* District Judge of the Western District of Louisiana, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-31317

CHERIE SHIPP, JERRY GATES,

Plaintiffs-Appellees,

versus

ROYCE L. MCMAHON, Sheriff of Webster Parish, Louisiana

STEVE CROPPER, Webster Parish Sheriff’s Office Deputy

BETTY SHIPP, Webster Parish Sheriff’s Office Deputy

THEODORE L. RISER, Sheriff of Webster Parish Louisiana,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Louisiana, Shreveport Division

December 5, 2000

ON PETITION FOR REHEARING

(Opinion January 1, 2000, 5 th Cir., 2000, ____F.3d____)

Before POLITZ and STEWART, Circuit Judges, and LITTLE * , District Judge.

CARL E. STEWART, Circuit Judge:

The petition for panel rehearing is GRANTED. The opinion, 199 F.3d 256 (5 th Cir. 2000),

is VACATED, and the following opinion is substituted:2

This case involves the defendants-appellants’ challenge to the district court’s denial of their

motion to dismiss the plaintiffs-appellees’ claims brought under 42 U.S.C. § 1983 (1994) and state

tort law. The defendants-appellants moved to dismiss the plaintiffs-appellees’ claims under

Fed.R.Civ.Proc. 12(b)(6) claiming qualifi e d immunit y. The district court denied the defendantsappellants’ motion. For the reasons stated below, we REVERSE the district court’s ruling.

F ACTUAL AND P ROCEDURAL H ISTORY

Plaintiff-appellee Cherie Shipp (“Shipp”) was involved in an abusive marriage with her

husband, Dalton Shipp (“Dalton”) in Shreveport, Louisiana. To escape her husband’s abuse, Shipp

moved into her sister’s home near Minden, Louisiana. When Dalton learned of Shipp’s whereabouts,

he made several threatening phone calls to her, which she reported to deputies of the Webster Parish

Sheriff’s Office (“WPSO”). On several occasions, Dalton also drove by the home of Shipp’s sister.

Shipp reported these “drive-bys” to defendant-appellant Steve Cr opper (“Cropper”), a Webster Parish

deputy. Cropper informed Shipp that he would do nothing about Dalton.

Shipp then moved to her cousin’s residence in Dubberly, which is also in Webster Parish.

Dalton went to the house in Dubberly, attacked Shipp by beating her with a telephone that he ripped

from the wall, and hit her with his fist. He forewarned Shipp that if she reported the incident to law

enforcement, she would “find herself in the hospital.” After physically abusing her, Dalt o n t ook

some items belonging to Shipp and her cousin, placed them in his automobile, and drove off. Despite

Dalton’s admonition, Shipp called the WPSO. Deputy Cropper came to the scene and took a report,

but made no immediate effort to arrest Dalton.

Several days later, Deputy Cropper approached Dalton about returning the items that he took

from the residence of Shipp’s cousin, but did not arrest him. Afterward, Dalton was allowed to turn3

himself in, and he was charged with simple criminal damage to property and si mple battery , both

misdemeanor offenses. As a condition of bail, the court ordered that Dalton stay away from Shipp.

Dalton pleaded guilty to both offenses, and the court ordered him to seek immediate counseling. The

court set sentencing for a later date.

Shipp obtained a temporary restraining order (“TRO”) that prohibited Dalton from having any

contact with her. After Deputy Cropper served Dalton with the TRO, Dalton made several abusive

and threatening phone calls to Shipp, which Shipp reported to the WPSO. She was told that nothing

cou ld be do ne about the phone calls, and despite his violations of the TRO and the bail order, the

WPSO did not arrest Dalton.

Dalton failed to appear in court for sentencing on the criminal charges, and a bench warrant

for his arrest was issued. Although Dalton eventually appeared in court to answer other unrelated

criminal charges at the W ebster Parish courthouse, deputies nonetheless failed to arrest him for

violating the TRO and conditions of bail.

Approximately four months after Dalton failed to appear at the scheduled sentencing hearing

for the offenses committed against Shipp, Dalton tracked down Shipp at her other sister’s house and

convinced Shipp to come out of the house and get into his car. Once in the car, Dalton sped away

with Shipp’s feet dragging the ground. She attempted to jump out of the car, but Dalton grabbed her

by the head and drove Shipp to a house that he had leased in Webster Parish.

