IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-30420
Summary Calendar
__________________________
CHERIE SHIPP; JERRY GATES,
Plaintiffs-Appellees,
versus
ROYCE L. MCMAHON, etc; ET AL,
Defendants,
STEVE CROPPER, Webster Parish Sheriff’s Office Deputy;
BETTY SHIPP, Webster Parish Sheriff’s Office Deputy;
THEODORE L. RISER, Sheriff of Webster Parish, Louisiana,
Defendants-Appellants.
___________________________________________________
Appeal from the United States District Court
For the Western District of Louisiana
(No. 97-CV-308)
___________________________________________________
November 7, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
This is the second panel of this Court to consider whether plaintiffs’ allegation that defendants
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
violated their constitutional rights, in violation of 42 U.S.C. § 1983, survives defendants’ motion to
dismiss for qualified immunity.1 Because we conclude that the right underlying plaintiffs’ allegation
of unequal police protection, a “class of one” equal protection claim, was not clearly established at
the time of the alleged violation, we reverse the district court’s denial of qualified immunity and
remand for consideration of the state law claims. Whether a constitutional right is clearly established
is a question of law, Shipp v. McMahon, 234 F.3d 907, 912 (5th Cir. 2000) (Shipp I), which we
review de novo. Dunn v. Commissioner, 301 F.3d 339, 348 (5th Cir. 2002).
In order to defeat the defense of qualified immunity, a plaintiff must show that a clearly
established constitutional right was violated. Sanchez v. Swyden, 139 F.3d 464, 466 (5th Cir. 1998).
A court of appeals must not assume without deciding whether the constitutional right asserted by a
plaintiff is a constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
Whether Plaintiffs Allege Violation of Constitutional Right At All
Cases with varying degrees of generality, from the Supreme Court, other circuits, and this
Court, hold that the equal protection rights of an individual, independent of membership in a suspect
class, can be violated by unequal treatment by the government. See Village of Willowbrook v. Olech,
528 U.S. 545, 564 (2000) (“Our cases have recognized successful equal protection claims brought
by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from
1
On petition to rehear, Shipp v. Mahon, 234 F.3d 907(5th Cir. 2000)(Shipp I) held
sheriffs and deputies did not violate clearly established law when they allegedly provided less
protection to a victim of domestic assault than to victims of other assaults, and thus were entitled
to qualified immunity. Shipp I reversed the district court’s denial of qualified immunity but
remanded to allow plaintiff to amend the complaint to allege a “class of one” equal protection
claim. (The underlying case, at 199 F.3d 256, affirmed the district court’s denial of qualified
immunity.)
2
others similarly situated and that there is no rational basis for the difference in treatment.”); Hilton
v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000) (“class of one” unequal police protection
claim requires plaintiff to “present evidence that the defendant deliberately sought to deprive him of
the equal protection of the laws for reasons of a personal nature unrelated to the duties of the
defendant’s position.”); Watson v. City of Kansas City, Kansas, 857 F.2d 690, 694 (10th Cir. 1988)
(“Although there is no general constitutional right to police protection, the state may not discriminate
in providing such protection.”); McKee v. City of Rockwall, Tex., 877 F.2d 409, 418 (5th Cir. 1989)
(Goldberg, J., concurring in part and dissenting in part) (approving Watson). However, the Court’s
earlier decision in this case, Shipp I, may or may not have extended the “class of one” equal
protection right to the context of law enforcement.
In any case, the first panel gave Shipp an opportunity to allege a “class of one” equal
protection claim. Whether or not that decision recognizes a“class of one” equal protection right in
the police protection context, the Court remanded to give plaintiff the chance to allege its violation.
Under the law of the circuit doctrine, the second panel to see a case cannot overrule the decisions of
the first panel. See, e.g., Missouri Pac. R.R. v. Railroad Commn., 948 F.2d 179, 186 (5th Cir. 1991).
