Agee v. Hickenbottom: Leave to Amend Must Be Granted Unless Probable Cause (and Futility) Is Certain on the Face of the Proposed Class-of-One Equal Protection Pleading

I. Introduction

Case: Jacqueline Agee v. Paige Hickenbottom
Court: U.S. Court of Appeals for the Seventh Circuit
Date: July 17, 2026

This appeal arose from a neighborhood incident in St. John, Indiana, where witnesses reported that someone in the Agee garage pointed what looked like a gun at juveniles walking by. Plaintiffs Jacqueline Agee (an Illinois law enforcement officer living in Indiana) and her son John Agee alleged that St. John police officers Paige N. Hickenbottom, Samuel Jacobs, and Jarrett Stickle intentionally pursued baseless criminal/ordinance proceedings motivated by animus toward Jacqueline’s status as an Illinois officer.

The district court dismissed the original § 1983 claims and, post-judgment, denied leave to amend to add (among other theories) a class-of-one equal protection claim, deeming it futile largely because the officers allegedly “had reason to believe” Jacqueline committed the ordinance violation. The Seventh Circuit largely affirmed the dismissal of the original theories (and other issues), but reversed the futility ruling and held plaintiffs should be permitted to amend to pursue class-of-one equal protection claims.

II. Summary of the Opinion

  • Leave to amend: The Seventh Circuit held the proposed class-of-one equal protection amendments were not futile. The district court therefore should have granted leave to amend under Rule 15’s liberal standard (as applied through post-judgment practice).
  • Probable cause not “certain” from the pleading: The court emphasized that, at the “futility” stage, the question is whether it is certain from the face of the proposed complaint that the claim fails—here, not certain for either John (deadly-weapon intimidation) or Jacqueline (citation for “discharge” knowingly permitted).
  • Procedural clarification after appeal: The district court erred by treating itself as entirely divested of jurisdiction post-notice-of-appeal; it could have used Rule 62.1 to issue an indicative ruling rather than declaring the motion moot.
  • Other rulings: The court affirmed dismissal of malicious prosecution, false arrest, failure to intervene, municipal liability against the town, and (in part) denial of leave to add abuse of process (on waiver grounds). It also required the state-law indemnification claim to be dismissed without prejudice as unripe.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Amendment and post-judgment procedure

  • Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana and Barry Aviation Inc. v. Land O'Lakes Municipal Airport Comm'n
    These anchor the Seventh Circuit’s repeated rule: after a first Rule 12(b)(6) dismissal, plaintiffs should ordinarily get at least one chance to amend, and denial is appropriate only when it is certain from the face of the complaint that amendment would be futile. The panel used these cases to frame “futility” as a high bar and to justify rigorous appellate scrutiny.
  • Foman v. Davis and Fed. R. Civ. P. 15(a)(2)
    The court invoked the Supreme Court’s direction that the Rule 15 mandate (“freely give leave”) “is to be heeded,” reinforcing that “futility” must be demonstrated, not assumed.
  • Reilly v. Will County Sheriff's Office
    Provided the modern Seventh Circuit framework: when judgment is entered and a plaintiff timely seeks to set it aside to amend, Rule 15’s liberal standard still governs; and when futility is the basis, the appellate review of legal sufficiency is effectively de novo.
  • BLOM Bank SAL v. Honickman, Carter v. City of Alton, Obriecht v. Raemisch, and Banis- ter v. Davis
    These cases supplied the taxonomy for post-judgment motions: a motion labeled Rule 60(b) but filed within 28 days is often treated as a Rule 59(e) motion for purposes of timing and standards. The panel used them to explain why plaintiffs’ first post-judgment attempt fit within the more forgiving Rule 59(e)/Rule 15 framework (while also noting the higher “extraordinary circumstances” standard applicable to true Rule 60(b)(6) reopening).
  • Motorola Solutions, Inc. v. Hytera Communications Corp., Fed. R. Civ. P. 62.1, and Fed. R. App. P. 12.1
    These controlled the “divestiture” problem. While an appeal generally prevents a district court from granting relief that would alter judgment, Rule 62.1 permits an indicative ruling. The panel relied on Motorola Solutions to criticize the district court’s mistaken view that it could do nothing after the notice of appeal beyond denying the motion as “moot.”

2. Pleading standards

  • Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly
    The panel reiterated plausibility pleading while emphasizing that uncertainty after these decisions is a reason courts should be generous with amendments, especially where amendment is concrete and not speculative.
  • Swanson v. Citibank, N.A. and Erickson v. Pardus
    Used to reaffirm “fair notice” and the idea that plausibility requires a coherent story, not proof.
  • Brown v. Meisner, Zimmerman v. Bornick, and Skinner v. Switzer
    These supported the court’s insistence that a complaint need not “pin” itself to a particular legal theory—important here because plaintiffs were attempting to reframe their case post-dismissal.

