Dawn Hanson v. Chris LeVan ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1840
DAWN HANSON, et al.,
Plaintiffs‐Appellees,
v.
CHRIS LEVAN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15‐cv‐5354 — Robert M. Dow, Jr., Judge.
____________________
ARGUED MAY 28, 2020 — DECIDED JULY 21, 2020
____________________
Before MANION, KANNE, and WOOD, Circuit Judges.
KANNE, Circuit Judge. For some government jobs, political
affiliation is an appropriate position requirement. But that’s
generally not the case. And unless political affiliation is an ap‐
propriate job requirement, the First Amendment forbids gov‐
ernment officials from discharging employees based on their
political affiliation. Rutan v. Republican Party of Ill., 497 U.S. 62,
64 (1990) (citing Elrod v. Burns, 427 U.S. 347 (1976); Branti v.
Finkel, 445 U.S. 507 (1980)).
2 No. 19‐1840
After stepping into his elected office as Milton Township
Assessor, Chris LeVan dismissed a group of employees who
were Deputy Assessors, allegedly because they supported his
political rival and predecessor. The fired deputies sued
LeVan, claiming the terminations violated their First Amend‐
ment rights. In a motion to dismiss for failure to state a claim,
LeVan asserted a qualified‐immunity defense. The district
court concluded that LeVan is not entitled to qualified im‐
munity at this pleading stage, and LeVan appealed.
We affirm because, taking as true the plaintiffs’ well‐
pleaded allegations about the characteristics of the Deputy
Assessor position, a reasonable actor in LeVan’s position
would have known that dismissing the deputies based on
their political affiliation violated their constitutional rights.
I. BACKGROUND
According to the plaintiffs’ complaint, in 2013 Chris
LeVan was elected to the office of Milton Township Assessor,
displacing his predecessor and political rival, Bob Earl.
Shortly after he took office, LeVan discharged a group of em‐
ployees—Deputy Assessors1—who had publicly supported
Earl in his run for reelection.
The dismissed employees sued LeVan in his personal and
official capacities for discharging them on improper bases. At
issue now are the plaintiffs’ challenges that LeVan, under
color of state law, violated their rights guaranteed by the First
Amendment (applicable to Illinois through the Fourteenth
Amendment) by firing them because of their political
1 Among the plaintiffs dismissed from their positions in the Assessor’s
Office is a former IT Administrator. This appeal does not concern that
plaintiff, only those who were Deputy Assessors.
No. 19‐1840 3
affiliation. See 42 U.S.C. § 1983. They alleged that the Deputy
Assessor position is not one for which political affiliation is a
valid job requirement, as the position did not authorize the
employees to have meaningful input in policy decisions, yet
LeVan discharged them based on their political affiliation.
For these challenges against LeVan in his individual ca‐
pacity, LeVan asserted qualified immunity as a defense. See
Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 166 (1993) (recognizing that qualified im‐
munity is afforded only to individual officials, not to units of
government); Ruffino v. Sheahan, 218 F.3d 697, 700 (7th Cir.
2000). He did so in a motion to dismiss, under Rule 12(b)(6),
for failure to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). The district court concluded that
LeVan is not entitled to qualified immunity at the pleading
stage and allowed the claims to proceed. LeVan sought inter‐
locutory review of that decision.
II. ANALYSIS
A. Appellate Jurisdiction
The first order of business is our jurisdiction to review the
district court’s qualified‐immunity decision. The former Dep‐
uty Assessors contend that we lack jurisdiction, reasoning
that the district court’s order is nonfinal and falls outside the
collateral‐order doctrine. We disagree.
Appellate courts’ jurisdiction under 28 U.S.C. § 1291 is in‐
deed limited to appeals from “final decisions” of district
courts. But some “final decisions” are made before the district
court enters a final judgment: certain “collateral orders” are
immediately reviewable because they “‘[1] conclusively de‐
termine the disputed question, [2] resolve an important issue
4 No. 19‐1840
completely separate from the merits of the action, and [3] [are]
effectively unreviewable on appeal from a final judgment.’”
Johnson v. Jones, 515 U.S. 304, 310 (1995) (bracketed numbers
in original) (quoting Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).
Denials of qualified immunity often fall into this category
of immediately appealable orders. They are reviewable when
“the issue appealed concerned, not which facts the parties
might be able to prove, but, rather, whether or not certain
given facts showed a violation of ‘clearly established’ law.” Id.
at 311 (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 (1985));
see, e.g., Leiser v. Kloth, 933 F.3d 696, 700–01 (7th Cir. 2019), cert.
denied, No. 19‐7508 (Apr. 27, 2020). In other words, the denial
of qualified immunity is within our jurisdiction to review be‐
fore a final judgment if that denial turns on “abstract” ques‐
tions of law. Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009) (quoting
Johnson, 515 U.S. at 317). By contrast, interlocutory review is
unavailable for a district court’s “fact‐based” decision—for
example, that the evidence in the pretrial record shows a gen‐
uine issue of fact on which qualified immunity depends. Id.