It would be inconsistent for this panel to hold that plaintiff could in no way sustain the pleading
burden this Court itself invited.
Clearly Established at Time of Alleged Misconduct
Appellants contend the “class of one” equal protection claim for unequal police protection
was no t clearly established as of 1996. Since at least 1923, the Supreme Court has recognized
“successful equal protection claims brought by a ‘class of one’ where the plaintiff alleges she has been
3
intentionally treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Village of Willowbrook, 528 U.S. at 567 (citing Sioux City Bridge Co. v.
Dakota County, 260 U.S. 441 (1923)). While such a claim has been extended to the police protection
context by at least one circuit, see Hilton, 209 F.3d at 1008, neither the Supreme Court nor this Court
had moved the analysis beyond the land use/assessment context as of 1996. Moreover, this Court’s
prior opinion in this case, adopting the Hilton framework for “class of one” equal protection claims,
notes that this Court had not reached this issue prior to December 2000. Shipp I, 234 F.3d at 916
n.6.
In the absence of precedent that is directly on point, a plaintiff may yet show that an official
action is not protected by qualified immunity if, based on pre-existing law, the unlawfulness of the
conduct is apparent. Hope v. Pelzer, ___ U.S. ___, 122 S.Ct. 2508, 2515 (2002). Taking appellees’
allegations as true, appellant Betty Shipp, working as a police dispatcher, hung up on a caller who
reported Betty Shipp’s own son was involved in the abduction of his estranged ex-wife, Cherie Shipp.
While this conduct shocks the conscience, appellees fail to show why, given the absence of “class of
one” claims reaching unequal police protection, the unlawfulness of this conduct was nevertheless
apparent in 1996. Appellant Steve Cropper, a Webster Parish deputy sheriff, does acknowledge in
his deposition that treating Cherie Shipp, or anyone, differently would be illegal. However, just
because Cropper may think some conduct is “illegal” does not transfigure what is obviously a due
process claim without legs into an equal protection claim with them. Qualified immunity applies to
this “class of one” claim because the underlying constitutional right was not clearly established in
1996.
Appellants cut and paste excerpts of this Court’s prior opinion to support their aspiration that
4
Shipp’s state law claims were dismissed by this Court. A complete review of that opinion undermines
this position. The state law claims are mentioned twice, once each in the opening and penultimate
paragraphs.2 The Court wrote that its reversal of the district court was “for the reasons stated
below,” all of which addressed whether constitutional rights were clearly established for § 1983
qualified immunity purposes, and none of which were directly related to the state law claims. When
the court concluded “We REVERSE the district court’s denial of the defendants’ motion to dismiss
. . . and hold that the defendants are entitled to qualified immunity,” the court was addressing
qualified immunity under federal law for § 1983 actions, and not qualified immunity under Louisiana
law for the state law claims.
We reverse the district court’s decision on qualified immunity for the “class of one” equal
protection claim and remand to the district court, noting it has discretion under 28 U.S.C §
1367(c)(3) to retain supplemental jurisdiction over the remaining state law claims.
REVERSED AND REMANDED.
2
The opening paragraph reads in full:
This case involves the defendants-appellant’s challenge to the district court’s denial of
their motion to dismiss the plaintiffs-appellees’ claims brought under 42 U.S.C § 1983
(1994) and state tort law. The defendants-appellants moved to dismiss the plaintiffs-
appellees’ claims under FED.R.CIV.PROC. 12(b)(6) claiming qualified immunity. The
district court denied the defendants-appellants’ motion. For the reasons stated below, we
REVERSE the district court’s ruling.
234 F.3d at 909.
The penultimate paragraph reads in full:
We REVERSE the district court’s denial of the defendants’ motion to dismiss under
FED.R.CIV.PROC. 12(b)(6), and hold that the defendants are entitled to qualified immunity.
We REMAND to the district court for further proceedings consistent with this opinion.
234 F.3d at 917.
5