Donnitta Sinclair v. City of Seattle ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNITTA SINCLAIR, mother of No. 21-35975
deceased Horace Lorenzo Anderson,
Jr., individually, D.C. No. 2:21-cv-
00571-JCC
Plaintiff-Appellant,
v. OPINION
CITY OF SEATTLE, a Municipality,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted October 17, 2022
Seattle, Washington
Filed March 1, 2023
Before: Richard C. Tallman, Ryan D. Nelson, and Danielle
J. Forrest, Circuit Judges.
Opinion by Judge R. Nelson;
Concurrence by Judge R. Nelson
2 SINCLAIR V. CITY OF SEATTLE
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal for
failure to state a claim of an action brought against the City
of Seattle pursuant to 42 U.S.C. § 1983 by Donnitta Sinclair,
whose nineteen-year-old son was shot to death in 2020 in the
Capitol Hill Occupied Protest (“CHOP”) zone, an area that
the Seattle Police Department and the Mayor of Seattle had
surrendered to protestors.
Sinclair alleged that the City’s actions and failures to act
regarding CHOP created a foreseeable danger for her son,
that the City was deliberately indifferent to that danger, and
that as a result, the City was liable for violating her
Fourteenth Amendment substantive due process right to the
companionship of her adult son.
The panel stated that, unlike almost every other circuit,
this circuit recognized Sinclair’s substantive due process
right to the companionship of her adult son. And Sinclair
properly alleged that the City acted with deliberate
indifference to the danger it helped create, which caused her
son’s death. It was self-evident that the Seattle Police
Department’s wholesale abandonment of its East Precinct
building, combined with Mayor Durkan’s promotion of
CHOP’s supposedly festival-like atmosphere, would create
a toxic brew of criminality that would endanger City
residents. But the danger to which the City contributed was
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SINCLAIR V. CITY OF SEATTLE 3
not particularized to Sinclair or her son, or differentiated
from the generalized dangers posed by crime, as this circuit’s
precedent required. Because the City’s actions were not
directed toward Sinclair’s son and did not otherwise expose
him to a specific risk, the connection between Sinclair’s
alleged injuries and the City’s affirmative actions was too
remote to support a § 1983 claim.
Concurring, Judge R. Nelson stated that this circuit has
created a split with other circuits by recognizing a
substantive due process right to the companionship of one’s
adult children. In establishing the right on which Sinclair’s
claim depended, this circuit’s precedent failed to engage in
the proper analysis required by Washington v. Glucksberg,
521 U.S. 702 (1997). Had this circuit done so, it should have
reached the conclusion that sister circuits already
have: There is no constitutional right to recover for the loss
of Sinclair’s companionship with her adult son. Judge R.
Nelson stated that this circuit should correct its prior
erroneous precedent en banc.
COUNSEL
Philip A. Talmadge (argued) and Aaron P. Orheim,
Talmadge/Fitzpatrick, Seattle, Washington; Mark Lindquist,
Mark Lindquist Law, Tacoma, Washington; for Plaintiff-
Appellant.
Kerala Cowart (argued) and Jessica Lynn Zornes Leiser,
Assistant City Attorneys; Ann Davison, Seattle City
Attorney; Seattle City Attorney’s Office; Seattle,
Washington; for Defendant-Appellee.
4 SINCLAIR V. CITY OF SEATTLE
OPINION
R. NELSON, Circuit Judge:
During the George Floyd protests in the summer of 2020,
the Seattle Police Department and the Mayor of Seattle took
the unprecedented step of surrendering an entire precinct and
a large area of the surrounding neighborhood to protestors
for a month, who declared it the Capitol Hill Occupied
Protest (“CHOP”). Top City of Seattle (“City”) officials,
including members of the City Council, were in their thrall,
supporting and encouraging CHOP, with the mayor calling
it a reprise of “the summer of love,” despite growing
evidence of its lawlessness and danger—and a mounting
body count. Donnitta Sinclair, the mother of a nineteen-
year-old son with special needs who was shot to death within
CHOP, brought this action to recover damages for her loss
of companionship with her son.
We are sympathetic to Sinclair’s effort to hold the City
accountable for the death of her son. Unlike almost every
other circuit, we recognize her substantive due process right
to the companionship of her adult son. And Sinclair alleges
that the City acted with deliberate indifference to the danger
it helped create, which caused her son’s death. But the
danger to which the City contributed was not particularized
to Sinclair or her son, or differentiated from the generalized
dangers posed by crime, as our precedent requires. We
therefore affirm the district court’s dismissal of Sinclair’s
suit for failure to state a claim for relief under 42 U.S.C.
