Jose Murguia v. Heather Langdon ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MURGUIA, for himself and for No. 21-16709
the Estates of Mason and Maddox
Murguia, D.C. No.
1:19-cv-00942-
Plaintiff-Appellant, DAD-BAM
v.
ORDER
HEATHER LANGDON; COUNTY
OF TULARE; LEWIS, Deputy at
Tulare County Sheriff Department;
ROXANNA TORRES, Social Worker
at the Child Welfare Service; CITY
OF TULARE; GARCIA, Sergeant at
Tulare Police Department; FIRST
ASSEMBLY OF GOD OF VISALIA;
CERDA,
Defendants-Appellees.
Filed July 18, 2023
Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan
Christen, Circuit Judges.
Order;
Dissent by Judge Bumatay
2 MURGUIA V. LANGDON
SUMMARY *
Civil Rights/State-Created Danger Doctrine
The panel denied a petition for panel rehearing, and
denied a petition for rehearing en banc after a request for a
vote on whether to rehear the matter en banc failed to receive
a majority of the votes of the nonrecused active judges in
favor of en banc consideration, in an action brought pursuant
to 42 U.S.C. § 1983 involving the application of the “state-
created danger” doctrine in the context of a welfare check.
Dissenting from the denial of rehearing en banc, Judge
Bumatay, joined by Judges Callahan, Ikuta, and R. Nelson,
stated that the court should have seized this opportunity to
correct its longstanding errors in applying the state-created
danger doctrine and place itself back on track with Supreme
Court precedent and the Constitution’s text. Judge Bumatay
wrote that only affirmative acts that cause the deprivation of
liberty may suffice for a state-created danger claim.
ORDER
Judges Bea and Christen voted to deny the petition for
panel rehearing. Judge Ikuta voted to grant the petition for
panel rehearing. The full court was advised of the petition
for rehearing en banc. A judge requested a vote on whether
to rehear the matter en banc, and the matter failed to receive
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MURGUIA V. LANGDON 3
a majority of the votes of the nonrecused active judges in
favor of en banc consideration. See Fed. R. App. P. 35(a).
The petition for panel rehearing and rehearing en banc is
DENIED. A dissent from the denial of rehearing en banc,
prepared by Judge Bumatay, is filed concurrently with this
order.
BUMATAY, Circuit Judge, joined by CALLAHAN,
IKUTA and R. NELSON, Circuit Judges, dissenting from
the denial of rehearing en banc:
As a general matter, the Constitution constrains the
actions of only government actors. It ordinarily provides no
relief to those injured by private parties. Faced with tragic
facts, however, we may be tempted to expand the scope of
constitutional rights to grant relief to injured parties in
federal court. But our job is to look to the text and history
of the Constitution for the scope of constitutional
remedies—not simply to “make good the wrong done.”
Boule v. Egbert, 998 F.3d 370, 374 (9th Cir. 2021)
(Bumatay, J., dissenting) (quoting Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 396 (1971)), rev’d, 142 S. Ct. 1793 (2022).
Ignoring this principle, most circuit courts, including
ours, have recognized the “state-created danger” doctrine as
a substantive component of the Fourteenth Amendment’s
Due Process Clause. Extrapolating from just two sentences
in DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989), federal courts have carved
out an exception to the rule that the Due Process Clause does
not obligate the State to protect its citizens from harm caused
4 MURGUIA V. LANGDON
by private actors. Our court allows plaintiffs to seek
damages against State actors who, by their “affirmative
acts,” place plaintiffs in danger of injury from others.
Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir.
2018).
But the state-created danger exception finds no support
in the text of the Constitution, the historical understanding
of the “due process of law,” or even Supreme Court
precedent. And as the Court recently emphasized, we should
be reluctant to recognize rights not mentioned in the
Constitution to “guard against the natural human tendency
to confuse what [the Fourteenth] Amendment protects with
our own ardent views about the liberty that Americans
should enjoy.” Dobbs v. Jackson Women’s Health Org., 142
S. Ct. 2228, 2247 (2022). As such, at least one circuit has
questioned the legitimacy of this recent-vintage right. See
Fisher v. Moore, 62 F.4th 912, 913 (5th Cir. 2023) (declining
to adopt state-created danger doctrine because of the
Supreme Court’s “forceful pronouncements signaling
unease with implied rights not deeply rooted in our Nation’s
history and tradition”). And given its opaque origins, the
doctrine has also caused a split among the other circuits
about how to apply it.
Even if the state-created danger doctrine is properly
considered a substantive due process right (which may be
doubtful), we should reject its undue expansion and align it
with the text of the Due Process Clause and Supreme Court
precedent to the extent possible. But since the inception of
the doctrine, courts have increasingly broadened its reach.
See Matthew Pritchard, Reviving DeShaney: State-Created
Dangers and Due Process First Principles, 74 Rutgers U. L.
Rev. 161, 175 (2021). Now, almost any conceivable action
by a State actor can lead to a constitutional violation. And
MURGUIA V. LANGDON 5
every expansion of the right moves the doctrine farther away
from the Constitution and the Court’s precedent.
Murguia v. Langdon, 61 F.4th 1096 (9th Cir. 2023),
continues this trajectory. In this case, our court once again
aggrandizes the “state-created danger” doctrine and expands
its scope. Now, commonplace actions—like providing a
ride, booking a motel room, or telling a lie—when done by
a State actor, could become due process violations if the
actions eventually lead to injuries caused by third parties.
While Jose Murguia has suffered profound tragedy and
deserves redress, the Constitution doesn’t provide the
remedy.
