Williams v. Hansen

326 F.3d 569, 2003 WL 1916067

Opinions

Reversed and remanded by published opinion. Senior Judge GREENBERG wrote the opinion, in which Senior Judge HAMILTON joined. Judge KING wrote a dissenting opinion.

OPINION

GREENBERG, Senior Circuit Judge:

I. INTRODUCTION

This matter comes on before this court on defendant Ronald E. Hansen’s appeal from an order entered in the district court on May 15, 2002, to the extent that the order denied Hansen’s motion for summary judgment on the basis of qualified immunity on claims against him by plaintiffs Gregory A. Williams and Virgil Hugh Reaves under 42 U.S.C. § 1988. Plaintiffs predicated their section 1983 actions insofar as implicated on this appeal on Hansen’s alleged violation of the Equal Protection Clause of the Fourteenth Amendment.¹ The district court decided this case in a comprehensive opinion setting forth the background of this case. Williams v. Fayetteville, 5:99-CV-449-BR(2) (E.D.N.C. May 13, 2002).

We describe the facts less expansively as the issues before us are narrower. Williams and Reaves are black men who served as police officers employed by the Fayetteville, North Carolina, police department during the time relevant to this appeal. It appears that there have been racial problems within the Fayetteville police department for in 1974 Fayetteville settled a discrimination action brought against it by agreeing to increase the opportunities of black officers for better training and assignments and for promotions. The parties to that litigation memorialized their settlement in a consent decree that still was in effect at the time of the events leading directly to this action. The decree, however, was terminated in 1997.

In February 1996, in response to renewed complaints of racial discrimination against blacks in the police department, Hansen, then the Fayetteville chief of police, directed two high ranking black police officers, Major George Moyd and Captain Robert Shambley, to interview all of Fay-etteville’s black police officers to determine whether any had experienced racial discrimination or whether they had information regarding discrimination against blacks. At that time, however, Hansen did not direct that Moyd or Shambley or anyone else question white officers as to whether they had information regarding discrimination against blacks. Hansen further directed that Lt. Richard Bryant, chief of the department’s Office of Professional Standards (“OPS”), was to interview any black officer who had perceived discrimination so that the complaints could be investigated.

In accordance with Hansen’s direction, Moyd and Shambley interviewed all 68 black police officers in the department, Shambley interviewing Reaves and Moyd interviewing Williams. Both Reaves and Williams reported that there had been discrimination within the department and, in all, 17 officers did so. Williams and Reaves charge that the subsequent investigation of the reports of discrimination was nothing more than an effort to discredit the officers who had complained of discrimination and an attempt to determine the membership in a group of black officers called Officers for Equity that opposed racial discrimination in the police department.² Hansen, not surprisingly, disagrees with these allegations but, as will be seen, this dispute of fact does not preclude us from deciding the legal issues posed on this appeal.

Even though this action involves other claims and defendants in addition to Hansen, on this appeal we deal only with plaintiffs’ allegations that Hansen violated their rights to equal protection of the laws by causing Moyd and Shambley to interview only the 68 black officers and not the more numerous several hundred white officers. Hansen, in moving for summary judgment on the basis of qualified immunity, contended in the district court and contends here that his decision to require interviews of black officers with respect to racial discrimination was lawful and, in any event, did not violate clearly established constitutional rights of which a reasonable person would have known. Thus, in his view, he is entitled to summary judgment on the basis of qualified immunity on plaintiffs’ section 1983 equal protection claims and the district court erred in denying him that relief.

The district court rejected Hansen’s immunity defense for the following reasons. First, it cited and quoted Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d (1993), to demonstrate the Supreme Court’s disapproval of racial classifications, quoting the portion of the opinion holding that “state legislation that expressly distinguishes among citizens because of their race [must] be narrowly tailored to further a compelling governmental interest.” Id. at 643, 113 S.Ct. 2816. The district court then indicated that this principle has led courts “to conclude that intentional racial harassment of a public employee by a supervisor constitutes race discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and is also actionable under [42 U.S.C] § 1983.” Slip op. at 77.

