokeo). Such an injury “must be ‘de facto’; that is, it must actually exist.” Spokeo, 136 S.Ct. at 1548 (citing Black’s Law Dictionary 479 (9th ed. 2009)).

That brings us to the present case. Spokeo compels the conclusion that Meyers’ allegations are insufficient to satisfy the injury-in-fact requirement for Article III standing. The allegations demonstrate that Meyers did not suffer any harm because of Nicolet’s printing of the expiration date on his receipt. Nor has the violation created any appreciable risk of harm. After all, Meyers discovered the violation immediately and nobody else ever saw the non-compliant receipt. In these circumstances, it is hard to imagine how the expiration date’s presence could have increased the risk that Meyers’ identity would be compromised. See id. at 1550 (“It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.”).

Moreover, Congress has specifically declared that failure to truncate a card’s expiration date, without more, does not heighten the risk of identity theft. In the Credit and Debit Card Receipt Clarification Act of 2007, Congress made a finding of fact that “[e]xperts in the field agree that proper truncation of the card number, by itself as required by - the [FACTA], regardless of the inclusion of the expiration date, prevents, a potential fraudster from perpetrating identity theft or credit card fraud.” Pub. L. 110-241, § 2(a)(6), Congress was instead .quite concerned with the abuse of FACTA lawsuits, finding that “the continued appealing and filing of these lawsuits represents a significant burden on the hundreds of companies that have been sued and could well raise prices to consumers without corresponding consumer protection benefit.” Id. § 2(a)(7). That is why Congress sought to limit FACTA lawsuits to consumers “suffering from any actual harm.” Id. § 2(b).

Meyers is not such a person, so he does not have standing. We note that while we are the first circuit to address the question of standing in FACTA cases after Spokeo, our decision is in accord with those of our sister circuits in similar statutory-injury cases. Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir. 2016) (no standing where plaintiffs alleged that department store clerk violated District of Columbia consumer protection statutes by asking for their zip codes, but alleged no injury caused by the- violation such as “any invasion of privacy, increased risk of fraud or identity theft, or pecuniary or emotional injury”); Lee v. Verizon Commc’ns., Inc., 837 F.3d 523, 529-30 (5th Cir. 2016) (no-standing where plaintiff alleged breach of a duty under ERISA but no harm caused by the mismanagement of the pension plan); Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930-31 (8th Cir. 2016) (no standing where plaintiff alleged that cable company had retained personal information in violation of Cable Communications Policy Act, but suffered no harm because of it); Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1002-03 (11th Cir. 2016) (no standing where plaintiff alleged that the defendant failed to record a satisfaction of a mortgage within the required 30 days under state statute but alleged no harm flowing from that failure). In sum, we hold that without a showing of injury apart from the statutory violation, the failure to truncate a credit card’s expiration date is insufficient to confer Article III standing.

III. Conclusion

This case asks whether the violation of a statute, completely divorced from any potential real-world harm, is sufficient to satisfy Article Ill’s injury-in-fact requirement. We hold that it is not.' Therefore, neither the district court nor this court has the authority to certify a class action. The judgment of the district court is vacated and the case is remanded with instructions to dismiss for lack of jurisdiction.

Vacated and Remanded.

      . Because we conclude Meyers has not alleged a sufficiently concrete injury, we need not address the remaining two elements of Article III standing: causation and redressa-bility. Lujan, 504 U.S. at 560, 112 S.Ct. 2130.

      . Even at argument, Meyers would not say that Nicolet’s- violation had caused him any concrete harm. He staked his entire standing argument on the statute’s grant of a substantive right to' receive a compliant receipt. But whether the right is characterized as "substantive” or “procedural,” its violation must be accompanied by an injury-in-fact. A violation of a statute that causes- no harm does hot trigger a federal case. That is one of the lessons of Spokeo.

      . The district courts presented with the question of standing in FACTA cases have split. For example, compare Kamal v. J. Crew Grp., Inc., No. 2:15-0190, 2016 WL 6133827, at *3-4 (D.N.J. Oct. 20, 2016) (printing of first six numbers of credit card without more was not a sufficient injury-in-fact, as there was “no evidence that anyone has accessed or attempted to access or will access Plaintiffs credit card information1'), with Wood v. J Choo USA, Inc., — F.Supp.3d-, 2016 WL 4249953, at *3-5 (S.D. Fla. Aug. 11, 2016) (failure to truncate an expiration date was sufficient for standing purposes because Congress has created a substantive personal right to receive a truncated receipt).

      . The Second Circuit’s recent decision in Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016), also supports our conclusion. There, the plaintiff sought statutory damages . for four violations of the Truth In Lending Act related to a credit card agreement that she signed with the defendant creditor. She claimed that the bank failed to disclose that: “(1) cardholders wishing to stop payment on an automatic payment plan had to satisfy certain obligations; (2) the bank was statutorily obliged not only to acknowledge billing error claims within 30 days of receipt but also to advise of any corrections made during that time; (3)’ certain identified rights pertained only to disputed credit card purchases for which full payment had not yet been made, and did not apply to cash advances or checks that accessed credit card accounts; and (4) consumers dissatisfied with a credit card purchase had to contact [the bank] in writing or electronically.” Id. at 185-86.
      The Second Circuit held that the plaintiff lacked standing on the first two claims. With respect to the first, it held that she could not have suffered any injury because of the bank’s failure to disclose that information because the bank did not offer an automatic payment plan, Id. at 191-92. Similarly, she lacked standing on the second claim because she did not allege that the failure to disclose that information affected her credit behavior. Id, at 192-93. However, the court held that the •plaintiff did have standing on the final two claims because the failure to notify cardholders of their obligations under a credit card agreement creates a real risk that cardholders may "lose the very credit rights that the law affords [them].” Id. at 190-91.
      Meyers’ case is similar to the former two claims in Strubel. "[I]n the absence of a connection between a procedural violation and a concrete interest, a bare violation of the former does not manifest injury in fáct.” Id. at 189. The non-compliant receipt did not affect his behavior, nor did it create any appreciable risk that the concrete interest Congress identified (the integrity of personal identities) would be compromised. Thus, under the Second Circuit’s analysis, Meyers lacks standing.

      . Our conclusion does not mean that the statutory damages provision of the FCRA is rendered a nullify. Generally, “statutory damages are reserved for cases in which the damages caused by a violation are small or difficult to ascertain,” Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433, 436 (5th Cir. 2000). In a future case, the plaintiff may be able to show that a violation of the FACTA (or another provision of the FCRA) has caused him .concrete harm. That plaintiff may still seek statutory damages if the actual damages caused by the violation are small or difficult to ascertain, Meyers’ problem is that he has alleged no concrete harm or risk of harm. Therefore, he cannot avail, himself of Congress’ statutory damages remedy because he lacks standing.