Gamel-Medler v. Almaguer ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS November 6, 2020
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
RANDY GAMEL-MEDLER,
Plaintiff - Appellee,
v. No. 19-6129
(D.C. No. 5:17-CV-00830-HE)
TONY ALMAGUER, individually and (W.D. Okla.)
in his official capacity as Sheriff of
Blaine County; DAVID
ROBERTSON, individually,
Defendants - Appellants,
and
JONITA PAULS, also known as Jonita
Jacks; JOEL PAULS; RENITA
PAULS; MERADITH NORRIS;
KENNY MEIER; PATSY MEIER,
Defendants.
ORDER AND JUDGMENT *
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. INTRODUCTION
Randy Gamel-Medler filed this civil rights suit against, inter alia, Tony
Almaguer, Sheriff of Blaine County, Oklahoma, and David Robertson, Blaine
County’s Undersheriff. 1 Gamel-Medler asserted Defendants, in violation of the
Fourteenth Amendment’s Equal Protection Clause, denied him police protection
based on his sexual orientation and the fact he has an African American son. See
42 U.S.C. § 1983. He further asserted Defendants conspired to deny him equal
protection of the law. See id. § 1985(3). Defendants sought summary judgment
on the basis of qualified immunity. After the district court denied their request
for qualified immunity and set the case for trial, Defendants brought the instant
appeal.
This court dismisses Defendants’ appeal for lack of appellate jurisdiction.
Ralston v. Cannon, 884 F.3d 1060, 1066 (10th Cir. 2018) (“As this court has
made clear, orders denying summary judgment are ordinarily not appealable final
orders for purposes of 28 U.S.C. § 1291. We do, however, have jurisdiction
under the collateral order doctrine to review a state official’s appeal from the
denial of qualified immunity at the summary judgment stage, but only to the
extent the appeal involves abstract issues of law.” (quotation, citation, and
1
Almaguer and Robertson are hereinafter referred to collectively as
“Defendants.”
-2-
alteration omitted)). Defendants’ appellate filings cannot reasonably be read as
raising the kind of abstract legal question over which this court has jurisdiction.
See id. Instead, Defendants’ appellate challenges are limited exclusively to the
question whether the district court erred in determining the “pretrial record sets
forth a genuine issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 320
(1995) (quotation omitted).
II. BACKGROUND
A. Factual Background 2
Gamel-Medler, a gay man with an African American son, moved to
Hitchcock, Oklahoma in September of 2016. Shortly after his arrival in
Hitchcock, Gamel-Medler involved himself in local politics by attending
government meetings. His opinions and comments were controversial and
triggered disagreements with Hitchcock residents. The disagreements were
apparently sufficiently heated at times that someone suggested the sheriff’s
department monitor the meetings, and, on occasion, a deputy did attend. Despite
2
In setting out the factual background, this court states the facts in the
manner consistent with the district court’s evidentiary determinations.
Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013) (holding that on
review from a district court’s denial of qualified-immunity based summary
judgment, this court has no jurisdiction to review a district court’s determinations
of evidentiary sufficiency). Furthermore, given this court’s determination that
Defendants’ appellate challenges are all fact-based and, therefore, this court lacks
jurisdiction, it is not necessary to set out the background facts in detail.
-3-
these disagreements, in early 2017, Gamel-Medler was selected as Hitchcock’s
Town Clerk.
In his capacity as Town Clerk, Gamel-Medler received a complaint from a
Hitchcock resident contending that Jonita, Joel, and Renita Pauls had placed a
trailer home on a public right of way, complicating access to nearby property.
When Gamel-Medler went to the location to investigate on May 7, 2017, he had a
contentious encounter with the Pauls. 3 A deputy sheriff later arrived, along with
Rick Edsall, the mayor of Hitchcock, who had been called by Joel Pauls. 4 Gamel-
Medler sought to file a formal complaint against Jonita Pauls, based on her anti-
gay and racist comments; neither the deputy present at the time nor Almaguer
would accept a formal complaint. Instead, Almaguer told Gamel-Medler the
Pauls were exercising their “free speech.”
Another incident happened a week later. Gamel-Medler placed a nuisance
notice of some sort on property owned by Kenny Meier’s mother. 5 In response,
Meier replaced the notice with a sign which read: “Hay [sic] you QUEER $500
fine for treaspassing [sic].” Although Gamel-Medler did not see the sign before it
3
The Pauls are defendants in the underlying lawsuit, but are not parties to
this appeal.
4
Edsall is a defendant in the underlying lawsuit, but is not a party to this
appeal.
5
Meier is a defendant in the underlying lawsuit, but is not a party to this
appeal.
-4-
was taken down, it was the basis for one of the complaints he sought to file
against Meier. The following day Meier confronted Dan Humphreys, a friend of
Gamel-Meder’s who had been shadowing him as he mowed public rights of way.
Apparently believing Humphreys to be Gamel-Medler’s husband, Meier asked
Humphreys the following: “Are you queer?” Humphreys called 911. Robertson
arrived, as did Edsall, and the situation was defused. No police reports were
taken at that time. Humphreys’s testimony is that he later went to the sheriff’s
office and completed a complaint form. No written reports about the incident,
however, have been found. Gamel-Medler also went to the Sheriff’s Office to file
a complaint against Meier, but Robertson refused to take the report.
A few days later, Gamel-Medler’s home was destroyed by fire. Gamel-
Medler presented evidence that, at various times, he had expressed concerns that
someone in Hitchcock would try to burn down his house.
B. Procedural Background
Based on the facts summarized above, Gamel-Medler brought claims
against Defendants under both §§ 1983 and 1985(3). In response, Defendants
moved for summary judgment on the basis of qualified immunity.
As to Gamel-Medler’s § 1983 equal protection claim, Defendants argued
the claim failed because he had not come forward with proof (1) he was treated
differently than other residents of Hitchcock or, even assuming such differential
-5-
treatment, (2) Defendants’ conduct was motivated by a discriminatory purpose. 6
See Watson v. City of Kansas City, Kan., 857 F.2d 690, 694 (10th Cir. 1988)
(setting out a plaintiff’s burden in an equal protection action). In their motions
for summary judgment, neither Almaguer nor Robertson argued that assuming a
jury could conclude they subjected Gamel-Medler to differential treatment with a
discriminatory purposes they could, nonetheless, not be held liable because the
law is not clearly established. 7 Nor did Almaguer make such an argument in his
6
Defendants also argued Gamel-Medler’s equal protection claim failed
because he was not a member of a protected class. Based on binding Tenth
Circuit precedent, the district court rejected this argument. See Phelps v. Wichita
Eagle-Beacon, 886 F.2d 1262, 1269 (10th Cir. 1989) (holding an equal protection
claim based on racial animus may be based on association); Price-Cornelison v.