The district court, then stated that Hansen, when investigating racial discrimination within the police department, “in electing to interview only the black officers ... effectuated a racial classification that immediately and ultimately subjected plaintiffs to unequal treatment.” Id. The court indicated that it was not determinative that the case did not involve a statutory classification for in Sylvia Development Corp. v. Calvert County, 48 F.3d 810, 818 (4th Cir.1995) (emphasis in original), we stated that the “Equal Protection Clause limits all state action, prohibiting any state from denying a person equal protection through the enactment, administration, or enforcement of its laws and regulations.” Id. The district court then said that inasmuch as “Hansen’s investigation was explicitly limited to black officers, a suspect class, the court must apply strict scrutiny” in considering the investigation’s legality. Id. Thus, the district court stated that “Hansen must show that the investigation was narrowly tailored to serve a compelling state interest,” citing Shaw v. Hunt, 517 U.S. 899, 908, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). Id. at 77-78.

The district court held that even assuming that the stated purpose for interviewing and investigating only the black officers, ie., to determine if there was racial discrimination in the department, was its actual purpose and was compelling:

The court cannot conclude that the means chosen to effectuate the stated purpose were narrowly tailored. It was clearly overinclusive in that it subjected to investigation black officers who did not feel that discrimination or retaliation existed in the Department and underin-clusive in that it did not take into account the perceptions of white officers regarding racial discrimination in the Department. There were certainly other, more narrowly tailored, non race-based methods that the Department could have employed to accomplish its stated purpose.

Id. at 78. The court, however, did not indicate what these alternative methods were.

Finally, after having concluded that Hansen’s conduct violated the Equal Protection Clause, the court held that he was not entitled to qualified immunity for the following reasons:

The court also concludes that plaintiffs’ right to equal protection of the laws protecting them from being subjected to coercive state conduct solely on the basis of their race was clearly established in February 1996. See Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.”) The court also concludes that a reasonable person in Chief Hansen’s position would have known that his conduct would violate that right. Accordingly, the court concludes that defendant Ronald Hansen is not entitled to qualified immunity and thus is not entitled to summary judgment on plaintiffs’ § 1983 claims that his conduct violated their right to the equal protection of the laws.

Id. at 78-79. Hansen then appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and we have jurisdiction under 28 U.S.C. § 1291 through application of the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We exercise de novo review on this appeal. See Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir.2001); Sylvia Dev. Co., 48 F.3d at 817.³

III. DISCUSSION

On this appeal Hansen contends that he is entitled to qualified immunity on plaintiffs’ claims and thus the district court erred in denying his motion for summary judgment.⁴ Initially in considering this contention we determine whether plaintiffs have alleged facts setting forth valid claims for a deprivation of a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Then, if plaintiffs’ equal protection claims survive this threshold review, we must determine whether the right plaintiffs advance was clearly established at the time of its alleged violation so that a reasonable person would have known of the right. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In this second inquiry the appropriate consideration is whether a reasonable officer could have believed that his conduct was lawful. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Rogers v. Pendleton, 249 F.3d at 288. If so then the officer enjoys immunity.

The operative facts here are quite clear. Hansen directed that Moyd and Shambley interview all of the black officers regarding their experiences or perceptions of racial discrimination within the department but did not direct that they or anyone else interview any white officers for information they might have relevant to the inquiry. While plaintiffs question the bona fides of Hansen’s stated motives for pursuing the inquiry, i.e., that he would not tolerate discrimination within the department and desired to take any necessary corrective measures, the interviews did reveal the position that the black officers articulated on the racial discrimination issue.