(quoting Johnson, 515 U.S. at 317); see Johnson, 515 U.S. at 307,
313 (no appellate jurisdiction to review district court’s order
determining that evidence is sufficient to permit a particular
finding of fact after trial).
The district court’s decision here was on a motion to dis‐
miss, under Rule 12(b)(6), for failure to state a claim. As we
see it, LeVan essentially contended that the plaintiffs did not
assert a constitutional violation upon which relief can be
granted because LeVan is qualifiedly immune. Fed. R. Civ. P.
12(b)(6); see Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th
Cir. 2000).
No. 19‐1840 5
We have accepted that dismissal under Rule 12(b)(6) can
preserve an official’s right, under qualified‐immunity doc‐
trine, “not to stand trial or face the other burdens of litiga‐
tion,” including pretrial discovery. Mitchell, 472 U.S. at 526;
see Pearson v. Callahan, 555 U.S. 223, 231–32 (2009); Reed v.
Palmer, 906 F.3d 540, 548–49 (7th Cir. 2018). But dismissal un‐
der Rule 12(b)(6) is not the only way to preserve that right. See
Jacobs, 215 F.3d at 774–75 (Easterbrook, J., concurring in part
and in the judgment) (identifying other means by which im‐
munity may be decided without protracted discovery). Nor is
it always (if ever) the most suitable procedural setting to de‐
termine whether an official is qualifiedly immune, because
immunity may depend on particular facts that a plaintiff need
not plead to state a claim. Alvarado v. Litscher, 267 F.3d 648,
651–52 (7th Cir. 2001).
Ultimately, dismissal under Rule 12(b)(6) is appropriate
based on qualified immunity only when the plaintiffs’ well‐
pleaded allegations, taken as true, do not “state a claim of vi‐
olation of clearly established law.” Behrens v. Pelletier, 516 U.S.
299, 306 (1996) (quoting Mitchell, 472 U.S. at 526). We elabo‐
rate and apply this standard later on, but for now it is enough
to reiterate that “a complaint may be dismissed under Rule
12(b)(6) on qualified immunity grounds where the plaintiff
asserts the violation of a broad constitutional right that had
not been articulated at the time the violation is alleged to have
occurred.” Jacobs, 215 F.3d at 765 n.3. And the familiar plausi‐
bility standard governs.2 See Reed, 906 F.3d at 548.
2 We have recognized the tension between the plausibility standard
that applies to motions for dismissal of a complaint; the often fact‐inten‐
sive nature of qualified‐immunity determinations; and the protection that
the qualified‐immunity doctrine provides against the burdens of pretrial
6 No. 19‐1840
The district court concluded that the plaintiffs stated a
claim for a violation of a clearly established right, barring
qualified immunity at this point in the litigation. The court
reached this conclusion by taking the plaintiffs’ well‐pleaded
allegations as true and answering two questions: First, did the
plaintiffs’ allegations add up to a claim that a constitutional
right was violated? And second, was the right clearly estab‐
lished when LeVan discharged the employees? As far as ju‐
risdiction is concerned, these are “abstract” legal questions
about “the substance and clarity of pre‐existing law,” given
the facts as alleged. Ortiz v. Jordan, 562 U.S. 180, 190 (2011); cf.
Leiser, 933 F.3d at 700–01.
The plaintiffs argue that the first question is fact‐based,
nonfinal, and thus unreviewable. They point to the district
court’s remark that whether LeVan will be entitled to quali‐
fied immunity on a further‐developed record “cannot be re‐
solved on the pleadings.” This remark, they reason, indicates
that the district court’s decision both (a) turns on facts not yet
determined and (b) is not necessarily the last qualified‐im‐
munity determination the court will make.
matters, including discovery. See, e.g., Reed, 906 F.3d at 548–49; Jacobs, 215
F.3d at 765 n.3. Although this tension generally makes Rule 12(b)(6) a poor
fit for dismissal on the basis of qualified immunity, Reed, 906 F.3d at 548–
49; see also Siefert v. Hamilton County, 951 F.3d 753, 761 (6th Cir. 2020), it
does not preclude appellate jurisdiction, see Iqbal, 556 U.S. at 672; Behrens,
516 U.S. at 307–08; see, e.g., Hardeman v. Curran, 933 F.3d 816, 819–20 (7th
Cir. 2019). The tension is also eased by other rules, like Rule 12(e) and Rule
26(c), that can be engaged to avoid or curtail discovery before a qualified‐
immunity decision is made on summary judgment. See Crawford‐El v. Brit‐
ton, 523 U.S. 574, 598–99 (1998); Jacobs, 215 F.3d at 775 (Easterbrook, J., con‐
curring in part and in the judgment).