§ 1983.
SINCLAIR V. CITY OF SEATTLE 5
I
In the summer of 2020, Seattle residents joined
nationwide protests following George Floyd’s murder in
Minneapolis. Sinclair’s allegations 1 against the City are
astounding. On June 8, 2020, as confrontations escalated
between protestors and police officers, the City withdrew all
police officers from the Seattle Police Department’s East
Precinct building, which served the Capitol Hill
neighborhood. Protesters used barricades left behind by the
Seattle Police Department (“SPD”) to block traffic and
“seized a roughly sixteen-block area of Capitol Hill,
including Cal Anderson Park.” They declared it to be
autonomous from City governance, calling it the CHOP
zone.
Sinclair alleges that CHOP participants were seen
carrying guns at all hours and that violence, vandalism of
homes and businesses, open drug use, and other crimes
proliferated in the now lawless area. According to Sinclair,
the City did not have an effective plan to provide police
protection or emergency services in the CHOP zone, but
instead it provided occupiers with portable toilets, lighting,
and other support, including modifying emergency response
protocols of SPD and the Seattle Fire Department (“SFD”).
On June 11, 2020, SPD Chief Carmen Best allegedly
admitted that “response times for crimes in progress were
over 15 minutes, about three times as long as the average.”
That same day, in an interview with CNN, Mayor Jenny
1
“When reviewing the dismissal of a complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), we take all factual
allegations set forth in the complaint as true, construed in the light most
favorable the plaintiff.” San Carlos Apache Tribe v. Becerra, 53 F.4th
1236, 1239 n.2 (9th Cir. 2022).
6 SINCLAIR V. CITY OF SEATTLE
Durkan labeled CHOP a “block party” and characterized the
events as a “summer of love.” Councilmember Kshama
Sawant also publicly described CHOP as a “peaceful”
occupation even after it became violent.
Sinclair is the mother of Horace Lorenzo Anderson, Jr.,
a nineteen-year-old with special needs. On or about June 20,
Anderson visited CHOP and encountered Marcel Long. The
two had a history of antagonism. According to Sinclair,
Long believed CHOP was a “no-cop” zone, and he was
carrying a gun. After speaking with each other, Long pulled
out the gun. Anderson then walked away while Long was
briefly held back by others. According to Sinclair, Long
broke away and caught up to Anderson, shooting him at least
four times.
CHOP participants carried Anderson to a “medical tent”
they had erected in an outdoor area just outside of Cal
Anderson Park. Anderson apparently had a pulse when they
laid him down on a table. SFD allegedly had an ambulance
staged just a block and a half from Anderson’s location. A
man implored the paramedics to help Anderson, but the
medics were apparently waiting for a green light from SPD;
meanwhile, SPD was confused about the paramedics’
location. The miscommunication caused a response delay of
around 20 minutes before first responders finally arrived to
treat Anderson.
By the time police and fire officials entered the area,
CHOP participants had transported Anderson to nearby
Harborview Medical Center in a pick-up truck where he was
pronounced dead at 2:53 a.m.
Before the establishment of CHOP, there had been no
homicides in the area for six months, and there were only
three homicides in the entire Capitol Hill area in 2019. By
SINCLAIR V. CITY OF SEATTLE 7
contrast, there were allegedly several shootings, one other
homicide, and numerous other crimes, including robberies
and sexual assaults, in just nine days in CHOP.
On July 1, Mayor Durkan finally issued an executive
order to restore official control over CHOP, including
retaking the SPD East Precinct. In reestablishing law and
order, there was no significant violence or serious resistance
offered by occupants.
After burying her son, Sinclair brought a single 42
U.S.C. § 1983 claim in her individual capacity as the mother
of the decedent, seeking to hold the City liable for violating
her Fourteenth Amendment substantive due process right to
the companionship of her adult son. 2 Sinclair alleges that
the City’s actions and failures to act regarding CHOP created
a foreseeable danger for her son and that the City was
deliberately indifferent to that danger.
The City moved to dismiss the amended complaint for
failure to state a claim. A magistrate judge recommended
dismissal, over Sinclair’s objection. The district court
adopted the magistrate judge’s recommendation and
dismissed the case with prejudice. Sinclair now appeals.
