                                                                             FILED
                                                                 United States Court of Appeals
                                    PUBLISH                              Tenth Circuit

                   UNITED STATES COURT OF APPEALS                        July 8, 2019

                                                                    Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT                          Clerk of Court
                     _________________________________

A.N., by and through her next friend,
KATHERINE PONDER; KATHERINE
PONDER,

      Plaintiffs - Appellees,

v.                                                     No. 18-2112

KEITH DARON SYLING, individually
and in his former, official capacity as
Chief of Police, for the Alamogordo
Police Department; ROGER
SCHOOLCRAFT, individually and in his
official capacity as Detective Lieutenant
and Deputy Chief of Police for the
Alamogordo Police Department; DAVID
KUNIHIRO, individually and in his
official capacity as Lieutenant for the
Alamogordo Police Department;
AUDRA SMITH, individually and in her
official capacity as Executive Assistant
for the Alamogordo Police Department,

      Defendants - Appellants.
                    _________________________________

                  Appeal from the United States District Court
                        for the District of New Mexico
                     (D.C. No. 2:18-CV-00173-JAP-GJF)
                    _________________________________
Submitted on the briefs:*

James P. Sullivan and Frank D. Weissbarth, Brennan & Sullivan, P.A., Santa Fe,
New Mexico, for Defendants-Appellants.

Rebekah A. Scott Courvoisier, Courvoisier Law, LLC, Alamogordo, New Mexico,
for Plaintiffs-Appellees.
                       _________________________________

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.
                 _________________________________

BRISCOE, Circuit Judge.
                   _________________________________

      Defendants Keith Daron Syling, Roger Schoolcraft, David Kunihiro and Audra

Smith (collectively “Defendants”) are officers or employees of the Alamogordo

Police Department (APD) who were allegedly responsible for the public release of

information regarding the arrest of a juvenile, A.N, in violation of New Mexico law.

A.N. and her mother, Katherine Ponder, (collectively “Plaintiffs”) brought this action

against Defendants and others, asserting claims under federal and state law.

Defendants appeal the district court’s denial of their motion to dismiss Plaintiffs’

equal protection claim under 42 U.S.C. § 1983 based on qualified immunity.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.

                                           2
                                  BACKGROUND1

      In 2017, A.N., then sixteen, was arrested by an APD detective pursuant to an

arrest warrant. The warrant was issued by a judge in the New Mexico Children’s

Court (Children’s Court) based on an affidavit in which an APD detective alleged

A.N. had committed a delinquent act, that is, an act “that would be designated as a crime

under the law if committed by an adult,” N.M. Stat. Ann. § 32A-2-3(A). Because A.N.

was less than eighteen years old, she was considered a juvenile and was detained at a

juvenile detention facility after her arrest. On the same day A.N. was arrested, two

adults were arrested and charged with the same crime referenced in A.N.’s arrest

warrant.

      Four days after A.N.’s arrest, Defendant Kunihiro prepared a news release

(“News Release”) regarding the arrest of the two adults and A.N. which included the

charges brought and the crime allegedly committed. The News Release identified

A.N. by name, reported the crime she had been charged with, and stated that she was

sixteen and being held at a juvenile detention facility. At Defendant Smith’s

suggestion, the News Release included A.N.’s booking photo. Defendants Syling and

Schoolcraft, APD’s Chief and Deputy Chief, respectively, reportedly approved the

News Release before it was released to the public.



      1
         The facts included in this section are drawn from Plaintiffs’ corrected
complaint and are accepted as true for purposes of reviewing the district court’s
decision on Defendants’ motion to dismiss. See Wilson v. Montano, 715 F.3d 847, 852
(10th Cir. 2013).

                                            3
      The APD, acting through Defendant Smith or another as-of-yet unidentified

APD employee, provided the News Release to media and news organizations and

posted it on APD’s public Facebook page. By the next day, the News Release,

including the information related to A.N. and her arrest, had been picked up and

published by various media organizations, including TV stations in Albuquerque and

El Paso. The APD’s Facebook post of the News Release had also been viewed and

shared hundreds of times and generated more than 100 comments.