No. 19‐1840 7
The merits inquiry embedded in the first question—
whether political affiliation is an appropriate requirement for
a certain position—certainly calls for a case‐specific assess‐
ment of the government job at hand. See Branti, 445 U.S. at 518.
And it is true that we have generally classified this inquiry as
a matter of fact that in some cases ought to be resolved as a
matter of law3—depending on how clearly statutes, ordi‐
nances, regulations, and a reliable job description establish
the position responsibilities.4
3 Whether this inquiry is a matter of law or fact split the circuits. See
Horton v. Taylor, 767 F.2d 471, 478 (8th Cir. 1985). Compare Gordon v. County
of Rockland, 110 F.3d 886, 888–89, 889 n.4 (2d Cir. 1997) (concluding that
the propriety of political affiliation as a criterion for a position is a matter
of law, and suggesting it is never an issue for the jury to decide), with Pleva
v. Norquist, 195 F.3d 905, 912 (7th Cir. 1999) (stating that the issue “should
ordinarily be left for a jury to determine” but may be resolved as a matter
of law when the position responsibilities are clearly outlined by law).
4 See, e.g., Allman v. Smith, 790 F.3d 762, 766–67 (7th Cir. 2015) (ac‐
knowledging that trial could show plaintiff had more discretion than job
description implied); Powers v. Richards, 549 F.3d 505, 510 (7th Cir. 2008)
(resolving inquiry as a matter of law when plaintiff did not dispute that
the official job description accurately explained the position responsibili‐
ties); Fuerst v. Clarke, 454 F.3d 770, 773–74 (7th Cir. 2006) (concluding that
the matter could not be resolved on summary judgment); Riley v. Blago‐
jevich, 425 F.3d 357, 360–61 (7th Cir. 2005) (contemplating that a systemat‐
ically unreliable job description could precipitate a factual inquiry, but
quoting Danahy v. Buscaglia, 134 F.3d 1185, 1191 (2d Cir. 1998), for asser‐
tion that the inquiry “presents a question of law informed solely by the job
description and the powers of office”); Vargas‐Harrison v. Racine Unified
Sch. Dist., 272 F.3d 964, 972 (7th Cir. 2001) (observing that “an individual’s
status as a policy‐making employee frequently poses a fact question” but
that “a court may resolve this issue without the aid of a finder of fact”
when “the duties and responsibilities of a particular position are clearly
defined by law and regulations”); Pleva, 195 F.3d at 912 (citing cases); Selch
8 No. 19‐1840
But we have treated the issue as an “abstract” matter of
law, for purposes of jurisdiction, when antecedent facts are
taken as given and we are asked to review only the applica‐
tion of a legal standard to those given facts in a qualified‐im‐
munity assessment. See Jackson v. Curry, 888 F.3d 259, 263 (7th
Cir. 2018); see, e.g., Moss v. Martin, 473 F.3d 694, 702 (7th Cir.
2007); Kiddy‐Brown v. Blagojevich, 408 F.3d 346, 355–56 (7th Cir.
2005); see also Danahy v. Buscaglia, 134 F.3d 1185, 1190–91 (2d
Cir. 1998) (“For the purposes of jurisdiction, … we assume the
truth of the plaintiffs’ claims that they were subjected to pat‐
ronage dismissals and that they were not policymakers.”); cf.
Guerrero‐Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020) (“ques‐
tions of law,” for purposes of appellate jurisdiction under 8
U.S.C. § 1252(a)(2)(D), “includes the application of a legal
standard to undisputed or established facts”).
That is the situation we face here. The court did not eval‐
uate evidence or make any “antecedent” determinations that
we are asked to review. Allman v. Smith, 790 F.3d 762, 764 (7th
Cir. 2015); see, e.g., Jackson, 888 F.3d at 263–64 (unreviewable
antecedent question lay in whether the district court properly
decided not to watch a video that, defendants argued, contra‐
dicted plaintiff’s factual allegations).
The district court’s remark—that whether LeVan will be
entitled to qualified immunity on a further‐developed record
“cannot be resolved on the pleadings”—merely acknowl‐
edges the different standards that apply to a Rule 12(b)(6) mo‐
tion to dismiss and a Rule 56(a) motion for summary
v. Letts, 5 F.3d 1040, 1044 (7th Cir. 1993) (reviewing determination for clear
error). We do not reconsider our precedent today to address whether it
would be more appropriate to characterize the inquiry as a “mixed ques‐
tion of law and fact.” Guerrero‐Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020).
