Fajardo v. County of Los Angeles

179 F.3d 698, 99 Daily Journal DAR 5371, 99 Cal. Daily Op. Serv. 4229, 1999 U.S. App. LEXIS 11233, 1999 WL 351101

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 3, 1999
• Docket: No. 96-55699
• Status: Published

Opinions

Opinion by Judge PREGERSON; Concurrence by Judge KLEINFELD.

PREGERSON, Circuit Judge:

Denise Navarro and other relatives of decedent Maria Navarro (“the Navarros”) appeal the district court’s grant of judgment on the pleadings in favor of the defendants under Federal Rule of Civil Procedure 12(c). The Navarros sued Defendants under 42 U.S.C. § 1983 for allegedly giving lower priority to domestic-violence 9-1-1 calls than to non-domestic-violence 9-1-1 calls.

This case is before us for the second time.¹ The case first came to us on appeal from the district court’s grant of summary judgment in favor of Defendants. See Navarro v. Block, 72 F.3d 712, 714 (9th Cir.1995) (“Navarro I”). In Navarro I, we held that the Navarros had established a genuine issue of material fact for trial by offering evidence that 9-1-1 “dispatchers in practice treat domestic violence calls differently from non-domestic violence calls.” Id. at 715. We also held that the Navarros’ equal protection claim survived summary judgment because “they could prove that the domestic violence/non-domestic violence classification fails even the rationality test” under the Equal Protection Clause. Id. at 717. Accordingly, we reversed and remanded “the district court’s grant of summary judgment ... because genuine issues of material facts remain[ed] as to whether [Defendants] had a custom of not classifying domestic violence 9-1-1 calls as ‘emergencies.’ ” Id.

On remand, the district court determined that it did not need to decide whether a custom or policy existed because it had “previously found that such a [policy] meets the rational basis test.” Accordingly, the district court granted Defendants’ Rule 12(c) motion for judgment on the pleadings. We again reverse and remand.

STANDARD OF REVIEW

This court reviews de novo Rule 12(c) judgments on the pleadings. See Merchants Home Delivery Serv., Inc. v. Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995). A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party’s pleadings as true, the moving party is entitled to judgment as a matter of law. See id.

ANALYSIS

On remand, the district court ruled that Defendants’ practice of treating domestic-violence calls differently from non-domestic-violence calls passed the rational basis test as a matter of law because (1) it is rational to limit emergency response to in-progress calls, and (2) “9-1-1 emergency assistance is provided for individuals who are severely injured and near death and domestic violence rarely reaches this level of injury.” Defendants argue that these rationales justify discriminating against domestic-violence crimes.

It does not matter whether it is rational to distinguish between in-progress calls and not-in-progress calls because that was not the distinction that Defendants allegedly made. The Navarros allege that Defendants distinguished between domestic-violence 9-1-1 calls and non-domestic-violence 9-1-1 calls regardless of whether the violence was in progress.

Moreover, whether domestic violence “rarely” results in death or severe injury does not, by itself, end the matter. The critical issue is whether domestic-violence crimes result in severe injury or death less frequently than non-domestic-violence crimes that are considered 9-1-1 emergencies. See Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (indicating that the Equal Protection Clause requires the same treatment of “similarly situated” persons).² Nothing in the pleadings suggests' that victims of domestic violence are less likely to suffer severe injury or death than are victims of other 9-1-1 emergency crimes.³

Hence, the district court erred by equating domestic violence calls with not-in-progress calls and equating non-domestic violence calls with in-progress calls, and by assuming that domestic-violence crimes are less injurious than non-domestic-violence crimes. Because these assumptions formed the basis of the district court’s conclusion, the district court also erred when it concluded, as a matter of law, that Defendants’ domestic-violenee/non-domestic-violence classification was rational and reasonable under equal-protection analysis.

The separate concurrence reasons that (1) there is no evidence of a domestic violence/non-domestic violence classification, and (2) that even if such a classification were proved, it would not violate equal protection.

The concurrence overlooks the evidence cited in our first opinion. See Navarro I, 72 F.3d at 715 & n. 4 (noting that a 9-1-1 dispatcher had testified that it was the practice of the Sheriffs department not to classify domestic violence calls as emergency procedure calls). To the extent that the concurrence relies on the lack of any record evidence with regard to a policy or custom that discriminated against women, it misses the point. In our earlier decision, we remanded for a hearing on the question whether the County had a policy or custom that discriminated against victims of domestic violence. See id. at 717.

The concurrence also cites six cases for the proposition that, absent evidence of sex discrimination as a motivating factor, there is no constitutional claim. But the foundational case, Watson v. City of Kansas, 857 F.2d 690 (10th Cir.1988),⁴ is in perfect harmony with our disposition in this case. In Watson, the district court granted summary judgment to the defendants on the question whether the police violated a domestic abuse victim’s rights to equal protection by failing to provide the same police protection to victims of domestic violence that they provided to victims of non-domestic violence. On appeal, the Tenth Circuit found that the plaintiff had failed to state a prima facie case for sexr based discrimination and affirmed the district court’s grant of summary judgment on this ground. But the Tenth Circuit also held that, because there were disputed issues of material fact concerning whether the police had a “policy or custom of affording less protection to victims of domestic violence than to victims of non-domestic attacks,” the district court erred in granting summary judgment to the defendants on that basis.

Here, the Navarros sued Defendants for allegedly giving lower priority to 9-1-1 domestic-violence calls than to non-domestic-violence calls. Here, there are disput-, ed issues of material fact on the question whether Defendants had such a policy. In our earlier opinion, we reversed the district court’s grant of summary judgment on this ground, and we now reverse the district court’s grant of judgment on the pleadings.

REVERSED and REMANDED for a hearing to determine first, whether the city had a policy or custom of giving lower priority to domestic-violence calls than to non-domestic-violence calls, and second, if such a policy or custom exists, whether that policy or custom has a rational basis.

1 . The factual basis for the Navarros' claim is described in Navarro v. Block, 72 F.3d 712 (9th Cir.1995).

2 . Additionally, if the Navarros can prove at trial that Defendants dispatch peace officers to prevent crimes that pose less (or equal) risk of death or severe injury than that posed by domestic violence crimes, then the Navarros would establish that Defendants' asserted justification is a prelext. If Defendants’ justification for discriminating against domestic-violence crimes is nothing more than pretextual, then Defendants' actions are arbitrary and violate the Equal Protection Clause. See Lockary v. Kayfetz, 917 F.2d 1150, 1155-56 (9th Cir.1990) (reversing grant of summary judgment on equal protection claim because plaintiffs raised triable issues of fact as to whether the defendant’s alleged rationale was merely a pretext).

3 . The 9-1-1 operator testified in her deposition that “shots fired” and robberies were considered emergencies. But nothing in the record indicates that “shots fired” or robberies result in death or severe injury any more frequently than domestic-violence crimes. The Navarros should be allowed to develop further this and other similar evidence.

4 .The concurring opinion also cites the following cases: Finder v. Johnson, 54 F.3d 1169 (4th Cir.1995), which is not an equal protection case; McKee v. City of Rockwall, 877 F.2d 409 (5th Cir.1989), in which the plaintiff failed to establish that the city had a discriminatory custom or policy; and Solo v. Flores, 103 F.3d 1056, 1066 (1st Cir.1997), Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir.1994), and Hynson v. City of Chester, 864 F.2d 1026, 1031 (3rd Cir.1988), which purportedly follow Watson.