Instead, we should have recognized that the Due Process
Clause requires a “deprivation of liberty” because it was
intended to prevent abuses of coercive state authority—not
torts that happen to be committed by State actors. DeShaney,
489 U.S. at 200. So we should have confined the “state-
created danger” doctrine to only encompass affirmative acts
by a State actor that constitute the use of the government’s
coercive power to restrain the liberty of another. If those
acts place a plaintiff in harm’s way, then we may rightfully
have a constitutional violation. But without a restraint of
liberty, we remain in the realm of ordinary torts. And here,
we let due process claims continue against several State
actors without any allegation that they exercised the coercive
power of the State. We should have affirmed the dismissal
of Murguia’s due process claims.
It’s long past due that we revisit the state-created danger
doctrine. This case presented us with a prime opportunity to
reconcile our state-created danger jurisprudence with
Supreme Court precedent and our Constitution. Regrettably,
our court has passed it up.
6 MURGUIA V. LANGDON
I respectfully dissent from the denial of rehearing en
banc.
I.
The facts here, as in many state-created danger cases, are
deeply troubling.
A.
Factual Background
Jose Murguia and Heather Langdon had a turbulent
relationship. They met in 2004, got married, divorced in
2015, and were living together again in 2018. They had five
children together, including twin boys, Mason and Maddox,
born in early 2018. Langdon suffered from severe mental
illness and, over the years, had been accused of abusing
Murguia and their children. Because of her mental illness,
she was arrested several times and lost custody of her
children at various points.
Leading up to December 2018, Langdon’s mental health
began to deteriorate. In late November 2018, for example,
Langdon told her oldest son that it was the end of times
because “a fire had destroyed the town of Paradise, and that
she was thinking at a higher power.” In early December, she
also falsely told others that her oldest son threatened to shoot
up an elementary school. Langdon’s mental illness became
so severe that, on December 4, Murguia called the police for
help with Langdon’s erratic behavior. Deputies from the
Tulare County Sheriff’s Department arrived, but they told
Murguia to call back if Langdon threatened herself or others.
MURGUIA V. LANGDON 7
i.
Deputy Lewis and Sergeant Cerda’s Actions
The next day, December 5, Langdon told Murguia that
she drank “bleach and vinegar to cleanse the demons in her
soul.” Murguia then called 911. Tulare County Sheriff’s
Department officials, including Deputy Lewis and Sergeant
Cerda, responded. When Deputy Lewis arrived, he ordered
Murguia to step outside, away from the twins and Langdon.
Langdon told Deputy Lewis and Sergeant Cerda that she
could see dead people and that Murguia was a devil
worshiper. After being ordered outside, Murguia went to the
house of their neighbor and friend, Rosa. Rosa accompanied
Murguia back to his house, and a deputy allowed Rosa to go
inside to see Langdon. A deputy told Rosa that she should
take Langdon to the hospital.
Rosa tried convincing Langdon to go to the hospital, but
Langdon refused and insisted that they take the twin babies
to church because Murguia’s “house was hexed.” Rosa
agreed to bring Langdon and the twins to Langdon’s church.
Murguia begged Deputy Lewis and Sergeant Cerda not to let
Langdon leave with the twins because they were not safe
with her. But they allowed the twins to remain with Langdon
and Rosa. Deputy Lewis and Sergeant Cerda then stayed
outside Murguia’s home for 30 minutes to make sure he
didn’t follow Langdon and the twins. Murguia feared that
Deputy Lewis and Sergeant Cerda would arrest him if he
tried.
ii.
Sergeant Garcia’s and Social Worker Torres’s Actions
When Rosa, Langdon, and the twins arrived at the
church, Rosa warned church receptionists that the twins
8 MURGUIA V. LANGDON
were in danger and needed to be taken away from Langdon.
One receptionist responded that the twins would be in good
hands with the pastor. Langdon told the pastor that she was
homeless, needed shelter, and wanted mental health help.
The pastor asked Langdon if she would go to a mental health
center for an evaluation and she said yes. The pastor called
911. Instead of a hospital, however, police officers brought
Langdon and the twins to the Lighthouse Shelter, a women’s
shelter in Tulare, California. At Lighthouse, the staff
observed Langdon continuing to act erratically, and they
eventually called the police.
Officers from the Tulare Police Department arrived at
Lighthouse and witnessed Langdon yelling and acting
belligerent. Officers offered to take her to the hospital, but
Langdon refused, and they left her and the twins at
Lighthouse. Based on Langdon’s continued belligerent
behavior, Tulare Police officers were called back to
Lighthouse 40 minutes later. This time, an officer brought
in Sergeant Garcia, a Tulare Police Crisis Intervention
Technician Officer, for assistance.
To learn more about Langdon, Sergeant Garcia called
Roxanne Torres, an emergency response social worker with
the County of Tulare Child Welfare Services. Torres falsely
told Sergeant Garcia that Langdon did not have a history of
child abuse. In fact, Child Welfare Services knew that
Langdon had three criminal convictions for child cruelty and
prior child welfare investigations, including an active case
against Langdon. Torres also failed to inform Sergeant
Garcia that Murguia was available to take custody of the
twins.
For his part, Sergeant Garcia told Torres that he did not
want to separate the twins from Langdon and falsely
MURGUIA V. LANGDON 9
reported that Langdon had been evaluated at a hospital and
did not meet the criteria for involuntary commitment. Based
on her call with Sergeant Garcia, Torres concluded Langdon
was not an imminent threat to the children and decided not
to initiate an immediate, in-person investigation of Langdon.
After the call with Torres, Sergeant Garcia and two other
police officers arranged for a motel to provide Langdon with
free lodging and drove her and the twins to the motel.
The following morning, tragedy struck. At the motel,
Langdon was observed screaming for help. A bystander
called the police. When paramedics arrived, they found the
twins had been drowned and were lying dead on the motel
bed. Langdon was later prosecuted for murder but found not
guilty by reason of insanity.