Brooks, 524 F.3d 1103, 1113-14 (10th Cir. 2008) (holding a plaintiff stated a
violation of her right to equal protection when the defendant law enforcement
officer “has not asserted, and [this court could not] discern on [the] record, a
rational reason to provide less protection to lesbian victims of domestic violence
than to heterosexual domestic violence victims”). Defendants do not reassert this
issue on appeal.
7
It is not surprising Defendants did not make such an argument.
“[Q]ualified immunity protects all but the plainly incompetent or those who
knowingly violate the law.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(quotation omitted). A constitutional right is clearly established if it is
“sufficiently clear that every reasonable official would have understood that what
he is doing violates that right.” Id. (quotation omitted). Assuming, as
specifically determined by the district court, a jury could find Defendants denied
Gamel-Medler police protection afforded to other residents of Hitchcock because
Gamel-Medler’s son is African American, it cannot be argued that a reasonable
officer would not be aware such conduct is at odds with the Constitution’s
guarantee of equal protection. See, e.g., Ramirez v. Dep’t of Corrs., 222 F.3d
1238, 1243-44 (10th Cir. 2000) (agreeing with appellant’s concession that “‘the
general notion that one cannot discriminate on the basis of race or national origin
(continued...)
-6-
reply brief in support of summary judgment. For his part, Robertson cursorily
asserted as follows in his reply brief in support of summary judgment:
In light of the specific context of this case and the qualified
immunity inquiry, Plaintiff cannot show that Defendant Robertson
violated his clearly established, federal constitutional rights, nor is
there any published decision of the United States Supreme Court or
the Tenth Circuit Court of Appeals which would have placed
Defendant Robertson on notice that his acts or omissions were in
violation of constitutional rights.
As was true of their request for summary judgment on Gamel-Medler’s
equal protection claim, Defendants’ summary judgment motions as to his
§ 1985(3) conspiracy claim rested entirely on an asserted lack of evidence. 8 In
7
(...continued)
is undoubtedly clearly established’”). Because Gamel-Medler must prove
purposeful (i.e., intentional) discrimination to state a viable claim, the need for a
factually symmetrical case to put Defendants on notice their conduct violates the
law is reduced. See id. Thus, absent some set of extenuating facts, none of which
were alleged in this case, a general proposition will often be enough to render the
legal right clearly established in cases such as the instant case. See Brown v.
Flowers, No. 19-7011, 2020 WL 5509683 at *4-5 (10th Cir. Sept. 14, 2020)
(discussing this concept at length).
8
Before the district court, Defendants argued Gamel-Medler’s § 1985(3)
conspiracy claim could not proceed to the extent it was based on Gamel-Medler’s
homosexuality. On appeal, they assert the district court erred in failing to address
and grant them summary judgment on this issue. A close review of the district
court’s order, however, makes clear that in allowing Gamel-Medler’s conspiracy
claim to proceed, the district court limited its analysis to racial animus based on
the race of Gamel-Medler’s son. In his brief on appeal, Gamel-Medler
specifically recognizes and accedes to the district court’s implicit ruling that the
§ 1985(3) claim can only proceed to the extent it is based on Defendants’ alleged
racial animus. This being the case, Defendants’ challenge to the district court’s
failure to grant them summary judgment on this portion of Gamel-Medler’s
(continued...)
-7-
particular, Defendants argued Gamel-Medler (1) lacked evidence they had either
conspired with each other or any other defendant and (2) failed to produce
evidence of an underlying violation of his right to equal protection. See Murray
v. City of Sapulpa, 45 F.3d 1417, 1423 (10th Cir. 1995) (holding that to state a
valid claim under § 1985(3), a plaintiff must prove “(1) the existence of a
conspiracy (2) intended to deny them equal protection under the laws or equal
privileges and immunities of the laws (3) resulting in an injury or deprivation of
federally-protected rights, and (4) an overt act in furtherance of the object of the
conspiracy”). Neither Almaguer nor Robertson asserted, in either their motions
for summary judgment or their replies in support thereof, that their conduct was
reasonable even assuming a jury could find the existence of a conspiracy that led
to a deprivation of Gamel-Medler’s right to equal protection. Cf. Bisbee v. Bey,
39 F.3d 1096, 1101-02 (10th Cir. 1994) (holding the doctrine of qualified
immunity is available to public officials in actions brought pursuant to § 1985(3)).
The district court denied Defendants’ motions for summary judgment. As
to Gamel-Medler’s § 1983 equal protection claim, the district court concluded
Gamel-Medler adduced sufficient evidence for a reasonable jury to conclude (1)
“he was treated differently from other persons similarly situated” and (2) “all the
8
(...continued)
conspiracy claim does not present a justiciable controversy.
-8-
circumstantial evidence in the case is sufficient to create a justiciable question as
to whether these defendants declined to take and pursue plaintiff’s complaints due
to discriminatory animus.” Dist. Ct. Ord. at 6, 7. Although not adequately
challenged by Defendants, the district court also concluded the law was clearly
established that purposeful discriminatory denial of police protection violates the
Constitution, whether the animating discriminatory purpose was based on Gamel-
Medler’s homosexuality or the race of Gamel-Medler’s son. Id. at 8-9 (relying on
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) and
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008)). As to Gamel-
Medler’s § 1985(3) claim, the district court noted that in denying Defendants
summary judgment on Gamel-Medler’s equal protection claim, it had already
concluded a jury could find Defendants violated Gamel-Medler’s right to equal
protection. Dist. Ct. Ord. at 13. The district court also determined that a
reasonable jury could conclude Defendants conspired with each other to deprive
Gamel-Medler of his right to equal protection. Id. at 13-14. Given that neither
Defendant raised the issue of clearly established law in his district court filings,
the district court did not address the issue in its order denying Defendants’
request for summary judgment as to Gamel-Medler’s § 1985(3) conspiracy claim.
-9-
III. ANALYSIS
Defendants assert the district court erred when it denied their motions for
qualified-immunity based summary judgment. Their arguments, however,
implicate only the district court’s determinations of evidentiary sufficiency and,
therefore, do not fall within the parameters of this court’s collateral-order
jurisdiction.