3. Class-of-one equal protection doctrine

  • Village of Willowbrook v. Olech and Indiana Land Trust #3082 v. Hammond Redevelopment Comm'n
    These supplied the elements: intentional different treatment of similarly situated persons and no rational basis. The panel treated Olech as settling the legitimacy of the theory.
  • D.B. ex rel. Kurtis B. v. Kopp and Miller v. City of Monona
    D.B. supplied the “no conceivable rational basis” framing (regardless of actual justification), while Miller supported the point that plaintiffs need not plead a specific comparator at the complaint stage.
  • Swanson v. City of Chetek, Lauth v. McCollum, and Geinosky v. City of Chicago
    These provided the “classic” narrative: spite/improper motive leading an official to “come down hard” without a legitimate basis, and illustrated that repeated or suspect enforcement patterns can state a class-of-one claim. The panel used these to validate that plaintiffs’ alleged animus toward “Illinois cops” fits comfortably within class-of-one doctrine.
  • Engquist v. Oregon Dep't of Agriculture
    Mentioned to underscore a boundary: class-of-one claims are barred in the public-employment context. The panel implicitly distinguished this case as law enforcement action against private citizens, not employment discretion.

4. Probable cause, rational basis, and related defenses

  • Williamson v. Curran and Nieves v. Bartlett
    Williamson stands for the idea that probable cause supplies a legitimate reason defeating a class-of-one theory in the arrest setting, while Nieves is flagged as a caution that probable cause is not always a complete defense in retaliatory arrest claims. The panel focused on whether probable cause was certain on the face of the pleading (not whether defendants might later prove it).
  • Neita v. City of Chicago, Michigan v. DeFillippo, District of Columbia v. Wesby, and Illinois v. Gates
    These framed probable cause as a totality-of-circumstances, practical standard that accounts for innocent explanations and asks for a “substantial chance” of criminal activity. Critically, the panel used them to emphasize that, at the motion-to-amend stage, the court is confined to the pleaded allegations and reasonable inferences in plaintiffs’ favor.
  • Wade v. Collier and Vukadinovich v. Bartels
    Defendants argued the equal protection claim was merely a reworded malicious prosecution claim. The panel narrowed those cases: Wade involved summary judgment with probable cause found; Vukadinovich was driven by public-employee speech retaliation fitting poorly into equal protection. Here, by contrast, probable cause was not certain on the pleadings and plaintiffs elected to pursue only equal protection.

5. Municipal liability and indemnification ripeness

  • Gill v. City of Milwau- kee
    Used to reject municipal liability: plaintiffs did not plead facts permitting the inference of a widespread policy/custom.
  • Medical Assurance Co. v. Hellman and Wynn v. City of Indianapolis
    These supported the conclusion that indemnification is not ripe absent a judgment against the officers, requiring dismissal without prejudice.
  • Mestek v. Lac Courte Oreilles Community Health Center
    Supported taking judicial notice of the municipal ordinance text—important because the citation alleged “discharge,” while the ordinance also prohibited aiming/pointing.

B. Legal Reasoning

1. The core holding: “futility” demands certainty from the pleading

The panel treated the district court’s futility determination as a legal-sufficiency question and asked whether the proposed second amended complaint itself made it certain that plaintiffs could not state a class-of-one equal protection claim. The district court’s reasoning—officers “had reason to believe” Jacqueline violated the ordinance—fell short of this standard. “Reason to believe” is not the same as “probable cause established to a certainty from the face of the proposed pleading,” and, more importantly, the pleaded facts did not show probable cause.

2. Class-of-one plausibility: animus plus allegedly baseless enforcement

Plaintiffs bolstered the “intentional different treatment” element by alleging officer statements disparaging “Illinois cops” and referring to Jacqueline’s personal life and finances. The court found those allegations plausibly supported an inference that plaintiffs were targeted differently than others suspected of crimes/ordinance violations where probable cause was lacking.

The panel also rejected defendants’ attempt to reframe the claim as “traditional equal protection,” noting that “law enforcement officer” (and family members) is not a protected class. In effect, the court treated “improper motive” allegations as a feature—not a pleading defect—within class-of-one doctrine.

3. Why probable cause was not certain as to John (intimidation with a deadly weapon)

The proposed complaint left key facts undeveloped (distance, verbal threats, appearance/realism of the airsoft gun, and victims’ subjective fear). Under Indiana law, whether a pellet/BB gun is a “deadly weapon” turns on how it is used and its capability in the factual setting (citing Moore v. State and Merriweather v. State, with examples from Davis v. State and Whitfield v. State). Because those details were absent, the panel could not conclude—at the futility stage—that probable cause for the felony enhancement was established on the face of the pleading.