B.
Procedural History
Murguia brought suit under 42 U.S.C. § 1983 against
Deputy Lewis, Sergeant Cerda, Sergeant Garcia, Torres, and
others, for violating his constitutional rights under the state-
created danger doctrine. The district court dismissed, and
Murguia appealed.
A split panel of this court reversed in part. The panel
majority affirmed the dismissal of Deputy Lewis and
Sergeant Cerda from the suit. Because they “merely
replaced one competent adult—[Murguia]—with another
competent adult—Rosa,” the panel majority held that the
deputies did not leave the twins “in a situation that was more
dangerous than the one in which they found them.”
Murguia, 61 F.4th at 1113 (simplified). The panel majority
allowed the claim against Sergeant Garcia to proceed
because “[w]hen Garcia left Langdon and the twins at the
10 MURGUIA V. LANGDON
motel, he removed them from the supervision of the
Lighthouse staff and rendered the twins more vulnerable to
physical injury by Langdon as a result of their isolation with
her.” Id. Finally, the majority concluded that the claim
against Torres should continue because she provided
Sergeant Garcia with false information, thus “render[ing] the
twins more vulnerable to physical injury by Langdon by
eliminating the most obvious solution to ensuring the twins’
safety: returning them to [Murguia’s] custody.” Id. at 1115.
Judge Ikuta dissented, pointing out that our court has
expanded the state-created danger doctrine to “a significant
degree” and that the panel majority’s decision takes our
court far afield of Supreme Court precedent. Id. at 1122
(Ikuta, J., dissenting). Judge Ikuta explained that “the state-
created danger doctrine applies only when an injury is
caused by a state’s abuse of its executive power undertaken
with the intent to injure someone in a way unjustifiable by
any government interest, not when the injury is the result of
mere negligence.” Id. (simplified). Under this framework,
Judge Ikuta would have dismissed the remaining claims on
appeal. Id. at 1124–26.
Judge Ikuta’s concerns are well justified, and we should
have corrected the panel majority’s error on en banc review.
II.
A.
The Original Understanding of the Due Process Clause
The Due Process Clause of the Fourteenth Amendment
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. As a textual matter, “nothing in the
language of the Due Process Clause . . . requires the State to
MURGUIA V. LANGDON 11
protect the life, liberty, and property of its citizens against
invasion by private actors.” DeShaney, 489 U.S. at 195.
And as a historical matter, the Due Process Clause was
“intended to secure the individual from the arbitrary exercise
of the powers of government.” Hurtado v. California, 110
U.S. 516, 527 (1884) (quoting Bank of Columbia v. Okely,
17 U.S. (4 Wheat.) 235, 244 (1819)); see also Edward S.
Corwin, The Doctrine of Due Process of Law Before the
Civil War, 24 Harv. L. Rev. 366, 368 (1911).
Thus, as a matter of text and history, the focus of the Due
Process Clause was a protection against the arbitrary use of
the “exclusive sovereign prerogative to coerce or restrain
action.” Pritchard, 74 Rutgers U. L. Rev. at 192. The Clause
served “as a limitation on the State’s power to act, not as a
guarantee of certain minimal levels of safety and security.”
DeShaney, 489 U.S. at 195. The due process right then
“cannot fairly be extended to impose an affirmative
obligation on the State to ensure” that life, liberty, and
property “do not come to harm through” private action. Id.In other words, the Clause was meant “to protect the people
from the State, not to ensure that the State protected them
from each other.” Id. at 196. Ordinarily “a State’s failure
to protect an individual against private violence simply does
not constitute a violation of the Due Process Clause.” Id.
at 197.
To be sure, as the Court has recognized, “in certain
limited circumstances the Constitution imposes upon the
State affirmative duties of care and protection with respect
to particular individuals.” Id. at 198. Under the so-called
“special relationship” doctrine, “when 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 or general well-
12 MURGUIA V. LANGDON
being.” Id. at 199–200 (citing Estelle v. Gamble, 429 U.S.
97 (1976), and Youngberg v. Romero, 457 U.S. 307 (1982)).
“[I]t is the State’s affirmative act of restraining the
individual’s freedom to act on his own behalf—through
incarceration, institutionalization, or other similar restraint
of personal liberty—which is the ‘deprivation of liberty’
triggering the protections of the Due Process Clause, not its
failure to act to protect his liberty interests against harms
inflicted by other means.” Id. at 200.
So for over a century after the ratification of the
Fourteenth Amendment, no court had recognized a
substantive due process right against injury from private
actors under a “state-created danger” exception. Instead,
courts placed strict limits on substantive due process to
reflect the well-established principle that the Constitution is
not “a font of tort law.” Paul v. Davis, 424 U.S. 693, 701
(1976). This is “because [the Fourteenth] Amendment did
not alter the basic relations between the States and the
national government.” Id. at 700 (quoting Screws v. United
States, 325 U.S. 91, 109 (1945)). In accord with this
understanding of federalism, the Supreme Court has stressed
that “the Due Process Clause of the Fourteenth
Amendment . . . does not transform every tort committed by
a state actor into a constitutional violation.” DeShaney, 489
U.S. at 202; see also Daniels v. Williams, 474 U.S. 327, 332
(1986) (“Our Constitution . . . does not purport to supplant
traditional tort law in laying down rules of conduct to
regulate liability for injuries that attend living together in
society.”); County of Sacramento v. Lewis, 523 U.S. 833,
848 (1998) (“[T]he due process guarantee does not entail a
body of constitutional law imposing liability whenever
someone cloaked with state authority causes harm.”).
