son and he's claiming that was done by the refusal of the defendant appellant to accept formal complaints from the plaintiff regarding things that were found papen in the town of hitchcock which  subsection three both federal claim and then a subsequent oklahoma conspiracy claim as well in order to show pain as there is no general constitutional right to police protection but an equal protection claim can arise from a failure to protect if the plaintiffs establishes three elements one that he's a member of a protected class or two that he was treated differently from similarly situated individuals who were not members of the protected class or three and three the officers failure to protect was motivated at least in part by discriminatory purpose case of supreme court cases scotchy harris the supreme court indicated that when opposing parties tell two different stories one of which is blatantly contradicted by the record so that no reasonable jury could believe that a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment in fact the supreme court in scott the harris overturned both the court of appeals and the district court in that matter based on a factual review of the record particularly the underlying district court in this case with regard to disparate treatment element number to them that plaintiff has offered evidence that the defendants declined to allow him to follow a formal report or complaint as to various of the alleged incidents to which you objected suggesting they were unwilling to pursue its complaint the court also stated there is also evidence that the defendants to and s written reports from others who were arguably similarly situated specifically the complaints reports received from miss paul a participant in one of the same incidents i think it's important to point out that that mr gamble medlar had come on her property and put a sign on her property with regard to a notice that he was making as town clerk for the for the community as of the morning of the fire there were three statements that were made that morning one of them was the plaintiff's voluntary statement that he himself had wrote and compelling three coins a claim that he was being stalked by mr paul's a nd factual recitation of the facts surrounding the fire at his home and the rd claim that geneva palls had threatened his son or two statements that were made that morning were about to v m s workers who were on standby at the time of the fire at plaintiff's home and those two e m s workers made statements about things that the plaintiff it said during the fire place is not made any claims against those two people there's no earlier claim by those two people and scheffler and simmons were those two individuals and so there was no earlier claim later that morning the undersheriff in investigating both the fire and the claims contained in plaintiff statement went to general paul's and took his statement the next day he went to geneva pauls and took her statement and then the next day two days after the fire he took a statement from plaintiff's pastor undersheriff robertson's report is also full of  point that out because the court found with regard to the disparate treatment that there was evidence that the defendants took and saw written reports from others who were arguably similarly stood situ situated however that finding is playing error and is blatantly contradicted by the record because those reports that were taken from other people were particularly mis paul were  subsequent to the plaintiff's statement that was made on the morning of the fire there was no disparate treatment because at that point there had been no whether statements that were received by any of these other previous defend as a result of undersheriff robertson's investigation in this case he was able to take pictures of the offensive sign that the plaintiff had raised the one forgive my language that said hey queer five hundred dollars fine for trespassing he photographed that and later sought guidance from the district attorney to whether or not that consisted of hate speech or a crime which the da told him that it did not under sheriff roberts and then gathered all the other evidence and took it to the da and then charges were sought and established by the district attorney's office for the for the claim for the statements that mr for the plaintiff family member had made at the scene of the fire and earlier with regard to what happened with juanita paul's but those were all subsequent inst investigations that were taken after the original statement was made the plaintiff the next issue by the court was whether the plaintiff had presented sufficient evidence with regard to whether the defendant's actions were motivated by discriminatory purpose and one of the things that's very important in that regard is that there were two alleged to discriminatory issues the sexual orientation of the plaintiffs being gay and the race of plaintiff son and his association with his adopted son who happened to be black the court acknowledged in in the lower court ruling that the potential liability of each defendant must be evaluated separately so the question is whether there was sufficient evidence to support a reasonable inference that these defendant's actions were motivated by a racial or sexual preference and a miss the court acknowledged there was nothing in the submissions which even approached direct evidence of such an animus and then further acknowledged that discriminatory purpose must commonly be established by circumstantial rather than direct evidence however when the court looked at that evidence the court said that there were multiple refusals to accept complaints from plaintiff while accepting complaints in arguably similar circumstances from others not gay or not having the racial association brought however as mentioned earlier if you look at the timeline of those complaints and when they were taken the actual written complaints plaintiff was the st to raise three separate issues the alleged stalking the fire and then this threat to his son which were subsequently investigated by undersheriff robertson those those statements just for the record can be found in the appendix that pages for forty were forty statement he indicated that he talked to a great care deputy who said that he would take care of it and so it's confusing as to whether the plaintiff because at the time he wrote the statement undersheriff robertson the sheriff and deputy concini were all there with him certainly he would have recognized