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, official capacity as 

Chief of Police, for the Alamogordo 

Police Department; ROGER 

SCHOOLCRAFT, individually and in his 

official capacity as Detective 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 Court
2 

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, Courvoisier Law, LLC, Alamogordo, New Mexico, 

for Plaintiffs-Appellees. 

_________________________________ 

Before BRISCOE, McKAY, and LUCERO, Circuit Judges. 

_________________________________ 

BRISCOE, Circuit Judge. 

_________________________________ 

Defendants Keith Daron Syling, Roger Schoolcraft, David Kunihiro and Audra 

Smith (collectively “Defendants”) are officers or employees of the Alamogordo 

Police Department (APD) who were allegedly responsible for the public release of 

information regarding the arrest of a juvenile, A.N, in violation of New Mexico law. 

A.N. and her mother, Katherine Ponder, (collectively “Plaintiffs”) brought this action 

against Defendants and others, asserting claims under federal and state law. 

Defendants appeal the district court’s denial of their motion to dismiss Plaintiffs’ 

equal protection claim under 42 U.S.C. § 1983 based on qualified immunity. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 *

 After examining the briefs and appellate record, this panel has 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 therefore 

submitted without oral argument. 
3 

BACKGROUND1

 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 Mexico Children’s 

Court (Children’s Court) based on an affidavit in which an APD detective alleged 

A.N. had committed a delinquent act, that is, an act “that would be designated as a crime 

under the law if committed by an adult,” N.M. Stat. Ann. § 32A-2-3(A). Because A.N. 

was less than eighteen years old, 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 referenced in A.N.’s arrest 

warrant. 

 Four days after A.N.’s arrest, Defendant Kunihiro prepared a news release 

(“News Release”) regarding the arrest of the two adults and A.N. which included the 

charges brought and the crime allegedly committed. The News Release identified 

A.N. by name, reported the crime she had been charged with, and stated that she was 

sixteen and being held at a juvenile detention facility. At Defendant Smith’s 

suggestion, the News Release included A.N.’s booking photo. Defendants Syling and 

Schoolcraft, APD’s Chief and Deputy Chief, respectively, reportedly approved the 

News Release before it was released to the public. 

 1

 The facts included in this section are drawn from Plaintiffs’ corrected 

complaint and are accepted as true for purposes of reviewing the 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 unidentified 

APD employee, provided the News Release to media and news organizations and 

posted it on APD’s public Facebook page. By the next day, the News Release, 

including the information related to A.N. and her arrest, had been picked up and 

published by various media organizations, 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 generated more than 100 comments. 

Plaintiffs allege, and Defendants have not disputed, that New Mexico’s 

Children’s Code and other state rules and regulations provide that arrest and 

delinquency records relating to a child are confidential and that information from 

these records may not be disclosed directly or indirectly to the public. See, e.g., 

N.M. Stat. Ann. § 32A-2-32(A), (C) (providing as part of New Mexico’s 

Delinquency Act that all records pertaining to a child in the possession of the state 

department responsible for delinquency proceedings “are confidential and shall not 

be disclosed directly or indirectly to the public” by state officials or others, including 

law enforcement officials); id. § 32A-2-32.1 (prohibiting state agencies, 

municipalities and others from “disclos[ing] on a public access web site maintained 

by it any information concerning . . . an arrest or detention of a child [or] 

delinquency proceedings for a child”). Because a child is defined 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-year-old, was entitled to the benefit of 
5 

these state law protections and that Defendants violated one or more of these state 

statutes and rules in publicly disclosing her confidential information.2

A.N.’s mother learned of the News Release shortly after APD posted it on 

Facebook. She called to complain about the release of information about A.N. and 

was told by Defendant Smith that APD was allowed to release this information 

because A.N. at sixteen was “the age of consent,” and because she had been 

physically arrested. Aplt. App. Vol. I at 57. But APD removed all references to 

A.N. from the Facebook post on the following day, after receiving correspondence 

from an attorney representing A.N. and her mother requesting the immediate removal 

of this information. Nonetheless, information regarding A.N. and her arrest remains 

publicly available today on internet sites maintained by media and other 

organizations that received the News Release from APD. 