The existence of a factual dispute regarding Hansen’s motives does not preclude us from entertaining this appeal even though we cannot resolve disputes of fact. What we can and will do is answer the abstract question of law as to whether when there are allegations that a discrete racial group has been subjected to discrimination, it is lawful to conduct interviews in the first instance only of members of that group to ascertain their experiences and perceptions with respect to the discrimination. See Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

We also emphasize that it is important to recognize that we do not deal with Hansen’s alleged misuse of the information he obtained from the interviews any more than we resolve disputes regarding his motives in directing that Moyd and Shambley interview the black officers. Thus, while plaintiffs contend in their brief that “[t]aking the evidence in the best light for [them] Hansen used the Shambley/Moyd interviews and the subsequent Black-only investigations in order to determine the membership of the ‘Officers for Equity,’ ” Appellees’ Br. at 53-54, we agree with the district court to the extent that it held that plaintiffs’ “claim that Chief Hansen violated their equal protection rights by further targeting those African-American officers who identified discriminatory practices within the Department ... does not state a cognizable equal protection claim.” Slip op. at 76.

Accordingly, even though plaintiffs in their brief complain that there was retaliation against them, in deciding this appeal we are not concerned with that contention. In this regard, we note that plaintiffs have brought complaints based on retaliation in violation of Title VII of the Civil Rights Act of 1964 against the City of Fayetteville and the Fayetteville City Council by reason of the ultimate termination of their employment and what they assert in then-second amended complaints was the “creation of a hostile working environment based upon race and retaliation.” App. at 319, 331. These charges still are pending in the district court.

As we have indicated, the district court applied strict scrutiny in considering the classification and found that the means to ascertain whether there was discrimination was overinclusive because “it subjected to investigation black officers who did not feel that discrimination or retaliation existed in the Department and underinclusive in that it did not take into account the perceptions of white officers.... ” Slip op. at 78. That analysis was flawed and was internally inconsistent. Clearly, until such time as the black officers were questioned Hansen could not know which officers felt that there was a discrimination problem. Thus, to the extent that the classification he made included all the black officers it hardly could be overinclusive. Furthermore, unless Hansen had every white officer interviewed he could not know which ones, if any, shared that belief. But if he had had all the white officers interviewed then the classification under the district court’s analysis would have been overinclu-sive.⁵ In any event, we will not hold that a public official attempting to ascertain whether there is discrimination in his department may not initiate the process by seeking the views of members of the group which allegedly is the target of discrimination.

In reviewing Hansen’s actions we recognize “that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).

Hansen nevertheless argues that this case does not implicate the equal protection principles set forth in Adarand and, accordingly, his decision to interview only black officers should not be reviewed on a strict scrutiny basis “as the interviews were not race classifying guidelines, procedures or laws, but rather the most focused initial step taken by [him] to attempt to identify potential areas of perceived or real discrimination in the Department.” Appellant’s Br. at 12-13. We agree with this argument. After all, we indicated in Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001), that “[t]o succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.”

In this case the black and white officers were not similarly situated with respect to the object of Hansen’s inquiry as the former but not the latter were allegedly subject to discrimination. Thus, Hansen could treat the groups differently in directing that officers be interviewed without violating the Equal Protection Clause. Indeed, taking into account the applicable principles that Morrison explained, it is evident that plaintiffs have conceded away their position on this appeal by stating in their brief that “[t]o prove a violation of the Equal Protection Clause, the forecast-ed evidence demonstrated that [they] were treated differently from similarly situated white officers.” Appellees’ Br. at 43 (citing In re Long Term Admin. Segregation of Inmates, 174 F.3d 464, 471 (4th Cir.1999)). The fact is that the black and white officers for the purposes of the matter into which Hansen was inquiring, i.e., was there discrimination against black officers in his department, were not similarly situated. Thus, plaintiffs do not set forth valid claims for the deprivation of a constitutional right and their case fails at the outset.

