Lopera v. Town of Coventry

*392LYNCH, Chief Judge.

Former members of the Central Falls High School boys soccer team appeal from an entry of summary judgment for the Town of Coventry, Rhode Island, and Coventry police officers in this civil rights case. This dispute arises out of a police search of team members that followed a heated soccer match between Central Falls High School and Coventry High School in Coventry in 2006. Police searched all individual Central Falls team members for items purportedly missing from the Coventry locker room in the presence of an abusive crowd of Coventry students and adults. Though the Central Falls coach told the police he consented to the search of his players, both he and the players assert that he was coerced into doing so by the police.

Lead plaintiff Juan Lopera and other former members of the Central Falls team brought suit for damages and injunctive relief in April 2008, alleging violations of their constitutional rights under the Fourth and Fourteenth Amendments, as well as violations of Rhode Island state law. The defendant police officers asserted a defense of qualified immunity. The district court held that the players failed to raise a genuine issue of material fact as to whether (1) the police officers were not entitled to qualified immunity with respect to their claims under the Fourth Amendment and state privacy law, or (2) the police had engaged in racial discrimination in violation of the Equal Protection Clause or Rhode Island statutes prohibiting racial profiling and intimidation. Lopera v. Town of Coventry, 652 F.Supp.2d 203, 213-17 (D.R.I.2009). We affirm.

I.

We review the facts in the light most favorable to Lopera and the other plaintiffs, the parties opposing summary judgment. On September 28, 2006, the Central Falls High School soccer team traveled to Coventry for a match against Coventry High School. Before the game, four or five Central Falls players used the restrooms in the Coventry locker room. They were not alone. A security guard accompanied the boys into the locker room. The locker room is usually open and unlocked and could be easily accessed, including by unauthorized persons.

The locker room is apparently used by all Coventry teams and recently had been used by Coventry’s football team. After the soccer match, a group of approximately twenty football players1 confronted the Central Falls coach, Robert Marchand, as he walked behind his players toward the team bus. In profane terms, the Coventry students accused the Central Falls players of stealing iPods and cell phones from the Coventry locker room.

The Central Falls players allege that they encountered hostile racism during their match with the Coventry soccer team and during the remainder of their time in Coventry. Central Falls is a racially diverse community, and the Central Falls team consisted entirely of Spanish-speaking Hispanic players, save for one Portuguese player. Coventry, by contrast, is predominantly non-Hispanic and white, and its high school reflected this. The Central Falls players allege that Coventry players uttered racial epithets during the game, calling them “spies” and demanding that they speak English. They allege that Coventry students and adults made similar remarks during the series of events that followed the game.

After the Coventry football players confronted Coach Marchand with the purport*393ed thefts, he told them that he would handle the situation. The football players followed him toward the Central Falls bus. Before the group reached the bus, Coach Marchand told the players to wait. Coach Marchand then boarded the bus, where his team was waiting. Coach Marchand informed the players of the accusations and told them that he knew they had not taken the items. Nonetheless, he and an assistant coach searched the players’ bags. If an iPod or cell phone was found, Coach Marchand asked for proof that it belonged to the player. The search lasted approximately twenty to twenty-five minutes. Coach Marchand testified that when it was completed, he was “completely satisfied” that his players did not possess the items.

After he completed the search, Coach Marchand left the bus to speak with the Coventry Athletic Director, who was waiting outside. By this time, Coach Marchand testified, a crowd of fifty or sixty Coventry students and adults had gathered around the bus. According to Coach Marchand, members of the crowd yelled that they knew his players had the items. He testified that students and adults in the crowd stated that the players were “from the ghetto,” knew how to “hide things” and “lie good,” and could not be trusted. The players recounted similar accusations and vitriol, including racial slurs like “spic.” At one point, a member of the crowd apparently tried to board the bus to conduct his own search. Coach Marchand testified that members of the crowd demanded a search of his own bags. He also testified that members of the crowd stated that they would not let the Central Falls players leave until the items had been found.