II
We review de novo the district court’s decision to grant
a motion to dismiss under Rule 12(b)(6) for failure to state a
claim. Ballinger v. City of Oakland, 24 F.4th 1287, 1292
(9th Cir. 2022). We take all allegations of fact as true and
construe them in the light most favorable to the nonmoving
2
Sinclair is not suing on behalf of her deceased son as personal
representative of his estate. Her son’s estate’s claims against the City
were settled in a separate action.
8 SINCLAIR V. CITY OF SEATTLE
party. See id. Conclusory allegations cannot defeat a
motion to dismiss. See Pirani v. Slack Techs., Inc., 13 F.4th
940, 946 (9th Cir. 2021). Dismissal is appropriate if the
complaint fails to state a cognizable legal theory or fails to
provide sufficient facts to support a claim. Shroyer v. New
Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.
2010).
The district court had federal question jurisdiction over
Sinclair’s § 1983 claim against the City pursuant to 28
U.S.C. § 1331. We have jurisdiction over Sinclair’s timely
appeal of the district court’s final order under 28 U.S.C.
§ 1291.
III
A
The Civil Rights Act codified in 42 U.S.C. § 1983provides a cause of action against state officials who deprive
a plaintiff of her federal constitutional rights. Sinclair
alleges that the City violated her Fourteenth Amendment
substantive due process right to companionship with her son
by creating an actual and particularized danger to him and
by acting with deliberate indifference towards saving his
life.
The Due Process Clause provides that “[n]o State
shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1.
For more than a century, the Supreme Court has recognized
parental constitutional rights to the care, custody, and control
of minor children. See, e.g., Meyer v. Nebraska, 262 U.S.
390, 399 (1923) (describing the right to “establish a home
and bring up children” as among the “privileges long
recognized at common law as essential to the orderly pursuit
SINCLAIR V. CITY OF SEATTLE 9
of happiness by free men”); Troxel v. Granville, 530 U.S. 57,
65–66 (2000) (plurality opinion); Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., 452 U.S. 18, 27 (1981); see also
Roberts v. U.S. Jaycees, 468 U.S. 609, 617–19 (1984). In
our circuit, we have understood these cases to have
recognized “a ‘fundamental liberty interest’ in ‘the
companionship and society of [one’s] child’ for which ‘[t]he
state’s interference with that liberty interest without due
process of law is remediable under [42 U.S.C. §] 1983.’”
Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir.
2001) (quoting Kelson v. City of Springfield, 767 F.2d 651,
654–55 (9th Cir. 1985), overruled on other grounds by
Daniels v. Williams, 474 U.S. 327 (1986)).
But the Supreme Court has not decided whether parental
rights to the companionship of a child retains its
constitutional dimension after the child reaches the age of
majority; its cases all concerned minor children. Of the
circuits who have expressly considered the question, only
the Tenth Circuit has held that the right extends to adult
children. Compare Valdivieso Ortiz v. Burgos, 807 F.2d 6,
8–9 (1st Cir. 1986), McCurdy v. Dodd, 352 F.3d 820, 829
(3d Cir. 2003), Russ v. Watts, 414 F.3d 783, 791 (7th Cir.
2005), overruling Bell v. City of Milwaukee, 746 F.2d 1205(7th Cir. 1984), Robertson v. Hecksel, 420 F.3d 1254, 1259–
60 (11th Cir. 2005), and Butera v. District of Columbia, 235
F.3d 637, 656 (D.C. Cir. 2001), with Trujillo v. Bd. of Cnty.
Comm’rs of Santa Fe Cnty., 768 F.2d 1186, 1188–89 (10th
Cir. 1985) (recognizing a constitutionally protected liberty
interest in relationship with adult son). But even the Tenth
Circuit relied mainly on the First Amendment right to
intimate association, not the Fourteenth Amendment, to
define the scope of that right. See id. at 1190 nn. 6–7; cf.
Robertson, 420 F.3d at 1258 n.3 (“The Tenth Circuit has
10 SINCLAIR V. CITY OF SEATTLE
recognized a parent’s constitutionally protected liberty
interest in companionship with her adult son, but did so
under the First Amendment’s right of intimate association,
which contains ‘an intrinsic element of personal liberty.’”).
And the Tenth Circuit declined to find a deprivation of the
right where the state action was not intentionally directed
toward the associational right. See Trujillo, 768 F.2d at 1190
n.7; see also Russ, 414 F.3d at 787.
