

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 97-1623

             JESSICA L. HAYDEN, NICOLE C. MERRILL AND
                        COLLEEN M. RHOADS,

                     Plaintiffs, Appellants,

                                v.

                 RICHARD GRAYSON, CHIEF OF POLICE
                  OF THE TOWN OF LISBON, ET AL.

                      Defendants, Appellees.

                                                                                              

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                                    

                                                                                              

                              Before

                      Boudin, Circuit Judge,                                                     

             Godbold* and Cyr, Senior Circuit Judges.                                                              

                                                                                              

Edward M.  Van Dorn,  Jr., with  whom Brad  W. Wilder  and Van  Dorn &amp;                                                                                
Cullenberg were on brief for appellants.               
John T. Alexander, with whom  Michael Lenehan and Ransmeier &amp; Spellman                                                                                
P.C. were on brief for appellees.         

                                                                                              

                         January 22, 1998
                                                                                              

                                        

*Of the Eleventh Circuit, sitting by designation.

          CYR,  Senior Circuit Judge.   Plaintiffs appeal  from a                    CYR,  Senior Circuit Judge.                                                 

district court judgment dismissing  their equal protection claims

against  the Town  of Lisbon,  New  Hampshire, and  its chief  of

police, Richard Grayson,  for failing to investigate  allegations

that their  father abused them  sexually while they  were minors.

We affirm.

                                I                                          I

                            BACKGROUND                                      BACKGROUND                                                

          Although   the   three  sisters   first   lodged  these

allegations  in  1983,  Grayson  took no  action  other  than  to

misrepresent  that  the   district  attorney   had  declined   to

prosecute.   Seven years  later, after attaining  their majority,

plaintiffs discovered Grayson's  misrepresentation and took their

allegations to  the district attorney.  Their father presently is

serving a lengthy  prison sentence, following his  conviction for

aggravated sexual assault.

          Plaintiffs filed  the instant  action against  the Town

and  Grayson, in his individual and official capacities, claiming

inter  alia  that  Grayson  refrained  from  investigating  their                     

allegations either  because plaintiffs were  female, children, or

victims of  domestic sexual  abuse, and  that such selective  law

enforcement  violated  their  individual rights  under  the Equal

Protection Clause.  See U.S. Const. amend XIV; 42 U.S.C.   1983.1                                 

In due  course, the equal  protection count against the  Town was

                                                  

     1It  is undisputed  that Grayson  at all  times acted  under
color of state law.  See 42 U.S.C.   1983.                                  

                                2

dismissed for  failure to  state a claim.   See  Fed. R.  Civ. P.                                                         

12(b)(6).   Following  discovery, defendant  Grayson was  awarded

summary  judgment  on   the  individual-capacity  claim   because

plaintiffs  had  failed  to adduce  sufficient  evidence  that he

intended to  discriminate due to  their membership in any  of the

three classes alleged  in their  complaint.   The district  court

thereafter   denied    plaintiffs'   postjudgment    motion   for

reconsideration.  See Fed. R. Civ. P. 59.                                

                                II                                          II

                            DISCUSSION                                      DISCUSSION                                                

A.   The Equal Protection Claim Against Grayson2          A.   The Equal Protection Claim Against Grayson                                                         

          The  Fourteenth Amendment mandates  that no State "deny

to any person within its jurisdiction the equal protection of the

laws."    U.S. Const.  amend  XIV.   Thus,  although there  is no

constitutional right  to police  protection, State executive  and

law enforcement  officials  may  not  "selectively  deny  .  .  .

protective services to certain  disfavored minorities."  DeShaney                                                                           

v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 197 n.3                                                    

(1989).

          Plaintiffs  rely on City of Cleburne v. Cleburne Living                                                                           

Ctr., 473 U.S. 432 (1985), for their contention that the district              

court should not have applied the equal protection test governing

                                                  

     2After  examining all competent  evidence in the  light most
favorable to the party opposing summary judgment, we are required
to make a de novo determination as to whether a trialworthy issue                           
remained or the moving party was entitled to judgment as a matter
of  law.   See Dominique v.  Weld, 73  F.3d 1156, 1158  (1st Cir.                                           
1996).  

