Kimberly KENNEDY, individually and in her capacity as personal representative of the estate and as guardian for her children aka Kimberly Gorton; Jay D. Kennedy, aka JD Kennedy; Keith Teufel; Tera Teufel, Plaintiffs-Appellees,
v.
CITY OF RIDGEFIELD, a municipal corporation and political subdivision of the State of WA; Noel Shields, Defendants-Appellants.
No. 03-35333.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 17, 2004.
Filed March 7, 2006.
COPYRIGHT MATERIAL OMITTED John R. Connelly, Jr., Darrell L. Cochran and Lincoln C. Beauregard, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, WA, for the plaintiffs-appellees.
Ray P. Cox, Forsberg & Umlauf, Seattle, WA, for the defendants-appellants.
Appeal from the United States District Court for the Western District of Washington; J. Kelley Arnold, Magistrate, Presiding. D.C. No. CV-01-05631-JKA.
Before: BROWNING, TASHIMA, and BYBEE, Circuit Judges.
BROWNING, Circuit Judge:
Defendant Noel Shields appeals the denial of his motion for summary judgment based on his assertion of qualified immunity against Plaintiff Kimberly Kennedy's 42 U.S.C. § 1983 claim. He argues that his conduct did not violate Plaintiff's clearly established constitutional rights. We disagree, and affirm the district court's determination that, on the facts alleged, Shields is not entitled to qualified immunity.
I. Introduction
The following initial facts are undisputed. Kimberly Kennedy's § 1983 action against Ridgefield City and Ridgefield Police Officer Noel Shields stems from events occurring on September 24, 1998, when a thirteen year-old neighbor, Michael Burns, shot and killed her husband, Jay Kennedy, and shot and severely wounded her. Earlier that same month, on September 6, Kennedy called the Ridgefield Police Department ("RPD") and alleged that Burns had molested Kennedy's nine-year-old daughter. RPD Officer Shields responded to the call. Burns shot the Kennedys within approximately eight hours of first learning of the allegations against him. He has since been convicted of the premeditated murder of Jay Kennedy and the attempted premeditated murder of Kimberly.
At this early stage in the litigation, there are indeed facts which the parties dispute. However, because Shields contends that, even after resolving all issues of fact in Kennedy's favor, she fails to demonstrate that he violated her constitutional rights, we present and consider the remaining facts, where appropriate, in a light most favorable to Kennedy.
During their initial meeting on September 6, Kennedy warned Shields of Michael Burns's known, violent tendencies. She told Shields that the Burns family was unstable, that she had seen a lot of violence in their home, and described to Shields several violent incidents involving both Michael and his mother, Angela Burns. Kennedy told Shields that Michael had been involved in fights at school, had lit a cat on fire, had broken into his girlfriend's house and attacked her with a baseball bat, and had thrown rocks at a building in downtown Ridgefield. After learning of Burns's violent behavior, Shields assured Kennedy that she would be given notice prior to any police contact with the Burns family about her allegations.
Following that meeting, Shields forwarded his report to the Child Abuse and Intervention Center ("CAIC"). Shields had no further contact with Kennedy between September 6 and September 24, the night of the shooting. On several occasions, Kennedy inquired into the status of the investigation of Michael and reminded officers to notify her prior to any contact with the Burns family. In the interim, she and Shields both learned that Michael had been investigated for sending death threats to a classmate, though the investigation concluded he was not responsible. During her inquiries, Kennedy expressed concern for her safety and told the CAIC officer handling the case that she was anxious to have the investigation started.
On September 24, Kennedy called both Shields and the CAIC to inquire into the progress of the investigation. Kennedy left a message for Shields asking about the status of the alleged molestation case, and whether he had yet contacted Burns. After receiving Kennedy's message when he arrived at work that afternoon, Shields called the CAIC to inquire into the status of the investigation. The officer responsible for the case was out, so Shields left his own message. Then, rather than calling Kennedy with an update, Officer Shields drove to the Burns residence. Shields claims he did so because the Burns house was on the way to the Kennedy's, and if he could determine whether they had been contacted, he could continue to the Kennedy's with more accurate information. At approximately 5:00 p.m., Shields talked to Angela Burns, informing her and Michael of Kennedy's allegations.
After speaking with Angela, Shields went to the Kennedy house. When he arrived, at approximately 5:15 p.m., Shields told Kennedy that he had informed Angela Burns of the molestation allegations. Kennedy became upset and asked Shields why he had contacted the Burns family prior to notifying her and told Shields that she feared for her safety. Officer Shields assured her that the police would patrol the area around both her house and the Burns's house that night to keep an eye on Michael.
After Shields left, Kennedy called a friend because she was very frightened of what Michael's and his mother's reactions would be. Shields had told her Angela was very angry after their conversation and that she and Michael had begun to yell at one another. Kennedy took no further action until about 10:00 p.m. that night when her husband returned from a hunter's safety course. He had left their house to attend the course just as Shields had arrived that afternoon. The Kennedys decided to stay the rest of the night at home, in part because of the late hour, and in part because Shields allegedly promised to patrol the neighborhood. They planned to lock their doors and leave town early the next morning. But early on the morning of September 25, Michael Burns broke into the Kennedy house and shot both Jay and Kimberly Kennedy while they slept.
Kennedy filed suit against Shields and Ridgefield City, among others, in Clark County Superior Court asserting several state causes of action and a claim under 42 U.S.C. § 1983 and the Fourteenth Amendment. The case was removed to the United States District Court for the Western District of Washington. On March 13, 2003, Shields and Ridgefield City moved for summary judgment. The court granted summary judgment to Defendants on Kennedy's state law claims of negligent infliction of emotional distress and the tort of outrage, and to Ridgefield City on her § 1983 "failure to train" claim.