      Plaintiffs allege, and Defendants have not disputed, that New Mexico’s

Children’s Code and other state rules and regulations provide that arrest and

delinquency records relating to a child are confidential and that information from

these records may not be disclosed directly or indirectly to the public. See, e.g.,

N.M. Stat. Ann. § 32A-2-32(A), (C) (providing as part of New Mexico’s

Delinquency Act that all records pertaining to a child in the possession of the state

department responsible for delinquency proceedings “are confidential and shall not

be disclosed directly or indirectly to the public” by state officials or others, including

law enforcement officials); id. § 32A-2-32.1 (prohibiting state agencies,

municipalities and others from “disclos[ing] on a public access web site maintained

by it any information concerning . . . an arrest or detention of a child [or]

delinquency proceedings for a child”). Because a child is defined for these purposes

as a person who is less than eighteen years old, see N.M. Stat. Ann. § 32A-1-4(A), it

is further undisputed that A.N., as a sixteen-year-old, was entitled to the benefit of



                                            4
these state law protections and that Defendants violated one or more of these state

statutes and rules in publicly disclosing her confidential information.2

      A.N.’s mother learned of the News Release shortly after APD posted it on

Facebook. She called to complain about the release of information about A.N. and

was told by Defendant Smith that APD was allowed to release this information

because A.N. at sixteen was “the age of consent,” and because she had been

physically arrested. Aplt. App. Vol. I at 57. But APD removed all references to

A.N. from the Facebook post on the following day, after receiving correspondence

from an attorney representing A.N. and her mother requesting the immediate removal

of this information. Nonetheless, information regarding A.N. and her arrest remains

publicly available today on internet sites maintained by media and other

organizations that received the News Release from APD.

      Plaintiffs brought this action against APD, the Defendants in their individual

and official capacities, and others, alleging that the disclosure of A.N.’s name and the



      2
          After failing to dispute that their alleged actions violated New Mexico’s
juvenile confidentiality laws in the district court or in their opening brief in this
court, Defendants argued for the first time in their reply brief that one of the
confidentiality rules cited by Plaintiffs, N.M. Ct. R. 10-166 (regarding public
inspection and sealing of Children’s Court records), might not apply. It is not clear
to us how or if this argument, even if it has merit, would negate Defendants’ as-yet
undisputed violation of the other New Mexico statutes and rules cited by Plaintiffs.
But we need not resolve these questions, because Defendants forfeited this argument
for purposes of appellate review by not raising it below or in their opening brief.
See, e.g., Parker Excavating, Inc. v. LaFarge W., Inc., 863 F.3d 1213, 1224 (10th Cir.
2017) (stating theory not raised before district court is forfeited); Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (same as to arguments not raised in
opening brief on appeal).
                                           5
information concerning her arrest violated the Children’s Code and other New

Mexico rules and regulations, violated their right to procedural and substantive due

process and to equal protection under the United States and New Mexico

Constitutions, and constituted various torts under New Mexico law. In support of

their federal equal protection claim, Plaintiffs alleged Defendants violated Plaintiffs’

right to equal protection under the law because they and the APD, by official policy

or actions, treated A.N. and other juvenile arrestees sixteen or over differently from

juvenile arrestees under sixteen with respect to publicly disclosing information about

their arrest and delinquency, notwithstanding New Mexico’s laws prohibiting the

disclosure of this information for all children under the age of eighteen. Plaintiffs

sought damages and injunctive relief on this claim.