Plaintiffs brought this action against APD, the Defendants in their individual 

and official capacities, and others, alleging that the disclosure of A.N.’s name and the 

 2

 After failing to dispute that their alleged actions violated New Mexico’s 

juvenile confidentiality laws in the district court or in their opening brief in this 

court, Defendants argued for the first time in their reply brief that one of the 

confidentiality rules cited by Plaintiffs, N.M. Ct. R. 10-166 (regarding public 

inspection and sealing of Children’s Court records), might not apply. It is not clear 

to us how or if this argument, even if it has merit, would negate 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 forfeited this argument 

for purposes of appellate review 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 not raised in 

opening brief on appeal). 
6 

information concerning her arrest violated the Children’s Code and other New 

Mexico rules and regulations, violated their right to procedural and substantive due 

process and to equal protection under the United States and New Mexico 

Constitutions, and constituted various torts under New Mexico law. In support of 

their federal equal protection claim, Plaintiffs alleged Defendants violated Plaintiffs’ 

right to equal protection under the law because they and the APD, by official policy 

or actions, treated A.N. and other juvenile arrestees sixteen or over differently from 

juvenile arrestees under sixteen with respect to publicly disclosing information about 

their arrest and delinquency, notwithstanding New Mexico’s laws prohibiting the 

disclosure of this information for all children under the age of eighteen. Plaintiffs 

sought damages and injunctive relief on this claim. 

APD, Defendants, and the other defendants moved to dismiss a number of 

Plaintiffs’ claims on different grounds. As relevant to this appeal, Defendants moved 

to dismiss Plaintiffs’ § 1983 equal protection claim against them in their individual 

capacities under Fed. R. Civ. P. 12(b)(6) based on qualified immunity. Although the 

district court granted Defendants’ motion in most respects, it denied the motion as to 

Plaintiffs’ federal equal protection claim, concluding Defendants were not entitled to 

qualified immunity on it. Defendants timely appealed the district court’s denial of 

their motion to dismiss this claim.3

 3

 The APD and other defendants named in Plaintiffs’ complaint were 

originally parties to this appeal but were dismissed on Plaintiffs’ unopposed motion. 
7 

DISCUSSION

A. Appellate Jurisdiction

“Although an order denying a motion to dismiss based on qualified immunity 

is not a final judgment, this court has jurisdiction under 28 U.S.C. § 1291 to review 

the order to the extent that it turns on an issue of law.” Wilson, 715 F.3d at 852 

(internal quotation marks omitted). In response to our order directing the parties to 

address the jurisdictional issue, Defendants asserted their appeal turns on an issue of 

law because the facts alleged by Plaintiffs are taken as true for purposes of their 

Rule 12(b)(6) motion and the issue on appeal—whether the district 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 constitutional or statutory 

right was clearly established at the time the defendant acted presents a purely legal 

question.” (internal quotation marks omitted)), and therefore conclude we have 

jurisdiction to review the district court’s denial of qualified immunity on Plaintiffs’ 

equal protection claim. 

B. Standard of Review

“The doctrine of 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, 231 (2009) (internal quotation marks omitted). 

Accordingly, when a defendant raises a qualified immunity defense in a 
8 

Rule 12(b)(6) motion, “the court must dismiss the action unless the plaintiff shows 

that (1) the defendant violated a statutory or constitutional right, 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 district court’s denial of a 

motion to dismiss based on qualified immunity de novo, accepting as true all wellpleaded factual allegations in the complaint and viewing the allegations in the light 

most favorable to the non-moving party.” Wilson, 715 F.3d at 852. 