                                3

race   and  gender   classifications,  which   necessitated  that

plaintiffs show  that Grayson  acted with  discriminatory intent.

Instead,  plaintiffs argue, in cases involving less invidious but

nonetheless arbitrary classifications,  such as child victims  of

domestic sexual abuse, Cleburne simply envisions  that plaintiffs                                         

prove  that the defendant's  decision lacked a  "rational basis,"

without regard to any discriminatory intent.3

          Plaintiffs misconstrue  the Cleburne  decision.   There                                                        

the  Supreme  Court  expressly  noted  the  finding  made  by the

district  court  that  the municipality's  principal  reason  for

denying the requested zoning permit had been "that  the residents

of  the  [plaintiff] home  would  be  persons  who  are  mentally

retarded," id.  at 437, a  finding which was never  challenged on                        

appeal.   Thus, it  was only  because  the city's  discriminatory

motive had been  established ab initio  that the Court  addressed                                                

whether the city  need demonstrate a "compelling"  or "important"

state  interest     criteria theretofore  reserved  for race  and

gender discrimination      or need simply  articulate a "rational

basis" for its  decision.  Id. at 440-41.   Accordingly, Cleburne                                                                           

did not hold that no threshold proof of intent to discriminate is

                                                  

     3The  Equal Protection Clause  safeguards not merely against
such  invidious classifications as race, gender and religion, but
any   arbitrary  classification   of   persons  for   unfavorable
governmental treatment.   Cf. Wayte  v. United  States, 470  U.S.                                                                
598, 608  (1985) (noting,  in relation  to selective  prosecution
cases, that "the  decision to prosecute may not  be 'deliberately
based  upon an unjustifiable standard  such as race, religion, or
other arbitrary classification'") (emphasis added; citations  and                                        
internal quotation marks omitted).

                                4

required   in   cases    involving   less   invidious   arbitrary

classifications.4 

          The motivation  underlying a municipal decision  is not

always so apparent  as in Cleburne, of course,  especially if the                                            

challenged  decision does not  expressly single out  a particular

class of persons  for disadvantageous  treatment.   Even in  such

instances,  however,  members   of  the  plaintiff   class  quite

understandably  may  consider  it  no  mere  coincidence  that  a

facially neutral decision causes a disproportionately unfavorable

impact on their particular class.  Nevertheless, even evidence of

a  widely disproportionate impact on the plaintiff class normally

is  not enough, standing alone,  to establish an equal protection

violation.   See, e.g., Personnel  Adm'r of Mass. v.  Feeney, 442                                                                      

U.S.  256, 274-75 (1979) (upholding veteran's preference in civil

service hiring,  although vast  majority of  veterans hired  were

male).   Rather,  plaintiffs must  adduce  competent evidence  of

"purposeful  discrimination."  Washington v. Davis, 426 U.S. 229,                                                            

243-44 (1976);  Soto v. Flores,  103 F.3d 1056, 1067  (1st Cir.),                                        

cert. denied, 118 S. Ct. 71 (1997).                      

          The  burden  is  an  onerous  one:     "'Discriminatory

purpose' . . .  implies that the decisionmaker . .  . selected or
                                                  

     4The other case relied upon  by plaintiffs in this regard is
to the same  effect.  See Navarro  v. Block, 72 F.3d  712, 715-16                                                     
(9th Cir.  1996) (vacating summary  judgment for County  on equal
protection claim because there existed a  trialworthy issue as to
whether County policy  according different treatment  to domestic
and nondomestic violence  had a "rational basis," but  only after                                                                           
the  County had  conceded, arguendo  on  appeal, "that  it had  a                                             
policy  of affording  victims of  domestic  violence less  police
protection").

                                5

reaffirmed a  course of action at least in part 'because of,' not                                                                     

merely 'in  spite of,' its  adverse effects upon  an identifiable

group."   Feeney,  442  U.S. at  279  (emphasis  added;  citation                          

omitted); Soto, 103 F.3d at  1067.  Thus, unless these plaintiffs                        

established the  requisite  discriminatory  intent,  their  equal

protection  claim  cannot  succeed  even  assuming  the   Grayson

decision not  to  investigate lacked  a  "rational basis."    See                                                                           

Village  of Arlington Heights  v. Metropolitan Hous.  Dev. Corp.,                                                                          

429 U.S. 252, 265  (1977); Semple v. City of  Moundsville, 963 F.                                                                   

Supp. 1416, 1433 (N.D. W. Va. 1997).

