Kennedy v. City of Ridgefield ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 03-35333
TEUFEL; TERA TEUFEL,
Plaintiffs-Appellees,  D.C. No.
CV-01-05631-JKA
v. OPINION
RIDGEFIELD CITY OF, a municipal
corporation and political
subdivision of the State of WA;
NOEL SHIELDS,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
J. Kelley Arnold, Magistrate Judge, Presiding
Argued and Submitted
September 17, 2004—Seattle, Washington
Filed June 23, 2005
Before: James R. Browning, A. Wallace Tashima, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Browning;
Partial Concurrence and Partial Dissent by Judge Bybee
7471
KENNEDY v. RIDGEFIELD 7475
COUNSEL
Ray P. Cox, Forsberg & Umlauf, Seattle, Washington, for the
defendant-appellant.
John R. Connelly, Jr., Darrell L. Cochran and Lincoln C.
Beauregard, Gordon Thomas Honeywell Malanca Peterson &
Daheim, Tacoma, Washington, for the plaintiff-appellee.
OPINION
BROWNING, Circuit Judge:
Defendant Noel Shields appeals the district court’s ruling
that he is not entitled to summary judgment against Plaintiff
Kimberly Kennedy’s 42 U.S.C. § 1983 claim. He argues that
his alleged conduct did not violate Plaintiff’s clearly estab-
lished constitutional rights. We disagree, and conclude the
district court correctly determined that Shields is not entitled
to qualified immunity. Accordingly, we affirm the decision
below.
I. Introduction
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 severely wounded her.
On September 6, 1998, Kennedy called the Ridgefield
Police Department (“RPD”) and alleged that Michael Burns
7476 KENNEDY v. RIDGEFIELD
had molested Kennedy’s nine-year-old daughter, Tera Teufel.
RPD Officer Shields responded to the call.
Kennedy claims to have warned Shields of Michael Burns’s
violent tendencies at the September 6 meeting. Kennedy
insists that during their initial meeting, she told Shields that
the Burns family was unstable and that she had seen a lot of
violence in their home. She alleges that she went on to
describe several violent incidents involving Angela Burns,
Michael’s mother. Kennedy also claims she informed Shields
that Michael Burns had been involved in a number of violent
incidents, including fights at school, lighting a cat on fire,
breaking into his girlfriend’s house and attacking her with a
baseball bat, and throwing rocks at a building in downtown
Ridgefield.
Kennedy also alleges that during the September 6 meeting,
Shields assured her that she would be given notice prior to
any police contact with the Burns family about her allega-
tions. Shields stated that he could not recall whether Kennedy
asked to be notified prior to any contact by the authorities
with the Burns family.
Shields forwarded his report to the Child Abuse and Inter-
vention Center (“CAIC”) following the September 6 meeting.
It is undisputed that Shields had no contact with Kennedy
between the September 6 meeting and September 24, the
night of the shooting.
Kennedy alleges that on several occasions, she inquired
into the status of the investigation of Michael Burns and
reminded officers to notify her prior to any contact with the
Burns family. She learned that Michael Burns had been inves-
tigated for sending death threats to a classmate, but that the
investigation concluded that he was not responsible. Kennedy
asserts that she expressed concerns about her safety and told
the CAIC officer handling the investigation that she was anx-
ious to have the investigation started.
KENNEDY v. RIDGEFIELD 7477
On September 24, 1998, Kennedy called both Shields and
the CAIC to inquire into the progress of the investigation.
Kennedy left a message for Shields. The content of this mes-
sage is disputed. Shields stated that when he arrived at work
on September 24, there was a message from Kennedy inquir-
ing about his contact with Angela Burns and the status of the
molestation case. Shields’s account clearly contradicts Kenne-
dy’s repeated testimony that she asked the RPD and CAIC to
notify her prior to any contact with the Burns family. After
receiving Kennedy’s message, Shields called the CAIC to
inquire into the status of the investigation. The officer respon-
sible for the case was out so Shields left a message.
Shields decided to drive to the Kennedy house and inform
Kennedy personally that he called the CAIC but did not know
the status of the case. Shields stated that he did not call Ken-
nedy before driving to her house. On the way to the Kennedy
house, Shields changed his mind and decided to go to the
Burns’s residence first. He reasoned that it was on the way,
and he could thus determine whether the Burns family had
been contacted and so inform Kennedy. Shields talked to
Angela Burns and informed her of Kennedy’s allegations.
After speaking with Angela Burns, Shields proceeded to
the Kennedy house. When he arrived, Shields told Kennedy
that he had informed Angela Burns of the molestation allega-
tions. Kennedy became upset and asked Shields why he had
contacted the Burns family prior to notifying her and told
Shields that she was in fear for her safety. Kennedy alleges
that Shields assured her that the police would patrol the area
around her and Michael’s house to keep an eye on him.
After Shields left, Kennedy called a friend because she was
very frightened of what Michael and Angela Burns’s reaction
would be. According to Kennedy, Shields told her Angela
Burns was very angry after their conversation and Angela and
Michael Burns began yelling at one another. Kennedy also
alleges that her husband decided to stay the night at home
7478 KENNEDY v. RIDGEFIELD
because Shields had promised to patrol the premises. They
planned to lock the doors to the house and leave town early
the next morning. Kennedy also stated that she did not call
911 that night because she relied upon Shields’s promise to
patrol the area.
Early on the morning of September 25, 1998, Michael
Burns broke into the Kennedy house and shot Jay and Kim-
berly Kennedy while they slept. Jay Kennedy died as a result
of his injuries. Michael Burns was convicted of the premedi-
tated murder of Jay Kennedy and attempted premeditated
murder of Kimberly Kennedy.
Kennedy brought a lawsuit 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 the defendants on all state law
claims and to Ridgefield City on Kennedy’s § 1983 “failure
to train” claim.
The court denied Shields’s motion for summary judgment
based on qualified immunity. The district court concluded that
viewing the facts 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
advanced notice of advising the Burns family of the allegation
that Michael Burns sexually molested Tera Teufel, and assur-
ing the plaintiffs of a neighborhood patrol.” Order, p. 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 interlocu-
KENNEDY v. RIDGEFIELD 7479
tory appeal concerning his qualified immunity defense. If so,
we must then determine whether Shields is entitled to quali-
fied immunity under the facts of this case.
We review de novo an interlocutory appeal from the denial
of summary judgment based on qualified immunity. Wilkins
v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). In
reviewing a summary judgment order in a § 1983 action
where the district court determines that “the defendant’s
alleged conduct violated the plaintiff’s clearly established
constitutional rights . . . we resolve all factual disputes in
favor of the plaintiff . . . .” Cunningham v. City of Wenatchee,
345 F.3d 802, 807 (9th Cir. 2003).
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 that we have jurisdiction to determine whether the
trial court erred in holding that Shields was not entitled to
qualified immunity.
[1] As a general rule, interlocutory appeals from determina-
tions of qualified immunity are permissible. In Mitchell v.
Forsyth, 472 U.S. 511 (1985), the Supreme Court held that
the denial of a defendant’s motion for summary judgment is
immediately appealable where the defendant is a public offi-
cial asserting the defense of qualified immunity and the issue
appealed concerns whether the facts demonstrated a violation
of clearly established law.
[2] Kennedy correctly notes that the Court created an
exception to this general rule in Johnson v. Jones, 515 U.S.
304 (1995). There, the Court held that “a defendant, entitled
to invoke a qualified immunity defense, may not appeal a dis-
trict court’s summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a ‘gen-
7480 KENNEDY v. RIDGEFIELD
uine’ issue of facts for trial.” Id. at 319-20. In ruling against
Shields’s motion for summary judgment based on his claim of
qualified immunity, the trial court stated:
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 sex-
ually molested Tera Teufal, and assuring the plain-
tiffs 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 prom-
ises by Shields.
