Agee v. Hickenbottom: Class-of-One Equal Protection Amendments Are Not Futile Unless Probable Cause Is Certain on the Pleadings

I. Introduction

In Jacqueline Agee v. Paige Hickenbottom (7th Cir. July 17, 2026), Jacqueline Agee (an Illinois law-enforcement officer residing in Indiana) and her son John Agee alleged that three St. John, Indiana police officers intentionally pursued baseless criminal/ordinance proceedings against them out of animus toward Jacqueline’s status as an Illinois officer. After the district court dismissed their § 1983 suit and entered judgment without allowing amendment, the Agees sought post-judgment leave to amend to add (among other theories) a class-of-one Equal Protection claim. The district court denied leave as futile, reasoning the officers “had reason to believe” Jacqueline violated a local ordinance.

The Seventh Circuit affirmed dismissal of most claims (many effectively abandoned on appeal) but reversed the denial of leave to amend on the class-of-one theory. The core issue was procedural and substantive: when may a court deem a proposed class-of-one amendment “futile” at the pleadings stage based on probable cause/rational-basis arguments?

II. Summary of the Opinion

  • Reversed in part: The district court should have granted leave to amend because the proposed class-of-one Equal Protection claims were not futile.
  • Key holding on futility: On the face of the proposed second amended complaint, probable cause was not “certain” as to the intimidation allegation against John or the ordinance citation against Jacqueline; therefore, the amendment could not be rejected as futile.
  • Procedural clarification: The court reiterated liberal amendment principles post-dismissal and discussed the district court’s authority under Rule 62.1 to issue indicative rulings after a notice of appeal.
  • Affirmed in part: Dismissal of malicious prosecution, false arrest, failure-to-intervene, and municipal liability claims was affirmed (primarily on waiver/merits grounds).
  • State indemnification claim: Must be dismissed without prejudice as unripe absent a judgment against the officers.

III. Analysis

A. Precedents Cited

1. Liberal amendment after dismissal and “futility” review

  • Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510 (7th Cir. 2015): The opinion anchors its approach in Runnion’s repeated admonition that plaintiffs dismissed under Rule 12(b)(6) should ordinarily receive at least one chance to amend. Critically, Runnion supplies the rule applied here: leave should be granted unless it is “certain from the face of the complaint” that amendment would be futile.
  • Barry Aviation Inc. v. Land O'Lakes Municipal Airport Comm'n, 377 F.3d 682 (7th Cir. 2004): Quoted via Runnion for the “especially advisable” principle to allow amendment after first dismissal. It functions as the doctrinal bridge to the court’s conclusion that the district court applied too strict a futility lens.
  • Foman v. Davis, 371 U.S. 178 (1962): Supplies the Supreme Court’s canonical instruction that the Rule 15 mandate “is to be heeded,” reinforcing that “futility” must be applied narrowly in close pleading-stage calls.
  • Reilly v. Will County Sheriff's Office, 142 F.4th 924 (7th Cir. 2025): Used for two propositions: (i) post-judgment motions filed timely under Rule 59(e) still get the liberal Rule 15 standard; and (ii) when futility is the reason for denial, the appellate court effectively reviews the proposed complaint’s sufficiency de novo.

2. Post-judgment motion labeling and appellate timing

  • BLOM Bank SAL v. Honickman, 605 U.S. 204 (2025): Cited to distinguish the “extraordinary circumstances” bar for reopening under Rule 60(b)(6), while explaining the Seventh Circuit’s practice of recharacterizing timely Rule 60(b)-labeled motions as Rule 59(e) motions when filed within 28 days.
  • Carter v. City of Alton, 922 F.3d 824 (7th Cir. 2019) and Obriecht v. Raemisch, 517 F.3d 489 (7th Cir. 2008): Support the recharacterization principle (Rule 60(b) label does not control if the motion is timely and substantively within Rule 59(e)).
  • Banister v. Davis, 590 U.S. 504 (2020): Reinforces that the Rule 59(e)/Rule 60(b) recharacterization practice is widespread and affects appeal deadlines.
  • Motorola Solutions, Inc. v. Hytera Communications Corp., 108 F.4th 458 (7th Cir. 2024): Provides the key jurisdictional nuance the district court missed: even after a notice of appeal, the district court can address certain motions through Rule 62.1 indicative rulings; it need not treat itself as powerless.