Shipp’s sister telephoned her mother, Carolyn Gates, who reported the incident to the WPSO.

Defendant-appellant Betty Shipp, Dalton’s mother, was the dispatcher who received the phone call.

Apparently, she hung up the telephone without conducting an in quiry into the particulars of the

incident before advising Deputy Cropper of the call. He chose to take no action, despite his4

knowledge of Dalton’s propensity for violent behavior. Neither Cropper nor Betty Shipp dispatched

information to alert the other deputies.

After Betty Shipp terminated the phone call , Shipp’s mother called the Minden Police

Department, which dispatched an emergency alert and radioed the WPSO. Shipp’s mother then

picked up Jerry Gates, Shipp’s father, and drove to the Webster Parish courthouse. They observed

Deputy Cropper standing idly outside the courthouse. Cropper advised Mr. Gates that he intended

to do nothing to apprehend Dalton. After they discussed where Dalton may be located with Shipp,

Mr. Gates denounced Cropper’s unwillingness to act, and told him that he was heading to Dalton’s

leased house. Deputy Cropper and another deputy pursued Mr. Gates.

Subsequently, Mr. Gates and four deputies arrived at the house. When the deputies made no

effort to enter the ho use, Mr. Gates attempted to approach the house, but was restrained by the

deputies. Cropper then knocked on the door, explaining that he had to ascertain whether Shipp was

voluntarily in the house with Dalton. No one inside answered Cropper’s knock.

At Dalton’s house, Mr. Gates ob served what he believed to be a silhouette on a curtain

showing a person with a gun. Mr. Gates again attempted to approach the house, but the deputies

ordered him back. A shot rang out from the house and the deputies immediately retreated to their

vehicles to put on armored vests. Another shot rang out as the deputies remained crouched behind

their cars.

Inside the house, Dalton had raped Shipp. After shooting her in the chest with a 12-gauge

shotgun, he shot himself. Shipp staggered to the door and unsuccessfully attempted to open it. She

screamed for help, but none of the deputies responded. Shipp eventually staggered out a side door

holding her entrails in her hands.1 Sheriff Riser succeeded Sheriff McMahon after the rape and shooting incident.

5 As she exited the house, Shipp’s mother and a deputy raced to her aid. Mr. Gates also dashed

toward Shipp, but Cropper abruptly intercepted him. At Cropper’s order, another deputy handcuffed

Mr. Gates and removed him from the scene.

Shipp was transported to a hospital, where she underwent emergency surgery. She was

hospitalized for several weeks, followed by rehabilitation, therapy, and more surgery . Dalton

recovered from his wounds and was subsequently charged with aggravated rape, aggravated

kidnapping, and atte mpt ed second degree murder. Following the incident, the WPSO took no

disciplinary action against any deputy.

In February 1997, Shipp a nd Mr. Gates filed an action under 42 U.S.C. § 1983 in federal

district court against Sheriffs Royce McMahon and Theodore Riser, 1 and WPSO deputies Shipp and

Cropper (“defendants”) . Shipp and Mr. Gates claimed that the defendants violated their federal

constitutional due process and Equal Protection rights. Shipp and Gates also alleged claims based

o n Lo uisiana state tort law. The defendants moved to dismiss under F E D R.C IV .P. 12(b)(6) . In

January 1998, the magistrate judge filed a report recommending that: (1) all o f Shipp’s federal

constitutional claims, with the exception of the Equal Protecti on claim and the related failure to train

claim, be dismissed with prejudice; (2) all federal claims by plaintiff Jerry Gates be dismissed with

prejudice, and (3) all claims against Sheriff Theodore L. Riser be dismissed with prejudice, and (4)

the motion be denied in all other aspects. The district court adopted the magistrate judge’s findings

and recommendation. The district court also exercised supplemental jurisdiction over the state tort

law claims and ordered Shipp to file a reply to the assertion of qualified immunity by deputies

Cropper and Shipp. After reviewing Shipp’s reply to the qualified immunity issue, the district court6

found that Shipp had met the pleading requirements articulated in Schultea v. Wood , 47 F.3d 1427

(5 th Cir. 1995) (en banc), and denied the defendants’ motion to dismiss. The defendants now appeal

the district court’s ruling denying their motion to dismiss based on qualified immunity.