          Plaintiffs claim  that the  district court  disregarded

competent evidence  that Grayson  harbored "archaic  stereotypes"

regarding female-child sexual abuse in  the home and singled  out

its victims for  unfavorable treatment in determining  whether to

investigate.    The  record does  not  support  their contention,

however.5

          At no time did Grayson indicate to anyone that he would

not  investigate allegations  of child sexual  abuse in  the home
                                                  

     5Plaintiffs adduced no evidence that Grayson's reluctance to
pursue criminal investigations was based on their gender.  On the
contrary, plaintiffs  proffered evidence  that Grayson  failed to
investigate a  1990 allegation  that a  12-year-old boy had  been
sexually molested by his grandfather.   Nor did plaintiffs adduce
statistical  or   other  evidence  relating  to  whether  females
comprise  a majority  of (1) sexual  abuse victims;  (2) domestic
sexual abuse victims; (3)  sexually abused minors; or (4)  minors
sexually  abused  in  the  home.    Furthermore,  Officer  Boutin
attested that though Grayson often did  not pursue allegations of
crimes  committed against children if a nonoffending adult family
member urged him  not to do so,  this "policy" did not  depend on
whether the  victims were  male or  female.   See  infra note  8.                                                                  
Given  its serious deficiencies,  the gender classification claim
quite properly was rejected by the district court.

                                6

because he  thought the  victims were  undeserving of  equal law-

enforcement  protection.   Instead,  he  explained  to  a  fellow

officer  that he  had  refrained  from investigating  plaintiffs'

allegations at their  mother's request.6  Another  police officer

confirmed that it  was Grayson's policy not to  intervene where a

family  member (e.g., nonabusive parent or spouse) requested that                              

there be no investigation.

          Plaintiffs essentially  claim, nonetheless,  that their

evidence  supported,   respectively,  rational   inferences  that

Grayson intended  to treat  all domestic  crime differently  from

nondomestic crime, all  crimes against children differently  from

crimes  against adults, and  all sexual abuse  crimes differently

from nonsexual  crimes.7  Once  again the evidence does  not bear

out their claim.

          Plaintiffs' proffer disclosed  that the nonintervention

policy  attributed to  Grayson may  have  been much  broader than

plaintiffs allow, in that it applied not merely to domestic child

sexual abuse, but to other crimes in circumstances where  general

concerns  for family integrity  and family privacy predominated.8
                                                  

     6Specifically, the  mother told  Grayson that  "she did  not
want the girls  involved in a prosecution."   Plaintiffs have not
contested this evidence. 

     7The  district  court  reserved  the  question  whether  the
evidence   relating  to   Grayson's  own   statements  would   be
admissible.   See Fed.  R. Evid.  801(d)(2) (admission  by party-                           
opponent).

     8In  the  portion of  Officer Boutin's  deposition proffered
below, the inquiry  is ambiguously phrased by plaintiffs in terms
of how Grayson acted "in these kinds of cases" compared to "other
[] more  conventional kinds  of crimes,"  without particularizing

                                7

Thus, their  proffer may be  seen to belie their  contention that

Grayson  sought to discriminate  against them because  of, rather                                                                   

than in  spite of, their status as  victims of child sexual abuse                           

in  the  home.    See  Feeney,  422  U.S.  at  279.     Far  from                                       

demonstrating  general condonation of  child sexual abuse  in the

home,  therefore,  the  proffer  simply  supported  a  reasonable

inference that Grayson would investigate virtually any allegation                                                                           

of crime absent an appropriate request from a nonoffending spouse                         

to refrain  from intervention in circumstances  where legitimate,

competing   family  interests   were   thought  to   predominate.

