## Facts

- Ae Ja Elliot-Park, a Korean woman, was injured when Norbert Duenas Babauta crossed into oncoming traffic and crashed into her car in Saipan.
- Officer Jarrod Manglona responded; when Elliot-Park asked him to call her husband, he allegedly shoved her back into her car and told her to be quiet and calm down.
- Officers Manglona, Michael Langdon, and Anthony Macaranas interviewed witnesses and both drivers.
- Elliot-Park alleged the officers had strong indications Babauta was intoxicated, including slurred speech, unsteadiness, alcohol odor, bloodshot eyes, empty beer cans in the truck bed, and Babauta’s statement that he had “blacked out” while driving.
- Despite these indicators, the officers allegedly did not administer field sobriety or alcohol tests, did not investigate DUI, and did not cite or arrest Babauta for DUI or any other offense.
- Elliot-Park alleged Manglona falsely reported that Babauta “had not been drinking.”
- A treating physician contacted the Department of Public Safety to complain after learning Babauta had not been charged with DUI.
- Elliot-Park alleged the officers’ failure to investigate and arrest was intentional and based on race and ethnicity: she was Korean, while Babauta and the officers were Micronesian.

## Issues

1. Whether a plaintiff states an Equal Protection claim by alleging that police intentionally provided diminished protective services—specifically investigation and arrest decisions—because of the races/ethnicities of the victim and the suspected offender.
2. Whether, at the time of the incident, it was clearly established that the Equal Protection Clause forbids race-based diminution of police protective services, such that the officers were not entitled to qualified immunity at the pleading stage.

## Decision

- The Ninth Circuit affirmed the denial of qualified immunity on the Equal Protection claim at the motion-to-dismiss stage.
- The court held the complaint plausibly alleged intentional race-based discrimination in police protective services by alleging a failure to investigate and arrest for suspected DUI.
- The court rejected the argument that Equal Protection is violated only by a total refusal to provide protection; materially diminished services based on race can also violate the Constitution.
- The court concluded the asserted right to non-discriminatory police protection was clearly established and encompassed investigation and arrest activity, so a reasonable officer would have known the alleged conduct was unconstitutional.
- A separate opinion concurred in part and dissented in part, disputing aspects of the “clearly established” analysis as applied to investigative and arrest decisions.

## Legal Principles

- The Equal Protection Clause prohibits intentional race- or ethnicity-based discrimination in the provision of police protective services.
- Equal Protection liability is not limited to complete nonresponse; discriminatory diminution of police services is actionable.
- Police investigation and arrest decisions may constitute “protective services” for Equal Protection purposes when the alleged disparity is based on race or ethnicity.
- At the pleadings stage, qualified immunity is unavailable where the complaint plausibly alleges conduct that violates a clearly established right to non-discriminatory police protection.

## Conclusion

The court allowed the case to proceed past dismissal because the complaint plausibly alleged that officers, motivated by race and ethnicity, provided materially inferior police services by declining to investigate and arrest a suspected drunk driver despite apparent evidence of intoxication, and the officers were not entitled to qualified immunity on that Equal Protection theory.


Elliot-Park v. Manglona, 592 F.3d 1003 (9th Cir. 2010)