S TANDARD OF R EVIEW

Denials of motions to dismiss on qualified immunity grounds are appealable collateral orders

when based on issues of law. M itchell v. Forsyth

, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L. Ed. 2d

411 (1985); Champagne v. Jefferson Parish Sheriff’s Office

, 188 F.3d 312 (5 th Cir. 1999)(per curiam).

We review the dist

rict court ’s ruling under Rule12(b)(6) d e novo

. L owrey v. Texas A & M

University System

, 117 F.3d 242, 246 (5 th Cir. 1997). A motion to dismiss under Rule 12(b)(6) "is

viewed with disfavor and is rarely gr anted." K aiser Aluminum & Chem. Sales v. Avondale

Shipyards

, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor

of the plaint iff, and all facts pleaded in the complaint must be taken as true. C ampbell v. Wells Fargo

Bank

, 781 F.2d 440, 442 (5th Cir.1986). The district court may not dismiss a complaint under Rule

12(b)(6) "unless it appears beyond doubt that the plaint iff can prove no set of facts in support of his

claim which would e nt it le him to relief." C onley v. Gibson

, 355 U.S. 41, 45-46, 78 S. Ct. 99,

101-02, 2 L. Ed. 2d 80 (1 957). This strict standard of review under Rule 12(b)(6) has been

summarized as follows: "The question therefore is whether in the light most favorable to the plaintiff

and with every doubt resolved in h is behalf, the complaint states any valid claim for relief." 5

C HARLES A. W RIGHT & A RTHUR R. M ILLER

, F EDERAL P RACT ICE AND P ROCEDURE § 1357 (2 nd

ed.1990).

D ISCUSSION7

The defendants argue that they are entitled to qualified immunit y because Shipp failed to plead

that the defendants violated clearly established law. In other words, the defendants maintain that

when the alleged improper conduct occurred, there existed no clearly established law recognizing an

Equal Protecti on claim based on law enforcement policies, practices, and customs toward domestic

abuse cases.

Qualified Immunity

The qualified immunit

y analysis involves a two-step process. First, we examine whether the

plaint iff has alleged a violation of a clearly established constitutional right. S ee Siegert v. Gilley

, 500

U.S. 226, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991); W ooley v. City of Baton Rouge

, 211 F.3d

913, 919 (5 th Cir. 2000). If the court determines that the plaintiff has alleged a violation of a clearly

established constitutional right, the next step is to determine whether the official’s conduct was

objectively reasonable at the time of the incident. S anchez v. Swyden

, 139 F.3d 464, 467 (5 th Cir.

1998); Mangieri v. Clifton , 29 F.3d 1012 (5 th Cir. 1994). Thus, if the pleadings on their face show

an unreasonable violation of a clearly establish constitutional right, the defense of qualified immunit y

will not sustain a motion to dismiss under Rule 12(b)(6).

Clearly Established Right

When evaluating a claim of qualified immunit y under the “clearly established right” prong, a

court first mu st det ermine whether the “‘plaintiff has alleged the deprivation of an actual

constitutional right at all, and if so, proceed to determine whether that right was clearly established

at the time of the alleged violation.’” Wilson v. Layne , 526 U.S. 603, 609, 119 S. Ct. 1692, 1697,

143 L. Ed. 2d 818 (1999) (quoting Conn v. Gabbert , 526 U.S. 286, 119 S. Ct. 1292, 1295, 143 L.

Ed. 2d 399 (1999)). Thus, we begin our inquiry by addressing domestic assault and Equal Protection.2 S ee Gender Based Discrimination in Police Reluctance to Respond to Domestic Assaul t

Complaints , 75 G EO . L.J. 667, 677 (1986).

3 The Court ultimately held that the state did not have a constitutional duty under substantive due

process to protect the plaint iff from his abusive f at her after receiving reports of possible abuse.

Deshaney , 489 U.S. at191.

8 The first cases testing the viabilit y of an Equal Protecti on claim relating to law enforcement

policies, customs, and practices toward domestic abuse cases were filed in the mid-1970s. However,

those cases were ultimately settled b e fore trial. 2 The first reported case holding that a law

enforcement policy that treated victims of domestic abuse differently than victims of non-domestic

assault constituted an Equal Protecti on violation was decided in 1984. See Thurman v. City of

Torri ngton

, 595 F. Supp. 1521, 1531. (D. Conn. 1984) ( denying the police officers’ motion to

dismiss and declaring that the plaint iff’s allegation that the officers intentionally afforded victims of

domestic assault less protection t han victims of other assault was sufficient to state an Equal

Protection claim).