Order at 4-5. Thus, the trial court’s order observes that issues
of fact remain.
This does not, however, suffice to deprive us of jurisdiction
under Johnson. In a subsequent case, the Supreme Court
explained:
Denial of summary judgment often includes a deter-
mination that there are controverted issues of mate-
rial fact, see Fed. Rule Civ. Proc. 56, and Johnson
surely does not mean that every such denial of sum-
mary judgment is nonappealable. Johnson held, sim-
ply, 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 sum-
mary 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, 516 U.S. 299, 312-13 (1996). See also
Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.
KENNEDY v. RIDGEFIELD 7481
1997) (“[W]e have jurisdiction over an interlocutory appeal
from the denial of qualified immunity where the appeal
focuses on whether the defendants violated a clearly estab-
lished law given the undisputed facts, while we do not have
jurisdiction over an interlocutory appeal that focuses on
whether there is a genuine dispute about the underlying
facts.”).
Unlike the appeal in Johnson, we are not asked or required
to look at the sufficiency of the evidence in support of the fac-
tual claims made by the parties, i.e., Shields’s contention that
he did not create a false sense of security and Plaintiff’s insis-
tence that he did. See Johnson, 515 U.S. at 313 (holding that
some orders denying summary judgment, “though entered in
a ‘qualified immunity’ case, determine[ ] only a question of
‘evidence sufficiency,’ i.e., which facts a party may, or may
not, be able to prove at trial. This kind of order, we conclude,
is not appealable.”).
[3] Here, while the trial court concluded that issues of fact
remain, those disputed facts are not the basis of Shields’s
interlocutory appeal of the denial of qualified immunity.
Rather, Shields’s appeal contends that even after resolving the
issues of fact in Plaintiff’s favor, the Plaintiff will not have
demonstrated that Shields violated a clearly established con-
stitutional right. Because this question represents an “abstract
issue of law relating to qualified immunity” it falls within our
jurisdiction on interlocutory appeal.
Assuming the facts as alleged by Plaintiff, we must deter-
mine whether the Defendant violated Plaintiff’s constitutional
rights and whether those rights were clearly established. If
Shields’s conduct did not violate Plaintiff’s clearly estab-
lished constitutional rights, he is entitled to qualified immu-
nity. We now turn to those questions.
B. Application of Qualified Immunity to Officer Shields
We conclude that Shields’s conduct, as alleged by Plaintiff,
violated her constitutional rights. Furthermore, we conclude
7482 KENNEDY v. RIDGEFIELD
that the constitutional rights violated by Shields’s alleged con-
duct were clearly established at that time.
In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme
Court established a two-prong analysis for qualified immunity
cases. First, a court must determine whether the facts alleged
(resolving all disputes of fact in favor of the party asserting
the injury) show that the officer’s conduct violated a constitu-
tional right. “Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right? This must be the ini-
tial inquiry.” Saucier, 533 U.S. at 201. If the court determines
that the conduct did not violate a constitutional right, the
inquiry is over and the officer is entitled to qualified immu-
nity.
If, however, the court determines that the conduct did vio-
late a constitutional right, the second prong under Saucier
requires the court to determine whether the violated right was
“clearly established.” A right is clearly established if the
“contours of the right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640
(1987)). Even if the violated right is clearly established, the
Saucier Court recognized that it may be difficult for a police
officer to determine how to apply the relevant legal doctrine
to the particular circumstances he or she faces. The Saucier
Court therefore held that if the officer makes a mistake in
applying the relevant legal doctrine, he or she is not precluded
from claiming qualified immunity so long as the mistake is
reasonable. That is, if “the officer’s mistake as to what the
law requires is reasonable . . . the officer is entitled to the
immunity defense.” 533 U.S. at 205. We now take up those
questions.
1. First Prong: Did Shields Violate Kennedy’s
Constitutional Rights?
[4] The Plaintiff alleges that the Defendant violated her
14th Amendment right to substantive due process under the
KENNEDY v. RIDGEFIELD 7483
“state-created danger” doctrine. In DeShaney v. Winnebago
County Dep’t of Soc. Serv., 489 U.S. 189, 196 (1989), the
Supreme Court held that the Due Process Clause “is phrased
as a limitation on the State’s power to act, not as a guarantee
of certain minimal levels of safety and security.” Since the
Due Process Clause does not require the state to provide its
citizens with a minimum level of security, it follows that the
state cannot be held liable for failing to do so. Id. at 196-97.
Two exceptions to DeShaney exist. Under the “special rela-
tionship” doctrine, the state can be held liable for a third
party’s harm where the state has custody over the plaintiff.
Under this exception, “ ‘when the State takes a person into its
custody and holds him there against his will, the Constitution
imposes some responsibility for [that person’s] safety and
general well-being.’ ” Wang v. Reno, 81 F.3d 808, 818 (9th
Cir. 1996) (quoting DeShaney, 489 U.S. at 199-200). Here,
Plaintiff does not allege that Shields ever had custody over
her or her husband; consequently, this exception is inapplica-
ble.
[5] The “state-created danger” doctrine represents the sec-
ond recognized exception to DeShaney’s rule against holding
state officials liable for private violence. Under this theory,
plaintiffs can recover “when a state officer’s conduct places
a person in peril in deliberate indifference to their safety.”
Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th
Cir. 1997). This Circuit first recognized liability based on
state created danger in Wood v. Ostrander, 879 F.2d 583 (9th
Cir. 1989). In Wood, a state trooper determined that the driver
of an automobile was intoxicated, arrested the driver and
impounded the car. The officer left Wood, a passenger in the
car, stranded late at night in a high-crime area. Wood
accepted a ride from a passing car and was subsequently
raped. This Court held that Wood could claim § 1983 liability,
since there was a genuine issue of fact “that [the trooper]
acted with deliberate indifference to Wood’s interest in per-
sonal security under the fourteenth amendment.” Id. at 588.
7484 KENNEDY v. RIDGEFIELD
Since Wood, this Circuit has held state officials liable for
the creation of danger in a variety of circumstances. In L.W.
v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992), this Court
found that state employees could be liable for the rape of a
registered nurse assigned to work alone in the medical clinic
of a medium-security custodial institution with a violent sex
offender. In Munger v. City of Glasgow, 227 F.3d 1082 (9th
Cir. 2000), this Court found that police officers could be held
liable for ejecting a visibly drunk patron from a bar on a bit-
terly cold night.
[6] To find an officer liable under the “state-created dan-
ger” theory, a plaintiff must show that the officer’s actions
created or increased the danger facing him or her. Second, the
plaintiff must demonstrate that the state official acted with
deliberate indifference to a known or obvious danger. Inter-
preting the facts in a manner most favorable to Plaintiff, we
conclude that Shields did in fact augment the danger Plaintiff
and her husband faced and acted with deliberate indifference
to a known or obvious danger. Plaintiff has therefore demon-
strated that her constitutional rights were violated and so sat-
isfied the first prong under Saucier.
a. Danger Affirmatively Created or Increased Due to
State Action
[7] First, Shields’s affirmative actions placed the Kennedy
family in a situation of danger greater than they would have
faced had he not acted at all. Shields does not dispute that the
revelation to Michael Burns’s mother of the allegations of
sexual abuse against Michael Burns triggered his actions
against Plaintiff and her husband. In revealing the existence
of allegations against Michael to Angela Burns after having
promised Kennedy that he would notify her first, Shields cre-
ated a situation of heightened danger. It was inevitable that
Michael Burns would eventually learn of the allegations made
against him, and he would likely infer who had made them.