However, the district court denied Shields's motion for summary judgment based on qualified immunity. It concluded that, viewing the facts in a light most favorable to Kennedy, "a jury could find that Officer Shields unreasonably created a false sense of security in plaintiffs by agreeing to give plaintiffs advanced notice of advising the Burns family of the allegation that Michael Burns sexually molested [Kennedy's daughter], and assuring the plaintiffs of a neighborhood patrol." Order, at 4-5. This interlocutory appeal followed.
II. Analysis
This case presents two legal issues. First, we must consider whether this Court has jurisdiction over Shields's interlocutory appeal concerning his qualified immunity defense. If so, we must then determine whether Shields is entitled to such immunity.
We review de novo an interlocutory appeal from the denial of summary judgment based on qualified immunity. Wilkins v. City of Oakland,
A. Jurisdiction over Qualified Immunity Claims on Interlocutory Appeal
In response to Shields's interlocutory appeal, Kennedy argues first that this court lacks jurisdiction. We disagree, and conclude we have jurisdiction to determine whether the trial court erred in holding Shields was not entitled to qualified immunity.
As a general rule, interlocutory appeals from determinations of qualified immunity are permissible. In Mitchell v. Forsyth,
Kennedy correctly notes that the Court created an exception to this general rule in Johnson v. Jones,
Viewed in a light most favorable to plaintiffs, a jury could find that Officer Shields unreasonably created a false sense of security in plaintiffs by agreeing to give plaintiffs advance notice of advising the Burns family of the allegation that Michael Burns had sexually molested [Kennedy's daughter], and assuring the plaintiffs of a neighborhood patrol.... In essence there is a question of fact as to whether or not there was justifiable reliance by plaintiffs on the alleged promises by Shields.
Order, at 4-5. Thus, the district court's order observes that issues of fact remain.
However, this does not suffice to deprive us of jurisdiction under Johnson. In a subsequent case, the Supreme Court explained:
Denial of summary judgment often includes a determination that there are controverted issues of material fact, see Fed. Rule Civ. Proc. 56, and Johnson surely does not mean that every such denial of summary judgment is nonappealable. Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified immunity case. . . . Johnson reaffirmed that summary judgment determinations are appealable when they resolve a dispute concerning an `abstract issu[e] of law' relating to qualified immunity . . . typically, the issue whether the federal right allegedly infringed was `clearly established.'
Behrens v. Pelletier,
Unlike the appeal in Johnson, we are neither asked nor required to look at the sufficiency of the evidence in support of the factual claims made by the parties, i.e., Shields's contention that he did not create a false sense of security, and Kennedy's insistence that he did. See Johnson,
While the district court concluded that issues of fact remain, those disputed facts are not the basis of Shields's interlocutory appeal before this court. Rather, Shields contends that, even after resolving the issues of fact in Kennedy's favor, Kennedy will not have demonstrated that Shields violated her clearly established, constitutional right. Because this question represents an "abstract issue of law relating to qualified immunity," it falls within our jurisdiction on interlocutory appeal.
Assuming as true the facts adduced by Kennedy, then, we must determine whether Shields violated her constitutional rights and whether those rights were clearly established. Officer Shields is entitled to qualified immunity unless we resolve both issues in the affirmative. We now turn to those questions.
B. Application of Qualified Immunity to Officer Shields
In Saucier v. Katz,
However, if the court determines that the conduct did violate a constitutional right, Saucier's second prong requires the court to determine whether, at the time of the violation, the constitutional right was "clearly established." Id. A right is clearly established if its "contours" are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (citing Anderson v. Creighton,
1. First Prong: Did Shields Violate Kennedy's Constitutional Rights?
Kennedy alleges that Shields violated her Fourteenth Amendment right to substantive due process by placing her in a known danger with deliberate indifference to her personal, physical safety.
It is well established that the Constitution protects a citizen's liberty interest in her own bodily security. See, e.g., Ingraham v. Wright,
This circuit first recognized such "danger creation" liability in Wood v. Ostrander,
Since Wood, this circuit has held state officials liable, in a variety of circumstances, for their roles in creating or exposing individuals to danger they otherwise would not have faced. See L.W. v. Grubbs,
a. Danger Affirmatively Created Due to State Action
"In examining whether an officer affirmatively places an individual in danger, we do not look solely to the agency of the individual, nor do we rest our opinion on what options may or may not have been available to the individual. Instead, we examine whether the officer[ ] left the person in a situation that was more dangerous than the one in which they found him." Munger,
Shields drove to the Burns residence and notified the Burns family of the allegations against Michael. In doing so, he affirmatively created a danger to Kennedy she otherwise would not have faced, i.e., that Michael Burns would be notified of the allegations before the Kennedys had the opportunity to protect themselves from his violent response to the news. Like plaintiff's supervisor in Grubbs, Shields created "an opportunity for [Burns] to assault[the Kennedys] that otherwise would not have existed," Grubbs,
The dissent's assertion, infra at 1076, that "[n]otifying Michael Burns was an inevitable consequence of Kennedy's allegations of child molestation" is an impermissible inference from the facts.3 More importantly, it is beside the point. The only relevant question here is whether Shields, by informing Burns of Kennedy's allegations without first warning her as he had promised to do, realized the "inevitable consequence" about which the dissent speculates. We find that, in doing so, Shields affirmatively created an actual, particularized danger Kennedy would not otherwise have faced. The existence of this danger does not depend, as the dissent repeatedly suggests, infra at 1075 n. 5, 1075, on a difference of fifteen-minutes to which we give unwarranted constitutional magnitude. That Shields notified Kennedy of the danger he had created fifteen minutes before did not obviate or cure that danger; nor did it give Kennedy a reasonable opportunity to protect her family from it.