In 1989, the Supreme Court decided Deshaney v. Winnebago County Dep’t of Soc. Servs.

,

489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). Although the main issue in D eshaney

involved the plaint iff’s substantive due process claim regarding the defendant’s failure to remove

timely the plaintiff, a minor-child, from his abusive father’s custody, 3 the Court in footnote three

provided pivotal

language that has formed the foundation for contemporary Equal Protection

challenges to law enforcement policies, practices, and customs toward domestic abuse. The Court

stated that, “[t] he St at e may not of course, selectively deny its protective services to certain

disfavored minorities without violating the Equal Protecti on Clause.” Id. at 189 n.3. (citation

omitted).9

The same year Deshaney w as decided, we addressed for the first time whether a plaintiff’s

claim based on police inaction, and law enforcement policies and customs that allegedly treated

v ict ims of domestic assault differently from victims of other crimes violate the Equal Protection

Clause as contemplated by the Supreme Court in Deshaney ’s footnote three. In M cKee v. City of

Rockwell

, 877 F.2d 409 (5 th Cir. 1989), we affirmed a district court’s grant of summary judgment

asserting that the plaintiff failed to produce sufficient summary judgment evidence to show that the

defendants adopted law enforcement policies, customs, and practices that treated vict ims of domestic

assault differently from vict ims of other crimes. M cKee

, 877 F.2d at 416. As such, the co urt left

open the questions of whether law enforcement policies, practices, and customs that treat vict ims of

domestic assault differently from vict ims of other crimes constitute intentional discrimination against

women u nder Washington v. Davi s , 426 U.S. 299, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), and

whether such policies dis criminate against protected minorities within the meaning of D eshaney ’s

footnote three. McKee , 877 F.2d at 416.

Approximately eleven years after McKee

, we are again cal led upon to address whether a

domestic abuse vict im’ s complaint against a law enforcement agency and its officials for failure to

effectuate an arrest, and for their adopti on of policies, practices, and customs that discriminate against

vict ims of domestic assault constitute intentional discriminati on against women, and thus is cognizable

under the Equal Protecti on Clause. Specifically, Shipp claims that the defendants through their

policies, practices, and customs afforded less protection to victims of domestic assault than other

assault victims. Furthermore, Shipp claims that these policies, customs, and practices

disp ro portionately impact women because an overwhelming majority of the victims of domestic10

assaults are women. The issues raised in Shipp’s complaint invoke the unresolved quest io ns o f

McKee

.

Before addressing McKee ’s unresolved questions, we recognize that governmental policies,

which create neutral classifications that have a disproportionate adverse impact upon a protected

class, are unconstitutional under the Equal Protecti on Clause only if the disproportionate impact can

be traced to a discriminatory purpose. P ersonnel Admin. of Mass. v. Feeney

, 442 U.S. 256, 272, 99

S. Ct. 2282, 2292, 60 L. Ed. 2d 870 (1979). Thus, the Equal Protecti on clause of the Fourteenth

Amendment prohibits a state from engaging in intentionally discriminatory cond uct that has an

adverse disparate impact on women unless the state can show an “exceedingly persuasive justification

for that action.” S ee United States v. Virginia

, 518 U.S. 515, 530, 116 S. Ct. 2264, 2274, 135 L. Ed.

2d 735 (1996). State policies that perpetuate antiquated and outdated gender stereoty pes that are

derogatory and condescending toward women do not form the basis for proper d iscriminatory

purpose. See Mississippi University for Women v. Hogan

, 458 U.S. 718, 102 S. Ct. 331, 73 L. Ed.

2d 1090 (1982).