If Kennedy had received the prior warning officer Shields
KENNEDY v. RIDGEFIELD 7485
promised her, she and her family could have taken additional
precautions. Instead, they relied on Shields’s promise of
advance notification and so considered additional precautions
unnecessary.
[8] Moreover, Shields further augmented this danger by
offering false assurances that the police would patrol the Ken-
nedy’s neighborhood the night of the shooting. Misrepresenta-
tion of the risk faced by a plaintiff can contribute to a finding
of state-created danger. See Grubbs, 974 F.2d at 121 (“The
Defendants also enhanced L.W.’s vulnerability to attack by
misrepresenting to her the risks attending her work.”). Plain-
tiff alleges that she and her husband based their decision to
remain at home that night and leave in the morning in reliance
on Shields’s assurances that the neighborhood would be
patrolled. Defendant’s affirmative promise of a police patrol
thus influenced Plaintiff’s assessment of the risk she and her
family faced.
b. Deliberate Indifference
Second, resolving all factual disputes in Plaintiff’s favor,
Shields acted with deliberate indifference. “ ‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious conse-
quence of his actions.” Bryan County v. Brown, 520 U.S. 397,
410 (1997). See also Christie v. Iopa, 176 F.3d 1231, 1240
(9th Cir. 1999). Here, Plaintiff has alleged that the conse-
quences of Shields’s actions were obvious: first, that once
informed of the allegations against him, Michael Burns would
attempt to harm the Kennedy family; and second, that having
been assured by Shields’s promise to provide police protec-
tion, the Kennedy family would rely upon that promise.
[9] Resolving factual disputes in Kennedy’s favor, the
record supports her assertion that Shields should have recog-
nized the obvious consequences of his actions. Most signifi-
cantly, Plaintiff specifically asked Shields to give her advance
7486 KENNEDY v. RIDGEFIELD
notification because she feared for the safety of her family. In
addition, Plaintiff herself had previously informed Shields of
Michael Burns’s violent tendencies, including an incident in
which Michael Burns had broken into a girlfriend’s home.
Shields also knew of a separate investigation in which school
authorities suspected (albeit erroneously) that Michael Burns
sent death threats to another student. Finally, on the night of
the attack, Plaintiff informed Shields directly that he had
placed her family in danger by informing the Burns family of
the allegations against Michael prior to notifying the Kennedy
family. Under these circumstances, the obvious consequence
of informing Angela Burns prior to the Kennedy family and
of falsely assuring the Kennedy family of police protection
was to increase the risk the Kennedy family faced from
Michael Burns.
2. Second Prong: Was the Right Violated Clearly
Established?
When all the factual issues are resolved in Plaintiff’s favor,
we find Shields’s alleged conduct violated Kennedy’s consti-
tutional rights. We turn to the second prong of the Saucier
test, and consider whether the constitutional right violated by
Shields’s conduct was “clearly established” in September
1998. We conclude for the reasons set out below that it was.
To determine whether a right is clearly established, the
reviewing court’s inquiry must consider whether a reasonable
officer would recognize that his conduct violates that right
under the circumstances and in light of the law that existed at
that time. As the Supreme Court explained:
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 vio-
lates 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
KENNEDY v. RIDGEFIELD 7487
unlawful . . . but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citing Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (internal citations omit-
ted); see also Flores v. Morgan Hill Unified Sch. Dist., 324
F.3d 1130, 1136-37 (9th Cir. 2003) (“In order to find that the
law was clearly established . . . we need not find a prior case
with identical, or even ‘materially similar’ facts.”). Thus, the
alleged conduct need not explicitly have been previously
deemed unconstitutional, but existing case law must make it
clear that the conduct violated constitutional norms. More-
over, “[t]he plaintiff bears the burden of showing that the
right at issue was clearly established under this second
prong.” Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).
In September of 1998, it was clearly established that state
officials could be held liable where they affirmatively and
with deliberate indifference placed an individual in danger. In
1989, this Court recognized the theory of state-created danger
in Wood. However, it is not enough to claim that a constitu-
tional right was clearly established in its broad outlines. First,
“the right allegedly violated must be defined at the appropri-
ate level of specificity before a court can determine if it was
clearly established.” Wilson v. Layne, 526 U.S. 603, 615
(1999). The appropriate level of specificity must take into
account the actual circumstances of the case, for the inquiry
into whether the right is clearly established “must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Saucier, 533 U.S. at 201. In
Saucier, the Court rejected the idea that the plaintiff could
defeat the defendant’s claim of qualified immunity merely by
demonstrating that use of force violates the Fourth Amend-
ment if it is excessive under objective standards of reason-
ableness.
[10] Kennedy may not defeat Shields’s claim of qualified
immunity merely by demonstrating that police actions vio-
7488 KENNEDY v. RIDGEFIELD
lated the Fourteenth Amendment if they affirmatively created
or enlarged danger facing a plaintiff and did so with deliberate
indifference. To satisfy her burden and demonstrate that
Shields violated a clearly established constitutional right,
Plaintiff must go further. “The salient question . . . . is
whether the state of the law [at the time of the alleged wrong]
gave respondents fair warning that their alleged treatment of
[the petitioner] was unconstitutional.” Hope, 536 U.S. at 741.
That is, Kennedy must demonstrate, based on the state of the
law in 1998, that Shields was on notice that informing Angela
Burns of Kennedy’s allegations prior to warning the Kennedy
family and falsely promising a police patrol that evening
would violate Kennedy’s constitutional rights. Resolving all
factual disputes in her favor, we conclude that Kennedy has
met this burden. Consequently, we hold that Shields is not
entitled to have his motion for summary judgment on the
basis of qualified immunity.
[11] Both of Kennedy’s claims against Shields amount to
verbal promises that were relied upon and then not kept. This
Court has previously held officers liable under a state-created
danger doctrine where they falsely induce reliance by promis-
ing additional protection or warnings. In Grubbs, 974 F.2d
119, a registered nurse working at a medium security custo-
dial institution was raped and terrorized by a young male
inmate. The nurse brought a § 1983 claim against her supervi-
sors. According to the plaintiff, her employer had told her she
would not be working alone with violent sex offenders. Not-
withstanding that representation, her employer subsequently
allowed an inmate prone to violence against women to work
with her unsupervised. The plaintiff, relying upon that repre-
sentation, did not take all the precautions she might otherwise
have taken, and was subsequently raped.
[12] The Grubbs Court recognized that cognizable state-
created harm claims may arise where state officials induce
reliance by means of verbal promises that are later broken. In
Grubbs, the plaintiff obviously recognized that she faced
KENNEDY v. RIDGEFIELD 7489
some risk, because she was working in a custodial institution
with male offenders. She did not realize, however, that the
defendants would place her in close unsupervised proximity
with an individual with a history of violence against women.
It was in part because the conduct of the defendants increased
the risk she faced without her knowledge that the Grubbs
Court found them to have violated her constitutional rights.
“Defendants . . . enhanced L.W.’s vulnerability to attack by
misrepresenting to her the risks attending her work.” Id. at
121. Thus, the Grubbs Court concluded that officials may be
held liable where they claim to offer protection they do not
provide and so misrepresent the risk posed by third-parties to
a plaintiff. Consequently, Shields’s conduct violated Plain-
tiff’s clearly established constitutional right.
