Appellate courts are free to decline consideration of arguments made for the first time on appeal. See id. at 195 n. 2, 109 S.Ct. 998. This argument also fails on substantive grounds. First, the Gardenhires’ Equal Protection claim stems not from Chief Schubert’s failure to protect Ms. Garde-nhires’ store, but from the allegedly wrongful arrest of the couple. There is no dispute that Mr. Gardenhire is African-American; the jury may find he was arrested and that his arrest, at least, was based on racial animosity. And, just as a police officer may not unevenly apply the laws against a citizen because of his race, neither may he apply the laws unevenly because a citizen is married to someone of a particular race. See Loving v. Virginia, 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (<HOLDING>). There is no question that in 1996, it was
holding that state may not treat interracial marriages differently from other marriages holding that the state police is a state agency recognizing that under california state law only ceremonial marriages can be contracted holding state immune from suit brought in state court holding that it may not