      APD, Defendants, and the other defendants moved to dismiss a number of

Plaintiffs’ claims on different grounds. As relevant to this appeal, Defendants moved

to dismiss Plaintiffs’ § 1983 equal protection claim against them in their individual

capacities under Fed. R. Civ. P. 12(b)(6) based on qualified immunity. Although the

district court granted Defendants’ motion in most respects, it denied the motion as to

Plaintiffs’ federal equal protection claim, concluding Defendants were not entitled to

qualified immunity on it. Defendants timely appealed the district court’s denial of

their motion to dismiss this claim.3




      3
         The APD and other defendants named in Plaintiffs’ complaint were
originally parties to this appeal but were dismissed on Plaintiffs’ unopposed motion.
                                           6
                                     DISCUSSION

      A. Appellate Jurisdiction

      “Although an order denying a motion to dismiss based on qualified immunity

is not a final judgment, this court has jurisdiction under 28 U.S.C. § 1291 to review

the order to the extent that it turns on an issue of law.” Wilson, 715 F.3d at 852

(internal quotation marks omitted). In response to our order directing the parties to

address the jurisdictional issue, Defendants asserted their appeal turns on an issue of

law because the facts alleged by Plaintiffs are taken as true for purposes of their

Rule 12(b)(6) motion and the issue on appeal—whether the district court erred in

finding the law clearly established that their alleged actions violated Plaintiffs’ equal

protection rights—is a pure question of law. We agree, see Garrett v. Stratman,

254 F.3d 946, 951 (10th Cir. 2001) (“[W]hether a given constitutional or statutory

right was clearly established at the time the defendant acted presents a purely legal

question.” (internal quotation marks omitted)), and therefore conclude we have

jurisdiction to review the district court’s denial of qualified immunity on Plaintiffs’

equal protection claim.

      B. Standard of Review

      “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).

Accordingly, when a defendant raises a qualified immunity defense in a

                                            7
Rule 12(b)(6) motion, “the court must dismiss the action unless the plaintiff shows

that (1) the defendant violated a statutory or constitutional right, and (2) the right was

clearly established at the time of the violation.” Mayfield v. Bethards,

826 F.3d 1252, 1255 (10th Cir. 2016). We review “the district court’s denial of a

motion to dismiss based on qualified immunity de novo, accepting as true all well-

pleaded factual allegations in the complaint and viewing the allegations in the light

most favorable to the non-moving party.” Wilson, 715 F.3d at 852.

       C. Analysis

       Though the issue on appeal is whether Plaintiffs’ constitutional right to equal

protection was clearly established at the time in question, a brief discussion of the

contours of this right and Plaintiffs’ equal protection claim will assist in that

assessment.

              1. The right to equal protection

       The Equal Protection Clause of the Fourteenth Amendment provides that no

State shall “deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1. It is “essentially a direction that all persons

similarly situated should be treated alike,” A.M. ex rel. F.M. v. Holmes,

830 F.3d 1123, 1166 (10th Cir. 2016) (internal quotation marks omitted), and is

intended “to secure every person within the State’s jurisdiction against intentional

and arbitrary discrimination, whether occasioned by express terms of a statute or by

its improper execution through duly constituted agents,” Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (per curiam) (internal quotation marks omitted). An

                                            8
equal protection claim may be asserted with respect to a group or a “class of one.”

Holmes, 830 F.3d at 1166. A plaintiff who “alleges that she has been intentionally

treated differently from others similarly situated and that there is no rational basis for

the difference in treatment” states a claim for violation of her right to equal

protection. Olech, 528 U.S. at 564.

       The district court held Plaintiffs sufficiently stated an equal protection claim

because they alleged Defendants, intentionally and without a rational basis,

differentiated between similarly situated juvenile arrestees, A.N. and other sixteen-

and seventeen-year-old arrestees and arrestees younger than sixteen, in deciding

whether to publicly disclose information regarding their arrest and delinquency even

though New Mexico law prohibits the disclosure of such information for all children

under the age of eighteen.4 Defendants did not dispute that this alleged conduct

violated Plaintiffs’ constitutional right to equal protection in their motion to dismiss

or challenge the district court’s ruling on this issue in its opening brief.5 Instead,