Like the plaintiff in Grubbs, Kennedy was aware of the
underlying risk, yet reasonably underestimated it based on
Shields’s representations. His alleged conduct both increased
and misrepresented the risk that Michael Burns posed to Ken-
nedy and her family. Shields purportedly told Kennedy that he
would warn her before telling the Burns family of the allega-
tions against Michael Burns, and then failed to do so. Further-
more, Kennedy has also alleged that Shields falsely told her
that he would patrol her neighborhood the night the allega-
tions against Michael Burns were revealed to his family. If
either or both of these allegations were proved at trial, a jury
could reasonably find Kennedy relied upon such promises of
additional protection in evaluating the risks Michael Burns
posed to her family. Furthermore, under the circumstances
alleged by Plaintiff, Shields would have acted unreasonably in
promising prior notification and additional police protection,
inducing reliance, and then failing to perform.
III. CONCLUSION
Under Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996),
we have jurisdiction to hear Shields’s interlocutory appeal
regarding qualified immunity. We conclude that Shields
7490 KENNEDY v. RIDGEFIELD
unreasonably violated Kennedy’s clearly established constitu-
tional right. Under the state-created danger doctrine, a police
officer may be liable for actions that create or augment known
or obvious dangers. Here, Shields’s actions both increased
and misrepresented the risk Plaintiff faced. Under Grubbs,
increasing and misrepresenting a known risk may give rise to
§ 1983 liability. This doctrine was clearly established by the
time the events of this case took place. Accordingly, the trial
court’s denial of Shields’s motion for summary judgment
based on qualified immunity is hereby
AFFIRMED.
BYBEE, Circuit Judge, concurring in part and dissenting in
part:
I vigorously part company with the majority’s conclusion
that Shields created the danger Kennedy faced and then acted
with deliberate indifference, 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 min-
utes 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 doing, the
majority not only mangles the state-created danger doctrine,
it holds that its new rule was so clearly established that Offi-
cer Shields should have known he was violating the Constitu-
tion 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 invented the state-created danger
exception to DeShaney, we have approved it on fewer than
five occasions. In these cases we have narrowly construed the
exception to encompass only claims in which the govern-
KENNEDY v. RIDGEFIELD 7491
ment’s act was directed toward 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 govern-
ment’s action constituted deliberate indifference to the known
or obvious danger, rather than mere negligence, 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. As outlined in
Kennedy’s complaint, her deposition testimony, and as deter-
mined by the district court, these facts show that on Septem-
ber 6, 1998 Kennedy filed a complaint with the City of
Ridgefield Police Department (“RPD”) accusing her neigh-
bor, 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
1
Although I dissent on the merits, I agree with the majority’s conclusion
that we have jurisdiction to hear this interlocutory appeal.
7492 KENNEDY v. RIDGEFIELD
investigation for allegedly sending a death threat to a class-
mate; 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 notifica-
tion before the Burns family was informed of her allegations.
Following her initial complaint, Kennedy repeatedly con-
tacted RPD — at least six times during the eighteen days fol-
lowing 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 pro-
ceeded to the Burns’ 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 Angela 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 noti-
fied 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 increase surveillance in the area that night to
watch for Michael. After discussing the matter with her hus-
band, 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.
KENNEDY v. RIDGEFIELD 7493
II. SAUCIER TWO-STEP
The Court’s opinion in Saucier v. Katz, 533 U.S. 194(2001), as the majority notes, provides the framework for our
analysis of this § 1983 suit. Under this framework, if a defen-
dant claims qualified immunity, we must make two distinct
inquiries: a “constitutional inquiry” and a “qualified immunity
inquiry.” See Estate of Ford v. Ramirez-Palmer, 301 F.3d
1043, 1049 (9th Cir. 2002).
Officer Shields claims that he is entitled to qualified immu-
nity 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, 533 U.S. at 201. “[I]f a violation could be made out
on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly estab-
lished . . . in light of the specific context of the case” such that
“it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. at 201-02 (citing
Wilson v. Layne, 526 U.S. 603, 615 (1999)).
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 our court’s gloss on DeShaney and the Fourteenth
Amendment’s Due Process Clause.
A. State-Created Danger Doctrine
As the majority observes, the state-created danger doctrine
is said to trace its jurisprudential pedigree to the Supreme
7494 KENNEDY v. RIDGEFIELD
Court’s opinion in DeShaney, perhaps best known for Justice
Blackmun’s exclamation, “Poor Joshua!” DeShaney v. Winne-
bago County Dep’t of Soc. Serv., 489 U.S. 189, 213 (1989)
(Blackmun, J. dissenting). Declining to find a due process
violation where local officials failed to adequately respond to
complaints that four-year-old Joshua was being abused by his
father, the Court held that the Constitution does not require
the state to protect the life, liberty, and property of its citizens
against invasion by private actors. Rather, the Due Process
Clause “is phrased as a limitation on the State’s power to act,
not as a guarantee of certain minimal levels of safety and
security.” Id. at 195. The Court observed,
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 oppres-
sion[.] 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 affir-
mative right to governmental aid, even where such
aid may be necessary to secure life, liberty, or prop-
erty 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 (internal quotation marks and citations omitted).
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 relation-
ship” exception, stemming from a custodial relationship
KENNEDY v. RIDGEFIELD 7495
between the state and the victim; and (2) the “danger cre-
ation” exception, stemming from “affirmative conduct on the
part of the state in placing the plaintiff in danger.” L.W. v.
Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (“Grubbs I”). The
former emanates from explicit language in DeShaney itself.
DeShaney, 489 U.S. at 199-200 (“[W]hen the State takes a
person into its custody and holds him there against his will,
the Constitution imposes upon it a corresponding duty to
assume some responsibility for his safety and general well-
being”). The latter, more amorphous, doctrine of “state-
created danger” was developed by lower courts in response to
the Court’s observation, in DeShaney, that Winnebago
County neither helped to create the dangers that Joshua faced
nor rendered him more vulnerable to those dangers.
DeShaney, 489 U.S. at 201 (“While the State may have been
aware of the dangers that Joshua faced . . . it played no part
in their creation, nor did it do anything to render him any
more vulnerable to them.”).
1. Ninth Circuit Cases
Four months after DeShaney, we established the state-
created danger theory, 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 rid-
ing, ejected her from the vehicle, and left her stranded in a
high-crime area in the middle of the night. Wood v. Ost-
rander, 879 F.2d 583 (9th Cir. 1989). In holding that Wood
raised a triable issue of fact as to whether Trooper Ostrander’s
conduct violated her substantive due process rights, we drew
a distinction between facts demonstrating that police action
created the danger to the person and facts demonstrating a
danger that existed without police action. Wood, 879 F.2d at
589-90. Relying on Deshaney, we held that a substantive due
process claim could be stated when police create the danger
to an individual. We reasoned that “[t]he fact that Ostrander
arrested [the driver], impounded his car, and apparently
stranded Wood in a high-crime area at 2:30 a.m. distinguished
7496 KENNEDY v. RIDGEFIELD
Wood from the general public and triggered a duty of the
police to afford her some measure of peace and safety.” Id. at
590. Reversing the district court’s summary judgment for
defendants, we concluded that the plaintiff’s allegations dem-
onstrated “an assertion of government power which . . . tends
to show a disregard for [her] safety amounting to deliberate
indifference.” Id. at 588.
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 bat-
tered, kidnaped, robbed and raped by an inmate with known
violent propensities. 974 F.2d at 120. The plaintiff alleged
that she was led to believe that she would not have to work
alone with residents who were known violent sex offenders.
