Legal Commentary

Equal Protection of the Laws

By Eugene Volokh

Elliot-Park v. Manglona (9th Cir. Jan. 12) (Kozinski, J., joined by Bybee, J., with a partial dissent by Callahan, J.) holds that it?s unconstitutional for the police to refuse to arrest someone because his victim is of a disfavored race:

[W]hile the officers? discretion in deciding whom to arrest is certainly broad, it cannot be exercised in a racially discriminatory fashion. For example, a police officer can?t investigate and arrest blacks but not whites, or Asians but not Hispanics. Police can?t discriminate on the basis of the victim?s race, either.... [T]here is no right to state protection against madmen or criminals, but ?[t]here is a constitutional right ... to have police services administered in a nondiscriminatory manner ? a right that is violated when a state actor denies such protection to disfavored persons.?

The court also concludes that this right was clearly established at the time of the police officers? action, so the claim isn?t barred by qualified immunity. (Note that, as with most cases in this procedural posture, the courts? account of the facts is based on the plaintiff?s allegations; it will be up to the plaintiff to prove them at trial, and to produce enough evidence of them to survive a motion for summary judgment.)

Full post as published by The Volokh Conspiracy on January 14, 2010 (boomark / email).