We hasten to add, however, that our opinion should not be overread. Certainly, for most purposes officers in a police department must be regarded as similarly situated regardless of their race. Thus, in matters such as assignments, promotions, and salary levels a race-based distinction among officers would be subject to strict scrutiny in an equal protection analysis.⁶ But it would be illogical to hold that officers in one racial group are similarly situated in an inquiry into whether there is discrimination against members of their racial group as compared to officers not within the group.

Even though plaintiffs’ case has failed at its outset, we point out that Hansen made a completely reasonable classification that would survive a strict scrutiny analysis if it were applicable. He had information that some black officers believed that there was discrimination and he directed that the potential victims of the discrimination be interviewed to ascertain their knowledge of the situation. Surely, this approach was narrowly tailored to address the problem at hand. While the district court indicated that there “were certainly other, more narrowly tailored, non race-based methods that the Department could have employed to accomplish its stated purpose,” slip op. at 78, it did not specify those methods.

Significantly, in their brief plaintiffs make a suggestion as to what they say “perhaps” would have been a more narrowly tailored approach to the interviews:

One reasonable alternative to conducting the all Black investigations as [Hansen] did would have been for him to have compiled the same data that the City was then mandated to collect under the terms of the consent decree. The collection of this data would have provided him with the status regarding promotions, assignment and other pertinent data as to all the officers employed with the City and perhaps been a more narrowly tailored approach to the one taken by Appellant-Defendant Hansen.

Appellees’ Br. at 48.

The problem with plaintiffs’ approach is obvious. While Hansen undoubtedly could have made a statistical analysis of the race of officers promoted and of officers in particular assignments, that analysis would not have addressed the claimed acts of discrimination predicated on what plaintiffs charge was the hostile racial environment within the department. For example, Reaves complains of having “experienced great criticism from his supervisors and white co-workers” and having been suspended and reduced in rank. Appellees’ Br. at 19. In his view, “the discipline and his treatment were discriminatory, [though] he elected not to appeal the suspension.” Id. Reaves also complains that “white officers had told lies on him and discouraged trainees from working with him which contributed to his suspension in December 1995.” Id. at 21. Moreover, “he felt that Black officers were not viewed as intelligent by white officers nor were Black officers given opportunities to make decisions as white officers.” Id. at 21. The statistical analysis that plaintiffs propose could not reveal that an officer had perceptions of this kind.

Amicus curiae National Association of Police Organizations also makes suggestions as to how Hansen could have obtained the information he sought:

1) Conduct a traditional departmental survey of all officers in written form, with or without follow up interviews; and/or

2) Conduct structured interrogations of all officers; and/or

3) Conduct random interrogations of officers; and/or

4) Retain an independent law enforcement consultant experienced in addressing issues of suspect class discrimination.

Amicus Br. at 13-14.

Conceivably such methods would have uncovered information regarding discrimination. But obviously there are problems with the Association’s suggestions. Written questions and answers may not be an accurate substitute for face to face questioning as they do not afford an opportunity for probing immediate follow-up questions. “Structured interrogations of all officers” would have been a far larger undertaking than simply questioning the potential victims of the discrimination and, in expanding the initial inquiries beyond the class of the alleged victims, would have imposed a larger administrative burden on the department. Random interrogations might have missed black officers subject to discrimination. Finally, employing an independent consultant would have passed to the consultant the choice as to how to proceed similar to that Hansen faced himself. We also point out that some of the Association’s suggestions are less narrowly-tailored than that Hansen adopted. In any event, we see no reason why the police department should not have been able to investigate its own affairs and address its own problems, when, as here, it did so by making narrowly focused inquiries. Courts should not micro-manage police departments.

It is also important to recognize that Hansen did not preclude the questioning of white officers in a discrimination investigation. At a grievance hearing for Reaves, which is part of the record on this appeal, when asked why he did not have Moyd and Shambley speak to white officers, Hansen explained:

It’s the black officers were the ones that were talking about discrimination and racism now. That was an inquiry; not investigation. Once the inquiry is done, if the investigation point — wherever it pointed, then the Office of Professional Standards is charged with going after wherever it pointed.