Accordingly,  although  the evidence  may well  have demonstrated

that  the Grayson nonintervention  policy had  a disproportionate

adverse impact  in cases  involving allegations  relating to  the

various victim classes in which plaintiffs claimed membership, it

did not demonstrate that Grayson harbored a discriminatory animus

toward those  victim classes.   Id. at  274 (upholding  veteran's                                             

                                                  

any   characteristic   of   these   alleged  crimes   which   was                              
unconventional  in their view  (e.g., domestic, sexual  abuse, or                                              
crimes  against children or  female victims), or  which triggered
the  Grayson nonintervention  policy.    Perhaps  for  this  very
reason,  then,  Officer  Boutin  ambiguously  responded  that the
police "took  into [account]  what the mother  had to say  or the                                                                       
victim's  rights  were, I  mean,  emotions  were,"  and  "if  the                
family's  wishes were  that  it didn't  get  prosecuted, then  it                
didn't."       Although   Boutin   allowed   that   the   Grayson
nonintervention policy would apply to crimes against children, at
no time  did he state that it applied exclusively to such crimes.
These   unaddressed  ambiguities   plainly  invited   a  rational
inference  that   the  challenged   nonintervention  policy   was
predicated  on a  generalized concern  for  family integrity  and
privacy, which would  be activated, for example, at  the instance
of a  nonoffending spouse  even though  the allegations may  have
related  to nonsexual criminal activity directed against an adult
family member.

                                8

preference in civil service hiring,  even though vast majority of

veteran hirees were male).

          Similarly, plaintiffs presented  evidence that Grayson,

on  two other  occasions, failed  to  investigate allegations  of

child sexual abuse in  the home.  Once again, however,  there was

no  evidence that  Grayson  was  motivated  by  a  discriminatory

animus, as distinguished  from a neutral  nonintervention policy.

Moreover,  Grayson proffered  undisputed  evidence  that  he  had

investigated  at  least  two other  domestic  child  sexual abuse

cases, as  well as  eight nondomestic  child sexual  abuse cases.

Cf. Willhauck  v. Halpin, 953  F.2d 689, 712 (1st  Cir. 1991) (in                                  

analogous  context of equal protection claim founded on selective

prosecution, "[i]t must  be shown that others  similarly situated

have not been  prosecuted and that the decision  to prosecute has

been motivated by an impermissible reason").

          Finally, in  an ironic twist, the  discriminatory focus

essential to plaintiffs' equal protection claims was irredeemably

blurred  by their proffer that the Grayson nonintervention policy

extended well beyond domestic child  sexual abuse cases (e.g., to                                                                       

DWI  and vandalism),  and may  even  have been  due to  Grayson's

dishonesty, chronic lassitude,  alcohol abuse, or desire  to wage

personal  vendettas against  particular  individuals rather  than

groups.   See  New  Burnham  Prairie Homes,  Inc.  v. Village  of                                                                           

Burnham,  910  F.2d  1474,  1481  (7th Cir.  1990)  (noting  that                 

"[d]iscrimination based merely on individual,  rather than group,

reasons   will  not  suffice"   to  establish   equal  protection

                                9

violation).  That is to  say, although their scattershot approach

might enable a rational inference  that Grayson was a poor police

chief,  it  cannot  sustain a  nonspeculative  inference  that he

failed to investigate  these allegations because plaintiffs  were                                                          

children who  had been sexually abused, or because plaintiffs had                                                            

been sexually abused  in the home.   See Soto,  103 F.3d at  1072                                                       

("Whether this  deplorable scenario  is  actionable under  Puerto

Rican law we leave, as we must, to others.").9

B.   The Equal Protection Claim Against the Municipality          B.   The Equal Protection Claim Against the Municipality                                                                  

          The district court dismissed the equal protection count

against the Town for failure to state a claim.  See Fed. R.  Civ.                                                             

P.   12(b)(6).    Eighteen  months  later,  plaintiffs  moved  to

reinstate and amend the claim, see Fed. R. Civ. P. 15,  to allege                                            

that the  Town should be  held liable either because  Grayson was

the  municipal official  who  instituted  the  official  "policy"
                                                  

