The Fourteenth Amendment Equal Protection Claim1
Plaintiffs’ second claim is that they were denied equal protection under the law, in
violation of the Fourteenth Amendment, when, Plaintiff claims, the Defendants treated
Plaintiffs differently from other persons arrested during the relevant period, thereby
discriminating against them. The Fourteenth Amendment to the Constitution provides
that:
“No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty or property, without due
process of law; nor deny to deny any person within its jurisdiction
the equal protection of the laws.”
In order to establish a violation of equal protection under the Fourteenth
Amendment, the Plaintiffs first must prove by a preponderance of the evidence that (1)
the Defendants treated them differently/discriminatorily from other similarly situated
individuals, (2) this different/discriminatory treatment impermissibly infringed on the
exercise of Plaintiffs’ fundamental right to freedom of speech, and (3) was not
necessary to serve a compelling governmental interest. 2 You do not have to find that
Plaintiffs have a right to a DAT or summons in order to find a violation of the First
Amendment. It is enough if Plaintiffs have demonstrated that they were denied
consideration for a DAT or summons because they were involved in expressive activity.
In considering whether or not the defendants’ policy violated the plaintiffs’ constitutional
rights, it is not relevant whether or not the plaintiffs were convicted of the charges for
which they were arrested.
With respect to the first element, you must determine whether the Plaintiffs were
similarly situated to other people who were arrested between April 1, 1999 and July 13,
1999 for the same types of offenses as the Plaintiffs but who were not seeking to
express a message when arrested. 3 You must reach your conclusion based upon the
1

Derived from Circulo Charge.

2

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Regan v.
Taxation With Representation of Washington, 461 U.S. 540, 547 (1983) (“Statutes are
subjected to a higher level of scrutiny if they interfere with the exercise of a fundamental
right, such as freedom of speech.”); Schweiker v. Wilson, 450 U.S. 221, 230 (1981);
Scarbrough v. Morgan County Bd. of Educ., --- F.3d ----, 2006 WL 3375340, at *8-9 (6th
Cir. Nov. 22, 2006) (“The threshold element of an equal protection claim is disparate
treatment. Once disparate treatment is shown, the equal protection analysis to be
applied is determined by the classification used by government decision-makers.”); Bery
v. City of New York, 97 F.3d 689, 699 (2d Cir. 1996) (“Since the ordinance does
impermissibly impinge on a fundamental right, the district court incorrectly dismissed the
equal protection argument under a rational basis test.”).
3

Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494, 499, n.2 (2d Cir.

evidence and your common sense.

2001) (“As a general rule, whether items are similarly situated is a factual issue that should be
submitted to the jury,” the exception being “a court can properly grant summary judgment where
it is clear that no reasonable jury could find the similarly situated prong met”); Lunini v. Grayeb,
395 F.3d 761, 770, n.6 (7th Cir. 2005) (“We are cognizant of the fact that, as a general matter,
whether individuals are similarly situated is a factual question for the jury.”)

With respect to the second element, I instruct you as a matter of law that denying
Plaintiffs consideration for a DAT or summons because they were engaged in
expressive activity when they were arrested, and thereby holding them in custody
overnight, impinged their fundamental right to freedom of speech, regardless of whether
the Defendants intended to punish or deter the Plaintiffs’ expressive activity or not. 4
As for the third element, the burden shifts to the Defendants to prove by a
preponderance of the evidence that their discriminatory treatment of Plaintiffs was
necessary to serve a compelling governmental interest. 5 To be a compelling interest
the Defendants must show that the alleged objective was “of the highest order,” 6 that it
was the Defendants’ actual purpose for the discriminatory treatment, and Defendants
must have had a “strong basis in evidence to support that justification before it
implementedthepolicy.. 7
Defendants contend that their “compelling interest” was the need to balance preserving
the public safety with limited police resources based on the individual circumstances at
a particular demonstration. If you find that this interest was compellingand that denying
the Plaintiffs individual consideration for DATs or summons was necessary to serve this
interest, then the Defendants are not liable. However, I instruct you as a matter of law
that, if you find that the plaintiffs were denied consideration for a DAT or summons
merely because they engaged in expressive activity, then the individual circumstances
at a particular demonstration do not constitute a compelling interest. If you find the
Defendants’ proposed interest was not compelling or that the discriminatory treatment of
the Plaintiffs was not necessary to serve this interest, then you must return a verdict for
the Plaintiffs.

4

Make The Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004)
("[f]reedom of expression ... is a fundamental right, essential to our democratic society")
(citations omitted).
5

Shapiro v. Thompson, 394 U.S. 618, 627 (1969) (“any classification which serves to
penalize the exercise of . . . [a constitutional right], unless shown to be necessary to promote a
compelling governmental interest, is unconstitutional.”); Harper v. State Board of Elections, 393
U.S. 663, 665 (1966) (“where fundamental rights and liberties are asserted under the Equal
Protection Clause, classifications which might invade or restrain them must be closely
scrutinized and carefully confined”).
6
7

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

Shaw v. Hunt, 517 U.S. 899, 908 n. 4 (1996) (“To be a compelling interest the
State must show that the alleged objective was the legislature’s actual purpose for the
discriminatory classification” and must have a “strong basis in evidence to support that
justification before it implements the classification.”).