                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

AE JA ELLIOT-PARK,                    
                Plaintiff-Appellee,
               v.
                                           No. 08-16089
JARROD MANGLONA; MICHAEL
LANGDON; ANTHONY MACARANAS;
DEPARTMENT OF PUBLIC SAFETY,
                                             D.C. No.
                                           1:07-cv-00021
           Defendants-Appellants,            OPINION
              and
    NORBERT DUENAS BABAUTA,
                        Defendant.
                                      
       Appeal from the United States District Court
      for the District of the Northern Mariana Islands
         Alex R. Munson, District Judge, Presiding

                 Argued and Submitted
             May 12, 2009—Honolulu, Hawaii

                  Filed January 12, 2010

   Before: Alex Kozinski, Chief Judge, Jay S. Bybee and
           Consuelo M. Callahan, Circuit Judges.

             Opinion by Chief Judge Kozinski;
 Partial Concurrence and Partial Dissent by Judge Callahan




                            887
890                    ELLIOT-PARK v. MANGLONA
                               COUNSEL

Braddock Jon Huesman, Assistant Attorney General, CNMI
Office of the Attorney General, Saipan, MP, for the
defendants-appellants.

George L. Hasselback and Joseph E. Horey, O’Connor Ber-
man Dotts & Banes, Saipan, MP, for the plaintiff-appellee.


                                OPINION

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. Nor-
bert Duenas Babauta, who is racially and ethnically Microne-
sian, 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 wit-
nesses, drivers and passengers. Officers Macaranas and Lang-

   *The district court caption refers to Elliott as “Elliot-Park,” and our cap-
tion 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.
                   ELLIOT-PARK v. MANGLONA                  891
don 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 com-
plaint, 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 ani-
mus 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

   [1] Unlike prosecutors, who enjoy absolute immunity,
police officers are entitled only to qualified immunity in sec-
tion 1983 cases. See Malley v. Briggs, 475 U.S. 335, 341-43
892                ELLIOT-PARK v. MANGLONA
(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, 129 S.Ct. 808, 813 (2009).
We review the district court’s decision de novo. Newell 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 dis-
crimination.

   [2] Instead, the officers argue that individuals don’t have a
constitutional right to have police arrest others who have vic-
timized 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 vic-
tim’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 nondiscrim-
inatory 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 (1989)
(“The State may not, of course, selectively deny its protective
                   ELLIOT-PARK v. MANGLONA                  893
services to certain disfavored minorities without violating the
Equal Protection Clause.”).

   [3] 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 ambu-
lance and questioned bystanders. According to the officers,
only a complete withdrawal of police protective services vio-
lates 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 offi-
cers’ 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 disfa-
vored 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.
894                ELLIOT-PARK v. MANGLONA
   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, that certainly doesn’t imply that the govern-
ment can selectively deny its non-protective services to disfa-
vored 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 (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 pro-
vided on a racially discriminatory basis).

   [4] The dissent agrees that the discriminatory denial of
investigative services may violate equal protection. Dissent at
909. 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 defer-
ence and because Elliott probably suffered little harm. See id.
at 901. 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 899-900. 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 stu-
dent harassment complaints violates equal protection). Cer-
tainly, 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 fail-
ure to arrest, as well as investigate, therefore violated equal
protection.

  [5] 2. Law enforcement officials are entitled to qualified
immunity even where their conduct violated a constitutional
                   ELLIOT-PARK v. MANGLONA                    895
right unless that right was clearly established at the time of
the violation. Saucier v. Katz, 533 U.S. 194, 202 (2001). The
dispositive inquiry is whether “it would be clear to a reason-
able 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 (2002)).

   [6] The right to non-discriminatory administration of pro-
tective services is clearly established. See p. 892 supra. Nev-
ertheless, 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 (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 (1961) (“It is abundantly clear that one reason
the legislation was passed was to afford a federal right in fed-
eral 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 com-
munity, are not protected . . . .” (citation omitted)). It hardly
passes the straight-face test to argue at this point in our his-
tory that police could reasonably believe they could treat indi-
viduals disparately based on their race.