3. Pleading standards

  • Bowlin v. Board of Directors, Judah Christian School, 167 F.4th 469 (7th Cir. 2026): Confirms de novo review of Rule 12(b)(6) dismissals.
  • Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010): The court relies on Swanson for the “story that holds together” formulation of plausibility and the idea that the nature of the case determines how many “dots” must be connected.
  • Erickson v. Pardus, 551 U.S. 89 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009): These cases frame modern plausibility pleading; the panel uses them to justify why liberal amendment matters given lingering uncertainty after Twombly/Iqbal.
  • Brown v. Meisner, 81 F.4th 706 (7th Cir. 2023); Zimmerman v. Bornick, 25 F.4th 491 (7th Cir. 2022); Skinner v. Switzer, 562 U.S. 521 (2011): Support the principle that plaintiffs need not “pin” themselves to a legal theory at the pleading stage.

4. Class-of-one Equal Protection doctrine

  • Village of Willowbrook v. Olech, 528 U.S. 562 (2000): Supplies the two elements of a class-of-one claim: (i) intentional differential treatment from others similarly situated; and (ii) no rational basis for the difference.
  • Indiana Land Trust #3082 v. Hammond Redevelopment Comm'n, 107 F.4th 693 (7th Cir. 2024): Reaffirms the elements and recognizes ways a plaintiff can “plead themselves out” of class-of-one claims; the panel uses it to reject defendants’ “traditional equal protection” reframing.
  • D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681 (7th Cir. 2013): Cited for the demanding rational-basis pleading standard (no “conceivable” rational basis), which makes the probable-cause debate central: if probable cause is certain, it supplies a conceivable rational basis.
  • Miller v. City of Monona, 784 F.3d 1113 (7th Cir. 2015): Used to emphasize that plaintiffs need not plead a specific comparator at the complaint stage.
  • Swanson v. City of Chetek, 719 F.3d 780 (7th Cir. 2013) and Lauth v. McCollum, 424 F.3d 631 (7th Cir. 2005): Provide the “classic” class-of-one narrative—official action motivated by spite or other improper motive.
  • Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012): Serves as the panel’s analog for plausibly alleged targeted harassment through baseless enforcement actions.
  • Engquist v. Oregon Dep't of Agriculture, 553 U.S. 591 (2008): Noted in a footnote to clarify that class-of-one claims are barred in public employment contexts, but that limitation does not apply here (this is law enforcement action against private citizens).

5. Probable cause, rational basis, and related defenses

  • Williamson v. Curran, 714 F.3d 432 (7th Cir. 2013): Used for the proposition that probable cause can provide a legitimate reason for arrest, defeating a class-of-one claim (at least where probable cause is established).
  • Nieves v. Bartlett, 587 U.S. 391 (2019): Cited as a “but cf.” to show that probable cause is not always a complete defense in retaliatory-arrest doctrine; it frames the court’s caution against assuming probable cause categorically ends every constitutional theory.
  • Neita v. City of Chicago, 148 F.4th 916 (7th Cir. 2025); Michigan v. DeFillippo, 443 U.S. 31 (1979); District of Columbia v. Wesby, 583 U.S. 48 (2018); Illinois v. Gates, 462 U.S. 213 (1983): Provide the governing probable-cause framework (practical, totality-of-circumstances, substantial-chance inquiry), which the panel applies to show why probable cause was not “certain” on the pleaded facts.
  • Indiana “deadly weapon” cases—Moore v. State, 137 N.E.3d 1034 (Ind. App. 2019); Merriweather v. State, 778 N.E.2d 449 (Ind. App. 2002); Davis v. State, 835 N.E.2d 1102 (Ind. App. 2005); Whitfield v. State, 699 N.E.2d 666 (Ind. App. 1998): Used to demonstrate fact-intensive “deadly weapon” analysis for BB/pellet/airsoft guns, supporting the panel’s conclusion that, without key facts (distance, threats, appearance), probable cause for a felony intimidation charge was not a foregone conclusion at the pleading stage.
  • Mestek v. Lac Courte Oreilles Community Health Center, 72 F.4th 255 (7th Cir. 2023): Supports judicial notice of the local ordinance text, which the panel used to contrast what the ordinance prohibits (including aiming) with what the citation alleged (a “discharge” knowingly permitted).
  • Wade v. Collier, 783 F.3d 1081 (7th Cir. 2015) and Vukadinovich v. Bartels, 853 F.2d 1387 (7th Cir. 1988): Defendants invoked these to argue the equal protection claim was merely a malicious prosecution claim in disguise. The panel narrows their reach: Wade involved probable cause at summary judgment, and Vukadinovich involved public employee retaliation that “fits uneasily” in equal protection.