This court has synthesized the jurisdictional parameters of an appeal from
the denial of qualified immunity as follows:
As this court has made clear, “[o]rders denying summary
judgment are ordinarily not appealable final orders for purposes of
28 U.S.C. § 1291.” Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753
(10th Cir. 2013). We do, however, have jurisdiction under the
collateral order doctrine to review a state official’s appeal from the
denial of qualified immunity at the summary judgment stage, but only
to the extent the appeal involves abstract issues of law. Id.; see also
Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013);
Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266-67 (10th Cir.
2013).
That is, this court has jurisdiction to review (1) whether
the facts that the district court ruled a reasonable jury
could find would suffice to show a legal violation, or
(2) whether that law was clearly established at the time
of the alleged violation. In contrast, this court has no
interlocutory jurisdiction to review whether or not the
pretrial record sets forth a genuine issue of fact for trial.
The Supreme Court has indicated that, at the summary
judgment stage at least, it is generally the district court’s
exclusive job to determine which facts a jury could
reasonably find from the evidence presented to it by the
litigants. So, for example, if a district court concludes
that a reasonable jury could find certain specified facts
-10-
in favor of the plaintiff, the Supreme Court has indicated
we usually must take them as true—and do so even if
our own de novo review of the record might suggest
otherwise as a matter of law.
Roosevelt-Hennix, 717 F.3d at 752 (citations, quotations, and
alterations omitted); see also Johnson [v. Jones], 515 U.S. [304], 320
[(1995)] (establishing this jurisdictional limitation on appeals from
the denial of summary judgment in qualified immunity cases).
It is certainly true that a mere determination on the part of a
district court that genuine issues of material fact preclude summary
judgment does not necessarily bar this court's exercise of appellate
jurisdiction in a particular case. See Henderson v. Glanz, 813 F.3d
938, 947-48 (10th Cir. 2015). We have jurisdiction to review such
denials of qualified immunity “if our review would [not] require
second-guessing the district court’s determinations of evidence
sufficiency.” Id. at 948 (quotation omitted). This court, then, has
jurisdiction over appeals challenging the denial of a
qualified-immunity-based motion for summary judgment only if a
defendant-appellant does not dispute the facts a district court
determines a reasonable juror could find but, instead, “raises only
legal challenges to the denial of qualified immunity based on those
facts.” Id.Ralston, 884 F.3d at 1066-67.
Defendants’ briefs cannot reasonably be read for the proposition that the
district court erred, on the facts it assumed for purposes of resolving whether
summary judgment is appropriate, in concluding Gamel-Medler stated a clearly
established violation of his right to equal protection. Instead, Defendants’
appellate briefs are limited exclusively to the proposition that the district court
erred in assessing the factual record. See Appellants’ Br. at 30 (“Here, contrary
to the District Court’s holding, there simply is no evidence of discriminatory
-11-
animus on the part of the Appellants . . . .”); id. at 31 (“Here, the District Court
held that Appellee ‘has presented sufficient evidence–barely–to create a
justiciable question as to whether these defendants’ actions were motivated by a
discriminatory purpose.’ However, contrary to the District Court’s determination
in this regard there is no evidence to support this conclusion.” (footnote
omitted)); id. at 32-33 (setting out the evidence and asserting it is improper to
draw the inference of discriminatory animus from that evidence). Although
Defendants’ briefs contain the buzz words “clearly established,” they do so only
in the context of a set of facts completely at odds with those assumed by the
district court in denying their request for summary judgment. See id. at 33
(“Moreover, the District Court failed to cite to any legal authority which clearly
establishes that an equal protection claim may be premised upon such non-
evidence of discriminatory intent.” (emphasis added)); Appellants’ Reply Br. at 9
(asserting that none of the cases relied upon by the district court “clearly
establishes that a § 1983 equal protection claim may be maintained in the absence
of evidence of discriminatory intent”). Because Defendants’ briefs amount to
nothing more than an attack on the district court’s determinations of evidentiary
sufficiency, this court lacks jurisdiction over their appeal from the district court’s
-12-
denial of their request for summary judgment as to Gamel-Medler’s equal
protection claim. 9
The same result is true with respect to their appeal from the district court’s
denial of their request for summary judgment based on qualified immunity as to
Gamel-Medler’s § 1985(3) conspiracy claim. That is, Defendants do not assert a
reasonable person in their position would be unaware that conspiring to deny
Gamel-Medler police protection based on the fact his son is African American
amounts to a violation of § 1985(3). Instead, they simply claim there is no
evidence of racial animus or conspiratorial agreement. See Appellants’ Br. at 37
(asserting the district court “failed to cite to any legal authority which clearly
establishes that an officer can be held liable under § 1985(3) in the absence of
9
Defendants are correct that in looking at the universe of facts for purposes
of determining whether alleged conduct amounts to a clearly established
constitutional violation, this court can disregard a district court evidentiary
determination that is “blatantly contradicted by the record.” Scott v. Harris, 550
U.S. 372, 380 (2007). Scott, however, involved a video that conclusively rebutted
the set of facts alleged by the plaintiff. Here, there is no evidence conclusively
demonstrating the district court’s determinations of evidentiary sufficiency are
wrong. Instead, Defendants simply ask this court to dig into the record and
determine, de novo, that there is not sufficient evidence of discriminatory animus.
To read the “blatantly contradicted by the record” exception to non-reviewability
so broadly would eviscerate the rule. See Roosevelt-Hennix, 717 F.3d at 759
(emphasizing the “limited nature” of the “blatantly contradicted by the record”
exception). This is especially true given that the disputed fact focused upon by
Defendants is one of purpose or intent. See Ralston, 884 F.3d at 1068 n.9 (noting
that interlocutory appeals involving pretrial questions about “the existence or
nonexistence of intent” are particularly inappropriate).