  [7] The officers argue that Elliott’s equal protection rights
weren’t clearly established because she can’t find a case simi-
896                ELLIOT-PARK v. MANGLONA
lar 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 simi-
lar 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 iden-
tical, or even ‘materially similar,’ facts.” (quoting Hope, 536
U.S. at 741)). This is especially true in equal protection cases
because the non-discrimination principle is so clear. “The
constitutional right to be free from such invidious discrimina-
tion 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 pro-
tection 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 stu-
dents’ 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 estab-
lished a student’s right under the Equal Protection Clause . . .
to be protected by school administrators from peer sexual ori-
entation 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 estab-
lished 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.

  [8] Contrary to the dissent’s claim, see dissent at 904, Flo-
res isn’t limited to the unique characteristics of the school
                   ELLIOT-PARK v. MANGLONA                   897
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 individ-
uals 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.

                              ***

   [9] 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.



CALLAHAN, Circuit Judge, concurring and dissenting:

   I agree with the first part of the majority opinion: the gov-
ernment may not racially discriminate in the administration of
its services. See opinion at 894. I further agree that the right
to the non-discriminatory administration of protective services
is clearly established. See opinion at 894-895. Nonetheless, I
write separately and dissent because I am concerned that the
broad language in the majority’s opinion fails to recognize the
deference courts have given, and should give, police depart-
ments in determining when and how to investigate crimes.
This underlying theme informs the two specific issues I
address. First, I am leery of any suggestion that a person’s
right to equal protection extends to requiring an arrest of a
third person; and second, I do not think that a reasonable offi-
898                ELLIOT-PARK v. MANGLONA
cer in defendants’ position was on notice that refusing to give
Babauta a sobriety test might constitute a violation of Elliot’s
right to equal protection of the law. Of course, with the publi-
cation of this opinion Ninth Circuit law on this issue will be
established.

   However, I conclude that existing law did not provide the
defendants with clear notice that their actions concerning
Babauta violated Elliot’s constitutional right to equal protec-
tion of the law. This distinction is exactly the purpose of the
second prong of the test set forth in Saucier v. Katz, 533 U.S.
194 (2002): “whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Id. at 202. Accordingly, I would hold that although defendants
may have violated Elliot’s right to equal protection of the law,
they are entitled to qualified immunity because it would not
have been clear to a reasonable officer that he or she was
doing so.

                                I

   The majority’s opinion fails to distinguish between investi-
gations and arrests and thus fails to appreciate that the discre-
tionary determination to arrest someone is particularly
unsuited to judicial review. The unique nature of the prosecu-
torial function, which includes the decision to arrest an indi-
vidual, was recognized by the Supreme Court over thirty
years ago in Imbler v. Pachtman, 424 U.S. 409 (1976). In
Imbler, the Supreme Court affirmed the Ninth Circuit’s hold-
ing that a prosecuting attorney who acted within the scope of
his duties in initiating and pursuing a criminal prosecution is
entitled to qualified immunity from suit under 42 U.S.C.
§ 1983 “for alleged deprivations of the defendant’s constitu-
tional rights.” Id. at 410. In Wayte v. United States, 470 U.S.
598, 607 (1985), the Court reiterated that “the Government
retains ‘broad discretion’ as to whom to prosecute” and that
this “broad discretion rests largely on the recognition that the
                  ELLIOT-PARK v. MANGLONA                      899
decision to prosecute is particularly ill-suited to judicial
review.”

   The prosecutor’s discretion, however, is “subject to consti-
tutional restraints.” United States v. Armstrong, 517 U.S. 456,
464 (1996) (quoting United States v. Batchelder, 442 U.S.
114, 125 (1979)). In Armstrong, the Court explained:

    One of these constraints, imposed by the equal pro-
    tection component of the Due Process Clause of the
    Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497,
    500 . . . (1954), is that the decision whether to prose-
    cute may not be based on “an unjustifiable standard
    such as race, religion, or other arbitrary classifica-
    tion,” Oyler v. Boles, 368 U.S. 448, . . . (1962). A
    defendant may demonstrate that the administration
    of a criminal law is “directed so exclusively against
    a particular class of persons . . . with a mind so
    unequal and oppressive” that the system of prosecu-
    tion amounts to “a practical denial” of equal protec-
    tion of the law. Yick Wo v. Hopkins, 118 U.S. 356,
    373 . . . (1886).

