Elliot-Park v. Manglona, No. 08-16089, 2010 WL 92482 (9th Cir. Jan. 12, 2010)

The Ninth Circuit Court of Appeals held that 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 not entitled to qualified immunity in a case where an automobile accident victim brought a civil rights action against police officers, pursuant to 42 U.S.C. § 1983. The victim, a woman of Korean ethnicity and race, argued that the officers failed to investigate the crime or make a drunk-driving arrest due to her race and the race of the alleged perpetrator, who, like the officers, was of Micronesian race and ethnicity. After the district court denied defendants’ motion to dismiss, defendants appealed, arguing, inter alia, that victims do not have a constitutional right to have police arrest others who have victimized them, and, even if defendants’ conduct violated the victim’s constitutional rights, they were entitled to qualified immunity because such rights were not clearly established at the time of the violation. The court rejected defendants’ first argument, finding that the victim did not base her equal protection claim on a general constitutional right to have an assailant arrested, but instead claimed that the officers’ failure to make an arrest was the result of their racial bias against her and in favor of the alleged perpetrator. As the court noted, although police have broad discretion in deciding whom to arrest, they cannot exercise such discretion in a 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.” The court held that the discriminatory failure to investigate a crime or make an arrest violated equal protection. Upon finding that the right to the non-discriminatory administration of protective services is clearly established, the court also held that qualified immunity did not apply to the failure to investigate a crime or make an arrest based on the victim’s and perpetrator’s race. As such, the court of appeals affirmed the district court’s denial of the officers’ motion to dismiss.