No. 19‐1840 9
judgment. As we’ve already mentioned, before discovery be‐
gins, a defendant asserting qualified immunity is entitled to
dismissal if the allegations in the complaint fail to state a claim
of a clearly established right having been violated. Mitchell,
472 U.S. at 526. After discovery, however, the defendant as‐
serting qualified immunity is entitled to summary judgment
if the evidence fails to demonstrate a genuine factual issue
about the characteristics of the employee’s position or
whether the defendant committed the alleged acts. See id.; All‐
man, 790 F.3d at 766–67.
In this way, while qualified immunity may not entitle a
defendant to dismissal on the pleadings, qualified immunity
may entitle the defendant to summary judgment later on.
And because each determination is conclusive as to the de‐
fendant’s right to avoid the burdens of pretrial discovery and
trial, a denial of qualified immunity can be a “final decision”
at both stages of the litigation. See Behrens, 516 U.S. at 307–08.
Having confirmed that we have jurisdiction to review the
court’s qualified‐immunity decision, we next address
whether the court properly concluded that LeVan is not enti‐
tled to qualified immunity at this pleading stage.
B. Qualified Immunity
LeVan is entitled to dismissal unless (1) the plaintiffs ade‐
quately alleged facts that, if true, would constitute a violation
of a statutory or constitutional right, and (2) the right was
“clearly established” at the time of the alleged violation, such
that a reasonable public official would have known his con‐
duct was unlawful. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); see Moss, 473 F.3d at 702. We review de novo whether
each criterion has been met, accepting all well‐pleaded factual
10 No. 19‐1840
allegations as true and drawing all permissible inferences in
the plaintiffs’ favor. See Reed, 906 F.3d at 546, 549; Chasensky v.
Walker, 740 F.3d 1088, 1093, 1095 (7th Cir. 2014).
1. Violation of a Right
The plaintiffs alleged in their complaint that the Deputy
Assessor position is not one for which political affiliation is a
valid requirement and that LeVan dismissed the plaintiffs be‐
cause of their political affiliation, in violation of their First
Amendment rights. LeVan counters that political affiliation is
an appropriate job requirement for the Deputy Assessor posi‐
tion, so the employees’ dismissal based on political patronage
is not a First Amendment violation.
The general rule, under the Supreme Court’s decisions in
Elrod and Branti, is that dismissal of a public employee on the
basis of political affiliation violates the employee’s First
Amendment rights. See Rutan, 497 U.S. at 64; Bogart v. Vermil‐
ion County, 909 F.3d 210, 213 (7th Cir. 2018). The exception is
when party affiliation is an appropriate requirement for the
position involved. See Hagan v. Quinn, 867 F.3d 816, 824 (7th
Cir. 2017). This so‐called Elrod‐Branti or “policymaking”5 ex‐
ception derives from the principles of representative govern‐
ment: without political alignment in certain positions, em‐
ployees occupying those positions could obstruct the imple‐
mentation of policies presumably sanctioned by the
5 The exception’s application does not turn on whether the position
can bear the label “policymaker,” see Branti, 445 U.S. at 518, but we have
used the term “policymaker” as a shorthand for the broad category of of‐
fices that fall within the Elrod‐Branti exception. See Hagan, 867 F.3d at 824;
Kiddy‐Brown, 408 F.3d at 355.
No. 19‐1840 11
electorate, who placed the current administration in power.
Elrod, 427 U.S. at 367; Bogart, 909 F.3d at 213.
As a result, the Elrod‐Branti exception applies if “the hiring
authority can demonstrate that party affiliation is an appro‐
priate requirement for the effective performance of the public
office involved.” Branti, 445 U.S. at 518. We have held that po‐
litical affiliation is an appropriate requirement when “the
[employee’s] position authorizes, either directly or indirectly,
meaningful input into government decisionmaking on issues
where there is room for principled disagreement on goals or
their implementation.” Kiddy‐Brown, 408 F.3d at 355 (quoting
Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981)). This as‐
sessment includes whether the position “entails the exercise
of a substantial amount of political (as distinct from profes‐
sional) discretion,” Powers v. Richards, 549 F.3d 505, 510 (7th
Cir. 2008), and whether the position gives its holder access to
the superior’s “confidential, politically sensitive thoughts,”
Bogart, 909 F.3d at 213 (quoting Riley v. Blagojevich, 425 F.3d
357, 359 (7th Cir. 2005)).