-13-
evidence of a conspiracy to deny a plaintiff the constitutional right to equal
protection of the law”); id. at 38 (“[T]he record is completely devoid of any
evidence which would raise a reasonable inference that the Appellants conspired
together to violate the Appellee’s right to equal protection of the laws.”); id. at
38-39 (“[T]here is simply no evidence in the record that the Appellants conspired
with each other to violate the Appellee’s right to equal protection and the District
Court’s finding to the contrary is blatantly contradicted by the record. Moreover,
the District Court failed to cite to any legal authority which would have put the
Appellants on notice that they could be held liable under § 1985(3) in the absence
of evidence of a conspiracy to deny a plaintiff the constitutional right to equal
protection of the law.”). As these quotations from their appellate briefs make
clear, Defendants’ appeal from the denial of their request for qualified immunity
as to Gamel-Medler’s conspiracy claim is limited to attacks on the district court’s
evidentiary determinations. Thus, this court lacks appellate jurisdiction over
Defendants’ appeal.
-14-
IV. CONCLUSION
For those reasons set out above, the Defendants’ appeal is hereby
DISMISSED for lack of appellate jurisdiction.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-15-
Gamel-Medler v. Almaguer, et al., No. 19-6129
BACHARACH, J., dissenting.
This appeal involves claims under 42 U.S.C. § 1983 and § 1985(3).
Our jurisdiction is limited, and the defendants’ briefs contain some
arguments falling outside of our jurisdiction. But we have appellate
jurisdiction over some of the defendants’ arguments on the § 1983 claim
and all of their arguments on the § 1985(3) claim. Given our jurisdiction
over these arguments, I would reject them on the merits and affirm the
denial of qualified immunity.
I. The sheriff and undersheriff refuse to let Mr. Gamel-Medler file a
complaint.
Because this is an interlocutory appeal of an order denying summary
judgment on qualified immunity, we rely on the district court’s assessment
of the facts. Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014);
see pp. 3–4, below. We view the summary-judgment evidence in the light
most favorable to Mr. Gamel-Medler. Al-Turki, 762 F.3d at 1191.
That evidence reflects plaintiff Mr. Randy Gamel-Medler’s
dissatisfaction with the conduct of defendants Sheriff Tony Almaguer and
Undersheriff David Robertson. Mr. Gamel-Medler, a gay man with an
African American son, tried to lodge complaints with the sheriff and
undersheriff, which had stemmed from two confrontations with other
residents in the town of Hitchcock. The sheriff and undersheriff refused to
take the complaints.
The first confrontation took place when Mr. Gamel-Medler went to
Ms. Jonita Pauls’s trailer and asked her to move it from a public right-of-
way. According to Mr. Gamel-Medler, Ms. Pauls used homophobic and
racist slurs and threatened Mr. Gamel-Medler’s son. According to Ms.
Pauls and her parents, Mr. Gamel-Medler threatened Ms. Pauls.
A deputy sheriff responded to a call regarding the argument. When
the deputy sheriff arrived, Mr. Gamel-Medler tried to file a complaint
against Ms. Pauls, and the deputy sheriff refused to take the complaint on
the ground that Ms. Pauls’s alleged threat had constituted free speech. Mr.
Gamel-Medler later asked again to file a complaint, and Sheriff Almaguer
refused to take it. 1 But the sheriff’s department accepted Ms. Pauls’s
complaint about Mr. Gamel-Medler’s alleged threat.
The second confrontation involved Mr. Kenny Meier. Mr. Gamel-
Medler had put a nuisance notice on property owned by Mr. Meier’s
mother. Mr. Meier replaced the notice with a sign that said: “Hay [sic] you
QUEER $500 fine for treaspassing [sic].” After posting the sign, Mr. Meier
confronted a friend of Mr. Gamel-Medler’s and asked him if he was
1
At oral argument, the defendants said that Undersheriff Robertson
had investigated Mr. Gamel-Medler’s complaint about Ms. Pauls’s threats.
Oral Arg. at 13:51. But the defendants hadn’t made this allegation until
oral argument. And we’re generally limited to the district court’s
assessment of the facts, which doesn’t include Undersheriff Robertson’s
investigation into Mr. Gamel-Medler’s complaint. See Al-Turki v.
Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014).
2
“queer.” Mr. Gamel-Medler tried to file a complaint, but Undersheriff
Robertson refused to accept it.
Mr. Gamel-Medler sued the sheriff and undersheriff, claiming
 a denial of equal protection under 42 U.S.C. § 1983 and
 a conspiracy to violate Mr. Gamel-Medler’s right to equal
protection under 42 U.S.C. § 1985(3). 2
The sheriff and undersheriff moved for summary judgment based on
qualified immunity. But the district court denied qualified immunity,
concluding that Mr. Gamel-Medler’s evidence was “barely” sufficient on
the claims under § 1983 and § 1985(3). The sheriff and undersheriff
appealed the denial of qualified immunity.
II. We have jurisdiction to address some of the defendants’ appellate
arguments.
Mr. Gamel-Medler argues that we lack jurisdiction over this appeal,
and the majority agrees. I respectfully disagree.
A. Jurisdictional limits exist on interlocutory review of the
denial of qualified immunity.
We ordinarily lack jurisdiction over the denial of summary judgment
because the ruling doesn’t trigger a final judgment. Ortiz v. Jordan, 562
U.S. 180, 188 (2011). An exception exists for the denial of summary
2
Mr. Gamel-Medler also asserted (1) a § 1983 claim based on
retaliatory prosecution and (2) a conspiracy claim under state law. These
claims are not at issue in the appeal.
3
judgment on the basis of qualified immunity. Johnson v. Jones, 515 U.S.
304, 312 (1995).
But this exception is limited. We cannot question the district court’s
assessment that a reasonable jury could find particular facts. Id. at 313.
But we have jurisdiction to determine abstract legal issues, including
“(1) whether the facts that the district court ruled a reasonable jury could
find would suffice to show a legal violation, or (2) ‘whether that law was
clearly established at the time of the alleged violation.’” Allstate
Sweeping, LLC v. Black, 706 F.3d 1261, 1267 (10th Cir. 2013) (quoting
Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010)). So we cannot
review an argument that the evidence is insufficient to prove a fact; but we
can review an argument that the facts are insufficient to prove a legal
element. Walton v. Powell, 821 F.3d 1204, 1208 (10th Cir. 2016).
Although we generally can’t revisit the summary-judgment record,
two exceptions exist. We can revisit the record if
 the district court failed to identify the particular facts regarded
as adequately supported (Lewis v. Tripp, 604 F.3d 1221, 1225
(10th Cir. 2010)) or
 the district court’s assessment of the facts was “blatantly
contradicted by the record” (Scott v. Harris, 550 U.S. 372, 380
(2007); Lewis, 604 F.3d at 1225–26).
B. We have jurisdiction over some of the defendants’
arguments.
