DELIA FAJARDO, Guardian ad litem
for minors Denise Navarro,
Raymond Navarro, Jr. & Claudia
Guardian ad litem for minors
Denise Navarro, Raymond
Navarro, Jr., & Claudia Navarro;
BERTA GALVAN, Guardian ad litem
for minors Denise Navarro,                            No. 96-55699
Raymond Navarro, Jr., & Claudia
                                                      D.C. No.
NAVARRO, minors by and through
their Guardians ad Litem,


BLOCK, Sheriff of Los Angeles

Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding

Argued and Submitted
December 16, 1998--Pasadena, California

Filed June 3, 1999

Before: Harry Pregerson, Dorothy W. Nelson, and
Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Pregerson;
Concurrence by Judge Kleinfeld



Marco E. Lopez, San Jose, California, attorney for the

Kevin C. Brazile, Assistant County Counsel, Los Angeles,
California, attorney for the defendants-appellees.


PREGERSON, Circuit Judge:

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

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

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


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


On remand, the district court ruled that Defendants' prac-
tice of treating domestic-violence calls differently from non-
domestic-violence calls passed the rational basis test as a mat-
ter of law because (1) it is rational to limit emergency
response to in-progress calls, and (2) "9-1-1 emergency assis-
tance is provided for individuals who are severely injured and
near death and domestic violence rarely reaches this level of
injury." Defendants argue that these rationales justify discrim-
inating against domestic-violence crimes.

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

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

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

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

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

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

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

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


KLEINFELD, Circuit Judge, concurring:

I reluctantly concur in the result. The majority decision is
based on a mistaken reading of the record. It has the unfortu-
nate consequence that we substitute an appellate court's views
for the sheriff's views on which 911 calls get priority.

We decided in our prior panel opinion, Navarro v. Block,
72 F.3d 712 (9th Cir. 1996), that the plaintiffs had sufficient
evidence for their equal protection claim to establish a genu-
ine issue of material fact. Our earlier opinion was, in my
view, mistaken. In today's opinion, the majority mistakenly
conflates the evidence, relevant to an appeal from summary
judgment, with the pleadings, relevant to an appeal from judg-
ment on the pleadings, thereby compounding the previous

The complaint alleges an intentional policy of denying pro-
tection to abused women who complain of domestic violence.
That does not state a due process claim because DeShaney v.
Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189 (1989) holds
that "nothing in the language of the Due Process Clause itself
requires the State to protect the life, liberty, and property of
its citizens against invasion by private actors. " Id. at 195.
DeShaney means, as applied to this case, that plaintiffs could
not assert a constitutional tort under the Due Process Clause
based on the sheriff's failure to protect Maria Navarro from
her husband.

Plaintiffs' claim can only be based on the Equal Protection
Clause. We are reviewing a judgment on the pleadings, and
the complaint stated a claim upon which relief could be
granted, so that should be the end of the case. The allegation
of the complaint necessitates reversal, but not on the expan-
sive rational used by the majority. If the government were to
pick a class of people, by sex, race or some other inappropri-
ate characteristic, and deny people in that class the same pro-
tection law enforcement and legal institutions afforded to
other people, that classification would implicate the Equal
Protection Clause. DeShaney says that, "[t]he State may not,
of course, selectively deny its protective services to certain
disfavored minorities without violating the Equal Protection
Clause." Id. at 197 n.3. The Equal Protection Clause theory
asserted in the complaint is that the sheriff provided less
police protection to women than others. The assertion is
enough to survive judgment on the pleadings, because the
issue in an appeal from a judgment on the pleadings is not
whether the evidence shows a denial of equal protection, but
merely whether the pleadings assert it.

The reason I point out that we erred in our earlier decision,
and the district court was right the first time, is that the case
really has gone beyond the pleadings, to summary judgment,
and there was no evidence submitted on that motion to sup-
port a claim of invidious discrimination. The majority opinion
says that my concurrence "overlooks the evidence cited in our
first opinion." Evidence actually has nothing to do with an
appeal of judgment on the pleadings; we are supposed to
decide such an appeal based on what the pleadings say. But
because of the expansive approach the majority has taken,
there is no avoiding a discussion of the evidence. And the
majority, in my view, has the evidence wrong.