In addressing the questions McKee left open

, we observe that courts from other circuits have

addressed similar Equal Protecti on challen ges based on law enforcement policies, practices, and

customs that treat vict ims of domestic assault differently from other crime victims. In W atson v. City

of Kansas City

, 857 F.2d 690 (10 th Cir. 1988), a victim of domestic assault brought a § 1983 action

against a city, the city’s police department, and several police officers acting in their official capacities

for adopting policies, practices, and customs that provided less protecti on to domestic assault vict ims

than other assault victims. In addressing the victim’s claim, the W atson court articulated a legal

standard that domestic assault vict ims must meet to sustain an Equal Protecti on challenge. The4 Although the Ninth Circuit has not specifically adopted Watson

, the court in Balistreri v. Pacifica

Police Dept

, 901 F.2d 696, 701 (9 th Cir. 1990), has recognized that an animus against abused women

coupled with law enforcement’s differential treatment of domestic assault cases may support a

gender-based Equal Protection claim.

11 Watson court declared that to maintain an Equal Protection claim, the plaintiff must show: (1) that

a policy or custom was adopted by the defendants to provide less protection to vict ims of domestic

assault than to other assault victims; (2) that discrimination against women was the motivating factor

for the defendants: (3) and that the injury was caused by the operati on of the policy or custom. S ee

Watson 857 F.2d at 694.

Several other circuits have adopt ed t he st andard articulated in W atson to review Equal

Protection claims brought by victims of domestic assault. See Soto v. Fores

, 103 F.3d 1056, 1066

(1 s t Cir. 1997) (stating that,“[u]nder the standard we adopt today, Soto must show that there is a

policy or custom of providing less protecti on to vict ims of domestic assault than to other victims, that

gender discrimination is a motivating factor, and that Soto was injured by the practice”); Ricketts v.

City of Columbia

, 36 F.3d 775, 779 (8 th Cir. 1994) (applying the Watson standar d to an Equal

P rotecti on claim against a municipality); Eagleston v. Guido

, 41 F.3d 865, 878 (2d Ci r. 1994)

(applying the W atson standard); Hynson v. City of Chester

, 864 F.2d 1026, 1031 (3 rd Cir. 1988)

(announcing that,“[w]e agree with the Watson court that if the categories used by the police in

administering the law are domestic assault and nondomestic assault, this is not sufficient to raise a

claim for gender-based discrimination absent a showing of an intent, purpose or effect of

discriminating against women”). 4

We agree with our sister circuits that the standard articulated in Watson represents a coherent

approach for courts to review Equal Protecti on claims pertaining to law enforcement ’s practi ces,5 Because domestic assau lt cases usually involve parties in volatile intimate or familial

relat ionships, we acknowledge that special law enforcement tactics may be employed in these

instances that may be impracticable in other assault cases. As one court noted, “ there are inherent

differences between domestic disputes and nondomestic disputes,

. . . that may aff ect an officer’s

decision to arrest or not to arrest in any given situation.” Ricketts , 36 F.3d at 781.

12 policies, and customs toward domestic assault cases. First, the standard allows law enforcement

o fficials the flexibilit

y and discretion to adopt a nd employ policies that are tailored to address the

special concerns that domestic assault cases raise without compromising the protective services that

law enforcement provides. 5 Law enforcement “discretion is essential to the criminal justice process.”

M cCleskey v. Kemp , 481 U.S. 279, 297, 107 S. Ct. 1756, 1769, 95 L. Ed. 2d 262 (1972).

Furthermore, law enforcement o fficials will be liable only for those policies, practices, customs, and

conduct that are the product of invidious discrimination. While statistical evidence showing

disproportional impact is probative on the issue of gender-based motivation, such evidence without

a showing of intent is insufficient to sustain an Equal Protecti on claim. S ee Washington v. Davis

, 426

U.S. 229, 239, 96 S. Ct. 2040, 2047, 48 L. Ed. 2d 597 (1976). Finally, the causation requirement

will hold law enforcement o fficials accountable only for injuries that result from inaction or conduct

pursuant to invidious policies, customs, and practices. As such, law enforcement would not be held

liable for generalized harms that are not traceable to their co nduct, policies, or customs.

Furthermore, law en fo rcement wo uld not be called to answer for those injuries that are solely

attributable to the perpetrators of the underlying domestic assault.