Coach Marchand told the Coventry Athletic Director that he had checked “everything” on the bus, and that his players did not have the purportedly missing items. Coach Marchand also told the Athletic Director that he was welcome to do his own search, which the Athletic Director declined as unnecessary. Coach Marchand testified that as he and the Athletic Director puzzled over how to “satisfy all [the] constituencies here,” he began to worry that violence might ensue.

At this point, three or four Coventry police cruisers arrived on the scene with their lights and sirens activated. The police had received calls reporting a supposed ongoing physical altercation. The officers boxed in the Central Falls bus with their cruisers so that it could not move. According to the players, by this time the crowd had also formed a semicircle around the bus, blocking its path out of the parking lot.

Once it became clear that no physical altercation was taking place, the police discussed the situation with Coach Marchand and the Coventry Athletic Director. Coach Marchand explained to the officers that the Coventry students had alleged thefts and that his players “were prime suspects.” He told the officers that he had searched each student’s bags on the bus and did not find the purportedly missing items. Coach Marchand expressed fear of the crowd, asking the police, “what am I going to do, what are they going to do to us[?]” After a pause, Coach Marchand testified, the police responded by asking him if they could search the players. Coach Marchand verbally agreed.

Coach Marchand did not testify that the officers said or did anything coercive. Coach Marchand testified that the officers acted courteously and told unruly members of the crowd to be quiet. According to Coach Marchand, the police “decided their best thing was to [do the] search themselves to appease the masses” who were “crying for our heads.” In his testimony, he described his consent as the way to “take the high road, take the safe road,” *394even though he knew his players did not have the items. We must take this testimony as true on this motion for summary judgment.2 The police testified that the crowd was angry and unruly, consistent with the players’ testimony. They also testified that they did not hear any racial epithets from members of the crowd, which is not the plaintiffs’ testimony.

After agreeing to the search, Coach Marchand returned to the bus and told his players that the crowd would not let them go until the police searched them. The police then told the players to get off the bus with all of their belongings and line up with their bags between their legs. The players complied, lining up with their backs against the bus. An officer then told the players that if any of them had the missing items, they would be arrested if they did not immediately step forward. When none of the players stepped forward, the officers began a search. Coach Marchand testified that the officers placed each player’s bag on the hood of a cruiser and looked through it. A few players testified that some players were also subjected to pat down searches. During the search, the crowd was about six to ten feet away from the players.

The search lasted for about 45 minutes to an hour. The police officers testified that they did not obtain descriptions of the type of iPods or cell phones alleged to be missing, other than that one phone may have been a “flip phone.” When the police located an iPod or a cell phone on a player, they required that the player prove that the item belonged to him. In some cases, the players identified items stored on the devices and allowed the officers to search the devices. In other cases, the officers displayed the devices to members of the crowd and asked if they were the missing devices. During the course of the search, members of the crowd alleged that additional items were missing, like books and money.

The players testified that the crowd continued to harass them during the search. One player testified that, during the search, members of the crowd called the players “spies.” Another testified that members of the crowd stated that the Central Falls team should not be in Coventry or playing Coventry High School given the race of its players. Members of the crowd photographed the Central Falls students during the search with their cell phone cameras. Marchand testified that although the officers reprimanded unruly members of the crowd during the search, they did not take adequate actions to disperse the crowd or move it away from the bus.

There was testimony that during the search, one Coventry officer told one of the players that he thought the search was “stupid” because the coach had already searched the players and because a security guard had accompanied the players in the locker room. Another officer, hearing the comment, laughed. The police required all the players to wait outside the bus until every player had been searched. The search did not produce any of the missing items. After it was completed, the police escorted the bus out of town in their cruisers.

Lopera and other members of the Central Falls team filed suit in April 2008 against the Town of Coventry and several individual Coventry police officers under 42 U.S.C. § 1983 (§ 1983) and Rhode Island state law. Under § 1983, the players *395alleged deprivations of their Fourth Amendment right to be free from unreasonable searches and seizures, as well as their Fourteenth Amendment rights to due process of law and equal protection of the law.3 Under Rhode Island state law, the players alleged violation of statutes that forbid invasion of privacy, racial profiling, and ethnic intimidation. R.I. Gen. Laws § 9-1-28.1; id. § 31-21.2; id. § 9-1-35.