That makes us an outlier. Although we have never
expressly expounded on the question, we have recognized
implicitly that parents maintain a constitutionally protected
liberty interest in the companionship of their adult children.
And our case law has assumed that the right may be violated
even when the relationship is not the target of state action.
For example, in Porter v. Osborn, plaintiffs brought a
Fourteenth Amendment claim after their adult son was
fatally shot in an encounter with Alaska State Troopers. 546
F.3d 1131, 1132 (9th Cir. 2008). We simply cited the broad
principle that a parent has a constitutionally protected liberty
interest in the companionship of his or her child and
scrutinized the scope of the right no further. Id. at 1136. We
also did not question plaintiffs’ asserted rights in Strandberg
v. City of Helena, 791 F.2d 744, 748 n.1 (9th Cir. 1986), and
Moreland v. Las Vegas Metropolitan Police Department,
159 F.3d 365, 371 (9th Cir. 1998).
Whether those prior panels adopted the rule sub-silentio,
or overlooked it by mistake, we cannot say. But by now it is
settled in our case law, and we are bound by our precedent.
Given the similarities between the facts in Porter and
Sinclair’s claim, at least in our circuit, Sinclair possesses a
constitutional right to the companionship of her adult son on
which her claim depends. We thus turn to the question
SINCLAIR V. CITY OF SEATTLE 11
whether Sinclair has alleged that the City’s actions with
respect to CHOP violated her substantive due process rights.
B
Although Sinclair brings this action to vindicate an
alleged deprivation of her own right, see Kelson, 767 F.2d at654 n.2, her theory of liability is a derivative of her son’s
underlying right: She alleges that the City violated her right
to the companionship of her son by violating his right to be
free from state-created danger. Generally, “members of the
public have no constitutional right to sue state [actors] who
fail to protect them against harm inflicted by third parties.”
L.W. v. Grubbs (Grubbs I), 974 F.2d 119, 121 (9th Cir. 1992)
(citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 197 (1989)). One exception to that rule is the
state-created danger doctrine, id., under which “the state
may be constitutionally required to protect a plaintiff that it
affirmatively places in danger by acting with deliberate
indifference to a known or obvious danger.” Martinez v. City
of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (cleaned up).
To succeed on a state-created danger claim, a plaintiff
must establish that (1) a state actor’s affirmative actions
created or exposed him to “an actual, particularized danger
[that he] would not otherwise have faced,” (2) that the injury
he suffered was foreseeable, and (3) that the state actor was
deliberately indifferent to the known danger. Hernandez v.
City of San Jose, 897 F.3d 1125, 1133–34 (9th Cir. 2018)
(quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063
(9th Cir. 2006)).
The City challenges the first and third elements only. It
does not contest that its actions resulted from municipal
12 SINCLAIR V. CITY OF SEATTLE
policy. 3 Given the roles of the chief of police, the mayor,
and the city councilwoman, the facts alleged strongly
establish the municipal policy that underlies the City’s
allegedly tortious behavior establishing this element of the
lawsuit under the Civil Rights Act. Sinclair properly alleges
that the City acted with deliberate indifference. Sinclair
fails, however, to allege that the City created a danger that
was both actual and particularized to her or her son.
1
“[O]nly official conduct that ‘shocks the conscience’ is
cognizable as a due process violation.” Porter, 546 F.3d at
1137. On the record alleged here, where the official conduct
follows an opportunity for actual deliberation, that standard
is met by a showing that the defendant acted with deliberate
indifference. Id. (citing Cnty. of Sacramento v. Lewis, 523
U.S. 833, 851 (1998)). Thus, to make out a successful claim
under the state created danger doctrine, a plaintiff must
allege facts sufficient to establish that the defendant acted
“with ‘deliberate indifference’ to a ‘known or obvious
3
To prevail on a municipal liability claim, a plaintiff must show that the
city “had a deliberate policy, custom, or practice that was the ‘moving
force’ behind the constitutional violation he suffered.” Galen v. Cnty. of
Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007) (quoting Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978)). “To meet this causation
requirement, the plaintiff must establish both causation-in-fact and
proximate causation.” Harper v. City of Los Angeles, 533 F.3d 1010,
1026 (9th Cir. 2008). “The requisite causal connection can be
established not only by some kind of direct personal participation in the
deprivation, but also by setting in motion a series of acts by others which
the [government] actor knows or reasonably should know would cause
others to inflict the constitutional injury.” Lacey v. Maricopa Cnty., 693
F.3d 896, 915 (9th Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740,
743–44 (9th Cir. 1978)).
