Fajardo

Opinion by Judge PREGERSON; Concurrence by Judge KLEINFELD.

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. § 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 summary 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 differently from non-domestic violence calls.” Id. at 715 . We also held that the Navarros’ equal protection claim survived summary 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…

concurring:

I reluctantly concur in the result. The majority decision is based on a mistaken reading of the record. It has the unfortunate consequence that we substitute an appellate court’s views for the sheriffs 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 genuine 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 judgment on the pleadings, thereby compounding the previous error.

The complaint alleges an intentional policy of denying protection 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 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (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…