    In order to dispel the presumption that a prosecutor
    has not violated equal protection, a criminal defen-
    dant must present “clear evidence to the contrary.”
    [United States v.] Chemical Foundation, . . . [272
    U.S. 1] . . . 14-15 [(1926)] . . . . We explained in
    Wayte why courts are “properly hesitant to examine
    the decision whether to prosecute.” 470 U.S., at 608,
    . . . . Judicial deference to the decisions of these
    executive officers rests in part on an assessment of
    the relative competence of prosecutors and courts.
    “Such factors as the strength of the case, the prose-
    cution’s general deterrence value, the Government’s
    enforcement priorities, and the case’s relationship to
    the Government’s overall enforcement plan are not
    readily susceptible to the kind of analysis the courts
900                    ELLIOT-PARK v. MANGLONA
      are competent to undertake.” Id. at 607, . . . . It also
      stems from a concern not to unnecessarily impair the
      performance of a core executive constitutional func-
      tion. “Examining the basis of a prosecution delays
      the criminal proceeding, threatens to chill law
      enforcement by subjecting the prosecutor’s motives
      and decisionmaking to outside inquiry, and may
      undermine prosecutorial effectiveness by revealing
      the Government’s enforcement policy.” Ibid.

517 U.S. at 464-65.1 The Court went on to reaffirm that “[t]o
establish a discriminatory effect in a race case, the claimant
must show that similarly situated individuals of a different
race were not prosecuted.” Id. at 465.

   These cases, indeed almost all cases concerning selective
prosecution, are brought by individuals who are challenging
their prosecutions by the government. Here, Elliot’s assertion
is not that she was selectively prosecuted, but that her consti-
  1
   Chief Judge Kozinski has acknowledged the deference owed to the
decision whether or not to prosecute. In his dissent from the denial of
rehearing en banc in Untied States v. Mussari, 168 F.3d 1141, 1143 (9th
Cir. 1999), he wrote:
      The majority’s complaint is that they did not give Mussari a pass
      for violating federal law. But whom to prosecute and whom to
      leave alone is the heart and soul of prosecutorial discretion, a
      decision committed to the Executive Branch and “particularly ill-
      suited to judicial review.” Wayte v. United States, 470 U.S. 598,
      607, . . . (1985).
He further commented:
      Reexamining prosecutorial decisions “entails systemic costs,”
      such as delaying justice, chilling law enforcement, and “under-
      min[ing] prosecutorial effectiveness by revealing the Govern-
      ment’s enforcement policy.” Id. By injecting themselves into a
      process in which judges have no legitimate role to play, the
      majority has compromised the neutrality of the court and taken
      us into the treacherous waters of politics.
Id. at 1143.
                      ELLIOT-PARK v. MANGLONA                          901
tutional right to equal protection was violated by the officers’
failure to investigate and arrest a third party, Babauta. As the
decision to arrest and prosecute an individual is entitled to
substantial deference from the courts, it follows that the deci-
sion not to arrest and prosecute a person is entitled to at least
the same degree of deference. This does not suggest that it
would be impossible for a plaintiff to allege and show that her
right to equal protection was violated by an officer’s failure
to arrest a third party, but only to clarify that the decision to
arrest — as opposed to the officer’s duty to investigate — is
part of the prosecutorial function and is therefore entitled to
greater deference.

   In addition, as a practical matter, it is not clear how Elliot
was harmed by the defendants’ failure to arrest Babauta. Cer-
tainly the failure to give him a sobriety test or to otherwise
investigate his competency to drive may well have collateral
consequences for Elliot. But had the defendants investigated
Babauta’s competency to drive, it is doubtful whether
Babauta’s arrest would have had any impact on Elliot.
Accordingly, because the failure to arrest Babauta had little
impact on Elliot and because the determination of whether to
arrest an individual is entitled to enhanced deference, I ques-
tion whether the failure to arrest Babauta constitutes a viola-
tion of Elliot’s right to equal protection of the law.