We have jurisdiction over
4
 some of the defendants’ arguments on the § 1983 claim and
 all of the defendants’ arguments on the § 1985(3) claim.
1. We have jurisdiction to review some of the defendants’
arguments regarding the § 1983 claim.
We have jurisdiction to review some, but not all, of the defendants’
arguments for qualified immunity on the § 1983 claim. In my view, we
have jurisdiction over the defendants’ arguments that
 the district court’s assessment of the facts would be legally
insufficient to show the violation of a constitutional right and
 the right was not clearly established.
The defendants challenge the equal-protection claim, arguing in part
that the facts would be legally insufficient to show discriminatory animus.
In making this challenge, the defendants insist that “there is no evidence to
support [the] conclusion” that they harbored discriminatory animus.
Appellant’s Opening Br. at 31. But the defendants do not challenge the
district court’s assessment of the facts. The defendants instead argue in
two places that those facts do not support a finding of discriminatory
animus.
First, the defendants argue:
The District Court states:
That evidence includes the evidence of multiple refusals to
accept complaints from plaintiff while accepting complaints, in
arguably similar circumstances, from others not gay or not
having the racial association bond. There is also evidence of the
sheriff’s and undersheriff’s awareness of the unpopularity of
5
plaintiff on grounds that were, as to some members of the public,
based on matters or race and sexual preference.
However, alleged differential treatment alone does not
create a presumption of discriminatory animus, and the District
Court’s reliance on the Appellants’ alleged awareness of others’
discriminatory attitudes improperly imputes the actions of other
persons to Appellants and creates a de facto presumption of
discriminatory animus on the part of the Appellants.
Appellants’ Opening Br. at 31–32 (footnote omitted).
Second, the defendants argue:
Finally, the District Court states that “the claimed refusal
of the defendants to take a complaint, on the basis of Ms. Pauls
being free speech, arguably supports the necessary inference.”
However, it is unclear how this allegation would support a
reasonable inference that Appellant Almaguer was motivated by
any class-based discriminatory animus. Again, alleged
differential treatment alone does not create a presumption of
discriminatory animus.
Id. at 33 (footnote omitted).
Both arguments fall within our jurisdiction because the defendants
are not challenging the district court’s assessment of the facts. Rather, the
defendants are challenging the district court’s conclusion that those facts
create an equal-protection violation. See p. 4, above.
The defendants also challenge the district court’s characterization of
the right as clearly established:
Moreover, the District Court failed to cite to any legal
authority which clearly establishes that an equal protection claim
may be premised upon such non-evidence of discriminatory
intent. Phelps, supra, . . . did not address any evidentiary issues.
In Price-Cornelison, the existence of discriminatory animus was
not at issue . . . . Finally, DeShaney, supra[,] involved a due
6
process claim, not an equal protection claim . . . . As such, these
cases would not have placed the Appellants on notice that their
alleged actions were in violation of the Appellee’s constitutional
rights.
Appellants’ Opening Br. at 33–34 (citation omitted). We have jurisdiction
to review this challenge, which involves an abstract legal issue
independent of the district court’s assessment of the facts. Roosevelt-
Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013).
The defendants also ask us to revisit the record. We are generally
unable to do so, but exceptions apply when (1) the district court doesn’t
identify the facts that a reasonable jury could find or (2) the district
court’s findings are blatantly contradicted by the record. See p. 4, above.
These exceptions don’t apply here.
The defendants’ language suggests that they are challenging the
district court’s failure to identify the facts. For example, the defendants
address the district court’s recognition of evidence involving the
undersheriff’s negative comments about Mr. Gamel-Medler. Addressing
this characterization of the evidence, the defendants argue that “the record
is devoid of any adverse comment by [Undersheriff] Robertson
demonstrating any class-based discriminatory animus against [Mr. Gamel-
Medler].” Appellants’ Opening Br. at 32. Through this argument, the
defendants appear to rely on the district court’s failure to set forth the
facts with specificity. But the district court did identify the supporting
7
facts, which consisted of Undersheriff Robertson’s comments. So we lack
jurisdiction to consider this part of the defendants’ argument.
The defendants also argue that the record blatantly contradicts the
district court’s assessment that a reasonable jury could find discriminatory
intent. But the district court’s assessment of discriminatory intent was
reasonable based on evidence that
1. the sheriff and undersheriff would not take Mr. Gamel-Medler’s
complaints (Appellants’ App’x, vol. 7, at 1454, 1458),
2. the other residents had disliked Mr. Gamel-Medler in part
because of his sexual orientation and the race of his child (id.,
vol. 1, at 86),
3. the defendants had made negative comments about Mr. Gamel-
Medler (id., vol. 7, at 1420, 1524–25, 1644), and
4. the defendants had said that other residents’ threats were
protected by the First Amendment (id. at 1454, 1459, 1534).
See pp. 14–17, below. So the record did not blatantly contradict the district
court’s assessment of the evidence on discriminatory intent. We thus lack
jurisdiction over these arguments.
2. We have jurisdiction to review the defendants’ arguments
regarding the § 1985(3) claim.
We can also review the defendants’ arguments on the § 1985(3)
claim. On this claim, the defendants
8
 deny the violation of a clearly established right and the legal
sufficiency of concerted action to imply a conspiracy and
 rely on the jurisdictional exceptions involving a failure to
specify the facts and the existence of findings contradicting the
record.
First, the defendants argue that the assessed facts would not
constitute a violation of clearly established law because sexual orientation
is not a protected class for purposes of § 1985(3):
[T]he District court wholly failed to cite to any legal authority
in refutation thereof [that sexual orientation is not a protected
classification under § 1985(3)]. The District Court’s reliance on
Price-Cornelison, supra., is of no legal significance in this
regard because it is a § 1983 case, not a § 1985(3) case, and thus,
cannot serve to clearly establish that sexual orientation is a
protected classification within the meaning of § 1985(3).
Appellants’ Opening Br. at 37.
In making this argument, the defendants are not questioning the
district court’s assessment of the facts; the defendants are instead arguing
that those facts (which suggest discrimination based on sexual orientation)
cannot show a legal violation; this is a legal issue that falls within our
jurisdiction. See p. 4, above.
Second, the defendants argue that “concerted action alone is not
legally sufficient to raise a reasonable inference of a conspiracy to violate
[the] right to equal protection of the law.” Appellants’ Opening Br. at 38.