Rather, the Constitution generally leaves the regulation of
MURGUIA V. LANGDON 13
torts committed by public officials to the States. Indeed,
many States—including the one in this case—provide relief
to plaintiffs for injuries caused by State officials’ tortious
conduct. See, e.g., Cal. Gov’t Code § 820.
B.
The Creation of the State-Created Danger Doctrine
Given this background, an obvious question arises:
where did the state-created danger doctrine come from? It’s
not from the text of the Due Process Clause. Nor did it
originate from a historical understanding of the “due process
of law.” It didn’t even come from a Supreme Court
pronouncement of the right. The simple answer—the right
was plucked from just two sentences in DeShaney. Like
Athena from Zeus’s forehead, from two lines in the U.S.
Reports sprung an atextual and ahistorical expansion of
substantive due process rights. But unlike with Athena, the
doctrine’s wisdom is not apparent.
Recall the facts of DeShaney: Joshua DeShaney was a
young boy whose father inflicted horrible abuse on him. 489
U.S. at 191. After multiple visits to Joshua’s home, county
caseworkers observed signs of abuse and temporarily
removed him from his father’s custody. Id. at 192. But
Joshua was returned home a short while later. Id. After his
return, his father beat him so badly that he fell into a coma
and suffered severe brain damage. Id. at 193. Joshua
blamed his county’s social services department for failing to
prevent the violence. Id. at 193. Joshua and his mother filed
a § 1983 action, alleging that the State violated his
substantive due process rights by failing to protect him from
his father’s abuse. Id. at 193, 195.
14 MURGUIA V. LANGDON
Based on its text and history, the Court rejected Joshua’s
argument that the Due Process Clause created an
“affirmative obligation on the State to provide the general
public with adequate protective services.” Id. at 197. But
the Court also looked at whether the “special relationship”
exception fit the situation and concluded it “ha[d] no
applicability” to Joshua’s circumstances. Id. at 201. There,
the Court explained:
While the State may have been aware of the
dangers that Joshua faced in the free world, it
played no part in their creation, nor did it do
anything to render him any more vulnerable
to them. That the State once took temporary
custody of Joshua does not alter the analysis,
for when it returned him to his father’s
custody, it placed him in no worse position
than that in which he would have been had it
not acted at all; the State does not become the
permanent guarantor of an individual’s safety
by having once offered him shelter.
Id.
From these two lines explaining why the “special
relationship” exception could not save Joshua’s
constitutional claim, circuit courts throughout the country
have fashioned a brand new substantive due process right—
the so-called “state-created danger” exception.
Take our circuit: from DeShaney’s language that the
State “played no part in [the dangers’] creation, nor did it do
anything to render [Joshua] any more vulnerable to them,”
we held that “DeShaney thus suggests that had the state
created the danger, Joshua might have recovered.” L.W. v.
MURGUIA V. LANGDON 15
Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (emphasis added).
From that suggestion, we read two distinct exceptions to the
“general rule” that “members of the public have no
constitutional right to sue state employees who fail to protect
them against harm inflicted by third parties.” Id. First, we
have the established “special relationship” exception
discussed in DeShaney, which requires custody of the
plaintiff. Id. Second, we hatched a new “danger creation
exception” that dispenses with any custodial requirement.
Id. This latter exception creates liability for any conduct by
a State actor that leads to harm by a third party if the State
(1) “affirmatively place[d] the plaintiff in danger” (2) “with
deliberate indifference to a known or obvious danger.”
Murguia, 61 F.4th at 1106 (simplified). Some of our cases
add a third element: (3) “that the injury [the plaintiff]
suffered was foreseeable.” Sinclair v. City of Seattle, 61
F.4th 674, 680 (9th Cir. 2023).
Other circuits have followed suit in recognizing the
“state-created danger” exception from DeShaney’s two
sentences. See Freeman v. Ferguson, 911 F.2d 52, 54–55
(8th Cir. 1990); Dwares v. City of New York, 985 F.2d 94, 99
(2d Cir. 1993); Reed v. Gardner, 986 F.2d 1122, 1125 (7th
Cir. 1993); Uhlrig v. Harder, 64 F.3d 567, 572 & n.7 (10th
Cir. 1995); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir.
1996); Davis v. Brady, 143 F.3d 1021, 1025 (6th Cir. 1998);
Butera v. District of Columbia, 235 F.3d 637, 647–49, 651
(D.C. Cir. 2001); Doe v. Rosa, 795 F.3d 429, 438 (4th Cir.
2015); Irish v. Fowler, 979 F.3d 65, 73, 75 (1st Cir. 2020).
C.
The Concerns with the State-Created Danger Doctrine
Whatever the wisdom of the state-created danger
doctrine, three related concerns arise from its origin and
16 MURGUIA V. LANGDON
application. First, we should be wary of recognizing a new
constitutional right from such an uncertain source. Second,
given the lack of a textual and historical mooring, we should
be careful before extending it. From its beginnings in
DeShaney to Murguia today, the doctrine has evolved along
a course of repeated expansion—so much so that the
Constitution now is the “font of tort law” the Court has told
us to avoid. Paul, 424 U.S. at 701. Third, the circuit courts
have varied wildly on how to apply the doctrine. With just
a couple of lines from DeShaney to go on, circuit courts
have—predictably—come up with diverging tests for
determining when the exception applies.
I look at each concern in turn.
i.
The Court Does Not Hide Elephants in Mouseholes
Start with the obvious: Two sentences from DeShaney
are not enough to disrupt the constitutional landscape. Just
as Congress does not “hide elephants in mouseholes,”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001),
it’s doubtful that the Supreme Court meant to fashion a novel
theory of substantive due process liability through such
incidental language.