6. Municipal liability and ripeness

  • Gill v. City of Milwaukee, 850 F.3d 335 (7th Cir. 2017): Used to reject municipal liability because plaintiffs did not allege a widespread practice constituting a custom.
  • Medical Assurance Co. v. Hellman, 610 F.3d 371 (7th Cir. 2010) and Wynn v. City of Indianapolis, 496 F. Supp. 3d 1224 (S.D. Ind. 2020): Establish that indemnification issues are unripe absent an underlying judgment, requiring dismissal without prejudice.

B. Legal Reasoning

1. The “futility” question was wrongly resolved because probable cause was not certain from the pleadings

The district court’s futility ruling rested on the idea that the officers “had reason to believe” Jacqueline committed an ordinance violation—effectively treating that as sufficient to supply rational basis/probable cause and thus defeat class-of-one theory at the threshold. The Seventh Circuit applied the stricter Runnion/Barry Aviation standard: amendment may be denied only if it is certain on the face of the proposed pleading that the plaintiff cannot state a claim.

  • As to John: Even if an officer could suspect intimidation, the pleaded facts did not make it certain that there was probable cause for a felony intimidation theory premised on use of a “deadly weapon.” The panel stressed missing, potentially outcome-determinative facts (distance, threats/words, appearance of the airsoft gun, evidence of the victims’ fear). Those gaps prevented a “certainty” determination at the futility stage.
  • As to Jacqueline: The citation alleged she “knowingly permitted” John to discharge a pellet gun at a specific time, but the complaint alleged no witness reported any discharge and no pleaded facts supported an inference about Jacqueline’s knowledge or permission. The defendants’ proffered inference (targets + “looking at targets” + reports of aiming) was characterized as conjecture, especially given that on a futility review the court draws inferences in plaintiffs’ favor.

2. Alleging a specific improper motive does not convert the claim into a “traditional” equal protection case

Defendants argued that because plaintiffs identified the alleged animus (toward Illinois law enforcement), the claim “sounds” in traditional equal protection rather than class-of-one. The panel rejected this: the identified motive is not a protected-class theory, and class-of-one doctrine would be gutted if plaintiffs were barred from alleging what they believe the real motive to be. The court cited Geinosky and Swanson v. City of Chetek as examples where specific retaliatory/harassing motives were consistent with class-of-one claims.

3. “Reworded malicious prosecution” is not a categorical bar here

The panel resisted an overbroad reading of Wade v. Collier. It distinguished that line of cases on their procedural posture and fit: Wade involved probable cause on summary judgment; Vukadinovich involved public-employee speech retaliation. Here, plaintiffs disclaimed other theories and intended to pursue only the equal protection claim, reducing concerns about duplication and doctrinal mismatch.

4. Qualified immunity was not resolved because the record was too undeveloped

Defendants also pressed qualified immunity. The panel declined to decide it, noting the defense would depend on the “totality” of what officers knew—facts not established on the pleadings as a matter of law. This underscores a recurring theme in the opinion: futility determinations must be anchored in what the proposed complaint actually pleads, not in evidentiary assumptions about what discovery might show.