App. at 94. Thus, Hansen regarded the interviews as merely making an opening inquiry.

In determining whether the classification that Hansen drew could have survived a strict scrutiny analysis, if applicable, it is useful to consider the stopping of motorists on a racial basis. Everyone would agree that police officers should not stop motorists merely on the basis of their race. But if police officers are advised that a perpetrator of a particular race is fleeing from the scene of a crime, surely it would be reasonable if they stopped only motorists of that race at a road block in an effort to apprehend the criminal. Similarly, a police department lawfully might make a racial classification when picking officers to infiltrate a criminal enterprise depending on the racial make-up of the members of the enterprise.

Hansen was confronted with allegations that blacks were subject to discrimination and he reasonably caused the possible victims of the discrimination to be interviewed to ascertain their views as to whether the allegations were accurate. We are satisfied that a classification distinguishing between possible victims and other officers for purposes of the interviews could survive a strict scrutiny analysis as the classification was narrowly tailored and the police department had a compelling interest in knowing whether there was discrimination in the department. Therefore, even if plaintiffs’ claims charged that officers who in fact were similarly situated were treated differently on the basis of their race, and they do not because the black and white officers were not similarly situated, the alleged disparate treatment would survive a strict scrutiny analysis. Thus, for this additional reason, plaintiffs’ case does not survive the first prong of a Saucier/Lewis analysis. Accordingly, we are obliged to reverse the district court’s order denying Hansen summary judgment.

As we indicated above, if we had determined that the facts the plaintiffs alleged set forth valid claims for a deprivation of a constitutional right, which we do not, we would have been obliged to determine whether the right involved was clearly established at the time involved so that a reasonable person would have known of the right. But inasmuch as we have found that plaintiffs have not advanced valid claims we could stop this opinion at this point. Yet we will address the second aspect of a Saucier/Lewis analysis as our conclusion on it supplies an alternative basis for our decision.

The short answer to this inquiry is obvious. Certainly if judges of United States Courts of Appeals are of the view that plaintiffs are advancing a “right” that did not exist when allegedly infringed (and still does not exist) then the right could not have been clearly established at the time infringed. Indeed, it would be remarkable to hold that a reasonable person, here a chief of police, should have known more constitutional law than United States Circuit Judges and that because he did not he should be subject to the imposition of monetary damages.

That said, we nevertheless will consider cases dealing with race-based classifications in determining if the right plaintiffs advance was clearly established. We start quite naturally with Anderson v. Creighton, 488 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), as the case instructs us on how to approach the inquiry. In that case the Court indicated that a government official performing a discretionary function, as was Hansen, was entitled to qualified immunity in a civil rights action “as long as [his] actions could reasonably have been thought consistent with the rights [he is] alleged to have violated.” Id. at 638, 107 S.Ct. 3034. Thus, the Court indicated, quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), that “qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” The assessment of an officer’s actions turns on its “ ‘objective legal reasonableness.’ ” Id. at 639, 107 S.Ct. 3034 (quoting Harlow, 457 U.S. at 819, 102 S.Ct. 2727).

Anderson then goes on to state the following:

The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right.

Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy “the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties,*’ by making it impossible for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.”... It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Id. at 639-40, 107 S.Ct. 3034 (omitting footnote and certain citations). See also Cromer v. Brown, 88 F.3d 1315, 1325 (4th Cir.1996). This cautionary language in Anderson is particularly important in a case of this kind in -which plaintiffs challenge an administrative race-based classification as such classifications in other contexts may be violative of the Equal Protection Clause.