The district court granted summary judgment for the defendants on all counts. First, it held that the officers were entitled to qualified immunity with respect to the Fourth Amendment and state privacy claims because (1) it was not unreasonable for the officers to believe that Coach Marchand had power to consent to the search, and (2) coercion did not vitiate Coach Marehand’s consent. Second, it held that the players did not introduce sufficient evidence to support a finding that the police engaged in racial discrimination in violation of the Equal Protection Clause or Rhode Island’s statutes prohibiting racial profiling and ethnic intimidation. The district court also held on independent grounds that the players had not introduced material facts to support their claims of supervisory and municipal liability-

II.

On appeal, the players make two arguments. First, they argue that the officers were not entitled to qualified immunity for the claims under the Fourth Amendment and state privacy law because (1) a reasonable officer would have believed that Coach Marchand did not have authority to consent for his players, and (2) a reasonable officer would have believed that Coach Marehand’s consent was coerced. Second, they argue that they set forth material facts to support the reasonable inference that the actions of the officers were impermissibly motivated by race in violation of the Equal Protection Clause and Rhode Island state law. The players do not challenge the district court’s rulings on municipal and supervisory liability.

In their answer to the players’ complaint, the defendant officers asserted qualified immunity against all claims. In asserting this defense before the district court and before this court, the officers focused their argument on whether it was clearly established that Coach Marchand could consent on behalf of his students in loco parentis. The district court analyzed this question in a qualified immunity framework, but it appeared to address the players’ remaining claims outside of that framework. Given that the officers have raised a qualified immunity defense to all of the players’ claims, we address each of the players’ claims in the qualified immunity framework.

This court reviews grants of summary judgment de novo. Saccucci Auto Group, Inc. v. Am. Honda Motor Co., 617 F.3d 14, 20 (1st Cir.2010). We must make all reasonable inferences in favor of the non-moving party and may reverse only if “the evidence on record ‘is sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.’ ” Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 25 (1st Cir.2008) (quoting Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995)). This standard of review applies to grants of summary judgment on grounds of qualified immunity. See Kelley v. La-Force, 288 F.3d 1, 4 (1st Cir.2002). When *396a defendant moves for summary judgment on the basis of qualified immunity, the plaintiff bears the burden of showing infringement of a federal right. Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir.1992).

A. The Doctrine of Qualified Immunity

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, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This circuit follows a two-step analysis under Pearson in discerning whether defendants are entitled to qualified immunity. We ask “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.” Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009).

The Supreme Court has held that it is not mandatory for courts to follow this two-step test sequentially. Pearson, 129 S.Ct. at 818-21; see also Maldonado, 568 F.3d at 269-270. A finding that a right was not clearly established at the time of the alleged violation is sufficient to warrant a finding of qualified immunity. See Pearson, 129 S.Ct. at 822. In some cases “discussion of the first prong of the qualified immunity analysis will result ‘in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case.’ ” Maldonado, 568 F.3d at 270 (quoting Pearson, 129 S.Ct. at 818).

In this case, these considerations counsel that we consider the second prong of the analysis and go no further. That prong, we have held, has two aspects: that both (1) the legal contours of the right in question and (2) the particular factual violation in question would have been clear to a reasonable official. Id. at 269. Together, these two factors ask whether a reasonable officer, similarly situated, would have believed that his conduct did not violate the Constitution. Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727; Philip v. Cronin, 537 F.3d 26, 34 (1st Cir.2008).

The qualified immunity defense “is designed to protect ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Morse v. Frederick, 551 U.S. 393, 429, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). A finding of qualified immunity is warranted if “a reasonable officer could have believed his conduct was lawful.” Olmeda v. Ortiz-Quiñonez, 434 F.3d 62, 65 (1st Cir.2006). Such a finding is not warranted if “no reasonable officer could believe” that his conduct was lawful. Groh v. Ramirez, 540 U.S. 551, 564, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Put another way, immunity will issue when “officers of reasonable competence could disagree” on the lawfulness of an action, but it will not issue if “it is obvious that no reasonably competent officer would have concluded” that the action was lawful. Malley, 475 U.S. at 342, 106 S.Ct. 1092.