Id. Finding a cognizable due process violation, we empha-
sized that the state had knowledge of the inmate’s dangerous
propensities, and it affirmatively assigned him a job in which
he would work alone with the plaintiff. Id. at 121. We con-
cluded that the defendants, like the officer in Wood, “used
their authority as state correctional officers to create an oppor-
tunity for [the inmate] to assault [the plaintiff] that would not
otherwise have existed.” Id. (emphasis added). We further
observed that the defendants “enhanced [the plaintiff’s] vul-
nerability to attack by misrepresenting to her the risks attend-
ing her work;” namely, by leading her to believe that she
would not be assigned to work alone with any inmates who
were known violent sex offenders. Id.Contrary to the majority’s suggestion, the “enhanced vul-
nerability” 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 7485, 7489. 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
KENNEDY v. RIDGEFIELD 7497
state power sufficient to give rise to a due process violation.
See DeShaney, 489 U.S. at 201-02 (suggesting that the affir-
mative exercise of state power, as opposed to mere inaction,
is the minimum threshold requirement necessary to establish
a due process violation, and declining to find such affirmative
exercise even in the context of an elaborate and exclusive sys-
tem of child-protection services). Rather, Grubbs I more accu-
rately stands for the proposition that in order to state a claim
based on state-created danger the state must affirmatively play
a part in creating the danger. See Grubbs I, 974 F.2d at 121(“The ‘danger creation’ basis for a claim . . . necessarily
involves affirmative conduct on the part of the state in placing
the plaintiff in danger.”). See also Munger v. City of Glasgow
Police Dept., 227 F.3d 1082, 1086 (9th Cir. 2000) (noting that
the court in a state-created danger case “must determine
whether [the state] did in fact affirmatively place [the plain-
tiff] in danger”).
On appeal from our remand of Grubbs I to the district
court, we addressed the level of culpability required to prevail
under a state-created danger theory. See L.W. v. Grubbs, 92
F.3d 894 (9th Cir. 1996) (“Grubbs II”). Explicitly rejecting a
“gross negligence” standard, we held that “the plaintiff must
show that the state official participated in creating a danger-
ous situation, and acted with deliberate indifference to the
known or obvious danger in subjecting the plaintiff to it.” Id.
at 900 (emphasis added). See also Wood, 879 F.2d at 588.
In an effort to further demarcate the outer-bounds of the
state-created danger doctrine, our subsequent cases have only
highlighted the requirement that, at a minimum, a state-
created danger due process claim must have as its basis the
affirmative exercise of state power creating a risk which, but
for the state’s affirmative action, would not have existed. For
instance, in Penilla v. City of Huntington Park, 115 F.3d 707,
710 (9th Cir. 1997), we found a due process violation where
police officers responded to a 911 call, “examined [the plain-
tiff], found him to be in grave need of medical care, canceled
7498 KENNEDY v. RIDGEFIELD
the request for paramedics, broke the lock and door jamb on
the front door of [the plaintiff’s] residence, moved him inside
the house, locked the door, and left.” Id. at 708. Under these
circumstances, we determined that the state created a danger
to the plaintiff which, but for its affirmative unlawful acts,
would not have existed. Likewise, in Munger, we found a
cognizable due process violation where police officers ejected
the plaintiff from a bar late at night when the outside tempera-
tures were subfreezing. 227 F.3d at 1087. Although the offi-
cers knew that the plaintiff was intoxicated and was wearing
only a t-shirt and jeans, they prevented him from driving his
truck or reentering the bar. Id. at 1086-87. Presented with
these facts, we held that the state affirmatively acted to place
the plaintiff in danger that would not have existed without
state action. Id. at 1087.
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, 147 F.3d 1054, 1061 (9th Cir.
1998), we declined to find municipal liability under § 1983
where the plaintiff was shot during a barroom brawl with an
off-duty deputy employed by the Los Angeles County Sher-
iff’s Department. Finding the risk to the plaintiff an unfore-
seeable consequence of a county policy requiring off-duty
officers to carry a firearm, we held that “the danger-creation
plaintiff must demonstrate, at the very least, that the state
acted affirmatively, and with deliberate indifference, in creat-
ing a foreseeable danger to the plaintiff, leading to the depri-
vation of the plaintiff’s constitutional rights.” Id. See also
Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003)
(citing Wood, Penilla and Munger, and observing that “in
each of the cases in which we have applied the danger-
creation exception, ultimate injury to the plaintiff was fore-
seeable.”). Similarly, in Lawrence, 340 F.3d at 954, we
declined to find a Fifth Amendment violation in a Bivens
KENNEDY v. RIDGEFIELD 7499
action where a juvenile plaintiff alleged that she was sexually
abused by a convicted drug offender participating in the Fed-
eral Witness Security Program; the plaintiff alleged that the
offender could not have obtained employment at a group
home where she was a resident but for the assistance of fed-
eral officers. Although we found it foreseeable that a con-
victed drug offender might attempt to distribute illegal drugs
to children with whom he came into contact, we found the
plaintiff’s injuries an unforeseeable consequence of the offi-
cial action. Id. at 957.
Finally, in Nicholas v. Wallenstein, 266 F.3d 1083 (9th Cir.
2001), we declined to find that a county jail commander acted
with deliberate indifference to the known or obvious dangers
facing his employees when he disclosed their identities as per-
sons who had been involved in the restraint and removal of
a deceased prisoner. The deceased prisoner’s family and
friends believed that personnel connected with the jail were
responsible for his death, and, upon learning their identities,
harassed and assaulted the employees. Id. at 1085-86. Citing
Wood, the employees contended that their supervisors demon-
strated deliberate indifference by not promptly notifying them
of the release of the records containing their identities and by
not taking steps to protect them from dangers that ultimately
became apparent. Id. at 1087. We affirmed the district court’s
grant of summary judgment for defendants, reasoning that the
jail authorities could not have reasonably concluded that the
prisoner’s family and friends would be likely to engage in
open violence.2
2
There may be some latent dispute regarding whether the “proximate
cause” requirement noted in Huffman, 147 F.3d at 1061, and Lawrence,
340 F.3d at 954, is in addition to, or a mere rephrasing of, the requirement
that the danger to the plaintiff must have been “known or obvious” and the
state actor must have acted with deliberate indifference to the danger. See,
e.g., Grubbs II, 92 F.3d at 899-900. Nonetheless, for purposes of the
instant case, the relevance of Huffman, Lawrence and Wallenstein derives
simply from their recognition that traditional causation principles are not
wholly suspended in the context of a constitutional tort suit premised on
state-created danger.
7500 KENNEDY v. RIDGEFIELD
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, 879 F.2d at 590 (reasoning that the state’s action
“distinguish[ed] [the plaintiff] from the general public and
trigger[ed] a duty of the police to afford her some measure of
peace and safety”); cf. Huffman, 147 F.3d at 1061 & n.4
(expressing doubt as to whether the plaintiff must show that
“the danger created by a state official is directed toward a par-
ticular plaintiff, as opposed to being directed toward the gen-
eral public”); (2) whether the government acted affirmatively
or simply failed to act, see, e.g., Grubbs I, 974 F.2d at 121(requiring “affirmative conduct on the part of the state in plac-
ing the plaintiff in danger”); Munger, 227 F.3d at 1086
(phrasing the inquiry as “whether [the state] did in fact affir-
matively place [the plaintiff] in danger”); (3) whether the gov-
ernment’s act caused the harm, see, e.g., Grubbs I, 974 F.2d
at 121 (finding state-created danger where the state’s action
“create[d] an opportunity for [the inmate] to assault [the
plaintiff] that would not otherwise have existed” (emphasis
added)); Penilla, 115 F.3d at 708 (same); Munger, 227 F.3d
at 1087 (same); and (4) whether the government acted with
the requisite culpability, see, e.g., Grubbs II, 92 F.3d at 899-
900 (requiring the plaintiff to show that the state official
“acted with deliberate indifference to the known or obvious
danger” (emphasis added)). Cf. Armijo v. Wagon Mound Pub.