C. Analysis 

Though the issue on appeal is whether Plaintiffs’ constitutional right to equal 

protection was clearly established at the time in question, a brief discussion of the 

contours of this right and Plaintiffs’ equal protection claim will assist in that 

assessment. 

1. The right to equal protection 

The Equal Protection Clause of the Fourteenth Amendment provides that no 

State shall “deny to any person within its jurisdiction the equal protection of the 

laws.” U.S. Const. amend. XIV, § 1. It is “essentially a direction that all persons 

similarly situated should 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 jurisdiction against intentional 

and arbitrary discrimination, whether occasioned by express terms of a statute or by 

its improper execution through duly constituted agents,” Vill. of Willowbrook v. 

Olech, 528 U.S. 562, 564 (2000) (per curiam) (internal quotation marks omitted). An 
9 

equal protection claim may be asserted with 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 similarly situated and that there is no rational basis for 

the difference in treatment” states a claim for violation of her right to equal 

protection. Olech, 528 U.S. at 564. 

The district court held Plaintiffs sufficiently stated an equal protection claim 

because they alleged Defendants, intentionally and without a rational basis, 

differentiated between similarly situated juvenile arrestees, A.N. and other sixteenand seventeen-year-old arrestees and arrestees younger than sixteen, in deciding 

whether to publicly disclose information regarding their arrest and delinquency even 

though New Mexico law prohibits the disclosure of such information for all children 

under the age of eighteen.4 Defendants did not dispute that this alleged conduct 

violated Plaintiffs’ constitutional right to equal protection in their motion to dismiss 

or challenge the district court’s ruling on this issue in its opening brief.5 Instead, 

Defendants contend only that it was not clearly established when they publicly 

 4

 Plaintiffs allege Defendants’ actions violated the equal protection rights of 

both A.N. and her mother. The district court did not specifically address this 

contention in its decision and Defendants did not challenge it on appeal. 

Accordingly, we assume without deciding that Defendants’ actions violated both 

Plaintiffs’ constitutional rights to equal protection. 

5

 Defendants suggest in their reply brief for the first time that that no violation 

occurred because it was not irrational for them to treat an older juvenile like A.N. 

differently from younger juveniles in deciding whether to release her confidential 

information. But Defendants forfeited appellate review of this contention by failing 

to raise it before the district court or in 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 information in violation of New Mexico law that doing 

so would violate Plaintiffs’ equal 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 understood that what he is doing violates that right.” 

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks 

omitted). “A Supreme Court or Tenth 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 required so long as “existing precedent [has] placed the 

statutory or constitutional question beyond debate,” White v. Pauly, 137 S. Ct. 548, 

551 (2017) (per curiam) (internal quotation 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 be a published case involving identical facts; 

otherwise we would be required to find qualified immunity wherever we have a new 

fact pattern” (internal quotation marks omitted)). The dispositive question in all 

cases is whether “the violative nature” of the particular conduct 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 equal protection 

under the law was sufficiently clear, based on the authority cited above, that 

Defendants had notice that publicly disclosing confidential arrest and other 
11 

information regarding some juveniles, like A.N., but not others, in direct violation of 

New Mexico law, would violate Plaintiffs’ equal protection rights. Defendants 

challenge this conclusion, arguing this clearly established law is too general for them 

to have understood that their actions violated A.N.’s equal protection rights. Instead, 

they assert they are entitled to qualified immunity because there is no Supreme Court 

or Tenth Circuit decision “holding that a disclosure of information about an older 

juvenile’s arrest, when similar information about younger juveniles is not disclosed, 

violates the Equal Protection Clause.” Aplts.’ Opening Br. at 19. 

We are not persuaded. Defendants’ argument relies on the Supreme Court’s 

decisions in Mullenix v. Luna and White v. Pauly, which they read as mandating that 

a constitutional right is only clearly established if there is “a Supreme Court or Tenth 

Circuit opinion finding a constitutional violation on facts similar to those alleged in 

the complaint.” Id. at 18. Defendants base this reading 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 (internal quotation 

marks omitted); see Mullenix, 136 S. Ct. at 308. But Defendants 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 recognized in Pauly, as it 

has in decisions before and after it, that “general statements of the law are not 

inherently incapable of giving fair and clear warning to officers” that their conduct 
12 

violates a constitutional right, and that such statements provide the required notice 

when “the unlawfulness” of their conduct is “apparent” from the pre-existing law. 