In addition, we must accept Kennedy's evidence that Shields assured her early in the evening of September 24 that, given the threat Michael posed, the police would patrol the neighborhood that night. As in Grubbs, we do not rest our judgment that Shields affirmatively created a danger on that assurance alone, though in light of it, it is quite reasonable that the Kennedys decided late that night, when Mr. Kennedy returned from his class, to remain at home. Instead, as it did in Grubbs, Shields's misrepresentation as to the risk the Kennedys faced was an additional and aggravating factor, making them more vulnerable to the danger he had already created. See Grubbs,
b. Deliberate Indifference
We must decide the related issues of whether the danger to which Shields exposed the Kennedys was known or obvious, and whether he acted with deliberate indifference to it. See Bryan County v. Brown,
Kennedy has shown that, at their original meeting, she told Shields in detail of Michael Burns's violent tendencies, including several incidents of what can only be described as alarming, aggravated violence, notably, lighting a cat on fire and assaulting his girlfriend with a baseball bat after breaking into her house. Additionally, she has testified that, after learning of Burns's violent behavior, Shields assured her that she would be given notice prior to any police contact with the Burns family. Kennedy also testified that between September 6 and 24, she left several messages with the police department and the CAIC in which she expressed continued fear for her family's safety and refreshed her concern that she be given notice before the Burns family was notified in the course of the investigation.
On September 24, Shields knew that Michael was violent. Moreover, he knew that Michael had broken into his girlfriend's house and beaten her with a baseball bat. On the facts alleged, it was obvious that Michael had a predilection for violence and was capable of the attack he in fact perpetrated on the Kennedys.5 Indeed, Burns's attack was the very act Kennedy had repeatedly warned Shields of, and had sought to protect her family against. Thus, we are convinced that Shields knew that telling Burns about the allegations against him without forewarning the Kennedy's would place them in a danger they otherwise would not have faced.
Kennedy also adduced sufficient evidence for us to conclude that, if such evidence is accepted by the fact finder as true, Shields acted with deliberate indifference to the known and obvious danger we have just described. In Grubbs II, we clarified the mental state required in state-created danger cases. See
Viewing the facts in the light most favorable to Kennedy, we find that, if accepted as true, they are sufficient to establish that Shields acted deliberately and indifferently to the danger he was creating. Kennedy warned Shields repeatedly about Burns and requested that Shields notify her first so she could protect her family. With knowledge of Burns's propensity for violence and of Kennedy's fear, and despite his promise to Kennedy to the contrary, Shields nevertheless notified Burns first. Of all the possible actions he could take, and pursuant to no investigatory duties, he took the one most feared by Kennedy. His only explanation for his action is that it was a more convenient way in which to answer an administrative phone message. Then, after notifying Burns, Shields allegedly reassured the visibly frightened Kennedy of increased security which was either never provided or plainly ineffective. Given the danger created by Shields that the Kennedys faced, we find such alleged, capricious behavior sufficient evidence of deliberate indifference.
2. Second Prong: Was the Right Violated Clearly Established?
We turn now to the second prong of Saucier, which Plaintiff has the burden of establishing. See Sorrels v. McKee,
To determine whether a right is clearly established, the reviewing court must consider whether a reasonable officer would recognize that his or her conduct violates that right under the circumstances faced, and in light of the law that existed at that time. Saucier,
For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Hope v. Pelzer,
Thus, the specific, alleged conduct in this case need not have been previously and explicitly deemed unconstitutional, but existing case law must have made it clear that the conduct violated constitutional norms. This has been our consistent standard since Wood. See Wood,
It is beyond dispute that in September 1998, it was clearly established that state officials could be held liable where they affirmatively and with deliberate indifference placed an individual in danger she would not otherwise have faced. This court first recognized the theory of state-created danger liability almost ten years before the events in this case in Wood. In the interim, we published three decisions explicitly recognizing such liability under three distinct factual scenarios.7 See Grubbs,
Indeed, even were we to engage in an examination of our case law with the finer resolution encouraged by the dissent, we conclude that, as to the state-creation of danger, this case is not "meaningfully distinguishable" from Grubbs. See Wood,
In Grubbs, as in this case, a state official affirmatively acted: supervisor Grubbs assigned a violent sex offender to work closely with L.W., and Officer Shields notified Burns, leaving Kennedy unable to protect her family. In Grubbs, as in this case, those state actions left plaintiffs exposed to the danger of the subsequent physical assault and injury they in fact suffered. And in both cases the plaintiff relied upon the state actor's representation and did not take protective measures she otherwise would have taken, and the state's action made plaintiffs vulnerable to a particularized danger they would not have faced but for that action.
Indeed, in this case, as in Grubbs, Shields used his "authority as a state . . . officer to create an opportunity for [Burns] to assault [Kennedy] that would not have otherwise existed." Grubbs,
III. CONCLUSION
Under Behrens,
AFFIRMED.