Our focus, when determining whether a position falls
within the Elrod‐Branti exception, is on “the powers inherent
in a given office, as opposed to the functions performed by a
particular occupant of that office.” Tomczak v. City of Chicago,
765 F.2d 633, 640 (7th Cir. 1985); see Embry v. City of Calumet,
701 F.3d 231, 236 (7th Cir. 2012). We have thus endorsed
courts’ use of reliable job descriptions, which—if objective—
provide “a provisional safe harbor for elected officials” who
may depend on the descriptions when deciding whom to re‐
place on political grounds. Riley, 425 F.3d at 365. But a statute
or ordinance trumps a job description whenever they conflict.
See Davis v. Ockomon, 668 F.3d 473, 478 (7th Cir. 2012). And at
12 No. 19‐1840
this 12(b)(6) stage, we don’t have an official description of the
Deputy Assessor position, cf. Hagan, 867 F.3d at 827; we have
only the plaintiffs’ allegations and the Illinois Tax Code,
which LeVan says confirms the Deputy Assessor position is
one for which political alliance is a valid requirement.
Before we turn to the statutes, it’s important to address the
role that the plaintiffs’ allegations play in our analysis. LeVan
argues that the plaintiffs’ allegations about their job duties
should not be considered because the issue turns on the inher‐
ent powers of an office, not a particular occupant’s functions.
It is true that whether political affiliation is a valid job re‐
quirement depends on the position itself—that is, the functions
that “usually attend” the position—rather than specific acts
performed by a particular position holder. Tomczak, 765 F.2d
at 640–41. This is why statutes, ordinances, regulations, and
reliable job descriptions are the go‐to sources for determining
what the position entails. See Davis, 668 F.3d at 478. But the
plaintiffs’ allegations about the nature of the position may be
relevant, too. If the statutes, ordinances, regulations, and job
description do not provide a clear enough picture of the posi‐
tion, or if the job description provides sufficient detail but is
inaccurate or unreliable, then how the position is treated and
performed on the ground can supply the necessary infor‐
mation about the “normal duties,” Allman, 790 F.3d at 766, or
the functions that “usually attend [the] position,” Tomczak,
765 F.2d at 641. See Allen v. Martin, 460 F.3d 939, 944 (7th Cir.
2006). Stated differently, facts about how the position is car‐
ried out can support inferences about the powers inherent in
the office. Consequently, unless a statute, ordinance, regula‐
tion, or reliable job description confirms that the position falls
within the Elrod‐Branti exception, we take the plaintiffs’
No. 19‐1840 13
plausible allegations to the contrary as true at the pleading
stage. See, e.g., Moss, 473 F.3d at 698–99, 702; Kiddy‐Brown, 408
F.3d at 355–56.
The plaintiffs alleged in their complaint that political affil‐
iation is not an appropriate requirement for the Deputy As‐
sessor position. They elaborated that the Deputy Assessor po‐
sition did not give the plaintiffs any policymaking authority,
and that the Milton Township Assessor’s Office employs
Chief Deputy Assessors, who “advise the Assessor on policy
issues”; fill the Assessor’s role in the Assessor’s absence; and
manage the lower‐level office personnel, including the Dep‐
uty Assessors. The lower‐level Deputy Assessors, the plain‐
tiffs alleged, are not authorized to perform any of these advi‐
sory or managerial functions.
The plaintiffs continued that their positions involved tak‐
ing measurements of property and inputting those measure‐
ments, along with other collected data, into computer pro‐
grams and formulas that were set by statutes, regulations,
state‐issued guidelines, and the County and Township Asses‐
sors. The Deputy Assessors had “no control or discretion”
over the formulas or programs. And the Township Asses‐
sor—not the Deputy Assessors—was empowered to change
an assessment. The Deputy Assessor positions also involved
“other clerical functions.”
The plaintiffs additionally rely on a declaration, attached
to their complaint, by the prior Township Assessor, who
stated that Chief Deputy Assessors, only, were in positions to
advise the Assessor on policymaking issues and to fill the As‐
sessor’s role in his absence. See Williamson v. Curran, 714 F.3d
432, 436 (7th Cir. 2013) (observing that documents attached to
14 No. 19‐1840
the complaint and on which the plaintiff relies to support a
claim may be considered on a motion to dismiss).
Taken alone, the plaintiffs’ allegations portray the Deputy
Assessor position as one that does not involve meaningful in‐
put into government decisionmaking on issues where there is
room for principled disagreement on goals or their imple‐
mentation. The predetermined formulas and computer pro‐
grams that the lower‐level Deputy Assessors apply suggest
that any discretion the position holds “is channeled by pro‐
fessional rather than political norms.” Riley, 425 F.3d at 360.