Therefore, today we join the circuits that have adopted Watson ’s approach, and hold that to

sustain a gender-based Equal Protecti on claim based on law enforc ement po licies, practices, and

customs toward domestic assault and abuse cases, a plaint iff must show: (1) the existence of a policy,

practice, or custom of law enforcement to provide less protection to victims of domestic assault than13

to victims of other assaults; (2) that discrimination against women was a motivating factor; and (3)

that the plaint iff was injured by the policy, custom, or practice. By adopting this approach to answer

the pretermitted question in McKee

, we accomplish one of the principal goals of qualified immunit y,

which is to provide objective standards so that “an official [can] be expected to know that certain

conduct [] violate[s] statutory or constitutional rights.” Harlow v. Fitzgerald , 457 U.S. 800, 819,

102 S. Ct. 2727, 2378-79, 73 L. Ed. 2d 396 (1982).

We turn now to consider Shipp’s claim. In order to defeat the defendants’ assertion of

qualified immunity, Shipp must show that the criteria above were clearly established at the time of

the alleged improper conduct that formed the basis of her complaint.

To show that a right is clearly established, the plaintiff does not have to refer to precedent

that is directly on point, or that declares that the conduct in question is unlawful. Rather, the right

is clearly established if based on pre-existing law, the unlawfulness of the conduct in question is

apparent. D oe v. Independent School Dist.

, 15 F.3d 443, 455 (5 th Cir 1994)(en banc), cert. denied

,

506 U.S. 1087, 113 S.Ct . 1066, 122 L. Ed. 2d 371 (1994). In other words, the right is clearly

established if its “contours

. . . [are] sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” A nderson v. Creighton, 438 U.S. 635, 640, 107 S. Ct. 3034,

97 L. Ed. 2d 523 (1987). Additionally, we conduct a “snapshot” inquiry by canvassing the legal rules

that were clearly established at the time of the official’s alleged improper conduct. See Anderson

,

438 U.S. at 639. Furthermore, in determining whether a right is clearly established, we are confined

to precedent from our circuit or the Supreme Court. B oddie v. City of Columbus

, 989 F.2d 745, 748

(5 th Cir. 1993).14

To date, the only other case in our circuit that has spoken on this Equal Protection issue is

McKee

. Since our holding in M cKee

, there has been no intervening precedent from this circuit or

the Supreme Court addressing an Equal Protecti on claim based on law enforcement policies,

practices, and customs toward victims of domestic assaults. Although McKee was decided a year

after Watson

, McKee contains no language rejecting or approving the standard articulated in Watson

.

Thus, we recognize that the delicately counterpoised competing considerations undergirding

the doctrine of qualified immunit y and their resulting jurisprudence are instructive in the case at bar.

Persons whose fede ral right s have been violated by government officials’ abuse of their positions

should have a means of vindication that includes pursuing monetary compensation. But government

o fficials should be uninhibited by the chilling specter of civil litigation and personal liabilit y to exercise

the discretion requisite to perform their duties so long as the officials’ conduct does not violate clearly

established law. S ee Owen v. City of Independence

, 445 U.S. 622, 651, 100 S. Ct. 1398, 63 L. Ed.

2d (1980); Anders on , 483 U.S. at 638; H arlow v. Fitzgerald

, 457 U.S. at 814. Based upon this

tenuous balance, courts have narrowly adjudicated issues of qualified immunit y largely to the benefit

of government officials. S ee Malley v. Briggs

, 475 U.S. 335, 341, 106 S. Ct 1092, 89 L. Ed. 2d 271

(1986) (stating that qualified immunit y will protect “all but the plainly incompetent or those who

knowingly violate the law”); Johnson v. Fankell

, 520 U.S. 911, 117 S. Ct. 1800, 138 L. Ed. 2d 108

(1997); Jones v. City of Jackson

, 203 F.3d 875, 883 (5 th Cir. 2000) (stating “[q]ualified immunit y is

a shield from civil liabilit

y for ‘all but t he plainly incompetent or those who knowingly violate the

law’”) (quoting Malley

, 475 U.S. at 341) ; Mendenhall v. Riser

, 213 F. 3d. 226 (5 t h Cir. 2000).

Accordingly, we hold that the defendants are entitled to qualified immunit y because the standard we

pronounced above was no t clearly established by the Supreme Court nor our circuit prior to our6 This court has yet to confront an Equal Protection challenge in the co ntext of a class of one

claim. S ee Bryan v. City of Madison

, 213 F.3d 267, 277 n.18 (5 th Cir. 2000) (stating “[w]e have

never specifically addressed whether such a motive would be enough to support an equal protecti on

claim without some other class-based discrimination, but that issue is not before us”).