4. Why probable cause was not certain as to Jacqueline (municipal citation)

The citation alleged Jacqueline “knowingly permitted” John to “discharge” a pellet gun. Yet the pleaded witness accounts concerned pointing/aiming rather than discharge, and the complaint alleged no basis for inferring Jacqueline’s knowing permission. The court treated defendants’ inference chain (targets in backyard + working on gun + reports someone aimed at kids ⇒ discharge with mother’s permission) as conjecture. Because futility must be determined from the pleaded facts (and inferences for plaintiffs), the proposed claim could not be rejected as legally foreclosed.

5. Qualified immunity left for later

Defendants urged qualified immunity as an alternative basis to affirm, but the panel declined to decide it on this limited pleading-based record, noting it would depend on the totality of what officers actually knew. The opinion thus preserves the defense while refusing to convert “potential immunity” into “certain futility.”

6. Procedure: the district court’s post-appeal options under Rule 62.1

The Seventh Circuit’s procedural admonition is practically important: once an appeal is filed, the district court cannot grant relief that alters the judgment, but it can deny, defer, or issue an indicative ruling under Rule 62.1. Here, the district court treated itself as powerless and denied the second motion as “moot,” which the panel characterized as erroneous. The appellate court emphasized that indicative rulings can reduce unnecessary appellate cost and delay by enabling targeted remands.

C. Impact

1. A stronger “gatekeeping” message on futility

Although the opinion relies on existing Seventh Circuit doctrine, it meaningfully operationalizes the “certainty from the face” standard in a common setting: proposed class-of-one equal protection claims where defendants argue probable cause (and thus a rational basis) defeats the claim. The decision signals that district courts should not deny amendment based on probabilistic assessments (“officers had reason to believe”) when the pleaded facts plausibly support the opposite inference.

2. Class-of-one claims remain viable for allegedly retaliatory/bad-faith policing (outside employment)

The court’s treatment of disparaging statements and alleged animus reinforces that class-of-one remains a live vehicle for claims of selective, spite-driven enforcement against private citizens when plaintiffs are not members of a protected class and cannot (or choose not to) proceed under other constitutional theories.

3. Litigation management: Rule 62.1 as a corrective tool

The opinion encourages district judges and litigants to use Rule 62.1 (indicative rulings) rather than defaulting to “divestiture = mootness.” This can affect strategic behavior: parties should frame post-judgment amendment requests with proposed pleadings attached (as plaintiffs did here), and district courts should address whether an indicative ruling is warranted.

4. Practical pleading implications for probable cause disputes

The court’s analysis demonstrates how factual “unknowns” (distance, threats, fear, weapon realism) can prevent a court from finding probable cause as a matter of law at the pleading/amendment stage. For plaintiffs, the case shows that not over-pleading facts that could establish probable cause can matter; for defendants, it suggests that a robust probable cause defense may require factual development.

IV. Complex Concepts Simplified

  • Class-of-one equal protection: A claim that the government treated one person differently than similarly situated others, not because of race/sex/etc., but for an arbitrary reason (often spite), and with no rational basis.
  • Rational basis (in this context): If there is any conceivable legitimate reason for the different treatment, the claim generally fails; plaintiffs must plead facts suggesting the absence of any such reason.
  • Probable cause: Not proof beyond a reasonable doubt; it is whether known facts would make a reasonable officer think there is a substantial chance an offense occurred. At the pleading stage, courts look only at what the complaint alleges.
  • Futility (for leave to amend): Amendment is “futile” only if the new complaint would still be dismissed. In the Seventh Circuit framing applied here, futility requires certainty from the face of the proposed amended complaint.
  • Rule 59(e) vs. Rule 60(b): Both can seek post-judgment relief. A motion filed within 28 days is often treated like Rule 59(e) even if labeled Rule 60(b), affecting timing and standards.
  • Indicative ruling (Rule 62.1): After an appeal is filed, a district court can say it would grant relief (or that the motion raises a substantial issue) if the appellate court remands.
  • Qualified immunity: A defense protecting officers unless their conduct violated clearly established law; often depends on fact-specific context and may be premature on a thin record.
  • Municipal liability (“policy or custom”): A town/city is not automatically liable for officers’ acts; plaintiffs must plead an official policy or a widespread practice causing the violation.
  • Ripeness (indemnification): Some claims (like indemnification) cannot be decided until a triggering event occurs—here, a judgment against the officers.

V. Conclusion

Agee v. Hickenbottom reinforces two linked principles. First, leave to amend after a first dismissal should be denied for “futility” only when failure is certain on the face of the proposed pleading, not because defendants plausibly might later prove probable cause. Second, in class-of-one cases alleging spite-driven policing, probable cause cannot be assumed from conjecture when the pleaded facts do not establish it. Procedurally, the opinion also serves as a reminder that post-appeal jurisdiction is not an all-or-nothing void: Rule 62.1 indicative rulings are available and can streamline litigation.

On remand, plaintiffs may proceed on their proposed second amended complaint solely as to the class-of-one equal protection claims, while other federal theories remain dismissed and the state indemnification claim awaits ripeness.