The alleged office hierarchy also supports an inference
that the lower‐level Deputy Assessor position does not en‐
dow its holders with influence over policy choices or access
to the Township Assessor’s politically sensitive thoughts:
only the Chief Deputy Assessors hold cabinet‐like managerial
and advisory roles; and the lower‐level Deputy Assessor po‐
sition does not carry power to alter an assessment resulting
from the prescribed formulas or programs.
Thus, unless a law makes these allegations implausible,
the plaintiffs have alleged that they held low‐level positions
lacking political discretion and for which political affiliation
is not a valid requirement.
We’ve been alerted to statutes (no ordinances) that ad‐
dress the duties and responsibilities of the Township Assessor
and deputies. The Illinois Tax Code provides that each year
“the assessor, in person or by deputy, shall actually view and
determine as near as practicable the value of each property
listed for taxation … and assess the property at 33 ⅓ % of its
fair cash value, or in accordance with … [certain statutes or
county ordinances].” 35 ILCS 200/9‐155. It also provides that
No. 19‐1840 15
an assessor “may appoint one or more suitable persons as
deputies to assist in making the assessment, and may appoint
other employees required for operation of the office.” 35 ILCS
200/2‐65. Thus, the Township Assessor may carry out the stat‐
utorily imposed assessment duty with the help of appointed
deputy assessors, who may “assist in making the assess‐
ment.” Id. The Code also defines “assessor” as “county, town‐
ship, multi‐township or deputy assessors, all of whom evalu‐
ate and appraise property.” 35 ILCS 200/1‐10. LeVan says
these statutes confirm the plaintiffs’ positions fit the Elrod‐
Branti exception.
We can assume that the Township Assessor position falls
within the Elrod‐Branti exception; the plaintiffs even allege
that LeVan made policy. So, if the statutes expressly con‐
firmed that the Deputy Assessor position had all the same
powers as the Township Assessor, we would have no trouble
concluding that the plaintiffs’ positions also fit within the El‐
rod‐Branti exception. That was the case with the Indiana dep‐
uty county auditor position in Kline v. Hughes, 131 F.3d 708,
710 (7th Cir. 1997) (deputy who was vested with the power by
express statute to perform all duties of the auditor fell within
the Elrod‐Branti exception).
But the Illinois Code does not declare that a deputy asses‐
sor has all the same authorizations and duties as the assessor.
It instead specifies that the assessor may deputize employees
“to assist in making the assessment” of properties—not to
hold all the same power and responsibilities as the assessor or
to take the assessor’s place when the office becomes vacant.
35 ILCS 200/2‐65.6 The Code’s definition of “assessor” as
6 Deputy assessors are authorized to administer oaths. 35 ILCS 200/24‐
30. But we don’t see how power to administer an oath equals meaningful
16 No. 19‐1840
“county, township, multi‐township or deputy assessors” does
not make the Township Assessor position one and the same
as the Deputy Assessor position. 35 ILCS 200/1‐10. It merely
recognizes that when “assessor” appears in the correspond‐
ing statutes, that term may refer to any of the listed positions.
This leaves us with the following critical question: Do
Deputy Assessors have inherent authority to provide mean‐
ingful input into decisions on issues where there is room for
principled disagreement on goals or their implementation be‐
cause the Illinois Code permits deputies to help the Township
Assessor make an assessment?
The statutes do not confirm an affirmative answer, as they
do not establish the extent to which political discretion plays
a part in the Deputy Assessor’s role in “actually view[ing] and
determin[ing] as near as practicable the value of each prop‐
erty listed for taxation … and assess[ing] the property at
33 ⅓ % of its fair cash value, or in accordance with [certain
statutes or ordinances].” 35 ILCS 200/9‐155. The Code defines
“33 ⅓ %”7 and “fair cash value.”8 And other statutes, ordi‐
nances, or “general rules” prescribed by the Department of
influence in policy decisions or access to politically sensitive deliberations;
the power to administer an oath is not power to make hiring‐and‐firing or
other placement decisions.
7“One‐third of the fair cash value of property, as determined by the
[State Revenue] Department’s sales ratio studies for the 3 most recent
years preceding the assessment year, adjusted to take into account any
changes in assessment levels implemented since the data for the studies
were collected.” 35 ILCS 200/1‐55.
8“The amount for which a property can be sold in the due course of
business and trade, not under duress, between a willing buyer and a will‐
ing seller.” 35 ILCS 200/1‐50.
No. 19‐1840 17
Revenue may leave the assessment task devoid of any policy‐
making discretion, even if it requires some professional dis‐
cretion. See 35 ILCS 200/8‐5(3); see generally People ex rel. Cut‐
more v. Harding, 164 N.E. 827, 829 (Ill. 1929) (holding that
county deputy assessor was not entitled to the higher com‐
pensation authorized for a clerk, and noting that the deputy’s
role in determining property value includes some form of
“discretion,” without identifying that discretion as political or
professional).