This is an objective test; it does not look to the defendants’ subjective beliefs concerning the unlawfulness of their conduct. Philip, 537 F.3d at 34. A “determination of objective reasonableness,” however, “ ‘will often require examination of the information possessed’ by the defendant officials.” Kelley, 288 F.3d at 7 (quoting Anderson v. Creighton, 483 U.S. *397635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

This objective test does not establish that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034. The Supreme Court has made clear that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citing United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). Nonetheless, unlawfulness must be apparent in light of pre-existing law at the time of the alleged violation. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. The content of clearly settled law and the belief of a reasonable officer under the circumstances are questions appropriately addressed by courts before trial, where possible. See Hunter v. Bryant, 502 U.S. 224, 227-28, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004).

We divide our discussion in this case between the players’ claims under the Fourth Amendment and state privacy law and their claims under the Equal Protection Clause and state laws forbidding racial profiling and ethnic harassment.

B. Fourth Amendment and State Privacy Claims

In their claims under the Fourth Amendment and the state privacy statute, the players give two grounds to defeat qualified immunity. First, they argue that all officers of reasonable competence would have believed that Coach Marchand did not have authority to consent on behalf of the players. Second, they argue that all officers of reasonable competence would have believed that coercion vitiated Coach Marchand’s purported consent to the search in this case.

The district court focused primarily on the players’ first argument. It held that the players failed to introduce a material fact showing it was clearly established that Coach Marchand could not consent on their behalf under the circumstances. Lopera, 652 F.Supp.2d at 213-16. In so finding, the district court relied on the apparent uncertainty of prevailing Supreme Court doctrine governing in loco parentis searches in schools. Id. As to the players’ second argument, the district court held that Coach Marchand’s consent was voluntary because he “understood the situation,” id. at 216, and gave consent “after careful and deliberate thought,” id. at 217. The district court did not address whether this would have been clear to the officers under the circumstances, nor whether it was clearly established that coercion vitiates consent.

1. Coach Marchand’s Authority to Consent

We may quickly dispose of the players’ first argument, which does not require analysis of the intricacies of the in loco parentis doctrine. Under the facts alleged by the players, a reasonable officer could have concluded that Coach Marchand had authority to consent to a search of his students. The search did not take place at Central Falls High School, but rather on a trip away from school over which Coach Marchand was undisputedly in charge. When the officers arrived, Coach Marchand told them that he had already conducted his own search of his students. To arrive at the conclusion that Coach Marchand could not consent, an officer would have had to question Coach Marchand’s authority to perform the first search and, by extension, Coach Mar-*398¿hand’s authority to consent to a second search by the police.

We cannot say that no officer of reasonable competence could have reached the conclusion that Coach Marchand had authority to consent. As the players argue, the Supreme Court has recognized limits on the in loco parentis authority of school officials. New Jersey v. T.L.O., 469 U.S. 325, 336-37, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). To defeat a finding of qualified immunity, however, the players must identify authority sufficiently particularized that the unlawfulness of an act would have been apparent to all officers of reasonable competence. Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Subsequent decisions make clear that T.L.O. has not eliminated a school official’s in loco parentis power to consent on behalf of his students. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-56, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). The players do not identify a sufficiently particularized decision of this court or the Supreme Court that places Coach Marchand’s consent clearly beyond his authority under the facts they allege.

2. The Validity of Coach Marchand’s Consent

The players’ second argument concerning the validity of Marchand’s consent requires more discussion. There is no dispute that all officers of reasonable competence would have known that coercion vitiates consent to a search under the Fourth Amendment. See United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir.2008). Under the Fourth Amendment, consent may “not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth v. Bustamante, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). As to the other considerations relevant to the validity of Coach Marchand’s consent, we reiterate that we may only deny qualified immunity if “it is obvious that no reasonably competent officer would have concluded” that the action was lawful. Malley, 475 U.S. at 342, 106 S.Ct. 1092. If “officers of reasonable competence could disagree” on the lawfulness of an action, we must grant qualified immunity. Id.

