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A.N. v. Syling

United States Court of Appeals, Tenth Circuit

July 8, 2019

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.

         Submitted on the briefs: [*]

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:18-CV-00173-JAP-GJF)

          James 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.

          Before BRISCOE, McKAY, and LUCERO, Circuit Judges.


         Defendants 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.


         In 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.

         Four 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.

         The 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 100 comments.

         Plaintiffs 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 confidential information.[2]

         A.N.'s 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.

         Plaintiffs 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 ...

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