Appeal from the United States District Court for the District of the Northern Mariana Islands. Alex R. Munson, District Judge, Presiding. D.C. No. 1:07-cv-00021.
The opinion of the court was delivered by: Kozinski, Chief Judge
Argued and Submitted May 12, 2009 -- Honolulu, Hawaii
Before: Alex Kozinski, Chief Judge, Jay S. Bybee and Consuelo M. Callahan, Circuit Judges.
Opinion by Chief Judge Kozinski; Partial Concurrence and Partial Dissent by Judge Callahan
We consider whether law enforcement officers who are accused of failing to investigate a crime or make an arrest due to the race of the victim and that of the perpetrator are entitled to qualified immunity.
We recite the facts as Ae Ja Park Elliott*fn1 alleges them in her complaint. Elliott, who is racially and ethnically Korean, was driving south along 16 Highway in Papago, Saipan. Nor-bert Duenas Babauta, who is racially and ethnically Micronesian, was driving north along the same highway when he sped through a turn, crossed onto oncoming traffic and crashed into Elliott's car. Officer Manglona noticed the accident and approached. When Elliott asked him to call her husband, he shoved her inside her car and told her to shut up and calm down. Manglona then began conducting interviews of the witnesses, drivers and passengers. Officers Macaranas and Lang- don arrived shortly thereafter and spoke to both drivers. The officers are all racially and ethnically Micronesian.
The three officers had cause to believe Babauta had been driving under the influence of alcohol: He was teetering and slurring his words, he reeked of alcohol and had bloodshot eyes, his truck bed was littered with empty beer cans and he told Manglona that he had "blacked out" while driving. Despite these obvious signs of intoxication, the officers didn't administer field sobriety or blood alcohol tests, or otherwise investigate whether Babauta had been driving drunk. Nor did the officers charge him with a DUI or any other crime or infraction. Manglona also falsely stated in his accident report that Babauta "had not been drinking."
Dr. Thomas Austin, who examined Elliott and Babauta at the hospital, called DPS to complain after he learned that Babauta hadn't been charged with a DUI. After this complaint, and perhaps some others, the Department of Public Safety (DPS) initiated an investigation, but the three officers conspired with others to obstruct the investigation and prevent prosecution of Babauta. Elliott claims the officers failed to investigate the crime or arrest Babauta because of racial animus against her as a Korean and in favor of Babauta as a Micronesian.
On a motion to dismiss, the district court found that Elliott sufficiently alleged a 42 U.S.C. § 1983 equal protection claim and a 42 U.S.C. § 1985 conspiracy and obstruction of justice claim against the officers. The district court concluded the officers weren't entitled to qualified immunity at the motion to dismiss stage. The officers bring this interlocutory appeal.
 Unlike prosecutors, who enjoy absolute immunity, police officers are entitled only to qualified immunity in section 1983 cases. See Malley v. Briggs, 475 U.S. 335, 341-43 (1986). In a qualified immunity appeal, we normally look first to whether a constitutional violation was alleged and then to whether the defendants have qualified immunity as a matter of law. See Pearson v. Callahan, 129 S.Ct. 808, 813 (2009). We review the district court's decision de novo. Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996).
1. According to Elliott, the three police officers refused to investigate the incident because Babauta is Micronesian and Elliott is Korean. Elliott also claims that Officer Macaranas fully investigated another drunk driving accident that occurred the same evening where the victim was Micronesian but the driver wasn't. The officers don't dispute that Elliott has pled facts from which a trier of fact could infer racial discrimination.
 Instead, the officers argue that individuals don't have a constitutional right to have police arrest others who have victimized them. But Elliott's equal protection claim isn't based on some general constitutional right to have an assailant arrested. Rather, she argues Babauta was given a pass by the police because of the officers' alleged racial bias not only in favor of Babauta as a Micronesian, but also against her as a Korean. And while the officers' discretion in deciding whom to arrest is certainly broad, it cannot be exercised in a racially discriminatory fashion. For example, a police officer can't investigate and arrest blacks but not whites, or Asians but not Hispanics. Police can't discriminate on the basis of the victim's race, either. We recognized as much in Estate of Macias v. Ihde, where we held that there is no right to state protection against madmen or criminals, but "[t]here is a constitutional right . . . to have police services administered in a nondiscriminatory manner-a right that is violated when a state actor denies such protection to disfavored persons." 219 F.3d 1018, 1028 (9th Cir. 2000); see also DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 n.3 (1989) ("The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.").
 The officers concede that the Constitution protects against discriminatory withdrawal of police protection, but they claim that Elliott was not denied this right because they provided her with some police services: They called an ambulance and questioned bystanders. According to the officers, only a complete withdrawal of police protective services violates equal protection. But diminished police services, like the seat at the back of the bus, don't satisfy the government's obligation to provide services on a non-discriminatory basis. See Navarro v. Block, 72 F.3d 712, 715-17 (9th Cir. 1995) (alleged policy to treat domestic violence 911 calls less urgently could form the basis for an equal protection claim). Certainly the government couldn't constitutionally adopt a policy to spend $20,000 investigating each murder of a white person but only $1,000 investigating each murder of a person of color. Likewise, it doesn't matter that Elliott received some protection; what matters is that she would allegedly have received more if she weren't Korean and Babauta weren't Micronesian.
The officers also suggest that the equal protection clause only protects against selective denial of protective services, and that investigation and arrest aren't protective services unless there is a continuing danger to the victim. But the officers' understanding of protective services is too limited. If police refuse to investigate or arrest people who commit crimes against a particular ethnic group, it's safe to assume that crimes against that group will rise. Would-be criminals will act with a greater impunity if they believe they have a get out of jail free card if they commit crimes against the disfavored group. Babauta may well have been emboldened to drive drunk with empty beer cans rolling around in the back of his truck because he believed that he would suffer no ill consequences should he cause an accident.
In any event, whether investigation and arrest are protective services is immaterial. While the Supreme Court may have written in DeShaney that the government couldn't "selectively deny its protective services" to disfavored minorities, 489 U.S. at 197 n.3, that certainly doesn't imply that the government can selectively deny its non-protective services to disfavored minorities. The government may not racially discriminate in the administration of any of its services. See Palmer v. Thompson, 403 U.S. 217, 219-223 (1971) (government-funded pools cannot be operated on a racially discriminatory basis); Hawkins v. Town of Shaw, 437 F.2d 1286, 1288 (5th Cir. 1971) (municipal services cannot be provided on a racially discriminatory basis).
 The dissent agrees that the discriminatory denial of investigative services may violate equal protection. Dissent at 909. Nevertheless, our colleague questions whether Elliott has an equal protection claim based on the officers' failure to arrest Babauta because arrest decisions are entitled to deference and because Elliott probably suffered little harm. See id. at 901. But even the dissent recognizes that police officers aren't entitled to deference for their decision if it is based on racial animus. See id. at 899-900. And the fact that Elliott may not have been harmed much speaks more to whether she can recover anything beyond nominal damages than to whether she has an equal protection claim. See also Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135-36 (9th Cir. 2003) (discriminatory failure to investigate and discipline stu-dent harassment complaints violates equal protection). Certainly, a plaintiff complaining of heart attack symptoms has a ...