     9The district court  denied plaintiffs' postjudgment  motion
for reconsideration, see Fed. R.  Civ. P. 59, because their "new"                                  
evidence of discriminatory  intent had been available  at summary
judgment.  Plaintiffs  respond that Grayson's motion  for summary
judgment failed to  put them on adequate notice  that he disputed
their allegations of  discriminatory intent.  We  review the Rule
59 decision only for manifest abuse  of discretion. See Vasapolli                                                                           
v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994).                    
     The  Grayson motion  could  not  have  been  more  explicit:
"Defendant  Grayson denies any intent to discriminate against the
plaintiffs  on any  basis."    Further,  "[t]he  plaintiffs  have
produced  no evidence suggesting that defendant Grayson wanted to
harm them because  they were women, or because  they were minors,
or because they were alleged  victims of sexual assaults."  True,
plaintiffs' default may  flow from their misreading  of Cleburne.                                                                          
See supra pp.  3-4.  Nevertheless, "[Rule 59] does  not provide a                   
vehicle for a party to  undo its own procedural failures, and  it
certainly does  not allow  a party to  introduce new  evidence or
advance arguments that  could and should  have been presented  to
the district  court prior  to the judgment."   Aybar  v. Crispin-                                                                           
Reyes, 118 F.3d 10, 16 (1st Cir. 1997).                

                                10

against providing  law-enforcement protection to child victims of

sexual  abuse in  the home,  see Monell  v. Department  of Social                                                                           

Servs. of  New York, 436 U.S. 658,  694-95 (1978), or because the                             

Town  failed to train  Grayson adequately  to deal  with domestic

child  sexual abuse,  which constituted  "much" or "most"  of the

crime in the community.

          The district court  denied the motion to amend,  on the

ground that  its earlier  Rule 12(b)(6)  dismissal amounted  to a

decision "on the merits" and, accordingly, the law of the case.10

Even assuming the  rationale for the instant decision  were to be

found infirm, see  Griggs v. Hinds Junior College,  563 F.2d 179,                                                           

180 (5th Cir. 1977) (noting that Rule 15 amendment is "especially

appropriate  [] .  . .  when the  trial court  has dismissed  the

complaint for  failure to  state a claim");  see also  Dussouy v.                                                                        

Gulf Coast Inv. Corp., 660 F.2d 594,  598 n.2 (5th Cir. 1981), we                               

would affirm on the ground that the proposed amendment would have

been futile.   See  Levy v.  FDIC, 7  F.3d 1054,  1056 (1st  Cir.                                           

1993).

          Rule 15 permits  the trial court to deny  leave to file

an   amended  complaint  which  would  be  subject  to  immediate

dismissal under Rule 12(b)(6) for failure to state a viable claim

for relief.  See Foman v. Davis, 371 U.S. 178, 182  (1962); Mills                                                                           

v. State  of Me.,  118 F.3d  37, 55  (1st Cir. 1997).   The  Town                          

cannot be held vicariously liable in an action under section 1983

                                                  

     10We review  the Rule 15  decision for abuse  of discretion.
RTC v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).                     

                                11

unless  its official  policy  or custom  was  the "moving  force"

behind  the  alleged  violation of  constitutional  rights.   See                                                                           

Monell,  436 U.S. at 694.11   Normally, therefore, a municipality                

cannot be  held  liable unless  its agent  actually violated  the

victim's  constitutional rights.    See City  of  Los Angeles  v.                                                                       

Heller, 475 U.S. 796,  799 (1986) ("If  a person has suffered  no                

constitutional injury  at the  hands of  [any] individual  police

officer,  the fact that  the departmental regulations  might have

authorized  [unconstitutional   action]  is   quite  beside   the

point.").

          Plaintiffs  simply allege that the Town is liable under

section  1983 because Grayson established an official Town policy

or custom of selective law  enforcement which in turn caused them

injury.12   Since their  predicate claim  against Grayson  fails,

however, see supra  Section II.A, so  must their contention  that                            

any such discriminatory Town policy or custom existed.

