A.N., by and through her next friend, KATHERINE PONDER; KATHERINE PONDER, Plaintiffs - Appellees,
KEITH DARON SYLING, individually and in his former, official capacity as Chief of Police, for the Alamogordo Police Department; ROGER SCHOOLCRAFT, individually and in his official capacity as Detective Lieutenant and Deputy Chief of Police for the Alamogordo Police Department; DAVID KUNIHIRO, individually and in his official capacity as Lieutenant for the Alamogordo Police Department; AUDRA SMITH, individually and in her official capacity as Executive Assistant for the Alamogordo Police Department, Defendants - Appellants.
on the briefs: [*]
from the United States District Court for the District of New
Mexico (D.C. No. 2:18-CV-00173-JAP-GJF)
P. Sullivan and Frank D. Weissbarth, Brennan & Sullivan,
P.A., Santa Fe, New Mexico, for Defendants-Appellants.
Rebekah A. Scott Courvoisier, Courvoisier Law, LLC,
Alamogordo, New Mexico, for Plaintiffs-Appellees.
BRISCOE, McKAY, and LUCERO, Circuit Judges.
BRISCOE, CIRCUIT JUDGE
Keith Daron Syling, Roger Schoolcraft, David Kunihiro and
Audra Smith (collectively "Defendants") are
officers or employees of the Alamogordo Police Department
(APD) who were allegedly responsible for the public release
of information regarding the arrest of a juvenile, A.N, in
violation of New Mexico law. A.N. and her mother, Katherine
Ponder, (collectively "Plaintiffs") brought this
action against Defendants and others, asserting claims under
federal and state law. Defendants appeal the district
court's denial of their motion to dismiss Plaintiffs'
equal protection claim under 42 U.S.C. § 1983 based on
qualified immunity. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
2017, A.N., then sixteen, was arrested by an APD detective
pursuant to an arrest warrant. The warrant was issued by a
judge in the New Mexico Children's Court (Children's
Court) based on an affidavit in which an APD detective
alleged A.N. had committed a delinquent act, that is, an act
"that would be designated as a crime under the law if
committed by an adult," N.M. Stat. Ann. §
32A-2-3(A). Because A.N. was less than eighteen years old,
she was considered a juvenile and was detained at a juvenile
detention facility after her arrest. On the same day A.N. was
arrested, two adults were arrested and charged with the same
crime referenced in A.N.'s arrest warrant.
days after A.N.'s arrest, Defendant Kunihiro prepared a
news release ("News Release") regarding the arrest
of the two adults and A.N. which included the charges brought
and the crime allegedly committed. The News Release
identified A.N. by name, reported the crime she had been
charged with, and stated that she was sixteen and being held
at a juvenile detention facility. At Defendant Smith's
suggestion, the News Release included A.N.'s booking
photo. Defendants Syling and Schoolcraft, APD's Chief and
Deputy Chief, respectively, reportedly approved the News
Release before it was released to the public.
APD, acting through Defendant Smith or another as-of-yet
unidentified APD employee, provided the News Release to media
and news organizations and posted it on APD's public
Facebook page. By the next day, the News Release, including
the information related to A.N. and her arrest, had been
picked up and published by various media organizations,
including TV stations in Albuquerque and El Paso. The
APD's Facebook post of the News Release had also been
viewed and shared hundreds of times and generated more than
allege, and Defendants have not disputed, that New
Mexico's Children's Code and other state rules and
regulations provide that arrest and delinquency records
relating to a child are confidential and that information
from these records may not be disclosed directly or
indirectly to the public. See, e.g., N.M. Stat. Ann.
§ 32A-2-32(A), (C) (providing as part of New
Mexico's Delinquency Act that all records pertaining to a
child in the possession of the state department responsible
for delinquency proceedings "are confidential and shall
not be disclosed directly or indirectly to the public"
by state officials or others, including law enforcement
officials); id. § 32A-2-32.1 (prohibiting state
agencies, municipalities and others from "disclos[ing]
on a public access web site maintained by it any information
concerning . . . an arrest or detention of a child [or]
delinquency proceedings for a child"). Because a child
is defined for these purposes as a person who is less than
eighteen years old, see N.M. Stat. Ann. §
32A-1-4(A), it is further undisputed that A.N., as a
sixteen-year-old, was entitled to the benefit of these state
law protections and that Defendants violated one or more of
these state statutes and rules in publicly disclosing her
mother learned of the News Release shortly after APD posted
it on Facebook. She called to complain about the release of
information about A.N. and was told by Defendant Smith that
APD was allowed to release this information because A.N. at
sixteen was "the age of consent," and because she
had been physically arrested. Aplt. App. Vol. I at 57. But
APD removed all references to A.N. from the Facebook post on
the following day, after receiving correspondence from an
attorney representing A.N. and her mother requesting the
immediate removal of this information. Nonetheless,
information regarding A.N. and her arrest remains publicly
available today on internet sites maintained by media and
other organizations that received the News Release from APD.
brought this action against APD, the Defendants in their
individual and official capacities, and others, alleging that
the disclosure of A.N.'s name and the information
concerning her arrest violated the Children's Code and
other New Mexico rules and regulations, violated their right
to procedural and substantive due process and to equal
protection under the United States and New Mexico
Constitutions, and constituted various torts under New Mexico
law. In support of their federal equal protection claim,
Plaintiffs alleged Defendants violated Plaintiffs' right
to equal protection under the law because they and the APD,
by official policy or actions, treated A.N. and other
juvenile arrestees sixteen or over differently from juvenile
arrestees under sixteen with respect to publicly disclosing
information about ...