IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 02-30420 Summary Calendar __________________________

CHERIE SHIPP; JERRY GATES, Plaintiffs-Appellees, versus

ROYCE L. MCMAHON, etc; ET AL,

Defendants,

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.

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Appeal from the United States District Court For the Western District of Louisiana (No. 97-CV-308) ___________________________________________________ November 7, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

This is the second panel of this Court to consider whether plaintiffs’ allegation that defendants

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 violated their constitutional rights, in violation of

, survives defendants’ motion to

dismiss for qualified immunity.1 Because we conclude that the right underlying plaintiffs’ allegation

of unequal police protection, a “class of one” equal protection claim, was not clearly established at

the time of the alleged violation, we reverse the district court’s denial of qualified immunity and

remand for consideration of the state law claims. Whether a constitutional right is clearly established

is a question of law, Shipp v. McMahon,

(5th Cir. 2000) (Shipp I), which we

review de novo. Dunn v. Commissioner,

(5th Cir. 2002).

In order to defeat the defense of qualified immunity, a plaintiff must show that a clearly

established constitutional right was violated. Sanchez v. Swyden,

(5th Cir. 1998).

A court of appeals must not assume without deciding whether the constitutional right asserted by a

plaintiff is a constitutional right at all. Siegert v. Gilley,

(1991).

Whether Plaintiffs Allege Violation of Constitutional Right At All

Cases with varying degrees of generality, from the Supreme Court, other circuits, and this

Court, hold that the equal protection rights of an individual, independent of membership in a suspect

class, can be violated by unequal treatment by the government. See Village of Willowbrook v. Olech,

, 564 (2000) (“Our cases have recognized successful equal protection claims brought

by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from

1 On petition to rehear, Shipp v. Mahon,

(5th Cir. 2000)(Shipp I) held sheriffs and deputies did not violate clearly established law when they allegedly provided less protection to a victim of domestic assault than to victims of other assaults, and thus were entitled to qualified immunity. Shipp I reversed the district court’s denial of qualified immunity but remanded to allow plaintiff to amend the complaint to allege a “class of one” equal protection claim. (The underlying case, at

, affirmed the district court’s denial of qualified immunity.)

2 others similarly situated and that there is no rational basis for the difference in treatment.”); Hilton

v. City of Wheeling,

(7th Cir. 2000) (“class of one” unequal police protection

claim requires plaintiff to “present evidence that the defendant deliberately sought to deprive him of

the equal protection of the laws for reasons of a personal nature unrelated to the duties of the

defendant’s position.”); Watson v. City of Kansas City, Kansas,

(10th Cir. 1988)

(“Although there is no general constitutional right to police protection, the state may not discriminate

in providing such protection.”); McKee v. City of Rockwall, Tex.,

(5th Cir. 1989)

(Goldberg, J., concurring in part and dissenting in part) (approving Watson). However, the Court’s

earlier decision in this case, Shipp I, may or may not have extended the “class of one” equal

protection right to the context of law enforcement.

In any case, the first panel gave Shipp an opportunity to allege a “class of one” equal

protection claim. Whether or not that decision recognizes a“class of one” equal protection right in

the police protection context, the Court remanded to give plaintiff the chance to allege its violation.

Under the law of the circuit doctrine, the second panel to see a case cannot overrule the decisions of

the first panel. See, e.g., Missouri Pac. R.R. v. Railroad Commn.,

, 186 (5th Cir. 1991).

It would be inconsistent for this panel to hold that plaintiff could in no way sustain the pleading

burden this Court itself invited.

Clearly Established at Time of Alleged Misconduct

Appellants contend the “class of one” equal protection claim for unequal police protection

was no t clearly established as of 1996. Since at least 1923, the Supreme Court has recognized

“successful equal protection claims brought by a ‘class of one’ where the plaintiff alleges she has been

3 intentionally treated differently from others similarly situated and that there is no rational basis for the

difference in treatment.” Village of Willowbrook, 528 U.S. at 567 (citing Sioux City Bridge Co. v.

Dakota County,

(1923)). While such a claim has been extended to the police protection

context by at least one circuit, see Hilton,

, neither the Supreme Court nor this Court

had moved the analysis beyond the land use/assessment context as of 1996. Moreover, this Court’s

prior opinion in this case, adopting the Hilton framework for “class of one” equal protection claims,

notes that this Court had not reached this issue prior to December 2000. Shipp I,

n.6.

In the absence of precedent that is directly on point, a plaintiff may yet show that an official

action is not protected by qualified immunity if, based on pre-existing law, the unlawfulness of the

conduct is apparent. Hope v. Pelzer, ___ U.S. ___,

(2002). Taking appellees’

allegations as true, appellant Betty Shipp, working as a police dispatcher, hung up on a caller who

reported Betty Shipp’s own son was involved in the abduction of his estranged ex-wife, Cherie Shipp.

While this conduct shocks the conscience, appellees fail to show why, given the absence of “class of

one” claims reaching unequal police protection, the unlawfulness of this conduct was nevertheless

apparent in 1996. Appellant Steve Cropper, a Webster Parish deputy sheriff, does acknowledge in

his deposition that treating Cherie Shipp, or anyone, differently would be illegal. However, just

because Cropper may think some conduct is “illegal” does not transfigure what is obviously a due

process claim without legs into an equal protection claim with them. Qualified immunity applies to

this “class of one” claim because the underlying constitutional right was not clearly established in

1996.

Appellants cut and paste excerpts of this Court’s prior opinion to support their aspiration that

4 Shipp’s state law claims were dismissed by this Court. A complete review of that opinion undermines

this position. The state law claims are mentioned twice, once each in the opening and penultimate

paragraphs.2 The Court wrote that its reversal of the district court was “for the reasons stated

below,” all of which addressed whether constitutional rights were clearly established for § 1983

qualified immunity purposes, and none of which were directly related to the state law claims. When

the court concluded “We REVERSE the district court’s denial of the defendants’ motion to dismiss

. . . and hold that the defendants are entitled to qualified immunity,” the court was addressing

qualified immunity under federal law for § 1983 actions, and not qualified immunity under Louisiana

law for the state law claims.

We reverse the district court’s decision on qualified immunity for the “class of one” equal

protection claim and remand to the district court, noting it has discretion under 28 U.S.C §

1367(c)(3) to retain supplemental jurisdiction over the remaining state law claims.

REVERSED AND REMANDED.

2 The opening paragraph reads in full:

This case involves the defendants-appellant’s 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 qualified immunity. The district court denied the defendants-appellants’ motion. For the reasons stated below, we REVERSE the district court’s ruling.

. The penultimate paragraph reads in full:

We REVERSE the district court’s denial of the defendants’ motion to dismiss under FED.R.CIV.PROC. 12(b)(6), and hold that the defendants are entitled to qualified immunity. We REMAND to the district court for further proceedings consistent with this opinion.

.

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