SINCLAIR V. CITY OF SEATTLE 13
danger.’” Hernandez, 897 F.3d at 1133 (quoting Patel v.
Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011)). This is
a “stringent standard of fault.” Id. at 1135. The defendant
“must ‘recognize[] the unreasonable risk and actually
intend[] to expose the plaintiff to such risks without regard
to the consequences to the plaintiff.’” Herrera v. L.A.
Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021)
(alterations in original) (quoting L.W. v. Grubbs, 92 F.3d
894, 899 (9th Cir. 1996)). “Ultimately, a state actor needs to
know that something is going to happen but ignore the risk
and expose the plaintiff to it.” Id. at 1158–59 (cleaned up).
Sinclair’s allegations support the strong inference that
the City acted with deliberate indifference toward the
dangers of permitting and encouraging establishment of the
CHOP zone. It is self-evident that the SPD’s wholesale
abandonment of its East Precinct, combined with Mayor
Durkan’s promotion of CHOP’s supposedly festival-like
atmosphere, would create a toxic brew of criminality that
would endanger City residents. In particular, Sinclair’s
allegations that “City Council Member Kshama Sawant
publicly and recklessly framed CHOP as a ‘peaceful’
occupation even after it became violent,” and that Police
Chief Carmen Best wondered aloud after a second homicide
in CHOP “why we could continue to allow this to happen,”
all support the inference that City officials knowingly
exposed the public to a danger against which the officials did
almost nothing to protect against. Freedom to assemble and
to speak are constitutionally protected; violence is not.
The district court was correct, however, in holding that
Sinclair’s allegations about the City’s response after
Anderson had been shot do not show deliberate indifference.
Sinclair does not dispute that medics tried to provide
Anderson care and that the City did not prohibit them from
14 SINCLAIR V. CITY OF SEATTLE
doing so. And she agrees that their delayed response
stemmed from a miscommunication about whether they
were approved to enter the CHOP zone. Indeed, SFD had
even positioned an ambulance a block and a half away from
the CHOP medical tent where Anderson was carried. Had
the City been deliberately indifferent to Anderson’s
particular plight, they would have ignored CHOP
participants’ pleas for help altogether. They did no such
thing.
In sum, Sinclair has properly alleged that the City was
deliberately indifferent to the dangers of CHOP, but not
deliberately indifferent in its response to Anderson’s ensuing
injuries or in the provision of medical care to him.
2
For a plaintiff to prevail on a state-created danger claim,
the government must “affirmatively create[] an actual,
particularized danger [that the plaintiff] would not otherwise
have faced.” Kennedy, 439 F.3d at 1063. Sinclair’s
allegations support a conclusion that the City created an
actual danger, but not a particularized one.
a
Accepting Sinclair’s allegations as true, Sinclair shows
that the City affirmatively created the actual danger
Anderson—and by extension Sinclair—faced. Most
relevant, Sinclair alleges that the City (1) left behind barriers
the CHOP occupiers used to block streets off from general
traffic and emergency responders; (2) provided portable
toilets, lighting, and other support to the occupiers that
allowed the lawless violence to persist; and (3) lured visitors
to CHOP with promises of safety and a block-party
atmosphere. Construing these allegations in the light most
SINCLAIR V. CITY OF SEATTLE 15
favorable to Sinclair, it is plausible that these actions,
combined with the City’s withdrawal of law enforcement
from CHOP, incubated a more lawless and violent
environment compared to the status quo. Sinclair argues that
“[h]ad the City not provided barricades and other material
support to CHOP . . . . people like [Anderson]’s murderer
would not have been emboldened to undertake in criminal
activity.” Her allegations, if proven, support that conclusion.
The City responds that this case is similar to Johnson v.
City of Seattle, 474 F.3d 634 (9th Cir. 2007), in which we
held the City did not create a danger. In Johnson, in response
to growing violence at a Mardi Gras festival, the City of
Seattle altered its crowd control plan for riot officers
monitoring the event from one focused on confronting
problematic behavior to one in which officers would remain
on the periphery of the crowd. Id. at 637. The assistant
police chief in charge ordered the change because he
“determined that ordering police officers to enter into the
crowd, or any attempts by the police to disperse it would
incite greater panic and violence, making the situation
worse.” Id. Members of the crowd who were then assaulted
by rogue revelers brought a § 1983 action against the City.