The majority now seems to concede that there is a lack of
record evidence of discrimination against women, but to
assert that there is evidence of unconstitutional discrimination
against victims of domestic violence ("To the extent that the
concurrence relies on the lack of any record evidence with
regard to a policy or custom that discriminated against
women, it misses the point . . . . we remanded for a hearing
on the question whether the County had a policy or custom
that discriminated against victims of domestic violence.").
Since women, but not victims of domestic violence regardless
of sex, are a class of people for whom a higher level of Equal
Protection scrutiny is applied, the majority's concession
destroys the foundation for its opinion. Without women as the
class of persons denied equal protection of the law, there is no
serious equal protection claim. The complaint does claim dis-
crimination against women. It alleges a sheriff's policy that
"denied abused women -- who complained of threatened
domestic violence . . . equal protection of the laws." The com-
plaint therefore does state an equal protection claim, but evi-
dently the majority concedes that when the case previously
came up on summary judgment, there was no evidence for
that claim.

The uncontradicted evidence in the record is that there was
no policy of denying immediate police response to women.
Nor was there any evidence of a policy of denying immediate
police response in domestic violence cases. What the evi-
dence showed, and all that it showed, was a policy of giving
higher priority to calls reporting violence in progress than to
calls reporting threats of violence. So far as the evidence
showed, it did not matter whether the threats were of domestic
or non-domestic violence. What mattered was whether the
violence had already started or whether it was threatened for
the future. That is a classification, but it is not invidious.
There is a rational basis for treating violence not yet occurring
differently from violence already occurring.

The only evidence directly in point was a deposition by the
dispatcher, who tragically did not send immediate police
assistance to Maria Navarro when she called and reported that
her husband was on his way over to kill her. The dispatcher
testified that "there's no written policy" for when the dis-
patcher should send the police. She made the decision in her
discretion, "based on my training, my experience, and so
forth." In the training, some calls were designated as lights
and siren, such as "baby not breathing, shots fired," "when a
hospital is in need of a certain type of blood, we're transport-
ing the blood," "felonies in progress, robbery."

The dispatcher testified that the category of "domestic
violence" was ambiguous, because it included lights and siren
circumstances and discretionary circumstances. She testified
that the practice was to distinguish between "where a person
has intentionally caused bodily injury to another, intentionally
or recklessly caused bodily injury to another or has placed
that person in a position where they would be exposed to
some type of danger or possibly in danger" from "a threat by
an individual." In the first type of domestic violence, "a crime
has been committed," and "we would send a police car out
there." For the second type, the threat, "they're all very
unique. You use your own judgment on what exactly is done,
and what exactly the caller is telling you." There was no pol-
icy on a threat call other than that the dispatcher was to use
her discretion.

The classification for which there was evidence, between
threatened violence and violence already taking place, is not
a classification by sex. It is also not a classification according
to whether the violence is domestic or non-domestic. It has no
relationship to a classification by sex. The evidence showed
no distinction between the treatment of calls involving a
domestic violence threat compared to any other kind of
deadly threat. For example, if a person called and said
"someone I fired last week is coming over to my store to kill
me," the dispatcher's testimony indicates that she would have
treated that as a threat call, for which there was no policy
other than to use her discretion, as opposed to a felony in
progress call, for which she would have necessarily sent a car
with lights and siren. She might or might not send a lights and
siren car in a threat case, whether domestic or non-domestic,
and would have in a felony in progress case, domestic or non-
domestic. The distinction was not by sex, or by whether the
threat was domestic, but rather by whether the violence was
threatened or already occurring.

Based on this uncontradicted evidence, we should have
affirmed the summary judgment in the earlier appeal. The evi-
dence established no policy classifying people by sex, and no
policy of giving lower priority to domestic violence calls.
There was a tragic error, at least in hindsight, in failing to
send a lights and siren car to Mrs. Navarro's house immedi-
ately, but that is not a denial of equal protection of the laws
that entitles a federal court to rearrange sheriff's office poli-
cies. The higher priority given to felonies in progress as com-
pared with crimes threatened but not in progress, raises no
serious equal protection issue, because the level of scrutiny
appropriate to it is rational basis, and there is an obvious ratio-
nal basis for the different priorities. A threat may not materi-
alize, through failure of will or means by the perpetrator, or
avoidance by the prospective victim. "Shots fired " and
"felony in progress" have already materialized. Perhaps the
sheriff's office should have given threats of deadly violence
higher priority than hospital transfer of blood or some felonies
in progress, but this is a policy question, not a constitutional
question under the Equal Protection Clause.