Defendants contend only that it was not clearly established when they publicly


       4
         Plaintiffs allege Defendants’ actions violated the equal protection rights of
both A.N. and her mother. The district court did not specifically address this
contention in its decision and Defendants did not challenge it on appeal.
Accordingly, we assume without deciding that Defendants’ actions violated both
Plaintiffs’ constitutional rights to equal protection.
       5
          Defendants suggest in their reply brief for the first time that that no violation
occurred because it was not irrational for them to treat an older juvenile like A.N.
differently from younger juveniles in deciding whether to release her confidential
information. But Defendants forfeited appellate review of this contention by failing
to raise it before the district court or in their opening brief to this court. See Parker
Excavating, 863 F.3d at 1224; Bronson, 500 F.3d at 1104.
                                             9
disclosed A.N.’s confidential information in violation of New Mexico law that doing

so would violate Plaintiffs’ equal protection rights. We turn to that issue now.

             2. Clearly established right

      “A clearly established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks

omitted). “A Supreme Court or Tenth Circuit decision on point or the weight of

authority from other courts can clearly establish a right,” Halley v. Huckaby,

902 F.3d 1136, 1144 (10th Cir. 2018), cert. denied, 139 S. Ct. 1347 (2019), but a

case directly on point is not required so long as “existing precedent [has] placed the

statutory or constitutional question beyond debate,” White v. Pauly, 137 S. Ct. 548,

551 (2017) (per curiam) (internal quotation marks omitted); see York v. City of Las

Cruces, 523 F.3d 1205, 1212 (10th Cir. 2008) (reporting that clearly established law

“does not mean that there must be a published case involving identical facts;

otherwise we would be required to find qualified immunity wherever we have a new

fact pattern” (internal quotation marks omitted)). The dispositive question in all

cases is whether “the violative nature” of the particular conduct at issue is clearly

established. Mullenix, 136 S. Ct. at 308 (internal quotation marks omitted); see

Halley, 902 F.3d at 1144.

      The district court held the law defining a person’s right to equal protection

under the law was sufficiently clear, based on the authority cited above, that

Defendants had notice that publicly disclosing confidential arrest and other

                                           10
information regarding some juveniles, like A.N., but not others, in direct violation of

New Mexico law, would violate Plaintiffs’ equal protection rights. Defendants

challenge this conclusion, arguing this clearly established law is too general for them

to have understood that their actions violated A.N.’s equal protection rights. Instead,

they assert they are entitled to qualified immunity because there is no Supreme Court

or Tenth Circuit decision “holding that a disclosure of information about an older

juvenile’s arrest, when similar information about younger juveniles is not disclosed,

violates the Equal Protection Clause.” Aplts.’ Opening Br. at 19.

      We are not persuaded. Defendants’ argument relies on the Supreme Court’s

decisions in Mullenix v. Luna and White v. Pauly, which they read as mandating that

a constitutional right is only clearly established if there is “a Supreme Court or Tenth

Circuit opinion finding a constitutional violation on facts similar to those alleged in

the complaint.” Id. at 18. Defendants base this reading on the Supreme Court’s

reiteration in Mullenix and Pauly that courts should not define clearly established law

“at a high level of generality” and should ensure that clearly established law is

“particularized to the facts of the case.” Pauly, 137 S. Ct. at 552 (internal quotation

marks omitted); see Mullenix, 136 S. Ct. at 308. But Defendants ignore that the

Court tempered this direction in Pauly by also acknowledging that clearly established

general rules of law can provide notice of the unlawfulness of an official’s conduct in

appropriate circumstances. More specifically, the Court recognized in Pauly, as it

has in decisions before and after it, that “general statements of the law are not

inherently incapable of giving fair and clear warning to officers” that their conduct

                                           11
violates a constitutional right, and that such statements provide the required notice

when “the unlawfulness” of their conduct is “apparent” from the pre-existing law.