Id. We held that the City had not engaged in affirmative
conduct that “enhanced the dangers the . . . [p]laintiffs
exposed themselves to by participating in the Mardi Gras
celebration.” Id. at 641. The City’s decision to switch its
tactical plan “did not place [the plaintiffs] in any worse
position than they would have been in had the police not
come up with any operational plan whatsoever.” Id.
Here, Sinclair alleges more than the sort of police
withdrawal to alleviate escalating violence that we
considered in Johnson. She alleges the City affirmatively
provided traffic barriers, lighting, and toilets to encourage
16 SINCLAIR V. CITY OF SEATTLE
the occupation, and portrayed CHOP as a fun, peaceful, cop-
free protest, which further incited lawlessness in the area but
nonetheless attracted Anderson to CHOP. Sinclair also
alleges that the City support for CHOP extended for about a
month after it became clear that the City’s policies were
fostering greater unchecked violence. The City’s actions
were thus deliberate and not passive or neutral as in Johnson.
Sinclair’s allegations against the City go further and support
the inference that the City’s actions increased the level of
danger CHOP posed to Anderson above the counterfactual
baseline level of danger that would have existed without its
intervention: It was the City’s creation of an opportunity for
uncontrolled lawlessness, not just the City’s failure to
intervene, that endangered Anderson’s, and by extension
Sinclair’s, rights.
b
While Sinclair adequately alleges that the City created,
or at least significantly contributed to, the danger her son
faced, she fails to allege that the danger was sufficiently
particularized to support a § 1983 claim.
A “particular” danger is a danger “of, relating to, or
being a single person or thing.” Particular, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2003). A
“particularized” danger, naturally, contrasts with a general
one. But any danger the City created or contributed to by
enabling the CHOP zone affected all CHOP visitors equally;
the danger was not specifically directed at Sinclair or
Anderson. That is, the dangers that Anderson faced as a
result of the City ignoring the lawlessness and crime
occurring in CHOP were the same as anyone else; the City
did not create a danger that posed a specific risk to Sinclair.
SINCLAIR V. CITY OF SEATTLE 17
A danger is “particularized” if it is directed at a specific
victim. A survey of our cases makes that clear. In Grubbs
I, the state left a nurse alone with a violent offender, who
assaulted her. 974 F.2d at 121. In Hernandez, officers
“shepherded [plaintiffs] into a violent crowd of protestors
and actively prevented them from reaching safety.” 897
F.3d at 1138. In Munger v. City of Glasgow Police
Department, officers expelled the inebriated plaintiff from a
bar into the freezing night with nowhere to go, and he later
succumbed to hypothermia. 227 F.3d 1082, 1086–87 (9th
Cir. 2000). In Wood v. Ostrander, troopers stopped a car,
arrested the driver, and left the plaintiff passenger stranded
in a high crime area in the middle of the night where she was
subsequently raped. 879 F.2d 583, 590 (9th Cir. 1989). In
Kennedy, the plaintiff and her deceased husband were shot
by their neighbor after a police officer notified the neighbor
that the plaintiff had reported that the neighbor had molested
their nine-year-old daughter. 439 F.3d at 1057–58. And in
Maxwell v. County of San Diego, a gunshot victim died after
police officers prevented the ambulance from leaving for the
hospital. 708 F.3d 1075, 1082 (9th Cir. 2013). In each of
those cases, the danger was particularized to the plaintiffs.
By contrast, in Johnson, where it was not, “[p]laintiffs
voluntarily placed themselves in the midst of the crowd that
subsequently became unruly.” 474 F.3d at 640.
Here, Sinclair fails to allege that the City had any
previous interactions with her son, directed any actions
toward him, or even knew of her son’s existence until he was
killed. Instead, she “alleged that the City left all visitors to
CHOP in a much more dangerous position than it found
them in.” Even construed in the light most favorable to
Sinclair, her allegations demonstrate that the City-created
18 SINCLAIR V. CITY OF SEATTLE
danger was a generalized danger experienced by all those
members of the public who chose to visit the CHOP zone.