Notes:
Notes
The dissent suggests that this court created such liability inWood by glossing DeShaney. See infra, at 2254-56. In fact, the "state-created danger" doctrine predates DeShaney, See, e.g., White v. Rochford,
Moreover, the doctrine is not particular to our court. It is well established law in seven of our sister circuits. Butera v. District of Columbia,
We disagree with the dissent's characterization of the factors for analysis our case law prescribes,infra at 1073-74. While it is proper to consider whether the conduct at issue was an affirmative act or an omission, whether it was directed toward the plaintiff specifically, and whether it was done with deliberate indifference to a known or obvious danger, we have never required, as the dissent suggests, infra at 1073, that the "government's act caused the harm" suffered by plaintiff. Instead, our "state-created danger" cases clearly contemplate § 1983 liability for the state actor who, though not inflicting plaintiff's injury himself, has placed plaintiff in the harmful path of a third party not liable under § 1983. See United States v. Koon,
In fact record evidence clearly leads to the opposite inferenceSee, e.g., Appellee's Supplemental Excerpts of the Record at 88 (recording deposition testimony of a CAIC investigator: "Q: Do you receive any training as far as the timing when it's best to contact an offender? A: At the end of the investigation. You need to have all your facts in order. Q: So by that you mean . . . that would be like the last step? A: Yes. Q: Why is that? A: Well, because you can't tell when they're lying to you. . . . Q: Is there a situation where you've been trained it's good to contact the offender before the end of the investigation? A: The only time would be is if there was some sense of urgency, something that was emergent."). In light of such evidence, the dissent's speculation, infra at 1076 n. 6, that the only reason for late notification is to allow a questioning officer to assess the offender's credibility amounts to another impermissible inference drawn in Shields's rather than Kennedy's favor.
We note this court has already specifically rejected the "danger creation" versus "danger enhancement" distinction the dissent raises,infra at 1076-1077. See Penilla,
The dissent,infra at 1078, again appears to confuse the standard established in our case law by requiring foreseeability of the specific injury Burns in fact inflicted on the Kennedys, rather than foreseeability of the danger of such injury that Shields created. We have never required that, for a danger to exist, the exact injury inflicted by a third party must have been foreseeable. Instead, the state actor is liable for creating the foreseeable danger of injury given the particular circumstances. For example, in Wood, we did not speculate, nor require, that Trooper Ostrander foreseeably knew Wood would in fact be raped by a passing motorist. We held he could be liable, however, for leaving Wood in a situation more dangerous than the one she already faced, i.e., for stranding her alone in a known high-crime area at 2:30 a.m. See Wood,
Citing language from ourGrubbs II survey of other circuits, the dissent appears to suggest Shields was required to have a mental state closer to the specific intent of exposing Kennedy to the actual injury Burns inflicted. See infra at 1077-1078. We disagree. Grubbs II requires no more and no less than "deliberate indifference" to the danger in question.
The dissent, claiming to follow the requirements ofSaucier, infra at 1079, attempts to show through an elaborate fact-matching exercise that none of our state-created danger cases clearly enough established the requisite notice. We consider the exercise misguided and, as discussed below, analytically flawed. An exact factual predicate case has never been required to find a right clearly established. Indeed, Flores made it clear that not even materially similar facts were necessarily required. See
We note that the Fifth Circuit looking only to our decisions inWood and Grubbs considered the state-created danger theory "clearly established" in this circuit under Saucier as early as 1993. See McClendon v. City of Columbia,
BYBEE, Circuit Judge, dissenting:
I vigorously part company with the majority's conclusions that Shields created the danger that Kennedy faced and that he acted with deliberate indifference in doing so, thereby violating her rights under the Due Process Clause of the Fourteenth Amendment. The majority's conclusion is unsupported by the record and our own case law. The majority concludes that in the fifteen minutes between the time Officer Shields contacted Angela Burns and the time he advised Kim Kennedy of the contact, he deprived Kennedy of her due process rights. In so holding, the majority not only mangles the state-created danger doctrine, it holds that its new rule was so clearly established that Officer Shields should have known he was violating the Constitution and, thus, has forfeited his qualified immunity.
We have never before recognized a state-created danger cause of action on facts remotely analogous to these. In the sixteen years since we introduced the state-created danger exception to DeShaney into our case law, we have approved its application on fewer than five occasions. In these cases, we have narrowly construed the exception to encompass only those claims in which the government's action was directed at a specific plaintiff, rather than the public at large; the government acted affirmatively, rather than simply failed to act; the government's act caused the harm, rather than merely increased the risk; and the government's action constituted deliberate indifference to the known or obvious danger, rather than mere—or even gross—negligence. Ignoring these elements, the majority today extends the state-created danger doctrine to a situation in which it cannot be said with any measure of confidence either that the government's act caused the plaintiff's harm or that the government acted with the requisite level of culpability.
Even if I thought Officer Shields had violated our state-created danger gloss on the Due Process Clause, the violation was surely not so obvious that he should have known at the time that he was violating Kennedy's constitutional rights. Consequently, even assuming a constitutional violation, I would hold that Officer Shields is nonetheless entitled to qualified immunity. I respectfully dissent.1
I. BACKGROUND
The facts of this case are undeniably tragic. On September 6, 1998, Kennedy filed a complaint with the City of Ridgefield Police Department ("RPD") accusing her thirteen-year-old neighbor, Michael Burns, of sexually molesting her nine-year-old daughter. Officer Shields was dispatched to Kennedy's home to record the complaint.
Kennedy recalls talking with Officer Shields about the instability of the Burns family. She alleges that she informed Shields that the Burns family "had bad tempers" and that Michael was in trouble all the time, including one unfruitful investigation for allegedly sending a death threat to a classmate; he also once threw rocks at his stepfather's building. On another occasion, Michael reportedly lit a cat on fire, and later unlawfully entered his girlfriend's house "and went after her with a baseball bat" after she broke up with him. On the basis of this alleged misconduct, Kennedy requested prior notification before the Burns family was informed of her allegations.