Sch., 159 F.3d 1253, 1264 (10th Cir. 1998) (adding a fifth fac-
tor which considers whether the government completely
removed all of the plaintiff’s protection); Russell v. Gregoire,
124 F.3d 1079, 1093 n.10 (9th Cir. 1997) (stating, in dicta,
that “a state has no general duty to protect individuals against
potential harm by third parties unless the state creates the dan-
ger and removes the individual’s ability to protect himself”
(citations omitted)) . These factors closely parallel those used
by other circuits recognizing the doctrine. See, e.g., Uhlrig v.
KENNEDY v. RIDGEFIELD 7501
Harder, 64 F.3d 567, 573 (10th Cir. 1995) (requiring the
plaintiff to show that (1) he “was a member of a limited and
specifically definable group; (2) Defendants’ conduct put
[him] and the other members of that group at substantial risk
of serious, immediate and proximate harm; (3) the risk was
obvious or known; (4) Defendants acted recklessly in con-
scious disregard of that risk; and (5) such conduct, when
viewed in total, is conscience shocking.”). My disagreement
with the majority’s findings and conclusions centers on the
second, third and fourth factors.
While the Supreme Court has yet to recognize the state-
created danger doctrine, and the circuit courts have yet to con-
struct a unified approach either to the state-created danger
inquiry or to the role that causation principles should play in
the analysis, 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. Cle-
burne County, 93 F.3d 505, 508 (8th Cir. 1996) (collecting
cases and noting that in each case where a cognizable due
process violation was found “the individuals would not have
been in harm’s way but for the government’s affirmative
actions.”); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir.
1993) (finding the evidence sufficient to support summary
judgment for police officers where “without state interven-
tion, the same danger would exist”); Salas v. Carpenter, 980
F.2d 299, 309-10 (5th Cir. 1992) (holding the City not liable
for declining assistance from a SWAT team and taking a hard
line with a hostage taker); Jackson v. City of Joliet, 715 F.2d
1200, 1204-05 (7th Cir. 1983) (holding officers not liable
because they “did not create but merely failed to avert dan-
ger” by not rescuing victims more promptly from a burning
car). We have never recognized a state-created danger where
the state was merely a “proximate cause” rather than the
cause-in-fact of the plaintiff’s injuries. We have not imported
common law tort principles to this doctrine. As the Court
observed in DeShaney, “It may well be that, by voluntarily
7502 KENNEDY v. RIDGEFIELD
undertaking to protect [the plaintiff] against a danger it con-
cededly 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 commit-
ted by a state actor into a constitutional violation.” 489 U.S.
at 201-02 (citations omitted). In short, our cases, as well as
those of our sister circuits, demand that the state’s affirmative
act must, at the very least, be the cause-in-fact of the plain-
tiff’s injury.
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 viola-
tion, and her case against Officer Shields sounds in negli-
gence, albeit negligence with tragic consequences. The
majority has run afoul of our own cases and the Court’s cau-
tion in DeShaney. I address these issues more fully below.
B. Constitutional Inquiry
The majority finds fault of constitutional magnitude 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; and (2) promising to increase police sur-
veillance on the night of the shooting. Maj. Op. at 7489. Nei-
ther of these will support a due process violation.
1. Notification
The majority concludes that Officer Shields in fact “aug-
ment[ed] the danger Plaintiff and her husband faced” by
revealing the existence of allegations against Michael to
Angela Burns after having promised Kennedy that she would
be notified first. Maj. Op. at 7484.3 The majority asserts that,
3
Kennedy did not specify how much advance warning she desired, but
she insists that she expected to be notified before the Burns were informed
of her allegations.
KENNEDY v. RIDGEFIELD 7503
had she received prior warning, she and her family would
have had the opportunity to take additional precautions. Id. at
7484-85. The majority reaches this conclusion despite the fact
that the Kennedys made a conscious choice to remain in their
home for approximately eight hours after they were informed
of the contact. Nonetheless, in light of the information Ken-
nedy communicated to Officer Shields regarding Michael’s
past misbehavior, the majority holds that “the obvious conse-
quence of informing Angela Burns prior to the Kennedy fam-
ily and of falsely assuring the Kennedy family of police
protection was to increase the risk the Kennedy family faced
from Michael Burns.” Id. at 7486.
Nothing in the record supports the claim that Shields’s act
of notifying Angela Burns of the allegations increased the risk
facing the Kennedy family. 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 the Burns about the allegations.
Kim Kennedy not only knew this, she contacted police at least
six times to find out if the Burns had been contacted. Kennedy
was anxious because she feared what Michael might do, and
she knew that he would have to be informed.
Pursuant to an inter-local agreement, after Kennedy made
her initial complaint to the Ridgefield Police Department
(“RPD”), the task of investigating the complaint was per-
formed solely by a separate law enforcement unit, the Child
Abuse Intervention Center (“CAIC”). As her only direct con-
tact, prior to the shooting, had been with Officer Shields and
the RPD, Kennedy had absolutely no way of ensuring that she
received notification before CAIC made contact with the
Burns family regarding her allegations. Indeed, Officer
Shields represented her best chance of receiving prompt noti-
fication of any contact with the Burns. By Kennedy’s own
testimony, Officer Shields informed her immediately after
contact was made, at approximately 4:30 in the afternoon.
7504 KENNEDY v. RIDGEFIELD
The majority’s holding that Shields’s conduct “increase[d]
the risk” facing the Kennedy family ignores the fact that the
Kennedys were already exposed to a very real risk of danger
of which they were aware. Id. at 7486. Contrary to the majori-
ty’s holding, the real danger facing the Kennedy family more
accurately stemmed from the likelihood that either the police
or CAIC would contact the Burns without informing Ken-
nedy. Consequently, the danger facing the Kennedy family
existed apart from any action or conduct by Officer Shields.
Rather than increase the risk facing the Kennedy family,
Shields’s prompt notification appears to have given Kennedy
her best chance for escape.
Yet, even assuming that we could disregard these obstacles
to find some increased risk attributable to Officer Shields, this
would not suffice to support a constitutional violation. To find
a cognizable due process violation we must find more than a
mere increase in the risk facing the plaintiff. See, e.g., Huff-
man, 147 F.3d at 1061 (“The danger-creation exception to
DeShaney does not create a broad rule that makes state offi-
cials liable under the Fourteenth Amendment whenever they
increase the risk of some harm to members of the public.”).
We must determine that Officer Shields “used [his] authority
. . . to create an opportunity for [Burns] to assault [the plain-
tiff] that would not otherwise have existed.” Grubbs I, 974
F.2d at 121 (emphasis added). In other words, we must con-
clude, at a minimum, that, but for the state’s action, the dan-
gerous situation facing Kennedy would not have existed. Here
we cannot do so for the same reasons that we cannot deter-
mine that the state “increased” the risk facing Kennedy: the
danger that Michael Burns would learn of Kennedy’s accusa-
tions existed independent of any action attributable to Officer
Shields.
An additional obstacle to the majority’s conclusion stems
from the requisite level of culpability necessary to establish a
due process violation premised on state-created danger. In
order to find a due process violation, we must determine that
KENNEDY v. RIDGEFIELD 7505
the shooting was a known or an obvious consequence of Offi-
cer Shields’s action, and that Officer Shields “acted with
deliberate indifference to the known or obvious danger in
subjecting the plaintiff to it.” Grubbs II, 92 F.3d at 899-900(emphasis added). See also Wood, 879 F.2d at 588. The
majority fails to explain how Officer Shields’s conduct meets
this stringent culpability requirement. Rather, the majority
simply asserts that “Shields should have recognized the obvi-
ous consequences of his actions.” Maj. Op. at 7485. 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 antici-
pated as an “obvious consequence” that Michael would enter
the Kennedys’ home to murder Jay and assault Kim.