That distinguishes this case from Hunters Capital LLC
v. City of Seattle, another CHOP case in which the district
court held that plaintiffs could state a state-created danger
claim. 499 F. Supp. 3d 888, 902 (W.D. Wash. 2020). Both
parties point out that Hunters Capital involved plaintiffs
who lived or owned businesses within the CHOP zone,
significantly narrowing the class of persons exposed to the
alleged state-created danger. See id. at 895–99. Those facts
are more like Hernandez, where officers directed a discrete
and identifiable group of protestors toward a dangerous mob,
than like Johnson, where plaintiffs were among many who
had attended a dangerous Mardi Gras festival voluntarily.
While we offer no opinion on Hunters Capital, its facts are
appreciably closer to meeting the particularity standard that
our precedent requires than are Sinclair’s allegations.
Sinclair points out that in Huffman v. County of Los
Angeles, we noted that it is an open question in our circuit
whether a plaintiff can bring a state-created danger claim
when the danger was not particularized to a specific, known
individual. 147 F.3d 1054, 1061 n.4 (9th Cir. 1998). She
argues that as long as the state-created danger was
particularized, a plaintiff may bring a claim even if the
individual harmed was an undifferentiated member of the
public. And here, she says that the City created the
particularized danger of lawlessness.
Only one court, the Seventh Circuit, has held that the
state-created danger need not be particular to a known
plaintiff. In Reed v. Gardner, officers detained a sober
driver, allowing his drunk passenger to take the wheel
instead. 986 F.2d 1122, 1123–24 (7th Cir. 1993). The drunk
SINCLAIR V. CITY OF SEATTLE 19
driver soon caused an accident farther down the highway.
Id. The Seventh Circuit held that the state-created danger
doctrine could apply because “the other motorists” in the
area were “worse off with a drunk driver heading toward
them than a sober one.” Id. at 1125, 1127. At the same time,
the Reed court reasoned that “[t]he dangers presented by
drunk drivers are familiar and specific; in addition, the
immediate threat of harm has a limited range and duration.”
Id. at 1127.
We need not definitively resolve whether to adopt the
Seventh Circuit’s minority rule showcased in Reed because
it would not change the result. Here, the alleged dangers in
CHOP were of unchecked lawlessness and rampant crime
affecting everyone. Those dangers on this record clearly
reflect the City’s shocking contempt towards its promise to
citizens that “[t]here shall be maintained adequate police
protection in each district of the City.” Seattle, Wash., City
Charter art. VI, § 1. Likewise, individual city officials
openly flouted their oath to “support . . . the Charter and
ordinances of The City of Seattle.” Id. at art. XIX, § 4. But
the dangers alleged are neither specific, nor immediate, nor
of limited range or duration. And Anderson’s shooting was
not as directly or necessarily correlated to the danger posed
by uncontrolled lawlessness as a drunk-driving victim’s
injuries are to the danger of letting an intoxicated person get
behind the wheel. Indeed, Anderson’s encounter with Long,
with whom he had “a history of antagonism,” is a significant
chink in the causal chain.
20 SINCLAIR V. CITY OF SEATTLE
In sum, while the City created an actual danger of
increased crime, that danger was not specific to Anderson or
Sinclair. 4 Thus, Sinclair’s § 1983 claim fails.
***
The City’s conduct here was egregious. But because the
City’s actions were not directed toward Anderson and did
not otherwise expose him to a specific risk, the connection
between Sinclair’s alleged injuries and the City’s affirmative
actions is too remote to support a § 1983 claim. It is at the
ballot box, then, that Sinclair and other Seattleites must hold
the City accountable for their deliberately indifferent
actions.
AFFIRMED.
4
Sinclair also asserts that, with discovery, she would adduce testimony
that her young, special needs son was especially vulnerable to the City’s
public comparisons to popular music/cultural events and promises of
safety. She may also be able to access City officials’ missing text
messages or benefit from adverse evidentiary inferences if they have
been destroyed. Even so, she still could not state a claim. Even if her
son was particularly susceptible to the City’s misrepresentations, the
danger of attracting special needs youth with statements about music and
safety is not the sort of “familiar and specific” danger that is found by
unleashing a drunk driver on the road. Nor is it similarly limited in range
or duration.
SINCLAIR V. CITY OF SEATTLE 21
R. NELSON, Circuit Judge, concurring:
We have created a split with other circuits by
recognizing a substantive due process right to the
companionship of one’s adult children. Perhaps not
purposefully; but we are bound by those prior holdings. And
had we fully considered the issue, we likely would not have
recognized such a right. Since Sinclair’s claim depends on
this right, had we not been bound by our precedent to hold
otherwise, we should have affirmed the district court’s
dismissal of this case on that alternative ground alone.