Indeed, we turn DeShaney on its head by reading it to
create a new affirmative duty on States when the thrust of
the opinion reaffirms the strict limits of the Due Process
Clause’s substantive component. DeShaney rejected a broad
view of substantive due process, observing that “nothing in
the language of the Due Process Clause . . . requires the State
to protect the life, liberty, and property of its citizens against
invasion by private actors.” 489 U.S. at 195. To be sure, the
Court acknowledged that its prior “special relationship”
MURGUIA V. LANGDON 17
cases recognize that the Constitution imposes “some
responsibility” for the “safety and general well-being” of
those that the State takes into its custody “against [their]
will.” Id. at 199–200 (citing the “Estelle-Youngberg” line of
cases). Even if this doctrine extends beyond the custodial
setting, the Court expressly held that it had no applicability
in DeShaney’s case because the State “played no part in th[e]
creation [of the dangers to Joshua], nor did it do anything to
render him any more vulnerable to them.” Id. at 201.
Read as a whole, this discussion in DeShaney makes
clear that the Court was not proposing a new exception.
Rather, the Court was merely providing further explanation
for why the special relationship exception did not apply—
even if the doctrine extended outside the custodial context.
It’s no mistake that the language the Court uses—which
courts now use to justify the state-created danger
exception—also fits neatly within the special relationship
exception. After all, if the State takes a person into custody
and, as a result, that person faces dangers he would not have
faced in the free world, the State is to blame for creating
those dangers and for “render[ing] [that person] . . . more
vulnerable to them.” Id. At most, DeShaney suggests the
“special relationship” exception could apply beyond just the
custodial setting. But it reads too much into the decision to
cut a new doctrine out of whole cloth.
ii.
The Expansion of the Doctrine
Our court’s expansion of the state-created danger
doctrine poses another reason for concern. We first invoked
the doctrine in Wood v. Ostrander, 879 F.2d 583 (9th Cir.
1989). There, our court assessed whether a police officer’s
decision to arrest a driver, impound that driver’s car, and
18 MURGUIA V. LANGDON
thereby strand the passenger in a high-crime area where she
was later raped violated that passenger’s right to due process.
Id. at 589–90. Coming on the heels of DeShaney, we held
that the passenger had raised a triable issue of fact as to
whether the officer’s actions violated due process by
“affirmatively plac[ing] the plaintiff in a position of danger.”
Id. (simplified). While this case represents our first
recognition of the state-created danger doctrine, its reach
was modest because the officer was no doubt exercising an
“exclusive sovereign prerogative,” using the State’s police
authority to force the passenger into a dangerous situation.
Pritchard, 74 Rutgers U. L. Rev. at 192.
But just three years later, our court expanded the state-
created danger exception to cover any “affirmative conduct”
of a government employee that places a plaintiff in danger.
Grubbs, 974 F.2d at 121. In that case, an inmate at an
Oregon state juvenile detention facility raped a nurse. Id. at
120. The nurse sued her State employers, arguing that they
violated her due process rights by placing her with a known
violent sex offender. Id. We concluded that the employers
could face liability because they, “like the officer in
Wood, . . . used their authority as state correctional officers
to create an opportunity for [the inmate] to assault L.W. that
would not otherwise have existed.” Id. at 121. But the
Grubbs court missed a critical distinction. Unlike the officer
in Wood¸ who used coercive State authority to place the
plaintiff in harm’s way, the Grubbs employers were acting
as, well, employers. Scheduling an employee for a shift, as
any other private employer might, is nothing like an officer
using police powers to place a person in danger.
Relying on Grubbs, we widened the state-created danger
exception even more in Penilla v. City of Huntington Park,
115 F.3d 707 (9th Cir. 1997) (per curiam). The plaintiff in
MURGUIA V. LANGDON 19
that case was experiencing a medical emergency, prompting
a 911 call from neighbors. Id. at 708. Two officers arrived
and observed that the plaintiff needed medical care. Id.Even so, they canceled the request for paramedics, moved
the plaintiff inside his house, locked the door, and left him
there. Id. The plaintiff then died of respiratory failure. Id.We concluded that the officers violated the plaintiff’s
substantive due process rights because, even though they did
not create any danger, they “increased the risk” the plaintiff
faced. Id. at 710. In so doing, we rejected the distinction
“between danger creation and enhancement” in favor of a
distinction “between state action and inaction.” Id. We thus
eliminated yet another limiting principle—expanding the
state-created danger exception to cover acts that merely
enhance danger rather than create it.
Martinez v. City of Clovis, 943 F.3d 1260 (9th Cir. 2019),
expanded the state-created danger doctrine even more by
allowing any “affirmative actions”—even officers’
remarks—to lead to state created-danger. In Martinez, a
police officer responded to a domestic violence call, and
while there, made “positive remarks” about the male abuser.
Id. at 1273. Another officer who was there told the abuser
that the victim “was not ‘the right girl’ for him.” Id. at 1272.
After the officers left, the abuser assaulted the victim later
that night. Id. at 1269. We held that a jury could reasonably
find that those officers’ statements placed the victim in
danger by “provok[ing]” or “embolden[ing]” the abuser. Id.
at 1272. But, once again, the officers’ statements didn’t
reflect coercive State authority. At most, the words were a
suggestion that the officers would not act. But DeShaney
makes clear that the Due Process Clause doesn’t impose an
affirmative duty to “guarantee . . . certain minimal levels of
safety and security.” 489 U.S. at 195. It thus makes little
20 MURGUIA V. LANGDON
sense to find liability in instances where the State suggests it
will not act, but not where the State provides no warning that
it will do nothing at all. And if “emboldening” a private
actor is enough to violate due process, it’s hard to explain
DeShaney. There, the social workers repeatedly visited
Joshua’s home without removing him despite clear signs of
abuse, eventually took temporary custody of Joshua, and
then returned Joshua to his father’s custody, all of which
would have emboldened Joshua’s father. Id. at 192–93.