It may also be that any policy discretion and confidential
deliberation that is left for the Assessor’s Office is done by the
Township Assessor and the Chief Deputy Assessors who act
as advisors or “formulate[] plans for the implementation of
broad goals,” Elrod, 427 U.S. at 368. Those policies may then
be inflexibly executed by the lower‐level Deputy Assessors
when they “assist in making the assessment.” 35 ILCS 200/2‐
65. In other words, the Deputy Assessor’s role in performing
assessments may involve only professional discretion and
mechanical application of formulas set by legislators, regula‐
tors, the Township Assessor, and the cabinet‐like advisors
who occupy the Chief Deputy Assessor position. Finally, alt‐
hough the assessment produced by a deputy may be deemed
the Township Assessor’s own, that does not determine
whether the deputy exercises political discretion in perform‐
ing the assessment.
So, no statutes or ordinances confirm whether the Deputy
Assessor position involves policymaking input or access to
the assessor’s politically sensitive or confidential thoughts.
And at this point, we have no job description, much less a re‐
liable one. Thus, the plaintiffs’ allegations about the Deputy
Assessor position characteristics—specifically, that the
18 No. 19‐1840
position lacks policymaking authority and access—are plau‐
sible. The plaintiffs also adequately alleged that LeVan dis‐
missed the Deputy Assessors on political‐patronage grounds,
so the plaintiffs stated a claim of violated First Amendment
rights under Elrod and Branti.
2. Clear Establishment of the Right
Having concluded that the plaintiffs adequately pled a vi‐
olation of a right, we move to the question whether the con‐
tours of the allegedly violated right were, at the time LeVan
dismissed the plaintiffs, “sufficiently clear that every reason‐
able official would have understood that what he is doing vi‐
olates that right.” Kemp v. Liebel, 877 F.3d 346, 351 (7th Cir.
2017) (quoting Gustafson v. Adkins, 803 F.3d 883, 891 (7th Cir.
2015)).
Critically, we approach this question by taking the plain‐
tiffs’ well‐pleaded allegations as true. We assume at this
12(b)(6) stage that the plaintiffs occupied positions lacking au‐
thority to have meaningful input into policy decisions and to
access politically sensitive or confidential deliberations. We
also take as given that the employees were fired based on
their political affiliation. See Moss, 473 F.3d at 702; Kiddy‐
Brown, 408 F.3d at 356. Consequently, the more specific ques‐
tion we face is this: When LeVan fired the plaintiffs, would
every reasonable state actor in his shoes have understood that
dismissing an employee from a position lacking meaningful
input into political decisionmaking violates the employee’s
First Amendment rights?
LeVan says this question assumes too much, arguing that
the nature of the Deputy Assessor position—that is, whether
No. 19‐1840 19
it falls inside or outside the Elrod‐Branti exception—was not
beyond debate.
But because we are at the 12(b)(6) stage, the plaintiffs re‐
ceive the benefit of all plausible allegations and reasonable in‐
ferences being treated as true. This makes the set of contextual
facts that are assumed for purposes of this qualified‐immun‐
ity inquiry broad: the assumed context includes that the Dep‐
uty Assessor position is not a cabinet‐like role but rather a
lower‐level position involving no political discretion in per‐
forming assessments (that is, collecting data and plugging it
into prescribed formulas and computer programs). Faced
with this set of circumstances, a reasonable officer in LeVan’s
position would have known that firing the non‐policymaking
employees on political‐patronage grounds violates their First
Amendments rights.
As we mentioned earlier, qualified immunity warrants
dismissal at the 12(b)(6) stage only when “the plaintiff asserts
the violation of a broad constitutional right that had not been
articulated at the time the violation is alleged to have oc‐
curred.” Jacobs, 215 F.3d at 765 n.3. The right that the plaintiffs
allege LeVan violated has long been established in our circuit.
We observed in Kiddy‐Brown that “by 2003, it was well‐estab‐
lished that the First Amendment prohibits a state official from
dismissing, on political grounds, an employee who was not
charged with policymaking duties.” Kiddy‐Brown, 408 F.3d at
357. And we reiterated this conclusion again in Moss, in 2007.
See 473 F.3d at 702; see also Allman, 790 F.3d at 767 (observing
that our cases had clearly established that a person who has
limited operational discretion but no significant policymak‐
ing discretion cannot be fired on political grounds). That right
did not become unclear between those decisions and the
20 No. 19‐1840
plaintiffs’ dismissals in 2014, so our precedent “placed the
statutory or constitutional question beyond debate.” Gus‐
tafson, 803 F.3d at 891 (quoting Rabin v. Flynn, 725 F.3d 628,
632 (7th Cir. 2013)).