In fact, however, plaintiffs do not refer to any case that should have led Hansen to conclude that a race-based classification in which in the first .instance only the potential victims of discrimination were questioned about their experiences and perceptions is unlawful. Significantly, Hansen threw down the gauntlet to plaintiffs on this point when he stated in his opening brief that he “has been unable to locate any appellate cases similar to the trial court’s basis for denying him qualified immunity. ...” Appellant’s Br. at 23. He then quite reasonably argues that the absence of cases “is an indicator that his proactive decision to interview black officers can certainly not be said to have violated ‘cletniy established law¹ as of February 1996.” Id.

In answering, plaintiffs do not supply particularized case law to support their equal protection claims. Instead, they make the non-germane argument that Hansen misused the interviews to ascertain the membership in Officers for Equity and then remind us that in Podberesky v. Kirwan, 38 F.3d 147, 152 (4th Cir.1994), a case dealing with a race-based scholarship program, we indicated that “[gjovernment institutions that choose to employ racial classifications face ‘a presumption that [such a] choice cannot be sustained.’ ” Ap-pellees Br. at 55. We do not doubt that plaintiffs’ citation of Podberesky is apt but that case merely indicated in a completely different context that there is a presumption that a race-based classification cannot be sustained. Here, however, that presumption never came into being as the black and white officers were not similarly situated. Moreover, if the presumption had been applicable then Hansen would have rebutted it even if his conduct was examined on a strict scrutiny basis.

Plaintiffs are supported on this appeal by a brief filed by amicus curiae National Association for the Advancement of Colored People (“NAACP”) but it is of no help to plaintiffs as it, too, does not point to any case germane to this case in a “particularized” sense. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Rather, it tells us in a generalized way that strict scrutiny is required and charges that Hansen made a classification that was not narrowly tailored and was not reasonably related to a compelling state interest.

The NAACP' complains that Hansen “asserted no legitimate rationale for urging only senior black officers to investigate exclusively African American police officers ... regarding allegations of race discrimination in the Department.” Br. at 15 (emphasis in original). This statement, however, simply is untrue. Hansen explained at Reaves’ grievance hearing that “I felt that I did not want to have [a] perception during this inquiry that black officers would feel uncomfortable or unwilling to tell about racial discrimination if, in fact, it did exist. So that was my purpose of getting the two senior black officers.” App. at 94. Furthermore, neither Moyd nor Shambley is a plaintiff in this action and the equal protection classification of which plaintiffs have standing to complain relates to the persons questioned and not the selection of the persons to ask the questions.

Similarly the Police Organization’s brief does not cite any case germane to this appeal in a particularized sense demonstrating that the “right” plaintiffs advance was clearly established so that Hansen should have been aware of it. Indeed, its brief makes clear that its argument chai-lenges conduct beyond the circumstance that only black officers initially were questioned as its summary of its argument starts as follows:

The District Court correctly denied qualified immunity to Defendant Hansen because of his intentional discriminatory practices including but not limited to racially based interrogations and retaliatory tactics against African American police officers in the Fayetteville Police Department. The totality of Defendant Hansen’s conduct constitutes a form of internal racial profiling, segregating black officers for disparate treatment by interrogations and further investigations if they articulate perceptions of discrimination. This tragic case involves a web of overt discrimination and retaliation.

Br. at 6. The brief later argues that because cases are not completely alike, “the requirement of a clearly established right is not overly stringent.” Br. at 11 (citing Edwards v. City of Goldsboro, 178 F.3d 231, 250-51 (4th Cir.1995)).

This amicus curiae brief misses the point. We are not concerned on this appeal with the “totality” of Hansen’s conduct. Rather, we reiterate, at the risk that a reader of this opinion may think that we are unduly repetitious, that we are dealing with an alleged equal protection violation predicated on the circumstance that Hansen caused only black officers to be initially interviewed with respect to possible discrimination.

