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Osborne v. Grussing

ELR Citation: 37 ELR 20054
Nos. No. 06-2021, (8th Cir., 02/26/2007)

The Eighth Circuit upheld the dismissal of residents' §1983 suit against county officials for selectively enforcing provisions of the county zoning ordinance against them in retaliation of the residents' public criticism of the county's lax enforcement of environmental and zoning regulations against a housing development. The officials charged that the residents violated the zoning ordinance in making certain shoreline improvements on their property. A plaintiff who seeks relief from valid adverse regulatory action on the ground it was unconstitutional retaliation for First Amendment-protected speech must make the same showing that is required to establish a claim of selective prosecution. That is, he must show that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted, and that the government's discriminatory selection of him for prosecution was based upon his exercise of his First Amendment right to free speech. Here, the residents failed to present probative evidence that the county officials have not enforced the zoning ordinance in the same manner against other similarly situated landowners. The lower court, therefore, properly granted summary judgment in favor of the officials.