15 opinion today

. See Wilson

, 526 U.S. at 614-618 (granting qualified immunit y because media ridealongs during the execution of a search warrant were not a clearly established violation of the Fourth

Amendment, despite the Court having declared such conduct violates the Fourth Amendment).

Class of One Equal Protection Claims

Notwithstanding the defendants being entitled to qualified immunit y against Shipp’s genderbased Equal Protecti on complaint regarding the policies, customs, and practices of the WPSO toward

domestic violence victims, recent Supreme Court precedent suggests t hat an alternative Equal

Protecti on claim may be available to Shipp. In V illage of Willowbrook v. Olech

, 528 U.S.562, 120

S. Ct. 1073, 1074-75, 145 L. Ed. 2d 1060 (2000), the Court held that the Equal Protection Clause

can give rise to a cause of action on behalf of a “class of one” even when the plaint iff does not allege

membership in a protected class or group. To state a claim sufficient for relief, a single plaintiff must

allege that an illegitimate animus or ill-will motivated her intentionally different treatment from others

similarly situated and that no rational basis existed for such treatment. Id.

Althou gh no general constitutional right to police protection exists, the state may not

discriminate in providing such protecti on. M cKee

, 877 F.2d at 418 (Goldberg, J., dissenting in part

and co ncurring in part). Applying the rationale of O lech

, the Seventh Circuit addressed th e

consequences of unequal police protecti on under the Equal Protecti on Clause. 6 The court reasoned

that in the unusual setting of “class one” equal protection cases alleging unequal police protection,

demonstrating that the unequal police protecti on had no rational basis requires a plaint iff to “present16

evidence that the defendant deliberately sought to deprive him of the equal protecti on of the laws for

reasons of a personal nature unrelated to the duties of the defendant’s position.” Hilton v. City of

Wheeling

, 209 F.3d 1005, 1008 (7 th Cir. 2000). Moreover, the court reasoned that such an improper

motive is critical and opined that its absence will defeat an Equal Protecti on challenge to unequal

police protection. Id.

According to the complaint, Betty Shipp was int i mately involved in the situation that

precipitated the case at bar. Not only is she Dalton’s mother but she was also a deputy in the WPSO

during the time he stalked, threa t ened, and harassed Shipp as well as when Dalton pled guilty to

charges of criminal damage to property and simple batte ry as a result of his attacking Shipp and

taking her belongings. Betty Shipp was still a WPSO deputy when the aforementioned behavior

prompted the court to issue a temporary restraining order against Dalton prohibiting harassment or

abuse of or contact with Shipp as well as when the court issued a bench warrant for Dalton’s arrest

following his subsequent failure to appear.

Moreover, the pleadings further allege that Betty Shipp actually received the call of Carolyn

Gates, Shipp’s mother, alerting the WPSO that Dalton had kidnapped Shipp, warning them that the

situation was volatile, and beseeching the officers to intervene. Betty Shipp responded by hanging

up on Carolyn Gates, and although she advised Cropper of the call, neither deputy dispatched a radio

transmission to inform other deputies of Ca ro lyn Gates’ complaint. Consequently, after he

malevolently kidnapped Shipp, Dalton brutally raped and viciously shot her in the chest with a 12-

gauge shotgun.

It is undisputed that Betty Ship p’s so n engaged in reprehensible behavior against her

daughter-in-law that finally resulted in law enforcement and judicial intervention. It i s not17

improbable that Betty Shipp developed some anim osi ty against her daughter-in-law during her volatile

relationship with Dalton or after Shipp fled when Dalton’s escalated abuse prompted criminal charges

against him. If deputy Betty Shipp did foster ill-will against her daughter-in-law that ult imat ely

influenced the level of protecti on Shipp received from the WPSO, Shipp may be able to establish an

unequal police protecti on claim within the framework elucidated in Village of Willowbrook v. Olech

.

As such, the district court should allow Shipp to amend her complaint accordingly.

C ONCLUSION

We REVERSE the district court’s denial of the defendant s’ motion to dismiss under

F ED .R.C IV .P ROC

. 12(b)(6), and hold that the defendants are entitl ed t o qualified immunity. We

REMAND to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.