Ae Ja ELLIOT-PARK, Plaintiff-Appellee, v. Jarrod MANGLONA; Michael Langdon; Anthony Macaranas; Department of Public Safety, Defendants-Appellants, and Norbert Duenas Babauta, Defendant, 592 F.3d 1003

Opinion by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge CALLAHAN. KOZINSKI, Chief Judge: We consider whether law enforcement officers who are accused of failing to investigate a crime or make an arrest due to the race of the victim and that of the perpetrator are entitled to qualified immunity. Facts We recite the facts as Ae Ja Park Elliott alleges them in her complaint. Elliott, who is racially and ethnically Korean, was driving south along 16 Highway in Papago, Saipan.

Norbert Dueñas Babauta, who is racially and ethnically Micronesian, was driving north along the same highway when he sped through a turn, crossed onto oncoming traffic and crashed into Elliott’s car. Officer Manglona noticed the accident and approached. When Elliott asked him to call her husband, he shoved her inside her car and told her to shut up and calm down. Manglona then began conducting interviews of the witnesses, drivers and passengers. Officers Macaranas and Langdon arrived shortly thereafter and spoke to both drivers. The officers are all racially and ethnically Micronesian.

The three officers had cause to believe Babauta had been driving under the influence of alcohol: He was teetering and slurring his words, he reeked of alcohol and had bloodshot eyes, his truck bed was littered with empty beer cans and he told Manglona that he had “blacked out” while driving. Despite these obvious signs of intoxication, the officers didn’t administer field sobriety or blood alcohol tests, or otherwise investigate whether Babauta had been driving drunk. Nor did the officers charge him with a DUI or any other crime or infraction.

Manglona also falsely stated in his accident report that Babauta “had not been drinking.” Dr. Thomas Austin, who examined Elliott and Babauta at the hospital, called DPS to complain after he learned that Babauta hadn’t been charged with a DUI. After this complaint, and perhaps some others, the Department of Public Safety (DPS) initiated an investigation, but the three officers conspired with others to obstruct the investigation and prevent prosecution of Babauta.

Elliott claims the officers failed to investigate the crime or arrest Babauta because of racial animus against her as a Korean and in favor of Babauta as a Micronesian. On a motion to dismiss, the district court found that Elliott sufficiently alleged a 42 U.S.C. § 1983 equal protection claim and a 42 U.S.C. § 1985 conspiracy and obstruction of justice claim against the officers. The district court concluded the officers weren’t entitled to qualified immunity at the motion to dismiss stage. The officers bring this interlocutory appeal.

Analysis Unlike prosecutors, who enjoy absolute immunity, police officers are entitled only to qualified immunity in

section 1983 cases. See Malley v. Briggs, 475 U.S. 335, 341-43, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In a qualified immunity appeal, we normally look first to whether a constitutional violation was alleged and then to whether the defendants have qualified immunity as a matter of law. See Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009). We review the district court’s decision de novo. New-ell v. Sauser, 79 F.3d 115, 117 (9th Cir.1996). 1. According to Elliott, the three police officers refused to investigate the incident because Babauta is Micronesian and Elliott is Korean.

Elliott also claims that Officer Macaranas fully investigated another drunk driving accident that occurred the same evening where the victim was Micronesian but the driver wasn’t. The officers don’t dispute that Elliott has pled facts from which a trier of fact could infer racial discrimination. Instead, the officers argue that individuals don’t have a constitutional right to have police arrest others who have victimized them. But Elliott’s equal protection claim isn’t based on some general constitutional right to have an assailant arrested.

Rather, she argues Babauta was given a pass by the police because of the officers’ alleged racial bias not only in favor of Babauta as a Micronesian, but also against her as a Korean. And while the officers’ discretion in deciding whom to arrest is certainly broad, it cannot be exercised in a racially discriminatory fashion. For example, a police officer can’t investigate and arrest blacks but not whites, or Asians but not Hispanics. Police can’t discriminate on the basis of the victim’s race, either. We recognized as much in Estate of Macias v.

Ihde, where we held that there is no right to state protection against madmen or criminals, but “[t]here is a constitutional right ... to have police services administered in a nondiscriminatory manner — a right that is violated when a state actor denies such protection to disfavored persons.” 219 F.3d 1018, 1028 (9th Cir.2000); see also DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197 n. 3, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (“The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.”).

The officers concede that the Constitution protects against discriminatory withdrawal of police protection, but they claim that Elliott was not denied this right because they provided her with some police services: They called an ambulance and questioned bystanders. According to the officers, only a complete withdrawal of police protective services violates equal protection. But diminished police services, like the seat at the back of the bus, don’t satisfy the government’s obligation to provide services on a non-discriminatory basis. See Navarro v.

Block, 72 F.3d 712, 715-17 (9th Cir.1995) (alleged policy to treat domestic violence 911 calls less urgently could form the basis for an equal protection claim). Certainly the government couldn’t constitutionally adopt a policy to spend $20,000 investigating each murder of a white person but only $1,000 investigating each murder of a person of color. Likewise, it doesn’t matter that Elliott received some protection; what matters is that she would allegedly have received more if she weren’t Korean and Babauta weren’t Micronesian.

The officers also suggest that the equal protection clause only protects against selective denial of protective services, and that investigation and arrest aren’t protective services unless there is a continuing danger to the victim. But the officers’ understanding of protective services is too limited. If police refuse to investigate or arrest people who commit crimes against a particular ethnic group, it’s safe to assume that crimes against that group will rise.

Would-be criminals will act with a greater impunity if they believe they have a get out of jail free card if they commit crimes against the disfavored group. Babauta may well have been emboldened to drive drunk with empty beer cans rolling around in the back of his truck because he believed that he would suffer no ill consequences should he cause an accident. In any event, whether investigation and arrest are protective services is immaterial.