We first dispose of a legal question about the scope of the facts to be considered. The officers argue that the law under Schneckloth was not clearly established; they contend that it was the crowd, not the officers, who created any coercive atmosphere and that the coercion must “emanat[e] from the police officers themselves rather than any subjective or outside influence.” Citing the Supreme Court’s decision in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), the officers argue that the examination of coercion must focus solely on the acts of the officials requesting to perform the search. We reject this argument for two different reasons, but nonetheless find for other reasons that defendants are entitled to qualified immunity.

First, Connelly is not clearly established law limiting Schneckloth. Second, taking the facts in the light most favorable to the plaintiffs, the crowd was not the only source of potential coercion. It is clearly established law under Schneckloth that in considering the validity of consent, all the surrounding circumstances must be considered. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; Vanvliet, 542 F.3d at 264. Neither the Supreme Court nor this court has extended the rule in Connelly, a decision under the Due Process Clause of the Fourteenth Amendment, to Fourth Amendment consent cases.

In Connelly, the defendant claimed that because he heard a “voice of God” telling him to confess, his confession in police custody was coerced and thus invalid. *399Connelly, 479 U.S. at 170-171, 107 S.Ct. 515. The Supreme Court held a defendant’s mental condition “by itself and apart from its relation to official coercion” cannot “dispose of the inquiry into constitutional ‘voluntariness’ ” under the Fourteenth Amendment’s Due Process Clause. Id. at 164, 107 S.Ct. 515. It concluded that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ ” within the meaning of that clause. Id. at 167, 107 S.Ct. 515. The Court did not address Fourth Amendment searches.

We are unaware of any published circuit court decision that applies this standard for voluntariness of a confession to questions of consent under the Fourth Amendment. But see United States v. Quezada, No. 91-5004, 1991 WL 191402 (4th Cir. Oct. 24, 1991) (applying Connelly to a Fourth Amendment search in an unpublished decision). At least two circuits have expressly declined to do so. United States v. Montgomery, 621 F.3d 568, 571-72 (6th Cir.2010); Tukes v. Dugger, 911 F.2d 508, 516 & n. 13 (11th Cir.1990). This circuit has continued to apply the requirements in Schneckloth for consent to a Fourth Amendment search. See Vanvliet, 542 F.3d at 264. Moreover, we are unaware of any lower court decision in this circuit that extends Connelly to Fourth Amendment searches. See Pearson, 129 S.Ct. at 823.

Having rejected the defendants’ efforts to narrow the focus of inquiry, we turn to the articulation of the clearly established law. In Schneckloth, the Supreme Court held that coercion must be discerned by examining “all the surrounding circumstances,” including “subtly coercive police questions” and “the possibly vulnerable subjective state of the person who consents.” Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041. In Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), the Court repeated that “[t]he Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘[vjoluntariness is a question of fact to be determined from all the circumstances.’ ” Id. at 40, 117 S.Ct. 417 (alteration in original) (quoting Schneckloth, 412 U.S. at 248-49, 93 S.Ct. 2041).

We have held that voluntariness of consent depends on considerations including, but not limited to, “(i) the consenter’s age, education, past experiences, and intelligence; (ii) whether law enforcement officials advised the consenter of his constitutional right to refuse consent; (iii) the length and conditions of the consenter’s detention and/or questioning; and (iv) law enforcement officials’ use of any inherently coercive tactics.” Vanvliet, 542 F.3d at 264 n. 2 (citing Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041).

A consent is coerced when an individual’s “will ha[s] been overborne and his capacity for self-determination critically impaired” such that he does not face an “essentially free and unconstrained choice.” United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (quoting Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041) (internal quotation marks omitted). It is seldom the case that “a single coercive element will, standing alone, be enough to invalidate a consent.” W. LaFave, Search and Seizure § 8.2(b), at 62 (4th ed.2004). An officer’s failure to inform an individual of her right to refuse consent to a search does not necessarily render her consent to such a search coerced. See Robinette, 519 U.S. at 39-40, 117 S.Ct. 417. Nor is a consent to a search given in police custody necessarily coerced. Watson, 423 U.S. at 424, 96 S.Ct. 820.