one of those individuals but regardless the court did address that but if that is the reason and the court says it is that they left in the discriminatory animists claim that claim would only be towards the racial claim and not towards the claim that plaintiffs sexual orientation was the basis of the discriminatory animus and we believe that the court could have at least granted summary judgment with regard to the discriminatory animus claim based on the sexual orientation and left the alleged  k based claim and not romps them both together and that the should the court should have divided that facts show that the plaintiffs did make that claim with regard to that racial issue and what was told to allegedly told to him by geneva palls he did make that claim in his written statement which is found at page and forty and it was investigated by undersheriff robertson following the fire and that's what led to the subsequent statements made by juanita pauls joe paul and and others that were in this case right i believe that plaintiff's claims in this case are not based on the failure to prosecute them based on the refusal to accept a formal complaint not on the failure to prosecute and so his claim that we refused to take his complaint originally with regard to the threat against his son that we did that then we prosecuted him but the matter the fact of the matter is when he was allowed to make that report and he did make that report and it was investigated and so even though the sheriff relied on a misstatement of along when he told told yaml medlar at  st well that's protected we can't do anything about the racial statement that you need to paul's allegedly said it was later investigated by the sheriff's office and when those subsequent crimes that were committed by gamma medlar were discovered and we got the statements from we the defendants got receive the statements from geneva paulson joel paul's that information was provided to the district attorney's office and the district attorney's office is the one who decided to pursue those charges against gamble medlar ok well very good you know i i took away your last several minutes in question some going to give you qualified immunity the court's total reliance and the reason why they did not qualified immunity was based on the price versus cornelius and case and the thing i want to mention about that is price was what's in reach this conclusion specifically in the context of addressing police protection of thirty two domestic abuse victims what's in there for was sufficient to put brooks on notice that providing  police protection than other domestic violence victims because she was a lesbian would deprive her of equal protection of the law at least in the absence of articulated rational government reason for such discrimination why that is important is the district court relied on a broad general proposition of law and analyzing whether the appellant's were in violation of clearly established law but it's clear that both watson and and were limited to equal protection of law with regard to homosexual victims of domestic abuse and we don't think that that would expand into this this case where there is no domestic abuse whatsoever and so we don't believe that it's clearly established ok thank you very much cary's just for you do you have should grant your motion sexual orientation not as to the racial discrimination that you make that claim but all your honor if i look back in the file i don't see that we medlar and in this particular case mr medlar and his spouse who is also male moved to the small town of hitchcock with her adopted african american son  hitchcock is a very small community only about one hundred people maybe one hundred and ten and as might be expected once i got there there were members of that community who were not welcoming encountered what he felt were a number of threats of violence against himself and his son and he attempted to report to take the initial steps of securing police protection for himself and for his son and force family in the summary judgment response we showed that there were three separate instances where he went and then attempted to file reports of such conduct with the sheriff and with the undersheriff and in each instance he was told that they would not accept such a report now in contrast to that the sheriff had testified that the practice for the citizens of one county is that any person can come in and make a report about any matter that concerns them the sheriff said in his motion on samara judgment as any other citizens plaintiff has the fact number six of the brief so there was evidence of a number of instances and i think that the sequence and the context which is being argued in this case do not  fact that the only time they took a report from mr meddler is at a time when they were investigating him because they suspected him of burning down his own house in that case they asked him to write a statement and in that statement he included complaints he had previously attempted to make and that the sheriff and the undersheriff by his testimony which has corroboration from the testimony of other individuals that we and make its own decision about what facts the court should have found that is not authorized as part of the qualified immunity analysis and their qualified immunity the only proper purpose is to look at whether the law is clearly established and not to revisit the facts now that they cited scott versus terrorists but scott versus harris is a greatly different situation and it involved the question of where there was a videotape that showed an occurrence a high speed chase and whether or not the driver who is the who is running that lawsuit could create a factual issue by his testimony contradicting a videotape when the authenticity and accuracy of the videotape were not questioned then the supreme court said no you know they're short in circumstances where you simply cannot credit someone who is testifying contrary to an undisputed fact in this case or evidence that isn't just readable that d is not the situation where you have the testimony of different individuals here or the pat lancer trying to say you have to credit our view of the sequence our view of the evidence and ignore the contrary testimony  plight of as to matters that really are matters of credibility and the ordinary rule of summary judgment which implies some qualified immunity is that the court doesn't decide credibility issues it simply determines whether or disputed material facts so the analysis