While the Supreme Court may have written in DeShaney that the government couldn’t “selectively deny its protective services” to disfavored minorities, 489 U.S. at 197 n. 3,109 S.Ct. 998, that certainly doesn’t imply that the government can selectively deny its non-protective services to disfavored minorities. The government may not racially discriminate in the administration of any of its services. See Palmer v. Thompson, 403 U.S. 217, 219-223, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971) (government-funded pools cannot be operated on a racially discriminatory basis); Hawkins v.

Town of Shaw, 437 F.2d 1286, 1288 (5th Cir.1971) (municipal services cannot be provided on a racially discriminatory basis). The dissent agrees that the discriminatory denial of investigative services may violate equal protection. Dissent at 1015. Nevertheless, our colleague questions whether Elliott has an equal protection claim based on the officers’ failure to arrest Babauta because arrest decisions are entitled to deference and because Elliott probably suffered little harm. See id. at 1011.

But even the dissent recognizes that police officers aren’t entitled to deference for their decision if it is based on racial animus. See id. at 1010-11. And the fact that Elliott may not have been harmed much speaks more to whether she can recover anything beyond nominal damages than to whether she has an equal protection claim. See also Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135-36 (9th Cir.2003) (discriminatory failure to investigate and discipline student harassment complaints violates equal protection).

Certainly, a plaintiff complaining of heart attack symptoms has a claim against a government hospital that turns him away because of his race, even if the symptoms turn out to be caused by heartburn. The officers’ alleged discriminatory failure to arrest, as well as investigate, therefore violated equal protection. 2. Law enforcement officials are entitled to qualified immunity even where their conduct violated a constitutional right unless that right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

The dispositive inquiry is whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. Thus, our “task is to determine whether the preexisting law provided the defendants with ‘fair warning’ that their conduct was unlawful.” Flores, 324 F.3d at 1136-37 (quoting Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). The right to non-discriminatory administration of protective services is clearly established. See p. 1006-07 supra.

Nevertheless, the officers argue that it wasn’t clearly established that investigation and arrest are protective services. But the very purpose of

section 1983 was to provide a federal right of action against states that refused to enforce their laws when the victim was black. See Briscoe v. LaHue, 460 U.S. 325, 338, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (“It is clear from the legislative debates that, in the view of the Act’s sponsors, the victims of Klan outrages were deprived of ‘equal protection of the laws’ if the perpetrators systematically went unpunished.”); Monroe v.

Pape, 365 U.S. 167, 174-180, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (“It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced .... ”); Smith v.

Ross, 482 F.2d 33, 37 (6th Cir.1973) (“Particularly in view of the circumstances surrounding the passage of § 1983, including the concern for protecting Negroes from the widespread non-enforcement of state laws, the remedies provided in § 1983 are most appropriately extended to persons who, because of the unpopularity of their life-styles or the pervasiveness of racist animus in the community, are not protected .... ” (citation omitted)). It hardly passes the straight-face test to argue at this point in our history that police could reasonably believe they could treat individuals disparately based on their race.

The officers argue that Elliott’s equal protection rights weren’t clearly established because she can’t find a case similar to hers- — -like a sobriety check and arrest case or a traffic case — where the court found an equal protection violation. But there doesn’t need to be a prior case with materially similar facts in order for a right to be clearly established. Flores, 324 F.3d at 1136-37 (“In order to find that the law was clearly established, however, we need not find a prior case with identical, or even ‘materially similar,’ facts.” (quoting Hope, 536 U.S. at 741, 122 S.Ct. 2508)).

This is especially true in equal protection cases because the nondiscrimination principle is so clear. “The constitutional right to be free from such invidious discrimination is so well established and so essential to the preservation of our constitutional order that all public officials must be charged with knowledge of it.” Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir.1980). We have recognized the absurdity of requiring equal protection plaintiffs to find a case with materially similar facts. In Flores v.

Morgan Hill Unified School District, we held that public school administrators who failed to respond to gay students’ harassment complaints were not entitled to qualified immunity. 324 F.3d at 1136-38. The administrators argued that “no Supreme Court or Ninth Circuit case had yet established a student’s right under the Equal Protection Clause ... to be protected by school administrators from peer sexual orientation harassment.” Id. at 1136.

But we reasoned that it was “not necessary to find a case applying the [equal protection] principle to a particular category of state officials, such as school administrators,” because “[a]s early as 1990, we established the underlying proposition that such conduct violates constitutional rights: state employees who treat individuals differently on the basis of their sexual orientation violate the constitutional guarantee of equal protection.” Id. at 1137. Thus, “[t]he defendants were officers of the state who had fair warning that they could not accord homosexual and bisexual students less protection.” Id.

Contrary to the dissent’s claim, see dissent at 1013, Flores isn’t limited to the unique characteristics of the school environment. Indeed, Flores found that school administrators were on notice that they had to treat gay students the same as straight students based on a case holding that state employees in general can’t irrationally discriminate on the basis of sexual orientation. 324 F.3d at 1137. The same holds true here. It’s been long established that state employees can’t treat individuals differently on the basis of their race.

The three officers thus had a more than fair warning that failure to investigate and arrest Babauta because of race violated equal protection. The officers admit their appeal of the district court’s refusal to dismiss Elliott’s

section 1985 claim, which alleges that the defendants conspired to deny her equal protection, is tied to the success of their appeal of the

section 1983 claim. The district court did not err in failing to dismiss the

section 1983 and

section 1985 claims. AFFIRMED. The district court caption refers to Elliott as "Elliot-Park,” and our caption follows the district court. Elliott explains on appeal that her correct name is "Ae Ja Park Elliott,” which is the name we use in our opinion. Elliott may request that the district court docket be corrected by motion on remand.