Following her initial complaint, Kennedy repeatedly contacted the RPD—at least six times during the eighteen days following her complaint—regarding the status of the investigation. On September 24, Kennedy called Officer Shields directly to determine whether the Burns family was aware of her allegations. Unable to reach Shields by phone, she left a message. In response to her inquiry, Shields proceeded to the Burnses' home to ascertain whether the family had been notified. Shields was greeted by Angela Burns (Michael Burns's mother) and Shields asked her whether she had received a phone call or visit from the Child Abuse and Intervention Center ("CAIC"). Angela Burns inquired as to the reason for his question, and Shields advised her of the allegations.
Immediately following this meeting, Shields drove directly to Kennedy's residence—located approximately one block away—and informed her that Angela Burns had been notified of her allegations. Kennedy alleges that she expressed fear regarding Michael Burns's possible reaction. She further alleges that, in response to her expressions, Officer Shields promised to patrol the area that night to watch for Michael. After discussing the matter with her husband, Kennedy chose to remain in her home that evening and leave town the following morning. Michael Burns entered the Kennedy home that night, shot and killed Jay Kennedy, and seriously wounded Kim Kennedy. She now brings this action against Officer Shields, claiming that his conduct violated her rights under the Due Process Clause of the Fourteenth Amendment.
II. SAUCIER TWO-STEP
As the majority notes, the Supreme Court's opinion in Saucier v. Katz,
Officer Shields claims that he is entitled to qualified immunity from Kennedy's suit. Accordingly, Saucier instructs that we must first determine whether, "[t]aken in the light most favorable to the party asserting the injury . . . the facts alleged show the officer's conduct violated a constitutional right." Saucier,
The majority concludes that Kennedy's allegations permit a jury to find that Officer Shields's conduct deprived her of due process as guaranteed by the Fourteenth Amendment on the theory that Shields affirmatively created the danger that injured her and took her husband's life. The majority holds, in addition, that Officer Shields is not entitled to qualified immunity for this violation. I disagree on both accounts. To explain my disagreement on the first point, it is worth briefly outlining this Court's state-created danger doctrine.2
A. State-Created Danger Doctrine
As the majority observes, the state-created danger doctrine is said to trace its jurisprudential pedigree in this Circuit to the Supreme Court's opinion in DeShaney, perhaps best known for Justice Blackmun's exclamation, "Poor Joshua!" DeShaney v. Winnebago County Dep't of Soc. Servs.,
Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power, or employing it as an instrument of oppression[.] Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.
Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. . . . [I]t follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.
Id. at 196-97,
We have noted two distinct exceptions to the general rule that the state has no affirmative duty to protect persons from violence inflicted by private actors: (1) the "special relationship" exception, stemming from a custodial relationship between the state and the victim; and (2) the "danger creation" exception, stemming from "affirmative conduct on the part of the state in placing the plaintiff in danger." L.W. v. Grubbs,
1. Ninth Circuit Cases
We established the state-created danger theory four months after DeShaney was published by recognizing a cognizable due process violation where the plaintiff alleged that she was raped after a state trooper impounded the vehicle in which she was riding, ejected her from the vehicle, and left her stranded in a high-crime area in the middle of the night. Wood v. Ostrander,
We further defined the contours of the state-created danger theory in Grubbs I, in which a registered nurse employed by the state of Oregon at a medium-security custodial institution brought suit against state prison officials after she was battered, kidnapped, robbed, and raped by an inmate with known violent propensities.
Contrary to the majority's suggestion, the "enhanced vulnerability" that ensued from the state's misrepresentation of the risks that the nurse would face in her employment did not, by itself, give rise to the due process violation recognized in Grubbs I. Maj. Op. at 1063, 1066-1067. Indeed, under DeShaney, it is, at the very least, questionable whether a state's failure to fully apprise an individual of the risks attending her employment can ever constitute an affirmative exercise of state power sufficient to give rise to a due process violation. See DeShaney,
In a second appeal in Grubbs, we addressed the level of culpability required to prevail under a state-created danger theory. See L.W. v. Grubbs,
Our subsequent cases have further demarcated the outer bounds of the state-created danger doctrine. These cases have only highlighted the requirement that, at a minimum, a due process claim must be based on an affirmative exercise of state power that creates a risk which, but for the state's affirmative action, would not have existed. For instance, in Penilla v. City of Huntington Park,
In those cases where we have declined to find a cognizable due process violation, we have generally emphasized the unforeseeable nature of the plaintiff's injuries, that the danger facing the plaintiff existed independent of state action, or the absence of the requisite mental state. For instance, in Huffman v. County of Los Angeles,
Finally, in Nicholas v. Wallenstein,
2. Factors for Analysis
As our cases illustrate, we typically consider a number of factors in determining whether the plaintiff has successfully stated a due process violation: (1) whether the act was directed toward a specific plaintiff or the public at large, see, e.g., Wood,
The Supreme Court has yet to recognize the state-created danger doctrine, and the circuit courts have yet to construct a unified approach either to the state-created danger inquiry or to the role that causation principles should play in the analysis. However, each court recognizing the theory has required, at a minimum, a showing that the government's act was the "but-for cause" that put the plaintiff in a position of danger she would not otherwise have faced. See, e.g., Carlton v. Cleburne County,
It may well be that, by voluntarily undertaking to protect [the plaintiff] against a danger it concededly played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger.... But the claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation.