   In sum, I agree with the essence of the majority’s opinion
— that Elliot has a constitutional right not to have police ser-
vices denied because of race — but would not hold that police
services necessarily include the decision to arrest a third party.2
   2
     Furthermore, I do not read the opinion as suggesting that courts should
not continue to give considerable deference to the decisions of police
departments on how they conduct investigations and perform their func-
tions. While we hold that the “government may not racially discriminate
in the administration of any of its services” (opinion at 894), the burden
remains on a plaintiff to show that an alleged denial of services was due
to racial animus and not some other reason.
902                ELLIOT-PARK v. MANGLONA
                                II

   The majority’s failure to distinguish between the police
officers’ duty to investigate and the decision to arrest a third
party is symptomatic of its failure to consider the meaning of
“protective services” when applying the second prong of the
Saucier test. The second prong of the Saucier test requires an
inquiry into “whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202. A careful review of the cases cited
by the majority reveals that despite the language cited by the
majority, they fail to place a reasonable officer in defendants’
position on notice that his actions related to Babauta consti-
tuted a violation of Elliot’s constitutional right to equal pro-
tection of the law.

   The majority address the second prong of the Saucier test
in broad strokes. It starts with the premise that the “right to
non-discriminatory administration of protective services is
clearly established” (opinion at 895), comments that “there
doesn’t need to be a prior case with materially similar facts
in order for a right to be clearly established,” (opinion at 896),
asserts that “[w]e have recognized the absurdity of requiring
equal protection plaintiffs to find a case with materially simi-
lar facts,” (opinion at 896), and concludes that the “officers
thus had a more than fair warning that failure to investigate
and arrest Babauta because of race violated equal protection.”
Opinion at 897.

   The simplicity of this approach is of little comfort or guid-
ance to the police officers whose qualified immunity is depen-
dant on their understanding of case law. As indicated, I agree
with the majority that the Supreme Court has held that the
government may not “selectively deny its protective services
to certain disfavored minorities without violating the Equal
Protection Clause.” DeShaney v. Winnebago County Dep’t of
Soc. Servs., 489 U.S. 189, 197 n.3 (1989) (emphasis added).
I also agree that this quote from DeShaney does not imply that
                      ELLIOT-PARK v. MANGLONA                          903
the “government can selectively deny its non-protective ser-
vices to disfavored minorities.” See opinion at 894. But this
leaves unanswered the question of whether the defendants
were on notice that their treatment of a third party, Babauta,
constituted a violation of Elliot’s right to equal protection of
the law.

   First, the defendants’ actions concerning Babauta are not
clearly within a commonsense meaning of “police protec-
tion.” Here, the officers responded to the accident, inquired as
to Elliot’s injuries, called for an ambulance, and saw that she
was safely transported to the hospital. Also, there was no pos-
sible additional harm to Elliot from Babauta following the
accident as the police ensured that he was transported to the
hospital and he was subsequently released to a friend or rela-
tive who drove him home. What the defendants failed to do,
and what I agree may constitute a violation of Elliot’s right
to equal protection, was to investigate Babauta’s alleged intoxi-
cation.3 The failure to investigate an accident may fit within
the definition of “protective services,” but such a conclusion
is by no means compelled.

   Second, an examination of the cases cited by the majority
fails to reveal any clear notice, or “fair warning,” that an offi-
cer’s treatment of one person will constitute the denial of
“protective services” to another person. The opinion relies
heavily on Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d
1130 (9th Cir. 2003). Flores, however, is both factually and
legally distinguishable and thus did not give the officers rea-
sonable notice. It is factually distinct because it concerned the
alleged failure of high school administrators to protect stu-
  3
    Because this appeal arises from a motion to dismiss on the basis of
qualified immunity, we accept Elliot’s allegation of racial discrimination
as true. On remand, she will have the burden of showing that the officers’
failure to investigate was racially motivated, and the officers will have an
opportunity to present evidence that their actions were not racially moti-
vated.
904                ELLIOT-PARK v. MANGLONA
dents from “student-to-student anti-homosexual harassment.”
Id. at 1132. School administrators have a unique relationship
with the students. See Morse v. Frederick, 551 U.S. 393, 406-
08 (2007) (noting the “special characteristics of the school
environment”). Indeed, the court in Flores recognized that
“the defendants believed that, under District policies, harass-
ment of any kind would not be tolerated.” 324 F.3d at 1135.
Police officers, however, do not have a relationship to the
public or even to accident victims that is similar to a high
school administrators relationship to a student. Moreover,
Elliot does not allege a failure to “protect.”