Martinez thus highlights the problems with our court’s
current reliance on mere “affirmative acts” to point to
substantive due process violations.
And Murguia marks an even greater expansion of the
doctrine. As Judge Ikuta points out, Murguia dispenses with
any requirement that the state-created danger doctrine
involve the “abuse of power entrusted to the state.”
Murguia, 61 F.4th at 1124 (Ikuta, J., dissenting). Instead,
Murguia now creates a due process violation “based solely
on negligence and mistake.” Id. Neither Sergeant Garcia
nor Torres exercised coercive government authority here.
First, there’s no allegation that Sergeant Garcia forced
Langdon to stay at the motel that night. Second, Torres did
not use exclusive government authority in providing
Sergeant Garcia false information. And even if she did, she
didn’t abuse State power because there’s no allegation that
she intentionally sought to injure Langdon or the twins by
providing false information.
And so the doctrine continues to be “expanded . . . with
increasing momentum, to apply in a number of distinct
contexts involving state agents acting in their capacity as
employers or service providers of some kind.” Pritchard, 74
Rutgers U. L. Rev. at 175. Now, “any government activity
can give rise to a state-created danger claim.” Id. (emphasis
MURGUIA V. LANGDON 21
added). But we should recognize that each expansion is a
step farther away from our Constitution’s text and the
Supreme Court’s instructions. And with each extension we
intrude further on States’ rights to regulate the torts of their
own officials. See Gray v. Univ. of Colo. Hosp. Auth., 672
F.3d 909, 919 (10th Cir. 2012) (noting the state-created
danger doctrine’s “osmotic, ill-considered tendency to
invade the province of both common law negligence and
state tort law”). So rather than display “the false modesty of
adhering to a precedent that seized power we do not
possess,” we should instead exercise “the truer modesty of
ceding an ill-gotten gain.” Nestlé USA, Inc. v. Doe, 141 S.
Ct. 1931, 1943 (2021) (Gorsuch, J., concurring).
iii.
The Lack of Uniformity
Since DeShaney, nearly every circuit has adopted some
form of the state-created danger exception. So one might
think that in the interest of uniformity, we ought to go along
with the trend. But don’t be fooled. Practically every circuit
that’s endorsed the state-created danger exception has come
up with a different test for when it should apply. One look
at the variations is enough to make anybody question
whether we’ve really “exercise[d] the utmost care . . .
break[ing] new ground in this field.” Dobbs, 142 S. Ct.
at 2247 (quoting Washington v. Glucksberg, 521 U.S.
702, 720 (1997)). Just see for yourself:
1st Cir. (1) State affirmatively acts to create or enhance
danger; (2) danger is specific to plaintiff; (3)
State’s act causes harm; and (4) State’s conduct
shocks the conscience. Level of culpability
22 MURGUIA V. LANGDON
changes based on time the State has to act. Irish,
979 F.3d at 75.
2d Cir. (1) State’s affirmative conduct creates or
enhances danger to plaintiff; and (2) shocks the
conscience. Sustained inaction by the State may
constitute affirmative conduct. Okin v. Vill. of
Cornwall-On-Hudson Police Dep’t, 577 F.3d
415, 428, 431 (2d Cir. 2009).
3d Cir. (1) There is a relationship between State and
person injured; (2) State affirmatively uses
government authority to create danger; (3) the
ultimate injury is foreseeable and fairly direct;
and (4) State’s conduct shocks the conscience.
Sauers v. Borough of Nesquehoning, 905 F.3d
711, 717 (3d Cir. 2018).
4th Cir. (1) State affirmatively acts to create or increase
the risk of harm to victim; and (2) State’s
conduct shocks the conscience. Callahan v.
N.C. Dep’t of Pub. Safety, 18 F.4th 142, 146,
149 n.5 (4th Cir. 2021).
5th Cir. State-created danger exception not recognized.
Fisher, 62 F.4th at 916.
6th Cir. (1) Danger is specific to plaintiff; (2) State’s
affirmative act creates or increases danger; and
(3) State knew or should have known of the
danger. Est. of Romain v. City of Grosse Pointe
Farms, 935 F.3d 485, 491–92 (6th Cir. 2019).
7th Cir. (1) State’s affirmative act creates or increases a
danger; (2) State’s failure to protect the
individual causes injury; and (3) State’s conduct
MURGUIA V. LANGDON 23
shocks the conscience. Est. of Her v. Hoeppner,
939 F.3d 872, 876 (7th Cir. 2019).
8th Cir. (1) Plaintiff is member of limited and definable
group; (2) State’s conduct puts plaintiff at
significant risk of serious harm; (3) risk is
obvious or known; (4) State acts recklessly in
conscious disregard of the risk; and (5) State’s
conduct shocks the conscience. Villanueva v.
City of Scottsbluff, 779 F.3d 507, 512 (8th Cir.
2015).
9th Cir. (1) State’s affirmative actions create or expose
plaintiff to danger; (2) the injury was
foreseeable; and (3) State is deliberately
indifferent. Sinclair, 61 F.4th at 680. No
“shocks the conscience” requirement. See
Kennedy v. City of Ridgefield, 439 F.3d
1055, 1064–65 (9th Cir. 2006).
10th Cir. (1) Plaintiff is member of limited and definable
group; (2) State creates or increases danger to
plaintiff; (3) State puts plaintiff at substantial
risk of serious proximate harm; (4) risk is
obvious; (5) State acts with conscious disregard;
and (6) State’s conduct shocks the conscience.
Est. of B.I.C. v. Gillen, 761 F.3d 1099, 1105
(10th Cir. 2014).
11th Cir. Substantive due process violation if State’s
conduct is “arbitrary, or conscience shocking.”