Pauly, 137 S. Ct. at 552 (internal 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 statements of the law can clearly establish a right for 

qualified immunity purposes if they 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 in 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 rule prohibiting 

intentional, arbitrary and unequal treatment of similarly situated individuals under the 

law applies with obvious clarity to Defendants’ alleged actions and policy of 

discriminating between A.N. and other sixteen- and seventeen-year-old juvenile 

arrestees and younger juvenile arrestees in complying with New Mexico’s laws 

prohibiting the public disclosure of juvenile arrest and delinquency information. This 

rule is not too general to define clearly established law because “the unlawfulness” of 

Defendants’ conduct “follow[s] immediately from the conclusion” that this general 

rule exists and is clearly established. Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 

 6

 We relied on these principles in a recent decision to hold that a general rule 

of law was sufficiently specific, and applied with such obvious clarity, that it 

constituted clearly established law placing the defendants on notice 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, Defendants violated 

Plaintiffs’ clearly established right to equal protection by their alleged actions.7

Furthermore, our conclusion that Plaintiffs’ equal protection rights were 

clearly established is consistent with the purpose underlying the Supreme Court’s 

statement of the “clearly established law” standard in Mullenix and Pauly. As the 

Court explained in Pauly, the requirement that clearly established law be 

“particularized to the facts of the case” is intended to prevent plaintiffs from 

“convert[ing] the rule of qualified immunity into a rule of virtually unqualified 

liability simply by alleging violation of extremely abstract rights.” Pauly, 137 S. Ct. 

at 552 (ellipsis and internal quotation marks omitted). This concern is particularly 

acute in Fourth Amendment cases, such as Mullenix and Pauly, because of the 

“imprecise nature” of the relevant legal standards and the fact-intensive assessment 

required to determine whether a violation occurred. Wesby, 138 S. Ct. at 590 

(stressing need for specificity in identifying clearly established Fourth Amendment 

standards); see Mullenix, 136 S. Ct. at 308 (specificity “is especially important in the 

 7

 The district court also cited Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972), in 

support of its ruling that Plaintiffs had alleged a violation of their clearly established 

equal protection rights. In Lamb, we held an Oklahoma statute that defined 

“juveniles” for purposes of criminal proceedings as males under sixteen years of age 

and females under eighteen years of age violated the equal protection rights of males 

over sixteen because there was no logical constitutional justification for this disparate 

treatment of males and females of the same age. See id. at 19-20. This decision 

supports our conclusion that A.N.’s right to equal protection was clearly established, 

because it provides notice of something that should go without saying, which is that 

equal protection principles apply to the treatment of juveniles in criminal 

proceedings, just as they do to individuals in other settings. 
14 

Fourth Amendment context” because “it is sometimes difficult for an officer to 

determine how the relevant legal doctrine, here excessive force, will apply to the 

factual situation the officer confronts” (internal alternations and quotation marks 

omitted)). 

In contrast, the clearly established standard for determining whether an official 

has violated a plaintiff’s right to equal protection under the law is not extremely 

abstract or imprecise under the facts alleged here, but rather is relatively 

straightforward and not difficult 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 protection under the law if they intentionally and 

without a rational basis differentiated between her and similarly 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 was violating” Plaintiffs’ equal protection rights, 

Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted), by these actions. 

CONCLUSION

 For the reasons stated above, we AFFIRM the district court’s denial of 

qualified immunity on Plaintiffs’ equal protection claim. We also reaffirm the 

provisional order granting the parties’ motions to file their appellate briefs and 

appendices under seal with redacted copies filed in the public record.