The recognition of a constitutionally protected right to
the mere companionship of one’s children is a creature of the
circuit courts. The Supreme Court has never recognized
such a right. When the Supreme Court has recognized
constitutional protections of the parent-child relationship,
those protections have been concerned with the right to
retain custody of minor children and the right to make
decisions about raising them. See, e.g., Meyer v. Nebraska,
262 U.S. 390, 396–99 (1923) (identifying the right to
“establish a home and bring up children”); Prince v.
Massachusetts, 321 U.S. 158, 166 (1944) (“[T]he custody,
care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for
obligations the state can neither supply nor hinder”). Never
has the Supreme Court recognized as protected the
emotional bond between parent and child without more,
regardless of whether that child is a minor or an adult.
Not just that. The Supreme Court has admonished that
we must be wary of recognizing new substantive due process
rights “lest the liberty protected by the Due Process Clause
be subtly transformed into the policy preferences” of judges.
Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
22 SINCLAIR V. CITY OF SEATTLE
Before recognizing a substantive due process right, the Court
requires “a careful description” of the asserted right and then
a determination that it is “deeply rooted in this Nation’s
history and tradition.” Id. at 720–21 (citations omitted).
Other circuits have recognized a substantive due process
right to the companionship of a minor child. But none have
extended that right to an adult child. And most have rejected
such an extension. In McCurdy v. Dodd, the Third Circuit
stated that it would be a “serious mistake . . . to extend the
liberty interests of parents into the amorphous and open-
ended area of a child’s adulthood.” 352 F.3d 820, 829 (3d
Cir. 2003). And in Robertson v. Hecksel, the Eleventh
Circuit found no support for an extension of a parent’s
substantive due process rights to adult children in Supreme
Court precedent and “decline[d] to further expand the
substantive protections of the Due Process Clause.” 420
F.3d 1254, 1260 (11th Cir. 2005).
We, unfortunately, have not. As detailed in the majority
opinion, we have held implicitly that parents have a
constitutional right to the companionship of their adult
children, even after Glucksberg. See, e.g., Porter v. Osborn,
546 F.3d 1131, 1132 (9th Cir. 2008). In a pre-Glucksberg
decision, the Tenth Circuit took a similar position, without
the type of analysis that Glucksberg would require. See
Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 768 F.2d
1186, 1190 (10th Cir. 1985).
Had we given the question due consideration, I do not
think we would have recognized Sinclair’s asserted right
here. As the Third Circuit reasoned, it is too amorphous. Is
the right limited to young adult children who still live with
their parents? Or would it extend to the relationship between
an 80-year-old father and his estranged 50-year-old son?
SINCLAIR V. CITY OF SEATTLE 23
These uncertainties illustrate the difficulty in creating
constitutional protections over broad abstractions. The
Supreme Court has accordingly limited such protections to
concrete circumstances in which the contours of the right
have been historically clear.
Nor is it even necessary that Sinclair’s companionship
interest in her son be constitutionally protected for those
interests to be vindicated. In overturning a prior ruling
recognizing a substantive due process right to the
companionship of one’s adult child, the Seventh Circuit
reasoned that “[a]ffording plaintiffs a constitutional due
process right to recover against the state in these
circumstances would create the risk of constitutionalizing all
torts against individuals who happen to have families.” Russ
v. Watts, 414 F.3d 783, 790 (7th Cir. 2005), overruling Bell
v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984).
Anderson’s estate has already sued and settled with the City.
And Sinclair or others harmed by his death may be able to
bring state tort claims against the City. So while Sinclair
may achieve justice for her son, the Due Process Clause is
not the way to do so. Such rights should remain a creation
of state law. See Tabares v. City of Huntington Beach, 988
F.3d 1119, 1122 (9th Cir. 2021) (explaining that the U.S.
Constitution and state common law are “two distinct legal
frameworks”).
In sum, there is no good reason why we should even
reach the merits of Sinclair’s state-created danger claim. In
establishing the right on which her claim depends, our
precedent failed to engage in the proper analysis required by
Glucksberg (or really any analysis at all). Had we done so,
we should have reached the conclusion that our sister circuits
already have: There is no constitutional right to recover for
24 SINCLAIR V. CITY OF SEATTLE
the loss of her companionship with her adult son. We should
correct our prior erroneous precedent en banc.