that the descendants of excuse me the up at pal lance are relying on is one that simply is not available to them on a moment at page's six and seven of their reply they summarize their arguments and say what the pilots are arguing is that the district court committed plain error with regard to its findings that there was evidence of discriminatory in that factual findings are blatantly contradicted by the record and that the contours of the legibly violated constitutional rights in this case were not clearly established the st two parts of that are simply factual arguments which the court does not honor entertain on a qualified immunity argument the last argument that they made and the only argument that i found reading through their brief is that  the law was not clearly established that you could infer discriminatory intent from differences and treatment they made the argument they chew could not use the multitude of case law from the circuit and elsewhere stating that differential treatment get can give rise to an inference of discriminatory intent because that wasn't decided in an equal protection setting that argument y rule that applies to civil rights case the court has repeated that many times they repeated in reserve to sanderson plumbing investor palace  arema the rule as the general evidence hurry rules the ordinary method by which to prove circumstantially discriminant care discriminatory tent apply just as well in civil rights cases as in the any other case and you don't create an issue of the law by saying that those evidentiary rules were not used in an equal protection case particularly when you don't cite any contrary rules when there ablative that the general method and matter of proof is different in this case than it is in any gathered next now the argument which i do not believe was made at the district court level and i don't recall saying in the briefing at this level of that cornelius does not apply and provide guidance or excuse me price price them does not apply guidance because it involves a domestic dispute simply does not accurately read the language in the case yes that was the context in which it arose but the court in both watson and in the price of corn ellison said that the issue was one that the state may not discriminate discriminate in providing police protection not just a particular aspect of police protection but may not discriminate and providing police protection that the argument of credited  that well there is no clearly established right to not be discriminated against on an irrational basis such as sexual orientation when it comes to investigating a case when it comes to receiving a complaint when it comes to going out on a welfare call when it comes to any of the other many activities which everyone understands constitute the provision of law enforcement the defendants follow the appellant's here never disputed that receiving a police report which is the starting point for getting police protection is part of law enforcement they didn't claim to not understand that as a matter of fact their argument throughout was not that we don't know that we have to provide this form of law enforcement their argument to the contrary was that they had not refused to receive reports that factual dispute is itself indicative of discriminatory intent because as indicated in reeves giving a false explanation he pretextual explanation itself can be sufficient to give rise to an inference that the real reason is discriminatory so when robertson says i'm a sheriff says th t the three instances identified by the plaintiff in this case he didn't actually come in and seek to make a report that is the traditional fact question that is decided by a jury and that's what judge heaton properly said below that they have essentially made their defense and it's shifted as as it's gone the district court level was essentially we didn't do it we didn't refuse to take a report he didn't offer to make her report that again is a factual question which has to be resolved in our favor  at the summary judgment level so we think that the only issues involved in this are the proper application of qualified immunity standards which is that the court will not refute their factual arguments except in the rare case where there is a videotape or something ouch that directly contradicts a key fact that we are presenting that's essential to our case that that doesn't exist here and what it well not on that matter on the time that that was st communicated all the report was not taken but but part of the evidence that we presented is that when no report was taken on that  compliant that mr gambler medlar attempted to go and file a report and was refused and there is some conflict in the record about whether it was the under share for the sheriff who refused to do it the sheriff saying that it was a undersheriff would refuse mr graham or medlars said it was the sheriff who refused but the testimony that i think the judge relied on was the sheriff's testimony that everything that the  everything that he had performed was in accordance with his expert expectations and what the sheriff wanted done in those circumstances so circumstantially the sh action is the refusal of both the sheriff and the undersheriff to take the initial step associated with law enforcement of receiving to report the step without which that's e mails follows nothing else takes just the fact that that occurred is not evidence of a concerted action and i'm not aware of any authority that would make it so in your mind yet when i go for can i go forward in answer th the issue that's in question i don't think there has to be evidence that they sat down and met together and said we're going to do this if their actions are common if they do the same thing in the same circumstances presented with the same issue then the inference is that they are doing what they had agreed to do particularly when each side in this case well part of that part of the elements requires an act in furtherance of the conspiracy and i think what you're saying that act is is the refusal to take the reports but you also have to show the conspiracy not simply the act in furtheran that in a common statement a statement made in a in a group setting within the hearing of robertson the statement was haven't we run you off yet on the same date location and mr robertson said to my client my best advice to you is to tell you and your son to lave we argued that that was circumstantial evidence of a common plan at least on the part of mr robertson