5. Procedural discipline: post-judgment amendment, appeal jurisdiction, and indicative rulings

The opinion uses the case to reinforce best practices in post-dismissal litigation. It reiterates that a timely motion (even if labeled Rule 60(b)) can be treated as Rule 59(e), thereby keeping liberal Rule 15 principles in play. It also corrects the district court’s view that it was entirely divested of jurisdiction after the notice of appeal: under Rule 62.1 (and as explained in Motorola Solutions, Inc. v. Hytera Communications Corp.), the district court may deny, defer, or issue an indicative ruling that it would grant relief if remanded.

C. Impact

1. Stronger constraint on “futility” denials where probable cause is contestable

The practical precedent is less about expanding class-of-one doctrine and more about cabining premature probable-cause determinations used to block amendment. The decision signals that district courts should not treat “reason to believe” or plausible alternate inferences as enough to declare futility when the proposed complaint does not itself establish probable cause to a certainty.

2. Class-of-one claims remain viable for alleged targeted enforcement driven by inter-jurisdictional animus

The alleged animus here—hostility to an out-of-state (or out-of-jurisdiction) police officer—illustrates that class-of-one theory can reach selective, spite-driven enforcement even when plaintiffs do not fit a traditional protected-class framework. The panel’s reasoning may encourage plaintiffs to frame targeted enforcement as class-of-one where evidence suggests differential treatment without a legitimate basis.

3. Litigation management effects: encourage amendment and fuller records

By emphasizing the system benefits of permitting amendment (decisions on the merits; better appellate records; reduced pleading-stage dismissals based on underdeveloped facts), the opinion may shift district-court practice toward granting at least one amendment—particularly in § 1983 cases where intent and totality-of-circumstances often cannot be resolved from a sparse initial pleading.

IV. Complex Concepts Simplified

  • Class-of-one Equal Protection: A plaintiff claims the government singled them out for worse treatment than similarly situated people, not because of race/sex/etc., but for an arbitrary or spiteful reason, and there was no rational reason for doing so.
  • Rational basis (“conceivable”): Government action survives if any plausible legitimate reason could justify it—even if that wasn’t the actual reason. In class-of-one claims, this makes probable cause (if clearly present) a powerful “legitimate reason.”
  • Probable cause: A practical, common-sense assessment that facts known at the time suggest a substantial chance a crime/offense occurred. It is not proof beyond a reasonable doubt.
  • Futility (in amendment): A proposed amendment is “futile” only if it would definitely fail as a matter of law even assuming its facts are true. In the Seventh Circuit’s framing, futility is appropriate only when failure is certain from the face of the proposed pleading.
  • Rule 59(e) vs. Rule 60(b): Both are post-judgment tools. A motion filed within 28 days that challenges legal error is often treated as Rule 59(e) even if labeled Rule 60(b), which matters for appeal timing and for applying liberal amendment standards.
  • Indicative ruling (Rule 62.1): When an appeal is pending, the district court can signal it would grant a motion if the court of appeals remands—preventing wasted time on an appeal that could be mooted by a remand for amendment.
  • Municipal “custom” liability: A city/town is not liable under § 1983 just because employees allegedly violated rights; plaintiffs must plausibly allege a policy or widespread practice.
  • Ripeness (indemnification): Courts avoid deciding claims that depend on future events (like whether officers will be held liable). Indemnification becomes ripe after an underlying judgment.

V. Conclusion

Agee v. Hickenbottom reinforces two linked principles in Seventh Circuit practice: (1) Rule 15’s liberal amendment policy requires allowing amendment after an initial dismissal unless failure is legally certain; and (2) district courts should not convert contested, fact-dependent questions like probable cause into pleading-stage “futility” bars unless the proposed complaint itself forecloses the claim. Substantively, the opinion confirms that class-of-one Equal Protection remains an available vehicle for claims of spite-driven, differential enforcement, including where alleged animus is personal or jurisdictional rather than tied to a protected class.