Two Supreme Court cases are particularly instructive here, but are not cited to us by either side. The first is United *400States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In Drayton, the Supreme Court held that among the relevant factors for assessing coercion is whether the officer requesting the search “indicated a command to consent to the search.” Id. at 206, 122 S.Ct. 2105. The defendant’s consent, the Court held, was not a product of coercion because the officer had provided him with “no indication that he was required to consent to the search.” Id. The officers had asked whether the defendant objected to the search, “thus indicating to a reasonable person that he or she was free to refuse.” Id. The Court noted that there had been “no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.”4 Id. at 204, 122 S.Ct. 2105.

The second is Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). In Bostick, the Court addressed whether an officer’s request to search a passenger’s bags on a commercial bus constituted an unlawful seizure under the Fourth Amendment. Id. at 431, 111 S.Ct. 2382. Although on its face Bostick is about whether the defendant was seized, it is relevant. The Supreme Court’s assessment of whether the police in Bostick seized the defendant turned on whether they had coerced him to consent to a search. Id. at 435-38, 111 S.Ct. 2382. It held that the appropriate inquiry was whether, under the circumstances, “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 436, 111 S.Ct. 2382. The Court held that “[wjhere the encounter takes place is one factor, but it is not the only one.” Id.

Against this articulation of the clearly established law, we now turn to the facts of this case, taking all reasonable inferences in favor of the players. The defendants have largely accepted the plaintiffs’ version of the facts for purposes of this summary judgment motion, but say that they would present their different version of the facts at trial.

The players point to three factual circumstances in arguing that no reasonably competent officer would have concluded that Coach Marchand’s consent was valid. First, they note that Coach Marchand explicitly invoked his fear of the crowd, asking the officers, “what are they going to do to us[?]” shortly before the officers requested that Coach Marchand consent to a search of the players. Second, the players note that the officers did not actively seek to disperse the crowd, but only told the crowd to quiet down. Third, they note that the officers boxed in the Central Falls bus, which effectively ensured that it could not leave until the police decided it could leave.

Although Coach Marchand may have subjectively felt coerced by the police and/or the crowd to give his consent, that is not the focus of the qualified immunity inquiry. Rather, the focus is on the viewpoint of an objectively reasonable officer. We cannot say that no reasonably competent officer would have concluded that Coach Marchand’s consent was valid under *401clearly established Supreme Court case law. The players do not even allege that the officers commanded Coach Marchand to consent to a search, and the facts do not suggest that they did. Nor do the players allege that the officers threatened force or acted in an intimidating manner during their exchange with Coach Marchand and the Coventry Athletic Director. Indeed, Coach Marchand testified that the officers requested the search politely and acted courteously and professionally throughout their exchanges with him. The players do not even allege that the officers spoke to Coach Marchand with “an authoritative tone of voice” when they requested to do a search. See Drayton, 536 U.S. at 204, 122 S.Ct. 2105.

Rather, the players’ evidence depicts a difficult situation in which Coach Marchand faced a genuine choice between imperfect solutions. He could either consent to the search or require the police to pursue other legal paths if they wished to conduct one. As Coach Marchand said, it was his decision and he decided “to take the high road, to take the safe road.” Coach Marchand may have felt that the best way for him to get his players home safely and promptly was to submit to a search. He knew of the hostile crowd and was convinced that the players did not possess any of the purportedly missing items. By the time the police arrived, the Central Falls bus was already late going home, and Coach Marchand could have reasonably believed that school administrators and the players’ parents were or would soon become worried about their whereabouts.

These circumstances do not establish that all reasonably competent officers would have concluded that Coach Marchand’s will had been overborne or that his capacity for self-determination was critically impaired. See Watson, 423 U.S. at 424, 96 S.Ct. 820. Indeed, Coach Marchand testified that he “debated” telling the officers to get a search warrant, but rejected that option. Instead, he concluded that his role as coach was to ensure first and foremost that the players got home safely. A choice between undesirable options does not itself mean the choice was coerced and the consent given was involuntary. Like the officers in Drayton, the officers posed their search request as a question and did not make any showing that it could not be refused. We cannot say that a reasonably competent officer could only have concluded that Coach Marchand had no option but to consent due to coercion.