LeVan’s disagreement with the assumed context here il‐
lustrates the mismatch between the 12(b)(6) plausibility
standard and the often fact‐intensive nature of qualified‐im‐
munity inquiries. See supra, at n.2; Reed, 906 F.3d at 548–49;
Jacobs, 215 F.3d at 765 n.3. But that incongruity does not justify
heightening the pleading standard, which imposes on the
plaintiffs no obligation to initially “anticipate and overcome a
defense of qualified immunity” in their complaint. Jacobs, 215
F.3d at 765 n.3. See generally Leatherman, 507 U.S. at 168 (no
particularity requirement or heightened standard for claims
under § 1983); Gomez v. Toledo, 446 U.S. 635, 640 (1980)
(“[T]wo—and only two—allegations are required in order to
state a cause of action under [§ 1983]. First, the plaintiff must
allege that some person has deprived him of a federal right.
Second, he must allege that the person who has deprived him
of that right acted under color of state or territorial law.”).
The plausibility standard, which leads us to take as given
the plaintiffs’ allegations about the nature of their positions,
is why “a complaint is generally not dismissed under Rule
12(b)(6) on qualified immunity grounds.” Alvarado, 267 F.3d
at 651. And it is why the plaintiffs’ First Amendment claims
should not be dismissed on qualified‐immunity grounds
here.
We are not persuaded by LeVan’s additional argument for
why the constitutional question—whether dismissing the
Deputy Assessors on political‐patronage grounds violated
their First Amendment rights—was not beyond debate. He
No. 19‐1840 21
points out that the district judge originally assigned to this
case, Judge Samuel Der‐Yeghiayan, concluded that the posi‐
tion fell within the Elrod‐Branti exception as a matter of law,
and when the case was reassigned to Judge Robert Dow upon
Judge Der‐Yeghiayan’s retirement, Judge Dow decided other‐
wise on reconsideration.
LeVan is correct that political‐patronage dismissals over‐
all comprise a “somewhat murky area of the law,” Moss v.
Martin, 614 F.3d 707, 712 (7th Cir. 2010), and that the “clearly
established” inquiry “must be undertaken in light of the spe‐
cific context of the case, not as a broad general proposition.”
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001), receded from on different point by
Pearson, 555 U.S. at 236).
But LeVan did not face “an undeveloped state of the law”
regarding political‐patronage dismissals. Wilson v. Layne, 526
U.S. 603, 617 (1999). Nor did he align his conduct with court
holdings that the Milton Township Deputy Assessor position
falls within the Elrod‐Branti exception. Cf. Pearson, 555 U.S. at
244–45 (officers reasonably believed their conduct was lawful
when a doctrine under which their conduct would be lawful
had been accepted by the two State Supreme Courts and all
three Federal Courts of Appeals that considered it, with no
court of appeals having issued a contrary decision). No case
“directly on point” was required for the relevant right to have
been clearly established. Kiddy‐Brown, 408 F.3d at 356 (quot‐
ing Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996)).
The context LeVan faced was whether to fire, on political‐
patronage grounds, low‐level employees (as opposed to cab‐
inet‐level advisors) who performed clerical and professional
work involving no political discretion. And when LeVan
22 No. 19‐1840
dismissed the plaintiffs, the law was clear that a position lack‐
ing the features of a policymaking role—such as significant
political discretion or cabinet‐level advisory functions—falls
under the Elrod‐Branti rule, not the exception. See Allman, 790
F.3d at 767; Moss, 473 F.3d at 702; Kiddy‐Brown, 408 F.3d at
356–57.
We thus think it “sufficiently clear” that—taking as given
the plaintiffs’ well‐pleaded allegations that the positions oc‐
cupied a low rung of the bureaucratic latter and lacked poli‐
cymaking authority—every reasonable official would have
understood that firing the plaintiffs because of their political
affiliation violates their First Amendment rights. Kemp, 877
F.3d at 351 (quoting Gustafson, 803 F.3d at 891).
To be clear, LeVan may be entitled to qualified immunity
on a motion for summary judgment, at which time the plain‐
tiffs’ well‐pleaded allegations are not taken as true. But that is
a matter different from the one before us now. See Behrens, 516
U.S. at 308.
III. CONCLUSION
Because we have jurisdiction to review the district court’s
qualified‐immunity decision, and because the court correctly
concluded that LeVan is not entitled to qualified immunity at
this stage in the litigation, we AFFIRM.