   Flores is legally distinct because in that case we held that
prior court cases had placed the defendants on notice that fail-
ure to enforce the school district’s policies concerning sexual
orientation violated the constitution. Id. at 1137 (citing High
Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563, 573-74 (9th Cir. 1990) (establishing that “state employ-
ees who treat individuals differently on the basis of their sex-
ual orientation violate the constitutional guarantee of equal
protection”). Flores indicated that a “right” need not be
spelled out in a statute or federal regulation, and that there
need not be a prior case that “defined the scope of a school
administrator’s duty.” Id. Nonetheless, our task remained “to
determine whether the preexisting law provided the defen-
dants with ‘fair warning’ that their conduct was unlawful.” Id.
We concluded that case law alone could render the law
“clearly established,” and in that existing case law had done
so. Id.

   Thus, Flores offers a standard for determining the existence
of a clearly established right, but it does not answer the ques-
tion of what case law, regulation, or statute placed the defen-
dants in this case on notice that failing to give Babauta a
sobriety test would violate Elliot’s constitutional right to
equal protection of the law.

  The other cases cited by the majority do not fill this gap.
The opinion cites Estate of Macias, 219 F.3d 1018, 1028 (9th
                   ELLIOT-PARK v. MANGLONA                   905
Cir. 2000), which concerned a tragic situation where the
police allegedly provided a woman inferior police protection
from her estranged husband who then murdered her. On
appeal, the issue before us was whether “the policy or custom
caused the constitutional deprivation.” Id. at 1027. We noted
that “the district court assumed, without actually deciding that
Mrs. Macias was deprived of her constitutional right to the
equal protection of the laws.” Id. Thus, our decision in
Macias offers very little guidance on what type of police
action or inaction violates a person’s constitutional right to
equal protection of the law.

   Moreover, in Macias we went on to determine that the dis-
trict court had erred in concluding that the denial of police
protection caused Mrs. Macias’ death. In doing so the court
did state, as noted by the majority, that “[t]here is a constitu-
tional right, however, to have police services administered in
a nondiscriminatory manner — a right that is violated when
a state actor denies such protection to disfavored persons.” Id.
at 1028. As the failure to protect Mrs. Macias from her hus-
band was determined not to have been the cause of Mrs.
Macias’s death, the quoted language appears to be dicta. Fur-
thermore, Macias clearly concerned protection, whereas the
officers’ actions at issue in this case had no impact on Elliot’s
“protection.” The case cannot reasonably be read as giving the
defendants a “fair warning” that the failure to test Babauta for
alcohol would violate Elliot’s right to equal protection of the
law.

   In addition, the reference to DeShaney, 489 F.3d 189, in the
majority opinion in this case provides little guidance. In
DeShaney, the Supreme Court basically held that a state had
no constitutional duty to protect a child from his father after
receiving reports of possible abuse. Id. at 191. This is clearly
not analogous to the situation presented in this case. More-
over, the majority only cites to the language in a footnote:
“[t]he State may not, of course, selectively deny its protective
services to certain disfavored minorities without violating the
906                   ELLIOT-PARK v. MANGLONA
Equal Protection Clause.” Opinion at 892-893 (quoting
DeShaney, 489 U.S. at 197 n.3) (emphasis added). This raises,
but does not answer, the question of what constitutes a “pro-
tective service.” DeShaney does not address this question
because, as the Supreme Court noted, “no such argument has
been made here.” Id.

   The majority also cites Monroe v. Pape, 365 U.S. 167
(1961), but does not suggest how Monroe would have put the
officers in this case on notice that their actions violated
Elliot’s constitutional right to equal protection.4

   In addition, the majority cites the Sixth Circuit’s opinion in
Smith v. Ross, 482 F.2d 33 (6th Cir. 1973). In Ross, a deputy
sheriff was alleged to have tried to “persuade” an inter-racial
band to leave the building it had rented. The district court dis-
missed the complaint, the band members appealed, and the
Sixth Circuit affirmed. Id. at 36-37. The majority’s opinion in
our case includes the following quote from Ross: “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 per-
sons who, because of the unpopularity of their life style or the
pervasiveness of racist animus in the community, are not pro-
tected . . .” Opinion at 895 (quoting Ross, 482 F.3d at 37).