The factual details the players emphasize, addressed within the totality of the circumstances, do not demand a contrary conclusion. Coach Marchand’s question, “what are they going to do to us[?],” would have alerted reasonable officers of his concerns about the situation. It may also be that reasonable officers would have recognized that the perceived threat from the crowd influenced Coach Marchand’s decision. This does not mean, however, that all officers of reasonable competence would have concluded that Coach Marchand’s will had been overborne. As Coach Marchand testified, he considered refusing the search and telling the officers to get a warrant.

As to the officers’ efforts to subdue the crowd, by the time the officers spoke with Coach Marchand, they had restrained the crowd, told crowd members to cut it out, and established a buffer between the crowd and the bus. It may be that the officers would have done better to disperse the crowd altogether. This does not mean, however, that the officers are not entitled to immunity. The officers could have reasonably thought that they made clear that they would prevent the crowd from harming the players as of the time they asked Coach Marchand to consent to the search.

*402As to the police cruisers, the officers parked in a way that boxed in the bus before they became aware of the specific situation unfolding around it. The record is silent on whether alternatives were available. More importantly, the officers did not convey to Coach Marchand that they would not move their cruisers until he agreed to a search. Nor were they asked to move the cruisers.

It is true that in a case concerning an involuntary seizure of a person, the Supreme Court used language that the police offered the person “no choice.” Kaupp v. Texas, 538 U.S. 626, 631, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003). But the circumstances there were a far cry from the choice Coach Marchand faced. In Kaupp an adolescent was rousted out of bed in the middle of the night wearing nothing but underwear, placed in handcuffs, and taken to a crime scene on his way to be interviewed at law enforcement headquarters. His statement of “Okay” in response to “we need to go and talk” was clearly not consent. See id. at 631-32, 123 S.Ct. 1843. Nothing of that sort happened here, nor would a reasonable officer have thought it did.

On the plaintiffs’ version of the facts, we cannot say that all officers of reasonable competence would have concluded that Coach Marchand’s consent to the search was invalid. It is not enough that Coach Marchand described his consent to the search as coerced; coercion has a specific legal meaning. Even if Coach Marchand felt his consent was coerced within that specific legal meaning, this would not be sufficient to overcome the officers’ assertion of qualified immunity. While a jury might find that Coach Marchand subjectively believed his consent was coerced, that is not the issue here; we must look to the view of the reasonable officer. See Barton v. Clancy, 632 F.3d 9, 30 (1st Cir. 2011). Like Coach Marchand, the police officers faced a tough decision in a difficult situation. Whether the officers made the correct decision is not the point.

C. Equal Protection and State Racial Discrimination Claims

The players argue that they have raised material facts showing that the officers’ actions were impermissibly motivated by race in violation of the Equal Protection Clause and Rhode Island state laws. There are disputes over whether the legal contours of the rights in question would have been clear to a reasonable officer and over whether a reasonable officer would have perceived a violation of recognized rights under the factual circumstances present in this case. We begin with the rights in question and then assess the factual circumstances.

Our analysis under the Equal Protection Clause looks to “(1) whether the appellant was treated differently than others similarly situated, and (2) whether such difference was based on an impermissible consideration, such as race.” Ma-cone v. Town of Wakefield, 277 F.3d 1, 10 (1st Cir.2002). A plaintiff must show that the defendant “selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects” upon a protected group. In re Subpoena to Witzel, 531 F.3d 113, 119 (1st Cir.2008) (quoting Wayte v. United States, 470 U.S. 598, 610, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)) (internal quotation marks omitted). Such intent may be “inferred from the totality of the relevant facts.” Donahue v. City of Boston, 371 F.3d 7, 14 (1st Cir.2004) (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)).

