PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________ A.N., by and through her next friend, KATHERINE PONDER; KATHERINE PONDER, Plaintiffs - Appellees,

v. KEITH DARON SYLING, individually and in his former, o fficial capacity as Chief of Police, for the Alamogordo Police Department; ROGER SCHOOLCRAFT, individually and in his official capacity as De tective 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. No. 18-2112

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

_________________________________ FILED United States Court of Appeals Tenth Circuit 

### July 8, 2019
Elisabeth A. Shumaker Clerk of Court2 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, C ourvoisier Law, LLC, Alamogordo, New Mexico, for Plaintiffs-Appellees.

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

_________________________________ BRISCOE , Circuit Judge.

_________________________________ Defendants Keith Daron Syling, Roge r Schoolcraft, David Kunihir o and Audra Smith (collectively “Defendants” ) are officers or employees of the Alamogordo Police Department (APD) who were allegedly respons ible for the public release of information regarding the arrest of a juvenile, A.N, in violati on of New Mexico law. A.N. and her mother, Katherine Ponder, (collectiv ely “Plaintiff s”) brought this action against Defendants and others, a sserting claims under federal a nd state law. Defendants appeal the district c ourt’s denial of their motion t o dismiss Plaintiffs’ equal protection clai m under 42 U.S.C. § 198 3 based on qualifie d immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel h as 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 ther efore submitted without oral argument.3 BACKGROUND 1 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 M exico Children’s Court (Children’s Court) based on an affidavit in which an APD detective alleged A.N. had committed a delinquent ac t, that is, an act “that woul d be designated as a crime under the law if committed by an a dult,” N.M. Stat. Ann. § 32A- 2-3(A). Because A.N. was less than eighteen years ol d, 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 referencedin A.N.’s arrest

warrant. Four days after A.N.’s arrest, D efendant Kunihiro prepared a n ews release (“News Release”) regarding the a rrest of the two adults and A.N . which included the charges brought and the crime al legedly committed. The News Re lease identified A.N. by name, reported the crim e she had been charged with, and stated that she was sixteen and being held at a juve nile detention facility. At De fendant Smith’s suggestion, the News Release in cluded A.N.’s booking photo. De fendants Syling and Schoolcraft, APD’s Chief and Deput y Chief, respectively, report edly approved the News Release before it wa s released to the public.

1 The facts included in this sec tion are drawn fro m Plaintiffs’ corrected complaint and are accepted as tr ue for purposes of reviewing th e district court’s decision on Defendants’ motion to dismiss. See Wilson v. Montano , 715 F.3d 847, 852 (10th Cir. 2013).4 The APD, acting through Defendant Smith or another as-of-yet u nidentified APD employee, provided the News R elease to media and news organ izations and posted it on APD’s public Facebook page. By the next day, the News Release, including the information relate d to A.N. and her arrest, had b een picked up and published by various media organ izations, 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 gene rated more than 100 comments. Plaintiffs allege, and Defendant s have not disputed, that New M exico’s Children’s Code and other state rules and regulations provide t hat arrest and delinquency records relating to a child are confidential and th at information from these records may not b e disclosed directly or indirectly to th e public. See, e.g. , N.M. Stat. Ann. § 32A-2-32(A), (C ) (providing as part of New Me xico’s Delinquency Act that all records p ertaining to a child in the p ossession of the state department responsible for deli nquency proceedings “are confide ntial and shall not be disclosed directly or indir ectly to the public” by state off icials or others, including law enforcemen t officials); id. § 32A-2-32.1 (prohib iting state agencies, municipalities and others from “disclos[ing] on a public access web site maintained by it any information concerning . . . an arrest or detention o f a child [or] delinquency proceedings for a ch ild”). Because a child is defi ned 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-yea r-old, was ent itled to the benefit of5 these state law protections and th at Defendants violated one or more of these state statutes and rules in publicly d isclosing her confidential info rmation. 2
A.N.’s mother learned of the News Release shortly after APD pos ted it on Facebook. She called to complain about the release of informat ion about A.N. and was told by Defendant Smith that APD was allowed to release thi s information because A.N. at sixteen was “the age of consent,” and because s he had been physically arrested. Aplt. App . Vol. I at 57. But APD removed all references to A.N. from the Facebook post on th e following day, after receivi ng correspondence from an attorney representing A. N. and her mother requesting th e immediate removal of this information. Nonethele ss, information regarding A.N. a nd her arres t remains publicly available today on inte rnet sites maintained by media and other organizations that received t he News Release from APD. Plaintiffs brought this action ag ainst APD, the Defendants in t heir individual and official capacities, and othe rs, alleging that the disclosu re of A.N.’s name and the