White v. Lemacks, 183 F.3d 1253, 1258
(11th Cir. 1999).
D.C. Cir. State’s affirmative conduct leads to harm and
shocks the conscience. Butera, 235 F.3d at 651.
24 MURGUIA V. LANGDON
Of course, these varying tests for the same exception are
no surprise when you consider the legal foundation on which
they rest. A two-sentence aside in a single opinion is not a
lot to go on. But like Dr. Frankenstein, courts have cobbled
together bits and pieces of standards from other contexts to
try to breathe new life into substantive due process after
DeShaney. See, e.g., Wood, 879 F.2d at 588 (pulling the
“deliberate indifference” standard from Eighth Amendment
context); Uhlrig, 64 F.3d at 573 (borrowing the “shocks the
conscience” element from a case about a municipal § 1983
claim). And like his monster, the state-created danger
exception roams menacingly among our circuit courts and is
often difficult to comprehend. We should have done our part
to contain this creation.
D.
The State-Created Danger Doctrine Revisited
By now, one point should be clear: the state-created
danger doctrine needs a serious course correction. Courts,
the States, and the people would be better off with clearer
and more uniform guideposts to assess state-created danger
claims. And we should stop the one-way ratchet of ever-
expanding the doctrine. To fix things, we should return to
the text of the Due Process Clause and DeShaney. If we are
to continue to accept some form of the state-created danger
exception, we must stick to the strict limits placed on it by
both the Court and the Constitution.
As stated above, the best reading of DeShaney’s
language concerning state-created danger is that the Court
was supplementing its discussion of the special relationship
exception—not carving out a new exception. What we now
call the “state-created danger” exception is really a subset of
the special relationship exception. And with that
MURGUIA V. LANGDON 25
understanding, we should recognize that state-created
danger must follow the limits of the special relationship
exception. While DeShaney may expand this exception
outside the purely custodial context, it does not untether non-
custodial claims from all constitutional constraints. Rather,
at the heart of DeShaney was the understanding that “it is the
State’s affirmative act of restraining the individual’s
freedom to act on his own behalf—through incarceration,
institutionalization, or other similar restraint of personal
liberty—which is the ‘deprivation of liberty’ triggering the
protections of the Due Process Clause.” 489 U.S. at 200.
Thus, what triggers the due process protection is not any
affirmative act by a State actor—as our precedent currently
holds—but only an “affirmative act of restraining [an]
individual’s freedoms to act on his own behalf.” Id. So, at
a minimum, state-created danger claims must arise from
some “restraint of personal liberty,” like incarceration or
institutionalization. Id. In other words, the State actor’s
conduct must amount to the abuse of coercive government
power to trigger substantive due process liability under a
state-created-danger theory.
As stated recently:
[A]ffirmative action by a state agent is a
necessary, but not a sufficient, condition to
find a deprivation of liberty in the
constitutional sense. Every act of
government is accomplished through a
human agent. As with all humans,
government agents sometimes affirmatively
act in ways that cause harm to others. But not
every such harm-causing act is a deprivation
of liberty by the state. That constitutional
26 MURGUIA V. LANGDON
deprivation can occur only when the harm
results from the state acting qua state—i.e.,
the government using its exclusive sovereign
prerogative to coerce or restrain action
through the threat or application of physical
force.
Pritchard, 74 Rutgers U. L. Rev. at 192.
This understanding comes directly from our
Constitution’s text, which prohibits the “deprivation of
liberty,” and DeShaney, which explains that the Due Process
Clause “was intended to prevent government ‘from abusing
its power, or employing it as an instrument of oppression.’”
489 U.S. at 196 (simplified). This emphasis on coercive
State power explains the Court’s decision in DeShaney.
There, the social workers engaged in “affirmative acts” by
visiting Joshua’s home several times without removing him
and then returning him home after a temporary custody. But
those “affirmative acts” didn’t constitute coercive State
power and the social workers “placed him in no worse
position than” had the State not acted at all. Id. at 201.
To summarize: plaintiffs can’t just point to any
affirmative act to state a due process claim; they must point
to “the State’s affirmative act of restraining the individual’s
freedom to act on his own behalf” to “trigger[] the
protections of the Due Process Clause.” Id. at 200. Only
then can we say that there was some “arbitrary exercise of
the powers of government.” Daniels, 474 U.S. at 331(simplified). After all, the Clause’s purpose is “to protect
the people from the State”—not to protect people from the
negligence of State actors. DeShaney, 489 U.S. at 196; see
also Weiland v. Loomis, 938 F.3d 917, 921 (7th Cir. 2019)
(quoting DeShaney and suggesting that constitutional
MURGUIA V. LANGDON 27
liability arises from the State’s limitation on a person’s
“freedom to act on his own behalf”). Following this
limitation would keep federal courts from turning
constitutional law into tort law—something the Supreme
Court has made clear that we should not do. See Paul,
424 U.S. at 701.
III.
With the proper understanding of the state-created
danger exception in mind, we may now turn back to
Murguia’s claims. While Murguia experienced unspeakable
tragedy, under the proper due process analysis, his state-
created danger claims against Sergeant Garcia, Torres,
Deputy Lewis, and Sergeant Cerda should have been
dismissed.
A.
Claim Against Sergeant Garcia
Sergeant Garcia had the unfortunate role of arranging for
a motel room for Langdon and the twins and then
transporting them there. Our court decided that these were
sufficiently affirmative acts to state a due process claim.
Murguia, 61 F.4th at 1113. We presumed that Sergeant
Garcia’s actions increased the risk of harm to the twins by
“remov[ing] them from the supervision of the Lighthouse
staff and render[ing] the twins more vulnerable to physical
injury by Langdon as a result of their isolation with her.” Id.