   The usefulness of the quoted language is weakened when
it is considered in the context of the Ross opinion. The Sixth
Circuit goes on to state:

      We agree with appellants that a law enforcement
  4
    Monroe held that allegedly illegal actions of city police officers
respecting unreasonable search and seizure constituted actions taken
“under color of” a state statute for the purposes of 42 U.S.C. § 1983, but
that the municipal corporation was not a person within the meaning of the
statute.
                   ELLIOT-PARK v. MANGLONA                   907
    officer can be liable under § 1983 when by his inac-
    tion he fails to perform a statutorily imposed duty to
    enforce the laws equally and fairly, and thereby
    denies equal protection to persons legitimately
    exercising rights guaranteed them under state or
    federal law. Acts of omission are actionable in this
    context to the same extent as are acts of commission.

Id. at 36-37 (emphasis added). Thus, even assuming that the
police in the Northern Mariana Islands may be held to be on
notice of a 1973 Sixth Circuit opinion, it is doubtful that they
would have gleaned much guidance from the opinion. It is
difficult to conclude that the defendants’ failure to test
Babauta for alcohol denied “equal protection to [Elliot for]
legitimately exercising rights guaranteed [her] under state or
federal law.” Id. at 36-37.

   Finally, the majority cites Flores v. Pierce, 617 F.2d 1386
(9th Cir. 1980), which concerned allegations that city officials
had discriminated against the Mexican-American plaintiffs on
the basis of race or national origin in delaying the issuance of
a liquor license. The majority opinion quotes the following
sentence from Pierce: “[t]he 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.”
Opinion at 896 (quoting Flores, 617 F.2d at 1392). “Such
invidious discrimination,” however, is defined in Flores in the
preceding sentence, which reads: “No official can in good
faith impose discriminatory burdens on a person or group
by reason of a racial or ethnic animus against them.” Id.
(emphasis added). In the present case, it is difficult to con-
ceive of the defendants’ failure to test Babauta for alcohol as
imposing a discriminatory burden on Elliot.

   The allegations in Benigni v. City of Hemet, 879 F.2d 473
(9th Cir. 1989), are arguably closer to the facts in this case,
but our opinion there does not provide the type of fair warn-
908                   ELLIOT-PARK v. MANGLONA
ing necessary under Saucier’s second prong. In Benigni, the
plaintiff, an owner of a bar, filed an action under § 1983
against city police officers alleging that they harassed his cus-
tomers with the intent of forcing him to sell his business. Id.
at 475. The case went to trial, where the jury’s verdict was
mostly in favor of plaintiff, and the city and certain police
officers appealed. Id.

   We recognized that Benigni could maintain an equal pro-
tection claim.5 Id. at 477. However, we held that “we need not
rule directly on the equal protection claims since the general
verdict in this case is sustainable under the standards enunci-
ated in Traver v. Meshriy, 627 F.2d 934, 938-39 (9th Cir.
1980).” Id. at 478. We concluded that “Benigni’s due process
theory was clearly supported by evidence and is legally cor-
rect,” and noted that “the due process and equal protection
theories in this case are practically identical, both being
grounded on the allegation of arbitrary law enforcement activ-
ity for the purpose of harassment and interference.” Id.
(emphasis added). Benigni informs us that police action
against third parties (Benigni’s customers) may amount to a
denial of equal protection to the plaintiff (Benigni) when
motivated by race discrimination. But the opinion also
requires a “purpose of harassment and interference” which
Elliot has not alleged and probably cannot allege.

   In sum, although I agree that case law holding that it is
unconstitutional for officers to discriminate based on race
now extends to an alleged failure to provide police services,
including the investigation of an automobile accident, this
position was not so clearly established as to defeat defen-
dants’ claim of qualified immunity. Indeed, all the language
  5
    We noted that “[e]lements of an intentional discrimination claim are
present in this case because the evidence tends to show the discriminatory
effect of greater law enforcement activity at the Silver Fox than at other
bars, and the discriminatory intent of singling out Benigni based on his
Italian ancestry.” 879 F.2d at 477.
                        ELLIOT-PARK v. MANGLONA                             909
in the relevant cases concerning “protective services,” “per-
sons legitimately exercising rights,” “discriminatory burdens”
and even “purpose of harassment and interference” would be
unnecessary if any action by a police officer allegedly taken
based on racial animus inherently violated someone’s right to
equal protection of the law. More is necessary to ensure that
the officer knows or should know that his inaction with
respect to one person violates another person’s constitutional
right to equal protection of the law.