We have jurisdiction to review this argument because it entails a pure legal
issue. See p. 4, above.
9
Finally, some of the defendants’ arguments fall within the exceptions
to the general rule against revisiting the record. For example, the
defendants argue that
 the district court failed to specify the facts preventing qualified
immunity based on an agreement and
 the finding of an agreement was blatantly contradicted by the
record.
These arguments fall within our jurisdiction. See p. 4, above.
* * *
We have jurisdiction to review some of the defendants’ arguments on
the § 1983 claim and all of the arguments on the § 1985(3) claim, so I
would address the merits of the rulings on qualified immunity.
III. The district court correctly denied qualified immunity to the
defendants.
In my view, the district court correctly denied qualified immunity to
the defendants. On the claims under §§ 1983 and 1985(3), the court
reasoned that its assessment of the facts would have entailed the violation
of a clearly established constitutional right. I agree with the court’s
reasoning on both claims.
A. The district court correctly denied qualified immunity on
the § 1983 claim.
On the § 1983 claim, the district court identified facts showing the
violation of a clearly established constitutional right.
10
1. We base our review on the facts as assessed by the district
court.
In reviewing a denial of qualified immunity, we rely on the district
court’s assessment of the facts taken in the light most favorable to the
plaintiff. Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014).
Engaging in de novo review, we assess “whether the set of facts identified
by the district court is sufficient to establish a violation of a clearly
established . . . right.” Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir.
2012) (quoting Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d
Cir. 2002)). If the facts identified by the district court would have violated
a clearly established federal right, we must uphold the denial of qualified
immunity. Id.
2. The facts identified by the district court would show the
violation of a constitutional right.
Through his § 1983 claim, Mr. Gamel-Medler alleges that the
defendants violated his constitutional right to equal protection. The right
to equal protection is enshrined in the Fourteenth Amendment’s Equal
Protection Clause, which prohibits a state from “deny[ing] to any person
within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. “Equal protection ‘is essentially a direction that all
persons similarly situated should be treated alike.’” Grace United
Methodist Church v. City of Cheyenne, 451 F.3d 643, 659 (10th Cir. 2006)
11
(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985)).
We ordinarily analyze equal-protection claims in two steps. We first
determine whether the challenged state action intentionally discriminates
between groups. Washington v. Davis, 426 U.S. 229, 240 (1976). If we
identify any intentional discrimination, we consider whether the different
treatment is justified. City of Cleburne, 473 U.S. at 439–42 (1985).
Mr. Gamel-Medler claims inferior police protection because of his
sexual orientation and association with his African-American son. Either
reason could trigger an equal-protection violation. See Price-Cornelison v.
Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008) (sexual orientation); Phelps
v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269–70 (10th Cir. 1989) (race-
based association). 3 Though Mr. Gamel-Medler wouldn’t ordinarily enjoy a
constitutional right to police protection, state actors cannot discriminate in
providing police protection. Watson v. City of Kansas City, 857 F.2d 690,
694 (10th Cir. 1988).
The district court’s factual assessment reflects a difference in the
treatment afforded to Mr. Gamel-Medler. For example, Mr. Gamel-Medler
3
At oral argument, the defendants asserted that the district court
should have split the claim based on Mr. Gamel-Medler’s groups, granting
summary judgment on the allegations involving sexual orientation and
denying summary judgment on the allegations involving race. Oral Arg. at
11:41. I would decline to consider this assertion because it didn’t appear in
the briefs. Ross v. Univ. of Tulsa, 859 F.3d 1280, 1294 (10th Cir. 2017).
12
tried three times to file a complaint with the Sheriff’s Department: twice
after confronting Ms. Pauls and once after quarrelling with Mr. Meier. But
the sheriff and undersheriff declined to take Mr. Gamel-Medler’s
complaints while taking Ms. Pauls’s complaint. 4 The fact-finder could
reasonably regard Mr. Gamel-Medler as similarly situated with Ms. Pauls
because they tried to file complaints against each other based on the
other’s alleged threats. And based on the facts assessed by the district
court, the sheriff and undersheriff treated Mr. Gamel-Medler differently
than Ms. Pauls. 5
Intentional discrimination also requires discriminatory intent.
Discriminatory intent exists only if the defendants took the challenged
4
At oral argument, the defendants denied unequal treatment, arguing
that the sheriff’s office had accepted Ms. Pauls’s complaint at a different
time. Oral Arg. at 6:32. But “arguments made for the first time at oral
argument are waived.” Ross, 859 F.3d at 1294. Even if the argument had
not been waived, the timing would not explain why the sheriff’s office
took Ms. Pauls’s complaint and rejected Mr. Gamel-Medler’s complaints.
5
In addressing this issue, the district court stated: “While the evidence
falls far short of clearly establishing differential treatment, the court is
obliged in this context to view the evidence in the light most favorable to
the plaintiff and concludes he has made a sufficient showing as to this
element.” Appellants’ App’x, vol. VIII, at 1905–06. The defendants
suggest that this sentence is “self-contradictory,” asserting that if Mr.
Gamel-Medler has failed to clearly establish differential treatment, he
would have failed to make a sufficient showing on this element.
Appellants’ Opening Br. at 30. But this sentence is not self-contradictory.
At the summary-judgment stage, Mr. Gamel-Medler didn’t need to “clearly
establish” differential treatment; he needed only to create a genuine fact-
issue on the difference in treatment. See Fed. R. Civ. P. 56(a).
13
action at least partly “‘because of,’ not merely ‘in spite of,’ [the] adverse
effects upon an identifiable group.” Pers. Adm’r of Massachusetts v.
Feeney, 442 U.S 256, 279 (1979). To discern intent, courts consider the
impact of the challenged action, the historical background of the action,
the specific sequence of events leading to the action, the departures from
normal procedures, and the statements by decisionmakers at the time of the
decision. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 266–68 (1977). 6
The district court identified four types of evidence on discriminatory
intent:
1. The sheriff and undersheriff had repeatedly refused to take Mr.
Gamel-Medler’s complaints,
2. the other residents had disliked Mr. Gamel-Medler based at
least in part on his sexual orientation and the race of his child,
3. the sheriff and undersheriff had made negative comments about
Mr. Gamel-Medler, and
4. the sheriff and undersheriff had said that other residents’
threats were protected by the First Amendment.