Pauly, 137 S. Ct. at 552 (internal quotation marks omitted); see Kisela v. Hughes,

138 S. Ct. 1148, 1153 (2018) (per curiam); Hope v. Pelzer, 536 U.S. 730, 741 (2002).

In other words, “[g]eneral statements of the law can clearly establish a right for

qualified immunity purposes if they apply with obvious clarity to the specific conduct

in question.” Halley, 902 F.3d at 1149 (internal quotation marks omitted); see Hope,

536 U.S. at 741. And this is so “even though the very action in question has not

previously been held unlawful.” Hope, 536 U.S. at 741 (brackets and internal

quotation marks omitted).6

      We agree with the district court that the clearly established rule prohibiting

intentional, arbitrary and unequal treatment of similarly situated individuals under the

law applies with obvious clarity to Defendants’ alleged actions and policy of

discriminating between A.N. and other sixteen- and seventeen-year-old juvenile

arrestees and younger juvenile arrestees in complying with New Mexico’s laws

prohibiting the public disclosure of juvenile arrest and delinquency information. This

rule is not too general to define clearly established law because “the unlawfulness” of

Defendants’ conduct “follow[s] immediately from the conclusion” that this general

rule exists and is clearly established. Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590


      6
         We relied on these principles in a recent decision to hold that a general rule
of law was sufficiently specific, and applied with such obvious clarity, that it
constituted clearly established law placing the defendants on notice that their actions
violated the plaintiff’s constitutional right. See Halley, 902 F.3d at 1149.
                                           12
(2018) (internal quotation marks omitted). As a result, Defendants violated

Plaintiffs’ clearly established right to equal protection by their alleged actions.7

      Furthermore, our conclusion that Plaintiffs’ equal protection rights were

clearly established is consistent with the purpose underlying the Supreme Court’s

statement of the “clearly established law” standard in Mullenix and Pauly. As the

Court explained in Pauly, the requirement that clearly established law be

“particularized to the facts of the case” is intended to prevent plaintiffs from

“convert[ing] the rule of qualified immunity into a rule of virtually unqualified

liability simply by alleging violation of extremely abstract rights.” Pauly, 137 S. Ct.

at 552 (ellipsis and internal quotation marks omitted). This concern is particularly

acute in Fourth Amendment cases, such as Mullenix and Pauly, because of the

“imprecise nature” of the relevant legal standards and the fact-intensive assessment

required to determine whether a violation occurred. Wesby, 138 S. Ct. at 590

(stressing need for specificity in identifying clearly established Fourth Amendment

standards); see Mullenix, 136 S. Ct. at 308 (specificity “is especially important in the



      7
         The district court also cited Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972), in
support of its ruling that Plaintiffs had alleged a violation of their clearly established
equal protection rights. In Lamb, we held an Oklahoma statute that defined
“juveniles” for purposes of criminal proceedings as males under sixteen years of age
and females under eighteen years of age violated the equal protection rights of males
over sixteen because there was no logical constitutional justification for this disparate
treatment of males and females of the same age. See id. at 19-20. This decision
supports our conclusion that A.N.’s right to equal protection was clearly established,
because it provides notice of something that should go without saying, which is that
equal protection principles apply to the treatment of juveniles in criminal
proceedings, just as they do to individuals in other settings.
                                            13
Fourth Amendment context” because “it is sometimes difficult for an officer to

determine how the relevant legal doctrine, here excessive force, will apply to the

factual situation the officer confronts” (internal alternations and quotation marks

omitted)).

      In contrast, the clearly established standard for determining whether an official

has violated a plaintiff’s right to equal protection under the law is not extremely

abstract or imprecise under the facts alleged here, but rather is relatively

straightforward and not difficult to apply. Stated differently, this general rule is

sufficiently specific to have put Defendants on notice in this case that they would

violate A.N.’s right to equal protection under the law if they intentionally and

without a rational basis differentiated between her and similarly situated juvenile

arrestees in applying New Mexico’s laws against the disclosure of juvenile arrest and

delinquency records. As a result, “any reasonable official in [Defendants’] shoes

would have understood that he was violating” Plaintiffs’ equal protection rights,

Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted), by these actions.

                                    CONCLUSION

      For the reasons stated above, we AFFIRM the district court’s denial of

qualified immunity on Plaintiffs’ equal protection claim. We also reaffirm the

provisional order granting the parties’ motions to file their appellate briefs and

appendices under seal with redacted copies filed in the public record.




                                           14