The majority’s conclusion sounds in negligence. Negli-
gence, even gross negligence, is insufficient to establish a due
process violation based on state-created danger. See Grubbs
II, 92 F.3d at 898. See also DeShaney, 489 U.S. at 201-02.
Instead, the deliberate indifference standard that we quoted
with approval in Grubbs II requires a showing that the “ ‘de-
fendant recognizes the unreasonable risk and actually intends
to expose the plaintiff to such risks without regard to the con-
sequences to the plaintiff.’ ” Grubbs II, 92 F.3d at 899 (quot-
ing Uhlrig, 64 F.3d at 573 n.8). Phrased another way, the
defendant must “have actual knowledge of, or willfully
ignore, impending harm,” meaning “the defendant knows that
something is going to happen but ignores the risk and exposes
someone to it.” Grubbs II, 92 F.3d at 900 (emphasis in origi-
nal).
The specific instances of misconduct communicated by
Kennedy were not sufficient to put Officer Shields on notice
that Michael Burns might attempt to murder members of the
Kennedy family. Michael’s previous misconduct included dis-
turbing juvenile violence, but had never included threats or
assault with a firearm. Indeed, the record suggests that both
Shields and Kennedy failed to appreciate the extent of the
7506 KENNEDY v. RIDGEFIELD
danger that Michael posed. Under these circumstances, it can-
not be said that Officer Shields had “actual knowledge of, or
willfully ignore[d], impending harm.” Id.Even assuming, however, that Shields recognized the risk,
his actions can hardly be said to demonstrate an intent to
expose Kennedy to this risk without regard to the conse-
quences. Kennedy contacted police no fewer than six times
after her initial complaint, each time inquiring as to whether
the Burns had been notified of her allegations. However mis-
guided, Shields’s actions appear to have been motivated by a
desire to promptly notify Kennedy of any contact that CAIC
had made with the Burns. The brevity of the majority’s analy-
sis on this point stems from the fact that there is simply no
evidence to suggest an intent to expose Kennedy to a known
or obvious risk, without regard to the consequences that
would follow. Without the requisite mental state, there can be
no constitutional violation premised on state-created danger.
See, e.g., Grubbs II, 92 F.3d at 898; Wood, 879 F.2d at 588.
When one considers the alternative course of conduct
which could have spared Shields from the outcome today, the
artificiality of the majority’s analysis is apparent. Under the
majority’s theory, Shields would face no liability if he simply
reversed the order in which he visited the residence of the
plaintiff and her would-be assailant. Or if he had simply cal-
led Kim Kennedy from his cell phone while standing at the
doorstep of the Burns’ home, his action, under the majority’s
view, would have been blameless. Yet, by driving to the
Burns’ residence and then immediately to the Kennedys’,
Shields crossed the majority’s new constitutional line in the
sand. According to the majority, this flipflop of no more than
fifteen minutes is of constitutional magnitude. I cannot agree.
Rather, I would hold that Kennedy failed to state a constitu-
tional violation arising from the prompt notification that she
received regarding Shields’s contact with Angela Burns.
KENNEDY v. RIDGEFIELD 7507
2. Promised Police Surveillance
Officer Shields’s assurances of an increased police patrol
on the evening of the shooting similarly fail to provide a basis
for a due process violation. Notably, Kennedy does not claim
that the RPD failed to patrol the area on the evening of the
shooting. Rather, she appears to contend that Officer Shields’s
assurances falsely led her to believe that it was safe to remain
in her home. Kennedy was in a far better position to ascertain
the extent of the risk she and her family faced as a result of
Michael Burns’s knowledge of her accusations. Yet, the
majority asserts that a jury could find in her favor solely on
the basis of Shields’s alleged misrepresentation of “the risk
that Michael Burns posed to Kennedy and her family.” Maj.
Op. at 7489 (“If either . . . of these allegations were proved
at trial, a jury could reasonably find Kennedy relied upon
such promises of additional protection in evaluating the risks
that Michael Burns posed to her family.”) (emphasis added).
I have been unable to locate a single case in which a mere
misrepresentation of the extent of danger posed to a plaintiff
is sufficient to state a claim under the Fourteenth Amendment.
Grubbs I provides no support for this assertion. On the con-
trary, the court in Grubbs I relied on the state’s misrepresenta-
tion merely as a means for bolstering its conclusion that the
state’s affirmative act of directly placing the plaintiff in a dan-
gerous 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, 974 F.2d at 121. See
also Munger, 227 F.3d at 1086 (noting that the court in a
state-created danger case “must determine whether [the state]
did in fact affirmatively place [the plaintiff] in danger”). Ken-
nedy’s allegations cannot be elevated to meet this threshold
requirement simply because she asserts that she remained in
her home based on Officer Shields’s misrepresentation of the
risk that she and her family faced.
The majority today holds that an officer’s mere awareness
of a danger to the victim and his expression of intent to help
7508 KENNEDY v. RIDGEFIELD
are sufficient to establish a due process violation. This conclu-
sion belies the central lesson of DeShaney. In DeShaney, the
county was undoubtedly aware of the danger facing Joshua:
authorities were repeatedly informed that he was a probable
victim of physical abuse over a period of two years, during
which time he was treated by emergency room doctors for
suspicious injuries on at least three occasions; social workers
assigned to his case likewise reported numerous suspicious
injuries. The county unequivocally expressed its desire to help
Joshua, attempting on multiple occasions to intervene. A
Child Protection Team was assembled to assess Joshua’s situ-
ation, interview the father, and recommend action, and a case
worker was assigned to monitor his home environment for six
months. DeShaney, 489 U.S. at 192-93. Indeed, Winnebago
County’s knowledge of Joshua DeShaney’s plight and its
expressions of intent to help him were far greater than the
City of Ridgefield’s knowledge of Kennedy’s plight and its
expressions of intent to help her. See Balistreri v. Pacifica
Police Dep’t., 901 F.2d 696, 700 (9th Cir. 1990) (citing
DeShaney and declining to find a due process violation where
the plaintiff’s allegations amounted to the assertion that “state
actors knew of her plight and affirmatively committed to pro-
tect her”). We are not permitted to circumvent the Court’s rul-
ing in DeShaney simply by redefining the cause of action as
one premised on a “state-created danger.” The City of Ridge-
field did not create Michael Burns’s violent reaction any more
than Winnebago County created the violent beatings that
resulted in brain damage so severe that Joshua DeShaney “is
expected to spend the rest of his life confined to an institution
for the profoundly retarded.” See DeShaney, 489 U.S. at 193.
The majority’s new rule comes perilously close to adopting
for the Due Process Clause the tort principle that if police
undertake to perform a service not mandated by the Constitu-
tion, then adequate performance of the service voluntarily
assumed is constitutionally required. It is anomalous to
impose liability for failing in an effort not required by the
Constitution. See, e.g., DeShaney, 489 U.S. at 201-02;
KENNEDY v. RIDGEFIELD 7509
Andrews v. Wilkins, 934 F.2d 1267, 1270-71 (D.C. Cir. 1991).
More troubling in my view, however, is the potential for per-
verse incentives; if liability is the logical result of anything
less than complete success, police will naturally be hesitant to
respond at all when faced with a situation such as Kennedy’s.
The result is less police protection, not more. This conse-
quence is dangerous and, I believe, unnecessary.
In sum, I would hold that Kennedy failed to establish a due
process violation arising from Officer Shields’s actions either
in notifying the Burns of her allegations prior to warning her,
or offering to increase surveillance on the evening of the
shooting. Accordingly, I would hold that she failed to estab-
lish a cognizable due process violation premised on state-
created danger.