2 After failing to dispute that their alleged actions violated New Mexico’s juvenile confidentiality laws in t he district court or in their opening brief in this court, Defendants argued for the first time in their reply brie f that one of the confidentiality rules cited by Pl aintiffs, N.M. Ct. R. 10-166 ( regarding public inspection and sealing of Childre n’s Court records), might not apply. It is not clear to us how or if this argument, eve n if it has mer it, would nega te 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 for feited this argument for purposes of appellate revie w 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 no t raised in opening brief on appeal).6 information concerning her arrest violated the Children’s Code and other New Mexico rules and regulations, vio lated their right to procedura l and substantive due process and to equal protection under the United States and New Mexico Constitutions, and constituted vari ous torts under New Mexico l aw. In support of their federal equal protection cl aim, Plaintiffs alleged Defend ants violated Plaintiffs’ right to equal protection under the law because they and the AP D, by official policy or actions, treated A.N. and othe r juvenile arrestees sixteen o r over differently from juvenile arrestees under sixt een with respect to publicly discl osing information about their arrest and delinquency, not withstanding New Mexico’s laws prohibiting the disclosure of this information fo r all children under the age o f eighteen. Plaintiffs sought damages and injunctiv e relief on this claim. APD, Defendants, and the other de fendants moved to dismiss a nu mber of Plaintiffs’ claims on different grounds. As relevant to this a ppeal, Defendants moved to dismiss Plaintiffs’ § 1983 e qual protection claim against th em in their individual capacities under Fed. R . Civ. P. 12(b)(6) based on qualified im munity. Although the district court granted Defendant s’ motion in most respects, it denied the motion as to Plaintiffs’ federal equal protec tion claim, concluding Defendan ts were not entitled to qualified immunity on it. Defenda nts timely appealed the distr ict court’s denial of their motion to dis miss this claim. 3

3 The APD and other defendants na med in Plaintiffs ’ complaint w ere originally parties to this appeal but were dismissed on Plainti ffs’ unopposed motion.7 DISCUSSION
A. Appellate Jurisdiction “Although an order denying a mo tion to dismiss based on qualifi ed immunity is not a final judgment, this c ourt has jurisdiction under 28 U .S.C. § 1291 to review the order to the extent that i t turns on an issue of law.” Wilson , 715 F.3d at 852 (internal quotation ma rks omitted). In response to our order d irecting the parties to address the jurisdictional issue, Defendants asserted their app eal turns on an issue of law because the facts alleged by Plaintiffs are taken as true f or purposes of their Rule 12(b)(6) motion and the issu e on appeal—whether the distri ct 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 constitu tional or statutory right was clearly established at the time the defendant acted p resents a purely legal question.” (internal quotation marks omitte d)), and therefore c onclude we have jurisdiction to review the dist rict court’s denial of qualified immunity on Plaintiffs’ equal protection claim.
B. Standard of Review “The doctrine of qualified imm unity protects government officia ls from liability for civil damages ins ofar as their conduct does not v iolate clearly established statutory or constitutional right s of which a reasonable person would have known.”
Pearson v. Callahan , 555 U.S. 223, 231 (2009) (inter nal quotation marks omitted). Accordingly, when a defendant r aises a qualified immunity defen se in a8 Rule 12(b)(6) motion, “the cour t must dismiss th e action unless the plaintiff shows that (1) the defendant violated a statutory or constitutional r ight, 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 distric t court’s denial of a motion to dismiss based on qualif ied immunity de novo, acceptin g as true all wellpleaded factual allegations in th e complaint and viewing the al legations in the light most favorable to the non-moving party.” Wilson , 715 F.3d at 852.
C. Analysis Though the issue on appeal is wh ether Plaintiffs’ constitutiona l right to equal protection was clearly establish ed at the time in question, a b rief discussion of the contours of this right and Plaintiffs’ equa l protection claim w ill assist in that