                                      III

   A unique feature of the second prong of the Saucier test is
precisely that it applies only when a plaintiff’s constitutional
right has been violated.6 Accordingly, our focus must shift
from the plaintiff’s rights and injury, to what the officer knew,
or should have known, concerning the plaintiff’s constitu-
tional rights.

   In Saucier, the Supreme Court explained: “if a violation
could be made out on a favorable view of the parties’ submis-
sions, the next sequential step is to ask whether the right was
clearly established,” and commented that “it is vital to note”
that this inquiry “must be undertaken in light of the specific
context of the case, not as a broad general proposition.” 533
U.S. at 201. Indeed, the Court proceeded to explain that in the
case before it, it was not enough that the law “clearly estab-
lishes the general proposition that use of force is contrary to
  6
    The Supreme Court has held that in some instances a court may find
qualified immunity without making a constitutional ruling under the first
prong of the Saucier test. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009)
(“There are cases in which it is plain that a constitutional right is not
clearly established but far from obvious whether in fact there is such a
right.”). The Court, however, reiterated that a determination of notice
under the second prong of the Saucier test is premised on the assumption
of a constitutional violation. Id. at 816 (noting that “if the plaintiff has sat-
isfied this first step, the court must decide whether the right at issue was
‘clearly established’ at the time of defendant’s alleged misconduct”).
910                 ELLIOT-PARK v. MANGLONA
the Fourth Amendment if it is excessive under objective stan-
dards of reasonableness.” Id. at 201-02. Instead, it reiterated
that:

      the right the official is alleged to have violated must
      have been “clearly established” in a more particular-
      ized, and hence more relevant, sense: The contours
      of the right must be sufficiently clear that a reason-
      able official would understand that what he is doing
      violates that right . . . . The relevant, dispositive
      inquiry in determining whether a right is clearly
      established is whether it would be clear to a reason-
      able officer that his conduct was unlawful in the situ-
      ation he confronted.

Id. at 202 (internal citation omitted).

   This is the inquiry that the majority opinion fails to under-
take “in light of the specific context of the case, not as a broad
general proposition.” Id. at 201. The majority leaps from the
general proposition that police services cannot be denied on
the basis of race to the fact-specific conclusion that the offi-
cers should have known that a failure to give Babauta a sobri-
ety test and arrest him violated Elliot’s constitutional rights.
As noted in the prior section, there is no case law that even
arguably assists the majority in this flight of reason. There is
no suggestion that the officers had any heightened responsi-
bility to Elliot or that there was a state created danger. See
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir.
2006) (holding that an officer was not entitled to qualified
immunity because a jury could find that he created a false
sense of security). Rather, the majority concludes that because
everyone knows that police services may not be denied
because of race, the officers were on notice.

   But in Saucier, the Court held that despite clearly estab-
lished law that the use of excessive force was unconstitu-
tional, this was not sufficient to place the defendant officer on
                      ELLIOT-PARK v. MANGLONA                         911
notice that his shoving a person into the van constituted
excessive force. Indeed, the Supreme Court concluded that
despite the clearly established law on the use of excessive
force, under the specific circumstances in that case, the defen-
dant was entitled to qualified immunity.7

   Furthermore, we have held that the plaintiff has the burden
of establishing the second prong of Saucier. Kennedy, 439
F.3d at 1065. Thus, the failure of any of the cases cited by
Elliot, or by the majority, to address a similar factual situation
— i.e., that an officer may deny one person equal protection
of law by failing to investigate a third person — supports the
district court’s grant of qualified immunity. Of course, as
indicated by our determination that defendants did violate
Elliot’s right to equal protection of law, a particularly pre-
scient officer might have foreseen that his inaction would vio-
late Elliot’s right. But this is not the standard established by
the Supreme Court in Saucier and reaffirmed in Pearson. Nei-
ther Elliot nor the majority cites any authority that fairly
placed the officers on notice that cases denying qualified
immunity for the denial of “protective services” allegedly on
racial grounds would apply to all police services, including a
determination of whether to investigate a third person.
Accordingly, I would affirm the district court’s finding of
qualified immunity.




   7
     The Court commented that “[a] reasonable officer in petitioner’s posi-
tion could have believed that hurrying respondent away from the scene,
where the Vice President was speaking and respondent had just
approached the fence designed to separate the public from the speakers,
was within the bounds of appropriate police responses.” Saucier, 533 U.S.
at 208.