6
The defendants try to distinguish Price-Cornelison v. Brooks, 524
F.3d 1103 (10th Cir. 2008), where we upheld the denial of qualified
immunity to a sheriff who had discriminated against a lesbian victim of
domestic violence. As the defendants point out, the county there had a
policy openly discriminating against lesbian victims of domestic violence.
Price-Cornelison, 524 F.3d at 1110. Although no openly discriminatory
policy exists here, Mr. Gamel-Medler can use circumstantial evidence of
discriminatory intent. See text accompanying note.
14
This combination of evidence is enough to create a reasonable inference of
discriminatory intent.
First, the district court identified evidence that the sheriff and
undersheriff had treated Mr. Gamel-Medler differently, refusing to take his
complaints while taking Ms. Pauls’s complaint. Although differential
treatment does not establish discriminatory intent, a stark pattern of
differential treatment can be used to prove discriminatory intent. 7 Vill. of
Arlington Heights, 429 U.S. at 266. So discriminatory treatment can
reasonably be inferred from the repeated refusals to allow Mr. Gamel-
Medler to file a complaint.
In addition, the district court’s factual assessment suggests the
defendants’ knowledge that other residents had shunned Mr. Gamel-Medler
based partly on his sexual orientation and the race of his son. So the
defendants’ knowledge of other residents’ hostility toward Mr. Gamel-
Medler could reasonably support an inference of discriminatory intent. See
Hodges ex rel. Hodges v. Public Bldg. Comm’n of Chicago, 864 F. Supp.
7Mr. Gamel-Medler cites opinions stating that disparate treatment can
prove discriminatory intent. Appellee’s Resp. Br. at 7 n.3 (citing Dewitt v.
Sw. Bell Tel. Co., 845 F.3d 1299, 1311 (10th Cir. 2017); Ortega v. Safeway
Stores, Inc., 943 F.2d 1230, 1238 (10th Cir. 1991); McAlester v. United Air
Lines, Inc., 851 F.2d 1249, 1260 (10th Cir. 1988)). But these are
employment cases addressing liability under Title VII and the Family
Medical Leave Act, not § 1983.
15
1493, 1502 (N.D. Ill. 1994) (finding discriminatory intent when public
officials halted construction in the face of racially based opposition).
The district court also pointed to the defendants’ negative statements
about Mr. Gamel-Medler. The defendants deny any evidence of those
comments. But we lack jurisdiction to revisit the summary-judgment record
on these grounds. See pp. 7–8, above.
The defendants also attribute their negative comments to their
perception of Mr. Gamel-Medler as a troublemaker (unrelated to his sexual
orientation or the race of his son). This explanation is reasonable. But one
could also reasonably infer that the defendants had regarded Mr. Gamel-
Medler as a troublemaker only because of his sexual orientation and the
race of his son. So the defendants’ negative comments could reasonably
support an inference of discriminatory intent.
Finally, the district court pointed to the defendants’ explanation for
their refusal to take the complaints. The defendants explained that the
other residents’ comments about Mr. Gamel-Medler and his son had been
protected by the First Amendment. But the other residents’ comments
could be seen as implicit threats, which would not be protected by the First
Amendment. See, e.g., Watts v. United States, 394 U.S. 705, 707–08 (1969)
(per curiam) (concluding that “true threat[s]” are not protected by the First
Amendment). So the defendants’ explanation could be pretextual, masking
16
the real reasons for refusing to take the complaints 8 and suggesting
discriminatory intent.
When viewed in the light most favorable to Mr. Gamel-Medler, the
facts assessed by the district court could support a reasonable inference of
discriminatory intent. Though no single bit of circumstantial evidence is
strong enough to show discriminatory intent, the “totality of the relevant
facts” permits a reasonable inference of discriminatory intent. Washington
v. Davis, 426 U.S. 220, 242 (1976). 9
Because the district court’s assessment of the facts could show
intentional discrimination against Mr. Gamel-Medler, we consider whether
the deficient treatment was justified. See p. 12, above. The appropriate
level of scrutiny depends on whether the discrimination involves a
fundamental right or suspect classification. See Feeney, 442 U.S. at 272–
73. If neither a fundamental right nor a suspect classification is involved,
8
At oral argument, the defendants said that Undersheriff Robertson
had investigated Mr. Gamel-Medler’s complaint about Ms. Pauls’s threats.
Oral Arg. at 13:51. The defendants hadn’t made this allegation until oral
argument. And we’re generally limited to the district court’s assessment of
the facts, which doesn’t include the investigation into Mr. Gamel-Medler’s
complaint. See Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014).
9
The defendants argue that the finding of discriminatory intent was
blatantly contradicted by the record. But we lack jurisdiction to consider
this argument. See p. 8, above.
17
we apply rational-basis scrutiny, which requires a rational relationship
between the differential treatment and a legitimate state interest. Id.Even under the rational-basis standard, the differential treatment of
Mr. Gamel-Medler would violate his right to equal protection. The
defendants explained that the other residents’ statements had been
protected by the First Amendment. But the First Amendment does not
protect all of these statements. See pp. 16–17, above. So a fact-finder
could justifiably infer that the sheriff and undersheriff had lacked a
legitimate reason for refusing to take Mr. Gamel-Medler’s complaints. See
Price-Cornelison, 524 F.3d at 1114 (concluding that the record revealed no
rational reason to provide less police protection to lesbian victims of
domestic violence than to heterosexual victims of domestic violence).
Without a rational reason to refuse Mr. Gamel-Medler’s complaints, the
refusal would constitute a denial of equal protection.
3. The denial of equal protection would have violated a clearly
established right.
To defeat a motion for qualified immunity, the plaintiff must show
that the federal right was clearly established. See p. 11, above.
In my view, Mr. Gamel-Medler made this showing. Two of our
circuit’s precedents—Watson v. City of Kansas City, 857 F.2d 690 (10th
Cir. 1988) and Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir.
18
2008)—clearly establish the impermissibility of denying police protection
for a discriminatory reason.
A right is clearly established when “[t]he contours of the right [were]
sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). This inquiry is designed “to ensure that . . . officers are on notice
their conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001).
Notice can come from an on-point Supreme Court opinion, a Tenth Circuit
precedent, or the weight of authority from other circuits. Medina v. City &
Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992), overruled on other
grounds by Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998).
In this case, the defendants had notice based on Watson v. City of
Kansas City, 857 F.2d 690 (10th Cir. 1988), and Price-Cornelison v.
Brooks, 524 F.3d 1103 (10th Cir. 2008).