The players assert that this analysis forbids official actions that “effectuate the known discriminatory intention of others.” *403Citing United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir.1987), they argue that a police search that works to effectuate such discriminatory intentions voiced by a crowd violates the Equal Protection Clause. See id. at 1226. We read that decision more narrowly; in any event, it is insufficient to make plaintiffs’ proposition into clearly established law. The players do not cite any cases from this court or the Supreme Court finding a violation of the Equal Protection Clause in the absence of purposeful discrimination on the part of the relevant officials. Accordingly, we hold that the players have not shown that it is clearly established that acts that effectuate the known discriminatory intent of others, without more, violate the Equal Protection Clause. See Davis, 426 U.S. at 241-42, 96 S.Ct. 2040; McGuire v. Reilly, 386 F.3d 45, 63 (1st Cir.2004).

Under our clearly established equal protection analysis, the players have failed to demonstrate that all officers of reasonable competence would have believed that the request for a search of the players produced differential treatment. Given that the public had access to the unlocked Coventry locker room, the players argue that the officers had no more reason to search them than they had to search the crowd. Indeed, they argue that the officers had even less reason to search the players because the officers knew Coach Marchand had already searched them and a security guard had accompanied them into the locker room. These claims belie the undisputed fact that Coach Marchand identified the players as the “prime suspects” in his discussion with the police. Even if Coach Marchand merely intended to convey the crowd’s opinion, members of the crowd had not been accused of theft.

Even if we assume that the officers had no more reason to search the players than the crowd, the players fail to produce sufficient evidence of discriminatory intent to defeat qualified immunity. This court has noted that discriminatory animus seldom “wears its garb openly” and more often comes “masked” in “subtle forms.” Soto v. Flores, 103 F.3d 1056, 1067 n. 12 (1st Cir.1997) (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir.1996)). Nonetheless, to survive summary judgment, the non-moving party must make more than “conclusory allegations, improbable inferences, or unsupported speculation.” Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir.2008). A non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Id. at 53-54 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The players do not present such specific facts on the issue of racial animus in this case. They point to the alleged racial slurs made by the crowd and claim that the officers should have ordered the crowd to disperse or move farther away from the bus. They also claim that the officers sought to incite the crowd by displaying some of the players’ iPods and cell phones. But testimony from both Coach Marchand and the players contradicts the inference that racial animus motivated the officers. No officer uttered a racial slur. It is uncontested that the officers acted courteously and told members of the crowd to stop jeering at the players. There is no evidence that all officers of reasonable competence would have believed the search was undertaken because of the national origin or race of the players.

Given this conclusion, the players also cannot defeat the officers’ qualified immunity defenses against their claims under Rhode Island’s Racial Profiling Prevention Act and Ethnic Intimidation Statute. The Racial Profiling Prevention Act covers *404“disparate treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual,” with an exception not relevant here. R.I. Gen. Laws § 31-21.2-3. The Ethnic Intimidation Statute covers behavior “which would reasonably be construed as intended to harass or intimidate [a] person because of his or her race.” R.I. Gen. Laws § 9-1-35(a). For the reasons stated above, the players have not raised a genuine issue of material fact that satisfies either of these standards.

III.

The record does demonstrate, regrettably, that the players were subject to ethnic animosity from Coventry inhabitants. Although the plaintiffs do not raise sufficiently material facts to survive summary judgment, the Town and its voters may wish to take steps to prevent recurrences of such behavior.

The judgment of the district court is affirmed.

. This crowd apparently did not include any soccer players.

. One officer testified that Coach Marchand suggested the search and that they conducted the search because it would “expedite the process and eliminate them all as suspects.” These are disputed facts and for these purposes we do not accept them.

. The players have conceded that their Due Process claim was not intended to allege a violation of their substantive due process rights and thus overlaps with their Fourth Amendment claim.

. Although this language derives from Dray-tons analysis of whether a seizure had occurred in that case, the Court noted that "[i]n circumstances such as these, where the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts.” United States v. Drayton, 536 U.S. 194, 206, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). The Court's analysis of whether the defendant’s consent was coerced invoked the factual discussion in its analysis of whether the defendant had been seized. Id.