assessment. 1. The right to equal protection The Equal Protection Clause of th e Fourteenth Amendment provide s that no State shall “deny to any person w ithin its jurisdiction the equ al protection of the laws.” U.S. Const. amend. XIV, § 1. It is “essentially a dire ction that all persons similarly situated shoul d 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 jurisdictio n against intentional and arbitrary discrimination, whe ther occasioned by express ter ms of a statute or by its improper execution through duly constituted agents,” Vill. of Willowbrook v. Olech , 528 U.S. 562, 564 (2000) (per cu riam) (internal quotation mar ks omitted). An9 equal protection clai m may be asserted w ith 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 s imilarly situated and that the re is no rational basis for the difference in treat ment” states a claim for violation of he r right to equal protection. Olech , 528 U.S. at 564. The district court held Plaintif fs sufficiently stated an equal protection claim because they alleged Defendants, intentionally and without a ra tional basis, differentiated between similarly situated juvenile arrestees, A .N. and other sixteenand seventeen-year-old arrestees and arrestees younger than six teen, in deciding whether to publicly disclose info rmation regarding their arrest and delinquency even though New Mexico law prohibits t he disclosure of such informat ion for all children under the age of eighteen. 4 Defendants did not dispute that this alleged conduct violated Plaintiffs’ constitutiona l right to equal protection i n their motion to dismiss or challenge the district court’ s ruling on this issue in its o pening brief. 5 Instead, Defendants contend onl y that it was not clearly established whe n they publicly

4 Plaintiffs allege Defendants’ a ctions violated the equal prot ection rights of both A.N. and her mother. The dis trict court did not specifica lly address this contention in its decision and Defendants did not challenge it on appeal. Accordingly, we assume without d eciding that Defendants’ action s violated both Plaintiffs’ constitutional ri ghts to equal protection.

5 Defendants suggest in their repl y brief for the first time th at that no violation occurred because it was not irrati onal for them to treat an old er juvenile like A.N. differently from younger juvenile s in deciding whether to relea se her confidential information. But Defendants fo rfeited appellate review of this contention by failing to raise it before the district court or i n their opening brief to this court. See Parker Excavating , 863 F.3d at 1224; Bronson , 500 F.3d at 1104.10 disclosed A.N.’s confidential in formation in violation of New M exico law that doing so would violate Plaintiffs’ e qual 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 u nderstood that what he is doing violates that right.”
Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (per c uriam) (internal quotation m arks omitted). “A Supreme Court or T enth 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 re quired so long as “existing pre cedent [has] placed the statutory or constitutional question beyond debate,” White v. Pauly , 137 S. Ct. 548, 551 (2017) (per curi am) (internal quotati on 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 b e a published case involving id entical facts; otherwise we would be required to find qualified immunity where ver we have a new fact pattern” (internal quotati on marks omitted)). The disposi tive question in all cases is whether “the violative nature” of the particular condu ct 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 eq ual protection under the law was sufficiently c lear, based on the authority ci ted above, that Defendants had notice that public ly disclosing confidential arr est and other11 information regarding some juven iles, like A.N., but not others , in direct violation of New Mexico law, would violate Pl aintiffs’ equal protection righ ts. Defendants challenge this conclusion, argui ng this clearly established law is too general for them to have understood that their act ions violated A.N.’s equal pro tection rights. Instead, they assert they are entitled to qualified immunity because the re is no Supreme Court or Tenth Circuit decision “holdi ng that a disclosure of informa tion about an older juvenile’s arrest, when similar information about younger juven iles is not disclosed, violates the Equal Protection Cl ause.” Aplts.’ Opening Br. at 19. We are not persuaded. Defendant s’ argument relies on the Supre me Court’s decisions in Mullenix v. Luna and White v. Pauly , which they read as mandating that a constitutional right is only cl early established if there is “a Supreme Court or Tenth Circuit opinion finding a constitu tional violation on facts sim ilar to those alleged in the complaint.” Id. at 18. Defendants base this r eading 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 (i nternal quotation marks omitted); see Mullenix , 136 S. Ct. at 308. But Def endants 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 recogn ized in Pauly , as it has in decisions before and afte r it, that “general statements of the law are not inherently incapable of giving fair and clear warning to office rs” that their conduct12 violates a constitutional right, a nd that such statements provi de the required notice when “the unlawfulness” of thei r conduct is “apparent” from the pre-existing law. Pauly , 137 S. Ct. at 552 (interna l 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 statem ents of the law can clearly es tablish a right for qualified immunity purposes if th ey 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 i n 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 r ule prohibiting intentional, arbitrary and unequal treatment of similarly situa ted individuals under the law applies with obvious clarity to Defendants’ alleged actions and policy of discriminating between A.N. and o ther sixteen- and seventeen-ye ar-old juvenile arrestees and younger juvenile a rrestees in complying with New Mexico’s laws prohibiting the public disclosure of juvenile arrest and delinq uency information. This rule is not too general to defin e clearly established law becau se “the unlawfulness” of Defendants’ conduct “follow[s] imm ediately from the conclusion” that this general rule exists and is c learly established. Dist. of Columbia v. Wesby , 138 S. Ct. 577, 590