In applying Anderson we recognize that cases need not be identical for a public officer to be charged that on the basis of precedent he should have recognized that his conduct violated a right that was clearly established. See, e.g., Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002) (cases with materially similar facts can provide especially strong support for a conclusion that the law was clearly established); Finn v. New Mexico, 249 F.3d 1241, 1250 (10th Cir.2001); Ulichny v. Merton Comty. Sch. Dist., 249 F.3d 686, 706 (7th Cir.2001). But still it would be a remarkable extension of equal protection principles to hold that the very act of questioning the members of a racial group as to whether they perceived discrimination against the members of that group was in itself unlawful. We are not aware of any case from the Supreme Court or this court that comes close to making such a holding and, in fact, the plaintiffs and the amici curiae do not supply us with any from other jurisdictions.

In the circumstances, we cannot reasonably hold that Hansen objectively should have known that his conduct was unlawful when he directed Moyd and Shambley to question only black officers about discrimination against blacks. A reasonable person in Hansen’s position was entitled to obtain his legal guidance from law books rather than a crystal ball. Thus, the equal protection right that plaintiffs advance was not clearly established when Hansen directed that the black officers be interviewed and he is entitled to summary judgment on this ground, which is in addition to those we already explicated, granting him qualified immunity from plaintiffs’ equal protection claims.

IV. CONCLUSION

For the foregoing reasons we reverse the order of May 15, 2002, to the extent that it denied Hansen’s motion for summary judgment on the basis of qualified immunity on plaintiffs’ equal protection claims. We remand the matter to the district court to enter summary judgment in favor of Hansen and for further proceedings on the remaining issues in this case.

REVERSED AND REMANDED

1 . Plaintiffs also made other section 1983 claims as well as claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and state law that are not before us on this appeal.

2 . We note that there is some discrepancy over nomenclature in this case as the parties and the district court variously characterize the interviews as inquiries or an investigation. Our outcome is not dependent on such differences as we are concerned with what happened rather than the parties' characterization of the events.

3 . Inasmuch as plaintiffs stated supplemental claims under state law the district court also exercised jurisdiction under 28 U.S.C. § 1367.

4 . Hansen also asserts that plaintiffs’ complaints in a pleading sense did not set forth claims for equal protection violations and that, in any event, plaintiffs do not have standing to pursue these claims. We find these arguments to be without merit, and reject them summarily without further substantive discussion. We do point out, however, that we have jurisdiction to consider these arguments as the pleading issue is within our pendent appellate jurisdiction, see Akers v. Caperton, 998 F.2d 220, 223-24 (4th Cir.1993), and we would be obliged to take notice if plaintiffs lacked standing as the absence of standing would be a jurisdictional defect. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

5 . We realize that there may be officers in other racial groups in Fayetteville, i.e., Hispanic and Asian, but we do not find it necessary to mention them separately as the parties do not focus on them and their presence has no bearing on our analysis. .

6 . In fact, there is an assertion in this case that the department discriminates against black officers in assignments in that they are relegated to narcotics and patrol duties. We, of course, have no way of knowing whether this assertion is accurate but if it is it should be understood that we offer no opinion on the legality of the assignments and our opinion cannot be understood as validating them.

1 . It should be noted that, if initiated for an illegal purpose, the investigation itself is actionable; the plaintiffs need prove no further adverse employment action. See Hetzel v. County of Prince William, 89 F.3d 169, 171 (4th Cir.1996) (noting that internal affairs investigation itself constitutes "adverse employment action,” depriving employee of a "valuable government benefit” under Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th Cir.1990), and treating such investigation as actionable under § 1983); see also Allen v. Iranon, 283 F.3d 1070, 1076 (9th Cir.2002) (discussing internal affairs investigations as among "adverse employment actions” that could ground § 1983 liability); Rakovich v. Wade, 819 F.2d 1393, 1397 (7th Cir.1987) (holding that investigation undertaken in retaliation for exercise of constitutionally protected rights is actionable under § 1983), vacated on issue of damages on reh’g, 850 F.2d 1180 (7th Cir.1988).