          Alternatively, of course, the Town could be held liable

under  section  1983  were  it  to  appear  that  the  injury  to

plaintiffs was  caused by  the Town's  failure to  train Grayson.                                                                  

The   liability  criteria  for  "failure  to  train"  claims  are

exceptionally stringent, however.   See City of Canton v. Harris,                                                                          

489 U.S. 378, 388-89, 391 (1989).
                                                  

     11Municipal  customs,   for     1983   purposes,  are  "such
practices of state  officials ... [as are] so  permanent and well
settled  as to constitute  a 'custom or usage'  with the force of
law."  Id. at 691.                    

     12We assume  arguendo that Grayson,  as police chief,  was a                                    
Town policymaker with respect to law enforcement.

                                12

          Only if  the failure  to train  "amounts to  deliberate                                                                           

indifference to the  rights of persons with whom  the police come                      

into contact," and is "closely related" to, or "the moving force"

behind,  the constitutional  injury, can  the  claim against  the

municipality   prevail.    Id.   (emphasis  added).     For  this                                        

"deliberate  or  conscious  choice"  to  have  been  established,

plaintiffs needed to present evidence that (1) the Town knew when

it  hired  Grayson  that  the risk  of  future  equal  protection

violations arising and  recurring in domestic child  sexual abuse

cases  was "so  obvious" that  its failure  to train  him therein

likely  would result in continued violations;  or (2) even though                                                           

the initial risk  of recurring constitutional violations  was not

"so   obvious,"  the  Town  subsequently  learned  of  a  serious

recurrence, yet took no action to provide the necessary training.

Id. at 390 &amp; n.10; see also  id. at 396 (O'Connor, J., concurring                                          

in part).13
                                                  

     13We  have considerable  doubt whether  the failure-to-train               13
claim survived either  the dismissal of the    1983 claim against
Grayson,  individually, see  supra Section  II.A,  or the  Monell                                                                           
policy-based claims against the Town and Grayson, in his official
capacity,  supra.     If   Grayson  never   violated  plaintiffs'                          
constitutional  rights in the first instance,  it is difficult to
see  how   a  failure  to   train  him  could  have   caused  any                                                                      
"constitutional injury" to  plaintiffs.  Compare Evans  v. Avery,                                                                          
100 F.3d  1033, 1040  (1st Cir. 1997)  (affirming dismissal  of  
1983 substantive-due-process  claim against City where its agents
were  found  not  to  have  violated  plaintiff's  constitutional
rights) (citing Heller, 475 U.S. at 799), with Simmons v. City of                                                                                                                                    
Philadelphia, 947  F.2d 1042, 1063  (3d Cir. 1991)  (holding that                      
city  policymakers,  who  owed an  independent  duty  to pretrial
detainees, were  individually liable  under    1983 for  prisoner
suicide, even though  factfinder determined that the  turnkey had
not violated prisoner's constitutional  rights); de Feliciano  v.                                                                       
de Jesus, 873 F.2d 447, 450 (1st Cir. 1989) ("There may well be a                  
basis for  an agency's  liability other than  the conduct  of the

                                13

          To begin with, plaintiffs merely allege that "Lisbon is                                                                           

a high crime  area in northern Grafton County [and]  that much or

most  of the crime committed  in northern Grafton County involves                                                                           

domestic violence and sexual abuse."  (Emphasis added.)  There is

no allegation that these circumstances obtained in 1975, however,

when Grayson became the police  chief.  No less importantly, even

assuming similar  circumstances prevailed  in 1975,  the need  to

train Grayson was not "so obvious, [nor] the [alleged] inadequacy

[of  the  training] so  likely  to  result  in the  violation  of

constitutional rights, that the [Town]  can reasonably be said to

have been deliberately  indifferent to the need  [for training]."

City of Canton, 489 U.S. at 390.                        

          It bears  reminding that  the gravamen  of the  amended

complaint  is not  that Grayson  did  not adequately  investigate

these allegations, but that he purposely chose not to investigate

them  at all.    It  is reasonable  to  observe, therefore,  that

whatever relevant training the Town  failed to give Grayson would                           

not  have  entailed   specialized  law-enforcement  investigatory

skills, but  simply  the commonplace  understanding  that  police

officers  may not deny law-enforcement protection based simply on

                                                  

individual defendants that the jury exonerated.").  See generally                                                                           
Barbara Kritchevsky, Making  Sense of State of  Mind: Determining                                                                           
Liability in Section 1983 Municipal Liability Litigation, 60 Geo.                                                                  
Wash.  L. Rev. 417,  445-73 (1992) (summarizing  conflicting case
law).   Nevertheless,  assuming arguendo  that  dismissal of  the                                                  
individual-capacity claim  against Grayson would  not necessitate
dismissal of  the failure-to-train  claim against  the Town,  the
proffered amendment would  still be futile  due to the  stringent
definition of  "deliberate  indifference" prescribed  in City  of                                                                           
Canton.                