The First, Third, Fourth, Fifth, Eighth, and Tenth Circuits
have rejected the constitutional claims being asserted around
the country based on failure of police to prevent domestic vio-
lence. These circuits have all held that unless sex discrimina-
tion is a motivating factor, there is no constitutional claim.
See Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997)(rejecting
equal protection and due process claims where plaintiff failed
to show discriminatory intent); see also Pinder v. Johnson, 54
F.3d 1169 (4th Cir. 1995)(en banc)(rejecting due process
claim because there is no constitutional right to affirmative
protection by the state); see also Ricketts v. City of Columbia,
36 F.3d 775 (8th Cir. 1994)(rejecting equal protection claim
where no evidence of any discriminatory intent by police
against women); see also McKee v. City of Rockwall, Tex.,
877 F.2d 409 (5th Cir. 1989) (rejecting equal protection claim
where no there is no evidence of any discriminatory intent or
police policy treating domestic violence cases differently); see
also Hynson v. City of Chester, 864 F.2d 1026 (3d Cir.
1988)(requiring a showing of discriminatory motivation for
an equal protection claim to survive summary judgment); see
also Watson v. City of Kansas, 857 F.2d 690 (10th Cir. 1988)
(requiring a showing of discriminatory motivation for an
equal protection claim). Hynson and Watson remanded for
evidence of discriminatory intent or effect toward women, but
in the case at bar, plaintiffs had the opportunity to prove dis-
criminatory intent, and were unable to do so. What they
proved was tragic, and the murder might give rise to a state
tort claim of negligence, but it does not give rise to a federal
constitutional claim, because DeShaney establishes that there
is no constitutional right to a bodyguard against a likely threat
to life.

The potential harm caused by our decision today, as well
as by our prior decision, is that we substitute our judgment for
that of the police about how they set priorities for responding
to calls. No one has given us the authority to do that. And we
do not know enough about police work to do that. So long as
the police have a rational basis for the non-invidious classifi-
cations they make, the remedies for their mistakes are those
afforded by state law in state courts. This kind of question, "to
what 911 calls should we automatically send a car with lights
and siren," needs experienced police officers around a table
arguing about it. They can talk usefully relating their experi-
ences to what needs to be done and what can be done, based
on their knowledge of what kinds of calls come in, and what
kinds of harms can be averted by an immediate lights and
siren dispatch, how many officers are available for response,
how long the responses will take, and all sorts of other ques-
tions that we lack the specialized knowledge to even think of,
let alone answer. Nor do our commissions authorize us to
make this sort of policy decision.

Our opinion is subject to the reading that police must pro-
vide bodyguards against threats of domestic violence, unless
they can prove that victims of such threats are less likely to
be killed or seriously injured than victims of robberies and
"shots fired" crimes. It is unlikely that the police can prove
that, because such hypothetical social science propositions are
inherently hard to prove. As a practical matter, our decision
may simply force police throughout the Ninth Circuit to give
at least as high a priority to 911 calls that say "my spouse is
coming home and threatens to kill me" as to calls that say
"someone is now killing someone on the street in front of my
house." I cannot see why the police have to prove anything to
us when they make non-invidious classifications with a ratio-
nal basis of 911 calls.



1 The factual basis for the Navarros' claim is described in Navarro v.
Block, 72 F.3d 712 (9th Cir. 1995).
2 Additionally, if the Navarros can prove at trial that Defendants dis-
patch peace officers to prevent crimes that pose less (or equal) risk of
death or severe injury than that posed by domestic violence crimes, then
the Navarros would establish that Defendants' asserted justification is a
pretext. If Defendants' justification for discriminating against domestic-
violence crimes is nothing more than pretextual, then Defendants' actions
are arbitrary and violate the Equal Protection Clause. See Lockary v. Kay-
fetz, 917 F.2d 1150, 1155-56 (9th Cir. 1990) (reversing grant of summary
judgment on equal protection claim because plaintiffs raised triable issues
of fact as to whether the defendant's alleged rationale was merely a pre-
3 The 9-1-1 operator testified in her deposition that "shots fired" and
robberies were considered emergencies. But nothing in the record indi-
cates that "shots fired" or robberies result in death or severe injury any
more frequently than domestic-violence crimes. The Navarros should be
allowed to develop further this and other similar evidence.
4 The concurring opinion also cites the following cases: Pinder v. John-
son, 54 F.3d 1169 (4th Cir. 1995), which is not an equal protection case;
McKee v. City of Rockwall, 877 F.2d 409 (5th Cir. 1989), in which the
plaintiff failed to establish that the city had a discriminatory custom or
policy; and Soto v. Flores, 103 F.3d 1056, 1066 (1st Cir. 1997), Ricketts
v. City of Columbia, 36 F.3d 775, 779 (8th Cir. 1994), and Hynson v. City
of Chester, 864 F.2d 1026, 1031 (3rd Cir. 1988), which purportedly follow