C. Qualified Immunity Inquiry
Even assuming, as the majority maintains, 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, 533 U.S. at 202, keeping in mind that “offi-
cials will not be liable for mere mistakes in judgment,
whether the mistake is one of fact or one of law.” Butz v.
Economou, 438 U.S. 478, 507 (1978). Indeed, “[e]ven defen-
dants who violate constitutional rights enjoy a qualified
immunity that protects them from liability for damages unless
it is further demonstrated that their conduct was unreasonable
under the applicable standard.” Davis v. Scherer, 468 U.S.
183, 190 (1984). As the Court has repeatedly emphasized,
“the qualified immunity defense . . . provides ample protec-
tion to all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 342 (1986).
See also Burns v. Reed, 500 U.S. 478, 494-95 (1991). Particu-
7510 KENNEDY v. RIDGEFIELD
larly in a context where the potential for liability may chill
lawful and socially desirable behavior at the edge of the “for-
bidden zone,” qualified immunity ensures that “officials can
act without fear of harassing litigation” and “can anticipate
when their conduct may give rise to liability for damages.”
Davis, 468 U.S. at 195.
Imbued with notions of “reasonableness” and “fair warn-
ing,” the “concern of the immunity inquiry is to acknowledge
that reasonable mistakes can be made as to the legal con-
straints on particular [official] conduct.” Saucier, 533 U.S. at
205. The central dispositive inquiry essential to finding a right
“clearly established” is “whether it would be clear to a reason-
able officer that his conduct was unlawful in the situation he
confronted.” Id. at 202. Importantly, our analysis must
acknowledge and evaluate the specific context of the situation
confronted by the official. Id. See also Brosseau v. Haugen,
___ U.S. ___, ___, 125 S.Ct. 596, 599 (2004) (“It is important
to emphasize that this inquiry ‘must be undertaken in light of
the specific context of the case, not as a broad general propo-
sition.’ ” (quoting Saucier, 533 U.S. at 201)). With this per-
spective in mind, I would hold that Officer Shields is entitled
to qualified immunity.
Citing only our decision in Grubbs I, the majority holds
that “Shields was on notice that informing Angela Burns of
Kennedy’s allegations prior to warning the Kennedy family
and falsely promising a police patrol that evening would vio-
late Kennedy’s constitutional rights.” Maj. Op. at 7488.
Grubbs I did not even begin the heavy lifting necessary to
sustain the majority’s conclusions in this case.
While perhaps superficially similar on some level, several
key facts that were present in Grubbs I are missing from this
case. The prison nurse who was battered, kidnaped, robbed
and raped by an inmate in Grubbs I was led to believe that she
would not have to work alone with residents who were known
violent sex offenders. 974 F.2d at 120. Grubbs I, thus,
KENNEDY v. RIDGEFIELD 7511
involved a plaintiff who was completely unaware of the risks
she faced and a state defendant fully apprised of the danger.
Kennedy, on the other hand, possessed superior knowledge of
the danger she faced from Michael Burns, and Officer Shields
never assured her that the danger of which she was aware no
longer existed. Even according to Kennedy’s own testimony,
Shields merely offered to increase surveillance in the neigh-
borhood on the evening of the shooting.
Grubbs I also involved affirmative conduct, on the part of
the state, which created a risk that otherwise would not have
existed. We concluded that, by assigning the nurse to work
alone with a sexually violent prisoner, the defendants “used
their authority as state correctional officers to create an oppor-
tunity for [the inmate] to assault [the plaintiff] that would not
otherwise have existed.” Id. at 121 (emphasis added). The
same cannot be said of Kennedy’s complaint; indeed, the
record suggests precisely the opposite. As reflected in Kenne-
dy’s repeated calls to the RPD, the danger facing her family
stemmed from the probability that CAIC would begin the
investigation without ever communicating as much to her.
This risk existed apart from any action attributable to Officer
Shields. 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 Ken-
nedy’s allegations, immediately notifying Kennedy of as
much and offering to increase surveillance in the neighbor-
hood, he was acting with deliberate indifference to a known
or obvious danger.
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. On the contrary, in the case clos-
est to this one, we concluded that the plaintiff could not estab-
lish a due process violation. See Nicholas v. Wallenstein, 266
F.3d 1083 (9th Cir. 2001). The facts of Wallenstein are strik-
ingly similar: A state officer released the plaintiffs’ identities
to an angry group of family and friends; plaintiffs were imme-
7512 KENNEDY v. RIDGEFIELD
diately harassed and assaulted. Id. at 1084-85. The plaintiffs
argued that the release “was done with deliberate indifference
to the danger to them and that this indifference continued in
the refusal of the defendants to afford them protection from
the danger.” Id. We concluded that “[a]t the moment [the state
official] released the incident reports he knew that the crowd
to whom he was releasing them believed that personnel con-
nected with the jail had killed” the deceased prisoner and that
the release of this information “would excite the crowd.” Id.
at 1087. Yet, when presented with these facts, only three
years ago, we held that the “plaintiffs failed to produce evi-
dence that would create a triable issue of material fact show-
ing that the danger was known or obvious to the defendants.”
Id. at 1085. What we stated there bears repeating here:
“Knowing that the crowd was angry was not knowing that
they would take criminal measures to make the jailors or their
health helpers pay.” Id. at 1087.
Moreover, since we first recognized the state-created dan-
ger doctrine, 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. See Wood, 879 F.2d at 589-90.
In addition, since Grubbs II we have required plaintiffs to
meet a stringent culpability requirement designed to prevent
the imposition of § 1983 liability for negligent conduct, even
grossly negligent conduct. 92 F.3d at 899-900. And since Huf-
fman, 147 F.3d at 1061, and Lawrence, 340 F.3d at 957, we
have emphasized that the requisite culpability must relate to
consequences which were foreseeable. The majority’s conclu-
sion in this case does not simply whittle away at these
requirements; it completely reinvents them.
Consequently, I cannot envision how it “would be clear to
a reasonable officer that his conduct was unlawful” in the sit-
uation at issue in this case. Saucier, 533, U.S. at 202. Assum-
ing arguendo that Kennedy’s allegations are sufficient to state
a constitutional violation, I would hold that, taking into
KENNEDY v. RIDGEFIELD 7513
account the “specific context of th[is] case,” the right was not
clearly established at the time Officer Shields acted, and
Shields is thus entitled to qualified immunity. Id. at 201.
There is no way Shields could have anticipated that his fifteen
minute delay in notifying Kennedy of his contact with Angela
Burns or his assurance of additional police surveillance would
operate to deprive her of her rights under the Due Process
Clause of the Fourteenth Amendment. Even if he had read
Grubbs I — but especially if he had read Wallenstein — Offi-
cer Shields could not have known that his conduct would vio-
late clearly established constitutional rights. See Meyers v.
Redwood City, 400 F.3d 765, 774 (9th Cir. 2005) (“Even with
a copy of Harris in their back pockets, the officers could not
have determined at what point in the middle of this messy
repossession they deprived Meyers of her property without
due process of law.”). At the very least, after Saucier, the
court should have declared a constitutional violation but
granted qualified immunity in this case.
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 sympa-
thy in a case like this” to find a way for Kennedy and her fam-
ily “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. 489 U.S. at 202-03. The
people of Washington may prefer, and are free to adopt, a sys-
tem of tort liability which would place upon the State and its
officials the responsibility for situations such as the present
one. “But they should not have it thrust upon them by this
[c]ourt’s expansion of the Due Process Clause of the Four-
teenth Amendment.” Id. at 203.
I respectfully dissent.