6 We relied on these principles in a recent decision to hold th at a general rule of law was sufficiently specifi c, and applied with such obvious clarity, that it constituted clearly established law placing the defendants on n otice that their actions violated the plaintiff’s constitutional right. See Halley , 902 F.3d at 1149.13 (2018) (internal quotation marks omitted). As a result, Defend ants violated Plaintiffs’ clearly establishe d right to equal protection by th eir alleged actions. 7 Furthermore, our conclusion that Plaintiffs’ equal protection r ights were clearly established is consistent with the purpose underlying t he Supreme Court’s statement of the “clearly es tablished law” standard in Mullenix and Pauly . As the Court explained in Pauly , the requirement that clea rly established law be “particularized to the facts of t he case” is intended to preven t plaintiffs from “convert[ing] the rule of qualifie d immunity into a rule of vir tually unqualified liability simply by alleging viol ation of extremely abstract ri ghts.” Pauly , 137 S. Ct. at 552 (ellipsis and internal quot ation marks omitted). This c oncern is particularly acute in Fourth Amendment cases, such as Mullenix and Pauly , because of the “imprecise nature” of the relevan t legal standard s and the fact -intensive assessment required to determine wheth er a violation occurred. Wesby , 138 S. Ct. at 590 (stressing need for specificity in identifying clearly establis hed Fourth Amendment standards); see Mullenix , 136 S. Ct. at 308 (specificity “ is especially important in th e

7 The district court also cited Lamb v. Brown , 456 F.2d 18 (10th Cir. 1972), in support of its ruling that Plain tiffs had alleged a violation o f their clearly established equal protection rights. In Lamb , we held an Oklahoma statute that defined “juveniles” for purposes of crim inal proceedings as males under sixteen years of age and females under eighteen years of age violated the equal prot ection rights of males over sixteen because there was no logical constitutional justif ication for this disparate treatment of males and fe males of the same age. See id. at 19-20. This decision supports our conclusion that A.N .’s right to equal protection w as clearly established, because it provides notice of s omething that should go without saying, which is that equal protection princi ples apply to the tre atment of juveniles in criminal proceedings, just as they do to individuals in other settings.14 Fourth Amendment context” because “it is sometimes difficult fo r an officer to determine how the relevant legal doctrine, here excessive force , will apply to the factual situation the officer c onfronts” (internal alternations and quotation marks omitted)). In contrast, the clearly establi shed standard for determining w hether an official has violated a plaintiff’s ri ght to equal protection under the law is not extremely abstract or imprecise under the facts alleged here, but rather is relatively straightforward and not difficu lt 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 pr otection under the law if they intentionally and without a rational basis differ entiated between her and similar ly 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 wa s violating” Plaintiffs’ equal protection rights,
Kisela , 138 S. Ct. at 1153 (internal quot ation marks omitted), by the se actions.
CONCLUSION For the reasons stated above, we AFFIRM the district court’s d enial of qualified immunity on Plaintiffs ’ equal protection claim. We a lso reaffirm the provisional order granting the pa rties’ motions to file their a ppellate briefs and appendices under seal with redacte d copies filed in the public record.