Watson involved a police department’s refusal to provide protection
to victims of domestic violence. Watson, 857 F.2d at 692–93. We
concluded that this refusal had constituted a violation of equal protection
because the police could not discriminate in providing police protection.
Id. at 698.
In Price-Cornelison, a lesbian victim of domestic violence claimed
that the undersheriff had not enforced her protective order because of her
sexual orientation. Price-Cornelison, 524 F.3d at 1105. We upheld the
19
denial of qualified immunity to the sheriff, holding that Watson had “put
[the undersheriff] on notice that providing [the plaintiff] less police
protection than other domestic violence victims because she is lesbian
would deprive her of equal protection of the law.” Id. at 1114–15.
Watson and Price-Cornelison clearly establish that denying police
protection for a discriminatory reason would violate the right to equal
protection. And Price-Cornelison clearly established an equal-protection
violation from the denial of protection based on a victim’s sexual
orientation. Given these precedents, the defendants should have known that
denial of police protection for discriminatory reasons would constitute a
denial of equal protection.
The defendants argue that these precedents are too general to clearly
establish the law. But these precedents are not general, and their fact
patterns closely mirror the facts here. For example, in Price-Cornelison
and in our case, the plaintiffs claimed that a law-enforcement officer had
failed to provide police protection based on the victim’s sexual
orientation. 10 Under this precedent, the right was clearly established. 11
10
The defendants argue that Price-Cornelison is distinguishable
because that case involved an openly discriminatory policy and a victim of
domestic violence. Despite these differences, Price-Cornelison clearly
establishes that discriminatory denial of police protection would violate
the right to equal protection.
11
The defendants argue that no cases clearly establish “that an equal
protection claim may be premised upon such non-evidence of
20
B. The district court correctly denied qualified immunity on
the § 1985(3) claim.
I would also affirm the denial of qualified immunity on Mr. Gamel-
Medler’s § 1985(3) claim. In my view, the facts identified by the district
court would establish the violation of a clearly established federal right.
1. The facts identified by the district court are sufficient to
establish the violation of Mr. Gamel-Medler’s rights under
§ 1985(3).
The facts identified by the district court would have violated Mr.
Gamel-Medler’s rights under § 1985(3). For a § 1985(3) claim, the
plaintiff must show “(1) a conspiracy; (2) to deprive [the] plaintiff of equal
protection or equal privileges and immunities; (3) an act in furtherance of
the conspiracy; and (4) an injury or deprivation resulting therefrom.”
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). In my view, the
facts identified by the district court would satisfy all of these
requirements.
First, the facts identified by the district court could reasonably
establish a conspiracy. The district court characterized the evidence as thin
but regarded it as enough to imply a conspiracy between the defendants.
discriminatory intent.” Appellants’ Opening Br. at 33. But the defendants
seem to deny a constitutional violation based on the facts rather than the
absence of a clearly established right. In my view, the district court’s
assessment of facts would have entailed a constitutional violation. See
p. 18, above.
21
The defendants argue that this characterization is unsupported by specific
facts and blatantly contradicted by the record.
I disagree. The sheriff testified that he’d conferred with the
undersheriff during a quarrel between Mr. Gamel-Medler and the other
residents. In addition, the sheriff and undersheriff refused to take Mr.
Gamel-Medler’s complaints on the ground that the other residents’
comments had been protected under the First Amendment. Given the
evidence of pretext, the defendants’ explanation suggests collaboration to
deprive Mr. Gamel-Medler of his right to police protection. See pp. 16–18,
above. So the summary-judgment record didn’t blatantly contradict the
district court’s assessment of the evidence.
The fact-finder could also reasonably infer an intent to deprive Mr.
Gamel-Medler of his right to equal protection. To prove a § 1985(3) claim,
the plaintiff must show an intent to deprive someone of equal protection.
Tilton, 6 F.3d at 686. The district court’s assessment of the facts could
show an intent to deprive Mr. Gamel-Medler of equal protection by
disallowing his filing of a complaint. See pp. 15–18, above.
The facts also show that the defendants took overt acts in furtherance
of the conspiracy. For example, the defendants rejected Mr. Gamel-
Medler’s complaints while taking the complaints of others who did not
share his sexual orientation or have an African-American child. See
pp. 16–17, above.
22
Finally, the facts are sufficient to find that the conspiracy resulted in
an injury to Mr. Gamel-Medler. The conspiracy prevented Mr. Gamel-
Medler from filing a complaint and seeking protection for himself and his
son from the Sheriff’s Department. So when taken in the light most
favorable to Mr. Gamel-Medler, the district court’s factual assessment
shows a violation of § 1985(3).
2. That violation would have been clearly established.
In my view, the violation would have been clearly established. A
right is clearly established when public officials have notice that their
conduct is unlawful based on an on-point Supreme Court opinion, Tenth
Circuit opinion, or the weight of authority from other circuits. See p. 19,
above. Based on these sources, the defendants should have been on notice
that their conduct was unlawful under § 1985(3).
The defendants argue that Mr. Gamel-Medler’s rights under
§ 1985(3) were not clearly established because neither our court nor the
Supreme Court has held that § 1985(3) claims can be based on sexual
orientation. But Mr. Gamel-Medler also claims discrimination based on the
race of his son, and the Supreme Court has long recognized § 1985(3)
claims based on race. E.g., Griffin v. Breckenridge, 403 U.S. 88, 102
(1971). So a § 1985(3) violation would have been clearly established. 12
12
The defendants argue that the district court erred by “fail[ing] to cite
to any legal authority which clearly establishes that an officer can be held
23
* * *
When viewed in the light most favorable to Mr. Gamel-Medler, the
district court’s factual assessment would entail the violation of a clearly
established right. So I would affirm the denial of qualified immunity.
IV. Conclusion
In my view, we have jurisdiction over some of the defendants’
appellate arguments. Though the defendants contest the district court’s
assessment of the facts, the defendants also challenge the district court’s
characterization of the conduct as a violation of clearly established rights.
Those challenges fall within our jurisdiction. Though we have jurisdiction
over those arguments, the district court’s conclusion was correct. So I
would affirm the denial of qualified immunity.
liable under § 1985(3) in the absence of evidence of a conspiracy.”
Appellants’ Opening Br. at 37. Here, the defendants seem to deny a
violation of § 1985(3) rather than to question the existence of a clearly
established right. In my view, however, the facts could imply a violation of
§ 1985(3).
24