My motive for further belaboring the federal reports with a dissent stems primarily from my conviction that Kennedy has not alleged facts sufficient to support a due process violation; her case against Officer Shields sounds in negligence, albeit negligence with tragic consequences. The majority has run afoul of our own cases and the Court's caution in DeShaney. I address these issues more fully below.
B. Constitutional Inquiry
The majority finds fault with two of Officer Shields's actions: (1) notifying Angela Burns of Kennedy's allegations prior to informing Kennedy that he was about to do so;5 and (2) promising to increase police surveillance on the night of the shooting. Maj. Op. at 1064-65. Neither of these, considered independently or together, will support a due process violation.
1. Notifying Burns Prior to Informing Kennedy
The majority concludes that Officer Shields "created an opportunity for Burns to assault the Kennedys that otherwise would not have existed." Id. at 1063 (quotations omitted). Kennedy has not addressed how much advance warning she desired, nor whether she effectively communicated the extent of warning she desired to Shields; however, she insists that she made it clear that she wanted to be notified before the Burnses were informed of her allegations. The majority asserts that, had Kennedy received prior warning, she and her family would have had the opportunity to take additional precautions. Id. at 1063. The majority reaches this conclusion despite the fact that Shields warned her within fifteen minutes of his discussion with Angela Burns and that the Kennedys subsequently made a conscious choice to remain in their home for the evening. The majority finds this flipflop of no more than fifteen minutes to be of constitutional magnitude. As the Kennedys were shot many hours later, I do not see how receiving warning fifteen minutes earlier would have made any difference whatsoever. Nonetheless, in light of the information Kennedy communicated to Officer Shields regarding Michael's past misbehavior, the majority holds that "Shields's actions both created and aggravated the risk Plaintiff faced from Burns" Id. at 1067.
There is nothing in the record to support the claim that Shields increased the risk facing the Kennedy family by notifying Angela Burns of the allegations. Notifying Michael Burns was an inevitable consequence of Kennedy's allegations of child molestation; at some point either the police or CAIC was going to have to talk with Burns about the allegations.6 Kim Kennedy was anxious because she knew that Michael Burns would have to be informed, and she feared what he might do when he was. It was this fear that motivated her to contact police at least six times to inquire whether the Burnses had been contacted yet. In none of these numerous phone calls did she try to dissuade the authorities from ever contacting Burns; she knew that it was only a matter of time. The dilemma for her was whether she would know when Burns was contacted, and would therefore be able to take precautions. To that end, she made every effort to ensure that she would be notified when Burns was made aware of these charges.
Prior to the shooting, Kennedy's only direct contact with law enforcement officials was with Officers Shields and Doriot of the RPD. However, pursuant to an inter-local agreement, the task of investigating Kennedy's molestation complaint was performed solely by a separate law enforcement unit, the Child Abuse Intervention Center ("CAIC"). So far as Shields knew, Kennedy had had no contact with CAIC and was relying on conversations with him and Officer Doriot to monitor the case. Shields had no authority over CAIC, and therefore had no way of ensuring that Kennedy received notification before CAIC made contact with the Burns family regarding her allegations. Indeed, from Shields's perspective, he represented Kennedy's best chance of receiving timely notification of any contact with the Burnses. Judging from Kennedy's repeated calls to Shields, Kennedy took a similar view.
The majority's statement that "[o]f all the possible actions [Shields] could take,. . . he took the one most feared by Kennedy" is simply false. Maj. Op. at 1065. The scenario Kennedy most feared was that Burns would become aware of the allegations and she would not know, and therefore would not be able to take appropriate precautions. Thus, when Shields decided to inform Burns of the allegations himself, he was ensuring that Kennedy was spared the possibility she feared most—that Burns would be notified and she would be unaware. And, by Kennedy's own testimony, Officer Shields informed her immediately after contact was made, at approximately 4:30 in the afternoon.
The majority attempts to shoehorn Shields's behavior in this case into the mold of the supervisor in Grubbs I. This is an exceedingly poor analogy. The supervisor in Grubbs I created the danger to the detention center nurse by essentially ordering her to work alone with a known violent sex offender. If he had not done so, the nurse would presumably never have been alone with the offender, and would therefore not have been in any danger from him. Here, Burns would have to be informed eventually; the only question was whether Kennedy would know that he had been informed. Nor did Shields facilitate Michael Burns's access to Kennedy. Unlike the nurse in Grubbs, Kennedy was well aware that she was already exposed to a very real danger, and that this danger existed apart from any action or conduct by Officer Shields. Rather than increasing the risk facing the Kennedy family, Shields's prompt notification appears to have given Kennedy her best chance for escape.