                                14

their  arbitrary  classifications  of  various  groups  of  crime

victims.

          Thus,  the  amended  complaint  asserted no  sufficient

basis  for  concluding that  Town policymakers  reasonably should

have anticipated that a  new police chief would need  specialized

instruction in so  rudimentary a law-enforcement  responsibility,

nor  that  the  Town had  been  put  on notice  that  such equal-

protection violations  were routine occurrences in domestic child

sexual abuse cases, either locally or elsewhere.  Rather,  unlike

many other  law-enforcement responsibilities,  cf., e.g.,  id. at                                                                        

390 &amp;  n.10 (noting  that it might  be considered  "obvious" that

armed police  officers assigned  to arrest  fleeing felons  would

need instruction  regarding constitutional limitations  on proper

use  of deadly  force), the  Equal Protection Clause  bar against

arbitrary law enforcement  is neither obscure nor  problematic of

application.14
                                                  

     14City of Canton  requires not only  deliberate indifference               14              
but that the alleged  failure to train be shown to  have been the
"closely  related" cause  of the  constitutional injury.   Id. at                                                                        
390-91.  As Grayson was  a policymaking official, with discretion
in law  enforcement matters,  plaintiffs were  required to  prove
that he  acted with "purposeful  discrimination."  Yet  there has                                         
been  no  showing that  whatever  training  was  not provided  to
Grayson could have  thwarted any such  purposeful discrimination.
Whereas  law enforcement training  might inform an  officer about
the proper methods  to be used in mediating  and diffusing crimes
of domestic violence, for example, it does not necessarily follow
that an  officer intent  on discriminating  against a  particular                                 
class  of  crime victims  would  be  deterred  from doing  so  by
"enlightenment" training, especially  given the contraindications
implicit  in  plaintiffs'  other  evidence  that  the  challenged
decisionmaking by Grayson resulted from alcohol abuse, lassitude,
or personal animosity  toward individuals.  See Angel  v. City of                                                                           
Fairfield, 793  F.2d 737, 739  (5th Cir. 1986) ("Here,  Angel has                   
failed to allege how the failure  to train resulted in the denial

                                15

          Finally,  plaintiffs have not alleged that the Town was

ever placed  on notice  that Grayson, after  he was  appointed in                                                     

1975,  routinely violated the equal protection rights of citizens

by engaging  in  selective and  arbitrary law  enforcement.   See                                                                           

Swain v. Spinney,  117 F.3d 1, 11 (1st Cir. 1997) (lack of notice                          

of  prior  constitutional   violations  defeats  failure-to-train

claim).   Accordingly, we conclude that the proposed amendment to

the complaint would have been futile.15

          Needless   to   say,  our   conclusion   represents  no

endorsement of the  conduct with which Grayson is  charged in the

complaint.  It would be dereliction of duty for a police chief to

turn  over  to private  parties  the decision  whether  a serious

offense should  be pursued and it  is hard to imagine  what might

justify telling a  complainant falsely that the  prosecutor would

have no interest in the  complaint.  Nevertheless, not every form

of misconduct is  a constitutional violation    most  wrongs find

their remedy under state law    and our present holding is simply

that the allegations made in the complaint do not properly assert

a violation of the Equal Protection Clause.

          Affirmed.                    Affirmed.                            

                                                  

of his right to equal protection of the laws.").

     15As no "federal question" claims remain, we also affirm the
district  court's  discretionary  decision  not to  exercise  its
supplemental jurisdiction over  plaintiffs' state-law claims  for
negligence  and  intentional  infliction  of  emotional  distress
against the Town and Grayson.  See 28 U.S.C.   1367(c)(3).                                            

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