Our court also concluded that Sergeant Garcia acted with
deliberate indifference because he “was aware that Langdon
was undergoing a mental health crisis” and that “Langdon
posed an obvious risk of physical harm to the twins based on
her worrisome behavior.” Id. at 1114.
28 MURGUIA V. LANGDON
But this analysis overlooks that Sergeant Garcia’s
affirmative acts lacked state authority. By arranging
transportation and housing, Sergeant Garcia acted “as a
chauffeur and a Good Samaritan—not as an instrument of
the state.” Id. at 1125 (Ikuta, J., dissenting). Murguia
doesn’t allege that Sergeant Garcia forced Langdon to be
driven to the motel or to spend the night there. So nothing
Sergeant Garcia did approached “restrain[ing] [Langdon’s]
personal liberty,” like incarcerating or committing her.
DeShaney, 489 U.S. at 200. And while Sergeant Garcia may
have been negligent in trying to help the twins, his
commonplace actions did not give rise to a constitutional
violation merely because he was an employee of the State.
Because Sergeant Garcia did not exercise coercive state
authority by driving Langdon and the twins to the motel and
leaving them there, Murguia’s § 1983 claim against Sergeant
Garcia should have been dismissed.
B.
Claim Against Torres
Murguia accuses social worker Roxanne Torres of lying
to Sergeant Garcia about Langdon’s circumstances and
history of abuse. In particular, Torres told Sergeant Garcia
that Langdon had no history of child abuse and neglected to
tell him about Murguia’s availability to take custody of the
twins. Our court concludes that providing Sergeant Garcia
with false information violated due process because it
“eliminat[ed] the most obvious solution to ensuring the
twins’ safety: returning them to [Murguia’s] custody.”
Murguia, 61 F.4th at 1115. We speculated that, “[a]bsent
Torres’s affirmative misrepresentation, Garcia may have
conducted an independent investigation into Langdon’s
MURGUIA V. LANGDON 29
criminal history and living situation prior to settling on the
decision to take the family to the motel.” Id.
But our court conceded that Torres’s affirmative acts
merely consisted of “revealing certain information,” id.—
information that turned out to be wrong. So again, we have
an affirmative act that has nothing to do with the “restraint
of personal liberty.” DeShaney, 489 U.S. at 200. In some
respects, Torres acted only as a conduit of false
information—like any website or social media app could.
Even if Torres falsely disseminated proprietary government
information, her lies still didn’t lead to the deprivation of
Langdon’s liberty. Instead, our court holds her accountable
based on the counterfactual assumption that Sergeant Garcia
would have prevented the twins’ deaths if only he received
accurate information from Torres.
Again, Torres’s actions may constitute negligence or
fraudulent misrepresentation. See Restatement (Second) of
Torts §§ 304 (“A misrepresentation of fact or law may be
negligent conduct.”), 310 (stating that an actor who makes a
misrepresentation is liable for physical harm of another
person if that actor should know that his misrepresentation
will likely induce action and knows that the statement is
false). But that Torres receives her paycheck from the State
is not a valid basis for transforming a traditional tort into a
constitutional deprivation.
C.
Claim Against Deputy Lewis and Sergeant Cerda
Although our court dismissed the claim against Deputy
Lewis and Sergeant Cerda, that claim is actually the
strongest of Murguia’s claims. Of the State actors involved,
Deputy Lewis and Sergeant Cerda were the only ones who
30 MURGUIA V. LANGDON
used coercive government power. See Murguia, 61 F.4th
at 1124 (Ikuta, J., dissenting). The deputies ordered
Murguia to separate from Langdon and the twins once they
arrived on scene. They then let Langdon and the twins leave
with Rosa while forcing Murguia to remain at home. They
even stayed outside Murguia’s house for 30 minutes so that
he could not follow Langdon and the twins. Murguia alleged
that he feared arrest if he disobeyed the deputies’ commands.
In other words, Deputy Lewis and Sergeant Cerda
“restrain[ed] [Murguia’s] freedom to act on his own behalf.”
DeShaney, 489 U.S. at 200. Thus, of all Murguia’s claims,
the claim against these deputies is the only one that passes
the threshold requirement of a deprivation of liberty.
Our court, however, dismissed the claim because the
deputies “merely replaced one competent adult . . . with
another competent adult” and so “the officers [did not leave]
the twins in a situation that was more dangerous than the one
in which they found them.” Murguia, 61 F.4th at 1113
(simplified). Though it’s a close call, I agree that Deputy
Lewis and Sergeant Cerda did not violate Murguia’s due
process rights because of the lack of foreseeability. See
Sinclair, 61 F.4th at 680 (requiring a foreseeable injury to
allege state-created danger). So much more took place in the
hours between the deputies’ actions in restraining Murguia
and the deaths of the twins. As our court pointed out, the
deputies left Langdon and the twins in the hands of Rosa, a
“competent adult.” Murguia, 61 F.4th at 1113. And the
deputies could not have predicted the series of tragic bad
judgments and mistakes made by the State and non-State
actors who encountered Langdon and the twins over the next
24 hours. Thus, without causation or foreseeability,
Murguia’s state-created danger claim against Deputy Lewis
and Sergeant Cerda should ultimately fail.
MURGUIA V. LANGDON 31
IV.
We should have seized this opportunity to correct our
longstanding errors in applying the state-created danger
doctrine. We could have put ourselves back on track with
Supreme Court precedent and our Constitution’s text. And
the solution is a narrow and straightforward one—holding
that only affirmative acts that cause the “deprivation of
liberty” may suffice for a state-created danger claim. It is
regrettable that our court has declined to take this textual
approach.
I respectfully dissent from the denial of rehearing en
banc.