Yet, even if Officer Shields had increased the risk facing the plaintiff, this would not constitute a due process violation. See, e.g., Huffman,
Nor can Shields's conduct be characterized as manifesting "deliberate indifference" to the dangers faced by the Kennedys. As the majority acknowledges, "the standard in this circuit [is] not gross negligence but `deliberate indifference to a known, or so obvious as to imply knowledge of, danger.'" Maj. Op. at 1065; see Grubbs II,
Even if Officer Shields knew of Michael Burns's propensities—the allegations that he had threatened a classmate, tortured a cat, and assaulted his girlfriend—Shields could not have anticipated as an "obvious consequence" that Michael would enter the Kennedys' home and murder Jay and assault Kim. See Maj. Op. at 1064; Wallenstein,
Even assuming, arguendo, that Shields recognized the risk that Kennedy faced from Burns, his actions can hardly be said to demonstrate "deliberate indifference" to it. Even if Shields's actions were misguided in hindsight—and it is not clear that any other reasonable officer would not have done the same thing—all the evidence suggests that he was motivated by a desire to ensure that Kennedy would know exactly when Burns became aware of her daughter's allegations. There is simply no evidence that Shields acted with deliberate indifference to any known or obvious risks Kennedy faced.8 Without the requisite mental state, there can be no constitutional violation premised on state-created danger. See, e.g., Grubbs II,
2. Promising Police Surveillance
The majority correctly recognizes that officer Shields's assurances of a police patrol on the evening of the shooting do not provide an independent basis for a due process violation. Maj. Op. at 1064 ("[W]e do not rest our judgment that Shields affirmatively created a danger on that assurance. . . ."). However, I cannot agree with the majority's contention that, by assuring Kennedy "that the police would patrol the area," Shields somehow aggravated the risks that Kennedy faced. Id. at 1058; id. at 1064 ("Instead, [it] was an additional and aggravating factor, making [Kennedy] more vulnerable to the danger he had already created [by notifying Burns of the allegations against him before telling Kennedy that he was about to do so]."). Kennedy does not claim that the RPD failed to patrol the area on the evening of the shooting, nor does she allege that Officer Shields made any false claims to her about the efficacy of police patrols in providing protection in similar cases. I do not see how Officer Shields's statement that the police would patrol the area made the Kennedys "more vulnerable." See DeShaney,
The majority attempts to justify its statement by analogizing the facts of this case to those of Grubbs I. This comparison does not help the majority's case. In Grubbs I, we relied on the state's misrepresentation merely as a means for bolstering our conclusion that the state's affirmative act of directly placing the plaintiff in a dangerous situation—namely, assigning her to work alone with a known violent sex offender—created a risk that would not otherwise have existed. See Grubbs I,
In sum, I would hold that Kennedy failed to establish a due process violation arising from Officer Shields's actions either in notifying Michael Burns of her allegations prior to warning her, or in offering to increase surveillance on the evening of the shooting. Accordingly, I would hold that she failed to establish a cognizable due process violation premised on state-created danger.
C. Qualified Immunity Inquiry
Even assuming that Kennedy has established a due process violation premised on state-created danger, in order to bind this case over for trial we must determine that the constitutional right at issue was "clearly established" at the time of the events in question. We must hold that a "reasonable official" in Officer Shields's position "would understand that what he is doing violates that right," Saucier,
Imbued with notions of "reasonableness" and "fair warning," the "concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular [official] conduct." Saucier,
The majority holds that Officer Shields's behavior violated Kennedy's clearly established constitutional rights because it finds the case "not `meaningfully distinguishable' from Grubbs." Maj. Op. at 1066. I disagree. Grubbs I does not even begin the heavy lifting necessary to sustain the majority's conclusions.
The majority writes that "[i]n Grubbs, as in this case, a state official affirmatively acted: supervisor Grubbs assigned a violent sex offender to work closely with [the nurse], and Officer Shields notified Burns, leaving Kennedy unable to protect her family." Id. at 1067. Indeed, Shields did take an affirmative act. However, the danger in Grubbs—being alone with a known violent sex offender—was entirely avoidable, while the danger in this case—that Burns might react violently when he discovered the allegations against him—was not within Shields's control. The only danger that Shields was able to ameliorate was the possibility that Kennedy would not be aware that Burns had learned of the allegations against him; Shields did, in fact, prevent this scenario. Moreover, in Grubbs, the supervisor made false representations so that the victim could not evaluate her level of danger and take appropriate precautions. Here, Shields made no misrepresentations and Kennedy already knew the risks. I therefore find the majority's statement that, "At bottom Kennedy's claim is exactly like [the nurse in Grubbs], i.e., that a state actor `enhanced [her] vulnerability to attack by misrepresenting to her the risks' she faced" mystifying. Id. at 1067.
The majority further likens this case to Grubbs because Shields's action "made plaintiffs vulnerable to a particularized danger they would not have faced but for that action." Id. at 1067 (emphasis added); see also id. ("[I]n this case, as in Grubbs, Shields used his `authority as a state ... officer to create an opportunity for [Burns] to assault [Kennedy] that would not have otherwise existed.'") (emphasis added) (alterations and omission in original). The risk that Burns would react violently when he discovered the allegations Kennedy had made against him existed entirely apart from any action attributable to Officer Shields. In fact, the risk to Kennedy would have been even greater if Kennedy was unaware that Burns had learned of the allegations.
In short, I cannot join the majority's holding that Grubbs I put Officer Shields on notice that by responding to Kennedy's phone message, informing Angela Burns of Kennedy's allegations, immediately notifying Kennedy of as much, and offering to increase surveillance in the neighborhood, he was violating her Fourteenth Amendment due process rights—and that the violation was so obvious that Shields should have known it.
No case of which I am aware, either in our circuit or any other, has found a cognizable due process violation on facts remotely analogous to these.9 On the contrary, the closest case to this one in our circuit concluded that the plaintiff could not establish a due process violation. As my earlier discussion of Nicholas v. Wallenstein makes clear, its facts are strikingly similar: A state officer released incident reports with the plaintiff prison workers' identities to the angry family and friends of a deceased prisoner; plaintiffs were immediately harassed and assaulted.
We have always drawn a sharp distinction between facts demonstrating that police action created the danger to the person and facts demonstrating a danger that existed without police action.10 See Wood,
I cannot envision how it "would be clear to a reasonable officer that his conduct was unlawful" in the situation at issue in this case. Saucier,
III. CONCLUSION
Given the tragic circumstances in which this case arises, the Court's instruction in DeShaney seems especially apt: "Judges and lawyers, like other humans, are moved by natural sympathy in a case like this" to find a way for Kennedy and her family "to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State," but by Michael Burns.
I respectfully dissent.
Notes:
Although I dissent on the merits, I agree with the majority's conclusion that we have jurisdiction to hear this interlocutory appeal
The majority devotes a lengthy footnote to establishing the pre-DeShaney existence and the current prevalence of the state-created danger doctrine. I do not dispute that this doctrine is well established, merely its application to this case. On this note, the cases cited by the majority in its footnote support my view of this doctrine; see footnote 9, infra.
The majority cites toPenilla for the proposition that this Court has "specifically rejected the `danger creation' versus `danger enhancement' distinction." Maj. Op. at 1063 n. 4; Penilla,
The officers argue that under DeShaney, a constitutional duty to provide care is only triggered when a person is in custody. We reject this argument....
We have interpreted DeShaney to mean that if affirmative conduct on the part of a state actor places a plaintiff in danger, and the officer acts in deliberate indifference to that plaintiff's safety, a claim arises under § 1983. In Grubbs we explained:
DeShaney did not rule that custody was required where the state affirmatively causes the harm.... DeShaney thus suggests that had the state created the danger, [plaintiff] might have recovered even though he was not in custody.
The critical distinction is not, as appellants allege, an indeterminate line between danger creation and enhancement, but rather the stark one between state action and inaction in placing an individual at risk.
Id. at 710 (citations omitted). Our opinion in Penilla focused on the new danger that the officers created for Penilla: that by affirmatively calling off the paramedics and moving him from his porch—where neighbors and a passerby had seen his predicament and rendered aid—into his locked house, police isolated Penilla, making it impossible for him to receive medical care.
There may be some latent dispute regarding whether the "proximate cause" requirement noted inHuffman,
The majority makes some effort to suggest that their theory of this case does not turn on the question of whether officer Shields contacted Kennedy before or after he spoke to BurnsSee Maj. Op. at 1063 ("The existence of this danger does not depend ... on a difference of fifteen-minutes ...."). However, if this is the case, it becomes entirely unclear precisely what Shields's misconduct was, and accordingly even more difficult for Shields to have known that his conduct was not merely wrong, but that it violated Kennedy's constitutional rights. Moreover, Kennedy only argues that Shields's error was telling her before he told Burns. Thus, the opinion's vague contrary language notwithstanding, the majority opinion must rest on the fact that Shields informed Burns before telling Kennedy he was going to do so. See Maj. Op at 1063 ("[Shields] did [not] give Kennedy a reasonable opportunity to protect her family...."). I therefore treat it as such.
In my view, whether or not Burns would inevitably discover the allegations against him is not, as the majority states, "beside the point"; it is a question of crucial importance for this case. Maj. Op. at 1063 n. 3. If this was a specific danger from Burns that Kennedy had to face, it becomes clear that Shields could not have created it
Moreover, the majority's suggestion that Burns might never need to be notified of the allegations against him strains credulity. Id. The majority's quotations from the record only suggest that Burns should have been notified at the end of the investigation. Moreover, these same quotations also establish that this was done so that an officer questioning Burns would be better able to identify whether he was lying, not because it reduced the chance of a violent response.
The majority opinion incorrectly characterizes my position as "requiring foreseeability of the specific injury Burns in fact inflicted on the Kennedys." Maj. Op. at 1064 n. 5. I agree with the majority that "the exact injury inflicted by a third party" need not have been foreseeableId. However, Kennedy argues here that Shields's misconduct was informing Michael Burns that her daughter had made allegations against him without giving her prior warning. By Kennedy's own testimony, Shields made her aware that Burns had been notified immediately after he had notified Burns. It certainly was not foreseeable that this difference—telling Kennedy immediately before or immediately after informing Burns—would lead to the type of injuries that she suffered. See also Wallenstein,
Considering the alternative courses of conduct Shields could have taken to escape liability under the majority's theory only highlights the artificiality of the majority's analysis. Under the majority's theory, Shields could simply have reversed the order in which he visited the residences of the plaintiff and her would-be assailant, or called Kim Kennedy on his cell phone from the Burnses' doorstep. I cannot agree with the majority's position that this flipflop of no more than fifteen minutes is of constitutional magnitude
This includes all of the cases to which the majority cites to stress the prevalence of the state-created danger doctrine,see Maj. Op. at 1061 n. 1, none of which give notice here. Some of these cases involve facts such as those in Wood, where the police needlessly left people that were in some way helpless in a dangerous environment; these cases are inapplicable. See Kneipp v. Tedder,
The majority relies on a single sentence inPenilla to suggest otherwise; this reading is flawed. See footnote 3, supra.
The majority claims that I have improperly engaged in "an elaborate fact-matching exercise" to demonstrate that "none of our state-created danger cases clearly enough established the requisite notice," and that this exercise is "misguided" and "analytically flawed." Maj. Op. at 1066 n. 7. While I wholeheartedly agree with the majority that an "exact factual predicate" is not required for a right to be clearly established, neither do I believe that we should decide whether a right is clearly established without considering the facts of the other cases in which we have considered that right. I believe the majority's unwarranted extension of the law makes a mockery of prior decisions emphasizing the importance of providing fair warning to government officials. I think this approach is unwise generally, but that it is especially troubling here, where the case with the closest facts is clearly notGrubbs I, but Wallenstein—a case where we ruled in favor of the government official.